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The Law of International Responsibility edited by Crawford, James; Pellet, Alain; Olleson, Simon; Parlett, Kate

Part V The Implementation of International Responsibility, Ch.84 Obligations Relating to Human Rights and Humanitarian Law

Silvia Borelli, Simon Olleson

From: The Law of International Responsibility

Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 August 2019

Subject(s):
Responsibility of states — Wrongful acts — Countermeasures — Reprisals — Geneva Conventions 1949 — Belligerents — Erga omnes obligations — State practice

(p. 1177) Chapter 84  Obligations Relating to Human Rights and Humanitarian Law

Introduction

In 1928, the tribunal in the ‘Naulilaa’ arbitration held that the range of actions open to a State in response to a breach by another State of its international obligations was ‘limited by the requirements of humanity’.1 A few years later, the Institut de droit international adopted a resolution declaring that in the adoption of measures of reprisal, a State must ‘abstain from any harsh measure which would be contrary to the laws of humanity and the dictates of the public conscience’.2

Since these early pronouncements, the idea that the performance of certain obligations which protect the ‘requirements of humanity’ may not be suspended by way of countermeasure has become firmly entrenched in the international legal system. The range of (p. 1178) obligations which fall within that category has become much clearer. In particular, that category includes, on the one hand, obligations in the field of humanitarian law prohibition of belligerent reprisals, and, on the other, substantive obligations arising under the international law of human rights.

In the context of the ILC’s work on State responsibility, the exclusion of counter measures in relation to obligations relating to human rights was proposed at a comparatively early point in the consideration of the specific sub-topic of countermeasures. However, until relatively late in the elaboration of the ILC’s Articles on State Responsibility, the principal concern was to delimit the categories of human rights obligations which could and could not legitimately be the object of countermeasures. As far as obligations under international humanitarian law are concerned, the specific prohibition of the adoption of certain forms of belligerent reprisals was for a long period treated by the ILC as being merely a part of the broader prohibition of countermeasures in relation to human rights, and was only separated out at a relatively late stage.

Article 50(1) of the ILC’s Articles reflects these developments, providing that countermeasures ‘shall not affect … (b) obligations for the protection of fundamental human rights; (c) obligations of a humanitarian character prohibiting reprisals’.3 Also of relevance in this regard is article 50(1)(d), which adds that countermeasures may not affect ‘other obligations under peremptory norms of general international law’. The following Section traces the genesis of those provisions in the work of the ILC. The next two Sections consider in detail, respectively, the specific prohibition of countermeasures affecting fundamental human rights and the prohibition of countermeasures in respect of certain obligations under international humanitarian law.

The work of the ILC

Article 50(1)(b) and (c) can be seen as constituting the direct descendant and logical extension in the field of State responsibility of the principle contained in article 60(5) of the Vienna Convention on the Law of Treaties, which provides for an exception to the general possibility of termination or suspension of a treaty, or part thereof, in response to a material breach of that treaty by another party.4 In particular, under article 60(5) of the Vienna Convention, such a course of conduct is excluded in relation to:

provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.5

(p. 1179) Article 60(5) of the Vienna Convention had no precursor in the final draft Articles on the Law of Treaties produced by the ILC.6 However, in his Second Report on the Law of Treaties, Sir Gerald Fitzmaurice had canvassed the exclusion of the possibility of terminating or suspending certain obligations by way of response to a fundamental breach of a treaty. In particular, he proposed that termination and suspension should be excluded ‘where the juridical force of the obligation is inherent, and not dependent on a corresponding performance by the other parties to the treaty … so that the obligation is of a self-existent character, requiring an absolute and integral application and performance under all conditions’.7 Fitzmaurice regarded obligations in the field of human rights (together with obligations under the 1949 Geneva Conventions) as among the prime examples of such ‘integral’ obligations.8

The addition of the provision which was to become article 60(5) of the Vienna Convention was proposed at the Vienna Conference by Switzerland—apparently on behalf of the ICRC9—with the principal aim of removing any justification for suspension or termination of the 1949 Geneva Conventions and other international humanitarian law treaties as a result of a breach by another party.10 However, in introducing the amendment, the Swiss delegate expressly referred to obligations under human rights treaties.11 Indeed, despite the specific reference to provisions prohibiting reprisals, the more general reference to ‘treaties of a humanitarian character’ is widely interpreted by the dominant strand in the doctrine to exclude termination or suspension in response to a material breach not only of obligations deriving from treaties prohibiting reprisals in the field of international humanitarian law, but also as regards the substantive obligations deriving from human rights treaties more generally.12

(p. 1180) In the context of the ILC’s consideration of the topic of State responsibility, the issue of countermeasures was first subjected to in-depth scrutiny in the reports of Willem Riphagen. As for the possibility of countermeasures in relation to human rights obligations, Riphagen proposed a wide formulation, providing for the exclusion of countermeasures consisting of the suspension of obligations contained in a multilateral treaty to which both States were party and which were stipulated for the protection of either ‘collective interests of the States parties to the multilateral treaty’ or ‘of individual persons irrespective of their nationality’.13 Riphagen’s formulation was sufficiently wide to capture all human rights obligations deriving from treaties; however, given that it was explicitly limited to treaty-based obligations, it did not as such deal with human rights obligations under customary international law. That said, insofar as a customary human rights obligation derived from a norm having jus cogens status, a countermeasure consisting of its suspension would nevertheless have been prohibited.14

When Gaetano Arangio-Ruiz in turn came to consider the issue, he proposed that countermeasures could not consist of conduct ‘not in conformity with the rules of international law on the protection of fundamental human rights’.15 In Arangio-Ruiz’s view, the notion of ‘fundamental human rights’ was to be understood as being limited to ‘core’ rights, a ‘minimum irréductible des droits de la personne humaine’.16 Accordingly, countermeasures consisting of the non-performance of other human rights obligations implicitly remained permissible.17 The principal example given of a human right which did not fall into the cate gory of the ‘core’, or ‘more essential’, human rights was the right to property, in light of the relatively widespread practice of expropriation or freezing of assets of nationals of another State in response to an alleged violation by that State of its international obligations.18

Although this position appeared to leave a number of human rights obligations unprotected from suspension by way of countermeasure, the gap was more apparent than real, given that Arangio-Ruiz recognized that the situation was different in relation to certain obligations deriving from a multilateral treaty (‘obligations erga omnes partes’) and where the obligations in question constituted a customary obligation erga omnes or a rule of jus cogens.19 Arangio-Ruiz, in language which recalled the formulation of Fitzmaurice in relation to suspension and termination in the law of treaties, opined that countermeasures could not be adopted in relation to such obligations due to the ‘ “legal indivisibility” of the content of the obligation, namely … the fact that the rule in question provides for obligations which bind simultaneously each and every State concerned with respect to all the others’.20 As a consequence, he reasoned, ‘any measure adopted by a State vis-à-vis a responsible State infringes not only the right of the latter but also the rights of all the other parties to which the erga omnes rule that has been infringed applies …’.21 Accordingly, he proposed that conduct consisting of ‘a breach of an obligation towards any State other than the State which has committed the internationally wrongful act’ should be excluded from the scope of permissible countermeasures, this provision being intended to cover (p. 1181) both obligations under multilateral treaties having effects erga omnes partes, and erga omnes obligations under customary international law.22

In the Drafting Committee, Arangio-Ruiz’s proposals underwent substantial modification and the exclusion was reformulated in terms of a prohibition of countermeasures consisting of ‘conduct which derogates from basic human rights’.23 Although that formulation could be read as being wider than that proposed by the Special Rapporteur, it was made clear that the change was intended to reflect the language of the International Court in Barcelona Traction,24 and covered only the ‘core’ human rights.25 At the same time, the proposed exclusion of countermeasures affecting obligations owed to third States was regarded as being too sweeping and was transformed into a saving clause in the general provision relating to countermeasures to the effect that the wrongfulness of such countermeasures was not precluded as against third States.26

The provision concerning prohibited countermeasures in relation to human rights as reformulated by the Drafting Committee was provisionally adopted, substantially unchanged, on first reading by the ILC in 1996 as draft article 50. The accompanying Commentary explained that the reference to ‘basic human rights’ was intended to refer to the ‘core’ human rights, thus implicitly permitting countermeasures in respect of some human rights obligations.27 In addition, it contained extensive references to the rules of international humanitarian law prohibiting inter alia certain forms of belligerent reprisals.28

In his Third Report, the last Special Rapporteur, James Crawford, reviewed various criticisms of the provision adopted on first reading and proposed the introduction of a distinction between obligations:

which may not be suspended by way of countermeasures, and obligations which must be respected in the course of taking countermeasures—in other words, between the subject of countermeasures and their effect.29

Specifically in relation to human rights obligations, Crawford noted and endorsed the comment of one government that ‘since human rights obligations are not, in the first instance at least, owed to particular States … it is accordingly difficult to see how a human rights obligation could itself be the subject of legitimate countermeasures’.30 He further proposed that separate provision should be made in relation to the prohibition of certain types of belligerent reprisals under international humanitarian law.31

On the basis of this division between ‘the subject of countermeasures and their effect’, Crawford proposed two separate articles, covering ‘Obligations not subject to countermeasures’ and ‘Prohibited countermeasures’.32 Obligations prohibiting reprisals as a matter of humanitarian law were covered in the former, while obligations relating to human rights were covered in the latter, which provided that ‘[c]ountermeasures must not … impair the rights of third parties, in particular basic human rights’.33

(p. 1182) But Crawford’s proposed approach did not prevail, and article 50 of the ILC’s Articles is based on a different distinction. Article 50 distinguishes between, on the one hand, ‘sacrosanct’ obligations, which may not under any circumstances be the object of countermeasures, and, on the other hand, those obligations (relating to the peaceful settlement of disputes and to diplomatic and consular inviolability) the performance of which can not be suspended due to their special importance for the resolution of disputes.34

The ‘sacrosanct’ obligations referred to in article 50(1) of the ILC’s Articles comprise—in addition to the obligation to refrain from the threat or use of force under the UN Charter35 and the catch-all category of ‘other obligations under peremptory norms of general international law’36— a category of ‘obligations for the protection of fundamental human rights’.37 In addition, taking account of Crawford’s proposal, a separate category of ‘obligations of a humanitarian character prohibiting reprisals’ was included.38

The prohibition of countermeasures affecting human rights obligations

Two situations may be envisaged in which a countermeasure may have a more or less direct impact on the enjoyment of internationally protected human rights. The first and most obvious situation is that in which, in response to a breach of an obligation owed to it, a State purports to suspend performance of its human rights obligations, whether generally, including in relation to its own nationals, or solely in relation to nationals of the responsible State (or indeed of third States). Apart from the specific situation of the freezing of the assets of nationals of a responsible State, such action is extremely rare, if not non-existent, in recent State practice.

However, the formulation of article 50(1)(b), insofar as it provides that countermeasures ‘shall not affect …’ clearly limits the range of permissible countermeasures in relation to a second scenario. The provision clearly targets not only the suspension by a State of the performance of its obligations relating to human rights per se, but also the adoption of counter measures which, although not directly involving the suspension of performance of its human rights obligations, nevertheless have the effect of indirectly affecting the enjoyment of those rights.39

(a)  The prohibition of suspension of human rights obligations by way of countermeasure

The variety of proposals by the successive Special Rapporteurs in relation to the prohibition of countermeasures affecting human rights obligations can be seen as an attempt to give effect to the specific characteristics of human rights obligations, taking into account both the fact that the primary beneficiaries of such obligations are individuals and that they fall into the category of obligations erga omnes.

It is undoubtedly the case that human rights obligations are, in fundamental regards, different from most ‘traditional’, synallagmatic obligations under international law. A series of pronouncements of the International Court and the relevant monitoring bodies has (p. 1183) emphasized the pre-dominant character of treaty-based human rights obligations as being stipulated for the protection of the individuals who are the beneficiaries of such obligations, while minimizing the effects of their formal creation through the conclusion of treaties between States. In an oft-cited dictum, the International Court in 1951 observed in relation to the Convention for the Prevention and Punishment of the Crime of Genocide that:

the contracting states do not have any interests of their own; they merely have, one and all, a common interest, namely the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages of states, or of the maintenance of a perfect contractual balance between rights and duties.40

Subsequently, other bodies have made similar observations in relation to the major international instruments for the protection of human rights. The Human Rights Committee initially stated in 1994 that ‘[human rights treaties], and the Covenant specifically, are not a web of inter-State exchanges of mutual obligations. They concern the endowment of individuals with rights’.41 More recently, however, the Committee has emphasized that:

[w]hile article 2 is couched in terms of the obligations of State Parties towards individuals as the right-holders under the Covenant, every State Party has a legal interest in the performance by every other State Party of its obligations. This follows from the fact that the ‘rules concerning the basic rights of the human person’ are erga omnes obligations and that, as indicated in the fourth preambular paragraph of the Covenant, there is a United Nations Charter obligation to promote universal respect for, and observance of, human rights and fundamental freedoms. Furthermore, the contractual dimension of the treaty involves any State Party to a treaty being obligated to every other State Party to comply with its undertakings under the treaty …42

A similar approach has been taken in relation to the European Convention on Human Rights. In the ‘Pfunders’ case, the European Commission of Human Rights opined that the provisions of the European Convention are ‘essentially of an objective character, being designed rather to protect the fundamental rights of individual human beings from infringement by any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Parties themselves’.43 The European Court of Human Rights, again in the context of an inter-State case, further developed that reasoning. Although recognizing the inter-State element of the substantive obligations under the European Convention, the European Court stated that those obligations constitute ‘more than mere reciprocal engagements between contracting States’ and emphasized that the European Convention ‘creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a (p. 1184) “collective enforcement” ’.44 More recently, the Court has emphasized the special character of the European Convention as ‘an instrument of European public order (ordre public) for the protection of individual human beings’45 and as ‘a constitutional instrument’ of European public order.46

While the Human Rights Committee and the European Court of Human Rights have recognized that the fact that the obligations under their respective instruments derive, in the final analysis, from treaties and that the inter-State nature of those obligations therefore retains an important, albeit residual, role, the Inter-American Court of Human Rights has gone further, apparently entirely eliminating any such inter-State element. In its Advisory Opinion on Effect of Reservations,47 the Inter-American Court observed that the object and purpose of the American Convention was not ‘the exchange of reciprocal rights’ between the States parties but was rather the protection of human rights of individuals, irrespective of their nationality.48 The Court concluded that, as a result, the States parties to the American Convention ‘can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction’.49 Accordingly, the Court stated:

the Convention must be seen for what in reality it is: a multilateral legal instrument of framework [sic] enabling States to make binding unilateral commitments not to violate the human rights of individuals within their jurisdiction.50

Although there thus appears to be agreement on the character of human rights obligations as being primarily intended to confer rights on individuals, as shown by the passages cited above, there exists a range of views as to the relevance of the inter-State aspect of those obligations. In this connection, the better view would appear to be that, despite the predominance of the characteristic trait of human rights treaties as conferring rights directly on individuals, it is still the case that the obligations created by those treaties in some sense remain owed to the other States parties, which therefore have an interest in ensuring their performance. As observed by Bruno Simma:

human rights treaties are ‘built’ like all other multilateral treaties. They, too, create rights and obligations between their parties to the effect that any State party is obliged as against any other State (p. 1185) party to perform its obligations and that, conversely, any party has a correlative right to integral performance by all the other contracting States.51

As a result, it is clear that, quite apart from the express prohibition of countermeasures in relation to human rights obligations, if a State were to purport to suspend performance of one of its treaty-based human rights obligations by way of countermeasure, the wrongfulness of such action would not be precluded as against any State party other than the responsible State.52

As regards at least the most fundamental customary human rights obligations, the same effect arguably results from their peremptory status. The International Court in Barcelona Traction observed that such obligations are ‘owed to the international community as a whole’ and that ‘[b]y their very nature … [they] are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes’.53 The Court identified in its catalogue of examples of such obligations ‘the basic rights of the human person’, giving as examples protection from slavery and racial discrimination.54 Although the Court has since recognized other obligations within the field of human rights as falling within the category of obligations erga omnes,55 there is no clear consensus among States on which other obligations fall within that category, nor indeed, as to which human rights obligations constitute customary international law.

However, as regards the question of which obligations constitute obligations erga omnes, the better view would appear to be that any human rights obligation, insofar as it is established as a matter of customary international law, is owed erga omnes. Such obligations are clearly established for the protection of a collective interest of the international community as a whole, namely the protection of the fundamental rights of individuals regardless of their nationality, and their respect is therefore ‘the concern of all States’.56 As a consequence, and quite apart from the effect of article 50(1)(b) of the ILC’s Articles, the purported suspension of performance of a customary human rights obligation will in any case constitute a breach of that obligation vis-à-vis all States other than the State at which the purported countermeasure is directed.

Accordingly, despite their different formal sources, there is a strong parallelism between the obligations deriving from multilateral human rights treaties, one of the most (p. 1186) obvious cases of obligations established for the protection of a collective interest of the States involved (so-called obligations erga omnes partes), and obligations owed erga omnes under customary international law (i.e. those ‘owed to the international community as a whole’).57 Therefore, to the extent that a State is bound by human rights obligations deriving from a treaty, it will in any case breach its obligations to all other States parties to that treaty if it purports to suspend performance of obligations under the treaty (whether or not solely in relation to the nationals of the target State) in response to an alleged internationally wrongful act. This is so whether or not the wrongdoing State is also party to that instrument. Similarly, to the extent that a particular human rights obligation constitutes customary international law, any suspension of performance of that obligation will likewise constitute a breach as against all other States. Seen from this perspective, in the absence of a treaty obligation binding the two States, the distinction between the ‘core’ or ‘minimum irreductible’ human rights and other ‘lesser’ human rights identified by Arangio-Ruiz becomes in the end a question of whether or not the obligation in question constitutes customary international law.

Further, on this approach, the legality of the practice identified by Arangio-Ruiz of the adoption of countermeasures consisting in the freezing of the assets of nationals of an allegedly responsible State need not be explained on the basis that certain human rights obligations outside the core or ‘minimum irréductible’ may legitimately be the object of countermeasures. Rather, to the extent that the right to property has not attained customary status,58 the better view would appear to be that the question of the legality of such measures in the end depends on whether there is a treaty obligation in force binding the State taking the measures in question to respect the right to property in such circumstances.59

(b)  The prohibition of countermeasures ‘affecting’ fundamental human rights obligations

As noted above, article 50(1)(b) also precludes the adoption of countermeasures which, although not taking the form of the suspension of human rights obligations per se, neverthe less indirectly have a negative effect on human rights. The potentially detrimental effect on the enjoyment of certain fundamental rights of countermeasures which do not as such involve the suspension of performance of human rights obligations is clear, for instance, in the case of imposition of economic sanctions.

In many cases, economic sanctions may amount to no more than measures of retorsion, insofar as they do not involve the suspension of performance of any obligation owed to the target State. In such circumstances, the sanctions merely amount to unfriendly but lawful (p. 1187) action and therefore require no justification as a countermeasure.60 However, in other cases, the sanctions in question may involve the suspension of performance of an obligation owed to the target State and therefore would amount to an internationally wrongful act except to the extent that they qualify as countermeasures. This would be the case, for instance, where there is an economic cooperation agreement in force between the two States and one party purports to suspend performance of that agreement in response to an alleged breach by the other party of another of its international obligations.61 It is selfevident that measures such as the suspension of performance of an economic cooperation agreement or a firm commitment to provide aid, or the interruption of trade relations, may, depending on the economic situation of the States involved, have an adverse impact upon the effective enjoyment of certain human rights in the target State.

In this regard, the Committee on Economic and Social Rights has emphasized that ‘whatever the circumstances … sanctions should always take full account of the provisions of the International Covenant on Economic, Social and Cultural Rights’,62 and this is so whether the economic sanctions are imposed unilaterally by individual States or groups of States, or adopted collectively under the auspices of a universal or regional international organization.63

Although the reasoning of the Committee may have some justification in the specific case of the International Covenant on Economic, Social and Cultural Rights, which contains no express limitation on the scope of its application,64 it is questionable whether it may be transposed to other human rights treaties. In that regard, it may be noted that the majority of human rights treaties contain some express limitation on their material applicability in terms of the ‘territory’ and/or ‘jurisdiction’ of the States parties,65 and it is not generally accepted that the mere ability of a State to take action affecting the enjoyment of human rights of individuals outside its territory is sufficient to render its human rights obligations applicable as regards those individuals.66 Given these express limitations on the extra-territorial applicability of human rights treaties, it is by no means clear that the obligations deriving from such treaties are even applicable to the effects of economic sanctions on individuals within the territory of the target State. Such effects by definition take place outside the territory of the State adopting the measures and will normally be outside its ‘jurisdiction’. Further, if a claim of responsibility for breach of human rights (p. 1188) obligations consequent upon the adoption of such countermeasures were to be brought, there would be obvious problems relating to proof of causation between the adoption of the countermeasure in question and the impact on human rights, which in most cases will be causally remote.

Nevertheless, the emphasis of the Committee on Economic, Social and Cultural Rights on respect for human rights in the context of implementation of economic sanctions was endorsed more generally as regards all human rights obligations by the ILC.67 As noted above, in article 50(1)(b) of the ILC’s Articles the requirement of respect for human rights takes effect as a prohibition at the level of the secondary rules of responsibility governing the permissibility of countermeasures, rendering illegitimate those countermeasures which ‘affect’ obligations for the protection of fundamental human rights. That formulation seems to be motivated to a large extent by humanitarian concerns, rather than constituting a statement of either existing human rights law or being based upon a strict legal analysis that the adoption of such countermeasures by a State will necessarily result in a violation of its applicable primary human rights obligations.

Countermeasures affecting obligations under humanitarian law

Article 50(1)(c) of the ILC’s Articles deals with the impermissibility of countermeasures affecting certain obligations under international humanitarian law. Further, the international law of armed conflict itself regulates the possibility for a party to the conflict to suspend performance of certain obligations in response to violations of the laws of war committed by the enemy.

Traditionally, international humanitarian law permitted the adoption of ‘belligerent reprisals’ as being one of the few effective mechanisms for ensuring compliance with the rules of international humanitarian law. A useful working definition of belligerent reprisals is that they are acts ‘in breach of a rule of the law of armed conflict directed by one belligerent party against the other with a view to inducing the latter party to stop violating that or another rule of [humanitarian law]’.68 In other words, belligerent reprisals may be seen as constituting a particular species of the genus countermeasure within the specific area of international humanitarian law.

The categories of permissible belligerent reprisals in armed conflict have progressively been reduced as part of the development of international humanitarian law. Accordingly, quite apart from the secondary rules of the law of State responsibility, international humanitarian law contains primary rules aimed at ensuring that the most important obligations of restraint, aimed at protecting the various categories of protected persons, may not be suspended in response to violations by other parties to the conflict.

Section (a) below examines the positive treaty rules prohibiting belligerent reprisals, as well the question of whether the performance of other specific treaty obligations under international humanitarian law likewise may not be suspended by way of reprisal. (p. 1189) Section (b) deals briefly with the specific question of the extent to which the prohibition of reprisals targeting civilians constitutes customary international law. Finally, section (c) briefly discusses the logic underlying the ILC’s approach of prohibiting countermeasures affecting ‘obligations of a humanitarian character prohibiting reprisals’, rather than counter measures affecting the underlying prohibition of particular conduct.

(a)  Conventional rules limiting recourse to belligerent reprisals

Over the course of the 20th century, international humanitarian law has witnessed a progressive reduction of the categories of permissible measures of reprisal in the context of international armed conflicts.

In relation to combatants, the prohibition of the taking of measures of reprisal against prisoners of war, already contained in article 2 of the 1929 Geneva Convention Relative to the Treatment of Prisoners of War,69 was subsequently reiterated in article 13(3) of the Third Geneva Convention of 1949.70 At the same time, the prohibition of reprisals was extended to cover the wounded and sick on land, and medical establishments and their personnel,71 as well as the wounded, sick and shipwrecked at sea, and hospital ships and their crew.72

As far as civilians are concerned, no protection against reprisals was provided by the Hague Regulations of 1907,73 nor by the 1929 Geneva Convention. The protection of certain categories of civilians against belligerent reprisal is however envisaged in the Fourth Geneva Convention, article 33(3) of which prohibits the taking of reprisals against ‘protected persons and their property’. However, due to the somewhat limited scope of application ratione personae of the Fourth Geneva Convention, only civilians in occupied territories and other categories of civilians in the hands of the enemy (such as, for instance, enemy nationals within the territory of one of the belligerents) enjoy protection against belligerent reprisals under the Convention.74 By contrast, civilians in non-occupied enemy territory remained a legitimate object of reprisals. Steps were taken to remedy this situation in Additional Protocol I, article 51(6) of which sets forth, for the first time, an explicit (p. 1190) general prohibition of reprisals consisting in ‘attacks against the civilian population or civilians’.75 The ICRC Commentary on that provision explains that:

The prohibition [of reprisals against civilians] is not subject to any conditions, and it therefore has a peremptory character; in particular it leaves out the possibility of derogating from this rule by invoking military necessity.76

The prohibition of belligerent reprisal against civilians is further reinforced by the provision contained in article 51(8) of Additional Protocol I, which provides that:

[a]ny violation of [the rules concerning protection of the civilian population] shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians.

Prohibitions against measures of reprisal also exist in relation to particular categories of objects. For instance, the 1954 Hague Convention on the protection of cultural property prohibits ‘any act directed by way of reprisals against cultural property’.77 Additional Protocol I also added specific prohibitions of reprisals to the obligations not to attack civilian objects,78 historic monuments, works of art and places of worship which constitute the cultural or spiritual heritage of peoples,79 objects indispensable to the survival of the civilian population,80 the natural environment,81 and works, installations or military objectives containing dangerous forces (eg dams, dykes and nuclear power stations).82

In light of the conventional legal framework briefly sketched above, as a matter of treaty-law, the residual scope for adoption of measures of reprisal in the context of international armed conflict is extremely limited.83 However, the rules of international humanitarian law relating to non-international armed conflicts are much less explicit. The only provision dealing with non-international armed conflict in the Geneva Conventions, common article 3, contains no express prohibition of reprisals and the same is true of Additional Protocol II.84 At least part of the reason for the absence of any such express prohibition is the reluctance of States to introduce the legal notion of reprisal, which is (p. 1191) seen as concerning only inter-State relations, into the legal framework concerning noninternational armed conflict.85

However, as noted by the ICRC, although the application of common article 3 and Additional Protocol II has no legal effect on the status of the parties to a non-international armed conflict, those parties nevertheless are ‘still subjects of international law in the limited context of humanitarian rights and obligations resting upon them under these two instruments’86 and ‘[w]henever there is a possibility of rules of international law not being respected, there may be reprisals’.87 Accordingly, the ICRC has consistently interpreted common article 3 as containing an implied prohibition of reprisals in relation to the specific acts prohibited ‘at any time and in any place whatsoever’ by common article 3(1), on the basis that they:

… are prohibited absolutely and permanently, no exception or excuse being tolerated. Consequently, any reprisal which entails one of these acts is prohibited, and so, speaking generally, is any reprisal incompatible with the ‘humane treatment’ demanded unconditionally in the first clause of sub-paragraph (1).88

Similarly, the general prohibition of attacks on the civilian population set forth in article 13(2) of Additional Protocol II, the associated obligations not to make objects indispensable to the survival of the civilian population,89 works and installations containing dangerous forces,90 and cultural objects and places of worship91 the target of attack, coupled with the absolute character of the rules protecting civilians, which ‘shall be observed in all circumstances’,92 has led the ICRC to take the position that, under Additional Protocol II, ‘there is in fact no room left at all for carrying out “reprisals” against protected persons’.93

(b)  Customary rules prohibiting belligerent reprisals against civilians during the conduct of hostilities

Whilst, as a matter of positive treaty-law, both in international and non-international armed conflict the freedom of action of States parties to the relevant instruments to take belligerent reprisals is tightly circumscribed, the question of the existence of parallel customary prohibitions of reprisals is to some extent less clear. There can be no doubt that the various norms prohibiting reprisals against protected persons enshrined in the 1949 Geneva Conventions, including those prohibiting reprisals against civilians in occupied territory, are reflected in analogous prohibitions under customary international law.94 (p. 1192) Similarly, it is generally recognized that reprisals against objects protected under the Geneva Conventions and the Hague Convention for the Protection of Cultural Property are prohibited as a matter of customary international law.95 Further, it is clear that, under the customary rules regulating armed conflict, belligerent reprisals have only a very limited scope and are subject to very stringent conditions.96 However, a far more controversial point concerns the existence and the extent of a customary rule prohibiting any reprisals against civilians, paralleling that under Additional Protocol I.

The fact that Additional Protocol I contains an express prohibition of such reprisals has been put forward by the United States as one of the principal reasons for not ratifying.97 Further, while other States have ratified Additional Protocol I, they have entered reservations to the provisions relating to belligerent reprisals.98 For instance, upon ratification the United Kingdom reserved the right to take reprisals against the civilian population or civilian objects in response to ‘serious and deliberate attacks’ of the same nature by another party to the conflict.99 Similarly, France’s ratification of Additional Protocol I was accompanied by a reservation to article 51(8), stating that it will apply that provision:

to the extent that its interpretation does not pose an obstacle to the adoption, in conformity with international law, of measures which it considers indispensable for the protection of its civilian population from serious, clear and deliberate violations of the Geneva Conventions and this Protocol by the enemy.100

The apparent intent underlying such a reservation is effectively to enter a general reservation to the entirety of article 51 of Additional Protocol I, including the prohibitions of belligerent reprisals contained therein, so as to retain the possibility of belligerent reprisals (p. 1193) against civilians and civilian objects in extreme circumstances. Reservations which arguably are intended to have the same effect have been made by Italy, Germany, and Egypt.101

Despite the doubts which may be engendered by the practice of some States in relation to the rules prohibiting reprisals against civilians contained in Additional Protocol I, the prohibition of belligerent reprisals against civilians was recognized as constituting customary international law even prior to the conclusion of the Additional Protocols in relation to both international and non-international conflicts. In particular, GA Resolution 2675 (XXV), which was adopted unanimously in 1970, declared that ‘civilian populations, or individuals thereof, should not be the object of reprisals … ’.102

Two decisions of the International Criminal Tribunal for the former Yugoslavia have affirmed the customary nature of the rule. In Prosecutor v Martic,103 the Trial Chamber of the ICTY held that, in the light of, inter alia, common article 3 to the Geneva Conventions, the Martens Clause and GA Resolution 2675 (XXV), under customary international law the rule that civilians should not be the object of attack was a ‘fundamental rule of international humanitarian law applicable to all armed conflicts’.104 The Trial Chamber went on to hold that this prohibition must be respected:

in all circumstances regardless of the behaviour of the other party … [N]o circumstances would legitimize an attack against civilians even if it were a response proportionate to a similar violation perpetrated by the other party.105

In Prosecutor v Kupreškić,106 the Trial Chamber, having rejected the tu quoque principle as a defence in the context of individual criminal responsibility and affirmed the ‘absolute’ non-reciprocal nature of international humanitarian law,107 again had occasion to discuss the question of reprisals against the civilian population.108 Starting from the proposition that ‘reprisals against civilians are inherently a barbarous means of seeking compliance with international law’,109 the Trial Chamber went on to opine that

while reprisals could have had a modicum of justification in the past, when they constituted practically the only effective means of compelling the enemy to abandon unlawful acts of warfare and to comply in future with international law, at present they can no longer be justified in this manner.110

It further held that ‘[d]ue to the pressure exerted by the requirements of humanity and the dictates of public conscience, a customary rule of international law has emerged’,111 absolutely prohibiting reprisals against civilians regardless of the nature of the conflict.

Although these pronouncements point strongly in the direction of the existence of a customary rule prohibiting reprisals against civilians in all situations, given the contrary (p. 1194) State practice they must be approached with some caution.112 In this regard, probably the most that can to be said is that:

[b]ecause of existing contrary practice, albeit very limited, it is difficult to conclude that there has yet crystallised a customary rule specifically prohibiting reprisals against civilians during the conduct of hostilities. Nevertheless, it is also difficult to assert that a right to resort to such reprisals continues to exist on the practice of only a limited number of States, some of which is also ambiguous. Hence, there appears, at a minimum, to exist a trend in favour of prohibiting such reprisals.113

(c)  The approach of the ILC to the issue of countermeasures affecting obligations under international humanitarian law

In relation to obligations in the field of humanitarian law, article 50(1)(c) of the ILC’s Articles limits itself to prohibiting the adoption of countermeasures which affect ‘obligations of a humanitarian character prohibiting reprisals’. In that regard, the ILC’s Commentary merely refers in general terms to the principal relevant provisions of instruments under international humanitarian law and notes that, in accordance with their terms, ‘reprisals are prohibited against defined classes of protected persons, and these prohibitions are very widely accepted’.114

However, a peculiarity may be noted as to the formulation of the provision. The effect of the wording chosen by the ILC is to create a prohibition of the suspension of certain prohibitions of particular conduct.115 One may wonder why the provision expressing the (secondary) obligations under the law of State responsibility was not phrased in terms of a prohibition of suspension of certain substantive (primary) obligations under international humanitarian law, in that way paralleling the existing prohibitions of particular forms of belligerent reprisal.116 However, the somewhat abstract and metaphysical layering of prohibition upon prohibition would appear to present at least two clear advantages. First, the general approach of the Articles is to attempt to codify the secondary rules of State responsibility, without attempting to specify the underlying primary obligations;117 the formulation adopted involves the definition of an abstract (and expandable) class without having to descend into the detail of which particular conduct may or may not exceptionally be adopted by way of reprisal. The second advantage of the formulation is a more practical one: by stipulating the (p. 1195) prohibition at a further level of remove from the primary rules prohibiting the adoption of certain conduct by way of reprisals, the ILC’s Articles ensure that it is not possible to argue that such conduct may be justified on the basis that compliance with the primary rule prohibiting reprisals has itself been suspended by way of countermeasure.118 The prohibition of the adoption of particular conduct by way of belligerent reprisal is thus substantially reinforced.

Conclusion

The obligations covered by article 50(1)(b) and (c) of the ILC’s Articles have certain characteristics in common. Those characteristics concern, on the one hand, the very structure of the obligations in question, and, on the other, at least as regards some such obligations, their jus cogens status. As a consequence, it is arguable that, quite apart from the express prohibition of their suspension in response to an internationally wrongful act, in any case those obligations can never be the subject of countermeasures.

As to the first, structural, characteristic, there can be little doubt as to the essentially non-reciprocal and erga omnes nature of the obligations in question.119 As to human rights obligations, it is well-established that, at one and the same time, they are both owed to, and create rights for, individuals, whilst retaining an important inter-State element, being owed erga omnes partes (in the case of treaties), or to the international community as a whole (in the case of customary obligations). As for obligations under international humanitarian law, despite the fact that considerations of reciprocity historically played an important role, the development of international law relating to armed conflict has resulted in the progressive elimination of such considerations. Complementing the affirmation of the ICTY in Kupreškić of the ‘absolute’ and non-reciprocal character of international humanitarian law, reference may also be made to the views expressed by the International Court of Justice in its Advisory Opinion on the Wall. Recalling its previous observations in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the Court observed that:

… ‘a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and “elementary considerations of humanity” …’, that they are ‘to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law’. … [T]hese rules incorporate obligations which are essentially of an erga omnes character.120

Although the Court refrained from specifically enumerating the obligations to which it was referring, it is arguable that the various prohibitions of belligerent reprisals fall within that category. Even if that were not the case, the primary obligations which form the subjects of the prohibitions of belligerent reprisals undoubtedly are within that category and are owed erga omnes. Accordingly, as is the case with human rights obligations, those obligations in any case can never be the object of countermeasures.

(p. 1196) As to the second characteristic, relating to the hierarchically superior character of the underlying norms, it is arguable that a large number of the obligations covered by article 50(1)(b) and (c) of the ILC’s Articles arise under norms which are considered to be peremptory (jus cogens). As a result, countermeasures affecting such obligations are in any case never permissible in accordance with article 50(1)(d) of the ILC’s Articles. As far as human rights obligations are concerned, as discussed above, at least the most important of those obligations have attained the status of jus cogens. Similarly, in line with the observations of the Court in the Nuclear Weapons and the Wall Advisory Opinions, a large number of the obligations under international humanitarian law which cannot be disregarded by way of reprisal constitute ‘intransgressible principles of international customary law’.

Accordingly, although the approach of the ILC was to identify particular categories of obligation which may not be affected by countermeasures according to their subject matter, it is arguable that the underlying reason why those obligations may not be affected by counter measures is found in their specific characteristics. Nevertheless, as a general matter, the provisions of article 50(1)(b) and (c) of the ILC’s Articles play an important role in emphasizing the impermissibility of countermeasures which affect such obligations. The obligations in question, relating to fundamental human rights and basic principles for the protection of the individual in armed conflict, are among those which are most fundamental for the international community and it is therefore vital that their respect should not be put in jeopardy on the pretext of a breach by another State of its international obligations.

Further reading

  • D Alland, Justice privée et ordre juridique international. Étude théorique des contre-mesures en droit international public (Paris, Pedone, 1994)
  • L Condorelli, ‘Responsabilité étatique et responsabilité individuelle pour violations graves du droit international humanitaire: quelques remarques a propos du rejet du principe tu quoque dans le jugement Kupreškić du Tribunal Penal International pour l’ex-Yougoslavie’, in LC Vohrah et al (eds) Man’s Inhumanity to Man; Essays on International Law in Honour of Antonio Cassese (The Hague/London/New York, Kluwer Law International, 2003), 211
  • S Darcy, ‘The Evolution of the Law of Belligerent Reprisals’ (2003) 175 Military Law Review 184
  • JA Frowein, ‘Reactions by Not Directly Affected States to Breaches of Public International Law’ (1994-IV) 248 Receuil des Cours 345
  • FJ Hampson, ‘Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of 1949’ (1988) 37 ICLQ 818
  • J-M Henckaerts & L Doswald-Beck, Customary International Humanitarian Law; Volume I: Rules (Cambridge, ICRC/CUP, 2005)
  • L Henkin, ‘Inter-State Responsibility for Compliance with Human Rights Obligations’, in LC Vohrah et al (eds) Man’s Inhumanity to Man; Essays on International Law in Honour of Antonio Cassese (The Hague/London/New York, Kluwer Law International, 2003), 383
  • F Kalshoven, Belligerent Reprisals (Leiden, Sijthoff, 1971;
  • reprinted Leiden/Boston, Martinus Nijhoff, 2005)
  • KJ Partsch, ‘Reprisals’, in R Bernhardt (ed) Encyclopedia of Public International Law (Amsterdam, North Holland, 2000), vol 4, 200
  • R Provost, International Human Rights and Humanitarian Law (Cambridge, CUP, 2002)
  • R Provost, ‘Reciprocity in Human Rights and Humanitarian Law’ (1994) 65 BYIL 383
  • L-A Sicilianos, Les réactions décentralisées à l’illicite: des contre-mesures à la légitime défense (Paris, LGDJ, 1990)
  • PL Sutter, ‘The Continuing Role for Belligerent Reprisals’ (2008) 13 Journal of Conflict and Security Law 93

Footnotes:

Responsibility of Germany for damage caused in the Portuguese colonies in the south of Africa (Portugal v Germany) (‘Naulilaa’), 31 July 1928, 2 RIAA 1011, 1026 (‘limitée par les expériences de l’humanité’).

Institut de droit international, ‘Régime des représailles en temps de paix’ (Paris, 19 October 1934), 38 Annuaire de l’Institut de droit international 710, art 6(4) (‘s’abstenir de toute mesure de rigueur qui serait contraire aux lois de l’humanité et aux exigences de la conscience publique’). The language of the resolution clearly recalls that of the Martens clause (see eg, Preamble, para 9, Hague Convention (II) on the Laws and Customs of War on Land, 29 July 1899, 187 CTS 429).

See also art 52(1) of the Draft Articles on Responsibility of International Organizations, as adopted on first reading in 2009, Report of the ILC, 61st Session, 2009, A/64/10, 19ff.

Art 60(1)–(3), Vienna Convention on the Law of Treaties, 23 May 1969 1155 UNTS 331.

Of course, while art 60(5) of the Vienna Convention applies only to obligations deriving from treaties, the prohibition of the adoption of countermeasures affecting certain categories of obligation contained in art 50 ARSIWA is more general in scope, being applicable to both obligations arising under treaties as well as obligations deriving from customary international law: see arts 1, 2, and 12, ARSIWA. As to the parallel applicability of the rules of the law of treaties and the rules of State responsibility, see eg Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 251–252 (para 75); Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 38–39 (paras 46–48).

Cf ILC Yearbook 1966, Vol II, 184 (draft art 57); see ibid, 253–255 for the accompanying commentary.

G Fitzmaurice, Second Report on the Law of Treaties, ILC Yearbook 1957, p 16, 31 (draft art 19(1)(iv)).

See the Commentary to Fitzmaurice’s draft art 19, ibid, 54–55 (paras 125–128).

See G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 34 (para 93, fn 240).

10  See Official Records of the United Nations Conference on the Law of Treaties, 1968–1969: Second Session (UN Doc A/CONF.39/11/Add.l), 112 (paras 20–21); for the text of the proposed amendment (UN Doc A/CONF.39/L.31), see ibid, Documents (UN Doc A/CONF.39/11/Add.2), 269. For the earlier oral proposal of the amendment, see ibid, First Session (UN Doc A/CONF.39/11), 354–355 (para 12). For discussion, see also IM Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester, Manchester University Press, 1984), 190; T Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford, Clarendon, 1989), 241; MM Gomaa, Suspension or Termination of Treaties on Grounds of Breach (The Hague, Martinus Nijhoff, 1996), 107; ME Villiger, Customary International Law and Treaties: A Manual on the Theory and Practice of the Interrelation of Sources (2nd edn, The Hague/London/Boston, Kluwer Law International, 1997), 269; R Provost, International Human Rights and Humanitarian Law (Cambridge, CUP, 2002), 178.

11  Official Records of the United Nations Conference on the Law of Treaties, 1968–1969: Second Session (UN Doc A/CONF.39/11/Add.l), 112 (para 21).

12  See, eg, O Schachter, International Law in Theory and Practice (Dordrecht/Boston/London, Martinus Nijhoff, 1991), 181; L-A Sicilianos, Les reactions décentralisées à l’illicite (Paris, LGDJ, 1990), 352–358; the discussion in MM Gomaa, Suspension or Termination of Treaties on Grounds of Breach (The Hague, Martinus Nijhoff, 1996), 109–111; R Provost, International Human Rights and Humanitarian Law (Cambridge, CUP, 2002), 169–171. The International Court of Justice has expressed the view that the rules of the Vienna Convention ‘concerning termination of a treaty relationship on account of breach … may in many respects be considered as a codification of pre-existing customary international law on the subject’ (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16, 47 (para 94)), and likewise observed that ‘a right of termination on account of breach must be presumed to exist in respect of all treaties, except as regards provisions relating to the protection of the human person contained in treaties of a humanitarian character (as indicated in art [60(5)])’ (ibid, 47 (para 96)). See also Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 38 & 62 (paras 46, 99).

13  See W Riphagen, Fifth Report on State Responsibility, ILC Yearbook 1984, Vol II(1), 3–4, art 11; and see the accompanying Commentary, W Riphagen, Sixth Report on State Responsibility, ILC Yearbook 1985, Vo l II(1), 12–13.

14  Ibid, 13 (draft art 12(b)).

15  G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 35 (draft art 14 (1)(b)(i)).

16  Ibid, 31 (para 80).

17  Ibid, 30–33 (paras 78–83).

18  Ibid, 32 (para 83).

19  Ibid, 33–35 (paras 89–95).

20  Ibid (para 92); see also ibid, 31–32 (fn 213).

21  Ibid (para 93).

22  Ibid, 33 (para 95); 35 (draft art 14(1)(b)(iv)).

23  ILC Yearbook 1993, Vol I, 140 (para 3) (2813rd session) (draft art 14(d)).

24  Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 32 (para 33).

25  ILC Yearbook 1993, Vol I, 144–145 (para 32) (2813rd session).

26  Ibid, 140, 141, 145 (paras 3, 8 and 33).

27  Commentary to draft art 14, paras 23 and 24, ILC Yearbook 1995, Vol II(2), 73–74.

28  See the Commentary to draft art 14, paras 17 and 20, ibid, 71–73.

29  J Crawford, Third Report of State Responsibility, 2000, A/CN.4/507/Add.3, para 334.

30  Ibid, para 340.

31  Ibid, para 341.

32  Ibid, para 367 (draft Arts 47bis and 50).

33  Ibid (draft art 50).

34  See Commentary to art 50, paras 2 and 11.

35  Art 50(1)(a), ARSIWA.

36  Art 50(1)(d), ARSIWA.

37  Art 50(1)(b), ARSIWA.

38  Art 50(1)(c), ARSIWA.

39  Commentary to art 50, paras 6 and 7.

40  Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1951, p 15, 23.

41  General Comment No. 24, ‘Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant’, UN Doc CCPR/C/21/Rev.1/Add.6 (1994), para 17.

42  General Comment No 31, ‘Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, UN Doc CCPR/C/21/Rev.1/Add.13 (2004), para 2.

43  Austria v Italy (‘Pfunders’) (App No 788/60), (1961) 4 Yearbook ECHR 116, 140.

44  Ireland v United Kingdom (App No 5310/71), ECHR, Series A, No 25 (1978), para 239. See also the observations of the European Commission in France, Norway, Denmark, Sweden, Netherlands v Turkey (App Nos 9940-9944/82), (1983) 35 DR 143, 169 and Chrysostomos, Papachrysostomou and Loizidou v Turkey (App Nos 15299/89; 15300/89 and 15318/89), (1961) 68 DR 216, paras 20–21. Cf the Dissenting Opinion of Judge Pettiti in Loizidou v Turkey, Preliminary Objections (App No 15318/89), Series A, No 310 (1995) [GC]: ‘The European Convention is not an international treaty of the traditional type nor a synallagmatic convention … since it is not based on reciprocity. It is based on the principle that all individual subjects of law are its beneficiaries, so that fundamental rights can be protected more securely.’ For recent reaffirmations of this jurisprudence, see Apostolidi and others v Turkey (App No 45628/99), ECHR, Judgment, 27 March 2007, para 71; Nacaryan and Deryan v Turkey (App Nos 19558/02 and 27904/02), ECHR, Judgment, 8 January 2008, para 49.

45  Loizidou v. Turkey, Preliminary Objections (App No 15318/89), Series A, No 310 (1995) [GC], para 93; Cyprus v Turkey (App No 25781/94), ECHR Reports 2001-IV [GC], para 78.

46  See Banković v Belgium et al (App No 52207/99), ECHR Reports 2001-XII [GC], para 80.

47  Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Articles 74 and 75), Advisory Opinion OC-2/82, I/ACHR, Series A, No 2 (1982).

48  Ibid, para 27.

49  Ibid, para 29.

50  Ibid, para 33 (emphasis added).

51  B Simma, From Bilateralism to Community Interest in International Law (1994-VI) 250 Recueil des Cours, 217, 370 (para 117).

52  Cf art 49(1) and (2) ARSIWA, and Commentary to art 49, para 4.

53  Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 32 (para 33).

54  Ibid, 32 (para 34).

55  See East Timor (Portugal v Australia), Preliminary Objections, ICJ Reports 1995, p 90, 102 (para 29) (self determination); Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, ICJ Reports 1996, p 595, 616 (para 31) (prohibition of genocide); Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory, Advisory Opinion, ICJ Reports 2004, p 136, 199–200 (paras 155, 157) (self-determination and ‘intransgressible principles’ of customary international humanitarian law); Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction and Admissibility, ICJ Reports 2006, p 6, 31–32 (para 64), (prohibition of genocide); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v and Montenegro), Judgment of 26 February 2007, paras 147, 161 and 185 (prohibition of genocide).

56  Cf art 48(1)(a) and (b), ARSIWA. See also the reasoning of the Court in the Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory, ICJ Reports 2004, p 136, 199 (para 155).

57  See eg the Resolution of the Institut de droit international, ‘Obligations erga omnes in international law’ (Krakow, 27 August 2005), Annuaire de l’Institut de droit international 2005, 161, which assimilates the two concepts under the heading ‘Obligations erga omnes’.

58  Although cf the decisions of the Court of First Instance in Case T-306/01 Yusuf and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, Judgment of 21 September 2005, para 293 and Case T-315/01 Kadi v Council of the European Union and Commission of the European Communities, Judgment of 21 September 2005, para 242, which suggested that an arbitrary deprivation of the right to property was not only contrary to customary international law, but might be regarded as a breach of jus cogens. Both decisions were appealed to the European Court of Justice, which disposed of the cases on other grounds without expressing a view on this point: see Joined Cases C-402/05 P and C-415-05 P Kadi and Al Barakaat International Foundation v Council and Commission, Judgment of 3 September 2008.

59  See L-A Sicilianos, Les reactions décentralisées à l’illicite (Paris, LGDJ, 1990), 358.

60  Cf arts 22 and 49, ARSIWA.

61  See eg the suspension by France of such an agreement with the Central African Empire in 1979 following human rights abuses by Emperor Bokassa’s personal guard; see ‘Chronique des faits internationaux’, 84 (1980) RGDIP 361, 364.

62  General Comment No 8, ‘The relationship between economic sanctions and respect for economic, social and cultural rights’, UN Doc E/C.12/1997/8 (1997), para 1; see also para 12.

63  Ibid, para 11.

64  See eg F Coomans, ‘Some Remarks on the Extra-territorial Application of the International Covenant on Economic, Social and Cultural Rights’, in F Coomans & MT Kamminga (eds), Extra-territorial Application of Human Rights Treaties (The Hague, Intersentia, 2004), 183; R Kunnemann, ‘Extra-territorial Application of the International Covenant on Economic, Social and Cultural Rights’, in ibid, 201.

65  See eg the discussion by the International Court in the Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory, Advisory Opinion, ICJ Reports 2004, p 136, 178–181 (paras 108–113), in relation to the applicability of Israel’s obligations under the two International Covenants and the Convention on the Rights of the Child to the Occupied Palestinian Territories.

66  See P de Sena, La nozione di giurisdizione statale nei trattati sui diritti dell’uomo (Giappichelli, Turin, 2002); the various contributions in F Coomans and MT Kamminga (eds), Extra-territorial Application of Human Rights Treaties (The Hague, Intersentia, 2004), and R Wilde, ‘Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties’ (2007) 40 Israeli Law Review 503.

67  See Commentary to art 50, para 7.

68  See F Kalshoven, ‘Belligerent Reprisals Revisited’ (1990) 21 NYIL 43, 44; cf C Greenwood, ‘The Twilight of the Law of Belligerent Reprisals’ (1989) 20 NYIL 35, 38: ‘action which would normally be contrary to the laws governing the conduct of armed conflict (the ius in bello) but which is justified because it is taken by one party to an armed conflict against another party in response to the latter’s violation of the ius in bello’; and the discussion in Y Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge, CUP, 2004), 220–222.

69  Convention Relative to the Treatment of Prisoners of War (‘1929 Geneva Convention’), Geneva, 27 July 1929, 118 LNTS 343.

70  Geneva Convention Relative to the Treatment of Prisoners of War (‘Third Geneva Convention’), 12 August 1949, 75 UNTS 135; see also art 33 (prohibiting reprisals against medical personnel and chaplains retained to assist prisoners of war).

71  See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (‘First Geneva Convention’), 12 August 1949, 75 UNTS 31, art 46. See also art 20, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (‘Additional Protocol I’), Geneva, 8 June 1977, 1125 UNTS 3.

72  Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (‘Second Geneva Convention’), 12 August 1949, 75 UNTS 85, art 47. See also art 20, Additional Protocol I.

73  Regulations concerning the Laws and Customs of War on Land, annexed to Hague Convention (IV) respecting the Laws and Customs of War on Land, 18 October 1907 (‘1907 Hague Regulations’). Art 50 of the 1907 Hague Regulations, prohibiting collective punishment against the civilian population, was not intended to govern belligerent reprisal: see eg R Provost, International Human Rights and Humanitarian Law (Cambridge, CUP, 2002), 193, fn 39 and FJ Hampson, ‘Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of 1949’ (1988) 37 ICLQ 818, 824–825 and the sources cited.

74  Under art 4 of the Fourth Geneva Convention, ‘protected persons’ are those individuals who do not qualify as protected persons under any of the First to Third Geneva Conventions and who find themselves in the hands of a Party to the conflict or an Occupying Power of which they are not nationals.

75  A further express prohibition of the use of certain weapons by way of reprisal against the civilian population or individual civilians is contained in art 3(2) of Protocol II to the 1980 Convention on Certain Conventional Weapons (Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and other Devices to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (Geneva, 10 October 1980) (as amended in 1996), 1342 UNTS 137).

76  Commentary on art 51(6) of Additional Protocol I in Y Sandoz, C Swinarski, & B Zimmerman (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC, 1987), 626 (para 1984).

77  Art 4(4), Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, 249 UNTS 215.

78  Art 52(1), Additional Protocol I.

79  Art 53, Additional Protocol I.

80  Art 54(4), Additional Protocol I.

81  Art 55(2), Additional Protocol I.

82  Art 56(4), Additional Protocol I.

83  See eg FJ Hampson, ‘Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of 1949’ (1988) 37 ICLQ 818, 828–829, noting that, at least with regard to State Parties to Additional Protocol I, ‘reprisals may now … be taken only against belligerent armed forces and certain very specific groups. This would almost certainly have to involve either the unlawful use of a lawful weapon or the use of an unlawful weapon, in breach of 1907 Hague Convention IV or the provisions of the Protocol which update and incorporate the Hague Law’. See also Y Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge, CUP, 2004), 224.

84  Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (‘Additional Protocol II’), Geneva, 8 June 1977, 1125 UNTS 609.

85  See Y Sandoz, C Swinarski, & B Zimmerman (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC, 1987), 1372 (para 4529, fn 18); Cf J-M Henckaerts & L Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules (Cambridge, ICRC/CUP, 2005), 526. Rule 148: ‘Parties to non-international armed conflicts do not have the right to resort to belligerent reprisals. Other countermeasures against persons who do not or who have ceased to take a direct part in hostilities are prohibited’. For discussion of the relevant practice, see ibid, 526–529.

86  Y Sandoz, C Swinarski, B Zimmerman (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC, 1987), 1372 (para 4529, fn 18).

87  Ibid.

88  JS Pictet (ed), Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, ICRC, 1958), 39–40.

89  Additional Protocol II, art 14.

90  Additional Protocol II, art 15.

91  Additional Protocol II, art 16.

92  Additional Protocol II, art 13(1).

93  Y Sandoz, C Swinarski, & B Zimmerman (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC, 1987), 1372 (para 4530).

94  See J-M Henckaerts & L Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules (Cambridge, ICRC/CUP, 2005), Rule 146 and commentary, 519–520.

95  See ibid, Rule 147 and the practice discussed at 523–525.

96  As to the conditions for resort to belligerent reprisals under customary law, see ibid, 515–518; see also PL Sutter, ‘The Continuing Role for Belligerent Reprisals’ (2008) 13 Journal of Conflict and Security Law 93

97  See Letter of Transmittal from President Ronald Reagan, Protocol II Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Non-international Armed Conflicts (29 January 1987), S Treaty Doc No 2, 100th Cong, 1st Sess, III (1987) reprinted in (1987) 81 AJIL 910, referring to the fact that ‘ … the Joint Chiefs of Staff have … concluded that a number of the provisions of [Additional Protocol I] are militarily unacceptable’ (ibid, 911). The Legal Advisor of the Department of State at the time stated that the United States decision not to ratify Additional Protocol I was due, inter alia, to the fact that ‘it eliminates significant remedies in cases where an enemy violates the Protocol. The total elimination of the right of reprisal … would hamper the ability of the United States to respond to an enemy’s intentional disregard of the limitations established in the Geneva Conventions of 1949 or Protocol I …’: AD Sofaer, ‘The Rationale for the United States Decision’ (1988) 82 AJIL 784, 785. See also MJ Matheson, ‘The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions’ (1987) 2 American University Journal of International Law and Policy 419; GH Aldrich, ‘Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions’ (1991) 85 AJIL 1.

98  For discussion, see J Gaudreau, ‘Les réserves aux Protocoles additionnels aux Conventions de Genève pour la protection des victimes de la guerre’ (2003) 85 International Review of the Red Cross (No 849), 143, 167–170.

99  See Corrected Letter of 28 January 1998 sent to the Swiss Government by Christopher Hulse, HM Ambassador of the United Kingdom, para (m). The text of the reservation can be accessed on the website of the ICRC, at <http://www.icrc.org/ihl.nsf/>.

100  See Declaration of 11 April 2001, accompanying the instrument of adhesion, para 11, available at <http://www.icrc.org/ihl.nsf/>; see also J Gaudreau, ‘Les réserves aux Protocoles additionnels aux Conventions de Genève pour la protection des victimes de la guerre’ (2003) 85 International Review of the Red Cross (No 849) 143, 168 (‘dans la mesure ou l’interprétation de celles-ci ne fait pas obstacle a l’emploi, conformément au droit international, des moyens qu’il estimerait indispensables pour protéger sa population civile de violations graves, manifestes et délibérées des Conventions de Genève et du Protocole par l’ennemi’).

101  See ibid, 168–169. For the text of the reservations, see <http://www.icrc.org/ihl.nsf/>.

102  GA Res 2675 (XXV) (9 December 1970), para 7.

103  Case No IT-95-11-R61, Prosecutor v Martić; Decision on Review of Indictment Pursuant to Rule 61, 8 March 1996.

104  Ibid, para 10.

105  Ibid, para 15.

106  Case No IT-95-16-T, Prosecutor v Kupreškić, judgment of 14 January 2000.

107  Ibid, paras 514–520.

108  Ibid, paras 521–536.

109  Ibid, para 528.

110  Ibid, para 530.

111  Ibid, para 531; earlier in the judgment, having noted that a number of States had not ratified Additional Protocol I and having acknowledged that there did not appear to be a consistent body of State practice pointing to the existence of customary rules prohibiting reprisals against civilians and civilian objects mirroring those in arts 51(6) and 52(1) of Additional Protocol I, the Trial Chamber observed ‘[t]his is however an area where opinio iuris sive necessitatis may play a much greater role than usus, as a result of the aforementioned Martens Clause’ (ibid, para 527).

112  The two decisions of the Tribunal have been subjected to strong criticism in relation to their holdings as to the customary nature of the prohibition of belligerent reprisals against civilians under the law applicable to international armed conflicts, in particular in light of the State practice of reservations to Additional Protocol I: see C Greenwood, ‘Belligerent Reprisals in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’, in H Fischer, C Kress, & SR Lüder (eds), International and National Prosecution of Crimes Under International Law: Current Developments (Berlin, Bochum, 2001), 539; see also F Kalshoven, ‘Reprisals and the protection of civilians: two recent decisions of the Yugoslavia tribunal’, in LC Vohrah et al (eds), Man’s Inhumanity to Man; Essays on International Law in Honour of Antonio Cassese (The Hague/London/New York, Kluwer Law International, 2003), 481.

113  J-M Henckaerts & L Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules (Cambridge, ICRC/CUP, 2005), 523; and see the practice discussed ibid, 523–525.

114  Commentary to art 50, para 8.

115  Given that formulation, some doubts may be raised as to whether it is sufficiently wide to cover those provisions (including, in particular, common art 3 of the Geneva Conventions) which, although prohibiting particular conduct, do not expressly prohibit the adoption of reprisals involving that conduct.

116  Cf the very brief explanation by the Chairman of the Drafting Committee following the reformulation in 2000 of the draft provision which eventually became art 50: ILC Yearbook 2000, Vol I, 397 (para 72) (26 62nd meeting) (draft art 51).

117  See ARSIWA, Introductory Commentary, paras 1–4.

118  This is precisely the scenario which some of the reservations to Additional Protocol I, discussed above in section 4(b), appear to envisage.

119  See eg R Provost, ‘Reciprocity in Human Rights and Humanitarian Law’ 65 (1994) BYIL 383.

120  Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory, Advisory Opinion, ICJ Reports 2004, p 136, 200 (para 157), citing Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996(I), p 226, 257 (para 79).