Theodor Meron - The Humanization of International Law

The Humanization of International Law
THE HAGUE ACADEMY OF INTERNATIONAL LAW MONOGRAPHS
Volume 3
The titles in this series are listed at the end of this volume.
THE HAGUE ACADEMY OF INTERNATIONAL LAW
The Humanization of
International Law
by
Theodor Meron
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For Monique
Table of Contents
Acknowledgements xiii
Introduction xv
Chapter 1: The Humanization of the Law of War 1

A. Introduction and General Principles 1
B. From an Inter-State to an Individual Rights Perspective:
Reciprocity and Reprisals 9
C. The Martens Clause, Principles of Humanity, and Dictates of
Public Conscience 16
I. The Origins of the Clause 17
II. The Modernization of the Clause 19
III. The Clause and General Principles 21
IV. The Clause and Public Conscience 22
V. The Clause and the Nuclear Weapons Opinion 25
VI. The Current Signicance of the Clause 27
D. Applicability of International Humanitarian Law 29
I. The Thresholds of Applicability of Humanitarian Law 29
II. Personal Applicability of Humanitarian Law Treaties: Redening
Protected Persons 33
E. Protection of Victims 38
I. Individual Rights and Duties and the Inalienability of Rights 38
II. Repatriation of Prisoners of War and Personal Autonomy 41
III. Convergence of Protection under Human Rights and
International Humanitarian Law 45
IV. Application of Humanitarian Law by Human Rights Organs 50
V. Application of Human Rights Treaties in Humanitarian Law
Contexts 55
VI. Minimum Humanitarian Standards: Fundamental
Standards of Humanity 58
F. Means and Methods of Warfare and Protection of Combatants 61
I. The Principle of Proportionality 61
viii Table of Contents
II. Weapons of a Nature to Cause Unnecessary Suering or to be

Inherently Indiscriminate 69
a) Weapons of a Nature to Cause Unnecessary Suering 69
b) Weapons that are Inherently Indiscriminate 73
c) The Regulation of Weapons Causing Unnecessary Suering
and of Indiscriminate Weapons 77
d) Anti-Personnel Land Mines 80
e) Laser Weapons 84
H. Limitations to Laws Eectiveness 85
Chapter 2: Criminalization of Violations of International

Humanitarian Law 91
A. Introduction 91
B. Crimes against Humanity 95
C. The Yugoslavia and Rwanda Statutes Provisions on Internal Atrocities
and the Tension between the Nullum Crimen Principle and Customary
Law 100
D. Criminality of Violations of Humanitarian Law 110
E. Universality of Jurisdiction 118
F. Non-Grave Breaches and Universal Jurisdiction 123
G. War Crimes and Universal Jurisdiction 129
H. War Crimes and Internal Conicts 132
I. The Challenges Facing the International Criminal Tribunal for the
former Yugoslavia 139
J. The International Criminal Court 148
K. Due Process of Law 157
L. Judicial Independence and Impartiality in International Criminal
Tribunals 163
I. The Setting 163
a) The Role of Judicial Independence 164
b) Ensuring Judicial Independence 165
II. International Courts 166
a) Selection of Judges 166
b) The Role of the ICTY President 169
c) When Judges Should Recuse Themselves 172
d) The Courts and the Public 176
M. The Contribution Made by International Criminal Tribunals to the
Eectiveness of International Law 177
N. War Crimes Law Comes of Age 181
Chapter 3: The Law of Treaties 187

A. Normative and Multilateral Treaties 187
B. Interpretation of Treaties 193
C. Jus Cogens and Invalidity of Treaties 201
D. Termination of Treaties 208
Table of Contents ix
I. Withdrawal and Denunciation 208

II. Material Breach 209
E. Succession to Treaties 211
F. Reservations to Multilateral Treaties 218
I. From the Unanimity Rule to the Object and Purpose Test 218
II. Appropriateness of the Vienna Regime on Reservations for
Human Rights Treaties 224
III. Admissibility of Reservations to Normative Treaties 227
a) Reservations to Customary Law 228
b) Reservations to Peremptory Norms and to
Non-Derogable Provisions 232
c) Severability 234
IV. Reservations to Remedies and Procedural Provisions, and
Competence of Human Rights Bodies to Assess Admissibility of
Reservations 241
Chapter 4: Humanization of State Responsibility: From Bilateralism

to Community Concerns 247
A. Origin of State Responsibility 247
B. Circumstances Precluding Wrongfulness: Distress, Necessity, Consent 251
C. Dierentiation of Norms 256
I. Erga omnes Obligations 256
II. International Crimes 265
D. Rights and Remedies 270
I. Departure from State-Centric Enforcement 270
II. Injured States 272
III. Legal Standing 275
IV. Choice of Remedies 281
E. Countermeasures 287
I. The Right to Take Countermeasures 288
II. Limitations on Countermeasures 293
III. Countermeasures and Settlement of Disputes 300
F. Diplomatic Protection 301
Chapter 5: Subjects of International Law 307

A. The State 307
I. Recognition of States 307
II. Admission to International Organizations 310
III. Recognition of Governments 313
B. Non-State Actors 314
I. The Individual as Subject of International Law 314
II. Individual Access to International Organs and Institutions 319
a) Trade Organizations Dispute Settlement Mechanisms 319
i) The World Trade Organization (WTO) 319
ii) North American Free Trade Agreement (NAFTA) 321
x Table of Contents
b)Investment Treaties and ICSID 324

c)World Bank Inspection Panel 327
d)International Tribunals 329
i) International Tribunal for the Law of the Sea 329
ii) The European Court of Justice and Court of First
Instance 332
e) International Claims Tribunals 335
i) Iran-United States Claims Tribunal 335
ii) The United Nations Compensation Commission 337
f ) Human Rights Monitoring Bodies 339
III. Non-Governmental Organizations 344
a) Role of NGOs in Law-making and Standard-setting
Activities 344
b) NGO access to International Institutions 348
IV. Indigenous Peoples 349
C. Conclusions 352
Chapter 6: Sources of International Law 357

A. State Practice and Opinio Juris 360
I. State Practice 360
II. Opinio Juris 366
III. Inconsistent Practice 371
IV. Persistent Objector 374
B. Relationship Between Custom and Treaty 376
C. General Principles of Law 383
D. International Organizations and Sources of International Law 387
I. Resolutions and Declarations as Instances of State Practice 388
II. Role of NGOs 390
E. Peremptory Rules 392
I. The Acceptance of Jus Cogens 392
II. Sources of Peremptory Rules 394
III. Extension of the Concept of Jus Cogens beyond Law of Treaties 396
F. Revival of Customary Humanitarian Law 398
I. Modern Customary Law as Applied by Non-Criminal Tribunals 400
II. The ICTYs Conservative Approach to Customary Law 404
III. Approaches of Other International Criminal Tribunals 416
Concluding Observations 421
Chapter 7: International Courts 425

A. The International Court of Justice 425
B. The European Court of Human Rights 440
I. Character of the Convention for the Protection of Human Rights
and Fundamental Freedoms 442
II. Reservations 443
III. Interpretation of Treaties 444
Table of Contents xi
IV. State Sovereignty, Consent to the Convention and Admission to

the Council of Europe 446
V. Protection of the Environment 446
a) A Right to a Healthy Environment 447
b) Environmental Quality and the Protection of Existing
Human Rights. 451
i) Respect of Private Life, Home and Property 451
ii) The Right to Life 454
iii) Right to Information and Participation in Decision-
Making 456
iv) Access to Remedies 458
v) Indigenous Rights 459
VI. State Responsibility: Erga Omnes Obligations 461
VII. State Responsibility: Diplomatic Protection 462
VIII.Responsibility and Territoriality 462
IX. State Responsibility for Non-Governmental Acts and Imputability
( Drittwirkung) 466
X. International Humanitarian Law: Application of the Principle of
Proportionality and Limits to Collateral Damage 470
Chapter 8: UN Institutions and the Protection of Human Rights 473

A. Human Rights, Development and Financial Institutions 475
I. Approaches to Development Issues 476
a) Right to Development 476
b) Sustainable Development 477
II. Human Rights and International Financial Institutions 478
B. Human Rights and the United Nations Practice under the Charter 483
I. Human Rights and Peacekeeping Operations 483
II. Promotion of Democracy, Election Monitoring and
Nation Building 486
a) Normative Standards 486
b) Practice 492
III. Humanitarian and Human Rights Factors in Sanctions 497
a) Humanitarian Exemptions 502
b) Application of Humanitarian Law to Sanctions Programs 507
IV. Multilateral Intervention 509
a) Humanitarian Assistance 509
b) Interventions under Security Council Resolutions 510
c) Other Multilateral Interventions 517
d) Rhetoric and Reality 526
Index 527
Acknowledgements
I am grateful to the Curatorium of the Hague Academy of International Law for

inviting me to deliver the General Course of Public International Law in 2003 (In-
ternational Law in the Age of Human Rights). An invitation to deliver a General
Course is one of the highest distinctions for international law scholars and I am
deeply conscious of both the honour and the responsibility. This book is based on
a revised and expanded version of the Course.
I would like to express my gratitude to the Open Society Institute and its Presi-
dent, Mr. Aryeh Neier, for the generous grant which provided the funding for
my researcher and previous student Richard Desgagn, without whose able help
this study could not have been completed. I am also grateful to the Filomen
DAgostino and Max E. Greenberg Research Fund of New York University Law
School for its generous support of this study. I thank Professors Georges Abi-Saab
and Theo Van Boven and Judge Thomas Buergenthal for their suggestions- and to
Judge Buergenthal also for suggesting the title for this version of the work and
my judicial clerks Jonathan Cedarbaum and Cara Robertson, Ben Mizer, Julian
Mortenson, Sonja Starr and Micah Myers for their help and insightful comments.
I am grateful for the help of my research assistants, Garrett N. Bush, Keith Garner,
Maryanne Q. Hancock, Marie C. Posa, Margaret Satterthwaite and Nanina Takla.
I am also grateful to Stephanie Carroll for her help in editing. I also thank my
secretaries Sharon Town, Terry Lee and Noor Shahab for their help in the endless
correction of the typescript. Finally, I would like to thank my wife Monique for
her innite patience in giving me moral support during the writing and the deliv-
ery of this Course and for her invaluable suggestions and help in editing.
Introduction
My object in this book is not to retrace the fairly familiar terrain of establishing
the legal character of human rights, or to argue the proposition, now well accept-
ed, that human rights are part and parcel of the discipline of international law,1
but to consider the inuence of human rights and humanitarian law on general
international law. Although human rights and humanitarian norms are central to
this book, this is not a book about human rights and humanitarian law. Rather,
this is a book about the radiation, or the reforming eect, that human rights and
humanitarian law has had, and is having, on other elds of public international
law. Because of the peculiarities of human rights law, this inuence cannot be
taken for granted. It is sometimes said that the elaboration of human rights norms
and institutions has produced no less than a revolution in the system of interna-
tional law. Is this true, and if so, in what parts of international law? By examining
most of the general areas of public international law, I attempt to demonstrate
that the inuence of human rights and humanitarian norms has not remained
conned to one sector of international law, and that its inuence has spread to
many other parts, though to varying degrees. The humanization of public inter-
national law under the impact of human rights has shifted its focus above all from
State-centered to individual-centered.
A human rights scholar must resist the urge to present a triumphalist view of the
impact human rights have had on all the rest of international law. We must not
exaggerate their inuence where there has been little or none. In such important
areas as territory of State, or settlement of disputes, for example, human rights
have had little impact. But we must recognize and assess that inuence where it
can be found.
1 See, e.g., Theodor Meron, Human Rights and Humanitarian Norms as Customary
Law (1989); Human Rights Law-Making in the United Nations (1986).
Chapter 1: The Humanization of the
Law of War
A. Introduction and General Principles

In this chapter, I focus on the humanization of the law of war, a process to a large
extent driven by human rights and principles of humanity. The subject is vast.
It is inevitable that major issues must be left out of my discussion. I will show
how under the inuence of human rights the law of war has been changing
and acquiring a more humane face: the inroads made on the dominant role of
reciprocity; the fostering of accountability; the formation, formulation and in-
terpretation of rules. These trends are manifested by both substantive and termi-
nological changes. For example, the phrase international humanitarian law has
increasingly supplanted terms such as the law of war and the law of the armed
conict, a change inuenced by the human rights movement. Although initially,
in the 1950s, international humanitarian law or IHL referred only to the Geneva
Convention on the protection of war victims, it is now increasingly employed to
refer to the entire law of armed conict.
The law of war has always contained rules based on chivalry, religion, and human-
ity designed for the protection of non-combatants, and especially women, chil-
dren and old men, presumed incapable of bearing arms and committing acts of
hostility. It also contained rules protecting combatants (in matters such as quarter,
perdy, unnecessary suering).1 For some time now, the law of war has included
an increasing number of rules on accountability and protection, such as those on
protecting powers, the International Committee of the Red Cross (ICRC), crimi-
nal responsibility and international criminal tribunals. Nevertheless, the law of
war has inevitably been geared to considerations of military strategy and victory.2
Historically, reciprocity has been central to its development, serving as a rationale
for the formation of norms and as a major factor for securing respect and discour-
aging violations. The law of war was paradigmatically inter-State law, and thus,
as Georges Abi-Saab put it, driven by collective responsibility, with the attend-
1 See Theodor Meron, Henrys Wars and Shakespeares Laws (1993); Bloody Constraint:
War and Chivalry in Shakespeare (1998). For a recent study see Yoram Dinstein, The
Conduct of Hostilities under the Law of International Armed Conict (2004).
2 See generally Theodor Meron, Human Rights in Internal Strife: Their International
Protection (1987).
2 Chapter 1
ant collective sanctions of classical international law: belligerent reprisals durante

bello and war reparations post bellum.3 This State-centric character of the tradi-
tional law of war was reected in the denition both of liability and of remedies.
When a soldier violated the rules, the State for whom he fought was usually liable
for the violation not to the victims but to the victims State. Individuals seldom
beneted from such arrangements.
Chivalry and principles of humanity are a competing inspiration for the law
of armed conict, creating a counterbalance to military necessity. Nevertheless,
in recent conicts where wars are increasingly fought against civilians, chivalry is
often ignored. Tension between military necessity and restraint on the conduct
of belligerents is the hallmark of the law of armed conict. However, the weight
assigned to these two conicting factors has been shifting. The principle of hu-
manitarian restraints has been of growing importance, especially in normative
developments and in the elaboration of new standards, but, regrettably, less in the
actual practice in the eld, which remains cruel and bloody, especially in internal
conicts.
Calamitous events and atrocities have always driven the development of
international humanitarian law. The more oensive or painful the suering, the
greater the pressure for adjustment of the law. The American Civil War generated
the Lieber Code (1863), which ultimately spawned the branch of international hu-
manitarian law commonly known as the Hague Law, which governs the conduct
of hostilities. The battle of Solferino, immortalized in Henry Dunants moving
portrayal of the suering and the bloodshed at the battle, in A Memory of Solf-
erino (1862), inspired the Red Cross Movement and the Geneva Law, the other
branch of humanitarian law, which starting with the rst Geneva Convention
(1864), emphasizes the protection of the victims of war, the sick, the wounded,
prisoners and civilians. Nazi atrocities led to Nuremberg, the Geneva Conven-
tions for the Protection of Victims of War and the Genocide Convention. Those
atrocities also helped shift some State-to-State aspects of international humani-
tarian law to individual criminal responsibility, thus contributing to a change in
its emphasis from State-centric to homocentric. The atrocities in the former Yu-
goslavia, Rwanda and elsewhere had a pronounced impact not because of their
unprecedented nature there is, unfortunately, nothing new in atrocities but
because of the role of the media, which resulted in rapid sensitization of pub-
lic opinion, reducing the time between atrocities and responses. One result was
the establishment of the ad hoc criminal tribunals for the former Yugoslavia and
Rwanda, which have had a tremendous impact both on the development of in-
ternational humanitarian law and on its humanization.4 The current changing
3 Abi-Saab, International Criminal Tribunals and the Development of International

Humanitarian Law, in Liber Amicorum Judge Mohammed Bedjaoui 649, 650
(Emile Yakpo & Tahar Boumedra eds., 1999).
4 Meron, The Normative Impact on International Law of the International Tribunal for
former Yugoslavia, [1995] Israel Y.B. Hum. Rights 163.
The Humanization of the Law of War 3
nature of conicts from international to internal has drawn humanitarian law in

the direction of human rights law.
Human rights law has had a major inuence on the formation of custom-
ary rules of humanitarian law, in terms of scholarship and, more importantly,
of the jurisprudence of courts and tribunals and the work of international or-
ganizations. This trend started at Nuremberg and has continued through such
ICJ cases as the Nicaragua case and the Nuclear Weapons Advisory Opinion and
the jurisprudence of the ad hoc criminal tribunals for the former Yugoslavia and
Rwanda. Opinio juris has proven inuential in the form of verbal statements by
governmental representatives to international organizations, the content of reso-
lutions, declarations and other normative instruments adopted by such organiza-
tions, and in the consent of States to such instruments.5
This is not surprising, given that robust eorts had to be made to humanize
the behavior of States and ghting groups in armed conicts. Although humani-
tarian norms may have a lesser prospect for actual compliance than other norms
of public international law, they enjoy a stronger moral support. Judges, scholars,
governments and non-governmental organizations are often ready to accept a
rather large gap between practice and norms without questioning their binding
character. Gradual and partial compliance with norms has often been accepted as
fullling the requirements for the formation of customary law. Contrary practice
has been downplayed. Courts and tribunals have often ignored operational or
battleeld practice. Without formally abandoning the traditional dual require-
ments (practice and opinio juris) for the formation of customary international
law, the tendency has been to weigh statements by governments, the ICRC, and
intergovernmental organizations both as evidence of practice and as articulation
of opinio juris. Courts and tribunals have relied on opinio juris or general prin-
ciples of humanitarian law distilled in part from the Geneva, the Hague and other
humanitarian conventions. The methodology thus resembles that applied in the
human rights eld. However, even in other areas of international law, conclusory
treatment of customary law is becoming common. This is true even of the In-
ternational Court of Justice. In terminology, however, courts and tribunals have
followed the law of war tradition of speaking of practice and custom, even when
this requires stretching the traditional meaning of customary law. Similar tenden-
cies have also been apparent in the restatement of norms in the Rome Conference
for the establishment of an international criminal court (ICC) and in the ICRC
study on customary rules of International Humanitarian Law.6 Public opinion,
the media, the NGOs and the ICRC have played a critical role in promoting such
5 Theodor Meron, Human Rights and Humanitarian Norms as Customary Law, ch. I
(1989); Meron, The Continuing Role of Custom in the Formation of International Hu-
manitarian Law, 90 AJIL 238 (1996).
6 Theodor Meron, War Crimes Law Comes of Age, ch. XVII and the Epilogue (1998);
Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Human-
itarian Law (2005). I was one of the reporters and served on its steering committee of
experts.
4 Chapter 1
tendencies. The jurisprudence of the ICTY, however, has dealt with customary
law more rigorously.
Human rights enrich humanitarian law, just as humanitarian law enriches
human rights. The recognition of customary norms rooted in international hu-
man rights instruments aects, through application by analogy, the interpreta-
tion, and eventually the status, of the parallel norms in instruments of interna-
tional humanitarian law.7 The inuence of processes followed in the human rights
eld on the development of customary law by humanitarian law tribunals is well-
known.8 The International Criminal Tribunals for the former Yugoslavia (ICTY)
and for Rwanda (ICTR) demonstrate how criminal tribunals applying humanitar-
ian law are informed by human rights law. The ad hoc criminal tribunals have of-
ten adopted human rights approaches to the denition of humanitarian norms. In
some situations, however, it may be better to maintain distinct humanitarian or
human rights approaches. Take the denition of torture, for example, where the
requirement of State action under Article 1 of the UN Convention against Torture
was found inapplicable to individual criminal responsibility. Thus, in Prosecutor
v. Kunarac, Kova and Vukovi, the ICTY explained why it found it necessary to
depart from human rights approaches to the denition of torture which require
State action:
The Trial Chamber draws a distinction between those provisions which are addressed
to States and their agents and those provisions which are addressed to individuals.
Violations of the former provisions result in the responsibility of the State to take
the necessary steps to redress or make reparation for the negative consequences of
the criminal actions of its agents. On the other hand, violations of the second set of
provisions may provide for individual criminal responsibility, regardless of an indi-
viduals ocial status. While human rights norms are almost exclusively of the rst
sort, humanitarian provisions can be of both or sometimes of mixed nature. This has
been pointed out by the Trial chamber in the Furundija case:
Under current international humanitarian law, in addition to individual crimi-
nal liability, State responsibility may ensue as a result of State ocials engaging in tor-
ture or failing to prevent torture or to prevent torturers. If carried out as an extensive
practice of State ocials, torture amounts to a serious breach on a widespread scale
of an international obligation of essential importance for safeguarding the human be-
ing, thus constituting a particularly wrongful act generating State responsibility.9
7 Meron, supra note 5, at 56-57; Meron, The Humanization of Humanitarian Law, 94

ASIL 239 (2000); Koller, The Moral Imperative: Towards a Human Rights-Based Law
of War, 46 Harv. Intl L.J. 231 (2005).
8 Meron, The Continuing Role of Custom in the Formation of International Humanitar-
ian Law, in Meron, supra note 5, at 262.
9 Case No. IT-96-23-T & IT-96-23/1-T, paras. 489-90 (2001); Mettraux, Crimes against
Humanity in the Jurisprudence of the International Criminal Tribunals for the For-
mer Yugoslavia and for Rwanda, 43 Harv. Intl L. J. 238, 290-91 (2002). The Appeals
Chamber agreed with the Trial Chamber that the public ocial requirement is not
Thus, a perpetrator of private torture may be subject to individual criminal re-

sponsibility under national and international law even if his conduct does not rise
to torture under the UN Convention against Torture. Indeed, individual criminal
liability under international humanitarian law and State responsibility to enforce
human rights obligations of States are not mutually exclusive.
The humanization of the law of war received its greatest impetus from the
post-UN Charter international human rights instruments and the creation of
international processes of accountability. The law of war, while focusing on the
interests of States and their sovereignty, also contains a prominent component of
human beings protection. Starting in the 19th Century, that law has been increas-
ingly seen as embodying humanitarian constraints on the conduct of belligerents.
In this sense, the classic law of war was not wholly inhumane. The Lieber Code
(1863)10 contained several elements characteristically belonging to the domain of
human rights: such elements included the prohibition of rape,11 enslavement and
slavery,12 of distinctions between captured enemies on grounds of color in ef-
fect, a guarantee of equal treatment of captured combatants.13 The latter prohi-
bition was designed to protect black soldiers of the Union army who might fall
into the hands of the Confederate army. It was later incorporated in Article 4 of
the Geneva POW Convention (1929) and Article 16 of the Third Geneva Con-
vention (1949) on equality of treatment. In a provision anticipating the Fourth
Geneva Conventions prohibition on deportations, the Lieber Code declared
that [p]rivate citizens are no longer murdered, enslaved, or carried o to distant
parts, and the inoensive individual is as little disturbed in his private relations ...
[as the law makes it possible].14
This humanitarian and humanizing aspect of the law of war is, of course,
epitomized by the Martens Clause of the Fourth Hague Convention on the Laws
and Customs of War (1899, 1907), which is treated later in this chapter. The Mar-
tens Clause invokes the laws of humanity and dictates of public conscience. The
strong language of the Martens Clause explains its resonance and inuence in
the formation and interpretation of the law of war/international humanitarian
law. The rhetorical and ethical language of the clause has compensated for its
a requirement under customary international law in relation to the criminal respon-

sibility of an individual for torture outside of the framework of the Torture Conven-
tion. Judgement of 12 June 2002, at para. 148. See also Nina Jrgensen, The Respon-
sibility of States for International Crimes (2000).
10 Instructions for the Government of Armies of the United States in the Field, General
Orders No. 100 (April 24, 1863). For analysis, see Meron, Francis Lieber Code and
Principles of Humanity, 36 Colum. J. Transl L. 269, reprinted in Meron, supra note 6,
at 131.
11 Id., Art. 47. See generally, Meron, Rape as a Crime under International Humanitarian
Law, 87 AJIL 424 (1993).
12 Lieber Code, supra note 10, Art. 43.
13 Id., Arts. 57-58.
14 Id., Art. 23.
6 Chapter 1
somewhat vague and indeterminate legal content and exerts a strong pull towards
normativity.15
The atrocities of World War II gave birth to the human rights movement,
to the recognition of human rights as a fundamental principle in the UN Char-
ter, to the insistence on individual criminal responsibility, to the judgment of the
Nuremberg Tribunal and to the promulgation of the Universal Declaration of Hu-
man Rights (1948). During the era of the Cold War, human rights instruments,
and both governmental and non-governmental bodies designed to investigate
and judge human rights violations proliferated. Many of the larger social changes
that have fed the burgeoning human rights consciousness notably the develop-
ment of television and the elaboration of its increasingly global networks have
helped move public opinion towards greater intolerance for human suering in
times of war as in times of peace. As a result, human rights norms have inltrated
the law of war to a signicant degree.
It is thus the post-UN Charter Universal Declaration of Human Rights, fol-
lowed by a plethora of human rights treaties and declarations, that explains the
homocentric focus of the Geneva Conventions and the Additional Protocols. In
many norms the inuence of human rights on instruments of international hu-
manitarian law has been enormous. These norms include the guarantees of due
process of law and the prohibitions of: torture and cruel, inhuman or degrading
treatment and punishment; arbitrary arrest and detention; and discrimination on
grounds of race, sex, language, or religion. This evolution produced a very large
measure of parallelism between the norms, and a growing measure of conver-
gence in their personal and territorial applicability. The fact that the law of war
and human rights law have dierent historical and doctrinal roots has not pre-
vented the principle of humanity from becoming the common denominator of
both systems. Current trends point to an even greater reliance on that principle.
The Fourth Geneva Convention reects the need to enhance protections for
individuals and populations, especially of occupied territories. The Hague Con-
vention No. IV contains few rules on the protection of civilians in occupied terri-
tory. Of the fteen articles of the Hague Regulations on Military Authority over
the Territory of the Hostile State, only three relate to the physical integrity of
civilian persons. The other provisions deal essentially with the protection of prop-
erty. The experience of World War II, with the populations of occupied territories
bearing the brunt of Nazi atrocities, demonstrated the need for a more protective
regime. The Fourth Geneva Convention establishes a new balance between the
rights of the occupant and the rights of the population of the occupied country. If
the Hague Convention No. IV established important limitations on the occupiers
permissible activities, the Fourth Geneva Convention obligates the occupier to
assume active responsibility for the welfare of the population under his control.16
15 Meron, Martens Clause, Principles of Humanity and the Dictates of Public Con-
science, 94 AJIL 78 (2000).
16 Lauterpacht, The Problem of the Revision of the Law of War, [1952-53] 29 Brit. Y.B. Intl
L. 381-82.
The Geneva Convention contains detailed provisions on the protection aorded

to civilians aliens, general population, vulnerable groups such as children and
women, and internees in occupied territories.
No preamble was included in the four Conventions because of disagree-
ments on its content. Concern for human rights was nonetheless in the air, as
evidenced by a French proposal for a preamble to the draft Convention discussed
by the XVIIth Red Cross International Conference (1948):
The High Contracting Parties, conscious of their obligation to come to an agreement

in order to protect civilian populations from the horrors of War, undertake to respect
the principles of human rights which constitute the safeguard of civilization and, in
particular, to apply, at any time and in all places, the rules given hereunder:
(1) Individuals shall be protected against any violence to their life and limb.
(2) The taking of hostages is prohibited.
(3) Executions may be carried out only if prior judgment has been passed by a regu-
larly constituted court, furnished with the judicial safeguards that civilized peo-
ples recognize to be indispensable.
(4) Torture of any kind is strictly prohibited.
These rules which constitute the basis of universal human law, shall be respected
without prejudice to the special stipulations provided for in the present Convention
in favour of protected persons.17
Although this proposal was not accepted, much of its language can be found in
common Article 3. As Joyce Gutteridge predicted, Article 3 would ensure observ-
ance of certain fundamental human rights.18 The International Court of Justice
(ICJ) has already paid it the highest tribute by describing it as a reection of el-
ementary considerations of humanity.19
This Article is a clear demonstration of the inuence of human rights law on
humanitarian law. The inclusion in the United Nations Charter of the promotion
of human rights as a basic purpose of the Organization, the recognition of crimes
against humanity as international crimes, the conclusion of the 1948 Genocide
Convention and the regulation by a multilateral treaty of non-international armed
conicts for the rst time in 1949, all stemmed from this inuence.20
The establishment of mechanisms for the repression of grave breaches and
the development of universal criminal jurisdiction also reveal the intent to go
beyond the inter-State level and to reach for the level of the real (or ultimate)
17 Commentary on the Geneva Convention (IV) relative to the Protection of Civilian

Persons in Time of War 20 (Oscar M. Uhler & Henri Coursier ed., 1958).
18 Gutteridge, The Geneva Conventions of 1949, [1949] 26 Brit. Y.B. Intl L. 294, 300.
19 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment of 27 June 1986, 1986 ICJ Rep. 14, 114.
20 Doswald-Beck, Implementation of International Humanitarian Law in Future Wars,
71 US Naval War College 39, 47-48 (1998).
8 Chapter 1
beneciaries of humanitarian protection, i.e. individuals and groups of individu-

als.21 The ICRC Commentary notes that the First and Third Geneva Conventions
provide for certain mechanisms that permit protected persons to invoke their
rights against the detaining Party without a necessary intervention of their na-
tional State.22
This symbiotic relationship is further stimulated by the work of human
rights bodies.23 In applying humanitarian law, these bodies often lack law of war
expertise. They tend to reach conclusions which humanitarian law experts nd
problematic. Their very idealism and naivet are, however, their greatest strength.
There are only a few judicial and other expert humanitarian bodies charged with
the application of humanitarian law. Human rights bodies thus ll an institutional
gap and give international humanitarian law an even more pro-human rights ori-
entation.
Not surprisingly, it has become common in some quarters to conate human
rights and the law of war/international humanitarian law. Nevertheless, despite
the growing convergence in various protective trends, signicant dierences re-
main. The law of war, in contrast to human rights law, allows or at least tolerates
the killing and wounding of innocent human beings not directly participating in
an armed conict such as civilian victims of lawful collateral damage, for ex-
ample. It also permits certain deprivations of personal freedom without convic-
tions in a court of law. It allows the occupying power to resort to internments and
to limit appeal rights of detained persons. It permits limitations of freedoms of
expression and assembly.
The law of armed conict regulates aspects of a struggle for life and death
between contestants who operate on the basis of formal equality. Derived as it is
from the medieval tradition of chivalry, it guarantees a modicum of fair play. As in
a boxing match, pummeling the opponents upper body is ne; hitting below the
belt is proscribed. As long as the rules of the game are observed, it is permissible
to cause suering, deprivation of freedom, and death. This is a narrow, technical
vision of legality.
Human rights laws protect physical integrity and human dignity in all cir-
cumstances. They apply to relationships between unequal parties, protecting the
governed from their governments. Under human rights law, no one may be de-
prived of life except in pursuance of a judgement by a competent court. The two
21 Abi-Saab, The Specicities of Humanitarian Law, in Studies and Essays on Interna-

tional Humanitarian Law and Red Cross Principles in Honour of Jean Pictet 265, 269
(Christophe Swinarski ed., 1984).
22 Commentary on the Geneva Convention (I) for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field 84 (Jean S. Pictet ed., 1952). For
the text of the Convention, see 75UNTS 31, 6UST 3114.
23 See for example the case of Abella et al. v. Argentina, decided by the Inter-American
Commission on Human Rights, Case No. 11.137, Report No 55/97, OEA/Ser/L/V.97
Doc. 38, 18 November 1997, paras. 158-161.
systems, human rights and humanitarian norms, are thus distinct and, in many
respects, dierent.
To speak of the humanization of humanitarian law or the law of war is thus
in many ways a contradiction in terms. Consider, for example, the law of war term
unnecessary suering.
To genuinely humanize humanitarian law, it would be necessary to put an
end to all kinds of armed conict. But wars have been a part of the human condi-
tion since the struggle between Cain and Abel, and regrettably they are likely to
remain so.
The renaissance of the law of war in the early 70s was triggered by human
rights, and especially by the reports of the Secretary-General of the United Na-
tions on the Respect of Human Rights in Armed Conict24 and the Tehran Con-
ference on Human Rights (1968). Law of war experts have recognized that the
development of international humanitarian law came dangerously close to stag-
nation before the impact of the human rights movement was brought to bear.
The humanization of the law of war has also informed developments extend-
ing to non-international armed conicts and even to all situations the applicabil-
ity of prohibitions and restrictions on the use of certain weapons. Such is the case,
especially, of weapons which cannot be used in ways that distinguish between ci-
vilians and combatants and weapons considered abhorrent to public conscience.
The rst involve anti-personnel land mines; the latter chemical, bacteriological
and biological weapons and, perhaps, blinding laser weapons.
B. From an Inter-State to an Individual Rights Perspective:

Reciprocity and Reprisals
How much humanitarian law has already departed from its purely inter-State and
reciprocal focus can be seen by revisiting the now obsolete si omnes clause, and
the question of belligerent reprisals.
The si omnes clause found in early law of war treaties provided that if one
party to a conict was not a party to the instrument, the instrument would not
apply in relations between any of the parties to the conict.25 The Fourth Hague
Conventions si omnes clause threatened the integrity of Nuremberg prosecu-
24 Reports of the Secretary-General on Respect for Human Rights in Armed Conicts,

UN Docs. A/7720 (1969) and A/8052 (1970).
25 E.g. Article 2 of the Hague Convention (IV) on Laws and Customs of War on Land,
18 October 1907, 36 Stat. 2277, TS No. 539, 1 Bevans 631: The provisions contained
in the Regulations referred to in Article 1, as well as in the present Convention, do
not apply except between Contracting powers, and then only if all the belligerents are
parties to the Convention. Also Article 24 of the 1906 Convention for the Ameliora-
tion of the Condition of the Wounded and Sick in Armies in the Field: The provisions
of the present Convention are obligatory only on the Contracting Powers, in case of
war between two or more of them. The said provisions shall cease to be obligatory if
one of the belligerent Powers should not be signatory to the Convention.
10 Chapter 1
tions. In the Trial of German Major War Criminals (Nuremberg 1946), the de-
fense raised the argument that the Convention and its Regulations did not apply
because several of the belligerents were not parties to it. The general participation
clause barred application of the Convention. In response, the International Mili-
tary Tribunal (IMT) acknowledged that at the time the Hague Regulations had
been adopted, the participating States believed that they were making new law,
but found that by 1939 these rules laid down in the Convention were recognised
by all civilized nations, and were regarded as being declaratory of the laws and
customs of war.26 Thus, it was only by considering the Hague Regulations inap-
plicable because of the si omnes clause as a mirror of customary law that the ar-
gument of the defense could be answered. The approach of the IMT was endorsed
and followed in the Tribunals decision in United States v. Von Leeb The High
Command Case, 1948 in which it described most of the provisions of the Hague
Convention, considered in substance, as an expression of the accepted views of
civilized nations and as international law binding upon Germany and the defen-
dants in the conduct of the war against the Soviet Union.27 Hague Convention No.
IV is still in force, but since most of its provisions are now regarded as customary
law, the Conventions general participation clause can now be regarded as having
fallen in desuetude.
The general participation clause was explicitly reversed in the 1929 Prisoner
of War Convention and in the 1929 Convention for the Amelioration of the Con-
dition of the Wounded and Sick in Armies in the Field. Article 82 of the POW
Convention provided that [i]n time of war if one of the belligerents is not a party
to the Convention, its provisions shall, nevertheless, remain binding as between
the belligerents who are parties thereto.28
Common Article 2(3) of the 1949 Geneva Conventions went even further.
In addition to providing for the application of the Conventions between parties
involved in a conict, even if one of the parties was not a Party to the Convention,
it species that the parties shall furthermore be bound by the Convention in rela-
tion to the said Power, if the latter accepts and applies the provisions thereof, i.e.,
even in the case of the acceptance of the Convention for the specic conict only.
This idea had been broached in 1929 but rejected.29
Common Article 1 of the 1949 Geneva Conventions, which provides that
The High Contracting Parties undertake to respect and ensure respect for the
26 Trial of German Major War Criminals, Cmd. 6964, Misc. No. 12, at 65 (1946). Meron,
supra note 5, at 38-39.
27 11 Trials of War Criminals before the Nuremberg Military Tribunals under Control
Council Law No. 10, at 462 (1948).
28 Convention relative to the Treatment of Prisoners of War, 27 July 1929, 47 Stat. 2021,
TS No. 846, Art. 82; Convention for the Amelioration of the Condition of the Wound-
ed and Sick in Armies in the Field, 27 July 1929, 47 Stat. 2074, TS No. 847, Art. 25.
29 Commentary on the Geneva (I) Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, supra note 22, at 30.
present Convention in all circumstances,30 epitomizes the denial of reciprocity.

The ICRC Commentary to Geneva Convention I further emphasizes the uncon-
ditional and nonreciprocal character of the obligations: [a] State does not pro-
claim the principle of the protection due to wounded and sick combatants in the
hope of saving a certain number of its own nationals. It does so out of respect for
the human person as such.31
Another aspect of common Article 1, which the International Court of Jus-
tice has held to be declaratory of customary law,32 also derived from the rejection
of reciprocity and goes to the heart of accountability for violations of interna-
tional humanitarian law. The Article may initially have been intended to address
the obligation of a party to ensure that its entire civilian and military apparatus
respects the Conventions. However, it has subsequently been interpreted as pro-
viding standing for States parties to the Convention vis--vis violating States. Par-
ties could therefore endeavor to bring a violating party back into compliance, thus
promoting universal application. To a large extent, this later interpretation was
triggered by the ICRCs commentaries to the Geneva Conventions and the sup-
portive literature generated by them.33 The exact scope of the rights of third par-
ties under common Article 1 is still unclear, however, as suggested by the continu-
ing controversies regarding conferences of States parties concerning the occupied
West Bank. Whether the parties must act jointly or may take individual measures
with respect to a violating State is uncertain, as is the precise nature of the actions
that may be taken. Nevertheless, common Article 1 can already be seen as the
humanitarian law analog to the human rights principle of erga omnes.34
Another telling manifestation of the reciprocal character of classical inter-
national law, and of the law of war in particular, was the concept of reprisals.
The classical denition of reprisal in international armed conict is an act by one
belligerent, otherwise in violation of the law of war, in response to an unlawful
act of war by another belligerent, and carried out to compel that other belliger-
30 Abi-Saab, The Specicities of Humanitarian Law, supra note 21, at 267. See also the
important essay, Condorelli and Boisson de Chazournes, Quelques remarques
propos de lobligation des Etats de respecter et faire respecter le droit international
humanitaireen toutes circonstances, in Studies and Essays on International Humani-
tarian Law and Red Cross Principles in Honour of Jean Pictet 17 (Christophe Swinar-
ski, ed., 1984).
the Wounded and Sick in Armed Forces in the Field, supra note 22, at 28-29.
32 Military and Paramilitary Activities in and Against Nicaragua, supra note 19, at 114.
33 Commentary on Geneva Convention (IV) relative to the Protection of Civilian Per-
sons in Time of War, supra note 17, at 16. See also Commentary on the Geneva Con-
vention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, supra note 22, at 26, and Meron, supra note 5, at 27- 30. For
inuential supportive literature, see especially Condorelli & Boisson de Chazournes,
supra note 30, and Abi-Saab, supra note 21.
34 Barcelona Traction, Light and Power Co., Ltd. (Belgium v. Spain) (New Application),
1970 ICJ Rep. 3, 32, discussed in Meron, supra note 5, at 188-201.
12 Chapter 1
ent to stop unlawful acts of war and to comply henceforth with its obligations
under the laws of war. Yet from the 1929 Convention relative to the Treatment of
Prisoners of War to the 1977 Additional Protocol I to the Geneva Conventions,
the domain of legitimate reprisals has shrunk dramatically. The 1929 Conven-
tion prohibited reprisals against prisoners of war. The 1949 Geneva Conventions
prohibited reprisals against persons, installations, or property protected by their
provisions (including the wounded, the sick and the shipwrecked, medical per-
sonnel and objects, prisoners of war, and the civilian population or individuals
in the power of a Party), as well as collective punishment and terrorization of
the civilian population in occupied territory, and the taking of hostages.35 Addi-
tional Protocol I prohibits reprisals against the entire civilian population, civilian
objects, cultural objects (reprisals against cultural property were also prohibited
under Article 4(4) of the 1954 Convention for the Protection of Cultural Property
in the Event of Armed Conict), as well as reprisals against objects indispensable
to the survival of the civilian population, the natural environment, and works or
installations containing so-called dangerous forces,36 such as nuclear or toxic
materials. Articles 3(2) and 3(7) of Protocol II to the Convention on Conventional
Weapons prohibit reprisals through the use of mines, booby-traps and other de-
vices. Modern treaties have thus reduced legitimate reprisals to those against the
armed forces. Since attacks against the military are, in any event, lawful under the
jus in bello of international humanitarian law, hardly any scope is left to the State
that wishes to resort to reprisals. International law has failed, however, to provide
eective remedies against States that persist in violating the prohibition of at-
tacks against civilians or that egregiously breach the principle of proportionality.
Could the victim State resort, in such a case, to prohibited weapons and means of
warfare? Or would that use be contrary to hierarchically higher jus cogens norms?
Would such use be acceptable in response to the use of such prohibited weapons
by the enemy? The United States does not accept a total ban on reprisals against
civilians and civilian objects.
The complete prohibition of reprisals in Additional Protocol I clearly contin-
ues to present a major diculty. As Aldrich writes, despite the limitations, risks,
35 Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field (Geneva Convention I), 12 August 1949, 6 UST 3114, TIAS
No. 3362, 75 UNTS 31, Art. 46; Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Conven-
tion II), 12 August 1949, 6 UST 3217, TIAS No. 3363, 75 UNTS 85, Art. 47; Convention
relative to the Treatment of Prisoners of War, 12 August 1949, 6 UST 3316, TIAS No.
3364, 75 UNTS 135, Art. 13; and Convention relative to the Protection of Civilian Per-
sons in Time of War (Geneva Convention IV), 12 August 1949, 6 UST 3516, TIAS No.
3365, 75 UNTS 287, Art. 33.
36 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed Conicts (Protocol I), of 8 June
1977, 1125 UNTS 3, reprinted in 16 ILM 1391, Arts. 51-56.
and unfairness of reprisals,37 they may be the only remedial measure the victim
State can take to coerce the enemy into respecting the law. In extreme circum-
stances, that State may be compelled to threaten reprisals, and if the threat fails,
to take reprisal action, regardless of the law.38
The ICTY, however, has strongly supported the prohibition of reprisals
against civilians as grounded in customary law. An ICTY 1996 trial court deci-
sion held that the prohibition of reprisals against the civilian population and in-
dividual civilians is an integral part of customary law and must be respected in all
armed conicts, even when the other party engages in wrongful conduct.39 In an
ICTY trial court judgement in 2000, Presiding Judge Antonio Cassese suggested
that, as a means of inducing compliance with international law, the prosecution
and punishment of war crimes and crimes against humanity before national and
international courts oers a widely available and fairly ecacious alternative to
reprisals.40 It is far from certain, however, that under present-day circumstances,
belligerents subjected to the pressure of persistent attacks on their civilians and
civilian objects would agree that the prospects of future prosecution are compel-
ling enough to cause the violating State to cease and desist.
In the same opinion, Judge Cassese considers whether the provisions of
Protocol I prohibiting reprisals reect customary law, as some have suggested.
He notes that at the time the Protocol was adopted, the prohibition of reprisals
against civilian objects did not appear to be declaratory of international law,
and that since then, a body of State practice transforming this prohibition into
a general rule of international law has not emerged. He believes, however, that
the combined eect of the Martens Clause41 and opinio juris can transform this
prohibition into customary law binding on the major military powers that have
not ratied Protocol I or have dissented from the prohibition of reprisals,42 even
though State practice is scant or inconsistent. But given the scarcity of practice
and diverse views of States and commentators, the invocation of the Martens
Clause may not suce to justify this conclusion. Of course, the question of what
acts are considered reprisals should be taken into account. Reprisals are strictly
dened by law as enforcement measures, in proportional reaction to previous
violations by the adversary, and are intended to compel the adversary to desist
from further violations. Acts of vengeance pure and simple are always prohibited,
although frequently resorted to.
37 George Aldrich, Compliance with International Humanitarian Law, Intl. Rev. Red
Cross, no. 282, May-June 1991, at 301
38 Id. at 302.
39 The Prosecutor v. Milan Marti, Case No. IT-95-11-R61, para. 17 (Decision of March
8, 1996).
40 Prosecutor v.Kupreski, No. IT-95-16-T, Judgement, para. 530 (Jan. 14, 2000).
41 See Meron, supra note 15.
42 Kupreski, supra note 40, at paras. 527-31.
14 Chapter 1
Italy and the United Kingdom have made reservations to Protocol Is pro-
visions on reprisals with regard to States that persist in violating the Protocols
prohibitions of attacks on civilians. Reservations have also been made by Egypt,
France and Germany. The United States has made statements rejecting the pro-
hibition upon reprisals on the theory that reprisals, or at least threats of reprisals,
continue to be necessary in order to deter violations of international humanitar-
ian law, especially against POWs and civilians.43 Reprisals were openly practiced
in the Iran-Iraq war. The customary law character of the Protocols provisions
prohibiting reprisals is thus still uncertain, but the proscriptive trend is clear, es-
pecially as the condemnations of reprisals are on the increase. In this dicult
area, it continues to be dicult to demonstrate the existence of a customary rule
prohibiting reprisals, but such a rule may well be emerging under the inuence
of opinio juris.
The inuence of human rights on the comprehensive prohibition of reprisals
is clear. Indeed, the very idea of reprisals, based as it is on the collective responsi-
bility of the many for violations by a few, is antithetical to the whole notion of in-
dividual responsibility that is so fundamental to human rights. As Frits Kalshoven
noted,
Belligerent reprisals rest on the idea of solidarity, of holding members of a com-

munity jointly and severally liable for the deeds of some of them. It hardly needs em-
phasizing that this goes to the roots of the concept of human rights, as fundamental
rights of the human being as an individual, as distinct from his position as a member
of the collectivity.44
Indeed, experience shows that one reprisal leads to another, creating, in the long
run, a vicious circle, in which the original sin is often forgotten, enhancing the
potential for mutual destruction.
The outlawing of reprisals is also supported by the ICRC Study of Custom-
ary International Humanitarian Law.45 Rule 145 of the ICRC study states, soundly,
that [w]here not prohibited by international law, belligerent reprisals are subject
to stringent conditions. Thus, the purpose of reprisals, taken in reaction to a
prior violation of international law, may only be to induce the adversary to com-
ply with the law; reprisals may only be carried out as a measure of last resort and
thus after warnings; they must be proportionate to the violation; the decision to
resort to reprisals must be taken at high level; reprisals must cease as soon as the
unlawful acts which triggered them have been discontinued. Rules 146 and 147
prohibit outright belligerent reprisals against persons and objects protected by
the Geneva Convention and the Hague Convention for the Protection of Cultural
43 Meron, The Time has Come for the United States to Ratify Geneva Protocol I, 88 AJIL
678 (1994).
44 Kalshoven, Human Rights, the Law of Armed Conicts, and Reprisals, Intl Rev. Red
Cross, No. 121, April 1971, 183, at 186.
45 Supra note 6.
Property. Rule 148 prohibits reprisals in non-international armed conicts. The

United States does not accept a total ban on reprisals against civilians and civilian
objects.
The principle of reciprocity, still prominent in the law of war, has thus un-
dergone important changes. Although reciprocity still applies to the creation of
obligations under the Geneva Conventions (e.g. common Article 2(3) of the Ge-
neva Conventions or Article 4(2) of the Fourth Geneva Conventions), it does not
enable the termination of obligations on grounds of breach.46 For example, the
denunciation clause of the Geneva Conventions (common Article 63/62/142/158)
provides that a denunciation cannot take eect until peace has been concluded
and the release and repatriation of the persons protected by the Conventions have
been completed. Article 60(5) of the Vienna Convention on the Law of Treaties
is also pertinent. This article, while permitting a party which is the victim of a
breach of treaty to invoke the breach as a ground for terminating the treaty or
for suspending its operation, excludes from termination or suspension provisions
in treaties of a humanitarian character relating to the protection of the human
person, in particular those that prohibit any form of reprisals against persons pro-
tected by such treaties. A breach, and consequently the principle of reciprocity,
may therefore not be invoked to justify derogations from humanitarian law with
regard to protected persons, especially civilians.
The increasingly objective and normative principles now informing the law
of war have caused a major erosion, if not a total prohibition, of permissible repri-
sals. In reality, of course, reciprocity and reprisals, or the fear of reprisals, remain
more signicant than acknowledged by the treaty texts. In some situations, as
during the second Intifada (2002-05), there has been an unfortunate return to a
large-scale resort to reprisals against civilians by all sides.
Despite the inequality which often prevails between government forces and
rebel forces, reciprocity is still relevant to non-international conicts, as is shown,
for example, by the mutual deterrence that often takes place regarding treatment
of captured combatants. Yet, the growing protection extended by the law of war
to citizens and residents of a country vis--vis their own government, especially
in domestic conicts, cannot be adequately explained by the operation of rec-
iprocity. Rather it rests on the requirements of humanity, normativity and the
objective application of the law. As the ICRC Commentary notes, the Conven-
tions are coming to be regarded less and less as contracts on a basis of reciprocity
concluded in the national interest of each of the parties, and more and more as
solemn armations of principles [and] unconditional engagements.47
46 De Preux, The Geneva Conventions and Reciprocity, Intl Rev. Red Cross, No. 244,
Jan.-Feb. 1985, 25, at 26.
16 Chapter 1
C. The Martens Clause, Principles of Humanity, and Dictates of Public

Conscience
Together with the principle prohibiting weapons of a nature to cause superuous
injury or calculated to cause unnecessary suering,48 the Martens Clause, in the
Preamble to the Hague Conventions on the Laws and Customs of War on Land,49
is an enduring legacy of those instruments. In the years since its formulation, the
Martens Clause has been relied upon in the Nuremberg jurisprudence, addressed
by the International Court of Justice and human rights bodies, and reiterated in
many humanitarian law treaties that regulate the means and methods of warfare.
It was restated in the 1949 Geneva Conventions for the Protection of Victims of
War,50 the 1977 Additional Protocols to those Conventions,51 and the Preamble to
the Convention on Prohibitions or Restrictions on the Use of Certain Conven-
tional Weapons,52 albeit in slightly dierent versions. The Martens Clause was
paraphrased in Resolution XXIII of the Tehran Conference on Human Rights of
1968,53 and it is cited or otherwise referred to in several national military manu-
48 These phrases appear, respectively, in Article 23(e) of Hague Convention No. II of

1899 and Hague Convention No. IV of 1907. Convention [No. II] with Respect to the
Laws and Customs of War on Land, with annex of regulations, July 29, 1899, 32 Stat.
1803, 1 Bevans 247; Convention [No. IV] Respecting the Laws and Customs of War
on Land, with annex of regulations, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631.
49 See generally Helmut Strebel, Martens Clause, 3 Encyclopedia of Public International
Law 326 (Rudolf Bernhardt ed., 1997).
50 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, Aug. 12, 1949, Art. 63, 6 UST 3114, 75 UNTS 31; Convention for
the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members
of Armed Forces at Sea, Aug. 12, 1949, Art. 62, 6 UST 3217, 75 UNTS 85; Convention
Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Art. 142, 6 UST 3316, 75
UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War,
Aug. 12, 1949, Art. 158, 6 UST 3516, 75 UNTS 287.
the Protection of Victims of International Armed Conicts, opened for signature Dec.
12, 1977, Art. 1(2), 1125 UNTS 3 [hereinafter Protocol I]; Protocol Additional to the
Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
Non-International Armed Conicts, opened for signature Dec. 12, 1977, pmbl., para.
4, 1125 UNTS 609 [hereinafter Protocol II].
52 Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscrimi-
nate Eects, Oct. 10, 1980, pmbl., para. 5, 1342 UNTS 137.
53 The resolution requested that the Secretary-General urge member states of the Unit-
ed Nations system, pending the adoption of new rules of international law relating to
armed conicts, to ensure that in all armed conicts the inhabitants and belligerents
are protected in accordance with the principles of the law of nations derived from
the usages established among civilized peoples, from the laws of humanity and from
the dictates of the public conscience. Final Act of the International Conference on
Human Rights, Res. XXIII, para. 2, at 18, UN Sales No. E.68.XIV.2 (1968).
als, including those of the United States, the United Kingdom, and Germany.54
Moreover, attempts have recently been made including by parties before the
International Court of Justice to invoke the Clause, in the absence of specic
norms of customary and conventional law, to outlaw the use of nuclear weapons.
What accounts for the continuing currency of this provision? After all, the
Martens Clause originated as a supplementary or residual protection, pending
a comprehensive codication of the law of war. Its invocation as a legal basis for
banning nuclear weapons has triggered controversies over its scope, meaning,
and interpretation. I shall attempt to explain its continuing appeal by tracing the
history of the Martens Clause and analyzing its principal features.
I. The Origins of the Clause

As formulated in 1899, the Martens Clause read:
Until a more complete code of the laws of war is issued, the High Contracting Par-
ties think it right to declare that in cases not included in the Regulations adopted by
them, populations and belligerents remain under the protection and empire of the
principles of international law, as they result from the usages established between
civilized nations, from the laws of humanity, and the requirements of the public con-
science.
The 1907 English version was somewhat dierent: inhabitants replaced popula-
tions, the older term law of nations was substituted for international law, and
requirements gave way to dictates. Although both the 1899 and the 1907 ver-
sions speak of laws of humanity, it has become common practice, which I shall
follow, to refer to them as principles of humanity.
Proposed by the Russian delegate to the Hague Peace Conference, the emi-
nent jurist F. F. de Martens,55 the Clause has ancient antecedents rooted in natural
54 For the U.S. manuals, see U.S. dept of the Army, The Law of Land Warfare, para. 6
(Field Manual No. 27-10, 1956); U.S. Dept of the Air Force, International Law-The
conduct of Armed Conict and Air Operations 1-7(b) (AFP No. 110-31, 1976). For the
British manual, see United Kingdom War Oce, The Law of War on Land, being part
III of the Manual of Military Law, paras. 2,3,5 (1958) [hereinafter UK Manual]. See
also United Kingdom Ministry of Defence, the Manual of the Law of Armed Conict
(2004). For the German manual, see Federal Ministry of Defense, Humanitarian Law
in Armed conicts Manual, para. 129 (ZDv 15/2, 1992). Citing the Martens Clause,
the German manual adds: If an act of war is not expressly prohibited by international
agreements or customary law, this does not necessarily mean that it is actually per-
missible.
55 Martens used several names over his lifetime: Fedor Fedorovitsch, Frdric, and
Friedrich. See V.V. Poustogarov, Au Service de la Paix: Frdric de Martens et les
Confrences Internationales de la Paix de 1899 et 1907, at 15 (1999). Regarding the
Martens clause, see id. at 17476.
18 Chapter 1
law and chivalry.56 The rhetorical and ethical strength of its language perhaps best
explains its continuing inuence on the formation and interpretation of the law of
war and international humanitarian law. These features have compensated for the
somewhat vague and indeterminate legal content of the Clause.
The Clause was originally designed to provide residual humanitarian rules
for the protection of the population of occupied territories, especially armed re-
sisters in those territories.57 Since then, a broad understanding has emerged that
the Martens Clause reaches all parts of international humanitarian law. Viewed
in its original context, the Preamble to the Hague Convention reveals the Clauses
object: cases not provided for in the Convention should [not] for want of a writ-
ten provision be left to the arbitrary judgment of the military commanders.
The Clause has served an important additional goal. Since all codications omit
some matters, especially those that prove to be contested, the Martens Clause, as
Georges Abi-Saab has suggested, avoids undermining the customary law status of
matters that were not included.58
At Nuremberg, the Martens Clause was invoked to rebut assertions that the
Nuremberg Charter, as applied by the tribunals, constituted retroactive penal leg-
islation. In the Altsttter case, for example, the Clause served as additional author-
ity for the proposition that deportation of inhabitants of occupied territories was
prohibited by, and constituted a crime under, the customary law of war.59 In the
Krupp case, the U.S. Military Tribunal noted that not only the wording (which
specically mentions the inhabitants before it mentions the belligerents), but
56 In 1643 the Articles and Ordinances of War for the Present Expedition of the Army
of the Kingdom of Scotland concluded with an eloquent provision that established
not only custom but also the law of nature as a residual source, and thus enhanced
the principle of humanity, which is a part of the law of nature: Matters, that are clear
by the light and law of nature are presupposed; things unnecessary are passed over in
silence; and other things may be judged by the common customs and constitutions of
war; or may upon new emergents, be expressed afterward. See Francis Grose, Mili-
tary Antiquities 127, 137 (1788), quoted in Meron, supra note 6, at 10. This provision
captures the spirit of the Martens clause.
57 See Frits Kalshoven, Constraints on the Waging of War 14 (2d ed. 1991); Christopher
Greenwood, Historical Development and Legal Basis, in Handbook of Humanitarian
Law in Armed Conicts 129 (Dieter Fleck ed., 1995); Frederick W. Halls, The Peace
Conference at The Hague 13538 (1900); Ministre des Aaires Etrangres, La Haye,
Confrence Internationale de la Paix 1899, Troisime partie, Deuxime Commission,
at 11116 (1899).
58 Georges Abi-Saab, The Specicities of Humanitarian Law, supra note 21, at 265, 274.
59 Altsttter, 6 Law Reports of Trials of War Criminals 40, 5859 (United Nations War
Crimes Commission, 1948) (U.S. Mil. Trib. 1947). For the customary law underpin-
nings of rules protecting the population of occupied territories, see General Orders
No. 101 issued by the U.S. War Department for the occupation of Santiago de Cuba
after the capitulation of the Spanish forces (July 18, 1898). The order, cited in the
Altsttter case, reects the Lieber Code and anticipates the Hague Regulations, supra
notes 10 and 25. See 1898 Foreign Relations of the United States 78384.
also the discussions that took place at the time, make it clear that [the Clause]
refers specically to belligerently occupied country.60 Going beyond the context
in which it was promulgated in 1899, the Tribunal gave this interpretation to the
Martens Clause:
The Preamble is much more than a pious declaration. It is a general clause, making
the usages established among civilized nations, the laws of humanity and the dictates
of public conscience into the legal yardstick to be applied if and when the specic
provisions of the Convention and the Regulations annexed to it do not cover specic
cases occurring in warfare, or concomitant to warfare.61
Lord Wright, the editor of the Law Reports of Trials of War Criminals prepared by
the United Nations War Crimes Commission, viewed the unspecied war crimes
as being subject to
the governing eect of that sovereign clause which does ... really in a few words state
the whole animating and motivating principle of the law of war, and indeed of all law,
because the object of all law is to secure as far as possible in the mutual relations of
the human beings concerned the rule of law and of justice and of humanity.62
II. The Modernization of the Clause

The Geneva Conventions employ a version of the Martens Clause in their denun-
ciation clauses (common Article 63/62/142/158) for a dierent, but parallel, goal:
to make clear that if a party denounces the Conventions, it will remain bound by
the principles of the law of nations, resulting from the usages established among
civilized peoples, the laws of humanity, and the dictates of public conscience.
This provision thus guarantees that international customary law will still apply to
States no longer bound by the Geneva Conventions as treaty law.63 And for quite
sometime, of course, the status of the Geneva Conventions as customary law has
been conrmed by the ICJ and hardly ever contested.
Since the adoption of the Additional Protocols, a modernized version of
the Clause has been used. Perhaps in recognition of its importance, the clause
was moved from the Preamble of The Hague Conventions to the substantive text
of Protocol I. Article 1(2) reads: In cases not covered by this Protocol or by other
international agreements, civilians and combatants remain under the protection
and authority of the principles of international law derived from established cus-
tom, from the principles of humanity and from dictates of public conscience.64
60 In re Krupp and others, 15 Ann. Dig. 620, 622 (U.S. Mil. Trib. 1948).
61 Id.
62 15 Law Reports of Trials of War Criminals, supra note 27, at xiii (1949).
63 See Abi-Saab, supra note 21, at 275.
64 Protocol I, supra note 36.
20 Chapter 1
Belgiums delegate explained that the object was to make clear that written hu-
manitarian law could develop only gradually and to show that there was a com-
mon law that must be respected. In that sense, the Martens Clause was a principle
of interpretation that ruled out an a contrario interpretation since, where there
was no formal obligation, there was always a duty stemming from international
law.65 The ICRC Commentary added that the Clause also contains a dynamic
factor, proclaiming the applicability of the principles mentioned regardless of
subsequent developments of types of situation or technology.66 That the Clause
should be interpreted as reecting evolving concepts was reiterated by Judge Sha-
habuddeen in his dissent from the ICJs Advisory Opinion on Nuclear Weapons:
In eect, the Martens Clause provided authority for treating the principles of human-
ity and the dictates of public conscience as principles of international law, leaving the
precise content of the standard implied by these principles of international law to be
ascertained in the light of changing conditions, inclusive of changes in the means and
methods of warfare and the outlook and tolerance levels of the international commu-
nity.67
The language of Protocol I, however, may have deprived the Martens Clause of
its intrinsic coherence and legal logic. By replacing usages with established
custom, the Protocol conates the emerging product (principles of international
law) with one of its component factors (established custom).
In his dissenting opinion in the Nuclear Weapons case, Judge Shahabud-
deen acknowledged the distinction between usages and law.68 He chose to use
the Protocol I version of the Martens Clause to support the proposition that the
principles of humanity and the dictates of public conscience constitute principles
of international law independently of custom: Since established custom alone
would suce to identify a rule of customary international law, a cumulative read-
ing is not probable.69
65 8 Diplomatic Conference on the Rearmation and Development of International

Law Applicable in Armed Conicts, Ocial Records, Doc. CDDH/I/SR.3, para. 11
(1978).
66 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Con-
ventions of 12 August 1949, at 39 (Yves Sandoz, Christophe Swinarski, & Bruno Zim-
mermann eds., 1987).
67 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep.
226, 406 (July 8) (Shahabuddeen, J., dissenting) [hereinafter Nuclear Weapons].
68 The distinction between usages and custom is recognized, in the context of the Mar-
tens clause, by the UK Manual, supra note 54. The Manual states that cases beyond
the scope of the Hague Convention remain the subject of customary law and usages.
Id., para. 5. Usages of war, which exist side by side with the customary and written
law of war, are not legally binding but have the tendency to harden into legal rules of
warfare. Id., para. 2.
69 Nuclear Weapons Advisory Opinion, supra note 67, at 406.
In Protocol II, an emasculated version of the Clause was included in the Pre-
amble; it omits the references both to custom and to international law, perhaps
because the diplomatic conference that adopted it was reluctant to impose exten-
sive obligations on States with regard to domestic conicts.70 That version simply
states: Recalling that, in cases not covered by the law in force, the human person
remains under the protection of the principles of humanity and the dictates of the
public conscience.71
III. The Clause and General Principles

Principles of humanity are not dierent from elementary considerations of hu-
manity, a concept to which judges, arbitrators, rapporteurs, and others have long
attempted to give specic meaning. It has been applied in particular to obligations
of States. In the Corfu Channel case, the ICJ observed that Albanias obligations
[were] based, not on the Hague Convention of 1907, No. VIII, which is applicable
in time of war, but on certain general and well-recognized principles, namely: el-
ementary considerations of humanity, even more exacting in peace than in war.72
Earlier, the arbitral tribunal in the Naulilaa case of 1928 applied what appears to
be similar principles of humanity to limit the scope of permissible reprisals: [la
reprsaille] est limite par les expriences de lhumanit.73
In the merits phase of Military and Paramilitary Activities in and against Ni-
caragua, the ICJ considered that the conduct of the United States may be judged
according to the fundamental general principles of humanitarian law and that
certain rules stated in common Article 3 constitute a minimum yardstick, in ad-
dition to the more elaborate rules which are also to apply to international con-
icts; and they are rules which, in the Courts opinion, reect what the Court in
1949 called elementary considerations of humanity. 74
70 See Meron, supra note 5, at 34, 72.

71 Protocol II, supra note 51, pmbl.
72 Corfu Channel case (UK v. Alb.) (Merits), 1949 ICJ Rep. 4, 22 (Apr. 9).
73 Responsabilit de lAllemagne raison des dommages causs dans les colonies portu-
guaises du sud de lAfrique, 2 R.I.A.A. 1013, 1026 (1928).
74 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits,
1986 ICJ Rep. 14, 11314, para. 218 (June 27) [hereinafter Nicaragua]. This statement
of the Court was invoked by the UN Secretary-General in his report on the Statute of
the International Criminal Tribunal for the former Yugoslavia (ICTY). In this context
[of crimes against humanity], it is to be noted that the International Court of Justice
has recognized that the prohibitions contained in common article 3 of the 1949 Ge-
neva Conventions are based on elementary considerations of humanity and cannot
be breached in an armed conict, regardless of whether it is international or internal
in character.,. Report of the Secretary-General pursuant to paragraph 2 of Security
Council resolution 808 (1993), para. 48 n.9, UN Doc. S/25704 (1993), reprinted in 32
ILM 1163, 1191 (1993).
22 Chapter 1
In the decision pursuant to Rule 61 in the Marti case, which concerned

means and methods of war, a trial chamber of the ICTY attributed to principles
of humanity and the Martens Clause the prohibition against attacking the civil-
ian population as such, as well as individual civilians, the prohibition of reprisals
against civilians, and the general principle limiting the means and methods of
warfare to proportional ones. According to the Trial Chamber, these norms ema-
nate from elementary considerations of humanity and from the Martens Clause,
which constitute the foundation of the entire body of international humanitarian
law applicable to all armed conicts.75 In the Furundija case, the ICTY men-
tioned the Martens Clause to support the proposition that the prohibition of tor-
ture is a part of customary international law.76
Together with the principle of chivalry, the British Manual of Military Law
cites the Martens Clause as an argument for establishing parameters for the kinds
and degrees of violence that may be used by a belligerent.77 United Nations rap-
porteurs have also relied on elementary considerations of humanity in assessing
the protection of humanitarian norms and human rights in various countries.
Thus, the Special Rapporteur on the situation of human rights in Kuwait under
Iraqi occupation noted, under elementary considerations of humanity, three
customary principles are incorporated in the Martens Clause:
(i) that the right of parties to choose the means and methods of warfare, i.e. the right
of parties to choose the means of injuring the enemy, is not unlimited; (ii) that a
distinction must be made between persons participating in military operations and
those belonging to the civilian population to the eect that the latter be spared as
much as possible; and (iii) that it is prohibited to launch attacks against the civilian
population as such.78
As mentioned above, in the Corfu Channel case, the ICJ stated that elementary
considerations of humanity apply in peace as in war. Thus, the Security Council
has invoked them even outside the context of an armed conict to condemn the
use of weapons against civil aircraft in ight. The Council described such use
as being incompatible with elementary considerations of humanity, the rules of cus-

tomary international law as codied in article 3 bis of the Chicago Convention, and
the standards and recommended practices set out in the annexes of the Conven-
tion.79
75 Prosecutor v. Marti, Review of the Indictment Pursuant to Rule 61, No. IT9511
R61, paras. 12-13 (Mar. 13, 1996).
76 Prosecutor v. Furundija, Judgement, No. IT9517/1T, para. 137 (Dec. 10, 1998).
77 UK Manual, supra note 54, para. 3.
78 Report on the Situation of Human Rights in Kuwait under Iraqi Occupation, para. 36,
UN Doc. E/CN.4/1992/26.
79 SC Res. 1067, para. 6 (July 28, 1996).
IV. The Clause and Public Conscience

Dictates of public conscience can be examined from at least two perspectives.
First, they can be seen as public opinion that shapes the conduct of the parties
to a conict and promotes the development of international humanitarian law,
including customary law. The latter happens, for example, when governments are
moved by public opinion to regard certain developing norms as already declarato-
ry of customary law, or as jus nascendi. This was precisely how the Rome Confer-
ence on the Establishment of an International Criminal Court formulated certain
crimes in its proposed statute.80 One example is the war crime of conscripting
and enlisting children into armed forces or groups, or using them to participate
actively in hostilities (Article 8(2)(e)(vii)). Strong public opinion trumped weak
foundations in the practice of States.
Second, dictates of public conscience can be seen as a reection of opinio ju-
ris. Although popular opinion, the vox populi, may be dierent from the opinion
of governments, which constitutes opinio juris, the former inuences and helps
to form the latter. Both aspects of dictates of public conscience have been recog-
nized by diplomats and judges. The Italian representative in the Sixth Committee
of the UN General Assembly declared that:
There was ... a need to rearm the Martens Clause ... and in particular, to recognize
that humanitarian laws and the demands of world opinion still have a great role to
play as the sources of principles of international law applicable when written rules
proved to be inadequate. A third source would in the future have to be added to them,
namely, respect for the fundamental worth of the human person, which was the basis
for the protection of human rights.81
He added that it was to the extent that humanitarian treaty law was rooted in the
public conscience that it was gradually transformed into general international law
applicable to all States.82
Although weapons or means of warfare are seldom prohibited on the sole
basis of their incompatibility with such general principles as those of humanity
or the dictates of public conscience, abhorrence of a particular weapon can be
an important factor in the development of treaty prohibitions. Such a sense of
abhorrence contributed to the adoption of treaty prohibitions on bacteriologi-
cal (biological) and chemical weapons. In addition, principles of humanity have
been invoked rhetorically in attempts to humanize the behavior of parties using
certain methods of warfare. Christopher Greenwood, who believes that public
conscience is too vague a term to serve as a basis for a separate rule of law, agrees
80 See Meron, supra note 6, at 30409.

81 UN GAOR, 6th Comm., 28th Sess., 1452d mtg., at 306, para. 46, UN Doc. A/C.6/
SR.1452 (1973).
82 Id.
24 Chapter 1
that the Martens Clause is one of the factors that may lead States to adopt a ban
on a particular weapon or means of warfare.83
In its oral submissions in the Nuclear Weapons case, Australia emphasized
the role of human rights in shaping the dictates of public conscience, argu-
ing that [i]nternational standards of human rights must shape conceptions of
humanity and have an impact on the dictates of public conscience. Moreover,
[i]nternational concern for human rights has been one of the most characteristic
features of this era of international law.84 Referring to international environmen-
tal treaties and declarations, Australia asserted that these instruments, whether
they themselves apply to nuclear weapons or not, provide cumulative evidence
that weapons having such potentially disastrous eects on the environment, and
on civilians and civilian targets, are no longer compatible with the dictates of
public conscience.85
Judge Weeramantry, dissenting in the same case, recognized the role of the
human rights movement in shaping the dictates of public conscience:
The enormous developments in the eld of human rights in the post-war years, com-
mencing with the Universal Declaration of Human Rights in 1948, must necessarily
make their impact on assessments of such concepts as considerations of humanity
and dictates of public conscience.86
That public opinion so inuential in our era has a role to play in the de-
velopment of international law is not an entirely new phenomenon. For exam-
ple, a nineteenth-century Spanish army manual, Reglamento para el servicio de
campaa, discussing notions of the Law of Nations and the Rules of War, notes
that international law develops progressively as civilization advances and that
compliance with its rules is based on the noble and eternal ideas of humanity,
justice and good faith. It adds that the principal authority, the most impartial
and respectable judge, the organ and regulator, is public opinion ... . It condemns
irregular acts, creates usages and customs, [and] gives sovereign and nal judge-
ments.87
Recent manuals make the same point. The UK military manual, published in
1958, states that no State can aord to be wholly regardless of public and world
opinion.88 The Australian manual emphasizes that the requirement of training in
83 See Greenwood, Historical Development and Legal Basis, in Handbook of Humani-

tarian Law in Armed Conicts 129 (Dieter Fleck ed., 1995).
84 International Court of Justice Requests for Advisory Opinions on the Legality of
Nuclear Weapons Australian Statement, 1996 Austl. Y.B. Intl L. 685, 699 [hereinaf-
ter Australian Statement].
85 Id. at 703.
87 Reglamento para el servicio de campaa, Art. 826 (1882), reprinted in Estado Mayor
del Ejrcito, Manual de derecho de guerra 32930 (MO231, 1986).
88 UK Manual, supra note 54, para. 619.
the law of armed conicts is based in part on the fact that violating that law will
have an adverse impact on public opinion (both national and international). In
the event of any violation, close media scrutiny could leave the [Australian De-
fence Force] and Australia vulnerable to adverse comment and loss of domestic
and international support.89
Whether public opinion has had the eect proclaimed for in the rhetoric of
international law is debatable. Over time, however, its inuence has undoubtedly
grown. Is public conscience as it appears in the Martens Clause, with its moral
overtones, the same as public opinion? Whose public conscience is meant? That
of one belligerent, both or all belligerents, an alliance, a bloc, the United Nations?
By denition, public conscience and public opinion have a popular basis. Under
the inuence of the civil society, nongovernmental organizations (NGOs), and
the media, the common assumption tends to be that public opinion is a force
for good and that it invariably serves humanitarian causes. Alas, this is not al-
ways true. In Slobodan Miloevis Serbia, support for harsh measures against the
Kosovars was, at least tacitly, widespread. Such attitudes are not exceptional in a
world characterized by religious and ethnic hatreds. Bad public opinion is not
always limited to one country. In pre-World War II Europe, anti-Semitism and
fascism were popular. Subject a country or countries to a barrage of hate propa-
ganda and a monster of public opinion will rise. In contemplating public opinion,
Myres McDougal advocated the more selective concept of community expecta-
tions formed by authoritative decision makers. While his approach might not be
generally acceptable, the question remains how to mold public opinion through
the infusion of moderating and humanitarian views to make it worthy of public
conscience. This is a challenge that we cannot ignore.
V. The Clause and the Nuclear Weapons Opinion

The advisory opinion and pleadings in the Nuclear Weapons case provide a use-
ful frame of discussion for analyzing and interpreting the Martens Clause. At
one extreme of the spectrum was the Russian Federation, which asserted that
the formulation of a complete code of the laws of war in 1949 and 1977 had made
the Martens Clause redundant.90 There was general agreement, however, on the
narrowest common interpretation of the Clause; namely, that customary inter-
national law continues to apply after the adoption of a conventional norm. But
broader layers of interpretation inspired strong disagreement. Thus, the United
Kingdom argued:
While the Martens Clause makes clear that the absence of a specic treaty provi-
sion on the use of nuclear weapons is not, in itself, sucient to establish that such
89 Australian Defence Force, Law of Armed Conict Training, para. 7 (DI(G) OPS,
1994).
90 See Rupert Ticehurst, The Martens Clause and the Laws of Armed Conict, Intl Rev.
Red Cross, No. 317, Mar.Apr. 1997, at 125, 127.
26 Chapter 1
weapons are capable of lawful use, the Clause does not, on its own, establish their
illegality.91
In addition, stated the United Kingdom, customary law cannot simply be derived
from general humanitarian principles.92 The United States agreed that, in the ab-
sence of treaty provisions, means of warfare remain subject to customary law but
insisted that the Clause cannot transform public opinion into customary law.93
Other States argued, however, that prohibitions could arise and be gener-
ally binding by virtue of general principles of international law and of humanity,
which do not require the consent of States.94 The Clause was seen as providing
that actions that are not explicitly prohibited by a treaty or customary rule are not
ipso facto permitted and that the conduct of the parties to a conict is judged not
only in accordance with treaties and custom, but also in light of general principles
of international law referred to in the Clause.95 The legality of any particular con-
duct could thus be directly assessed by those principles.
Australia took a position at the broadest end of the interpretive spectrum.
In its oral submissions, Australia, underlining the dynamic development of prin-
ciples of humanitarian law on the use of chemical weapons from the Hague Decla-
ration concerning Asphyxiating Gases of 1899 to the Chemical Weapons Conven-
tion of 1993, stated that [e]ven if the use or threat of nuclear weapons was not
per se inconsistent with elementary considerations of humanity and the dictates
of public conscience in the past, this does not determine whether it is per se in-
consistent with those principles today.96 Dissenting in the Nuclear Weapons case,
Judge Shahabuddeen asserted that the application of the Martens Clause did not
depend on proof of the separate existence of a rule of international law:97 Judge
91 Written statement of the United Kingdom, Nuclear Weapons Advisory Opinion, 1996
ICJ Pleadings (June 2, 1994), reprinted in 1995 Brit. Y.B. Intl L. 712, para. 32.
92 See John Burroughs, The Legality of Threat or Use of Nuclear Weapons 102 (1998).
93 See id. The United States interprets the Martens Clause as recognition of the contin-
ued validity of customary rules that have not been altered by treaty, and of custom as
a potential source of new rules. See Burrus M. Carnahan, Customary Rules of Inter-
national Humanitarian Law, Report on the Practice of the United States 6-2 (unpub-
lished, 1997) (prepared for the ICRC).
94 James Crawford for the Solomon Islands, cited in Burroughs, supra note 92, at 102.
95 See Ticehurst, supra note 90, at 126.
96 Id. at 694.
97 Nuclear Weapons Advisory Opinion, supra note 67, at 408. Compare Prosecutor v.
Kupreki, No. IT9516T Trial Chamber Judgement, para. 525 (Jan. 14, 2000),
where ICTY Presiding Judge Antonio Cassese stated:
True, this Clause may not be taken to mean that the principles of humanity and the
dictates of public conscience have been elevated to the rank of independent sources
of international law, for this conclusion is belied by international practice. However,
this Clause enjoins, as a minimum, reference to those principles and dictates any time
a rule of international humanitarian law is not suciently rigorous or precise: in those
Weeramantry made similar points in his dissenting opinion, stressing the need
for any legal system to draw on and to apply general principles: [B]eyond the
domain of express prohibitions, there lies the domain of the general principles of
humanitarian law ... .98
Referring to the Hague and Geneva Conventions, the Court conrmed the
customary character of fundamental rules of international humanitarian law.99
Specically, the Court found that the Martens Clause was an expression of preex-
isting customary law100 and that its continuing existence and applicability were
beyond doubt. It armed that principles and rules of humanitarian law do apply
to nuclear weapons.101 But, in the absence of specic customary or conventional
prohibitions on the use of nuclear weapons, the Court was not ready to conclude
that their use would necessarily be at variance with the principles and rules of
law applicable in armed conict in any circumstance.102 The Court nonetheless,
regarded the use of nuclear weapons as scarcely reconcilable with respect for
such principles.103 The context of this statement suggests that the Court used the
principle of distinction and the prohibition on causing unnecessary suering as
its yardsticks, rather than principles of humanity and the dictates of public con-
science.
VI. The Current Significance of the Clause

What, then, does the Martens Clause signify for contemporary humanitarian
law? It is generally agreed that the Clause means, at the very least, that the adop-
tion of a treaty regulating particular aspects of the law of war does not deprive the
aected persons of the protection of those norms of customary humanitarian law
that were not included in the codication. The Clause thus safeguards customary
law and supports the argument that what is not prohibited by treaty may not nec-
essarily be lawful. It applies to all parts of international humanitarian law, not only
to belligerent occupation. It argues for interpreting international humanitarian
law, in case of doubt, consistently with the principles of humanity and the dictates
of public conscience. As a customary norm which applies to the use of certain
types of weapons, the prohibition of unnecessary suering, and other fundamen-
tal principles of international humanitarian law, the Martens Clause should be
taken into consideration in evaluating the legality of weapons and methods of
war. In appropriate circumstances, it provides an additional argument against a
instances the scope and purport of the rule must be dened with reference to those
principles and dictates.
99 Id., para. 79.
100 Id. at 259, para. 84.
101 Id. at 260, para. 87.
102 Id. at 262, para. 95.
103 Id.
28 Chapter 1
nding of non liquet. It reinforces a trend, which is already strong in international

institutions and tribunals, toward basing the existence of customary law primarily
on opinio juris rather than actual battleeld practice. It also reinforces the homo-
centric focus of international humanitarian law, while reducing the traditional
inter-State emphasis of the law of war and the weight of reciprocity. It serves as a
powerful vehicle for governments and especially NGOs to push the law to reect
human rights concerns. Where there is already some legal basis for adopting a
more humanitarian position, the Martens Clause enables decision-makers to take
the extra step forward.
In the Nicaragua case, the ICJ held that even if two norms belonging to two
sources of international law appear identical in content, and even if the States in
question are bound by these rules both on the level of treaty-law and on that of
customary international law, these norms retain a separate existence.104 In armed
conicts, however, belligerents have strong interests and may be sorely tempted
to resort to a restrictive reading of the law of war. Read in light of Nicaragua, the
Martens Clause may state the obvious, but it does serve a humanitarian purpose
and is therefore not redundant.
Nevertheless, the Martens Clause does not allow one to build castles of sand.
Except in extreme cases, its references to principles of humanity and dictates of
public conscience cannot, alone, delegitimize weapons and methods of war, espe-
cially in contested cases.
The principles of humanity and the dictates of public conscience have been
restraining factors on the freedom of States to do what is not expressly prohibited
by treaty or custom.105 The Martens Clause has inuenced governments, interna-
tional conferences, and the media, and has therefore been a signicant factor in
the work of international standard-setting conferences, tribunals, and UN rap-
porteurs. I am far less condent, however, that the Martens Clause has had any
inuence on the battleeld, especially in bloody internal conicts such as those in
Algeria, Congo, and Sierra Leone.
Additional prohibitions of particularly objectionable weapons and methods
of war can best be attained by applying such generally accepted principles of hu-
manitarian law as the requirements of distinction and proportionality and the
prohibition of unnecessary suering. This is preferable to pushing the Martens
Clause beyond reasonable limits. Governments are not yet ready to transform
broad principles of humanity and dictates of public conscience into binding law.
The US Department of the Army found it dicult to agree on the meaning and
application of those principles, stating in a publication that such broad phrases
in international law are in reality a reliance upon moral law and public opin-
104 Military and Paramilitary Activities, supra note 19, at 95.

105 See Louise Doswald-Beck, International Humanitarian Law and the Advisory Opin-
ion of the International Court of Justice on the Legality of the Threat or Use of Nuclear
Weapons, Intl Rev. Red Cross, No. 316, Jan.Feb. 1997, at 35, 49.
ion.106 Power and reciprocity, the traditional underpinnings of the law of war,
still clash with the ethical normativity of the Martens Clause. As Oscar Schachter
observed:
It had become evident to international lawyers as it had to others that States that
made and applied law were not governed by morality or natural reason; they acted
for reasons of power and interest. It followed that law could only be ascertained and
determined through the actual methods used by the States to give eect to their po-
litical wills.107
But other trends are equally visible. A U.S. Department of the Air Force publica-
tion, in a statement similarly prepared for reference purposes, attributes several
trends to the principle of humanity. These include the creation of such basic norms
as the prohibition on the iniction of injury or destruction not actually necessary
for the accomplishment of legitimate military purposes, and the prohibition on
causing unnecessary suering. According to this publication, the principles of
humanity spawned the requirement of proportionality and conrmed the basic
immunity of civilians from attack during armed conict.108 Whether one agrees
with these comments or not, it is undeniable that the principle of humanity has
had a major inuence on the development of international humanitarian law and
that some humanitarian restraints can be regarded as its ospring.
Given the reality of power, reciprocity, and the interests of the parties in-
volved in armed conicts, it is a wonder that the Martens Clause has attained
such centrality in international discourse and that progress in humanizing inter-
national humanitarian law, in which this Clause has played an important role, has
been so signicant. Although this development could not have occurred without
the inuence of the ICRC, NGOs, the media, and public opinion, the rhetorical
and ethical code words of the Martens Clause itself have clearly exerted a strong
pull toward normativity.
D. Applicability of International Humanitarian Law
I. The Thresholds of Applicability of Humanitarian Law

The thresholds of applicability of international humanitarian law and the char-
acterization of conicts are among the most dicult and controversial issues in
international humanitarian law. The Geneva Conventions distinguish between
international conicts, as dened in common Article 2, and conicts not of an in-
ternational character under common Article 3. Conicts involving lower intensity
violence that do not reach the threshold of an armed conict are implicitly distin-
106 2 U.S. Dept of the Army, International Law 15 (No. 2716121962), quoted in Mer-
on, supra note 5, at 36.
107 Oscar Schachter, International Law in Theory and Practice 36 (1991).
108 U.S. Dept of the Air Force, supra note 54, at 16.
30 Chapter 1
guished from non-international armed conicts to which the provisions of that

Article are applicable. The Additional Protocols distinguish among international
armed conicts as dened in Article 1 of Protocol I, non-international armed
conicts109 as dened in Article 1 of Protocol II, and situations of internal distur-
bances and tensions, which are below the thresholds of applicability of Protocol
II. Article 8(2)(f ) of the Rome Statute of the International Criminal Court (ICC)
has further complicated the picture by declaring that the provisions in Article
8(2)(e) apply to armed conicts that take place in the territory of a State when
there is a protracted armed conict between governmental authorities and organ-
ized armed groups or between such groups. This language draws on the ICTY
appellate decision in the Tadi case (1995). It should not be considered as creating
yet another threshold of applicability, but it may well exacerbate the previous lack
of clarity.110
The characterization of the conict, or the thresholds, determine which, if
any, rules of international humanitarian law will be applicable. The rst threshold,
common Article 2, determines the parameters of international armed conicts.
The second threshold, common Article 3, determines the applicability of interna-
tional humanitarian law pertaining to non-international armed conicts in that
Article. Since common Article 3 does not provide for a denition of conicts not
of an international character, it is easy for governments to contest the Articles
applicability.111 Even with a better denition of non-international armed conicts,
however, a government might contend that the Article is not applicable to its
territory. Distinguishing between international and non-international conicts is
particularly dicult in contemporary conict situations, which often present as-
pects of both. These mixed or internationalized conicts create special prob-
lems, as illustrated by the contradictory decisions initially rendered by dierent
Chambers of the ICTY on the characterization of the conicts in the former Yu-
goslavia. There is no agreed-upon mechanism available for characterizing situa-
tions of violence.
The threshold triggering the application of Additional Protocol II is high.
The Protocol applies to situations at or near the level of a full-scale civil war112
or belligerency. But States involved rarely recognize such situations. In practice,
therefore, Protocol II has seldom been formally applied. Even in international
armed conicts, the applicability of the Fourth Geneva Convention has been con-
109 I.e., conicts which take place in the territory of a [State] between its armed forces
and dissident armed forces or other organized armed groups which, under respon-
sible command, exercise such control over part of its territory as to enable them to
carry out sustained and concerted military operations and to implement this Proto-
col.
110 Meron, supra note 6, at 309.
111 Minimum Humanitarian Standards: Analytical Report of the Secretary-General Sub-
mitted Pursuant to Commission on Human Rights Resolution 1997/21, UN Doc. E/
CN.4/1998/87, para. 74 (1998).
112 Id., para. 79.
tested (in the West Bank, by Israel; in Kuwait, by Iraq; in East Timor, by Indone-
sia). These are situations in which the applicability of the Geneva Conventions as
a whole or of common Article 3 has been denied. The principal diculty regard-
ing the application of international humanitarian law has been, as George Aldrich
observed, the refusal by States to apply the conventions in situations where they
should be applied. Attempts to justify such refusals are often based on dierences
between the conicts presently encountered and those for which the conventions
were supposedly adopted.113 As Richard Baxter noted 30 years ago, [t]he rst
line of defense against international humanitarian law is to deny that it applies at
all.114 However, the applicability of the Geneva Conventions, including Geneva
Convention No. IV to the conict in Iraq and its occupation, including including
Geneva Convention No. IV
Fortunately, thresholds of applicability have recently been blurred and, at
times, deliberately disregarded. The recently published ICRC study on rules of
customary humanitarian law distinguishes only between international and non-
international armed conicts. It does not adopt the three-tiered approach of the
Geneva Conventions and the Additional Protocols. Moreover, the ICRC study
seeks a broader recognition that many rules are applicable both to international
and to non-international conicts. Many military manuals do not explicitly make
the distinction between rules applicable in non-international conicts and rules
applicable in international conicts (although they often indicate the relevant
treaty provision). Some armed forces now recognize that the same rules of inter-
national humanitarian law should be applicable in all situations involving armed
conict. Thus, an Instruction issued by the Chairman of the U.S. Joint Chiefs of
Sta states that [t]he Armed Forces of the United States will comply with the
law of war during the conduct of all military operations and related activities
in armed conict, however such conicts are characterized.115 The regulations
promulgated by the Secretary-General of the United Nations on the observance
of international humanitarian law by UN forces restate a broad set of protec-
tive norms distilled from humanitarian law treaties without making any distinc-
tion between international and non-international conicts.116 The U.S. approach
brings about a comprehensive application of international humanitarian law and
should be emulated by other countries. The trend toward disregarding the need to
113 Aldrich, Human Rights and Armed Conict: Conicting Views, 67 ASIL Proc. 141, 142
(1973).
114 Baxter, Some Existing Problems of Humanitarian Law, in The Concept of Interna-
tional Armed Conict: Further Outlook 1, 2 (Proceedings of the International Sym-
posium on Humanitarian Law, Brussels 1974).
115 Chairman, Joint Chiefs of Sta Instr. 5810.01, Implementation of the DOD Law of
War Program (12 August 1996), quoted in Corn, When Does the Law of War Apply:
Analysis of Department of Defense Policy on Application of the Law of War, The Army
Lawyer, June 1998, 17.
116 U.N. Secretary-General, Bulletin on the Observance by U.N. Forces of International
Humanitarian Law, U.N. Doc. ST/SGB/1999/13, reprinted in 38ILM 1656 (1999).
32 Chapter 1
characterize an armed conict as international or not is apparent with regard to

both general principles of humanitarian law and limitations or prohibitions in the
regulation of weapons and methods of war. Both are increasingly being applied
to internal armed conicts governed by common Article 3. Such is the case with
the revised Protocol II (to the 1980 Convention on Certain Conventional Weap-
ons) on Prohibitions or Restrictions on the Use of Mines, Booby-traps and other
Devices (1996). Some instruments impose rules for all circumstances, includ-
ing the Ottawa Convention on the Prohibition of the Use, Stockpiling, Produc-
tion and Transfer of Anti-Personnel Mines and on their Destruction (1997), the
Convention on the Prohibition of Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on their Destruction (a 1972
arms control treaty) and the Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on their Destruction
(1993, which concerns both arms control and use).
The Second Protocol to the 1954 Hague Convention for the Protection of
Cultural Property in the Event of Armed Conict applies also to non-interna-
tional armed conicts.117 Even more recently, in December 2001, at the suggestion
of the United States, the scope of the Convention on Prohibitions and Restric-
tions on the Use of Certain Conventional Weapons which May be Deemed to be
Excessively Injurious or to Have Indiscriminate Eects was amended to apply also
to common Article 3 situations. The Convention will thus apply in any interna-
tional or non-international armed conict to which the Geneva Conventions ap-
ply.118 The amended Article 1(7), however, leaves open the scope of the application
of future protocols to the Weapons Convention. Unless it otherwise provides,
a new protocol would apply to both international and non-international armed
conicts.
The ICTY Appeals Chamber has encouraged the blurring of the distinction
between international and non-international conicts. According to the Cham-
ber, one of the factors leading to this development has been
the impetuous development and propagation in the international community of hu-

man rights doctrines, particularly after the adoption of the Universal Declaration of
Human Rights in 1948, has brought about signicant changes in international law,
notably in the approach to problems besetting the world community. A State-sover-
eignty-oriented approach has been gradually supplanted by a human-being-oriented
approach. Gradually the maxim of Roman law hominum causa omne jus constitutum
est (all law is created for the benet of human beings) has gained a rm foothold in
the international community as well. It follows that in the area of armed conict the
distinction between inter-State wars and civil wars is losing its value as far as human
beings are concerned. Why protect civilians from belligerent violence, or ban rape,
117 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural
Property in the Event of Armed Conict, Mar. 26, 1999, 38 ILM 769 (1999).
118 David Kaye and Steven A. Solomon, The Second Review Conference of the 1980 Con-
vention on Certain Conventional Weapons, 96 AJIL 922, 929 (2002).
torture or the wanton destruction of hospitals, churches, museums or private prop-

erty, as well as proscribe weapons causing unnecessary suering when two sovereign
States are engaged in war, and yet refrain from enacting the same bans or providing
the same protection when armed violence has erupted only within the territory of
a sovereign State?119
In the same vein, in the recent case of the Prosecutor v. Delali (elebii case)
(Judgement of 20 February 2001), the Appeals Chamber held that because the
majority of contemporary conicts are internal, it would be against the very pur-
pose of the Geneva Conventions, which is to protect the dignity of the human
person, to maintain a distinction between the regime of international and of non-
international armed conicts and their criminal consequences.
Progress in the identication of customary rules and in States readiness to
recognize the extension of rules to non-international armed conicts has been
quite remarkable in recent years. The establishment of the two ad hoc interna-
tional criminal tribunals and their subsequent jurisprudence, the drafting and the
adoption of the Statute of the International Criminal Court, and even the ICRC
study of customary rules of international humanitarian law, have contributed to
this development.120 A few years ago, the UN Secretary-General concluded that
it might well be that the identication of customary rules obviates some of the
problems which exist in the scope of the existing treaty law, and will assist in the
identication of fundamental standards of humanity.121 Finally, the codication in
the ICC Statute of the principle that crimes against humanity can be committed
in all situations, without regard to thresholds of armed conicts, and that they
can be committed not only by States, but also in furtherance of the policy of non-
State entities, is a signicant achievement.
II. Personal Applicability of Humanitarian Law Treaties: Redefining

Protected Persons
Because of its inter-State, reciprocity-based origins, the law of war has, tradi-
tionally, protected enemy persons, but not nationals of a State from their own
government. Although this paradigm still prevails in some respects, it is changing
by means of a process in which the application of the law of war is being assimi-
lated to human rights, a system which addresses responsibility of governments
vis--vis populations over which they exercise power, authority or jurisdiction,
regardless of nationality. Segments of the Geneva Conventions and Protocols, for
119 The Prosecutor v. Tadi, Case IT-94-AR72, para. 97 (1995).

120 Minimum Humanitarian Standards, supra note 111, paras. 86-87.
121 Id.; also Fundamental Standards of Humanity: Report of the Secretary-General Sub-
mitted Pursuant to Commission Resolution 1998/29, UN Doc. E/CN.4/1999/92, pa-
ras. 23-34 (1999).
34 Chapter 1
example, now apply to the relations between a State and its citizens, especially in
internal conicts.122
Pursuant to Article 4 of the Geneva Convention IV, which reects the tradi-
tional State-centric, reciprocity-based approach of the law of war, the Convention
applies only to protected persons, that is, persons who nd themselves, in case
of a conict or occupation, in the hands of a party to the conict or occupying
power of which they are not nationals. In such cases, nationals of a State bound
by the Convention are protected. Nationals of a neutral State who nd themselves
in the territory of a belligerent State and nationals of a cobelligerent State are not
protected persons while their State of nationality maintains normal diplomatic
representation in the State where they are found.
A literal interpretation of Article 4s requirements could lead to a denial of
protected status to people in Bosnia-Herzegovina during the war that took place
in that country in the early 1990s. In the ICTY Appeals Chambers 1995 Tadi de-
cision, the Appeals Chamber insisted that Bosnian Muslims in the power of Bos-
nian Serbs were not persons in the hands of a party to the conict of which they
are not nationals and thus could not be protected persons under Convention
IV.123 In a later (1997) decision, Trial Chamber II, applying a particular interpreta-
tion of the Nicaragua imputability test, held that the forces of Republika Srpska
could not be considered as de facto organs or agents of the Government of the
Federal Republic of Yugoslavia (Serbia and Montenegro)124 and hence, the con-
ict did not constitute an international armed conict to which the grave breach-
es provisions of the Geneva Conventions would apply. These decisions were mis-
taken.125 Given the character and the scope of FRYs involvement in the conict,
the conict could be seen as an international armed conict.126 Of course, in these
cases, two interrelated but distinct questions arose. One concerned the quali-
cation of the conict as international. The other was the denition of protected
persons.
The literal application of Article 4 in the Yugoslav context was unacceptably
legalistic. This would also be true of other cases involving conicts among contest-
ing ethnic or religious groups. In many contemporary conicts, the disintegration
of States and the quest to establish new ones make nationality too impractical a
concept on which to base the application of international humanitarian law.
In light of the protective goals of the Geneva Conventions, in situations like
the one in the former Yugoslavia, Article 4s requirement of a dierent national-
122 See generally, Meron, Human Rights in Internal Strife, supra note 2, at 30-33.
123 Prosecutor v. Duko Tadi, Case No. IT-94-1-A72, Decision on the Defence Motion
for Interlocutory Appeal on Jurisdiction of 2 October 1995, para. 76.
124 Prosecutor v. Duko Tadi, Case No. IT-94-1-T, Judgment of 7 May 1997, para. 607.
125 See Meron, Classication of Armed Conict in the Former Yugoslavia: Nicaraguas
Fallout, 92 AJIL 236 (1998), reprinted in Meron, supra note 6, at 286. On classication
of the conicts in the Former Yugoslavia, see also Meron, War Crimes in Yugoslavia
and the Development of International Law, 88 AJIL 79 (1994).
126 See id.
ity should be construed as referring to persons in the hands of an adversary. In-

deed, the ICRCs Commentary to Article 4 states that a countrys own nationals
were excluded from the denition of protected persons to avoid interfering in a
States relations with its nationals,127 a concern obviously not relevant to the cir-
cumstances of the Tadi case, in which each ethnic group considered members
of other ethnic groups as enemies and, often, foreigners. The interpretation of
international humanitarian law should be directed at serving protective goals and
avoid paralyzing the legal process.
In the elebii case, an ICTY Trial Chamber moved in this direction. First,
it concluded that the conict was an international one. Second, it claried the ap-
plication of the nationality test in Article 4:
263. Bearing in mind the relative merits of the eective link and the agency ap-
proaches, this Trial Chamber wishes to emphasize the necessity of considering the
requirements of article 4 of the Fourth Geneva Convention in a more exible man-
ner. The provisions of domestic legislation on citizenship in a situation of violent
State succession cannot be determinative of the protected status of persons caught up
in conicts which ensue from such events. The Commentary to the Fourth Geneva
Convention charges us not to forget that the Conventions have been drawn up rst
and foremost to protect individuals, and not to serve State interests and thus it is
the view of this Trial Chamber that their protections should be applied to as broad a
category of persons as possible. It would, indeed, be contrary to the intention of the
Security Council, which was concerned with eectively addressing a situation that it
had determined to be a threat to international peace and security, and with ending
the suering of all those caught up in the conict, for the International Tribunal to
deny the application of the Fourth Geneva Convention to any particular group of
persons solely on the basis of their citizenship status under domestic law.
264. The law must be applied to the reality of the situation before us ...
265. ... it is clear that the victims of the acts alleged in the Indictment were arrested
and detained mainly on the basis of their Serb identity. As such, and insofar as they
were not protected by any of the other Geneva Conventions, they must be considered
to have been protected persons within the meaning of the Fourth Geneva Conven-
tion, as they were clearly regarded by the Bosnian authorities as belonging to the op-
posing party in an armed conict and as posing a threat to the Bosnian State.
266. This interpretation of the Convention is fully in accordance with the develop-
ment of the human rights doctrine which has been increasing in force since the mid-
dle of this century. It would be incongruous with the whole concept of human rights,
which protect individuals from the excesses of their own governments, to rigidly ap-
ply the nationality requirement of article 4, that was apparently inserted to prevent
sons in Time of War, supra note 17, at 46.
36 Chapter 1
interference in a States relations with its own nationals. Furthermore, the nature of
the international armed conict in Bosnia and Herzegovina reects the complexity
of many modern conicts and not, perhaps, the paradigm envisaged in 1949. In order
to retain the relevance and eectiveness of the norms of the Geneva Conventions, it
is necessary to adopt the approach here taken.128
The purpose of the Geneva Conventions and Protocols is to protect all persons
on the adverse side who nd themselves in the hands of a Party to a conict as
prisoners of war, medical personnel or civilians. Article 50 of Additional Protocol
I denes a civilian as any person who does not belong to one of the categories
of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Geneva Con-
vention and in Article 43 of this Protocol. In case of doubt whether a person is a
civilian, that person shall be considered to be a civilian. The ICRC Commentary
to the Fourth Geneva Convention notes:
Every person in enemy hands must have some status under international law: he is
either a prisoner of war and, as such, covered by the Third Convention, a civilian
covered by the Fourth Convention, or again, a member of the medical personnel of
the armed forces who is covered by the First Convention. There is no intermediate
status; nobody in enemy hands can be outside the law.129
In accepting a broader interpretation of the grave breaches provisions, the ICTY

in the elebii case130 quoted the ICRC Commentary to the Fourth Convention,
namely that the Conventions have been drawn up rst and foremost to protect
individuals, and not to serve State interests.131
In the appeal of the Tadi case (July 15, 1999), the ICTY Appeals Chamber
gave its imprimatur to a new interpretation of protected persons.132 First, depart-
ing from the Trial Chambers use of Nicaraguas imputability test, the Appeals
Chamber found that at the relevant time and place, there was an international
armed conict:
The Appeals Chamber therefore concludes that, for the period material to this case
(1992), the armed forces of the Republika Srpska were to be regarded as acting under
the overall control of and on behalf of the FRY. Hence, even after 19 May 1992 [dec-
128 Prosecutor v. Zejnil Delali et al., Case IT-96-21-T, Judgment of 16 November 1998,
paras. 263-266 (footnotes omitted).
130 Prosecutor v. Zejnil Delali et al., supra note 128, paras. 271-273.
132 Prosecutor v. Duko Tadi, International Criminal Tribunal for the Former Yugoslavia
(Appeals Chamber), Case No. IT-94-1-A, Judgment of 15 July 1999.
laration by FRY of the withdrawal of its forces from Bosnia] the armed conict in
Bosnia and Herzegovina must be classied as an international armed conict.133
It followed that even if the victims and the perpetrators were nationals of Bosnia
and Herzegovina, the Bosnian Serb forces acted as de facto organs of another
State, the FRY. Since the victims found themselves in the hands of armed forces
that were in eect of a State of which they were not nationals, they were therefore
protected persons.
Abandoning the literal/legalistic approach requiring dierent nationalities
for the denition of protected persons, the Appeals Chamber held that Article 4
of Geneva Convention IV was predicated on conditions of eective diplomatic
protection and allegiance. The formal bond of nationality was less important than
substantial allegiance, which could be based on ethnicity. Since the victims did
not owe allegiance to and did not enjoy diplomatic protection from the authority
of the Republika Srpska, they could be regarded as possessing dierent nationali-
ties for Article 4s purposes.134 It followed, therefore, that even if all the nationals
of the FRY had the same nationality, as they had before the adoption of a citizen-
ship act by Bosnia and Herzegovina, Article 4 would apply and the victims would
still be protected persons. The Appeals Chamber stated:
This legal approach, hinging on substantial relations more than on formal bonds, be-
comes all the more important in present-day armed conicts. While previously wars
were primarily between well-established States, in modern inter-ethnic armed con-
icts such as that in the former Yugoslavia, new States are often created during the
conict and ethnicity rather than nationality may become the ground for allegiance
... Allegiance to a party to the conict and, correspondingly, control by this Party over
persons in a given territory may be regarded as a crucial test.135
The Bosnian armed forces acted as de facto organs of another State, namely, the
FRY. Thus, the requirements set out in Article 4 of Geneva Convention IV are met:
the victims were protected persons as they found themselves in the hands of armed
forces of a State of which they were not nationals.
It might be argued that before 6 October 1992, when a Citizenship Act was
passed in Bosnia and Herzegovina, the nationals of the FRY had the same nationality
as the citizens of Bosnia and Herzegovina, namely the nationality of the Socialist Fed-
eral Republic of Yugoslavia. Even assuming this proposition is correct, the position
would not alter from a legal point of view ... Article 4 ... if interpreted in the light of its
object and purpose, is directed to the protection of civilians to the maximum extent
possible. It therefore does not make its applicability dependent on formal bonds and
purely legal relations. Its primary purpose is to ensure the safeguards aorded by the
Convention to those civilians who do not enjoy diplomatic protection, and correla-
133 Id., at paras. 160, 162.

134 Id., at para. 169.
135 Id., at para. 166.
38 Chapter 1
tively are not subject to the allegiance and control, of the State in whose hands they
may nd themselves ... Article 4 intends to look at the substance of relations, not to
their legal characterisation as such.136
Subsequent jurisprudence has conrmed the Tadi approach. In Prosecutor v.

Aleksovski, the Appeals Chamber agreed that in certain circumstances, Article
4 may be given a wider construction so that a person may be accorded protected
status, notwithstanding the fact that he is of the same nationality as his captors.137
In the elebii case, the Appeals Chamber similarly stated that [t]he nationality
of the victims for the purpose of the application of Geneva Convention IV should
not be determined on the basis of formal national characterisations, but rather
upon an analysis of substantial relations, taking into consideration the dierent
ethnicity of the victims and the perpetrators, and their bonds with the foreign
intervening State.138
These decisions reect a realistic concern for the protection of victims of
armed conicts and enhance the humanization of international humanitarian
law.
E. Protection of Victims
I. Individual Rights and Duties and the Inalienability of Rights

While even the early Geneva Conventions conferred protections on individuals,
as well as on States, whether those protections belonged to the contracting States
or to the individuals themselves was unclear at best. The treatment to which those
persons were entitled was not necessarily seen as creating a body of rights. The
1929 Geneva Prisoners of War Convention paved the way for recognition of indi-
vidual rights by using the term right in several provisions.139 It was not until the
1949 Conventions, however, that the existence of rights conferred on protected
persons was armed140 through several key provisions. These provisions are of
cardinal importance: they claried that rights are granted to the protected per-
sons themselves and they introduced into international humanitarian law or the
law of war an analogy to jus cogens, which is so central to human rights law. This
analogue in humanitarian law preceded by two decades the recognition of jus
cogens in the Vienna Convention on the Law of Treaties. According to Common
Article 6/6/6/7, agreements by which either States or the individuals themselves
136 Id., at paras. 167-168.

137 Case IT-95-14/1-A, Judgement of 24 March 2000, para. 151.
138 Case No. IT-96-21-A, Judgement of 20 February 2001, para. 84.
139 Supra note 28, Arts. 42, 62 and 64.
purport to restrict the rights of protected persons under the Conventions will
have no eect. Common Article 6/6/6/7 reads in part:
No special agreement shall adversely aect the situation of the wounded and sick, of
members of the medical personnel or of chaplains, as dened by the present Conven-
tion, nor restrict the rights which it confers upon them. (Emphasis added).
Humanitarian laws notion of jus cogens diers conceptually from that in Article
53 of the Vienna Convention on the Law of Treaties. Like jus cogens, it is sup-
posed to bring about the nullity of the proscribed agreements. Unlike jus cogens,
however, it derives from explicit provisions in the Geneva Conventions, raising
potential conicts between invalidity of the subsequent agreement and responsi-
bility for violations of the Conventions. Of course, most provisions of the Geneva
Conventions are declaratory of customary law and some, but only some, rise to
the level of jus cogens. Agreements restricting rights of protected persons may
thus in some, but not all, cases violate the classic concept of jus cogens.
Common Article 6/6/6/7 was adopted in reaction to agreements during
World War II between belligerents, such as that between Germany and the Vichy
government which, under pressure by the former, deprived French prisoners of
war of certain protections under the 1929 POW Convention. States participating
in the 1949 conference resolved not to leave the product of their labor to the mer-
cy of modications dictated by chance, events or under the pressure of wartime
circumstances.141 Common Article 7/7/7/8 further provided that: [Protected
persons] may in no circumstances renounce in part or in entirety the rights se-
cured to them by the present Convention, and by the special agreements referred
to in the foregoing Article, if such there be.
A proposal at the Conference to replace the phrase confers upon them in
common Article 6/6/6/7 by the phrase stipulates on their behalf was rejected
and the wording proposed in the ICRC draft was maintained.142 The ICRC Com-
mentary recognizes that:
In selecting this term the International Committee had doubtless been inuenced by
the concomitant trend of doctrine, which also led to the universal proclamation of
Human Rights, to dene in concrete terms a concept which was implicit in the earlier
Conventions. But it had at the same time complied with the unanimous recommen-
dation of the Red Cross Societies, meeting in conference in Geneva in 1946, to confer
upon the rights recognized by the Conventions a personal and intangible character
40 Chapter 1
allowing the beneciaries to claim them irrespective of the attitude adopted by their
home country.143
The ICRC Commentary states that the prohibition upon renunciation of rights is
absolute. This prohibition was adopted in light of experience showing that per-
sons may be pressured into making a particular choice, but that proving duress or
pressure is dicult. Several provisions of the Geneva Conventions, Articles 5 and
27 of the Fourth Geneva Convention for example, similarly use the language of
rights, privileges entitlements or claims. States may not waive such rights.
Article 5 of the Third Geneva Convention confers on persons who have commit-
ted belligerent acts and fallen into the hands of the enemy the protection of the
Convention until such time as their status has been determined by a competent
tribunal. Obviously, such persons thus have the right of access to a competent
tribunal. Article 75 of Additional Protocol I contains a broad catalogue of human
rights to which individuals are entitled even against their own State.
The principle that States may through treaties grant to individuals direct
rights or impose direct obligations on them without a previous act of transforma-
tion of norms of international law into national law was recognized already by
the Permanent Court of International Justice in its Advisory Opinion concerning
Jurisdiction of the Courts of Danzig (1928).144 Direct rights for individuals, and
sometimes direct obligations, are now commonplace in human rights treaties
and declarations. They are invoked and enforced by international bodies and, fre-
quently, by national courts. The Permanent Courts assumption, in 1928, was that
such rights and duties as were conferred upon individuals by treaties would be
enforced by national courts.
The law of war has always operated on the assumption that its rules bind not
only States but also their nationals.145 Traditionally, violations of the laws and cus-
toms of war by soldiers could only be prosecuted by either their national State or
the captor State. Increasingly, however, violations of the laws and customs of war,
genocide and crimes against humanity are recognized as justifying third-country
prosecution under the principle of universality of jurisdiction.146 Under the Ge-
neva Conventions, all Contracting Parties have the duty either to prosecute or to
143 Id., citing the Report on the Work of the Preliminary Conference of National Red
Cross Societies for the Study of the Conventions and of Various Problems relative to
the Red Cross (Geneva, July 26-August 3, 1946), Geneva, 1947, p. 71.
144 P.C.I.J., Ser. B. No. 15, at 17-18 (Advisory Opinion of March 3, 1928); Rosalyn Higgins,
Conceptual Thinking about the Individual, in International Law: A Contemporary
Perspective 476 (Richard Falk, Friedrich Kratochwil & Saul H. Mendlovitz eds. 1985);
Janis, Individuals as Subjects of International Law, 17 Cornell Intl L. J. 61 (1984), For
a discussion of the rights and obligations of individuals in human rights and humani-
tarian law, see Meron, Human Rights in Internal Strife, supra note 2, at 33-40.
145 Lassa Oppenheim, 1 International Law 341 (Hersch Lauterpacht ed., 1955).
146 Meron, International Criminalization of Internal Atrocities, 89 AJIL 554 (1995), re-
printed in Meron, supra note 6, at Ch.XIII.
extradite persons alleged to have committed grave breaches, or to have ordered

that they be committed.
The creation of the two ad hoc international criminal tribunals for the for-
mer Yugoslavia and for Rwanda, and the adoption, in July 1998, of the Rome Stat-
ute of the International Criminal Court signal an important change in the status
of individuals as subjects of international law. Their violations of the law of war,
and of certain fundamental human rights, including those protected by common
Article 3, and crimes against humanity, which could under some national laws be
prosecuted before national courts,147 can now be prosecuted directly before inter-
national tribunals without the interposition of national law. This is an important
advance, especially given the high standards of due process applied by interna-
tional courts. Under the Rome Statute, establishing a crime against humanity no
longer requires any nexus with an armed conict. The jurisprudence of the ICTY
recognizes that such a nexus is not required by customary law, even though it is
required by its Statute. The norms protected are in fact indistinguishable from
fundamental human rights. International humanitarian law/law of war and their
institutions have thus become central to the protection of human rights. More-
over, the establishment of direct criminal responsibility for members of rebel forc-
es and members of organizations committing crimes against humanity will lessen
the impact of the theoretical diculties of coherently explaining the obligations
of such persons under international law when acting for non-State entities.148
II. Repatriation of Prisoners of War and Personal Autonomy

Human rights, personal autonomy and freedom of choice were critical not only
in the drafting of the 1949 Geneva Conventions, but also in their evolving inter-
pretation. The notion of rights, and the idea that those rights belong to the indi-
vidual, particularly aected the interpretation of the Third Conventions language
governing the repatriation of prisoners of war at the end of hostilities. The Regu-
lations annexed to the Hague Convention IV on the Laws and Customs of War
(1899/1907) provided only that the repatriation of prisoners of war should be car-
ried out as quickly as possible after the conclusion of peace.149 But as World War I
had shown, the conclusion of peace could come considerably later than the actual
147 E.g., Under the Criminal Code of the Socialist Republic of Yugoslavia, International
Tribunal for the Prosecution of Persons Responsible for Serious Violations of Inter-
national Humanitarian Law Committed in the Territory of Former Yugoslavia, Deci-
sion on the Defence Motion for Interlocutory Appeal on Jurisdiction, The Prosecutor
v. Tadi, Case IT-94-AR72, para. 135 (1995).
sons in Time of War, supra note 17, at 36; Baxter, Jus in Bello Interno: The Present and
Future Law, in Law and Civil War in the Modern World 518, 527-28 (John Moore ed.,
1974).
149 Hague Regulations Respecting the Laws and Customs of War on Land annexed to
Hague Convention No. IV, supra note 25, Art. 20.
42 Chapter 1
end of hostilities. The 1929 Convention relative to the Treatment of Prisoners of

War attempted therefore to expedite repatriation by stipulating that it should, if
possible, take place as soon as an armistice had been concluded.150 World War II
further exposed the inadequacies of both the Hague and the Geneva formula-
tion.151 No formal armistice or peace treaty was concluded at the end of the war,
and only the Paris Peace Treaties of 1947 and the 1955 Austrian State Treaty in-
cluded clauses concerning the repatriation of prisoners of war.152
Article 118 of the Third Geneva Convention therefore provides that
[p]risoners of war shall be released and repatriated without delay after the cessa-
tion of active hostilities.153 Their repatriation is not conditional on the conclusion
of an armistice or a peace treaty.154 If no agreement is concluded, prisoners of war
must be released unilaterally.155 In practice, however, negotiations and some kind
of mutuality have proved necessary.
The language of Article 118 is categorical and no reference is made to the
wishes of the prisoners themselves, thus presenting a major human rights dilem-
ma. The prisoner has a clear right to be repatriated; the detaining country has a
similar obligation to return the prisoner to his country. These provisions protect
prisoners from pressure by the detaining country to reject repatriation. But they
take no account of a prisoner of war who genuinely refuses to be repatriated to his
own country, and especially a prisoner who fears persecution in that country for
reasons such as race, religion, or political views. The Soviet Unions insistence on
the unconditional repatriation from Germany of World War II Soviet prisoners
was of course a major factor in the adoption of Article 118.
The most dicult question raised by Article 118 is whether prisoners of war
may be repatriated without their consent. Should rights of the State of nationality
prevail over personal choice (leaving aside the question of the right to asylum)?
At the 1949 Conference, forced repatriations were not condemned.156 A large ma-
jority rejected an Austrian proposal to add to Article 118: prisoners of war shall
be entitled to apply for their transfer to any other country [than their country
150 Commentary on the Geneva Convention (III) relative to the Treatment of Prisoners
of War 541 (Jean de Preux ed., Jean Pictet, gen. ed., 1960). See Convention relative to
the Treatment of Prisoners of War, 27 July 1929, supra note 28, Art. 75.
151 Dinstein, The Release of Prisoners of War, in Studies and Essays on International Hu-
manitarian Law and Red Cross Principles in Honour of Jean Pictet 37, 43 (Christophe
Swinarski ed., 1984).
152 Id., at 44.
153 Geneva Convention relative to the Treatment of Prisoners of War, supra note 35, Art.
118. See generally, Christiane Shields Delessert, Release and Repatriation of Prisoners
of War at the End of Active Hostilities: A Study of Article 118, Paragraph 1 of the Third
Geneva Convention relative to the Treatment of Prisoners of War (1977).
154 Dinstein, The Release of Prisoners of War, supra note 151, at 44.
155 Id.
156 Charmatz and Witt, Repatriation of Prisoners of War and the 1949 Geneva Conven-
tion, 62 Yale L.J. 391, 401 (1953).
of origin] which is ready to accept them.157 The reasons for this rejection were,
however, related to the availability of asylum and the fear of abuse by the detain-
ing powers.158
The repatriation of North Korean and Chinese prisoners of war was one of
the major issues in the armistice negotiations at the end of the hostilities of the
Korean War. In October 1952, the United Nations Unied Command stated:
The United Nations Command is willing to return all prisoners excepting those who
would violently resist repatriation. The Communists, however, have insisted on the
return of all prisoners by force if necessary. An issue of principle has thus been posed
on which the Unied Command cannot yield without disregard for the fundamental
principles of human rights and individual freedom embodied in the Charter.159
North Korea, China and the USSR contended that under Article 118 of the Third
Geneva Convention, the obligation to repatriate all prisoners of war was absolute
and that Article 7 provided that prisoners of war could not waive their rights.
The UN Command argued that forcible repatriation was inconsistent with the
humanitarian basis, and thus the spirit, of the Geneva Convention.160
As Mayda has observed, the interpretation of Article 118 rested on whether
the right corresponding to the duty of the State to repatriate prisoners of war was
a right of the prisoner to be repatriated or the right of his State to have him
repatriated. The USSRs view was that the duty is owed to the State of origin, and
consequently, they must be repatriated irrespective of their wishes.161 The other
view, based on Article 6 (rights conferred on POWs), could lead to the conclusion
that
the convention must be read in the context of contemporary international law which
has established human rights, such as personal freedom and inviolability, as legal
rights under the United Nations Charter, and is in the stage of their specication
in the Declaration of Human Rights and the de lege ferenda Covenant on Human
Rights.162
of War, supra note 150, at 542.
158 Mayda, The Korean Repatriation Problem and International Law, 47 AJIL 414, 433
(1953); also Charmatz & Witt, supra note 156, at 402-405.
159 Special Report by the Unied Command under the United States, Letter dated 18
October 1952 from the Chairman of the United States Delegation to the General As-
sembly of the United Nations, addressed to the Secretary-General, 18 October 1952,
UN Doc. A/2228, at 2-3.
160 Id., at 18-19.
161 Mayda, supra note 158, at 435.
162 Id.
44 Chapter 1
The General Assembly supported the Unied Commands position and armed
that force shall not be used against prisoners of war to prevent or eect their
return to their homelands, and that they shall at all times be treated humanely.163
The issue was nally resolved in mid-1953 by a special agreement. [T]he prison-
ers who [had] not exercised their right to be repatriated164 were taken into the
custody of a Neutral Nations Repatriation Commission. Representatives of the
States of origin were entitled to have access to the prisoners, explain their rights
and inform them about their full freedom to return home. Dinstein has noted
that
the point of departure is that every prisoner of war has, by right, a free choice wheth-
er or not to return to his motherland ... . The option of repatriation is granted to the
prisoner of war individually rather that to one of the two concerned States (the Power
of Origin and the Detaining Power).165
Although the initial position of the United Nations Command was the principle
of voluntary repatriation, the governing principle was later transformed into
the more limited no forced repatriation, i.e., repatriation that was not resisted
by force.
The question of forced repatriation arose again after each of the two Gulf
Wars.166 Both the ICRC and UN investigators found that Iraqi prisoners taken
during the Iran-Iraq war were subjected to ideological and political pressure,
contrary to the Convention and forced [to participate] in demonstrations de-
crying the Iraqi Government.167 Some Iranian prisoners asked UN investigators
whether at the end of the hostilities they would be returned to Iran without their
consent.168 The ICRC questioned prisoners as to their wishes. Those wishing to
remain in the territory of the detaining State were allowed to do so.169 Noting that
some Iraqi prisoners of war had been released locally without notication to the
ICRC or to Iraq, the ICRC considered that these people retain prisoner-of-war
163 General Assembly Resolution 610 (VII), 7 GAOR (Supp. No. 20), at 3, UN Doc.
A/2361, para. 2. (1952).
164 Agreement on Prisoners of War, signed at Panmunjom, June 8, 1953, reprinted in 47
AJIL, supp., 180, 182.
165 Dinstein, supra note 151, at 41.
166 See generally, Meron, Prisoners of War, Civilians and Diplomats in the Gulf Crisis, 85
AJIL 104 (1991).
167 Quigley, Iran and Iraq and the Obligations to Release and Repatriate Prisoners of
War After The Close of Hostilities, 5 Am. U.J. Intl & Poly 73, at 81 (citing ICRC com-
muniqus) (1989). Also, Report of the Mission dispatched by the Secretary General
on the situation of prisoners of war in the Islamic Republic of Iran and Iraq, UN. Doc.
S/20147, Annex, para. 78 (1988).
168 Quigley, supra note 167, at 82.
169 Id.; International Committee of the Red Cross, 1991 Annual Report, at 112.
status and must be allowed to decide, in particular when a general repatriation

takes place, whether or not they wish to return to their country of origin.170
Thus, from a right not to be repatriated by force in the Korean war, the
practice has evolved to a right of free choice. That latter right was applied after
the Second Gulf War, when the ICRC interviewed, without witnesses, Iraqi pris-
oners of war to ascertain the willingness of each prisoner to be repatriated.171
Prisoners who had not been repatriated at the end of the repatriations period and
were still in camps came under the protection of the Fourth Geneva Convention
as civilians and were granted the status of refugees by Saudi Arabia.172
In the Dayton Peace Agreement, the ICRC was similarly entrusted with the
task of privately interviewing and determining the onward destination of each
prisoner. The Agreement further provided that the Parties shall take no reprisals
against any prisoner or his/her family in the event that a prisoner refuses to be
transferred.173
Practice informed by human rights has in fact recast Article 118. Interpreta-
tion has drastically modied its categorical language, yielding to an individual au-
tonomy based approach. This adjustment exemplies the potential of developing
the law through interpretation and custom. Of course, respecting the will of the
prisoner of war regarding repatriation is predicated both on assurances that the
detaining power will not abuse the system by unduly inuencing the prisoners
choice and on the readiness, at least of some governments, to allow the prisoners
to enter or stay in their countries.
III. Convergence of Protection under Human Rights and International

Humanitarian Law
Human rights law has inuenced the provisions of the Geneva Conventions and
of the Additional Protocols. Parallelism of content was attained in such matters
as: right to life; prohibition of torture, cruel, inhuman or degrading treatment or
punishment; arbitrary arrest or detention; discrimination on grounds of race, sex,
language or religion; and due process of law.174 This parallelism and growing con-
vergence enriches humanitarian law, as it does international human rights. Thus,
for example, common Article 3 refers to a regularly constituted court aord-
ing all the judicial guarantees which are recognized as indispensable by civilized
peoples with regard to trials in non-international armed conicts. Similarly, Ar-
ticle 84 of Geneva Convention III states that a prisoner of war may be tried only
by a court that oers essential guarantees of independence and impartiality as
170 International Committee of the Red Cross, 1989 Annual Report, at 87.
171 International Committee of the Red Cross, 1991 Annual Report, at 100.
172 Id., at 102.
173 General Framework Agreement for Peace in Bosnia and Herzegovina, done at Paris,
Dec. 14, 1995, Annex 1A, Military Aspects of the Peace Settlement, reprinted in 35
ILM 75, 91 (1996), Article IX.
174 Meron, Human Rights in Internal Strife, supra note 2, at 12-28.
46 Chapter 1
generally recognized. These terms will inevitably be interpreted and applied by

drawing on human rights law. To the extent that the Fourth Geneva Convention
cannot adequately resolve problems faced by prolonged military occupations,175
the applicable human rights protections should be resorted to to ll the void.
The ICJ has authoritatively determined that human rights provisions contin-
ue to apply in time of armed conict, unless a party has lawfully derogated from
them. In its Advisory Opinion on Nuclear Weapons, the ICJ stated:
the protection of the International Covenant on Civil and Political Rights does not
cease in times of war, except by operation of Article 4 of the Covenant whereby cer-
tain provisions may be derogated from in time of national emergency.176
The Court also claried the relationship between the right to life under Article 6
of the ICCPR and the protection of life under international humanitarian law. On
the basis of the legislative history of that Article, most commentators agree that
to the extent that in present international law lawful acts of war are recognized,
such lawful acts are deemed not to be prohibited by Article 6 ... if they do not
violate internationally recognized laws and customs of war.177 The ICJ gave its
imprimatur to this position. It held that a renvoi to the applicable lex specialis,
the law of armed conict, was necessary in order to determine the legality of a
deprivation of life. While the prohibition of arbitrary deprivation of life continues
to apply, the test of such an act is the province of the lex specialis
namely, the law applicable in armed conict which is designed to regulate the con-
duct of hostilities. Thus, whether a particular loss of life, through the use of a certain
weapon in warfare, is to be considered an arbitrary deprivation of life contrary to
Article 6 of the Covenant, can only be decided by reference to the law applicable in
armed conict and not deduced from the terms of the Covenant itself.178
The Court has thus interpreted Article 6 of the Covenant in light of principles of
international law applicable in armed conict. Such interpretation is of course
supported by Article 31(3)(c) of the Vienna Convention on the Law of Treaties.
In the Advisory Opinion of July 9, 2004, on Legal Consequences of the Con-
struction of the Wall in the Occupied Palestian Territory, the Court, citing its lex
specialis statement in Nuclear Weapons, held, more generally, that except for der-
ogations of the kind stated in Article 4 of the International Covenant on Civil and
175 Roberts, Prolonged Military Occupation: The Israeli-Occupied Territories since 1967,
84 AJIL 44, 70-74 (1990).
177 Respect for Human Rights in Armed Conicts. Report of the Secretary-General, UN
Doc. A/8052, at 104 (1970); see also id., at 98-101, 37 UN GAOR Supp. (No. 40) at 93,
UN Doc. A/37/40 (1982) (general comments of the Human Rights Committee). See
also Meron, Human Rights in Internal Strife, supra note 2, at 24.
178 Supra note 67.
Political Rights, the protection oered by human rights conventions does not
cease in case of armed conict,179 and that both humanitarian and human rights
law were applicable in Occupied Territories.180 Through a process of interpreta-
tion of the Geneva Conventions and human rights conventions, and particularly
the International Covenant on Civil and Political Rights, the court found that the
both the Covenant on Civil and Political Rights and the Covenant on Economic,
Social and Cultural Rights, and the Convention on the Rights of the Child were
applicable to the occupied territories, alongside the Geneva Convention and the
Hague Convention No. IV.181
In the Furundija case, the ICTY emphasized that the general principle of
respect for human dignity: is the basic underpinning and indeed the very raison
dtre of international humanitarian law and human rights law. Similarly in the
elebii case, the Tribunal stated:
The four Geneva Conventions of 1949 ... provide the basis for the conventional and
much of the customary international law for the protection of victims of armed con-
ict. Their provisions seek to guarantee the basic human rights to life, dignity and
humane treatment of those taking no active part in armed conicts and their enforce-
ment by criminal prosecution is an integral part of their eectiveness.182
In the Abella case, the Inter-American Commission on Human Rights argued

that its authority to apply international humanitarian law derived from the over-
lap between norms of the American Convention on Human Rights and the Ge-
neva Conventions. The Commission stated:
Indeed, the provisions of common Article 3 are essentially pure human rights law.
Thus, as a practical matter, application of common Article 3 by a State party to the
American Convention involved in internal hostilities imposes no additional burdens
on [a State], or disadvantages its armed forces vis--vis dissident groups.183
Because human rights law at a minimum its non-derogable core continues to

apply in time of armed conict, gaps in protection can be lled where, for some
reason, protection oered by the law of war is unavailable. Thus, persons who
are not protected persons during an armed conict because their government
maintains normal diplomatic relations with the power in whose hands they nd
179 Para. 106.

180 Para. 114.
181 Paras. 89- 114.
182 Prosecutor v. Zejnil Delali et al., supra note 128, para. 200.
183 Abella et al. v. Argentina, supra note 23, para. 158, note 19. This position was criti-
cized as failing to distinguish between the substance of norms and their supervisory
mechanisms. Zegveld, The Inter-American Commission on Human Rights and Inter-
national Humanitarian Law: A Comment on the Tablada Case, Intl Rev. Red Cross,
No. 324, Sept. 1998, at 505.
48 Chapter 1
themselves, would still benet from at least the non-derogable provisions of the
Political Covenant, if the State concerned is a party. Conversely, a person could
benet from the protection of humanitarian law, which does not allow for deroga-
tions on grounds of emergency and which was developed precisely for situations
of highest emergency.184
As previously noted, the ICJ in the Advisory Opinion on Nuclear Weap-
ons recognized that human rights do not cease to apply in situations of armed
conicts although some human rights are subject to derogations on ground
of emergency. This, for some time now, has been both the accepted theory and
the growing practice. It was soon after the Tehran International Conference on
Human Rights (1968) that the United Nations General Assembly adopted Resolu-
tion 2444 (XXIII) entitled Respect for Human Rights in Armed Conicts, which
recognized the necessity of applying basic humanitarian principles in all armed
conicts.185 The subsequent reports of the Secretary-General on human rights in
armed conicts, which were based on the UN Charter, the Universal Declaration
and the Covenants, emphasized that human rights were applicable in times of
armed conicts.186 The 1970 report noted that:
United Nations instruments already in force and those which still require ratica-
tions in order to become fully operative may be invoked to protect human rights at
all times and everywhere and thus complete in certain respects and lend support
to the international instruments especially applicable in conditions of war or armed
conicts.187
A legal opinion of the U.S. State Department considered that grave breaches of
the Geneva Conventions could also be seen as gross violations of human rights
for the purposes of the Foreign Assistance Act (1974), which provides that se-
curity assistance to any government which engages in a consistent pattern of
gross violations of internationally recognized human rights shall be reduced or
terminated:
184 Humanitarian law contains, however, some exceptions based on imperative military
reasons, or military necessity, or reasons of security (e.g. Articles 49(2), 64(1) or 78(1)
of the Fourth Geneva Convention, supra note 35), or specic derogations with regard
to particular persons (e.g., Article 5 of the Fourth Convention or Article 45(3) of Ad-
ditional Protocol I, supra note 36), derogations rather similar to limitation clauses
under the Political Covenant.
185 General Assembly Resolution 2444 (XXIII), 23 UN GAOR Supp. (No. 18), at 50, UN
Doc. A/7218, preamble (1969).
186 Respect for Human Rights in Armed Conicts: Report of the Secretary-General, UN
Doc. A/7720, paras. 23-31 (1969); Respect for Human Rights in Armed Conicts: Re-
port of the Secretary-General, UN Doc. A/8052, Annex I (1970).
187 Id., A/8052, para. 16.
In deciding what constitute gross violations resort should rst be had to the specic
examples set out [in the Act]
In addition, guidance may be found in widely accepted statements in sources of in-
ternational law. For example, it would seem dicult to describe as less than gross
those violations described as graves breaches in the Geneva Conventions ...188
As early as 1967, the Security Council considered that essential and inalienable
human rights should be respected even during the vicissitudes of war.189 The Se-
curity Council resolution 1041 (1996) illustrates the parallel application of human
rights law and humanitarian law in situations of armed conicts. That resolu-
tion called on all factions in Liberia to respect both humanitarian law and human
rights law in Liberia.190 Under a general item entitled protection of civilians in
armed conict, the Security Council, in a Presidential statement,
condemn[ed] attacks against civilians, especially women , children and other vulner-
able groups, including also refugees and internally displaced persons, in violation of
the relevant rules of international law, including those of international humanitarian
and human rights law.191
A number of human rights guarantees have been applied to prisoners of war in

situations of international armed conicts. Missions dispatched by the Secretary-
General to inquire into the situation of prisoners of war in Iran and Iraq in 1985
and 1988 essentially investigated alleged violations of the Third Geneva Conven-
tion. The bulk of their reports thus concerned conditions of detention and alleged
ill-treatment. But they also dealt with liberty of opinion and liberty of conscience,
because Iran was accused of indoctrinating and brainwashing Iraqi prisoners.
Freedom of conscience and opinion is not specically protected under the Third
Geneva Convention. (At the time of the negotiation of the Convention, it seemed
too dicult to dene what type of propaganda should be prohibited.192) But it
could be encompassed by Article 14 (respect for the person of prisoners). Unde-
terred, the 1985 Mission demanded that: The freedom of thought, religion and
conscience of every prisoner of war should be strictly respected. No ideological,
religious or other pressure should be brought to bear on prisoners.193
188 Memorandum by Monroe Leigh, Legal Adviser of the State Department (1975), re-
printed in US Department of State, Digest of United States Practice in International
Law 221-222 (prepared by Eleanor C. McDowell, 1975).
189 Security Council Resolution 237 (June 14, 1967), preamble.
190 Security Council Resolution 1041 (Jan 29, 1996); also Resolutions 1059 (May 31, 1996),
1071 (Aug. 31, 1996) and 1083 (Nov. 27, 1996).
191 Security Council Presidential Statement 1999/6 (Feb. 12, 1999), para. 2; also para. 7.
of War, supra note 157, at 144-145.
193 Report of a Mission Dispatched by the Secretary General to Inquire into the Situation
of Prisoners of War in the Islamic Republic of Iran and the Republic of Iraq, UN Doc.
50 Chapter 1
As for Iraq, the Parliamentary Assembly of the Council of Europe con-

demned Iraqs record of disregard for human rights and inhuman treatment of
prisoners of war 194 The Inter-American Commission, in its country reports,
discussed situations involving armed conicts, e.g., in the Dominican Republic,
El Salvador, and Haiti following the military coup. In response to arguments that
human rights violations are an inevitable by-product of conict involving armed
groups, the Commission emphasized that unqualied respect for human rights
must be a fundamental part of any anti-subversive strategies.195
IV. Application of Humanitarian Law by Human Rights Organs

The Commission on Human Rights has condemned violations of human rights
and humanitarian law, both in international and non-international conicts, e.g.,
in resolutions on Kuwait, the former Yugoslavia, and Rwanda.196 The report by
a Special Rapporteur designated at the request of the Commission on Human
Rights to report on human rights violations committed in occupied Kuwait by
the invading and occupying forces of Iraq, is of particular importance. In dening
his mandate, the Rapporteur noted that the Commissions resolution referred to
the principles embodied in the Charter of the United Nations, the International
Covenants on Human Rights and other relevant legal instruments, including civil
and political rights, economic, social and cultural rights, and principles of hu-
manitarian law. He concluded that his mandate should be understood in a broad
sense as to include all violations of all guarantees of international law for the pro-
tection of individuals relevant to the situation.197
Even in the absence of explicit mandates, human rights rapporteurs have
referred to humanitarian law to examine issues that human rights law can address
only indirectly, such as the use of certain means or methods of warfare including
chemical weapons or land mines. The Special Rapporteur on Iraq thus sought
authority in the Land Mines Protocol (II) to the Conventional Weapons Conven-
tion (1980) and the Geneva Protocol (1925).198 Similarly, when non-State entities
S/16962, Annex, para. 294 (1985).

194 Council of Europe, Parliamentary Assembly, 42nd Ordinary Sess. (Third part), Texts
Adopted by the Assembly, Resolution 954 (1991) on the Gulf Conict, para. 5 (1991).
195 Annual Report of the Inter-American Commission of Human Rights (1990-1991),
OEA/Ser.L/V/II.79 rev. 1, at 512 (1991).
196 UN Commission on Human Rights, inter alia, Resolution 1991/67, ECOSOC O. Rec.
(Supp. No. 2), at 154, UN Doc. E/1991/22, E/CN.4/1991/91 (1991) (on Kuwait); Resolu-
tion 1995/91, ECOSOC O. Rec. (Supp. No. 4), at 275, para. 2, UN Doc. E/1995/23,
E/CN.4/1995/176 (1995) (on Rwanda); Resolution 1995/89, id., at 262, para. 10 (on
Bosnia-Herzegovina).
197 Report on the Situation of Human Rights in Kuwait under Iraqi Occupation, UN
Doc. E/CN.4/1992/26, para. 12 (1992).
198 ODonnell, Trends in the Application of International Humanitarian Law by United
Nations Human Rights Mechanisms, Intl Rev. Red Cross, No. 324, Sept.1998, at 481,
committed objectionable conduct, special rapporteurs have looked to humanitar-

ian law. For the Special Rapporteur on Sudan, common Article 3 served as the
basis for the condemnation of indiscriminate attacks, rape, mutilation, looting,
the seizing of an ICRC airplane and the detention of the crew and passengers as
hostages by the Sudan Peoples Liberation Army (SPLA).199
Where human rights law and humanitarian law rules could be applied cu-
mulatively, UN rapporteurs invoked humanitarian rules when their application
seemed more pertinent to the situation prevailing in the country concerned. For
example, the Special Rapporteur on Extrajudicial, Summary and Arbitrary Execu-
tions, in his report on Colombia (1990), observed that in the counter-insurgency
campaign, the forces of law and order were failing to comply with certain basic
principles of international humanitarian law, such as the principle of not engaging
in violence against the civilian populations.200 He named such violations as kill-
ings of civilians by military units, summary executions and forced displacement.
A particular conduct may thus violate both human rights and humanitarian law201
without being subject to limitations or derogations allowed by human rights law.
Since the 1970s, the United Nations has concerned itself with important as-
pects of international humanitarian law in human rights contexts, in particular
through the activities of the Human Rights Commission and the Sub-Commis-
sion on Prevention of Discrimination and Protection of Minorities. Thematic rap-
porteurs have been requested to analyze issues that mainly concern situations of
armed conict. Such themes as the use of mercenaries, sexual violence during
armed conicts and children in armed conicts have been the subject of special
reports to the Commission and the General Assembly. At times, country rap-
porteurs have also made extensive reference to humanitarian law norms in their
reports.
Although most human rights implementation bodies lack an explicit man-
date to apply international humanitarian law, atrocities in the context of armed
conicts have often led them to examine certain abuses in the light of humani-
tarian law.202 Reference to international humanitarian law by human rights rap-
porteurs has not gone unchallenged. The Government of Turkey questioned the
mandate of the Rapporteur on Extrajudicial, Summary or Arbitrary Executions to
address aspects of the conict with the Kurdistan Workers Party, stating that UN
human rights mechanisms were not intended to encroach upon the eld of inter-
national humanitarian law, unless specically provided otherwise by that law.203
482-483 (citing UN Doc. E/CN.4/1993/45, para. 113, and E/CN.4/1994/58, paras. 112-
116).
199 Id., at 489 (citing UN Doc. E/CN.4/1994/48, para. 115 and E/CN.4/1997/58, para. 27).
200 Id., at 485 (citing UN Doc. E/CN.4/1990/22/Add.1, para. 50).
201 Id., at 485-486.
202 Id., at 482.
203 Extrajudicial, Summary or Arbitrary Executions. Report by the Special Rapporteur,
Mr. Bacre Waly Ndiaye, UN Doc. E/CN.4/1996/4, para. 493.
52 Chapter 1
Some UN human rights bodies have been given mandates covering both hu-
man rights and humanitarian law violations. A case in point is the UN Observ-
er Mission in El Salvador (ONUSAL).204 The Parties to the San Jose Agreement
(1991) requested the UN to start its mission before a cease-re was concluded. As
a result, ONUSALs rst reports extensively discussed humanitarian law viola-
tions by both parties.205 The Mission endeavored to investigate such violations of
international humanitarian law as
attacks on the civilian population as such and on civilians;

acts or threats of violence whose main purpose is to intimidate the civilian pop-
ulation;
acts involving attacks on material goods essential to the survival of the civilian
population or the obstruction of relief operations; and
arbitrary relocation of the civilian population.206
The Mission also investigated summary executions by the guerillas and the indis-
criminate use of land mines.
In some cases, UN reporters are given such a prominent humanitarian law
mandate that it is no longer appropriate to describe them as human rights re-
porters. A recent case in point is the Security Council Resolution 1564 which
requested the International Commission of Inquiry on Darfur (the Cassese Com-
mission) to investigate reports of violations of international humanitarian and
human rights law in Darfur and to determine whether acts of genocide have been
committed. The report of the Commission207 served as the basis for the referral of
the situation in Darfur to the Prosecutor of the International Criminal Court.208
The United Nations Verication Mission in Guatemala (MINUGUA) was es-
tablished with a mandate to verify implementation of the Comprehensive Agree-
ment on Human Rights, signed by the Government of Guatemala and the Unidad
Revolucionaria Nacional Guatemalteca (URNG) in 1994. The Agreement provid-
ed that [u]ntil such time as the Agreement on a Firm and Lasting Peace is signed
and, hence, as long as military operations continue, the Mission must verify the
commitment made by both parties to respect the human rights of wounded, cap-
tured or disabled combatants and to put a stop to the suering of the civilian
population. The parties further agreed that they understood human rights as
meaning those rights which are recognized in the Guatemalan legal order, includ-
204 ODonnell, supra note 198, at 484. The Mission was established by Security Council
Resolution 693 (May 20, 1991).
205 First Report of the United Nations Observer Mission in El Salvador, UN Doc.
A/45/1055- S/23037, Annex, paras. 17-19 (1991).
206 Id., paras. 50-52.
207 S/2005/60.
208 S/RES/1593 (2005).
ing international treaties, conventions and other instruments on the subject to

which Guatemala is a party.209
In a case brought before the Inter-American Commission on Human Rights
arising from military action taken by the U.S. in Panama in December 1989, the
U.S. Government contended that the scope of the Commissions jurisdiction did
not extend to the law of armed conicts, arguing that
The OAS Member States did not expressly or implicitly consent to the competence of
the Commission through its Statute to adjudicate matters concerning that complex
and discrete body of law. [in its view] those legal authorities are extraneous to and
fall outside the scope of the Commissions jurisdiction to interpret and apply.
[and] the Commission is not an appropriate organ to apply the provisions of the
Fourth Geneva Convention to the United States since the U.S. has not given express
authority to the Commission to do so. The Fourth Geneva Convention provides a
wholly separate series of internal procedures and remedies for its enforcement, in-
cluding the use of protective powers, the activities of the International Red Cross and
its national counterparts, and the conducting of inquiries.210
The Commission maintained, however, that it was competent to consider the

matter under the American Declaration, avoiding a clear statement on the Fourth
Geneva Convention:
Where it is asserted that a use of military force has resulted in noncombatant deaths,
personal injury, and property loss, the human rights of the combatants are impli-
cated. In the context of the present case, the guarantees set forth in the American
Declaration are implicated. This case sets forth allegations cognizable within the
framework of the declaration. Thus the Commission is authorized to consider the
subject matter of this case.211
In a case concerning an attack launched by an armed group on a barracks of the

Argentine Armed Forces, the Inter-American Commission considered complaints
from some of the participants in the attack alleging violations of the American
Convention and of rules of international humanitarian law by members of the
government armed forces. The Commission considered whether it was compe-
tent to apply international humanitarian law directly:
209 Comprehensive Agreement on Human Rights, 19 March 1994, UN Doc. A/48/

928-S/1994/448, Annex I, Sections I, IX and X.
210 Salas and others v. United States, Inter-American Commission on Human Rights,
Case 10.573, Report 31/93 of 14 October 1993, Annual Report 1993, OEA/Ser.L/V/
II.85 Doc. 9 rev., at 312, 317 (1994).
211 Id., 329.
54 Chapter 1
to properly evaluate the merits of the petitioners claim ... it must rst determine
whether the armed confrontation at the base was merely an example of an internal
disturbance or tensions or whether it constituted a non-international or internal
armed conict within the meaning of Article 3 common to the four Geneva conven-
tions. [since] the legal rules governing an internal armed conict vary signicantly
from those governing situations of internal disturbances or tensions 212
The Commission concluded that the attack constituted a non-international armed

conict within the meaning of common Article 3. It found that the concerted
nature of the hostile acts undertaken by the attackers, the direct involvement of
governmental armed forces and the nature and level of violence attending the
events in question [and the fact that] the attackers involved carefully planned,
coordinated and executed an armed attack ... against a quintessential military ob-
jective a military base distinguished these events from internal disturbances.213
One of the criteria commonly applied to characterize a situation as being gov-
erned by common Article 3, the duration of the conict, was not considered a
decisive factor.
The Commission invoked various grounds to establish its competence to ap-
ply humanitarian law. It argued that because human rights instruments were not
specically designed to apply in time of armed conicts, reference to a set of rules
specically elaborated to apply in those situations was necessary:
both common Article 3 and Article 4 of the American Convention protect the right
to life and, thus, prohibit, inter alia, summary executions in all circumstances. Claims
alleging arbitrary deprivations of the right to life attributable to State agents are
clearly within the Commissions jurisdiction. But the Commissions ability to resolve
claimed violations of this non-derogable right arising out of an armed conict may
not be possible in many cases by reference to Article 4 of the American Convention
alone. This is because the American Convention contains no rules that either dene
or distinguish civilians from combatants and other military targets, much less, spec-
ify when a civilian can be lawfully attacked or when civilian casualties are a lawful
consequence of military operations.214
This reasoning recalls the Nuclear Weapons Advisory Opinion, in which the Court
concluded that a determination that a particular loss of life in warfare is an arbi-
trary deprivation, contrary to Article 6 of the Covenant, can only be decided by
reference to the law applicable in armed conicts and not deduced from the terms
of the Covenant itself.215
212 Abella et al. v. Argentina, supra note 23, para. 148.

213 Id., paras. 154-156.
214 Id., para. 161.
215 Supra note 67.
The Commission also relied on three provisions of the American Conven-

tion on Human Rights: Article 29(b), which provides that a State may not invoke
the American Convention to restrict the enjoyment of a right or freedom pro-
vided under national law or under another international convention to which the
State is Party; Article 25, which provides for an eective remedy before a national
court for protection against acts that violate [the] fundamental rights recognized
by the constitution or laws of the State concerned; and Article 27(1), which states
that measures of derogation in time of emergency may not be inconsistent with
a States other international obligations.216
The American Court of Human Rights did not go as far as the Commission.
It held that it was only competent to determine whether the acts of States were
compatible with the American Convention and not with the Geneva Conven-
tions.217 However, it took the view that it could
observe that certain acts or omissions that violate human rights, pursuant to the trea-
ties that they do have competence to apply, also violate other international instru-
ments for the protection of the individual, such as the 1949 Geneva Conventions and,
in particular, common Article 3.218
V. Application of Human Rights Treaties in Humanitarian Law Contexts

The European Court and Commission on Human Rights have examined com-
plaints discussed also in the chapter on international tribunals concerning
situations in which the law of armed conicts was pertinent. Complaints arising
from an international armed conict, for example, were raised after the Turkish
invasion and occupation of Northern Cyprus. Complaints concerning states of
emergency and internal conicts have included those from Northern Ireland and
Southeastern Turkey.219 Neither the United Kingdom nor Turkey recognized the
applicability of common Article 3 or Additional Protocol II to the situation in
Northern Ireland or Southeastern Turkey.
Issues concerning the destruction of property and the eviction and ill-treat-
ment of civilians (including rape of women) have been examined in a number of
cases arising out of the occupation of northern Cyprus by Turkish armed forces.
In applications submitted by Cyprus in 1974 and 1975, the European Commission
of Human Rights found violations of the European Convention on Human Rights
216 Signed 22 November 1969, OAS TS No. 36, at 1; OAS O. Rec. OEA/Ser.L/V/II.23
doc. Rev. 2.
217 Las Palmeras Case, Preliminary Objections, 4 February 2000, ACHR Reports, Series
C, No. 67, para. 33.
218 Bmaca Velsquez Case, Judgement of 25 November 2000, ACHR Reports, Series C,
para. 208.
219 Reidy, The Approach of the European Commission and Court of Human Rights to In-
ternational Humanitarian Law, Intl Rev. Red Cross, No. 324, Sept. 1998, 513, 516,
note 11.
56 Chapter 1
but chose not to refer to humanitarian law. It declined to examine the treatment
of prisoners of war because such persons had been visited by delegates of the
ICRC.220 The Commission also decided that it did not need to examine the move-
ment of persons caused by the military operations, since it found that Turkeys
refusal to allow the return of refugees violated Article 8 of the Convention.221 In a
separate opinion, Commissioners Sperduti and Trechsel suggested that the Ge-
neva Conventions and the Hague Regulations could assist the Commission in as-
sessing the right of derogation under Article 15 in a situation of occupation.222
In these cases, the Strasbourg institutions applied the European Convention on
Human Rights even though the Geneva Conventions were applicable. In one case,
the European Commission of Human Rights declared admissible a petition led
by Cyprus against Turkey, alleging murders of civilians, repeated rapes, forcible
eviction, looting, robbery, unlawful seizure, arbitrary detention, torture and other
inhuman treatment, forced labor, destruction of property, forced deportations
and separation of families in the context of occupation.223 In another case involv-
ing the attribution of responsibility for acts committed in the northern part of
Cyprus, the Commission concluded that:
Authorised agents of a State, including armed forces, not only remain under its juris-
diction ... but also bring any other persons within the jurisdiction of that State to the
extent that they exercise authority.224
The European Court of Human Rights similarly held:
Bearing in mind the object and purpose of the Convention, the responsibility of a
Contracting Party may also arise when as a consequence of military action whether
lawful or unlawful it exercises eective control of an area outside its national terri-
tory. The obligation to secure, in such an area, the rights and freedoms set out in the
Convention, derives from the fact of such control whether it be exercised directly,
through its armed forces, or through subordinate local administration.225
The Court took note that the applicant (whose submissions were endorsed by the
government of Cyprus) contended that:
220 Cyprus v. Turkey, European Commission of Human Rights, Appl. 6780/74 and
6950/75, Report of 10 July 1976, 4 Eur. .H.R. Rep. 482, para. 313 (1982).
221 Id., para. 202.
222 Reidy, supra note 219, at 518.
223 Cyprus v. Turkey, supra note 220.
224 Chrysostomos and Papachrysostomos v. Turkey, European Commission of Human
Rights, Appl. 15299/89 and 15300/89, Report of 8 July 1993, 86 Eur. Commn Dec. &
Rep. 4, at para. 96.
225 Loizidou v. Turkey (Preliminary Objections), European Court of Human Rights, Judg-
ment of 23 March 1995, 1995 Eur.Ct.H.R. Rep. (Ser. A) No. 310, para. 62.
A State is, in principle, internationally accountable for violations of rights occurring

in territories over which it has physical control ... International law recognizes that
a State which is thus accountable with respect to a certain territory remains so even
if the territory is administered by a local administration. This is so whether the lo-
cal administration is illegal, in that it is the consequence of an illegal use of force, or
whether it is lawful, as in the case of a protected State or other dependency.226
This jurisprudence can be explained by the trend toward interpreting human

rights treaties as applicable wherever a State exercises power, authority or juris-
diction over people and not simply in its national territory, and thus to derive pro-
tection from human rights treaties where the competence of international organs
could not be grounded in the Geneva Conventions.227 As Hampson has remarked,
[i]t is the nexus between the person aected, whatever his nationality, and the
perpetrator of the alleged violation which engages the possible responsibility of
the State and not the place where the action takes place.228 In the more recent
Bankovi case, (discussed in the chapter on international tribunals), the European
Court interpreted its geographical jurisdiction more narrowly.
Human rights bodies and courts have also applied, or referred to, such classi-
cal concepts of the law of war as proportionality and distinction.229 The European
Court of Human Rights230 used such concepts to interpret the State obligations
under the European Convention on Human Rights. The Inter-American Com-
mission231 and Court of Human Rights232 have followed suit.
226 Id., para. 57. See also Cyprus v.Turkey, App.No. 25781/94, European Court of Human
Rights, Grand Chamber (May 10, 2001).
227 Meron, Extraterritoriality of Human Rights Treaties, 89 AJIL 78 (1995).
228 Hampson, Using International Human Rights Machinery to Enforce the International
Law of Armed Conicts, 31 Revue de Droit Militaire et de Droit de la Guerre 119, 122
(1992).
229 See, e.g., Report of the Director of the United Nations Mission for the Verication
of Human Rights and of Compliance with the Commitments of the Comprehensive
Agreement on Human Rights in Guatemala, UN Doc. A/49/856, paras. 133-137.
230 Ergi v. Turkey, European Court of Human Rights, Judgment of 28 July 1998, 1998-IV
Eur. Ct. H.R. Rep., paras. 79, 81 and 86; McCann v. United Kingdom, European Court
of Human Rights, Judgment of 5 January 1995, Eur. Ct. H.R. Rep. (Ser. A), No 324,
paras. 194, 200 and 213.
231 Feldman v. Colombia, Inter-American Commission on Human Rights, Case 11.010,
Report 15/95 of 13 September 1995, Annual Report 1995, OEA/Ser.L/V/II.91 Doc. 7,
at 57 (1996).
232 Neira-Alegria v. Peru, Inter-American Court of Human Rights, Judgment of 19 Janu-
ary 1995, 1995 Inter-Am. Ct. H.R. Rep. (Ser. C) No 20, paras. 74-76.
58 Chapter 1
VI. Minimum Humanitarian Standards: Fundamental Standards of Humanity

Despite the progress made in the humanization of humanitarian law and the
growing convergence between human rights and humanitarian law, the blurring
of thresholds of applicability and the expansion of both systems of protection,
signicant gaps in protection still remain.
The Geneva Conventions for the protection of war victims and their addi-
tional protocols, as well as various law of war treaties and customary international
law, protect victims of international wars and oer some protection for victims
of internal wars, but characterization of conicts continues to present diculties.
Human rights treaties, declarations and mechanisms protect the individual from
abuses by governments in time of peace, but some protections can be derogated
from in times of emergency. Moreover, in many situations of armed conict of
varying intensity, authorities other than governments exercise control over peo-
ple while habitually denying that they are bound by international standards. In
situations that fall short of an armed conict, that is, those below the threshold of
common Article 3, humanitarian law might not apply, but internal violence might
lead a State to declare a public emergency and suspend many essential protec-
tions. As Christopher Greenwood has written:
The question of exactly what constitutes such an emergency has frequently proved
controversial but it is clear that the situation within a State can reach the stage at
which that State may invoke the derogation clauses of the human rights treaties but
still not amount to an armed conict within the generally accepted sense of that
term. It is possible, therefore, that a State might legitimately invoke the derogation
provisions of the human rights treaties to which it is a party (though not all) of the
protections aorded by those treaties, while still not being required to observe the
limitations of the laws of war. There is no logical justication for this state of aairs,
since there is no reason why, in a state of emergency falling short of an internal armed
conict, a State should be permitted to engage in conduct which is forbidden to it in
normal times and in the more serious conditions of civil war. The obvious desirability
of closing that gap has led to the production of the Declaration of Minimum Humani-
tarian Standards (the Turku Declaration) and other moves to elaborate a set of non-
derogable standards drawn from both human rights law and the laws of war.233
Among the essential rights commonly regarded as subject to derogations are

guarantees of due process, personal liberty, and freedom of movement and dis-
placement. Of course, the list of non-derogable rights is not the exclusive guide
to the parameters of derogations. All States must also respect key procedural
safeguards such as proportionality (to the extent strictly required) and non-dis-
233 Christopher Greenwood, International Humanitarian Law and the Laws of War, Pre-
liminary Report for the Centennial Commemoration of the First Hague Peace Con-
ference 1899, at 60-61 (June 1998).
crimination, as stated, for example in Article 4(1) of the Covenant on Civil and
Political Rights.
There are many existing treaties and identiable standards. Signicant prob-
lems remain, however, in four areas:
(1) where the threshold of applicability of international humanitarian law is not
reached or its applicability is disputed;
(2) where the State in question is not a party to the relevant treaty or instru-
ment;
(3) where derogation from the specied standards is invoked; and
(4) where the actor is not a government, but some other group.
As noted by the UN Secretary-General,
The rules of international humanitarian law are dierent depending on the nature
and intensity of the conict. There are disagreements concerning the point at which
internal violence reaches a level where the humanitarian law rules regulating internal
armed conicts become operable. Even when these rules manifestly do apply, it is
generally acknowledged that, in contrast to the rules applying in international armed
conicts, they provide only the bare minimum of protection.
Further, until now, the rules of international human rights law have generally been
interpreted as only creating legal obligations for Governments, whereas in situations
of internal violence it is also important to address the behaviour of non-State armed
groups. It is also argued that some human rights norms lack the specicity required
to be eective in situations of violent conict. Finally, concern has been expressed
about the possibilities for Governments to derogate from certain obligations under
human rights law in these situations.234
Additional diculties remain. Some States have not as yet ratied Protocol II or
some important human rights treaties; common Article 3 lists only a few protec-
tive norms; and the recognition that the Hague Law on the conduct of hostili-
ties, or at least its fundamental principles, should be applied in non-international
armed conicts has only recently begun to consolidate.
For these reasons, attempts have been made to promote a declaration of
minimum humanitarian standards or fundamental standards of humanity from
which there can be no derogation and the applicability of which would not de-
pend on the characterization of the conict. Such a declaration would state norms
derived from human rights law and from both the Hague and the Geneva prongs
of international humanitarian law. The international community would expect
all parties to apply such norms, at a minimum, in all situations, and especially in
situations of endemic internal violence. These problems and the need for such
a declaration were identied as early as 1983.235 The initiative took shape in the
234 Minimum Humanitarian Standards, supra note 111, at, paras. 8-9.
235 Meron, On the Inadequate Reach of Humanitarian and Human Rights Law and the
Need for a New Instrument, 77AJIL 589 (1983); Towards a Humanitarian Declaration
60 Chapter 1
Turku Declaration (1990), which was drafted by a group of individual experts in

humanitarian and human rights law, and submitted to the United Nations Hu-
man Rights Commission. It was discussed in meetings of experts convened in
Oslo (Norwegian Institute of Human Rights), Vienna (OSCE) and Capetown (UN
workshop), and has obtained some recognition by governments, organizations
and experts. Over the years, analytical reports of the Secretary-General of the
United Nations have given it additional currency.236 But it has encountered oppo-
sition from some governments, and particularly, some human rights NGOs, who
fear that such a declaration would provide governments with the excuse that they
need apply only minimum standards. Moreover, some have argued that problems
of inadequate compliance of the law could be better addressed by more eective
enforcement methods.
The Turku Declaration rearms an irreducible core of humanitarian and
human rights norms which must be respected in all situations and at all times. It
creates a safety net that could not be dismantled by assertions that a particular
conict is below the threshold of applicability of international humanitarian law
and is not addressed by existing international law. Following the tradition of hu-
manitarian law, derogations are prohibited. The importance of the Declaration
goes beyond the technical problems of states of emergency and derogations. It
would apply in all situations of internal violence and in the gray zone between
war and peace. With a focus on the nature of contemporary conicts, which so
often concern groups not recognized as governments, the draft of the declaration
provides that (t)hese standards shall be respected by, and applied to all persons,
groups and authorities, irrespective of their legal status and without any adverse
discrimination. The prospects of humanizing internal violence are greatly im-
proved by urging all sides, including non-governmental actors, to abide by essen-
tial humanitarian principles.
Among the standards incorporated in the Declaration are core judicial or
due process guarantees, limitations on excessive use of force and on means and
methods of combat, the prohibition of deportation, rules pertaining to adminis-
trative or preventive detention, humane treatment and guarantees of humanitar-
ian assistance.
The Declaration could become a useful source of indicators for early warn-
ings of mass violations of humanitarian and human rights norms. The Declaration
could also become an important tool for education, dissemination, monitoring,
on Internal Strife, 78 AJIL 859 (1984); Draft Model Declaration on Internal Strife, Intl
Rev. Red Cross, No. 262, Jan.-Feb 1988 at 59; Human Rights in Internal Strife, supra
note 2; Meron and Rosas, A declaration of Minimum Humanitarian Standards, 85
AJIL 375 (1991); Eide, Rosas and Meron, Combating Lawlessness in Gray Zone Con-
icts through Minimum Humanitarian Standards, 89 AJIL 215 (1995).
236 Minimum Humanitarian Standards, supra note 111; Fundamental Standards of Hu-
manity: Report of the Secretary-General submitted pursuant to Commission resolu-
tion 1998/29, UN Doc. E/CN.4/1999/92. See comment by Petrasek, Moving Forward
on the Development of Minimum Humanitarian Standards, 92 AJIL 557 (1998).
implementation and enforcement. The advantages of the Declaration include:

simplicity, clarity; the fact that it draws on humanitarian and human rights instru-
ments, on customary law and on standards of humanity; and the fact that it avoids
problems of denition of conicts and recognition of authorities.
A concern sometimes expressed is that because the declaration is not a trea-
ty, it will not be legally binding and will therefore be ineective. But the Helsinki
Declaration237 has shown how eective political and moral commitments can be.
The recent developments tending to blur the thresholds for the applicability of
international humanitarian law, and resulting in greater applicability of protec-
tive norms in internal conicts, through customary law and treaties with broader
scopes of applicability, already serve some of the objects advanced by the Declara-
tion of Minimum Humanitarian Standards.
F. Means and Methods of Warfare and Protection of Combatants
I. The Principle of Proportionality

The principle of proportionality has dierent meanings. One is proportionality in
general international law, in self-defense and thus in the jus ad bellum context.
Classical international law allowed a State which had a just cause for war to
apply the maximum degree of force and destruction to bring about a speedy vic-
tory. Francis Lieber thus argued that [t]he more vigorously wars are pursued, the
better it is for humanity. Sharp wars are brief. To this end, the law of war should
impose certain limitations on the basic principles of justice, faith and honor.238
Liebers concern for not unduly limiting the militarys discretion or curtailing its
ability to win a victory swiftly led him to articulate a number of principles that
appear excessively harsh to the modern commentator, including causing the star-
vation of the adversary.
Modern international law has insisted on some principle of necessity or
proportionality even in the context of jus ad bellum. It is in this context that
Schachter discussed proportionality for military operations authorized by the Se-
curity Council under Chapter VII of the UN Charter in the second Gulf War:
Resort to collective self-defense (jus ad bellum) is also subject to requirements of

necessity and proportionality, even though these conditions are not expressly stated
in Article 51. Both requirements were discussed in the Security Council and by the
governments concerned for several months.

The criterion of necessity thus debated is quite dierent from the view previously
accepted that an illegal armed attack on a large scale is in itself sucient to meet the
237 Conference on Security and Co-operation in Europe, Final Act, Aug.1, 1975, reprinted
in 14ILM 1292 (1975)
238 Lieber Code, supra note 10, at Arts. 29-30. See also Meron, Francis Liebers Code and
Principles of Humanity, reprinted in Meron, supra note 6, at 133.
62 Chapter 1
requirement of necessity for self-defence. Thus, when the Japanese attacked Pearl
Harbor or when the Germans invaded Poland to begin World War II, it was taken for
granted that armed self-defense by the victim States met the requirement of neces-
sity.239
Proportionality for purposes of jus in bello has a more traditional sense. This
strain of proportionality was at the center of controversy when invoked to justify
so-called collateral damage caused by bombing of Iraqi targets during Gulf War
II and especially the strategic bombing of objects that support military capacity,
but also serve civilian needs, such as power plants and bridges.240 Similar con-
troversies arose over the allied bombing of former Yugoslavia during the Kosovo
crisis (1999). The International Court of Justice gave its judicial imprimatur to the
distinctions between the two kinds of proportionality in its Advisory Opinion on
Nuclear Weapons:
41. The submission of the exercise of the right of self-defence to the conditions of
necessity and proportionality is a rule of customary international law. As the
Court stated in the case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America) ... there is a specic
rule whereby self-defence would warrant only measures which are proportional
to the armed attack and necessary to respond to it, a rule well established in
customary international law. This dual condition applies equally to Article 51 of
the Charter, whatever the means of force employed.
42. The proportionality principle may thus not in itself exclude the use of nuclear
weapons in self-defence in all circumstances. But at the same time, a use of force
which is proportionate under the law of self-defence, must, in order to be law-
ful, also meet the requirements of the law applicable in armed conict which
comprise in particular the principles and rules of humanitarian law.241
It is proportionality in jus in bello that I shall be discussing here. The principle of

proportionality requires that civilian losses resulting from a military act should
not be excessive in relation to the anticipated military advantage. It obligates the
belligerents to balance military advantage against reasonably expected collateral
injury to civilians and civilian objects. Although the broad parameters of the prin-
ciple of proportionality are widely accepted, its application in specic situations
is frequently disputed.
Proportionality is closely related to the principle of distinction between
combatants and non-combatants which prohibits attacks on the civilian popula-
tion and objects. The notion that war is waged between soldiers and that the civil-
ian population should, as far as possible, remain untouched by the hostilities is of
239 Schachter, United Nations Law in the Gulf Conict, 85 AJIL 459, 460-61 (1991).
240 Id. at 466.
241 Nuclear Weapons Advisory Opinion, supra note 67, at paras. 41-42.
long standing. It was clearly articulated as early as the Lieber Code (1863), which,
in Article 22 underlines the distinction between the private individual belonging
to a hostile country and the hostile country itself, with its men in arms. Thus,
the principle has been more and more acknowledged that the unarmed citizen
is to be spared in person, property, and honor as much as the exigencies of war
will admit.
In its Advisory Opinion on Nuclear Weapons, the ICJ characterized these
principles as intransgressible principles of international customary law. As Hays
Parks has noted, however, the belief in the eectiveness of attacks on civilian
morale by strategic bombing, prevalent during World War II, has persisted up
to recent times, for example during the war of the cities in the Iran-Iraq war.242
NATO bombings in the former Yugoslavia during the 1999 Kosovo crisis dem-
onstrated that in practice, economic objectives and dual-use objectives, such as
bridges, power stations, and broadcasting facilities continue to be attacked. Ad-
ditional Protocol I gives predominant weight to the protection of civilians from
indiscriminate or collateral damage. Some military experts might feel that the
Protocol has not been equitably calibrated, especially with regard to economic
and strategic infrastructure and dual-use objectives. This is an area where the gap
between theory and practice may be particularly wide. Nonetheless, a generous
respect for the protection of civilians under the principle of proportionality is
vital to the survival of humanity and of our cultural heritage.
The principle of proportionality, although widely recognized as a basic rule
of the law of war, was not codied in the Hague Conventions (1899, 1907) or in the
Geneva Conventions (1949). In trying to spare soldiers unnecessary or excessive
suering, the Hague Conventions of 1899 and 1907 restricted use of poison and
bullets which expand or atten in the body (dum-dum bullets). They established
only minimal restraints (such as the prohibition on attacking or bombarding un-
defended places, the injunction to respect religious, cultural and medical build-
ings, and the prohibition of pillage) aimed at protecting the civilian population
from the eects of hostilities.
Some provisions may be viewed as particular applications of the proportion-
ality principle. For example, Article 23(g) of the Hague Regulations refers to the
prohibition on destroying or injuring of enemy property, unless such destruction
or seizure be imperatively demanded by the necessities of war. Article 27, in par-
ticular, requires the sparing, as far as possible, of buildings dedicated to cultural,
religious and medical activities in sieges and bombardments. These provisions
prohibit collateral damage to civilian objects or injury to noncombatants that is
clearly disproportionate to the military advantage gained in an attack on military
objectives. 243
242 Hays Parks, The Protection of Civilians from Air Warfare, Israel Y.H.R. 65, at 77-83
(1998).
243 Conduct of the Persian Gulf War, United States of America Department of Defense,
Final Report to Congress, April 1992, Appendix O, The Role of the Law of War at O-9.
64 Chapter 1
Those minimal Hague Convention IV rules became inadequate with the de-
velopment of air power and long-range missiles, which enlarged and deepened
the geographical scope of battle zones.244 Attempts were made to bring up to date
the regulation of means and methods of warfare (Hague Law).245 The goal of the
1949 Diplomatic Conference was not to revise the Hague Regulations. The 1949
Geneva Conventions were primarily concerned with helping protected persons
in the hands of a hostile party (POWs, the wounded, sick and shipwrecked, the
civilian population in occupied territory). Only a brief part of the Fourth Conven-
tion provides measures to protect the whole of the population against the eects
of hostilities.246 The ICRC Commentary on the Fourth Geneva Convention thus
notes,
the main object of the Convention is to protect a strictly dened category of civil-
ians from arbitrary action on the part of the enemy, and not from the dangers due to
the military operations themselves. Anything tending to provide such protection was
systematically removed from the Convention.247
Because the Hague Regulations were not brought up to date in 1949, a serious
gap remained in codied humanitarian law. As Maurice Aubert, a vice-president
of the ICRC has suggested, if protection for the wounded, the shipwrecked and
especially the civilian population is to be rendered more eective ..., it must also
include limitations on methods ... of combat.248 This consideration led the ICRC
to draw up Draft Rules for the Limitation of the Dangers Incurred by the Civil-
ian Population in Time of War (1956), which rearmed some of the principles
of customary law and oered concrete solutions to resolve problems resulting
from changes and developments in weaponry. These draft Rules were submit-
ted to the XIXth International Conference of the Red Cross (New Delhi, 1957).
They contained an explicit proposal to prohibit the use of nuclear, bacteriological
244 M. Bothe, K. Partsh and W. Soft, New Rules for Victims of Armed Conicts 274-75
(1982).
245 Article 24(4) of the 1923 Draft Air Warfare Rules adopted by the International Com-
mission of Jurists provided for example that:
In the immediate vicinity of the operations of the land forces, the bombardment of
cities, towns, villages, habitations and buildings is legitimate, provided there is a rea-
sonable presumption that the military concentration is important enough to justify the
bombardment, taking into account the danger to which the civil population will thus
be exposed.
246 Bothe and al., supra note 244, at 275; Sandoz and al., Commentary on the Additional
Protocols, supra note 66, paras. 1830-1831.
247 Supra note 17, at 10.
248 Aubert, The International Committee of the Red Cross and the Problem of Excessively
Injurious or Indiscriminate Weapons, Intl Rev. Red Cross, 477, 479 (1990).
and chemical weapons.249 Although approved in principle, the draft rules had few
practical results, probably because of the refusal of nuclear powers to consider the
issue of the development and use of nuclear weapons.250
Adopting another approach, at the XXth International Conference of the
Red Cross (Vienna, 1965) the ICRC proposed simply to rearm certain basic
principles. Resolution XXVIII of that Conference declared that:
all Governments and other authorities responsible for action in armed conicts
should conform at least to the following principles:
that the right of the parties to a conict to adopt means of injuring the enemy is
not unlimited;
that it is prohibited to launch attacks against the civilian populations as such;
that distinction must be made at all times between persons taking part in the
hostilities and members of the civilian population to the eect that the latter be
spared as much as possible;
that the general principles of the Law of War apply to nuclear and similar weap-
ons.
These developments, which took place in the Red Cross especially the demands
to revise the law of privileged combatants in anti-colonial wars and in wars
against racist regimes and grant such combatants prisoner of war privileges at-
tracted the attention of the United Nations. Up to that time, the United Nations
had maintained a reserve towards treatment of the law of armed conict,251 fear-
ing that a codication of that law might not be compatible with the prohibition of
threat or use of force in the UN Charter. This explains, perhaps, why the Interna-
tional Law Commission decided early on (1949) to exclude the law of war from its
subjects for codication. The International Conference on Human Rights, held in
Tehran in 1968, marked, in this respect, an important change. Resolution XXIII
requested
the General Assembly to invite the Secretary-General to study:

(a) Steps which could be taken to secure the better application of existing humani-
tarian international conventions and rules in all armed conicts;
(b) The need for additional humanitarian international conventions or for possi-
ble revision of existing Conventions to ensure the better protection of civilians,
prisoners and combatants in all armed conicts and the prohibition and limita-
tion of the use of certain methods and means of warfare;252
249 Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in
Time of War (1956), Articles 8-9.
250 Bothe and al. supra note 244, at 275.
251 Respect for Human Rights in Armed Conicts. Report of the Secretary-General,
A/7720, para. 19 (1969).
252 Tehran Conference on Human Rights (1968), Resolution XXIII.
66 Chapter 1
In Resolution 2444 (XXIII) (1969) entitled Respect for Human Rights in Armed
Conicts, the UN General Assembly, concurring with the principles laid down by
the Tehran Conference, declared
(a) That the right of the parties to a conict to adopt means of injuring the enemy
is not unlimited;
(b) That it is prohibited to launch attacks against the civilian population as such;
(c) That distinction must be made at all times between persons taking part in the
hostilities and members of the civilian population to the eect that the latter be
spared as much as possible ... 253
This resolution, which the United States considered as declaratory of customary

law,254 was followed by other General Assembly Resolutions stating similar prin-
ciples. The Secretary-General noted that Resolution 2444 was the
[f ]irst pronouncement and decision by a principal organ of the United Nations which
endorse[d] general standards and initiat[ed] comprehensive United Nations studies
as regards the application of basic humanitarian principles in armed conicts.255
The resolution manifest[ed] the concern of the United Nations for the initia-
tion of constructive international action with a view to safeguarding basic human
rights even during periods of armed hostilities.256 In his 1970 Report, the Secre-
tary-General added:
It is the understanding of the Secretary-General that the purpose of the General As-
sembly in examining the question of respect for human rights in armed conicts is
a humanitarian one, independent of any political considerations which may relate to
specic conicts. It is an endeavour to provide a greater degree of protection for the
integrity, welfare and dignity of those who are directly aected by military operations
pending the earliest possible solutions of such conicts.257
The two reports of the Secretary-General amounted to a detailed study of hu-

manitarian law rules and recommendations to ensure full protection for civil-
ians, combatants and prisoners of war. From 1968 to 1977, the General Assembly
253 General Assembly Resolution 2444 (XXIII).

254 Meron, supra note 5, at 69-70.
A/7720, para. 20 (1969).
256 Id., para. 21 (1969).
A/8052, para. 13 (1970).
adopted at least one annual resolution on the rearmation and development of

humanitarian law at each of its sessions.258
The principles laid down by Resolution 2675 (XXV) (1970), entitled Basic
Principles for the Protection of Civilian Populations in Armed Conicts, were
largely incorporated in Additional Protocol I.259 The inuence of human rights
thinking on the revision of the law of war was central. Draper thus wrote in 1972
that the law of war and the regime of international human rights have met, are
fusing together at some speed, and that in a number of practical instances the
regime of International Human Rights is setting the general direction, as well as
providing the main impetus of the revision of the Law of War.260 Another hu-
manitarian law scholar, Dietrich Schindler, also recognized this development:
Humanitarian law had also acquired increased relevance as a result of its growing
connection with human rights law. After remaining during the early years of the
United Nations outside the eld of interest of the Organization, it had, starting in
the late 1960s, slowly become a companion of, and a complement to, human rights
law.261
The draft protocol submitted by the ICRC at the 1974-1977 Conference was based
on the 1956 ICRC Draft Rules for the Limitation on Dangers to the Civilian Popu-
lation in Times of War. The proposal to codify the principle of proportionality was
criticized by some States as rendering illusory the prohibition of attacks against
civilians and civilian objects. These critics warned that the principle of propor-
tionality would set a seal of approval on incidental civilian casualties. The ICRC
replied that it:
constantly had to bear in mind the fact that the ideal was the complete elimination,
in all circumstances, of losses among the civilian population. But to formulate that
ideal in terms of impracticable rules would not promote either the credibility or the
eectiveness of humanitarian law. In order to establish a balance between the various
factors involved, the ICRC was proposing a limited rule, the advantage of which was
that it would be observed.262
This exchange reects the recurrent clash (in the Rome Conference, for exam-
ple) between those, especially in the human rights community, who seek a total
258 General Assembly Resolutions 2676 (XXV), 2677 (XXV), 2853, 2853, 3032 (XXVII),
3102 (XXVIII), 3319, 3500, 31/19 and 32/44.
259 General Assembly Resolution 2675 (XXV).
260 Draper (1972), cited in Robblee, The Legitimacy of Modern Conventional Weaponry,
in Revue de Droit Pnal Militaire de Droit de la Guerre 389, 408-409.(1977).
261 Proceedings of United Nations Congress on Public International Law: International
Law as a Language of International Relations 472 (1996).
262 CDDH, Ocial Records, CDDH/III/SR.21, para. 7, cited in Bothe supra note 244, at
361.
68 Chapter 1
prohibition on civilian losses and those who seek to limit such losses through the
principle of proportionality. Unfortunately, as long as armed conicts occur, civil-
ian losses will be inevitable. Regulating such losses is therefore more constructive
than declaring a wholly illusory principle.
In a study of State practice from World War II, Hays Parks noted that con-
cern for collateral enemy civilian casualties [was] a relatively new phenomenon,
and one exercised by few nations to date.263 It has been voiced mainly about air
attacks. The increasing public concern for civilian collateral injuries in the Post-
World War II period has, however, been abused by increasing resort to the use of
human shields in some conicts.
The main provisions on proportionality in Additional Protocol I are Articles
51 and 57. The principle, as stated in Article 51(5)(b), prohibits
[a]n attack which may be expected to cause incidental loss of civilian life, injury to
civilians, damage to civilian objects, or a combination thereof, which would be exces-
sive in relation to the concrete and direct military advantage anticipated.
Under Article 49(2), the Protocols provisions on attacks are applicable both to
indiscriminate attacks and to attacks which violate the principle of proportional-
ity, in whatever territory conducted, including the national territory belonging
to a Party to the conict but under the control of an adverse Party. These provi-
sions are thus applicable also to defensive attacks which may aect a Partys own
civilian population. This contrasts with the traditional law of war, in which the
regulation of methods of warfare was largely restricted to protecting persons and
property of the adverse party.
The language of the Protocol has given rise to controversy about assessing
collateral damage in relation to the scope, dimensions, and duration of the mili-
tary attack. For the specic purpose of dening war crimes, the Statute of the In-
ternational Criminal Court restated the principle of proportionality by inserting
a reference to the context of an overall military advantage and intention. Article
8(2)(b)(iv) thus prohibits
[i]ntentionally launching an attack in the knowledge that such attack will cause in-
cidental loss of life or injury to civilians or damage to civilian objects or widespread,
long-term and severe damage to the natural environment which would be excessive
in relation to the concrete and direct overall military advantage anticipated.
The requirement of knowledge was added to protect military commanders who

make honest mistakes from war crimes prosecutions. Both the use of the term
overall to dene the parameters of the attack within which the overall military
advantage is assessed and the requirement of knowledge present dicult ques-
tions. By stating in the elements of crime that [s]uch advantage may or may not
263 Hays Parks, The Protection of Civilians from Air Warfare, [1998] Israel Y.B. Hum.
Rights 65, 97.
be temporally or geographically related to the object of the attack, the ICC Pre-
paratory Commission has attempted, perhaps not very successfully, to clarify the
term overall.
II. Weapons of a Nature to Cause Unnecessary Suffering or to be Inherently

Indiscriminate
Apart from weapons the prohibition of which has been triggered by moral abhor-
rence, the history of the law of war has been that of the shifting balance between
the requirements of humanity and military necessity. As George Abi-Saab has
observed,
The one is subjective, depending on the dominant moral ideas and degree of com-
munity feeling obtaining among major contenders in society; the other is objective,
depending on the evolution of military technology and strategic thought. It is the
dialectical relation between these two forces, in light of historical experience, which
determines the contents, contours and characteristics of the law of war at any mo-
ment in time.264
The two basic principles of the law of armed conicts concerning the use of weap-
ons are that weapons should neither cause unnecessary suering to combatants
nor be used in a manner that will indiscriminately aect both combatants and
non-combatants.265 These rules are now codied in Article 35 and 51(4) of Ad-
ditional Protocol I.
a) Weapons of a Nature to Cause Unnecessary Suffering

The prohibition against the use of weapons causing unnecessary suering stems
from the principle that the right of belligerents to adopt means of combat is not
unlimited. This principle was rst articulated in the Preamble of the 1868 Decla-
ration of Saint Petersburg:
That the only legitimate object which States should endeavour to accomplish during
war is to weaken the military forces of the enemy;
That for this purpose it is sucient to disable the greatest possible number of men;
That this object would be exceeded by the employment of arms which uselessly ag-
gravate the suerings of disabled men, or render their death inevitable;
264 Abi-Saab, supra note 21, at 265. He cites the St-Petersburg Declaration of 1868 which
refers to the technical limits at which the necessities of war ought to yield to the
requirements of humanity , and the preamble of the 1899 Hague Convention (II)
which reads in part: as inspired by the desire to diminish the evils of war, as far as
military requirements permit.
265 Fenrick, The Conventional Weapons Convention: A Modest but Useful Treaty, Intl
Rev. Red Cross, No. 279 (Nov.-Dec. 1990) 498, 499.
70 Chapter 1
That the employment of such arms would, therefore, be contrary to the laws of hu-
manity
The Declaration thus dealt with a central issue of the law of war: the equilibrium
between military necessity and the requirements of humanity. As Greenwood
puts it, humanitarian law accepts that one of the legitimate objects of warfare
is to disable enemy combatantsbut it rejects the use of weapons which cause
additional suering for no military gain.266 The Declaration did not prohibit all
use of explosive munitions. It distinguished between anti-personnel (certain
specied small caliber rie bullets) and anti-material (artillery shells) muni-
tions. Kalshoven thus rightly observed that whatever the injuries artillery shells
can inict on individual soldiers, they would be considered indispensable and not
be sacriced on the altar of humanity.267
Two dierent tests can be used to characterize a weapon as causing unneces-
sary suering. The rst is linked to the principle of proportionality. The principle
of unnecessary suering aims at prohibiting or limiting the use of weapons which
inict suering unnecessary to the accomplishment of legitimate military objec-
tives. The U.S. Air Force Manual (1976) thus states:
Weapons are lawful, within the meaning the prohibition against unnecessary suer-
ing, so long as the foreseeable injury and suering associated with wounds caused by
such weapons are not disproportionate to the necessary military use of the weapons
in terms of factors such as eectiveness against particular targets and available alter-
native weapons The critical factor in the prohibition against unnecessary suering
is whether the suering is needless or disproportionate to the military advantages
secured by the weapon, not the degree of suering itself. 268
On this general proposition there has been general agreement. But there is no
agreement on the criteria to evaluate where the balance should be struck. The
evaluation is, thus, highly subjective. In practice legality turns on the intended
purpose of the weapon.269 When assessing the military advantage, there is con-
troversy as to whether the disablement of the greatest possible number of enemy
combatants is the sole consideration or whether other military requirements
may be factored in. The latter position is reected in the U.S. representatives for-
mulation of the proportionality test at the Lucerne Conference (1974):
266 Greenwood in Fleck and al., supra note 83, at para. 119.
267 Frits Kalshoven, Arms, Armaments and International Law, 191 Recueil des Cours at
208 (II-1985).
268 U.S. Air Force Pamphlet 110-31, 19 Nov 1976, para. 6.
269 Doswald-Beck, International Humanitarian Law and the Advisory Opinion of the
International Court of Justice on the Legality or the Threat or Use of Nuclear Weapons,
Intl Rev. Red Cross No. 316, 35 (1997), at 45.
in determining whether weapons cause unnecessary suering one must consider

the military utility of the weapon and determine whether the incidental suering is
needless, superuous or disproportionate to the military advantage expected from
the weapon. The importance of military utility in this balance makes it essential that
we not oversimplify that part of the equation.
In applying the legal test of the Hague Regulation Article 23 (e) we must bear in mind
that weapons are designed and produced to be used to attain military requirements.
Some examples of such requirements include the disablement of the greatest pos-
sible number of enemy combatants, the destruction or neutralization of his military
material, restriction of his military movement, the interdiction of his military lines of
communication, the weakening of his military resources, and the enhancement of the
security of friendly forces. 270
To render the concept of military advantage more objective, resort to compari-

son with existing weapons has been suggested. A legal memorandum of the U.S.
Department of the Army on the legality of open-tip ammunition (1990) thus
states:
What is prohibited is the design (or modication) and employment of a weapon for
the purpose of increasing or causing suering beyond that required by military ne-
cessity. In conducting the balancing test necessary to determine a weapons legality,
the eects of a weapon cannot be viewed in isolation. They must be examined against
comparable weapons in use on the modern battleeld, and the military necessity for
the weapon or projectile under consideration.271
The second test, also derived from the Saint-Petersburg Declaration, focuses on
the eects of weapons. In the wording of the Declaration, weapons causing un-
necessary suering are weapons that render death inevitable. Cassese has noted
that:
Weapons are to be deemed unlawful when they are such as to produce death when-
ever and in whatever manner they hit the enemy. Put it another way, a weapon is
legitimate if, by striking the adversary, it can either kill or wound him, depending on
the circumstances. By contrast, it is not in keeping with international law if it always
results in killing all persons who in some way happen to be struck by it.272
270 Statement of the Chief of the International Aairs Division (W. Solf ), at the Lucerne
Conference at 709 (1974) [1974] Digest of United States Practice in International Law
708-09 (Arthur W. Rovine ed.).
271 Memorandum of Law on Sniper use of Open-Tip Ammunition (1990), in US Practice
Report (ICRC Study), Annex 3-14, at 3
272 Cassese, Weapons Causing Unnecessary Suering: Are they Prohibited?, 58 Rivista di
Diritto Internazionale 12, 18 (1975),
72 Chapter 1
Some participants at the 1899 Hague Conference had taken the view that weapons
causing incurable wounds were also unlawful.273 They urged support for such
humanitarian factors as the degree of disability, the risk of death, the overburden-
ing of medical resources, and public opinion.274 This approach has not prevailed,
perhaps because regulation of the use of weapons was seen as a question of tech-
nology rather than of weapons eects on humans.275 Nevertheless, the German
Military Manual adopts a test based on the eects on humans to dene prohibited
weapons.276
The ICRC has sought to nd a more objective measurement of the eects of
the use of weapons on humans. To this end, the ICRC has undertaken a project
which aims at quantifying which weapons cause superuous injury or unneces-
sary suering on the basis of their eects on human health. From a study of the
eects of conventional weapons using data collected from ICRC hospitals, the
ICRC has attempted to dene criteria as to what constitutes a weapon of a nature
to cause unnecessary suering.277 The ICRC argued that all weapons the use of
which is specically controlled or prohibited exceed the baseline of injuries seen
in recent conicts. The ICRC proposed that States, when reviewing the legality
of a weapon, take the ICRC baselines into account by establishing whether the
weapon in question would cause any of the negative eects listed as a function of
its design. When such eects are produced, the State should weigh the military
utility of the weapon against these eects and determine whether the same mili-
tary purpose could reasonably be achieved by other lawful means that do not have
such eects. An important aspect of the ICRC proposals was that its beneciaries
would primarily be combatants.
Whether States will be ready to base weapon prohibitions on such criteria is
doubtful. The ICRC approach would lead to the presumptive illegality of nuclear
weapons, which the nuclear States would strongly resist. Of course, any eort
which would lead to reduction of death and suering is to be welcomed. Medical
guidelines for the use of governments in developing new weapons could be help-
ful. But governments are unlikely to agree that such guidelines should be either
exclusive or dispositive of legality. In some cases of weapons considered inherent-
ly abhorrent (e.g., blinding laser weapons), governments have agreed to absolute
prohibitions. But the more typical approach has been to balance military neces-
sity with unnecessary suering. Christopher Greenwood puts it well:
It is, however, important to realize that the fact that a particular weapon meets one
of these criteria is not, in itself, sucient to brand it as unlawful without considera-
273 Id., at 17.

274 Robblee, supra note 260, at 418.
275 Robin M. Coupland , The SirUS Project (1997), at 14.
276 Meyrovitz, The Principle of Superuous Injury or Unnecessary Suering, Intl Rev. Red
Cross No. 299, 98 at 118 (Mar.-Apr. 1994).
277 Coupland, supra note 275, at 14.
tion of the military advantages which that weapon may oer. For example, the fact
that soldiers cannot take cover from a particular type of weapon willheighten the
reaction of abhorrence produced by such a weapon but it is also the very inability of
soldiers to take cover that means that the weapon will, in the language of the 1868
Declaration, disable the greatest possible number of enemy combatants and which
thus gives it military eectiveness when compared with other weapons.278
Although the general principle prohibiting weapons of a nature to cause unnec-

essary suering is well-established, rare are the cases of weapons declared ille-
gal solely on the basis of that principle. Decline in use of weapons is sometimes
caused by the humanizing eect of public opinion279 or by limited military eec-
tiveness. Maurice Aubert thus has written that:
To date, a ban on such weapons [conventional weapons] has been accepted only for
those which, in view of the disparity between their military eectiveness and the
degree of superuous injury and unnecessary suering they cause, are without any
real interest as means of combat (i.e. dum-dum bullets, non-detectable fragments,
exploding booby-traps in the form of harmless-looking objects). As regards militarily
eective weapons (incendiary devices and mines), we cannot but hope that their use
will be conned as far as possible to the actual combatants so as to avoid indiscrimi-
nate harm to civilians, civilian objects and the environment280
In contrast to a reasonable acceptance of the need to protect civilians from the

eect of hostilities, there is a lack of will on the part of a number of leading States
to seriously consider the fate of combatants.281
b) Weapons that are Inherently Indiscriminate

The prohibition of indiscriminate attacks is distinct from, but closely related to
the principle of proportionality.282 In the Nuclear Weapons case, the Court held
that States must never make civilians the object of attack and must consequently
never use weapons that are incapable of distinguishing between civilian and mili-
tary targets.283 Doswald-Beck wrote that the Court thus assimilated an indiscrim-
inate attack to a direct attack on civilians.284 Indiscriminate means and methods
of warfare are dened in Additional Protocol I as:
278 Greenwood, International Humanitarian Law and the Laws of War: Preliminary Re-
port for the Centenial Commemoration of the First Hague Peace Conference 1899 at
43 (1998).
279 Doswald-Beck, supra note 20, at 46-47.
280 Aubert, supra note 248, at 477-478.
281 Louise Doswald-Beck and Grald Cauderay, The Development of New Anti-Personnel
Weapons, Intl Rev. Red Cross, No. 279, at 565, 574-75 (1990).
282 Doswald Beck supra note 269, at 38.
283 Nuclear Weapons Advisory Opinion, supra note 67, at para. 78.
74 Chapter 1
(b) those which employ a method or means of combat which cannot be directed at
a specic military objective; or
(c) those which employ a method or means of combat the eects of which cannot
be limited as required by this Protocol;
and consequently, in each such case, are of a nature to strike military objectives and
civilians or civilian objects without distinction.285
One of the criteria for labeling a weapon to be inherently indiscriminate is that

it cannot be directed at a specic military objective. This prohibition does not
depend on the principle of proportionality or collateral damage. Instead, as sug-
gested by Doswald-Beck, it depends on the principle of distinction. This is the
case where the weapon, even when aimed accurately and functioning correctly,
is likely torandomly hit combatants and civilians to a signicant degree.286 It
may be recalled that Article 14 of the Draft Rules for the Limitation of the Dangers
Incurred by the Civilian Population in Time of War (1956) provided that
Without prejudice to the present or future prohibition of certain specic weapons,

the use is prohibited of weapons whose harmful eects resulting in particular from
the dissemination of incendiary, chemical, bacteriological, radioactive or other agents
could spread to an unforeseen degree or escape, either in space or in time, from the
control of those who employ them, thus endangering the civilian population.287
Even weapons which are not inherently indiscriminate can be used to strike with-
out distinction. Such use is, of course, proscribed.
Kalshoven has noted that the prohibitions of unnecessary suering and of
weapons of an indiscriminate character are useful guidelines,288 as in the case for
the prohibition of dum-dum bullets in 1899 and the restrictions on the use of cer-
tain weapons in the Protocols of the 1980 Convention. The U.S. military manual
suggests an empirical approach: [w]hat weapons cause unnecessary suering can
only be determined in light of the practice of States in refraining from the use of
a given weapon because it is believed to have that eect.289
In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weap-
ons, the ICJ conrmed that weapons whose use violates the fundamental prin-
ciples of humanitarian law are illegal.
285 Additional Protocol I, supra note 36, at Article 51 (4).

287 Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in
Time of War (1956), Article 14
288 Kalshoven, The Conventional Weapons Convention: Underlying Legal Principles, Intl
Rev. Red Cross No. 279, Nov.-Dec. 1990 510,517.
289 US Manual (FM27-10), supra note 54, para. 34.
humanitarian law, at a very early stage, prohibited certain types of weapons either
because of their indiscriminate eect on combatants and civilians or because of the
unnecessary suering caused to combatants, that is to say, a harm greater than that
unavoidable to achieve legitimate military objectives. If an envisaged use of weapons
would not meet the requirements of humanitarian law, a threat to engage in such use
would also be contrary to that law.290
No specic prohibition on the use of nuclear weapons was found. But were nu-
clear weapons prohibited by implication from generally accepted customary rules
of international humanitarian law? Some States argued that any use of nuclear
weapons would violate the rule against the use of weapons which by their nature
cause unnecessary suering.291 They suggested that such use would also violate
principles of proportionality and limiting collateral damage. The United States
and some others States responded, as Matheson wrote, that this rule was intend-
ed to preclude weapons designed to increase suering beyond that necessary to
accomplish any legitimate military objective, and that the use of nuclear weapons
would accordingly not be prohibited if it were required to accomplish a legitimate
military mission, even if severe injuries were caused.292 Regarding the legality of
collateral damage, the United States argued that this depended on the principle of
proportionality, requiring a case-by-case assessment.293 While declining to decide
whether all uses of nuclear weapons were prohibited by principles of internation-
al humanitarian law, the Court stated that, in view of their characteristics, the use
of nuclear weapons seemed hardly reconcilable with those principles.294
Some States argued that any use of nuclear weapons would violate the prin-
ciple of distinction.295 Thus, Egypt suggested that
[t]he use of nuclear weapons is prohibited not because they are or they are called
nuclear weapons. They fall under the prohibition of the fundamental and manda-
tory rules of humanitarian law which predate them, by their eects, not because they
are nuclear weapons, but because they are indiscriminate weapons of mass destruc-
tion.296
The United States and the United Kingdom responded:
290 Nuclear Weapons Advisory Opinion, supra note 67, at paras 78-79.
291 Matheson, The ICJ Opinions on Nuclear Weapons, 7 Transnational Law & Contem-
porary Problems 354 (1997), at 363 (at note 49) (discussing Egypt, India, Mexico, Swe-
den).
292 Id., (at note 50) (discussing Netherlands, Russia, the United Kingdom).
293 Id., at 362.
294 Nuclear Weapons Advisory Opinion, supra note 67, para. 95.
295 Matheson, supra note 291, at 362 (at note 45) (discussing Egypt, India, Mexico, Solo-
mon Islands).
296 Verbatim Record, 1 November, at 39; in Burroughs , supra note 92, at 96.
76 Chapter 1
this principle prohibits the directing of attacks against non-military targets and the
use of weapons that cannot be directed against specic military targets but does
not prohibit the use of nuclear weapons, which can be accurately directed to their
targets by modern delivery systems.297
The United States further asserted that [u]nder the law of armed conict, in the
absence of an express prohibition, the legality of the use of any weapons is fun-
damentally dependent on the facts and circumstances of the use in question.298
Advancing a contextual approach, it maintained that
The reality is that nuclear weapons might be used in a wide variety of circum-
stances with very dierent results in terms of likely civilian casualties. In some cases,
such as the use of a low yield nuclear weapon against warships on the High Seas or
troops in sparsely populated areas, it is possible to envisage a nuclear attack which
causes comparatively few civilian casualties. It is by no means the case that every use
of nuclear weapons against a military objective would inevitably cause very great col-
lateral civilian casualties.299
The United States argument thus was that nuclear weapons can be used in a man-
ner limited to military objectives. The Court declined to make a determination,
considering that it does not have sucient elements to enable it to conclude
with certainty that the use of nuclear weapons would necessarily be at variance
with the principles and rules of law applicable in armed conict in any circum-
stance.300
Judge Guillaume agreed that the prohibition of so-called blind weapons
which are incapable of distinguishing between civilian targets and military tar-
gets was absolute, but considered that nuclear weapons did not fall into this cat-
egory. He did not think that nuclear weapons violated the prohibition of excessive
collateral injuries in all circumstances:
nuclear weapons could not be regarded as illegal by the sole reason of the suering
which they are likely to cause. Such suering must still be compared with the mili-
tary advantage anticipated or with the military objectives pursued.301
Whether nuclear weapons have reached the degree of widespread public ab-
horrence which characterizes reactions to bacteriological or chemical weapons
is still unclear. Perhaps many believe that nuclear weapons have served to keep
297 Matheson supra note 291, at 362 (at note 46).

298 Verbatim Record, 15 November 1995, at 85; in Burroughs, supra note 92, at 96.
299 United Kingdom, Written Statement, p. 53, para. 3.70; United States of America, Oral
Statement, CR95/34, pp. 89-90, cited in the Nuclear Weapons Advisory Opinion, su-
pra note 67, at para. 94.
300 Nuclear Weapons Advisory Opinion, supra note 67, at paras. 94-95.
301 Id., Individual opinion of J. Guillaume, at 59.
the peace during the Cold War, or because only a few countries have operational
nuclear weapons. Whatever the reason, the Advisory Opinion does not declare
nuclear weapons to be totally prohibited. As Matheson puts it:
The Court was clear in its conclusions that international law does not specically
prohibit the threat or use of nuclear weapons, and that international law applicable
to the use of force including the relevant provisions of the Charter and the law of
armed conict applies to nuclear weapons as to any other type of weapon. How-
ever, on the question of whether the threat or use of nuclear weapons would in fact be
consistent with the law applicable to the use of force, the Court was only able to nd
(by a vote of 7-7) that such threat or use would generally be contrary to the rules
applicable in armed conicts. It could not conclude whether this would be so in an
extreme circumstance of self-defence, in which the very survival of a State would be
at stake. Further, the Court expressly declined to state a view on the legality of the
policy of nuclear deterrence, or of belligerent reprisals using nuclear weapons.
Nevertheless, except for the extreme circumstance of self-defence in which the

very survival of a State is at stake, the ICJ held that the threat or use of nuclear
weapons would generally be contrary to the principles and rules of international
humanitarian law.302 In reality, it is dicult to envisage uses of nuclear weapons
which would not violate the principles of distinction and proportionality, and the
prohibition of causing unnecessary suering.
In the view of the ICRC, the total prohibition of certain weapons, from ex-
ploding bullets to chemical and bacteriological weapons, was not based on an
objective analysis of the suering caused by the weapons concerned; such means
of warfare were simply deemed abhorrent or inhuman.303 In such cases, no
proportionality test or military advantage questions were deemed relevant.
Nevertheless, these bans did not automatically ow from general principles
or customary law, or from an absence of authorization, but from treaties spe-
cically prohibiting the use of certain weapons of mass destruction.304 The Rome
Statute of the ICC followed the same approach, refusing to prohibit categories of
weapons as inherently indiscriminate by simply drawing on such general prin-
ciples. Of course, the ICC reects the needs of criminal law, where the greatest
specicity is required.
302 Id., at para. 105.

303 Id., Report of the ICRC for the Review Conference of the 1980 United Nations Con-
vention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Eects,
February 1994, at 132; Coupland, supra note 275, at 12.
304 Nuclear Weapons Advisory Opinion, supra note 67, at paras. 52, 57.
78 Chapter 1
c) The Regulation of Weapons Causing Unnecessary Suffering and of

Indiscriminate Weapons
Up to the early 1970s, the prevailing notion was that the regulation of specic
weapons belonged to the eld of disarmament and was outside the scope of hu-
manitarian law. In the Conference of the Committee on Disarmament, military
considerations were given major weight.
In 1971 and 1972, the ICRC convened a conference of government experts on
the rearmation and development of international humanitarian law applicable
in armed conicts. During the conferences second session, the representatives
of 19 governments asked the ICRC to consult with experts on the question of
the use of such conventional weapons as may cause unnecessary suering or be
indiscriminate in their eect. This consultation resulted in a purely descriptive
report which made no specic proposals prohibiting or restricting the use of cer-
tain weapons. The subject was discussed both during the preparatory work and
throughout the diplomatic conference (1974-1977), but the 1977 Protocols Ad-
ditional to the Geneva Conventions contain no formal prohibition on specic
weapons. Additional Protocol I merely states the general principle prohibiting the
use of weapons and methods of warfare of a nature to cause superuous injury or
unnecessary suering305 and indiscriminate methods and means of combat.
At the request of the XXIInd International Conference of the Red Cross, the
ICRC convened the rst session of the Conference of Government Experts on
Weapons that May Cause Unnecessary Suering or Have Indiscriminate Eects
in Lucerne in 1974. Another meeting of the Conference of Government Experts
was held in Lugano in 1976. Resolution 22 of the diplomatic conference recom-
mended that a Conference of Governments should be convened not later than
1979 with a view to reaching agreements on prohibitions or restrictions on the
use of specic conventional weapons, including those which may be deemed to
be excessively injurious or have indiscriminate eects, taking into account hu-
manitarian and military considerations. The General Assemblys support for this
recommendation306 led to the 1980 United Nations Conference on Prohibitions or
Restrictions of Use of Certain Conventional Weapons which may be Deemed to
be Excessively Injurious or to have Indiscriminate Eects.
The resulting 1980 Convention is structured as a basic Convention with an-
nexed Protocols. The preamble to the 1980 Convention recalls the general prin-
ciples of the protection of the civilian population against the eects of hostilities
and the prohibition on the employment of methods and means of warfare likely
to cause superuous injury or unnecessary suering. The Protocols provide for
the prohibition of certain weapons (non-detectable fragments and booby-traps)
and restrictions on the use of others (mines and incendiary weapons). Fenrick has
305 Resolution 22 was adopted by the CDDH recommending that a conference of govern-
ments should be convened no later than 979 with a view to reaching agreements on
prohibitions or restrictions on the use of specic conventional weapons. The General
Assembly of the United Nations supported their recommendation.
306 Resolution 32/152 (1977), 33/70 (1978) and 34 (1979).
noted that although the Conference was entitled United Nations Conference on
Prohibitions or Restrictions of Use of Certain Conventional Weapons which may
be Deemed to be Excessively Injurious or to have Indiscriminate Eects,
neither the Convention nor its annexed protocols specically deemed any weapons
to be excessively injurious or to have indiscriminate eects. They simply prohibited
weapons which cause injury by means of undetectable fragments and imposed re-
strictions on the use of mines, booby-traps, and incendiary weapons.307
The Protocol on non-detectable fragments (Protocol I) prohibits the use of weap-

ons whose fragments in the human body escape detection by X-rays. It is doubt-
ful whether such weapons have ever been used. Prohibiting these weapons was
proposed because many at the time believed that the United States had used such
weapons in Vietnam. The prohibition received unanimous support because none
of the States participating in the Weapons Conference had such weapons in their
inventory nor did they foresee any conceivable use of such weapons.308 Nonethe-
less, two aspects of the prohibition are noteworthy. The rst is that the prohibi-
tion
is in line with earlier prohibitions on use of conceivable but not really existing meth-
ods or means of warfare, such as the gas projectiles of 1899. The other remarkable
aspect is that this particular ban is one of the very few successes scored in the strug-
gle to protect not only civilians but combatants as well from the eects of specied
weapons.309
Incendiary weapons present two main military advantages: eectiveness over a

wide area, and low-cost, easy manufacture. These advantages explain their fre-
quent use in guerrilla warfare. Incendiary weapons are extremely destructive.310
The injuries they cause (burns and lesions due to the release of toxic gases) are
particularly painful and, for eective treatment, require more hospital facilities
than ordinary bullet or shrapnel wounds. Protocol III to the 1980 Convention
introduced the regulation of the use of incendiary weapons.311 Under the Protocol,
it is prohibited to use incendiary weapons to attack:
307 William Fenrick, The Conventional Weapons Convention: A Modest but Useful Treaty,
International Review of the Red Cross, No. 279, at 498, 499 (1990); Frits Kalshoven,
The Conventional Weapons Convention: Underlying Legal Principles, Intl Rev. Red
Cross No. 279, at 510, 515 (1990).
308 Fenrick, supra note 265, at 503.
309 Kalshoven, supra note 267, at 252.
310 Aubert, The International Committee of the Red Cross and the Problem of Exces-
sively Injurious or Indiscriminate Weapons, Intl Rev. Red Cross No. 279, 477 (Nov.-
Dec.1990), at 489.
311 US Manual (FM27-10), supra note 54, at 18; British Manual, supra note 54, at para.
109.
80 Chapter 1
the civilian population or civilian objects;

any military objective within a concentration of civilians, from an aircraft;
any such objective using means other than aircraft unless it is clearly sepa-
rated from the concentration of civilians and precautions have been taken to
avoid harming them.
Although Protocol III does not actually prohibit the use of incendiary weapons,
Doswald-Beck has suggested that the political sensitivity of incendiary weapons
has in practice virtually eliminated their use against personnel.312 The recent use
of thermobaric weapons which appear related to the so-called fuel-air explo-
sives against cave complexes in Afghanistan may raise doubts about this san-
guine perspective.
Of course, the negotiation of prohibitions or regulations of additional weap-
ons is a continuing process. In 2003, the parties to the CCW adopted Protocol
(V) on Explosive Remnants of War, and thus minimize the risks and eects of
explosive remnants of war in post-conict situations. Explosive remnants of war
(ERW) are dened as unexploded ordnance (UXO), including cluster bombs,
which cause major humanitarian problems and mines other than anti-personnel
mines, including anti-vehicle mines, as well as abandoned explosive ordinance.
The Protocol requires marking, removal and destruction of explosive remnants of
war in territories under a partys control.313 Negotiations are continuing towards
the adoption of yet another protocol, one restricting and regulating the use of
anti-vehicle mines (AVM) or mines other than anti-personnel mines314
d) Anti-Personnel Land Mines

In the 1970s, political and technical factors triggered interest in restricting land
mines. The development of scatterable land mines has enhanced the military ef-
fectiveness of landmine warfare. It has led to changes not only in the mines them-
selves but also in their usage. No longer conned to defensive tactics, the use of
land mines has expanded to oensive strategies.315 For example, scatterable land
mines were used in Vietnam and Cambodia as long-term, land-denial weapons.
The USSR also used this method in Afghanistan, as oensive weapons of terror
and vengeance, often expressly targeted against civilians.316 Concerns for the se-
curity of the civilian population have been heightened by such developments,317
312 Doswald-Beck supra note 20, at 70, n. 39.

313 David Kaye and Steven A. Solomon, The Second Review Conference of the 1980 Con-
vention on Certain Conventional Weapons, 96 AJIL 922, 933 (2002).
314 Id. at 931.
315 Land mines, a Deadly Legacy 266 (1993).
316 McCall, Infernal Machines and Hidden Death: International Law and Limits on the
Indiscriminate Use of Land Mine Warfare, 24 Ga. J. Intl & Comp. L. 229, (1994), at
245.
317 Andrew C.S. Efaw, The United States Refusal to Ban Landmines: The Intersection Be-
tween Tactics, Strategy, Policy, and International Law, 159 Military L.R. 87, at 107
and by the more extensive use of mines by armed groups, both in conventional
non-international armed conicts and in terrorist actions.318
The basic policy underlying the Land Mines Protocol (1980) is to prohibit
in all circumstances to direct [land mines] either in oence, defence or by way
of reprisals, against the civilian population as such or against individual civilians
or civilian objects.319 Since both deliberate targeting of civilians and civilian ob-
jects and indiscriminate use are prohibited, mines may be directed only at mili-
tary objectives. All feasible precautions must be taken to protect civilians from
the eects of these weapons. The Protocol provides for restrictions on the use of
mines (other than remotely delivered mines), booby-traps and other devices in
populated areas. It also prohibits the use of such weapons in any city, town, vil-
lage or urban area in which combat is not taking place or does not appear to be
imminent. This prohibition applies unless the mines are placed on, or in the close
vicinity of, a military objective belonging to the adverse party or unless measures
have been taken to protect the civilian population, such as the posting of warning
signs or the posting of sentries or fencing. The use of remotely delivered mines is
prohibited unless they are used within an area which is itself a military objective
and unless their location can be recorded or a neutralizing mechanism exists to
deactivate them, once they no longer serve any military purpose. Advance warn-
ing must be given of any delivery of such mines which may aect the civilian
population except if circumstances do not permit. The parties to a conict must
record all mineelds.
Land Mines Protocol II mainly addresses the protection of civilians and non-
combatants.320 The use of land mines against military personnel is not prohibited,
even though certain types of mines could be of a nature to cause unnecessary
suering.321 The Protocol, however, prohibits in all circumstances the use of any
booby-trap in the form of an apparently harmless portable object which contains
explosive material and detonates when it is disturbed. The same applies to boo-
by-traps which are attached to a protective emblem such as the red cross or the
red crescent, to the wounded or the dead, to medical equipment or to childrens
toys.
The Protocol contains few new limitations on the use of land mines. The
provisions merely spell out, for land mines, the application of the general rules
regulating the means and methods of warfare. Fenrick concluded that [i]n sum-
(1999).
318 Carnahan The Law of Land Mine Warfare: Protocol II to the United Nations Conven-
tion on Certain Conventional Weapons, 22 Rev. de Droit Pnal Militaire et de Droit
de la Guerre 118 (1983), at 121-122.
319 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Oth-
er Devices (Protocol II). Geneva, 10 October 1980, Article 3(2), 1342 UNTS 168, 19
ILM 1529 (1980).
320 Carnahan, supra note 318, at 121-122.
321 McCall supra note 316, at 263.
82 Chapter 1
mary, the Protocol on the uses of mines is a modest advance in the law; for the
most part, it merely codies national practice.322
The amended CCW Protocol II (1996) introduced a number of welcome
changes. The scope of the Protocol was extended to common Article 3 conicts.323
All remotely delivered mines had to be equipped with a self-destruct device and
a back up self-deactivation feature, which is designed so that the mine will no
longer function as a mine when the mine no longer serves the military purpose
for which it was placed in position.324 Non-remotely delivered mines must be
equipped with a self destruct mechanism or be conned to monitored perim-
eter-marked areas protected by fencing or other means to ensure the exclusion of
civilians from the area.325 The Protocol also addresses issues such as detectability,
clearance, transfer, and recording.
The results of the 1996 Review Conference were widely criticized because
they fell short of a total prohibition.326 Support for the 1996 Amended Protocol
and support for a complete ban on land mines were not contradictory, however.
The restrictions on the use of land mines imposed by the Amended Protocol were
the most stringent that could be accepted on the basis of consensus. As Matheson
noted, it was better to adopt an instrument acceptable to States opposed to a total
ban than to adopt a total ban in which those States would not participate.327
Meanwhile, support for a total ban on the use of land mines grew rapidly.
In just ve years, the initial call in 1992 by six NGOs led to a coalition of about a
thousand (the International Campaign to Ban Land Mines).328 The eorts were
not entirely civilian, for the original founder of the coalition was the Vietnam Vet-
erans of America Foundation. A number of senior retired military ocers sup-
ported these eorts, asserting that the harmful eects of antipersonnel mines
outweigh their military utility.329 A total ban on land mines had been urged by
numerous intergovernmental organizations, including the Council of Europe, the
OAS, the OAU and the Arab League. Support for a total ban found strong expres-
sion in a string of General Assembly resolutions on land mines.
At the end of the 1996 Review Conference, the Canadian delegation an-
nounced that Canada would host a meeting of pro-ban States to develop a strategy
towards a global ban on anti-personnel mines. At the closing session of that First
322 Fenrick, supra note 265, at 498, 506 (1990); also Matheson, The Revision of the Mines
Protocol, 91 AJIL 158, 159 (1997).
323 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-traps and other
Devices (as amended), Article 1 (2), 35 ILM 1206 (1996).
324 Id., Article 6(3).
326 Matheson supra note 322, at 165.
327 Id., 165-166.
329 Id., at 11 (at note 47). Referring to the conclusions of an ICRC-mandated military
study Anti-Personnel Land Mines: Friend or Foe (1996) and an open letter by 15 re-
tired US generals and brigadiers to President Clinton in April 1996.
Ottawa Conference (1996), the Canadian Foreign Minister appealed to all govern-
ments to return to Ottawa before the end of 1997 to sign such a treaty. This initia-
tive was immediately supported by ICRC President, Cornelio Sommaruga, by the
UN Secretary-General and by the International Campaign to Ban Land Mines
(ICBL).330 The Convention on the Prohibition of the Use, Stockpiling, Produc-
tion and Transfer of Anti-Personnel Mines and on their Destruction was signed
in December 1997 by 121 governments and entered into force on March 1, 1999.
By that date, 134 States had signed or acceded to the treaty and 65 had ratied it.
The ICRC noted that the treaty had become law more quickly that any previous
multilateral arms-related agreement.331 However, the fact that the United States,
China and Russia have remained outside greatly weakens the Treatys eective-
ness. Although the Ottawa Treaty applies in all circumstances, there is no specic
reference to the application of the treaty to all the parties to a conict. Thus, in
terms, the treaty regulates only the behaviour of States.
In the existing framework of international humanitarian law, a ban on the
use of land mines can be supported by three dierent rationales. The rst is that
the use of land mines is inherently indiscriminate. That argument is weakened by
the continued role of Protocol II. The adoption of a Protocol imposing limitations
on the use of means of warfare is based on the premise that if the weapon is used
according to the rules, its use is permissible, and thus that it can be used in a way
consistent with the principle of distinction.
The second rationale is that humanitarian considerations outweigh military
necessity. Studies of this question have led to inconclusive results. In preparation
for the Review Conference of the CW Convention, the ICRC convened a meeting
of military experts in order to study the military use of anti-personnel mines. The
majority of the participants were professional military combat engineers. They
came to the conclusions that: i) no alternative meets military requirements in
the way anti-personnel mines do; ii) anti-personnel mines are the most cost-ef-
fective system available to the military; and iii) anti-personnel mines create the
worst post-war eects unless they have self-destructed, self-neutralized or been
removed. The military experts concluded that [i]n summary, the military do not
regard alternative systems as being viable.332 Thus, the military eciency of mine
warfare was dicult to contest. The ICRC, nonetheless, sponsored a study on
the use of mines in modern warfare. Challenging the conclusions of the military
experts, the ICRC study argued that antipersonnel land mines have lost much of
their utility in the context of conventional international conicts.333
330 Maslen and Herby, An International Ban on Anti-Personnel Mines: History and Nego-
tiation of the Ottawa Treaty, Intl Rev. Red Cross No. 325 Dec. (1998), 693, at 694.
331 ICRC and Federation of Red Cross Societies, Joint Communication to the Press, 1
March 1999.
332 ICRC, Symposium of Military Experts on the Military Utility of Anti-Personnel
Mines, January 1994, 299 IRRC 170, at 178 (1994).
333 ICRC, Les mines terrestres anti personnel. Des armes indispensables? (1996), at 44-
49.
84 Chapter 1
The third rationale is that land mines should be banned because limiting or
regulating their use proved unworkable. Doswald-Beck argued that Protocol II to
the Convention on Certain Conventional Weapons applicable to land mines, par-
ticularly in rules relating to military objectives and to the marking and recording
of mines, has presented diculties that have led the international community
to ban antipersonnel mines altogether as indiscriminate weapons.334 Drawing on
the case of prohibition of chemical weapons after the First Word War, 335 the ICRC
was in fact arguing that the harmful practical eects of the use of certain weapons
outweighed any consideration of military necessity. 336 It therefore advocated a
total ban, not regulation of use.
e) Laser Weapons
As with the ban on land mines, the call for the ban on blinding laser weapons,
although originated by the governments of Sweden and Switzerland and prima-
rily pursued by the International Committee of the Red Cross, was boosted by
the support it received from various human rights organizations.337 The Protocol,
which bans laser weapons designed to disable combatants by blindness, is de-
signed essentially for the protection of combatants, although the wide dissemina-
tion of such weapons would have endangered civilians as well.338 Perhaps because
of the abhorrence of causing blindness, States, in this case, have been less reluc-
tant to limit for the sake of combatants their choice of means of warfare.
The ICRC draft proposal aimed at banning blinding as a method of warfare
rather than just as a type of weapon.339 The nal protocol, however, aligned with
other conventional weapons conventions that ban specic types of weapon. The
protocol is based on the principle of the prohibition of unnecessary suering.
But it expands the criteria traditionally used to determine if a weapon causes
unnecessary suering by taking into account the long-term impact of blind vet-
erans on their home societies.340 Although the U.S. Army Judge Advocate Gen-
eral had issued an opinion upholding the legality of such weapons assessed by
334 Doswald-Beck supra note 20, at 50.

335 ICRC, Report of the International Committee of the Red Cross for the Review Con-
ference of the 1980 United Nations Convention on Prohibitions or Restrictions on
the Use of Certain Conventional Weapons Which may be Deemed to Be Excessively
Injurious or to Have Indiscriminate Eects, February 1994, 299 IRRC 131 (1994).
336 Id., at 132.
337 Doswald-Beck supra note 20 at 48-49.
338 ICRC Campaign Brochure, Blinding Weapons, Gas, Lasers (undated).
339 Louise Doswald-Beck, New Protocol on Blinding Laser Weapons, Intl Rev. Red Cross,
No. 312, at 272, 279 (1996).
340 Burrus Carnahan and Marjorie Robertson, The Protocol on Blinding Laser Weap-
ons: A New Direction for International Humanitarian Law, 90 AJIL 484, at 484-485
(1996).
the traditional criterion of unnecessary suering,341 the ban may have succeeded
because several governments did not consider blinding laser weapons militarily
necessary.342 Moreover, the ban was adopted before the weapons actual use on the
battleeld. It has been sugested that the Protocol gives eect to Article 36 of Ad-
ditional Protocol I343 (which provides that in the study, development and adoption
of a new weapon, means or methods of warfare, a party is under an obligation to
determine whether its employment is prohibited by the Protocol or other appli-
cable rules of international law).
H. Limitations to Laws Effectiveness

The tremendous progress in the humanization of the law of war brings into sharp
relief the stark contrast between promises made in treaties and declarations
and the rhetoric often accompanying their adoption, on the one hand, and the
harsh, often barbaric practices actually employed on the battleeld. Bosnia, Ko-
sovo, Sierra Leone, Congo, Somalia, and earlier Afghanistan, Cambodia, Kuwait
and other situations present a picture of massacres, rapes and mutilations. The
gap between the norms and the practice in war has always been wide; but never
before have we had such a rich arsenal of norms accompanied by an emerging
system of international criminal courts. Problems have not been limited to the
South, as demonstrated by atrocities in Bosnia and Kosovo. As regards the con-
duct of war by the most advanced countries, the bombing of targets in Belgrade
was, fortunately, light years away from the horror of Dresden. Smart bombs and
strict orders to limit collateral damage to civilians have resulted in relatively small
numbers of civilian casualties.
The selection of targets, however, presents a more complex picture. In the
NATO bombing of Yugoslavia, it would seem that most of the targets either
were strictly military or served both military and civilian uses, such as bridges,
highways, and electric-power installations, and infrastructure. Attacking dual-
use objects is not necessarily unlawful, provided that they meet the denition of
military objectives in Article 52(2) of Protocol I, the principle of proportionality
is observed, and collateral damage is minimized. But the attacks on television
studios in Serbia are a dierent matter. Did the television studios make an eec-
tive contribution to Serbian military action and did the attacks oer a denite
military advantage? Aldrichs assessment seems accurate: if the television studios
were not ... used [for military transmissions] and were targeted merely because
they were spreading propaganda to the civilian population, even including bla-
tant lies about the armed conict, it would be open to question whether such use
341 Memorandum of Law on the Use of Lasers as Antipersonnel Weapons (1988), in

Nash, Cumulative Digest of United States Practice in International Law, ICRC Study,
US Report, Annex 3-5.
342 Carnahan and Robertson, supra note 340, at 487.
343 Doswald-Beck, supra note 339, at 296.
86 Chapter 1
could legitimately be considered an eective contribution to military action.344

He adds that [e]ven if one were to conclude that certain television studios
in Yugoslavia were, through their propaganda, making an eective contribution
to military action, it would not necessarily follow that their destruction oers
a denite military advantage, as required by Article 52 of Protocol I.345 Since in
both the second Persian Gulf War and the Yugoslavia bombings, dual-use objects
were frequently attacked with major consequences for the civilian population,
new reection should be given to the adequacy of the criteria stated in Additional
Protocol I for attacks on such objects. Experience in Chechnya shows that even
technologically advanced countries may choose not to use smart munitions to
reduce civilian casualties.
In confronting racial, ethnic, or religious hatreds and State interests of vari-
ous kinds, the normative has been giving way. International and national criminal
tribunals have, so far, not produced much demonstrable deterrence world-wide
though the danger of being brought to account is more real than ever before. Laws
have largely failed to perform their function. Humanization may have triumphed,
but largely rhetorically.
The attack on the twin towers on September 11, 2001 generated additional
stresses on international law. Deliberate terrorist attacks on civilians, accompa-
nied by complete disregard of international law, diminish the incentive for other
parties to comply with the principles of international humanitarian law and in-
crease pressure for deconstruction and revision of the law, or simply disregard of
the rules. International humanitarian law works well when its basic precepts and
goals are shared by the adversaries and when there is at least rough symmetry in
military capacity between the parties, but not when there are no shared values,
as is often the case in ethnic and religious conicts. This was true even before
the emergence of the phenomenon of terrorism. For example, during World War
II, having decided not to treat countries such as the Soviet Union and Poland as
equals to itself, but as t for exploitation, Nazi Germany refused to apply either
the Hague Convention (IV), or the 1929 Geneva POW Convention on the eastern
front.346
International humanitarian law has been based on a fundamental neutrality
color blindness if you will of rules governing the conduct of war. The legality
of recourse to war, the jus ad bellum, had no consequences on how wars were to
be fought, the jus in bello. The elementary chivalry that characterizes these rules
includes principles prohibiting attacks on civilians and establishing the rule of
proportionality to govern the scope of permissible damage to civilians.
These fundamental rules were based on the assumption of symmetry. In par-
ticular, it was assumed that conicts would be fought between sovereign States.
As a result, POW status and privileges and due process for trials could almost be
344 George Aldrich, Yugoslavias Television Studios as Military Objectives, 1 Intl L.F.
149-50 (1999)
345 Id. at 150
taken for granted. Indeed, even in civil wars, the model was a government ghting
against a rebel entity seeking power and legitimacy and thus willing to abide by
at least the basic rules. Most of these fundamentals are now called into question.
Can international law perform well also in asymmetrical situations? When terror-
ists practice and even proclaim complete disregard of international law, what is
the incentive for anti-terrorist forces to abide by the law? The moral philosopher
Michael Walzer has written that the very denition of terrorism is the deliberate
violation of those norms:
for ordinary citizens are killed and no defense is oered ... in terms of their individual
activities ... they are simply killed to deliver a message of fear to others like them-
selves.347
Will reactions conform to the humanitarian law of war, and how strictly? Will
rules be ignored, revised, bent? The same kinds of questions arise for the conduct
of trials and the treatment of prisoners. Eective action against terrorism should
be balanced against the need to avoid eroding and endangering norms which are
essential for the protection of civilized humanity. In this context, treatment of
detainees accused of terrorism (Abu Ghraib, Guantanamo) has given rise to se-
rious concerns. Interrogations aimed at obtaining information must be subject
to humane rules and the prohibition of torture must be strictly applied.348 There
must be a modicum of due process and possibility of review of detention. Deten-
tion without trial and conviction cannot continue for ever: there must be a certain
nality to detention and deprivation of freedom.
Atrocities are often committed by nongovernmental actors, whose rights
and obligations have not yet been dened by international law. The leaders of
nongovernmental entities involved in cruel internal conicts and heads of ter-
rorist movements must be warned that under the Rome Statute of the ICC they
may be responsible for crimes against humanity. Egregious acts such as behead-
ing of captives and deliberate targeting of civilians by terrorists and insurgents are
shocking the conscience of humanity.
The allied bombing campaign in Afghanistan (2001-02) appears to have
complied with the basic principles of distinction, but it is still too early to assess
whether excessive collateral damage was inicted. The applicability of the Ge-
neva Conventions to captured Taliban and Al-Qaeda ghters has proved more
problematic. After initial reluctance, the United States recognized that the Third
Geneva Convention does apply to the conict in Afghanistan between the United
States and the Taliban, but it maintained that, under the provisions of the Con-
vention, Taliban combatants do not qualify for POW status. It also argued that the
Convention does not apply in Afghanistan and in other countries to the conict
with Al Qaeda terrorists. The argument with regard to Al Qaeda is persuasive,
347 Michael Walzer, Just and Unjust Wars 203 (1977).

348 See Eric Schmitt, Army, in Manual, Limiting Tactics in Interrogation, NYT, Apr. 28,
2005.
88 Chapter 1
that with regard to the Taliban is not. Taliban soldiers appear entitled to the privi-
leges of Article 4(1) of the 1949 Geneva POW Convention.349 In any event, there is
no reason why Article 5 of Geneva Convention III should not be complied with.
That Article provides that persons having committed belligerent acts and having
fallen into the power of the enemy, shall enjoy the protection of the Convention,
until such time as their status has been determined by a competent tribunal. The
United States accepted, however, that both categories of detainees are entitled to
humane treatment, consistent with the general principles of the Geneva Conven-
tions and customary law.
The wars in Afghanistan and Iraq and the war on terrorism in 2002 and
2003 have compelled revisiting the notions of direct participation in hostilities,
in the language of Additional Protocol I to the Geneva Conventions or taking an
active part in hostilities in the language of common Article 3, especially the im-
plications for civilians of the bearing of arms, of intelligence activities and guard
duties, of logistical and political support for combatants, of civil defense com-
mittees, and of computer networks attacks. Whether such activities bring about
a loss of civilian immunity from attack, the duration of such a loss of immunity,
the legal regime applicable upon capture, the entitlement to POW status, and the
exposure to penal prosecutions and/or internment are now hotly contested. The
humanitarian but somehow simplistic answers provided by Additional Protocol
I to the Geneva Convention may well undergo some renement in light of the
emerging practice of States. Such renement is preferable to embarking on more
ambitious codication projects, which may result in undermining the existing
humanitarian conventions. Since 2003, the ICRC has been convening meetings of
experts to address these questions and the future of the notion of direct participa-
tion and the need for clarication.
The stress on the system caused by terrorism is liable to bring about a ret-
rogression in the trend to humanize the law. The law of State responsibility has
failed to deal eectively with terrorism and its suppression. International coop-
eration in criminal law enforcement appears to have been somewhat more suc-
cessful. Al Qaedas type of terrorism is also causing major stresses on the jus ad
bellum, aecting the traditional understanding of concepts of self-defense in the
UN Charter, of war itself, and of the legitimate parties to war.350
Yet, humanitarianism in the application of the law of war must continue and
become a part of public consciousness if respect for the rules is to be ensured. The
core of the diculties is not the inadequacy of the law, but a lack of shared values.
Education, training, persuasion and emphasis on values that lie outside the law,
such as ethics, honor, mercy and chivalry, must be vigorously pursued. Values of
349 See Agora: Military Commissions, 96 AJIL 320 (2002); Aldrich, The Taliban, Al Qa-
eda, and the Determination of Illegal Combatants, id.at 891.
350 Steven Ratner, Jus ad Bellum and Jus in Bello after September 11, 96 AJIL 905 (2002);
Mark A. Drumble, Victimhood in our Neighbourhood: Terrorism, Crime, Taliban
Guilt, and the Assymmetries of the International Legal Order, 81 North Carolina L.
Rev. 1 (2002).
humanity must gain dominance if barbarism is to be contained, if not vanquished.

Organizations and individuals deliberately outing the most basic humanitarian
rules should be universally condemned, delegitimized, shamed.351 The creation of
a culture of values is thus indispensable. This job cannot be left to lawyers alone.
351 Nicholas D. Kristof, A Toast to Moral Clarity, NYT Dec. 27, 2002.
Chapter 2: Criminalization of Violations of
International Humanitarian Law
A. Introduction
In this chapter, I shall discuss the inuence of human rights and humanitarian
norms on the criminalization of violations of international humanitarian law.
For nearly half a century, the Nuremberg and Tokyo trials and national
prosecutions of World War II cases remained the major instances of criminal
prosecution of oenders against fundamental norms of international humanitar-
ian law. The heinous activities of the Pol Pot regime in Cambodia and the use of
poison gas by Iraq against its Kurdish population are just two among the many
atrocities left unpunished by either international or national courts. Some treaties
were adopted that provide for national prosecution of oenses of international
concern and, in some cases, for universal jurisdiction; but, with a few exceptions,
these treaties were not observed until recently. Notwithstanding the absence
of signicant prosecutions, an international consensus on the legitimacy of the
Nuremberg Principles, the applicability of universal jurisdiction to international
crimes, and the need to punish those responsible for egregious violations of inter-
national humanitarian law slowly solidied. The International Law Commission,
veterans of the Nuremberg and Tokyo proceedings, individuals such as Rafael
Lemkin (who advocated the adoption of the Genocide Convention) and a hand-
ful of academics (most notably M. Cherif Bassiouni), among others, helped keep
alive the heritage of Nuremberg and the promise of future prosecutions of serious
violators of international humanitarian law.
The habit of legal inaction in the face of mass atrocities has been changing
however. The end of the Cold War, the spread of democracy and greater super-
power cooperation in the Security Council, have encouraged a greater willingness
to investigate crimes committed by previous regimes (South Africa, some Central
and South American countries, Ethiopia, Indonesia). Along with the more rapid
and widespread exposure of atrocities in the former Yugoslavia and Rwanda by
the electronic media, these were among the factors which led to the establishment
of the two ad hoc international criminal tribunals.1 Several African countries,
(Uganda, the Central African Republic and the Democratic Republic of Congo),
1 Developments in the Law International Criminal Law, 114 Harvard L. Rev. 1943,
1952-1954 (2001).
92 Chapter 2
parties to the Rome Statute, referred under Article 13(a) to the Prosecutor of
International Criminal Court (ICC) cases of atrocities committed on their ter-
ritories, and the Security Council, acting under Chapter VII of the Charter and
Article 12(3) of the ICC Statute, referred to it the case of Darfur.
A number of prosecutions linked with World War II events took place (Aus-
tralia, Canada, UK, Latvia, Italy). Prosecutions of persons accused of more recent
violations of international humanitarian law took place in the former Yugoslavia,
in Rwanda and in Ethiopia, and other countries. The arrest and the extradition
proceedings of Pinochet in the United Kingdom (despite his eventual release on
humanitarian/health grounds) have shown that the universality of jurisdiction
provisions of conventions such as the 1984 UN Convention against Torture are
beginning to be enforced, that the impunity of leaders even of former heads of
State cannot be taken for granted, and that claims of immunity do not protect
them from the reach of that convention.2 The trial of Slobodan Milosevi and the
forthcoming trial of Milan Milutonovi in the ICTY and the trials of major Rwan-
dan leaders in the ICTR for serious violations of international humanitarian law
point to the end of impunity of leaders or heads of State and government.
It is, of course, the frequent failure of national justice in countries where
atrocities are committed that makes the case for international tribunals and
courts and for third country prosecutions so compelling.
As long as international humanitarian law was primarily State-centric, it was
not surprising that the sovereignty of States and their insistence on maintaining
maximum discretion in dealing with those who threaten their sovereign author-
ity have combined to limit the reach of international humanitarian law appli-
cable to non-international armed conicts.3 Governments have been determined
to deal with rebels harshly and to deny them legal recognition and political status.
They have refused to be reassured by treaty language, such as Article 3(2) com-
2 See Current Developments, 48 ICLQ 937, 937-65 (1999). In February 2000, a Sen-
egalese court indicted Chads former dictator, Hissne Habr, on charges of torture.
The indictment was quashed on appeal though because the acts had been committed
before legislation was passed to implement the torture convention.
3 This applies even more to situations of lower-intensity internal strife. For a discus-
sion of the norms applicable in non-international armed conicts and internal strife
and the problem of characterizing conicts, see generally Meron, On the Inadequate
Reach of Humanitarian and Human Rights Law and the Need for a New Instrument,
77 Am. J. Intl L. 589 (1983); Meron & Allan Rosas, A Declaration of Minimum Hu-
manitarian Standards, 85 Am. J. Intl L. 375 (1991); Asbjrn Eide, Allan Rosas & Mer-
on, Combating Lawlessness in Gray Zone Conicts through Minimum Humanitarian
Standards, 89 Am. J. Intl L. 215 (1995).
For descriptions of non-international armed conicts, see common Article 3 of the
Geneva Conventions, infra note 3, and Article 1 of Additional Protocol II to the Ge-
neva Conventions, Protocol Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of non-International Armed Con-
icts, opened for signature Dec. 12, 1977 1125 U.N.T.S. 609, reprinted in 16 ILM 1442
[hereinafter Protocol II].
Criminalization of Violations of International Humanitarian Law 93
mon to the Geneva Conventions for the Protection of Victims of War,4 which
explicitly states that the application of listed protective norms will not aect the
legal status of the parties.
The emphasis on the protection of State sovereignty is now being attenuated
by the heightened impact of human rights law and acceptance of the principle
that human rights are a matter of international concern. The extension of protec-
tive norms to non-international conicts is clearly compelled by human rights
of individuals and populations. Recent norm-making conferences, including the
Rome Conference, and customary rules of international humanitarian law have
already greatly expanded the applicability of international humanitarian law to
such conicts.
International lawmaking and various diplomatic conferences for example,
the conference that adopted the Additional Protocols to the Geneva Conventions
in 1977 have, on the whole, been unsympathetic toward extending the protec-
tive rules applicable to international wars to civil wars an attitude that has in
the past dampened prospects for redress through orderly treaty making. Because
conferences often make decisions by consensus and try to fashion generally ac-
ceptable texts, even a few recalcitrant governments may prevent the adoption of
more enlightened provisions.
Atrocities in the former Yugoslavia and Rwanda shocked the conscience of
people everywhere, triggering, within a short span of time, several major legal
developments: the promulgation by the Security Council, acting under chapter
VII of the United Nations Charter, of the Statutes of the International Criminal
Tribunals for the former Yugoslavia and Rwanda, the adoption by the Interna-
tional Law Commission of a treaty-based statute for an international criminal
court, the convening of a series of conferences in the United Nations leading to
the Rome Conference (1998) for the adoption of the Rome Statute of the Interna-
tional Criminal Court (ICC), and a series of meetings of the Preparatory Com-
mission designed to complete the remaining work necessary to bring the Rome
Statute into force. Such a court is now in place. These and other recent develop-
ments warrant a fresh examination of the present state and future direction of the
criminal aspects of international humanitarian law especially those applicable to
4 Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field (Geneva Convention No. I), Aug. 12, 1949, 6 U.S.T. 3114, 75
UNT.S. 31; Convention for the Amelioration of the Condition of Wounded, Sick, and
Shipwrecked Members of Armed Forces at Sea (Geneva Convention No. II), Aug. 12,
1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prison-
ers of War (Geneva Convention No. III), Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135;
Convention Relative to the Protection of Civilian Persons in Time of War (Geneva
Convention No. IV), Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. See also Hague Con-
vention on the Protection of Cultural Property, May 14, 1954, art. 19(4), 249 U.N.T.S.
240; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of International Armed Conicts, opened for signature
Dec.12, 1977, art. 4,1125 U.N.T.S. 3, reprinted in 16 ILM 1391 (1977) [hereinafter Proto-
col I].
94 Chapter 2
non-international armed conicts, conicts that occur with far greater frequency
than international armed conicts.
The Security Councils Statutes for the Criminal Tribunals for the former
Yugoslavia and Rwanda have contributed signicantly to the development of in-
ternational humanitarian law and its extension to non-international armed con-
icts,5 especially through the seminal 1995 decision in the Prosecutor v. Duko
Tadi interlocutory appeal on jurisdiction. This advance can be explained by the
pressure, in the face of atrocities, for a rapid adjustment of law, process and in-
stitutions.6 They constitute the rst successful eorts of the international com-
munity to establish institutions to impose individual criminal responsibility since
the Nuremberg trials. No matter how many atrocities cases these international
tribunals may eventually try, their very existence sends a powerful message. Their
statutes, rules of procedure and evidence, and practice stimulate the development
of the law. The possible fear by States that the activities of such tribunals might
preempt national prosecutions could also have the benecial eect of spurring
prosecutions before national courts for serious violations of humanitarian law.
These developments have largely been driven by human rights and humanitarian
concerns.
The salutary aspects of the Security Councils establishment of the Interna-
tional Tribunals for Yugoslavia7 and Rwanda and, especially, their power derived
from Chapter VII of the Charter to overcome lack of State consent to jurisdiction,
must be balanced against the selectivity involved in a system where the establish-
ment of a tribunal for a given conict situation depends on whether consensus
to apply Chapter VII of the UN Charter can be obtained. What is needed is a
uniform and denite corpus of international humanitarian law that can be ap-
plied apolitically to atrocities everywhere, combined with adequate international
jurisdiction.8 The adoption of the ICC Statute is a major step in this direction.9
5 See James C. OBrien, The International Tribunal for Violations of International Hu-
manitarian Law in the Former Yugoslavia, 87 Am. J. Intl L. 639 (1993); Meron, War
Crimes in Yugoslavia and the Development of International Law, 88 Am. J. Intl L. 78
(1994).
6 See Meron, Rape as a Crime under International Humanitarian Law, 87 Am. J. Intl
L. 424 (1993).
7 See Meron, The Case for War Crimes Trials in Yugoslavia, Foreign A., Summer 1993,
at 122.
8 See James Crawford, The ILC Adopts a Statute for an International Criminal Court,
89 Am. J. Intl L. 404, 416 (1995).
9 See generally Leila Sadat, The International Criminal Court and the Transformation
of International Law (2001); William Shabas, An Introduction to the International
Criminal Court (2001); M. Cherif Bassiouni, The Statute of the International Crimi-
nal Court (1998); The Rome Statute of the International Criminal Court (Mauro Politi
& Giuseppe Nessi eds. 2001); Reections on the International Criminal Court (Her-
man A.M. von Hebel, Johan G. Lammers & Jolien Schukking eds. 1998); The Interna-
tional Criminal Court: Recommendations on Policy and Practice (Thordis Ingadottir
eds. 2003).
The enforcement of international humanitarian law cannot, however, de-

pend on international tribunals alone. National systems of justice have a vital,
indeed, the principal, role to play here. To be sure, the record of national prosecu-
tions of violators of such international norms as the grave breaches of the Geneva
Conventions is disappointing, even when the obligation to prosecute or extradite
violators is unequivocal. A lack of resources, evidence and, above all, political will
has stood in the way. International criminal jurisdiction addressed in isolation,
will not eliminate abuses. Greater reliance on international humanitarian law by
national prosecutors and judges is necessary.
It is increasingly recognized that the role of international tribunals will al-
ways be complementary to that played by national justice systems. The ICC Stat-
ute may eliminate some need for establishing more ad hoc tribunals. Through the
principle of complementarity, the ICC Statute enshrines the primacy of jurisdic-
tion of national tribunals.
B. Crimes against Humanity

As noted by the Secretary-General in his Report on the Statute of the ICTY, crimes
against humanity were rst recognized in the Nuremberg Charter and in the tri-
als of war criminals following World War II.10 The oense was dened in Article
6(c) of the Nuremberg Charter and that denition was repeated in the 1948 Gen-
eral Assembly Resolution arming the Nuremberg principles. Dening crimes
against humanity was the Nuremberg Charters most revolutionary contribution
to international law. For the rst time, international criminal responsibility was
established for atrocities committed in one country, even as between its citizens. A
reaction to atrocities committed in Germany and by Germany in the years leading
up to and during World War II, this development was mitigated by its linkage with
other crimes within the jurisdiction of the Tribunal. In this way, crimes against hu-
manity were eectively reduced to war time atrocities. Article 6(c) dened crimes
against humanity subject to the jurisdiction of the Nuremberg Tribunal as:
murder, extermination, enslavement, deportation, and other inhumane acts com-

mitted against any civilian population, before or during the war, or persecutions on
political, racial or religious grounds in execution of or in connection with any crime
within the jurisdiction of the Tribunal, whether or not in violation of the domestic law
of the country where perpetrated.11
Although departing from the law of war tradition of extending protection only to
people who belong to the enemy, the Nuremberg Charter thus maintained the law
of war imprint by limiting the crimes to wartime crimes.
10 Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolu-

tion 808 (1993), UN Doc. S/25704, para. 47 (1993) [hereinafter Report of the Secre-
tary-General].
11 82 U.N.T.S. 280 (emphasis added).
96 Chapter 2
Principles of international law recognized by the Charter of the Nuremberg

Tribunal and the judgment of the Tribunal were armed by the General As-
sembly.12 The denition of crimes against humanity, as formulated by the Inter-
national Law Commission, reiterated the requirement of a nexus with an armed
conict. The required nexus was, however, eliminated in Article II(1)(c) of Allied
Control Council Law No. 10 (1945), the law adopted to establish a uniform legal
basis for the prosecution of war criminals in occupation courts in Germany,13 and
in subsequent conventions. The Genocide Convention (1948) thus provides that
[t]he Contracting Parties conrm that genocide, whether committed in time of
peace or in time of war, is a crime under international law which they undertake to
prevent and to punish.14 Similarly, the UN Convention on the Non-Applicability
of Statutory Limitations to War Crimes and Crimes Against Humanity (1968) ap-
plies to crimes against humanity, whether committed in time of war or in time of
peace, as they are dened in the Charter of the International Military Tribunal....15
The Apartheid Convention (1973), which declared apartheid a crime against hu-
manity, does not contain any reference to an armed conict.16 Dispensing with
the requirement of a nexus to an armed conict in the Genocide Convention is of
particular signicance because crimes against humanity overlap to a considerable
extent with the crime of genocide. Indeed, the latter can be regarded as one spe-
cies within the broader genus of crimes against humanity.
Article 5 of the ICTY Statute denes crimes against humanity subject to
the jurisdiction of the Tribunal as certain crimes committed in armed conict,
whether international or internal in character.17 Thus, the ICTY Statute appears
to resurrect the requirement of a nexus with an armed conict. But in his com-
ments on this provision, the Secretary-General appeared to abandon the war nex-
us, stating that [c]rimes against humanity are aimed at any civilian population
12 General Assembly Resolution 95 (I): Armation of the Principles of International

Law Recognized by the Charter of the Nuremberg Tribunal, 11 December 1946, Reso-
lutions Adopted by the General Assembly during the Second Part of its First Session,
UN Doc. A/64/Add.1, at 188 (1947).
13 Allied Control Council Law No. 10 Punishment of Persons Guilty of War Crimes,
Crimes Against Peace and Against Humanity, 20 December 1945, Ocial Gazette
of the Control Council for Germany, No. 3, Berlin, 31 January 1946, reprinted in 1
Ferencz 488; 1 Friedman 908, Article II.
14 Convention on the Prevention and Punishment of the Crime of Genocide, 9 Decem-
ber 1948, 78 UNTS 277, Article 1.
15 Convention on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes Against Humanity, 26 November 1968, 754 UNTS 73, Article 1.
16 International Convention on the Suppression and Punishment of the Crime of Apart-
heid, 30 November 1973, 1015 UNTS 243, Article I.
17 Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted
pursuant to Security Council Resolution 827 (1993) in Report of the Secretary Gener-
al, Annex, reprinted in 32 ILM 1192 (1993), Article 5 [hereinafter ICTY or Yugoslavia
Statute].
and are prohibited regardless of whether they are committed in an armed conict,
international or internal in character.18 The Prosecutor of the ICTY has taken the
same view, arguing that the war nexus required by the Nuremberg Charter was
not intended as an inherent or general restriction on the scope of crimes against
humanity under general international law since the ad hoc jurisdiction of the Tri-
bunal was limited to the just and prompt trial and punishment of the major war
criminals of the European Axis. 19 The Appeals Chamber agreed:
It is by now a settled rule of customary international law that crimes against hu-
manity do not require a connection to international armed conict. Indeed, as the
Prosecutor points out, customary international law may not require a connection be-
tween crimes against humanity and any conict at all. Thus, by requiring that crimes
against humanity be committed in either internal or international armed conict, the
Security Council may have dened the crime in Article 5 more narrowly than neces-
sary under customary international law.20
Of course, the Tribunals jurisdiction is dened by the terms of the Statute. But
the decisions of the Tribunal have been important in establishing the proposition
that a war nexus is not required under customary law.
The jurisprudence of the ICTY made an important contribution to the clari-
cation of the elements of crimes against humanity under the ICTY Statute. In its
judgement in the case of the Prosecutor v. Kunarac (June 12, 2002), the Appeals
Chamber laid down the principal elements: The civilian population which is sub-
jected to the attack must be the primary rather than an incidental target of the
attack. The requirement that the attack must be widespread or systematic comes
in the alternative, and is disjunctive rather than cumulative. Widespread refers
to the large-scale nature of the attack, while systematic refers to the organized
nature of the acts of violence. In contrast to the attack, the individual acts of the
accused could be single or limited in number. Neither the attack nor the acts of
the accused need to be a part of a policy or plan. The required nexus between the
acts of the accused and the attack consists of two elements: the commission of an
act which by its nature or consequences is a part of the attack, and knowledge on
the part of the accused that there is an attack against the civilian population and
that his act is part thereof. In terms of the required mens rea, the accused must
have had the intent to commit the oense with which he is charged, known that
18 Report of the Secretary General, supra note 10, para. 48.

19 Prosecutor v. Duko Tadi, International Criminal Tribunal for the Former Yugosla-
via, Case IT-94-1-T, Response to the Motion of the Defence on the Jurisdiction of the
Tribunal, 7 July 1995, at 54.
20 Prosecutor v. Duko Tadi, Decision on the Defense Motion for Interlocutory Appeal
on Jurisdiction, Case No. IT-94-1-AR72, 2 October 1995, para. 141. Gunal Mettraux,
Crimes against Humanity in the Jurisprudence of the International Criminal Tribu-
nals for the Former Yugoslavia and for Rwanda, 43 Harv. Intl. L.J. 239, 266-67 (2002);
International Crimes and the Ad Hoc Tribunals (2005).
98 Chapter 2
there is an attack on the civilian population and that his acts comprise part of that
attack. However, the motives of the accused are irrelevant, and a crime against
humanity can be committed for purely personal reasons.
These elements of crimes against humanity were reconrmed and elaborat-
ed upon in the judgement of the Appeals Chamber in the case of the Prosecutor
against Kordi and erkez (17 December 2004). In determining the scope of the
civilian population, the Appeals Chamber considered that Article 50 of Addition-
al Protocol I contained a denition of civilians and the civilian population, which
may largely be viewed as reecting customary law and thus relevant for crimes
against humanity.
The Statute of the ICC conrms that no nexus with an armed conict is re-
quired.21 Under Article 7 of the Statute, crimes against humanity are dened as
any of the following acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the attack.22
Crimes against humanity can thus be committed in all situations international
wars, internal wars of whatever intensity, and peacetime situations.
Before the Rome Statute, no instrument had established an exhaustive list
of oenses considered crimes against humanity. The Allied Control Council Law
No.10 established a list including (but not limited to) those of the Nuremberg
Charter and adding imprisonment, torture and rape. Article 5 of the ICTY Statute
similarly listed murder, extermination, enslavement, deportation, imprisonment,
torture and rape and other inhuman acts.
The trend towards considering systematic gross violations of human rights
directed against civilians as crimes against humanity culminates in the ICC Stat-
ute. But the developments leading to the ICC list started much earlier. They are
rooted in the norms and mechanisms developed in the United Nations since
the early 80s to combat the causing of disappearances, increasingly regarded as
crimes against humanity. The Statute of the ICC includes a wide- ranging list of
acts that, when committed as part of a widespread or systematic attack directed
against any civilian population, constitute a crime against humanity.23 The Stat-
ute denes several of those crimes: extermination, enslavement, deportation or
21 Robinson, Dening Crimes against Humanity at the Rome Conference, 93 AJIL 43,
45-46 (1999).
22 Statute of the International Criminal Court, adopted on 17 July 1998 by the United
Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an In-
ternational Criminal Court (Rome), opened for signature on 17 July 1998, UN Doc.
A/CONF.183/9 (1998), reprinted in 37 ILM 1002 (1998), Article 7.
23 These acts include murder; extermination; enslavement; deportation or forcible
transfer of population; imprisonment or other severe deprivation of physical liberty
in violation of fundamental rules of international law; torture, rape, sexual slavery,
enforced prostitution, forced pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity; persecution against any identiable group or
collectivity on political, racial, national, ethnic, cultural, religious, gender or other
grounds that are universally recognized as impermissible under international law;
enforced disappearance of persons; the crime of apartheid and other inhumane acts
forcible transfer of population, torture, forced pregnancy, persecution, apartheid

and enforced disappearances of persons.24 In contrast to the ICTR Statute and to
the early interpretation of the ICTY Statute by an ICTY Trial Chamber,25 the ICC
Statute does not require a discriminatory motive, except for the crime of persecu-
tion.26 The same view has been embraced by the ICTY Appeals Chamber in the
Tadi case:
The Prosecution was correct in submitting that the Trial Chamber erred in nding
that all crimes against humanity require a discriminatory intent. Such an intent is
an indispensable legal ingredient of the oence only with regard to those crimes for
which this is expressly required, that is, for Article 5(h) concerning various kinds of
persecution.27
Of all the crimes against humanity, the crime of causing disappearances and the
crime of persecution best epitomize gross violations of human rights now in-
cluded in an instrument criminalizing violations of international humanitarian
law. At Nuremberg, only persecution committed on political, racial or religious
grounds in execution of or in connection with any crime within the jurisdiction
of the Tribunal qualied as a crime against humanity. In Rome, the grounds were
expanded to include: political, racial, national, ethnic, cultural, religious, gender
as dened in paragraph 3, or other grounds that are universally recognized as im-
permissible under international law, in connection with any act referred to in this
paragraph or any crime within the jurisdiction of the Court.28
Formally, of course, the ICC Statute does not criminalize violations of hu-
man rights, but only of international humanitarian law. Robinson thus noted that
[a]ll delegations agreed that the courts jurisdiction relates to serious violations
of international criminal law, not international human rights law.29 Given the
list of acts regarded as crimes against humanity, the factors distinguishing such
crimes from serious violations of human rights seem to be their egregiousness
and systematic nature as well as criminal intent (mens rea). There is no question,
however, that the oenses included in the ICC Statute under crimes against hu-
manity and under common Article 3 are virtually indistinguishable from major
human rights violations. The tangled meshing of crimes against humanity and
of a similar character intentionally causing great suering, or serious injury to body

or to mental or physical health.
25 See Meron, War Crimes Law Comes of Age, in Meron, War Crimes Law Comes Age
296, 299 n.16 (1998).
26 Robinson, supra note 21, at 46-47.
27 Prosecutor v. Duko Tadi, Case No. IT-94-1-A, 15 July 1999, at para. 305.
28 Supra, note 22, Article 7(1)(h).
29 Robinson, supra note 21, at 53.
100 Chapter 2
human rights violations supports the view that the former need not be linked
with war.30
Article 3 of the ICTR Statute does not require any nexus with armed con-
icts. This positive element is balanced however, by a somewhat more compli-
cated denition of crimes against humanity. Thus, in contrast to the Nuremberg
denition, the ICTR Statute requires proof that all such crimes were committed
as part of a widespread or systematic attack against any civilian population on
national, political, ethnic, racial or religious grounds (Article 3, chapeau).31 While
Article 3(h) is based on the Nuremberg Charter ([p]ersecutions on political, ra-
cial and religious grounds), the chapeau draws on the Secretary-Generals com-
mentary to Article 5 of the ICTY Statute. To prosecute crimes against humanity
under Article 5 of the ICTY Statute, it is required to show only that the crimes
listed in that article were directed against any civilian population. The require-
ment of establishing the large-scale, systematic nature of attacks against a civilian
population appears in the jurisprudence of Nuremberg.32
Clearly, crimes against humanity overlap to a considerable extent with the
crime of genocide.33 Crimes against humanity are crimes under customary law.
Genocide is a crime under both customary law and a treaty. The core prohibi-
tions of crimes against humanity and the crime of genocide constitute jus cogens
norms.
C. The Yugoslavia and Rwanda Statutes Provisions on Internal Atrocities

and the Tension between the Nullum Crimen Principle and Customary
Law
Acting both on the basis of Chapter VII of the UN Charter and in pursuance of
a request of the Government of Rwanda, the Security Council adopted a Statute
for the International Tribunal for Rwanda in 1994.34 The Statute constitutes an ex-
tremely important development of international humanitarian law with regard to
the criminal character of internal atrocities. The Statute of the ICTY,35 in the view
of some commentators, treats the ensemble of conicts in the former Yugoslavia
as international.36 For others, it leaves the question of the characterization of each
30 For further discussion, see Meron, supra note 5, at 85.

31 Rwanda Statute, UN Doc. S/RES/995, art. 3.
32 See Meron, The Case for War Crimes Trials in Yugoslavia, Foreign Aairs, Summer
1993, at 130; 15 Law Reports of Trials of War Criminals 135-36 (1949).
33 See generally William Schabas, Genocide in International Law (2000); Cherif
Bassiounni, Crimes Against Humanity in International Criminal Law (1999).
34 Rwanda Statute, supra note 31.
35 Yugoslavia Statute. The rst annual report of the Yugoslav Tribunal states that the
Tribunal is empowered to adjudicate cases of crimes committed in both inter-State
wars and internal strife. U.N. Doc. A/49/342-S/1994/1007, para. 19 (1994).
36 OBrien, supra note 5, at 647.
conict open. The ICTR Statute, in contrast, is predicated on the assumption that
the conict in Rwanda is a non-international armed conict.
Subject matter jurisdiction under the ICTR Statute encompasses three prin-
cipal oenses. First, like the ICTY Statute, the ICTR Statute grants the Tribunal
the power to prosecute persons who have committed genocide.37 The criminal
nature of genocide committed in internal conicts has never been doubted; the
customary law character of the peremptory prohibitions stated in the Genocide
Convention, which do not require a connection to an armed conict of any sort,38
was armed long ago by the International Court of Justice.39 And the possible
prosecution of perpetrators before an international penal tribunal is envisaged by
Article VI of the Convention. Second, the ICTR Statute following the example
set by the ICTY Statute confers on the Tribunal the power to prosecute persons
who have committed crimes against humanity, discussed above. Third, the ICTR
(Article 4 of the Statute) may prosecute violations of common Article 3 and of
Additional Protocol II to the Geneva Conventions. Proof of systematic and delib-
erate planning is not required to establish these violations.40
Apart from Article 2, on grave breaches of the Geneva Conventions, which
addresses international armed conicts, the ICTYs subject matter jurisdiction
also covers rules of international humanitarian law that are applicable to both
international and non-international armed conicts and that are declaratory of
customary law. The jurisprudence of the ICTY has interpreted Article 3 of the
ICTY Statute, which concerns violations of the laws and customs of war as in-
cluding common Article 3 of the Geneva Conventions, which is declaratory of
customary humanitarian law applicable in non-international armed conicts.41
The ICTY has been applying Article 3 of its Statute both to international and
non-international armed conicts. The jurisdiction of the ICTR (Article 4) also
explicitly draws from instruments governing non-international armed conicts
(common Article 3 and Additional Protocol II). This text thus has a major norma-
tive importance. The jurisprudence of the ICTR has, however, largely focused on
genocide and crimes against humanity rather than on Article 4.
Could Article 4 of the Rwanda Statute be challenged as contrary to the prin-
ciple prohibiting retroactive penal measures? The prohibition of retroactive penal
37 Rwanda Statute, supra note 31, art. 2.

38 Genocide Convention, supra note 14.
39 Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, 1951 ICJ Rep. 15, 23 (Advisory Opinion of May 28, 1951), discussed in The-
odor Meron, Human Rights and Humanitarian Norms as Customary Law 10-11
(1989).
the Protection of Victims of Non-International Armed Conicts, opened for signa-
ture Dec. 12, 1977, 1125 U.N.T.S. 609, reprinted in 16 ILM at 1442 [hereinafter Protocol
II].
41 The Prosecutor v. Duko Tadi, Decision on the Defense motion for Interlocutory Ap-
peal on Jurisdiction, Case No. IT-94-AR72, 2 October 1995, paras. 89-94.
102 Chapter 2
measures (Article 15 of the ICCPR) is a fundamental principle of criminal justice

that must be observed in all circumstances by national and international tribu-
nals.42 The Security Council could not have intended in Resolution 955 to oblige
the Tribunal to act contrary to this fundamental principle.
In arguing against any challenge to prosecutions of violations of these provi-
sions on ex post facto grounds, one must emphasize that common Article 3 and
Additional Protocol II are treaty obligations binding on Rwanda, that they clearly
proscribe certain acts, and that those acts are also prohibited by the criminal
law of Rwanda, albeit in dierent terms. Common Article 3 and Protocol II im-
pose important prohibitions on the behavior of participants in non-international
armed conicts, be they governments, other authorities and groups, or individu-
als. The fact that these proscribed acts are not considered grave breaches has
implications for discretionary versus obligatory prosecution or extradition, and,
for some commentators, universal jurisdiction, but not criminality.
The egregious acts listed in Article 4 of the Rwanda Statute, such as murder,
the taking of hostages, pillage, degrading treatment and rape, constitute oenses
under both international law and the national law of the perpetrators. Therefore,
no person who has committed such acts, in Rwanda or elsewhere, could claim
in good faith that he or she did not understand that the acts were criminal. And
the principle of nullum crimen sine lege is designed to protect a person only from
being punished for an act that he or she reasonably believed to be lawful when
committed. That common Article 3 imposes individual criminal responsibility
has been established, of course, in the constant jurisprudence of the ICTY.
It is true that neither common Article 3 nor Additional Protocol II says any-
thing about penalties. However, those provisions of the Geneva Conventions
whose violation constitutes a grave breach also say nothing about penalties, and
they incontestably establish a basis for the perpetrators individual criminal re-
sponsibility, and even for universal jurisdiction. The Geneva Conventions dene
oenses but leave it to the contracting States and to international tribunals to de-
termine penal sanctions. Although Rwandan law allows for capital punishment,
the penalties imposed by the ICTR are limited to imprisonment. Article 23 of
the ICTR Statute states that, in determining the terms of imprisonment, the trial
chambers shall have recourse to the general practice regarding prison sentences
in the courts of Rwanda.43 It follows, therefore, that the principal requirements of
Article 15(1) of the International Covenant on Civil and Political Rights44 prohibit-
ing ex post facto penal measures are satised: the acts were previously prohibited
under both international and national law; and the penalty that is authorized un-
der the ICTR Statute does not exceed the one provided for under national law and
is, in fact, lighter.
42 Theodor Meron, supra note 39 at 96 (1989).

43 See Meron, supra note 7, at 127. A similar provision is contained in Article 24(1) of the
Yugoslavia Statute.
44 Opened for signature Dec. 16, 1966, 999 U.N.T.S. 171.
The fact that some trials would be the subject of international, rather than
national, jurisdiction does not challenge fundamental principles of justice. As the
post-World War II United Nations War Crimes Commission concluded, a vio-
lation of the laws of war constitutes both an international and a national crime,
and is therefore justiciable both in a national and international court.45 The fact
that oenses ex jure gentium that normally would be enforced by national courts
such as violations of the Geneva Conventions would be enforced by an inter-
national tribunal directly vis--vis individuals, does not raise ex post facto prob-
lems.
Article 15(2) of the Political Covenant is particularly pertinent. It provides
that the articles prohibition on ex post facto penal measures shall not prejudice
the trial and punishment of any person for any act or omission which, at the time
when it was committed, was criminal according to the general principles of law
recognized by the community of nations. The legislative history of this provision
suggests that the goal was to conrm and strengthen the principles of Nurem-
berg and Tokyo and to ensure that if in the future crimes should be perpetrated
similar to those punished at Nuremberg, they would be punished in accordance
with the same principles.46 There is no doubt that the ethnic killings in Rwanda
were criminal according to the general principles of law recognized by the com-
munity of nations. Murder is murder all over the world.
The authority of the Nuremberg Tribunals can also be invoked here. As the
U.S. Tribunal established under Control Council Law No. 10 stated in the Ohlen-
dorf trial, in the context of crimes against humanity, Murder, torture, enslave-
ment, and similar crimes which heretofore were enjoined only by the respective
nations now fall within the prescription of the family of nations. Thus murder
becomes no less murder because directed against a whole race instead of a single
person.47 Of course, the recognition that certain types of conduct are and have
been criminal according to the principles of both national law and international
law, and are thus crimes ex jure gentium, serves not only to answer potential ex
post facto challenges but also to support the principle of universal jurisdiction, the
right of third States to prosecute those who commit international oenses.
The International Military Tribunal (IMT) emphasized that, long before the
fourth Hague Convention was adopted in 1907, many of the prohibitions in the
Convention had been enforced by military tribunals in the trial and punishment
45 History of the United Nations War Crimes Commission and the Development of the
Laws of War 232 (1948).
46 Marc J. Bossuyt, Guide to the Travaux Preparatoires of the International Covenant
on Civil and Political Rights 331-32 (1987).
Council law no. 10, 497 (1949). As Judge B.V.A. Rling put it, The crime against hu-
manity is new, not in the sense that those acts were formerly not criminal ... . The
newness is not the newness of the crime, but rather the newness of the competence
to try it. B.V.A. Rling, The Law of War and the National Jurisdiction Since 1945, 100
Recueil des Cours 325, 345-46 (1960).
104 Chapter 2
of individuals accused of violating the rules of land warfare stated in the Conven-
tion:
[Y]et the Hague Convention nowhere designates such practices as criminal, nor is
any sentence prescribed, nor any mention made of a court to try and punish oend-
ers ... . The law of war is to be found not only in treaties, but in the customs and prac-
tices of States which gradually obtained universal recognition, and from the general
principles of justice applied by jurists and practiced by military courts.48
Elsewhere the Tribunal, in referring to war crimes mentioned in Article 6(b) of

its Charter, underscored that, under certain provisions of the Hague and Geneva
Conventions, their commission constituted crimes for which the guilty individu-
als were punishable is too well settled to admit of argument.49
Or, as the Military Tribunal under Control Council Law No. 10 stated in the
High Command Case, the Geneva Convention and the Hague Convention were
binding insofar as they were in substance an expression of international law as ac-
cepted by the civilized nations of the world.50 The Tribunal emphasized that
[i]t is not essential that a crime be specically dened and charged in accordance with
a particular ordinance, statute, or treaty if it is made a crime by international conven-
tion, recognized customs and usages of war, or the general principles of criminal
justice common to civilized nations generally. If the acts charged were in fact crimes
under international law when committed, they cannot be said to be ex post facto acts
or retroactive pronouncements.51
In the RuSHA case, the Tribunal added that the acts of which the defendants were
accused were in violation of the laws and customs of war, of the general princi-
ples of criminal law as derived from the criminal laws of all civilized nations, of
the internal penal laws of the countries in which such crimes were committed.52
Can anyone doubt that the atrocities in Rwanda were, in the language of Article
15(2) of the Political Covenant, criminal according to the general principles of law
recognized by civilized nations?
The language of common Article 3 and of the relevant provisions of Protocol
II is clearly prohibitory; it addresses fundamental oenses such as murder and
torture, which are prohibited in all States. The Geneva Conventions have been
universally ratied and are largely declaratory of customary law. On the author-
48 Trial of the Major War Criminals before the International Military Tribunal, Nurem-
berg, 14 November 1945 1 October 1946, 1 Ocial Documents Trial Documents, at
220-21 (1947).
49 Id. at 253.
Council Law No. 10, at 534 (1948).
51 Id. at 759, 1239 (describing United States v. List (The Hostage Case)).
52 4 id. at 597, 618.
ity of the International Court of Justice, the latter is true of common Article 3.
Protocol II has also been ratied by a large number of States. The substantive
international oenses covered by common Article 3 and Protocol II may, to a
certain extent, overlap with crimes against humanity. Their criminality cannot be
questioned. Article 4 of the Rwanda Statute does not try to create new categories
of grave breaches. It uses the dierent, and perhaps broader, term serious viola-
tions, which obviously are matters of international concern. The meshing of the
criminality of the acts prohibited under international law with their punishabil-
ity under the laws of Rwanda suggests that the Statute respects the prohibition
against retroactive legal measures.
Common Article 3 and Article 4 of Additional Protocol II cover areas such
as prohibition of torture also addressed by human rights law, in some cases
even by peremptory norms. The Statute thus enhances the prospects for treating
egregious violations of human rights law not only of international humanitarian
law as oenses under international law.
It is not surprising that the understanding of common Article 3 as providing
a basis for individual criminal responsibility has given rise to claims of violation of
the principle of nullum crimen sine lege and has gured prominently in the juris-
prudence of the ICTY, and rather less in that of the ICTR. Beyond the immediate
question presented by common Article 3, the Tribunals discussion throws some
light on the compatibility of applying customary law in its innite variety of hith-
erto unarticulated formulations to specic cases and the respect for the principle
of nullum crimen. There is some similarity here with the evolution of the common
law in its early stages.
It may be noted that the Tribunals have focused more on the question wheth-
er a particular norm is customary than on the related question whether the norm
concerned involves individual criminal responsibility.
In the case of Prosecutor v. Aleksovski, the accused argued that reliance can-
not be placed on a previous decision of the Tribunal as a statement of the law,
since that decision would necessarily have been made after the commission of
the crimes, and thus not meet the requirements of the principle of legality. In
its judgement of March 24, 2000, the ICTY Appeals Chamber distinguished be-
tween the interpretation and clarication of customary law, on the one hand,
which is permissible, and the creation of new law, which would violate the ex post
facto prohibition:
126. There is nothing in that principle that prohibits the interpretation of the law
through decisions of a court and the reliance on those decisions in subsequent cases
in appropriate circumstances. The principle of legality is reected in Article 15 of the
ICCPR. What this principle requires is that a person may only be found guilty of a
crime in respect of acts which constituted a violation of the law at the time of their
commission. In the instant case, the acts in respect of which the accused was in-
dicted, all constituted crimes under international law at the time of their commission.
Inhuman treatment and wilfully causing grave suering or serious injury to body or
health under Article 2 of the Statute were violations of the grave breaches provisions
106 Chapter 2
of the Geneva Conventions, and outrages against personal dignity under Article 3 of
the Statute constituted a violation of the laws or customs of war, at the time of the
commission of the crimes.
127. There is, therefore, no breach of the principle of nullum crimen sine lege. That
principle does not prevent a court, either at the national or international level, from
determining an issue through a process of interpretation and clarication as to the
elements of a particular crime; nor does it prevent a court from relying on previous
decisions which reect an interpretation as to the meaning to be ascribed to particu-
lar ingredients of a crime.53
In the elebii case, the Appeals Chamber conrmed the Aleksovski decision:
160.Whereas, as a matter of strict treaty law, provision is made only for the pros-
ecution of grave breaches committed within the context of an international conict,
the Appeals Chamber in Tadi found that as a matter of customary law, breaches of
international humanitarian law committed in internal conicts, including violations
of common Article 3, could also attract individual criminal responsibility.
... .
173. The Appeals Chamber is similarly unconvinced by the appellants argument that
such an interpretation of common Article 3 violates the principle of legality. The
scope of this principle was discussed in the Aleksovski Appeal Judgement, which held
that the principle of nullem crimen sine lege does not prevent a court from interpret-
ing and clarifying the elements of a particular crime. It is universally acknowledged
that the acts enumerated in common Article 3 are wrongful and shock the conscience
of civilised people, and thus are, in the language of Article 15(2) of the ICCPR, crimi-
nal according to the general principles of law recognised by civilised nations. 54
The case of the Prosecutor v. Vasiljevi adds importantly to the clarication of

the law on the subject. The Trial Chamber rst conrmed the earlier case-law,
adding that the interpretation and clarication of existing law does not preclude
progressive development of the law. Venturing further, the Tribunal stated that
the principle of nullum crimen proscribes creating new oenses, even oenses
stated in the Statute if they were not recognized by customary law at the time the
alleged crime was committed, or which were not dened with sucient clarity so
as to be foreseeable:
196. The principle of nullum crimen sine lege does not prevent a court from inter-
preting and clarifying the elements of a particular crime. Nor does it preclude the
progressive development of the law by the court. But under no circumstances may
the court create new criminal oences after the act charged against an accused either
by giving a denition to a crime which had none so far, thereby rendering it prosecut-
53 Appeals Chamber Judgement, IT-95-14/1-A, 24 March 2000, paras. 126-27.

54 IT-96-21-A, 20 February 2001, paras. 160, 173-74.
able and punishable, or by criminalizing an act which had not until the present time
been regarded as criminal.
197. The scope of the Tribunals jurisdiction ratione materiae is determined by cus-
tomary international law as it existed at the time when the acts charged in the indict-
ment were allegedly committed. This limitation placed upon the jurisdiction of the
Tribunal is justied by concerns for the principle of legality .
198. Accordingly, the Tribunals Statute was not intended to create new criminal of-
fences. Instead, as stated by the Appeals Chamber, in establishing the Tribunal, the
Security Council simply created an international mechanism for the prosecution of
crimes which were already the subject of individual criminal responsibility. The fact
that an oence is listed in the Statute, or comes within Article 3 of the Statute through
common article 3 of the Geneva Conventions, does not therefore create new law, and
the Tribunal only has jurisdiction over any listed crime if it was recognised as such by
customary international law at the time the crime is alleged to have been committed.
Each Trial Chamber is thus obliged to ensure that the law which it applies to a given
criminal oence is indeed customary. The Trial Chamber must further be satised
that this oence was dened with sucient clarity for it to have been foreseeable and
accessible, taking into account the specicity of customary international law.
199. The Trial Chamber must be satised that a given act is criminal under custom-
ary international law, because, for instance, a vast number of national jurisdictions
have criminalized it or a treaty provision which provides for its criminal punishment
has come to represent customary international law. On the other hand, as stated
by the Delali Appeals Chamber, a nding of individual criminal responsibility is
not barred by the absence of treaty provision on punishment of breaches. The Trial
Chamber may also, as suggested by the Appeals Chamber, be satised that, in the
language of the ICCPR, those acts were criminal according to the general principles
of law recognized by the community of nations. For criminal liability to attach, it is
not sucient, however, merely to establish that the act in question was illegal under
international law, in the sense of being liable to engage the responsibility of a State
which breaches that prohibition , nor is it enough to establish that the act in question
was a crime under the domestic law of the person who committed the act.55
Applying these principles to the case at hand, the Tribunal held that the term
violence to life and person which appears in the Statute through renvoi to com-
mon Article 3 does not necessarily reect customary law and, in any event, does
not provide for a suciently clear denition of a crime. It decided therefore to
refrain from exercising the jurisdiction provided by the Statute and to acquit the
accused of the crime concerned:
203.In the absence of any clear indication in the practice of States as to what the de-
nition of the oence of violence to life and person identied in the Statute may be
55 Trial Chamber Judgement, IT-98-32-T, 29 November 2002, paras. 196-99.

108 Chapter 2
under customary law, the Trial Chamber is not satised that such an oence giving
rise to individual criminal responsibility exists under that body of law.56
In a recent interlocutory appeal (May 2003), the Appeals Chamber rejected the
claim that joint criminal liability infringes the principle nullum crimen sine lege.
The Appeals Chamber observed:
In his Report to the Security Council, the Secretary-General of the United Nations
proposed that the International Tribunal shall apply, as far as crimes within its juris-
diction are concerned, rules of international humanitarian law which are beyond
any doubt part of customary international law. The fact that an oence is listed in the
Statute does not therefore create new law and the Tribunal only has jurisdiction over
a listed crime if that crime was recognized as such under customary international
law at the time it was allegedly committed. The scope of the Tribunals jurisdiction
ratione materiae may therefore be said to be determined both by the Statute, insofar
as it sets out the jurisdictional framework of the International Tribunal, and by cus-
tomary international law, insofar as the Tribunals power to convict an accused of any
crime listed in the Statute depends on its existence qua custom at the time this crime
was allegedly committed.57
It held that the joint criminal liability or joint criminal enterprise in ques-
tion was suciently foreseeable at the time the acts charged were committed and
that the principle nullum crimen does not prevent the court from interpreting or
clarifying the elements of a particular crime. While a certain measure of judicial
interpretation is inevitable, a court may neither create new law nor carry the in-
terpretation of the existing law beyond reasonable limits.58
Most recently, in the Hadihasanovi Interlocutory Appeal ((IT-01-47AR 72)
(July 2003), the Appeals Chamber emphasized that, in considering the issue of
whether command responsibility (with regard to the duty to investigate and pun-
ish) exists in relation to crimes committed by a subordinate prior to an accuseds
assumption of command over that subordinate, it has always been the approach
of the Tribunal not to rely merely on a construction of the Statute to establish the
applicable law on criminal responsibility, but to ascertain the state of customary
law in force at the time the crimes were alleged to have been committed. The
Chamber found (by a majority decision) that no practice could be found, nor was
there any evidence of opinio juris that would sustain the proposition that a com-
mander can be held responsible for crimes committed by a subordinate prior to
the commanders assumption of command over that subordinate. The Appeals
Chamber thus held that an accused could not be charged under Article 7(3) of the
Statute for crimes committed by a subordinate before the accused assumed com-
56 Id. at paras 203-204.

57 Prosecutor v. Milan Milutonovi, Appeals Chamber, Case No. IT-99-37-AR72, para
9.
58 Id., at paras. 37-38.
mand over that subordinate. The Appeals Chamber noted that it could impose
criminal responsibility only if the crime charged was clearly established under
customary law at the time the events in issue occurred. In case of doubt, crimi-
nal responsibility could not be found to exist, thereby preserving full respect for
the principle of legality. Two dissenting judges argued that the general principle
that command responsibility includes a duty to punish crimes committed before
the assumption of command had been clearly established at the relevant time.
They contended that prosecuting a commander for failing to punish crimes com-
mitted before he assumed command represented merely the application of that
well established customary principle to a novel factual situation reasonably falling
within the principles scope.
The situation in the ICTR is somewhat dierent. I have already mentioned
the report of the Secretary-General, which stated that the substantive law in the
ICTY Statute was intended to be wholly customary. The UN Secretary-General
viewed dierently the legal foundations of Article 4 of the ICTR Statute. He took
the position that:
included within the subject-matter jurisdiction of the Rwanda Tribunal [were] inter-
national instruments regardless of whether they were considered part of customary
international law or whether they have customarily entailed the individual criminal
responsibility of the perpetrator of the crime. Article 4 of the statute, accordingly,
includes violations of Additional Protocol II, which, as a whole, has not yet been
universally recognized as part of customary international law, and for the rst time
criminalizes common Article 3 ... .59
The listed violations draw on both Article 4 of Protocol II (the Fundamental

guarantees clause) an important statement essentially of human rights and
common Article 3. The fact that parts of Protocol II may not have been declara-
tory of customary law, was, however, compensated for by its being a part of the
law of Rwanda, and thus, not ex post facto in Rwanda. In discussing the nullum
crimen principle in the case of the Prosecutor v. Akayesu, an ICTR Trial Chamber
rearmed the customary law character of common Article 3:
It is today clear that the norms of Common Article 3 have acquired the status of
customary law in that most States, by their domestic penal codes, have criminalized
acts which if committed during internal armed conict, would constitute violations
of Common Article 3.60
The Tribunal then relied on the ICTY jurisprudence upholding the customary law
character of common Article 3. As regards Additional Protocol II, the Chamber
agreed with the Secretary-General that the Protocol, as a whole, has not been
universally recognized as customary law. However, Article 4 of the Protocol, on
59 U.N. Doc. S/1995/134, para. 12 (1995).

60 Case No. ICTR-96-4-T, Judgement of 2 September 1998, para. 608.
110 Chapter 2
fundamental guarantees, rearms and supplements common Article 3 and thus,

at the time of the events alleged in the indictment, formed part of customary law.61
In the case of Prosecutor v. Kayishema, the Trial Chamber held it unnecessary to
consider the customary law nature of Article 4 of the Statute, because the oenses
listed constituted crimes under the law of Rwanda and the violators were thus
subject to prosecution.62 Other ICTR cases have usually followed the Akayesu ap-
proach.63
D. Criminality of Violations of Humanitarian Law

Until recently, the accepted wisdom was that neither common Article 3 (which
is not among the grave breaches provisions of the Geneva Conventions) nor Ad-
ditional Protocol II (which contains no provisions on grave breaches) provided a
basis for universal jurisdiction, and that they constituted, at least on the interna-
tional plane, an uncertain basis for individual criminal responsibility.64 Moreover,
it has been asserted that the normative customary law rules applicable in non-in-
ternational armed conicts do not encompass the criminal element of war crimes.
In its comments on the proposed draft statute for the ICTY, the International
Committee of the Red Cross thus underlined the fact that, according to Interna-
tional Humanitarian Law as it stands today, the notion of war crimes is limited to
situations of international armed conict.65 In its nal report, the United Nations
War Crimes Commission (for Yugoslavia) was equally categorical.66
61 Id. at para. 610.

62 Case No. ICTR-95-1-T, Judgement of 21 May, 1999, para. 157.
63 See, for example, Prosecutor v. Musema, Case No. ICTR-96-13, Judgment of 27 Janu-
ary, 2000, para. 240.
64 One of the legal advisers of the International Committee of the Red Cross thus wrote:
IHL applicable to non-international armed conicts does not provide for interna-
tional penal responsibility of persons guilty of violations. Denise Plattner, The Penal
Repression of Violations of International Humanitarian Law Applicable in Non-in-
ternational Armed Conicts, 30 Intl L. Rev. Red Cross 409, 414 (1990). The chapter
on execution of the Convention in each of the 1949 Geneva Conventions contains
provisions on penal sanctions. For example, for the grave breaches provisions of the
Fourth Geneva Convention, supra note 4, see Articles 129-30.
65 Unpublished comments (Mar. 25, 1993).
66 The U.N. War Crimes Commission reported:
[T]he content of customary law applicable to internal armed conict is debatable. As
a result, in general ... the only oences committed in internal armed conict for which
universal jurisdiction exists are crimes against humanity and genocide, which apply
irrespective of the conicts classication.
... .
[T]here does not appear to be a customary international law applicable to internal
armed conicts which includes the concept of war crimes.
... .
As early as the discussions of the ICTY Statute, however, voices urging in-
ternational criminalization of violations of common Article 3 and Additional
Protocol II had been heard. In the Security Council, Ambassador Albright ex-
plained the US understanding that the laws or customs of war in Article 3 of
the Statute (which is illustrative and not exclusive) include all obligations under
humanitarian law agreements in force in the territory of the former Yugoslavia at
the time the acts were committed, including common article 3 of the 1949 Geneva
Conventions, and the 1977 Additional Protocols to these Conventions.67 An ad-
ditional basis for considering that common Article 3 is applicable to the Yugoslav
conicts is the International Court of Justices dictum that Article 3 contains rules
that constitute a minimum yardstick,68 or a normative oor, for international
conicts. With amazing speed, international conceptions of common Article 3
have changed and a perception of criminality of violations of international hu-
manitarian law in non-international armed conicts has emerged.
The U.S. Joint Chiefs of Sta proposed dening other inhumane acts re-
ferred to in Article 5 of the Yugoslavia Statute (crimes against humanity) as encom-
passing various oenses stated in common Article 3 of the Geneva Conventions,
which are part of customary international law and, therefore, [are] consistent
with the principle of nullum crimen sine lege.69 The International Law Section of
the American Bar Association took a similar position.70
There is no moral justication, and no truly persuasive legal reason, for
treating perpetrators of atrocities in internal conicts more leniently than those
engaged in international wars. Ambassador Albrights statement was therefore a
It must be observed that the violations of the laws or customs of war referred to in arti-
cle 3 of the statute of the International Tribunal [for the Former Yugoslavia] are oences
when committed in international, but not in internal armed conicts.
U.N. Doc. S/1994/674, annex, paras. 42, 52, 54 (1994).
67 U.N. Doc. S/PV.3217, at 15 (May 25, 1993). The prosecution at the Yugoslavia Tribunal
has followed this approach in treating forcible sexual intercourse as cruel treatment
or torture in violation of common Article 3(1)(a). The prosecution brings actions for
violations of common Article 3 as if they were violations of the laws or customs of
war. Thus, Indictment No. 1 against Nicolic (Nov. 7, 1994) states at paragraph 16.2
that Nicolic violated the Laws or Customs of War, contrary to Article 3(1)(a) of the
[Fourth] Geneva Convention by participating in cruel treatment of certain victims.
More generally, the indictment charges the accused with [v]iolations of the Laws
and Customs of War including those recognized by Article 3 of the Fourth Geneva
Convention. On common Article 3 in the Yugoslavia Statute, see also OBrien, supra
note 5, at 646.
68 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.),
Merits, 1986 ICJ Rep. 14, 114 (June 27).
69 Oce of the Chairman, Joint Chiefs of Sta, Memorandum for the DoD General
Counsel, appendix (June 25, 1993) (unpublished, on le with author).
70 See Task Force of the ABA Section of International Law and Practice, Report on the
International Tribunal to Adjudicate War Crimes Committed in the Former Yugosla-
via 15 (1993).
112 Chapter 2
welcome attempt to extend the concept of war crimes under international law to
abuses committed in non-international armed conicts.
The trend toward regarding common Article 3 and Additional Protocol II
as bases for individual criminal responsibility was accentuated in reports con-
cerning atrocities in Rwanda.71 Having determined that the conict in Rwanda
constituted a non-international armed conict, the Independent Commission of
Experts on Rwanda stated that common Article 3 and Additional Protocol II,72
and the principle of individual criminal responsibility in international law,73 were
applicable.
In contrast to the ICTY Statute, on which there is abundant contemporane-
ous documentation, the ICTR Statute is lacking in documented legislative history.
However, one thing is clear. Perhaps because it was realized that the crime of
genocide and crimes against humanity might not adequately cover the eld and
that, for practical reasons, the safety net of common Article 3 and Protocol II was
needed, there was no opposition in the Security Council to treating violations of
common Article 3 and Additional Protocol II as bases for the individual criminal
responsibility of perpetrators. Objections to the subject matter jurisdiction of the
Tribunal based on the arguably ex post facto character of Article 4 of the Stat-
ute have not been raised either. For Rwanda, at least, one of the most important
weaknesses of international humanitarian law was remedied through the Statute
adopted by the Security Council under Chapter VII.
In his commentary on the ICTY Statute, the Secretary-General stated that
the principle of nullum crimen sine lege requires that the Tribunal apply rules of
international humanitarian law which are beyond any doubt part of customary
law so that the problem of adherence of some but not all States to specic con-
ventions does not arise.74 Because Rwanda is a party to both the Geneva Conven-
tions and the Additional Protocols, and because these were applicable as the law
of Rwanda, the customary law character of common Article 3, which has been
explicitly recognized by the International Court of Justice,75 and of Protocol II
was not an issue. The question whether these treaty provisions, which prohibit
certain enumerated acts, establish the individual criminal responsibility of the
perpetrators, that is, whether the proscriptions applicable to non-international
armed conicts are criminal in character was categorically answered in the Stat-
71 See Rene Degni-Sequi, Report on the Situation of Human Rights in Rwanda, U.N.
Doc. E/CN.4/1995/7, para. 54 (1994).
72 See U.N. Doc. S/1994/1125, annex, paras. 90-93 (1994). Rwanda has been a party to
Protocol II since 1984.
73 See id., paras. 125-28.
74 Report of the Secretary-General, supra note 10, para. 34.
75 See Military and Paramilitary Activities in and against Nicaragua, supra note 68, 1986
ICJ Rep. at 114. The Court also decided that the obligation of states under common
Article 1 to respect and to ensure respect for the Geneva Conventions applies to com-
mon Article 3.
ute and the jurisprudence of the Tribunals and, with regard to several provisions
of Protocol II, in the Treaty of Rome.
Those who reject common Article 3 and Additional Protocol II as bases for
individual criminal responsibility tend to confuse criminality with jurisdiction and
penalties. The question of what actions constitute crimes must be distinguished
from the question of jurisdiction to try those crimes. Historically, failure to dis-
tinguish between substantive criminality and jurisdiction has weakened the penal
aspects of the law of war.76 Treaties typically obligate contracting States to enforce
their norms and punish those who commit listed oenses.77 A treaty may specify
the State or States competent to exercise jurisdiction. When it does not, it may be
necessary to resort to other treaties or customary law to ascertain whether certain
States only or all States may exercise jurisdiction over the oense.
Treating violations of common Article 3 as a basis for individual criminal
responsibility is armed by some national military manuals or laws. The U.S.
Department of the Armys Field Manual, for example, lists common Article 378 to-
gether with other provisions of the Geneva Conventions and the Hague Conven-
tion Respecting the Laws and Customs of War on Land and proclaims that every
violation of the law of war is a war crime.79 The U.S. Army thus regards violations
of Article 3 as encompassed by the notion of war crimes. It may prosecute cap-
tured military personnel accused of breaches of Article 3 for war crimes.80 The
recent German Military Manual actually describes some violations of common
Article 3 and Protocol II as grave breaches of international humanitarian law.81
On April 27, 2001 the Swiss Military Court of Cassation conrmed the conviction
76 See G.I.A.D. Draper, The Modern Pattern of War Criminality, 6 Isr. Y.B. Hum. Rts. 9,
22 (1976).
77 See Yoram Dinstein, International Criminal Law, 20 Isr. L. Rev. 206, 221-22 (1985).
78 U.S. Dept of the Army, The Law of Land Warfare, para. 11 (Field Manual No. 27-10,
1956).
79 Id., para. 499. The British Military Manual states that all other violations of the Con-
ventions not amounting to grave breaches, are also war crimes. U.K. War Oce, The
Law of War on Land, Being Part III of the Manual of Military Law, para. 626 (1958).
80 Regarding the exercise of jurisdiction over war crimes, see U.S. Dept of the Army,
supra note 78, para. 505(d). Regarding the law to be applied, see id., para. 505(e). See
also 10 U.S.C. 802(a)(9)-(10) (1988) (listing the following persons, among others, are
subject to the U.C.M.J.: prisoners of war in custody of the armed forces and, in time
of war, persons serving with or accompanying an armed force in the eld). See also
id. 818 (General courts martial shall have jurisdiction to try any person who by the
law of war is subject to trial by a military tribunal and may adjudge any punishment
permitted by the law of war.). Although the U.S. authority under international law
to prosecute violators is, in my view, clear, the U.S. statutory authority to prosecute
is less so. The United States would typically not be interested in prosecuting alien
violators of common Article 3 when the oenses occurred in civil wars in other coun-
tries.
81 Federal Republic of Germany, Federal Ministry of Defense, Humanitarian Law in
Armed Conicts Manual, para. 1209 (1992).
114 Chapter 2
of a Rwandan national under Art. 109 of the Military Penal Code for murder, at-
tempted murder and grave breaches of the international conventions relating to
the conduct of hostilities and the protection of persons and property, including
common Article 3 and Additional Protocol II.
Since the readiness of the Nuremberg Tribunals to proceed against viola-
tions of the 1907 Hague Convention Respecting the Laws and Customs of War on
Land82 and the 1929 (Geneva) Convention Relative to the Treatment of Prisoners
of War,83 neither of which contains provisions on punishment of breaches or pen-
alties, it has not been seriously questioned that some acts of individuals that are
prohibited by international law constitute criminal oenses, even when there is
no accompanying provision for the establishment of the jurisdiction of particular
courts or a scale of penalties.
Whether international law creates individual criminal responsibility depends
on such considerations as whether the prohibitory norm in question, which may
be conventional or customary, is directed to individuals, States, groups or other
authorities, and/or to all of these.84 The extent to which the prohibition is ad-
dressed to individuals, whether the prohibition is unequivocal in character, the
gravity of the act, and the interests of the international community are all relevant
factors in determining the criminality of various acts.
That an obligation is addressed to governments is not dispositive of the penal
responsibility of individuals, if individuals clearly must carry out that obligation.
The Nuremberg Tribunals thus considered as binding not only on Germany, but
also on individual defendants, those provisions of the 1929 Geneva Convention
and the 1907 Hague Convention that were addressed to belligerents, the occu-
pant or an army of occupation.85 In light of this jurisprudence and the rudimen-
tary nature of instruments of international humanitarian law as penal law, there is
no justication for contesting the criminality of common Article 3 on the ground
that it speaks of the obligations of each Party to the conict. As the International
Military Tribunal so eloquently stated, Crimes against international law are com-
mitted by men, not by abstract entities, and only by punishing individuals who
commit such crimes can the provisions of international law be enforced.86 This
principle should, however, not obscure the fact that in some crimes States play
a critical role, and that the principle of responsibility of individuals should not
obscure the principle of State responsibility and prevent the possibility of also
making States answerable for such collective crimes as those committed by the
Nazis during World War II.
82 Oct. 18, 1907, 36 Stat. 2277, 118 L.N.T.S. 343 [hereinafter Hague Convention No. IV].
83 Opened for signature July 27, 1929, 47 Stat. 2021 (1932).
84 See generally Nguyen Quoc Dinh, Droit International Public 621 (Patrick Daillier &
Alain Pellet eds., 5th ed. 1994); Theodor Meron, War Crimes Law Comes of Age 239-
40 (1998).
85 United States v. von Leeb, 11 Trials of War Criminal, supra note 50, at 462, 537, 539-40
(1948) (The High Command Case).
86 Trial of the Major War Criminals, supra note 48, at 223.
Typically, norms of international law have been addressed to States. They

have engaged, in case of violation, the international responsibility of the State.87
With increasing frequency, however, international law, and especially the law of
war, has directed its proscriptions both to States and to individuals and groups.
Moreover, there has been increasing willingness to interpret treaties as creating
not only State responsibility but individual criminal liability as well. The trend to-
wards imposing individual criminal responsibility for violations of an increasing
number of norms of international law is clearly ascendant. Modern international
humanitarian law imposes, and is perceived as imposing, criminal responsibility
on individuals, often in addition to the States international responsibility. Inter-
national conventions88 that proscribe certain activities of international concern
without creating international tribunals to try the violators characteristically obli-
gate States to prohibit those activities and to punish the natural and legal persons
under their jurisdiction for violations according to national law.
The fact that international rules are normally enforced by national institu-
tions and national courts applying municipal law does not in any way diminish
the status of the violations as international crimes. Conversely, the evolution of
individual criminal responsibility must not erode the vital concepts of State re-
sponsibility for the violation of international norms.
The penal element of international humanitarian law is still rudimentary. Its
development has been nourished by such broad ideas as the Martens Clause,89
general principles of law recognized by civilized nations, and general principles of
penal law.90 When treaties fail to dene clearly the criminality of prohibited acts,
the underlying assumption has been that customary law and internal penal law
would supply the missing links.
The development of penal aspects of international humanitarian law has
shifted back and forth between a preference for more or less comprehensive lists
of crimes and brief references to the laws and customs of war. The rst approach
87 Cf. crimes of State in the meaning of Article 19 of the ILCs draft articles on State
responsibility (part one), adopted by the ILC on rst reading. [1976] 2 Y.B. Intl L.
Commn, pt. 2, at 73, 95-96, U.N. Doc. A/CN.4/SER.A/1976/Add. 1 (pt. 2).
88 E.g., Convention on the Prohibition of the Development, Production, Stockpiling and
Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, art. VII, 32 ILM
800, 810 (1993).
89 See Hersch Lauterpacht, The Law of Nations and the Punishment of War Crimes, 21
Brit. Y.B. Intl L. 58, 65 (1944); see also Lord Wright, War Crimes under International
Law, 62 L.Q. Rev. 40, 42 (1946). The Martens clause reads as follows:
Until a more complete code of the laws of war has been issued, the High Contract-
ing Parties deem it expedient to declare that, in cases not included in the Regulations
adopted by them [and annexed to the Convention], the inhabitants and the belligerents
remain under the protection and the rule of the principles of the law of nations, as they
result from the usages established among civilized peoples, from the laws of humanity,
and the dictates of the public conscience.
Hague Convention No. IV, supra note 82, Preamble.
90 Draper, supra note 76, at 18.
116 Chapter 2
was attempted in the report of the commission established by the Preliminary

Peace Conference in 1919, which adopted a formal list of thirty-two crimes.91 This
approach was also taken in the lists of grave breaches in the 1949 Geneva Conven-
tions, and in the expanded list of grave breaches in Additional Protocol I to the
Geneva Conventions. In Article 228 of the Treaty of Versailles itself, however, the
German Government recognized the right of the Allied and Associated Powers
to bring persons before military tribunals who were accused of having commit-
ted acts simply in violation of the laws and customs of war.92 The view that lists
of crimes should be detailed and comprehensive is in greater harmony with the
principle of nullen crimen. It is clearly ascendant in contemporary practice.
The fourth Hague Convention, which contains a normative statement in its
[r]egulations respecting the laws and customs of war on land, was silent regard-
ing penal responsibility. The early Geneva Conventions contain no penal provi-
sions whatsoever. Nor does the 1929 POW Convention93 (except with respect to
penal and disciplinary measures against POWs), which gured so prominently in
the Nuremberg trials as a basis for the prosecution and conviction of oenders.
The other Geneva Convention of the same year, the Convention for the Ameliora-
tion of the Condition of the Wounded and Sick in the Field, contained a weak pro-
vision requiring governments to propose to their legislatures should their penal
laws be inadequate, the necessary measures for the repression in time of war of
any act contrary to the provisions of the present Convention (Article 29).94
In contrast to the Statute prepared by the International Law Commission
(1994), the Rome Statute lists and denes crimes and enumerates those that it
deems applicable to non-international armed conicts. Listing crimes has, of
course, the advantage of preventing ex post facto challenges. As much as pos-
sible, the Rome Conference sought to reect in treaty language the customary
international law. Where it has gone beyond customary law may pose particular
diculties where nationals of non-State parties are prosecuted.
The Nuremberg Tribunals appear to have taken it for granted that violations
of the substantive provisions of The Hague and Geneva Conventions were crimi-
nal. These Tribunals considered those provisions of the two treaties that were
declaratory of customary law as having created an adequate basis for individual
criminal responsibility. Establishing the customary law character of these provi-
91 United Nations War Crimes Commission, supra note 45, at 34-35.

92 Treaty of Peace with Germany, June 28, 1919, 2 Bevans 43, 11 Martens Nouveau Re-
cueil (ser. 3) 323. See also Commission on the Responsibility of the Authors of the
War and on Enforcement of Penalties, Report Presented to the Preliminary Peace
Conference, reprinted in 14 Am. J. Intl L. 95, 112-15 (1920) and Carnegie Endowment
for International Peace, Division of International Law, Pamphlet No. 32, Violation of
the Laws and Customs of War 16-19 (1919). The Commission recommended pros-
ecuting all those guilty of oenses against the laws and customs of war or the laws of
humanity. 14 Am. J. Intl L. at 117.
93 Supra note 83.
94 118 L.N.T.S. 303.
sions was necessary because the Hague Convention was not formally applicable
as a result of the si omnes clause (some belligerents were not parties), and be-
cause the Soviet Union was not a party to the Geneva P.O.W. Convention.95 Thus,
although neither the Geneva Conventions that preceded those of 1949 nor the
fourth Hague Convention contained explicit penal provisions, they were accepted
as a basis for prosecutions and convictions in the post-World War II Tribunals.
The grave breaches system was introduced by the Geneva Conventions of
August 12, 1949. The penal system of the Conventions requires the States parties
to criminalize certain acts, and to prosecute or extradite the perpetrators. The ad-
vantage of this approach is its clarity and transparency, which is so important for
criminal law. The disadvantage is the creation of the category of other breaches,
which involves the violation of all the remaining provisions of the Conventions,
some of which are arguably less categorically penal. Of course, the introduction
of the system of grave breaches cannot alter the possibility that the other breaches
may be considered war crimes under the customary law of war. Some national
statutes provide that violations other than grave breaches may also give rise to
criminal responsibility, without being subject to universal jurisdiction. Moreover,
the list of grave breaches may be expanded through treaty interpretation, and
various types of conduct may be treated as war crimes.96
The creation of the penal system of the Geneva Conventions led some com-
mentators to conclude that jurisdiction was limited to the courts of the detaining
power and that international courts, such as the Nuremberg and Tokyo Tribu-
nals, would have no competence in respect of grave breaches of the Conventions
and Protocol I.97 I disagree. Although international trials were not contemplated
by the Conventions, which envisaged cooperative system of penal enforcement
based on national courts, neither did they exclude the possibility of establishing
international criminal tribunals and granting them jurisdiction over breaches of
95 See Meron, supra note 39, at 37-41.

96 As happened in the case of rape, see Meron, supra note 6, at 426-47 (concerning the
readiness of the International Committee of the Red Cross and the U.S. Government
to regard rape as a grave breach or war crime). It may be noted that the indictments
presented by the Prosecutor against Meaki and others (Indictment No. 2, paras.
22.8-22.10 (Feb. 13, 1995)), and against Tadi and others (Indictment No. 3, paras.
4.2-4.4 (Feb. 13, 1995)) to the International Criminal Tribunal for the Former Yugo-
slavia treat forcible sexual intercourse as cruel treatment in violation of the laws
or customs of war recognized by Article 3 of its Statute and common Article 3(1)(a)
of the Geneva Conventions, and also as a grave breach of the Conventions of causing
great suering under Article 2(c) of its Statute. Rape is treated as a crime against
humanity recognized by Article 5(g) of the Statute of the Tribunal. See particularly
Prosecutor v.Kunarac, Case No. IT-96-23&23/1-A, Judgement of 12 June 2002, at pa-
ras. 125-33, 179-85.
97 G.I.A.D. Draper, The Implementation and Enforcement of the Geneva Conventions of
1949 and of the Two Additional Protocols of 1977, 164 Recueil des Cours 1, 38 (1979).
118 Chapter 2
the Geneva Conventions as among States parties,98 or of the Protocols, or under

Chapter VII, as the Security Council did in the Statutes of the ad hoc Tribunals for
Yugoslavia and Rwanda. Surely, States can do jointly what they may do severally,
especially when such joint action is undertaken through the Security Council.
The victorious powers in World War II had the competence under both
international and domestic law to prosecute Nazi war criminals. As occupying
States, they exercised territorial power over the defeated Germany. They could
also establish the International Military Tribunal to act jointly on their behalf. Al-
though the Geneva Conventions system of grave breaches contemplates national
enforcement through national law, I see no diculty in having these oenses ap-
plied directly to individuals belonging to State parties by either a treaty-based
tribunal or a Chapter VII tribunal. The fact that grave breaches are considered
crimes under customary law strengthens the case for the competence of a treaty-
based international tribunal.
E. Universality of Jurisdiction
Universal jurisdiction is a principle permitting States to exercise criminal juris-
diction over persons who have committed oenses against international law that
are recognized by the community of nations as of universal concern and as sub-
ject to universal condemnation and who are present in their territory, even in the
absence of any other basis for jurisdiction. International law thus allows any State
to apply its laws to certain oenses even in the absence of territorial, nationality
(active or passive), or protective bases of jurisdiction or other accepted contacts
with the oender or the victim. Universal jurisdiction may be created by multilat-
eral conventions, usually of a universal or almost universal character, or by cus-
tomary international law. In my view, universality of jurisdiction does not depend
on the nature of the conict, i.e., whether the conict is international or non-
international in character, but on the nature and the gravity of the oense. The
critical question is whether international customary law, or widely ratied con-
ventions, recognize a breach of the law as a serious violation of international law
triggering the right of third states to prosecute violations. Given the inadequacy
of international criminal tribunals, universality of jurisdiction constitutes a useful
element of mechanisms of enforcement. The right of states to prosecute crimes
jure gentium can be seen as an analogue, mutatis mutandis, of the prerogative of
all states to invoke obligations erga omnes against states that violate fundamental
rights of the human person.
98 Meron, Prisoners of War, Civilians and Diplomats in the Gulf Crisis, 85 Am. J. Intl L.
104, 106 (1991).
The Commentary on the Geneva Conventions of 12 August 1949: [No.] IV Geneva
Convention Relative to the Protection of Civilian Persons in Time of War 593 (Os-
car M. Uhler & Henri Coursier eds., 1958) observes that Article 146(2) of the Fourth
Geneva Convention does not exclude handing over the accused to an international
criminal court whose competence has been recognized by the Contracting Parties.
Of course, not all things prohibited by international law constitute oenses

involving the individual criminal responsibility of individuals and not all oenses
involving such individual responsibility are subject to universality of jurisdiction.
As Rosalyn Higgins has observed, few are the oenses subject to universal juris-
diction, these are acts commonly treated as criminal by most States in their own
laws, and they are perceived as an attack upon international order.99 She notes
that the right to exercise such jurisdiction stems from universally or quasi-univer-
sally accepted treaties, or from acceptance under general international law. As a
practical proposition, a State must have in place legislation enabling it to exercise
such jurisdiction.
The United States Court of Appeals for the Sixth Circuit has agreed that
when a State exercises jurisdiction under the universality principle, neither the
nationality of the accused or the victims nor the location of the crime is signi-
cant: The underlying assumption is that the crimes are oenses against the law
of nations or against humanity and that the prosecuting nation is acting for all
nations.100 The Court of Appeals built on the previous Eichmann jurisprudence101
and on section 404 of the American Law Institutes Restatement of Foreign Rela-
tions Law of the United States.102
In a more recent case, United States v. Ramzi Ahmed Yousef,103 the Second
Circuit followed and elaborated upon Demjanjuk. The Court established the re-
quirement of universal condemnation for a crime for which universal jurisdiction
can be exercised: universal jurisdiction arises under customary law only where
crimes (1) are universally condemned by the community of nations, and (2) by
their nature occur outside of a State or where there is no State capable of punish-
ing, or competent to punish, the crime[.]104 The universality principle permits a
State, without contacts to the State in which the crime occurred105 to prosecute
a few oenses recognized as oenses against the law of nations, which include
piracy, war crimes and crimes against humanity, but do not, in the Courts view,
include terrorism which is not universally condemned, nor uniformly dened
and is thus not subject to universal jurisdiction.106
In recent years, treaties creating universal jurisdiction have been increasingly
concluded in matters such as the safety of civil aviation and maritime navigation,
99 Rosalyn Higgins, Problems and Process 58 (1994).

100 Demjanjuk v. Petrovsky, 776 F.2d 571, 583 (6th Cir. 1985), cert. denied, 457 U.S. 1016
(1986).
101 Attorney General of Israel v. Adolf Eichmann, 36 Intl L. Rep. 5 (Isr. Dist. Ct. 1961),
a d, 36 Intl L. Rep. 277 (Isr. Sup. Ct. 1962).
102 Restatement (Third) of the Foreign Relations Law of the United States . 404 (1987)
[hereinafter Restatement].
103 327 F. 3d 56 (2nd Cir. 2003).
104 Id., at 105.
105 Id., at 103.
106 Id., at 104-06.
120 Chapter 2
the safety of internationally protected persons and of UN personnel, suppres-

sion of terrorism, and such egregious violations of human rights as torture. Such
treaties recognize the right of the State of custody to prosecute or to extradite to
other States nationals of non-State parties. Customary principles of universality
of jurisdiction may emerge from such treaties and pertinent practice and opinio
juris. Whether such customary law has already matured for a specic crime will
be tested by litigation and practice.
Despite limited practice, there has also been increasing readiness to recog-
nize that crimes against humanity, the crime of genocide,107 and war crimes are
subject, under customary law, to the universal jurisdiction of all States. Several
States have adopted legislation enabling them to prosecute genocide committed
outside of their territories either as a crime under the Genocide Convention or
under customary law.108 Other States might be able to use their general legislation
in the criminal eld for such purpose.
Under the impact of the ICTY and the ICTR,, investigations and prosecutions
have taken place in Germany, the Netherlands, Sweden, Belgium and Switzerland
for acts committed in the former Yugoslavia, and in Denmark and Belgium for
acts committed in Rwanda. Mandatory prosecution (or extradition) of perpetra-
tors of grave breaches of the Geneva Conventions and discretionary prosecution
for non-grave breaches are left to the penal courts of the detaining power, as are,
subject to certain broad principles stated in the Conventions, the law of evidence,
procedural rules and the system of penalties.
In Belgium, on the basis of the 1993 law which grants Belgium jurisdiction
over a broad range of violations of international humanitarian law committed
abroad without requiring any nexus with Belgium (Spanish law also provides for
broad universal jurisdiction),109 complaints and preliminary investigations have
been initiated against the ex-Chilean president Pinochet requesting his extradi-
tion from the United Kingdom, against members of the government of the Demo-
cratic Republic of Congo, ex-leaders of the Cambodian Khmer Rouge, an ex-min-
ister of Morocco, an ex-president of Iran and against the Israeli Prime Minister
107 The provision of the genocide convention which mentions only the jurisdiction of
the territorial State or of an international tribunal to be established has been largely
ignored in the doctrine.
108 See Lori Fisler Damrosch, Enforcing International Law through Non-Forcible Mea-
sures, 269 Recueil des Cours 9, 216 (1997). An important recent example of legislation
conferring universal jurisdiction over the crime of genocide is the Belgian Act con-
cerning the Punishment of Grave Breaches of International Humanitarian Law (Feb.
10, 1999), Arts. 1(1) and 7, reprinted in 38 ILM 918 (1999).
109 Loi de 16 juin 1993 la rpression des infractions graves aux conventions interna-
tionales de Genve du 12 aot 1949 et aux protocoles I et II du 8 juin 1977, Moniteur
Belge, Aug.5, 1993. For the Spanish law, see Antonio Cassese, When May Senior State
Ocials be Tried for International Crimes? Some Comments on the Congo v. Belgium
Case, 13 EJIL 854, 860 (2002). See also supra note 108. The Belgian law, as amended in
1999, covered violations of the Geneva Conventions and their Additional Protocols,
the Crime of Genocide, and Crimes against Humanity.
Ariel Sharon. On June 27, 2000, the indictment chamber (chambre de mise en
accusation) of the Court of Appeal of Brussels ordered the trial of four suspects
(Rwandan nuns) before the Brussels regional court of assises on the basis of the
1993 law. On June 8, 2001, the jury found the suspects guilty of grave breaches
(homicide) of the Geneva Conventions and of the Additional Protocols, and sen-
tenced them to 12 to 20 years imprisonment. An appeal of the decisions of the
indictment chamber and the court of assises was rejected by the Court of Cassa-
tion on January 9, 2002.
The wide reach of the Belgian law has been controversial. In April 2000 a
Belgian Judge issued an international arrest warrant against the Congolese Min-
ister of Foreign Aairs alleging grave breaches of the Geneva Conventions of 1949
and of the Additional Protocols and crimes against humanity. The Minister was
outside Belgium both at the time of the alleged violations and at the time when
the arrest warrant was issued. These Belgian warrants prompted the Congo to
institute proceedings before the ICJ, complaining of a violation of Congos sover-
eignty and of the Ministers immunity. The case concerned two main questions:
the extent of immunities of Foreign Ministers while in oce, and the reach of the
principle of universal jurisdiction. The Court decided not to address universal
jurisdiction and conned itself to the question of immunity. It concluded that the
functions of a Minister for Foreign Aairs are such that, throughout the duration
of his or her oce, he or she when abroad enjoys full immunity from criminal
jurisdiction and inviolability.110 The ICJ decision suggests that provisions in Stat-
utes of the ICTY, ICTR and the ICC which override sovereign immunity privilege
do not aect international law outside international criminal tribunals. From the
individual opinions, it is apparent that judges had widely diering views of the
scope of application of the principle of universal jurisdiction.
The question as to whether universal jurisdiction can be exercised in the
absence of any connection with the State has been the object of controversy. In
many national cases, the defendants had some connection with the territory of the
forum State, for instance by residence. In Belgium, a recent court decision, trig-
gered by the Yerodia case before the ICJ, has reintroduced the requirement of the
suspects presence in the territory in the forum States territory. In this case, the
indictment chamber of a Belgian court on April 17, 2002, in eect narrowed the
110 The Court also decided that the issuance of the arrest warrant against the Foreign
Minister and its international circulation constituted violations of respect for the
Ministers immunity from criminal process and his inviolability. The case for Bel-
gium suered from a lack of international practice supporting to the 1993 law. Case
concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Bel-
gium), International Court of Justice, Judgment of 14 February 2002, par. 54. As re-
gards a former Minister for Foreign Aairs, the Court held that he or she can be tried
for acts committed prior or subsequent to his or her period of oce, as well as for
acts committed during that period of oce in a private capacity. Id., at para. 61. For a
criticism of this Judgement, see, Steen Wirth, Immunity for Core Crimes? The ICJs
Judgment in the Congo v. Belgium Case, 13 EJIL 877 (2002); Antonio Cassese, supra
note 109, at 853 (2002).
122 Chapter 2
scope of the 1993 law by holding that les poursuites ne peuvent avoir lieu que si
linculp est trouv en Belgique. In June 2002 a Belgian Appeals Court dismissed
the case against Prime Minister Sharon arising from the massacres in the Sabra
and Chatila refugee camps, insisting that for investigations or trials, suspects had
to be physically present on Belgian soil.111 However, the highest court, the Cour
de Cassation, decided on February 12, 2003, that Sharon could not be prosecuted
only as long as he enjoyed his Prime-Ministerial immunity. The court did not
block the prosecution of a co-defendant, a former Israeli Army chief-of-sta.112
A new law adopted on August 15, 2003113 provides that while Belgium re-
mains competent to exercise jurisdiction over serious violations of international
humanitarian law regardless of the place of the crimes commission and whether
or not the alleged perpetrator is present in Belgium, no prosecution shall take
place if: (1) the suspect is not a Belgian national or does not have Belgium as his/
her main domicile; or (2) the victim is not a Belgian national or has not habitually
and regularly been living in Belgium for at least three years. In the second case,
the proceedings can only be instituted at the request of the Federal Prosecutor,
who will have nal authority over the matter. The Federal Prosecutor may decide
to institute proceedings only when it is in the interests of good administration of
justice, and in accordance with the international obligations of Belgium, includ-
ing treaties with the state of the suspect. On 25 March 2005, the Cour darbitrage
of Belgium (which performs some of the functions of a constitutional court) re-
scinded this law in part.114 It found that the discretionary control exercised by the
Federal Prosecutor who is hierarchically subject to the executive branch was
not a sucient guarantee for potential victims. The Cour dArbitrage stated that
a review of the Federal Prosecutors decision not to prosecute must be allowed
before an independent and impartial judge, except when the Federal Prosecu-
tor decides not to prosecute a case that falls under the jurisdiction of another
court, either foreign or international. The reason for this exception is to avoid
allowing the victims to pursue a complaint before a judge for the mere purpose
of articially sustaining a political debate involving foreign ocials. Thus, the law
requires a clear personal or territorial connection to Belgium and strict control
by the Prosecutor, as well as, in certain cases by a judge. It is therefore likely to
eliminate the diplomatic and legal diculties for Belgium which have been trig-
gered by the previous law.
The Princeton Principles on Universal Jurisdiction suggest that no connec-
tion with the prosecuting State is required: universal jurisdiction is criminal ju-
risdiction based solely on the nature of the crime, without regard to where the
111 Belgian Court rejects suit against Sharon, International Herald Tribune, 27 June,
2002.
112 Cour de Cassation, Section Franaise, 2E Chambre; NYT Feb. 13, 2003.
113 Loi relative aux infractions graves du droit international humanitaire du 5 aot 2003
modiant la Loi du 17 avril 1878 contenant le Titre prliminaire du Code de procedure
pnale, C-2003/21182, Moniteur belge, 7 aot p. 40511.
114 Cour darbitrage, Arrt no. 62/2005, 23 March 2005.
crime was committed, the nationality of the alleged or convicted perpetrator, the
nationality of the victim, or any other connection to the State exercising such
jurisdiction.115 In contrast, the ILA study of universality of jurisdiction takes the
position that the physical presence of the accused on the prosecuting States terri-
tory is required. The ILA study appears closer to the traditional understanding of
universality of jurisdiction. Such a narrower view may avoid excessive prosecuto-
rial zeal, whether motivated by political or other considerations. M.T. Kamminga,
the rapporteur on universal jurisdiction for the ILA, thus wrote that the only
connection between the crime and the prosecuting State that may be required
is the physical presence of the alleged oender within the jurisdiction of that
State.116
Following the report presented by rapporteur Christian Tomuschat and his
commission, the Institute of International Law adopted in its Krakow session
(August 26, 2005), an important resolution on universal criminal jurisdiction
with regard to the crime of genocide, crimes against humanity and war crimes.
Article 1 of the Resolution considers universal jurisdiction in criminal matters
as an additional ground of jurisdiction, allowing a state to prosecute alleged of-
fenders irrespective of the place of commission of the crime and regardless of any
link of active or passive nationality or other grounds of jurisdiction recognized
by international law. Article 2 states that universal jurisdiction is primarily based
on customary law but it can also be established under a multilateral treaty in the
relations between the contracting parties, in particular by virtue of clauses which
provide that the state in whose territory an alleged oender is found shall either
extradite or try that person. Under Article 3 of the Resolution, universal jurisdic-
tion may be exercised over international crimes identied by international law
as falling within that jurisdiction in matters such as genocide, crimes against hu-
manity, grave breaches of the Geneva Conventions or other serious violations of
international humanitarian law committed in international or non-international
armed conicts. Apart from investigations and requests for extradition, the exer-
cise of universal jurisdiction requires the presence of the alleged oender in the
territory of the prosecuting state or on board a vessel ying its ag or an aircraft
registered under its laws. In my view, this requirement has the advantage of dis-
couraging abusive resort to universality of jurisdiction and in absentia trials.
F. Non-Grave Breaches and Universal Jurisdiction

Do third States i.e., States that have no territorial or nationality (active or pas-
sive) or protective principle links with the oender or the victim have the
right to prosecute those who commit violations in internal armed conicts? Does
115 Princeton Principles on Universal Jurisdiction, Principle 1, available at <http://www.

princeton.edu/~lapa/unive_jur.pdf>.
116 Menno T. Kamminga, Final Report on the Exercise of Universal Jurisdiction in Re-
spect of Gross Human Rights Oences, International Law Association, London Con-
ference, 2000, p. 2.
124 Chapter 2
the principle of universal jurisdiction apply to violations of international humani-

tarian law committed in internal armed conicts? The Krakow resolution on the
Institute of International Law, above, answers this question in the armative. It
is worth recalling that following World War II, it was neither the various inter-
national tribunals nor the courts of the occupying powers in Germany, but pri-
marily the national courts of various Allied States, that tried the greater number
of persons for war crimes and crimes against humanity117 although such trials
were not required by international law, and (outside of the Nuremberg Charter)
the oenses were not even characterized as crimes by any general international
treaty in force at the time. Such trials gained legitimacy from the situation of war
and the traditional right of captors to try enemies accused of war crimes.
The right of States to punish perpetrators of violations committed outside
their territory, while admittedly broad, is not unlimited and must conform to
accepted jurisdictional principles recognized in international law, as well as to
national constitutions and other laws.118 Even States committed in principle to
territorial criminal jurisdiction may and do provide by statute for prosecutions
regarding particular categories of oenses committed outside their territories.
Often the acts concerned are recognized as criminal by international treaties, and
less frequently by customary law, and sometimes by both. Obviously, universal
jurisdiction over international oenses can be exercised only in those States that
have the necessary national laws. The Princeton Principles on Universal Jurisdic-
tion provide, however, that national judicial organs may rely on universal juris-
diction even if their national legislation does not specically provide for it.119 It is
unlikely that this suggestion will be followed in State practice, and certainly not in
the absence of enabling domestic legislation in States following a dualist model.
117 See 11 Reports of Trials of War Criminals, supra note 50, at 28-48 (1949).
118 See Restatement, supra note 102, 402. See also Richard R. Baxter, The Municipal and
International Law Basis of Jurisdiction over War Crimes, 28 Brit. Y.B. Intl L. 382, 391
(1951). The U.S. Constitution grants Congress the power to dene and punish oenses
against the law of nations and permits it to make acts committed abroad crimes un-
der U.S. law, Andreas F. Lowenfeld, U.S. Law Enforcement Abroad: The Constitution
and International Law, 83 Am. J. Intl L. 880, 881-82 (1989).
119 Princeton Principles on Universal Jurisdiction, Principle 3, available at <http://www.
princeton.edu/~lapa/unive_jur.pdf>.
Many commentators agree that crimes against humanity are subject to uni-
versal jurisdiction.120 And it is increasingly recognized that the crime of genocide121
(despite the absence of a provision on universal jurisdiction in the Genocide Con-
vention) may also be prosecuted by any State.122 Is this also true, however, of viola-
tions of common Article 3 and Additional Protocol II to the Geneva Conventions
(Article 4 of the Rwanda Statute), which fall outside the grave breaches provisions
of the Geneva Conventions?
Just because the Geneva Conventions created the obligation of aut dedere
aut judicare only with regard to grave breaches does not mean that other breach-
es of the Geneva Conventions may not be punished by any State party to the Con-
ventions. Indeed, Article 129(3) of the Third Geneva Convention provides that
each State party shall take measures necessary for the suppression of all acts con-
trary to the provisions of the present Convention other than the grave breaches.
Identical provisions are contained in the other 1949 Geneva Conventions. As the
Commentary to the Third Convention states, The Contracting Parties ... should
at least insert in their legislation a general clause providing for the punishment
120 Dinstein, supra note 77, at 211-12; Baxter, supra note 118; 1 Oppenheims International
Law 998 (Robert Jennings & Arthur Watts eds., 9th ed. 1992); Diane F. Orentlicher,
Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,
100 Yale L.J. 2537, 2555, 2593-94 & n. 91 (1991); M. Cherif Bassiouni, Crimes Against
Humanity in International Law 510-27 (1992). See also Judgment of Oct. 6, 1983 (In
re Barbie), Cass. crim., 1983 Gazette du Palais, Jur. 710. In its comments on the estab-
lishment of an international criminal court, the United States emphasized that States
have a continuing responsibility to prosecute those who commit crimes against hu-
manity. U.N. Doc. A/AC.244/1/Add. 2, para. 23 (1995) [hereinafter U.S. Comments].
121 Restatement, supra note 102, 404. Reporters Note 1 states that [u]niversal jurisdic-
tion to punish genocide is widely accepted as a principle of customary law. See also
A.R. Carnegie, Jurisdiction over Violations of the Laws and Customs of War, 39 Brit.
Y.B. Intl L. 402, 424 (1963); Jordan J. Paust, Congress and Genocide: Theyre Not Going
to Get Away with It, 11 Mich. J. Intl L. 90, 92 & n. 2 (1989). In his separate opinion in
the Genocide case before the International Court of Justice, ad hoc Judge Lauterpacht
stated that the description of genocide as a crime under international law in Article
1 of the Convention was intended to permit parties, within the domestic legislation
that they adopt, to assume universal jurisdiction over the crime of genocide that is
to say, even when the acts have been committed outside their respective territories by
persons who are not their nationals. Application of the Convention on the Preven-
tion and Punishment of the Crime of Genocide, Provisional Measures, 1993 ICJ Rep.
325, 443, para. 110 (Order of Sept. 13).
122 The ILCs Statute for an International Criminal Court allows any State party to the
Genocide Convention to lodge a complaint with the Prosecutor alleging that a crime
of genocide has been committed (Art. 25(1)). The court would have an inherent, or
compulsory, jurisdiction over the crime of genocide (Art. 21(1)(a)). Although ad-
dressing international, not national, jurisdiction, these provisions appear to reect
the principle of universal concern for the punishment of the crime of genocide.
126 Chapter 2
of other breaches.123 Even if there is no clear obligation to punish or extradite

authors of violations of the Geneva Conventions that are not encompassed by
the grave breaches provisions, such as common Article 3, all States have the right
to punish those guilty of such breaches. In this sense, non-grave breaches may
fall within universal jurisdiction, i.e., the concurrent criminal jurisdiction of all
States. Moreover, in the Nicaragua case,124 the International Court of Justice rec-
ognized the applicability of common Article 1 of the Conventions to non-interna-
tional armed conicts addressed by common Article 3.125 The command of Article
1 that all the contracting parties must respect and ensure respect126 for the Geneva
Conventions may entail resort to penal measures to suppress violations.
One nds some apparent confusion in the literature with regard to the re-
lationship of the Geneva Conventions to universal jurisdiction. In denying the
applicability of universal jurisdiction to non-grave breaches of the Geneva Con-
ventions, some commentators assume that universal jurisdiction requires recog-
nition not only of the right, but also of the duty, to prosecute perpetrators of
international oenses. I dissent. There is no reason why universal jurisdiction
should not also be recognized in cases where the duty to prosecute or to extradite
is unclear, but the right to prosecute when oenses are committed by aliens in for-
eign countries is recognized. Indeed, the true meaning of universal jurisdiction is
that international law permits any State to apply its laws to certain oenses when
the suspect is present in its territory even in the absence of territorial, nationality
or other accepted contacts with the oender or the victim. These are the oenses
that are recognized by the community of nations as of universal concern, and as
subject to universal condemnation.127 Although Judge Rling was critical of the
concept of universal jurisdiction, he agreed that the distinction between grave
and other violations might nd its perfect explanation in the obligation to pros-
ecute grave violators and the right to prosecute those who have committed other
123 Commentary on the Geneva Conventions of 12 August 1949: [No.] III Geneva Con-
vention Relative to the Treatment of Prisoners of War 624 (Jean de Preux ed., 1960).
124 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits,
1986 ICJ Rep. 14 (June 27).
125 Id. at 114.
126 On Article 1, see Luigi Condorelli & Laurence Boisson de Chazournes, Quelques re-
marques a propos de lobligation des Etats de respecter et faire respecter le droit
international humanitaire en toutes circonstances, in Studies and Essays on Inter-
national Humanitarian Law and Red Cross Principles in Honour of Jean Pictet 17
(Christophe Swinarski ed., 1984). See also Protocol I, supra note 4, Arts. 1(1) and 89.
Article 89 refers to the broader category of serious violations rather than to grave
breaches, and appears to leave to each State the choice of means for complying with
its obligations to act in situations of serious violations of the Conventions and the
Protocol.
127 See, e.g., Restatement, supra note 102, 404.
breaches.128 Rling argued, however, that the Geneva Conventions apply only be-
tween belligerents,129 a view that was debatable at the time it was expressed and
is unacceptable today.
As regards the national State of the perpetrators of non-grave breaches, its
obligations go further. Given the purposes and objects of the Geneva Conven-
tions and the normative content of their provisions, every State should have the
necessary laws in place, and be willing to prosecute and punish violators of claus-
es other than the grave breaches provisions that are signicant and have a clear
penal character.
I would not like to suggest that all violations of the Geneva Conventions must
thus be treated as oenses. Some provisions may address administrative matters
without any penal signicance. The Conventions state many dierent kinds of ob-
ligations that bear on core humanitarian values in quite dierent degrees. Some
of these are technical or administrative and would not seem an appropriate predi-
cate for criminal proceedings. For example, would a third State have the right
to prosecute a foreign army ocer for failure to comply with Article 94 of the
Third Geneva Convention, which requires notication on recapture of an escaped
prisoner of war? Or with Article 96, which requires that a record of disciplinary
punishments be kept by the camp commander? Of course, third States will have
no interest in such breaches and usually no evidence to prosecute the oenders.
These technical breaches are not recognized by the community of nations as of
universal concern and as subject to general condemnation.
Suppose, however, that a third State prosecuted a violator of the prohibition
of torture under common Article 3 or the prohibition of rape under Article 27 (of
the Fourth Geneva Convention), neither of which is listed as a grave breach. No
one can doubt the categorical character of the proscriptions stated in these ar-
ticles. The identical prohibition of torture, which is widely regarded as a jus cogens
norm of general international law, is dened as a grave breach for international
armed conicts. Even as regards the peacetime commission of torture, third
States, such as the United States under the Alien Tort Claims Act (in the case of
suits by aliens), or under the Torture Victims Act, have occasionally exercised
128 B.V.A. Rling, supra note 47, at 342. Accord Howard S. Levie, Terrorism in War: The
Law of War Crimes 192-93 (1993). Solf and Cummings observe that breaches of the
Geneva Conventions are distinguishable from grave breaches by not being made sub-
ject to extradition, but they remain crimes under customary law and the perpetrators
may be punished. Waldemar A. Solf & Edward R. Cummings, A Survey of Penal Sanc-
tions under Protocol I to the Geneva Conventions of August 12, 1949, 9 Case W. Res. J.
Intl L. 205, 217 (1977). Draper points out that
[t]he Conventions system of repression of breaches seems to assume that non-grave
breaches are to be treated as war crimes for whose suppression States have a duty to
take all measures necessary. Beyond that obligation, it is left to individual States to
decide the mode of suppression. This might be by way of penal proceedings, judicial or
disciplinary, or of administrative action.
Draper, supra note 76, at 45.
129 See Rling, supra note 47, at 359.
128 Chapter 2
civil jurisdiction over the alleged torturer without any protest by the defendants
national State.
Possibly, some governments will protest foreign prosecutions based on activ-
ity that may reect their State policy. And probably, legal advisers of some foreign
ministries will discourage the justice ministries of their countries from prosecut-
ing foreign ocers for their conduct during a civil war in their own country. If
protests by the national State of the accused are rejected, would that State prevail
in an international action against the prosecuting State alleging violation of ac-
cepted jurisdictional principles delineating the competence of States to punish
acts committed outside their territory? Would the prosecuting State incur inter-
national responsibility for the prosecution? If the activity at the core of the pros-
ecution is a signicant international oense clearly giving rise to international
concern, such as murder in violation of common Article 3, the prosecution would
be legitimate, provided the accused is present in the territory of the prosecuting
third State, and provided the person concerned does not benet from recognized
immunity under international law, as in the already discussed Yerodia case before
the ICJ. There has been some support for applying the universality of jurisdiction
doctrine not only to criminal prosecutions but also to civil claims.130
In situations not clearly regulated by treaties, diculties could arise between
the custodial State and the State of nationality of the oender when the latter, in
good faith, asserts its readiness to prosecute and requests the former to desist
from prosecution and to deliver the person to it. The possibility that both States
would exercise jurisdiction must be subject to the non bis in idem principle. Given
States traditional lack of interest in prosecuting those who have committed inter-
national oenses in internal conicts, the likelihood that two States will compete
bona de for the exercise of criminal jurisdiction is quite remote.131 It may be not-
ed that the grave breaches provisions of the Geneva Conventions do not address
priority of jurisdiction. In any event, the Conventions do not require the State
ready to prosecute (the custodial State) to extradite the oender to a State party
requesting extradition as an alternative to proceeding with the prosecution.
Geneva Additional Protocol I did not contribute to clarifying the criminal
system of repression of violations of international humanitarian law. The Protocol
uses such terms as grave breaches, breaches, violations and even serious vio-
lations of the Conventions or of this Protocol.132 Violations of the Protocol that
are not dened as grave breaches have consequences similar to those resulting
130 Beth Stephens, Translating Filrtiga: A Comparative and International Law Analysis
of Domestic Remedies for International Human Rights Violations, 27 Yale J. Intl L. 1,
43-44 (2002).
131 On the traditional scope of universal jurisdiction, see Kenneth Randall, Universal
Jurisdiction Under International Law, 66 The TEX.L.Rev.785, 788 (1988).
132 Protocol I, supra note 4, art. 90(2)(c)(i).
from violations other than grave breaches of the Geneva Conventions and may, in
some cases, be prosecuted as war crimes by third States.133
G. War Crimes and Universal Jurisdiction

Those concerned about the recognition of the violations of common Article 3 and
Protocol II as international oenses should remember that, until fairly recently,
questions were raised even about universal jurisdiction over war crimes, which is
now largely taken for granted.134 As important a scholar as Draper wrote in 1976
of the customary law right of a belligerent to try those charged with war crimes
who fall into its hands; he therefore raised the question whether such jurisdiction
is genuinely universal, on an analogy with jurisdiction over piracy.135 From that
perspective, which considers trial of captured war criminals as a manifestation
of the principle of self-help, the Nuremberg process represented an expanded
protection of the interests of co-belligerents.136 Hersch Lauterpacht opened the
133 International Committee of the Red Cross, Commentary on the Additional Proto-
cols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 1033 (Yves San-
doz, Christophe Swinarski & Bruno Zimmermann eds., 1987). States parties may, of
course, suppress any act or omission contrary to the provisions of these instruments
[the Geneva Conventions and Protocol I]; furthermore they must impose penal sanc-
tions on conduct dened by these same instruments as grave breaches. Id. See also
id. at 1012. The Commentary recognizes that, although the punishment of other than
grave breaches is the responsibility of the power to which the perpetrators belong,
this does not detract from the right of States under customary law, as rearmed in
the writings of a number of publicists, to punish serious violations of the laws of war
under the principle of universal jurisdiction. Id. at 1011. But see Erich Kussbach, The
International Humanitarian Fact-Finding Commission, 43 Intl & Comp. L.Q. 174,
177 (1994) (who believes that only grave breaches of Protocol I involve individual
criminal responsibility and that serious violations implicate State responsibility only).
Mr. DiBernardi (Italy) stated that national legislation which went beyond the grave
breaches provisions could not be applied to armed forces of other States. See 6 Diplo-
matic Conference on the Rearmation and Development of International Humani-
tarian Law Applicable in Armed Conict, Geneva (1974-1977), Ocial Records, Doc.
CDDH/SR.44 (May 30, 1977), para. 76. A more persuasive view was expressed by Mr.
Ullrich (German Democratic Republic), who stated that
the denition of grave breaches within the system of the Conventions and Protocol
was a specic form of international co-operation in the prosecution of war crimes, but
that it did not determine or limit the scope of war crimes. There were many other war
crimes which were extremely grave violations of international law.
Id., para. 90.
134 See Restatement, supra note 102, 404; Oppenheims International Law, supra note
120, at 470.
135 See Draper, supra note 76, at 21. Compare G. Brand, The War Crimes Trials and the
Laws of War, 26 Brit. Y.B.Intl L. 414, 416 (1949).
136 See Rling, supra note 47, at 359-60. See also United Nations War Crimes Commis-
sion, supra note 45, at 30.
130 Chapter 2
door to a truly universal jurisdiction over war crimes by arguing that, in trying
enemy soldiers for war crimes, the State is enforcing not only its national law but
also the law of nations: War criminals are punished, fundamentally, for breaches
of international law. They become criminals according to the municipal law of the
belligerent only if their action ... is contrary to international law.137
Richard Baxter suggested that
one of the intermediate stages on the way to a true international penal jurisdiction
may be the recognition that any State, including a neutral, has jurisdiction to try war
crimes. By what State prosecution of a particular oence will actually be undertaken
would then be determined, as it is now between allied or associated belligerents, by
the convenience of the forum. If a neutral State should, by reason of the availability of
the accused, witnesses, and evidence be the most convenient locus in which to try a
war crime, there is no reason why that State should not perform that function.138
The laws and usages of war are, of course, universal, and war crimes are crimes
against the jus gentium.139 The British Report of the War Crimes Inquiry states
that it is a generally recognized principle of international law that belligerent and
neutral States have a right to exercise jurisdiction in respect of war crimes since
they are crimes ex jure gentium.140 The British War Crimes Act 1991 allows pro-
ceedings to be brought against any British citizen or resident of the United King-
dom, irrespective of his or her nationality at the time of its commission, for an
alleged World War II oense (murder, manslaughter or culpable homicide) that
constituted a violation of the laws and customs of war.141 Clearly, the object of the
British legislation was to deal with suspected war criminals who had settled in the
United Kingdom. The 1945 Regulations, which were the basis of the prosecutions
immediately following the World War II, only foresaw the setting up of military
tribunals outside the United Kingdom. The British legislation appears based on
the right of all States to prosecute serious violations of the law of nations. As the
British report suggested:
War crimes, or grave breaches of the 1949 Geneva Conventions, wherever in the
world they are committed, are already triable in the United Kingdom under the Ge-
neva Conventions Act 1957... . Parliament did not demur from the proposition that
war crimes are oences suciently serious for the British courts to be given juris-
137 Lauterpacht, supra note 89, at 64.

138 Baxter, supra note 118, at 392 (footnotes omitted). Frits Kalshoven agrees that, in cus-
tomary international law, jurisdiction over war criminals is universal, but points out
that, in practice, it is limited to the belligerent parties. Frits Kalshoven, The Law of
Warfare 119 (1973).
139 14 Trials, supra note 50, at 15.
140 Thomas Hetherington & William Chalmers, War Crimes: Report of the War Crimes
Inquiry, 1989, CMND 744, at 45.
141 For other States war crimes legislation, see id. at 65-74.
diction over them, whatsoever the nationality of the person committing them and
wheresoever they were committed.142
Contemporary international law would allow the United Kingdom to go further

and prosecute even those simply present in the country, as was done by Canada in
1987, without encountering any objections from other States. The Canadian leg-
islation provides for jurisdiction over acts that constitute war crimes and crimes
against humanity under either customary or conventional international law in
force at the time of their commission when the alleged oender is present in Can-
ada, and Canada, in conformity with international law, can exercise jurisdiction.143
The Austrian Military Manual clearly recognizes the principle of universality of
jurisdiction over war crimes: If a soldier breaches the laws of war, although he
can recognize the illegality of his own action, his own State, the enemy State and
also a neutral State can punish him for that action.144
Universal jurisdiction over war crimes means that all States have the right
under international law to exercise criminal jurisdiction over oenders present
in their territory. Most States do not have the necessary resources or interest to
142 Id. at 60.

143 Id. at 72-73. See also L.C. Green, The German Federal Republic and the Exercise of
Criminal Jurisdiction, 43 U. Toronto L.J. 207, 208 (1993). The Canadian law, in its
most pertinent part, reads as follows:
[E]very person who, either before or after the coming into force of this subsection, com-
mits an act or omission outside Canada that constitutes a war crime or a crime against
humanity and that, if committed in Canada, would constitute an oence against the
laws of Canada in force at the time of the act or omission shall be deemed to commit
that act or omission in Canada at that time if,
...
(b) at the time of the act or omission, Canada could, in conformity with international
law, exercise jurisdiction over the person with respect to the act or omission on the
basis of the persons presence in Canada, and subsequent to the time of the act or omis-
sion the person is present in Canada.
[1987] 1 R.S.C. ch. 37.
Arnold Fradkin, who served as lead counsel for the prosecution in several Canadian
war crimes cases, made this comment on the Canadian legislation:
A second subsection provides extraterritorial jurisdiction on the basis of the persons
presence in Canada where, at the time of the crime, Canada could have, in conformity
with international law, exercised jurisdiction over the person with respect to the crime
committed. This expresses what is known in international law as the universal jurisdic-
tion concept. Certain crimes are committed not against a particular State but against
the international community, and therefore any State in which the oender is located
has the right to try the oender.... War crimes are crimes against humanity and should
be subsumed under that same principle of universal jurisdiction.
Holocaust and Human Rights Law: The Fifth International Conference, 12 B.C. Third
World L.J. 37, 48 (1992) (footnotes omitted).
144 Bundesministerium fur Landesverteidigung, Truppenfuhrung, para. 52 (1965) (trans-
lation by author).
132 Chapter 2
prosecute oenders when the State itself was not involved in the situation in ques-
tion. Many States also do not have national laws in place that allow them to pros-
ecute oenders. The United States appears to be among these States.145 Universal
jurisdiction over military personnel can be exercised under the Code of Military
Justice.146 The United States does have, however, ample authority under both the
U.S. Constitution and international law to adopt the necessary legislation.
H. War Crimes and Internal Conflicts

The Rwanda Statute contains no provisions paralleling Article 3 of the Yugoslavia
Statute, which grants the ICTY jurisdiction over violations of the fourth Hague
Convention and its annexed Regulations and has been applied also to the non-
international aspects of the armed conicts in the former Yugoslavia. This omis-
sion reects the previous understanding which had denied war crimes a place in
internal conicts. However, war crimes under the Hague law, i.e., those perpe-
trated in the conduct of hostilities, should also be punishable when committed in
non-international armed conicts. This is particularly important with regard to
non-discriminating weapons and the violation of the basic principles of interna-
tional humanitarian law. Despite all the obstacles, international law prohibitions
that apply to international wars are gradually being extended to non-international
armed conicts. Through common Article 3 and Additional Protocol II, some war
crimes were made enforceable in the ICTR and routinely applied in the ICTY.
In the ICTY, the application of war crimes to the non-international aspects
of the armed conicts in the former Yugoslavia has been a constant feature of
the Tribunals jurisprudence since the seminal Tadi decision of 1995.147 However,
the ICTR, while conrming that war crimes were applicable, has until recently
refrained from convicting for war crimes for lack of proof of an adequate nexus
between the acts of the accused and the armed conict in Rwanda. It was only in
May 2003, in the Rutaganda case that the Appeals Chamber, reversing the Trial
Chamber for factual errors, entered a conviction for war crimes in Rwanda under
145 See U.S. Dept of the Army, supra note 78, paras. 506-07. Under the War Crimes Act,
18 U.S.C. 2441 (2000) U.S. courts have jurisdiction over whoever inside or outside
the United States commits a crime as dened in the Statute provided that he is a
member of the armed forces or a national of the United States. The crimes dened
include grave breaches and common article 3 of the Geneva Convention and certain
violations of Hague Convention N., IV. On U.S. anti-terrorism legislation having ef-
fect in the United States, see 18 2332 b; on the killing of U.S. nationals outside the
United States, see 18 2332 a.
146 See Douglas Cassell, Empowering United States Courts to Hear Crimes Within the Ju-
risdiction of the International Criminal Court, 35 New England L. Rev. 420, 428-434
(2001).
147 See Meron, Casseses Tadi and the Law of Non-International Armed Conicts, in
Mans Humanity to Man: Essays on International Law in Honour of Antonio Cassese
532. (L.C. Vohrah et al. eds. 2003).
Article 4(a) of the Statute,148 thus correcting course in the ICTRs jurisprudence.
Rutaganda has since been followed in Semanza.149
The Appeals Chamber of the ICTR had not previously endorsed a partic-
ular denition of the nexus requirement.150 The Appeals Chamber of the ICTY
had done so twice. The rst time, in the Tadi Jurisdiction Decision, the Appeals
Chamber said in dictum that the oenses had to be closely related to the armed
conict, but it did not spell out the nature of the required relation.151 In the Ku-
narac Appeals Chamber Judgement, it endorsed the same standard and gave the
following elaboration:
148 ICTR, Appeals Chamber, Judgment of May 26, 2003, Case No. ICTR-96-3-A (9987/
A-9714/A), paras. 556-85.
149 ICTR, Appeals Chamber, Judgment of May 20, 2005, Case No. ICTR-97-20A (5874/
H-5730H), paras. 365-71).
150 The Rutaganda Appeals Chamber Judgement reviewed the prior ICTR case law: In
the Akayesu case, the ICTR Appeals Chamber observed that common Article 3 re-
quires a close nexus between violations and the armed conict. Akayesu Appeals
Chamber Judgement, para. 444. It then said: This nexus between violations and the
armed conict implies that, in most cases, the perpetrator will probably have a spe-
cial relationship with one party to the conict. However, such a special relationship
is not a condition precedent to the application of common Article 3 and hence of
Article 4 of the Statute. Id. The Appeals Chamber expressly noted that the denition
of the nexus requirement had not been raised on appeal. Id. at n. 807. Trial Chambers
of this Tribunal have four times considered charges under Article 4 of the Statute in
their judgements. The denitions of the nexus requirement used in the four cases
were similar but not identical to each other. In the Akayesu case, the Trial Chamber
Judgement stated that the nexus requirement means that the acts of the accused have
to be committed in conjunction with the armed conict. The Prosecutor v. Jean-Paul
Akayesu, ICTR-96-4-T, 2 Sept. 1998, para. 643. In Kayishema-Ruzindana, the Trial
Chamber used four dierent formulations to characterize the nexus requirement,
apparently considering them synonymous. It sometimes stated that there must be
a direct link or a direct connection between the oences and the armed conict.
The Prosecutor v. Clment Kayishema and Obed Ruzindana, ICTR-95-1-T, 21 May
1999, paras. 185, 602, 603, 623 (direct link); 188, 623 (direct connection). It also
stated that the oences have to be committed in direct conjunction with the armed
conict. Id. at para. 623. Finally, it stated that the oences had to be committed as
a result of the armed conict. Id. In the Musema case, the Trial Chamber took the
view that the oences must be closely related to the armed conict. The Prosecu-
tor v. Alfred Musema, ICTR-96-13-T, 27 Jan. 2000, para. 260. In Ntakirutimana, the
Trial Chamber acquitted the accused of the count under Article 4(a) of the Statue
based, among other things, on the Prosecutions failure to establish a nexus between
the oence and the armed conict, but it oered no denition of the nexus require-
ment. The Prosecutor v. Elizaphan and Grard Ntakirutimana, ICTR-96-10 & 96-17-
T, 21 Feb. 2003, para. 861. See, however, Rutaganda Appeals Chamber Judgement, in
French ICTR-96-3-A, 9987/A-9714/A, 26 May 2003, paras. 556-585.
151 The Prosecutor v. Duko Tadi, IT-94-1-AR72, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, para. 70 (Tadi Jurisdiction Deci-
sion).
134 Chapter 2
58. What ultimately distinguishes a war crime from a purely domestic oence is
that a war crime is shaped by or dependent upon the environment the armed
conict in which it is committed. It need not have been planned or supported
by some form of policy. The armed conict need not have been causal to the
commission of the crime, but the existence of an armed conict must, at a mini-
mum, have played a substantial part in the perpetrators ability to commit it, his
decision to commit it, the manner in which it was committed or the purpose for
which it was committed. Hence, if it can be established, as in the present case,
that the perpetrator acted in furtherance of or under the guise of the armed
conict, it would be sucient to conclude that his acts were closely related to
the armed conict. The Trial Chambers nding on that point is unimpeach-
able.
59. In determining whether or not the act in question is suciently related to the
armed conict, the Trial Chamber may take into account, inter alia, the follow-
ing factors: the fact that the perpetrator is a combatant; the fact that the victim
is a non-combatant; the fact that the victim is a member of the opposing party;
the fact that the act may be said to serve the ultimate goal of a military cam-
paign; and the fact that the crime is committed as part of or in the context of the
perpetrators ocial duties.152
152 Prosecutor v. Dragoljub Kunarac, Radomir Kova and Zoran Vukovi, IT-96-23 & IT-
96-23/1-A, 12 June 2002, paras. 58-59. Just before and after these paragraphs, the Ap-
peals Chamber said:
57. There is no necessary correlation between the area where the actual ghting is tak-
ing place and the geographical reach of the laws of war. The laws of war apply in the
whole territory of the warring States or, in the case of internal armed conicts, the
whole territory under the control of a party to the conict, whether or not actual
combat takes place there, and continue to apply until a general conclusion of peace
or, in the case of internal armed conicts, until a peaceful settlement is achieved. A
violation of the laws or customs of war may therefore occur at a time when and in a
place where no ghting is actually taking place. As indicated by the Trial Chamber,
the requirement that the acts of the accused must be closely related to the armed
conict would not be negated if the crimes were temporally and geographically
remote from the actual ghting. It would be sucient, for instance, for the purpose
of this requirement, that the alleged crimes were closely related to hostilities occur-
ring in other parts of the territories controlled by the parties to the conict.
... .
60. The Appellants proposition that the laws of war only prohibit those acts which are
specic to an actual wartime situation is not right. The laws of war may frequently
encompass acts which, though they are not committed in the theatre of conict,
are substantially related to it. The laws of war can apply to both types of acts. The
Appeals Chamber understands the Appellants argument to be that if an act can be
prosecuted in peacetime, it cannot be prosecuted in wartime. This betrays a mis-
conception about the relationship between the laws of war and the laws regulating
a peacetime situation. The laws of war do not necessarily displace the laws regulat-
ing a peacetime situation; the former may add elements requisite to the protection
which needs to be aorded to victims in a wartime situation.
The Appeals Chamber agreed with the explanation of the nexus requirement
given by the ICTY Appeals Chamber in Kunarac. It added rst that the expression
under the guise of the armed conict does not mean simply at the same time as
an armed conict and in any circumstances created in part by the armed conict.
Second as the Kunarac Appeals Chamber Judgement indicated, the determina-
tion of a close relationship between particular oenses and an armed conict will
usually require consideration of several factors, not just one. Particular care, the
Rutaganda Appeals Chamber Judgement noted, is needed when the accused is a
non-combatant.
Given the Trial Chambers conclusion that Rutaganda participated directly
in those killings, that he exercised a position of authority over the Interahamwe,
and that soldiers of the Presidential Guard participated in the ETO massacre
alongside the Interahamwe, the Appeals Chamber concludes that no reasonable
trier of fact could have failed to nd that a nexus between the armed conict and
Rutagandas participation in the particular killings charged.153
Since the Trial Chambers erroneous conclusion concerning the required
nexus supplied the only basis for its acquittal of Rutaganda on the war crimes
counts, correction of the error by the Appeals Chamber required entry of convic-
tions on both counts, and the error was thus one which has occasioned a miscar-
riage of justice.154
Experience has shown that cultural property can be extensively destroyed in
non-international armed conicts. The applicability of parts of the (Hague) Con-
vention for the Protection of Cultural Property in the Event of Armed Conict,155
which is primarily addressed to international wars, to non-international armed
conicts is therefore useful.156 The Convention also contains a penal clause obli-
gating States parties, within their ordinary criminal jurisdiction, to prosecute and
impose penal or disciplinary sanctions on persons of whatever nationality who
commit breaches of the Convention;157 logically, this clause must cover breaches
of obligations pertaining to non-international armed conicts. The 1999 Protocol
to this Convention, which has very important criminal provisions, states (Article
22) that it will apply to non-international armed conicts occurring within the
territory of one of the Parties, though not to situations of internal disturbances
and tensions. Other provisions establish jurisdiction based on territoriality, active
nationality or the universality principle. This is another recognition of oenses
committed in non-international armed conicts that are subject, under the treaty,
to the universal jurisdiction of the contracting parties.
153 Rutaganda Appeals Chamber Judgement, paras, 579-81.

154 Article 24 of the Statute.
155 May 14, 1954, 249 U.N.T.S. 240.
156 See id., art. 19(1)(In the event of an armed conict not of an international character
occurring within the territory of one of the High Contracting Parties, each party to
the conict shall be bound to apply, as a minimum, the provisions of the present
Convention which relate to respect for cultural property.)
157 See id., art. 28.
136 Chapter 2
In the regulations regarding weapons and methods of war, limitations or pro-

hibitions are increasingly applied to internal armed conicts governed by com-
mon Article 3. A very important recent development has been to extend the pro-
hibitions on the particularly abhorrent use of gas to domestic conicts through
international treaties. Although the 1925 (Geneva) Protocol for the Prohibition
of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacterio-
logical Methods of Warfare158 was arguably addressed to international wars only,
this limitation has been overridden by customary law. Later treaties on the sub-
ject have not followed the 1925 paradigm. The Convention on the Prohibition of
the Development, Production and Stockpiling of Bacteriological (Biological) and
Toxin Weapons and on Their Destruction a 1972 arms control treaty obligates
the parties in any circumstances.159 Similarly, the Convention on the Prohibi-
tion of the Development, Production, Stockpiling and Use of Chemical Weapons
and on Their Destruction, of January 13, 1993 (which concerns both arms control
and use), provides that the obligations of States under the Convention shall ap-
ply under any circumstances, including non-international armed conicts and
even civil strife.160 Article VII of the Convention contains provisions requiring
each State party to prohibit natural and legal persons anywhere in its territory or
subject to its jurisdiction from undertaking any activity prohibited to a State party
under the Convention and to penalize violators.161
The revised Protocol II to the 1980 Convention on Certain Conventional
Weapons on Prohibitions or Restrictions on the Use of Mines, Booby-traps and
other Devices (1996) also applies in internal armed conicts. The Review Con-
ference of the United Nations Convention on Certain Conventional Weapons
(CCW), which took place in December 2001, adopted without opposition an
158 June 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65.

159 Apr. 10, 1972, art. 1, 26 U.S.T. 583, 1015 U.N.T.S. 163.
160 Art. 1(1), 32 ILM 800 (1993). The Department of States article-by-article analysis of
the Convention, annexed to the Presidents Letter of Transmittal to the Senate, points
out that
the prohibition on the use of chemical weapons extends beyond solely their use in in-
ternational armed conicts, i.e. chemical weapons may not be used in any type of situ-
ation, including purely domestic conicts, civil wars or State-sponsored terrorism. As
such, this article closes a loophole in the Geneva Protocol of 1925, which covered only
uses in war, i.e. international armed conicts. Note that the phrase never under any
circumstances reects a similar phrase in Article I of the Biological Weapons Conven-
tion.
S. Treaty Doc. No. 21, 103d Cong., 1st Sess. 4 (1993). A recent commentary notes
that the words undertakes never under any circumstances have a universal dimen-
sion, extend to all activities of State parties everywhere, and are independent of the
character of the conict, whether it is international armed conict, non-international
armed conict, or civil strife. See Walter Krutzsch & Ralf Trapp, A Commentary on
the Chemical Weapons Convention 12-13 (1994).
161 See Krutzsch & Trapp, supra note 160, at 109-15; S. Treaty Doc. No. 21, supra note
160, at 40-41.
amendment extending the scope of application of the CCW to non-international

armed conicts. It was agreed to make the existing CCW Protocols applicable to
non-international armed conicts. Thus, in addition to amended Protocol II on
the use of mines, booby-traps and similar devices, Protocol I (which prohibits
weapons injuring by means of fragments not detectable by X-rays), Protocol III
(which restricts the use of incendiary weapons), and Protocol IV (which prohibits
the use and transfer of blinding laser weapons), will also be applicable in non-
international conicts. Furthermore, the amendment of the CCW reverses the
presumption that new protocols should apply to international armed conicts
only. The limitations or prohibitions in the Ottawa Convention on the Prohibition
of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and
on their Destruction (1997), for example, apply in all circumstances. Future pro-
tocols (for instance, on remnants of war, if adopted) may contain more limiting
language, but negotiation will start from the assumption that they are applicable
in all armed conicts.
These developments hold great humanitarian promise because of the cata-
strophic dimensions of the use of mines in internal conicts. They represent an
extremely important step toward remedying an unacceptable lacuna: that the use
of land mines causing incalculable damage to the population of countries involved
in non-international armed conicts was not prohibited by law of war treaties.
Once internal atrocities are recognized as international crimes and thus as
matters of major international concern, the right of third States to prosecute vio-
lators must be accepted. Typically, these would be oenses of such signicance
that the international community would have an important interest in prosecut-
ing the violators, especially when the criminal justice systems of the State where
the oenses were committed and/or the State of nationality have failed to act.
Many serious violations of common Article 3 and Geneva Protocol II, as well as
other signicant norms of the Geneva Conventions, though not explicitly listed
as grave breaches, are of universal concern and subject to universal condemna-
tion. These are crimes jure gentium and therefore all States should have the right
to try the perpetrators. This right can be seen as an analogue, mutatis mutandis,
of the prerogative of all States to invoke obligations erga omnes against States that
violate the basic rights of the human person.162
The ad hoc Tribunals for Yugoslavia and Rwanda have concurrent jurisdic-
tion with national courts, and primacy over them. These international tribunals
may request that national courts defer to their competence, subject to the princi-
ple of non bis in idem, and in the case of questionable national court proceedings.
Otherwise, the establishment of the ad hoc Tribunals for Yugoslavia and Rwanda
does not aect the right or duty of States, as the case may be, to prosecute those
who violate international humanitarian law.163
162 Barcelona Traction, Light & Power Co., Ltd. (Belg. v. Spain) (New Application), 1970
ICJ Rep. 3, 32 (Feb. 5).
163 See Yugoslavia Statute, Arts. 9-10; Rwanda Statute, arts. 8-9; Yugoslavia Tribunal,
Application [by the Prosecutor] for Deferral by the Federal Republic of Germany in
138 Chapter 2
The extension of the concept of international criminality to violations of

common Article 3 and Protocol II should not lead to the conclusion that the dis-
tinction between crimes under municipal law and oenses under international
law would be eliminated. It simply means that certain egregious crimes, such as
murder, committed in certain circumstances will now be treated as international
oenses in situations of non-international armed conict as well. The ICTY Ap-
peals Chamber has claried this question in the recent Kunarac decisions which
I have already cited.164 Thus, in situations of non-international armed conict, the
question of whether or not an oense constitutes a war crime is usually framed in
terms of the nexus between the situation and the specic acts of the perpetrator.
The normative contributions made by the ICTY and the ICTR Statutes have
substantially inuenced the shaping of international law. These developments
have already been followed by the provisions of the Treaty of Rome criminalizing
violations of common Article 3 and some violations of Additional Protocol II.165
It is not surprising that, on a subject of such great humanitarian importance,
the practice of States lags behind opinio juris, and general principles of law play
an important role. Nevertheless, slowly but unmistakably, the practice of States is
evolving, as exemplied by the already discussed Belgian law relative to crimes
de droit international which provided for the criminal jurisdiction of Belgian
courts over certain breaches not only of the Geneva Conventions and Protocol I,
but also of Protocol II, regardless of the nationality of the victim or perpetrator or
of where the oense was committed.166 This rare example of a law providing for
the Matter of Duco Tadi, Case No. 1 of 1994 (Nov. 8, 1994); Decision of the Trial
Chamber in Case No. 1 of 1994, IT-94-1-D (Nov. 8, 1994); Yugoslavia Tribunal, Ap-
plication by the Prosecutor for a Formal Request for Deferral by the Government of
Bosnia and Herzegovina of Its Investigations and Criminal Proceedings in Respect
of Radovan Karadi, Ratko Mladi and Mico Stanisi (Apr. 21, 1995), Decision by the
Trial Chamber in Case No. IT-95-5-D (May 16, 1995); and, concerning the Lasva River
Valley Investigation, Decision by the Trial Chamber in Case No. IT-95-6-D (May 11,
1995).
Regarding the relations between national courts and the proposed international
criminal court, see Report of the International Law Commission on the work of its
forty-sixth session, UN GAOR, 49th session, (Supp.10), UN Doc. A/49/10 (1994) at
129-38, arts. 51-58.
The United States expressed the concern that the statute adopted by the ILC does
not adequately reect the principle that the jurisdiction of the proposed international
tribunal should be complementary to the national criminal justice systems. See U.S.
Comments, supra note 120, paras. 6-14. The United States proposed that the State of
nationality, or any other State actively exercising jurisdiction, should have preemp-
tive rights of jurisdiction in relation to the proposed international tribunal. See id.,
para. 68.
164 Case No. IT-96-23&23/1-A, Judgement of 12 June 2002, para. 58.
165 Rome Statute of the International Criminal Court, Arts. 8(2)(c)-8(2)(e).
166 Loi de 16 juin 1993 relative la rpression des infractions graves aux Conventions
internationales de Genve du 12 aot 1949 et aux Protocoles I et II du 8 juin 1977,
comprehensive universal jurisdiction over perpetrators of atrocities167 committed

in internal conicts in foreign countries has, as pointed out, been reassessed and
narrowed down.
I. The Challenges Facing the International Criminal Tribunal for the

former Yugoslavia
The ICTY was established in 1993 and has undertaken the rst international
prosecutions of war crimes since Nuremberg. As was the case at Nuremberg, the
Tribunals creators hoped that it would do more than simply mete out justice to
individual wrongdoers. It would also help to create an impartial record of atroci-
ties committed during the Yugoslav conicts: It would oer victims a sense of vin-
dication: And, by doing all of those things, it would contribute to reconciliation
and reconstruction in the republics of the former Yugoslavia.
It would exceed the capacity of any single court to bring more than a partial
reckoning to the vast scale of those crimes the murders, rapes, and deporta-
tions; the acts of torture, destruction, and cruelty. But, if with painful slowness at
rst, this Tribunal has helped to bring to account a considerable number of ac-
cused of high rank, and is now doing so with growing condence and eciency.
These larger social and political goals are all vitally important, and one may of
course debate how well the Tribunal has achieved them.
In this discussion, I would like to concentrate on what may seem like more
mundane institutional and procedural problems that have arisen as the Tribunal
has gradually developed into an experienced criminal court. Structure and proce-
additionnels ces Conventions, Moniteur Belge, Aug. 5, 1993; see also Eric David,
Principles de Droit des Conits Armes 556 (1994). For the revision of the Belgian law,
which incorporates the language of the ICC Statute on most of the crimes against hu-
manity, see Act concerning the Punishment of Grave Breaches on International Hu-
manitarian Law (Feb. 10, 1999), reprinted in 38 ILM 918 (1999). The Act provides for
the denition of the crime of genocide, crimes against humanity, and grave breaches
of the Geneva Conventions and of the two Additional Protocols, and for the jurisdic-
tion of Belgian courts, irrespective of where the crimes have been committed. The
Act makes no distinction between international and non-international conicts and
both criminalizes and establishes Belgian jurisdiction (universality of jurisdiction)
with regard to breaches committed in non-international conicts as well. See also
Thomas Graditzky, Individual Criminal Responsibility for Violations of International
Humanitarian Law Applicable in Non-international Armed Conicts, Intl Rev. Red
Cross 29, No. 322 (March 1998). The Security Council has, however, taken a more
reserved attitude to universal jurisdiction in its Resolution 1291 (2000) on the Demo-
cratic Republic of Congo. In this Resolution (para. 15) it called only on all parties
to bring to justice those responsible for violations of the crime of genocide, crimes
against humanity and war crimes.
167 Other warrants involved the killing of Belgian peacekeepers, among others. Parquet
de Bruxelles, Crimes de guerre au Rwanda, Press Communique No. 30.99.3959/94
(May 30, 1995) (on le with author).
140 Chapter 2
dure are often as important in determining outcomes as substantive law. Without

adequate solutions to structural questions the Tribunal cannot hope to fulll its
larger missions.
The Tribunal represents an enormous experiment in international co-opera-
tion and legal institution building. It has 16 permanent judges from 16 countries
and nine ad litem judges. The judges sit in three trial chambers, with a total of six
three-judge benches, and one appeals chamber. The Appeals Chamber is com-
posed of seven judges, two of whom are appointed from the International Crimi-
nal Tribunal for Rwanda, and each appeal is decided by ve Appeals Chamber
judges.
After 10 years in operation, the Tribunals chambers have handed down hun-
dreds of decisions. For its substantive law, the Tribunal has precedents, espe-
cially from Nuremberg, but also from national jurisdictions, upon which to draw.
Nurembergs legacy in international criminal proceedings was quite modest. For
its methods of organization and its rules of procedure, the Tribunal has had to
rely much more on the creative work of its judges and sta. Let me outline six
institutional challenges the Tribunal has confronted.
The rst concerns the very method by which the Tribunals procedures are
established, which is determined by the fact that, unlike the International Crimi-
nal Court, the ICTY is not the product of a treaty resulting from extended nego-
tiations. Rather, the Tribunal was created by the Security Council of the United
Nations pursuant to its powers under Chapter VII of the U.N. Charter to respond
to threats to international peace and security.
Establishment by the Security Council had some clear advantages. For one,
the likely refusal of Yugoslav Republics to participate raised no obstacle to the
Tribunals creation. For another, the Tribunals governing Statute could be drafted
quickly. But without a treaty process, there was no Assembly of State Parties to
serve as a legislature, as it were, that would assume functions such as drafting
rules of procedure and evidence. In a sense, the Security Council was the legis-
lature. It adopted the Statue, and it could be called upon and is still called upon
when major policy questions required. But, when it came to the Rules of Proce-
dure and Evidence, which were needed to put meat on the bones of the Statute, it
was left to the judges of the Tribunal to act as the legislators. And this secondary
legislative esh has been substantial. The ICTY has 127 Rules of Procedure and
Evidence lling about 110 pages of text.
This role of the judges as quasi-legislators may seem strange. In most civil
law countries, it is the legislature that revises the code of criminal procedure. For
the International Criminal Court, a preparatory commission drafted the rules of
procedure and evidence, and, as I noted, it is the Assembly of State Parties that
has adopted them. In the United States, the system, at least on the federal level, is
a little closer to that of the ICTY. For while it is the national Congress that must
approve changes in the rules, it is the judges who propose them and, much of
time, the judges get their way.
Despite its novelty, I think entrusting the judges with the authority to write
their own rules of procedure and evidence has largely proven a success. Admit-
tedly, there have been many, perhaps too many, revisions. Some 36 versions of
the rules in less than 11 years. But the high frequency of changes reects in sig-
nicant part two attributes of the ICTY that have nothing to do with the rules
judicial authorship: i) the challenge of bringing together concepts from dierent
legal traditions in a workable amalgam: and ii) the novel problems particularly
with respect to collection and presentation of evidence that are created by pros-
ecutions that rest on cooperation by sovereign governments and that concern an
area in which some of the current political authorities are not fully committed to
assisting the Tribunal. The large number of revisions also reects one of the main
advantages of having the judges do the rule-writing: the ability quickly to take into
account lessons learned from concrete experiences in the courtroom.
A second major institutional challenge, or set of challenges, for the Tribu-
nal has arisen from the length and complexity of its trials. The average criminal
trial in the U.S. is quite brief. Even for felonies, in the United States trials rarely
run longer than a few weeks. At the Yugoslavia Tribunal, by contrast, the average
length of our trials is 13,5 months and 17,5 months including judgement writing
time. The Tribunals Statute restricts it to serious violations of international hu-
manitarian law, and the Prosecutors have by and large concentrated on high-level
perpetrators. Often, the crimes charged, connected to entire military campaigns,
occurred over the course of months or years, across many locations, and involved
many defendants. The Miloevi case oers one illustration. It is not typical, but
it is not so far from the norm as one might think. Miloevi is actually only one of
four defendants who were originally indicted together. With 66 counts, hundreds
of witnesses, tens of thousands of pages of documents most of which must be
translated from Serbo-Croatian into French and English, the Tribunals working
languages trials are extremely complex. It encompasses three separate indict-
ments for Kosovo, Croatia, and Bosnia and Herzegovina. The defendants health
has led to a great number of delays and to a reduced schedule, in which the Trial
Chamber sits only 3 days a week. Trials of this magnitude call for extraordinary
energy and judicial skill.
Let me mention two implications of our trials unusual length.
1. First, many defendants remain in detention before judgement for years at
a time. Many defendants, and a number of commentators, have reasonably
questioned whether such lengthy pre-trial detention is consistent with the
presumption of innocence enshrined in Article 21 of the ICTY Statute and
Article 14 of the International Covenant on Civil and Political Rights, with
the normal practice of provisional release, and with international human
rights entitlements to a speedy trial. This is a dicult question, made some-
what more dicult, on a practical level, because the Netherlands has not
been willing to allow defendants to be provisionally released in the Nether-
lands, insisting instead that they be sent out of the country, thus increasing
the uncertainty whether the person who has been provisionally released will
return for trial. But on balance, I think the Tribunal has reasonably found
that such detention is not a violation of the Statute or international human
rights standards once a judge has conrmed that the evidence support-
142 Chapter 2
ing an indictment shows a reasonable probability that the accused commit-

ted the oences charges. Above all, three factors lead me to that view. The
crimes charge genocide, crimes against humanity, and war crimes such as
grave breaches of the Geneva Conventions, are exceptionally grave. Unlike
domestic courts, the ICTY lacks a police force to which it can turn to seek
assistance in compelling the attendance of defendants. And, unfortunately,
the governments who could most eectively supply that kind of policing as-
sistance have often been less than co-operative. Despite these diculties the
Tribunal in recent years has been willing to grant provisional release in more
cases, largely under the inuence of the European Convention on Human
Rights.
2. A second implication of our trials great length has been the need to craft a
workable regime of interlocutory appeals, that is, appeals before the conclu-
sion of the trial. In the United States, such appeals are exceptional. Normally,
a defendant must wait until the trial judgement, and then raise all his claims
of error. Given the extraordinary duration of trials at the ICTY and the nor-
mal practice of detention during trial it was initially thought that a more
permissive system for interlocutory appeals was appropriate, particularly if a
challenge to a trial chamber ruling might result in the dismissal of particular
charges, and thus in the shortening of the trial, or even in the dismissal of the
indictment. Moreover, since the Appeals Chamber of the ICTY started out
with a limited caseload, it could render its decisions on such appeals quite
quickly.
The initially generous rule on interlocutory appeals, designed in signicant
part as a response to long trials, unfortunately led to a ood of appeals, of-
ten of minor evidentiary rulings, that only delayed the progress of trials all
the more. As a result, in 2002 the Tribunal decided to restrict the possible
grounds for interlocutory appeals and to require permission, or, in techni-
cal terms, certication from the trial chamber before most issues could be
raised in an interlocutory appeal. The regime of interlocutory appeals at the
Tribunal is still probably more lenient than in most domestic systems, but it
has moved back in the direction of domestic practices. We are now looking
again at the question whether these appeals could be more eective.
Judges writing the rules and trials lasting for years are not the only peculiari-
ties of the ICTY. A third important cluster of dierences between ICTY cases
and typical domestic criminal prosecutions arises from the diculties of gather-
ing evidence from distant countries that have only recently emerged from armed
conict, without the assistance of an eective police force, and frequently without
the full cooperation of the governments in the region. We do not have the ad-
vantages of the Nuremberg tribunals which had police power to search for evi-
dence in Germany and could benet from the meticulous archives a paper trail
left behind by the Nazis. The ICTY must rely on the co-operation of supportive
governments and of individuals who often may realistically fear reprisals if they
cooperate openly. Governments are often willing to share information only if its
sources are kept condential, a demand clearly in tension with the defendants
right to challenge fully the evidence against him. The ICTY has had to devise a
system principally regulated by Rule 70 of our rules of procedure and evidence
permitting condential information sharing at the investigative and pre-trial
stages but requiring disclosure if information is actually used in evidence at trial.
But, in recognition of the Tribunals utter dependence on the assistance of states,
states supplying condential information are permitted to block the use at trial
of the information they have provided. The ICTYs dependence on courageous
eyewitnesses from the former Yugoslavia has required an elaborate system for
protecting the identities of witnesses and the use, in some cases, of testimony
via video link, with the face of the witness blocked out and the voice modied.
Unfortunately, despite these eorts, it seems clear that quite a few potential wit-
nesses have been physically attacked and many more threatened to prevent
their cooperation with the Tribunal.
In domestic criminal cases, it occasionally may turn out that important evi-
dence is discovered late in the proceeding. At the ICTY the problem of an in-
complete evidentiary base is much more common. There are even cases in which
defendants have claimed that governments have deliberately withheld informa-
tion to shield some defendants and implicate others. In order to cope with the
problem of a shifting evidentiary foundation, the ICTY has a rule permitting the
admission of additional evidence even on appeal under some circumstances. But
at some point, of course, criminal proceedings must reach a conclusion. The bal-
ance between fairness (or should one say condence in accuracy), on the one
hand, and nality, on the other a balance that all systems of criminal justice
must strike thus presents particular challenges at the ICTY.
A fourth institutional challenge faced by the ICTY has been the need to nd
a sensible combination of elements from dierent legal traditions. As at Nurem-
berg, the structure of our trials draws more heavily on the common law adversari-
al model than on the civil law inquisitorial system. It is largely the responsibility of
the parties to develop their cases to collect and present documentary evidence,
to seek out and to examine witnesses. The judges do not investigate and compile
dossiers; it is up to the Prosecutor and her assistants to compile the basic evi-
dence supporting an indictment. This tilt toward the adversarial model may have
several sources: the precedent of Nuremberg; the fact that the U.S. Department
of Justice made a detailed and comprehensive proposal concerning rules of pro-
cedure and evidence early on in the process of establishing the Tribunals struc-
ture; and the perception that having the judges stand between the parties rather
than being allied with the prosecution would help ensure the essential appearance
of impartiality, particularly for a court whose cases are politically charged and
whose judges, though of many nationalities, are not nationals of the same states
as the defendants.
Another signicant common law characteristic is the possibility of guilty
pleas before the Tribunal. As I mentioned before, as of early 2005, a total of 17 de-
fendants have pleaded guilty at the ICTY. I recognize that some are hesitant about
the resort to plea agreements, in large measure because of the egregious nature of
144 Chapter 2
the crimes charged and because of the Tribunals role in providing vindication for
victims and contributing to the creation of an accurate record for terrible atroci-
ties. Yet I believe that, with genuine expressions of remorse and properly detailed
acknowledgement by defendants of their participation in the crimes for which
they admit guilt, plea agreements can play a constructive role. In some cases,
a forthright and specic acknowledgement of guilt may oer victims as much
consolation as, or perhaps even more than, a conviction following repeated pro-
testations of innocence. Moreover, as a practical matter, the co-operation secured
through plea agreements plays an important role in securing convictions of more
important participants in large-scale crimes, and the time and resources saved
by avoiding trials in some cases contribute signicantly to the Tribunals ability
to meet the deadlines indicated by the Security Council for the completion of its
work and enable those in detention to have their cases heard more quickly. Guilty
pleas could also bring to the victims a faster sense of vindication of justice.
Of course, plea agreements are not binding on the Tribunal, and in some
cases the sentence pronounced by the Trial Chamber did not follow the range
stipulated in the plea agreement. In the case of Momir Nikoli,the Trial Chamber
found that egregious circumstances required a sentence of 27 years, even though
the Prosecutor recommended a range of 15 to 20 years pursuant to the plea agree-
ment. Similarly, in the case of Dragan Nikoli the Trial Chamber pronounced a
sentence of 23 years, despite the joint recommendation of the Prosecutor and the
Defence for a sentence of 15 years. In such cases, the convicted person may of
course appeal the sentence, which is now routinely done.
The Trial Chambers enjoy considerable discretion in imposing sentences,
but that discretion is not unlimited. In xing the appropriate sentence, a Trial
Chamber must consider the following factors: the convicted persons individual
circumstances, aggravating and mitigating factors, the gravity of the oense, and
the general sentencing practices of the courts of the former Yugoslavia. When a
plea agreement is involved, the Trial Chamber must also give due consideration
to the parties recommendation. Under Rule 62ter (B) of the Tribunals Rules of
Procedure and Evidence, a plea agreement cannot and does not bind the Trial
Chamber. But the parties recommendation bears considerable importance, be-
cause it involves an admission by the accused of his or her guilt and reects a
meeting of the minds between the parties concerning what they believe consti-
tutes a fair sentence. Thus, where a Trial Chamber deviates from the sentence
recommended in the plea agreement it must give reasons for the departure.
If the Tribunal bears many characteristics of common law courts, civil law
contributions are evident as well. First of all, the fact-nders are judges, not lay
jurors. And although judges play a more passive role than do those, for example,
in civil law countries, they take a more active part, particularly in examining wit-
nesses, than do judges in criminal trials in common law jurisdictions. In realm
of appeals. The most striking civil law element is the provision for appeals by the
prosecution on equal terms with the defence. In common law jurisdictions, the
prosecutions right to appeal is normally tightly circumscribed, and it often can-
not appeal factual determinations at all.
Although the rst version of the Rules of Procedure and Evidence, adopted in
February 1994, revealed a very strong common law theme, the extensive amend-
ments since 1994 show that the Rules have progressively taken much guidance
from the civil law system. With the aim of combining fairness and expeditiousness
of trial, the Tribunals proceedings are now less adversarial in character, with the
Judges moving away from being the mere arbiters of proceedings to a more active
role in the judicial process. The change is aecting all phases of the proceedings
before the Tribunal. This can be demonstrated with the appointment of pre-trial
and pre-appeal judges for example. In July 1998, Rule 65 ter established the func-
tions of a pre-trial judge, whose role has only increased since then. The pre-trial
judge coordinates communications between the parties during the pre-trial phase
of a case, convening status conferences on a regular basis under Rule 65 bis. He
or she ensures that proceedings are not unduly delayed and takes any measures
necessary to prepare the case for a fair and expeditious trial. Such measures in-
clude ordering the parties to meet to discuss issues related to the preparation of
the case; recording points of agreement and disagreement on matters of law and
fact; and constituting les to be submitted to the Trial Chamber and compiling
the list of witnesses called to testify, together with the facts they will testify to, the
corresponding points in the indictment, the estimated length of time required for
each witness, and the anticipated length of the parties cases. A similar procedure
exists in the Appeals Chamber, where a pre-appeal judge convenes status confer-
ences that allow persons in custody to raise issues in relation to the appeal pro-
ceedings and also enables the pre-appeal judge to monitor the status of the appeal
and raise related issues with the parties as needed.
The role of the trial judge has also changed considerably over time. In light of
the documents received from the pre-trial judge, the Trial Chamber may deter-
mine the number of witnesses the Prosecutor may call and the time available to
the Prosecutor for the presentation of evidence, sometimes calling upon the Pros-
ecutor to shorten the examination-in-chief for some witnesses. The Trial Cham-
ber may intervene in a like manner in relation to the defence case during the pre-
defence conference under Rule 73 ter. Furthermore, pursuant to an amendment of
July 2003, The Rule 73 bis now allows the Trial Chamber to limit the Prosecutions
evidence to a number of crime sites or incidents that are reasonably representa-
tive of the crimes charged.
The area where the blending of common law and civil law attributes is per-
haps most interesting is in the Tribunals rules of evidence. Perhaps because our
fact nders are professional judges rather than lay jurors and perhaps because
of the diculties of collecting evidence of war crimes from a region still torn by
bitter social and political division, our rules of evidence are quite liberal and not
overly technical. In these respects, they draw more heavily on the civil law than
on the common law model. The Tribunal rules expressly provide that its judges
are not bound by any national rules of evidence and, in Rule 89(C) that Chambers
may admit any relevant evidence which it deems to have probative value. Thus
our rules do not incorporate the elaborate law of hearsay familiar in common law
jurisdictions.
146 Chapter 2
Along these lines, Rule 92 bis, initially adopted in December 2000, allows
a Trial Chamber to admit, in lieu of oral testimony, evidence of a witness in the
form of a written statement. Such evidence may be used to prove the matter as-
serted in the testimony, other than an act or conduct of the accused as charged
in the indictment. The rule provides guidance for the Trial Chamber regarding
the factors for and against admitting such evidence: the person making the state-
ment must declare that its contents are true and correct, and that the declaration
must be witnessed by an authorized person. The Trial Chamber may nonethe-
less require the witness to appear for cross-examination. The Appeals Chamber
also held recently, in an appeal in the Miloevi case, that a Trial Chamber may
permit a party to admit a written statement and forgo the examination-in-chief,
if the witness is present in court, available for cross-examination and question-
ing by judges, and attests that the statement accurately reects the testimony he
or she would give if examined, provided the Trial Chamber determines that this
procedure would be in the interest of justice. Thus, while there are restrictions on
the admission of evidence through written statements, they are much looser than
those of many common law systems.
Still, the judges of the Tribunal have built at least some threads of the com-
mon law worlds hearsay concerns into the Rules. Rule 89(D) authorizes but
does not require Chambers to exclude evidence if its probative value is sub-
stantially outweighed by the need to ensure a fair trial. Under the rubric of that
Rule, the ICTYs Appeals Chamber has instructed the Trial Chambers to consider
the hearsay character of evidence as one factor possibly threatening the fairness
of trials and thus to be balanced against the evidences probative value. If the roles
of the parties suggest that our trials draw heavily on the common law adversarial
model, our rules of evidence then show a more complex mix and a greater indebt-
edness to civil law exemplars.
A fth interesting challenge facing the Tribunal is the contours of the defen-
dants right to self-representation. Two prominent accused currently tried by the
Tribunal have chosen to represent themselves. I refer to former President Slobo-
dan Miloevi and to Vojislav eelj, the leader of the Serbian Radical Party. Ar-
ticle 21 of the Tribunals Statue, which enumerates the rights of the accused, pro-
vides that the accused shall be entitled to defend himself in person. In Miloevi,
more recently, the Trial Chamber imposed counsel on the defendant because his
extended periods of ill health had repeatedly disrupted the trial during the presen-
tation of the Prosecutions case. On appeal, the ICTY Appeals Chamber armed
the trial judges power to assign counsel to a defendant even in the face of his
strenuous opposition the basic need for a minimally ecient judicial manage-
ment required as much. However, the appellate decision also held that the Trial
Chamber had placed overly strict restrictions on Miloevis ability to participate
in his trial even when his health allowed. Under the principle of proportionality,
the Appeals Chamber held, Miloevi had to be allowed to maintain as active a
role in his trial including taking the lead in presenting and examining witnesses
as his health would allow.168 In this context, it may be of interest to note that, in
articulating the principle of proportionality, the Appeals Chamber drew on the
European Court of Human Rights as well as precedents from national jurisdic-
tions and the United Nations Human Rights Committee.
The Trial Chamber in the eelj case took a somewhat dierent approach,
appointing a standby counsel, to assist the accused in the preparation of his case
when the accused so requests, without depriving the accused of the right to de-
fend himself.
The issue of what steps a standby counsel is permitted to take will, I expect,
continue to confront the judges of the Tribunal.
A sixth live concern to our Tribunal is the problem of creating a coherent
sentencing scheme, with the sentences reecting the gravity of the crimes com-
mitted yet not foreclosing the chance of rehabilitation. Contrary to the practice
of several countries, our Tribunal does not have a strictly dened sentencing re-
gime or sentencing guidelines. The Tribunals Statute provides only very general
guidance on the issue. Article 24 of the Statute, which addresses the penalties
the Tribunal may impose, states that the Trial Chambers shall take into account
such factors as the gravity of the oence and the individual circumstances of the
convicted person. The Article does direct the Trial Chambers to consider the
general practice regarding prison sentences in the courts of the former Yugosla-
via, but stops short of mandating an adoption of the regions sentencing regime.
The Tribunal has taken a number of steps to study the problem, and to address the
challenge of creating a well-structured sentencing regime.
The rst institutional challenge I discussed concerned the Tribunals birth.
The last I would like to mention concerns its eventual demise. Unlike the Inter-
national Criminal Court, which is intended to be a permanent body, the ICTY is
an ad hoc tribunal that was never intended to live forever. The Security Council
has urged the Tribunal to conclude all trials by 2008 and all appeals by 2010.
Given those deadlines, clearly the ICTY will only be able to take up the cases of a
small fraction of those who committed war crimes during the Yugoslav conict.
Arrangements must be made for the orderly and fair prosecution of the many
small-scale war criminals still at large in the region of the former Yugoslavia. I
say small-scale, but by that I mean small as measured largely by the number of
the victims, not the gravity of the crime, which often involves murder, torture,
rape, and other forms of terrible violence. Given the bitterness of the ethnic and
political divisions that remain in the former Yugoslavia, establishing courts that
are both eective and free from ethnic and religious bias presents an enormous
challenge. Some progress has been made on this front through the establishment
of courts in the U.N.-administered areas of Kosovo. These courts, whose prosecu-
tors and judges are a mix of local and foreign lawyers, have overseen trials in the
last few years. Even more recently, through the joint eorts of the Tribunal and
168 Slobodan Miloevi v. Prosecutor, Appeals Chamber, Decision on Interlocutory Ap-

peal of the Trial Chambers Decision on the Assignment of Defense Counsel, Case
No. IT-02-54-AR73.7 (Nov. 1, 2004).
148 Chapter 2
the Oce of the High Representative for Bosnia and Herzegovina, a special war
crimes chamber within the State Court of Bosnia and Herzegovina in Sarajevo
has been established. Initially, at least, this chamber will consist of both local and
foreign prosecutors and judges. I look forward to the day when domestic war
crimes trials that meet international human rights standards can be conducted in
the region of the former Yugoslavia.
One thing must be clear, however: a strict application of the target dates for
the completion strategy must not result in impunity, particularly for the most
senior leaders suspected of being most responsible for the crimes within the Tri-
bunals jurisdiction. Nor should the approach of deadlines lead to a diminution in
respect for the right of the accused to a fair trial and to present a full defence. One
of the components of the Tribunals completion strategy is the referral of lesser
cases from our Tribunal to competent domestic courts. The Prosecutor has al-
ready begun sharing information from les and materials of unindicted persons,
with prosecutors and investigators in the region for possible domestic prosecu-
tion.
But for those cases in which individuals have already been indicted by the
Prosecutor and the indictment conrmed by a Judge of the Tribunal, a formal
procedure has been rule 11 bis. Either on its own motion or on that of the Pros-
ecutor, a trial chamber may decide to refer the case of such individuals for trial
by an appropriate court of a domestic jurisdiction. This could be a court in the
State where the individual was arrested, in the State where the alleged crime was
committed, or any other State willing and able to prosecute the case. If the trial
chamber satises itself that the person to be transferred is not a senior leader re-
sponsible for ICTY crimes and if the domestic court can provide a fair trial up to
international standards of due process and human rights, the trial chamber may
refer the case. A special bench of Judges to examine these motions and decide
whether the criteria have been met has been appointed.
One issue is whether a domestic court exists to take the case over and pros-
ecute the accused according to international standards. Another matter is de-
tention facilities. Obviously detention facilities for the accused must also meet
international standards of fairness and due process.
J. The International Criminal Court

Two events with enormous institutional and normative implications for interna-
tional humanitarian law are the UN Diplomatic Conference of plenipotentiaries
in Rome (June 15-July 17, 1998) on the establishment of an international criminal
court and the resulting Rome Statutes entry into force in 2002. The Diplomatic
Conference followed four years of intensive preparatory work by the United Na-
tions, rst by an ad hoc committee (1995) and then by the Preparatory Committee
on the Establishment of an International Criminal Court (1996-1998). The start-
ing point and an important focus for the ad hoc and preparatory committees was
the draft statute drawn up by the International Law Commission in a remarkably
short time and completed in 1994, under the leadership of Professor James Craw-
ford as chairman of the commissions working group.
The adoption of the Rome Statute of the International Criminal Court on July
17,1998, was an event of historic importance. Although it is too early to assess the
prospects of the eectiveness of the Court and many aspects of its Statute, such
caution is not required with regard to the statement of the crimes contained in
Articles 6-8. These Articles, now part of treaty law, contain denitions of crimes
adopted only for the purposes of the Statute and the jurisdiction of the ICC. These
crimes constitute the principal oenses that the ICC will try. Nonetheless, they
will take on a life of their own as an authoritative and largely customary statement
of international humanitarian and criminal law, and may thus become a model
for national laws as well as for laws implementing the principle of universality of
jurisdiction. The process by which States have started adopting the same oenses
as a part of their criminal laws has already begun. By conforming their legislation
to the ICC Statute, States are better positioned to take advantage of the principle
of complementarity, whereby bona de national investigations or prosecutions
preempt ICC prosecutions. In contrast to the ICTY and the ICTR, which have
primacy of jurisdiction over national courts, the ICC is subordinate in jurisdic-
tion to national courts. Many States parties are revising, or have already revised
their penal legislation to allow the prosecution of ICC oenses. In terms of sub-
stantive humanitarian law, Articles 6-8 are the most important part of the Stat-
ute. They will inuence practice and doctrine. And though, by their own terms,
the ICC oenses are treaty law, they may be applied to non-party State nationals
in circumstances specied in Article 12 of the Statute, including by the Security
Council, acting under Chapter VII of the UN Charter. Furthermore, the adoption
of an international criminal code, which the Statute in eect constitutes, helps to
counter one of the objections to international criminal jurisdiction, that is, the
lack of uniform international substantive criminal law.169
Regarding the crime of genocide, Article 6 repeats verbatim Article 2 of the
Convention on Prevention and Punishment of the Crime of Genocide as adopted
by the UN General Assembly on December 9 1948. Incitement to commit geno-
cide is now dealt with in Article 25(3)(e) in Part 3 of the Statute (General Prin-
ciples of Law).
As a contribution to international law, Article 7, on crimes against human-
ity, is more important. Leaving aside the brief provision contained in Article 6(c)
of the Nuremberg Charter and the statements of crimes against humanity in the
Statutes of the criminal tribunals for the former Yugoslavia and for Rwanda, it is
the rst comprehensive multilateral treaty denition of crimes against humanity.
It is accompanied by denitions of the principal oenses. The articles on crimes
against humanity and on war crimes are, on the whole, enlightened, credible and
up to date.
169 See generally, Leila Nadya Sadat, Redening Universal Jurisdiction, 35 New England
L. Rev. 241, 249 (2000).
150 Chapter 2
The chapeau of crimes against humanity mentions no nexus to armed con-

icts, either international or internal in character. The Statute thus conrms that
crimes against humanity are as applicable in peacetime as they are in wartime.
Crimes against humanity under the Rome Statute, as well as some of the oenses
listed for non-international armed conicts, overlap with some violations of fun-
damental human rights (such torture, rape or enslavement), which thus become
criminalized under a multilateral treaty.
The crimes against humanity chapeau also does not require proof of discrim-
ination against the targeted civilian population. Following the Nuremberg model,
and ICTY jurisprudence, Article 7 makes discriminatory intent pertinent only to
the oense of persecution (Article 7(1)(h)). The chapeau adheres to the disjunc-
tive approach (widespread or systematic attack) already followed by the two ad
hoc tribunals. The disjunctiveness of the Statute is, however, balanced by a deni-
tion of attack directed against any civilian population (para. 2(a)) as a course of
conduct involving the commission of multiple acts (referred to in para. 1). This
denition of attack should not be regarded as raising the threshold for crimes
against humanity. It has always been unlikely that acts not involving commis-
sion of multiple attacks would be tried by the ICC as crimes against humanity
in the rst place. The denition of attack further recognizes that crimes against
humanity can be committed not only by States but also by various organizations
(pursuant to or in furtherance of a State or organizational policy to commit such
attack). This provision may be an important addition to the arsenal of criminal
law norms to be applied to individuals acting for non-State entities, and especially
terrorist organizations. For crimes against humanity to be established the ele-
ment of intention that must be shown is knowledge of the attack.
The chapeau is then followed by the enumeration of eleven oenses, build-
ing on but signicantly adding to the Nuremberg list. These oenses or some of
their terms are then specically dened. These denitions in themselves make a
considerable contribution to international law.
The additions to Nuremberg are forcible transfer of population (not only
deportations), imprisonment and other severe deprivations of personal liberty
in violation of fundamental rules of international law, torture, rape, sexual slav-
ery, enforced prostitution, forced pregnancy, enforced sterilization, or any form
of sexual violence of comparable gravity, enforced disappearance of persons and
apartheid.170 Most important and as already mentioned, the crime of persecution
expands the protected categories well beyond those in the Genocide Conven-
tion.
The denition of extermination includes the intentional iniction of condi-
tions of life, inter alia, the deprivation of access to food and medicine, calculated
to bring about the destruction of part of a population.171 The denition of enslave-
ment includes the exercise of power attaching to ownership over persons in the
course of tracking in persons, in particular women and children. This provision
170 Rome Statute of the International Criminal Court Art. 7(1).

171 Id., Art. 7 (2) (b).
further demonstrates the importance attributed by the Statute to the criminaliza-

tion of oenses against women.172
Deportation is usefully dened as forced displacement of the persons con-
cerned by expulsion or other coercive acts from the area in which they are law-
fully present, without grounds permitted under international law.173
The denition of torture is not limited to acts committed by or at the insti-
gation of or with the consent or acquiescence of a public ocial or other person
acting in an ocial capacity, as was the case in the 1984 UN Convention against
Torture and other Cruel, inhuman or Degrading Treatment or Punishment.174 The
oense is thus not limited to governmental actors. This is a positive and impor-
tant development.
Forced pregnancy is dened as the unlawful connement of a woman forc-
ibly made pregnant, with the intent of aecting the ethnic composition of any
population or carrying out other grave violations of international law.
The denition of enforced disappearances of persons elaborates on earlier
denitions adopted in the United Nations. It describes such disappearances as
the arrest, detention or abduction of persons by, or with the authorization, sup-
port or acquiescence of, a State or a political organization, followed by a refusal
to acknowledge that deprivation of freedom or to give information on the fate
or whereabouts of those persons, with the intention of removing them from the
protection of the law for a prolonged period of time.
Article 8 on war crimes contains, rst, a section tracking grave breaches of
the Geneva Conventions, i.e., acts against persons or property protected by those
Conventions; a second section then addresses other serious violations of the laws
and customs applicable in international armed conict; nally, several sections
dene oenses in non-international armed conicts.
The second section, paragraph 8(b), is a very important and rather com-
prehensive statement of oenses that draws on the Hague Law and Additional
Protocol I to the Geneva Conventions, and thus goes beyond the grave breaches
provisions of the Geneva Conventions. The innovations include criminalization
of various acts against UN peace-keepers and members of humanitarian organi-
zations, their ags, emblems and assets; criminalization of transfer, directly or
indirectly, by the occupying power of parts of its own civilian population into the
territory it occupies (which, except for the addition of the words directly or indi-
rectly, is a grave breach of Protocol I, but not of the Fourth Geneva Convention);
criminalization of rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of sexual violence also constituting a
grave breach of the Geneva Conventions; criminalization of conscripting or en-
listing children under the age of fteen years into the national armed forces or
using them to participate actively in the hostilities, and intentionally using starva-
172 Id., Art. 7 (2) (c).

173 Id., Art. 7 (2) (d).
174 Id., Art. 7 (2) (e).
152 Chapter 2
tion of civilians as a method of warfare by depriving them of objects indispens-

able for their survival, including willfully impeding relief supplies as provided for
under the Geneva Conventions. One provision (para.2 (b) (iv)) concerns collat-
eral damage or proportionality. It requires, for the criminalization of an attack
launched in the knowledge that such attack will cause an excessive damage to
civilians or to the natural environment, that the attack be clearly excessive in
relation to the concrete and direct overall military advantage anticipated. The
emphasized words indicate a departure from Protocol Is language and constitute
a certain clarication of the Protocols principle of proportionality.
The list of prohibited weapons is limited to poison or poisonous weapons
(Article 23(a) of the Regulations annexed to the Hague Convention (IV) Respect-
ing the Laws and Customs of War on Land), asphyxiating, poisonous or other
gases, and all analogous liquids, materials or devices (1925 Geneva Protocol), and
bullets which expand or atten easily in the human body (1899 Hague Declaration
IV, 3 concerning expanding bullets).175 Additional weapons can be included in an
annex to the Statute by a future amendment.176 Specic references to bacterio-
logical (biological) agents or toxins for hostile purposes or in armed conict and
to chemical weapons as dened and prohibited by the 1993 Convention on the
Prohibition of the Development, Production, Stockpiling and Use of Chemical
Weapons and on their Destruction regrettably have been omitted. It remains to
be seen whether the ICC will interpret the oenses concerning poison, gases, and
analogous materials so as to include some of the deleted elements.
Article 8 (c) repeats verbatim and declares criminal serious violations of
common Article 3. Drawing on Article 1(2) of Additional Protocol II, section (d)
states that section (c) applies to armed conicts not of an international character
and thus does not apply to situations of internal disturbances and tensions, such
as riots, isolated and sporadic acts of violence or other acts of a similar nature.
Section (e) of Article 8 contains an important and signicant list (but far
shorter than the list of war crimes drafted for international armed conicts) of
other serious violations of the laws and customs applicable in armed conicts not
of an international character, within the established framework of international
law. The recognition that war crimes under customary law are pertinent to non-
international armed conicts represents a signicant advance. The list draws on
the Hague law and the additional Protocols. It includes the crimes of intentional
attacks against civilians, buildings dedicated to religion, education, art, etc., and
hospitals, refusal of quarter, and destruction or seizure of property of an adversary
that is not imperatively required by the necessity of the conict. In addition to the
inclusion of some fundamental Hague law rules as oenses for non-international
armed conicts, section (e) drawing on additional Protocol II criminalizes
the displacement of the civilian population for reasons related to the conict,
but this is qualied by a reference to the security of the civilians or imperative
military reasons. Unfortunate omissions include provisions addressing the war
175 Geneva Protocol 17 June 1925; Hague Declaration IV, 3 29 Jul 1899.
176 Art. 8(2)(b)(xx).
crimes of not abiding by the principles of proportionality and of discrimination

between civilians and combatants, principles the violation of which is regarded as
a war crime for international armed conicts (Art. 8(2)(iv), 8(2)(xx)). The war in
Chechnya has demonstrated, once again, how important these principles are for
non-international armed conicts.
Sexual oenses rape, sexual slavery, enforced prostitution, forced preg-
nancy, enforced sterilization, and any other form of sexual violence also consti-
tuting a serious violation of common Article 3 are recognized as criminal for
non-international armed conicts as well as for international ones. Conscrip-
tion or enlistment of children under the age of fteen years into armed forces
or groups or using them to participate actively in hostilities is criminalized (note
that there is no mention of national armed forces for non-international armed
conicts, as in section (b)). Non-inclusion of any weapon, even poison gas, in the
sections addressing non-international armed conicts is unfortunate. The pos-
sibility remains, however, of considering the use of gas against any civilian popu-
lation in any internal conict or even absent an armed conict as a crime
against humanity.
Despite considerable pressure from some States, the Rome conference re-
sisted attempts to raise the threshold for non-international armed conicts to
that contained in Article 1(1) of additional Protocol II. Accepting such changes
would have made the sections addressing non-international armed conict vir-
tually ineectual. Instead, section (f ) repeats the already mentioned language of
Article I(2) of Additional Protocol II and adds the statement that paragraph (e)
applies to armed conicts that take place in the territory of a State when there
is a protracted armed conict between governmental authorities and organized
armed groups, or reecting recent developments of the law between such
groups. The reference to protracted armed conict was designed to give some
satisfaction to those delegations that insisted on the incorporation of the higher
threshold of applicability of Article 1(1) of Additional Protocol II. Attempts to
consider protracted armed conict as recognizing an additional high threshold
of applicability should be resisted. The statement that nothing in the sections on
non-international armed conicts shall aect the responsibility of a Government
to maintain or re-establish law and order in the State or to defend the unity and
territorial integrity of the State by all legitimate means must not be understood
as allowing any government to commit the oenses enumerated in these sections
of the Statute.
The oenses stated in the Statute have been amplied by elements of crimes
to be adopted by a two-thirds majority of the Assembly of States Parties177 (Ar-
ticle 9). Such elements shall assist the Court in the interpretation and application
177 For the text as adopted by the Preparatory Commission, see PCNICC/2000/Add.2 (2
November 2002). The Preparatory Commission also adopted a draft of rules of pro-
cedure (PCNICC/2000/1/Add.1, 2 November 2002), which has been approved by the
Assembly of State Parties. In contrast, adoption of rules of procedure and evidence in
the ICTY and the ICTR is the responsibility of judges.
154 Chapter 2
of Articles 6, 7 and 8. They must be consistent with the Statute. Their adoption
reects the recognition of the need for very specic guidelines for judges and
prosecutors alike, as bets criminal law.
The denitions of crimes are now in place. It is up to the States to make them
eective, punish violators and deter future crimes through both national prosecu-
tions and prosecutions before the ICC.
Apart from the denition of crimes, the Statute (part 3) makes another great
contribution to international law: the elaboration of general principles of criminal
law. The Statute contains the rst comprehensive statement of such principles for
oenses against international humanitarian law. Of course, many such principles
have already emerged from the jurisprudence of the ICTY and the ICTR. It is to
be hoped that the interpretation and the application of general principles of crim-
inal law by the ICC would be consistent with the work of the ad hoc tribunals.
It thus denes matters such as mental element, grounds for excluding crimi-
nal responsibility, mistake of fact and mistake of law, superior orders, and renes
the concept of responsibility of commanders and other superiors by introducing
a distinction between military and civilian superiors. Under Article 124, States
parties have seven years after the entry into force of the Statute for the State con-
cerned to exercise the opt-out option for war crimes (they may declare that they
do not accept the jurisdiction under Article 8), but not for genocide or crimes
against humanity.
Article 5 of the Statute, listing crimes within the jurisdiction of the Court,
mentions the crime of aggression in addition to the crimes of genocide, crimes
against humanity, and war crimes. However, the Court may not exercise jurisdic-
tion over the crime of aggression until the Statute has been amended, in accor-
dance with Article 121 and 122, to incorporate a denition of aggression. Such a
denition must be consistent with the Charter of the United Nations.
The provision on aggression (Article 5(d)) is dicult to evaluate. Its inclusion
in the jurisdiction of the ICC was made tentative by the need to adopt a denition
grounded in customary law, to set out the conditions under which the Court shall
exercise jurisdiction, and to adopt an appropriate amendment to the Statute. The
provision on aggression represents a compromise between those who insisted on
the inclusion of the crime of aggression in the Statute on the same operational ba-
sis as the crime of genocide, crimes against humanity and war crimes, and those
who argued for complete exclusion of the crime of aggression on the ground that
it has not been suciently dened and that it is a crime of States more than a
crime of individuals. This controversy has been compounded by dierent visions
of the role of the UN Security Council, i.e., whether a prior determination by the
Security Council that aggression has been committed is a condition precedent for
the exercise of the Courts jurisdiction over individuals accused of the crime of
aggression, as well as of a potential role for the ICJ. Given the strong convictions
of the permanent members of the Security Council, and some other States, about
the peremptory nature of the UN Charters provisions pertaining to the Security
Councils authority to determine that aggression has occurred, as well as the in-
sistence of the Permanent Members on their right to the veto, an agreement on a
text that would not reect the requirement for such a determination prior to the
Courts consideration of the individual responsibility for the crime has proven
elusive.178
Insofar as personal jurisdiction is concerned, the most important, and
controversial, provision of the Statute is Article 12. Unless the matter has been
referred to the Court by the UN Security Council acting under Chapter VII, in
which case State consent is not required, Article 12(2) states that the Court shall
have jurisdiction if one or more of the following States are parties to the Statute
or, being non-parties, have declared acceptance of the Courts jurisdiction: the
State of territoriality or the State of the nationality of the accused. Thus, the Court
would have jurisdiction over nationals of a non-State party whose nationals are
accused of crimes within the jurisdiction of the Court, provided that the State
where the crimes have been committed is a party or has accepted the jurisdiction
of the Court by a special declaration. The latter possibility might enable a State to
impose ICC jurisdiction on nationals of a State occupying its territory, without
subjecting itself to the jurisdiction in respect of crimes committed in its own ter-
ritory which is not under foreign occupation. This provision has been challenged
by the United States as a violation of the principle that treaties cannot create
obligations for third States without their consent. The answer normally given is
that the jurisdiction would catch individuals and not States. While formally cor-
rect, this answer presents problems where the individuals have acted in the line
of duty, and where important consequences from their prosecution can arise for
the accountability of their government.
States of nationality may indeed have a special interest in cases in which the
individual accused of crimes under the Statute has acted in the line of duty. In
such cases, a prosecution against an individual can mask a dispute over facts and
over the law which implicates state accountability. The Security Council, acting
under Chapter VII of the Charter, may request the Court to defer any investiga-
tion or prosecution for renewable periods of 12 months.
There is a certain lack of balance in Article 12. By providing that the ICC is to
have jurisdiction only when it is accepted by the State where the crimes have been
committed or by the national State of the accused, the treaty eectively lets o
tyrants of non-party states, who kill their own people on their own territory. This
provision might make the court largely ineective in dealing with rogue regimes,
that choose not to become parties to the Statute, except when the Security Coun-
cil exercises its Chapter VII authority to extend jurisdiction to them.
Given the intense opposition of the United States to the ICC, it was far from
clear that the United States would permit referral of cases to the ICC under Chap-
ter VII of the Charter (Article 13(b) of the Statute). The advantage of such a form of
referral is that it does not require consent of the State or States involved and that
it would permit a quick response to atrocities, thus putting the end to impunity
and enhancing accountability. Such a response would also benet from the power
178 See Meron, Dening Aggression for the International Criminal Court, 25 Suolk
Transnatl L. Rev. 1 (2001).
156 Chapter 2
and authority of the Security Council. Fortunately by abstaining the United

States did not block the referral of the situation in Darfur to the ICC (2005), thus
enabling the ICC to make its contribution to combating impunity there.
At the insistence of the United States, the Security Council adopted under
Chapter VII, on 12 July 2002, Resolution 1422 (2002) exempting from investi-
gation or prosecution by the ICC for a renewable 12-month period nationals
of States not parties to the ICC Statute and participating in UN established or
authorized operations. Such deferral is allowed under Article 16 of the Statute,
provided that the invocation of Chapter VII is justied. The resolution has gener-
ated controversy, the opponents arguing that the Security Council has abused its
Chapter VII powers. While this exemption has not been subsequently renewed,
the Security Council resolution 1593(2005), referring the situation in Darfur to
the ICC, states that nationals of contributing non-party states shall be subject to
the exclusive jurisdiction of that contributing states.
Attempts by the United States to conclude bilateral agreements under Ar-
ticle 98 of the ICC Statute excluding surrender to the ICC of its nationals, may,
if successful, further limit the reach of the ICC, while formally conforming to
the provisions of its Statute. The U.S. policy of persuading states to pursue such
agreements involves, in some cases, pressure to cut military assistance or other
assistance to recalcitrant states.
Even in situations not involving international tribunals, there may be some
rare treaty limitations on the exercise of jurisdiction over nationals of non-State
parties with regard to war crimes. An interesting recent example is the Second
Protocol (1999) to the 1954 Hague Convention for the Protection of Cultural
Property in the Event of Armed Conict. Article 15 denes certain acts as serious
violations of the Protocol. Article 16 creates obligations for each party to establish
its jurisdiction under the principle of territoriality, active nationality, or universal-
ity (presence of the accused/suspect in the territory), and Article 17 establishes
obligations of aut dedere aut judicare. Article 16(b) carves out, however, an im-
portant exception:
members of the armed forces and nationals of a State which is not a party to this
Protocol, except for those nationals serving in the armed forces of a State which is a
Party to this Protocol, do not incur individual criminal responsibility by virtue of this
Protocol, nor does this Protocol impose an obligation to establish jurisdiction over
such persons or to extradite them.
This limitation leaves open, however, the possibility of prosecution of a national of

a non-State party for those violations committed against cultural property which
can be regarded as arising from general or customary law.
The ICC may eliminate the need for the establishment of additional ad hoc
tribunals and the type of selectivity implicated in them. Its power will depend
largely on the breadth of ratication outside Europe. The ICC is inevitably weak-
ened without the participation of three permanent members of the Security
Council (the United States, China, and Russia), and such major countries as India,
Pakistan and Japan.
K. Due Process of Law

International humanitarian law instruments contain considerable due process
protections. Additional protections are contained in human rights instruments.
How do international criminal courts applying international humanitarian law
comply with the latter?
Due Process is one important point of intersection between international hu-
manitarian law and domestic criminal process. There is a great deal of similarity
between the norms of due process reected in international law and due process
norms in the law of enlightened nation states. Since World War II, and particular-
ly during the last few decades, there has been a growing recognition, both in the
international arena and within individual states, of certain fundamental norms
protecting individuals during criminal trials. These norms, such as the right to an
impartial tribunal, the right to be assisted by counsel of ones choice, the right to
a speedy trial are crucial to safeguard individuals from vindictive prosecution or
abuse of state judicial power. These are rights to a fair trial or to due process of
law. Often inspired by national laws and constitutions, due process norms, once
introduced in an international instrument, serve as examples to other states and
are often incorporated in their national laws. As more states adhere to a certain
due process right, the more accepted it becomes as a norm of international law,
in some cases gaining universal acceptance as customary law, a general principle
of law, or even a peremptory norm. One of the most important, and most com-
prehensive instruments codifying due process rights in criminal trials is the In-
ternational Covenant on Civil and Political Rights. There are a number of regional
instruments which contain norms of criminal due process substantively similar to
those of the International Covenant: the European Convention on Human Rights,
the Inter-American Convention on Human Rights and the African Charter on
Human and Peoples Rights. The requirements of due process contained in many
of these conventions have been further elucidated in the decisions of the courts
set up to ensure compliance with such regional norms. The decisions of these
courts, and especially of the European Court of Human Rights on the right to a
fair and speedy trial, and the right to representation, have often been cited by the
ICTY.
The International Military Tribunals in Nuremberg and Tokyo were estab-
lished in very special circumstances, following a total victory of the allies and the
unconditional capitulation of Germany and Japan. They were multinational oc-
cupational courts, rather than genuinely international ones.179 They had only ru-
dimentary procedural rules. Certain minimum rights, however, were guaranteed:
179 Prosecutor v. Duko Tadi, International Tribunal for the Former Yugoslavia, Deci-
sion on the Prosecutors Motion Requesting Protective Measures for Victims and Wit-
nesses, 10 August 1995, para. 19.
158 Chapter 2
the right of the defendant to be served with the indictment in a language which he
understands; the right to a translation of the proceedings in a language which the
defendant understands; the right to assistance of counsel; and the right to present
evidence and to cross-examine witnesses called by the prosecution.180
Despite these safeguards, Nuremberg had notable due process problems:
There was no specic recognition in the Nuremberg Charter of the presumption
of innocence and no discussion of the burden of proof; defendants were not al-
lowed to make opening statements; trials in absentia were permitted; defendants
could not challenge the Tribunals competence. There was a certain lack of equal-
ity between prosecution and defense. However, the Charter and the procedure
reected a compromise with civil law traditions,181 which allow, for example, in
absentia trials, in certain circumstances.
Although a victors court, Nuremberg was neither arbitrary nor unjust. The
Tribunal tempered the Charters harsh rules to protect the accused, it assessed
evidence according to accepted and fair legal standards, and it acquitted some
defendants outright. Although tu quoque arguments were not addressed directly,
they were important as the underpinnings of the proceedings. Because of tu quo-
que some oenses were not prosecuted (e.g., the bombing of Coventry), and some
charges were rejected on the ground that similar practices of the Allies demon-
strated that certain norms did not harden into clear prohibitory norms.
In his 1993 report on the Statute of the ICTY (1993), the rst international
criminal tribunal established by the United Nations, the Secretary-General noted
that [i]t is axiomatic that the International Tribunal must fully respect inter-
nationally recognized standards regarding the rights of the accused at all stages
of its proceedings. He added that [i]n the view of the Secretary General, such
internationally recognized standards are, in particular, contained in Article 14 of
the International Covenant on Civil and Political Rights,182 which inspired Article
21 of the ICTY Statute.183
The inuence of human rights law can be seen in the ICTYs and the ICTRs
treatment of such norms as due process and judicial guarantees, including ne bis
in idem, independence and impartiality of the tribunals, the right to be presumed
innocent until proven guilty according to law and the right to a fair and public
trial.
The due process standards are further reected in the Statutes and the Rules
of the Tribunals in the absolute respect for the principle of equality of arms of
the prosecution and the defense. These standards inspired provisions for the full
respect of the rights of the defense, the right of the accused to be present at his
trial, the fact that the Tribunals were not empowered to impose the death penalty,
180 Id., para. 20.

181 Meron, From Nuremberg to The Hague, in Theodor Meron, War Crimes Law Comes
of Age Ch. X (1998).
182 Report of the Secretary-General, supra note 10, at para. 106. See generally, Salvatore
Zappal, Human Rights in International Criminal Proceedings (2003).
183 Rwanda Statute has a similar provision.
and the right to appeal against a decision.184 The ICTY Statute, in Articles 20-21,
contains a list of specic guarantees which seek to ensure that individuals tried in
our courtrooms are aorded the protections of due process. These articles often
track the corresponding provisions in the Political Covenant. They often reect
customary international law.
The rst right I will mention is the right to be represented by counsel. This
rights has been recognized in Article 14(3) of the Covenant and by Articles 18(3)
and 21(4) of the Statute. The presence of an eective counsel will normally ensure
that all norms of due process are followed during the criminal proceedings. The
right has several components. First, the defendant has a right to select a counsel
of his own choosing. This right allows an eective defence, because the repre-
sentation is based on mutual trust between the defendant and the counsel. Obvi-
ously, this choice is not unconstrained, as the counsel must possess certain man-
datory qualications for practice before ICTY. The chief administrative ocer of
the Tribunal, the Registrar, has certain powers of oversight over the defence bar
and authority to regulate their compensation.
For the right to counsel to have meaning, there must be a mechanism to pay
for counsel where the defendant lacks nancial resources to do so himself. The
ICTY Statute provides the defendant with the right to have a free counsel assigned
in any case where the defendant lacks sucient means for legal representation.
Where counsels costs are covered by the state, in national proceedings, there is
no international requirement of due process that counsel be of the defendants
own choosing. In practice, however, it is important to adhere as closely as possible
to the principle that the defendant has a right to counsel of his own choice, and
thus ensure that the defendant and counsel have a relationship of mutual trust.
Accordingly, the ICTY allows an indigent defendant to select his own counsel.
The right of the defendant to refuse counsel and to conduct his defense him-
self is recognized by the Covenant and by the Statute. This right is controversial
because, obviously, a defendant who is not trained in law is not able to present
as well prepared a defense as a professional lawyer. It is important to remember,
however, that at trial, it is the guilt or innocence of the defendant himself that is
at issue; and so the defendant must have the right to present the kind of defense
he likes.
Judges have, however, an independent obligation to ensure that the trial is
fair, even where the defendant chooses to represent himself. In particular situ-
ations, as in the case of former President Slobodan Miloevi, who is on trial
before ICTY and who refused legal representation, the judges decided to appoint
a group of three lawyers as friends of the court with instructions to help the
Court ensure that the accused receives a fair trial. They therefore make motions
to the court, are present during the hearings, address the court on a variety of
issues, and, on one occasion, they even appealed one of the courts ruling to the
Tribunals Appeals Chamber. While the friends of the court take steps for the
184 Report of the Secretary-General, supra note 10, paras. 23-26.

160 Chapter 2
accuseds benet, they do so pursuant to their judicial instructions to help ensure

that the trial is fair, not as agents of the defendant.
However, because of Miloevis illness, scheduling accommodations neces-
sary to allow him to represent himself without endangering his health signi-
cantly delayed the progress of the trial. The Trial Chamber therefore decided that
counsel be assigned to the accused, despite his objections. The Chamber contem-
plated allowing Miloevi active participation in the trial, but that participation
would be secondary to that of the assigned counsel and contingent on permis-
sion of the Chamber in any given instance. On interlocutory appeal, the Appeals
Chamber,185 held that the right of self-representation may be curtailed when the
defendants self-representation is substantially and persistently obstructing the
proper and expeditious conduct of his trial. The court may restrict the right of
self-representation not only in the case of intentional disruption, but also when
disruptions are caused by the defendants illness. The Appeals Chamber held that
it was within the Trial Chambers discretion to assign counsel to Miloevi, noth-
withstanding his opposition. The Appeals Chamber decided, however, that the
restrictions imposed on the accused were grounded on a fundamental error of
law in that the Chamber failed to recognize that any restrictions imposed on his
right to represent himself must be limited to the minimum extent necessary to
protect the Tribunals interest in assuring a reasonably expeditious trial. The Ap-
peals Chamber considered that a proportionality principle was called for and that
the Trial Chambers restrictions were excessive. In reversing the Trial Chambers
Order on Modalities, the Appeals Chamber held that the Trial Chamber should
craft a working regime that minimizes the practical impact of the assignment of
counsel, except to the extent required by the interests of justice. Under the then
prevailing circumstances, where the accused was well enough to participate in
the trial, it was an abuse of discretion to curtail his participation dramatically on
the grounds of health. If his health deteriorates gravely, the presence of assigned
counsel would enable the trial to continue, even if the accused is temporarily un-
able to participate.
In another case, that of Vojislav eelj, who also chose to represent himself,
the trial judges appointed what is called a stand-by counsel. These are lawyers
who are present in court during the hearings and with whom the accused may,
at any time he chooses, consult. The judges in that case indicated that if, at some
point during the trial, they conclude that a fair trial is impossible with the defen-
dant continuing to defend himself, they could order the stand-by counsel, who is
already familiar with the case, to take over the defense.
Another important norm of international due process is the requirement of
speedy trial. This norm has two components. First, there is the right see Article
9(3) of the Covenant to be released from detention if the accused is not brought
to trial within a reasonable time. Second, there is a right to be tried within reason-
185 Slobodan Miloevi v. Prosecutor, Decision on Interlocutory Appeal of the Trial

Chambers Decision on the Assignment of Defense Counsel, 1 Nov. 2004, Case No.
IT-02-54-AR73.7
able time, as stated in Article 14(3)(c) of the Covenant. The right to a speedy trial
is crucial to the guarantee of a fair trial because undue delays may cause the loss of
evidence or the fading of the memories of witnesses. The ICTY Statute mandates
that the trial be expeditious. Of course, the requirements that both the detention
and the trial last only a reasonable time must be analyzed in the context of a par-
ticular case. In the ICTY, both pre-trial stages and the trials themselves are quite
lengthy. This is due to the complexity of the cases, the diculty in investigating
events which took place a decade or so ago, the challenge of bringing witnesses
who reside in other countries, the sheer number of these witnesses, the need to
translate thousands of pages of documents, and the need to rely on states and the
international community for means of enforcing our orders.
Next, I would like to mention what is perhaps the most fundamental crimi-
nal due process right enshrined in international law, the presumption of inno-
cence, essential to protect human dignity and to preserve the basic concept of
justice and fairness. All the major human rights instruments and the ICTY Stat-
ute (Art. 21(3)) guarantee this right. The presumption of innocence is relevant to
requests of individuals to be released provisionally pending trial. At the beginning
of the Tribunals life, these requests were granted only in exceptional cases. The
presumption of innocence was not regarded as a bar to denying a defendants ap-
plication for provisional release. In practice, it is not easy to establish the correct
balance between maximum guarantee of due process rights and the interests of
ecient vindication of justice against war criminals. A major diculty has been
the length of the trials and of pre-trial detentions, combined with the policy not
to release on bail persons awaiting trial. In human rights instruments, it is gener-
ally recognized that [i]t shall not be the general rule that persons awaiting trial
shall be detained in custody, but release may be subject to guarantees to appear
for trial, at any other stage of the judicial proceedings, and, should occasion arise,
for execution of the judgement.186 Under the ICTY Rules of Procedure and Evi-
dence, in contrast, the general rule was the detention of the accused; provisional
release was the exception. Rule 65 thus provided that:
(A) Once detained, an accused may not be released except upon an order of a Trial
Chamber.
(B) Release may be ordered by a Trial Chamber only in exceptional circumstances,
after hearing the host country and only if it is satised that the accused will ap-
pear for trial and, if released, will not pose a danger to any victim, witness or
other person.187
The ICTY has explained this approach by pointing out that both the shifting
of the burden to the accused and the requirement that he show exceptional cir-
186 International Covenant on Civil and Political Rights, 19 December 1966, G.A. Res.
2200 (XXI), 21 UN GAOR, Supp. (No. 16), at 52, UN Doc. A/6316, Art. 9(2).
187 (ICTY) Rules of Procedure and Evidence, Doc. IT/32/REV 26, Rule 65 (30 December,
2002).
162 Chapter 2
cumstances to qualify for provisional release are justied by the extreme gravity
of the oences with which persons accused before the International Tribunal are
charged and the unique circumstances under which the International Tribunal
operates.188 The prospect of the accused spending years behind bars while await-
ing trial is troubling. This is an area in which human rights considerations should
have played a greater role, perhaps by helping devise alternative means of deten-
tion. Rule 65 of the ICTY was, however, amended in 2001 to eliminate the refer-
ence to the exceptional nature of provisional release. The parallel provision in the
ICTR Statute has so far not been similarly amended. A complicating factor has
been that the Netherlands, as the host country, insists that a person granted pro-
visional release must be returned to his home country, which makes the accuseds
return for trial more uncertain. More recently, the Tribunal began granting these
requests with a greater frequency, in part concluding that guarantees provided by
the states of the region were adequate. Following the revision of the ICTY rule,
provisional release has become more common in the practice of the Tribunal, in
cases where the Tribunal has been satised that the accused will return for trial.
So far, all individuals released provisionally returned to face trial upon request.
The presumption of innocence also relates to the issue of guilty pleas. The
Prosecution does not need to prove the guilt of the accused when he agrees open-
ly to acknowledge it. Guilty pleas are supervised by the Trial Chambers, who are
not bound by the recommendations of the Prosecutor.
Finally, I will mention the right of the accused to be tried in his presence,
which prohibits trials in absentia. This right assumes the ability of the accused
to face his accusers and the judge, provides for credibility of the proceedings and
strengthens the ascertainment of truth. The presence of the defendant during his
trial allows him to participate actively in the trial and to present an adequate
defense. The international law on this issue is not fully crystallized. The Political
Covenant prohibits trials in absentia by guaranteeing the right to be present at
ones trial. Other international instruments, however, do not prohibit such trials.
The right is also guaranteed in many national jurisdictions, but some of them
impose limitations, such as for cases where the accused ees the jurisdiction dur-
ing trial or after having been given notice of the charge, or where the conduct of
the accused renders the continuance of the proceedings in his presence impos-
sible. Some civil law countries, notably France, allow in absentia trials in certain
circumstances. The Statute of the ICTY species, following the Covenant, that
the accused has the right to be tried in his presence, a provision interpreted to
prohibit trials in absentia. This right protects the accused and ensures the eec-
tiveness of the proceedings in the ICTY.
188 Prosecutor v. Zejnil Delali et al., International Criminal Tribunal for the Former
Yugoslavia, Decision on Motion for Provisional Release Filed by the Accused Ze-
jnil Delali, 25 September 1996, para. 19. See also Patricia Wald and Jenny Martinez,
Provisional Release at the ICTY: A Work in Progress, Essays on ICTY Procedure and
Evidence, in Honor of Gabrielle Kirk McDonald, 231 (Richard May et al eds. 2001).
I have not attempted to present an exhaustive catalogue of the protections

that international due process oers to a criminal defendant, but rather to men-
tion those which are most fundamental and which proved to be particularly im-
portant to the work of the Tribunal. The application of due process norms to the
cases before our Tribunal has not always been straightforward. We had to clarify
the meaning of these terms, and had to balance them against each other. We also
had to keep an eye on how the application of these norms of due process aects
the overall reputation, integrity and eciency of our judicial proceedings.
The Statute of the ICC contains important human rights protections for
persons investigated or accused, including Article 20 (ne bis in idem), Article 55
(rights of persons during an investigation), Article 60 (provisional release) Article
63 (trial in the presence of the accused), Article 66 (presumption of innocence),
and Article 67 (rights of the accused). Article 58 states that a warrant of arrest
shall be issued when there are reasonable grounds to believe that a person has
committed a crime within the jurisdiction of the Court and when arrest is neces-
sary to ensure that persons appearance, to ensure that the person does not ob-
struct or endanger investigations, or to prevent the person from continuing to
commit crimes.
L. Judicial Independence and Impartiality in International Criminal

Tribunals189
I. The Setting
Many countries have a long and sophisticated tradition of judicial independence
and impartiality. For international criminal tribunals, of course, the subject is rel-
atively new. Drawing on the experience of judges in international courts and my
own experience, I would like to emphasize a few themes that I think are crucial
to the notions of judicial independence and impartiality in international courts,
especially international criminal tribunals.190 Because of the exceptionally broad
scope of its work, with literally hundreds of interlocutory decisions on procedural
and substantive issues and many decisions resolving appeals from judgment, the
International Criminal Tribunal for the Former Yugoslavia (ICTY) serves as an
instructive vehicle for a broader discussion. Before turning to the Tribunal, how-
ever, I shall set out the subject in its broader, primarily national setting.
189 I am grateful to Judges Iain Bonomy, Thomas Buergenthal, Amin El-Mahdi, and
Fausto Pocar, and to Clifton M. Johnson for their comments; to my judicial clerks
Igor Timofeyev and Julian Davis Mortenson for their invaluable help; and to Stephen
Kostas for his excellent editorial eye.
190 Basic Principles on the Independence of the Judiciary, UN Doc. A/CONF.121/22/
Rev.1, at 59 (1985), available at <http://www1.umn.edu/humanrts/instree/i5bpij.
htm>.
164 Chapter 2
a) The Role of Judicial Independence

Judicial independence is critical for the rule of law. First, judges who are inde-
pendent of political or other pressures will adjudicate the disputes brought to
them with an eye to the guiding legal principles and without any undue inuence
by external sources. This posture will solidify public respect for the courts and
lead the people and governments to turn to the courts more often for the credible
settlement of their disputes. The ability to resolve disputes fairly is also essential
to a stable economy and polity. The economic and political actors need to believe
that an impartial arbiter will adjudicate their dierences, and that their reliance
on the existing laws and regulations will be honored. In resolving disputes, judges
explain and clarify those laws and regulations. When judges are independent and
act in accordance with the law, their decisions have a certain predictability, be-
cause they are based on existing law, judicial precedent, and the unbiased appli-
cation of that law to the facts at issue. This predictability allows the political and
economic actors to plan their behavior accordingly, contributing greatly to the
political stability and economic prosperity of a society.191
Judicial independence is also instrumental in the protection of individual
rights. Such rights may be enshrined in the countrys constitution or laws, but an
authority, such as the courts, must be empowered to review, independently and
impartially, citizens complaints and, if necessary, order that infringed rights be
vindicated. To do so eectively, judges must be assured that, irrespective of their
ruling, no unpleasant repercussions will be visited on them in terms of threats of
dismissal, demotion, or even salary diminution.
The third, and most important, aspect of judicial independence is that in-
dependent courts are the indispensable means of holding a government to its
nations laws. In a law-abiding society, the government itself may be brought be-
fore the court, as in the example of alleged infringement of individual rights I just
mentioned, and held to account if it oversteps its authority. This feature has im-
plications not only for the protection of individual rights, but also, in many coun-
tries, for the maintenance of separation of powers and federalism. In a system
with competing authorities, be it the executive and the legislature, or the national
government and the regional government, friction and even outright conicts are
bound to arise. Some of this friction can, and often will, be resolved through po-
litical mechanisms. It is unrealistic, however, to expect that all such conicts will
be resolved in this manner. The courts, as neutral, respected, and independent ar-
biters, oer an alternative way to resolve political (and sometimes social) disputes
within the national society, as well as the international community.
191 This function of judicial independence, as well as two other functions discussed be-
low, is well discussed in Paul Gewirtz, Independence and Accountability of Courts, 24
Global L. Rev. 7 (2002) (in Chinese). An English translation of the article is available
from the China Law Center at the Yale Law School at <http://chinalaw.law.yale.edu/
htm1/publications.htm>.
b) Ensuring Judicial Independence

What, then, is necessary to ensure the independence of the judiciary? While there
are many necessary elements, one of the most crucial in my view is public re-
spect for the courts and the judges conduct. Another contributing element is the
judges self-perception as independent and impartial. These factors are mutually
reinforcing, for if the courts are viewed as impartial, they will be respected; and
a court that enjoys public respect will nd it easier to display independent judg-
ment and, if necessary, to confront powerful governmental or societal interests.
An international judges conduct as an independent judge requires additional
comment. Not all judges in international courts have previously served as judges
in another setting; many have been diplomats, academics, and legal advisers, but
not judges. A person accepting a judicial oce on an international court must
therefore accept the values, the duties, and the instincts of one who holds such
an oce. Thus, for an international judge to conduct himself in an impartial and
independent way may require adaptation and discipline. The synergy between the
personal perception and the courts culture of judicial independence is critical
in helping the newcomer adapt to a whole new universe of judicial thinking and
action.
A third requirement for ensuring the independence and impartiality of a
judge, whether national or international, lies in the transparent nature of the ju-
dicial process. As Justice Cullen stated in his lecture on the judge and the public,
quoting Jeremy Bentham, publicity is the best guarantee of probity.192 Invoking
Lord Diplock, Justice Cullen added that not being hidden from the public ear
and eye is a safeguard against judicial arbitrariness193 and a source of public
condence in the administration of justice.
Fourth, judicial impartiality cannot be ensured without a reasoned decision.
Giving clear reasons for a judgment and bringing to light the judges reasoning
process are essential safeguards against judicial wrongdoing.
Thus, the reciprocal relationship between public respect for the courts and
the judges impartial comportment is enhanced by the openness of proceedings
and reasoned judgments, which also generate public respect for the courts.
The impartiality and independence of judges is typically ensured in national
constitutions and statutes, and in the statutes of international courts and tribu-
nals, but it is also rooted in unwritten conventions and traditions of judicial integ-
rity. Such legal and constitutional guarantees are essential, but insucient.
On the national plane, the selection and appointment of judges may in some
circumstances endanger the principle of separation of powers, and hence the in-
dependence of the judiciary. After all, the methods of selection of judges and their
tenure primarily raise questions about their independence; it scarcely bears re-
peating that a dependent judge can hardly be impartial. Judicial appointments by
the executive can be consistent with judicial impartiality and independence only
if security of tenure is guaranteed, if not permanently, then at least for a reason-
192 Lord Cullen, The Judge and the Public, 1999 Scots L. Times (News) 261, 261B62.
193 Id. at 262.
166 Chapter 2
able period of time. Thus, a trial by a Scottish sheri, whose appointment was
subject to a one-year limit194 and to the power of recall195 by the lord advocate
during that period, ran afoul of Article 6(1) of the European Convention on Hu-
man Rights, which guarantees trial by an independent and impartial tribunal. The
court therefore remitted the case for a new trial, to be held by a permanent sher-
i.196 Another decision held, in contrast, that a judge appointed for a three-year
period without a power of recall, had adequate security of tenure to constitute an
independent and impartial tribunal in conformity with Article 6(1).197
On the international plane, the political environment in which international
courts, especially international criminal courts, function brings greater attention
to the credibility of the institution, and the performance of the international judge
as an independent and impartial arbiter is constantly under scrutiny.
To maintain the judiciarys reputation for impartiality, the institution must
have a variety of internal mechanisms either to lter out potential bias or to cor-
rect it before the result becomes nal. One such mechanism is multijudge panels.
At the ICTY, all trials are conducted by a bench of three judges and appeals by
a bench of ve, in some categories preceded by the determination of good cause
by a bench of three. A majority of these judges must agree on the outcome and
the rationale. This structure prevents a single member who may be biased from
inuencing the result. The judges, moreover, discuss the case among themselves
prior to agreeing on a decision, and this discussion helps to correct any latent bi-
ases, because a judge is confronted with, and has to respond to, logical arguments
of his colleagues. Another mechanism is appellate review. In the ICTY, the right
of appeal is granted to both parties. This right is also recognized by many inter-
national instruments, although with some limitations. Appellate review seeks to
ensure that decisions of lower courts are accurate and uniform, and that injustice
is not committed. Allegations of bias by trial judges can also be raised at this
stage. Review enhances judicial independence in another way: by correcting judi-
cial error internally, it reduces the need for other institutions to step in and deal
with abuses or mistakes within the court system. Another mechanism that can be
mentioned is internal committees and guidelines, which ensure compliance with
judicial ethics.
II. International Courts

a) Selection of Judges
As with national judges, it is often asked whether judges who sit on international
courts enjoy sucient security of tenure for independence and impartiality. In
the case of my court, the ICTY, the judges are nominated by member states of the
194 Starrs v. Ruxton, 1999 Scot. Crim. Cas. Rep. [SCCR] 1078 (H.C.J.).
195 Id. at 1079.
196 Id. at 1080
197 Kearney v. Her Majestys Advocate, No. XC917/03 (Scot. H.C.J. Dec. 17, 2004) (unpub-
lished).
United Nations, short-listed by the Security Council, and then elected by the UN
General Assembly.198
Judges of the International Court of Justice (ICJ) must be elected by both
the General Assembly and the Security Council; and those of the International
Criminal Court (ICC) by an assembly of state parties.199 Unlike federal judges in
the United States, none of us holds tenure for life; nor, unlike those in the United
Kingdom, until a mandatory retirement age. Instead, we are elected for a speci-
ed term (in my own case, four years; in the case of an ICJ judge, nine years), with
the possibility of reelection.200 In the International Criminal Court, except for the
rst election, which involved selection by lot to serve three, six, or nine years, the
nonrenewable term of oce is nine years.201
Judges of the European Court of Human Rights have six-year renewable
terms (subject to adjustments during the rst elections); and those of the Euro-
pean Court of Justice, six-year renewable terms.202 In the International Tribunal
for the Law of the Sea, judges serve for nine-year periods and may be reelected.203
In most international courts except the ICC, the terms are thus renewable.
Overt campaigning by judges may create a perception of inappropriate polit-
icization, not to mention distraction from the work at hand. Such campaigns are
incompatible with the dignity of the judicial function. I have thought at times that
a ban on direct electioneering by judges might well be attractive. It would cer-
tainly raise some practical problems, for example, campaigning by judges might
simply be replaced by proxy campaigns by national governments, but, in principle
at least, keeping judges at one remove from the political process might benet
both the perceived impartiality of courts and the eciency and eectiveness of
individual judges. This step would not, however, eliminate political horse-trading
between governments that may have little to do with the personal qualications
of candidates for international judgeships. Lengthening the terms of judges would
add to the prospects of independence. Nonrenewable long terms oer the best
protection of independence but may sacrice essential expertise. A trade-o is
needed and it is open to question whether the present arrangements can be im-
198 Statute of the International Criminal Tribunal for the Former Yugoslavia, SC Res. 827,
annex, Art. 13 bis (May 25, 1993), 32 ILM 1203 (1993), as amended through May 19,
2003, available at <http://www.un.org/icty> [hereinafter ICTY Statute].
199 ICJ Statute Arts. 7B10; Rome Statute of the International Criminal Court, July 17,
1998, Art. 36, 2187 UNTS 3 [hereinafter ICC Statute].
200 ICJ Statute Art. 13(1); ICTY Statute, supra note 198, Art. 13 bis(3).
201 ICC Statute, supra note 22, Art. 36(9)(a), (b), UN Doc. A/CONF.183/9, July 17, 1998,
202 European Convention for the Protection of Human Rights and Fundamental Free-
doms, Nov. 4, 1950, Art. 23(1), Eur. T.S. No. 5, 213 UNTS 222 (entered into force Sept.
3, 1953); Treaty Establishing the European Community, March 25, 1957, Art. 233, 298
UNTS 11, as amended by Treaty of Nice, Feb. 26, 2001, 2001 O.J. (C 80) 1, consoli-
dated version, 2002 O.J. (C. 325) 1.
203 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982,
Annex VI, Art. 5, 1833 UNTS 397, 561 (entered into force Nov. 16, 1994).
168 Chapter 2
proved upon. I tend to believe that nonrenewable long terms provide the more
satisfactory solution.
Concern is often expressed that a judge on an international court who is
apprehensive about the prospects of renomination by his government or reelec-
tion may decide cases so as not to antagonize powerful UN member states, and
especially his own state. Of course, the problem typically arises in courts that deal
with disputes between states, but even in international criminal courts, which try
individual defendants, a perception of bias in favor of or against a state may arise.
Let me rst state that I have no doubt that any conscientious judge sitting on an
international court, any person who fully accepts the obligations inherent in the
judicial oce, decides cases before him only in accordance with the law and his
judicial conscience. But the possibility that the public may perceive a judge as
biased because of extrajudicial considerations counsels strongly for international
judges to be scrupulously impartial in their decision making. Anything else would
be antithetical to the very notion of judicial oce especially when a judge makes
a ruling, or writes an opinion, that could be seen as favoring his own state. Such
bias could even be perceived in international criminal courts that deal with indi-
vidual criminal liability; for example, if a judge refused to order his own govern-
ment to produce documents. I am not suggesting, of course, that a judge should
alter his view as to the legal outcome in such a case, because disadvantaging a state
solely to remove such a perception would be just as wrong. I merely underscore
the importance of being sensitive to the possibility of a public perception of bias.
Judges, as a rule, do not explain their rulings in press interviews, and so cannot re-
spond directly to public criticism or allegations of partiality in the media. Instead,
the judges put their eort into producing a reasoned and persuasive opinion that
elaborates, in language that should be understandable both to lawyers and to the
general public, the rationale for a particular decision. If the opinion is persuasive
and clearly explains why the decision was correct in terms of law, it will resonate
as such with the public and go a long way to counter possible allegations of bias.
Nevertheless, the prospects of reelection create a problem that may aect a
judges decision-making process. In the U.S. domestic law system, it is often sug-
gested that the election of state court judges renders them less independent and
more apt to resolve cases according to the preferences of the voting public. This
predicament is particularly characteristic of criminal matters in which it often
pays to be perceived as tough on crime and of high-prole social issues, such
as the First Amendment religion cases. In the United States, the independence of
state judges has also been threatened by the need for those that are elected (rather
than appointed) to amass campaign contributions to gain or retain oce.
Comparable cases can readily be imagined in an international criminal tri-
bunal. For example, a judge may believe that, under the facts and the law, a given
defendant should not be found guilty of the charges against him; but the judges
renomination by his government or reelection is scheduled to take place within
the next year, and this defendant is reviled throughout the world as a major war
criminal. Judges driven by career concerns rather than by a desire to reach the
right result might be tempted to shade their rulings regarding such a defendant so
as to convict him and make their constituencies happy. Once again, it is primar-
ily the culture of judicial integrity that we must rely on to foreclose such a result,
although considerable weight must be given to the expectation of states that the
judges they nominate will exercise their duties with complete impartiality.
b) The Role of the ICTY President

A subtler concern about inuence presents itself regarding the ICTY presidents
power over the makeup of judicial panels. As president of the Tribunal, I assign
the full panel of judges for both trials and appeals proceedings. Thus, when a de-
fendant is brought before the ICTY, it is up to me to determine which three judges
will decide his fate at the trial level. Similarly, when a verdict has been entered at
the trial level and the defendant and prosecutor le their appeals, I am responsi-
ble for naming the bench of appeals judges. The ICC system is somewhat similar,
as the Courts presidency assigns both trial chambers and pretrial chambers.204
How much discretion does this power to assign judges amount to in practice? In
terms of raw numbers, the structure of the ICTY leaves me much less leeway at
the appeals level: for any given appeal, I must select a ve-judge panel from a total
of seven judges in the appeals chamber.205 But at the trial level, I appoint a trial
panel of three from one of the already existing trial chambers. A trial chamber is
composed of three permanent judges and up to six ad litem judges. Each panel
selected must include at least one of the permanent judges.206 Much can be said
for the random assignment of cases to judges and benches. Random assignment
is typically practiced in U.S. federal district courts and courts of appeals. It has
the advantage of preventing judge shopping by the parties and lobbying by a
204 ICC Statute, supra note 22, Art. 61(11); Regulations of the Court, May 26, 2004, UN
Doc. ICCBBD/01B01B04, Art. 46, available at <http://www.icc-cpi.int>.
205 See the following provisions of the ICTY Statute, supra note 198. Article 12(3): Seven
of the permanent judges shall be members of the Appeals Chamber. The Appeals
Chamber shall, for each appeal, be composed of ve of its members. Article 14(3):
After consultation with the permanent judges of the International Tribunal, the
President shall assign four of the permanent judges elected or appointed in accor-
dance with Article 13 bis of the Statute to the Appeals Chamber and nine to the Trial
Chambers. And Article 14(4):
Two of the permanent judges of the International Tribunal for Rwanda elected or ap-
pointed in accordance with article 12 bis of the Statute of that Tribunal shall be assigned
by the President of that Tribunal, in consultation with the President of the International
Tribunal, to be members of the Appeals Chamber and permanent judges of the Inter-
national Tribunal.
206 Id., Art. 12(2). As president, I have the authority to assign judges from one cham-
ber to another, but this power is seldom exercised because judges sit on multiple
cases at any given time, and to move them among the chambers would be disruptive
and might result in contamination. See ICTY Rules of Procedure and Evidence, as
amended, UN Doc. IT/32/Rev.36, Rule 27(C) (2005) [hereinafter Rules] (permitting
the president at any time temporarily [to] assign a member of a Trial Chamber or of
the Appeals Chamber to another Chamber).
170 Chapter 2
judge to be assigned a particular case. Judge shopping is not a problem in inter-

national criminal courts, but a judges lobbying to be on a particular case might
be. Why, then, have international criminal tribunals not adopted random assign-
ment? There are some good reasons: In most instances, trials at the Tribunal are
very long and complicated. Their date of conclusion is hard to predict with any
measure of condence. At the same time, the Tribunal is under constant pres-
sure from the United Nations to ensure that it operates at maximum eciency.
One trial must follow another, with a minimum gap. These two factors combine
to make it impracticable for a lottery to determine the assignment of cases to a
trial chamber. Even though assigning cases to a trial chamber and selecting the
three judges to sit on them falls to the president, in making those assignments he
does not act according to his arbitrary discretion or in response to any lobbying
by judges. Rather, the assignment of cases is determined by practical consider-
ations.
To ensure that the Tribunal operates at maximum capacity, a working group
keeps a constant eye on the progress of cases through the Tribunal, and it identi-
es which cases are ready for trial and which trial chamber is available to take
them. In this respect, the assignment of cases is determined by matters beyond
any one partys control. For example, the working group may in January determine
that if a trial in one of the trial chambers is completed by June, then case x, which
is expected to be ready for trial at that time, should be assigned to that chamber
in early July. However, any number of things may prevent that trial chamber from
completing its case in June as expected, or case x from being trial ready in early
July as expected. A case that was projected for assignment to the rst trial cham-
ber may end up being assigned to another one. Thus, while not a lottery, our as-
signment process partakes of a sort of controlled randomness.
As another, and in some ways even more important, example of the power of
the president to constitute a bench that will deal with a particular case, the Yugo-
slavia and Rwanda Tribunal presidents actually control the permanent makeup of
the appeals chamber itself the body that has the nal say on the law that governs
both Tribunals. The mechanics of this power require some explanation.207 The two
Tribunals share a single seven-judge appeals chamber, of which only one member
is dened by statute: the ICTY president. That leaves six judges, four of whom
are named by the Yugoslavia Tribunal president, and two by the Rwanda Tribunal
(ICTR) president. They must choose from the permanent judges elected to their
respective Tribunal, after consultations with the other judges of their Tribunal. In
theory, then, the ICTY president could stack the deck in the appeals chamber to
lock in ideological uniformity. As evidenced by the dissents and vigorous debate
in the appeals chamber, this does not happen because of the prevailing culture of
judicial integrity.
The self-regulating culture of the Tribunal also curtails my leeway to some
extent, since transparent workload surveys show how the cases are allocated
among the judges. Another important check on my activities stems from my posi-
207 ICTY Statute, supra note 198, Art. 14.

tion as an elected president, which makes me answerable to my colleagues. Under

our system, the Tribunal must rely on the conscientious goodwill of the president
and the institutions culture of impartiality, as watched over by his colleagues, to
avoid inappropriate ideological control over panel memberships. But ultimately
the integrity of the system rests on the integrity of all the judges, so that the com-
position of the bench should have no predictable eect on the judicial result. In
some ways, this last reection holds true for judicial impartiality more generally:
the best defense of that principle lies in the culture of judicial independence and
integrity, which must be fostered at the Yugoslavia and Rwanda Tribunals and in
legal settings throughout the world.
The presidents role as head of the institution poses other potential prob-
lems. Under the Statute, the president is also an appeals judge and the presid-
ing judge of both the ICTY and the ICTR appeals chambers.208 As the head of
the institution, the president of the Tribunal has a public, nonjudicial function
and is required to make representations to the Security Council and the Gen-
eral Assembly regarding the work of the Tribunal and the implementation of its
mandate. The presidents role as spokesperson for the Tribunal involves him in
diplomatic and political functions, but that function may not detract from, or im-
pinge upon, his work as a judge of the Tribunal and the presiding judge of the ap-
peals chambers. In representing the Tribunal before the Security Council and the
General Assembly, the president must explain the work of the Tribunal and try
to ensure maximum political and nancial support for its continued operation.
He must also protect the Tribunal as a whole from inappropriate encroachment,
even by the Council. An example may be useful here. Following my statement to
the Council on October 9, 2003, I was asked by the representative of the United
Kingdom to describe the appropriate guidance for the Council to give the Oce
of the Prosecutor in its preparation of additional indictments. I answered:
It is entirely appropriate for the Council to dene ... broad goals and objectives. I must
say that it would not be appropriate for the Council to go into great detail in such
directives, because such directives should not encroach upon ... prosecutorial inde-
pendence ... . In other words, broad guidelines, yes; specic guidelines that encroach
on her prosecutorial independence, no.209
A presidents relations with the prosecutor raise yet another set of questions. In
civil law jurisdictions, judges and prosecutors are sometimes interchangeable;
they both belong to ministries of justice and are not subject to strict mores pro-
hibiting association and most contacts. In common law jurisdictions, however, it
is inappropriate for a judge to have any dealings professional or other with
the prosecutor, outside, as a general rule, inter partes contacts in the courtroom
or in the judges chambers. At the Tribunal, the judges or the chambers are one
of its three organs, and the prosecutor and the registrar are the others. Each of
208 Id., Art. 14(2).

209 UN Doc. S/PV.4838, at 30 (2003).
172 Chapter 2
the three shares a common interest in ensuring the ecient disposal of cases and
an adequate supply of resources from the international community. Coordina-
tion is thus essential to the smooth and ecient functioning of the institution. To
this end, the president meets with the prosecutor and/or the registrar to discuss
administrative matters related to the Tribunals functioning, and at times they
appear jointly to make public statements regarding the Tribunals work and to
attend various ocial functions. Communications by the prosecutor to the Se-
curity Council must be channeled through the president. However, it is clearly
inappropriate for the president and the prosecutor to discuss any judicial matters,
or any of the cases pending before the Tribunal, that could give rise to any appre-
hension of bias on the presidents part.
c) When Judges Should Recuse Themselves

Another possible bias that could endanger the public perception of impartiality of
the judiciary would be a preexisting preference for a particular outcome. Judges
are expected to approach any case brought before them with openness, bearing
in mind the presumption of innocence of the accused, and with the intention to
reach a decision only after having heard from both parties and having reviewed
the facts and the applicable law. This open-mindedness is crucial to solidifying
public and governmental respect for the courts. It indicates to every litigant that
he will have a fair day in court because the judges are willing to listen to his argu-
ments and, should they have merit, hold for him.
Of course, judges are not empty vessels that the litigants ll with content.
Judges are selected, at least in the international courts and in many countries
such as the United States and the United Kingdom, from prominent members
of the legal profession. They already have a wealth of experience, as practitioners
or academics, or sometimes government ocials. At some point in their judicial
career, they will be called upon to rule on issues they had considered as practicing
lawyers or civil servants, or written about as academics. These situations raise
the question of whether a judge should recuse himself from a given case, on the
basis either that he cannot be impartial or that his impartiality can be questioned
by a reasonable observer. These two considerations are related, but separate. In
the rst scenario, if a judge concludes that he cannot be impartial because he has
already formed an opinion on the issue, he must, of course, recuse himself. This
test can be described as subjective. In these circumstances, he is unable to act as
a judge to weigh competing legal positions and assess the merits of each partys
case. This point is particularly cogent when the judge holds a rm view that is
arguably inconsistent with prevailing law.
The second scenario is more complicated. There, the judge actually concludes
that he can act impartially in the case, but that others may reasonably perceive
him as partial.210 This test can be described as objective. Here, the judge recuses
himself not because he cannot exercise his judicial function, but to preserve the
210 See Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet
Ugarte, [1999] 1 All E.R. 924 (H.L.) (Pinochet II).
integrity of his court and the concept of law. A well-known British jurist, Lord
Hewart, famously remarked eighty years ago in Ex parte McCarthy that [j]ustice
must not only be done, but should manifestly and undoubtedly be seen to be
done.211 In some situations the reputation of the judiciary may be compromised if
even an appearance of bias is created, and caution and concern for the reputation
of the court therefore often counsel recusal.
Three such situations come to mind. The most obvious is where the judge
may have a nancial or similar stake in the outcome.212 Even though he may con-
sider that personal interest unimportant, the public may justly question the im-
partiality of someone who stands to prot from his own decision. In the second
scenario, the judge has a strong personal connection to one of the parties. If this
connection may suggest to outside observers that the judge is likely to be swayed
by it, recusal is again called for. Care must be taken, however, that judges do not
feel forced to step aside from cases when they are merely acquainted with some of
the litigants, or loosely connected to them in some other way. To require recusal,
the connection must be so strong as to prompt a reasonable observer to question
the judges ability to render an impartial judgment.
The third, and perhaps the most dicult, situation involves the judges pre-
vious public expression of an opinion that could be viewed as prejudging the
case before him. The controversy in the ICJ Wall case as to whether Judge Nabil
Elaraby should recuse himself because of previous statements about the Palestin-
ian question is an example.213 My own Tribunal faced this question a few years
ago. In Prosecutor v. Furundija, the defendant sought on appeal to disqualify the
presiding trial judge (and to vacate the opinion in which this judge had partici-
pated). The judge (Florence Mumba) had been a member of the UN Commission
on the Status of Women, which investigated allegations of mass and systematic
rape in the former Yugoslavia and called for their prosecution by the ICTY.214
The defendant, who was charged with torture and aiding and abetting the war
crime of outrages upon personal dignity, including rape, argued that this judges
management of his trial created the appearance of partiality because a reasonable
observer could have concluded that she used the trial and judgment to promote
the legal and political agenda of the Commission on the Status of Women, which
she had helped to establish.215 The appeals chamber rejected the defendants claim
and elaborated what I believe is a workable rule for deciding when a judge should
disqualify himself. This principle covers the examples of bias, real or perceived,
that I gave earlier; a judge should recuse himself if there is a showing of actual
211 Rex v. Sussex Justices, ex parte McCarthy, [1924] 1 K.B. 256, 259.
212 See, e.g., Stephen G. Breyer, Judicial Independence in the United States, 40 St. Louis
U.LJ. 989, 994 (1996).
213 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Terri-
tory, Order (Intl Ct. Justice Jan. 30, 2004).
214 Prosecutor v. Furundija, Judgment, No. ITB95B17/1BA, paras. 169B70 (July 21,
2000).
215 Id.
174 Chapter 2
bias or an appearance of bias. The latter can be manifested in two ways: rst, if
the judge is a party to the case, or has a nancial or proprietary interest in the
outcome of a case, or if the Judges decision will lead to the promotion of a cause
in which he or she is involved, together with one of the parties;216 and second, if
the circumstances would lead a reasonable observer, properly informed, to rea-
sonably apprehend bias.217
I am condent that this rule is workable. Indeed, it was recently followed by
the Special Court set up to prosecute atrocities committed during the civil war in
Sierra Leone. The defendants had requested that the courts president be disquali-
ed because, in a book he had previously published, he had written that the armed
organization to which the defendants belonged was guilty of crimes against hu-
manity.218 The president refused to disqualify himself, but his colleagues disagreed
and ordered his recusal.219 They concluded that a reasonable bystander who read
the passages in question could have legitimate reason to fear that the judge who
wrote them lacked impartiality.220 Notably, the recused judge accepted the deci-
sion and the rationale. He stated that, while he held no preconceived views on
the guilt or innocence of the defendants, his earlier criticisms of the organization
to which they belonged could give rise to the perception that he could not judge
them with an open mind.
A recent Scottish decision introduced additional elements into the calculus
of considerations that must be balanced: the platform the judge had used to pub-
lish his out-of-court comments and their tone and style. In this case, where the
High Court of Justiciary was asked to apply judgments of the Strasbourg Court as
the law of Scotland, the bench of three ruled for the dismissal of a criminal appeal.
The presiding judge published an article shortly after the decision in which he
strongly criticized the European Convention on Human Rights. Apart from mak-
ing hostile references to the European Convention, the article quoted an earlier
lecture by the judge concerned warning that the Canadian Charter on Human
Rights based on the European Convention would provide a eld day for crack-
pots, a pain in the neck for judges and legislators, and a goldmine for lawyers.221
On appeal, the court stated that the article would create in the mind of an in-
formed observer the apprehension of bias against the Convention and the rights
deriving from it. The court attached particular importance to the tone of the ar-
216 UN Doc. S/PV.4838, at 30 (2003).

217 Id.
218 Prosecutor v. Sesay, Decision on Disqualication of Justice Robertson from Appeals
Chamber, No. SCSLB2004B15BAR15, paras. 1B6 (Mar. 13, 2004) (quoting Georey
Robertson, Crimes Against Humanity (The Struggle for Global Justice (2002)).
219 Id., para. 18.
220 Id., para. 15 (stating that [t]he crucial and decisive question is whether an indepen-
dent bystander so to speak, or the reasonable man, reading [the relevant passages
from Crimes Against Humanity] will have a legitimate reason to fear that Justice Rob-
ertson lacks impartiality).
221 Hoekstra v. Her Majestys Advocate, 2000 SCCR 367, 368 (H.C.J.).
ticle, which it found suggestive of hostility to the operation of the Convention in

Scotland. The situation would have been dierent, said the court, had the judge
published an article in a legal journal, phrased in moderate language, that dis-
cussed the drawbacks of incorporating the Convention into the law. The court
went on to say: But what judges cannot do with impunity is to publish either
criticism or praise of such a nature or in such a language as to give rise to a legiti-
mate apprehension222 that they cannot apply that branch of the law impartially.
Thus, the presiding judge did not pass the objective test of impartiality, and the
appeal on which his bench had decided had not been decided by three impartial
judges. The court ordered that further proceedings be conducted by three dier-
ent judges.
Also worth mentioning in the recusal context is an interesting and, gener-
ally speaking, rare issue that presented itself at the Yugoslavia Tribunal in the
elibii case. Judge Elizabeth Odio Benito, who was on the trial panel in elibii,
was elected as the second vice president of Costa Rica partway through the tri-
al but continued to serve as a trial judge. On appeal in elibii, the defendants
contended that Judge Odio Benitos position in domestic government meant that
she no longer possessed the necessary judicial independence required by interna-
tional law.223 The appeals chamber appeared to acknowledge that active service
as a member of a national executive branch might be incompatible with service
on the Yugoslavia Tribunal.224 In the circumstances of Judge Odio Benitos case,
however, the chamber noted that she had declined to assume any vice presiden-
tial functions until completing her duties on the trial panel in elibii.225 If she
had been serving in an active capacity as vice president while still serving on
the elibii bench, or had drawn any income from her government, the appeals
chamber would have been much more likely to nd an appearance of impropriety.
Under those circumstances, her dual loyalties as a political ocial of her nation
and member of its political hierarchy, on the one hand, and as an international
judge whose positions on the case before her had nothing to do with her nation-
ality, on the other hand might well have appeared to be a conict of interest to a
reasonable observer.
A lesson that can be derived from these cases is that, while the judge whose
impartiality is challenged should be the rst to assess whether to recuse himself,
there may also be occasions when the judge refuses to stand aside, in which case
the other members of the court may revisit and rule on the question. Those mak-
ing such a decision must be at pains to do so in the proper spirit of fairness and
responsibility.
These kinds of issues are likely to recur at the international tribunals. The
judges have usually been chosen precisely because of their expertise in interna-
222 Id. at 382.

223 Prosecutor v. Delali, Judgment, No. ITB96B21BA, para. 677 (Feb. 20, 2001).
224 Id., para. 683.
225 Id., para. 684.
176 Chapter 2
tional or criminal law, typically as evidenced by a lengthy trail of publications, ju-

dicial decisions, or public statements. Their having spoken or written on some of
the issues that come before them in their role as judges is to be expected. Usually,
if previous writings have not prejudged the responsibility of specic individu-
als or prejudged contested factual situations, I would think that a judges prior
comments in an academic context should not be worthy of recusal, certainly not
when the judge has the openness of mind to be willing to reconsider his prior
position. But drawing lines may be somewhat dicult: when does the expression
of a purely academic view about a legal issue in international law raise the appear-
ance of partiality?
My own Tribunal is currently striving to determine the best way to resolve
such questions when a judge declines to step down of his own accord. Our Rules
provide that all such issues are resolved by the bureau, the ve-judge body com-
posed of the president and vice president of the Tribunal and the presiding judges
of the three trial chambers.226 But rst, the presiding judge of the chamber at-
tempts to resolve the issue through informal consultation with the judge whose
impartiality has been challenged. If a mutually satisfactory resolution cannot be
reached, the question is referred to the bureau, whose decision on recusal is not
subject to appeal. As one might imagine, there are diering opinions about who
should be the ultimate authority on this matter.
d) The Courts and the Public

As the courts decide an increasing number of important issues in public life, they
become more visible to the public and, of course, the media. When certain public
or private sectors disapprove of decisions by the courts, they often express this
criticism openly. Of course, the right to such public expression is an integral ele-
ment of a free society and a free press. As public institutions, courts should not be
immune from criticism. On occasion it is even benecial. Constructive criticism
facilitates self-examination and self-improvement by the judiciary. In addition, if
the interpretation of a particular law is being criticized, it may motivate the legis-
lature to review the law and improve it, or, in the case of international tribunals,
to seek amendment of the governing statute or rules.
But sometimes the criticism is unfounded and excessive, such as when it is
motivated solely by dislike of the result, without any regard to the courts under-
lying reasoning or the supporting law; or when particular judges are targeted for
reasons unrelated to their professional performance. While responsible and mea-
sured criticism of a judgment is legitimate, attacks on the court, its prestige, and
its credibility are rarely so. Abusive attacks on a judge or a court may strike at the
226 Rule 15(B) of the Rules of Procedure and Evidence, states:

Any party may apply to the Presiding Judge of a Chamber for the disqualication and
withdrawal of a Judge of that Chamber from a trial or appeal upon the above grounds.
The Presiding Judge shall confer with the Judge in question, and if necessary the Bureau
shall determine the matter. If the Bureau upholds the application, the President shall
assign another Judge to sit in place of the disqualied Judge.
administration of justice itself and may even be subject to contempt proceedings,

when available.227
The judges cannot cave in under this pressure, for it would amount to an
abandonment of their judicial function. While they have limited means of re-
sponding to such criticism, judges can do certain things to enhance the publics
understanding of their work. In the ICTY, and in some other courts, judges read
out an extensive unocial summary of every judgment they deliver, which is then
distributed to the press. A further solution is for the president or spokesperson to
engage the media in the service of the court by explaining and clarifying general
institutional goals and policies, while steering clear of comment on any pend-
ing case. Obviously, for a judge who decided a case, especially as one of several
judges, to interpret judicial decisions to the media would seldom be wise, and in
certain circumstances might be inappropriate. But in case of egregious error or
gross misrepresentation by the media, a correction by the judge cannot be entirely
excluded. Helping journalists report notable judicial decisions accurately so that
the public becomes better informed increases appreciation of the importance of
our work and is a legitimate public relations function.
Judicial independence is indispensable to a law-based society. Many impor-
tant structural safeguards facilitate judicial independence, such as lifetime tenure
and nonremovability until a certain retirement age. But judicial independence
also depends on public support for the judiciary as an institution, and to earn that
support the judiciary must appear scrupulously impartial in its decision making.
Together with delity to the law, impartiality is a means of ensuring the account-
ability of an independent judiciary in a democratic society and in the interna-
tional community.
M. The Contribution Made by International Criminal Tribunals to the

Effectiveness of International Law
The last twelve years have seen the birth of many institutions dedicated to the
prosecution of violations of international criminal law. The family that began
with the ICTY and ICTR has mushroomed to include the special court in Si-
erra Leone, the court in East Timor, the national court in Cambodia, the national
court in Iraq, the hybrid courts in Kosovo, the Special Chamber of War Crimes in
Sarajevo, and of course rst and foremost the permanent International Criminal
Court. These are impressive developments, especially if one considers that for
half a century, Nuremberg did not have a single successor. Apart from a few na-
tional-level trials, such as in France, Israel, and Germany, very little happened in
the fty years after World War II in terms of actual prosecutions for war crimes.
In this atmosphere, impunity ourished. Even so, this period saw the adoption of
some of the most important instruments of international humanitarian law and
the dramatic development of the treaty-based system dealing with crimes against
international law. There was also an evolving sense that the exercise of universal
227 Cullen, supra note 192, at 263.

178 Chapter 2
jurisdiction by national courts might to a degree ll the gap left behind by absence
of a successor to Nuremberg.
The ICTY and ICTR, as creatures established by the Security Council drawing its
authority from Chapter VII, have transformed the international legal landscape.
The tribunals proved even in the early stages of their existence that the interna-
tional investigation and prosecution of genocide, war crimes, and crimes against
humanity are credible and feasible. They also showed that the accuseds right to
a fair trial will be protected, demonstrating that international criminal justice is
indeed possible.
These tribunals were fashioned as powerful institutions, with the binding
authority of the Security Council radiating to all their orders. In reality, having
the theoretical backing of the Security Council did not always transform into an
eective exercise of power. Especially in the early years of the Tribunals exis-
tence, the great powers and NATO were not ready to carry out arrests manu
militari. Of course, such arrests are essential to the eectiveness of international
criminal tribunals. But power can be exercised in an innite variety of means,
such as pressure on governments, conditionality of aid, and negotiating for the
entry into NATO and the EU. We are now, in the early 2005, beneting from an
unprecedented political support of the international community, which resulted
in a large number of very senior indictees arriving at The Hague during the last
few months. During the last few years, the Security Council, NATO, the EU, and
the big powers have nally been giving full muscle to the orders of the tribunals
regarding the arrest of the still-missing senior indictees. This increasing enforce-
ment of arrest orders by the ICTY and the ICTR, while still imperfect, is already
changing the conversation on eectiveness of international courts. The growing
possibility of eventual arrest, conscation of assets, and the risk of travel abroad,
is having a growing impact.
With better enforcement, there has been increased political pressure brought
to bear on regions aected by serious violations of international humanitarian law.
Although the international community feels extreme outrage at serious violations
of humanitarian law, that reaction tends to wane with time. The political pressure
on the region to prosecute the criminals domestically, to institute adequate mea-
sures for the protection of victims and witnesses, and to take local measures to pre-
vent further atrocities diminishes over time unless there are frequent reminders to
the international community of the need to fully carry out our mission of delivering
justice to those principally responsible. The international criminal tribunals pro-
vide such reminders on a regular basis. Whenever the tribunals issue an indictment
or arrest warrant or insist on the provision of evidence or the protection of wit-
nesses, an international legal obligation arises. This obligation permits heightened
pressure by the international community in a direct and focused manner; failure to
comply with the tribunals can lead to censure by the Security Council.
The existence of international tribunals has encouraged domestic govern-
ments to take responsibility for trying and punishing perpetrators themselves.
Several jurisdictions are now bringing their own criminal statutes in line with in-
ternational humanitarian and international criminal law so that they can conduct
trials on their own territory. In the case of the former Yugoslavia, it is becoming
ever more certain that trials of serious violations of international humanitarian
law will increasingly be conducted by local judiciaries. This is in no small measure
due to the transfer of knowledge, evidence, and expertise from the ICTY to do-
mestic courts in the region. A key example is the recently established War Crimes
Chamber within Bosnia and Herzegovina, a joint project of the Tribunal and the
Oce of the High Representative. This Chamber is now fully operational, incor-
porating national and international judges as well as national and international
prosecutors. Certainly, the presence of such courts operating close to the scene of
crimes and close to the victims and the perpetrators will increase the awareness
and deterrent eect of international criminal law in the region.
As a result of the contributions of international tribunals, international hu-
manitarian law has grown far more in the last fteen years than it had in the
half-century following Nuremberg. There have been signicant advances in the
concept of the applicability of international criminal law to non-international
conicts. The ICTY has also given a robust, yet credible, reading to international
customary law. Clarifying crimes against humanity has been one of the Tribu-
nals most important contributions. Even more important, now that we see so
many non-governmental actors, is the fact that the tribunals have departed from
the post-WWII understanding of international law and held that not only state
ocials, but also non-governmental actors may be criminally liable for crimes
against humanity. The ICC Statute points in the same direction.
Another key contribution has been the development of a gender crimes juris-
prudence. Rape and violence against women have long been accepted as natural
consequences of war. The Nuremberg and Tokyo tribunals recorded a substantial
amount of evidence of sex crimes committed during WWII, but gave virtually no
treatment to these crimes in their judgements. The ICTY and ICTR have been
groundbreaking in this area. The tribunals have successfully prosecuted various
forms of sexual violence as instruments of genocide, crimes against humanity, and
crimes of war, thus developing a crucial area of international humanitarian law.
There is no question that important developments , apart from the substantive
area of international humanitarian law, have taken place with regard to general
principles of criminal law, particularly with regard to duress, superior orders, and
command responsibility. Perhaps most importantly, the tribunals have consider-
ably developed a comprehensive system of criminal procedure and evidence that
incorporates the procedural safeguards set forth in human rights treaties. This
was a pioneering eort, as Nurembergs procedural legacy was thin. One need
only to read the Statute, rules, and elements of crimes of the International Crimi-
nal Court to witness the impressive legacy of the tribunals.
The tribunals have also generated an unprecedented interest in humanitarian
law and in punishing those who violate it. War crimes and crimes against human-
ity have rmly entered the mainstream of political debate and U.N. decision-mak-
ing. The revival of international humanitarian law has encouraged various coun-
tries to adopt statutes under the principle of universality of jurisdiction, granting
competence to their national courts over violations of international humanitarian
180 Chapter 2
law committed in other states and enacting laws permitting the delivery of in-
dicted persons to an international criminal tribunal. National jurisdictions are
increasingly prosecuting war crimes cases, involving both crimes committed on
their own territory and crimes committed on foreign soil.
It is sometimes said that we must forego justice in order to preserve peace,
I believe that the two are mutually reinforcing and that each is necessary to the
preservation of the other. A good recent example of the eect of the ICTY on
peace and security in the former Yugoslavia is the unprecedented return of refu-
gees across ethnic lines in Bosnia and Herzegovina, an event that is a direct result
of the existence of the ICTY.
In broader terms, however, the ability of criminal tribunals to contribute
directly to peace is somewhat dicult to measure. For instance, observers have
suggested that the tragic events in Kosovo in 1999, which occurred long after the
ICTY was established and operational, demonstrated that the ICTY failed to pro-
duce the deterrent eect that the Security Council planned. Similarly, one could
suggest that the recent horrors in Sudan indicate an absence of a deterrent eect
on the part of international criminal law.
There is signicant force to these arguments. However, I do not think that
they are grounds for abandoning any claim to deterrence on behalf of interna-
tional criminal tribunals. We would hardly say that domestic criminal law has no
deterrent force simply because some citizens continue to commit murder or as-
sault. It is impossible to measure how many such crimes would occur were there
no system of punishment in place.
We are moving towards a situation where taken together, international
courts, mixed courts, and national courts, together with the principle of univer-
sality of jurisdiction approach a critical mass in which every leader will have to
think of the consequences of ordering or tolerating atrocities, leading to the more
eective deterrence.
The tribunals have demonstrated that international criminal law is feasible,
that international norms can and will be enforced. They have helped cement the
idea that rule of law is an integral part of the peace process. These developments
are undoubtedly encouraging, but it is clear that there is a great deal of hard work
ahead to ensure that international criminal law becomes primarily a tool of deter-
rence, and only secondarily of punishment.
As regards the ICC, its future eectiveness could be greatly improved by the
Security Council referring cases to it under Chapter VII. Speaking as an Ameri-
can scholar, I believe that it is in the interest of our country not to block such re-
ferrals to the ICC. I am happy such a referral is now a reality in the case of Darfur.
Our historical commitment to ending impunity, especially in situations such as
Darfur, and to establishing the rule of law globally, and thus preventing or deter-
ring atrocities, must be respected.
Over the years, the Security Council has played an important role by using
its power and prestige to ght impunity, to establish individual criminal respon-
sibility for perpetrators of atrocities and to impose sanctions on those who vio-
late human rights and humanitarian norms. The Councils decisions, taken under
Chapter VII, to establish ad hoc tribunals in 1993 and 1994 half a century after
Nuremberg were seminal moments. They led not only to the trial and pun-
ishment of senior gures responsible for atrocities in the Balkans and Rwanda,
but also to the creation of a whole new corpus of jurisprudence on international
criminal law, procedure and evidence a body that will be the historic legacy of
the ad hoc tribunals. Of course, much remains to be done to combat impunity
outside the areas covered by the jurisdiction of the ad hoc tribunals. The Council
has the power and the responsibility to do all it can to advance those goals.
I see the Councils referral under Chapter VII of the situation in Darfur
to the International Criminal Court as a critical next step in the historic evolution
of the anti-impunity principle. The referral underscores the world communitys
resolute commitment to the principle that perpetrators of such crimes against
humanity will be held to account. It also demonstrates the potential of Chapter
VII and its benecial uses in advancing accountability in all parts of the world.
N. War Crimes Law Comes of Age

The rapid developments of the last few years in the establishment of criminal
responsibility for serious violations of international humanitarian law have been
such as to require an assessment of their principal treatment.
On the institutional plane, the establishment of the ad hoc tribunals and of
the ICC are of cardinal importance. Once in danger of running out of defendants
in custody, both the ICTY and the ICTR now struggle to provide the many de-
tainees with speedy trials. Under international pressure Croatia has improved its
cooperation with the ICTY, as have the FRY and Serbia. An increasing number of
indictees have surrendered or been delivered to the ICTY. NATO and SFOR have
actively sought out indictees in Bosnia-Herzegovina. Some have been captured
manu militari and brought to The Hague. Several, including senior leaders, have
surrendered under pressure. The change of regime in Belgrade permitted the ar-
rest of Slobodan Miloevi. The trial of Miloevi, a former head of State, is an
historic event. Some of the principal leaders indicted for the atrocities however,
and especially Radovan Karadi and Radko Mladi, remain free but are forced to
hide from international justice.
The Security Council has considered establishing yet another Chapter VII
ad hoc tribunal, one that would have the power to prosecute senior members of
the Khmer Rouge leadership who planned or directed the commission of seri-
ous violations of international humanitarian law in Cambodia during the period
1975-1979. This proposal failed because of constant obstacles and procrastina-
tion by the regime of Cambodia. One of the issues before the Security Council
regarding this proposal was whether its powers under chapter VII encompass
punishing members of a defunct regime for crimes committed more than two
decades ago. Finally an agreement between the United Nations and Cambodia
on the establishment of a Cambodian Tribunal was reached in 2003.228 This court
228 U.N. Doc A/57/806, 6 May 2003.

182 Chapter 2
will be comprised of Cambodian and international judges, the former being in

the majority. Its subject matter jurisdiction will include genocide, crimes against
humanity, and grave breaches of the Geneva Conventions. An agreement was
also concluded between the UN Secretary-General and the Government of Sierra
Leone for the establishment of a special court in January 2002 to try those prin-
cipally responsible for serious violations of international humanitarian law, and
crimes committed under Sierra Leone law, in that country. The court, on which
national and international judges sit, applies both national (Sierra Leone) and in-
ternational law.229
Mixed tribunals have also been established in territories under UN adminis-
tration, such as Kosovo. In East Timor, a special Indonesian human rights court
has shown uneven results.230 The diversity of accountability mechanisms reveal
the challenge to give eect to [international law] principles taking into account
the unique needs and complexities of any given situations.231 The ICTY has issued
several important decisions that clarify and give a judicial imprimatur to rules
of international humanitarian law. The ICTR is overcoming the diculties that
have plagued it during its rst few years, but the cooperation of the government
of Rwanda has been problematic and diculties have arisen with regard to the
travel of witnesses from Rwanda to the ICTR in Arusha. Many of the principal
indicted persons involved in the Rwandan genocide have been arrested and are
in the Tribunals custody. Like the Hague Tribunal,232 the Arusha Tribunal has
rendered important decisions concerning its jurisdiction, the Security Councils
competence under Chapter VII of the UN Charter to establish the tribunal,233 and
questions of international humanitarian law. The Tribunal has issued some im-
portant judgments on genocide, including genocidal rape, and on crimes against
humanity. Its contribution to the elaboration of war crimes law has, however,
been more limited.
The work of both Tribunals demonstrates that international investigations
and prosecutions of persons responsible for serious violations of international
humanitarian law are possible and can be credible. No less, the rules of procedure
229 Sierra Leone, the Special Court Agreement, 2002 (Ratication) Act, 2002, CXXX
Sierra Leone Gazette No. II (7 March 2002); Agreement of 16 January 2002 between
the United Nations and the Government of Sierra Leone on the Establishment of a
Special Court for Sierra Leone; Statute of the Special Court for Sierra Leone pursuant
to Security Council Resolution 1315 (2000).
230 Finding a civilian ex-governor guilty of crimes against humanity, N.Y.T. Aug.14, 2002,
but acquitting military and police ocials of such crimes N.Y.T. Aug.15, 2002.
231 Address by David J. Scheer, Ambassador-at-Large for War Crimes Issues, The
Global Challenge of Establishing Accountability for Crimes Against Humanity, Uni-
versity of Pretoria, Centre for Human Rights, August 22, 2000, at 6.
232 See e.g .Prosecutor v. Tadi, No. IT-94-1-AR72, Appeal on Jurisdiction, paras. 28-40
(Oct. 2, 1995), 35 ILM 32 (1996) [hereinafter Interlocutory Appeal].
233 See e.g. Prosecutor v. Kanyabashi, No. ICTR-96-15-T, Decision on Jurisdiction (June
18, 1997), summarized by Virginia Morris in 92 Am. J. Intl L. 66 (1998).
and evidence each Tribunal has adopted now form the vital core of an interna-
tional code of criminal procedure and evidence.
The growing maturity of these tribunals has enhanced the importance of de-
cisions interpreting and applying rules of procedure and evidence and of general
principles of criminal law. The tribunals meticulous concern for due process and
the requirement of proving guilt beyond a reasonable doubt have led to lengthy
trials, with trials at the ICTY for example typically exceeding one year. Often, the
accused spend years in a detention unit awaiting trials and during trials. Some
observers ask whether the ICTY and the ICTR will be able to complete the trials
of those awaiting trials before the international communitys interest and willing-
ness to fund them run out. The possibility of referring cases, especially of lower-
level perpetrators, to courts in the former Yugoslavia would be appropriate and
is being implemented (exit or completion strategy) provided, however, that
the alternative forum is able to comply fully with due process and international
human rights.
Creating a positive environment for the establishment of a standing interna-
tional criminal court, the achievements of the ad hoc tribunals have contributed
to the ending of impunity, injected new vigor into the concept of universal juris-
diction and sparked the readiness of States to prosecute persons accused of seri-
ous violations of international humanitarian law. It is less certain that the ad hoc
tribunals have had a deterrent impact, but deterrence is only one of the pertinent
considerations. Vindication of justice and ending the cycle of impunity are criti-
cally important. The more often war criminals are arrested and brought to justice
before national or international tribunals, the better the prospects for deterrence.
The Pinochet case is likely to have some eect, hopefully in deterring violations,
or at least in creating the sanction of making it dangerous for war criminals to
travel to foreign countries. Much will depend on the eectiveness of the ICC, and
even more, on the readiness of third States to assert jurisdiction.
As groundbreaking as these institutional developments are, the rapid growth
of the normative principles of international humanitarian law equals them in sig-
nicance. International humanitarian law has developed faster since the begin-
ning of the atrocities in the former Yugoslavia than in the prior four and a half
decades since the Nuremberg Tribunals and the adoption of the Geneva Conven-
tions for the Protection of Victims of War of August 12, 1949.
Wolfgang Friedmanns important book, The Changing Structures of Inter-
national Law, noted in 1964 that international criminal law recognized as crimes
only piracy jure gentium and war crimes.234 Despite the potential for a more ex-
pansive vision even in 1964,235 the criminal aspects of international humanitarian
law remained limited and the prospects for its international enforcement poor,
right up to the eve of the atrocities committed in Yugoslavia. How dierent the
law is today!
234 Wolfgang Friedmann, The Changing Structure of International Law 168 (1964).
235 See generally Meron, Is International Law Moving towards Criminalization? 9 Eur. J.
Intl L. 18 (1998).
184 Chapter 2
There is, of course, a synergistic relationship among the Statutes of the in-
ternational criminal tribunals, the jurisprudence of the ICTY and the ICTR, the
growth of customary law, its acceptance by States, their readiness to prosecute
oenders under the principle of universality of jurisdiction, and the establishment
of the ICC. For example, the 1995 Tadi appeals decision of the Hague Tribunal,
which conrmed the applicability of some principles of the Hague law to non-
international armed conicts and the international criminalization of violations
of common Article 3 of the Geneva Conventions in such conicts, clearly helped
create the environment for some of the developments in the ICC. Perhaps the
single most important contribution by the ICTY has been to recognize that some
violations of the Geneva law and of the Hague law can be committed in non-in-
ternational armed conicts and thus, in short, to help extend the notion of war
crimes to such conicts.
The ad hoc Tribunals have also contributed to a robust reading of custom-
ary humanitarian law.236 Even though the ICTYs early jurisprudence on grave
breaches of the Geneva Conventions and on the classication of conicts have
erred on the side of legal formalism,237 the ICTYs recent decisions have brought
about a correction of the course. One of the most signicant contributions has
been the jurisprudence on the international criminalization of rape as a crime
against humanity, as a recognized war crime under customary international law
punishable under Article 3 of the ICTY Statute, and through the vehicle of Article
3 of that Statute, as an outrage upon personal dignity and as torture, under com-
mon Article 3 to the Geneva Conventions.238
This robust normative development can best be illustrated by the crimes de-
ned in the ICC Statute. One is struck by three aspects of the scope of crimes
under international humanitarian law in the Rome Statute. First, many partici-
pating governments appeared ready to accept an expansive concept of customary
international law without much supporting practice. Second, there is an increas-
ing readiness to recognize that some rules of international humanitarian law once
considered to involve only the responsibility of States are also a basis for individ-
ual criminal responsibility. There are lessons to be learned here about the impact
of public opinion on the formation of opinio juris and customary law.
Third, the inclusion in the ICC Statute of common Article 3 and crimes
against humanity, the latter divorced from a war nexus, connotes a certain blur-
ring of international humanitarian law with human rights law and thus an incre-
mental criminalization of serious violations of human rights. Signicantly, Article
36 of the ICC Statute on the qualications of judges requires competence not only
in international criminal law and international humanitarian law, but also in hu-
man rights law. Although important human rights conventions, such as the Con-
236 See e.g., Tadi Interlocutory Appeal, supra note 20.

237 See Meron, Classication of Armed Conict in the Former Yugoslavia: Nicaraguas
Fallout, 92 Am. J. Intl L. 236 (1998).
238 See the Judgement of the ICTY Appeals Chamber in Prosecutor v. Kunarac and oth-
ers (12 June 2002), Case No. IT-96-23& IT-96-23/1-A.
vention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, have established a system both of universal jurisdiction over certain
crimes and of international cooperation and judicial assistance between States
parties, a process has begun whereby some serious violations of human rights are
being subjected, additionally, to the jurisdiction of international criminal courts.
Another important development is the growing recognition that the eleva-
tion of many principles of international humanitarian law from the rhetorical to
the normative, and from State responsibility to individual criminal accountability,
creates a real need for the crimes within the ICCs jurisdiction to be dened and
applied with the clarity, precision and specicity required for criminal law, in ac-
cordance with the principle of legality (nullum crimen sine lege). The adoption of
the ICC elements of crimes is an important step in that direction.
These developments could not have taken place without a powerful new co-
alition driving further criminalization of international humanitarian law. Much
like the earlier coalition that stimulated the development of both a corpus of in-
ternational human rights law and the mechanisms involved in its enforcement,
this new coalition includes scholars who promote and develop legal concepts and
give them theoretical credibility, NGOs that provide public and political support
and means of pressure, and various governments that spearhead lawmaking ef-
forts in the United Nations and in other multinational fora.
These institutional and normative developments will generate further growth
of universal jurisdiction. Of course, the oenses subject to the jurisdiction of in-
ternational criminal tribunals should not be conated with those subject to the
universality of jurisdiction principle, but there is some synergy between the two.
The list of crimes included in the ICC Statute will inevitably inuence national
laws on crimes subject to universal jurisdiction. The broader signicance of the
ICC Statute thus exceeds its immediate goals. Although the ICC will not be able
to try more than a small number of defendants, its importance lies in the principle
of denying impunity to those responsible for serious violations of international
humanitarian law, in fostering deterrence, and in providing an international crim-
inal jurisdiction when State prosecutorial or judicial systems fail to investigate
and prosecute serious violations of international humanitarian law. It is in the
stimulation of national prosecutions that a standing international criminal court
may make its most important contribution.
Chapter 3: The Law of Treaties
A. Normative and Multilateral Treaties

Human rights and humanitarian law treaties are among the most important nor-
mative treaties of our time. Other general multilateral conventions, especially in
public law matters such as the environment, arms control and international or-
ganizations, are also normative, performing important codicatory functions for
the international community. They enact uniform rules for the State parties1
and advance broad community values. As such, they aspire to at least some rec-
ognition or deference even by non-parties as an expression of customary law or
general principles of law.
In this respect, international organizations, themselves typically created by
multilateral treaties, generate additional normative agreements and treaty re-
gimes with new centers of authority. Bruno Simma has noted the particularly
intensive role of international organizations in the law-making process in the
eld of human rights.2 All multilateral human rights treaties have been negotiated
in the framework of universal organizations the United Nations and its spe-
cialized agencies or regional organizations, such as the Council of Europe, the
Organization of American States, or the Organization of African Unity. An im-
portant feature of multilateral treaties, especially those concerning human rights,
labor rights, environmental protection, humanitarian law, international criminal
law and tribunals, and especially the Rome Statute of the International Criminal
Court, is that non-governmental organizations, indigenous peoples organiza-
tions, representatives of employers and workers exercise increasing inuence on
the treaty making process.
While human rights and humanitarian law treaties present the most strik-
ing examples of norms in which reciprocity is absent or limited and where broad
community interests and values are of critical importance, other general norma-
1 Second Report on Reservations to Treaties by Alain Pellet, Special Rapporteur,

International Law Commission, 48th Sess., 6 May-26 July 1996, 87, U.N. Doc. A/
CN.4/477/Add.1 (1996) [hereinafter Second Report on Reservations to Treaties].
2 Bruno Simma, International Human Rights and General International Law: A Com-
parative Analysis, in IV(2) Collected Courses of the Academy of European Law 155,
174 (1993).
188 Chapter 3
tive provisions may present many of the same characteristics, albeit in a dierent
measure and mix. G.G. Fitzmaurice thus wrote of normative treaties:
[T]hey operate in, so to speak, the absolute, and not relatively to the other parties
i.e., they operate for each party per se, and not between the parties inter se coupled
with the further peculiarity that they involve mainly the assumption of duties and
obligations, and do not confer direct rights or benets on the parties qua States, that
gives these Conventions their special juridical character[.]3
To the extent that human rights may inuence the law of treaties, that inuence
is potentially important, mutatis mutandis, for other general normative treaties
as well.
Oscar Schachter has written that [t]he fact that increasingly treaties in the
economic and social elds as well as in the area of the law of war recognize the
well-being of individuals as their raison dtre is further evidence that interna-
tional law is moving away from its State-centered orientation.4 The Vienna Con-
vention on the Law of Treaties5 mentions both human rights and humanitarian
law. The preamble states that the parties have in mind the principles of interna-
tional law embodied in the Charter of the United Nations, such as the principles
of ... universal respect for, and observance of, human rights and fundamental free-
doms for all,6 while Article 60(5) refers to provisions relating to the protection
of the human person contained in treaties of a humanitarian character[.]7 Nev-
ertheless, the Vienna Convention gives little substantive acknowledgment to the
development of major multilateral conventions in the human rights eld. Shabtai
Rosenne has observed that this omission ran counter to the expansive evolution
of the law of human rights and its companion international humanitarian law:
The plain fact is that there is a growing body of international treaty law which does
accord rights to individuals and which can also impose obligations on individuals,
including juristic persons and groups of individuals; and alongside this there is an
increasing number of competent international intergovernmental organs in which
3 G.G. Fitzmaurice, Reservations to Multilateral Conventions, 2 Intl & Comp. L.Q. 1, 15

(1953).
5 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, U.N.
Doc. A/CONF.39/27 and Corr.1 (1969), 1155 U.N.T.S. 331, reprinted in 63 Am. J. Intl L.
875 (1969), 8 I.L.M. 679 (1969) [hereinafter Vienna Convention].
6 Id., preamble. Similar wording appears in the preambles of the Vienna Convention on
Succession of States in Respect of Treaties, 23 August 1978, not yet in force, U.N. Doc.
A/CONF.80/31 and Corr.2 (1978), reprinted in 72 Am. J. Intl L. 971 (1978), 17 I.L.M.
1480 (1978), and the Vienna Convention on the Law of Treaties between States and
International Organizations or between International Organizations, 21 March 1986,
A/CONF.129/15 (1986), reprinted in 25 I.L.M. 543 (1986).
7 Vienna Convention, supra note 5, art. 60(5).
The Law of Treaties 189
those rights and obligations can be assayed. The old law of diplomatic protection with
its technicalities and intricacies such as the nationality of claims rule is not showing
itself adequate as a framework in which to categorize all such treaties.8
In conclusion, he observed,
Looking back at what was completed twenty years ago, and observing that the twen-
tieth century is inexorably and rapidly moving into the twenty-rst, one cannot fail
to be struck by the fact that the codication of the law of treaties ... is still cast in a
nineteenth century mold.9
The root of this problem is, of course, the International Law Commission (ILC)s
decision not to deal in its draft articles on the law of treaties with the question
of the application of treaties to individuals in terms of rights and obligations, on
the ground that this would take the Commission beyond the subject of the law of
treaties.10
The phenomenon of multilateral treaties is central to contemporary inter-
national law. It involves not simply a replacement for form or convenience of a
set of bilateral treaties by a single multilateral treaty, but the establishment of
instruments for the defense of the common interests of mankind and a reec-
tion of growing global solidarity.11 Although legal doctrine attempted to capture
the real feeling of solidarity which, in varying degrees depending on the case,
prevents multilateral treaties from being viewed as merely the sum of indepen-
dent bilateral agreements[,]12 the distinction between normative and contractual
treaties did not nd expression in the codication of the law of treaties,13 perhaps
because it is very dicult to distinguish between treaties in terms of substantive
criteria.14 The denition and nature of multilateral treaties thus remains a ne-
glected issue in the codied law of treaties.15
As Reuter has noted, a fundamental change in the way conventional instru-
ments were concluded occurred with the emergence of multilateral treaties.16
Earlier treaties could and did involve several States, but these were made up of
several bilateral treaties between pairs of parties. At rst, the signing of a single
8 Shabtai Rosenne, Developments in the law of Treaties 1945-1986 73 (1989).

9 Id., at 83-84.
10 Ian Sinclair, The Vienna Convention on the Law of Treaties 242-244 (2nd ed., 1984);
Rosenne, supra note 8, at 72-73.
11 Paul Reuter, Introduction to the Law of Treaties 2-3 (2nd ed. 1995).
12 Id., at 3.
13 Rosenne, supra note 8, at 80-81.
14 Reuter, supra note 11, at 27.
190 Chapter 3
instrument by several parties was regarded as a mere simplication of form. But

soon,
[i]n elds such as public health, communications, maritime security, protection of

maritime resources, literary, artistic and scientic property, metrological unication,
and protection of certain basic human rights, multilateral treaties were called upon
to serve an entirely new purpose: the defence of the common interests of mankind.
The parties to such treaties are not so much setting up a compromise on diverging
interests as symmetrically pooling their eorts to achieve an identical goal.17
This development led to the distinction suggested in doctrinal writings between

the trait-loi and the trait-contrat, or the normative treaty and the contractual
treaty.18 But the doctrine failed to inuence the codication of the law of trea-
ties in this respect. In practice, the negotiating States would often disagree on
the characterization of a treaty or its component parts as normative or contrac-
tual. To develop general yardsticks that could inform such a distinction would be
equally dicult.
Of course, normative treaties are usually not woven from the same uniform
codicatory fabric.19 Typically, they contain contractual, technical or administra-
tive provisions of little general signicance. Alain Pellet has noted that a single
treaty generally contains both normative clauses and contractual clauses.20 This
may be one of the reasons why international law has not created, so far, codied
rules governing normative treaties only. The exception, of course, is Article 60(5)
of the Vienna Convention on the Law of Treaties, where the distinction between
the normative treaty and the contractual treaty nds a limited expression.21
If no special rules for normative treaties have been developed, multilateral
treaties have not fared much better. The Vienna Convention does not even con-
tain a denition of a multilateral treaty. The ILC had introduced in its 1962 draft
a provision dening a multilateral treaty as a treaty which ... [concerns] gen-
eral norms of international law or ... deals ... with matters of general concern to
other States as well as to parties to the treaty.22 That provision was subsequently
deleted, and the entire issue dropped because it had been linked to the political
controversies arising from the existence of the divided States (Germany, Korea,
China), which led in turn to the question of the right of all States to participate in
U.N. treaty making conferences and the right to become parties to those trea-
17 Id., at 2-3.
18 Id., at 3; Rosenne, supra note 8, at 80-81.
20 Second Report on Reservations to Treaties, supra note 1, 82-83.
21 Vienna Convention, supra note 5, art. 60(5).
22 First Report on the Law of Treaties, by Sir Humphrey Waldock, Special Rapporteur,
art. 1(d), U.N. Doc. A/CN.4/144 (1962), in Law of Treaties, 2 Y.B. Intl L. Commn 31
(1962).
ties.23 This question came up again in the Vienna Conference, but was only nally
resolved by a resolution of the General Assembly which invited all States to join
the Convention.24 A similar practice was followed for other UN multilateral trea-
ties. The result, as Rosenne observes, is that
[n]one of the Vienna Conventions touch upon the nature of the obligations arising
from the multilateral treaty-instrument, in the more precise sense of between whom
and how those obligations run. Alongside this, the treatment of the instrument itself
may be seen as emphasizing, perhaps excessively, the bilateral element in the rela-
tions created by the performance of the treaty.25
In contrast to the Vienna Convention and the process of codication, internation-

al tribunals have been less reluctant to consider human rights and humanitarian
treaties as treaties of a special character and to derive legal consequences from
that special character. It was on the basis of such treaties that the International
Court of Justice enunciated the erga omnes doctrine in the Barcelona Traction
case.26 In the Reservations to the Genocide Convention Advisory Opinion,27 in the
Nicaragua case,28 and in the Nuclear Weapons Advisory Opinion,29 the Court as-
sumed, without much inquiry, that the Genocide Convention,30 the Geneva Con-
ventions of 1949,31 and The Hague Convention on Laws and Customs of War on

24 G.A. Res. 3233 (XXIV), U.N. GAOR, 29th Sess., 2280th plen. mtg. (1974).
25 Rosenne, supra note 8, at 83.
1970 I.C.J. 3, 32 (Feb. 5) [hereinafter Barcelona Traction case].
27 Advisory Opinion on Reservations to the Convention on the Prevention and Punish-
ment of Crimes of Genocide, 1951 I.C.J. 15 (May 28) [hereinafter Reservations to the
Genocide Convention Advisory Opinion].
28 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Ni-
caragua v. United States), 1986 I.C.J. (June 27).
29 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996
I.C.J., Declaration of J. Bedjaoui, 13 [hereinafter Nuclear Weapons Advisory Opin-
ion].
30 Convention on the Prevention and Punishment of the Crime of Genocide, 9 Dec.
1948, 78 U.N.T.S. 277.
Forces in the Field (Geneva Convention I), 12 Aug. 1949, 6 U.S.T. 3114,TIAS No. 3362,
75 U.N.T.S. 31; Convention for the Amelioration of the Condition of the Wounded,
Sick and Shipwrecked Members of the Armed Forces at Sea (Geneva Convention II),
12 Aug. 1949, 6 U.S.T. 3217, TIAS No. 3363, 75 U.N.T.S. 85; Geneva Convention Rela-
tive to the Treatment of Prisoners of War (Geneva Convention III), 12 Aug. 1949, 6
U.S.T. 3316, TIAS No. 3364, 75 U.N.T.S. 135; Convention Relative to the Protection of
Civilian Persons in Time of War (Geneva Convention IV), 12 Aug. 1949, 6 U.S.T. 3516,
TIAS No. 3365, 75 U.N.T.S. 287.
192 Chapter 3
Land (1907)32 declare customary law. In the Reparations for Injuries Suered in
the Service of the United Nations case,33 the Court considered the Charter of the
United Nations as a living constitution, capable of conferring on the United Na-
tions Organization status and rights not expressly granted in the Charter. When
referring to such treaties, governments and non-governmental organizations
commonly express the presumption that those treaties distill and declare cus-
tomary law.
Not surprisingly, human rights tribunals and other organs of supervision
established under human rights treaties have emphasized the distinctive char-
acter of human rights treaties. The Inter-American Court of Human Rights, for
example, has noted that
... modern human rights treaties in general, and the American Convention in par-
ticular, are not multilateral treaties of the traditional type concluded to accomplish
the reciprocal exchange of rights for the mutual benet of the contracting States.
Their object and purpose is the protection of the basic rights of individual human
beings irrespective of their nationality, both against the State of their nationality and
all other contracting States. In concluding these human rights treaties, the States 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 indi-
viduals within their jurisdiction.34
The Court then quoted the oft-cited statement of the European Commission of
Human Rights on the objective character of the European Convention:
the obligations undertaken by the High Contracting Parties in the [European] Con-
vention are essentially of an objective character, being designed rather to protect the
fundamental rights of individual human beings from infringements by any of the
High Contracting Parties than to create subjective and reciprocal rights for the High
Contracting Parties themselves.35
Similarly, in its famous and controversial General Comment No. 24, the Human
Rights Committee stated:
32 Hague Convention Respecting the Laws and Customs of War on Land, 18 Oct. 1907,
36 Stat. 2277, TS No. 539.
33 Advisory Opinion on Reparations for Injuries Suered in Service to the United Na-
tions, 1949 I.C.J. (April 11).
34 The Eect of Reservations on the Entry Into Force of the American Convention on
Human Rights (Arts. 74 and 75), Advisory Opinion OC-2/82 of 24 September 1982,
Inter-Am. Ct. H.R. (ser. A) No. 2, 29 (1982).
35 Austria v. Italy, App. No. 788/60, 4 Y.B. Eur. Conv. on H.R. 116, at 140 (1961) (Eur.
Commn on H.R).
Such treaties [human rights treaties], and the Covenant specically, are not a web of
inter-State exchanges of mutual obligations. They concern the endowment of indi-
viduals with rights. The principle of inter-State reciprocity has no place, save perhaps
in the limited context of reservations to declarations on the Committees competence
under article 41.36
Although it disagreed with the Human Rights Committees categorical claim that
human rights treaties are not a web of inter-State exchanges of mutual obliga-
tions, the United Kingdom cited a statement of the European Court of Human
Rights which held that the European Convention comprises more than mere re-
ciprocal engagements between Contracting States. It creates over and above a
network of mutual bilateral understandings, objective obligations which in the
words of the preamble benet from collective enforcement.37
Thus, although the codication of the law of treaties fails to provide rules
relating to multilateral, normative treaties, international tribunals regularly rec-
ognize the special characteristics of such treaties. This is particularly true in the
elds of human rights and humanitarian law.
B. Interpretation of Treaties
The primary rule of treaty interpretation, as stated in Article 31(1) of the Vienna
Convention, is that [a] treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose. In interpreting human rights treaties,
human rights courts have tended to attribute primary importance to a teleologi-
cal interpretation focused on the object and purpose of the treaty, even if that
meant that the ordinary meaning would sometimes be overridden and the leg-
islative history or preparatory work addressed in Article 32 of the Convention
ignored. Sinclair thus has noted:
There are indicia ... that the Strasbourg organs ... have adopted a very specic and
decided view of the object and purpose of the European Convention of Human
Rights and seek deliberately to interpret particular provisions of the Convention so as
to give eect to that overriding object and purpose and notwithstanding that the
interpretation may do violence to the ordinary meaning of the provision in its context
36 General Comment No. 24 (1994), Compilation of General Comments and General

Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/
Rev.5 (2001), p. 150, at 17. Thomas Buergenthal describes the general comments of
the Committee as distinct juridical instrument[s], enabling the Committee to an-
nounce its interpretations of dierent provisions of the Covenant The U.N. Hu-
man Rights Committee, 5 Max Planck UNYB 341 (2001).
37 Report of the Human Rights Committee, Vol. I, U.N. GAOR, 50th Sess., Supp. No. 40,
at (vii), U.N. Doc A/50/40 (1995) (emphasis added by the Human Rights Commit-
tee).
194 Chapter 3
and may ignore such evidence of the intentions of the parties as are to be found in the
travaux prparatoires.38
In the Golder case, for example, the European Court of Human Rights read into
Article 6 of the European Convention on Human Rights not only procedural safe-
guards in legal proceedings, but also a right of access to courts.39 Sinclair has
observed that
[t]he European Court of Human Rights did not specically rely on the object and
purpose of the Convention to justify their [sic] conclusion that a right of access to
the courts could be read into Article 6(1). Nevertheless, the line of reasoning em-
ployed by the majority clearly led to an interpretation incompatible with the ordi-
nary meaning of Article 6(1) read in its context.40
Judges following more traditional schools of interpretation have censured this ap-
proach. Thus, Judge Fitzmaurice wrote in a dissenting opinion:
(i) The objects and purposes of a treaty are not something that exist in abstracto:
they follow from and are closely bound up with the intentions of the parties, as
expressed in the text of the treaty, or as properly to be inferred from it, these
intentions being the sole sources of those objects and purposes. Moreover, the
Vienna Convention even if with certain qualications indicates, as the pri-
mary rule, interpretation in accordance with the ordinary meaning to be given
to the terms of the treaty; the real raison dtre of the hallowed rule of the
textual interpretation of a treaty lies precisely in the fact that the intentions of
the parties are supposed to be expressed or embodied in or derivable from
the text which they nally draw up, and may not therefore legitimately be
sought elsewhere save in special circumstances; and a fortiori may certainly not
be subsequently imported under the guise of objects and purposes not thought
of at the time. From these considerations it is therefore clear that the Vienna
Convention implicitly recognizes the element of intentions though it does not
in terms mention it.
(ii) I have no quarrel with the view that the European Convention like virtually all
so-called law-making treaties has a constitutional aspect But what I nd
it impossible to accept is the implied suggestion that because the Convention
has a constitutional aspect, the ordinary rules of treaty interpretation can be
ignored or brushed aside in the interests of promoting objects or purposes not
originally intended by the parties.41
38 Sinclair, supra note 10, at 133.

39 Golder v. United Kingdom, 18 Eur. Ct. H.R. (ser. A) (1975).
41 National Union of Belgian Police v. Belgium, 19 Eur. Ct. H.R. (ser. A) (1975) (separate
opinion of J. Fitzmaurice, para. 9). See also separate opinion in Golder v. United King-
dom, 18 Eur. Ct. H.R. (ser. A) (1975).
In his important work on international tribunals, Charney defended the inter-

pretative approach of human rights tribunals, arguing that [t]o the extent that
these Courts may have adopted a teleological approach, it seems more consistent
with the role of the treatys purpose as intended in the Vienna Convention. It has
rarely, if ever, been used to sacrice the text in order to carry out judicially created
purposes.42 In the interpretation of the Vienna Convention itself by specialized
tribunals, including human rights courts, Charney concludes:
It is clear that all of the tribunals rely upon the Vienna Convention on the Law of
Treaties as endorsed by the ICJ. By doing so they have applied that treaty to a variety
of circumstances not yet addressed by the ICJ and, thus, they have added to the body
of international law in the area. The tribunals have certainly not diverged from the
mainstream of international treaty law. Rather they have built upon that law and,
generally, have added greater sophistication, coherence, and legitimacy to it.43
He recognized, however, that the interpretation of a treaty by a human rights

body according to its object and purpose can result in apparent contradiction
with the generally recognized rules.44 An example would be the holding of the
European Court of Human Rights in the Loizidou case45 that territorial restric-
tions on the acceptance of its jurisdiction other that those expressly provided in
the Convention were invalid.46 This is contrary to the ICJs validation of similar
limitations attached to declarations accepting its compulsory jurisdiction under
Article 36(2) of its Statute. However, Charney justies the dierence in interpre-
tation on the basis of the dierent purposes and objects of the pertinent treaties:
the Courts Statute seeks to encourage the widest possible accession by States; the
European Convention on Human Rightss goal is to maximize human rights pro-
tections. In the case of Mamatkulov and Abdurasulovic v. Turkey, the European
Court of Human Rights examined the character of interim measures by reference
to general principles of international law, drawing in particular on the practice
of other international courts. Applying a dynamic and evolutive approach, and
in the light of general principles of international law, the law of treaties and in-
ternational case-law, the Court related the interpretation of the scope of interim
measures to the context of the pertinent proceedings. It concluded that any state
party addressee of interim measures must comply with them to avoid irreparable
harm being caused to the victim of the alleged violation.47 In the judgement of
42 Jonathan I. Charney, Is International Law Threatened by Multiple International Tri-

bunals?, in Recueil des Cours 101, 188 (Hague Academy of International Law 1998)[A-
26]; also Thomas Buergenthal, The Advisory Practice of the Inter-American Human
Rights Court, 79 Am. J. Intl L. 1, 18-20 (1985).
43 Charney, supra note 42, at 92.
44 Id., at 70-71.
45 Loizidou v. Turkey, 310 Eur. Ct. H.R. (ser. A) (1995).
47 Judgement of 6 February 2003, at para. 110.
196 Chapter 3
4 February 2005 in the case of Mamatkulov and Askarov v. Turkey, the Court
held that whatever the legal system in question, the proper administration of jus-
tice requires that no irreparable action be taken while proceedings are pending,
and that preservation of rights of the parties represents an essential objective
of interim measures in international law.48 By failing to comply with the interim
measures indicated, Turkey was found to be in breach of its obligations under the
Convention.49
The European Court of Justice, which applies the law of the European Union,
also resorts to broad goal-related principles interpreting and applying that law.
The Court has incorporated a signicant number of fundamental human rights
into its jurisprudence. It did so by recourse to general principles, relying upon
the European Convention on Human Rights, the constitutions of member States,
and the treaties to which member States are parties. The Court has recognized
the need to take into account the protection aorded to human rights in order to
interpret the European Unions non-human rights instruments it is called upon
to construe. It thus has held that fundamental rights are among the general prin-
ciples of law which it applies. The Nold case demonstrates this approach. In that
case the applicant challenged a Commission decision, arguing that it deprived
him of the fundamental right to the free pursuit of business. The Court noted
that fundamental rights form an integral part of the general principles of law, the
observance of which [the ECJ] ensures.50 After referring to the constitutional
traditions common to the Member States, it added that international treaties
for the protection of human rights on which the Member States have collaborated
or of which they are signatories, can supply guidelines which should be followed
within the framework of Community Law.51 Thus, in the Marshall case, the Court
found a State pension law that set dierent age requirements for men and women
to be discriminatory in violation of a community directive.52 Charney has ob-
served that in addition to the right of the free pursuit of business, the Court has
recognized the right to be heard, freedom of association, freedom of religion, the
right of property, the right to pursue ones trade or profession, the inviolability of
the home, freedom of expression, and the right to participate in selecting ones
government as fundamental rights to be taken into account.53 He adds that
[t]o the extent that [those recognized principles] are not already general international
law, the ECJs endorsement of these doctrines may contribute to the evolution of
48 Para. 124.
50 Case 4/73, Nold, Kohlen-und Baustogrohandlung v. Commission, 1974 E.C.R. 491,
at 507, 13.
51 Id.
52 Case No. 152/84, Marshall v. Southampton and South-West Hampshire Area Health
Authority, 1986 E.C.R. 723-750.
general international law. ... [T]he doctrine of sources used by the ECJ, if not identical
to international law, is closely analogous to it or specically derived from the require-
ments of the EEC/EU Treaty.54
Even some bilateral treaties, which have no claim to a particular normative status,
such as extradition, have been interpreted in light of human rights concerns. In
1983, the Institute of International Law adopted a resolution proposed by Profes-
sor Doehring that the invocation of the duty to protect human rights may justify
non-extradition.55 The text as amended by Judge Schwebel read as follows:
In cases where there is a well-founded fear of the violation of the fundamental hu-
man rights of an accused in the territory of the requesting State, extradition may be
refused ... .56
Thus, the Institute supported the proposition that human rights must be tak-
en into consideration in the interpretation of extradition agreements, and that,
moreover, fundamental human rights have a claim to a higher hierarchical status,
or jus cogens, and should, in case of conict, prevail over those agreements.57
In his discussion of the impact of human rights on the law of aliens, Cassese
notes that certain long-standing rules must now be interpreted or applied in the
light of human rights.58 As an example of re-interpretation of a treaty, he men-
tions a judgment of the Swiss Federal Court (1982) in which the court declined to
apply the extradition treaty between Switzerland and Argentina:
[E]ven long-standing treaties on extradition must now be interpreted and applied in

the light of two fundamental principles of human rights, which have now acquired
the weight of jus cogens, that is peremptory law: one was the principle that no indi-
vidual should be extradited to a country to undergo a trial in which considerations
of race, religion or political opinion might play a role; the other was the principle
prohibiting torture or any form of inhuman or degrading treatment.59
I have already mentioned the Loizidou case, but a more detailed discussion of in-
terpretation of jurisdictional clauses is necessary. In contrast to the narrow, even
minimalist, sovereignty-based, approach to interpreting treaty commitments, hu-
man rights courts have begun to construe consent to jurisdiction more broadly
54 Id., at 136.
55 New Problems of the International Legal System of Extradition with Special Refer-
ence to Multilateral Treaties, Rapporteur M. Karl Doehring, 60 Y.B. Institute Intl L.
214 [1983-II] (1984). Id., at 136.
56 Id. at 306.
57 Meron, Human Rights Law-Making in the United Nations 194-96 (1986).
58 Antonio Cassese, Human Rights in a Changing World 166 (1990).
59 Id.
198 Chapter 3
in application of human rights treaties. The courts assessment of the signicance

and weight given to States consent to be bound and to the interpretation of that
consent directly aects their conclusions regarding the construction of jurisdic-
tional clauses and the validity of restrictions and reservations generated by States.
In order to extend their jurisdiction, human rights bodies have claimed consid-
erable latitude in construing State consent. In the Loizidou case, the European
Court of Human Rights paid little attention to the intent of Turkey at the time
it made the declarations. The Court simply excluded Turkeys statements after
the ling of the declarations and considered that Turkey had willingly run the
risk that the reservation would be held invalid by the Conventions institutions
without aecting the validity of the declarations themselves.60 In other words, the
Court concluded that the Turkish reservation was severable from its acceptance
of jurisdiction.
In General Comment No. 24, the Human Rights Committee adopted the
approach followed shortly thereafter by Loizidou. The comment has attracted
considerable criticism from leading international lawyers, including Judge Robert
Jennings,61 but has found support among many human rights lawyers. An inu-
ential critic, Alain Pellet, wrote that
[i]rrespective of its object, a treaty remains a juridical act based on the will of States,
whose meaning cannot be presumed or invented. Human rights treaties do not es-
cape the general law: their object and purpose do not eect any transubstantiation
and do not transform them into international legislation which would bind States
against their will This is the risk monitoring bodies take if they venture to determine
what was the intention of a State when it bound itself by a treaty, while it was, at the
same time, formulating a reservation.62
Before the Inter-American Court of Human Rights, Guatemala argued that the
Court was incompetent to hear a case involving forced disappearance since the
events had taken place before the date on which Guatemala had deposited its
acceptance of the compulsory competence of the Court (March, 9 1987), the vic-
tims detention and death having occurred earlier in March 1985. The Court found
Guatemalas objection well-founded and held that it lacked competence to rule
on the Governments liability for the detention and death of the victim. However,
since the case concerned disappearance and the victims relatives had not been
informed of the whereabouts of the victim until June 1992, the Court decided that
it had jurisdiction for the consequences of those acts, i.e., the concealment of the
60 Loizidou v. Turkey, 310 Eur. Ct. H.R. (ser. A) 95 (1995). See also Belilos v. Switzerland,
132 Eur. Ct. H.R. (ser. A) 60-97 (1988).
61 Robert Y. Jennings, Proliferation of Adjudicatory Bodies: Dangers and Possible An-
swers, in Implications of Proliferation of International Adjudicatory Bodies for Dis-
pute Resolution, ASIL Bulletin, No. 9, p. 2, at 5-6 (Nov. 1995).
62 Second Report on Reservations to Treaties, supra note 1, 229-230.
victims arrest and murder by governmental authorities or agents.63 While joining

in the decision of the Court, Judge Antnio A. Canado Trindade pointed to the
limitations in the law of treaties that hinder eective protection of human rights.
He spoke of the insucient evolution of the precepts of the law of treaties to
fulll the basic purpose of eective protection of human rights, and complained
of continuing State voluntarism and an undue weight attributed to the forms and
manifestations of consent.64
Judge Hersch Lauterpachts dissent in the Norwegian Loans case is the locus
classicus for the traditional approach. In his interpretation of the acceptance of
the International Court of Justices compulsory jurisdiction, Judge Hersch Laut-
erpacht declared invalid both the pertinent part of the reservation and the entire
acceptance of jurisdiction,65 concluding that the Court did not have jurisdiction
in the case. He thus clearly promoted the notion of the integrity of the treaty,
rejecting the alternative approach of divisibility or separability. The majority of
the court, however, viewed the reservation concerned as valid and grounded the
lack of jurisdiction over the dispute in the right of Norway to invoke, by virtue of
reciprocity, the French reservation.
Schabas, commenting on the Chrysostomos et al. case before the European
Commission on Human Rights, distinguished between the Strasbourg and the
traditional approach:
It may be useful [...] to distinguish the Strasbourg jurisprudence from the approach
of Judge Lauterpacht, in that the latter was not dealing with human rights instru-
ments. Where human rights obligations are concerned, and where the protection
of individual and not that of sovereign States is at issue, there are compelling policy
reasons why the thing may rather have eect than be destroyed. The same approach
may be less decisive in areas of international litigation where human rights are not
involved.66
Not only human rights bodies, but also the ICJ have recently regarded the object
and purpose as central to the interpretation of human rights treaties jurisdic-
tional clauses. In the Case Concerning the Application of the Genocide Conven-
tion between Bosnia-Herzegovina and Yugoslavia, Bosnia contended that it had
become a party to the Genocide Convention by automatic succession at the date
of its accession to independence (rather than the date of its notice of succession)
because the Genocide Convention fell in the category of human rights treaties,
a category of treaties for which the rule of automatic succession applied. Since
63 Blake v. Guatemala, Preliminary Objections, 1996 Inter-Am. Ct. H.R., 33-34 (July
2).
64 Id., Separate opinion of J. Canado Trindade, 11-15.
65 Norwegian Loans (France v. Norway), 1957 I.C.J. 9, at 55-56 (July 6) (separate opinion
of J. Sir Hersch Lauterpacht).
66 William A. Schabas, Reservations to Human Rights Treaties: Time for Innovation and
Reform, 32 CAN. Y.B. INTL L 39, 74 (1994).
200 Chapter 3
Bosnia was a party to the Genocide Convention at the date of the introduction
of the request,67 the Court, citing its statement in the Genocide Convention Advi-
sory Opinion, found it unnecessary to decide whether the principle of automatic
succession applied. The Court referred, however, to the Conventions object in its
treatment of its ratione temporis jurisdiction:
Yugoslavia, basing its contention on the principle of the non-retroactivity of legal

acts, has indeed asserted as a subsidiary argument that, even though the Court might
have jurisdiction on the basis of the Convention, it could only deal with events subse-
quent to the dierent dates on which the Convention might have become applicable
as between the Parties. In this regard, the Court will conne itself to the observation
that the Genocide Convention and in particular Article IX does not contain any
clause the object or eect of which is to limit in such manner the scope of its jurisdic-
tion ratione temporis, nor did the Parties themselves make any reservation to that
end, either to the Convention or on the occasion of the signature of the Dayton-Paris
Agreement. The Court thus nds that it has jurisdiction in this case to give eect to
the Genocide Convention with regard to the relevant facts which have occurred since
the beginning of the conict which took place in Bosnia-Herzegovina. This nding is,
moreover, in accordance with the object and purpose of the Convention as dened by
the Court in 1951 and referred to above.68
In the La Grand case (Germany v. United States of America), the ICJ interpreted
Article 36 of the Vienna Convention on Consular Relations, which requires the
detaining State to inform detained aliens of their right to have their countrys
consulate notied of their arrest, and grants the rights of access and communica-
tion to consular ocials and their nationals. Reecting increasing sensitivity to
human rights concerns, the ICJ held that Article 36 creates rights not only for the
sending State (Germany), but also for the detained persons, rights which may be
invoked in the Court by the sending States exercise of the right of diplomatic pro-
tection.69 But the Court refrained from pronouncing on the additional argument
of Germany that these rights of the detained persons constituted human rights.
In the Wall advisory opinion (2004), the ICJ interpreted a number of trea-
ties to maximize human rights and humanitarian protections. First, it interpreted
the Fourth Geneva Convention so as to conrm its applicability to the territories
occupied by Israel.70 As regards the applicability of human rights conventions
to those territories, the Court rst rearmed its ruling in the Nuclear Weapons
Advisory Opinion (1996), that the protection of the International Covenant on
67 Case concerning Application of the Convention on the Prevention and Punishment of

the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections,
1996 I.C.J. 595, 22-23 (July 11).
68 Id.at 34.
69 La Grand Case (Germany v. United States), International Court of Justice, Judgement
of 27 June 2001, ICJ Rep. 466, at 89.
70 At para. 101.
Civil and Political Rights does not cease in time of war, except by operation of
Article 4 of the Covenant whereby certain protections may be derogated from
in time of national emergency.71 Elaborating further on the relationship between
human rights and humanitarian law, the Court held considering the object and
purpose of the Covenant that it is applicable in respect of acts done by a state
in the exercise of its jurisdiction outside its own territory,72 and thus to the oc-
cupied territories. It reached similar conclusions with regard to the International
Covenant on Economic, Social and Cultural Rights,73 and the Convention of the
Rights of the Child.74
Finally, a brief comment about one particular aspect of interpretation reect-
ing human rights concerns: the intertemporal or evolving interpretation. Simma
has written that dynamic interpretation on the part of international courts has
been applied in cases of treaty obligations on human rights.75 Indeed, the ICJ has
resorted to just such an interpretation of the obligation to care for the well-being
and development of indigenous peoples under the mandate of South Africa.76
The European Court of Human Rights has emphasized on several occasions that
the European Convention must be interpreted in in the light of present-day con-
ditions.77 Simma suggests that dynamic interpretation is prevalent for human
rights treaties in part because human rights obligations must be implemented
within national legal systems.78 But the principle of inter-temporal interpretation
goes well beyond human rights treaties.
C. Jus Cogens and Invalidity of Treaties

The relationship between human rights and the concept of jus cogens needs spe-
cial discussion.
Article 53 of the Vienna Convention denes a peremptory norm of general
international law (jus cogens) as a norm accepted and recognized by the inter-
national community of States as a whole as a norm from which no derogation
is permitted and which can be modied only by a subsequent norm of general
71 Id., at para. 105.

72 Id., at para. 111.
73 Id., at para. 112.
74 Id., at para. 113.
75 Simma, supra note 2, at 187.
76 Advisory Opinion on the Legal Consequences for States of the Continued Presence
of South Africa in Namibia (South West Africa) Notwithstanding Security Council
Resolution 276 (1970), 1971 I.C.J. 16, 31-32 (June 21).
77 Simma, supra note 2, at 185, citing Tyrer v. United Kingdom, 26 Eur. Ct. H.R. (ser. A)
at 15-16 (1978).
78 Id., at 187-188.
202 Chapter 3
international law having the same character.79 Article 64 provides that [i]f a new
peremptory norm of general international law emerges, any existing treaty which
is in conict with that norm becomes void and terminates. Under Article 44(5), a
treaty clause contrary to a peremptory norm is not separable and voids the entire
treaty. Although this was a controversial decision, the majority of the ILC insisted
that the jus cogens principle was so fundamental that a treaty containing a clause
in conict with an existing rule of jus cogens must be considered totally invalid.
Sinclair has suggested that this latter provision is designed to operate as a sanc-
tion80 for conclusion of agreements containing such clauses. Clearly it can also
act as a deterrent. He considered that the concept of invalidity of a treaty contrary
to jus cogens must be regarded as the most signicant instance of progressive
development in the Convention as a whole.81 During the Vienna Conference on
the Law of Treaties, Germany thus stated that the ILCs views on the validity
of treaties were in advance of developments in State practice.82 But as early as
1966, Roberto Ago argued that when the Commission armed the existence of
mandatory rules of jus cogens, it was only dening a principle which already ex-
isted and had been recognized by the conscience of States.83 The conscience of
States may however, be ahead of lex lata. Others considered jus cogens as a part of
progressive development of international law. Thus Nahlik wrote that the Vienna
Conventions provisions on jus cogens were not an invention of either the Inter-
national Law Commission or the Vienna Conference. ... [T]he freedom of States
in concluding treaties had already been restricted by the progressive develop-
ment of international law.84
Of course, one of the diculties with a hierarchy of norms in international
law is that there is no superior authority to decide conclusively which rules con-
stitute jus cogens and thus impose general legal obligations of a superior charac-
ter.85 The Vienna Convention left in some doubt how exactly jus cogens norms
are created. Paul Reuter has noted that the ILC purposely refrained from being
too specic on the question of how a peremptory norm comes into existence.
The Vienna Convention would seem to hint that it is born out of custom since it
provided that the rule is accepted and recognized by the international community
as a whole, but a custom with a particular kind of opinio juris expressing the
conviction that the rule is of an absolute nature.86 He has suggested that peremp-
79 Vienna Convention, supra note 5, art. 53. See generally Antonio Cassese, International
Law 142-148 (2001).
81 Id., at 17.
82 Cited in Rosenne, supra note 8, at 283.
83 Id., at 282.
84 Stanislaw E. Nahlik, The Grounds of Invalidity and Termination of Treaties, 65 Am. J
Intl L. 745 (1971), quoted in Sinclair, supra note 10, at 17-18.
85 Meron, On a Hierarchy of International Human Rights, 80 Am. J. Intl L. 1, 3 (1986).
tory norms might have gone beyond the customary stage and reached the rmer
status of general principles of public international law.87
Whatever exactly the status of these provisions may have been in 1969 when
the Vienna Convention was adopted, there is no doubt that the concept of jus
cogens has entered the mainstream of international law and is now accepted as
lex lata, despite the very limited practice of States and the many unresolved ques-
tions which the concept has generated.
The ILCs commentary on jus cogens gave three examples: a treaty contem-
plating an unlawful use of force contrary to the Charter of the United Nations; a
treaty contemplating the performance of any other act criminal under interna-
tional law; or a treaty contemplating or conniving at the commission of such acts
as slave-trade, piracy or genocide, which all States are expected to suppress.88
Human rights and humanitarian norms were thus only some of the inalienable
principles contemplated by the ILC and later by the Vienna Conference. There is
no question, however, that the discussion of jus cogens since Vienna has focused
far more on human rights and humanitarian law than on other central themes
of international law, such as aggression or use of force contrary to the Charter.
In contrast to the discussion in Vienna, with its emphasis on invalidity of agree-
ments contrary to jus cogens, the current usage typically concerns claims that
various human rights or humanitarian treaties are endowed with a sort of super-
customary character and, therefore, impose obligations on non-parties, or that
certain unilateral acts of State are in violation of jus cogens. Jus cogens has been
invoked to question the validity of derogations and reservations. The impact of
human rights law on the establishment of jus cogens as a fundamental principle of
international public order has been signicant.
For many delegations at the Vienna Conference, the provisions of the Con-
vention on invalidity and termination of treaties were closely linked to those on
settlement of disputes.89 There was concern that jus cogens, abusively invoked,
may destabilize the security of international agreements. Hence the perceived
need to develop mechanisms for settlement of disputes. Japan thus argued:
[Q]uestions of jus cogens involved the interests of the entire community of nations,
and the question whether a provision of a treaty was in conict with a rule of general
international law, and whether that rule was to be regarded as a peremptory norms
could be settled only by the International Court of Justice.90
Article 66 (a) of the Vienna Convention provides for a unilateral reference to the
ICJ for disputes relative to Articles 53 and 64, unless the parties to the dispute
agreed to a binding arbitration. The latter provisions are the only ones subject to a
87 Id., at 145.
89 Id., at 226 Rosenne, supra note 8, at 282-283.
204 Chapter 3
compulsory, binding third party dispute settlement procedure; other provisions

relating to invalidity and termination of treaties contemplate a special procedure
of compulsory conciliation. Paradoxically, Article 66(a) might give rise to ques-
tions of consistency with jus cogens. In the course of the ILCs work on the law of
treaties of international organizations, the question arose whether a decision of
the ICJ invalidating a multilateral treaty on the ground of a conict with jus co-
gens would invalidate the treaty for all its parties or only for the parties before the
Court. Rosenne points out that, technically, such a decision would only apply to
the parties before the Court according to Article 59 of the ICJ Statute,91 but there
is something incongruous in saying that a treaty is void as between States A and
B since it violates a peremptory norm of international law while at the same time
implying that it remains valid and in force as between States A and C, D, E, Z.92
At times, attempts have been made to relate jus cogens to other major de-
velopments of international law and relations. Thus in the Nuclear Weapons Ad-
visory Opinion, Judge Bedjaoui identied the development of the concept of jus
cogens along with those of obligations erga omnes and the common heritage
of mankind as testimony to the progress made in terms of the institutional-
ization, not to say integration and globalization, of [the] international society,
illustrated by the proliferation of international organizations, the gradual substi-
tution of an international law of co-operation for the traditional international law
of co-existence, the emergence of the concept of international community and
its sometimes successful attempts at subjectivization. He concluded that
[t]he resolutely positivist, voluntarist approach of international law which still held
sway at the beginning of the century- has been replaced by an objective conception
of international law, a law more readily seen as the reection of a collective juridical
conscience and as a response to the social necessities of States organized as a com-
munity.93
While Sinclair concedes that there are some fundamental rules that clearly can-
not be derogated from by treaty such as the rule of pacta sunt servanda the
main diculty is how to identify other rules that qualify as peremptory norms.94
Most sources refer to the prohibitions on the use of force, genocide,95 slavery, and
91 Statute of the International Court of Justice, art. 59.

I.C.J. (July 8) (declaration of J. Bedjaoui, 13).
94 Sinclair, supra note 10, at 215; also Meron, supra note 85, at 4.
95 Case Concerning Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Mon-
tenegro), Further Provisional Measures, 1993 I.C.J. (Sept. 13) (separate opinion of J.
Lauterpacht, at 440) ; Case Concerning Application of the Convention on the Pre-
vention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugosla-
racial discrimination.96 Those were the examples of obligations erga omnes given
by the ICJ in the Barcelona Traction case.97 The Human Rights Committee oered
as examples the prohibitions of torture and of arbitrary deprivation of life.98 Other
rules have been characterized as rules of jus cogens, such as the principle of self-
determination.99 In the Nuclear Weapons Advisory Opinion, Judges Bedjaoui,
Weeramantry, and Koroma were of the view that the fundamental principles of
international humanitarian law were of a jus cogens nature.100 The Court itself did
not nd it necessary to discuss the issue of the jus cogens nature of certain rules
of humanitarian law, but it expressed the view that certain fundamental rules of
humanitarian law constituted intransgressible principles of international cus-
tomary law.101
In his discussion of the most likely candidates for jus cogens norms, Sinclair
notes that multilateral conventions which prohibit slavery, piracy, and genocide
contain denunciation clauses. If a State can be released through denunciation
from such conventional obligations, how can these conventions State norms from
which States cannot derogate by treaty?102 Although the presence of such clauses
is not decisive, they introduce some uncertainty as to the status of those rules.103
Of course, every treaty contains a mix of provisions. Even a highly normative trea-
ty, which contains some jus cogens provisions, creates also jurisdictional, techni-
cal or administrative obligations, as well as obligations reecting customary law,
which though legally binding, clearly do not rise to jus cogens status. Such treaties
may be denounced without necessarily questioning the jus cogens norms stated in
the same instruments. A case in point is the denunciation clauses of the Geneva
Conventions of 12 August 1949. These clauses, which reect a version of the Mar-
tens clause, make it clear that denunciation will not aect the obligations of the
denouncing States under the principles of the law of nations.104
via), Preliminary Objections, 1996 I.C.J. 595 (July 11) (dissenting opinion of J. Kreca,
101).
96 Ian Brownlie, Principles of Public International Law 512-515 (4th ed., 1990); Reuter,
supra note 11, at 143.
1970 I.C.J. 3, 32 (Feb. 5).
98 General Comment No. 24, supra note 36, 8.
99 Hctor Gros Espiell, Self-Determination and Jus Cogens, in UN Law/Fundamental
Rights: Two Topics in International Law 167, 171 (Antonio Cassese ed., 1979).
I.C.J. 16 (June 21) (declaration of J. Bedjaoui, 21; dissenting opinion of J. Weera-
mantry 10; dissenting opinion of J. Koroma, at 286-287).
101 Id., 79.
103 Id., at 223.
104 See e.g., Art. 158 of Geneva Convention IV.
206 Chapter 3
The concept of jus cogens has only a limited immediate practical importance
for the validity of treaties.105 It is very unlikely that States would publicly conclude
a treaty that is in violation of jus cogens.106 So far, despite the support of the con-
cept in doctrine and statements, it has found little application in State practice.107
As a matter of fact, States do not conclude agreements to commit torture or geno-
cide or enslave peoples. Moreover, States are not inclined to contest the absolute
illegality of acts prohibited by jus cogens. When such acts take place, States deny
the factual allegations or justify violations on other grounds.
But even in treaties, the signicance of jus cogens cannot be denied. For ex-
ample, when it comes to balancing one human right against another, the right
that has gained the exalted status of jus cogens would be preferred. Jus cogens may
also be invoked to challenge the application of agreements, such as in the eld of
extradition or criminal assistance. While unimpeachable in the abstract, the per-
tinent treaties may, in their actual application, clash with jus cogens.
The notion of jus cogens is close to Judge Moslers concept of public order
of the international community.108 Because of the decisive importance of certain
norms and values to the international community, they merit absolute protection,
and should be protected from derogations and reservations by States, whether
jointly by treaty or severally by unilateral legislative or executive action. Jus cogens
is thus relevant to unilateral acts, including those taken to implement treaties,
statutes or regulations.
With regard to the nullity of unilateral acts, somewhat dierent issues, how-
ever, arise. In the case of a conict between a treaty and jus cogens, the latter
nullies the former. A treaty, however, is a creature of international law, while
a unilateral State act is rooted in a national legal system. It cannot be taken for
granted, therefore, that the unilateral act would have no internal legal force. But,
at the very least, the violating State would incur international responsibility, and
the persons responsible might also incur individual criminal liability under in-
ternational law. Moreover, the actor State should not be allowed to invoke an act
contrary to jus cogens on the international plane.
The ethical signicance of jus cogens goes further. Reuter considered that the
Vienna Conventions formal recognition of the existence of peremptory norms
constituted a reminder ... of the moral basis of law.109
Cassese has observed that:
Many legal rules produce eects far beyond their immediate objective. They possess
an ethico-political halo that is destined to glow in unthought-of areas. Above all, they

106 E. Jimnez de Archaga, 52 Annuaire IDI, t. 1, 378 (1967), quoted in Rosenne, supra
note 8, at 287-288.
107 Sinclair, supra note 10, at 209 and 215.
are inuential in the moral and psychological spheres, creating a new ethos in the
international community, and new expectations not only among States but among
individuals and peoples the new twin poles of interest and action not to mention
public opinion.110
The notion of jus cogens had an important inuence on the work of the ILC on
State responsibility, in particular former draft Article 19 on international crimes.
The denition of an international crime followed closely the denition of jus
cogens in the Vienna Convention: a violation of an international obligation so es-
sential for the protection of fundamental interests of the international communi-
ty that its breach is recognized as a crime against that community as a whole[.]111
It has also inuenced the development of international criminal law, regulation
of weapons, and international environmental protection. Even such a skeptical
observer as Sinclair was led to conclude that [t]he notion of jus cogens has ac-
cordingly begun to have a pervasive inuence on branches of international law
other than the law of treaties.112
Application of jus cogens in particular cases continues to prove dicult. The
continuing doctrinal controversy appears to be diminishing in its intensity as the
acceptance of jus cogens is becoming broader, but the lack of consensus about the
identity of peremptory norms, beyond the more fundamental human rights and
humanitarian norms, remains. Selection of rights for higher status is fraught with
personal, cultural, and political bias and has not been addressed by the interna-
tional community as a whole. The prevailing dierences in the social, cultural, po-
litical, and economic values of States have made it easier to arrive at agreements
on sets of rights than on their order of priority. Few criteria exist for distinguish-
ing between ordinary rights and higher rights. Some commentators have resorted
to superior rights, to jus cogens, to provide the foundation for the binding norma-
tive status of rights whose customary law underpinnings are still weak. Too liberal
an invocation of superior rights, fundamental rights, basic rights, or jus cogens,
may, however, weaken the credibility of all rights.
But the positive outweighs the negative. The use of such hierarchical terms
as jus cogens promotes a normative order in which higher norms can be invoked
as a moral and legal barrier against violations and derogations. Such terms dis-
courage violations and strengthen the case for responsibility and accountability.
Hierarchical terms have helped to establish the foundations for erga omnes obli-
gations. In the constant clash between claims by the civil society and repressive
governments, the language of jus cogens has played a signicant role, as, for ex-
ample, in protecting the right to life.
110 Cassese, supra note 58, at 169.

111 Draft Articles on State Responsibility, art. 19, in Report of the International Law Com-
mission on the Work of its Forty-eighth Session, 6 May-26 July 1996, U.N. GAOR, 51st
Sess., Supp. No. 10, U.N. Doc. A/51/10 (1996).
208 Chapter 3
D. Termination of Treaties
I. Withdrawal and Denunciation

In its Advisory Opinion on Namibia (1971),113 the ICJ recognized the customary
law nature of the Vienna Conventions provisions on termination of treaties.114 A
recent case demonstrates the trend in the international community to refuse to
admit the possibility of denunciation of or withdrawal from multilateral conven-
tions in the eld of human rights. The case concerned the Democratic Peoples
Republic of Koreas notication to the Secretary-General in August 1997 of its
withdrawal from the Political Covenant. North Korea justied its withdrawal by
reference to extremely dangerous and hostile acts which encroach upon [its] sov-
ereignty and dignity[.]115 It asserted that in so doing, the North Korean govern-
ment had exercised its legitimate and just self-defense right in connection with
the misuse of the International Covenant on Civil and Political Rights by hostile
elements for their dishonest political objective.116
The U.N. Secretariat then drafted an aide-memoire explaining its legal posi-
tion, which it forwarded to North Korean authorities. It stated that the Political
Covenant does not contain any provision on denunciation or withdrawal. In as-
sessing the legal position regarding withdrawal from the Covenant, the Secre-
tariat based itself on Article 56 of the Vienna Convention, to which North Korea
was not a party, as declaratory of customary law. It concluded that a Party to the
Political Covenant could only withdraw from it in accordance with Article 54 of
the Vienna Convention, i.e., with the consent of the Parties. After an examination
of denunciation clauses in other human rights instruments negotiated during the
same period, the Secretariat found that the negotiating parties deliberately did
not intend to provide for withdrawal or denunciation.117 It considered the Political
Covenant an instrument for which a right of denunciation could not be implied:
In considering whether human rights treaties are by their nature subject to a right
of denunciation or withdrawal, it should be noted that human rights treaties express
universal values from which no retreat should be allowed. This is also consistent with
the United Nations approach to human rights.118
Resolution 276 (1970), 1971 I.C.J. 16, at 55, 122 (June 21).
114 Id., at 47.
115 Notication by the Democratic Peoples Republic of Korea, 23 August 1997, U.N. Doc.
C.N.467.1997.Treaties-10 (1997).
116 Id.
117 Aide Memoire: Denunciation of the ICCPR by the Democratic Peoples Republic of
Korea, 23 September 1997, Annex, 4, U.N. Doc. C.N.467.1997.Treaties-10 (1997).
118 Id., 7.
Although many human rights instruments provide for a right of denuncia-

tion, the Secretariat observed that such treaties in general do not imply an inher-
ent right of denunciation or withdrawal and that since the Political Covenant
is among the relative minority of human rights treaties not explicitly subject to
denunciation or withdrawal, it is incorrect to assume that its nature somehow
implies such a right.119 Its earlier withdrawal notwithstanding, in March 2000,
North Korea submitted its second report to the Human Rights Committee under
Article 40 of the Covenant.120
The Human Rights Committee adopted the same position as the Secretariat
in a General Comment. Discussing Article 56(1) of the Vienna Convention, it con-
cluded that the drafters of the Political Covenant deliberately intended to exclude
the possibility of denunciation.121 The nature of the instrument did not imply a
right of denunciation. As part of the International Bill of Human Rights, the
Political Covenant was not of a temporary character typical of treaties for which
a right of denunciation would be admitted despite the absence of a specic provi-
sion to that eect. The Committee went even further. It mentioned its long-stand-
ing position that
once the people are accorded the protection of the rights under the Covenant, such
protection devolves with territory and continues to belong to them, notwithstanding
change in Government of the State party, including dismemberment in more than
one State or State succession or any subsequent action of the State party designed to
divest them of the rights guaranteed by the Covenant.122
II. Material Breach

The Vienna Convention does not address directly the question of State respon-
sibility for the breach of a conventional obligation. Article 73 provides only that
[t]he provisions of the present Convention shall not prejudge any question that
may arise ... from the international responsibility of a State .... On a more general
plane, however, the Convention shows some recognition of enhanced responsi-
bility for violations of normative, multilateral conventions. Reuter thus notes that
the Vienna Convention
119 Id., 8.
120 Status of withdrawals and reservations with respect to the International Covenants on
Human Rights: Report of the Secretary-General, UN Doc. E/CN.4/Sub.2/2000/7, Part
III, 12.
121 General Comment No. 26 (1997), Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/
Rev.5 (2001), p. 162, at 3-5.
122 Id., at 4. See discussion in Buergenthal, supra note 36, at 360-62. The Committee
took the view that the former Yugoslav States and the former Soviet Republics were
bound by their obligations under the Covenant as from the date of their indepen-
dence. Id. at 360 and note 58.
210 Chapter 3
whenever it touches upon questions of responsibility, [it] takes into account the ob-
ject and character of the obligation breached. Whether implicitly (invalidity for coer-
cion against a party or its representative ...), or in more general if unspecied terms
(invalidity for breach of a peremptory rule ...), or again in more restrictive though
still uncertain terms (special rgime for provisions of a humanitarian character...),
an emerging distinction is noticeable between international rules according to their
importance and their value.123
Under Article 60 of the Vienna Convention, a party is allowed to terminate or

suspend a treaty on the ground of a material breach by another contracting party.
Material breach, a term understood in the past only by cognoscenti, gained recent
currency with the adoption by the Security Council of Resolution 1441 (2002)
on weapons inspections in Iraq, which used this term prominently. Article 60(5)
of the Vienna Convention, however, precludes a State from invoking a material
breach as a justication for suspending or terminating 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 pro-
tected by such treaties. This last paragraph, which did not appear in the ILC draft
articles, was proposed by Switzerland and inspired by the International Com-
mittee of the Red Cross.124 Simma wrote that the initial proposal was designed to
cover humanitarian law treaties, but in the intention of the proponents of para-
graph 5, the operation of the principle in Article 60 was also to be excluded in the
case of treaties for the protection of human rights in peacetime.125 He emphasized
that Article 60 takes into account the special features of human rights treaties,
i.e., that they contain obligations which are integral in the sense that they run
inseparably between all the States Parties, with the eect that any bilateral meas-
ure of reciprocal non-application would necessarily infringe upon the rights of
all other States Parties to continued performance. Therefore, the principle of law
embodied in Article 60(5) clearly applies to both humanitarian and human rights
treaties. It leaves intact the right of a State to suspend those provisions which do
not relate to the protection of human rights and humanitarian norms and do not
constitute jus cogens in response to a material breach of a humanitarian or human
rights treaty. Nevertheless, such provisions are often neither separable from the
remainder of the treaty, nor of any signicant weight in the balance of reciprocity
between the States concerned.126 Whether Article 60(5) will be applied to treaties
other than humanitarian and human rights treaties is unclear. To the extent that
some normative treaties reect broad community values and are not designed to
ensure reciprocity, there may well be a tendency to take into account the principle
stated in Article 60(5). Indeed, Reuter notes that a great many ... controversial ex-
123 Reuter, supra note 11, at 197-198 (emphasis in original).

124 Id., at 200.
125 Simma, supra note 2, at 209-10.
126 Meron, Human Rights and Humanitarian Norms as Customary Law 241-242 (1991).
On breach of treaty, see generally Shabtai Rosenne, Breach of Treaty (1985).
tensions can be thought of, depending on whether the legal basis of this provision
is seen as conventional or as founded on a peremptory rule.127
In its Advisory Opinion on Namibia, the ICJ enunciated an important posi-
tion, also reected in Article 60(5) of the Vienna Convention (which was not men-
tioned in the opinion), on the non-reciprocal character of humanitarian treaties.
The Court considered the legal consequences of the continued presence of South
Africa in Namibia, notwithstanding Security Council Resolution 276 (1970). The
resolution had declared invalid and illegal all acts taken by the Government of
South Africa on behalf of or concerning Namibia after the termination of the
Mandate. The Court recalled that member States were under an obligation to
abstain from entering into treaty relations with South Africa in all cases in which
the Government of South Africa purported to act on behalf of or concerning Na-
mibia and added:
With respect to existing bilateral treaties, member States must abstain from invoking
or applying those treaties or provisions of treaties concluded by South Africa on be-
half of or concerning Namibia which involve active intergovernmental co-operation.
With respect to multilateral treaties, however, the same rule cannot be applied to
certain general conventions such as those of a humanitarian character, the non-per-
formance of which may adversely aect the people of Namibia.128
Thus the international community has strengthened the binding nature of rules
protecting fundamental human and humanitarian rights by refusing to recognize
either an implicit right of denunciation or the invocation of material breach as a
defense for non-performance.
E. Succession to Treaties
The Vienna Convention on the Law of Treaties does not address succession of
States. It states in Article 34, that a treaty creates neither obligations nor rights for
a third State without that States consent. Article 38 conrms, however, that the
Convention does not preclude a rule set forth in a treaty from becoming binding
upon a third State as a customary rule of international law.
The Vienna Convention on Succession of States in Respect to Treaties (1978)129
which is not yet in force rests on two distinctions. The rst is the distinction
between personal and dispositive obligations. Such a distinction is recognized
in Articles 11 and 12, according to which boundary and other territorial regimes

Resolution 276 (1970), 1971 I.C.J. 16, at 55 (June 21).
129 Vienna Convention on Succession of States in Respect to Treaties, opened for sig-
nature 23 August 1978, not in force, U.N. Doc. A/CONF.80/31 and Corr.2 (1978), 17
I.L.M. 1480 (1978) [hereinafter Vienna Convention on State Succession].
212 Chapter 3
continue in force and are not aected by State succession. Although at the time of
the drafting of the Convention in the ILC, it had been suggested that obligations
contained in law-making treaties would continue to bind successors States, that
view did not prevail.130 Article 12 recognizes treaties creating objective regimes,
which may, as Sinclair observes, have certain eects erga omnes.131 These would
be treaties pertaining to permanent rights of a territorial character and treaties
establishing areas of demilitarization or neutralization, perhaps global commons,
and perhaps such territorially-based rights as navigation of waterways, or transit
of national territory.132 With respect to treaties intended to create an objective re-
gime, the ILC stated that the successor State is not to be regarded simply as a third
State in relation to the treaty but that international law rules pertaining to succes-
sion also come into play and may create obligations for the successor State.133
The second distinction, one that applies to multilateral treaties, turns on the
type of successor State. The Vienna Convention on Succession of States in Respect
of Treaties provides for a presumption of continuity i.e. treaties of the predecessor
State continue in force in respect of each successor State, when a part or parts
of the territory of a State separate to form one or more States[.]134 It, however,
recognizes a clean slate rule for newly independent States, i.e., ex-colonial ter-
ritories:135 a State is not bound to maintain in force, or to become a party to, any
treaty concluded by the predecessor State.
The policy underlying this distinction has been criticized. According to some
commentators, it has introduced a measure of imbalance and removed reciproc-
ity by allowing newly emergent States to adopt old treaties while permitting them
to disregard promises to continue treaty relations contained in devolution agree-
ments with the former colonial State.136 In contrast, States which have not been
colonies are bound by their predecessors treaties. The failure of States to ratify
the Convention is not surprising. Legal advisers of countries of the Council of
Europe considered that it did not represent existing public international law and
that the distinction between continuation and dissolution of States was unhelpful
for determining the obligations of successor States with regard to treaties of the
predecessor State. They recommended that to avoid a legal vacuum, a new State
130 Menno Kamminga, State Succession in Respect of Human Rights Treaties, 7 Eur. J. Intl
L. 469, 473 (1996).
132 Detlev F. Vagts, State Succession: The Codiers View, 33 Va. J. Intl L. 275, 289 (1993).
133 Succession of States in Respect of Treaties, Report of the International Law Com-
mission on the Work of Its Twenty-sixth Session, 6 May-26 July 1974, 2 Y.B. Intl L.
Commn 204 (1974).
134 Vienna Convention on State Succession (1978), supra note 129, art. 34.
135 Id., art. 19.
136 Vagts, supra note 132, at 283.
should make a declaration of succession to multilateral treaties, but considered

that States parties should be able to oppose such a declaration.137
Others have regarded the distinction between colonies and non-colonies as a
reasonable compromise, assuring both continuity and equity.138 The Restatement
(Third) of the Foreign Relations Law of the United States (Restatement) goes
so far as to claim that all newly independent States benet from the clean slate
principle.139
Neither the Vienna Convention on the Law of Treaties nor the Vienna
Convention on Succession of States in respect of Treaties recognizes a rule or a
presumption of continuity based on the character of a treaty. It is important, of
course, that international law and policy should be guided by such fundamental
values as stability of international treaties, especially general normative treaties. I
agree with Schachter that an especially strong case for continuity can be made in
respect of multilateral treaties of a so-called universal character that are open to
all States.140 Schachter has predicted that most such treaties of a general legisla-
tive character will be treated in the future as automatically binding on new States
on the basis of adherence by their respective predecessor States.141 This category
of treaties would include codication conventions (e.g. law of treaties, diplomat-
ic relations) and law-making treaties, such as human rights conventions.142 The
chairmen of the human rights treaty bodies expressed a similar view in 1994:
[T]hey were of the view that successor States were automatically bound by obliga-
tions under international human rights instruments from the respective date of inde-
pendence and that observance of the obligations should not depend on a declaration
of conrmation made by the Government of the successor State.143
The ICTY Appeals Chamber agreed in the Celebii case. Relying both on the cus-
tomary nature of the obligations contained in the Geneva Conventions and on a
customary rule according to which there is automatic State succession to multi-
137 Paul R. Williams, The Treaty Obligations of the Successor States of the Former Soviet
Union, Yugoslavia, and Czechoslovakia: Do they Continue in Force?, 23 Denv. J. Intl
L. & Pol. 1, 9-10 (1994).
138 Edwin D. Williamson and John E. Osborn, A U.S. Perspective on Treaty Succession
and Related Issues in the Wake of the Breakup of the USSR and Yugoslavia, 33 Va J.
Intl L. 261, 263 (1993).
139 1 Restatement (Third) of the Foreign Relations Law of the United States 210 (1987).
140 Oscar Schachter, State Succession: The Once and Future Law, 33 Va. J. Intl L. 253, 259
(1993).
141 Id., at 259.
142 Vagts, supra note 132, at 289-290.
143 Status of International Covenants on Human Rights: Succession of States in Re-
spect of International Human Rights Treaties: Report of the Secretary-General, U.N.
ESCOR Commission on Human Rights, 51st Sess., U.N. Doc. E/CN.4/1995/80, 10
(1994).
214 Chapter 3
lateral humanitarian treaties in the broad sense, i.e., treaties of universal charac-
ter which express fundamental human rights, the Tribunal held that Bosnia and
Herzegovina was bound by the Geneva Conventions from the date of that States
creation. Article 23(2) of the Vienna Convention, which provides that the opera-
tion of a treaty is suspended pending succession, was held to be inapplicable.144
The Appeals Chamber rearmed this decision in the recent judgment in the case
of Kordi and erkez.145
Detlev Vagts makes a powerful argument in favor of succession to treaties
which codify or develop principles of international law. Such treaties state norms
widely regarded as customary law and are thus binding on all States. There seems
to be little equity in allowing new States to escape their obligations.146 The prob-
lem, however, is that the core of the human rights treaties resides in their mecha-
nisms for supervision, mechanisms which cannot be regarded as customary law
and thus subject to succession.
In the eld of arms control agreements, Vagts regards the Nuclear Test Ban
Treaty as similar to codifying agreements.147 With regard to such issues, although
the law is unsettled, the United States prefers to presume continuity in the treaty
relations.148 From the perspective of the United States, it is advantageous for all
the ex-Soviet republics, for example, to continue as parties to multilateral con-
ventions of general application to all States, except the Non-Proliferation Treaty,
where any attempt to allocate rights or obligations under the Treaty (which des-
ignated the Soviet Union as a nuclear power) to all the republics would be incon-
sistent with the purpose and object of the treaty.149
Unfortunately, despite some movement here and there, it is far from clear
that the practice of States follows the principle of succession to general normative
conventions, even in the eld of human rights. In the case of the dismemberment
of both the U.S.S.R. and Yugoslavia, neither the continuity nor the clean-slate
principle has been fully applied to bilateral and multilateral treaties with limited
participation, but rather a procedure of negotiated and agreed readjustment of
the international obligations of predecessor States150 has been followed. As regards
universal treaties, the practice of the successor States has been inconclusive.151 As
a general rule, successor States of the Soviet Union (except the Russian Federa-
tion) have acceded not succeeded to general multilateral conventions such
144 Prosecutor v. Delali and others, Case IT-96-21-A, Appeals Chamber, Judgement, 20
February 2001, 111.
145 Case IT-95-14/2-A, Appeals Chamber, Judgment, 17 December 2004.
146 Vagts, supra note 132, at 290.
147 Id., at 292-293.
148 Williamson and Osborn, supra note 138, at 263 (1993).
149 Id., at 265-266.
150 Rein Mullerson, New Developments in the Former USSR and Yugoslavia, 33 Va. J. Intl
L. 299, 317 (1993).
151 Id., at 318.
as conventions on diplomatic and consular relations and human rights treaties.

In the case of the Geneva Conventions and their protocols, four of the successor
States considered themselves as successors while the others acceded to the Con-
ventions, showing that they did not consider themselves automatically bound by
such treaties as successor States. Conversely, successor States of Czechoslovakia
and of the Socialist Republic of Yugoslavia considered themselves as successors to
most universal treaties that their predecessor State had ratied.152
Arguments in favor of automatic succession to human rights treaties have
been advanced on several theories. The rst has been to suggest that individual
human rights be treated as acquired rights.153 The Human Rights Committee has
adopted a related concept by considering that human rights devolve with the ter-
ritory, as already mentioned in our discussion of withdrawal and denunciation. A
case in point is the resumption of Chinese sovereignty over Hong Kong. Under
the Vienna Convention on State Succession, in such circumstances treaties of the
predecessor State cease to be in force in the territory subject to the succession
and treaties of the successor State come into force in that territory.154 At the time
of the succession, the United Kingdom, but not China, was a party to the two
Covenants. However, the Joint Declaration signed by the two States in 1984 stipu-
lated inter alia that [t]he provisions of the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and Cultural
Rights as applied to Hong Kong shall remain in force.155 In considering the re-
port made by the United Kingdom for Hong Kong, the Human Rights Committee
mentioned its position that the protection of the rights under the Political Cov-
enant cannot be denied to [the inhabitants] merely by virtue of dismemberment
of that territory or its coming under the sovereignty of another State or of more
than one State. However, taking into account the Joint Declaration, the Com-
mittee considered that it was unnecessary to rely solely on [its] jurisprudence as
far as Hong Kong was concerned.156 It declared itself ready to give eect to the
intention of the parties. Menno Kamminga considered this agreement as support
by the States concerned for the propositions that human rights entitlements are
inalienable, that they constitute acquired rights, and that they are not aected by
152 Kamminga, supra note 130, at 475-480.

153 Mullerson, supra note 150, at 319; Kamminga, supra note 130, at 472-473; contra Cra-
ven, The Genocide Case, the Law of Treaties and State Succession, 68 Brit. Y.B. Intl L.
127, 157-158 (1997).
154 Vienna Convention on State Succession, supra note 129, art. 15.
155 Draft Agreement between the Government of the United Kingdom of Great Britain
and Northern Ireland and the Government of the Peoples Republic of China on the
Future of Hong Kong, 26 September 1984, reprinted in 23 I.L.M. 1366 (1984). Relevant
provisions are quoted in Nihal Jayawickrama, Human Rights in Hong Kong: The Con-
tinued Applicability of the International Covenants, 25 Hong Kong L.J. 171 (1995).
156 Concluding Observations of the Human Rights Committee: United Kingdom of
Great Britain and Northern Ireland Hong Kong, U.N. Doc. CCPR/C/79/Add.69,
para. 4 (1996).
216 Chapter 3
transfers of sovereignty.157 The Chinese government did not, at rst, agree that its
obligations extended to submitting periodic reports to the Human Rights Com-
mittee, a question which depends on the interpretation of the Joint Declaration.158
China, however, notied the Secretary-General in December 1997 of the con-
tinued application of the Covenants in Hong Kong and on the arrangements for
the Hong Kong Special Administrative Region to report to the UN Committees
in the light of the relevant provisions of the two Covenants.159 China submitted
a report prepared by Hong Kongs authorities to the Human Rights Committee
in 1999, and the Committee in its concluding observations rearmed its earlier
pronouncements on the continuity of the reporting obligation in relation to Hong
Kong.160
However, Hong Kong constitutes a rather special case. Under the one
country, two systems Chinese policy, Hong Kong retains substantial autonomy
in matters of international relations.161 In particular, its Basic Law provides that
[i]nternational agreements to which China is not a party but which are im-
plemented in Hong Kong may continue to be implemented in the Hong Kong
SAR.162
A second theory may be described as one of inherent rights derived from
the specic characteristics of human rights treaties. In his separate opinion in the
Case Concerning the Application of the Genocide Convention, Judge Weeramantry
contended that, although
some human rights treaties may involve economic burdens, such as treaties at the
economic end of the spectrum of human rights human rights and humanitarian
treaties in general attract the principle of automatic succession.163
He argued that the Genocide Convention represents a commitment to certain

norms and values recognized by the international community, transcends con-
cepts of State sovereignty, and embodies rules of customary international law:
[A] State, in becoming party to the Convention, does not give away any of its rights
to its subjects. It does not burden itself with any new liability. It merely conrms its
subjects in the enjoyment of those rights which are theirs by virtue of their human-
ity Human rights treaties are no more than a formal recognition by the sovereign
157 Kamminga, supra note 130, at 481.

158 Id., at 482.
159 UN Doc. CCPR/C/HKSAR/99/1, 2 (1999).
160 See also the Concluding Observations of the Human Rights Committee, China (Hong
Kong), UN Doc. CCPR/C/79/Add. 17 (4 November 1999).
161 Jayawickrama, supra note 155, at 176-177.
162 Id., at 177.
163 Case Concerning Application of the Convention on the Prevention and Punishment of
1996 I.C.J. 595 (July 11) (separate opinion of J. Weeramantry, at (v)).
of rights which already belong to each of that sovereigns subjects. Far from being
largesse extended to them by their sovereign, they represent the entitlement to which
they were born.164
Similar arguments have been advanced by members of the Human Rights Com-
mittee for the continued application of the Political Covenant.
A third theory suggests a presumption of continuity based on the object and
purpose of the treaty at issue. Judge Shahabuddeen thus observed that:
To eectuate its object and purpose, the Convention would fall to be construed as
implying the expression of a unilateral undertaking by each party to the Convention
to treat successor States as continuing as from independence any status which the
predecessor State had as a party to the Convention. The necessary consensual bond
is completed when the successor State decides to avail itself of the undertaking by
regarding itself as a party to the treaty.165
It is to be hoped that such theories will be supported not only by human rights
bodies and scholars but by the practice of States. The task of extending these ra-
tionales for automatic succession of human rights treaties to other types of multi-
lateral treaties faces considerable hurdles, however. The several theories discussed
above are based on the special nature of human rights treaties, in particular on
the fact that they state undertakings of governments in favor of individuals. A
specic rule has thus been carved out for those instruments. Nonetheless, paral-
lel arguments have been suggested for other types of treaties, in particular arms
control and disarmament treaties. Such arguments often emphasize the common
interest of the international community:
[T]he dissolution of the USSR and Yugoslavia also shows that the world community
of States was seriously concerned with the stability of international legal relations
and, by pushing the newly-born States, achieved acceptance by most of them of the
most important obligations of their predecessors. This was the case with the START
and the CFE treaties.166
It has been suggested that arms control agreements could be regarded as disposi-
tive treaties.167 Neutralization and demilitarization agreements are a traditional
category of obligations considered to devolve with territory. But only a few mod-
164 Id., at (vii).

165 Id., Separate opinion of J. Shahabuddeen, at (ii-iii).
166 Mullerson, supra note 150, at 317; Also George Bunn and John B. Rhinelander,
The Arms Control Obligations of the Former Soviet Union, 33 Va. J. Intl L. 323, 349
(1993).
167 Love, International Agreement Obligations After the Soviet Unions Break-up: Cur-
rent United States Practice and its Consistency with International Law, 26 Vand. J.
Transnatl L. 373, 411 (1993).
218 Chapter 3
ern arms control agreements, such as those that establish complete ban on certain
weapons systems, could be regarded as devolving with the territory. It has seldom
been argued that there was automatic succession regarding such treaties. For
most types of arms control agreements, some adjustments have had to be made
to take into account the breaking up of the predecessor State into several units.
For instance, the continuing status of the Soviet Union as a nuclear power under
the Non-Proliferation Treaty168 and arrangements for quantitative limitations on
certain types of armaments became subjects of negotiation.169
F. Reservations to Multilateral Treaties

Much has been written about reservations to human rights treaties. I would like,
therefore, to discuss only a limited number of issues of potential importance for
the entire law of treaties, especially to normative treaties.
I. From the Unanimity Rule to the Object and Purpose Test

Up to the First World War, State practice on reservations was based on the so-
called unanimity rule: any reservation, in order to be admitted, must be accepted
by all contracting parties to the treaty in question.170 The rule of unanimity was
closely linked to contemporary practices in the negotiation of multilateral treaties
and was founded on the concept of the treatys integrity. Texts of multilateral trea-
ties had to be adopted unanimously, so that every participating State in the nego-
tiations could be assured that no unacceptable provisions would bind it without
its consent.171 A Report of the Committee of Experts for the Progressive Codica-
tion of International Law of the League of Nations concluded in 1927 that
[i]n order that any reservation whatever may be validly made in regard to a clause of
the treaty, it is essential that this reservation should be accepted by all contracting
parties, as would have been the case if it had been put forward in the course of the
negotiations. If not, the reservation, like the signature to which it is attached, is null
and void.172
Cracks in the unanimity rule began to appear between the two world wars, espe-
cially in Latin America. A number of countries from that area supported the Pan-
American system, dened by the Governing Board of the Pan-American Union
in 1932 as follows:
168 Treaty on the Non-Proliferation of Nuclear Weapons, 1st July 1968, 21 U.S.T. 483, 729
U.N.T.S. 161, revised.
169 Bunn and Rhinelander, supra note 166, at 348.
170 Sinclair, supra note 10, at 54-55.
171 Id., at 56.
172 Report of the Committee of Experts for the Progressive Codication of International
Law, 8 League of Nations O.J. 69 (1927).
(a) as between States which ratify a treaty without reservations, the treaty applies
in the terms in which it was originally drafted and signed;
(b) as between States which ratify a treaty with reservations and States which ac-
cept those reservations, the treaty applies in the form in which it may be modi-
ed by the reservations; and
(c) as between States which ratify a treaty with reservations and States which, hav-
ing already ratied, do not accept those reservations, the treaty will not be in
force.173
Similarly, the Havana Convention on Treaties adopted by the International Con-

ference of American States (1928) also followed a system departing from unanim-
ity.174
In the post-World War II period, the Latin American departure from una-
nimity in the Pan-American system continued, and many Eastern European States
asserted the sovereign right to make reservations unilaterally and at will[.]175 But
it was the practice of adopting conventional texts by a two-thirds majority that
nally shattered the unanimity rule. Since a minority of States could no longer
be accommodated, the need arose to allow a greater exibility in the reserva-
tions regime.176 As noted by James Brierly, the rst ILC Rapporteur on the Law
of Treaties, two main principles were to inform the law of reservations. First,
the desirability of maintaining the integrity of international multilateral conven-
tions.177 Second, the desirability of the widest possible application of multilateral
conventions.178
These tensions came to a climax when some States sought to make reser-
vations to Article IX of the Convention on the Prevention and Punishment of
the Crime of Genocide, which allowed one party to submit a dispute to the ICJ
unilaterally. Other States insisted that such a reservation was inadmissible and
would invalidate the ratications concerned. As the Convention did not contain
173 Sinclair, supra note 10, at 57; also Rosenne, supra note 8, at 426-427.
174 Havana Convention on Treaties, art. 6, adopted at the Sixth International Confer-
ence of American States (1928), reprinted in Conventions on Public International Law
Adoptee by the Sixth International American Conference, 22 AM. J. INTL. 124 (1928),
which read:
In case the ratifying state make reservations to the treaty it shall become eective when
the other contracting party informed of the reservations expressly accepts them, or
having failed to reject them formally, should perform actions implying its acceptance.
176 Reuter, supra note 11, at 78-79.
177 Reservations to Multilateral Conventions, Report by Mr. J.L. Brierly, Special Rappor-
teur, 11, U.N. Doc. A/CN.4/41, in 2 Y.B. Intl L. Commn 3-4 (1951); quoted in First
Report on the Law and Practice Relating to Reservations to Treaties: Preliminary
Report by Alain Pellet, Special Rapporteur, International Law Commission, 47th Sess.,
2 May- 21 July 1995, 16, U.N. Doc. A/CN.4/470 (1995).
178 Id., 12.
220 Chapter 3
any specic rules on reservations, the General Assembly requested the ICJ to
give an advisory opinion on the validity of the reservations to the Convention.
The Court decided that classic rules could not easily be applied in the multilateral
treaty context. According to the Court, the contracting parties wanted to encour-
age widespread ratication, and did not intend that an objection to a minor reser-
vation should frustrate that goal. Reservations should not, however, be incompat-
ible with the object and purpose of the Convention:
The object and [humanitarian and civilizing] purpose of the Convention thus limit
both the freedom of making reservations and that of objecting to them. It follows that
it is the compatibility of a reservation with the object and purpose of the Convention
that must furnish the criterion for the attitude of a State in making the reservation on
accession as well as for the appraisal by a State in objecting to the reservation. Such is
the rule of conduct which must guide every State in the appraisal which it must take,
individually and from its own standpoint, of the admissibility of any reservation.
Any other view would lead either to the acceptance of reservations which frus-
trate the purposes which the General Assembly and the contracting parties had in
mind, or to recognition that the parties to the Convention have the power of exclud-
ing from it the author of a reservation, even a minor one, which may be quite compat-
ible with those purposes.179
The Court did not consider reservations to Article IX of the Genocide Conven-
tion incompatible with the object and purpose of the Convention. It made it
clear that the humanitarian object of the Convention was central to its decision;
the General Assembly, together with the States that adopted the Convention, in-
tended to obtain the widest possible participation of States without sacricing its
object. While the Genocide Convention is, of course, a human rights treaty, the
Court, as Rosalyn Higgins has observed, was concerned with the broad distinc-
tion between contract treaties and normative treaties.180
The Court stated that the crime of genocide shocked the conscience of man-
kind and was contrary to moral law and to the spirit and aims of the United Na-
tions. It explained that the principles underlying the Convention were recognized
by civilized nations as binding on States even without any conventional obliga-
tions. Although the Court did not explicitly address the question of reservations
to customary law, it recognized two points. First, the principles underlying the
Convention are declaratory of customary law. Second, States have the right to
make reservations to the treaty rules stated in the Convention if those reserva-
tions are not incompatible with the purpose and object of the Convention. The
Genocide, International Court of Justice, Advisory Opinion of 28 May 1951, ICJ Rep.
15, at 24 (1951).
180 Rosalyn Higgins, Introduction, in Human Rights as General Norms and a States Right
to Opt Out: Reservations and Objections to Human Rights Conventions xv, xix (J.P.
Gardner ed., 1997).
contracting States did not intend to sacrice the object and purpose of the Con-
vention in order to secure as many participants as possible. Nor did they intend to
exclude from participation in the Convention states making other reservations.
The Courts opinion is silent on whether reservations to conventional rules
which are identical to customary rules are generally possible. But in the specic
case of the Genocide Convention, the Court appeared to suggest that because
the principles of the Convention that correspond to customary law determine its
humanitarian and civilizing objects, such reservations would be contrary to those
objects and thus inadmissible.181
Although the Court did not embrace the view of those States that argued for
an unrestricted right to make reservations, its decision was criticized for favoring
a minority view, that of the Eastern bloc countries.182 At rst, the ILC considered
the Courts opinion unsuitable for multilateral conventions:
[T]he criterion of the compatibility of a reservation with the object and purpose of a
multilateral convention, applied by the International Court of Justice to the Conven-
tion on Genocide, is not suitable for application to multilateral conventions in gen-
eral. It involves a classication of the provisions of a Convention into two categories,
those which do and those which do not form part of its object and purpose. It seems
reasonable to assume that, ordinarily at least, the parties regard the provisions of a
convention as an integral whole, and that a reservation to any of them may be deemed
to impair its objects and purpose.183
Despite the criticism it attracted, the opinion of the Court transformed interna-
tional law on reservations. As Catherine Logan Piper has noted,
[a]lthough, the Courts opinion met with varying criticism and interpretation, it has
been viewed as the catalytic event initiating the subsequent development in the law
of reservations. Adoption of the compatibility rule in place of the unanimity rule
exemplied a movement towards the objective of universality.184
The Opinion thus marked the starting point of the evolution of the general regime
of reservations. Imbert has observed: depuis lavis de la Cour, un processus ir-
rversible sest produit et nul ne pense plus aujourdhui exiger pour lensemble

182 Reuter, supra note 11, at 79; Sinclair, supra note 10, at 58.
183 Reservations to Multilateral Conventions, in Report of the International Law Com-
mission covering the Work of Its Third Session, 16 May-27 July 1951, 24, U.N. Doc.
A/1858, in 2 Y.B. Intl L. Commn 125, 128 (1951).
184 Catherine Logan Piper, Reservations to Multilateral Treaties: The Goal of Universal-
ity, 71 Iowa L. REV. 295, 313 (1985) (internal citations omitted).
222 Chapter 3
des conventions multilaterales lapplication du principe du consentement unan-

ime.185
Following the opinion of the Court (1951) and the ILC Report (1951), the Gen-
eral Assembly adopted a resolution in the nature of a compromise186 between
the somewhat contradictory opinions of these two organs, which requested the
Secretary-General, inter alia,
... In respect of future conventions concluded under the auspices of the United Na-
tions of which he is
the depositary:
...
(ii) To communicate the text of such documents relating to reservations or
objections to all States concerned, leaving it to each State to draw legal
consequences from such communications.187
The Resolution decided on departure, in UN practice, from the unanimity princi-

ple, for conventions concluded under the auspices of the United Nations for which
the Secretary-General was the depositary. Pellet has noted that this constituted
the guidance followed by the Secretary-General in his practice as depositary until
1959, when the problem resurfaced in connection with the declaration made by
India on the occasion of the deposit of an instrument of acceptance of the Con-
vention on the Intergovernmental Maritime Consultative Organization,188 a dec-
laration to which the Secretary-General of that organization wanted to apply the
unanimity rule. This led to an ILC study of reservations. Commenting in 1959 on
the Indian episode, Oscar Schachter expressed the hope that reservations should
not be employed by a State to evade the essential minimum of binding obligations
laid down by the treaty to which it becomes a party. 189 Unfortunately, States have
not hesitated to make crippling reservations, especially to human rights treaties.
In 1953, two years after the Courts advisory opinion, the ILCs second rap-
porteur on the law of treaties, Hersch Lauterpacht, thus described the rule of
existing law on reservations to multilateral treaties: [A] signature, ratication,
accession, or any other method of accepting a multilateral treaty is void if accom-
185 Pierre-Henri Imbert, Les rserves aux traits multilatraux: Evolution du droit et de
la pratique depuis lavis Consultatif donn par la Cour international de Justice le 28
mai 1951 75 (1978).
187 G.A. Res. 598(VI), U.N. GAOR Sixth Committee, 360th mtg., items 49(a)-50 (1952).
188 First Report on the Law and Practice Relating to Reservations to Treaties, supra note
177, .22 ; also Rosenne, supra note 8, at 431.
189 Oscar Schachter, The Question of Treaty Reservations at the 1959 General Assembly,
54 Am. J. Intl L. 372, 379 (1960).
panied by a reservation or reservations not agreed to by all other parties to the

treaty.190 The Special Rapporteur was of the opinion, however, that
although nothing decisive has occurred to dislodge the principle of unanimous con-
sent as a rule of existing international law, the Commission is not of the view that it
constitutes a satisfactory rule and that it can or ought to be maintained.191
His considerations for a modication of the rule were:
A. It is desirable to recognize the right of States to append reservations to a treaty

and become at the same time parties to it provided these reservations are not of
such a nature to meet with disapproval on the part of a substantial number of
the States which nally accept the obligations of the treaty;
B. It is not feasible or consistent with principle to recognize an unlimited right of
any State to become a party to a treaty while appending reservations, however
sweeping, arbitrary, or destructive of the reasonably conceived purpose of the
treaty and of the legitimate interests and expectations of the other parties;
C. The requirement of unanimous consent of all parties to the treaty as a condition
of participation in the treaty of a State appending reservations is contrary to the
necessities and exibility of international intercourse.192
Although his proposals for the development of the law were not discussed by
the ILC, it was clear that the general attitude of States towards reservations was
evolving towards more exibility, permitting more universal accession, and mov-
ing away from the unanimity rule.
The turning point in international codication came after the rst report
presented by Humphrey Waldock, the fourth ILC Rapporteur on the Law of Trea-
ties.193 The Rapporteur, following the distinction drawn by the third Rapporteur
(Sir G. Fitzmaurice) between bilateral treaties and treaties of limited member-
ship (plurilateral) on one hand, and multilateral treaties on the other, proposed a
exible system for the last category. (The Commission eventually abandoned the
distinction between treaties of limited membership and multilateral treaties, and
the draft articles did not cover reservations to a bilateral treaty).194 The system
190 Law of Treaties, Report by Mr. H. Lauterpacht, Special Rapporteur, Draft art. 9, U.N.
Doc. A/CN.4/63 (1953), in Y.B. Intl L. Commn 90, 91 (1953); quoted in First Report
on the Law and Practice Relating to Reservations to Treaties, supra note 177, 25.
191 Id., at 124.
192 Id., at 125; quoted in First Report on the Law and Practice Relating to Reservations to
Treaties, supra note 177, 26.
193 First Report on the Law of Treaties, by Sir Humphrey Waldock, Special Rapporteur,
art. 1(f ), 17, and 19, U.N. Doc. A/CN.4/144, in 2 Y.B. Intl L. Commn 27, 60-68 (1962);
Sinclair, supra note 10, at 59.
177, 43.
224 Chapter 3
proposed by Waldock was substantially modied by the Commission in its details

but the underlying general principle was adopted:
[I]n the case of general multilateral treaties, the considerations in favour of a exible
system, under which it is for each State individually to decide whether to accept a
reservation and to regard the reserving State as a party to the treaty for the purpose
of the relations between the two States, outweigh the arguments advanced in favour
of retaining a collegiate system under which the reserving State would only become
a party if the reservation were accepted by a given proportion of the other States
concerned.195
II. Appropriateness of the Vienna Regime on Reservations for Human Rights

Treaties
The evolution of the reservations regime culminated in Articles 19 to 23 of the
Vienna Convention on the Law of Treaties (1969), which embody the exible
system based on the object and purpose test.196 Those articles permit the States
parties to apply the system in their reciprocal relations. The two other instru-
ments that relate to reservations, the Convention on Succession of States in
Respect of Treaties (1978) and the Convention on the Law of Treaties between
States and International Organizations (1986) were modeled on the Vienna Con-
vention (1969).197 At the time of the adoption of the Vienna Convention on the
Law of Treaties, these provisions on reservations may have represented at least
in some measure, progressive development rather than codication.198 But, as
Pellet notes, this question has become moot given their acceptance through the
practice of States.
The general regime of reservations and objections established in Article 20 of
the Vienna Convention leaves the assessment of the acceptability of reservations
to contracting Parties.199 Special rules are provided for treaties between a limited
number of participants and treaties establishing international organizations.200
The dynamics of reservations, on the one hand, and of acceptances or objections
of various kinds on the other hand, triggers the application of the principle of
reciprocity and determines the legal eects of objections. Under Article 21(3) of
the Vienna Convention,
195 Report of the International Law Commission covering the Work of Its Fourteenth
Session, 24 April-29 June 1962, U.N. Doc. A/5209, in 2 Y.B. Intl L. Commn 157, 180
(1962).
196 Second Report on Reservations to Treaties, supra note 1, 166.
177, 61.
198 Sinclair, supra note 10, at 13-14.
199 Reuter, supra note 11, at 82-83.
200 Vienna Convention, supra note 5, art. 20 (2) and (3).
[w]hen a State objecting to a reservation has not opposed the entry into force of the
treaty between itself and the reserving State, the provisions to which the reservation
relates do not apply as between the two States to the extent of the reservation.201
However, in the case of normative provisions where inter-State reciprocity plays

no role, such a rule leads to absurd results. The Convention regime is predicat-
ed on reciprocity built within a treaty. In our case of human rights conventions,
however, there is no contractual quid pro quo to withhold.202
The appropriateness of the Vienna Conventions provisions on reservations
to human rights treaties is controversial. Pellet addressed the issue whether the
rules applicable to reservations, whether conventional or customary, were appli-
cable to all treaties, whatever their objects. His discussion focused on whether
reservations to normative treaties, in particular human rights treaties, were sub-
ject to the general rules, as codied in the Vienna Convention, and on whether
the exibility of the Vienna regime in that regard is appropriate for human rights
treaties, i.e., where should the line be drawn between the integrity of the treaty
and universality of participation. Pellet pointed out that drafters can always devise
rules dierent from the Vienna Convention in a particular treaty203 and that claus-
es prohibiting reservations are relatively rare in human rights and disarmament
treaties, although they are more common in environmental treaties.204 Imbert has
noted the great diversity in reservation clauses in human rights treaties, even in
treaties having related objects.205 For Pellet, treaty practice indicates that the ap-
propriateness of reservations to normative treaties is not necessarily excluded,
and that the question cannot be objective and depends far more on political ...
preferences than on legal technicalities[.]206
He insisted on the consensual nature of treaty law:
... these instruments [human rights treaties], even though they are designed to pro-
tect individuals, are still treaties: it is true that they benet individuals directly, but
only because and after States have expressed their willingness to be bound by
them. The rights of the individual derive from the States consent to be bound by such
instruments. Reservations are inseparable from such consent 207
A diametrically opposite view was expressed by Judge De Meyer in the Belilos

case before the European Court of Human Rights:
201 Id., art. 21.

202 Simma, supra note 2, at 181. Also Schabas, supra note 66, at 65 and Second Report on
Reservations to Treaties, supra note 1, 154.
204 Id., 124 and accompanying footnotes.
205 Imbert, supra note 185, 193-196.
207 Id., 142.
226 Chapter 3
The object and purpose of the European Convention on Human Rights is not to cre-
ate, but to recognise, rights which must be respected and protected even in the ab-
sence of any instrument of positive law. It is dicult to see how reservations can
be accepted in respect of provisions recognising rights of this kind. It may even be
thought that such reservations, and the provisions permitting them, are incompatible
with the ius cogens and therefore null and void, unless they relate only to arrange-
ments for implementation, without impairing the actual substance of the rights in
question.208
Supporters of the applicability of the Vienna regime to human rights and humani-
tarian treaties, including the United Kingdom, 209 France, 210 and of course Pellet, 211
have emphasized that its regime was modeled on the 1951 ICJ Advisory Opinion
concerning the Genocide Convention, a normative and humanitarian treaty par
excellence. Pellets conclusion that the object and purpose test also governs hu-
man rights treaties and more generally normative treaties212 was endorsed by the
ILC:
... because of its exibility, this regime is suited to the requirements of all treaties, of
whatever object or nature, and achieves a satisfactory balance between the objectives
of preservation of the integrity of the text of the treaty and universality of participa-
tion in the treaty;
... these objectives apply equally in the case of reservations to normative multilateral
treaties, including treaties in the area of human rights and consequently the general
rules enunciated in the above-mentioned Vienna Conventions govern reservations to
such instruments[.]213
While recognizing the ambiguity of the provisions of the 1969 and 1986 Vienna
Conventions on validity of reservations,214 Pellet suggested that there was a pre-
208 Belilos v. Switzerland, 132 Eur. Ct. H.R. (ser. A) (1988) (concurring opinion of Judge De
Meyer, para. 2).
209 Report of the Human Rights Committee (1995), supra note 37, at (vi).
210 Report of the Human Rights Committee, Vol. I, U.N. GAOR, 51st Sess., Supp. No. 40,
Annex VI, 11, U.N. Doc. A/51/40 (1997).
212 Id., 176.
213 Preliminary Conclusions of the International Law Commission on Reservations to
Normative Multilateral Treaties including Human Rights Treaties, in Report of the
International Law Commission on the Work of Its Forty-ninth Session, 12 May 18
July 1997, U.N. GAOR, 52nd Sess., Supp. No. 10, at 126, 2-3, U.N. Doc. A/52/10,
(1997).
177, 103.
sumption in favor of permissibility of reservations.215 This presumption was chal-

lenged by the Human Rights Committees General Comment No. 24, in which
the Committee insisted on the unsuitability of the Vienna Conventions regime of
reservations to human rights treaties216
Supporting the Human Rights Committee,217 Simma quoted Rosalyn Hig-
ginss statement that one might almost say that there is a collusion to allow
penetrating and disturbing reservations to go unchallenged.218 He considers the
preliminary conclusion of the ILC according to which the Vienna rules on res-
ervations are suited for all treaties, whatever their object or nature, as correct
only from a very formalistic viewpoint.219 I agree with the view that the Vienna
Conventions provisions on reservations are not tting the needs of human rights
treaties or of other normative conventions to which reciprocity is irrelevant. It
is dicult however to suggest a solution which both meets the needs of human
rights and is generally acceptable.
III. Admissibility of Reservations to Normative Treaties

For treaties which do not provide dierent guidelines for reservations by prohib-
iting or permitting specic reservations, the test of permissibility is codied in
Article 19 of the Vienna Convention, which requires that a reservation be compat-
ible with the object and purpose of the treaty. That Article is directly derived from
the principle established in the Genocide Convention case. Article 19 provides:
A State may, when signing, ratifying, accepting, approving or acceding to a treaty,

formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specied reservations, which do not include the
reservation in question, may be made; or
(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incom-
patible with the object and purpose of the treaty.220
The Human Rights Committee noted in its General Comment No. 24 that Ar-
ticle 19 (c) of the Vienna Convention on the Law of Treaties provides relevant
guidance and that its terms reect the general international law on this matter
as had already been armed by the International Court of Justice in The Reserva-
215 Id., 106.

218 Rosalyn Higgins, The United Nations: Still a Force for Peace, 52 Modern L.R. 12 (1989),
quoted in Simma, supra note 2, at 182.
219 Bruno Simma, Reservations to Human Rights Treaties Some Recent Developments,
in Liber Amicorum: Professor Ignaz Seidl-Hohenveldern in honor of his 80th Birth-
day 659, at 678 (G. Hafner et al., eds., 1998).
220 Vienna Convention, supra note 5, art. 19.
228 Chapter 3
tions to the Genocide Convention case of 1951.221 Pellet has observed, correctly,
that the system of the Vienna Convention seeks a balance between integrity and
universality of the treaty. As such, it cannot guarantee the complete integrity of
the treaty.222
The Vienna Convention does not provide any rule on the legal eects of in-
valid reservations. As Pellet puts it when referring to the doctrinal dispute as to
what constitutes an impermissible reservation, can the question of the per-
missibility or impermissibility of a reservation be decided objectively and in the
abstract or does it depend in the end on the subjective determination by the con-
tracting States?223 Consequently, is a reservation which undermines the object
and purpose of a treaty but which is accepted by the other contracting parties
impermissible?
Two doctrinal schools have gained prominence. The rst, the permissibility
school, argues that a reservation is impermissible if it is contrary to the object
and purpose of a treaty or prohibited by it. As Bowett observes in his seminal
article:
The issue of permissibility is the preliminary issue. It must be resolved by reference

to the treaty and is essentially an issue of treaty interpretation; it has nothing to do
with the question of whether, as a matter of policy, other Parties nd the reservation
acceptable or not.224
In its observations on the Human Rights Committees General Comment No. 24,
the United Kingdom appeared to support the permissibility school. 225 (The other
school, the opposability school, argues that the validity of a reservation depends
solely on the acceptance of the reservation by another contracting State.226 ).
a) Reservations to Customary Law

The concept of compatibility is related to the treaty itself, not to customary law.
Thus, every reservation which is not specically permitted or prohibited must be
assessed in light of its compatibility with the object and purpose of the treaty to
which it is addressed. Whether the concordance of a reservation with custom-
ary law is a relevant consideration depends on the treaty itself. The yardstick for
assessing the admissibility of reservations is thus always to be found in the rst
221 General Comment No. 24, supra note 36, 6 and note 2.
177, 100.
224 Derek W. Bowett, Reservations to Non-Restricted Multilateral Treaties, 48 Brit. Y.B.
Intl L. 67, 88 (1976-1977); quoted in First Report on the Law and Practice Relating to
Reservations, supra note 177, 101.
225 Report of the Human Rights Committee (1995), supra note 37, at (ix).
177, 102, also 115.
instance within the treaty (by reference to the treatys object and purpose) and not
outside the treaty, by reference to customary law. However, because even within
the treaty itself it is dicult to nd an objective standard for assessing the com-
patibility of a reservation with the treatys object and purpose, every State may
normally judge for itself whether a reservation is compatible or not.
Ideally, a reservation to a substantive provision of a clearly codifying treaty
should be considered by the parties to that treaty as incompatible with the ob-
ject and purpose of the treaty. In reality, even reservations to treaty provisions
declaratory of customary law have been accepted without raising questions of
compatibility. The connection between compatibility and customary law status
has thus not been established by State practice as central to the admissibility of
reservations.
In the North Sea Continental Shelf case,227 however, the ICJ appeared to de-
part from its earlier opinion on the Genocide Convention. In the North Sea Con-
tinental Shelf case, the Court stated that treaty clauses permitting reservations
to specied provisions of the treaty normally imply that such provisions are not
declaratory of existing or emergent rules of customary law:
speaking generally, it is a characteristic of purely conventional rules and obligations

that, in regard to them, some faculty of making unilateral reservations may, within
certain limits, be admitted; whereas this cannot be so in the case of general or cus-
tomary law rules and obligations which, by their very nature, must have equal force
for all members of the international community, and cannot therefore be the subject
of any rights of unilateral exclusion exercisable at will by any one of them in its own
favor.228
The Court acknowledged that the Conventions reservations clause did not ex-
clude reservations to certain other provisions of the Convention which related to
matters that lie within the eld of received customary law.229 However, the Court
explained, that [t]hese matters ... all relate to or are consequential upon princi-
ples or rules of general maritime law, very considerably ante-dating the Conven-
tion, and only incidental to continental shelf rights as such.230
This gives rise to the question whether the eect of such reservations (except
those concerning jus cogens rules) upon the relationship between the reserving
State and the State accepting the reservation is not similar to that produced by
a treaty establishing a conventional rule which displaces inter partes a rule of
customary law. Of course, leaving aside the rights of a persistent objector, a single
State is not permitted to derogate from any rule of customary international law
unless it can establish a justication precluding wrongfulness, such as force ma-
227 North Sea Continental Shelf Cases (F.R.G. v. Den.; F. R.G. v. Neth.), 1969 I.C.J. 3 ( Feb.
20).
228 Id., at 38-39.
229 Id., at 39.
230 Id.
230 Chapter 3
jeure, state of necessity or self-defense. But as regards customary rules which are
jus dispositivum, several States acting strictly inter se may substitute a rule of con-
ventional law for a rule of customary law. Reservations to those customary norms,
including humanitarian and human rights norms which are not jus cogens, are
made eective by their acceptance under the provisions of the Vienna Conven-
tion which govern the acceptance of such reservations.
The dierence between the Genocide Convention case and the North Sea
Continental Shelf case, may, however, be more apparent than real. Focusing on
reservations to codifying conventions, the Court perhaps intended to enunciate
the principle that some reservations could be inadmissible because of incom-
patibility with the codifying object and purpose of the convention. Indeed, such
reservations may even give rise to questions pertaining to the good faith of the
reserving State. But reservations merely seeking to adapt a codifying convention
to a particular situation, or reservations to conventional provisions that are them-
selves only partly declaratory of customary law, would not necessarily be exclud-
ed as incompatible with the object and purpose of the treaty. Most reservations,
however, would not present compatibility questions in such clear-cut terms and
would, in practice, be regulated through acceptance of and objection to reserva-
tions in accordance with the Vienna Convention.
Unquestionably, reservations may weaken the claims to customary law sta-
tus of the norms that they address.231 In assessing this eect, the number and the
depth of the reservations made must be considered. In practice, those provisions
of human rights treaties that clash with national laws and prevailing religious,
social, economic, and cultural values are particularly likely to be the subject of
reservations. To be sure, under the Genocide test, every State must be guided by
the principle of compatibility when deciding whether to make a reservation or
whether to object to another States reservation. Because dierent considerations
motivate States in making such assessments, there is an obvious danger that res-
ervations will result in encroachments upon customary law. The reluctance of
most States to object even to far-reaching reservations to human rights treaties
heightens this danger. A laissez-faire system typies the Vienna Conventions pro-
visions on reservations, characterized by the frequent absence of a third party
organ authorized to rule on the compatibility of reservations. This leaves the re-
serving States, and other parties to human rights treaties acting ut singuli, as the
nal arbiters of compatibility. Excessive reservations and concerns about the in-
tegrity of human rights treaties have understandably triggered proposals to em-
power supervisory organs established under human rights treaties to determine
the compatibility of reservations.
Apart from treaties closely connected to international public order and in-
ternational regimes such as the U.N. Convention on the Law of the Sea and the
Rome Statute of the International Criminal Court, States nd it dicult to agree
on provisions prohibiting all reservations. Normative treaties often contain both
231 Richard Baxter, Treaties and Custom, in 129 Recueil des Cours 51 (Hague Academy of
International Law 1970-I).
customary and non-customary provisions but States frequently disagree as to

whether certain provisions belong to the rst or the second category. The obvious
solution is to include a reservation clause that provides clear guidance to States.
Such clauses advance the twin goals of promoting universality and protecting the
fundamental values stated in the treaties.
In reacting to the U.S. reservations to the Political Covenant, the Human
Rights Committee insisted in its observations on the U.S.s rst report that it was
particularly concerned at reservations to article 6, paragraph 5, and article 7 of
the Covenant, which it believes to be incompatible with the object and purpose of
the Covenant.232 In its General Comment No. 24, it also attempted to advance a
theory of impermissibility of reservations to customary law provisions contained
in human rights treaties:
Although treaties that are mere exchanges of obligations between States allow them
to reserve inter se application of rules of general international law, it is otherwise
in human rights treaties, which are for the benet of persons within their jurisdic-
tion. Accordingly, provisions in the Covenant that represent customary international
law (and a fortiori when they have the character of peremptory norms) may not be
the subject of reservations. Accordingly, a State may not reserve the right to engage
in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment
or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and
detain persons, to deny freedom of thought, conscience and religion, to presume a
person guilty unless he proves his innocence, to execute pregnant women or children,
to permit the advocacy of national, racial or religious hatred, to deny to persons of
marriageable age the right to marry, or to deny to minorities the right to enjoy their
own culture, profess their own religion, or use their own language. And while reser-
vations to particular clauses of article 14 may be acceptable, a general reservation to
the right to a fair trial would not be.233
The position of the Committee encountered strong opposition from major States.
The United States disagreed with the Committee regarding its views on both cus-
tomary law and incompatibility. It also challenged the Committees assessment
of the customary law character of several provisions of the Covenant, provisions
which had been the object of U.S. reservations.234 The United States argued that:
The proposition that any reservation which contravenes a norm of customary inter-
national law is per se incompatible with the object and purpose of this or any other
convention, however, is a much more signicant and sweeping premise. It is, moreo-
232 Report of the Human Rights Committee (1995), supra note 37, 279.
234 Reservations, Declarations, Notications, and Objections Relating to the Interna-
tional Covenant on Civil and Political Rights: United States, at Multilateral Treaties
Deposited with the Secretary-General, United Nations, New York (ST/LEG/SER.E)
(Accessed on 1 Aug. 1999) <http://www.un.org/Depts/Treaty>.
232 Chapter 3
ver, wholly unsupported by and is in fact contrary to international law an object

and purpose analysis by its nature requires consideration of the particular treaty,
right and reservation in question.
...
Such a position would, of course, wholly mistake the question of the object and pur-
pose of the Covenant insofar as it bears on the permissibility of reservations. In fact, a
primary object and purpose of the Covenant was to secure the widest possible adher-
ence, with the clear understanding that a relatively liberal regime on the permissibil-
ity of reservations should therefore be required.235
The United Kingdom also disputed the Committees view that reservations to
customary law are excluded because the Covenants object is to benet individu-
als.236 France, too, contested the Committees approach. It distinguished between
the duty to observe a general customary principle and the decision to consent to
be bound by a treaty that expresses that principle.237 I believe that these objections
have a rational basis. While it is widely accepted that reservations to peremptory
norms are now allowed, this is not the case of the entirety of customary law.
In its work on reservations, the International Law Commission agreed with
Special Rapporteur Pellet that reservations could be made to customary rules in
principle, provided that they were not contrary to the object and purpose of the
treaty. 238 Of course, a reservation to a conventional rule corresponding to a cus-
tomary rule would have no eect on the substantive obligations of the reserving
State under general international law.
b) Reservations to Peremptory Norms and to Non-Derogable Provisions

In contrast to the controversy over reservations to customary norms which are jus
dispositivum, there is a general agreement on the impermissibility of reservations
to peremptory norms. The Human Rights Committee, for example, has stated
that [r]eservations that oend peremptory norms would not be compatible with
the object and purpose of the Covenant.239 Pellet agreed with the principle that
peremptory provisions in treaties cannot be the subject of reservations.240 Other
writers have asserted that a reservation to a norm of jus cogens would be illegal. 241
The overlap between peremptory norms and those deemed to be non-derogable
235 Report of the Human Rights Committee (1995), supra note 37, at (iii).
236 Id., at (vii-viii).
237 Report of the Human Rights Committee (1997), supra note 210, at (i).
238 Report of the International Law Commission on the Work of its Forty-ninth Session,
supra note 213, 106.
241 Schabas, supra note 66, at 50.
may provide a prima facie test of compatibility, as suggested by the Human Rights
Committee.242
In its Advisory Opinion on Restrictions to the Death Penalty, the Inter-Amer-
ican Court of Human Rights took the view that a reservation to a non-derogable
right the right to life should be deemed to be incompatible with the object
and purpose of the American Convention, unless the reservation sought merely
to restrict certain aspects of a nonderogable right without depriving the right as a
whole of its basic purpose.243 Guatemala had formulated a reservation to Article
4(4) of the American Convention, a provision that prohibits the iniction of capi-
tal punishment for political oenses or related common crimes. The Court con-
cluded that the reservation was not incompatible with the object and purpose of
the Convention, since it did not appear to be of a type that is designed to deny the
right to life as such.244 Buergenthal has commented that the opinion constituted
the rst unambiguous international judicial articulation of a principle basic to the

application of human rights treaties, that non-derogability and incompatibility are
linked. The nexus between non-derogability and incompatibility derives from and
adds force to the conceptual relationship which exists between certain fundamental
human rights and emerging jus cogens norms.245
In objecting to certain reservations to human rights provisions, some States have

suggested that reservations to non-derogable provisions be deemed incompat-
ible with the object and purpose of the treaty prima facie. Belgium objected to
a reservation to Article 11 of the Political Covenant (imprisonment for debt) by
Congo/Zaire. It did not object to the Congolese legislation as such. Instead, it
sought to avoid setting a precedent of toleration of reservations to non-derogable
provisions. Other States have objected to the U.S. reservations to Article 6(5), 246
and Article 7, of the Political Covenant.247 Most of the objectors referred to Arti-
cle 4(2), which lists Article 6 as describing non-derogable rights. Germany stated,
for example, that

243 Advisory Opinion on Restrictions to the Death Penalty (Arts 4(2) and 4(4) of the
American Convention of Human Rights), Inter-Am. Ct. H.R. (ser. A) No.3, 61, OC-
3/83 (1983).
244 Id.
245 Thomas Buergenthal, The Advisory Practice of the Inter-American Human Rights
Court, 79 Am. J. Intl L. 22, 25 (1985) (internal citations omitted).
246 Reservations, Declarations, Notications, and Objections Relating to the Interna-
tional Covenant on Civil and Political Rights: Belgium, Denmark, Finland, France,
Germany, Italy, the Netherlands, Norway , Portugal, Spain, Sweden, supra note 234.
247 Id., at Denmark, Finland, Germany, Italy, the Netherlands, Norway, Portugal, Spain,
Sweden.
234 Chapter 3
[t]he reservation referring to this provision [Article 6(5)] is incompatible with the text
as well as the object and purpose of article 6, which, as made clear by paragraph 2 of
article 4, lays down the minimum standard for the protection of the right to life.248
c) Severability
Judge Hersch Lauterpacht discussed the question of severability in his separate
opinions in the Norwegian Loans 249 and Interhandel 250 cases. In the former case,
he concluded that the solution rested on intent. If the State having known that
the reservation would be considered invalid, would not have ratied the treaty,
then it should not be bound by the treaty. If, on the other hand, the reservation
subsequently considered invalid was merely incidental to the States ratication,
the State remained bound by the treaty, including the reserved provision.251 In the
Interhandel case, Lauterpacht concluded that the U.S. reservation to its declara-
tion accepting the Courts jurisdiction under Article 36(2) of the Courts Statute
was an essential condition of its acceptance:
If that reservation is an essential condition of the Acceptance in the sense that with-
out it the declaring State would have been wholly unwilling to undertake the princi-
pal obligation, then it is not open to the Court to disregard that reservation and at the
same time to hold the accepting State bound by the Declaration.252
There has been considerable discussion of severability v. integrity in the context of

the Genocide Convention. Implicit in the objection to reservations to Article IX
of the Genocide Convention, according to Schabas, is that an illegal reservation
invalidates the instruments ratication.253
For instance, the Netherlands objection to the reservations to Article IX of the
Genocide Convention exemplies a case where the objecting State considers that
the reservation invalidates the treatys ratication:
The Government of the Kingdom of the Netherlands declares that it considers the
reservations made by Albania, Algeria, Bulgaria, the Byelorussian Soviet Socialist
Republic, Czechoslovakia, Hungary, India, Morocco, Poland, Romania, the Ukrain-
ian Soviet Socialist Republic and the Union of Soviet Socialist Republics in respect
of article IX of the Convention on the Prevention and Punishment of the Crime of
Genocide, opened for signature at Paris on 9 December 1948, to be incompatible with
the object and purpose of the Convention. The Government of the Kingdom of the
248 Id., at Germany.

249 Norwegian Loans Case (France v. Norway), 1957 I.C.J. 9 (July 6).
250 Interhandel Case (Switzerland v. United States), 1959 I.C.J. 6 (March 21).
251 Norwegian Loans Case, 1957 I.C.J. at 55-59.
252 Interhandel Case, 1959 I.C.J. at 117.
Netherlands therefore does not deem any State which has made or which will make
such reservation a party to the Convention.254
Another approach deems the illegal reservation to be ineective, but considers

the reserving State bound by the instrument as a whole, including the reserved
provision. 255 Thus, the objecting States often declare that their reservations are
not meant to prevent the entry into force of the Convention between themselves
and the reserving State, despite the incompatibility of the reservations, in their
eyes, with the object and purpose of the convention.256 In some cases, however,
objections do not make it clear whether the reserved provision is considered to
be in force.
In the Belilos case, the European Court of Human Rights held for the rst
time that a reservation to the European Convention was invalid. The Court stated
that ... it is beyond doubt that Switzerland is, and regards itself as, bound by the
Convention irrespective of the validity of the declaration. Moreover, the Swiss
Government recognized the Courts competence to determine the latter issue,
which they argued before it.257
Belilos was followed by Chrysostomos et al. v. Turkey.258 Greek Cypriots pe-
titioned the European Commission of Human Rights alleging violations of their
rights in Northern Cyprus and in the buer zone. The Turkish declaration recog-
nizing the competence of the Commission to receive individual petitions included
a statement that it only applied in territory subject to the Constitution of Turkey.
Turkey intended to exclude petitions concerning Northern Cyprus. Greece ob-
jected to the reservation and several other States reserved their right to do so.259
The Commission considered the relevant provisions of the Convention and its
254 Reservations, Declarations, Notications and Objections Relating to the Convention

on the Prevention and Punishment of the Crime of Genocide: Netherlands, at Mul-
tilateral Treaties Deposited with the Secretary-General, United Nations, New York
(ST/LEG/SER.E) (accessed on 1st August 1999) <http://www.un.org/Depts/Treaty>.
256 See, for example, Reservations to the Convention on the Elimination of All Forms
of Discrimination Against Women, Report of the Secretariat, Committee on the
Elimination of Discrimination Against Women, 16th Sess., 15, U.N. Doc. CEDAW/
C/1997/4 (1996).
257 Belilos v. Switzerland, 132 Eur. Ct. H.R. (Ser. A) 60 (1988). [A-35] In Fischer v. Aus-
tria, Judge Matscher criticized the policy of the Court to restrict the scope of reser-
vations and interpretative declarations, and even to eliminate them as far as possible.
From the point of view of international law, this practice strikes me as highly ques-
tionable, given that Article 64 expressly authorizes States to make reservations, even
if the Convention makes them subject to certain conditions. 312 Eur. Ct. H. R. (Ser.
A.), Concurring Opinion of Judge Matscher, 60 (1995).
258 Chrysostomos, Papachrysostomos and Loizidou v. Turkey, App. Nos. 15299/89,
15300/89, and 15318/89 (joined), Decision of 4 March 1991 on the admissibility of the
application, 68 Eur. Commn Dec. & Rep. 216 (1991).
259 Id., at 233-236, and 243.
236 Chapter 3
object and purpose and then referred to some of its earlier statements on the
collective enforcement of the rights and freedoms and the objective character
of the obligations of the Parties under the Convention.260 It dismissed any anal-
ogy with declarations under Article 36, paragraph 3 of the ICJ Statute. It found ...
that the character of the Convention, as a constitutional instrument of European
public order in the eld of human rights, excludes application by analogy ... of the
State practice under Article 36 para. 3 of the Statute of the International Court
of Justice. Declarations under this clause create mere reciprocal agreements be-
tween Contracting States.261
The Commission held that territorial reservations were not permitted under
the Convention, and that Turkey remained bound by its declaration. To assess the
eect of the illegal reservation, the Commission referred both to subjective (the
States intent) and objective criteria (the object and purpose of the Convention):
[w]here a State has clearly expressed the intention to be bound under Article 25, but
has added restrictions to its declaration which are incompatible with the Convention,
the main intention of the State must prevail.262
When it considered the case commonly called Loizidou, the European Court of
Human Rights similarly concluded that the reservation was invalid because of
the character of the Convention, the ordinary meaning of Articles 25 and 46
in their context and in the light of their object and purpose[.]263 The Court also
maintained the validity of the Turkish declarations under Articles 25 and 46. The
approach taken by the Commission and the Court shifted the traditional pre-
sumption that express consent is required for a State to be bound.264 In eect, the
Commission and the Court required Turkey to demonstrate that it did not intend
to be bound by its declaration without the benet of its reservation, a burden that
it did not discharge.
Considerations similar to those in the Loizidou case were raised by the Inter-
American Court to deny eect to Perus purported withdrawal of its recognition
of the Courts jurisdiction. Emphasizing the integrity of the American Convention
and the fundamental importance of the judicial protection of human rights, the
Court ruled that a State could not withdraw its recognition of the Courts jurisdic-
tion without denouncing the Convention as a whole. On September 24, 1999 the
Court issued two judgments: one in the Ivcher-Bronstein case,265 and the other in
260 Id., at 241-242.

261 Id., at 242.
262 Id., at 249.
263 Loizidou v. Turkey, 310 Eur. Ct. H.R. (ser A.) 89 (1995).
264 Elena A. Baylis, General Comment 24: Confronting the Problem of Reservations to Hu-
man Rights Treaties, 17 Berkeley J. Intl L. 277, 304 (1999).
265 Case of Ivcher-Bronstein (Competence), Inter-American Court of Human Rights,
Judgment of 24 September 24, 1999, paras. 40-41, available at < http://corteidh-oea.
nu.or.cr/ci/PUBLICAC/SERIE C/C 54 ESP.HTM> (Spanish).
the Constitutional Tribunal case.266 Both raised similar issues of jurisdiction. In

both cases, the Court emphasized that, as a court of law, it had the inherent right
to determine its own competence (comptence de la comptence/Kompetenz-
Kompetenz). Acceptance of compulsory jurisdiction presupposes the recognition
by States of the Courts competence to determine its own jurisdiction.267
The Court said, in eect, that in interpreting the Convention in confor-
mity with its object and purpose, the Court must preserve the integrity of the
mechanism provided in Article 62 of the Convention. It would be inadmissible
to subordinate that mechanism to restrictions attached by States with regard to
on-going proceedings. Such restrictions would not only aect the ecacy of the
mechanism but also impede its future development. Article 62 did not permit
limitations other than those for which it explicitly provided. The compulsory ju-
risdiction clause was fundamental to the operation of the Conventions system of
protection; therefore, it could not be left at the mercy of limitations not provided
for in the Convention. The Court reasoned that neither the Convention nor the
Peruvian acceptance of jurisdiction contemplated such a withdrawal of the ac-
ceptance of compulsory jurisdiction.268
The interpretation of the American Convention in good faith, in conformity
with the ordinary meaning that must be attributed to the terms of the treaty in
its context, and taking into account its object and purpose269 led the Court to
conclude that a State Party to the American Convention could only release itself
from its treaty obligations in accordance with the provisions of the treaty itself.
Therefore, the only way that a State could free itself of the compulsory jurisdiction
of the Court was to denounce the treaty as a whole. The denunciation would enter
into eect, in conformity with Article 78, after one year. Article 29 of the Conven-
tion supports this interpretation.270
The Court went on to reiterate the specic characteristics of human rights
treaties: they are inspired by superior values; they include specic mechanisms of
supervision; they are applied in conformity with the notion of a collective guar-
antee; their obligations are objective and are of a special nature and, hence, are
dierent from the obligations in treaties based on reciprocity. Drawing on the
Loizidou case before the European Court of Human Rights, the Court ruled out
any analogy with the optional clause (Article 36(2)) of the ICJ Statute.271 It refused
to distinguish substantive from procedural rights within the human rights protec-
tion system and ruled that Article 62 of the American Convention was an integral
266 Constitutional Tribunal Case, Inter-American Court of Human Rights, Judgment

of 24 September 24, 1999, available at <http://corteidh-oea.nu.or.cr/ci/PUBLICAC/
SERIE_C/C_55_ESP.HTM> (Spanish).
267 Case of Ivcher-Bronstein (Competence), 32-34.
268 Id., 35-39.
269 Id., 40.
270 Id., 40-42.
271 Id., 47-49.
238 Chapter 3
part of the Convention and as such was governed by the rules on denunciation of
the Convention, thus disallowing a partial denunciation of the Convention.272
In its General Comment No. 24, the Human Rights Committee enunciated
the doctrine of severability of unacceptable reservations to human rights trea-
ties:
... The normal consequence of an unacceptable reservation is not that the Covenant
will not be in eect at all for a reserving party. Rather, such a reservation will generally
be severable, in the sense that the Covenant will be operative for the reserving party
without benet of the reservation.273
The United States objected asserting that this conclusion is completely at odds
with established legal practice and principles.274
France275 and the United Kingdom276 also opposed the Committees sever-
ability doctrine. advanced a similar objection. Simma has observed that although
the United Kingdom and France disapproved of the position taken by the Human
Rights Committee on the severability of invalid reservations, they seem to have
accepted in the European Court of Human Rights an approach similar to that of
the Committee.277 Yet, the European system of human rights protection, based
on a binding adjudicatory system, encroaches more signicantly on States sover-
eignty.278 Other European States Belgium, Denmark, Finland, Ireland, Portugal
and Sweden have adopted the severability doctrine in relation to universal
human rights treaties, albeit not consistently.279
Pellet has joined in the criticism of the European jurisprudence and of the
Human Rights Committees position on the severability of the reservation from
the consent to be bound. He has noted that the Vienna Convention does not con-
template such a solution. Only two possibilities were considered: non-application
of the reserved provision objected to (Article 20 (1) (a)) or of the treaty as a whole
(Article 20(4)(b)). He maintained that consensuality ... is the very essence of any
treaty commitment,280 but recognized that the question of severability goes be-
yond the subject of reservations to treaties and concerns also the specic powers
and competence of the organ assessing the reservations and deciding on sever-
ability. He dened that competence as follows:
272 Karen C. Sokol, Case note: Ivcher Bronstein and Constitutional Tribunal, 95 A.J.I.L.
178, 182-184 (2001).
274 Report of the Human Rights Committee (1995), supra note 37, at (v).
275 Report of the Human Rights Committee (1997), supra note 210, at (iii).
276 Report of the Human Rights Committee (1995), supra note 37, at (x).
278 Baylis, supra note 264, at 303.
279 Simma, supra note 219, at 666-668.
1. The human treaty-monitoring bodies may determine the permissibility of reser-

vations formulated by States in the light of the applicable reservations regime;
2. If they consider the reservation to be impermissible, they can only conclude that
the reserving State is not currently bound;
3. But they cannot take the place of the reserving State in order to determine
whether the latter wishes or does not wish to be bound by the treaty despite the
impermissibility of the reservation accompanying the expression of its consent
to be bound by the treaty.281
Thus, [the State] alone must determine whether the impermissible reservation
that it attached to the expression of its consent to be bound constituted an es-
sential element of that consent.282 Following a monitoring bodys nding that a
reservation is invalid, the State would then have two options: to withdraw from
the treaty or to terminate the reservation.283 Pellet, however, favors a third solu-
tion: permitting the State to modify its reservation to make it compatible with the
object and purpose of the treaty.284
Under the Vienna Convention, States may make a reservation when signing,
ratifying, accepting, approving or acceding to a treaty.285 Some construe that pro-
vision to exclude any possibility of subsequent modication.286 Pellet has argued,
however, that to permit a State to modify its reservation so as to make it com-
patible with the treaty [would] not [be] incompatible [with] the Vienna rules,
and would have the advantage of reconciling the requirements of integrity and
universality that are inherent in any reservations regime.287 Judge Valticos advo-
cated this solution in his partly dissenting opinion in the Chorherr case before the
European Court:
... if, several years after it has been made (when the Convention was ratied), a reser-
vation is found to be contrary to the rules laid down in Article 64 and is therefore held
to be null and void, can it be replaced by another reservation which is more consist-
ent with that Article? In principle that should not be possible because a reservation
may be made only at the moment of ratication. That would, however, be unreason-
able, because the government concerned has been informed of the non-validity of
their reservation only several years after the ratication. The government in question
281 Id., 231.

282 Id., 243.
283 Id., 244.
284 Id., 247-251.
285 Vienna Convention, supra note 5, art. 19.
240 Chapter 3
should therefore have the opportunity to rectify the situation and to submit a valid
reservation within a reasonable time and on the basis of their former reservation.288
There is some State practice supporting this approach. Following the Belilos judg-
ment, for example, Switzerland, for example, has made two modications to its
declaration without apparent objection from the other parties.289 Giorgio Gaja
has listed several instances in which reservations have been made after the de-
posit of the instrument of ratication or accession, sometimes even years after
the entry into force of the treaty concerned, without objections from the other
parties. With this in mind, he concludes that there is a rule that allows States to
make reservations even after they have expressed their consent to be bound by
a treaty, provided that the other Contracting Parties acquiesce to the making of
reservations at that stage.290
State practice allows the withdrawal of reservations. It would therefore be
reasonable to allow States to amend their reservations on the condition that they
would be made less extensive and thus broaden the States acceptance of norma-
tive commitments.291 But whether a reservation enlarges or limits the obligations
of a contracting party is not necessarily obvious. There is a clear risk of abuse.
Granting competence to a judicial or quasi-judicial body to scrutinize such a re-
vised reservation could thus be desirable.
A variant of this situation occurs when a State formally respects the Vienna
Conventions rules but circumvents them by denouncing a treaty and re-acceding
to it with a new reservation introducing new limitations on rights or on compe-
tences of the bodies concerned. Trinidad and Tobago, in May 1998, and Guyana,
in January 1999, notied their denunciations of the Optional Protocol to the Po-
litical Covenant and then re-acceded to the Optional Protocol subject to a reser-
vation. The reservation concerned the death penalty, and neither Trinidad and
Tobago nor Guyana had made any reservation in regard of Article 6 when acced-
ing to the Political Covenant.292
The Human Rights Committee noted that a reservation to a substantive ob-
ligation made for the rst time under the rst Optional Protocol would seem to
288 Chorherr v. Austria, 266-B Eur. Ct. H.R. (ser. A) at 42 (1993) (partly dissenting opinion
of J. Valticos).
289 Schabas, supra note 66, at 77. See Reservations and Declarations to the Convention
for the Protection of Human Rights and Fundamental Freedoms: Switzerland (ac-
cessed on 1st August 1999) <http://www.coe.fr/tablconv/reservdecl/dr5e.htm>.
290 Giorgio Gaja, Unruly Treaty Reservations, International Law at the Time of Its Codi-
cation: Essays in Honour of Roberto Ago 307, 312 (1987).
291 For a discussion of modication of reservations to some Council of Europe conven-
tions, see Sia Spiliopoulou kermark, Reservation Clauses in Treaties Concluded
within the Council of Europe, 48 Intl & Comp. L. Q. 479, 487 (1999).
292 Reservations, Declarations, Notications and Objections Relating to the Optional
Protocol to the International Covenant on Civil and Political Rights: Trinidad and
Tobago, Guyana, supra note 234.
reect an intention by the State concerned to prevent the Committee from ex-
pressing its views relating to a particular article of the Covenant in an individual
case.293 Such a reservation, in its view, would be contrary to the object and pur-
pose of the rst Optional Protocol, if not of the Covenant.
The Committee followed the same approach in a subsequent case concern-
ing the death penalty. In Kennedy v. Trinidad and Tobago, Trinidad and Tobago
argued that the communication was not admissible because of the reservation
entered following its re-accession.294 The Committee rejected that contention and
considered the communication receivable on the basis of General Comment No.
24. It rearmed its competence to interpret and determine the validity of reser-
vations, and undertook to examine the compatibility of the reservation with the
object and purpose of the Optional Protocol. It recalled its statement in the Gen-
eral Comment that since the object and purpose of the rst Optional Protocol is
to allow the rights obligatory for the State under the Covenant to be tested before
the Committee, a reservation that seeks to preclude this would be contrary to the
object and purpose of the rst Optional Protocol, even if not of the Covenant.295
The Committee considered the reservation discriminatory since it singled out a
particular group of individuals prisoners under a sentence of death and as
such contrary to the object and purpose of the Optional Protocol. It thus seems
to have endorsed a view similar to the one the American Court of Human Rights
enunciated in the cases against Peru, that the right of petition once granted is
linked with the substantive right protected under the main instrument. In consid-
ering the communication admissible and the reservation invalid, the Committee
applied the severability theory as stated in its General Comment No. 24. Re-ac-
cession was regarded as valid, without the benet of the reservation.296
IV. Reservations to Remedies and Procedural Provisions, and Competence of

Human Rights Bodies to Assess Admissibility of Reservations
Human right monitoring bodies were initially hesitant to comment on the legality
of certain reservations when examining States reports.297 The Treaty Section of
the Oce of Legal Aairs of the United Nations Secretariat issued a legal opinion
at the third session of CEDAW in which it indicated that neither the Committee
nor the Secretary-General, as depositary of the treaty, had the power to determine
the compatibility of reservations.298 Nonetheless, the chairpersons of monitoring

294 Rawle Kennedy v. Trinidad and Tobago, Communication No. 845/1999, UN Doc.
CCPR/C/67/D/845/1999, reprinted in 21 H.R.L.J. 18 (2000).
296 Rawle Kennedy v. Trinidad and Tobago, supra note 294, 6.7.
297 Schabas, supra note 66, at 70; Second Report on Reservations to Treaties, supra note
1, 194.
298 Report of the Committee on the Elimination of Discrimination Against Women, U.N.
GAOR, 39th Sess., Supp. No. 45, vol. II, Annex III, U.N. Doc. A/39/45 (1984).
242 Chapter 3
bodies recommended in 1994 that treaty bodies state clearly that certain reserva-
tions to international human rights instruments are contrary to the object and
purpose of those instruments and consequently incompatible with treaty law.299
Over time, many human rights bodies have asserted competence to evaluate the
admissibility of reservations.
The coordination between the inter-State reservation/objection mechanism
and the control by monitoring bodies is an issue specic to human rights treaties
since such bodies are seldom found in other elds of international law. However,
the position of such bodies may have an important inuence on general interna-
tional law when construing and applying the general reservations regime, such
as the determination of incompatible reservations and the legal eects of invalid
reservations.
The Human Rights Committee considered unacceptable reservations to
guarantees [that] provide the necessary framework for securing the rights in the
Covenant and are thus essential to its object and purpose. Reservations to Arti-
cles 2(2) and 40 which concern internal implementation and international report-
ing, respectively, thus would not be legal. It added that a reservation that rejects
the Committees competence to interpret the requirements of any provisions of
the Covenant would also be contrary to the object and purpose of that treaty.300
This triggered a strong objection from the United States:
This would be a rather signicant departure from the Covenant scheme, which does
not impose on States Parties an obligation to give eect to the Committees inter-
pretations or confer on the Committee the power to render denitive or binding
interpretations of the Covenants. The drafters of the Covenant could have given the
Committee this role but deliberately chose not to do so.301
The ICJs Advisory Opinion on the Genocide Convention suggests that at least
some reservations to procedures and remedies are acceptable. In that case, the
Court held that a reservation to Article IX of the Genocide Convention, which
provides for the submission of disputes to the I.C.J., was compatible with the ob-
ject and purpose of the Convention.302 The United Kingdom and the Netherlands
appear[ed however] to consider reservations to Article 9 to be incompatible with
the Genocide Convention, and they have formulated objections on a number of
occasions in this respect.303
299 Eective Implementation of International Instruments on Human Rights, Includ-

ing Reporting Obligations under International Instruments on Human Rights, U.N.
GAOR, 49th Sess., Agenda Item 100(a), 30, U.N. Doc. A/49/537 (1994).
300 General Comment No. 24 , supra note 36, 11.
301 Report of the Human Rights Committee (1995), supra note 37, at (i).
302 Advisory Opinion on Reservations to the Convention on the Prevention and Punish-
ment of the Crime of Genocide, 1951 I.C.J. 15 (May 28).
303 Schabas, supra, at 66. See Reservations, Declarations, Notications and Objections
Relating to the Convention on the Prevention and Punishment of the Crime of Geno-
The case of Yugoslavia against the United States304 conrms that reservations
to Article IX of the Genocide Convention are allowed. The United States argued,
on the basis of the Advisory Opinion on Reservations to the Genocide Conven-
tion (1951), that reservations to the Convention are permitted and that
the United States reservation to Article IX is not contrary to the Conventions ob-
ject and purpose. The possibility of recourse to this Court for settlement of disputes
is not central to the overall system of the Convention, which has as its essential ele-
ments the denition of the crime of genocide and the creation of obligations to try
and punish those responsible for genocide.305
The United States referred to the practice of States, mentioning that fourteen
other States had made some form of reservation to Article IX. The Court agreed
with the U.S. position. It found that the Convention does not prohibit reserva-
tions, that Yugoslavia did not object to the U.S. reservation to Article IX, and that
the reservation had the eect of excluding that Article from the provisions of
the Convention in force between the parties.306 Accordingly, Article IX could not
constitute a basis of jurisdiction in this dispute.
Some limited reservations to the competence of the Human Rights Commit-
tee have been deemed acceptable by the Committee. These include reservations
that limit the competence of the Committee ratione temporis, those that deny the
competence of the Committee when the case has already been submitted to the
European Convention monitoring bodies, and reservations on inter-State peti-
tions that impose conditions of reciprocity.
The United States ratication of the Political Covenant and the reservations
it attached may have prompted the Human Rights Committee to address the
question of reservations directly.307 In its General Comment No. 24, the Commit-
tee concluded that in the case of human rights treaties, the general regime of the
Vienna Convention was inappropriate and that
[i]t necessarily falls to the Committee to determine whether a specic reservation

is compatible with the object and purpose of the Covenant. This is in part because,
as indicated above, it is an inappropriate task for States parties in relation to human
rights treaties, and in part because it is a task that the Committee cannot avoid in the
performance of its functions.308
cide: United Kingdom, Netherlands, supra note 225.

304 Legality of the Use of Force (Yugo. v. U.S.), Request for Indication of Provisional Mea-
sures, 1999 ICJ Rep. 124 (Order of June 2) [hereinafter Order of June 2, 1999].
305 Legality of the Use of Force (Yugo. v. U.S.), Oral Pleadings, Verbatim Record, 2.17
(11 May 1999).
306 Order of June 2, 1999, supra note 304, 24.
307 Schabas, supra note 66, at 41, note 7.
308 Committee on Human Rights, General Comment No. 24, supra note 36, para. 18.
244 Chapter 3
The United States objected, arguing that the Committee seemed to reject the es-
tablished rules of interpretation of treaties as set forth in the Vienna Convention
on the Law of Treaties and in customary law:
the Committee appears to dispense with the established procedures for determining
the permissibility of reservations and to divest States Parties of any role in determin-
ing the meaning of the Covenant ... .
The Committees position, while interesting, runs contrary to the Covenant scheme
and international law. 309
In the U.S. Senate, a bill presented by Senator Helms stated that
[t]he purpose and eect of General Comment No. 24 is to seek to nullify as a mat-
ter of international law the reservations, understandings, declarations, and proviso
contained in the Senate resolution of ratication, thereby purporting to impose legal
obligations on the United States never accepted by the United States.310
The United Kingdom did not contest the competence of the Committee to take
a view of the status and eect of a reservation where this is required in order to
permit the Committee to carry out its substantive functions under the Covenant,
but insisted that:
(a) Even if it were the case that the law on reservations is inappropriate to address
the problem of reservations to human rights treaties, this would not of itself give rise
to a competence or power in the Committee except to the extent provided for in the
Covenant; any new competence could only be created by amendment to the Cov-
enant, and would then be exercisable on such terms as were laid down[.] 311
The issue of reservations to human rights treaties has been a major preoccupa-
tion of monitoring human rights bodies and the legality of reservations has been
examined in their contentious and advisory practice. Both the European and the
Inter-American human rights organs have recognized their own competence to
assess the validity of reservations. In the Temeltasch case, the European Com-
mission of Human Rights asserted for the rst time its competence to assess the
validity of reservations made to the European Convention. 312 It found the Swiss
interpretative declaration concerning Article 6 of the European Convention not
in conformity with the Convention but held that the declaration had the legal ef-
309 Report of the Human Rights Committee, Annex VI, supra note 37, at (i) (1995).
310 Foreign Relations Revitalization Act of 1995, S. 1441, 104th Cong. 314(a)(5) (1995).
311 Report of the Human Rights Committee (1995), supra note 37, at (viii-ix).
312 Temeltasch v. Switzerland, App. 9116/80, 31 Eur. Commn H.R. Dec. & Rep. 120, 144-
145 (1983).
fect of a validly made reservation. The case was not referred to the Court, and the
report of the Commission was approved by the Committee of Ministers. 313
In the Belilos case, the European Court of Human Rights held that the si-
lence of the depositary and the Contracting States does not deprive the Conven-
tion institutions of the power to make their own assessment.314 In that case and in
the Weber 315 case, the Court held the reservations to be invalid since they did not
fulll the requirement of Article 64(2) of the European Convention that a brief
statement of the law not in conformity with the Convention be included in the
reservation. In the Loizidou case, the Court emphasized the essential character of
Articles 25 and 46 of the Convention:
The Court observes that Articles 25 and 46 of the Convention are provisions which
are essential to the eectiveness of the Convention system since they delineate the
responsibility of the Commission and Court to ensure the observance of the engage-
ments undertaken by the High Contracting Parties (Article 19), by determining their
competence to examine complaints concerning alleged violations of the rights and
freedoms set out in the Convention. In interpreting these key provisions it must have
regard to the special character of the Convention as a treaty for the collective enforce-
ment of human rights and fundamental freedoms.316
... If, as contended by the respondent Government, substantive or territorial restric-

tions were permissible under these provisions, Contracting Parties would be free to
subscribe to separate regimes of enforcement of Convention obligations depending
on the scope of their acceptances. Such a system, which would enable States to qualify
their consent under the optional clauses, would not only seriously weaken the role of
the Commission and Court in the discharge of their functions but would also dimin-
ish the eectiveness of the Convention as a constitutional instrument of European
public order (ordre public).317
Similarly, the Inter-American Court considered itself competent to assess the va-
lidity of Guatemalas reservation to Article 4 (right to life) of the American Con-
vention, even though the reservation had not attracted any objections from other
State Parties.318
While asserting that the general system of reservations established by the Vi-
enna Convention had been adapted to the requirements of human rights treaties,
313 Council of Europe, Committee of Ministers, Resolution DH (83) of 6 March 1983, 26

Y.B. Eur. Conv. H.R., Chap. IV, at 5 (1983).
314 Belilos v. Switzerland, 132 Eur. Ct. H.R. (ser. A), 47-50 (1988).
315 Weber v. Switzerland, 177 Eur. Ct. H.R. (ser. A), 37-38 (1990).
316 Loizidou v. Turkey, Preliminary Objections, 310 Eur. Ct. H.R. (ser. A), 70 (1995).
317 Id., 75.
318 Advisory Opinion on Restrictions to the Death Penalty (Arts 4(2) and 4(4) of the
American Convention of Human Rights), Inter-Am. Ct. H.R. (ser. A) No. 3, 61, OC-
3/83 (1983).
246 Chapter 3
Pellet has recognized that the development of human rights monitoring mecha-
nisms raises the issue of coordination between the two mechanisms of control,
i.e., acceptance and objection by other State parties, and control by monitoring
bodies.319
While human rights treaties do not explicitly entrust the determination of
the legality of reservations to a jurisdictional or quasi-jurisdictional body, Pellet
agrees that the mere fact that a treaty provides for the settlement of disputes con-
nected with its implementation through a judicial or arbitral body, automatically
empowers the latter to determine the admissibility of reservations or the valid-
ity of objections.320 He comments that the assertion by the human rights treaty
monitoring bodies of their competence to assess and state their view on the per-
missibility of reservations have created a situation which it would be dicult to
alter, since the States concerned did not manifest a contrary opinio juris.321 There
is, therefore, an emerging common law supporting the competence of human
rights bodies to assess the compatibility and the validity of reservations.
Echoing Pellets conclusions,322 the ILC has tentatively concluded that
... where these treaties are silent on the subject, the monitoring bodies established
thereby are competent to comment upon and express recommendations with regard,
inter alia, to the admissibility of reservations by States, in order to carry out the func-
tions assigned to them; 323
But this competence of human rights bodies, the ILC cautioned, is not unlimited.
[It] does not exclude or otherwise aect the traditional modalities of control by
the contracting parties ... [and it cannot exceed] the powers given to them for the
performance of their general monitoring role.324

320 Id., 186.
321 Id., 210.
322 Id., 193-215.
323 Preliminary Conclusions of the International Law Commission on Reservations to
Normative Multilateral Treaties including Human Rights Treaties, supra note 213,
5.
324 Id., 6, 8.
Chapter 4: Humanization of State Responsibility:
From Bilateralism to Community
Concerns
The object of this chapter is to explore the inuence of human rights on the law
of State responsibility and to examine the laws evolution from bilateralism to
multilateralism.
A. Origin of State Responsibility

The shift in emphasis from bilateralism to community interests is evident in the
current understanding of conduct giving rise to State responsibility. This un-
derstanding paved the way for the concept of obligations erga omnes and State
claims for the vindication of human rights. Article 1 of ILCs draft articles on
State responsibility provides that [e]very internationally wrongful act of a State
entails the international responsibility of that State.1 Article 2, in turn, denes
internationally wrongful acts in terms of the acting States conduct vis--vis its
international obligations:
There is an internationally wrongful act of a State when conduct consisting of an ac-

tion or omission:
(a) Is attributable to the State under international law; and
(b) Constitutes a breach of an international obligation of the State.2
This formulation departs from classical notions of State responsibility by relying

almost exclusively on the consistency of the States conduct with its international
obligations without regard to damage to other States or to fault. In the classical
tradition, as Prosper Weil observes, the notions of wrongful act, fault and damage
were trois concepts-cls de la problmatique de la responsabilit internationale.3
1 Text of the draft articles on Responsibility of States for internationally wrongful acts,
Article 1, reprinted in Report of the International Law Commission on the Work of
its Fifty-third Session, 56 UN GAOR, Supp. No. 10, pp. 41, UN Doc. A/56/10 (1998)
[Hereinafter Draft Articles (2001)].
2 Id., Article 2.
3 Prosper Weil, Le droit international en qute de son identit, 237 Collected Courses 9,
339 (1992-VI).
248 Chapter 4
In the law of diplomatic protection, the Vatellian theory that [whoever] uses a
citizen ill, indirectly oends the State4 was usually construed to encompass ac-
tual material injuries suered by the citizens of the claimant State and elements
of direct injury (e.g., breach of a treaty) caused by the wrongdoing State to the
claimant State.
Even in the absence of material damage, international law has always recog-
nized that States have standing to sue for non-material or moral damage in cases
involving, inter alia, oenses to representatives, the ag, dignity, sovereignty, or
territorial integrity of the State. Such breaches have resulted in appropriate repa-
rations, such as satisfaction in the form of apologies, punishment of responsible
ocials, declaratory judgments, injunctive relief, monetary compensation, or a
combination of these remedies.
Classical international law assumed that every obligation had a correspond-
ing subjective right, a view suited to the bilateral nature of most legal relation-
ships.5 But this view is strained when applied to contemporary human rights and
humanitarian norms and a number of other areas with a strong erga omnes com-
ponent. In the Barcelona Traction case, the ICJ did not try to t its statement that
all States have a legal interest in the protection of obligations erga omnes into the
Vatellian paradigm.6 Up to a point, the ILC tried to do so, arguing that obliga-
tions erga omnes involve a correlation between the obligation of one State and the
subjective right of another any other State.7 It is more persuasive, however,
to justify the actions of a State seeking enforcement of an obligation erga omnes
as a vindication of basic community values than to resort to the rather articial
concept of a subjective right in such cases.
If only the State that suered material damage were allowed to present a
claim, the obligation would be seen solely as arising from a bilateral relationship
between the most immediately injured State and the wrongdoing State. And in
the absence of specic damage suered by State A, as is the case typically with
violations of human rights by State B, State responsibility for conduct inconsis-
tent with international obligations could not be triggered at all.
4 Emerich de Vattel, The Law of Nations, Bk. 2, sec. 71, 161 (J. Chitty ed. 1852).
5 Crawford observed that it is partly because of this view that a notion of public in-
terest standing has not been developed in international law. James Crawford, The
Standing of States: A Critique of Article 40 of the ILCs Draft Articles on State Respon-
sibility, in Liber Amicorum in Honour of Lord Slynn of Hadley: Judicial Review in
International Perspective 23, 24 (Mads Andenas ed., 2000).
6 Barcelona Traction Light and Power Company, Ltd. (Belgium v. Spain) (Second Phase),
International Court of Justice, Judgment of 5 February 1970, 1970 ICJ Rep. 3, at 33-
34. The Court made the distinction between the obligations of a State towards the
international community as a whole, and those arising vis--vis another State in the
eld of diplomatic protection.
7 See Crawford (2000), supra note 5, at 33-34, commenting on the view of Ago on the
correlation between rights and obligations that underlain Part I of the former draft
Articles and former Article 40.
Humanization of State Responsibility: From Bilateralism to Community Concerns 249
Established jurisprudence under both the European and the American con-
ventions on human rights reects the concept of conventional human rights as
involving objective obligations, the breaches of which constitute violations of in-
ternational public order, as opposed to bilateral obligations, the breaches of which
constitute violations of the subjective rights of specic States. The same principle
should apply to customary norms, but the doctrine has moved ahead of practice.
Where the claim arises from injury suered by a single individual, or several
individuals, the moral or material injury suered by the individual(s) involved
serves as a yardstick for reparation. Where an inter-State claim based on the prin-
ciple of erga omnes alleges a whole pattern of violations, damage is more dicult
to measure. A declaratory judgment, preferably coupled with injunctive relief,
ows naturally from the objective character of human rights obligations.
The elimination of damage to a particular State as a precondition for estab-
lishing State responsibility presents the question whether any State is entitled to
seek enforcement of a general international obligation regardless of whether or
not it is specically aected by the violation.8 It is clear that by eliminating the
damage element of State responsibility, the ILC has made erga omnes claims more
viable. If by violating the human rights of its nationals a State oends the general
international legal order, and thereby also equally oends every other State, then
every State should have the necessary standing subject to satisfying the require-
ments of jurisdiction and competence of the relevant tribunal to bring an action
against those that perpetrate violations of human rights and humanitarian norms.
Without the damage requirement, a State may promote observance of human
rights norms through actions brought before international tribunals to vindicate
the rights of persons who are not its nationals. Here, again, practice lags behind
legal principle.
Signicantly, the ILC based its conclusion that damage is not an essential
condition for State responsibility on conventions involving human rights and la-
bor rights. The ILC commentary on the former Draft Article 3 explains:
International law today lays more and more obligations on the State with regard to
the treatment of its own subjects. For examples we need only turn to the conven-
tions on human rights or the majority of the international labor conventions. If one
of these international obligations is violated, the breach thus committed does not
normally cause any economic injury to the other States parties to the convention, or
even any slight to their honour or dignity. Yet it manifestly constitutes an internation-
ally wrongful act, so that if we maintain at all costs that damage is an element in any
internationally wrongful act, we are forced to the conclusion that any breach of an
8 See generally, Andr de Hoogh, Obligations erga omnes and International Crimes
27-37 (1996). See also Brigitte Bollecker-Stern, Le prjudice dans la thorie de la re-
sponsabilit 50-90 (1973).
250 Chapter 4
international obligation towards another State involves some kind of injury to that
other State.9
The elimination of the element of damage as a condition for State responsibility

does not mean that damage is never relevant to State responsibility. Indeed, it
may have obvious implications for remedies.10 Damage may also be an integral
component of some primary norms. But the elimination of damage as a precondi-
tion for State responsibility reects a shift of emphasis from the bilateral view of
State responsibility to a concept of inherent legal injury. Brigitte Stern has noted:
Faire disparatre le dommage de la dnition de la responsabilit internationale, cest

[...] ouvrir la porte, et ce nest paradoxal quen apparence, la prise en compte de la
violation du droit elle-mme.
Si la violation du droit entrane automatiquement la responsabilit, cela peut signier
que la violation du droit elle-mme est un prjudice permettant celui qui la subi de
rclamer le rtablissement de lordre juridique.11
Some members of the ILC have emphasized its decision to endorse a concept of
objective responsibility as truly the revolutionary step of detaching State re-
sponsibility from the traditional bilateralist approach that had been conditioned
upon damage.12 Some have described
[t]he notion of objective responsibility [...] as an acknowledgment in resounding

terms that there was such a thing as international lawfulness, and that States must
respect international law even if they did not, in failing to respect it, harm the spe-
cic interests of another State, and even if a breach did not inict a direct injury on
another subject of international law. In short, an international society founded on
law existed.13
Graefrath noted that it is the violation of the obligation and not the damage that
entails the States responsibility.14 Treating conduct rather than resulting damage
9 Report of the International Law Commission to the General Assembly, Commentary

on Article 3 of the Draft Articles on State Responsibility, at para. 12, reprinted in
[1973] 2 Yb. Intl L. Commn 179.
10 See Karl Zemanek, The Legal Foundations of the International System, 266 Collected
Courses 11, 255 (1997).
11 Brigitte Stern, La responsibilit dans la systme international: Conclusions gnrales,
in La responsibilit dans le systme International (Colloque du Mans) 319, 331
(1991).
12 Report of the International Law Commission on the Work of its Fiftieth Session, 53 UN
GAOR, Supp. No. 10, 283, UN Doc. A/53/10 and Corr. 1 (1998).
13 Id.
14 Bernhard Graefrath, Responsibility and Damages Caused: Relationship between Re-
sponsibility and Damages, 185 Collected Courses 9, 37 (1984-II).
as the decisive criterion for determining responsibility promotes the preventive

function of international responsibility:15 The matter, after all, is not allocation
of damages but a regulation of obligations meeting the dierent interests, coor-
dinating the activities of sovereign States, preventing damage from occurring as
much as possible.16
B. Circumstances Precluding Wrongfulness: Distress, Necessity, Consent

The ILC Draft Articles on State Responsibility list circumstances precluding
wrongfulness for conduct inconsistent with international obligations. These in-
clude the consent of the aected States to the conduct (Draft Article 20), the
resort to otherwise wrongful conduct as countermeasures (Draft Article 22) or in
self-defense (Draft Article 21), and circumstances of force majeure (Draft Article
23), distress (Draft Article 24), and necessity (Draft Article 25). Each of these im-
plicates human rights concerns, but only some of them will be considered here.
The denition of distress, for example, reects concern for the well-being of
individuals and populations, as opposed to the States interests stricto sensu: Ar-
ticle 24(1) provides that the wrongfulness of an act is precluded when the author
of the act had no other reasonable way of saving [his] life or the lives of other
persons entrusted to [his] care.17 As a circumstance precluding wrongfulness,
distress has been invoked primarily in cases involving violations of frontiers to
avoid endangering human life. Recorded cases include entry into foreign ports or
landing of aircraft without prior authorization.18 Several international agreements
recognize the exception of distress. Article 18 of the Convention on the Law of the
Sea, for example, which concerns the right of innocent passage, provides that
[P]assage shall be continuous and expeditious. However, passage includes stopping

and anchoring, but only in so far as the same are incidental to ordinary navigation or
are rendered necessary by force majeure or distress or for the purpose of rendering
assistance to persons, ships or aircraft in danger or distress.19
Also the Convention for the Protection of the Marine Environment of the North-
East Atlantic provides in an annex (referring both to force majeure and distress)
that
15 Id., at 37.
16 Id., at 38.
17 Draft Article 24 (2001), supra note 1.
18 Report of the International Law Commission on the Work of its Fifty-third Session
(2001), supra note 1, at 189-192.
19 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982,
in force 16 November 1994, Art. 18, reprinted in 21 ILM 1261 (1982).
252 Chapter 4
The provisions of this Annex concerning dumping shall not apply in case of force
majeure, due to stress of weather or any other cause, when the safety of human life or
of a vessel or aircraft is threatened. [...].20
The principle of proportionality calls for balancing humanitarian concerns against

other interests such as the integrity of borders and airspace or the prevention of
maritime pollution. The ILC thus observed in its former commentary on the draft
articles that
it seems ... beyond doubt that the wrongfulness of an act or omission not in con-
formity with an international obligation cannot be precluded unless there is some
common degree of value between the interest protected by that action or omission
and the interest ostensibly protected by the obligation; what is more, the interest
sacriced must in fact be less important than that of protecting the life of the organ
or organs in distress.21
In the Rainbow Warrior case, the plea of distress was accepted by the UN arbi-
tral tribunal with respect to one of the ocers held on the island of Hao (French
Polynesia) because of her health situation.22 However, the ILC commentary ex-
plains that the plea of distress should be limited to cases of life-threatening situa-
tions, and mildly criticizes the view of the Rainbow Warrior tribunal as too broad,
pointing out the diculty of determining a lower limit if distress is extended to
less than life-threatening situations.23
Necessity is another circumstance in which humanitarian concerns may pre-
clude wrongfulness. The ILC denes necessity as
[t]hose exceptional cases where the only way a State can safeguard an essential inter-
est threatened by a grave and imminent peril is, for the time being, not to perform
some other international obligation of lesser weight or urgency to another State.24
20 Convention for the Protection of the Marine Environment of the North-East Atlantic,
Paris, 22 September 1992, Annex II, Article 7, in force 25 March 1998, reprinted in P.
Sands et al., Documents in International Environmental Law, Vol. IIA, at 472 (1994).
The International Convention for the Prevention of Pollution of the Sea by Oil, 12
May 1954, Article IV, and the Convention on the Prevention of Marine Pollution by
Dumping of Wastes, 29 December 1972, Article V, contain similar provisions.
21 Report of the International Law Commission on the Work of its Thirty-rst Session,
Commentary on Article 32, para. (11), at 135, UN Doc. A/33/10, reprinted in [1979]
2(2) Yb. Intl L. Commn 133.
22 Rainbow Warrior (New Zealand v. France), 20 UNRIAA, 217, 254-255 (1990).
(2001), supra note 1, at 192.
24 Id., at 194.
To trigger the exception of necessity, the protection of the interests of individuals

and populations, not just of the State apparatus, is central.25 The ILC explained
that necessity has been invoked
to protect a wide variety of interests, including safeguarding the environment, pre-

serving the very existence of the State and its people in time of public emergency, or
ensuring the safety of a civilian population.26
Although some members of the ILC were reluctant to accept the exception of
necessity because of its potential for abuse as a pretext for wrongful conduct, they
were willing to accept a State of necessity in cases where the possibilities of abuse
are less frequent and less serious, and particularly where it is necessary to protect
a humanitarian interest of the population.27
State practice involving claims of necessity has chiey concerned nonper-
formance of nancial obligations and the treatment of aliens and foreign-owned
property. In recent years, necessity has also been understood to justify otherwise
wrongful conduct in other contexts, including measures taken to ensure the sur-
vival of the fauna or vegetation of certain areas on land or at sea, to maintain the
normal use of those areas or, more generally, to ensure the ecological balance
of a region.28 Thus, in the famous Torrey Canyon incident in 1967, the British
Government decided to bomb and burn a Liberian tanker shipwrecked o the
British coast, but outside United Kingdoms territorial waters in order to avert
further spillage. The ILC observed that [t]his was the rst time that so serious an
incident had occurred, and no one knew how to avert the threatened disastrous
eect on the English coast and its population.29 The Commission took the view
that even if the ship owner had tried to oppose its destruction, the action taken
by the British Government would have had to be recognized as internationally
lawful because of necessity.30
This incident and the need to recognize the exception of necessity in such
cases led to important codications. The rst was the International Convention
Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties
(1969).31 The second was Article 221 of the U.N. Convention on the Law of the
Sea, which reads:
25 See Marina Spinedi, Personal communication on le with author.

(2001), supra note 1, at 202. See also Report of the International Law Commission on
the Work of its Thirty-second Session, Commentary of Article 33, para. (1), UN Doc.
A/35/10, reprinted in 2(2) Yb. Intl L. Commn 34, at 35.
27 Report of the International Law Commission on the Work of its Thirty-second Session,
id., Commentary of Article 33, para. (29), at 48.
28 Id., para. (14), at 39.
29 Id., para. (15), at 39.
30 Id.
31 See 1969 UN Juridical Yearbook 166 (1971).
254 Chapter 4
1. Nothing in this Part shall prejudice the right of States, pursuant to international
law, both customary and conventional, to take and enforce measures beyond
the territorial sea proportionate to the actual or threatened damage to protect
their coastline or related interests, including shing, from pollution or threat of
pollution following upon a maritime casualty or acts relating to such a casualty,
which may reasonably be expected to result in major harmful consequences. 32
Just as the principle of necessity precludes wrongfulness for certain acts to safe-
guard concerns of individuals and of the community, humanitarian and human
rights concerns may circumscribe the principle of necessity. Draft Article 25(2)
provides that [i]n any case, a state of necessity may not be invoked by a State as
a ground for precluding wrongfulness if the international obligation in question
excludes the possibility of invoking necessity.33 The Commissions commentary
suggests that pleas of necessity for violating humanitarian law conventions may
not be entertained.34 Such conventions had been adopted specically to apply in
such dire emergencies as armed conicts; derogations from these conventions
clearly could not be justied by the very circumstances for which they were de-
signed. Referring to the balance between military necessity and humanitarian
concerns, the Commission had noted in its former commentary:
The purpose of the humanitarian law conventions was to subordinate, in some elds,
the interests of a belligerent to a higher interest; States signing the Conventions un-
dertook to accept that subordination and not to try to nd pretexts for evading it. It
would be absurd to invoke the idea of military necessity or necessity of war in order
to evade the duty to comply with obligations designed, precisely to prevent the ne-
cessities of war from causing suering which it was desired to prescribe once and for
all.35
By precluding the plea of circumstances excusing wrongfulness for the breach of

a peremptory norm, Draft Article 26 goes beyond the notion of jus cogens recog-
nized for the law of treaties in Article 53 of the Vienna Convention: it makes the
concept applicable to unilateral acts discussed also in my Chapter on the Law
of Treaties.. With regard to necessity, the Commissions former commentary fo-
cused on the prohibition of the use of armed force, observing that States have
abusively invoked necessity to justify breaches of this prohibition:36 One obliga-
tion whose peremptory character is beyond doubt in all events is the obligation
of a State to refrain from any forcible violation of the territorial integrity or politi-
32 UN Convention on the Law of the Sea, supra note 19, Art. 221.
33 Draft Article 25 (2001), supra note 1.
34 See Report of the International Law Commission on the Work of its Fifty-third Session
(2001), supra note 1, at 205-206.
35 Report of the International Law Commission on the Work of its Thirty-second Session,
supra note 26, Commentary of Article 33, para. (28), at 46.
36 Id., para. (37), at 50.
cal independence of another State.37 The Commission extended this analysis to

humanitarian matters: [t]he rule outlawing genocide and the rule categorically
condemning the killing of prisoners of war [are]... further examples of rules whose
breach is in no event to be justied on any ground of necessity.38
A third circumstance precluding wrongfulness for the breach of an inter-
national obligation is the consent of the State to which the obligation is owed.39
But, like necessity, consent cannot be invoked to justify a breach of a peremptory
norm. Crawford thus notes that one State may not by consent relieve another
from respecting the prohibitions of genocide or of torture, for example.40 The
former ILC commentary states that
If one accepts the existence in international law of rules of jus cogens ... one must also
accept the fact that conduct of a State which is not in conformity with an obligation
imposed by one of these rules must remain an internationally wrongful act even if the
injured State has given its consent to the conduct in question. The rules of jus cogens
are rules whose applicability to some States cannot be avoided by means of special
agreements.41
As observed in the ILCs commentary with regard to the validity of a claims waiver
by an injured State, since the breach of a peremptory norm engages the interest
of the international community as a whole, even the consent or the acquiescence
of the injured State does not preclude that interest from being expressed in order
to insure a settlement in conformity with international law.42
37 Id.
38 Id. Also Report of the International Law Commission on the Work of its Fifty-third
Session (2001), supra note 1, at 207-208.
39 Draft Article 20 (2001), supra note 1. It provides:
Valid consent by a State to the commission of a given act by another State precludes the
wrongfulness of that act in relation to the former State to the extent that the act remains
within the limits of that consent.
Special Rapporteur Crawford has proposed the deletion of the provision on consent.
He argued that, for many international obligations, lack of consent was an element
of the wrongfulness. Consequently, if consent was given before the commission of
the wrongful act, state responsibility simply did not arise. See Second Report on State
Responsibility, id., 241.
40 Id., 240.
supra note 21, Commentary on Article 29, para. (21), at 114. See also Eighth Report
on State Responsibility, by Roberto Ago, Special Rapporteur, UN Doc. A/CN.4/318
and Add.1-4, reprinted in [1979] 2(1) Yb. Intl L. Commn 38, 75. For a discussion
of jus cogens, see Meron, Human Rights Law-Making in the United Nations 173-202
(1986).
(2001), supra note 1, at 308.
256 Chapter 4
C. Differentiation of Norms
I. Erga omnes Obligations

Under the inuence of the concepts of human rights, of obligations erga omnes
as recognized by the ICJ in the Barcelona Traction case (discussed also below in
the sections on Choice of Remedies, and the Right to Take Countermeasures)
and of peremptory norms as reected in the Vienna Convention on the Law of
Treaties, international law has embarked on a limited transition from bilateral
legal relations to a system based on community interests and objective norma-
tive relationships. Of course, traditional bilateral patterns remain the rule in most
areas of international law. But there has been a growing recognition of certain
substantive rights and of legal standing for States not directly injured by viola-
tions of certain norms. Such norms are typically the fundamental norms of the
international community involving aspects of international order and community
values including basic human rights. The International Law Commissions work
in the eld of State responsibility has built on these developments, furthering the
transformation of international law from bilateralism towards multilateralism.
Traditionally, international law consisted chiey of bilateral relationships be-
tween States. Vindication of international rules relied on these bilateral, subjec-
tive relationships rather than on a system of law through which States would in
the future act in defense of community interests. As Simma puts it, international
law does not oblige States to adopt certain conduct in the absolute, urbi et orbi, so
to speak, but only in relation to the particular State or States to which a treaty or
customary law obligation is owed.43
Bilateral relationships are not limited to those arising under bilateral treaties.
Many multilateral conventions reinforce this bilateral tradition, reecting the
coupling or standardization of bilateral relationships. Obligations arising under
the Vienna Conventions on Diplomatic Relations and on Consular Relations and
from numerous provisions of the Conventions on the Law of the Sea and the Law
of Treaties exemplify the traditional bilateralism of international law.44 They can
be seen as clusters of uniform obligations between pairs of States parties. Nev-
ertheless, even conventions which establish primarily bilateral and sinalagmatic
legal relationships can give rise to violations so grave as to trigger community
43 Bruno Simma, International Crimes: Injury and Countermeasures, Comments on

Part 2 of the ILC Work on State Responsibility, in International Crimes of States: A
Critical Analysis of the ILCs Draft Article 19 on State Responsibility 283 (Joseph H.H.
Weiler, Antonio Cassese and Marina Spinedi eds., 1989).
44 See generally Vienna Convention on Diplomatic Relations, 18 April 1961, 23 UST 3227,
500 UNTS 95; Vienna Convention on Consular Relations, 24 April 1963, 21 UST 77,
596 UNTS 261; United Nations Convention on the Law of the Sea, supra note 19; Vi-
enna Convention on the Law of Treaties, opened for signature 23 May 1969, UN Doc.
A/CONF.39/27 and Corr.1 (1969), 1155 UNTS 331, reprinted in 63 AJIL 875 (1969), 8
ILM 679 (1969).
concerns.45 Members of the international community prefer that States comply

with international law in bilateral relationships, but it is doubtful that every State
has a protected legal interest in the relations between third States inter se in the
context of State responsibility.46
Other treaties, however, cannot be adequately analyzed through the prism
of bilateral relationships. Some multilateral conventions represent broad state-
ments of community values in which every State party has a legal interest in the
integrity of the treaty and its observance by all the parties.47 The notion of such
integral obligations, rst developed by Fitzmaurice, has been further elaborated
by Crawford as rapporteur on State responsibility for the ILC.48 Treaties such
as disarmament agreements and the Nuclear Test Ban Treaty49 create rights and
obligations which are integral and indivisible. In such cases all parties have an
interest in other parties performance of their obligations under the treaty, and a
violation by any party has consequences for all other parties.50
Some treaties create obligations that run in parallel between all State parties
and persons within their jurisdiction rather than running solely through bilat-
eral relations. Examples include human rights treaties, private international law
conventions, and many environmental treaties.51 In a well-known statement, the
European Commission of Human Rights described the parallel structure of the
European Convention on Human Rights.
The purpose of the High Contracting Parties in concluding the Convention was not
to concede to each other reciprocal rights and obligations in pursuance of their indi-
vidual national interests but to ... establish a common public order of the free democ-
racies of Europe with the object of safeguarding their common heritage of political
traditions, ideals, freedom and the rule of law[.]52
45 See United States Diplomatic and Consular Sta in Tehran (United States v. Iran),
International Court of Justice, Order of 15 December 1979, 1979 ICJ Rep. 7, 20, 40.
46 Third Report on State Responsibility, by James Crawford, Special Rapporteur, UN
Doc. A/CN.4/507, at 46 (2000).
47 See Simma, supra note 43, at 285-286. See also Kamen Sachariew, State Responsibility
for Multilateral Treaty Violations: Identifying the Injured State and its Legal Status,
35 Neth. Intl L.R. 273, 276. (1988).
48 Third Report on State Responsibility, by James Crawford, supra note 46, at 40 and nn.
175-78.
49 See generally Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer
Space and Under Water, 5 August 1963, 14 UST 1313, 480 UNTS 43.
50 See de Hoogh, supra note 8, at 40-41.
51 See Sachariew, supra note 47, at 277.
52 Austria v. Italy, App. No.788/60, European Commission of Human Rights, Decision
on admissibility of 11 January 1961, 4 Yb. Eur. Conv. H.R. 116, at 138 and 140 (1961).
258 Chapter 4
[T]he obligations undertaken by the High Contracting Parties in the Convention are
essentially of an objective character, being designed rather to protect the fundamen-
tal rights of individual human beings from infringement by any of the High Contract-
ing Parties than to create subjective and reciprocal rights for the High Contracting
Parties themselves.53
Such obligations of an objective character are obligations running to all States

(obligations erga omnes in general international law) or to all the parties to a gen-
eral normative convention (obligations erga omnes contractantes). Perhaps the
most important illustration of the erga omnes principle in the multilateral context
is common Article 1 of the Geneva Conventions for the protection of victims
of war,54 which provides that the parties have the duty to respect and ensure
respect for each Convention.55 The ICRC Commentary on the Fourth Geneva
Convention notes that:
[Article 1] is not an engagement concluded on a basis of reciprocity, binding each par-

ty to the contract only in so far as the other party observes its obligations. It is rather a
series of unilateral engagements solemnly contracted before the world as represented
by the other Contracting Parties. Each State contracts obligations vis--vis itself and
at the same time vis--vis the others.56
Article 1 has been interpreted as providing standing for all State parties to the
Conventions to challenge the violations of any State party.57 This provision pre-
53 Id., at 140.
54 See Zemanek, supra note 10, at 256 note 876 (1997).
Forces in the Field (Geneva Convention I), Art. 1, 12 August 1949, 6 UST 3114, TIAS
No. 3362, 75 UNTS 31; Convention for the Amelioration of the Condition of Wound-
ed, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Convention II),
Art. 1, 12 August 1949, 6 UST 3217, TIAS No. 3363, 75 UNTS 85; Convention relative
to the Treatment of Prisoners of War, Art. 1, 12 August 1949, 6 UST 3316, TIAS No.
3364, 75 UNTS 135; Convention relative to the Protection of Civilian Persons in Time
of War (Geneva Convention IV), Art. 1, 12 August 1949, 6 UST 3516, TIAS No. 3365,
75 UNTS 287.
the Wounded and Sick in Armed Forces in the Field 25 (Jean S. Pictet ed., 1952). See
Meron, The Humanization of International Law, 94 AJIL 239, 248-249 (2000).
57 See Commentary on the Geneva Convention (I) , id., at 26; See also Commentary
on Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of
War 16 (Oscar M. Uhler & Henri Coursier eds., 1958). Common article 1 was invoked
as authority to convene a conference of the state parties on measures to enforce the
Fourth Geneva Convention in the Occupied Palestinian Territory. See GA Res. ES-
10/3 (July 30, 1997). It was also invoked to recommend that state parties take mea-
sures, on a national or regional level to encourage respect by Israel for the Fourth
Geneva Convention. See G.A. Res. ES-10/2 (May 5, 1997). See also G.A. Res. ES-10/4
cedes by some two decades the enunciation of a similar principle by the ICJ in the
Barcelona Traction case. However, the ICJ had already anticipated the principle
of obligations erga omnes in its earlier 1951 Advisory Opinion on Reservations to
the Genocide Convention, where it concluded that under the Genocide Conven-
tion, States did not have any interests of their own; they merely have, one and all,
a common interest.58 The Court further observed that the principles underlying
the Convention are principles which are recognized by civilized nations as bind-
ing on States, even without any conventional obligation.59 These principles, the
Court added, were intended to be universal in scope.60
With the 1971 Barcelona Traction case, the ICJ explicitly recognized the exis-
tence of obligations erga omnes. In a famous passage, the ICJ made the essential
distinction
... between the obligations of a State towards the international community as a whole,
and those arising vis--vis another State in the eld of diplomatic protection. By their
very nature, the former are the concern of all States. In view of the importance of the
rights involved, States can be held to have a legal interest in their protection; they are
obligations erga omnes.
Such obligations derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, and also from the principles and
rules governing basic rights of the human person including protection from slavery
and racial discrimination. Some of the corresponding rights of protection have en-
tered into the body of general international law; others are conferred by international
instruments of a universal or quasi-universal character.61
Some international obligations are thus so basic that they run equally to all oth-
er States, and every State has the right to demand respect for those obligations.
When a State breaches an obligation erga omnes, it injures every State, including
those not specially aected. In this sense, every State is a victim of a violation of
(Nov. 19, 1997), Security Council Resolution 681 (1990) (Dec. 20, 1990). A Conference
of High Contracting Parties to the Fourth Geneva Convention was held in Geneva
in December 2001. See ICRC Statement (Dec. 5, 2001), available at <http://www.icrc.
org/eng>. See also Frits Kalshoven, The Undertaking to Respect and Ensure Respect
in All Circumstances: From Tiny Seed to Ripening Fruit, 2 Ybk. Intl Hum. L. 3 (1999);
Laurence Boisson de Chazournes and Luigi Condorelli, Common Article 1 of the Ge-
neva Conventions Revisited: Protecting Collective Interests, Intl Rev. Red Cross, No.
837, pp. 67-87 (2000).
Genocide, International Court of Justice, Advisory Opinion of 28 May 1951, 1951 ICJ
Rep. 15, at 23.
59 Id.
60 Id.
61 Barcelona Traction Light and Power Company, Ltd., supra note 6, 33-34.
260 Chapter 4
an obligation erga omnes; every State suers an inherent or community type of

injury. Two distinct but interrelated issues may be mentioned here. The rst is the
identication of norms which constitute erga omnes obligations. The second, and
the heart of the matter, pertains to the implementation or enforcement of erga
omnes obligations, i.e., erga omnes as secondary norms.
This passage of the Barcelona Traction opinion has been criticized as either
an unnecessary dictum or as an eort to temper angry reactions to the Courts
earlier decision in the South West Africa cases.62 In those cases, the ICJ held that
although States may have a general interest in the observance of international law,
that interest is not specically juridical in character.63 Hence the Court refused
to consider the trust of civilization as an interest legally protected under inter-
national law:
The sacred trust, it is said, is a sacred trust of civilization. Hence all civilized nations
have an interest in seeing that it is carried out. An interest, no doubt; but in order
that this interest may take on a specically legal character, the sacred trust itself must
be or become something more than a moral or humanitarian ideal. In order to gener-
ate legal rights and obligations, it must be given juridical expression and be clothed
in legal form.64
The Barcelona Traction dictum, of course, took quite a dierent approach to these
questions. Defending the Barcelona Traction approach, Ragazzi argued that
[t]he concept of obligations erga omnes is not outlandish, as the questions of rights
and obligations valid for all States had been around for some quite time before the
International Courts dictum.65
Indeed, the concept of obligations erga omnes dates back at least to Hugo Grotius
discussion in 1625 of humanitarian intervention,66 and gained currency during
the nineteenth century in the context of protecting minorities.67 Judge Jessup, in
his separate opinion in the South West Africa cases, surveyed established practice
under which certain treaties recognized the legal interests of States in general
62 See F.A. Mann, The Doctrine of Jus Cogens in International Law, in Festschrift fr Ul-
rich Scheuner zum 70 Geburtstag 418 (Ehmke, Kaiser, Meesen and Rfner eds., 1973),
quoted in Maurizio Ragazzi, The Concept of International Obligations erga omnes 5
(1997).
63 South West Africa (Ethiopia and Liberia v. South Africa), Second Phase, Interna-
tional Court of Justice, Judgment of 18 July 1966, 1966 ICJ Rep. 6, 50.
64 Id., 51.
65 Ragazzi, supra note 62, at 42.
66 Hugo Grotius, De Jure Belli ac Pacis, Bk. II, Ch. XXV, 1, 2, Whewells Trans. Vol. ii,
438-40 cited in Meron, Human Rights and Humanitarian Norms as Customary Law
188 (1989) [hereinafter Meron, Customary Law ].
67 Meron, id. at 188-89.
humanitarian causes and sometimes provided procedures to secure respect for

those interests.68 Such interests included protection of minorities, labor rights
and mandates over non-sovereign territories. Jessup emphasized that in none of
those cases was it necessary for a State invoking the jurisdiction of the Court to
claim that it had a direct material interest for itself or for its nationals. In such
treaties, and under most contemporary human rights treaties, a States standing
is not limited to cases where its own nationals are injured. Obligations erga omnes
thus have long-established foundations in human rights and humanitarian trea-
ties.
In the case concerning the United States Diplomatic and Consular Sta in
Tehran, which involved bilateral relations under custom and treaty and gross vio-
lations of diplomatic and consular privileges, the ICJ emphasized that the viola-
tions had implications for the entire international community and considered it is
more essential than ever that the rules developed to ensure the ordered progress
of relations between its members should be constantly and scrupulously respect-
ed.69
Without mentioning peremptory norms explicitly, the Court, especially in
mentioning imperative rules, seems to have considered certain fundamental rules
of the law of diplomatic relations as jus cogens70 or at least as erga omnes.71 Dis-
cussing the case, Rosenne addresses the inability of legal method to deal with the
enforcement of obligations whose violation was intended to destabilize the inter-
national legal order, since these violations are not per se amenable to unilateral
legal reactions or remedies72
Despite some initial skepticism, the erga omnes principle has been widely
accepted in the doctrine of international law, though more rarely in practice, in
international organizations, and in the case law of international tribunals.73 Wel-
coming this development, Simma has written:
It is to be seen in the growing recognition be it explicit or implied of the need to

re-think some of the basic tenets of international law in order to enable it to meet the
new challenges for which the old bilateralist paradigm is so terribly ill-equipped.74
68 South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Prelimi-
nary Objections, Judgment of 21 December 1962, 1962 ICJ Rep. 319, at 424-28 (sepa-
rate opinion of Judge Jessup).
69 International Court of Justice, Judgment of 24 May 1980, 1980 ICJ Rep. 3, 92.
70 See United States Diplomatic and Consular Sta in Tehran (United States v. Iran),
supra note 45, at 20, 40.
71 See Simma, supra note 43, at 287, note 15.
72 Shabtai Rosenne, Breach of Treaty 110 (1985).
73 Ragazzi, supra note 62, at 5 [A-6]; See also Bruno Simma, Does the UN Charter Pro-
vide for an Adequate Legal Basis for Individual and Collective Responses to Violations
of Obligations Erga Omnes?, in The Future of International Law Enforcement New
Scenarios New Law? 125, 127 (Jost Delbrck ed., 1992).
74 Simma, id., at 128-129.
262 Chapter 4
This recognition of the concept of erga omnes has been largely doctrinal and rhe-
torical. It has not spawned, so far, signicant practice. Although it has not explic-
itly dened obligations erga omnes, the ICJ has identied two key characteristics.
It has referred, rst, to the universality or quasi universality of the obligation
and, second, to the solidarity of States in the interest protected, suggesting that
every State is deemed to have a legal interest in other States compliance with the
obligation.75 These two characteristics might serve to distinguish erga omnes obli-
gations from treaty obligations simpliciter.76 Simma has suggested that erga omnes
obligations can be distinguished by the existence of a particular value judgment
according to which the international community as a whole considers observance
of certain obligations as imperative.77 This is of course true of jus cogens as well.
The erga omnes principle underlies States assertions of the right, rooted in
the general interest of the international community, to demand the observance of
human rights by other States. Barcelona Traction ushered in growing acceptance
in contemporary international law of the principle that all States have a legitimate
interest in, and the right to protest against, signicant violations of customary
human rights, regardless of the nationality of the victims (customary erga omnes).
I shall return to the question of the additional remedies that may be available to
various categories of injured States. Additionally, an increasing number of human
rights treaties grant each State party standing to challenge violations by other
State parties, regardless of the nationality of the victims (conventional erga omnes
or erga omnes contractantes).
The crystallization of the erga omnes character of human rights, grounded in
Articles 55 and 56 of the UN Charter, is progressing despite the uncertainty voiced
by some commentators. Some have questioned, for example, whether a State not
directly involved in a matter by the need to protect its nationals may ut singulus
bring an action before an international tribunal for reparation against the vio-
lating State. While questions persist concerning the remedies available to States
acting only to vindicate the general international legal order, the locus standi of a
State not specially aected has not been questioned in principle where a human
rights court, such as the European Court of Human Rights, has the necessary
jurisdiction explicitly conferred. Nevertheless, the discussions on the status and
the implications of obligations erga omnes take place largely in the abstract, given
that State practice lags behind scholarly opinion.
Many human rights conventions confer standing to pursue inter-State com-
plaints of human rights violations without requiring proof of material damage
to the claimant State. Standing to ensure respect for customary human rights
(erga omnes in lex generalis) is conceptually dierent from standing under such
treaties (erga omnes contractantes). Ratione personae, the latter is limited to the

76 Id., at 200-203.
parties, and ratione materiae, is limited primarily to the norms stated in the treaty
in question. However, the practical dierences between the two may decrease
as the number of parties to treaties covering a wide spectrum of human rights
increases.
Through its work on the topic of State responsibility and on the Draft Ar-
ticles on State Responsibility in particular, the ILC has attempted to clarify the
Courts Barcelona Traction pronouncement. Although in international law a cor-
relation between the obligation of one State and the subjective right of another
always exists, the ILC has determined that this relationship may extend in vari-
ous forms to States other than the State directly injured if the international ob-
ligation breached is one of those linking the State, not to a particular State, but
to a group of States or to all States members of the international community.78
When an obligation erga omnes, in whose fulllment all States have a legal inter-
est, is breached, the breaching States responsibility is engaged vis--vis all the
other members of the international community. Therefore, every State must be
considered justied in invoking the responsibility of the State committing the
internationally wrongful act.79
Still, some questions persist. Are basic rights of the human person,80 which
give rise to obligations erga omnes, synonymous with human rights tout court,
or are they limited to those rights which are intimately associated with the hu-
man person and human dignity and are generally accepted as customary norms?
The distinction between basic rights and ordinary rights is not self-evident. In
the Barcelona Traction case, the Court may have intended to bestow erga omnes
character on rights which have matured into customary law or been incorporated
into universal or quasi-universal instruments. While basic rights could be pro-
tected by States regardless of the victims nationality, would protecting ordinary
rights depend on either employment of treaty mechanisms or diplomatic protec-
tion by the victims State of nationality? Scholars have increasingly recognized
the erga omnes character of all human rights, at least those under customary law.
Do obligations erga omnes justify judicial recourse or only political protests and
diplomatic action?
Of course, the concept of the diplomatic protection of citizens is largely
foreign to human rights treaties. Such treaties often emphasize the rather dif-
ferent right of State parties to bring complaints against perpetrators of human
rights violations irrespective of the nationality of the individual claimants and of
whether or not the violation resulted in material injury. There has been a growing
acceptance of the erga omnes character of human rights recognized by customary
law, whether or not they are regarded as basic rights of the human person. Such
is the position taken, for example, by Section 703(2) of the Restatement (Third) of
the Foreign Relations Law of the United States (1987). As a practical proposition
78 [1976] 2 Y.B. Intl L. Comms (pt. 2) at 76, UN Doc. A/CN.4/SER.A/1976/Add.1 (Part

2) (1977).
79 See id. at 99.
80 Barcelona Traction Light & Power Co., Ltd., supra note 6, 34.
264 Chapter 4
it is, however, unlikely that any third State will take up trivial cases on the basis of
an obligation erga omnes.
The ICJ relied on the concept of obligations erga omnes in considering the
scope of consent to the Courts jurisdiction in the East Timor case,81 to which
I shall return, and the Genocide Convention (Bosnia v. Yugoslavia) case. In the
Genocide Convention (Preliminary Objections) decision, the Court held that the
rights and obligations enshrined in the Convention are rights and obligations erga
omnes.82 This was one of the grounds advanced to conclude that the Courts tem-
poral jurisdiction was not limited to the time after which Bosnia and the FRY
became bound by the Convention.83
In the ILC, the concept of erga omnes has triggered an ambitious research
and codication agenda centered on the draft articles on State responsibility. Spe-
cial Rapporteurs Ago, Riphagen, Arangio-Ruiz and Crawford have all made im-
portant contributions in this regard. Reporting to the General Assembly, the ILC
suggested that it was important
to distinguish among the various degrees of wrongful acts that a State could commit
in violation of various international obligations and, above all, to determine the legal
consequences arising from the various categories of wrongful acts While in the
context of relations between subjects of law it was for the injured State to take action
and the damage and causal relationship were constituent elements of the regime of
responsibility, as were the compensation or indemnication required, in the case of
the violation of an essential norm or one of superior degree, it was for the community
to take action, direct harm was not indispensable and the penalty was the conse-
quence of the violation.84
In the context of State responsibility, discussions of erga omnes obligations have

focused on the legal interests or rights of third States to demand the respect for
such obligations. Duties of third States bound under erga omnes norms with re-
gard to situations where violations occur have attracted less attention. Comment-
ing on a draft resolution of the Institute of International Law on obligations erga
omnes, Ren-Jean Dupuy referred to such duties:
il sagit non pas dune facult, mais dun devoir qui pse sur les membres de la com-
munuat des nations. Cela entrane galement des devoirs en matire daide humani-
taire, un domaine o des progrs rcents ont t enregistrs, y compris au sein de
81 See East Timor (Portugal v. Australia), International Court of Justice, Judgment of 30

June 1995, 1995 ICJ Rep. 90, at 102, 29.
82 Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections, International
Court of Justice, Judgment of 11 July 1996, 1996 ICJ Rep. 616, 31.
83 Id.
84 Report of the International Law Commission on the Work of its Fiftieth Session, supra
note 12, 305, UN Doc. A/53/10 and Corr. 1 (1998).
lAssemble gnrale des Nations Unies en ce qui concerne les secours en cas de ca-
tastrophes naturelles.85
That resolution, Resolution on The Protection of Human Rights and the Prin-
ciple of Non-intervention in Internal Aairs of States, adopted by the Institute
of International Law in 1989, characterizes the obligation of States to ensure ob-
servance of human rights as erga omnes, [implying] a duty of solidarity among
all States to ensure as rapidly as possible the eective protection of human rights
throughout the world.86
The concept of erga omnes rights is also relevant to such other elds of com-
munity interest as environmental protection and control of weapons of mass de-
struction. In these areas, the human rights paradigm of erga omnes is likely to
exercise considerable inuence.
II. International Crimes

The tremendous advances in the criminal responsibility of individuals for viola-
tions of international, especially humanitarian law, have not rendered moot the
question of criminal responsibility of States. This is especially true in cases where
responsibility for egregious breaches is not limited to a narrow group of lead-
ers but is widely shared among the population. Many national legal systems are
increasingly departing from the maxim impossibile est quod societas delinquat,
a doctrine frequently invoked against the concept of criminal responsibility of
States. The erosion of this maxim in national jurisdictions may suggest that the
controversy surrounding crimes of States has more to do with State sovereignty
with the diculty in dening appropriate remedies, and with the establishment
of necessary institutional procedures and safeguards than with the character of
the State as a legal person.87
In considering the potential for the criminal responsibility of States, the ILC
adopted on rst reading a controversial approach to the criminal responsibility of
States, as proposed by special rapporteur Roberto Ago.88 Article 19(3) provided
that
an international crime may result, inter alia, from
85 The Protection of Human Rights and the Principle of Non-intervention in Internal Af-
fairs of States, Institute of International Law Declaration, Record of Deliberations, in
63 (2) Yearbook of the Institute of International Law 230 (1989).
fairs of States, Institute of International Law Declaration, Art. 1, id. at 338.
87 Meron, Is International Law Moving Towards Criminalization?, 9 Eur. J. Intl L. 18
(1998).
88 [1976] 2 Y.B. Intl L. Commn (pt 2) 73, UN Doc. E/CN.4/1976/Add. 1 (Part 2) (1977).
266 Chapter 4
(a) a serious breach of an international obligation of essential importance for the

maintenance of international peace and security, such as that prohibiting ag-
gression;
(b) a serious breach of an international obligation of essential importance for safe-
guarding the right to self-determination of peoples, such as that prohibiting the
establishment or maintenance by force of colonial domination;
(c) a serious breach on a widespread scale of an international obligation of essential
importance for safeguarding the human being, such as those prohibiting slav-
ery, genocide and apartheid;
(d) a serious breach of an international obligation of essential importance for the
safeguarding and preservation of the human environment, such as those pro-
hibiting massive pollution of the atmosphere or of the seas.
Obviously, human rights are central to Article 19. In that article, the ILC introduced
a twofold test for identifying international crimes based on both the magnitude
of the violation (a serious breach on a widespread scale) and the importance
of the norm itself (an international obligation of essential importance). Under
this approach, breaches of lesser proportions or of less-fundamental norms, while
still constituting international delicts or international wrongs, would not qualify
as international crimes giving rise to State criminal responsibility. Although
Roberto Agos ILC considered the examples of international crimes mentioned in
Article 19(3) as lex lata under multilateral treaties or custom,89 others have ques-
tioned both the evidence adduced by Ago and the practical utility of the concept
of criminal responsibility of States.90
Discussions in the ILC of measures authorizing States not specially aected
by an international crime, individually or collectively, to compel the wrongdoing
State to comply with its international obligations have been inconclusive. Some
members of the ILC argued that crimes of States justied a collective interven-
tion; others questioned the right of third States to resort even to non-military
intervention.
The critical point here is the absence of appropriate international institutions
and processes to enforce the prohibition of international crimes by States. Ad-
mittedly, the Security Council, acting under Chapter VII of the UN Charter, may
authorize military action and other measures to maintain and restore peace and
security. The Council has increasingly understood its mission under Chapter VII
as encompassing responses to humanitarian atrocities. It is clear, however, that
the Council has never considered the criminal responsibility of States as such as
a factor in its decisions.
Diculties with the idea of crimes of States are conceptual as well as in-
stitutional. Conceptual problems include the specication and choice of certain
norms as fundamental norms, the still inadequate rationales for distinguishing
89 Id. at 120.
90 See Ian Brownlie, System of the Law of Nations: State Responsibility (Part I) 33
(1983).
between the civil and criminal responsibility of States, and the continuing need
to identify appropriate remedies for criminal responsibility. Institutional ques-
tions concern the availability of competent organs to determine whether or not a
State is guilty of an international crime and the existence of credible enforcement
procedures.
The concept of international crime has generated debates in doctrinal
works and in the ILC itself. Some members were of the view that [i]n essence, it
was nothing more than a system for ex post labeling of certain breaches as seri-
ous.91 Others believed that there had been no signicant practice supporting the
concept of State crimes in international law.92 The Commission remained divided
over the issue and followed the suggestion of Special Rapporteur James Crawford
to put aside Article 19.93 Although the concept of criminal responsibility of States
has important ethical and moral underpinnings, it is doubtful that it has taken
root in contemporary international law.94
I agree with Georges Abi-Saab that the standing of third States to seek redress
for international crimes underscores the gravity of international crimes; however,
the fact remains that such third States already have such standing with respect to
obligations erga omnes. The question, therefore, is whether the notion of interna-
tional crimes by States adds anything signicant to erga omnes and to peremptory
norms. Ragazzi noted the inuence of the provisions of the Vienna Convention
on the Law of Treaties on the work of the ILC in the eld of State responsibility.
Draft Article 19, particularly the categorization of international crimes in Article
19(3), bears the imprint of jus cogens.95 James Crawford found that [j]udicial deci-
sions since 1976 certainly support the idea that international law contains dier-
ent kinds of norms, and it is not limited to the classical idea of bilateral norms.
On the other hand there is no support in those decisions for a distinct category
of international crimes of States.96 He added that the ILC had failed to elaborate
a distinctive regime for such violations of international law, taking into account
the seriousness of the violations implied in Article 19.97 There was thus a real con-
trast between the development of signicant procedural guarantees in provisions
concerning countermeasures and the absence of such guarantees in the context
of international crimes.98
note 12, 243.
92 Id.
93 Id., 331.
94 See generally Meron, Customary Law, supra note 66, at 208-15.
96 First Report on State Responsibility, by James Crawford, Special Rapporteur, UN Doc.
A/CN.4/490/Add.2, 63 (1998).
97 Id., Add.1, 5, 82-86; Also, Zemanek, supra note 10, at 272-273.
98 See id., Add.2, 43. On the need of such guarantees, see id., Add.3, 81; Report of the
International Law Commission on the Work of its Fiftieth Session, supra note 12,
309-312.
268 Chapter 4
Gaja contributed to the understanding of the relationships among erga

omnes, jus cogens and international crimes by describing them as a set of three
overlapping, concentric circles. The narrow range of conduct constituting inter-
national crimes of States was entirely subsumed in the intermediate sphere of jus
cogens norms, which were, in turn, encompassed by the broader eld of obliga-
tions erga omnes. 99 All peremptory norms were constitutive of erga omnes obliga-
tions, but conversely, not all erga omnes obligations rose to peremptory norms.
Similarly, not all breaches of jus cogens rose to the gravity of international crimes,
though international crimes necessarily violated peremptory norms.100
An argument often raised against the concept of international crimes of
States is that the very notions of penal responsibility and punishment make no
sense when applied to States. Alain Pellet, for instance, has argued that interna-
tional responsibility is neither criminal nor civil but sui generis.101 Penal respon-
sibility of States was rejected by the ICTY Appeals Chamber in the Blaski Case.
The Tribunal held that, under present international law it is clear that States, by
denition, cannot be the subject of criminal sanctions akin to those provided for
in national criminal systems.102 Reecting similar concerns, the Inter-American
Court of Human Rights also explicitly excluded awards of punitive or exemplary
damages in the Velsquez-Rodrguez case despite the seriousness of the viola-
tions:
Although some domestic courts, particularly the Anglo-American, award damages in

amounts meant to deter or to serve as an example, this principle is not applicable in
international law at this time.103
International crime in Article 19 does not necessarily mean criminal conduct

in the ordinary sense as applied to the penal responsibility of individuals in either
domestic or international law. As Georges Abi-Saab has pointed out, the object
of Article 19 was not to criminalize the comportment of States but simply to at-
tach graver consequences to violations constituting international crimes, and to
99 See Giorgio Gaja, Obligations erga omnes, International Crimes and Jus Cogens: A
Tentative Analysis of Three Related Concepts, in International Crimes of State 151,
152 (Joseph H.H. Weiler, Antonio Cassese, and Marina Spinedi, 1989). See also Jo-
chen Frowein, Vlkerrecht-Menschenrechte Verfassungsfragen Deuchtlands und
Europa 183-87, 192-95 (2004), Reactions by not Directly aected States to Breaches of
Public International Law, 248 Recueil des Cours 353 (1994-IV).
100 De Hoogh implies that only peremptory norms are constitutive of erga omes obliga-
tions. See de Hoogh, supra note 8, at 53-56.
101 See First Report on State Responsibility, supra note 96, Add.1, 52.
102 See Prosecutor v. Blaski, Request of the Republic of Croatia for Review of the Deci-
sion of Trial Chamber II of 18 July 1997, ICTY (Appeals Chamber), Judgment of 29
October 1997, 25.
103 See Velsquez Rodrguez v. Honduras, Compensation, Inter-American Commission on
Human Rights, Judgment of 21 July 1989, 1989 IACHR Rep. (Ser. C), No. 7, 52, 38.
emphasize that such violations cannot be reduced to a mere bilateral relationship

between the victim and the perpetrator.104 In their edition of Oppenheim, Jen-
nings and Watts also speak of a special and more severe type of responsibility.105
The ILCs former draft articles did not provide for punitive damages or
sanctions in case of international crimes.106 However, draft Article 45 provided
that satisfaction may include nominal damages and that in cases of gross in-
fringement of the rights of the injured State, damages reecting the gravity of the
infringement, may be awarded, a provision which Zemanek censures as going
beyond customary law.107 Abi-Saab, however, argues that there is a dierence of
emphasis between the traditional approach to State responsibility for wrongful
acts (delicts) and responses to international crimes. The main purpose of the
former is to re-establish the status quo ante. The accent is thus put on injury
and reparation. The latters purpose is the defense of the normative integrity of
the legal system itself against patterns of behavior which go against its most fun-
damental principles.108 As such, the emphasis is placed on cessation and guaran-
tees of non-repetition of violations. De Hoogh similarly observed that the whole
philosophy behind the theory of international crimes appears to be a shift to more
law observance, and, in case the law is not observed, to more eective law en-
forcement.109
Crawford has adduced powerful arguments against the concept of inter-
national crimes of States: First, Article 19 suered from imprecision. Providing
merely that a crime may result from the acts enumerated in Article 19(3), Article
19 left unanswered the questions of when and whether even the breaches enu-
merated would constitute crimes. Moreover, the dierentiation of international
crimes from international delicts did not clarify the notions of standing or injury.
Former draft Article 40(3) dened all States as injured States for purposes of
international crimes. But States could be injured States also under general inter-
national treaties or general international law for the protection of human rights,
regardless of the seriousness of the breach or the relative importance of the obli-
gation (Article 40(2)(e)(iii)) and thus outside any penal context. Because the draft
articles did not provide for punitive damages or nes, the specic consequences
resulting from international crimes were minimal,110 if any.
104 Georges Abi-Saab, The Concept of International Crimes and its Place in Contempo-
rary International Law, in International Crimes of State 141, 146 (Joseph H.H. Weiler,
Antonio Cassese, Marina Spinedi, eds., 1989).
105 See Robert Jennings and Arthur Watts (eds.), Oppenheims International Law 533 (9th
ed. 1992).
106 See Former draft Articles 52 and 53. See also First Report on State Responsibility, by
James Crawford, supra note 96, Add.1, 51and 84.
107 See Zemanek, supra note 10, at 270-271.
108 Abi-Saab, supra note 104, at 350.
109 de Hoogh, supra note 8, at 57.
110 First Report on State Responsibility, Add. 2, by James Crawford, supra note 96, at 4-6.
270 Chapter 4
Even prior to its recent abandonment by the ILC, the concept of crimes of
States had minimal consequences for international law. Crawfords recent report
did not propose a unitary system for all breaches. The regime for erga omnes and
jus cogens, with multiple injured States, is already dierent from that envisaged
for bilateral breaches not involving broader community interests. With a special
regime of responsibility for crimes of States, there would have been three regimes
of responsibility. As it is, should a State commit some of the crimes mentioned in
Article 19, Security Council action under Chapter VII of the UN Charter may be
appropriate.
In the draft articles, the ILC adopted two provisions on serious breaches of obliga-
tions under peremptory norms of general international law which omit any refer-
ence to a criminal responsibility.111 The consequences of such breaches have not,
however, been much claried. Draft Article 41 rephrases the substance of former
draft Article 53. At it had already been noted by Crawford, serious breaches of per-
emptory norms seem paradoxically to entail additional obligations for third States.112
Special Rapporteur Crawford had suggested a reference to punitive damages or to
damages reecting the gravity of the breach.113 This approach was nally rejected by
the ILC for lack of agreement among its members, and the issue was left, in Article
41(3) to international law.
The ILC has been unable to elaborate further the concept and consequences of
crimes of States. This proved to be fatal for the current prospects of transforming
crimes of States into a concept with distinct legal sanctions for violations. It is,
however, likely that this concept will continue to surface in discussions of ways to
advance protection of human rights, humanitarian norms, and other values of the
international community.
D. Rights and Remedies
I. Departure from State-Centric Enforcement

The traditional approach to enforcement of international law has been State-cen-
tric. As Damrosch has written, States are violators and States are victims of vio-
lations of international law.114 The mechanisms for remedying such violations, as
exemplied by UN Charter provisions for ensuring international peace and secu-
rity, were similarly State-centric. Moreover, the Charter mechanisms are limited
in scope and [leave] obscure the problem of enforcement for all-too-common
111 Draft Articles 40 and 41, supra note 1.

112 Third Report on State Responsibility, Add. 4, supra note 46, at 23, 410.
113 Id. at 22-23.
114 Lori F. Damrosch, Enforcing International Law through Non-forcible Measures, 269
Collected Courses 1, 27 (1997). See also Laurence Boisson de Chazournes, Les contre-
mesures dans les relations internationales conomiques (1992).
violations of international law in the absence of a recognizable threat to interna-

tional peace and security.115 Contemporary international law shows, however, the
trend towards the treatment of individuals as victims of violations of international
norms (and as violators of those norms) and a recognition of a growing role for
international organizations in the enforcement of those norms. The development
of international criminal law and human rights law has fostered the idea that the
individual has rights and responsibilities under international law:
The acceptance of the individual as a bearer of legal rights and responsibilities is of

surpassing conceptual importance: this development was already well under way by
mid-century. With the Charter of the International Military Tribunal, the Nuremberg
and Tokyo trials, and the General Assemblys armation of the Nuremberg princi-
ples, the proposition was conrmed and applied that individuals as well as States
could commit violations of international law and be held responsible for those viola-
tions.116
Until recently, enforcement of international norms, including those assigning

responsibility to individuals, has been left to individual States. This system was
ineective, as evidenced by the very few cases of application of the principle of
universal jurisdiction to prosecute violations of the grave breaches provisions of
the Geneva Conventions. The establishment of the international court contem-
plated by the Genocide Convention117 is only now being realized with the recent
adoption of the more general Rome Statute for an International Criminal Court.118
The ICC Statute arms the individuals legal personality as a bearer of rights and
obligations under international law. The establishment of the ICC may be a mani-
festation of the trend towards a more centralized enforcement of international
legal norms governing the conduct of individuals.
The establishment of the International Criminal Court may also reect the
increasing importance of international organizations in the enforcement of in-
ternational law. Gray has observed that [i]nternational organizations provide a
partial substitute for the lack of any general action on behalf of the world com-
munity and also for the lack of compulsory judicial settlement.119 In the eld of
human rights, the principle that individuals have redress against their own States
has been amply recognized. In the Loizidou case the European Court of Human
115 Damrosch, supra note 114; also Linos-Alexandre Sicilianos, Les ractions dcentrali-
ses lillicite Des contre-mesures la lgitime dfense 174 (1990).
116 Damrosch, supra note 114, at 27.
117 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9,
1948, 78 UNTS 277.
118 Rome Statute of the International Criminal Court, July 17, 1998, UN. Doc. A/
CONF.183/9*, reprinted in 37 ILM 999 (1998).
119 Christine Gray, Judicial Remedies in International Law 215 (1987).
272 Chapter 4
Rights has emphasized the collective enforcement aspect of the system estab-
lished by the European Convention.120
International environmental law has also been developing new practices to
enforce obligations collectively.121 For instance, Article 13 of the Bern Convention122
establishes a Standing Committee comprising member States for the purpose of
collective enforcement; Article 14 authorizes the Standing Committee to issue
recommendations either of general application or targeting specic States.123
II. Injured States

By dispensing with the traditional elements of fault and damage and concentrat-
ing on the internationally wrongful nature of conduct, the contemporary ap-
proach to State responsibility has given rise to an enlarged vision of the scope of
State responsibility and a new focus on the relations between the wrongdoing
State, the victim State and third parties.124 An internationally wrongful act creates
a new legal relationship between the perpetrating State and the injured State or
States.125 The elimination of damage as an element of State responsibility means
that the infringement of a right alone suces to establish State responsibility.126
Former draft Article 40 consequently dened an injured State as any State a
right of which is infringed by the act of another State, if that act constitutes [...]
120 Loizidou v. Turkey, Preliminary Objections, European Court of Human Rights, Judg-
ment of 23 March 1995, 310 Eur. Ct. H.R. (Ser. A), 70 (1995).
121 See Simma, supra note 73, at 134. Simma discusses erga omnes obligations in the eld
of human rights or the environment that do not protect states but rather human be-
ings or groups directly [...] or those rules that deal with the preservation of the worlds
commons.
122 Convention on the Conservation of European Wildlife and Natural Habitats, Bern, 19
September 1979, in force 1 June 1982, Eur. T.S. No. 104, Article 18.
123 Lyster writes that the Committee issued two recommendations addressed to the Ital-
ian government in circumstances where a breach of the terms of the Convention
seemed likely. These matters concerned protection of wildlife and hunting in par-
ticular regions of Italy. Simon Lyster, International Wildlife Law 150 (1993).
124 Pierre-Marie Dupuy, Reviewing the Diculties of Codication: On Agos Classica-
tion of Obligations of Means and Obligations of Result in Relation to State Responsibil-
ity, 10 Eur. J. Intl L. 371, 373 (1999).
125 See Sixth Report on the Content, Forms and Degrees of International Responsibility
by Willem Riphagen, Special Rapporteur, UN Doc. A/CN.4/389, 3-5; reprinted in
[1985] 2(1) Yb. Intl L. Commn 3, 15, 3-5.
126 See Attila Tanzi, Is Damage a Distinct Condition for the Existence of an Internation-
ally Wrongful Act?, in United Nations Codication of State Responsibility 1, 8 (Ma-
rina Spinedi & Bruno Simma eds., 1987). See also Graefrath, supra note 14, at 34-37.
an internationally wrongful act of that State.127 The infringement of a States right

transforms it into an injured State.128
[F]or the establishment of the injured party the rst question is whose rights were
infringed and not who suered a damage. At this stage material damage becomes
signicant only if it was made expressly a condition for occurrence of a violation of
international law.129
Identication of the injured State, injured by a violation of multilateral obliga-

tions, obligations erga omnes, or jus cogens, has proven controversial. Acknowl-
edging these diculties, Special Rapporteur Riphagen distinguished directly
injured from indirectly injured States. The rst category includes those States
which have suered a specic injury; the second category includes States which
have suered an infringement of their rights without suering a specic injury.130
Pierre-Marie Dupuy preferred distinguishing between subjectively injured and
objectively injured States. Focusing on the nature of the interest or right in-
fringed, Dupuy considered the State which suered a personal injury as sub-
jectively injured, while the State that suered an injury solely as a member of the
127 Former draft Article 40. Former draft Article 40(2) elaborated on the basic denition
of an injured state, identifying the states injured by an internationally wrongful act on
the basis of the nature and form of the underlying obligation. The rst four provisions
of that article, (a)-(d), identify the states injured by the infringement of rights arising
between parties to traditional bilateral agreements, arising for third states through
bilateral agreements, or established through the binding proceedings of international
tribunals or other international organizations.
[...]
2. In particular, injured State means:
a. if the right infringed by the act of a State arises from a bilateral treaty, the
other State party to the treaty;
b. if the right infringed by the act of a State arises from a judgement or other
binding dispute settlement decision of an international court or tribunal,
the other State or States parties to the dispute and entitled to the benet of
that right;
c. if the right infringed by the act of a State arises from a binding decision of an
international organ other than an international court or tribunal, the State
or States which, in accordance with the constituent instrument of the inter-
national organization concerned, are entitled to the benet of that right;
d. if the right infringed by the act of a State arises from a treaty provision for a
third State, that third State[.]
128 Sachariew, supra note 47, at 274. But see de Hoogh, supra note 8, at 33-37 (comparing
the Draft Articles and the Vienna Convention on the Law of Treaties with respect to
the denition of an injured state.)
129 Graefrath, supra note 14, at 47.
130 See Fourth Report on the Content, Forms and Degrees of International Responsibil-
ity (Part 2 of the Draft Articles), by Willem Riphagen, Special Rapporteur, UN Doc.
A/CN.4/366 and Add.1, 77, reprinted in [1983] 2 Yb.Intl L. Commn 3, 14.
274 Chapter 4
international community as objectively injured.131 Special Rapporteur Arangio-

Ruiz however, was critical of such a distinction:
Each of the States participating in an inter omnes legal relationship is indeed entitled
to the same kind of rights and facults as those to which it would be entitled within
the framework of any bilateral or international responsibility relationship..132
Former Draft Articles 40 (2)(e)-(f ) and (3)133 identied the States injured by
breaches of multilateral obligations but did not adequately address obligations
erga omnes. Simma has suggested that former draft Article 40(2)(e)(iii) appears
to recognize (or at least not to exclude) the existence of human rights obligations
based on customary law.134 Former draft Article 40 (2) (f ) recognizes all States
parties to a multilateral treaty as injured by violations of rights under a treaty
expressly adopted for the protection of collective interests. Charney suggests that
such collective interests could also be protected by customary law.135 But former
draft Article 40 (2)(f ) would not support the vindication by any State of collective
interests secured through customary law. Under this approach, only when the
wrongful act qualies as an international crime are all States to be considered in-
131 Pierre-Marie Dupuy, Implications of the Institutionalization of the International

Crimes of State, in International Crimes of State 170, 179-180 (Joseph H.H. Weiler,
Antonio Cassese, Marina Spinedi, eds., 1989).
132 Fourth Report on State Responsibility, by Gaetano Arangio-Ruiz, Special Rapporteur,
UN Doc. A/CN.4/444 and Add.1-3, 143, reprinted in [1992] 2 Yb. Intl L. Commn
34, 46.
133 2. In particular, injured State means:
e. if the right infringed by the act of a State arises from a multilateral treaty
or from a rule of customary international law, any other State party to the
multilateral treaty or bound by the relevant rule of customary international
law, if it is established that:
i. the right has been created or is established in its favor;
ii. the infringement of the right by the act of a State necessarily aects
the enjoyment of the rights or the performance of the obligations of
the other States parties to the multilateral treaty or bound by the rule
of customary international law; or
iii. the right has been created or is established for the protection of hu-
man rights and fundamental freedoms;
f. if the right infringed by the act of a State arises from a multilateral treaty,
any other State party to the multilateral treaty, if it is established that the
right has been expressly stipulated in that treaty for the protection of the
collective interests of the States parties thereto.
3. In addition, injured State means, if the internationally wrongful act constitutes
an international crime, all other States.
134 Simma, supra note 43, at 297-298 (commenting on the text of current Draft Article
40(e)(iii) as it appeared in article 5(2)(e) of an earlier ILC draft).
135 See Jonathan Charney, Third State Remedies in International Law, 10 Mich. J. Intl L.
57, 81 (1989).
jured States.136 Special Rapporteur Riphagen went as far as to argue that beyond
the case of international crimes, there are no internationally wrongful acts having
an erga omnes character.137
Treating a State as an injured State as a result of human rights violations by
another State, i.e in the context of erga omnes, gives rise to the question of the pre-
cise scope of the injured States capacity. Crawford distinguishes between States
as representatives of the victims on the basis of their legal interest in the violating
States compliance with its human rights obligations, and the individuals whose
human rights have been violated, who remain the rights-holders. The eect of
Article 40(2)(e)(iii) would not transform human rights into States rights.138 Apart
from the symbolic nature of this distinction, it may have some implications for
the choice of suitable remedies. It might also be invoked to question the right of
the injured State to waive its claims. Where a primary rule of international law
protects extra-State interests and where a secondary rule allows other States to
participate in enforcement,139 the need to consider appropriate remedies and the
reconciliation of conicts between remedies clearly arises.
The latest ILC draft articles depart from the earlier scheme by focusing on
the obligation breached. Thus, the injured State is the State specically aected.
Other States may also invoke the responsibility of the defaulting State in certain
circumstances, but have a more limited range of remedies under Draft Articles
42 and 48.140
III. Legal Standing

The elimination of damage as a requisite element of State responsibility and the
recognition of erga omnes obligations raise the question of a States legal stand-
ing to bring an action before an international tribunal to vindicate a common or
general interest without demonstrating a special interest in the case.
The ICJ initially answered this question in the negative, rejecting any pos-
sibility for an actio popularis in its South West Africa decision:
136 Giorgio Gaja, Should All References to International Crimes Disappear from the ILC
Draft Articles on State Responsibility?, 10 Eur. J. Intl L. 365, 367 (1999).
137 Fourth Report on the Content, Forms and Degrees of International Responsibility, by
Willem Riphagen, supra note 130, 73.
138 Third Report on State Responsibility, by James Crawford, supra note 46, at 38-39.
Giorgio Gajas proposal for Article 40 bis reects a similar approach:
Depending on the character of the international obligation that has been breached and
on the circumstances of the breach, the obligations of the responsible State set out in
this Part are owed to another States, several States, all the other States or the interna-
tional community as a whole. However, the said obligations are not necessarily imposed
for the benet of the States to whom they are owed. ILC(LII)WG/SR/CRD.4 (May 17,
2000).
139 Third Report on State Responsibility, id., at 29.
140 Draft Articles (2001), supra note 1.
276 Chapter 4
although a right of this kind may be known to certain municipal systems of law, it is
not known to international law as it stands at present: nor is the Court able to regard
it as imported by the general principles of law referred to in Article 38, paragraph 1
(c), of its Statute.141
The extent to which the Court reversed this position in Barcelona Traction is still
controversial.142 The dictum recognizing the concept of obligations erga omnes is
far from clear. The Court stated that some of the corresponding rights of protec-
tion are conferred by international instruments of a universal or quasi-universal
character, adding later in the judgment that at the universal level, the instru-
ments which embody human rights do not confer on States capacity to protect
the victims of infringements of such rights irrespective of their nationality.143
These statements may suggest that some basis in conventional law is needed to
vindicate such rights.144 Crawford has suggested that the ICJs treatment of hu-
man rights norms in Barcelona Traction
may imply that the scope of obligations erga omnes is not co-extensive with the whole
eld of human rights, or it may simply be an observation about the actual language of
the general human rights treaties.145
In my view, the ICJ intended to depart from the South West Africa decision and
to recognize the standing of third party States to vindicate breaches of obligations
erga omnes. But the Court did not make clear what such standing eectively impli-
cated. The Restatement of the Foreign Relations Law of the United States (Third),
suggests that general human rights agreements do not contemplate diplomatic
protection by one State party on behalf of an individual victim of a violation by
another State party.146 In any event, for purposes of obligations erga omnes, the
doctrine appears to have dropped the distinction between basic and ordinary hu-
man rights, at least for rights recognized by customary law.
International agreements may expressly authorize State parties to initiate
proceedings against other parties for violations irrespective of the nationality of
141 South West Africa (Ethiopia and Liberia v. South Africa), Second Phase, supra note
63, 88.
142 See Ragazzi, supra note 62, at 211. See also Gray, supra note 119, at 214; Military and
Paramilitary Activities in and against Nicaragua, Interim Measures, Order of 10 May
1984, Dissenting Opinion of J. Schwebel, 1984 ICJ Rep. 4, at 190.
143 See Barcelona Traction Light and Power Company Ltd (Belgium v. Spain), supra note
6, 35.
144 See Oscar Schachter, International Law in Theory and Practice 209 (1991).
145 First Report on State Responsibility, Add.2, by James Crawford, supra note 96, 69;
also de Hoogh, supra note 8, at 52-53.
146 See Restatement (Third) of the Foreign Relations Law of the United States, Sec. 703,
Rep. Note 2 (1987).
the victims and without requiring that the complainant State have any specic
interest in the matter. 147 In the European Union, any member State may bring
actions before the European Court of Justice seeking a declaration that another
member State has violated the law of the European Community, without having
to establish that it suered a specic injury.148 Similarly, under some human rights
conventions, State parties have standing to bring claims for violations of human
rights regardless of the nationality of the victim.149 The European Convention on
Human Rights provides that [a]ny High Contracting Party may refer to the Court
any alleged breach of the provisions of the Convention and the protocols thereto
by another High Contracting Party.150 Some, though not many, such cases have
been brought before the European Court of Human Rights by States parties to the
European Convention against other States parties in situations where the com-
plaining State did not have nationality or other special nexus with the victims of
the violations.
In the environmental eld, the Bern Wildlife Convention provides that:
Any dispute between Contracting Parties concerning the interpretation or applica-

tion of this Convention which has not been settled by negotiation between the
parties concerned shall, unless the said parties agree otherwise, be submitted, at the
request of one of them, to arbitration.151
Most obligations under that convention concern national measures for the con-
servation of wild ora, fauna and natural habitats. These obligations are, mainly,
for the protection of species and habitats within parties domestic jurisdictions,
and it is not clear to what extent the Convention applies to areas beyond each
State partys national jurisdiction.152 There is no required element of extra-ter-
ritorial eect, as would be the case if the convention applied only, for example,
to migratory species. Disputes relative to the interpretation or application of the
Convention (Art.18) thus necessarily involve domestic policies conducted on na-
tional territory. Nor is a specic interest required to initiate a complaint before
the Standing Committee. Thus, a State party need not suer specic injury to
challenge another partys compliance with the treaty. International environmen-
tal agreements present unique diculties concerning the establishment of causa-
tion for environmental injury and the allocation of responsibility for pollution
147 See Christian Dominic, The International Responsibility of States for Breach of Mul-
tilateral Obligations, 10 Eur. J. Intl L. 353, 355-356 (1999).
148 See Gray, supra note 119, at 211.
149 See Meron, Customary Law, supra note 66, at 193.
150 See Convention for the Protection of Human Rights and Fundamental Freedoms,
Rome, 4 November 1950, in force 3 September 1953, Eur. T.S. No. 5, 213 UNTS 221,
Article 33. (As revised by Protocol 11).
151 Convention on the Conservation of European Wildlife and Natural Habitats, supra
note 122, Article 18.
152 See Lyster, supra note 123, at 145-149.
278 Chapter 4
and other damaging conduct. These diculties have prompted the development
of soft responsibility procedures,153 such as the non-compliance procedure es-
tablished under the Montreal Protocol: These procedures permit parties having
reservations regarding another Partys implementation of its obligations or a
party nding itself unable to meet its own obligations under the Protocol to sub-
mit the matter for consideration by an Implementation Committee.154 No specic
injury is required. Ultimate decisions are made by a Meeting of the Parties, which
may issue warnings and suspend certain privileges under the Protocol.
As far back as 1923, the Permanent Court of Justice recognized the standing
of a State party to a treaty to challenge violations even though it did not suer
a specic injury on the basis of a treaty provision expressly providing for such
standing in the Wimbledon case.155 The Wimbledon was a British vessel chartered
by a French company. Great Britain, France, Italy and Japan instituted proceed-
ings against Germany, arguing that Germany was wrong in refusing free access
to and passage through the Kiel Canal.156 Only France was seeking damages for
the loss incurred. Italy and Japan did not have any specic interest in the matter,
but only a general interest in the free access to the canal. Poland (the destination
of the ship) was also allowed to intervene. The Court held that States parties to a
multilateral treaty in this case the Treaty of Versailles (Article 386) had stand-
ing to bring an action against a State in breach of its obligations, even though
they had not suered a specic injury.157 It stated that [e]ach of the four Applicant
Powers [had] a clear interest in the execution of the provisions relating to the Kiel
Canal, since they all possessed eets and merchant vessels ying their respective
ag.158
Although the Court recognized the standing of applicant States not speci-
cally injured, its decision relied on the interpretation of a jurisdictional clause of
the Treaty of Versailles. This clause provided that any interested Power could
bring an action for breach of any conditions provided in Articles 380 to 386 of the
Peace treaty.159 Ragazzi has observed that the analogy between the notion of an
interested Power in the quoted passage and the concept of a State interested
in the protection of obligations erga omnes was more apparent than real since
in fact
153 See Alexandre Kiss and Dinah Shelton, International Environmental Law 362 (1991).
154 See Report of the Fourth Meeting of the Parties to the Montreal Protocol in Substances
that Deplete the Ozone Layer, Decision IV/5: Non-compliance procedure and Annex
IV, UN Doc. UNEP/OzL.Pro.4/15 (1992).
155 See S.S. Wimbledon (France et al. v. Germany), Permanent Court of International
Justice, Judgment of 17 August 1923, 1923 P.C.I.J. (Ser. A) No. 1, at 6 (Aug. 17).
156 Id. at 20.
157 Gray, supra note 119, at 211.
158 S.S. Wimbledon, supra note 155, at 20.
159 Ragazzi, supra note 62, at 24-25.
in the case of obligations erga omnes, a legal interest is deemed to be vested in all
States by operation of general international law. On the contrary, in the Wimbledon
case, the existence of a legal interest depended on the interpretation of a conventional
rule, which alone was the ground for the institution of the legal proceedings.160
Another dierence is that the interested parties in the Wimbledon case, though
not victims, were nonetheless potential victims of the German policy. They thus
had a material interest of their own, in contrast to obligations erga omnes in the
eld of human rights, where third States interests are more of a legal and norma-
tive character.
In the preliminary phase of the South West Africa cases, the ICJ considered
Ethiopia and Liberia each to have had a legal interest in the performance of the
South African Mandate, even though they were not direct parties to the agree-
ment between South Africa and the League of Nations and had not suered any
direct injury:161 In the Second Phase, the Court recognized that
[I]t may be said that a legal right or interest need not necessarily relate to anything
material or tangible, and can be infringed even though no prejudice of material na-
ture has been suered States may have a legal interest in vindicating a principle
of international law, even though they have, in the given case, suered no material
injury, or ask only for token damages.162
However, the Court ultimately based its judgment on a controversial distinction

between the obligations of the Mandatory Power towards the League of Nations
and those towards member States,163 concluding that the latter did not have a
legal interest to demand performance of the Mandatorys obligations towards the
League of Nations.
The standing of unaected parties to challenge violations of multilateral
agreements ultimately depends on the nature and terms of the underlying agree-
ment. Schachter has addressed the question whether a State party to a multilat-
eral treaty would have the right to seek redress for a violation of the treaty when
it did not suer any specic violation:
The question now presented is whether acceptance of the concept of erga omnes ob-
ligations implies that a right analogous to the actio popularis has emerged. Only a
tentative answer can be given and, to do that, we have to divide the general problem
into separate questions.
160 Id. at 25.

161 South West Africa (Ethiopia and Liberia v. South Africa), Preliminary Exceptions,
International Court of Justice, Judgment of 21 December 1962, 1962 ICJ Rep. 319, at
343.
162 South West Africa (Ethiopia and Liberia v. South Africa), Second Phase, supra note
63, at 32, 44.
163 See Gray, supra note 119, at 213.
280 Chapter 4
[One] such question concerns the right of a State party to a multilateral treaty to seek
redress for a treaty breach when that violation involves no material injury to that
State and does not aect its nationals. An armative answer is reasonable on the
premise that any breach of an international obligation owed to a State involves some
kind of injury to that State. In a multilateral treaty the obligations as a rule run to all
parties; consequently, in the absence of a contrary intent, every party would have a
legal interest sucient to sustain standing to redress.164
I agree. Although conceptually and materially dierent, the erga omnes princi-
ple under certain general conventions such as the Geneva Conventions for the
Protection of Victims of War or under the Political Covenant (erga omnes con-
tractantes) is, in practical terms, not greatly dierent from erga omnes in general
international law.
Of course, vindication of rights based on erga omnes obligations before an
international tribunal requires an independent basis for the tribunals jurisdiction
over the matter and over the oending State.165 While recognizing that the right to
self-determination constitutes an erga omnes principle, the ICJ concluded in the
East Timor case and conrmed in Congo v. Rwanda that the erga omnes nature
of the obligation at issue did not dispense with the requirement of consent to the
Courts jurisdiction:
In the Courts view, Portugals assertion that the right of peoples to self-determina-
tion, as it evolved from the Charter and from United Nations practice, has an erga
omnes character, is irreproachable. The principle of self-determination of peoples has
been recognized by the United Nations Charter and in the jurisprudence of the Court
[references omitted]; it is one of the essential principles of contemporary interna-
tional law. However, the Court considers that the erga omnes character of a norm and
the rule of consent to jurisdiction are two dierent things.166
164 Schachter, supra note 150, at 144.

165 See Reparation for Injuries Suered in the Service of the United Nations, Interna-
tional Court of Justice, Advisory Opinion of 11 April 1949, 1949 ICJ Rep. 174, at 177.
166 East Timor (Portugal v. Australia), supra note 81, at 102, 29.
The Court took the same position in the more recent Case Concerning Armed Activi-
ties on the Territory of the Congo:
Whereas it does not follow from the mere fact that rights and obligations erga omnes
are at issue in a dispute that the Court has jurisdiction to adjudicate upon that dispute;
whereas, as the Court has noted above, it has jurisdiction in respect of States only
to the extent that they have consented thereto; and whereas, when a compromissory
clause in a treaty provides for the Courts jurisdiction, that jurisdiction exists on in
respect of the parties to the treaty who are bound by that clause and within the limits
set out in that clause
(New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Order of 10
July 2002 on Request for the Indication of Provisional Measures at para. 71.
While the holding of the Court clearly distinguishing between jurisdiction

and substantive norms (erga omnes) is no doubt correct, it shows the limited ef-
fect of obligations erga omnes on the practice of international tribunals. It remains
to be seen how the ICJ would deal with a claim based on human rights violations
(erga omnes) in a case brought, for example, under Article 36(2) (the compulsory
jurisdiction clause ) of the Statute. It is to be hoped that the Court would recog-
nize the standing of the claimant State.
IV. Choice of Remedies

The ICJ in the Barcelona Traction case recognized that [i]n view of the impor-
tance of the rights involved, States can be held to have a legal interest in their
protection.167 This statement seems to assimilate obligations towards the inter-
national community as a whole with obligations towards each State within that
community by conferring upon each State a discrete legal interest in the protec-
tion of the rights at issue.168 Recognition of such legal interest could result in every
State having a separate claim against the responsible State.169 However, Special
Rapporteur Roberto Ago stated that it was not clear whether the commission of
an international crime resulted in new legal relationships with States ut singuli
or as members of the international community.170 Special Rapporteur Riphagen
contended that the commission of an international crime gave rise primarily to
collective rights:171
... an individual State which is considered to be an injured State only by virtue of ar-
ticle 5(e) [Article 40(3) of the draft articles on state responsibility]] enjoys this status
as a member of the international community as a whole and should exercise its new
rights and perform its new obligations within the framework of the organized com-
munity of States.172
Although I accept that, with regard to crimes of States, important considerations

of stability and prevention of abuse support the preference for collective respons-
es, ideally through the United Nations, a dierent principle could apply to erga
omnes obligations. Despite many unresolved questions,173 the Barcelona Traction
167 Barcelona Traction Light and Power Company Ltd (Belgium v. Spain), supra note 6, at
para. 33.
168 See Gaja, supra note 99, at 152.
169 Id.
170 See Third Report on State Responsibility, by Roberto Ago, Special Rapporteur, UN
Doc. A/CN.4/246, 41, reprinted in [1971] 2(1) Yb.Intl L. Commn 199, 210.
171 See Sixth Report on the Content, Forms and Degrees of International Responsibility, by
W. Riphagen, supra note 125, at 13, Commentary to Article 14.
172 Id., Commentary to Article 14, para. (10).
173 See e.g. Max Gounelle, Quelques remarques sur la notion de crime international et
sur lvolution de la responsabilit internationale de ltat, in Le droit international:
282 Chapter 4
case can be read as supporting unilateral responses to violations of erga omnes

duties. Signicant policy considerations support this approach. An alternative in-
terpretation of Barcelona Traction requiring that all States act jointly to vindicate
a legal interest vested in all States as a community (the French version of the judg-
ment refers to tous les tats) would, in reality, deprive the erga omnes principle
of much of its potential practical utility.174 There is thus considerable merit to an
approach recognizing the right of all injured States, but dierentiating between
the remedies available to them, based on whether they are especially aected or
not. Recognizing that all injured States have rights erga omnes does not mean that
all of them are entitled to the same remedies.
The idea that a State may intervene unilaterally when another State com-
mits serious violations of international law has been advocated by writers since
Grotius, who supported the right of kings to punish egregious violations of the
law of nations. Grotius viewed such punishment as proper not only in response to
injuries committed against the king himself or his subjects, but also on account
of injuries which do not directly aect them but excessively violate the law of na-
ture or of nations in regard to any persons whatsoever....175 Grotius was thus ready
to accept as lawful the intervention by one State on behalf of gravely persecuted
citizens of another.176
The notion that third States may intervene in response to egregious breaches
of human rights obligations is often based on the view that such violations con-
stitute threats to peace and international security. As early as 1915, Elihu Root
argued:
If the law of nations is to be binding, if the decisions of tribunals charged with the
application of that law to international controversies are to be respected, there must
be a change in theory, and violations of the law of such a character as to threaten the
peace and order of the community of nations must be deemed to be a violation of the
right of every civilized nation to have the law maintained.177
In the past, the doctrine of humanitarian intervention through diplomatic and

political channels was usually discussed outside the framework of State respon-
sibility, and the two elds were perceived to involve distinctly dierent principles
and concerns. The erga omnes principle, however, gave impetus to the idea of
Unit et diversit. Mlanges oerts Paul Reuter 315, 322 (1981).

174 See Gaja, supra note 99, at 152.
175 2 Hugo Grotius, De Jure Belli ac Pacis, Libri Tres bk. II, ch. XX, pt. XL(1) (Of Punish-
ments) (Carnegie ed., F. Kelsey trans. 1925). Kelsey translated the 1646 edition rather
than the rst, 1625 edition of Grotiuss work. For further discussion, see Meron, Com-
mon Rights of Mankind in Gentili, Grotius and Surez, 85 AJIL 110 (1991).
176 See id. Ch. XXV, at pt. VIII(2). Quoted in Third Report on the Content, Forms and
Degrees of State Responsibility, by Willem Riphagen, Special Rapporteur, UN Doc.
A/CN.4/354 and Add. 1 and 2, 99, reprinted in [1982] 2 Yb. Intl L. Commn 22.
177 Elihu Root, The Outlook for International Law, 10 AJIL 1, 8-9 (1916).
intervention by third States through legal channels and invoking legal remedies
to promote community goals.
Even before Barcelona Traction, Tunkin advocated a broad notion of in-
jured State as including States not directly injured by violations of norms con-
cerning breaches of international peace,178 freedom of the seas and the protection
of the natural resources of the seas. Several approaches to determining appropri-
ate circumstances for third States initiatives have been suggested. According to
Charney, third State remedies are appropriate, rst, when bilateral enforcement
is inadequate as with breaches of human rights obligations or the prohibition
of genocide where no other State is directly injured and, second, in situations
where the State(s) or States directly injured cannot seek a remedy, either for rea-
sons beyond their control (e.g. if the victim State is under the eective control
of an aggressor State), or because of a disparity in power (e.g. the injured States
alone are not able to eectuate a remedy).179 The seriousness of the violation
provides another pertinent yardstick. In reality, third States are unlikely to inter-
vene in response to minor or sporadic violations. Christian Dominic, drawing
on Draft Article 19, would thus reserve collective or third States reactions for
substantial breaches of erga omnes obligations.180
Georges Abi-Saab has classied the possible reactions by third parties to an
internationally wrongful act into three categories: diplomatic reactions, passive
legal reactions (e.g., non-recognition) and positive legal reactions. This last cat-
egory includes acts of retortion, acts of reprisal, and submission of a claim to
an international tribunal.181 In principle, any third party State would move into
a new bilateral relationship with a State violating rules of international public
order. However, a State invoking rights under multilateral treaties would be in a
somewhat more privileged situation than a State invoking only customary erga
omnes, since the former could, for example, resort to dispute settlement proce-
dures under the treaty.182
Diplomatic protests, public condemnation of illegal behavior and, less fre-
quently, measures of retortion, are among the remedies available for breaches of
international law. The parameters and limits of many remedies are still in an inde-
terminate State.183 Despite the narrowing of the contemporary scope of domestic
jurisdiction, the principle of non-intervention in the internal aairs of sovereign
States retains considerable vitality.184 Nevertheless, the broad acceptance of the
178 See Grigorig I. Tunkin, Droit international public: Problmes thoriques 223 (1965).
179 See Charney, supra note 135, at 95-96.
180 See Dominic, supra note 147, at 360-361 (emphasizing the quantitative connotation
of the term substantial breach).
181 See Abi-Saab, supra note 104, at 149.
182 See Sachariew, supra note 47, at 278.
183 See Lea Brilmayer, International Remedies, 14 Yale J. Intl L. 579, 588 (1989); See also
Charney, supra note 135, at 60.
184 See generally, Charney, id.
284 Chapter 4
droit de regard and, at the least, of diplomatic intervention in support of the erga
omnes principle is unmistakable. The Institute of International Laws 1989 reso-
lution concerning human rights and non-intervention holds that a State acting
in breach of its obligations in the sphere of human rights cannot evade its in-
ternational responsibility by claiming that such matters are essentially within its
domestic jurisdiction, and that [d]iplomatic representations as well as purely
verbal expressions of concern or disapproval regarding any violations of human
rights are lawful in all circumstances.185 As Georges Abi-Saab noted, the essential
objective of the resolution was to rearm that, rst, human rights are not a part
of the reserved domain of States and, second, that human rights are erga omnes
obligations. As a consequence, any State may resort to diplomatic remedies or
act through the framework of international organizations in response to human
rights violations.186
The ILCs nal draft articles 34 to 37 list the remedies available to the injured
States towards the State which has committed an internationally wrongful act:
reparation, restitution, compensation and satisfaction. With respect to violations
of obligations erga omnes, the choice of remedies that may be claimed by States
sustaining no direct injury from such violations is controversial. Some argue that
they can only be injunctive, such as cessation of the wrongful conduct and guar-
antees of its non-repetition, rather than compensatory, such as compensation
and restitution in kind. Arangio-Ruiz argued that the injured State is merely en-
titled to the remedies that are sucient to restore the droit subjectif of the claim-
ant State and of the others.187 He excludes compensation for a third State simply
because the third State has not suered any material damage. With regard to vio-
lations by a State of the human rights of its own nationals, a third State asserting
obligations erga omnes could thus only claim cessation and adequate guarantees
of non-repetition. This, however, would not be a consequence of any indirect-
ness of the injury, but because the breach has not given rise to material damage.
A declaratory judgment, preferably coupled with injunctive relief, ows nat-
urally from the objective character of human rights obligations and is thus partic-
ularly appropriate. In tandem, these remedies are particularly tting for violations
of erga omnes obligations, where the principal goal is to halt existing violations
and to ensure the future observance of vital community values.188
In commenting on the ILCs Draft Articles, the United States accepted the
general notion that there could be a general community interest in relation to
dened categories of treaty (e.g., human rights treaties), but denied that, in the
185 See The Protection of Human Rights and the Principle of Non-intervention in Internal
Aairs of States, Institute of International Law Declaration, arts. 1 and 3, in 63(2)
Yearbook of the Institute of International Law 338 (1989).
186 See 63(2) Yearbook of the Institute of International Law 243 (1989).
187 Fourth Report on State Responsibility, by Gaetano Arangio-Ruiz, supra note 132,
144.
case of erga omnes obligations, an (indirectly) injured State would have a right to
claim reparation, as distinct from a right to claim cessation.189
What is the range of responses available to injured States? Draft Article 46 al-
lows every injured State separately to invoke the responsibility of the State which
has committed the internationally wrongful act. This might give rise to an appar-
ent conict with Article 60(2)(c) of the Vienna Convention on the Law of Treaties:
the Vienna Convention allows parties to multilateral treaties to suspend the oper-
ation of a treaty vis--vis a defaulting State only by unanimous agreement. Acting
alone, the State especially aected may invoke the breach only to suspend, but not
to terminate, the operation of the treaty in whole or in part only in the relations
between itself and the defaulting State. The approach of the Vienna Convention
is thus quite dierent both from the principle of erga omnes, which would allow
every injured State to act on its own, and from ILCs draft article 46.190 Rosenne
recognizes the tendency of the Vienna Convention
not to allow any breach of a treaty to justify a unilateral and arbitrary termination
of the treaty by the State injured by the breach, although that solution is not ex-
cluded entirely, and even less to recognize the automatic termination of the treaty[.]
[T]ermination of the treaty as a consequence of its breach would in many cases be
the least desirable outcome; it might even go entirely against the wishes of the injured
State.191
This applies to all multilateral conventions, not only those of a humanitarian char-
acter. Ironically, suspension of the operation of a treaty may in fact be convenient
to the wrongdoing State. The conict with the Vienna Convention is, however,
attenuated by draft articles 47, 48, 49, and 54, which introduce a dierentiated
scheme of responses by injured States, depending on the nature of their injury.
Reverting to the question whether the rights of States not specially aected
may be exercised unilaterally and severally or only jointly by the members of the
international community, Special Rapporteur Crawford warned about the abuses
that may result from considering every State as an injured State and permitting
unilateral responses:
Neither the Commission nor the Working Group had found a solution to the massive
procedural diculty that would exist if individual States were authorized severally to
represent community interests without any form of control.192
189 See First Report on State Responsibility supra note 96, 24.
190 Crawford observed that [t]here is no suggestion that obligations erga omnes partes
give rise to any signicant rights of reaction to breaches, in the framework of the law
of treaties. Crawford (2000), supra note 5, at 31.
note 12, 324.
286 Chapter 4
In his third report, Crawford criticized former draft Article 40s treatment
of all injured States in the same way.193 (The Article allows each State injured by
an internationally wrongful act to seek cessation and reparation and to resort to
countermeasures absent cessation and reparation.) He argued that such remedies
are appropriate only in cases where subjective or individual rights of States are
implicated194 and suggested that Article 40(2) fails to follow the logic of article
60(2) of the Vienna Convention.195 He regards as an error the equation of all cat-
egories of injured States and the failure to distinguish between States specially
aected and those not so aected by the breach of a multilateral obligations.
And he recognizes that the implications of these questions extend beyond hu-
man rights. If human rights cannot be considered as aecting any particular State
considered alone, this is also true of such other subjects as world heritage and
environmental protection.196
Despite the enlightened nature of the recognition that all States have a legal
standing in breaches of international law of general interest, to claim that all of
them have the same choice of remedies is impractical and counterintuitive. Dif-
culties arise when the same obligation is owed to several, many or all States who
may invoke the responsibility of the violating State. Normative progress should
work in tandem with the practicalities of international law. Involvement of several
States severally claiming conicting remedies could be potentially destabilizing,
though the probability of such a situation occurring is small.
Crawford deserves praise for tackling the dicult problem of choice of rem-
edies; his work, accepted by the ILC, has contributed to narrowing the gap be-
tween the doctrine of erga omnes and the practice of international law: A specially
aected State or a State claiming on behalf of the victim is entitled to the entire
range of remedies cessation, restitution, compensation and satisfaction, and
countermeasures. In the case of obligations erga omnes, all States are entitled
to request cessation, but restitution, compensation and satisfaction may be de-
manded only on behalf of the victim/specially aected State or by agreement be-
tween States parties. This approach was endorsed by the ILC in the draft articles
adopted on second reading. The ILCs draft Article 48 now provides that third
States may claim
(a) cessation of the international wrongful act, [and assurances and guarantees of
non-repetition] in accordance with article 30;
(b) Performance of the obligation of reparation in accordance with the preceding
articles, in the interest of the injured State or of the beneciaries of the obliga-
tion breached.197
193 Supra, note 46.

194 Id. 40.
195 Id. 93.
196 Id. 88.
The second report of Giorgio Gaja (August 2004), presented to the Institute of
International Law at its Krakow session (August 2005), contains a clear and com-
prehensive statement of contemporary concepts of obligations and rights erga
omnes. It formed the basis of a resolution on Obligations and Rights Erga Omnes
in International Law adopted by the Institute on August 27, 2005. An obligation
erga omnes is dened as an obligation under general international law a state
owes to the international community, in view of their common values and con-
cern for compliance. A breach of the obligation enables all states to take action.
An obligation erga omnes can also be an obligation under a multilateral treaty
that a state party to the treaty owes to all the other parties, in view of their com-
mon values and concern for compliance. These are thus obligations omnes partes
contractantes. Article 2 provides that any state not specially aected may claim
from the responsible state cessation of the internationally wrongful act as well
as reparation in the interest of the state, entity or individual specially aected by
the breach. Article 3 provides that in the event of a jurisdictional link between
a violating state and a state to which the obligation is owed, the latter state has
standing to bring a claim to the International Court of Justice or other judicial
institution in relation to a dispute concerning compliance with the obligation.
Since insistence on a collective response would in practice render compliance
illusory, the resolution is useful in making it clear that obligation erga omnes is
one owed to every state individually, and that every such state provided there is
a jurisdictional basis can bring a claim in the ICJ. This is a matter on which the
doctrine was not entirely clear. Although consent to the jurisdiction of interna-
tional courts is required, even states not specically aected are thus able to bring
claims against the wrongful state.
E. Countermeasures
According to the ILCs commentary on former draft Article 30, countermeasures
are measures the object of which is, by denition, to inict punishment or to se-
cure performance measures which, under certain conditions, would infringe a
valid and subjective right of the subject against which the measures are applied.198
Such measures may be legitimate in certain circumstances. According to draft
Article 22, resort to legitimate countermeasures is a circumstance that precludes
wrongfulness:
The wrongfulness of an act of a State not in conformity with an international obliga-

tion towards another State is precluded if and to the extent that the act constitutes a
countermeasure taken against the latter State in accordance with Chapter II of Part
Three.199
supra note 21, Commentary of Article 30, para. (3), at 116.
288 Chapter 4
I. The Right to Take Countermeasures

Christian Dominic has argued that the adoption of countermeasures for an ob-
jective other than to bring a stop to conduct constituting a persistent breach
of a multilateral obligation would probably be unlawful.200 There is no reason,
however, why there could be no countermeasures by third States in response, for
example, to crimes against humanity under customary law, even in the absence of
a general treaty outlawing such crimes (unless one is to consider the Rome ICC
Statute to be such a convention).
Two main schools have debated the modalities of the right to resort to coun-
termeasures in case of violations of erga omnes obligations. The rst recogniz-
es for every State ut singuli the right to resort to countermeasures. The second
grants such a right only to the State specially injured, allowing other States to
react only in the framework of the organized international community. Writers
belonging to the second school emphasize the arbitrary and subjective nature of
countermeasures or reprisals and the dangers of abuse.201 Special Rapporteur Ago
thus wrote:
It is understandable that a community such as the international community, in seek-

ing a more structured organization, even if only an incipient institutionalization,
should have turned in another direction, namely towards a system vesting in interna-
tional institutions other than States the exclusive responsibility, rst for determining
the existence of a breach of an obligation of basic importance to the international
community as a whole, and thereafter, for deciding what measures should be taken in
response and how they should be implemented.202
Schachter has also expressed concern about the possibility of abuse: States, by and
large, are not inclined to open a Pandoras box which would allow every member
of the community of States to become a prosecutor on behalf of the community
in judicial proceedings.203 However, fears that the recognition in international law
of obligations erga omnes and of a right akin to action popularis might be abused
200 Dominic, supra note 147, at 363.

201 See Bernhard Graefrath, International Crimes A Specic Regime of International
Responsibility of States and its Legal Consequences, in International Crimes of State
161, 168 (Joseph H.H. Weiler, Antonio Cassese and Marina Spinedi eds, 1989). See
also Michael Akehurst, Reprisals by Third States, [1970] 44 Brit. Y.I.L., 1, 15; Charles
Leben, Les contre-mesures inter-tatiques et les ractions lillicite dans la socit
internationale, 28 Annuaire Franais de droit international 10, 20 (1982).
202 Eighth Report on State Responsibility, by Roberto Ago, supra note 41, at Commentary
on Draft Article 29, at 43, para. 91. See also Commentary of Draft Article 30, at para.
12.
by States to initiate politically motivated steps against other States have not been
borne out by the post-Barcelona Traction experience.204
As regards the question of countermeasures by third States for obligations
erga omnes, the draft articles do not provide a clear solution. Under draft Article
54, the chapter on countermeasures
does not prejudice the right of any State, entitled under article 48, paragraph 1 to
invoke the responsibility of another State, to take lawful measures against that State
to ensure cessation of the breach and reparation in the interests of the beneciaries
of the obligation breached.205
It is unfortunate that the Commission did not include in its nal articles a clearer
statement suggesting that a State other than an injured or especially aected State
may resort to countermeasures to ensure cessation of an internationally wrongful
act or the performance of the obligation of reparation. Such a statement would
have been more in line with the principle of obligations erga omnes. The ILC felt,
however, that the practice of States on countermeasures was too sparse, the cur-
rent State of the law too uncertain, and the possibility of abuse too great, to justify
a positive provision on the right of third States to resort to countermeasures. At
least Article 54, which is really only a saving clause, does not preclude a resort to
lawful countermeasures.
In his already mentioned report to the Institute of International Law, Giorgio
Gaja supports countermeasures by any state to which an obligation erga omnes
is owed. Article 5c of the Resolution adopted by the Institute on August 26, 2005
states that any such state is entitled to take non-forcible countermeasures under
conditions analogous to those applying to a state specially aected by the breach.
Third-party countermeasures are potentially a robust means of promoting com-
pliance with basic principles of international law and fundamental human rights.
The resolution of the Institute is thus to be welcomed.
After a review of State practice, Akehurst concluded that
The circumstances in which third States have claimed a power to take reprisals are
virtually limited to three main categories:
(i) [non] enforcement of judicial decisions;
(ii) [under] Article 60 (2) (a) of the Vienna Convention, 1969;
(iii) violation of rules prohibiting or regulating the use of force.206
Simma adds human rights to this list: there appears to emerge a general recogni-
tion that at least consistent patterns of gross and reliably attested violations of

205 Draft Articles (2001), supra note 1. See also Edith Brown-Weiss, Invoking State Re-
sponsibility in the Twenty-rst Century, 96 AJIL 798, 804-05 (2002); David J. Beder-
man, Counterintuiting Countermeasures, id. at 817.
206 Akehurst, supra note 201, at 15.
290 Chapter 4
human rights and fundamental freedoms ... lead to admissibility of countermeas-

ures by individual States even outside a treaty framework, if attempts to bring
about collective action fail in the UN and other international bodies.207 The Insti-
tute of International Law in 1989 resolved that States, acting individually or col-
lectively, are entitled to take diplomatic, economic and other measures towards
any other State which has violated the obligation to ensure observance of human
rights,208 adding that [m]easures designed to ensure the collective protection of
human rights are particularly justied when taken in response to especially grave
violations of these rights.209 The Institutes language is broad enough to encom-
pass countermeasures.
The ICJ suggested a more restrictive approach to third-State countermea-
sures. In the Paramilitary Activities case, the ICJ considered whether U.S ac-
tivities in Nicaragua could be justied as reprisals for Nicaraguas assistance to
armed opposition groups in El Salvador, Honduras and Costa Rica. The Court
held that:
The acts of which Nicaragua is accused, even assuming them to have been established
and imputable to that State, could only have justied proportionate counter-meas-
ures on the part of the State which had been victim of these acts, namely El Salvador,
Honduras or Costa Rica. They could not justify counter-measures taken by a third
State, the United States, and particularly could not justify intervention involving the
use of force.210
This statement may, however, have been inuenced by the fact that U.S. counter-
measures were, for the most part, forcible countermeasures.
In the Hostages case, the Court explained that
Where human rights are protected by international conventions, that protection

takes the form of such arrangements for monitoring or ensuring respect for human
rights as are provided for in the conventions themselves, use of force could not be an
appropriate method to monitor or ensure such respect.211
207 Simma, supra note 43, at 312 para. 1.

fairs of States, Institute of International Law Declaration, art. 2, in 63(2) Yearbook of
the Institute of International Law 338 (1989).
209 Id. ILCs Special Rapporteur Crawford noted the distinction made in various con-
texts between individual violations of collective obligations and gross and systematic
breaches. Third Report on State Responsibility, Add.4, by James Crawford, supra note
46, at 20.
States), Merits, Judgment of 27 June 1986, 1986 ICJ Rep. 14, 249.
211 United States Diplomatic and Consular Sta in Tehran, supra note 45, at 40, 267-
268.
The Court seems to suggest that the procedures and institutions set out in
multilateral conventions present the most appropriate channel for enforcement.
This view fails to reect the sad reality that mechanisms for enforcement of in-
ternational law are often either unavailable or ineective under regimes govern-
ing human rights.212 Simma has strongly criticized the self-contained regimes
approach: attempts at uncoupling humanitarian treaties from the general r-
gimes of international responsibility and conict resolution serve the purpose of
rendering impossible every eective supra- or inter-State enforcement of human
rights.213 Henkin is another prominent critic of this approach.214
Because procedures for the settlement of disputes and remedies recognized
by human rights treaties are often weak and based on optional acts of acceptance,
to endorse the exclusivity of treaty remedies would intensify the fragility and inef-
fectiveness of human rights. Whether a particular human rights treaty excludes
remedies outside of the treaty depends not on abstract legal theory but on a good
faith interpretation of the terms of the treaty in light of their context and the ob-
ject and purpose of the treaty. Nothing in the character of general human rights
agreements suggests any intention to eliminate the ordinary legal consequences
of international undertakings and the ordinary remedies for their violations.215
Section 703(1) of the Restatement of the Foreign Relations Law of the United
States (Third) supports the thesis of the cumulative character of treaty remedies
and remedies outside the treaty.216
Some State practice, especially in the early 1980s, suggests that any State may
resort to countermeasures where an erga omnes obligation has been breached.217
Examples include international responses to the Soviet invasion of Afghanistan,
212 See de Hoogh, supra note 8, at 254-255.

213 Bruno Simma, Consent: Strains in the Treaty System, in The Structure and Process
of International Law: EssayS in Legal Philosophy Doctrine and Theory 485, 501 (R.
St.J. MacDonald and Douglas M. Johnston eds., 1983). See also Bruno Simma, Self-
contained Regimes, 16 Neth. Yb. Intl L. 110 (1985).
214 Louis Henkin, Human Rights and Domestic Jurisdiction, in Human Rights, Inter-
national Law and the Helsinki Accord 30, 33 (Thomas Buergenthal ed. 1977). Contra
Jochen A. Frowein, The Interrelationship between the Helsinki Act, the International
Covenants on Human Rights, and the European Convention on Human Rights, id. at
71, 79.
215 Henkin, id. at 31.
216 Meron, Customary Law, supra note 66, at 231. Section 703(1) of the Restatement
(Third), supra note 152, provides, in part, that a state party to an international hu-
man rights agreement has, as against any other state party violating the agreement,
the remedies generally available for violation of an international agreement, as well as
any special remedies provided by the particular agreement.
217 Sicilianos, supra note 115, at 156, also gives the example of the adoption by the US
Congress of an import ban on all products manufactured in Uganda on the ground
that Ugandas regime of Idi Amin engaged in genocide. According to him, this mea-
sures should be regarded as a countermeasure as opposed to a measure of retortion
as it was in violation of GATT rules. The United States did not invoke any of the
292 Chapter 4
the declaration of martial law in Poland, the taking of the American embassy in
Tehran, and the Argentine invasion of the Falkland Islands.218
The Soviet intervention in Afghanistan in 1979 was rmly condemned by the
international community.219 Some Western States, and in particular the United
States, resorted to unilateral measures against the Soviet Union. Most of the mea-
sures taken involved retortion but some could be regarded as countermeasures.220
The reactions of other Western States were weak.221 Rousseau has suggested that
this timid response was driven by economic considerations rather than by con-
cern that countermeasures would violate international law.222
Certain European, Japanese, Canadian and Australian reactions to the hos-
tage taking at the US Embassy in Teheran have been regarded as countermea-
sures. Foreign ministers of the member States of the European Community de-
clared that they had:
dcid de demander leurs Parlements nationaux de prendre immdiatement, si

elles sont ncessaires, les mesures pour imposer des sanctions lencontre de lIran,
conformment la rsolution du Conseil de Scurit sur lIran, en date du 10 janvier
1980.223
This declaration was made through the political cooperation process between
member States, so that the sanctions were not compulsory. France and the United
Kingdom suspended some contracts concluded after the hostage-taking.224
Most of the measures taken by the United States against the USSR and Po-
land after the proclamation of martial law in Poland were measures of retortion.
However, the suspension by the United States of landing rights of Polish and So-
viet airlines amounted to countermeasures.225 Most Western States approved the
American measures against the USSR and Poland, but did not follow suit. The
Prime Minister of France warned of economic consequences for France were it to
saving clauses of the GATT. No other State has followed the United States, but none
protested against the measure.
218 The ILC Rapporteur also referred to US sanctions against Uganda in 1978 and US
sanctions against South Africa in 1986 after a state of emergency was declared. More
recent example include initial measures taken against Iraq in 1990 and against Yugo-
slavia in 1998 (before they were legitimized by Security Council resolutions). Third
Report on State Responsibility, Add. 4, by James Crawford, supra note 46, at 14-15.
219 See Charles Rousseau, Chronique des faits internationaux, 84 Revue gnrale de droit
international public 826, 840-846 (1980).
220 Sicilianos, supra note 115, at 158.
221 Rousseau, supra note 219, at 837.
223 Quoted in Rousseau, supra note 219, at 882.
224 Id. at 885-888.
225 Sicilianos, supra note 115, at 161-162.
resort to such countermeasures and expressed doubts concerning their ecacy.226

In another instance, several Western States suspended the landing rights of the
Soviet airline following the destruction of the Boeing-747 of the Korean Airlines
over Soviet airspace by the Soviet military.227
Western States resorted to economic counter-measures against Argentina
during the conict in the Falklands. The European Union, Canada, Australia and
the United States imposed an embargo which was challenged by Argentina.228
Several OAS members criticized the measures as breaching GATT obligations.229
According to several resolutions adopted by the OAS Economic and Social Coun-
cil, these measures were contrary to the OAS Charter.230 Neither advocates nor
opponents of these measures addressed their status as lawful countermeasures to
violations of erga omnes obligations. Attempts to apply economic countermea-
sures in response to violations of labor or children rights, unilaterally or through
the WTO, have encountered strong opposition, which emphasized the proposi-
tion that trade issues should not be used as leverage to force changes in the non-
trade eld.
Some authors conclude from this practice that States have the right to re-
act unilaterally to violations of erga omnes obligations.231 Others downplay the
precedential signicance of such practice by emphasizing the political context,
the preponderant role of the United States, and the hesitations of some Western
States. Pierre-Marie Dupuy has thus concluded that because of this strategic and
political context, this body of practice did not generate a broader rule.232 Although
most of the measures taken were measures of retortion, States not willing to join
these measures explained their nonparticipation by citing the binding nature of
their international obligations. While it is true that the practice involved only
the participation of a small group of Western States, other States did not protest
against countermeasures, except in the case of the Falklands.
II. Limitations on Countermeasures

The requirements for legitimate countermeasures were established already at the
beginning of the 20th century. The Naulilaa arbitration tribunal enunciated three
main conditions: a prior violation of international law, a demand for redress, and
226 P. Mauroy, French Prime Minister; quoted in Charles Rousseau, Chronique des faits
internationaux, 86 Revue gnrale de droit international public 601, 607 (1982).
228 Charles Rousseau, supra note 219, at 232, 748.
229 Sicilianos, supra note 115, at 163, note 341.
230 See Acedevo, The U.S. Measures Against Argentina Resulting from the Malvinas Con-
ict, 78 AJIL 323, 338 (1984).
232 Pierre-Marie Dupuy, Observations sur la pratique rcente des sanctions de lillicite,
87 Revue gnrale de droit international public 505, 542 (1983).
294 Chapter 4
proportionality.233 These conditions were recently rearmed by the ICJ in the

Gabckovo-Nagymaros case.234
Resort to countermeasures may be motivated by three distinct rationales:
reparation, coercion and punishment. The principal objective of countermea-
sures, and for many authors the only legitimate one, is to compel a wrongdoing
State to abide by its obligations and cease the violations or to repair the conse-
quences of wrongful acts. Special Rapporteur Arangio-Ruiz observed:
The study of international practice seems to indicate that in resorting to counter-

measures injured States arm that they are seeking and, indeed appear to seek, ces-
sation of the wrongful conduct and/or reparation in a broad sense and/or guarantees
of non-repetition.235
Compensatory objectives are based on the principle of reciprocity and aim at

restoring the equality between the parties or the status quo ante.236 Measures of
strict reciprocity, i.e. the non-performance of the reciprocal duty to the non-per-
formed obligation, inadimplenti non est adimplendum,237 are usually not consid-
ered countermeasures. They are not necessarily unlawful per se.238
Resort to strict reciprocity, i.e., to the exceptio inadimplenti non est adim-
plendum countermeasures is excluded in the case of erga omnes obligations as it
would constitute a breach towards other parties bound by the rule.239 This applies
of course to human rights and humanitarian law. In discussing the law of trea-
ties, Special Rapporteur Fitzmaurice excludes from reciprocal non-performance
the class of [multilateral treaties of an integral type ... where the force of the
obligation is self-existent, absolute and inherent for each party, irrespective and
233 Aaire de la responsabilit lAllemagne raison des dommages causs dans les colo-
nies portugaises du Sud de lAfrique (Naulilaa incident), (Portugal v. Germany), Ar-
bitral decision of 31 July 1928, 2 RIAA 1011; See also Aaire de la responsabilit de
lAllemagne raison des actes commis postrieurement au 31 juillet 1914 et avant
que le Portugal ne participt la guerre (Cysne case), (Portugal/Germany), Arbitral
decision of 30 June 1930, 2 RIAA 1035; Case concerning the Air Service Agreement
of 27 March 1946 between the United States of America and France (United States/
France), Arbitral decision of 9 December 1978, 18 RIAA 443.
234 Case concerning the Gabckovo-Nagymaros project (Hungary/Slovakia), International
Court of Justice, Judgment of 25 September 1997, 1997 ICJ Rep. 82-88.
235 Fourth Report on State Responsibility, by Gaetano Arangio-Ruiz, supra note 132, 3.
237 See the excellent discussion by James Crawford in his Second Report on State Re-
sponsibility, supra note 39, at 41-49.
238 See generally Elisabeth Zoller, Peacetime Unilateral Remedies: An Analysis of Coun-
termeasures 50 (1984).
239 Second Report on State Responsibility, Addendum, by James Crawford, supra note 39,
327.
independently of performance by the others]240 that is, in eect, erga omnes ob-
ligations. In the Genocide Convention (Bosnia v. Yugoslavia) case, the Court said,
with regard to erga omnes obligations:
Bosnia and Herzegovina was right to point to the erga omnes character of the obliga-
tions owing from the Genocide Convention and the Parties rightly recognised that
in no case could one breach of the Convention serve as an excuse for another 241
The same concern underlies Article 60 (5) of the Convention on the Law of Trea-
ties, which provides that the right of a party to terminate or suspend the opera-
tions of a treaty as a consequence of its breach does not apply to provisions relat-
ing to the protection of the human person contained in treaties of a humanitarian
character.242
The objectives of countermeasures may not go beyond coercion intended
to compel the performance of an obligation.243 Measures aimed at imposing a
punishment on a State would be unlawful and could not be legitimated by a prior
wrongful act of that State.244 Penal measures are associated with the idea of im-
perium, and, according to Zoller, imply an inequality between the parties,245 and
are contrary to the principle of the sovereign equality.246 Nevertheless, in reality
unilateral measures against a State, especially by a strong State against a weak
one, may have some punitive eects.247 Special Rapporteur Arangio-Ruiz noted
that when countermeasures are taken to obtain satisfaction or guarantees of non-
repetition, the intention to punish is hardly distinguishable from the intention to
coerce.248 He concluded, however, that:
240 Fourth Report on the Law of Treaties, by Sir Gerald Fitzmaurice, Special Rapporteur,
[1959] 2 Yb. Intl L. Commn 45-46, quoted in Second Report on State Responsibility,
Addendum, by James Crawford, supra note 39, 320.
the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Counterclaims, Interna-
tional Court of Justice, Order of 17 December 1997, 1997 ICJ Rep. 243, at 258, 35.
242 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, UN
Doc. A/CONF.39/27 and Corr.1 (1969), 1155 UNTS 331, reprinted in 63 AJIL 875
(1969), 8 ILM 679 (1969).
243 See for example Omer Yousif Elagab, The Legality of Non-forcible Counter-measures
in International Law 50 (1988) See also Zoller, supra note 238, at 55 .
3-4.
245 Zoller, supra note 238, at 59.
246 Id.
247 Gounelle, supra note 173, at 317-318.
4. In the surveyed State practice, the Rapporteur has identied several cases where
a punitive element was present including, inter alia, Cuban expropriation of United
States property (1960) , expropriation of British assets by Libya, seizure of Dutch
296 Chapter 4
Be that as it may, even if it were found that a punitive intent underlies the decision of
injured States to resort to countermeasures, it would be very dicult to conceive of
the presence of such an intent as more that a factual characterization of the function
of countermeasures.249
Countermeasures to erga omnes violations are supposed to be on behalf of the

collective interest of the international community. Some writers, therefore, have
questioned whether a State could unilaterally determine what the fundamen-
tal interests of the international community justifying such countermeasures
are and have argued for collective approval of unilateral measures.250 States have
sought to legitimize unilateral measures on the basis of the positions taken by the
Security Council, the General Assembly or regional international organizations,
for example. Of course, the need to respect the principle of proportionality be-
tween the initial wrongful act and the response provides an additional limitation
on unilateral countermeasures.251
There has been a general tendency to limit for humanitarian reasons the right
of reprisals. Reprisals against prisoners of war, against civilians in occupied ter-
ritory, against civilian populations and objects have been prohibited over time.252
De Hoogh writes that [t]he whole movement for the protection of human rights
started more or less with the reprisal prohibitions in the eld of the protection
of the victims of war and prisoners of war.253 Special Rapporteur Arangio-Ruiz
similarly noted that the belief in the existence of inviolable ethical limits to the
exercise of reprisals led to early recognition that the limits placed on reprisals in
wartime should apply a fortiori in time of peace.254
In the Naulilaa case, the arbitral tribunal held that to be lawful a reprisal
had to be limite par les expriences de lhumanit et les rgles de la bonne foi
property by Indonesia (1958), French measures against Central Africa (1979), mea-
sures by the United States against China (1989), and by Belgium against Zaire (1990).
See id. at 4, note 7.
249 Id.
250 See Dupuy, supra note 232, at 515.
251 First Report on State Responsibility, Add.3, by James Crawford, supra note 96, 84,
note 113.
252 See Geneva Convention I, supra note 55, Art. 46. See also Geneva Convention II,
supra note 55, Art. 47; See also Geneva Convention III, supra note 55, Art. 13; See also
Geneva Convention IV, supra note 55, Art. 33; Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of Victims of Interna-
tional Armed Conicts, opened for signature Dec. 12, 1977, Arts. 51-56, 1125 UNTS
3.
253 de Hoogh, supra note 8, at 260.
254 Third Report on State Responsibility, submitted by Gaetano Arangio-Ruiz, Special
Rapporteur, UN Doc. A/CN.4/440 and Add.1, 103, reprinted in [1991]2 YB.INTL
L.COMMN 1.
applicables dans les rapports dEtat Etat.255 As early as 1934, a resolution of the
International Law Institute declared that a State must sabstenir de toute mesure
de rigueur qui serait contraire aux lois de lhumanit et aux exigences de la con-
science publique.256
The development of human rights concerns has led to the extension of such
limitations to the protection of human rights in general. Thus, the situation of
the target States population has become a part of the calculus. The ILCs Draft
Articles integrate similar humanitarian considerations in the regime of counter-
measures that they envision. Countermeasures shall not aect:
(b) Obligations for the protection of fundamental human rights;

(c) Obligations of a humanitarian character prohibiting reprisals;
(d) Other obligations under peremptory norms of general international law;257
ILCs Article 50(1) (c) thus appears to conform to Article 60(5) of the Vienna Con-
vention on the Law of Treaties.
Damrosch has suggested that
[e]ven in the case of serious violations as to which serious sanctions are presump-
tively justiable, it may be necessary or desirable to constrain the application of coun-
termeasures in the interests of avoiding undue harm to the population of the target
State.258
With regard to the (former) draft articles on remedies and countermeasures, she
added that [t]o the extent that these formulations reect a recognition of the
human dimension of enforcement measures, they may well mark a commendable
advance over traditional State-centered conceptions.259
Special Rapporteur Arangio-Ruiz noted that
[t]he diculty of establishing the threshold beyond which countermeasures are or

should be condemned as infringing humanitarian obligations in a broad sense lies in
the precise denition of the human rights and interests the violation of which would
not be permitted even in reaction to a States unlawful act. It is certain that not all
human rights or individual interests could reasonably qualify.260
255 Aaire de la responsabilit lAllemagne raison des dommages causs dans les colo-
nies portugaises du Sud de lAfrique, supra note 233, at 1026.
256 38 Annuaire de lInstitut de droit international 708 (1934).
257 Article 50, Draft Articles (2001), supra note 1.
259 Id. at 61.
260 Third Report on State Responsibility, by Gaetano Arangio-Ruiz, supra note 254,
110.
298 Chapter 4
Some writers have taken a broad view of the limitations on countermeasures

based on humanitarian concerns according to which an injured State could
not suspend, by way of countermeasure, forms of assistance aimed at improving
the condition of the population of the wrongdoing State.261 Special Rapporteur
Arangio-Ruiz dissented, observing that [s]uch a broad notion of a limitation
based on humanitarian grounds is not ... shared by a signicant number of writers
nor is it suciently supported by practice.262 For him, the objective was to strike
an overall balance between the introduction of essential limitations to counter-
measures, on the one hand, and the need not to deprive States of the possibility to
react to breaches of international obligations, on the other.263 Hence Draft Article
50 refers to fundamental human rights, not all human rights. In his Third Report,
the Special Rapporteur noted that
[w]hatever the seriousness of the violation involved, the injured States measures
could not be such as to tread upon fundamental principles of humanity to the detri-
ment of the oending States nationals in the injured States territory: by violating
for example, their right to life, their right not to be subjected to physical or moral
violence, notably to torture, slavery or any other indignity.264
An important, albeit inadequate, protective rule is contained in Article 23 of Ge-

neva Convention (IV) Relative to the Protection of Civilian Persons in Time of
War, which provides that even in time of war, any party must allow free passage
of essential foodstus and clothing intended for pregnant women and children
under fteen.265
Resort to countermeasures has caused considerable tensions. The UN Com-
mission on Human Rights has expressed concerns about the humanitarian eects
of unilateral coercive measures. Calling on States to refrain from adopting or
implementing unilateral measures not in accordance with international law, the
Commission rejected
the application of such measures as tools for political or economic pressures against
any country, particularly against developing countries, because of their negative ef-
fects on the realization of all human rights of vast sectors of their populations [...]266
82.
262 Id.
263 Id.
264 Third Report on State Responsibility, by Gaetano Arangio-Ruiz, supra note 254,
104.
265 Geneva Convention IV, supra note 55.
266 Resolution 1998/11, Commission on Human Rights, Report of the Fifty-fourth Ses-
sion, ECOSOC Ocial Records, Supp. No. 3, at 62 (1998).
The Commission rearmed that essential goods such as food and medi-
cines should not be used as tools for political coercion, and that in no case may
a people be deprived of its own means of subsistence.267 Referring to unilateral
measures not in accordance with international law, some States have expressed
their rejection of unilateral measures, which they considered to be violations of
the principles of international law governing relations between States and result-
ing in serious violations of fundamental human rights.268
The resolution of the Institute of International Law on the protection of
human rights and the principle of non-intervention in internal aairs of States
provides that States having recourse to measures shall take into account the in-
terests of individuals and of third States, as well as the eect of such measures
on the standard of living of the population concerned.269 During the discussions
that led to the adoption of the resolution, De Visscher expressed the wish that the
Institute declare
que les violations massives et grossires des droits fondamentaux de lhomme justie
de la part de tout Etat le recours aux procdures ordinaires de rglement des dif-
frends internationaux et, au cas o lautre Etat refuse de sy prter, le recours aux
mesures de rtorsion et de reprsailles non armes ne comportant, par elle-mmes,
aucune violation des droits fondamentaux, individuels ou collectifs, des personnes
humaines places sous la juridiction de lEtat mis en cause.270
Some State practice conrms that humanitarian concerns limit resorts to coun-
termeasures. The total blockade of the United States on exportations to Libya
excluded, for instance, publications and donations of articles intended to relieve
human suering, such as food, clothing, medicine, and medical supplies intended
strictly for medical purposes.271 The current practice of the Security Council with
regard to sanctions is far more generous than Article 23 of the Fourth Geneva
Convention. It includes food and medical supplies for the entire civilian popula-
267 Id.
268 Human Rights and Unilateral Coercive Measures. Report of the Secretary General,
UN Doc E/CN.4/1999/44, at 2 (1998). Also Implications and Negative Eects of Uni-
lateral Coercive Measure. Report of the Secretary General, UN Doc. E/CN.4/1999/44/
Add.1, 1 and 3 (1999).
fairs of States, Institute of International Law Declaration, Art. 4, in 63(2) Yearbook of
the Institute of International Law 338 (1989).
270 63(I) Yearbook of the Institute of International Law 362 (1989).
271 Quoted in Fourth Report on State Responsibility, by Gaetano Arangio-Ruiz, supra
note 132, 79. The freezing of Argentine assets in the UK during the Falklands War
and the suspension of any Italian activities in Somalia following the murder of an Ital-
ian researcher also included humanitarian saving clauses. See id.
300 Chapter 4
tion, not only for vulnerable groups.272 I revert to this question in the chapter on
international institutions.
III. Countermeasures and Settlement of Disputes

Because countermeasures by an injured State are subject to abuse, especially by
strong States against weak ones, the ILC attempted to articulate some safeguards.
Article 52 reads as follows:
1. Before taking countermeasures, an injured State shall:

(a) Call on the responsible State, in accordance with article 43, to full its
obligations under Part Two;
(b) Notify the responsible State of any decision to take countermeasures and
oer to negotiate with that State.
2. Notwithstanding paragraph 1 (b), the injured State may take such urgent coun-
termeasures as are necessary to preserve its rights.
3. Countermeasures may not be taken, and if already taken, must be suspended
without undue delay if:
(a) The international wrongful act has ceased, and
(b) The dispute is pending before a court or tribunal which has authority to
make decisions binding on the parties.
4. Paragraph 3 does not apply if the responsible State fails to implement the dis-
pute settlement procedures in good faith.273
There was disagreement in the ILC as to whether negotiations had to be pursued

prior to the taking of countermeasures. Such negotiations or other forms of dis-
pute settlement could be lengthy, and could deliberately be drawn out by a State
seeking to avoid the consequences of its wrongful act. Moreover, some forms of
countermeasures, including some of the most readily reversible forms (for exam-
ple, the freezing of assets), are eective only if taken promptly. For these reasons,
rather than requiring the exhaustion of all available procedures in accordance
with Article 33 of the UN Charter as a precondition, draft Article 52 focuses on
making available to the State which is the target of countermeasures an appro-
priate and eective procedure for resolving the dispute. Moreover, it allows the
allegedly wrongdoing State to require a suspension of the countermeasures if it
cooperates in good faith in a binding third party dispute settlement mechanism.
Such cooperation would not prejudice that States right to continue to contest
that its initial act was unlawful. The article does require that the injured State, be-
fore taking countermeasures, seek to resolve the problem through negotiations.
272 Security Council Resolution 687 (1991) of 3 April 1991, 20, excludes medicine, health
supplies, foodstus, and materials and supplies for essential civilian needs from the
scope of sanctions against Iraq.
This requirement is, however, without prejudice to the taking of urgent interim
measures required to preserve the rights of the injured State.274
F. Diplomatic Protection
There has been considerable convergence between the guiding principles of dip-
lomatic protection of nationals and of human rights law. The rst report of the
rst Special Rapporteur on State Responsibility attempted to bridge the gap be-
tween the competing national treatment standard for treatment of aliens, which
demands that domestic authorities treat aliens no less favorably than their own
citizens (national treatment standard), and the international minimum stand-
ard, which requires that States treat aliens in a manner satisfying standards uni-
formly applicable to all States. To do so, the Special Rapporteur recommended
the synthesis of human rights and alien protection.275 He observed that the two
topics
hitherto considered as antagonistic and irreconcilable, can well be reformulated and

integrated into a new legal rule incorporating the essential elements and serving the
main purposes of both The object of the internationalization (to coin a term) of
these rights and freedoms is to ensure the protection of the legitimate interests of
the human person, irrespective of his nationality. Whether the person concerned is
a citizen or an alien is then immaterial: human beings, as such, are under the direct
protection of international law.276
At the time, the ILC declined to pursue this approach to State responsibility.
However, in 1996 the ILC returned to diplomatic protection as a topic appropri-
ate for codication and progressive development, appointing a special rappor-
teur to consider it further. Discussions in the ILC reveal that States exercising
diplomatic protection may prefer to ground their actions in basic human rights
rather than in the international minimum standard.277 Because it was mostly the
powerful Western States that have exercised diplomatic protection invoking the
so-called international standard of civilization, diplomatic protection has come
to be seen by the target States as a tool of intervention: it has become anathema
274 For a critique of the former Draft Article 48 (now redrafted as Article52) as redrafted
by the ILCs drafting Committee, see Gaetano Arangio-Ruiz, Counter-measures and
Amicable Dispute Settlement: Means in the Implementation of State Responsibility, A
Crucial Issue before the International Law Commission, 5 Eur. J.I.L. 20-53 (1994).
275 See Richard B. Lillich, The Current Status of the Law of State Responsibility for Injuries
to Aliens, in International Law of State Responsibility for Injuries to Aliens 1, 18-19
(Richard B. Lillich ed., 1983).
276 First Report on State Responsibility, by F. Garca-Amador, UN Doc. A/CN.4/96 (1956),
reprinted in [1956] 2 Yb. Intl L. Commn 173, 203. Quoted in Lillich, id. at 17-18.
277 See Report of the International Law Commission on the Work of its Fiftieth Session,
supra note 12, at 77, 84.
302 Chapter 4
to the developing States. Recently, however, Paraguay and Mexico (not only Ger-
many) have used the Optional Protocol to the 1963 Convention on Consular Rela-
tions, to bring to the ICJ their complaints against the United States arising from
the breach of duty to provide consular notication and access to their nationals
detained in the United States (Capital punishment cases).
Diplomatic protection of citizens abroad continues to serve a useful purpose
for the advancement of human rights. Were diplomatic protection not available
for aliens suering injuries constituting human rights violations (unfair imprison-
ment or inhumane treatment, for example), there might be no remedy for those
aliens with no access to a human rights body.278
The rst report on Diplomatic Protection by the ILCs present special rap-
porteur, John Dugard,279 makes an important contribution to the clarication of
the relationship between human rights and diplomatic protection. Dugard shows
that diplomatic protection can be employed as a means to advance the protec-
tion of human rights,280 but that there is no individual right to diplomatic protec-
tion.281 It is still regarded as a right of the State to be exercised at its discretion,
unless otherwise provided by its national law. However, the classical view that
through diplomatic protection, the State is asserting its own right is more and
more contested. Diplomatic protection is seen rather as a procedural right, while
the material right is vested in the individual.282 In the La Grand case, the ICJ thus
recognized that the right to consular notication was an individual right that
may be invoked in this Court by the national State of the detained person.283
Although aliens have rights as human beings, in the absence of human rights
treaties which normally protect citizens and aliens alike or investment, trade,
or commerce and navigation treaties, which grant them remedies, they would
have no remedies under international law except through the intervention of
their national State.284 Human rights have thus not superseded diplomatic pro-
tection.285 Moreover, for those who believe that a third State should not intervene
in violations of human rights except where such violations are systematic and
278 Id. at 77-79.

279 First report on Diplomatic Protection by Special Rapporteur John Dugard, UN Doc.
A/CN.4/506 (2000).
280 Id. at 8.
281 The Rapporteur notes, however, that there are signs in recent State practice, consti-
tutions and legal opinion of support for the view that States have not only a right but
a legal obligation to protect their nationals abroad. Id. 87.
282 Id. at 8.
283 La Grand Case (Germany v. United States), I.C.J. Reports 2001, at 466, Judgment of
27 June 2001, 77.
284 First report on Diplomatic Protection by Special Rapporteur John Dugard, supra note
279, 22.
285 For instance, the International Convention on the Protection of the Rights of All Mi-
grants Workers and Members of their Families (1991, not in force) which sets up a
monitoring body and establishes an optional right of individual petition species that
widespread, the possibility of intervention by the national State is not limited by

such constraints.286 The national State may also extend diplomatic protection for
rights as yet unrecognized by human rights treaties. Article 17 of the text of the
draft articles as approved by the Commission on rst reading on May 28, 2004,
provides that the articles are without prejudice to the rights of States, natural
persons or other entities to resort to actions or procedures under international
law other than diplomatic protection to secure redress for injury suered as a
result of an internationally wrongful act.287 This article is intended to make it clear
that diplomatic protection, investment treaties and human rights treaties are all
mechanisms designed to protect persons and are not in competition with each
other.288 Another important provision is Article 8, which allows a state to exercise
diplomatic protection in respect of a stateless person who at the time of the injury
and at the date of the presentation of the claim is lawfully and habitually resident
in that state.289
An application presented by Denmark against Turkey for alleged violations
of the European Convention of Human Rights on behalf of a Danish national is
of special interest. Denmarks application combined both elements of diplomatic
protection challenging infringements by a foreign State of the rights of a national
of the complaining State and elements of enforcement of an obligation erga omnes
contractantes challenging domestic violations by a foreign state of its own na-
tionals human rights. Denmark requested the Commission of Human Rights to
examine the treatment by Turkish authorities of a Danish citizen when he was
detained in Turkey,290
Turkey raised the objection of non-exhaustion of local remedies, but the
Court rejected it at the admissibility stage on the ground that local remedies need
not be exhausted when challenging administrative practices. The issue was thus
joined to the merits and the application held admissible.291
What is particularly interesting here is that a case which traditionally would
have been handled as a bilateral matter under the law of diplomatic protection
was instead submitted as a human rights claim to an international court. The
Court approved the Friendly Settlement of April 5 2000, which addresses aspects
of both diplomatic protection and human rights. The Government of Turkey
agreed to pay the Danish government ex gratia an amount of money, which in-
cludes legal expenses. Turkey acknowledged and expressed regret over the oc-
these mechanisms are not intended to replace the right of diplomatic protection. Id.
at 27.
286 Id. at 60.
287 UN Doc. A/CN.4/L647 (2004).
288 John Dugard, Fifth Report on Diplomatic Protection paras. 37-43, UN Doc. A/
CN4/538 (2004).
289 UN Doc. A/CN.4/L. 647.
290 Denmark v. Turkey, European Court of Human Rights (First Section), Appl. 34382/97,
Decision as to Admissibility of 8 June 1999, at 3 (mimeographed text).
291 Id. at 34-35.
304 Chapter 4
currence of occasional and individual cases of torture and ill-treatment in Turkey

and committed to take steps to combat such practices. Both governments agreed
that the use of inappropriate police interrogation techniques constitutes a viola-
tion of Article 3 of the Convention and should be prevented in the future.
Where inter-State procedures under human rights treaties are available and
ecient, as under the European Convention on Human Rights, States may prefer
this avenue to bilateral protests and processes. Thus, for example, Germany was
one of the parties (the United Kingdom and the European Commission on Hu-
man Rights were the other parties) that brought the Soering case to the European
Court of Human Rights.292 Similarly, in the Selmouni case, both the Netherlands
and the Commission brought the case before the Court.293
This blending of human rights and diplomatic protection is apparent in the
work of the UN Commission on Human Rights. The applicability of human rights
instruments to aliens arose in 1972 in connection with the expulsion of persons
of Asian origin from Uganda.294 A study on the applicability of human rights in-
struments to persons residing in a foreign country was entrusted to a rapporteur
(Baroness Elles) of the Sub-Commission on Prevention of Discrimination and
Protection of Minorities, who proposed the adoption of a declaration on the sub-
ject.295 The Declaration on the Human Rights of Individuals Who are not Nation-
als of the Country in which They Live was nally adopted by the General Assembly
in 1985.296 The Declaration applies to any individual who is not a national of the
State in which he or she is present. Comparing the Declaration (at the time only
a draft) and the human rights provisions found in universal conventions, Richard
Lillich argued that the origins of the Declaration constitute
demonstrative evidence that the international law governing the treatment of aliens
is alive and well at the United Nations. [The approach] does not so much bridge
the gap between the international minimum standard and the national treatment
doctrine, as it subsumes the newly emerging international human rights norms un-
der a recast and revitalized international minimum standard which, it is hoped, will
eventually be accepted by all States regardless of their past predilections or present
ideologies.297
292 See Soering v. United Kingdom, ECHR Reports, srie A, vol. 161.
293 See Selmouni v. France, European Court of Human Rights, Judgment of 28 July 1999,
1999-V Eur. C.H.R., available at <http://www.echr.coe.int/eng/Judgments.htm>.
294 See Lillich, supra note 275, at 21-22.
295 See International Provisions for the Protecting the Human Rights of Non-Citizens,
UN Doc. E/CN.4/Sub.2/392/Rev.1 at 53 (1980).
296 Declaration on the Human Rights of Individuals Who are not Nationals of the Coun-
try in which They Live, General Assembly Resolution 40/144 of 13 December 1985,
UN Doc., 40 6AOR (Supp. No. 53) at 252 (1986).
297 Lillich, supra note 275, at 23.
Another illustration of the gradual overlap between human rights standards and
standards applicable to aliens may be found in the Restatement (Third) of the
Foreign Relations Law of the United States. The reporters stated that the overrid-
ing organizing principle of Part VII [which concerns Protection of Persons] is
the conjunction of the international law of human rights and the customary law
concerning responsibility of States for injury to aliens.298
On balance, the convergence of human rights and diplomatic protection
standards appears to have raised thresholds of acceptable treatment for both
aliens and nationals. As Chen has observed,
In short, the principal thrust of the contemporary human rights movement is to ac-
cord nationals the same protection formerly accorded only to aliens while at the same
time raising the standard of protection for all human beings, nationals as well as
aliens, far beyond the minimum international standard developed under earlier cus-
tomary law.299
At the same time, the increasing access of individuals to investment settlement

mechanisms has tended to reduce the importance of diplomatic protection. A
case in point is the International Center for the Settlement of Investment Disputes
between States and Nationals of Other States (ICSID) established in 1965 under
the auspices of the World Bank.300 Under the ICSID Convention, the Center pro-
vides facilities for the conciliation and arbitration of disputes between member
countries and investors of other member countries. Private investors may thus
litigate cases against sovereign States on equal footing. Ratication of the Con-
vention does not, however, give jurisdiction to the Center ipso facto: consent to
ICSIDs jurisdiction must be stipulated in an investment treaty, a national law
or in an investment contract. Many national investment laws, arbitration clauses
in hundreds of bilateral investment treaties (BITs), and the dispute settlement
provisions of numerous multilateral conventions301 require parties to submit dis-
putes to ICSID for resolution. Once parties consent to an ICSID arbitration, their
consent cannot be unilaterally withdrawn. All States parties to the Convention,
298 Lung-Chu Chen, Reviews of the Restatement (Third) of the Foreign Relations Law of
the United States: Protection of Persons (Natural and Juridical), 14 Yale J. Intl L. 542,
544 (1989).
299 Id. at 550.
300 See Convention on the Settlement of Investment Disputes between States and Na-
tionals of Other States, entered into force on 14 October 1966, 60 AJIL 892 (1966).
As of 27 October 1998, 131 States were parties to the Convention. See About ICSID,
available online at <http://www.worldbank.org/icsid/>.
301 ICSID arbitration is thus specied among the dispute resolution provisions of the
North American Free Trade Agreement, the Energy Charter Treaty, the Cartagena
Free Trade Agreement and the Colonia Investment Protocol of Mercosur. See About
ICSID, available online at <http://www.worldbank.org/icsid/>.
306 Chapter 4
whether or not parties to the dispute, are required to recognize and enforce the
arbitral awards issued by the Center.302
The emergence of ICSID as a credible channel for foreign investors to settle
disputes with States has reduced the importance of diplomatic protection for
such commercial interests. Moreover, the ongoing erosion of sovereign immunity
in our time allows alien individuals and corporations direct redress against States
in their national courts, further diminishing the traditional dependence on the
diplomatic protection of their governments.
302 Id.
Chapter 5: Subjects of International Law
In classical international law, States only were subjects of international law, indi-
viduals were considered mere objects. Is this paradigm still true?
A. The State
I. Recognition of States
Under the traditional theory of international law, recognition of States was based
on a set of conditions that had to be met by the entity aspiring to recognition: it
had to have a dened territory, a permanent population, an eective government
and capacity to enter into relations with other States.1 Eective control was not
seen as requiring democratic consent.2
Since the early 19th century, however, there have been occasions when rec-
ognition has been inuenced by the relationship between the government and
the governed and by human rights considerations. Historic examples include
the non-recognition of the American Confederacy (because of slavery) by the
United Kingdom, the recognition of Central and South American States and of
Ethiopia (based on commitments to end the slave trade),3 and the recognition of
States spawned by the Austro-Hungarian empire after the First World War (upon
1 Sean D. Murphy, Democratic Legitimacy and the Recognition of States and Govern-
ments, 48 Intl & Comp. L.Q. 545, 546 (1999). These criteria are derived from the 1933
Montevideo Convention on the Rights and Duties of States, 165 L.N.T.S. 19 (1936).
See Thomas D. Grant, Dening Statehood: The Montevideo Convention and its Dis-
contents, 37 Colum. J. Transnatl L. 403 (1999). See generally, Thomas M. Franck, The
Emerging Right to Democratic Governance, 86 Am. J. Intl L. 46 (1992). See also Jona-
than I. Charney, Self-Determination: Chechnya, Kosovo, and East Timor, 34 VAND. J.
TRANSNATL L. 455 (2001).
2 See Murphy, supra note 1, 48 Intl & Comp. L.Q., at 547.
3 Christian Hillgruber, The Admission of New States to the International Community, 9
Eur. J. Intl L. 491, 507 (1998).
308 Chapter 5
a guarantee of minority rights as a condition for admission to the League of Na-

tions).4
After the Second World War, while most human rights instruments did not
address democratic legitimacy, they nonetheless provided important benchmarks
for recognition of new States.5 The nearly universal non-recognition of Southern
Rhodesia oers a case in point.6 Writers have nonetheless rightly observed that
It cannot [...] be argued that the principle of self-determination, or the human right to
free elections, was fully incorporated into recognition practice during the Cold War
era. Far too many States were formed and welcomed into the international commu-
nity which were non-democratic in nature (e.g. virtually all African States).7
Following the break up of the former Soviet Union, the United States and the
Member States of the European Communities announced that they would rec-
ognize new States by taking into account not only the classic criteria of State-
hood, but also adherence to democracy and the rule of law, including respect
for the Helsinki Final Act and the Charter of Paris.8 The ECs Declaration on the
Guidelines on the Recognition of New States in Eastern Europe and in the Soviet
Union required
respect for the provisions of the Charter of the United Nations and the com-
mitments subscribed to in the Final Act of Helsinki and in the Charter of Paris,
especially with regard to the rule of law, democracy and human rights;
guarantees for the rights of ethnic and national groups and minorities in ac-
cordance with the commitments subscribed to in the framework of the CSCE.9
These requirements were applied in a exible manner. The declaration itself ac-
knowledged that recognition based on these requirements was subject to the
normal standards of international practice and the political realities in each
case.10 For instance, Nagorno-Karabakh in Azerbaijan, and Chechnya in the Rus-
sian Federation, were not recognized by any States, although the popular/sep-
aratist movements concerned exercised control over signicant territory. Sean
Murphy has thus noted:
4 Murphy, supra note 1, at 549-551.

5 Id., at 552.
6 Hillgruber, supra note 3, at 494-495.
7 Murphy, supra note 1, at 553.
8 Id., at 558.
9 Declaration on the Guidelines on the Recognition of New States in Eastern Europe
and in the Soviet Union, Brussels, The Hague, 16 December 1991, reprinted in 31
I.L.M. 1486-1487 (1992).
10 Id., at 547.
Subjects of International Law 309
The US statement and EC Declaration were quite signicant; they expressly con-
ditioned recognition on the basis of democratic rule. Yet, the EC declaration [...]
provided ample opportunity to suppress the emergence of new States from regions
within the Soviet republics.11
Nevertheless, the EC Guidelines had a signicant resonance, were frequently cit-

ed by diplomats, politicians and writers and, therefore, might well have informed
international practice.12
In the case of the dissolution of Yugoslavia, the Badinter Arbitration Com-
mission issued a number of rulings on whether the new Republics had met the
EC recognition criteria. Its reports, or Opinions refer to the requirements by
the entities concerned to comply with fundamental human rights, the rights of
peoples and minorities, the rule of law and free elections. Having found that Slo-
venia and Macedonia had met those criteria, it recommended their recognition.13
Although it found that Croatia had not satised the EC criteria, in particular as
regards protection of minorities,14 the EC recognized both Slovenia and Croatia
in January 1992. The recognition of Macedonia was delayed because of Greek
objections until the controversy associated with the name of the new State was
resolved. As regards Bosnia-Herzegovina, the Commission requested that a refer-
endum be held to establish the popular will.15 This decision may have reected an
additional criterion for recognition of statehood in cases of secession, based on
the principle of self-determination and on considerations of general international
law, including human rights law,16 going beyond previous standards on minority
protection.17
Obviously, this additional requirement was informed by the particular cir-
cumstances of the Bosnian situation: a republic, on the verge of a civil war, con-
taining three sizeable ethnic groups, any two of which outnumbered the third,
and which had close links to neighboring republics.18 Following a referendum
(March 1, 1992), Bosnia-Herzegovina was recognized by the EC (April 6, 1992).

12 Grant, supra note 1, at 443.
13 Conference on Yugoslavia, Arbitration Commission Opinion No. 7, 11 January 1992,
reprinted in 31 I.L.M. 1512 (1992), and Opinion No. 6, 11 January 1992, reprinted in 31
I.L.M. 1507 (1992). See also Opinions 1-5, reprinted in id. at 1494-1507.
reprinted in 31 I.L.M. 1503 (1992).
16 Marc Weller, The International Response to the Dissolution of the Socialist Federal
Republic of Yugoslavia, 86 Am. J. Intl L. 569, 593 (1992), quoted in Murphy, supra note
1, at 563.
17 Hillgruber, supra note 3, at 501.
310 Chapter 5
After an examination of State practice on recognition in the 1990s, Sean

Murphy fairly concludes that:
In sum, notions of democratic legitimacy are certainly present in contemporary prac-

tice concerning recognition of States. However, the evidence of these notions is not
uniform, and it derives exclusively from the practice of States that are themselves
democratic. Further, there is no eort even by democratic States to apply these no-
tions to existing States where governments lack legitimacy.19
II. Admission to International Organizations

While distinct from the recognition of statehood, admission to international
organizations necessarily assumes recognition as a State. Few international or-
ganizations have established admission procedures based on an assessment of
credentials derived from democratic principles or respect for human rights of the
entity seeking recognition.
Five credentials must be fullled to satisfy the requirements for a States ad-
mission to the United Nations: the applicant must be a State, must be peace-
loving, must accept the obligations contained in the Charter, must be able to
carry out those obligations, and must be willing to do so. Of course, in normal
circumstances the peace-loving character of an applicant State was perfuncto-
rily assumed. In its Advisory Opinion on Conditions of Admission of a State to
Membership in the United Nations, the ICJ rejected adding conditions to those
referred to in Article 4 of the Charter,20 whereby peace-loving States [...] accept
the obligations contained in the [...] Charter and, in the judgment of the Organi-
zation, are able and willing to carry out these obligations.21 Although the Court
did not exclude the possibility that factors reasonably connected with conditions
stated in Article 4 would be considered, in practice the human rights record of the
applicant State has not seriously been taken into account in considering applica-
tions for admission to the United Nations.22
In contrast to the United Nations, both the CSCE/OSCE and the Council of Europe
have insisted on the acceptance of broadly gauged principles of democracy as a condi-
tion for the admission of new States. At the founding of the Helsinki process in 1972,
membership was based essentially on geography. All European States were invited
to join along with the United States, Canada and the Soviet Union. Albania was the
only State to decline the invitation. For the next 15 years, there was no serious con-
sideration of membership expansion. The majority of participating States considered
that the Helsinki process should remain geographically limited. In 1990, Albania was
19 Id., at 566.
20 1948 I.C.J Rep., at 56 and 63 (May 28).
21 Charter of the United Nations, Article 4 (1).
22 See generally Konrad Ginther, in The Charter of the United Nations: A Commentary
158 (Bruno Simma ed., 1995).
admitted as an observer. The subsequent decision of the CSCE Council of Ministers

admitting Albania as a full participating State (June 1991) required Albania to adopt
the Helsinki Final Act, the 1990 Charter of Paris for a New Europe and other basic
documents of the CSCE. Under the Charter of Paris, the participating States under-
took to abide by and to promote Human rights and fundamental freedoms, pluralist
democracy and justice.23 To verify compliance, applicant States were required to re-
ceive a rapporteur mission organized by the CSCE Chair-in-Oce.
By and large, this pattern of admission has been followed for countries admitted
as independent States following the disintegration of the Soviet Union, Yugosla-
via, and Czechoslovakia: the country seeking admission would send a letter to
the Chair-in-Oce accepting all the CSCE requirements. A rapporteur mission
would then be sent. There were, however, some deviations from this pattern. The
Baltic States were admitted without being required to accept rapporteur missions,
largely in deference to their previous status of having been occupied. Estonia and
Latvia eventually hosted a mission that examined issues related to their Russian-
speaking inhabitants and the presence of Russian troops. Russia was treated as
the successor State of the Soviet Union and inherited the Soviet Unions seat in
the CSCE. By the time the States spawned by the break-up of Yugoslavia were
admitted to the CSCE, conicts erupted and the interest in sending pro forma
rapporteur missions waned. Instead, a variety of ad hoc missions were established
to examine specic problems. Macedonias request for admission was delayed by
Greek objections. Yugoslavias (Serbia-Montenegro) participation was suspended
in May 1992 to be renewed only after the election of Vojislav Kostunica as its
President and Yugoslavias admission as a new member to the United Nations
(November 1, 2000).
In addition to its focus on military and security issues, the CSCE, at least
since the Copenhagen Conference on Human Dimension (1990), has emphasized
democratic legitimacy and the rule of law, in addition to humanitarian and hu-
man rights questions.24
The process of admission of new States to the Council of Europe reects
these trends. Before the Parliamentary Assembly recommends that the Commit-
tee of Ministers invites an applicant State to become a member, the PA must sat-
isfy itself that the applicant has met the conditions of Article 3 of the Statute of
the Council of Europe: that it accepts the principles of the rule of law and of the
enjoyment by all persons within its jurisdiction of human rights and fundamental
freedoms, and that it is willing to collaborate sincerely and eectively in the real-
ization of the aims of the Council.25
Reports and resolutions of the Parliamentary Assembly pertaining to appli-
cant States demonstrate that democracy and the rule of law are factors in the
23 Charter of Paris for a New Europe (1990).

24 Meron, Democracy and the Rule of Law, 153 World Aairs 23 (1990).
25 Statute of the Council of Europe, Article 3.
312 Chapter 5
admission process.26 When recommending that the Committee of Ministers in-

vite a non-member State to become a member, the Parliamentary Assembly re-
quires that the applicant commits to (i) sign and ratify promptly after accession
the European Convention on Human Rights; and (ii) consent to the individual
right of petition to the European Commission (now the European Court) of Hu-
man Rights and to the compulsory jurisdiction of the European Court of Human
Rights. Of course, the Convention as amended by Protocol 11 integrates the right
of states and the right of any person, non-governmental organization or group of
individuals to refer to the Court complaints of breaches or applications. In some
cases, the Assembly has required, in addition, that the applicant State sign and
ratify certain Protocols. In the cases of Latvia, Moldova, Albania, Ukraine, and
Macedonia, the Assembly required them, upon accession to the Council of Eu-
rope, to sign and ratify within a specied time not only the European Convention,
but also Protocols 1, 2, 4, 6, 7, and 11. The Assembly also required that the appli-
cant States commit themselves to sign and ratify within one year the Framework
Convention for the Protection of National Minorities.27
The Parliamentary Assemblys procedure for Russias admission was tempo-
rarily suspended in 1994 as a result of the events in Chechnya and a report of
eminent jurists that concluded that Russias legal order did not meet the Council
of Europe standards. The admission procedure was resumed in the fall of 1995. Al-
though the PAs Committee on Legal Aairs and Human Rights determined that
the Russian Federation did not fulll the conditions for membership laid down
in Articles 3 and 4 of the Statute, it also presented arguments in favor of Russias
admission. Acting on the premise that Russias admission will improve its chances
for achieving such conditions, the Parliamentary Assembly nally recommended
admission.28
Questions of expulsion or suspension of a State for reasons related to de-
mocracy and human rights have arisen in some intergovernmental organizations.
Like the Council of Europe, the OAS emphasizes the value of democracy. Article
2(b) of the OAS Charter states that one of the essential purposes of the OAS is
to promote and consolidate representative democracy. The OAS has amended its
Charter to permit suspension from participation in the sessions of the OAS of
a member State whose democratically constituted government has been over-
thrown by force.29 The Declaration of Quebec City adopted by the Summit of the
Americas on April 22, 2001, went further. Emphasizing the commitment of the
OAS to the rule of law and democracy, the Summit agreed that any unconstitu-
tional alteration or interruption of the democratic order in a State of the Hemi-
26 See Meron and Jeremy S. Sloan, Democracy, Rule of Law and Admission to the Council
of Europe, 26 Israel Y.b. Hum. Rts. 137, 144-147 (1997).
27 Id., at 147-148.
28 Id., at 151-154.
29 Charter of the Organization of American States, as amended, Article 9; See generally,
Henry J. Steiner, Political Participation as a Human Right, 1 Harv. Y.b. Hum. Intl L.
77 (1988).
sphere constitutes an insurmountable obstacle to the participation of that States

government in the Summit of the Americas process.30
Greece, under the repressive regime of the Colonels, faced with an inter-
State complaint submitted to the European Court of Human Rights and with an
adverse report from the European Commission on Human Rights, withdrew from
the Council of Europe in 1967. Also in 1967, the EC/EU suspended (until 1974) its
agreement with Greece.31 Greece rejoined the Council under the Karamanlis gov-
ernment in 1974.32
Because of clear, gross and uncorrected violations of the CSCE commit-
ments, the CSCE participating States agreed by an unprecedented consensus-
minus-one decision to suspend Yugoslavia (Serbia-Montenegro) from decision-
making regarding the on-going conict in the former Yugoslavia. This decision
preceded subsequent suspension of Yugoslavia.
Under the Treaty on the European Union as modied by the Treaty of Am-
sterdam, a Member State may be suspended from certain rights derived from the
Treaty if found in breach of Article 6 (1) of the Treaty,33 which provides that [t]he
Union is founded on the principles of liberty, democracy, respect for human rights
and fundamental freedoms, and the rule of law, principles which are common to
the Member States. The EU has been increasingly active in promoting minority
rights in Eastern Europe, although the record of some of its members in treat-
ment of their own minorities has been less than perfect.34
III. Recognition of Governments

As in the case of recognition of States, recent State practice indicates that demo-
cratic rule and human rights have become part of the calculus in the recogni-
tion of governments. This is not an entirely new development. Already at the
beginning of the 20th century, President Wilson endorsed what was then known
as the Tobar doctrine (named after the Foreign Minister of Ecuador), which
urged Western hemisphere States to deny recognition to governments that took
power by non-constitutional means.35 During the Cold War, some Western States
refused to recognize for a number of years the governments of China, North Ko-
rea and North Vietnam. Experience shows, however, that even in cases of violent
change of the government which is not cured by the introduction of a democratic
regime, recognition is in most cases delayed, rather than denitely denied.
30 AmericasCanada.org: Final Declarations Declaration of Quebec City, available at

<http://www.americascanada.org/eventsummit/declarations/menu-e.asp>.
31 Jack Donnelly, International Human Rights 71 (1998).
32 Francis G. Jacobs & Robin C.A. White, The European Convention On Human Rights
51-52 (2nd ed. 1996).
33 Treaty on European Union, as amended, Articles 6 and 7 (ex Articles F and F.1).
34 Gaetano Pentassuglia, The EU and the Protection of Minorities: The Case of Eastern
Europe, 12 Eur. J. Intl L. 3-5 (2001).
314 Chapter 5
Under the traditional international law theory, there is no need for a special
recognition of new governments that come to power through constitutional pro-
cesses. Recognition is thus routinely granted when the new government exercises
eective control over the State. That does not mean that extraneous conditions,
such as recognition of debt obligations, are not sometimes insisted upon, and
have the eect of delaying recognition.36 In determining whether to recognize
another government, States do not nd the democratic quality of the government
as decisive; other factors are taken into consideration as well.37 To improve their
prospects for speedy recognition, groups that overthrow an un-democratic gov-
ernment often commit themselves to democracy and human rights.38
Haiti provides an example of eective action against the overthrow of a dem-
ocratically elected government. Although the Haitian military exercised eective
control over the territory, their coup was condemned by the international com-
munity and normal diplomatic relations with the military government were not
established. The exiled Aristide government continued to be recognized as the le-
gitimate government39 and, after the US intervention on the ground, was restored
to power. However, this case is more the exception than the rule.40 In situations
where democratic governments have been overthrown, non-recognition has not
always followed. Diplomatic relations are often established with a new govern-
ment with the justication that they may promote a return to democratic rule,41
as in the case of Pakistan.42
B. Non-State Actors
I. The Individual as Subject of International Law

In the 1990s, Sir Robert Jennings spoke of the rapid growth of a new kind of inter-
national law which directly concerns individuals and entities other than States.43
He attributed that phenomenon to the development of the law of human rights,
which presented a radical change from the traditional law which protected in-
dividuals only in the capacity of aliens, and only then in terms of the injury done
36 Id., at 566-567.
37 Id., at 572.
38 Id., at 573-574.
39 Id., at 545.
40 Id., at 578.
41 Id., at 574-575.
42 See Ilias Bantekas and Zahid F. Ebrahim, International Law Implications from the
1999 Pakistani Coup detat, ASIL Insight (November 1999).
43 Robert Y. Jennings, The Role of the International Court of Justice, 68 Brit. Y.B. Intl
L. 56, 58 (1997); An International Lawyer Takes Stock, 39 Intl & Comp. L.Q. 513, 522
(1990).
not to the individual but to the State of his nationality.44 Today, the law of human
rights has a primary judicial assumption that individuals can and do enjoy rights
directly from international law.45 Jennings highlighted additional developments.
International law has been inuenced by the recognition that the United Nations
has the capacity to bring international claims directly against a State,46 and thus
has a measure of international personality, and by the increasing empowerment
of non-State entities such as multinational corporations and NGOs. Another fac-
tor is the growing role of international law in domestic courts.47 The international
legal personality of international organizations, rst recognized in the Advisory
Opinion of the ICJ on Reparation for Injuries Suered in the Service of the United
Nations48 is now universally accepted. The European Communities have acquired
a legal personality that in some matters even replaces that of its member States.49
The Palestine Liberation Organization has been given quasi-State status in the
United Nations and has enjoyed the privilege of signing agreements with States
as well as some diplomatic privileges and immunities.
A telling illustration of the changing conception of the role and status of
non-State actors in international law may be found in the successive editions of
Oppenheimss International Law. Both the 8th and the 9th editions are supportive
of the recognition of individuals as subjects of international law, but regard in-
dividuals as subjects of international law only in limited circumstances. In the
8th edition, published in 1955, Hersch Lauterpacht observed that while interna-
tional law requires States to grant certain privileges and rights to individuals, it is
through municipal law that the rights are actually granted.50 He recognized, albeit
with a caveat, the role of international law:
It is therefore quite correct to say that individuals have these rights in conformity
with, or according to, International Law, provided it is remembered that, as a rule,
these rights would not be enforceable before national courts had the several States
not created them by their Municipal Law.51
Although, in general, treaties impose obligations on States to grant certain rights

to individuals through their municipal laws,52 individual rights under internation-
al law are not always solely derivative. Lauterpacht recognized that States may,
44 Jennings, supra note 43, at 39 Intl & Comp. L.Q. 522.

45 Jennings, supra note 43, at 68 Brit. Y.B. Intl L. 58.
46 Jennings, supra note 43, at 39 Intl & Comp. L.Q. 522 (citing Reparation for Injuries
Case), 1949 I.C.J. 174.
47 Jennings, supra note 43 at 68 Brit. Y.B. Intl L. 58.
48 Jennings, supra note 43, at 39 Intl & Comp. L.Q. 522.
49 Oppenheims International Law 20 (9th ed., R. Jennings & A. Watts eds., 1992).
50 Oppenheims International Law 637 (8th ed., H. Lauterpacht ed. 1955).
51 Id.
52 Id., at 637-638.
316 Chapter 5
and occasionally do, confer directly on individuals international rights that can
be enforced by individuals in their own names before certain international tri-
bunals.53 International law may also impose direct duties on individuals (in par-
ticular under the laws of war), thus enhancing the trend to treat individuals as
subjects of international law:54
In his seminal 1950 book, Hersch Lauterpacht explained that the problem
was not so much with the acceptance of the concept of the individual as a subject
of international law, as with the enforceability of the individuals rights, for which
the interposition of the State was generally necessary:
The fact that the beneciary of rights is not authorized to take independent steps in
his own name to enforce them does not signify that he is not a subject of the law or
that the rights in question are vested exclusively in the agency which possesses the
capacity to enforce them. Thus, in relation to the current view that the rights of the
alien within foreign territory are the rights of his State and not his own, the correct
way of stating the legal position is not that the State asserts its own exclusive right but
that it enforces, in substance, the right of the individual who, as the law now stands,
is incapable of asserting it in the international sphere.55
The 9th edition (edited by Robert Jennings and Arthur Watts in 1992) notes that
[m]any of [the] rules [of international law] are directly concerned with regulating
the position and activities of individuals; and many more indirectly aect them.
States may confer upon individuals international rights which do not need to be
enacted by municipal legislation and which individuals may enforce directly be-
fore international tribunals.56 Non-State actors such as individuals and private
companies may, in certain spheres insurgency, international criminal respon-
sibility, piracy, refugees, human rights enter into direct international legal rela-
tionships with States.57 The 9th edition concludes that [i]t is no longer possible,
as a matter of positive law, to regard States as the only subjects of international
law, and there is an increasing disposition to treat individuals, within a limited
sphere, as subjects of international law.58
Both editions recognize that individuals may be held directly responsible un-
der international law not only for such classic oenses as slave trading or piracy,
but also for violations of the laws of war and crimes against humanity.59 The 9th
53 Id., at 638.
54 Id., at 639, 20-21 (footnotes omitted) (emphasis added).
55 Hersch Lauterpacht, International Law and Human Rights 27 (1950), quoted in Rosa-
lyn Higgins, Problems and Process: International Law and How We Use It 53 (1994).
56 Oppenheims International Law (9th ed.), supra note 49, at 846-847.
57 Id., at 847-848.
58 Id., at 848-849 (emphasis added).
59 Oppenheims International Law (8th ed.), supra note 50, at 20-21, 341-342; Oppen-
heims International Law (9th ed.), supra note 49, at 505-508; Aldrich, Individuals as
Subjects of International Humanitarian Law, in Theory and Practice of International
edition reects the developments that have been taking place in the eld of in-
ternational criminal law since the early 1950s with regard to such international
crimes as genocide, grave breaches of Geneva Conventions and apartheid, and
recognizes the increasing trend towards the expansion of individual responsibil-
ity directly established under international law.60 These developments culminate
with the Rome Statute of the International Criminal Court.
A striking dierence between the 8th and 9th editions emerges in their treat-
ment of human rights. The 8th edition maintained the traditional view that
apart from obligations undertaken by treaty, a State is entitled to treat both its own
nationals and Stateless persons at [its] discretion and that the manner in which it
treats them is not a matter with which International Law, as a rule, concerns itself.61
The 9th edition recognizes the fundamental changes that have occurred in those
previous rules of international law that did not address the basic rights of a hu-
man being.62 To the extent that international law acts on individuals per se, they
become subjects of international law.63 The 9th edition also notes that other
non-State actors such as NGOs and private corporations may have certain at-
tributes of international personality.64 Signicantly the 9th edition omits the 8th
editions reference to individuals as objects of international law.
The dichotomy between subject and object of international law has been
altogether rejected by some commentators. Rosalyn Higgins rightly complains
that this dichotomy has constrained the terms of individuals participation in
international law.65 In her model of international law as a decision-making pro-
cess, she argues that:
there are a variety of participants, making claims across State lines, with the object
of maximizing various values [...] in this model, there are no subjects and objects,
but only participants. Individuals are participants, along with States, international
organizations, [...] multinational corporations, and indeed private non-governmental
groups.66
Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski
851 (Jerzy Makarczyk ed. 1996).
60 Oppenheims International Law (9th ed.), supra note 49, at 506.
63 Id. Oppenheims International Law (8th ed.), supra note 50, at 17.
64 Oppenheims International Law (9th ed.), supra note 49, at 21-22.
65 Higgins, supra note 55, at 49-50.
66 Id., at 50. The British ocial Training Directive (Army) (ITD(A)6) states that the law
of armed conict is that part of international law which regulates the rights and du-
ties of governments, States and individuals during an armed conict to which the law
applies, whatever the cause of that conict.
318 Chapter 5
Criticizing the nationality of claims rule, Higgins applies the distinction be-
tween the recognition of a right and its enforceability, a distinction made by Laut-
erpacht for rights derived from treaties, to general international law.67 Elsewhere,
Higgins suggests that to the extent that individuals come into contact with mat-
ters regulated by international law, there is no reason of principle why they should
be beyond the reach of that law.68
There has been a growing acceptance of both the rights and the status of the
individual in international law. Tomuschat thus concludes that the individual
has acquired a status under international law.69 Of course, despite the continuing
controversy on whether the individual already is a subject of international law,
there is no doubt that he has acquired a status in international law. Nevertheless,
despite some progress, remedies available to the individual still lag behind rights
and principles. Stephan Hobe has written that the growing recognition by the
Security Council that grave violations of human rights may constitute a threat to
international peace and security, the strengthening of the conventional means of
enforcement of human rights, as, for example, by individual access to the Europe-
an Court of Human Rights, and the recognition of individual criminal responsi-
bility, as evidenced by the establishment of the two ad hoc international criminal
tribunals, demonstrate the enhanced status of the individual under international
law.70 In a report on diplomatic protection prepared for the International Law
Commission, John Dugard agrees with Higgins that the debate over subject/ob-
ject dichotomy is not helpful. He observes that, while individuals may exercise
rights under human rights and investment protection treaties, their remedies
are still limited. Individuals clearly have more rights than they used to have, but
whether this makes them a subject of international law is open to question.71
67 Id., at 52-54.
68 Rosalyn Higgins, The Reformation in International Law, in Law, Society and Econo-
my: Centenary Essays For The London School Of Economic s And Political Science
207, 212-13 (Richard Rawlings ed., 1997).
69 Christian Tomuschat, International Law: Ensuring the Survival of Mankind on the
Eve of a New Century, 281 Recueil des Cours 150 (1999).
70 Stephan Hobe, Individuals and Groups as Global Actors: The Denationalization of In-
ternational Transactions, in Non-State Actors as New Subjects of International Law
115, 121-26 Verentlichungen des Walther-Schcking-Instituts fr Internationales
Recht an der Universitt Kiel, Band 125, at 115-35 (Rainer Hofmann ed. 1999 ). See also
Anne-Marie Slaughter, An International Constitutional Moment, 43 Harv. Intl L. J. 1,
13 (2002) (who speaks of the individualization of international law.).
71 John Dugard, First Report on Diplomatic Protection, UN Doc. A/CN.4/506, paras.
23-24 (2000).
II. Individual Access to International Organs and Institutions

a) Trade Organizations Dispute Settlement Mechanisms
i) The World Trade Organization (WTO)
The WTO72 dispute settlement mechanism is the successor to the dispute set-
tlement mechanism embodied in Articles XXII and XXIII of the GATT (1947).73
Article 3(1) of the Understanding on Rules and Procedures Governing the Set-
tlement of Disputes (Rules and Procedures) arms that the principles for the
management of disputes under Articles XXII and XXIII continue to apply to the
WTOs system.74 As in GATT, access to the WTOs dispute settlement mecha-
nism is limited to Member States.75 Private parties may not directly bring a claim,
though they may have some input on the dispute settlement process. In their
internal legislation, Members, including the United States and the European
Community, have granted private parties the right to request initiation of WTO
dispute settlement procedures.76 Private parties may thus be the actual movers
behind some of the cases.77
Often raised in the context of transparency of the Organization, NGOs par-
ticipation in the WTO dispute settlement proceedings has been a contentious
issue.78 Article 13 of the Rules and Procedures grants the panels the right to seek
information and technical advice from any individual or body which it deems ap-
propriate.79 However, a panel must give notice to a Member before it seeks infor-
mation from any individual or body within the Members jurisdiction.80 Although
Article 13 speaks of a panels right to seek information, the Appellate Body accept-
72 Multilateral Trade Negotiations Final Act Embodying the Results of the Uruguay
Round of Trade Negotiations, April 15, 1994 (Uruguay Round Final Act), Agree-
ment Establishing the World Trade Organization, 33 I.L.M. 1125, 1144.
73 General Agreement on Taris and Trade, signed on October 30, 1947, 55 U.N.T.S. 187
(1950).
74 Uruguay Round Final Act. Understanding on Rules and Procedures Governing the
Settlement of Disputes, Annex 2, 33 I.L.M. 1125, 1227 (1994).
75 Under the Rules and Procedures, Members begin with consultations, Art. 4, 33
I.L.M. at 1228-29. If the consultations fail, the complaining Member can request that
a three-person arbitration panel be formed. Art. 4.7, id. at 1229. The panels report is
submitted to the Dispute Settlement Body. Art. 16, id. at 1235. A party to the dispute
may appeal the decision of the panel to a standing Appellate Body, Art. 17, id. at 1236-
37.
76 Ernst-Ulrich Petersmann, Constitutionalism and International Organizations, 17 Nw.
J. Intl L. & Bus. 398, 468 (1996/97).
77 Transcript of Discussion Following Presentation by Kenneth W. Abbott, 1992 Colum.
Bus. L. Rev. 151, 161 (1992).
78 Dukgeun Ahn, Environmental Disputes in the GATT/WTO: Before and After US-
Shrimp Case, 20 Mich. J. Intl L. 819, 841 (1999).
79 Rules and Procedures, Art. 13(1), 33 I.L.M. at 1234.
80 Id.
320 Chapter 5
ed several unsolicited NGOs amicus briefs, thus, at least potentially, enabling

non-governmental bodies to have a greater voice in the WTO litigation process.
In the case of United States Import Prohibitions of Certain Shrimp and Shrimp
Products, NGOs submitted two amicus briefs to the Panel. The United States
urged the Panel to consider the information contained in those briefs, arguing
that the Rules did not prohibit the panels from considering unsolicited informa-
tion.81 The Panel refused to accept the briefs, insisting that the initiative to seek
information ... rests with the Panel [and that] in any other situations, only parties
and third parties are allowed to submit information directly to the Panel.82 The
Appellate Body overturned this nding, stating that [a] panel has the discretion-
ary authority either to accept and consider or to reject information and advice
submitted to it, whether requested by a panel or not.83 In a more recent decision,
the Appellate Body went even further, holding that in the absence of any rules
on the matter it had the right to accept and consider amicus briefs whenever it
deemed it pertinent and useful to do so.84
Such decisions demonstrate some responsiveness of the WTO to global de-
mands.85 There has thus been some progress since the earlier adoption by the
General Council of the WTO of Guidelines for Arrangements on Relations with
Non-Governmental Organizations (1996), which stated that there is a broadly
held view [among Members] that it would not be possible for NGOs to be directly
involved in the work of the WTO or its meetings86
Proposals to allow greater NGO participation in policy making (e.g., attend-
ing meetings of the General Council and working committees, and presence in
multilateral trade negotiations) and in the dispute settlement process of the WTO
(e.g., ling of right of amicus briefs or even initiating proceedings) have been ad-
vanced.87 Such proposals would ensure that interests and data of concern to civil
society are presented to the WTO bodies, and would increase transparency and
support for the WTO.88 Critics invoke the lack of accountability of NGOs and
81 Ahn, supra note 78, at 839.

82 WTO, WT/DS58/R, para. 7.8, cited in Ahn, supra note 78, at 840.
83 WTO, WT/DS58/AB/R, paras. 106 and 108, cited in Ahn, supra note 78, at 841 (em-
phasis added).
84 WTO Doc. WT/DS138/AB/R, para. 42 (May 10, 2000), cited by Philippe Sands in
Turtles and Torturers: The Transformation of International Law, 33 N.Y.U. J. Intl L.
& Pol. 527, 545 (2001). See Duncan Hollis, Private Actors in Public International Law:
Amicus Curiae and the Case for the Retention of State Sovereignty, 25 Boston Col. Intl
& Comp. L. Rev. 235, 239-43 (2002). See generally Dinah Shelton, The Participation
of Nongovernmental Organizations in International Judicial Proceedings, 88 AJIL 611
(1994).
85 Ahn, supra note 78, at 843.
86 WTO, WT/L/162 (July 23, 1996), cited in Ahn, supra note 78, at 842.
87 John O. McGinnis and Mark L. Movsesian, Commentary: The World Trade Constitu-
tion, 114 Harv. L. Rev. 511, at 569-70 (2000).
88 Id., at 570-71.
the danger that interest groups, including protectionist groups, might undermine
international trade.
ii) North American Free Trade Agreement (NAFTA)

The North American Free Trade Agreement89 provides, in addition to a general
dispute settlement mechanism,90 two specic mechanisms: one for disputes be-
tween a Party and an investor from another Party,91 and one for disputes relat-
ed to anti-dumping and countervailing duties between Parties.92 NAFTAs side
agreements on environmental cooperation (NAAEC)93 and on labor cooperation
(NAALC)94 also provide for specic dispute settlement procedures.
Non-governmental actors do not have access to the NAFTA general dispute
resolution mechanism, which addresses controversies regarding NAFTAs scope,
application or interpretation. Article 2022 of NAFTA simply requires State Par-
ties to encourage the use of arbitration or other means of alternative dispute reso-
lution in the free trade area.95
Under Articles 1116 and 1117 of NAFTA, an investor from one Party, or an in-
vestor from one Party on behalf of an enterprise from another Party, may submit a
claim to arbitration, if attempts to settle the dispute through consultations or ne-
gotiations have failed.96 An investor may submit the claim to arbitration under:
(a) the ICSID Convention, provided that both the disputing Party and the Party of
the investor are parties to the Convention;
(b) the Additional Facility Rules of ICSID, provided that either the disputing Party
or the Party of the investor, but not both, is a party to the ICSID Convention;
or
(c) the UNCITRAL Arbitration Rules.97
However, an ICSID arbitral tribunal has held that only a violation of an obliga-
tion provided in Chapter 11, Section A, of NAFTA can be invoked as a ground for
arbitration (i.e. mainly obligations to provide non-discriminatory treatment and
89 North American Free Trade Agreement, done at Washington on December 8 and 17,
at Ottawa on December 11 and 17, and at Mexico City on December 14 and 17, 1992,
90 NAFTA, Chapter 20, Section B.
91 NAFTA, Chapter 11, Section B.
92 NAFTA, Chapter 19.
93 32 I.L.M. 1480 (1993).
94 32 I.L.M. 1499 (1993).
95 NAFTA, Article 2022 (1).
96 NAFTA, Articles 1116 and 1117.
97 NAFTA, Article 1120.
322 Chapter 5
to compensate for expropriation). NAFTA does not ... allow investors to seek
international arbitration for mere contractual breaches.98
In contrast to the general dispute resolution mechanism, the countervail-
ing and anti-dumping duties dispute resolution mechanism gives a greater role
to non-State actors. Anti-dumping and countervailing duties have been highly
controversial in international trade law and policy.99 Unable to agree on substan-
tive rules, the parties to the Free Trade Agreement between the United States and
Canada instead designed a specic procedural mechanism, empowering a bi-na-
tional panel to review a nal determination of anti-dumping and countervailing
duties taken by a national administrative agency. The panel reviews whether such
a determination conforms to national law. It is, thus, essentially a mechanism to
avoid the potential bias in national courts to uphold decisions of the national ad-
ministration.100 A similar mechanism was established in NAFTA. Under its Ar-
ticle 1904, the Parties are required to replace judicial review of nal antidumping
and countervailing duty determinations with a bi-national panel review.101 The
panel is convened at the request of an involved Party.102 The review of the deter-
mination is triggered by a State Party, although the complaint usually originates
from private enterprises subject to the duties. Interested private parties are not
parties to the dispute. They are, however, allowed to participate in the proceed-
ings. The Parties to the dispute must allow persons who would have the right
under the law of the importing Party to appear and be represented in a domestic
judicial review proceeding concerning the imposition of the duty to appear and
be represented by counsel before the panel.103 The proceedings are usually termi-
nated if the private interested parties reach an agreement.104
98 Robert Azinian, Kenneth Davitian and Ellen Baca v. The United Mexican States, IC-
SID (Additional Facility), Arbitral Tribunal constituted under Chapter 11 of the North
American Free Trade Agreement (Mr. J. Paulsson, Pres.), Case No. ARB(AF)/97/2,
Award of 1st November 1999, para. 87. Aron Broches, The Convention on the Settle-
ment of Investment Disputes between States and Nationals of Other States, in Aron
Broches, Selected Essays: World Bank, ICSID, and Other Subjects of Public and Pri-
vate International Law 188, 198 (1995).
99 Andreas F. Lowenfeld, Binational Dispute Settlement Under Chapter 19 of the Cana-
da-United States Free Trade Agreement: An Interim Appraisal, 24 N.Y.U. J. Intl L. &
Pol. 269, 270-271 (1991).
100 Alexandra Maravel, Constructing Democracy in the North American Free Trade Area,
16 J. Intl L & Bus. 331, 345, n. 44 (1996).
101 NAFTA, Article 1904(1). This section of NAFTA is largely similar to Chapter 19 of the
Canada-United States Free Trade Agreement, done at Ottawa, December 22, 1987,
and January 2, 1988 and at Washington, D.C. and Palm Springs, December 23, 1987,
and January 2, 1988, reprinted in 27 I.L.M. 281 (1988).
103 NAFTA, Article1904 (7).
104 See for instance David Lopez, Dispute Resolution Under NAFTA: Lessons from the
Early Experience, 32 Tex. Intl L.J. 163, 176-78 (1997) (discussing cases which were ter-
Andreas Lowenfeld has observed that, at the time of the adoption of the
U.S.-Canada FTA, the extent of private party participation allowed under Chap-
ter 19 procedure was unique in institutions of dispute settlement between na-
tion-States.105 After years of several experience, he concluded that the FTA pro-
cedure had worked well and suggested that the idea of private party participation
in intergovernmental dispute settlement of economic issues deserves to be recon-
sidered.106
The North American Agreement on Environmental Cooperation (NAAEC)
provides for some non-governmental access to proceedings by ensuring that
private parties with interests in the enforcement of environmental laws have re-
course to national judicial and administrative proceedings. It creates a mecha-
nism for presenting complaints to the Commission for Environmental Protection,
established by the NAAEC for private persons and NGOs. The role of individuals
and NGOs is, however, mainly limited to the triggering of the procedure.
Under Article 14, any non-governmental organization or person may
submit a petition to the Secretariat asserting that a Party is failing to eectively
enforce its environmental law.107 Submissions are screened by the Secretariat. To
be admissible, a submission must be aimed at promoting enforcement [of a Par-
tys environmental law] rather than at harassing industry.108 A submission must
assert that a party is failing to eectively enforce its environmental laws, but may
not challenge the adequacy or the stringency of domestic environmental law.109
minated prior to a decision on the merits either by mutual consent or at the request
of the complainant).
105 Lowenfeld, supra note 99, at 271.
106 Id., at 335.
107 NAAEC, Sept.14, 1993 (Canada, Mexico, United States), 32 ILM 1480 (1993), Article
14 (1).
108 NAAEC, supra note 107, Article 14 (1)(d). In addition, the Secretariat must ascertain
if the submission
(a) is in writing in a language designated by that Party in a notication to the Sec-
retariat;
(b) clearly identies the person or organization making the submission;
(c) provides sucient information to allow the Secretariat to review the submis-
sion, including any documentary evidence on which the submission may be
based;
(d) appears to be aimed at promoting enforcement rather than at harassing indus-
try;
(e) indicates that the matter has been communicated in writing to the relevant au-
thorities of the Party and indicates the Partys response, if any; and
(f ) is led by a person or organization residing or established in the territory of a
Party.
109 Department of the Planet Earth and al. v. United States, Secretariat for the Commis-
sion for Environmental Cooperation, Submission ID: SEM-98-003, Determination
pursuant to Article 14(1) of the North American Agreement on Environmental Coop-
eration of 14 December 1998. The submissions and the Secretariats determinations
324 Chapter 5
Another possible avenue open to citizens and NGOs is the implementation

of the NAAEC through the Article 13 procedure. Article 13 allows the Secretariat
to research and prepare a report to the Council on any matters within the scope
of the annual program as well as any other environmental matter related to the
cooperative functions of the NAAEC.110 In preparing the report, the Commis-
sion may draw on a wide range of sources, including non-governmental ones.111
Under the North American Agreement on Labor Cooperation as well, pri-
vate parties may trigger an enforcement mechanism of the agreement. The Na-
tional Administration Oces112 (NAOs) may receive public communications on
labor law matters arising in the territory of another Party.113 The NAO review[s]
such matters, as appropriate, in accordance with domestic procedures.114 If the
matter is not resolved, any consulting party may request that an Evaluation Com-
mittee of Experts be formed.115 The subject matter authority of the Committee of
Experts is limited to patterns of practice by each Party in the enforcement of its
occupational safety and health or other technical labor standards as they apply to
the particular matter considered by the Parties.116 In preparing its nal report, the
Committee of Experts may invite written submissions from the public.117
The NAALC procedure has a more limited scope than that under the
NAAEC. In contrast to the latter, the NAALC procedure permits submissions
concerning the actions of another Party; complaints against ones own Party are
excluded. The role of individuals in both procedures is mostly limited to initiating
the procedure.
b) Investment Treaties and ICSID

In the realm of international investment, private parties are increasingly protect-
ed through arbitration mechanisms established by investment treaties. Escobar
has observed that
[o]ne of the most prominent features of recent investment treaties is that, in addition
to providing for State-to-State arbitration to settle questions concerning their inter-
may be found on the site of the Commission, available at <http://www.cec.org/citi-

zen>.
110 NAAEC, supra note 107, Article 13 (1).
111 NAAEC, supra note 107, Article 13 (1).
112 Sept. 14, 1993 (Canada, Mexico, United States), 32 ILM 1499 (1993). Under Article 15
of NAALC, the Parties are required to establish a National Administrative Oce
which serves as a point of contact between the Parties, the Secretariat and other
NAOs.
113 NAALC, supra note 112, Article 16(3).
114 Id.
115 NAALC, supra note 112, Article 23 (1).
116 NAALC, supra note 112, Article 23 (2).
117 NAALC, supra note 112, Article 24 (1)(d).
pretation or application, they allow the covered investors themselves to put in motion
mechanisms for submitting disputes with the host State to binding arbitration, and in
this way they ensure the enforcement of the treaties substantive guarantees.118
A majority of these investment treaties provide for arbitrations under the Con-
vention on the Settlement of Investment Disputes between States and Nationals
of Other States.119 The Convention on the Settlement of Investment Disputes cre-
ated the International Centre for the Settlement of Investment Disputes (ICSID),
a World Bank organization that provides facilities for the conciliation and arbi-
tration of investment disputes.120 The Convention applies to investment disputes
between a Contracting State and a private person who is a national of another
Contracting State, or between a Contracting State and a juridical person with the
nationality of the Contracting State if the parties agree that the juridical person
should be treated as the national of another State Party because of foreign con-
trol.121 ICSID has no jurisdiction over a dispute between a Contracting State and
a natural person who is a national of that State.122 The distinctive feature of the
Convention is that it grants access to an international forum to private individu-
als and juridical persons involved in a dispute with a foreign State.123 As Broches
has emphasized,
From the legal point of view the most striking feature of the Convention is that it
rmly establishes the capacity of a private individual or a corporation to proceed
directly against a State in an international forum, thus contributing to the growing
recognition of the individual as a subject of international law.124
ICSIDs jurisdiction depends on the consent of the parties to the dispute. The
mere ratication of the Convention is not sucient. The parties to the dispute
118 Alejandro Escobar, An Overview of the International Legal Framework Governing

Investment, in Toward an Eective International Investment Regime, 91 ASIL Proc.
485, 489 (1997); also Charles Leben, Hans Kelsen and the Advancement of Interna-
tional Law, 9 Eur. J. Intl L. 287, 302 (1998). (noting that bilateral investment treaties
commonly include clauses allowing for cases of an alleged breach of obligations sub-
scribed by the host state to be brought before an arbitration tribunal, even if there is
no contractual tie between the state and the investor).
119 Convention on the Settlement of Investment Disputes between States and Nationals
of Other States, entered into force October 14, 1966, 575 U.N.T.S. 159.
120 CSID, Article 2; See also Rudolf Dolzer, Dispute Settlement Mechanisms in the IMF,
the World Bank and MIGA, in 7 Adjudication of International Trade Disputes in In-
ternational And National Economic Law 139, 143 (Ernst-Ulrich Petersmann and Gn-
ther Jaenicke eds., 1992).
121 CSID, Article 25 (1 and 2); See also Broches, supra note 98, at 202.
122 CSID, Article 25(2)(a).
123 Dolzer, supra note 120, at 144; Leben, supra note 118, at 305.
124 Broches, supra note 98, at 198.
326 Chapter 5
must consent to submit a particular dispute to the Centre.125 Consent is not

merely a formal requirement but an essential characteristic of the entire
system of the Convention.126 It can be given ad hoc for a particular case, in a
compromissory clause in an investment agreement, by the host State in national
legislation, or through a bilateral or multilateral treaty.127 Once both parties to the
dispute have given consent (in writing) to ICSID arbitration, no party may unilat-
erally withdraw its consent.128 Broches has suggested that such mutual consent
has the eect of elevating the agreement between a private company and a State
to the level of an international legal obligation, and to that extent the Conven-
tion constitutes the private company a subject of international law.129
An important limitation on the investors options is that contracting States
waive their right to diplomatic protection:130 no contracting State shall give dip-
lomatic protection, or bring an international claim, in respect of a dispute which
one of its nationals and another Contracting State shall have consented to submit
or shall have submitted to arbitration under this Convention.131 The host State
is thus shielded from an international claim by the home State. The home State
may, however, undertake informal exchanges for the sole purpose of facilitating
a settlement.132
Under the Convention, the arbitration tribunals are to apply such rules of
law as may be agreed by the parties.133 In the absence of an agreement as to the
governing law, the arbitration tribunals are directed to apply the law of the Con-
tracting State party to the dispute and such rules of international law as may be
applicable.134 Only in those instances in which a particular action taken under
national law, or a particular provision of national law, violated international law
would the tribunal, in the application of international law, set aside that action or
that law.135 Charles Leben has discerned a movement towards international law
by several ICSID tribunals.136 Some treaties refer to international law obligations
as applicable law. NAFTA, for example, provides in its chapter on investment that
[a] Tribunal established under this Section shall decide the issues in dispute in
accordance with this Agreement and applicable rules of international law.137 A
125 Dolzer, supra note 120, at 145.

126 Broches, supra note 98, at 199; also Dolzer, supra note 120, at 145.
127 Broches, supra note 98, at 200-201; Dolzer, supra note 120, at 145.
128 CSID, Article 25(1); Broches, supra note 98, at 201.
130 Dolzer, supra note 120, at 145.
131 CSID, Article 27(1).
136 Leben, supra note 118, at 303.
European treaty, the Energy Charter Treaty, which also provides for arbitration
between a contracting State and an investor (a natural person or a company) from
another contracting party, includes a similar provision.138
A considerable controversy has been generated by the more general question
of whether international contracts between States and private persons (State
contracts), which refer to international law as their governing law, are grounded
in public international law.139 Some commentators have denied that public inter-
national law, as a legal order, applies to such contracts.140 Others have maintained
that such provisions removed contracts between States and private law per-
sons from domestic law and made [them] subject to international rules of law.141
Charles Leben suggests that through international arbitration and modern invest-
ment law, private persons have acquired a limited international personality:
by means totally dierent from those used in the eld of human rights, private per-
sons have acquired in the legal institution of State contracts, and more generally in
the eld of investment law, (limited) international legal personality by dint of their
capacity to act directly against the State for the defence of their rights and to do so in
international courts.142
c) World Bank Inspection Panel

The World Bank Inspection Panel was established by resolutions of the World
Bank and the International Development Association (IDA).143 It consists of three
experts appointed by the Banks President in consultation with the Board of Di-
rectors. A group of individuals can complain to the panel that
its rights or interests have been or are likely to be directly aected by an action or
omission of the Bank as a result of a failure of the Bank to follow its operational poli-
cies and procedures with respect to the design, appraisal and/or implementation of
a project nanced by the Bank provided in all cases that such failure has had, or
threatens to have, a material adverse eect.144
138 Energy Charter Treaty, reprinted in 34 I.L.M. 382 (1995), Article 26(6).
139 See Leben, supra note 118, at 300-301.
140 See Leben, id., at 301-302.
141 Georges R. Delaume, State Contracts and Transnational Arbitration, 75 Am. J. Intl L.
784, 786 (1981). See also Leben, supra note 118, at 305.
142 Leben, supra note 118, at 305.
143 IBRD Resolution No. 93-10 (1993), Resolution IDA 93-6 (1993), reprinted in 34 I.L.M.
520 (1995). Both resolutions are identical. A similar body has been established by
the Inter-American Development Bank in 1997. For a recent summary of the Panels
record and procedures, see Accountability at the World Bank: The Inspection Panel
10 Years On (2003).
144 Resolution No. 93-10, id., at para. 12.
328 Chapter 5
The Panel has the authority to make ndings that are then proposed to the Board
of Directors. The inspection procedure proceeds in two major steps. In the rst
stage, the Panel examines the admissibility of the complaint and recommends
to the Executive Directors whether an investigation should be conducted. The
second stage, the investigation, can only be triggered by a decision of the Execu-
tive Directors. At the end of the investigation, the Panel reports as to whether the
Bank has complied with its own policies and procedures and the Executive Direc-
tors decide on the projects future.145
The Inspection Panel was envisioned as an addition to the already exist-
ing oversight and quality control mechanisms applied by the World Bank to its
projects.146 A World Bank management report oered three main justications
for the establishment of the Panel: increasing demands for transparency and ac-
countability of development institutions; enhancement of the Banks credibility;
and the need for a more ecient and consistent method of dispute resolution.
Through this Panel, members of the Board and those directly aected by Banks
projects will have an additional, independent instrument to ensure that projects
under preparation or implementation meet the Bank rules and standards.147 The
Panel reects the trend to provide non-State actors access to international insti-
tutions as well as the growing recognition of the concepts of public participation
and civic action.148 The Panels establishment reects the heightened sensitivity of
the Bank to human rights concerns.149
The Inspection Panel is innovative and may set a precedent for other bod-
ies.150 Under traditional international law, States, as representatives of the inter-
ests of individuals and groups within their jurisdiction, would have been regarded
as the sole entities competent to protect these interests in their dealings with
international organizations. In contrast, the Panel may deal directly with specic
categories of the general public.151
There are limitations on who may bring a complaint to the Panel. Perhaps
to forestall a ood of requests, single individuals and groups or organizations
outside the borrowing countries cannot lodge a complaint.152 Commenting on the
145 Resolution No. 93-10, id., at paras. 20-23.

146 Ibrahim F.I. Shihata, The World Bank Inspection Panel 14-21 (1994).
147 Id., at 38.
148 Id., at 118-122.
149 Thomas M. Franck, The Empowered Self: Law And Society In The Age of Individual-
ism 218-219 (1999).
150 Daniel D. Bradlow, Letter to Mr. James Wolfensohn, President of the World Bank
Group, December 1997. See also Daniel Bradlow, Precedent-Setting NGO Campaign
Saves the World Banks Inspection Panel, Human Rights Brief, Vol. 6, Issue 3, at 7.
151 Richard E. Bissell, Current Developments: Recent Practice of the Inspection Panel of
the World Bank, 91 Am. J. Intl. L. 741 (1997) referring to Shihata, supra note 146, at
120-121 (1994).
152 Shihata, supra note 146, at 93-94.
exclusion of complainants outside the borrowing countries, Shihata wrote that

the Panel is thus not a forum for an actio popularis.153
Another important limitation is that the panel only examines World Bank
behavior under the Banks internal procedures. It does not go into the conformity
of those procedures with general international law. This limitation was inspired
by the fear that a broader inquiry would entangle the Bank in areas clearly outside
its mandate.154
The Panels decisions are not binding, and are made public only after they
have been nalized by the Executive Directors. The Banks management decides
on the appropriate remedy. [T]he panel might have more eect on projects
through indirect pressure than through its formal procedures set out by the ex-
ecutive directors.155 The procedure is non-adversarial. On-site visits are allowed
only with the explicit consent of the State where the project is located. The Panel,
in addition to being accessible to individuals, has agreed to receive memoranda
from NGOs.156 Under the Panels Operating Procedures, supplemental informa-
tion from the general public may be submitted to the Panel.157
d) International Tribunals
The possibility of individual access to international tribunals had already been
recognized early in the 20th century. The Convention establishing the Central
American Court in 1907 provided that the Court
shall take cognizance of the questions which individuals of one Central American
country may raise against any of the other Contracting Governments, because of the
violations of Treaties or Conventions, and other cases of an international character;
no matter whether their own Government supports [the] said claim or not 158
Among the cases heard by the Court, were several brought by individuals. (They
were deemed inadmissible). The court ceased functioning in 1918.
i) International Tribunal for the Law of the Sea

The International Tribunal for the Law of the Sea (ITLOS) is one of the four fora
for the settlement of disputes under the United Nations Convention on the Law
of the Sea (UNCLOS).159 Article 287 of UNCLOS provides that State Parties may
153 Id., at 95.

154 Id., at 96.
155 Bissell, supra note 151, at 742.
156 Id., at 743.
157 Operating Procedures of the Inspection Panel, Articles 50 and 51.
158 Convention for the establishment of a Central American Court of Justice, signed at
Washington 20 December 1907, reprinted in 206 THE CONSOLIDATED TREATIES
SERIES, 1907-1908, at 90, Article II (Clive Parry ed., 1980).
159 United Nations Convention on the Law of the Sea, opened for signature December
10, 1982, reprinted in United Nations, Ocial Text of the United Nations Convention
330 Chapter 5
chose one or more of the following bodies to settle disputes: the ITLOS, the In-
ternational Court of Justice, an arbitral tribunal or, for certain types of disputes
(concerning sheries, protection of the marine environment, marine scientic
research, or navigation, including pollution from vessels and by dumping), a spe-
cial arbitral tribunal.160 A State Party may declare its preference for one or more
of the fora [w]hen signing, ratifying or acceding to th[e] Convention or at any
time thereafter.161 If no declaration is made, or if the parties to a dispute have not
accepted the same forum, the dispute must be submitted to arbitration, unless
the parties otherwise agree.162 Entities other than States may not access (for con-
tentious cases) the International Court of Justice, which by its Statute is clearly
limited to States.163 Access to the dispute settlement provided by the Conven-
tion is broader, perhaps because entities other than States may become parties to
the Convention, i.e., self-governing associated States, territories which enjoy full
internal self-government and international organizations such as the European
Community.164 For the purposes of the Convention, references to State parties
include those entities.165 Thus, while Article 20(1) of the Statute of the ITLOS pro-
vides that the Tribunal shall be open to State Parties,166 non-State entities which
are parties to the Convention have access to the Tribunal.167
Part XI of the Convention creates a special dispute settlement mechanism
for disputes concerning the exploration and exploitation of the deep sea-bed. The
Sea-Bed Disputes Chamber (SBDC) is a separate chamber within the ITLOS with
its own jurisdiction.168 The jurisdiction of the SBDC extends to disputes between
parties to a contract, i.e., State Parties, the Authority or the Enterprise, State en-
terprises and natural or juridical persons, as well as to certain disputes between
the Authority and a prospective contractor sponsored by a State, and nally, to
disputes between the Authority and a State Party, a State enterprise or a natural or
juridical person sponsored by a State Party, where it is alleged that the Authority
on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983).
160 UNCLOS, Article 287(1); see also id., Annex VIII, Art. 1 (listing the categories of dis-
pute for a special arbitral tribunal).
161 UNCLOS, Article 287(1).
162 UNCLOS, Article 287(3) and (5).
163 Statute of the International Court of Justice, Article 34(1). See also Jonathan I. Char-
ney, The Implications of Expanding International Dispute Settlement Systems: The
1982 Convention on the Law of the Sea, 90 Am. J. Intl L. 69, 74 (1996) (noting that the
ICJs Statute would prevent it from considering many of the disputes that may arise
under UNCLOS).
164 UNCLOS, Arts. 305-307.
166 UNCLOS, Annex VI, Article 20(1).
167 5 United Nations Convention on the Law of the Sea 1982: A Commentary 374-375
(Myron H. Nordquist ed., 1989).
168 UN Convention on the Law of the Sea, Articles 187-188; Statute of ITLOS, Articles 14,
35-40; J.G. Merrills, International Dispute Settlement 173 (2nd ed. 1991).
has incurred liability.169 Some of the disputes referred to in UNCLOS Part XI that
come within the jurisdiction of the Sea-Bed Chamber may thus involve States,
international institutions or private natural or juridical persons.170 Conse-
quently, Article 20(2) of the ITLOS Statute provides that the Tribunal is open to
entities other than State Parties in any case expressly provided for in Part XI or
in any case submitted pursuant to any other agreement conferring jurisdiction on
the Tribunal which is accepted by all the parties to that case.171 Thus, there is no
limit on such entities, provided they are specied in the agreement by which all
the parties to a case have accepted the jurisdiction of the Tribunal.172 As an alter-
native to the ITLOS, disputes concerning the interpretation or application of a
relevant contract or a plan of work may be submitted to a binding commercial
arbitration at the request of any party to a dispute.173 The 1994 Agreement Relat-
ing to the Implementation of Part XI does not aect the structure of the Part XI
dispute settlement mechanisms.174
Unlike in the ICSID, the sponsoring State is not completely excluded from
proceedings involving natural or juridical persons. In the case of disputes involv-
ing such persons, the sponsoring State is to be notied and has the right to partic-
ipate in the proceedings.175 Moreover, if the action is brought by a private person,
the respondent State may request the sponsoring State to appear in the proceed-
ings on behalf of that person. If such a request is not honored, the respondent
State may arrange to be represented by a juridical person of its own nationality.176
This procedure diers from diplomatic protection. As Adede observes, the spon-
soring State appears on behalf of the private person and not to vindicate its own
rights. This constitutes a procedural device which emerged as part of a continued
reluctance of States to be sued directly in an international forum by natural or
juridical persons.177
Under Article 292 of UNCLOS, an application to the ITLOS for the prompt
release of a vessel may be made only by or on behalf of the ag State of the ves-
169 UNCLOS, Article 187.

170 John E. Noyes, The Third-Party Dispute Settlement Provisions of the 1982 United Na-
tions Convention on the Law of the Sea: Implications for State Parties and for Non-
parties, in Entry into Force of the Law of the Sea Convention 213, 223 (Myron H.
Nordquist and John Norton Moore eds., 1995); See also Bernard H. Oxman, Hu-
man Rights and the United Nations Convention on the Law of the Sea, 36 Colum. J.
Transnatl L. 399 (1997).
171 UNCLOS, Annex VI, Article 20(2).
172 5 United Nations Convention on the Law of the Sea 1982: A Commentary, supra note
167, at 374-375; see also Merrills, supra note 168, at 172.
173 UNCLOS, Article 187(c)(i), referred to in Article 188 (2).
174 Noyes, supra note 170, at 222.
177 A.O. Adede, The System for Settlement of Disputes Under the United Nations Con-
vention on the Law of the Sea: A Drafting History and a Commentary 275 (1987).
332 Chapter 5
sel.178 An earlier draft of this provision which would have allowed individuals,
namely, the owner or operator of the vessel, or a member of the crew or a pas-
senger of the vessel,179 to bring a complaint regarding the detention directly to the
Tribunal met with strong resistance from some coastal States and other States
hostile to granting individuals access to international fora.180 Article 292 leaves to
the State the authority to determine who may bring a case before the Tribunal on
its behalf. Under the ITLOS Rules, an application for a prompt release on behalf
of the ag State must be accompanied by authorization from the State unless the
author has previously been identied by the State as competent to submit appli-
cations.181 The rst application for prompt release182 was made on behalf of Saint
Vincent and the Grenadines and was accompanied by the appropriate authoriza-
tion.183
ii) The European Court of Justice and Court of First Instance

Natural and legal persons have both direct and indirect access to the Court of
First Instance and to the European Court of Justice.184 Since August 1993, all cases
led by natural or legal persons against the Community must be brought rst to
the Court of First Instance.185 The Court of Justice acts as an appellate court186 and
retains original jurisdiction over preliminary rulings.187
Under Article 236 of the EC Treaty, the Court of First Instance has jurisdic-
tion over actions by employees of Community institutions who have complaints
regarding their employment.188 Although sta cases are a very specialized area of
the EC law, they have a special human interest and importance, since they are

179 5 United Nations Convention on the Law of the Sea 1982: A Commentary, supra note
167, at 67.
180 Id., at 70.
181 Rules of the Tribunal, International Tribunal for the Law of the Sea, available at
<http://www.un.org/Depts/los/rules_e.htm>, Art. 110(3).
182 Bernard H. Oxman, The M/V Saiga (Saint Vincent and the Grenadines v. Guinea),
ITLOS Case No. 1 <http://www.un.org/Depts/los/judg_1htm>. International Tribu-
nal for the Law of the Sea, December 4, 1997, 92 Am. J. Intl L. 278 (1998).
183 Id., at 278 n. 2.
184 See L. Neville Brown and Tom Kennedy, The Court of Justice of the European Com-
munities 179 (4th ed., 1994). See generally Paul Craig & Grinne de Brca, EU Law
(2003).
185 Id., at 75-76.
186 Id., at 70.
187 Treaty Establishing the European Community, signed March 25, 1957, as amended,
Article 225 (ex Article 168a).
188 EC Treaty, Article 236 (ex Article 179). Jurisdiction was transferred from the Court
of Justice to the Court of First Instance in 1989 by a decision of the Council under
Article 225 (ex Article 168a), Council Decision 88/591/ECSC, EEC, Euratom of 24
October 1988 establishing a Court of First Instance of the European Community.
virtually the only cases where a private individual (as distinct from a legal person)
goes directly to the Court.189
Legal and natural persons may bring disputes directly to the Court of First
Instance through an action for annulment under Article 230 of the EC Treaty,
challenging the legality of a decision adopted by the Community.190 But standing
requirements are stringent.191 A contested decision must be of direct and indi-
vidual concern to the person instituting the proceeding.192 Typically, such cases
implicate decisions of the Commission in the eld of competition law and anti-
dumping regulations of the Council.193 The ECJ has declined to broaden the locus
standi to include other elds such as environmental protection.194
In contrast, Member States, the Commission or the Council may challenge
any binding act of Community institutions without having to satisfy any further
admissibility requirements.195 Subject to a number of standing requirements, any
natural or legal person may complain to the Court against an Institution of the
Community under Article 232 of the EC, challenging its failure to act as required
by the Treaty.196
Natural and legal persons may also bring actions for damages to the Court of
First Instance. The Court has jurisdiction over disputes relating to non-contrac-
tual liability arising from damage caused by Community institutions or their ser-
vants.197 Such actions are no longer dependent on a prior ruling on annulment.198
If the claim is for compensation arising from a decision by an institution of the
Community, the Court must nd that the measure is illegal, but does not need to
examine the gravity of the illegality. In the case of Community regulations, how-
ever, the Court requires that the illegality be a suciently agrant violation of a
superior rule of law for the protection of the individual.199 Few complaints have
189 Brown and Kennedy, supra note 184, at 181.

190 EC Treaty, Article 230 (ex Article 173).
191 Brown and Kennedy, supra note 184, at 134 (noting that it is extremely dicult for
an individual or company to satisfy the direct and individual concern test); Albertina
Albors-Llorens, Private Parties in European Community Law: Challenging Commu-
nity Measures 8 (1996) (calling the locus standi conditions that a person must meet
before bringing an action for annulment draconian).
193 Brown and Kennedy, supra note 184, at 134-135.
194 Stichting Greenpeace Council (Greenpeace International ) and Others v. Commission
of the European Communities, European Court of Justice, Case C-321/95 P, Judgment
of 2 April 1998, ECR I-1651, paras. 27-31.
195 Albors-Llorens, supra note 191, at 16.
196 EC Treaty, Article 232 (ex Article 175). Albors-Llorens, supra note 191, at 213.
197 EC Treaty, Articles 235 and 288 (ex Articles 178 and 215).
198 Aktien-Zuckerfabrik Schppenstedt v. Council, Case 5/71, 1971 (Part II) ECR 975, 983;
Albors-Llorens, supra note 191, at 205.
199 Aktien-Zuckerfabrik Schppenstedt, supra note 198, at 984; Albors-Llorens supra
note 191, at 205.
334 Chapter 5
been able to satisfy such an exacting requirement. The Court has thus taken a
very restrictive approach in the access of non-privileged applicants to the action
for annulment and to the action for damages.200
A claim by a natural or legal person on a matter pertaining to Community
law may be indirectly brought before the Court of Justice via a preliminary ruling.
Under Article 234 of the EC Treaty, a national court may request the Court of
Justice to give a preliminary ruling on a matter of Community law if a decision on
the question is necessary to enable [the national court] to give judgment,201 i.e.,
when there is no remedy under national law against the decision of the national
court, for example, if it was a decision of the highest court.202 A national court
may request a preliminary ruling on matters such as the interpretation of the EC
Treaty or the validity and interpretation of acts of the institutions of the Commu-
nity and of the [European Central Bank].203 The decision to refer is made by the
national court alone; the Court of Justice must accept a reference from a national
court.204 The mechanism of a preliminary ruling on matters of Community law
provides an indirect means for individuals to come before the Court and secure
their rights under Community law. The claimed rights are derived from Commu-
nity law, but the remedy is provided through the national courts.
The preliminary ruling has proved a particularly eective means of securing rights
claimed under Community law [...]. The right is claimed under Community law, de-
spite the absence of any provision of national law, or in opposition to national law.
The remedy is before the national court, but the scope of the right is determined by
the Court of Justice.205
Persons who would not be able to meet the standing requirements for an action
for annulment may thus obtain, albeit indirectly, a review of the legality of a Com-
munity act through a preliminary ruling: 206
The case law of the European Court provides plentiful examples of cases where pre-
liminary references from national courts have allowed individuals and undertakings
to obtain a ruling on the validity of EC regulations and decisions that they could not
200 Albors-Llorens, supra note 191, at 206.

202 EC Treaty, Article 234 (ex Article 177); Brown and Kennedy, supra note 184, at
213-215.
204 Costa v. ENEL, Case 6/64, 1964 ECR 585, 592-593; Brown and Kennedy, supra note
184, at 202.
205 Brown and Kennedy, supra note 184, at 193-94.
206 Albors-Llorens, supra note 191, at 177-78.
possibly have challenged by means of a direct action before the European Court, ow-
ing to their lack of locus standi.207
The Charter of Fundamental Rights of the European Union (2002) provides for
important civil, political, as well as social and labor rights. Addressed to the insti-
tutions and bodies of the Union, it concerns member States only in the context of
implementation of Union law (Article 51). It grants any citizen of the Union and
any natural or legal person residing or having its registered oce in a member
State the right of access to European Parliament, Council and Commission docu-
ments (Article 42), access to an ombudsman (Article 43), and the right to petition
the Parliament (Article 44). The legal status of the Charter is still not altogether
clear and is expected to be resolved only in 2004.
e) International Claims Tribunals

Claims commissions or tribunals established since the mid-19th century have often
adjudicated individual claims. Conceptually close to an institutionalized mecha-
nism of diplomatic protection, such tribunals normally allowed governments, but
not individuals to present claims directly to the tribunal.208 Some recently estab-
lished claims tribunals have tended to allow individuals to play a greater role.
i) Iran-United States Claims Tribunal

The Iran-United States Claims Tribunal was created in 1981 as one of the com-
ponents of the complex negotiations that resolved the hostage crisis and the sei-
zure of Iranian assets by the United States.209 It has jurisdiction over claims of
nationals of the United States against Iran and the claims of nationals of Iran
against the United States.210 The term national encompasses a natural person
who is a citizen of either Iran or the United States as well as a corporation or
other legal entity which is organized under the laws of Iran or the United States
... if collectively, natural persons who are citizens of such country hold, directly
or indirectly, an interest in such corporation or entity equivalent to fty percent
207 Id., at 186.

208 See for instance Claims Convention between Mexico and the United States, 4 July
1868, reprinted in 137 The Consolidated Treaty Series 331 (Clive Parry ed., 1976); Gen-
eral Claims Convention, signed at Washington 8 September 1923, US Treaty Series
No. 678.
209 Charles N. Brower, The Lessons of the Iran-U.S. Claims Tribunal Applied to Claims
Against Iraq, in The United Nations Claims Commission: 13th Annual Sokol Collo-
quium 15 (Richard B. Lillich ed., 1995).
210 Declaration of the Government of the Democratic and Popular Republic of Alge-
ria Concerning the Settlement of Claims by the Government of the United States of
America and the Government of the Islamic Republic of Iran, done January 19, 1981,
reprinted in 1 Iran-United States Claims Tribunal Reports 9 (1983) (Claims Settle-
ment Declaration), Article II(1).
336 Chapter 5
or more of its capital stock.211 The Tribunal also has jurisdiction over ocial
claims of the United States and Iran against each other arising out of contractual
arrangements between them,212 and over any dispute as to the interpretation or
performance of any provision of that Declaration.213 But it does not have jurisdic-
tion over claims brought by either Iran or the United States against a national of
the other State.214
The vast majority of claims before the Tribunal have been brought by natural
and juridical persons. Charles Brower has noted that of the claims of nationals,
those by corporations have fared much better than those by individuals.215 Most
of the small claims were settled by a lump-sum payment in 1990.216
Nationality requirements are imposed not on the claimants but on the
claims.217 Under Article VII(2) of the Claims Settlement Agreement, a claim must
have been owned continuously by nationals of the United States or Iran from
the date on which the claim arose until January 19, 1981 (the date the settlement
agreement entered into force).218 Thus, departing from the general rules on the
continuous nationality of claims, the Tribunal has jurisdiction over a claim that
was owned by a person or entity who was not a national of either the United States
or Iran at the time of ling, provided that it was owned by a national of either the
United States or Iran during the time period specied by Article VII(2).219
Claimants may present their claims directly to the Tribunal if their claims
are for US 250,000 or more. Claims for less than US 250,000 are submitted to
the Tribunal by the claimants government.220 Because of this requirement, com-
mentators are split as to whether a claim is owned by the individuals themselves
or by the States through the mechanism of diplomatic protection. Arguing that
the claims are owned by individuals, David Caron points to a statement by the full
tribunal that the object and purpose of the Algiers Declaration was to resolve a
crisis in relations between Iran and the United States, not to extend diplomatic
protection in the normal sense.221 Moreover, the exhaustion of local remedies, a
211 Claims Settlement Declaration, id., Article VII(1).

212 Claims Settlement Declaration, id., Article II(2).
213 Claims Settlement Declaration, id., Article II(3).
214 George H. Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal 80
(1996).
215 Brower, supra note 209, at 19.
216 Id., at 20.
217 Aldrich, supra note 214, at 45.
218 Claims Settlement Declaration, supra note 211, Article VII(2).
219 Aldrich, supra note 214, at 45.
220 Claims Settlement Declaration, supra note 210, Article III(3).
221 David D. Caron, The Nature of the Iran-United States Claims Tribunal and the Evolv-
ing Structure of International Dispute Resolution, 84 Am. J. Intl L. 104, 132 (1990),
quoting Islamic Republic of Iran United States, Case No. A/18, April 6, 1984, re-
printed in 5 Iran-U.S. Claims Tribunal Reports 251, 261 (1984 -I).
classic requirement for diplomatic protection, is not applicable to claims of na-

tionals.222 Further proof that nationals and not the State control individual claims
is that nationals le and argue claims before the Tribunal as well as decide wheth-
er to withdraw their claims or accept a settlement.223 On the other hand, David
Bederman has cautioned that [t]he terms of a claims settlement instrument can
alter some aspects of procedures typical of diplomatic protection without the in-
stitution losing its character as an international claims tribunal.224 He rightly ar-
gues that diplomatic protection certainly played a role in the settlement of small
claims by a lump-sum payment in May 1990.225
ii) The United Nations Compensation Commission

The United Nations Compensation Commission (UNCC) was established by the
Security Council to review and award claims against the Government of Iraq for
damages arising out of the invasion of Kuwait.226 The Commission consists of a
Secretariat, a Governing Council, and Commissioners.227 Rather than acting as a
tribunal or a court, the Commission is a political organ that performs an essen-
tially fact-nding function of examining claims, verifying their validity, evaluating
losses, assessing payments and resolving disputed claims.228
Access of non-governmental actors to the UNCC is limited. As a general
rule, only governments and inter-governmental organizations may submit claims
directly to the UNCC.229 International organizations may submit claims only on
their own behalf.230 A government may submit claims on behalf of its nationals,
residents in its territories, and corporations and other entities organized under
222 Caron, id., at 133-34.

223 Id., at 134-35.
224 David J. Bederman, Eligible Claimants Before the Iran United States Claims Tri-
bunal, in The Iran United States Claims Tribunal: Its Contribution To The Law Of
State Responsibility 58 (Richard B. Lillich and Daniel B. Magraw eds., 1998).
225 Id., at 59.
226 Security Council Resolution 687 (Apr. 8, 1991), UN Doc. S/RES/687, paras.16, 18, and
19. See also Resolution 692 (May 20, 1991), UN Doc. S/RES/0692.
227 See Michael F. Raboin, The Provisional Rules for Claims Procedure of the United Na-
tions Compensation Commission: A Practical Approach to Mass Claims Processing, in
The United Nations Compensation Commission: Thirteenth Sokol Colloquium 119,
120 (Richard B. Lillich ed., 1995).
228 Christopher S. Gibson, Mass Claims Processing: Techniques for Processing Over
400,000 Claims for Individual Loss at the United Nations Compensation Commission,
in The United Nations Compensation Commission: Thirteenth Sokol Colloquium
155, 158 (Richard B. Lillich ed., 1995), quoting Report of the Secretary-General Pursu-
ant to Paragraph 19 of the Security Council Resolution 687, UN Doc. S/22559 (1991).
229 Provisional Rules for Claims Procedure, UN Doc. S/AC.26/1992/10, Annex (Provi-
sional Rules), Article 5(1).
230 Provisional Rules for Claims Procedure, id., Article 5(1)(d).
338 Chapter 5
its laws.231 Allowing States to submit claims on behalf of residents in addition to

nationals is a departure from the traditional principles governing diplomatic pro-
tection and espousal.232 Corporations or other private legal entities may submit
their claims directly to the UNCC if the State which is supposed to submit their
claims fails to do so within a xed period.233 For some commentators, this fact
underscores ... that the Commission is not a form of traditional diplomatic pro-
tection.234 Finally, the Governing Council may appoint an appropriate person,
authority or body to submit claims on behalf of persons who are not in a posi-
tion to have their claims submitted by a Government.235 Thus, the UNCC Gov-
erning Council arranged to have several UN agencies submit claims under this
provision on behalf of Palestinians who had suered losses due to the invasion
of Kuwait.236 John Crook suggested that the eect of Article 5(2) is truly novel
because an instrumentality of the United Nations is acting to empower stateless
and other disadvantaged persons to make international claims.237
Because the Commission does not function on an adversarial model, in-
dividual claimants have only a limited opportunity to appear before a panel of
Commissioners. The procedure resembles an administrative rather than a judicial
process. The Secretariat makes a preliminary assessment of each claim, ensuring
that it meets the formal requirements established by the Governing Council.238
Claims or categories of claims are reviewed by the Commissioners. The value of
the losses suered is assessed and the Commissioners recommend compensation
awards to the Governing Council.239
For urgent claims,240 the provisional rules direct panels to make their de-
terminations based on materials submitted to them. No oral proceedings are
231 Provisional Rules for Claims Procedure, id., Article 5(1)(a) and (b).
232 John R. Crook, The United Nations Compensation Commission A New Structure to
Enforce State Responsibility, 87 Am. J. Intl L. 144, 149 (1993).
233 Provisional Rules for Claims Procedure, supra note 229, Article 5(3).
234 Crook, supra note 232, at 151.
235 Provisional Rules for Claims Procedure, supra note 229, Article 5(2).
236 Carlos Alzamora, The UN Compensation Commission: An Overview, in The United
Nations Compensation Commission: Thirteenth Sokol Colloquium, 3, 7 (Richard B.
Lillich ed., 1995).
237 Crook, supra note 232, at 150.
238 Provisional Rules for Claims Procedure, supra note 229, Article 14.
239 Provisional Rules for Claims Procedure, id., Articles 33-40(1). Article 40(1).
240 Urgent claims are: Individual claims for departure from Kuwait or Iraq (Category
A claims); individual claims for serious personal injury or death (Category B claims);
and individual claims for damages up to US 100,000 (Category C claims). See Crite-
ria for expedited processing of urgent claims, UN Doc. S/AC.26/1991/1 (1991). Other
categories of claims are: individual claims for damages above US 100,000 (Category
D claims); claims of corporations and other entities (Category E claims); and claims
of governments and international organizations (Category F claims). See Alzamora,
held, unless a panel determines that special circumstances so warrant.241 For

[u]nusually large or complex claims,242 the Provisional Rules provide that panels
may ask for written submissions and hold oral proceedings. In such cases, the
individual, corporation, Government, international organization or other entity
making the claim may present the case directly to the panel, and may be assisted
by an attorney or other representation of choice.243
In contrast to the US-Iran Claims Tribunal and other types of arbitral tri-
bunals which usually focus on corporate and governmental claims, the Commis-
sion initially focused its attention on resolving the claims of individual victims
of Iraqs invasion and occupation of Kuwait.244 The majority of individual claims
were given priority through an accelerated procedure while larger claims were
processed afterwards.245
f) Human Rights Monitoring Bodies

Both under European and the American human rights systems, individuals and
NGOs did not have direct access to the human rights courts, but only to the com-
missions (access to the European Commission was conditioned on the acceptance
by the State concerned of the right of individual petition). Only the Commission
or a State party could submit a case to the Court. The practice of the European
Court and Commission was modied by allowing the legal representatives of the
victims before the Court (at rst, victims were allowed to sit with the Commis-
sion, then they were allowed to le written statements, and nally, were permitted
to address the Court)246 and eventually were integrated in the proceedings.247 The
European system was rst signicantly modied by Protocol 9, which allowed in-
dividuals direct access to the Court (since superseded by Protocol 11).248 Protocol
11, which entered into force in 1998, completely reformed the European system.
Under this Protocol, individuals, non-governmental organizations and groups of
241 Provisional Rules for Claims Procedure, supra note 229, Article 37(c).
242 See Provisional Rules for Claims Procedure, id., Article 38 (d).
243 Id.
244 Robert C. OBrien, The Challenge of Verifying Corporate and Government Claims at
the United Nations Compensation Commission, 31 Cornell Intl L. J. 1, 3 (1998); See
also Alzamora, supra note 236 at 6; Brower, supra note 209, at 20-21.
245 See Status of Claims, available at <http://www.unog.ch/uncc/status.htm>; see also
Priority of Payment and Payment Mechanism: Guiding Principles, Decision taken by
the Governing Council of the United Nations Compensation Commission at its 41st
meeting, UN Doc. S/AC.26/Dec.17 (1994).
246 Sands, supra note 84, at 546.
247 Antnio Augusto Canado Trindade, The Consolidation of the Procedural Capacity of
Individuals in the Evolution of the International Protection of Human Rights: Present
State and Perspectives at the Turn of the Century, 30 Colum. Hum. Rts. L. Rev. 1, 17
(1998).
248 Eur. T.S. No 140.
340 Chapter 5
individuals are allowed to submit applications directly to the Court.249 A distinc-

tive feature of human rights organs is the elimination of any requirements regard-
ing the nationality of applicants or victims.
The Inter-American system may be moving in a direction similar to the Eu-
ropean system as regards direct access to the Court. [T]he legal representatives
of the victims have been integrated into the delegation of the Inter-American
Commission to the Court with the euphemistic designation of assistants to this
delegation.250 In 1996, judges of the Court began asking questions directed to the
representatives of the victims, whose briefs were presented to the Court.251 By the
end of that year, revised Rules of Procedures were adopted which provided that
at the reparations stage, the representatives of the victims or of their next of kin
may independently submit their own arguments and evidence.252 Under Article
35(4) of the 2002 Rules of Procedure of The American Court of Human Rights,
individuals have autonomous standing to participate in the Courts proceedings
in cases that have been submitted to it.
Under former Article 25 of the European Convention, prior to the entry into
force of Protocol No. 11, any person, non-governmental organization or group
of individuals who claimed to be a victim of a violation of the rights set forth in
the Convention could submit a petition to the European Commission on Human
Rights,253 alleging that he or she was a victim of a violation. Even in the case where
the applicant was a non-governmental organization or a group of individuals, the
organization or the group itself had to have been a victim of a violation.254 In
249 European Convention on Human Rights, Article 34. See also Thomas Buergenthal,
Dinah Shelton & David P. Stewart, International Human Rights in a Nutshell 149-68
(3rd ed. 2002).
250 Canado Trindade, supra note 247, at 21.
251 Id., at 23.
252 Rules of Procedures of the Inter-American Court of Human Rights, Article 23 (1977),
reprinted in Inter-American Court of Human Rights, 1996 Annual Report of the In-
ter-American Court of Human Rights 221, 229, OAS Doc. OAS/Ser.L/V/III.35, doc. 4
(1997); quoted in Canado Trindade, supra note 247, at 23, n.82. Regarding the 2002
rules, see Thomas Buergenthal et al. supra note 249, at 258.
253 Ex Article 25.
254 Martin A. Olz, Non-Governmental Organizations in Regional Human Rights Systems,
28 Colum. Hum. Rts. L. Rev. 307, 346 (1997) [A-83]; Asociacin de Aviadores de la
Repblica, Mata et al. v. Spain, App. No. 10733/84, 41 Eur. Commn H. R. Dec. & Rep.
211, 222 (1985) (holding that an applicant cannot claim to be the victim of a breach
of one of the rights or freedoms protected by the Convention unless there is a suf-
ciently direct connection between the applicant as such and the injury suered.)
[A-84]; Norris and Natl Gay Fedn v. Ireland, App. No. 10581.83, 44 Eur. Commn H.
R. Dec. & Rep. 132, 135 (1985). See also Marek Antoni Nowicki, NGOs before the Euro-
pean Commission and the Court of Human Rights, 14 Neth. Q. Hum. Rts. 289, 290-291
(1996) (footnotes discuss additional cases involving non-governmental applicants).
that regard, the entry into force of Protocol 11, which allows direct access to the
Court, did not alter the situation.255 Under the new Article 34 of the Convention:
The Court may receive applications from any person, non-governmental organisa-
tion or group of individuals claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in the Convention or the protocols
thereto.256
In contrast, the American Convention on Human Rights provides that:
Any person or group of persons, or any nongovernmental entity legally recognized in

one or more member States of the Organization, may lodge petitions with the Com-
mission containing denunciations or complaints of violation of this Convention by a
State Party.257
Thus, under the American system, any person or group may submit a petition to
the Inter-American Commission even without being a victim of a violation.258
The requirement of being a victim for standing purposes limits the ability of
NGOs to submit applications in the European system, even for NGOs dedicated
to the promotion of their members rights. Furthermore,
[n]ot each right of those protected by the Convention can, by its very nature, be in-
fringed with respect to a non-governmental organization. The extent to which the
non-governmental organization can invoke such a right must be determined in the
light of the specic nature of that right.259
Non-governmental organizations may, however, appear before the European

Court as amici curiae. Under Article 36(2) of the amended Convention, which is
modeled on an innovation made in the former Rules of Court in 1983,260 the Presi-
dent may invite any person concerned who is not the applicant to submit written
comments or take part in hearings.261
The African system of protection empowers the Commission to allow in-
dividuals and organizations to bring complaints to the African Commission on
255 See Council of Europe, Explanatory Report and Protocol No. 11 to the Convention
for the Protection of Human Rights and Fundamental Freedoms, Restructuring the
Control Machinery Established Thereby, para. 85, in 33 I.L.M. 943, 955 (1994).
256 European Convention on Human Rights, Article 34.
257 American Convention on Human Rights, Article 44.
258 See Canado Trindade, supra note 247.
259 Nowicki, supra note 254, at 291.
260 Rule 37(2) of the 1983 Rules of the Court.
261 Olz, supra note 254, at 347; see also Explanatory Report, supra note 255, at para. 91;
From 1983 to 1994, applications for amicus curiae were led in 33 cases; the Court
granted 22 of the motions, Nowicki, supra note 254, at 297.
342 Chapter 5
Human and Peoples Rights.262 Under the new Protocol establishing the African
Court on Human and Peoples Rights, a State may make a declaration accepting
that individuals or NGOs may institute cases directly before the Court.263 The
Court will have jurisdiction for complaints led by the Commission, States, and
African intergovernmental organizations without the need for special consent of
the State involved.264
The supervisory machinery established by the European Social Charter has
recently been reinforced by providing for a system of collective complaints. An
Additional Protocol allows NGOs to submit complaints alleging unsatisfactory
application of the Charter.265 Such NGOs include international organizations of
employers and trade unions, NGOs that have consultative status with the Council
of Europe and have been put on a list established for this purpose, and representa-
tive national organizations of employers and trade unions within the jurisdiction
of the Party against which the complaint is lodged. The complaint is addressed to
the Secretary General of the Council of Europe who transmits it to the Commit-
tee of Independent Experts. The Committee reports its conclusions to the Com-
mittee of Ministers and to the Parliamentary Assembly.266
Individuals have standing to bring complaints against States that have ac-
cepted the necessary treaties before the U.N. Human Rights Committee,267 the
Committee on the Elimination of Racial Discrimination,268 and the Committee
Against Torture.269 Individuals also have the right to bring complaints under the
new Optional Protocol to the Womens Convention.270
262 Revised Rules of Procedure of the African Commission on Human and Peoples
Rights, Rules 103-04; Articles 55-56 of the African Charter on Human and Peoples
Rights.
263 Protocol to the African Charter on Human and Peoples Rights on the Establishment
of an African Court on Human and Peoples Rights, Articles 5(3) and 34 (6), reprinted
in 6 African Yearbook of International Law 419 (1998).
264 Protocol to the African Charter, supra note 263, Article 5(1).
265 Additional Protocol to the European Social Charter Providing for a System of Collec-
tive Complaints, Strasbourg, 9 November 1995, Eur. T.S. No. 158, Article 1.
266 Additional Protocol to the European Social Charter Providing for a System of Collec-
tive Complaints, id., Articles 1-8.
267 Optional Protocol to the Political Covenant, GA Resolution 2200A(XXI), 21 UN
GOAR Suppl. No. 16, at 59, U.N. Doc. A/6316 (1966), Article 1.
268 International Convention on the Elimination of All Forms of Racial Discrimination,
GA Resolution 2106 (XX), 21 December 1965, UN GAOR, 20th Sess., Suppl. No. 14,
UN Doc. A /6014(1965), Article 14.
269 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, GA Resolution 39/46, Annex, UN GAOR, 39th Sess., Suppl. No. 51, at
197, UN Doc. A/39/15 (1984), Article 21.
270 Optional Protocol to the Convention on the Elimination of Discrimination Against
Women, GA Resolution A/54/4, Annex, 54 UN GAOR Supp. No. 49, at 5, UN Doc.
No. A/54/49 (Vol. I) (2000), entered into force December 22, 2000, Article 2.
None of the universal conventions provides for the right of organizations to

bring complaints as a group. However, in Bernard Ominayak, Chief of the Lubicon
Lake Band, the Human Rights Committee dealt with a claim under Article 27 of
the Political Covenant (minority rights) as a group complaint, or rather as a col-
lective complaint. The Committee rst held that it could not deal with the claim
to self-determination since that right is a group right and the Protocol gives the
Committee competence over individual rights only. Nevertheless, the Commit-
tee proceeded to examine claims under Article 27 on behalf of the Lubicon Lake
Band, a group of indigenous people of Canada.271 It held that Canada had violated
Article 27 through recent developments [that] threaten the way of life and cul-
ture of the Lubicon Lake Band ... .272
Victims may be represented before the treaty bodies by individuals or or-
ganizations. They are frequently represented by both before the Human Rights
Committee. The rules of procedure of the Committee on the Elimination of Racial
Discrimination explicitly provide for such a representation. Rule 91(b) states that
[a]s a general rule, the communication should be submitted by the individual
himself or by his relatives or designated representatives; the Committee may,
however, in exceptional cases accept to consider a communication submitted by
others on behalf of an alleged victim when it appears that the victim is unable to
submit the communication himself, and the author of the communication jus-
ties his acting on the victims behalf ... .273 The Torture Convention provides
explicitly that the Committee may receive communications from or on behalf of
individuals.274 Similarly, the Optional Protocol to the Convention on the Elimina-
tion of All Forms of Discrimination against Women allows communications by
or on behalf of individuals or groups of individuals.275
ECOSOC Resolution 1503 (1970) allows individuals and NGOs to present
communications to the Human Rights Commission, but the procedure does not
provide for the examination of individual complaints.276 Communications sub-
mitted are examined by a working group of the Sub-Commission on Prevention
of Discrimination and Protection of Minorities with a view to the bringing to the
271 See for the Human Rights Committee: Bernard Ominayak, Chief of the Lubicon Lake
Band v. Canada, Communication No. 167/1984, UN Doc. No A/45/40 (1990), paras
13.3-13.4. For similar tendencies, see also Lnsman et al. v. Finland, Communication
No. 511/1992, UN Doc. CCPR/C/52/D/511/1992 (1994). See for the Committee Against
Torture: X, Y, and Z v. Sweden, Communication No. 61/1996, UN Doc. CAT/C/20/
D/61/1996 (1998).
272 Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, id., para. 33.
273 Rules of Procedure of the Committee on the Elimination of Racial Discrimination,
Rule 91(b).
274 Torture Convention, supra note 269, Article 22(1); Rules of Procedure of the Com-
mittee Against Torture, Rule 107.
275 Optional Protocol to the Womens Convention, supra note 270, Article 2.
276 Economic and Social Council Resolution 1503 (XLVIII), UN ESCOR, 48th Sess., Sup-
pl. No. 1A, at 8 (UN Doc. E/4832/Add.1 (1970).
344 Chapter 5
attention of the Sub-Commission those communications which appear to reveal

a consistent pattern of gross and reliably attested violations of human rights and
fundamental freedoms.277 The Sub-Commission then considers whether to refer
those communications to the Commission on Human Rights. The Commission
can then decide if the situation requires further investigation. The procedure is
condential. Most communications under Resolution 1503 have been submitted
by NGOs.278
III. Non-Governmental Organizations

a) Role of NGOs in Law-making and Standard-setting Activities
NGOs have been gaining inuence in international law, especially in the areas of
human rights, humanitarian law, the environment, rights of indigenous peoples,
and, increasingly, in the globalization of trade and commerce.279 Of course, eorts
by NGO to inuence the development and enforcement of the international law
are not entirely new. They were involved in campaigns against slavery and the
trac in women and children from the mid-19th century. Recently, NGOs have
become prominent players in campaigns against anti-personnel land mines, for
an international criminal court, and for accountability of perpetrators of atroci-
ties before national and international tribunals and courts. With the increasing
penetration of international law into matters of importance to everybodys daily
life, there is little justication for complete exclusion of non-States from the par-
ticipatory process.280 The scope, nature, and benets of such participation, how-
ever, continue to be controversial.
The UN Charter empowered the Economic and Social Council to grant con-
sultative status to NGOs in matters within its competence, i.e., in matters of so-
cial and economic rights.281 The European Convention on the Recognition of the
Legal Personality of International Non-Governmental Organizations states in its
preamble that Member States recognize
that international non-governmental organizations carry out work of value to the

international community, particularly in the scientic, cultural, charitable, philan-
thropic, health and education elds, and that they contribute to the achievement of
277 Resolution 1503, id., para. 1.

278 Felix Ermacora, Non-governmental Organizations as Promoters of Human Rights, in
Protecting Human Rights: The European Dimension. Studies in Honor of Grard J.
Wiarda 171, 176 (Franz Matscher and Herbert Petzold eds., 1988).
279 Theo van Boven, The Role of Non-Governmental Organizations in International Hu-
man Rights Standard-Setting: A Prerequisite of Democracy, 20 Cal. W. Intl. L. J. 207,
221 (1989-90); Ermacora, supra note 278, at 173.
280 Sands, supra note 84, at 547-548.
281 UN Charter, Article 71.
the aims and principles of the United Nations Charter and the Statute of the Council
of Europe;282
But sensitive political issues such as peace and security were retained in the exclu-
sive domain of inter-State cooperation.283 The playing eld of NGOs has neverthe-
less been considerably expanded since,284 and they have been gaining inuence
also in the eld of peace and security.285
NGOs have made signicant contributions to the development, adoption
and acceptance of international standards. While continuing with their more
traditional role of lobbying political parties, parliaments and governments and
mobilizing public opinion, they have been monitoring and reporting on human
rights violations.286 They have performed an important role in providing data to
human rights bodies, a development acknowledged and encouraged by such bod-
ies.287 The role of NGOs as information providers is also recognized in the Statute
of the International Criminal Court. Under Article 15 of the ICC Statute,
The Prosecutor shall analyze the seriousness of the information received. For this
purpose, he or she may seek additional information from States, organs of the United
Nations, intergovernmental or non-governmental organizations, or other reliable
sources that he or she deems appropriate, and may receive written or oral testimony
at the seat of the Court.288
NGOs have been active intervenors in human rights procedures.289 They have
successfully mobilized governments to seek, through the competent organs, ad-
visory opinions of the International Court of Justice.290
NGOs have also played a greater role in the eld of standard-setting. Increas-
ingly, they have been demanding a say in the formation of international law291
282 European Convention on the Recognition of the Legal Personality of International

Non-Governmental Organizations, Strasbourg, 24 April 1986, Eur. T.S. No. 24, Pre-
amble.
283 Van Boven, supra note 279, 208.
284 Oscar Schachter, The Decline of the Nation-State and its Implications for Interna-
tional Law, 36 Colum. J. Transnatl L. 7, 13 (1997).
285 Report of the Secretary General on the Work of the Organization, UN Doc. A/44/1,
VII (1989), quoted in Van Boven, supra note 279, at 208.
286 Van Boven, supra note 279, at 207; Ermacora, supra note 278, at 173.
287 Report of the Human Rights Committee, UN GAOR, 49th Sess., Suppl. No. 40, at 84-
85, para. 437, UN Doc. A/49/40 (1994).
288 ICC Statute, Article 15(2).
289 Higgins, in The Reformation in International Law, supra note 68, at 214.
290 Id., at 215.
291 Id., at 215.
346 Chapter 5
and have provided the initial impetus for the adoption of new instruments.292 Al-
though no formal rules of procedure specically allow this practice, NGOs now
routinely present and circulate on the margins of international intergovernmen-
tal conferences, or through governmental delegations, drafting proposals in their
own name, usually at the working group level. This has been the case, for example,
with regard to drafts of the UN Convention against Torture293 and the UN Con-
vention on the Rights of the Child.294 In the framework of the Council of Europe,
NGOs have also been involved in the drafting of several conventions and char-
ters, including the European Convention on the Legal Status of Migrant Workers,
the European Convention for the Prevention of Torture, the European Cultural
Convention and the European Charter for Regional or Minority Languages.295
In a few instances, complete texts drawn up by NGOs have been adopted
by the UN General Assembly or used as the basis of future work in the Human
Rights Commission, and other bodies involved in standard-setting.296 The Prin-
ciples of Medical Ethics drawn up by the Council for International Organizations
of Medical Sciences (CIOMS) and the Declaration on the Protection of All Per-
sons from Enforced or Involuntary Disappearances prepared by the International
Commission of Jurists are important examples of this trend.297
NGOs, such as the International Commission of Jurists, have also drafted
important guidelines for the interpretation of existing instruments. The Siracusa
Principles (1984) (on derogations in times of emergency) and the Limburg Prin-
ciples (1986) (on the ESC Covenant) are useful examples. They were circulated
as UN documents and are referred to as authoritative sources. Useful normative
instruments have also been adopted by the International Law Association, as,
for example, the Paris Minimum Standards of Human Rights Norms in a State of
292 C.M. Eya Nchama, The Role of the Non-governmental Organizations in the Promo-
tion and Protection of Human Rights, in Bulletin of Human Rights, 90/1. I. Special
Procedures, II. The Role of Non-Governmental Organizations 50, 74-80 (Centre for
Human Rights, Geneva, 1991); Niall MacDermot, The Role of NGOs in Human Rights
Standard-Setting, in Bulletin of Human Rights 90/1, I. Special procedures, II. The
Role of Non-Governmental Organizations 42 (Centre for Human Rights, Geneva,
1991).
293 MacDermot, Bulletin of Human Rights 90/1, at 44.
294 Van Boven, supra note 279, at 218.
295 See Europe through its Associations, available at http://www.coe.fr./ong/ngo.htm
(visited on March 24, 2000); European Convention on the Legal Status of Migrant
Workers, Strasbourg, 24 November 1977, Eur. T.S. No. 93; European Convention for
the Prevention of Torture or Inhuman and Degrading Treatment or Punishment,
Strasbourg, 26 November 1987, Eur. T.S. No. 126; the European Cultural Convention,
Paris, 19 December 1954, Eur. T.S. No. 18; and the European Charter for Regional or
Minority Languages, Strasbourg, 5 November 1992, Eur. T.S. No. 148.
296 Van Boven, supra note 279, 218-219.
297 Id.
Emergency (1984) and the Declaration of Principles of International Law on Mass

Expulsion (1986).298
NGOs are eective vehicles for expressing concerns that are not adequately
represented by States.299 Some commentators have nonetheless expressed the
view that NGOs inuence in the eld of human rights may be diminishing with
the multiplication of procedures allowing individual access to international insti-
tutions.300
The increasing involvement of NGOs in international law can be seen as a
democratization of its formation process: What was previously done by States
alone would acquire a wider base of participants. With the increasing activities
and heightened prole of NGOs, however, concerns have been expressed about
NGOs transparency and accountability. Thriving on publicity, which in turn often
relies on controversy, NGOs tend to take a partisan view of issues, which militates
against compromise solutions. In some cases, these may be laudable qualities, in
others, less so. The inuence of NGOs on and participation in treaty-making and
standard setting processes could not have occurred without the growth in the role
of international organizations, which, as Jos Alvarez observes, have provided en-
try points for the NGOs. International organizations have expanded the diversity
of actors in treaty-making, benetting NGOs and other interest groups.301
In some intergovernmental conferences, including the Rome Conference for
the establishment of the ICC, NGOs have not only been participants in the ne-
gotiations, but some of their members have been a part of some governmental
delegations.302 Serge Sur is among those who have criticized these developments
by emphasizing that States, by renouncing their monopoly on inter-State nego-
tiations, have made themselves accountable to organizations with no recognized
legitimacy.303 He was particularly critical of those NGOs
qui se bornent des postures normatives, aspirent devenir des partis politiques
internationaux, sans lgitimit, sans racines et sans contrle, et dveloppent une
diplomatie parallle, qui interfre avec les diplomaties tatiques, sans aucune base
dmocratique.304
Oscar Schachter has warned that [t]he widespread approbation of civil society
associations ... tends to obscure their diversity and conicting ends, and argued
298 Id., at 219-220.

299 Hobe, supra note 70, at 130-31.
300 Ermacora, supra note 278, at 174.
301 Id.
302 Serge Sur, Vers une cour pnale internationale: La Convention de Rome entre les
ONG et le Conseil de scurit, 101 Revue gnrale de droit international public 29, 36
(1999).
303 Id., at 36-37.
304 Id., at 36.
348 Chapter 5
that to expect that the common good will usually emerge simply from the clash
of competing interest groups is hardly realistic. In the real world, we have to look
to the State in the nal analysis to resolve such conicts on the basis of public
principles of justice and the common good.305
b) NGO access to International Institutions

Under Article 71 of the UN Charter, the consultative status of NGOs is limited
to questions within the competence of the ECOSOC. The Charter does not al-
low NGOs to address the General Assembly or its committees, nor the Security
Council. ECOSOC Resolution 1996/31 gives NGOs a status as observers and al-
lows them to make oral and written statements to the Council and its commit-
tees.306 As stated in this resolution, the purposes of consultative arrangements
are:
on the one hand, ... enabling the Council or one of its bodies to secure expert infor-
mation or advice from organizations having special competence in the subjects for
which consultative arrangements are made, and, on the other hand, to enable inter-
national, regional, sub-regional and national organizations that represent important
elements of public opinion to express their views.307
Also within the framework of the Council of Europe, a system of consultative

relationships with NGOs has been established. Consultative status is governed
by Resolution 93 (38) and is based on the need for the information NGOs can
provide in their own elds of competence. The Resolution also allows direct rep-
resentation for these organizations.308
Cooperation between the dierent bodies of the Council of Europe and
NGOs covers a wide-range of activities, including North-South dialogue, gender
equality, social rights, health, human rights and the environment. The Council
has created a permanent structure for cooperation with international NGOs. A
Plenary Conference of NGOs, which meets annually, sets the objectives for its
Liaison Committee. This committee liaises with departments of the Secretariat of
the Council, monitors sectoral NGO meetings, and encourages NGOs to cooper-
ate with the Council.309

306 ECOSOC Resolution 1996/31, para. 37(f ).
307 ECOSOC Resolution 1996/31, para. 20.
308 Council of Europe, Committee of Ministers Resolution (93) 38, paras.2, 4 and 5.
309 See Europe through its Associations, supra note 295.
IV. Indigenous Peoples

With the development of an indigenous peoples movement and the multiplication
of indigenous peoples organizations,310 the concept of indigenous peoples has
been gaining currency. While still controversial in some quarters, the recognition
of a distinct concept of indigenous peoples has been justied by the destruction
of their previous territorial entitlements and political autonomy wrought by his-
toric circumstances of invasion and colonization.311 Many claims by indigenous
peoples may be seen as human rights or minority rights. Some distinctive ele-
ments of indigenous claims have nonetheless been identied:
[T]he central importance of land and territory to group identity and culture; the
emerging view of self-determination in relation to indigenous peoples as referring
more often to autonomy and control of the groups own destiny and development
than to formation of independent States; the development of norms concerning par-
ticipation by the group and its members in decisions aecting them; and the increas-
ing support for self-identication as a basis of group denition.312
Indigenous rights have been framed in dierent conceptual structures: hu-

man rights and non-discrimination claims, minority claims,313 self-determina-
tion claims, historic sovereignty claims, and claims as indigenous peoples (sui
generis).314 While the human rights approach has often been the preferred way to
address indigenous issues, some commentators, and particularly Benedict Kings-
bury, have suggested that additional or alternative concepts are needed to address
issues that go beyond individual rights and non-discrimination, and are focused
on distinct histories, cultures and identities and thus on sui generis claims of in-
digenous peoples.315 In terms of human rights, the most important application
310 Benedict Kingsbury, Indigenous Peoples in International Law: A Constructivist Ap-

proach to the Asian Controversy, 92 Am. J. Intl L. 414, 421 (1998) ; Robert K. Hitch-
cock, International Human Rights, the Environment, and Indigenous Peoples, 5 Colo.
J. Intl Envtl. L. & Poly 1, 10 (1994).
311 Kingsbury, supra note 310, at 419.
312 Id., at 437.
313 The trend to recognize and protect minority rights in recent times is exemplied by
the General Assembly Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities, UN General Assembly Resolution 47/135
(1992); the Council of Europe Framework Convention for the Protection of National
Minorities, Eur. T.S. No. 157 (1995); and the establishment of a High Commissioner
on National Minorities in the framework of the OSCE, The Challenges for Change,
Helsinki Document, Part II (1992).
314 Benedict Kingsbury, Reconciling Five Competing Conceptual Structures of Indigenous
Peoples Claims in International and Comparative Law, 34 NYU J. INTL L. & Pol.189
(2001).
315 Id., at 205.
350 Chapter 5
of Article 27 of the Political Covenant has been the recognition that the failure
of a State to protect indigenous land and resources amounts to a violation of the
cultural rights of a minority group. In practice, tribunals have tended to recognize
the sui generis character of indigenous claims and have gone beyond standard
minority rights provisions.316
The concept of indigenous peoples as a distinct collectivity has been resisted
by some States as a potential challenge to the unity of the State. But States at-
titudes are changing with several governments endorsing a concept of indig-
enous peoples, and an increasing acceptance of principles for relationships with
indigenous peoples that incorporate elements of self-determination.317 In the pre-
amble of the 1957 ILO Convention No. 107, the General Conference of the ILO
considered that
the adoption of general international standards on the subject will facilitate action
to assure the protection of the populations concerned, their progressive integration
into their respective national communities, and the improvement of their living and
working conditions.318
The ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Inde-
pendent Countries, by contrast, (1989) illustrates the more recent trend to grant
ethnically distinct groups a degree of political and economic autonomy within
existing State boundaries.319 The Convention recognizes the aspirations of these
peoples to exercise control over their own institutions, ways of life and economic
development and to maintain and develop their identities, languages and reli-
gions, within the framework of the States in which they live.320
There is no accepted denition of indigenous peoples.321 One denition
may be found in the World Banks Operational Directive on Indigenous Peoples:
The terms indigenous peoples, indigenous ethnic minorities, tribal groups, and
scheduled tribes describe social groups with a social and cultural identity distinct
from the dominant society that makes them vulnerable to being disadvantaged in the
development process ...
316 Id., at 214.

317 Kingsbury, Reconciling Five Competing Conceptual Structures of Indigenous Peoples
Claims in International and Comparative Law, supra note 314, at (229).
318 Convention concerning the Protection and Integration of Indigenous and Other
Tribal and Semi-Tribal Populations in Independent Countries, ILO Convention No.
107, Geneva, 26 June 1957, Preamble.
319 Hitchcock, supra note 310, at 11.
320 Convention No. 169 concerning Indigenous and Tribal Peoples in Independent
Countries, 27 June 1989, in force 5 September 1991, III International Labor Conven-
tions and Recommendations 324 (International Labor Organization, 1996), reprinted
in 28 I.L.M. 1382 (1989), Preamble.
321 Hitchcock, supra note 310, at 2.
Because of the varied and changing contexts in which indigenous peoples are found,
no single denition can capture their diversity. Indigenous people are commonly
among the poorest segments of a population. They engage in economic activities that
range from shifting agriculture in or near forests to wage labor or even small-scale
market-oriented activities. Indigenous peoples can be identied in particular geo-
graphical areas by the presence in varying degrees of the following characteristics:
(a) a close attachment to ancestral territories and to the natural resources in these
areas;
(b) self-identication and identication by others as members of a distinct cultural
group;
(c) an indigenous language, often dierent from the national language;
(d) presence of customary social and political institutions; and
(e) primarily subsistence-oriented production.322
Despite the continuing controversy regarding the denitions of indigenous peo-

ples,323
[t]he concept of indigenous peoples, or its local cognates, has become an important
unifying connection in transnational activist networks, linking groups that were hith-
erto marginal and politically unorganized to transnational sources of ideas, informa-
tion, support, legitimacy and money.324
The recent trend is towards giving greater weight to self-identication. This runs
counter to the traditional view of indigenous peoples as objects of international
law, to be dened either by criteria formulated by States or through recognition
by States.325 The proposed American Declaration on the Rights of Indigenous
Peoples, drafted by the Inter-American Commission on Human Rights, provides
that [s]elf-identication as indigenous shall be regarded as a fundamental crite-
rion for determining peoples to which the provisions of this Declaration apply.326
A similar provision is found in the 1989 ILO Convention No. 169.327
Benedict Kingsbury has warned that, in contrast to NGOs, whose member-
ship for the most part is based on voluntarism and individual choice, the mem-
bership of indigenous groups may be ascriptive. It may depend on birth, and
322 World Bank, Operational Directive on Indigenous Peoples, OD 4.20, September 1991,
paras 3-5.
323 Kingsbury, Indigenous Peoples in International Law: A Constructivist Approach to
the Asian Controversy, supra note 310, 416-417.
324 Id., at 416-417, Opposition to the application to people of the concept of indigenous
people has been made by China, India, Bangladesh, Myanmar and parts of Indone-
sia.
325 Kingsbury, supra note 310, at 440-441.
326 Proposed American Declaration on the Rights of Indigenous Peoples, Doc. OEA/
Ser/L/V/.II.95, Doc. 6, Article 1(2) (1997).
327 Article 1 (2).
352 Chapter 5
members of the group who wish to detach themselves from it may pay a steep
price in terms of identity and access to resources and governance structures. 328
The composition of the Arctic Council illustrates the expanded role that in-
digenous peoples are coming to play in the management and protection of the
areas where they live. The Arctic Council was established in 1996 between the
eight States bordering the Arctic Ocean329
[to] provide a means for promoting cooperation, coordination and interaction among
the Arctic States, with the involvement of the Arctic indigenous communities and
other Arctic inhabitants on common Arctic issues, in particular issues of sustainable
development and environmental protection in the Arctic.330
The Council includes two categories of participants: Members (States) and Per-
manent Participants.331
C. Conclusions
Classical international law holds that States are the principal and the typical sub-
jects of international law: they possess the totality of the rights of international
legal persons. Among these rights, the principal one is sovereignty, which Louis
Henkin separates into such factors as independence, equality, autonomy and ter-
ritorial integrity.332 Applying more traditional rubrics, one can observe that indi-
viduals cannot make treaties, acquire territory, or (except perhaps in groups of
insurgents or belligerents), make war, or, absent special arrangements, sue States
before international tribunals.333 However, as rst authoritatively pronounced in
the Advisory Opinion of the PCIJ on the Jurisdiction of the Courts of Danzig,
States may grant individuals direct rights by treaty.334
Responding to the developing needs of the international community, inter-
national law may create new subjects endowed with varying legal personality, and
various rights, obligations and attributes, a development recognized within the
United Nations Organization by the ICJ in the Advisory Opinion on Reparation
for Injuries Suered in the Service of the United Nations.335 Subjects of internation-
328 Benedict Kingsbury, The Democratic Accountability of Non-Governmental Organi-

zations, 3 Chic. J. Intl L. 183, 187 (2002).
329 Canada, Denmark, Finland, Iceland, Norway, the Russian Federation, Sweden and the
United States.
330 Joint Communiqu and Declaration on the Establishment of the Arctic Council, 19
September 1996, para. 1 (a), reprinted in 35 I.L.M. 1386.
331 Id., para. 2.
332 Louis Henkin, International Law: Politics, Values and Functions 26-28 (1990).
333 David J. Bederman, International Law Frameworks 78 (2001).
334 P.C.I.J., Ser. B, No. 15, at 17.
335 1949 I.C.J., at 178-80.
al law, therefore, need not always have identical rights and obligations. Increas-
ingly, territorial and political entities other than States, have been granted limited
international personality, including, in some cases, the possibility of becoming
parties to treaties and participating in international organizations. Indeed, Robert
Jennings and Arthur Watts argue that to the extent that States treat individuals
as endowed directly with international rights and duties, they constitute those
individuals as subjects of international law.336
We have seen the immense changes that have occurred in the rights and obli-
gations actually granted to individuals and exercised by them, as demonstrated by
their access to international institutions and tribunals, their participation, albeit
indirect, in norm-making, their ability to be involved in protecting their invest-
ments, their access to institutions established by treaties for the protection of the
environment, their being the subjects of duties under international criminal and
humanitarian law, and so on. Under the inuence of human rights law, rights have
been granted to individuals, and more than ever before it has been recognized
that international law exists for individuals and functions on their behalf. We have
discussed the increasing access of private companies and even natural persons to
decision-making bodies under various investment treaties. These developments
do not necessarily stem from a human rights analysis, but from the changing re-
alities of international business organization and investment. Nevertheless, these
developments contribute to the panorama in which non-State actors, including
individuals, are important and often independent participants.
For these reasons, I am sympathetic to the suggestion made by Rosalyn Hig-
gins that instead of continuing the sterile debate as to whether individuals are or
are not subjects or objects of international law, our conversation should turn to
individuals as participants in the system of international law.
David Bederman argues that as international legal actors have diversied
and the topics of international legal regulation have expanded, the distinction
between subjects and objects of international law has blurred. 337 He believes
that the debate whether individuals can only be given rights by States, which
pits natural and positive sources of international law is to a large extent irrelevant
today. The fact is that persons do have rights under international law.338
The debate, however, continues unabated. How we see individuals in this
debate depends on whether primacy is given to the evolution and the increas-
ing participation of individuals in the process, or to the formal legal structure.
On the one side, Jenning and Watts would grant individuals limited international
personality based on their direct international rights and duties. On the other
side, while fully recognizing the increasing participation and the rights and obli-
gations of individuals under international law in general and under human rights
law in particular, Prosper Weil emphasizes that these developments result from
337 Bederman, supra note 333, at 50.
338 Id. at 77-78.
354 Chapter 5
the operation of inter-State rules of conventional and customary law. In his view,
international law, including the human dimension of the Helsinki process, con-
tinues to be an inter-State aair: It is still States that create and apply the rules.
The enlargement of individual rights and obligations and the intensication of
individual participation in the system do not amount to a fundamental change in
the inter-State nature of international law. Individuals are thus nothing more than
objects of international law who do not participate directly in the creation of the
norms.339 A similar opinion has more recently been expressed by Duncan Hollis,
who observes:
By treaty or by practice, it is States whose conduct determines the rules of interna-

tional law. What has changed is that in the formation, implementation, and even the
enforcement of international law, States have opened the door to allow others some
limited level of international sovereignty. Modern States recognize the ability of other
actors to have rights and duties on the international plane, a status that, while cer-
tainly not equal to States, is sucient for those actors to participate. 340
He concludes that States continue to have the authority to determine who else
may participate341 in the process of creation, implementation and enforcement of
international law.
There is a nexus, however, between the quantitative development and the
legal structure. We may be reaching a situation in which it would become impos-
sible and impractical for States to abrogate the rights and the duties that indi-
viduals or other non-State actors have learned to exercise and to enjoy. There is a
growing consensus that the status of the individual in international law is being
transformed from a mere object to a subject, a subject whose rights are dierent
and lesser, but a subject nonetheless.
So far, NGOs rather than individuals, have been given some participating
rights in some law-making conferences adopting various new standards. Pro-
posals have even been advanced to allow NGOs to participate in the formation
of customary law.342 I am doubtful about the coherence and the practicality of
such proposals. Opposition centers on the argument that NGOs tend not to be
open, transparent, and accountable343 and that it is dicult to ascertain what is
339 Prosper Weil, Le Droit International en Qute de son Identit 118-22 (1992).
340 Duncan Hollis, Private actors in Public International Law: Amicus Curiae and the
Case for the Retention of State Sovereignty, 25 Boston Coll. Intl & Comp. L. Rev. 235,
250 (2002).
341 Id. at 255.
342 Isabelle Gunning, Modernizing Customary International Law: The Challenge of Hu-
man Rights, 31 Va. J. Intl L. 211, 221 1991).
343 Julie Mertus, Considering Nonstate Actors in the New Millennium: Toward Expanded
Participation in Norm Generation and Norm Application, 32 N.Y.U. J. Intl L. & Pol.
537, 561(2000).
the NGO practice and consensus.344 An important exception is the International

Committee of the Red Cross which has been accepted as an actor in the formation
of customary rules of international humanitarian law. That does not mean that
other NGOs do not exercise major inuences on the formation of both custom-
ary and conventional rules of international law, through public opinion, lobbying,
and impact on the interpretation and application of rules. But they do not as yet
operate as full partners in the formation of customary law.
We have discussed the increasing access of private companies and even nat-
ural persons to decision-making bodies under various investment treaties. These
developments do not necessarily stem from human rights analogies, but from the
changing realities of international business organization and investment. Nev-
ertheless, they contribute to the panorama in which non-State actors, including
individuals, are important and often independent participants.
344 Id., at 562; Anne-Marie Slaughter, The Role of NGOs in International Law-Making,
International Law and International Relations, Hague Academy of International Law,
Recueil des cours, Vol. 285 (2000), 97-100.
Chapter 6: Sources of International Law
This chapter considers the inuence of human rights on the sources of interna-
tional law, especially custom and general principles of law. Of course, in addition
to human rights and humanitarian norms, other important community values,
such as prohibition of aggression, prohibition of intervention in the internal af-
fairs of States, and protection of environment also impact on the development of
sources. For those promoting such values, the doctrine of sources, and of custom
especially, has become the principal strategy of creating universal international
law.
As Oscar Schachter notes, [t]he principal intellectual instrument in the last
century for providing objective standards of legal validation has been the doctrine
of sources.1 Since the end of the 19th Century that doctrine lays down veriable
conditions for ascertaining and validating legal prescriptions.2 It
provided the stimulus for a methodology of international law that called for detailed
inductive methods for ascertaining and validating law. If sources were to be used
objectively and scientically, it was necessary to examine in full detail the practice
and related convictions (opinio juris) of States.3
However, as our discussion will show, an inductive factual positive science of

international law may be characterized more as a myth than as reality.4
Given the multitude of treaties addressing all areas of human activity, the
continuing importance of custom merits an explanation. As international law be-
comes more codied, the primary and the most obvious signicance of a norms
customary character is that the norm binds States that are not parties to the in-
strument in which that norm is restated. It is, of course, not the treaty norm, but
the customary norm with identical content, that binds such States. Additionally,

358 Chapter 6
because treaties typically do not address all of the relevant rules, the identication
of the applicable customary rules is also important for States parties.
In countries where customary law is treated as the law of the land but an act
of the legislature is required to transform treaties into internal law, custom as-
sumes importance if no such law has been enacted. Certainly, the failure to enact
the necessary legislation cannot aect the international obligations of these coun-
tries to implement their treaty obligations. Invoking a certain norm as customary
rather than conventional in such situations may, however, be crucial, especially
for the application of international norms for ensuring the protection of individu-
als by national courts and institutions.
The transformation of treaty norms into customary law may have certain
additional eects beyond its consequences for the internal law of some countries.
One such eect, already reected in common Article 63/62/142/158 concerning
denunciation of the Geneva Conventions, as pointed out by the ICJ in the Nica-
ragua Case,5 is that parties could not terminate their customary law obligations
by withdrawal. This Common Article provides that the denunciation of one of the
Conventions:
shall in no way impair the obligations which the Parties to the conict shall remain
bound to fulll by virtue of the principles of the law of nations, as they result from
the usages established among civilized peoples, from the laws of humanity and the
dictates of the public conscience.
The same principle is reected in Article 43 of the Vienna Convention on the

Law of Treaties,6 which states that the denunciation of a treaty shall not in any
way impair the duty of any State to fulll any obligation embodied in the treaty
to which it would be subject under international law independently of the treaty.
Thus, while this question is obviously important in humanitarian and human
rights treaties, it may also be signicant where a denunciation or a withdrawal
from other normative treaties is contested.
The existence of a denunciation clause in a treaty does not necessarily weaken
the claim that some of its provisions are declaratory of customary law. Similarly,
the absence of comment in a denunciation clause on the eects of the denun-
ciation on customary law (e.g. Article 99 of Additional Protocol I to the Geneva
Conventions, Article 25 of Additional Protocol II to the Geneva Conventions and
Article 14 of the Convention on the Prevention and Punishment of the Crime
of Genocide) does not mean that certain treaty rules are solely conventional.
Such clauses may have been drafted for a variety of reasons (e.g. past practice,
implementation, administrative, nancial or technical clauses, or settlement of
disputes) unrelated to the question of whether or not the treaty is declaratory of
5 Military and Paramilitary Activities in and against Nicaragua (Nicar. V. US) Merits,
1986 ICJ Rep. 14, 113-14 (Judgement of 27 June).
6 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art.
31(3)(b), 1155 UNTS 331.
Sources of International Law 359
customary law. The eects of the denunciation must still be assessed in light of
the general international law reected in Article 43 of the Vienna Convention.
The distinction between a customary and a conventional rule is particularly
important in disputes between two States when one of them exercises the right,
under Article 60 of the Vienna Convention on the Law of Treaties, to terminate
or suspend the operation of a treaty on the ground that the other party has vio-
lated an essential provision of that treaty. It should, however, be noted that Article
60(5) of the Vienna Convention establishes a lex specialis for provisions relating
to the protection of the human person contained in treaties of a humanitarian
character, even where such provisions have not matured into customary law. In
the Nicaragua case, the ICJ asserted that if the two rules in question also exist
as rules of customary international law, the failure of the one State to apply the
one rule does not justify the other State in declining to apply the other rule.7 Be-
cause, subject to certain limitations, State A may respond to a violation of a rule
of international law by State B through a proportional violation of another rule,
this comment by the Court is overbroad. Of course, a conventional rule which
parallels a customary rule may be subject to dierent treatment as regards organs
competent to verify its implementation. Another eect of this distinction is that
reservations to the Conventions cannot aect the obligations of the parties under
provisions reecting customary law to which they would be subject independent-
ly of the Conventions.
Two statements of the International Court of Justice in the Nicaragua case
are pertinent here: rst, that even if two norms belonging to two sources of in-
ternational law appear identical in content, and even if the States in question are
bound by these rules both on the level of treaty-law and on that of customary
international law, these norms retain a separate existence; and, second, that
[r]ules which are identical in treaty law and in customary international law are
also distinguishable by reference to the methods of interpretation and applica-
tion.8 Obviously, the Vienna Conventions rules on treaty interpretation do not
apply to customary law outside treaty context. The Courts cryptic reference to
separate existence is not illuminating. The potential importance of interpretive
practice by State parties is considerable: subsequent practice in the application of
the treaty may establish the agreement of the parties concerning its interpreta-
tion. That new interpretation may in itself aect customary law. Interpretation
and practice may also introduce customary law into the interstices of the treaty,
addressing matters which may have been left without regulation or which need
clarication. The fewer the number of parties to a normative treaty, the greater
the space left for the development of customary law outside the treaty.9 The po-
litical and moral importance of claims that a norm constitutes customary law has
proved important in international disputes and in codication conferences.
7 1986 ICJ Rep. at 95 (Judgement of 27 June), supra note 5.

8 Id. at para. 178.
9 On the so-called Baxter paradox, and its limitations, see Theodor Meron, Human
Rights and Humanitarian Norms as Customary Law 50-53 (1989).
360 Chapter 6
In the context of international criminal tribunals, the identication of cus-

tomary law plays an important role in the interpretation and application of the ra-
tione materiae provisions of their Statutes. In addition, customary law provides a
yardstick for assessing whether or not the material oenses stated in the Statutes
may be ex post facto. I discuss this question in the chapter on Criminalization of
Violations of International Humanitarian Law.
A. State Practice and Opinio Juris

Traditionally, treaties were regarded as the source par excellence of interna-
tional law. The certainty and precision of treaty law contrasts with the uncertainty
and vagueness of customary law.10 Since the 1970s however, customary law has
regained ground and
est devenue la pierre angulaire [du systme], au point que le droit coutumier est
couramment quali de gnral, le droit conventionnel tant rduit au rang dun
droit particulier. Mieux encore, la convention elle-mme a t sinon annexe, du
moins occupe par la coutume. Paralllement, la coutume a chang de nature: autre-
fois processus lent de formation du droit par la stabilit et la consolidation, elle tend
aujourdhui devenir un procd volontariste de transformation rapide du droit.11
Custom, suggests Georges Abi-Saab, is une explication polyvalente qui rpond

tous les besoins, y compris celui de hisser le contenu des traits de codication
et des rsolutions normatives au niveau du droit international gnral.12 Flauss
observed that human rights law contributes to the deconventionnalisation of
international law.13 Because of its uidity, custom is particularly inuenced by
public opinion and thus by the principal values of the international community.
Its political dimension is often obvious.
I. State Practice
Article 38(1)(b) of ICJs Statute describes custom as evidence of a general prac-
tice accepted as law. Because practice demonstrates custom and not vice versa,
102(2) of the Third Restatement, of the Foreign Relations Law of the United
States of 1987 states, more accurately, that customary law results from a general
10 Prosper Weil, Le droit international en qute de son identit, 237 Recueil des cours 9,
160 (1992-VI).
11 Id. at 161.
12 Abi-Saab, Cours gnral de droit international public, 207 Collected Courses 9, 119
(1987-VII).
13 Flauss, La protection des droits de lhomme et les sources du droit international: Rap-
port gnral (abridged draft version), Socit franaise de droit international, Collo-
que de Strasbourg, 29-31 May 1997, at 28 (1997).
and consistent practice of States which is followed by them from a sense of legal
obligation.
There has been a trend to expand the concept of practice, that is, of acts
and omissions counted as State practice for the formation of customary law. The
movement from the inductive to the deductive method of ascertaining custom is
a result of the expansion in what counts as practice of States and the enhanced
signicance of opinio juris. Writers, reecting a minority view, have denied to
verbal acts the quality of relevant practice.14 Wolfke suggested that purely ver-
bal acts, such as treaties, declarations, and resolutions had only an extra-judicial
eect of merely mobilizing international opinion. But he conceded that such acts
contributed to the development of a desirable practice and thus, to the emergence
of international custom.15 The dominant view is that both real and verbal acts
are relevant State practice for the process of formation of customary law,16 as are
acts of denial and concealment of conduct proscribed by the law.17
Drawing on Ian Brownlie, the ILAs Committee on Formation of Customary
Law, lists the following as relevant practice: diplomatic statements, policy state-
ments, press releases, ocial manuals, instructions to armed forces, comments
by governments on draft treaties, decisions of national courts and executive au-
thorities, legislation, pleadings before the international tribunals, statements and
resolutions in international organizations. It acknowledges that [p]hysical acts,
such as arresting persons or seizing property, are in fact rather less common.18
The Committee considered as verbal acts the adoption of resolutions containing
statements about customary law by international organizations, particular the
General Assembly.19 Zemanek suggests that repertories of State practice cover
both manifestations of opinio juris and State practice in the orthodox sense.20
Mendelson emphasizes the claims and response quality of practice relevant
to the formation of customary law: behavior does not count as practice if it is not
communicated to another State.21 In contrast, Oppenheim insists that
14 See Michael Byers, Custom, Power and the Power of Rules, 40-41, 133-136 (1999).
15 Wolfke, Treaties and Custom: Aspects of Interrelation, in Essays on the Law of Trea-
ties 31, 33 (J. Klabbers and R. Lefeber eds., 1998).
16 Byers, supra note 14, at 134 (1999); Mendelson, The Formation of Customary Interna-
tional Law, 272 Collected Courses 159, 204-207 (1998).
17 DAmato, Custom and Treaty: A Response to Professor Weisburd, 21 Vanderbilt J.
Transnatl L. 459, 466, quoted in Byers, supra note 14, 168.
18 4th Interim Report of the Committee: The Objective Element in Customary Law, In-
ternational Committee on the Formation of Customary (General) International Law,
International Law Association, Taipei Conference, at 4 (1998).
19 Id. at 10.
20 Zemanek, Unilateral Legal Acts Revisited, in International Law: Theory and Practice.
Essay in Honour of Eric Suy 209, 212 (Karel Wellens ed., 1998).
21 Mendelson, The Formation of Customary International Law, supra note 16, at 204.
362 Chapter 6
The practice of States in this context embraces not only external conduct with each
other, but is also evidenced by such internal matters as their domestic legislation,
judicial decisions, diplomatic dispatches, internal government memoranda, and min-
isterial statements in Parliaments and elsewhere.22
The ICRCs soon to be published study of customary humanitarian law reects

an expansive view of what counts as State practice, including both physical and
verbal practice. In the national sources, it included policy statements, opinions of
ocial legal advisers, police and military manuals, military orders, military com-
muniqus, executive decisions, State legislation, judicial decisions, and govern-
ments statements. In its inventory of practice the ICRC included resolutions of
international organizations and their practice.23 While acknowledging that opera-
tional physical acts on the battleeld have weight, the ICRC attributed particular
signicance to denials, objections and challenges to acts in violation of the rules.
To determine opinio juris or acceptance as law, it may also be necessary to look
at both physical behavior and statements.24 International tribunals tend to rely on
opinio juris or general principles of humanitarian law, distilled in part from the
great humanitarian conventions as customary law.
The ICJ has adopted an inclusive view of State practice forming customary
law. To ascertain the existence (or non-existence) of customary rules, it referred
to ocial views, treaty ratications, diplomatic correspondence, international or-
ganizations resolutions and declarations.25 The ICJs discussion of the formation
of customary and humanitarian law in the Nicaragua case had important ante-
cedents in earlier international jurisprudence, especially that implicating human
and humanitarian rights.26 The ILC also refers to treaties, national and interna-
tional decisions, national legislation, diplomatic correspondence and opinions of
national legal advisers.27
Prior to the Universal Declaration of Human Rights, except for minority and
labor rights, human rights were left outside international law. Only law based
22 Oppenheims International Law 26 (Robert Jennings and Arthur Watts eds., 9th ed.,
1992).
23 Jean-Marie Henckaerts, Study on Customary Principles of International Humanitar-
ian Law: Purpose, Coverage and Methodology, Intl Rev. Red Cross (No. 835), 660
(1999) at 660-668.
24 See Meron, The Continuing Role of Custom in the Formation of International Hu-
manitarian Law, 90 AJIL 238, 248-249. (1996). For a discussion of the leading case
of Prosecutor v. Tadi, Case No.IT-94-1-AR72, Appeal on Jurisdiction (Oct. 2, 1995),
reprinted in 35 ILM 32(1996), see id. 238-44.
25 Byers, supra note 14 at 134-135. He cites the Asylum Case, 1950 ICJ Rep. 265, 277;
Rights of Nationals of the United States of America in Morocco Case, 1952 ICJ Rep.
176, 200; and Military and Paramilitary Activities in and against Nicaragua (Nicara-
gua v. United States), Merits, Judgment of 27 June 1986, 1986 ICJ Rep. 14.
27 Byers, supra note 14, at 135.
on classical inter-State relations including protection of aliens, humanitarian

intervention, the prohibition of slavery and slave trade -, and humanitarian law,
had been considered general international law.28 That human rights law is part of
general international law is no longer questioned. It is also recognized that hu-
man rights have started a process of reform of international law. DAmato aptly
observes that
Human rights interests [...] have worked a revolutionary change upon many of the
classic rules of international law as a result of the realization by States in their inter-
national practice that they have a deep interest in the way other States treat their own
interests.29
Through the Nicaragua judgement and the Advisory Opinion on Nuclear Weap-
ons, the ICJ has contributed to making human rights and humanitarian norms
part of general international law. At the same time it recognized methods of cus-
tom formation which favor the creation and the inuence of human rights and
humanitarian norms. The Inter-American Commission on Human Rights and
the UN Committee on Human Rights30 and other treaty bodies have referred
to customary human rights law. Flauss observed that la protection des droits
de lhomme est sans conteste la terre dlection du renouvellement (voire de
laggiornamento) du processus coutumier.31 He speaks of no less than un re-
centrage humaniste du droit international, dj prsent dans le cadre du droit
conventionnel.32
Renewed vitality of customary law in the development of international hu-
manitarian law has been demonstrated in the case law of the ad hoc international
criminal tribunals. The most signicant development in the tribunals case law
was the recognition that customary norms apply to non-international armed con-
icts.33 The identication of customary rules in the context of non-international
armed conicts was also one of the main objectives of the ICRC Study.34 In the
report to the Security Council which proposed the text of the ICTY Statute, the
Secretary-General insisted that the application of the principle nullum crimen
28 Flauss, supra note 13, at 28.

29 DAmato, Trashing Customary International Law, 81 AJIL 101, 104 (1987).
30 Roach and Pinkerton v. United States, Case 9647, Inter-American Commission on
Human Rights, Resolution 3/87 of 22 September 1987, Annual Report 1985-1987, Doc.
OEA/Ser.L/V/II.71 doc. 9 rev. 1, at 147; Committee on Human Rights, General Com-
ment No. 24(52), adopted on 2 November 1994, Report of the Human Rights Com-
mittee, 50 UN GAOR (Supp. No. 40), UN Doc. A/50/40, Annex V, para. 8 (1995).
32 Flauss, supra note 13, at 29; quoting Dupuy, Lindividu et le droit international (Tho-
rie des droits de lhomme et fondements du droit international), 32 Archives de phi-
losophie du droit 132 (1987).
34 Henckaerts, supra note 23, at 660-668.
364 Chapter 6
sine lege requires that the international tribunal should apply rules of interna-
tional humanitarian law which are beyond any doubt part of customary law so
that the problem of adherence of some but not all States to specic conventions
does not arise.35
A signicant development of customary human rights law has taken place
also on the national plane. This is true in particular of common law states, where
international customary law, in contrast to treaty law, does not require any for-
mal act of incorporation. Customary law has been introduced into the positive
law calculus in States not bound by important human rights treaties, notably the
United States.36 American scholars support for customary human rights law has
been criticized for being au service dune diusion des valeurs constitutionnelles
amricaines.37 Some commentators have thus pointed to the concordance be-
tween the rights regarded as customary by the Third Restatement of the Foreign
Relations Law of the United States and the American Bill of Rights, to the disad-
vantage of other rights not mentioned in the American Bill of Rights, such as the
prohibition of capital punishment for minors.38 Yet during the Carter Administra-
tion, the US government promoted as internationally recognized rights not only
those implicating human dignity and civil and political rights, but also the right
to minimum standard of living.39
Dierent views have been expressed as to the content of customary interna-
tional human rights law. An expansive approach views the Universal Declaration
of Human Rights either as customary per se, or as an authoritative interpretation
of the human rights clauses in the UN Charter. Another trend, taking into ac-
count contrary practice, limits customary human rights to those for which ad-
equate support can be found in the classical requirements for the recognition
of custom. A negative approach denies altogether customary law character to
human rights.40 The majority position recognizes human rights or some human
rights as customary law. Critics argue that such a recognition stretches the nature
of customary law. They insist that the application of the traditional understanding
of the customary process to human rights norms inevitably limits the recognition
of human rights as customary law.41
35 Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolu-

tion 808 (1993), UN Doc. S/25704, para. 34 (3 May 1993).
36 Flauss, supra note 13, at 29-30. Also Simma & Alston, The Sources of Human Rights
Law: Custom, jus cogens and General Principles, 12 Australian Year Book of Interna-
tional Law 85-87 (1992). 85-87.
38 Flauss, supra note 13, at 30. Also Simma & Alston, supra 36, at 94-95.
39 See Schachter, Les aspects juridiques de la politique amricaine en matire de droits
de lhomme, Annuaire Franais de droit international 53, 62-67.
40 Flauss, supra note 13, at 40, (who lists some authors supporting such an approach).
Also Simma & Alston, supra note 36, at 84-85.
It is true that in the eld of human rights, the classical exchanges between
chancelleries that have characterized customary law process in other areas of in-
ternational law are rare: States do not usually make claims on other States or
protest violations that do not aect their nationals. In that sense, one can nd
scant State practice accompanied by opinio juris.42 Schachter therefore proposes
to look for practice and opinio juris mainly in the international forums where
human rights issues are discussed, debated and adopted.43 Validating the tradi-
tional method, he insists that resolutions weight as evidence of custom cannot
be assessed without considering actual practice.44
In the eld of human rights, the concept of practice has been extended to
include the quasi-universal adhesion to the United Nations Charter, including its
human rights clauses, the quasi-universal acceptance of the Universal Declara-
tion and its frequent invocation, the high number of ratications of universal and
regional human rights conventions, the strong support for human rights resolu-
tions in international organizations, the incorporation of human rights standards
in national constitutions and laws, the invocation of human rights in national and
diplomatic practice, and, especially, in international organizations.45 In their tren-
chant criticism of this concept of practice, Simma and Alston warn that:
The process of customary law-making is thus turned into a self-contained exercise in

rhetoric. The approach used is deductive: rules or principles proclaimed for instance,
by the General Assembly, as well as the surrounding ritual itself, are taken not only as
starting points for the possible development of customary law in the event that State
practice eventually happens to lock on to these proclamations, but as a law-making
process which is more or less complete in itself, even in the face of contrasting ex-
ternal facts.46
They have proposed, instead, to rely on a new type of practice, the droit de regard
developed in international institutions with regard to States observance of hu-
man rights.47 They assert that the range of norms subject to such a scrutiny
[...] is comprehensive and embraces all of the dimensions of international human

rights law. It thus takes full account of customary norms, norms based on authentic
interpretation, and general principles and extends also to soft law norms.48
42 Schachter, supra note 1, at 338; Also Henkin, International Law: Politics, Values and
Functions, 216 Collected Courses 13, 224 (1989-IV).
45 Flauss, supra note 13, at 41-42. Meron, supra note 9, at 79-92.
46 Simma & Alston, supra note 36 at 89-90; also Flauss, supra note 13, at 42.
47 Simma & Alston, supra note 36, at 98-99.
48 Simma & Alston, supra note 36, at 99.
366 Chapter 6
However, this practice of international organizations can only demonstrate the

shrinking parameters of the domaine rserv and the expanding scope of matters
within international concern. The Simma/Alston proposal is limited to the rath-
er obvious proposition that human rights are a matter of international concern
and that a State cannot evade international scrutiny by shielding itself behind the
principle of sovereignty. Simma writes:
A customary law of human rights, therefore, does exist, but it is to be found on the
procedural side, so to speak. As such it makes perfect sense even without the exist-
ence of customary law standards in the human rights elds with regard to the sub-
stance of such rights and correlative obligations on States.49
Simma and Alston would therefore limit the material relevant to the formation
of customary law of human rights to interaction, claims and tolerances between
States. They would exclude such valuable sources of custom formation as, for
example, normative resolutions. Droit de regard would not contribute to dier-
entiating between rights with high or low legally binding content. Moreover,
by focusing on such interactive State practice as condemnations and denials, the
authors do not address their primary concern over the gap between what States
say and what they do.
II. Opinio Juris

Opinio juris is dicult to identify or prove in relation to any instance of State
practice.50 It is often inferred from the consistency and the generality of the prac-
tice itself. The ILAs Committee on Formation of Customary Law, observed that
opinio juris performs a useful function in distinguishing practice which is relevant
to the formation of customary law from practice based on comity and in identify-
ing signicant custom forming practice in cases where practice is ambiguous, for
instance when it consists of failure to act.51
The classic view has been that State practice is transformed into custom-
ary law by the addition of opinio juris.52 Recent trends often reverse the process:
following the expression of an opinio juris, practice is invoked to conrm opinio
juris.53 In elds involving fundamental values of the international community, the
tendency towards acquiescence by third States in the developing norms and the
49 Simma, International Human Rights and General International Law, in IV(2) Col-
lected Courses of the Academy of European Law 155, 222 (1993).
50 Abi-Saab, Reexions on the Contemporary Processes of Developing International Law,
Ninth Gilberto Amado Memorial Lecture, delivered at the International Law Com-
mission on June 20, 1985, at 18.
51 The Objective Element in Customary Law, supra note 18, at 2.
52 Weil, supra note 10, at 172-173; Abi-Saab, supra note 12, at 171.
readiness to condemn inconsistent conduct facilitate the claim of the new norms
for customary law status.
These recent trends build on antecedents. Thus the decision of the appeals
chamber of the ICTY in the Tadi case (1995) is the linear successor to the three
previous major decisions of international tribunals that focused explicitly on the
means of creating customary international humanitarian law. In each case the
judgement of the International Military Tribunal in the Trial of Major War Crimi-
nals,54 the judgement in United States v. von Leeb (The High Command Case),55
and the decision of the International Court of Justice in the Nicaragua Case56
the courts looked primarily to the opinio juris rather than to the practice of
States in reaching their conclusions.
In the Nuremberg jurisprudence, the tribunals paid little attention to the
process or rationale by which various provisions of humanitarian conventions
were transformed into customary law.57 In contrast, the Hague Tribunal in Tadi
engaged in a detailed and focused examination of the formation of customary law.
Like the Nuremberg courts, however, it relied on such verbal evidence as state-
ments, resolutions and declarations rather than on the battleeld or operational
practice, which it largely ignored. The Tribunal formally adhered to the tradition-
al twin requirements (practice and opinio juris) for the formation of customary
international law. Yet in eect it weighed statements both as evidence of practice
and as articulation of opinio juris, which in the formation of humanitarian and
human rights law is cardinal. What the Tribunal did, without explicit acknowl-
edgment, was to come close to reliance on opinio juris or general principles of
humanitarian law, distilled, in part, from the Geneva and Hague Conventions. Its
methodology was thus akin more to that applied in the human rights eld than
in other areas of international law. In both human rights and humanitarian law,
emphasis on opinio juris helps to compensate for frequent scarcity of supporting
practice. In terminology, however, the Tribunal follows the law of war tradition
of speaking of custom even when this requires stretching the traditional meaning
of customary law.
Prosper Weil saw in the case law on maritime delimitations, the beginnings
(the esquisse) of this trend, which was eventually generalized by the ICJ in the
Nicaragua case.58 He observed that in some cases, the ICJ has omitted any refer-
ence to practice and established the customary status of a particular rule on the
sole basis of convictions or beliefs of States.59 In the Nicaragua case, the Court
54 Trial of German Major War Criminals, 1946, cmd. 6964, Misc. No. 12, at 65.
Council Law no. 10, at 462, 533-35 (1948).
56 Military and Paramilitary Activities in and against Nicaragua, supra note 5, at 14, 114,
paras. 218-20.
57 For a discussion of antecedents to Nicaragua, see Meron, supra note 9, at 37-41.
58 Weil, supra note 10, at 173.
59 Weil, supra note 10, at 174, referring to Delimitation of the Maritime Boundary in the
Gulf of Maine Area (Canada/United States), International Court of Justice (Cham-
368 Chapter 6
referred to the classic doctrine [to consider] the rules of customary interna-
tional law [...] [the Court] has to direct its attention to the practice and opinio
juris of States.60 However, it added in the next paragraph, that [t]he Court must
satisfy itself that the existence of the rule in the opinio juris of States is conrmed
by practice,61 thus showing the dominance of opinio juris. This dominance was
conrmed by the way the Court considered the customary nature of the principle
of non-intervention. Critics of the Courts decision note the cursory treatment of
State practice and the focus on opinio juris.62 In its advisory opinion on the use of
nuclear weapons, the ICJ has, however, recognized the role of practice of deter-
rence.63
The Committee on the Formation of Customary Law of the ILAs American
Branch warned that
[w]hen one looks secondarily to practice, by adjusting the denition of practice, or

by varying the requirements for quantum, quality, or duration, it is possible to dis-
pense as a practical matter with any requirement for practice at all.64
In examining the relationship between practice and opinio juris, Georges Abi-
Saab observed that
Normative resolutions can have a profound eect on how the process of custom for-
mation itself functions, in the sense that, through them, frequently it is the opinio
juris that comes rst, then practice follows. Thus, not only the chronology but even
the proportions between the two elements of custom may change.65
He considers attribution of law-declaring signicance to General Assembly

resolutions as involving a general movement, of which multilateral treaties and
codication of international law form a part, towards a lex scripta.66 He nds this
development consistent with the renaissance of custom, one that is democratic
ber), Judgment of 12 October 1984, 1984 ICJ Rep. 246, para. 193; Military and Para-
military Activities in and against Nicaragua, supra note 5, at para. 212.
60 Military and Paramilitary Activities in and against Nicaragua, supra note 5, para.
183.
61 Id., para. 184.
62 Charney, Remarks in Disentangling Treaty and Customary Law, 81 Procs ASIL 159,
160 (1987); DAmato, supra note 29, at 102.
63 Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, Ad-
visory Opinion of 8 July 1996, 1996 ICJ Rep. 226, at para. 73.
64 American Branch of the International Law Association, The Role of State Practice in
the Formation of Customary and Jus Cogens Norms of International Law, [1989-1990]
Committee Reports American Branch of the International Law Association 107.
66 Abi-Saab, supra note 50, at 3-4.
and reects the desiderata of the international community.67 This form of custom-
ary process contrasts with the traditional inductive approach to customary law.
It is based on an essentially deductive method, with a secondary role assigned to
practice.68 Condorelli similarly observed: de plus en plus la coutume se prsente
comme un jus scriptum, puisque dans nombre de cas elle sidentie au travers des
grandes conventions internationales [humanitaires].69
There is a direct relationship between the importance attributed by the inter-
national community to particular norms and the readiness to lower the burden of
proof required to establish custom.70 While challenging the mainstream approach
to customary human rights, Koskenniemi agrees that
Some norms seems so basic, so important, that it is more that slightly articial to
argue that States are legally bound to comply with them simply because there exists
an agreement between them to that eect, rather than because, in the words of the
International Court of Justice, noncompliance would shock ... the conscience of man-
kind and be contrary to elementary considerations of humanity.71
Schachter observed that rules that express deeply-held and widely shared convic-
tions about the unacceptability of the proscribed conduct are not questioned
by States or tribunals on the ground of inconsistent or insucient practice.72
Tomuschat agreed with the ICJ approach in the Nicaragua case which viewed
the texts concerned as a manifestation of legal rules which, in order to be recog-
nized as constituent elements of the international legal order, need no validation
through the usual processes that bring into being rules of customary law.73 He
addressed a class of customary law, which includes the constitutional founda-
tions of the international community and the rules owing from these, that is,
rules owing from the principle of sovereign equality and from common values of
mankind. He suggested that the identication of these customary principles can
be carried out through a deductive, rather than the classic inductive approach to
customary law.74 Kirgis sliding scale reects a similar approach:

69 Condorelli, Le droit international humanitaire, ou de lexploration par la Cour dune
terra peu prs incognita pour elle, in International Law, the International Court of
Justice and Nuclear Weapons 229, 233 (Laurence Boisson de Chazournes and Philippe
Sands, eds., 1999).
70 Meron, supra note 9, at 113; Tomuschat, obligations arising for States without their
will, 241 Requeil des cours 198 (1993).
71 Koskenniemi, The Pull of Mainstream, 88 Michigan L.R. 1946-1947 (1990), quoted in
Byers, supra note 14, 162.
72 Schachter, Entangled Treaty and Custom, in International Law at a Time of Perplex-
ity: Essays in Honour of Shabtai Rosenne 717, 734 (Yoram Dinstein ed. 1988).
73 Tomuschat, supra note 70, 259.
74 Tomuschat, supra note 70, 291-303.
370 Chapter 6
The more destabilizing or morally distasteful the activity for example, the oensive
use of force or the deprivation of fundamental human rights the more readily in-
ternational decision makers will substitute one element for the other [State practice
and armative showing of an opinio juris], provided that the asserted restrictive rule
seems reasonable.75
Others have attempted to anchor norms essential to the protection of community

values in the concept of jus cogens, where State practice, as opposed to opinio
juris, would be less important. Henkin characterizes such norms as a new law of
fundamental values adopted by the international system which would not de-
rive from or depend on State practice or on law made purposefully by the consent
of States.76 Byers advocates including common interest in the calculus for the
formation of customary law.77
The transformation of the relative weight of practice and opinio juris in the
process of creation of customary law, has led to departure from traditional meth-
ods of custom-formation. Obviously, the time required for the maturation of cus-
tom has been shortened. In the past, custom was thought to emerge over a fairly
long period of time, with the time necessary for a consistent or repetitive practice
to consolidate itself, followed by the time necessary for opinio juris to emerge.78
But changes in the time factor have been less drastic than often suggested. Even
with regard to the delimitation of continental shelf, the ICJ recognized that cus-
tomary rules could rapidly develop from conventional rules if State practice,
including that of States whose interests are specially aected, should have been
extensive and virtually uniform in the sense of the provision invoked.79 Such cus-
tomary development occur[s] particularly where the new rule has its origin, or is
soon reected in, a multilateral treaty of appropriately general application.80
Distillation of customary rules from treaties enhances the importance of
legal scholarship. Its role is to ll the logical void raised by the traditional co-
nundrum of the origin of customary law, by exercising some form of law-declar-
ing function.81 This role has been particularly important in areas such as human
rights and environmental law.82
75 Kirgis, Custom on a Sliding Scale, 81 AJIL 146, 149 (1987).

76 Henkin, supra note 42, at 60, 216.
77 Byers, supra note 14, at 163-164.
78 Oppenheims International Law supra note 22, at 30.
79 North Sea Continental Shelf Cases (W. Germany/Denmark, W. Germany/Nether-
lands), International Court of Justice, Judgment of 20 February 1969, 1969 ICJ Rep. 3,
43, at para. 74.
81 Kahn, nuclear weapons and the rule of law, 31 Intl L. Pol. 349, at 370 (1990).
82 Id.
III. Inconsistent Practice

In the stage of formation of a customary rule, and even after a rule has attained
maturity, State practice does not need to be entirely consistent with the rule.
Minor divergences or inconsistent acts by a few States only, do not hamper the
development of the rule and its continued vitality.83 As the ICJ stated in the Nica-
ragua case:
The Court does not consider that, for a rule to be established as customary, the cor-
responding practice must be in absolute rigorous conformity with the rule. In order
to deduce the existence of customary rules, the Court deems it sucient that the
conduct of States should, in general, be consistent with such rules, and that instances
of State conduct inconsistent with a given rule should generally have been treated as
breaches of that rule, not as indications of the recognition of a new rule. 84
As regards contrary practice, the Court added:
If a State acts in a way prima facie incompatible with a recognized rule, but defends
its conduct by appealing to exceptions or justications contained within the rule it-
self, then whether or not the States conduct is in fact justiable on that basis, the
signicance of that attitude is to conrm rather than to weaken the rule.85
I agree that statements which States make to justify or deny alleged breaches of
international law are important for assessing the signicance of the breach for the
continued vitality of the customary norm in question. Account must, however, be
taken of the fact that States bent on evading compliance with international law
commonly resort to factual or legal exceptions or justications contained in the
rule itself and in the relationship of their particular case or situation to that rule.
Thus, they shield themselves with self-serving justications, calculated to mini-
mize international censure. Denials or justications which they voice may mask
more fundamental challenges.86 Only infrequently will States frontally challenge
the existence of a rule of customary law. Contrary practice may, however, be so
rampant that it becomes unclear whether the norm or the violations represent
the practice of States. In some situations, persistent violations might reach a criti-
cal mass nullifying the legal force of a norm. There is a danger, therefore, that
excluding violations which do not openly challenge the continued validity of the
norm from acts counted as practice, as in the 2005 ICRC Study of Customary
83 The Objective Element in Customary Law, supra note 18, at 11; Oppenheims Interna-
tional Law supra note 22, at 29; Mendelson, supra note 16, at 213-214.
84 Military and Paramilitary Activities in and against Nicaragua, supra note 5, at para.
185.
85 Military and Paramilitary Activities in and against Nicaragua, supra at note 5, at para.
198.
372 Chapter 6
International Humanitarian Law,87 may distort the real situation and give too san-
guine a view of the state of compliance with the norms.
Schachter suggested that in the balancing of verbal rationalizations as
against actual conduct, the normativity of the rule (e.g., against aggression)
should be taken into account:
The rules against aggression and self-defence are not just another set of international
rules. They have a higher normativity, a recognized claim to compliance that is dif-
ferent from the body of international law rules. This special status has been expressed
by characterizing such rules as jus cogens, and erga omnes obligations. They have
also been described as necessary rules of coexistence and as principles of minimum
world order. It is that dierence in their normative claim, reected in the opinio
juris, that underlies decisions to recognize their continued customary law status even
if State practice in regard to them is not uniform or consistent.88
Such special status benets rules prohibiting genocide, the killing of prisoners of
war, torture and large-scale racial discrimination, where there are widely shared
convictions about the unacceptability of the proscribed conduct.89 A more rigor-
ous compliance with practice is required in other areas of international law:
[t]he notion that contrary practice should yield to opinio juris challenges the basic
premise of customary law. It would not be acceptable in respect of the great body of
customary rules as for example, the law on jurisdiction, immunities, State respon-
sibility, diplomatic privileges. In these areas, pertinent changes in State conduct usu-
ally create expectations of future behavior that modify the opinio juris on applicable
law.90
However, as demonstrated by Weil (above), the new methods of custom forma-

tion are apparent also in the law of maritime delimitations. Higgins questions a
hierarchical or weighted normativity, or resort to the concept of jus cogens, as
an explanation why some norms do not lose their normative quality through con-
trary practice. In the case of torture, she believes that
[t]he reason that the prohibition on torture continues to be a requirement of cus-

tomary international law, even though widely abused, is not because it has a higher
normative status that allows us to ignore the abuse, but because opinio juris as to its
normative status continues to exist. No State, not even a State that tortures, believes
87 Jean-Marie Henckaerts and Louise Doswald Beck, 1 Customary International Hu-

manitarian Law xxxvii-viii (2005).
88 Schachter, Entangled Treaty and Custom, supra note 72, at 734.
89 Schachter, id.
90 Schachter, New Custom: Power, Opinio Juris and Contrary Practice, in Theory of In-
ternational Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof
Skubiszewski 531, 538 (1996).
that the international law prohibition is undesirable and that it is not bound by the
prohibition. A new norm cannot emerge without both practice and opinio juris; and
an existing norm does not die without the great majority of States engaging in both a
contrary practice and withdrawing their opinio juris.91
This view assumes, however, that at some point in time, practice and opinio juris
conformed, enabling a rule to mature and that, at a later point in time, despite
contrary practice, opinio juris continued to exist, preserving the customary rule
from falling in desuetude.92
Another method is to exclude violations of the prohibition of torture, for
example, from acts counted as the relevant practice. Opinio juris may reect a set
of shared understandings on what should count as State practice legally relevant
to the formation of customary law.93
This method was followed by an ICTY Trial Chamber in ascertaining the
customary status of the prohibition of torture in time of armed conict. Reso-
nating with Nicaragua, the Tribunal emphasizes the wide-spread acceptance of
treaty provisions and denials by States of violations.94
A dierent method of treating inconsistent practice is advocated by Simma
and Alston. They propose that certain fundamental human rights be considered
not customary law but general principles of law. Thus the problem of inconsis-
tent practice in relation to customary law would be minimized.95 They argue that
rather than customary rules, the concept of a recognized general principle ts
better the situation where a norm which possesses a strong inherent authority is
widely violated. They believe that general principles satisfy the requirements of
general acceptance and recognition. Flauss agrees that general principles of law
oer a better explanation of human rights principles than does customary law.96
That practice is not relevant for recognition of general principles of law is
not self-evident, however. If understood as general principles of law recognized
in municipal legal systems, practice of some sorts is required: rules and prin-
ciples which form part of domestic legal systems must be actually applied in State
practice.97 The use of domestic legislation to establish that a right to environ-
ment was recognized under international law has thus been questioned on the
91 Rosalyn Higgins, Problems & Process: International Law and How We Use It 22
(1994).
92 See Flauss, supra note 13, at 42. Also Simma & Alston, supra note 36, at 97.
94 Prosecutor v. Furundija, ICTY (Trial Chamber), Judgment of 10 December 1998,
para. 138.
95 Simma & Alston, supra note 36, at 102-105.
97 The Role of State Practice, supra note 64, at 111.
374 Chapter 6
ground that mechanisms of enforcement of those constitutional provisions are

often lacking.98
If treated as general principles of international law, such norms too have to
be recognized, or generally accepted. This suggests that there must be some sup-
porting practice with respect to these principles.99 Absent conforming practice,
the identication of the general principles may be subjective, even arbitrary. In
the nal analysis, general principles prove vulnerable to some of the criticisms ad-
dressed against the customary method, which, at least, benets from some meth-
odological objectivity and wide acceptance of the process.
IV. Persistent Objector

Existing and rmly established customary norms are, of course, binding on all
States. It is, however, broadly accepted, that a State which from an early stage of
the formation of a new rule of customary law has consistently and clearly objected
to the new rule, would, as a persistent objector, not be bound by the rule, even
after it has matured into customary law. The persistent objector exception is rec-
ognized by a majority, but not unanimity, of writers.100 There is ... a body of State
practice in support of the principle, though it is not as copious as one might at
rst expect.101 The persistent objector exception appears to have been endorsed
by the ICJ in the Asylum case and in the Anglo-Norwegian Fisheries case.102
Of course, States are more likely to deny the existence of a customary rule
than argue that they are not bound by a generally applicable rule. Persistent ob-
98 Handl, Human Rights and Protection of the Environment: A Mildly Revisionist View,
Human Rights, Sustainable Development and the Environment 117, 128-129 (A.A.
Canado Trindade ed., 1992); Michael R. Anderson, Human Approaches to Environ-
mental Protection: An Overview, Human Rights Approaches to Environmental Pro-
tection 1, 20-21 (A.E. Boyle and M.R. Anderson, eds, 1996). Also Schachter, supra
note 1, at 336, on window-dressing in the domain of human rights.
99 The Role of State Practice, supra note 64, at 111-112.
100 Among those who recognize the rule: Oppenheims International Law supra note 22,
at 29, Rousseau (1970), Verzijl (1968), Brownlie (1990), Tunkin, Villiger (1985), Wolfke
(1974), Danilenko (1993), Mendelson, supra note 16, at 227 , Maurizio Ragazzi, The
Concept of International Obligations Erga Omnes 60 (1997). Among who question
the rule: DAmato (1973), Stein (1985), Charney (1985) and to a certain extent, Tomus-
chat, supra note 70, at 284-290. See references in The Objective Element in Customary
Law, supra note 18, at 13-14, footnotes 34 and 35.
101 The Objective Element, supra note 18, at 14; also Mendelson, supra note 16, at 234-
238.
102 Asylum Case, International Court of Justice, 1950 ICJ Rep. 265, 277-278; Anglo-Nor-
wegian Fisheries Case (United Kingdom v. Norway), International Court of Justice,
Judgment of 18 December 1951, 1951 ICJ Rep. 116, 131. See Mendelson, supra note 16,
at 228-233.
jectors may eventually yield under pressure from other States.103 The operation of
the principle of reciprocity, combined with the reluctance of States to recognize
persistent objections, may work against the objecting State. States that accept the
new rule are likely to apply it to the objecting State, while the persistent objector
may be obliged to apply the old rule towards other States in order to maintain its
position as an objector and may thus suer from a signicant disadvantage.104 An
example is the USSR opposition to the doctrine of restrictive State immunity.105
While the USSR was denied immunity in foreign courts for acts jure gestionis, it
had to apply the former rule of absolute sovereign immunity even to those States
that refused to recognize such immunity for the USSR and its State instrumen-
talities. Absent reciprocity in absolute sovereign immunity, the USSR eventually
gave up on its objection to restrictive State immunity. A similar imbalance has
compelled the United States, the United Kingdom and Japan to abandon their
opposition to the twelve miles territorial sea.106 Persistent objections thus tend
not to be maintained for indenite periods of time.107 In the context of general
international law and law-making treaties involving the protection of commu-
nity interests, Abi-Saab maintains that lobjecteur tenace ne peut-tre quun ph-
nomne transitoire.108 The opposition to claims of persistent objectors seem to
indicate a preference for society interests and society rules, that is for universal
public interest, over ad hoc, unilaterally created exceptions.109
Contemporary discussions of the status of the objection should however, be
seen in the context of the larger process of transformation of the sources of inter-
national law. Henkin observed that: eorts to make the new law purposefully by
custom [...] has given the persistent objector principle new vitality, perhaps its
rst real life.110 In these circumstances, States may have a greater incentive to op-
pose certain controversial aspects of custom distilled from treaties, as in the case
of the US opposition to the prohibition of reprisals against civilians and civilian
objects in Additional Protocol I to the Geneva Conventions. An entombment of
persistent objections is thus premature.
Can a persistent objection be invoked against fundamental principles of in-
ternational law? Many writers suggest that the exception cannot operate against
jus cogens,111 Tomuschat thus writes that:
103 The Objective Element, supra note 18, at 14; Mendelson, supra note 16, at 234; Ragazzi,
note 100, at 64-65.
104 Byers, supra note 14, at 103-104.
105 Mendelson, supra note 16, 235.
106 Byers, supra note 14, 104. Mendelson, supra note 16, 236.
107 Byers, supra note 14, 181.
110 Henkin, supra note 42, at 59; also Abi-Saab, supra note 12, at 180.
111 Mendelson, supra note 16, at 235; Byers, supra 14, at 186; see Ragazzi, supra note 99,
at 67, footnote 96, for other references.
376 Chapter 6
It is [...] widely accepted that the words recognized by the international commu-
nity of States as a whole are meant to express the idea that an overwhelming majority
of States is able to produce and possibly enforce a new rule of jus cogens against
a recalcitrant third State.112
A precedent frequently invoked in support of the non-application of the excep-

tion to norms of jus cogens is the non-recognition of South Africas opposition to
the prohibition of apartheid.113 However, it remains to be seen whether big powers
will be ready not to insist on their occasional claims to be excluded from a rule
because of their persistent objections
The question whether persistent objections against jus cogens are possible,
is sometimes preceded by the question whether the norm concerned has been
accepted as jus cogens in the rst place. In a case concerning the imposition of
death penalty to juvenile oenders in the United States, the Inter-American Com-
mission on Human Rights appears to have recognized that a persistent objection
cannot be advanced against jus cogens:
Since the United States has protested the norm, it would not be applicable to the
United States should it be held to exist. For a norm of customary international law to
be binding on a State which has protested the norm, it must have acquired the status
of jus cogens.114
In its written pleadings in the Anglo-Norwegian Fisheries case, the United King-
dom argued that the persistent objector theory was not applicable to fundamen-
tal principles of international law.115 The ILAs Committee on Formation of Cus-
tomary Law noted, however, that where a fundamental principle is not jus cogens,
no precedent exists to support the British position.116 A fundamental principle
which constitutes jus dispositivum such as, for example, the principle of sovereign
equality, can be derogated from in voting rules of international organizations.
B. Relationship Between Custom and Treaty

As Schachter observes, commentators have observed an increasing tendency
on the part of governments and lawyers to consider the rules of international
agreements as customary law on one ground or another, and therefore binding
112 Tomuschat, supra note 70, at 307.

113 Mendelson, supra note 16, at 235; Byers, supra note 14, at 183; Ragazzi, supra note 99,
at 71-72.
114 Roach and Pinkerton v. United States, Annual Report of the Inter-American Com-
mission on Human Rights, OEA/Ser.L/VII/71 at 168, para. 54.
115 Fisheries Case, ICJ Pleadings, II, at 426-427.
116 See also Mendelson, supra note 16, at 243-244.
on States not parties to the agreement.117 Negotiations in international confer-

ences are perceived as more responsive to the interests of the majority of States
than the classic customary process, where the inuence of a few States may be
preponderant.118
Other writers maintain that treaties cannot be regarded as relevant practice
for the purpose of customary law.119 Wolfke, for example, wrote that a treaty per
se is [...]not any element of practice.120 He nonetheless attributed to treaties an
important extra-judicial eect on the formation of customary law, the mobiliza-
tion of international opinion.121 A similar view is expressed by Byers:
It is accepted that human rights treaties in general play a role in the marshalling of
shame against those States which constantly violate human rights.122
This is true particularly of humanitarian conventions. Oppenheims 9th edition dis-

tinguishes between sources of State practice and sources of opinio juris, and clas-
sies as the latter the conclusion of bilateral or multilateral treaties, and attitudes
towards resolutions of the General Assembly and other international fora.123
The use of multilateral treaties as evidence of customary law goes back to
the trial of war criminals by the Nuremberg Military Tribunal. The Nuremberg
Tribunal considered that the rules stated in the Hague Convention and in the
annexed Regulations, having weathered the test of time, had passed into cus-
tomary law.124 Of course, the customary law nature of the practically universally
accepted Geneva Conventions is now taken for granted.
Flauss similarly observed that, mme si [le droit humanitaire] bncait
ds avant 1949 dun fonds de rgles coutumires il est patent que cest ladoption
des Conventions de Genve de 1949 puis des protocoles de 1977 qui favorisera
la pleine conscration de ces rgles en tant que principes du droit international
gnral.125 In its advisory opinion on the use of nuclear weapons, the ICJ, without
any doctrinal discussion of the relationship between treaty and custom, made
short references to the Nuremberg Judgment and to the Report of the UN Secre-
tary-General on the Statute of the ICTY. If conrmed that humanitarian treaties
demonstrate practice and opinio juris for custom formation:

119 For instance, Charney, Remarks in Disentangling Treaty and Customary Law, 81
PROC. ASIL 159, 160, 163 (1987). See Byers, supra note 14, at 167-170 for a discussion
of some scholarly views.
120 Wolfke, supra note 15, at 33.
121 Wolfke, supra note 15, at 33.
123 Oppenheims International Law supra note 22, at 28 and 33.
124 Abi-Saab, supra note 50, at 18; Meron, supra note 9, at 37-41.
378 Chapter 6
The extensive codication of humanitarian law and the extent of the accession to the
resultant treaties, as well as the fact that the denunciation clauses that existed in the
codication instruments have never been used, have provided the international com-
munity with a corpus of treaty rules the great majority of which had already become
customary and which reected the most universally recognized humanitarian princi-
ples. These rules indicate the normal conduct and behaviour expected of States.126
Clark minimized the signicance of this statement: the Court clearly reiterated
that treaty rules may nd their way into customary rules, it did not add anything
new to the subject.127 The Court nevertheless combined the discussion of exten-
sive ratications with non-use of denunciation clauses to reach important con-
clusions concerning both conduct and expectations.
The interaction between treaty and custom has been the subject of extensive
scholarly commentary stimulated by the North Sea Continental Shelf cases (1969)
and the Nicaragua case (1986). In the Continental Shelf case, in discussing the
formation of customary law through treaty provisions, the Court stated that this
process is a perfectly possible one and does from time to time occur: it constitutes
indeed one of the recognized methods by which new rules of customary interna-
tional law may be formed.128
It was argued before the Court, that ratications and accessions to a treaty
open to all States could be regarded as practice relevant to the formation of cus-
tomary rules. The Court agreed:
With respect to other elements usually regarded as necessary before a conventional

rule can be considered to have become a general rule of international law, it might be
that [...] a very widespread and representative participation in the convention might
suce of itself provided it included that of States whose interests were specically
aected.129
Schachter warned that the Courts dicta taken literally would suggest that entry
into force of a treaty with many parties would ipso facto convert it into custom
binding on non-parties. Drawing on Thirlway, Schachter explained that the rati-
cations would be accepted as State practice in the customary law sense only be-
cause of the evidence of an intention by a large group of States to bring a treaty
rule into eective play for the international law community. 130
126 Legality of the Threat or Use of Nuclear Weapons, supra note 63, at para. 82.
127 Clark, Treaty and Custom, in International Law, the International Court of Justice
and Nuclear Weapons 171, 176 (Laurence Boisson de Chazournes and Philippe Sands,
eds., 1999).
128 North Sea Continental Shelf Cases, supra note 79, at para. 71.
129 Id., para. 73.
In the Continental Shelf case, the Court, looking primarily at practice of non-
parties, insisted on solid evidence of opinio juris. Finding it lacking, it refused to
recognize as customary the rule of equidistance in the delimitation of continental
shelf. In the Nicaragua case, the Court, looking primarily at the opinio juris of
States parties to the U.N. Charter and the OAS Charter, held that the prohibi-
tion of non-intervention constituted not only a conventional, but a customary
rule. The dierence between the two cases can be attributed to the dierence
between the norms implicated. While the Continental Shelf addressed patrimo-
nial and economic interests of the parties, the Nicaragua case dealt with broader
community values such as the prohibition of intervention in internal aairs of
States and the status of common Articles 1 and 3 of the Geneva Conventions, as
customary law.131
Even before their entry into force, multilateral conventions negotiated in in-
ternational conferences may sometimes be considered, prima facie evidence of
customary law. This is true when a conclusion could be drawn from the travaux
prparatoires that the conventional rule was intended to embody a customary
rule, or because States were acting in conformity with the rule not yet in force.
The ICJ in the Continental Shelf case between Libya and Malta thus stated
it cannot be denied that the 1982 Convention is of major importance, having been
adopted by an overwhelming majority of States; hence it is clearly the duty of the
Court, even independently of the references made to the Convention by the Parties,
to consider in what degree any of its relevant provisions are binding upon the Parties
as a rule of customary international law.132
This phenomenon is certainly true of human rights or humanitarian conventions.

As Tomuschat points out, there has been a tendency, especially by the General
Assembly and the UN Human Rights Commission, to consider the two Interna-
tional Covenants on human rights as the relevant yardstick for unobjectionable
conduct133 both in discussion of specic themes and of non party States.134 Thus,
treaty provisions are considered as reecting and giving expression to a commonly

cherished trust of human civilization, irrespective of further design to establish both
consistent practice as well as opinio juris.135
131 Meron, supra note 9, at 25-29, 50-52.

132 Continental Shelf (Libyan Arab Jamahiriya/Malta), International Court of Justice,
Judgment of 3 June 1985, 1985 ICJ Rep. 13, 30 [A-38]. Also Delimitation of the Mari-
time Boundary in the Gulf of Maine Area (Canada/United States), International
Court of Justice (Chamber), Judgment of 12 October 1984, 1984 ICJ Rep. 246, 294.
380 Chapter 6
I have already mentioned the Tadi case (1995) and its contribution to the clarica-
tion of the role of custom in relation to humanitarian treaties. Recently, the ICTY
Appeals Chamber in Prosecutor v. Strugar and others (Decision on Interlocutory
Appeal, 22 November 2002, case IT-01-42-AR72), conrmed a Trial Chambers
decision that the jurisdictional basis for the charges against him was
not Articles 51-52 of Additional Protocol I and Article 13 of Additional Pro-
tocol II to the Geneva Conventions, but the underlying principles of customary
international law recognized therein. The Appeals Chamber held that the viola-
tion of these customary principles, prohibiting attacks on civilians and civilian
objects, entails individual criminal responsibility.
This approach, while broadly supported, has not gone unchallenged, with
some writers objecting to the use of human rights treaties as evidence of custom-
ary rules.136 A critic of customary human rights, Weisburd, argued that human
rights treaties cannot represent practice informed by opinio juris and can con-
tribute little to establishing their prohibitions as rules of customary law.137 In his
view a treaty is not evidence of opinio juris if the parties expressly deny in the
treaty text any opinio juris as to the legal status of the treatys rules outside the
instrument and
a treaty may deny opinio juris even without an express statement to that eect if the
treaty contains other evidence demonstrating that the parties would not see the trea-
tys rules as binding but for the treaty.138
He suggests that this would be the case when a treaty limits partys right to inquire
into another partys observance or when remedies are not available.139
Whether to attribute customary law signicance to a particular treaty, de-
pends of course on the entire context, and especially on the circumstances of its
adoption and subsequent practice by both parties and non-parties. I agree with
Schachter, who distinguished between codication treaties and treaty rules re-
sulting from widely politicized debates and bloc voting:
[c]onventions invoked as customary law are obviously subject to the criteria of State
practice and opinio juris, but application of these criteria vary with the nature of the
convention, the relationship of the convention to basic values, and the process by
which the convention came into existence.140
136 For instance, Mendelson, Remarks in Disentangling Treaty and Customary Law, 81
Procs ASIL 160, 162-163 (1987).
137 Weisburd, Customary International Law: The Problem of Treaties, 21 Vanderbilt J.
Transnatl L. 1, 29 (1988).
138 Id., 25
139 Id.
140 Schachter, Remarks in Disentangling Treaty and Customary Law, 81 Procs ASIL 158,
159 (1987).
The Geneva Conventions are a prime example of treaties accepted as reecting

customary principles, without, in most cases, any inquiry concerning concord-
ant practice. Some supporting practice is, however, required for all treaty norms
claiming customary law status.
The contribution made by the International Law Commission to the devel-
opment of customary international law, merits mention. The Commission has
integrated itself into the process of identifying, consolidating, sustaining, adapt-
ing and even forming rules of customary, or general international law.141 Although
references to the debates, reports, or drafts of the Commission or its rapporteurs
have been criticized142 as evidence of customary law the inuence of the work
of the ILC on the development of customary law is clear.143
Conventions which have been adopted on the basis of the Commissions draft articles
have on many occasions been treated as providing authoritative evidence of the state
of customary law, in some cases before they have entered into force. More dramati-
cally still and reecting yet more directly the achievement of the Commission in this
regard, draft articles produced by the Commission have themselves been regarded as
evidence of the position at customary law, even, indeed, before their preparation has
been completed.144
However the ILC has been kept out of such politically important elds as the
negotiation of the 1982 Law of the Sea Convention, human rights, disarmament,
and environmental law.145
The relevance for custom formation of practice of States parties merits ad-
ditional comments.146 I agree with those who attribute signicance to the question
how widely a particular treaty has been ratied. Important questions include (1)
141 Introduction: The Achievement of the International Law Commission, in International

Law on the Eve of the Twenty-rst Century: Views from the International Law Com-
mission 1, 11 (UN Sales No.E/F 97.V.4, 1997).
142 Weil, supra note 10, at 175-176.
143 Schwebel, The Inuence of the International Court of Justice on the Work of the In-
ternational Law Commission and the Inuence of the Commission on the Work of the
Court, United Nations Colloquium on Progressive Development and Codication
of International Law to Commemorate the Fiftieth Anniversary of the International
Law Commission, New-York, October 1997.
144 Introduction: The Achievement of the International Law Commission, supra note 141,
at 11-12.
145 Owada, An Overview of the International Law-making Process and the Role of the
International Law Commission, United Nations Colloquium on Progressive Develop-
ment and Codication of International Law to Commemorate the Fiftieth Anniver-
sary of the International Law Commission, New-York, October 1997, at 2.
382 Chapter 6
the normative values stated in the treaty; and (2) the behavior of States parties.147
Acts by State parties concordant with the treaty obviously are indistinguishable
from acts in the application of the Convention. If it could be demonstrated, how-
ever, that in acting in a particular way, parties to a convention believed and rec-
ognized that their duty to conform to a particular norm was required not only
by their contractual obligations but by customary or general international law
as well (or, in the case of the Geneva Conventions, by binding and compelling
principles of humanity), such an opinio juris must be given probative weight for
the formation of customary law. A distinction between an opinio juris generalis
and an opinio obligationis conventionalis has already been suggested by Professor
Cheng.148
Opinio juris is thus critical for the transformation of treaty norms into gen-
eral law. To be sure, it is dicult to demonstrate such an opinio juris, but this
poses a problem of proof rather than of principle. The possibility that a party to
the Geneva Conventions, for example, may be motivated by the belief that a par-
ticular course of conduct is required not only contractually but by the underlying
principles of humanity, is quite real.
How to assess the weight of such opinio juris, when not accompanied by
practice of non-parties? In the absence of practice extrinsic to the treaty, non-
parties are unlikely to accept being bound by principles which the parties may
consider to be custom grafted on to the treaty. On the other hand, parties to
normative treaties embodying deeply felt community values have a strong inter-
est in ensuring concordant behavior by non-parties and, thus, in promoting the
customary character of the treaty. It is well known that States and non-govern-
mental organizations invoke provisions of human rights and humanitarian trea-
ties characterized as customary or as general law against non-party States guilty
of egregious violations of important values of the international community. The
eectiveness of this invocation may depend on the proof of acquiescence in the
norm stated in the treaty by non-parties and in their adoption of a particular
norm stated in the treaty in their practice.
An important factor is whether States parties observe a particular conven-
tion and whether they regard it as normative or contractual. As with other widely
147 Regarding the importance of the behavior of non-party states with regard to the
norms stated in a convention, see Meron, id.
148 Cheng, Custom: The Future of General State Practice in a Divided World, in The Struc-
ture and Process of International Law 513, 532-3 (R.Macdonald and D.Johnston eds.
1983). In a dierent context (concerning the adoption of a treaty at an international
conference), Professor Sohn speaks of opinio juris in the sense that the provisions
of a convention are generally acceptable. Sohn, Generally Accepted International
Rules, 61 Wash. L. Rev. 1073 at 1078 (1986) at 1078. He considers a multilateral con-
vention not only as a treaty among the parties to it, but as a record of the consensus
of experts as to what the law is or should be. Sohn, Unratied Treaties as a Source
of Customary International Law, in Realism in Law-Making: Essays in International
Law in Honor of Willem Riphagen 231 (A. Bos and H. Siblesz eds. 1986) at 239. On
customary law applicable between parties to agreements, see Id. at 25.
ratied treaties, if States parties comply with a particular convention in actual

practice, verbally arm its normative value, and accept it in opinio juris, both
States and tribunals will be reluctant to advance or to accept the argument that
such a convention is solely, or even primarily, conventional. Such observance by
the parties will eventually lead, in the perception of governments and scholars, to
the blurring of the distinction between norms of the conventions that are already
recognized as customary law and other provisions that have not yet achieved that
status.
C. General Principles of Law

There is a considerable doctrinal divergence on the meaning and scope of the
general principles of law recognized by civilized nations in Article 38 of the
Statute of the ICJ. In its narrower sense, these are principles of municipal law,
which are applicable to inter-State relations. Their importation into international
law takes place through analogies and broad principles and policies, rather than
through direct incorporation. As Lord McNair suggested: 149
International law has recruited and continues to recruit many of its rules and insti-
tutions from private systems of law ... The way in which international law borrows
from the source is not by means of importing private law institutions lock, stock
and barrel, ready made and fully equipped with set of rules ... In my opinion the true
view of the duty of international tribunals in this matter is to regard any features or
terminology which are reminiscent of the rules and institutions of private law as an
indication of policy and principles rather than as directly importing these rules and
institutions.150
Even so, these principles have rarely been referred to by the ICJ, which prefers to
speak of principles of customary or general international law.151 Schachter noted
that
[d]espite the eloquent arguments made for using national law principles as an inde-
pendent source of international law, it cannot be said that either courts or the po-
litical organs of States have signicantly drawn on municipal law principles as an
autonomous and distinct ground for binding rules of conduct.152
Some measure of acceptance by States for the transfer of such principles into in-
ternational law is usually expected. In inter-State relations, the general principles
of law have found little application. But the importation of municipal law princi-
149 Oppenheims International Law, supra note 22, at 37.

150 International Status of South West Africa, International Court of Justice, Advisory
Opinion, 1950 ICJ Rep., at 148; cited in Schachter, supra note 1, at 52 (1991).
151 Oppenheims International Law, supra note 22, at 37-38.
384 Chapter 6
ples may have more of a potential for the emergent international law concerned
with the individuals, business companies, environmental dangers and shared re-
sources.153 Even so, the great expectations of Hersch Lauterpacht, Wilfred Jenks
and Wolfgang Friedmann for the building of international law on municipal law
analogies and the common law of mankind have only partially been realized. One
notable exception is general principles and procedures of municipal criminal
laws, which are often invoked by the ad hoc criminal tribunals
Some principles of international standards of civilization, equity, or natural
justice, applied in the context of the protection of aliens, and traditionally con-
sidered as general principles of law recognized by civilized nations, have, for the
most part, been incorporated in and replaced by the contemporary human rights
law.154 Nevertheless,
The fact that equity and human rights have come to the forefront in contemporary
international law has tended to minimize reference to natural justice as an opera-
tive concept, but much of its substantive content continues to inuence international
decisions under those or other headings.155
It is disappointing that even in the eld of administration of justice and due proc-
ess, Article 38(1)(c) of the ICJs Statute general principles has not served as
one of the principal methods for the transformation of such standards into inter-
national law.156
The unforeseen potential of general principles of law in the eld of human
rights,157 has thus not been realized, with one major exception. General princi-
ples have played a key role in the European Court of Justice. The original instru-
ments that established the European Communities did not include any provisions
guaranteeing human rights and freedoms. It became clear, however, that if the
supremacy of the European Communities law over national legislation, includ-
ing national constitutions, was to be accepted by national supreme courts, the
European Communities law had to integrate the principal national guarantees
of fundamental human rights. The Court, nayant pas sous la main un catalogue
complet de droits et liberts, a d, [...] se tourner vers les principes communs aux
droits des Etats membres.158 In numerous cases, the Court has accepted and reaf-
rmed the applicability of human rights principles. A classic pronouncement is
found in the Wachauf case:
153 Schachter, supra note 1, at 53 (1991). Also Oppenheims International Law, supra note
22, at 39.
158 Morin, Ltat de droit: mergence dun principe du droit international, 254 Collected
Courses 9, 237 (1995).
The Court has consistently held [...] that fundamental rights form an integral part of
the general principles of the law, the observance of which is ensured by the Court.
On safeguarding those rights, the Court has to look to the constitutional traditions
common to Member States, so that measures which are incompatible with funda-
mental human rights recognized in those States may not nd acceptance in the Com-
munity.159
The Court has also drawn on the European Convention on Human Rights.160 Go-
ing beyond the main objective of the European Communities economic inte-
gration -161 the European Unions human rights policy accepted the triptych: de-
mocracy/rule of law/human rights162.
A dierent perspective of Article 38(1)(c) focuses on principles recognized in
the international system and not limited to those found in domestic legal systems.
General principles of international law may overlap with and be hardly distin-
guishable from customary law. As Cheng noted:
While conventions can easily be distinguished from the two other sources of inter-
national law, the line of demarcation between custom and general principles of law
recognized by civilized nations is often not very clear, since international custom or
customary international law, understood in a broad sense, may include all that is un-
written in international law, i.e., both custom and general principles of law. 163
Weil contrasts the general principles of law common to civilized nations men-
tioned in Article 38 with such general principles of international law.164 The lat-
ter include prohibition of the use of force, of non-intervention, respect for el-
ementary considerations of humanity, and the general principles of humanitarian
law. In his view, such principles are essentially customary in character: loin de
relever dune source autonome de droit international, tous ces principes ont en
ralit le caractre de rgles coutumires.165
In contrast to Weil, Simma and Alston consider general principles as falling
outside the ambit of customary law. They emphasize that such principles do not
conform to the classic process of formation of customary law. They draw support
159 Wachauf v. Germany, Case 5/88, [1989] ECR 2609; quoted in Leben, Is there an Euro-
pean Approach to Human Rights?, in The EU and Human Rights 69, 89 (Philip Alston
ed., 1999).
160 Leben , supra note 159, at 89.
161 Morin, supra note 158, at 239.
162 Leben, supra note 159, at 93-94.
163 Bin Cheng, General Principles of Law 23 (187), quoted in The Role of State Practice in
the Formation of Customary and Jus Cogens Norms of International Law, [1989-1990]
American Branch of the International Law Association, Committee Reports at 111.
165 Weil, supra note 10, at 150-151.
386 Chapter 6
from a report of a committee of the International Law Association. Discussing

the possibility of formation of axiomatic customary rules (e.g., sovereign equal-
ity or non-intervention), which would not need to be supported by practice over
time, the Committee wrote that customary law is not necessarily coterminous
with that of unwritten law, so that these other forms of unwritten law are not
really customary law.166 A prominent advocate of such an approach, Abi-Saab,
regards a universal treaty as a medium of general international law, distinct
from customary law.167 He considers general international law as comprising
rules and principles invoked de manire axiomatique, comme une vidence dont
lexistence et la provenance nont pas tre prouves:
Il ny a aucune raison pour quune telle rgle puisse tre gnre par un certain nom-
bre de prcdents considrs comme susants pour tablir lexistence dune coutume
gnrale ou universelle, mais pas par un trait accept par un grand nombre dEtats,
du moins aussi grand que celui des Etats impliqus dans les prcdents utiliss pour
tablir lexistence de la rgle coutumire.168
He derives the authority of a universal treaty from opinio juris and legal expecta-
tions independently of practice.169 Of course, a general treaty widely ratied is
capable of generating customary law. Fitting axiomatic principles apart from
jus cogens into the present theory of sources is more dicult, however. There
is a danger of arbitrariness and subjectivity in asserting that a principle which
falls short in meeting the criteria of custom is binding on States as a principle of
international law.
Obviously, the rapid development of international law-making processes
produces an overlap and synergy of sources.
The slow pace of the past that led from practice to opinio juris and from customary
law to its codication in treaty form, has given rise to what Eduardo Jimenez de Are-
chaga aptly described as the simultaneous interplay of sources: while a customary
rule may be emerging, it is simultaneously being codied and progressively devel-
oped in major international conferences, in turn reecting the views expressed by
means of resolutions of international organizations and other acts.170
166 The Objective Element, supra note 18, at 10.

168 Id.
169 Id. at 210-211.
170 Orrego Vicua, Major Complexities in Contemporary International Law Making, pa-
per presented at the United Nations Colloquium on Progressive Development and
Codication of International Law to Commemorate the Fiftieth Anniversary of the
International Law Commission, New-York, October 1997, at 3. See Jimenez de Are-
chaga, International Law in the Past Third of a Century, 159 Collected Courses 1, 11-
34 (1978-I).
These developments can be seen, as Jennings suggests, as a necessary symptom

of progress, whether or not they t nicely with what the textbooks say.171
D. International Organizations and Sources of International Law

The enhanced role of international organizations has inuenced the process of
developing customary law, providing an easier access to State practice and to
opinio juris. Oppenheim thus noted:
Apart from any direct function of international organizations as a potential source of

international law, the concentration of State practice now developed and displayed in
international organizations and the collective decisions and activities of the organiza-
tions themselves may be valuable evidence of general practices accepted as law in the
elds in which those organizations operate.172
In a new section of Oppenheims 9th edition, Jennings and Watts speculate on the
impact of international organizations upon the sources of international law:173
[...] the fact is that the members of the international community have in a short space
of time developed new procedures through which they can act collectively. While at
present this can be regarded as merely providing a dierent forum for giving rise to
rules whose legal force derives from the traditional sources of international law, there
may come a time when the collective actions of the international community within
the framework provided by international organizations will acquire the character of
separate source of law.174
A similar point is made by Wolfke in the more limited context of international

organizations internal rules: [a]t present [...] in face of the amassed practice, it
is already undisputable that to the triad (conventional and customary rules and
general principles) at least rules made by organizations must be added.175
International organizations contribute to the formation of international law
also by providing a forum for collective action by States and through preparation
of law-making or codication treaties.176
171 Jennings, An International Lawyer Takes Stock, 39 Intl & Comp. L.Q. 513, 519 (1990).
173 Oppenheims International Law, supra note 22, at 45.
174 Oppenheims International Law, supra note 22, at 46-47.
175 Wolfke, Some Reections on Kinds of Rules and International Law-Making by Prac-
tice, in Theory of International Law at the Threshold of the 21st Century: Essays in
Honour of Krzysztof Skubiszewski 587 (1996).
176 Oppenheims International Law, supra note 22, at 47-50 (Robert Jennings and Arthur
Watts eds., 9th ed., 1992).
388 Chapter 6
I. Resolutions and Declarations as Instances of State Practice

It is frequently asserted that resolutions adopted by international organizations
are instances of State practice which are potentially creative, or at least indica-
tive, of rules of customary international law.177 Confronted with a pre-existing
system of international law, new States have sought to promote their interests by
the adoption of resolutions and declarations in fora where they have voting ma-
jorities. Generally, resolutions of international organizations, including the U.N.
General Assembly (except with regard to the budget and internal rules), are not
legally binding but their language may provide important indications. The range
of scholarly opinion on legal consequences of resolutions concerned with general
international law varies widely.178
Higgins surveys the entire spectrum of scholarly views, from writers who are
deeply skeptical of any legal consequences of General Assembly resolutions and
who emphasize their recommendatory nature, to those who argue that the Gen-
eral Assembly has a quasi-legislative competence or that it has secured powers
beyond the recommendatory powers granted by the UN Charter.179 Other sup-
porters of binding resolutions regard them as an authoritative interpretation of
the Charters Human Rights provision.180
Skeptics argue that votes in favor of resolutions or resolutions adopted by
consensus do not necessarily reect any meaningful support for the rules stated
in the resolutions. The intermediate position is taken by those who recognize
that certain resolutions may, in certain circumstances, contribute to the forma-
tion of customary law, or at least indicate developing trends of international law.
Supporting such a middle view, Higgins advocates a case-by-case consideration
whether a particular resolution expresses a consensus on a customary rule. Her
inquiry takes into account the subject-matter of the resolution, the extent of sup-
port, the practice in relation to the resolution and the evidence of opinio juris.
She warns that
one must take care not to use General Assembly resolutions as a short cut to ascer-
taining international practice in its entirety on a matter practice in the larger world
arena is still the relevant canvas, although UN resolutions are part of the picture.
Resolutions cannot be a substitute for ascertaining custom; this tasks will continue to
require that other evidences of State practice be examined alongside those collective
acts evidenced in General Assembly resolutions.181

178 Rosalyn Higgins, supra note 91, at 26.
179 Rosalyn Higgins, supra note 91, at 26-27 (1994). Reviewed opinions include those of
G. Fitzmaurice, S. Schwebel, F. Vallat, D. Johnson, G. Arangio-Ruiz, C. Joyner, M.
Lachs, O. Schachter, R. Falk, and J. Castaneda.
180 For a discussion and criticism of this method, see Meron, supra note 9, at 82-84.
181 Rosalyn Higgins, supra note 91, at 28.
Following De Archagas analysis of the eect of conventions adopted at codi-

cation conferences upon customary law, Abi-Saab nds that there is a growing
consensus in literature to the eect that normative resolutions interact with cus-
toms exactly in the same way as codication treaties. They can thus potentially
have a declaratory, a crystallizing or a generating eect.182 I agree. Because of the
values involved and political factors, the classical theory of acquiescence plays an
important role here.183
In the Advisory Opinion on Nuclear Weapons, the Court stated some useful
but obvious criteria:
General Assembly resolutions, even if they are not binding, may sometimes have
normative value. They can, in certain circumstances, provide evidence important for
establishing the existence of a rule or the emergence of an opinio juris. To establish
whether this is true of a given General Assembly resolution, it is necessary to look
at its content and the conditions of its adoption; it is also necessary to see whether
an opinio juris exists as to its normative character. Or a series of resolutions may
show the gradual evolution of the opinio juris required for the establishment of a new
rule.184
An attempt to endow customary law status instantly upon norms approved by

consensus or near-consensus at international conferences raises serious questions.
First, in some cases it is far from certain that the participating States intended to
be bound. In supporting a consensus, a State may be motivated by considerations
which have nothing to do with acceptance of the binding character of the norm,
at least not at the moment of its adoption. Second, the statements of a representa-
tive expressing facially minor reservations to or interpretations of a norm may
in fact mask more serious disagreements which the representative prefers not
to highlight. Third, the immediately binding character of a norm should not be
asserted on the basis of consensus without considering the authority of the repre-
sentative to commit his or her State. The assertion that by supporting a consensus
resolution, a diplomat representing his/her State before an international confer-
ence for the purpose of adopting the text of a resolution, may commit his State
to recognize the instant customary law status of the norms approved may clash
with principles of democratic government under law and separation of powers.
This is not to suggest that the sources of international law listed in Article 38
of the ICJs Statute are comprehensive and immutable. It may well be that one day
these sources will be expanded by, for example, attributing a more direct law-cre-
ating role to normative resolutions of the General Assembly. For the time being,
however, recognized methods of building customary law provide the exibility
182 Abi-Saab, supra note 50, at 13, supra note 12, at 172-173.
390 Chapter 6
required for promoting the passage of such community values as human rights
and humanitarian norms into customary law.
Beside UN General Assembly resolutions, State practice is nding expres-
sion through new types of mechanisms which are less structured and less solemn
than in the past but that contribute signicantly to the identication of consent
and will of States. Among such mechanisms there is the widespread phenomenon
of the development of soft law.185 Soft law covers a wide range of international
instruments, and has a strong presence in the human rights and environment. A
prime example, the Helsinki Declaration, has had important eects on human
rights and on many normative CSCE/OSCE Human Rights Dimension docu-
ments. The 1990 Charter of Paris for a New Europe186, although not a binding
agreement, reects the intent of participating States to commit themselves to the
protection of human rights and democracy, and to submit themselves to interna-
tional scrutiny in these elds.187
II. Role of NGOs

Although NGOs are discussed also in my chapter on Subjects of International
Law, our discussion of sources cannot be complete without acknowledging the
role of NGOs in law-making processes through preparation and adoption of nor-
mative drafts, through lobbying, and the media. .
The UN Charter reserved NGOs consultative status to matters within the
competence of the Economic and Social Council.188 Van Boven suggested that
economic, social and human rights matters were regarded as warranting some
degree of non-government involvement,189 while political issues such as peace
and security were to be the exclusive domain of inter-State cooperation.190 This di-
chotomy is now largely out-of-date, with the role of NGOs being recognized also
in matters pertaining to international peace and security, international trade, sus-
tainable development, environment and globalization.191 NGOs have had a major
inuence in prohibiting the use of anti-personnel land mines (Ottawa Treaty) and
on the drafting of the ICC Statute and its side-documents.
Mullerson writes of:
185 Orrego Vicua, Major Complexities in Contemporary International Law Making, su-
pra note 170, at 8.
186 Charter of Paris for a New Europe, 21 November 1990, CSCE Document, at 7.
187 Morin, supra note 158, at 247.
188 UN Charter, Article 71.
189 Van Boven, The Role of Non-Governmental Organizations in International Human
Rights Standard-Setting: A Prerequisite of Democracy, 20 Calif. W. Intl L.J. 207, 208
(1989-1990).
191 Report of the Secretary General on the Work of the Organization, UN Doc. A/44/1,
VII (1989), quoted in Van Boven, supra note 189, at 208.
the growing importance of non-governmental organizations in the law-making proc-

ess of the international arena, that is the role of world public opinion. These organiza-
tions often express values and interests common to mankind as a whole. Although
States remain the main law-making authorities, they have to take into account the
will of various democratic, antiwar and antinuclear movements.192
Although, [i]n the nal analysis, governments are the decision-makers with re-
gard to the contents and adoption of conventions and other human rights instru-
ments,193 NGOs have been working in and around the development of conven-
tional law.194 NGOs have had a role in the advancement of post sovereign-State
international law.
These institutions, for the most part, represent substantive interests quite independ-
ent from the State: e.g., the environment, human rights, womens equality, minority
rights. Their interest is to push the formal participants in the development of law
still nation-States in directions justied independently of any particular States
interests.195
Examples of standard-setting activities of NGOs include the Siracusa (1984) and

the Limburg Principles (1986), drafted by the International Commission of Ju-
rists and other NGOs, which sought to elaborate interpretative rules for the two
human rights Covenants. Such drafts and compilations have been circulated as
UN documents and are occasionally referred to as an authoritative source in
the committees that carry out supervisory tasks with respect to the implementa-
tion of the two international covenants.196 Texts drawn up by NGOs have been
adopted by the UN General Assembly, served as models for the Human Rights
Commission, and more generally inuenced inter-State standard-setting.197
Van Boven explains the increased involvement of NGOs in human rights
standards-setting, and in other elds (environmental law) by the present phase of
international cooperation which is supposed to serve common goals and com-
mon interests that are vital for the survival of humankind. He adds
The international law of human rights is a people-oriented law, and it is only natural
that the shaping of this law should be a process in which representative sectors of
society participate. This is a logical requirement of democracy. While the origin of
contemporary international law and a fortiori of international human rights law is
192 Mullerson, New Thinking by Soviet Scholars: Sources of International Law: New Ten-
dencies in Soviet Thinking, 83 AJIL 494, 512 (1989).
194 Kahn, supra note 81, at 369.
195 Id.
196 Van Boven, supra note 189, at 220-221.
197 Van Boven, supra note 189, at 218-219.
392 Chapter 6
supposed to bend towards serving human and welfare interests, the international
law-making process generally follows traditional patterns with a predominant role
for States. This is an anomaly and reveals a lack of democratic quality.198
While NGOs have had a salutary inuence on the opening up of international

processes to additional participants, their own transparency and accountability
continue to present troubling questions.
E. Peremptory Rules
I. The Acceptance of Jus Cogens

It is only in Article 103 of the Charter of the United Nations that a hierarchical
principle of general international law is made explicit. Its binding character is
explained, as Lord McNair puts it, by the constitutive or semi-legislative char-
acter199 of the Charter. This is not to suggest that, apart from Article 103 of the
Charter, hierarchical principles are totally absent from international law. Some
such rules have been developed in other international organizations. Neverthe-
less, the reach of hierarchically superior instruments adopted within a particular
institution is limited to the legal system of that organization and should not be
confused with jus cogens.200
The ILCs codication of the law of treaties recognized the special impor-
tance of certain norms in the international legal order. Peremptory norms are
thus mentioned in Article 53 and 64 of the Vienna Convention on the Law of
Treaties, which declare void treaties in conict with a peremptory norm of inter-
national law. Such a norm is dened as a norm accepted and recognized by the
international community of States as a whole as a norm from which no deroga-
tion is permitted.
As a matter of practice, States do not conclude agreements to commit tor-
ture or genocide or enslave peoples. Some examples of jus cogens commonly cited
in the literature tend to be hypothses dcole. States are not inclined to contest
the illegality of acts prohibited by jus cogens. When such acts do take place, States
either deny the factual allegations or justify violations by more subtle or ingenious
arguments. Thus, while the principle of jus cogens has a moral and political value,
its immediate practical eect on the validity of treaties is limited.201
The International Court of Justice gave currency to the idea of a hierarchy of
human rights norms in the Barcelona Traction case by suggesting in its famous
198 Van Boven, supra note 189, 224.

199 A. McNair, The Law of Treaties 217 (1961).
200 Meron, On a Hierarchy of International Human Rights, 80 AJIL 1, 4 (1986).
201 Meron, Human Rights Law Making in the United Nations 190 (1986).
dictum that basic human rights of the person202 create obligations erga omnes.203
This dictum was construed by the ILC to mean that there is a number, albeit
a small one, of international obligations which, by reason of the importance of
their subject-matter for the international community as a whole, are unlike the
others obligations in whose fulllment all States have a legal interest.204 Obliga-
tions erga omnes discussed mainly in the chapter on State responsibility -are
not identical with jus cogens, but there is, of course, a certain overlap between the
two. I have already pointed out that the practice, including that of the ICJ, lags
behind the principle of obligations erga omnes.205
The concept of jus cogens has been widely accepted as a moral, ethical and
rhetorical notion, but has rarely been applied in actual practice.206 Although in
the Vienna Convention on the Law of Treaties, jus cogens may have contemplated
mainly such fundamental Charter norms as prohibition of aggression and unlaw-
ful use of force (and have been extended to slave trade, piracy and genocide), over
the years jus cogens has been invoked primarily for human rights and humanitar-
ian norms.
Except for a small number of norms, there is still a lack of consensus about
the identity of rules that can safely be considered as constituting jus cogens. In
international debates about use of force, human rights and humanitarian law, the
invocation of jus cogens has nevertheless been a powerful political and rhetorical
tool. It had a major impact on such projects of international codication as ILCs
articles on State responsibility (as, for example, in the consideration that jus co-
gens trumps the justication of circumstances excluding wrongfulness).
The ICJ has been cautious in its allusions to jus cogens,207 but separate and
dissenting opinions have referred to it.208 In the Advisory Opinion on Nuclear
Weapons, the Court itself stated that
It is undoubtedly because a great many rules of humanitarian law applicable in armed

conict are so fundamental to the respect of the human person and elementary con-
siderations of humanity as the Court put it in its Judgment of 9April1949 in the Cor-
fu Channel case (I.C.J. Reports 1949, p.22), that the Hague and Geneva Conventions
202 Barcelona Traction Light and Power Company, Ltd. (Belgium v. Spain), 1970 ICJ
Rep.4, 32.
203 Meron, supra note 200.
204 [1976] 2(2) Yb. Intl L. Commn 99, UN Doc. A/CN.4/Ser. A/1976/Add.1 (pt.2). For a
detailed discussion, see Meron, supra note 9, at 184-89.
205 See also Zemanek, New Trends In The Enforcement of Erga Omnes Obligations, 4 Max
Planck Y.B. UN Law 2 (2000).
206 Byers, supra note 14, at 184, Tomuschat, supra 70, at 306-307; Dinah Shelton, Righting
Wrongs: Reparations In The Articles On State Responsibility, 96 AJIL 833, 843 (2002).
207 For instance, Military and Paramilitary Activities in and against Nicaragua, supra
note 5, para. 190. See Christenson, Jus Cogens: Guarding Interests Fundamental to
International Society, 28 Va. J. Intl L. 585, 607-608 (1988).
208 See references in Ragazzi, supra note 100, at 46, footnote 12.
394 Chapter 6
have enjoyed a broad accession. Further these fundamental rules are to be observed
by all States whether or not they have ratied the conventions that contain them, be-
cause they constitute intransgressible principles of international customary law.209
Condorelli suggests that the Courts terminological innovation, intrangressible

principles are associated with, but not identical to jus cogens.210 It is obvious that
the Court deliberately refrained from pronouncing on jus cogens in this case.
Flauss wrote that jus cogens has been incorporated in a number of national
jurisdictions.211 Comment 1 to 702 of the Third Restatement of the US Foreign
Relations Law (1987) states that these prohibitory rules of customary law listed in
that section constitute jus cogens and that an international agreement violating
them would be void: genocide, slavery or slave trade, the murder or causing disap-
pearances of individuals, torture or other cruel, inhuman, or degrading treatment
or punishment, prolonged arbitrary detention, systematic racial discrimination,
and consistent patterns of gross violations of internationally recognized human
rights, all of which constitute violations if practiced as a matter of State policy.212
II. Sources of Peremptory Rules

The ILC Commentary on draft Article 50 (Article 53 of the Convention on the
Law of Treaties) states that it is not the form of a general rule of international law,
but the particular nature of the subject-matter with which it deals that gives to a
rule the character of jus cogens.213 Such rules are based not only on law, but as Fit-
zmaurice noted, on considerations of morals and of international good order.214
The principle of jus cogens, has unquestionable ethical underpinnings and unim-
peachable antecedents. It may be traced to the distinction in Roman law between
jus strictum and jus dispositivum and to Grotiuss references to jus strictum.215
Beyond the classic examples of norms prohibiting aggression, piracy, geno-
cide, and slavery, identication of jus cogens norms has been dicult.216 In its
Articles and Commentary on the Law of Treaties, the ILC has prudently refrained
210 Condorelli, supra note 69, at 234-235.
213 Draft Articles on the Law of Treaties, at 67, para. 2. [1966-II] Yearbook of the Inter-
national Law Commission at 248, para 2, UN Doc. A(CN.4/SER, A/1996) Add.1.
214 Ragazzi, supra note 100, at 49, quoting Law of Treaties: Third Report by G.G. Fitzmau-
rice, Special Rapporteur (UN Doc. A/CN.4/115), in [1958] II Yearbook of the Interna-
tional Law Commission 20, 41, para. 76.
216 Verhoeven, Jus Cogens and Reservations or Counter-Reservations to the Jurisdiction
of the International Court of Justice, in International Law: Theory and Practice. Essay
in Honour of Eric Suy 195, 196 (Karel Wellens ed., 1998); Byers, supra note 14, at 186.
from suggesting a catalogue of peremptory rules.217 At the Vienna Conference,

the diverging political agenda of the various States, and their concern that a
sample list of peremptory norms might lead to abuse, discouraged all attempts
to include examples of jus cogens in the nal text of the Vienna Convention.218
Verhoeven suggests that scarcity of examples of jus cogens
merely reects the still rudimentary organization of a community which is no longer

a family (of nations) but which has not yet developed into a society. Among States
who have little in common to share (beyond the prohibition on unilateral resort to
armed force), peremptory norms cannot but remain relatively exceptional [...]. This
does not mean at all that public policy considerations are necessarily irrelevant in
international relations and that treaty obligations should (necessarily) prevail over
the interests of the international community of States as a whole.219
Are jus cogens rules a sort of customary law plus, or a form of general principles
of law?
Many writers suggest that rules of jus cogens are customary rules, with a
reinforced opinio juris.220 Others argue that the formation of jus cogens rules
does not follow the classic customary process and that jus cogens rules are more
akin to general principles of international law.221 Tomuschat believes that these
rules stem from a declaratory process with only an attenuated conrmation by
practice:
[...] certain deductions from the constitutional foundations of the international com-
munity provide binding rules that need no additional corroboration by practice.
However, it will always be necessary to ascertain that indeed the international com-
munity sticks to its axiomatic premises. In that regard, the regular criteria of custom-
ary law keep an important evidentiary function. The deductive method can never be
used to oppose the actual will of the international community.222
Sur agrees:
For a very long time I believed that jus cogens was a stronger variety of custom. In
other words there had to exist a general customary rule to which was subsequently
attributed the higher status of a rule of jus cogens [...] But today I am not entirely
certain that that was the intention of the authors of the Vienna Convention. I won-

219 Verhoeven, supra note 216, at 196.
220 Ragazzi, supra note 100, at 53-54.
221 The Role of State Practice, supra note 64, at 122-126; Simma & Alston, supra note 36,
at 104-105; Simma supra note 49, at 225-226.
396 Chapter 6
der whether jus cogens presupposes, in order for it to exist, a practice. This is not, it
would seem, required by the terms of the Vienna Convention, specically articles 53
and 64. A rule of jus cogens is a peremptory norm of general international law, rec-
ognized and accepted by the international community of States as a whole. There is
no reference to practice. It may be that the recognition, the acceptance, takes place in
solemn, declaratory fashion, but it is in no way required that there be a correspond-
ing practice.223
These are attractive suggestions. It may well be that the customary process does
not explain well the formation of peremptory rules. But to avoid subjectivity and
arbitrariness in the identication of norms of jus cogens, I believe it is necessary
to show that they have been accepted and recognized as such by the interna-
tional community as a whole. To maintain the value and credibility of jus cogens,
it should be limited to few fundamental norms. An ination of jus cogens norms
would imperil its very existence.
III. Extension of the Concept of Jus Cogens beyond Law of Treaties

Article 53 of the Vienna Convention denes a norm of jus cogens as a norm from
which no derogation is permitted. The meaning of derogation has generated
controversy. For some, the prohibition of derogation implied the prohibition of
unilateral derogation, i.e., by a norm of municipal law. Others argue that a State
acting alone could not derogate from an international norm in the technical le-
gal sense. Article 53 would thus cover only derogation by (bilateral or multilateral)
treaties. 224
Weil, for instance, argued that
Dans le cadre du droit des traits la question se pose de savoir si les Etats peuvent
droger une rgle de jus cogens, il nest pas question de drogation pour ce qui est
dun acte unilatral: un tel acte ou bien respecte le droit international, ou bien il le
viole; il ny droge pas.225
The ILC Commentary on Article 50 (Article 53), stated that no derogation from
a norm of jus cogens is permitted, even by agreement between States, thus sug-
gesting that reach beyond the law of treaties226 was contemplated. The application
of the doctrine of jus cogens to unilateral acts is widely, but not unanimously, ac-
cepted.227
223 Sur, Discussion, in Change and Stability in International Law-Making 128 (Antonio
Cassese and Joseph H.H. Weiler eds., 1988).
226 Draft Articles on the Law of Treaties, supra note 213, at 248.
227 Christenson, supra note 207, at 611-613. See also, Verhoeven, supra note 216, at 206,
applying the doctrine to reservations.
Since violations of human rights and principles of territorial integrity almost

always result from unilateral acts of States, rather than from international agree-
ments, the non-treaty aspects of jus cogens may be particularly important. Even
scholars who reserve jus cogens to the law of treaties tend to agree that inter-
national public order, public order of the international community, and interna-
tional public policy do not allow States to violate severally such norms as they are
prohibited from violating jointly with other States.228
In its draft articles on State responsibility, the ILC seems to have applied the
term of peremptory norms outside the law of treaties to unilateral State action.229
In this context, peremptory norms refer to categorical rules of international law,
or of international public policy. Judge Mosler who coined the phrase public or-
der of the international community, characterized such order as
consist[ing] of principles and rules the enforcement of which is of such importance

to the international community as a whole that any unilateral action or any agree-
ment which contravenes these principles can have no legal force. The reason for this
follows simply from logic; the law cannot recognise any act either of one member or
of several members in concert, as being legally valid if it is directed against the very
foundation of law.230
Obviously, the rationale underlying the concepts of jus cogens and public order
of the international community is the same: because of the decisive importance
of certain norms and values to the international community, they merit absolute
protection and may not be derogated from by States, whether jointly by treaty or
severally by unilateral legislative or executive action. It is in this sense that the
International Court of Justice, in the case concerning United States Diplomatic
and Consular Sta in Tehran, addressed the imperative character of the legal
obligations incumbent upon the Iranian Government.231
In the Furundija case, an ICTY Trial Chamber recognized a number of
specic consequences owing from its holding that the prohibition of torture
constituted jus cogens. This prohibition would de-legitimize any legislative, ad-
ministrative or judicial act authorizing torture.232 Thus, for example, amnesty for
acts of torture would give rise to State responsibility and would not be accorded
international legal recognition.

229 Gaja, Jus Cogens beyond the Vienna Convention, 172 Collected Courses 271, 296-297
(1981-III).
230 H. Mosler, The International Society as a Legal Community 18 (1980).
231 United States Diplomatic and Consular Sta in Tehran (United States v. Iran), Inter-
national Court of Justice, Judgment of 24 May 1980, 1980 ICJ Rep. 3, 41.
232 Prosecutor v. Furundija, ICTY Trial Chamber, Judgement of 10 December 1998, at
para. 155.
398 Chapter 6
For acts violating jus cogens norms, third States have both the right and the
duty to refrain from recognizing such acts or giving them legal eect.233 In the
Pinochet case, the Spanish Audienca Nacional sitting in full bench held that the
Chilean amnesty law did not preclude the exercise of universal jurisdiction by
Spain.234
The concept of jus cogens was also applied by the Arbitration Commission
for the former Yugoslavia established by the European Community (Badinter
Commission) in the context of State succession. In its rst opinion, the Commis-
sion held that:
The peremptory norms of general international law and, in particular, respect for the
fundamental rights of the individual and of the rights of peoples and minorities, are
binding on all parties to the succession.235
A Greek Court of First Instance dismissed a claim of immunity by Germany in a

case where the plaintis sought an indemnity for atrocities suered during World
War II German occupation. The Court held that Germany could not invoke sov-
ereign immunity for acts constituting violations of jus cogens.236 In US courts,
however, the plea of sovereign immunity had been upheld even against jus cogens.
In Siderman de Blake v. Argentina, a US Court of Appeals held that the jus cogens
status of the prohibition of torture under international law did not preclude ap-
plication of sovereign immunity.237
F. Revival of Customary Humanitarian Law

In March 2005, the International Committee of the Red Cross (ICRC) released
a report identifying, on the basis of empirical data concerning state practice and
opinion gathered from nearly fty countries plus nearly forty recent armed con-
icts, those principles of international humanitarian law enjoying the status of
233 On nullity, see Meron, supra note 200, at 199-200.

234 Auto conrmando la jurisdiccin de Espaa para conocer de los crmenes de genoci-
dio y terrorismo cometidos durante la dictadura chilena, Sala de lo Penal de la Audi-
encia Nacional, 5 November 1998, at 8.
235 Opinion No. 1 of the Conference on Yugoslavia Arbitration Commission, reprinted in
31 ILM 1488, 1495, para. 1 (1992).
236 Prefecture of Voiotia v. Federal Republic of Germany, Case No. 137/1997, Court of
First Instance of Leivadia, Greece, 30 October 1997, summarized and commented in
Bantekas, Case Note, 92 AJIL 765 (1998).
237 Siderman de Blake v. Argentina, 965 F.2d 699, 103 ILR 454 (1992). Also Princz v. Fed-
eral Republic of Germany, 26 F3d 1166, U.S.App. D.C. 102. See the dissenting opinion
by Judge Wald in Princz v. Germany, 26F3d 1179 (1962) (Germany waived its sover-
eign immunity by violating the jus cogens norms of international law condemning
enslavement and genocide.)
customary law.238 An observer might ask whether this ambitious and unprec-
edented eort is not a bit anachronistic. In an era in which international legal
principles are increasingly codied in multilateral conventions, the overall impor-
tance of customary law has arguably eroded.239 Moreover, where customary law is
applied today, the methods used to determine its content are increasingly relaxed,
particularly with respect to the establishment of state practice. The modern ap-
proach to customary law, it is said, relies principally on loosely dened opinio
juris and/or inference from the widespread ratication of treaties or support for
resolutions and other soft law instruments, and is thus more exible and open
to the relatively rapid acceptance of new norms.240 The ICRCs approach, in con-
trast, is traditional in form, although open to a wide variety of manifestations in
practice.
In my view, the ICRCs project is in fact highly relevant today. Extensive
scholarship addresses various aspects of modern debates over the identication,
application, and legal force of customary norms, and my discussion here will not
attempt to be all-encompassing. I shall limit myself to the observation that at
least in the eld of humanitarian law, customary law is thriving and continues to
depend in signicant measure on the traditional assessment of both state practice
and opinio juris. In particular, international criminal tribunals especially the
International Criminal Tribunal for the Former Yugoslavia (ICTY) have de-
veloped a rich jurisprudence elucidating customary principles of humanitarian
law. The approach taken by these tribunals is necessarily rigorous and, in a sense,
conservative. Criminal courts are bound to respect the principle of nullum cri-
men sine lege: a defendant may only be convicted on the basis of legal rules that
were clearly established at the time of the oense. If a criminal conviction for
violating uncodied customary law is to be reconciled with this principle and
I argue that it can be it must be through the use of clear and well-established
methods for identifying customary law. The legality principle is thus a restraint
on the tribunals ability to be progressive in their contributions to the develop-
ment of customary humanitarian law. The term conservative here suggests a
reluctance for an overly broad or rapid expansion of customary law oenses, and
238 See Jean-Marie Henckaerts, Study on Customary International Humanitarian Law:

A Contribution to the Understanding and Respect for the Rule of Law in Armed Con-
ict, 2005 Intl Rev. of the Red Cross 175 (providing an overview of the studys
purpose, methodology, and ndings).
239 See also, e.g., Samuel Estreicher, Rethinking the Binding Eect of Customary Interna-
tional Law, 44 VA. J. Intl L. 5, 14-15 (2003); N.C.H. Dunbar, The Myth of Customary
International Law, 1983 Austl. Y.B. Intl L. 1 (1983).
240 See, e.g., Anthea Elizabeth Roberts, Traditional and Modern Approaches to Custom-
ary International Law: A Reconciliation, 95 Am. J. Intl L. 757, 758-59 (2001); Restate-
ment (Third) of Foreign Relations, 102 reporters note 2. This development has been
criticized by some. See, e.g., J. Patrick Kelly, The Twilight of Customary International
Law, 40 Va. J. Intl L. 449 (2000) (criticizing customary international law in part
on the basis of the lack of serious, inductive assessment of state practice and opinio
juris).
400 Chapter 6
thus a guarantee of due process and human rights of the accused. In this section,
adapted from a lecture I gave at the launch of the ICRCs report, I explore the
ways in which the nullum crimen sine lege principle has aected the application
of customary humanitarian law by the criminal tribunals.
I. Modern Customary Law as Applied by Non-Criminal Tribunals

For the sake of comparison, I shall begin by looking at some of the ways in which
customary international law is identied and applied today in other international
bodies that are not constrained by the nullum crimen sine lege principle. I note
rst that customary law is certainly very much alive in those institutions, although
it no longer is the dominant source of international law. Without a doubt, the
transformation of a number of classically customary branches of international
law concerning, e.g., the interpretation of treaties, diplomatic and consular im-
munities, and the law of the sea into widely ratied and respected conventions
makes customary law less central to the international legal obligations of states
than it once was.
Nonetheless, a number of aspects of international law have so far resisted
codication through generally applicable treaties, and international tribunals
have accordingly relied on custom in resolving disputes in these areas. This in-
cludes, for instance, the Iran-United States Claims Tribunals approach to the
international law of takings241 and the jurisprudence of ICSID arbitrations.242 In
addition, the law of state responsibility, so central to practically every major inter-
national dispute, also remains uncodied,243 as do the law of sovereign, non-dip-
lomatic immunity,244 the law pertaining to extraterritorial application of national
law, and the law of diplomatic protection.245 Likewise, where one or more parties
241 See George Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal 218
(1996).
242 See, e.g., Antonio R. Parra, Applicable Substantive Law in ISCID Arbitrations
Initiated Under Investment Treaties, available at <http://www.idlo.int/texts/
5C5CIDLI5C5Cmis5850.pdf>.
243 The ILCs Articles on Responsibility of States for Internationally Wrongful Acts, ad-
opted under the leadership of James Crawford, will no doubt inform disputes concern-
ing state responsibility, but resort to primary sources will still be necessary. Adopted
by the International Law Commission at its 53d session (2001), UN GAOR, 56th sess.,
Supp. No. 10, at 43, UN DOC A/56/10 (2001).
244 Detlev F. Vagts, International Relations Looks at Customary Law: A Traditionalist
Defense, 15 Eur. J. Intl L. 1031, 1036 (2004). I note that there has been an eort
to codify the law of sovereign immunity in the U.N. Convention on Jurisdictional
Immunities of States and their Property, opened for signature on January 17, 2005.
However, as the treaty is not yet in eect and ratication prospects are uncertain,
customary law remains for now the governing law.
245 The International Law Commission approved (May 28, 2004) on the rst reading the
draft articles proposed by John Dugard. See Fifth Report on Diplomatic Protection,
UN Doc. A/CN.4/538 (2004).
to a dispute have not ratied the relevant international instruments, customary

law governs. Thus, for instance, the Eritrea-Ethiopia Claims Commission treats
customary humanitarian law as the most signicant legal component of the par-
ties relationship, because Eritrea had not ratied the Geneva Conventions until
after many of the events litigated.246
Even the regional human rights courts, which principally apply their own
constituent instruments, occasionally invoke customary law.247 Consider, for ex-
ample, the invocation by the Inter-American Court of Human Rights of the law of
state responsibility in Velsquez Rodriguez,248 and its use of customary rules per-
taining to reparation in the case of Garrido and Baigorria.249 The European Court
likewise invoked the customary rules on imputability in the cases of Assanidze250
and Ilasu.251 In Al-Adsani, that Court considered the prohibition of torture un-
der customary law and as a jus cogens rule.252 Notably absent from many of these
cases is a detailed discussion of the evidence that traditionally has supported the
establishment of the relevant rules as customary law that is, the evidence of the
practices and legal opinions of a large number of states.
It bears noting at the outset of this discussion that my objective in this sec-
tion is only descriptive. I will leave aside debates, developed extensively elsewhere,
as to whether the modern approach to discerning customary international law
is likely to strengthen the ability of the international legal system to respond ef-
fectively to contemporary problems, or may instead undercut its credibility, au-
thority, and determinacy.253 I note only that in addition to these concerns, the ICJ
must weigh other factors in determining its approach for instance, the practical
diculties involved in presentation of large bodies of evidence concerning state
practice to a bench made up of at least fteen judges and governed by quite for-
mal procedures and evidentiary rules. The existence of the ICRC study may make
246 See Partial Award of Eritreas Civilian Claims, Eritrea-Ethiopia Claims Comm., De-
cember 17, 2004, reported at 44 ILM 601, at paras. 28, 30 (2005).
247 Theodor Meron, The Implications of the European Convention on Human Rights for
the Development of Public International Law, CAHDI, Council of Europe (2000);
Lucius Caisch and Antnio A. Canado Trindade, Les Conventions Amricaine et
Europenne des Droits de lHomme et le Droit International Gnral, 1 Revue Gn-
ral de Droit International Publique 5 (2004).
248 Velsquez Rodriguez v. Honduras, case 7920, Inter-Am. Ct.H.R. (ser. C), No. 4, at pa-
ras. 164-165, 172 (1988).
249 Garrido and Baigorria v. Argentina, Inter-Am. Ct. H.R. (ser. C), No. 39, at paras. 40,
68-74 (1998).
250 Assanidze v. Georgia App. No. 71503/01, Eur. Ct. H.R., at paras. 144 150 (April 8,
2004).
251 Ilacu v. Moldova, App. No. 48787/99, Eur. Ct. H.R., at paras. 441-442, 455-464 (July
8, 2004).
252 Al-Adsani v. United Kingdom, App. No. 35763/97, Eur. Ct. H.R., at paras. 30, 60 (Nov.
21, 2001).
253 See supra note 240.
402 Chapter 6
this task easier in cases concerning international humanitarian law, and it is pos-
sible that we will see in such cases a return to a more traditional methodology.
The International Court of Justice (ICJ) articulated the textbook methodol-
ogy for identifying customary law more than 35 years ago in its seminal Conti-
nental Shelf cases.254 Yet other bodies can hardly be blamed for failing to apply
this approach, as the ICJs modern cases also do not tend to follow it. The ICJ
recognized in the Nicaragua case that such treaties do not wholly supplant cus-
tomary norms, which continue to exist independently.255 Yet where a treaty exists
in a particular area of law, even where it does not bind the parties to the dispute
in question, the ICJ has tended to treat the text of the treaty as a distillation of the
customary rule, thus eschewing examination of primary materials establishing
state practice and opinio juris.
The Nicaragua case (1986) is an example. In that case, the Court held that
common articles 1 and 3 of the Geneva Conventions constitute general principles
of humanitarian law that are binding on the United States in other words, that
they are customary law.256 In doing so, the Court made a major contribution to
the vitality of humanitarian law. What is remarkable about the Nicaragua case,
though, is the complete failure to inquire whether opinio juris and practice sup-
port the crystallization of common Articles 1 and 3 into customary law. In any
event, the impact of Nicaragua on the subsequent development of the law was
such that the customary law character of Articles 1 and 3, and practically of the
entire corpus of the Geneva Conventions, is now taken for granted and virtually
never questioned.257 The same is true, under the inuence of the Nuremberg Tri-
bunals, of the Hague Convention No. IV of 1907.258 From these developments, one
can discern perhaps the outlines of an informal stare decisis principle, as courts
and governments rely on precedent rather than repeatedly engaging in detailed
analysis of the customary status of the same principles. Practice thus appears to
give judicial decisions a greater weight than that accorded by Article 38 of the
ICJ Statute. In a dierent context, the Additional Protocol I to the Geneva Con-
254 North Sea Continental Shelf Cases (F.R.G. v. Denmark; F.R.G. v. Neth.), 1969 I.C.J. 3, at
paras. 73-81 (Feb. 29).
255 See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.),
1986 I.C.J. 14, at para. 177 (June 27).
256 Id. at paras. 218-220 (June 27).
257 For instance, the Eritrea-Ethopia Claims Commission has treated the Geneva Con-
ventions as presumptively reective of customary international law, thus placing the
burden of proof on the party claiming that any given provision was not customary
law. Eritrea-Ethiopia Claims Commission, Partial Award (Dec. 17, 2004), Award at
B.2. 441 ILM 601, 626 (2005).
258 Theodor Meron, The Geneva Conventions as Customary Law, 81 AJIL 348, 360 (1987);
Theodor Meron, Human Rights and Humanitarian Law as Customary Law supra
note 9, at 25-62.
ventions is also generally viewed as being in broad conformity with customary

international law.259
On other important ndings, such as the customary rules governing the use
of force,260 right of self-defense,261 and the principle of non-intervention,262 the
Court in the Nicaragua case resorted to the terminology of customary law. But
for its ndings of practice and opinio juris, it relied primarily on the Charter of
the United Nations, treaties, and declarations rather than on proof of actual prac-
tice.
Decisions in the years since Nicaragua have followed a similarly relaxed ap-
proach to the identication of evidence supporting the establishment of custom-
ary international norms. For instance, in the case of the Democratic Republic of
the Congo v. Belgium (2002), the ICJ held that customary law provided no excep-
tions to the rules granting immunity to incumbent ministers of foreign aairs.263
In support of this conclusion, it stated that it had carefully considered state prac-
tice, national legislation and court decisions.264 Still, it did not give any examples
of the practice considered, allowing ad hoc Judge Van den Wyngaert to complain,
in her dissent, that in the brevity of its reasoning, the Court did not demonstrate
the existence of practice and opinio juris.265 Similar examples can readily be found
in the case law.266
In calling attention to this trend, I do not mean to argue that the Courts
holdings as to the content of customary law have been unfounded. To the con-
trary, at least one aspect of this more relaxed approach has been quite salutary. In
Nicaragua, the Court substantially strengthened customary law by downplaying
259 Theodor Meron, Human Rights and Humanitarian Law as Customary Law, supra
note 9, at 25-62.
260 Nicaragua, supra note 5, at paras. 187-93.
261 Id. at paras. 194-201.
262 Id. at paras. 202-209.
263 The Arrest Warrant of 11 April 2000 (D.R.C. v. Belgium) 2002 I.C.J. 3, at para. 52 (Feb.
14).
265 Id. dissenting opinion of Judge Van den Wyngaert, at para. 12. See also the Joint Sepa-
rate Opinion of Judges Higgins, Kooijman and Buergenthal.
266 See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territories (Advisory Opinion) 43 I.L.M. 1009 (July 9, 2004) (applying several cus-
tomary international law principles); see also Declaration of Judge Buergenthal, para.
7 (concerning the failure to address certain facts or evidence); Oil Platforms (Iran
v. U.S.) 2003 I.C.J. 803, at para. 42 (Nov. 6) (holding, on the basis of a perfunctory
assessment of both custom and evidence, that customary law requires that the right
of self-defense be limited by the requirements of necessity and proportionality); see
also the Separate Opinion by Judge Buergenthal, especially paras. 33-46 (discussing
defective fact-nding process); Legality of the Threat of Nuclear Weapons (Advisory
Opinion) 1996 I.C.J. 226, at para. 79 (July 8) (declaring the fundamental rules of inter-
national humanitarian law to be intransgressible principles of international custom-
ary law).
404 Chapter 6
the normative signicance of contrary practice. State conduct inconsistent with

a norm was to be treated as a breach of the rule, rather than the recognition of a
new rule. And if a state defends its inconsistent conduct by appealing to excep-
tions and justications contained in the rule itself, the signicance of such a state-
ment was to conrm, not to weaken, the rule.267 This development was essential,
in my view, to the eectiveness of customary law. Given the frequency of viola-
tions, without an approach acknowledging the reality of contrary practice and ar-
ticulating a method of dealing with it, it might be virtually impossible to identify
many norms of customary international law, for there is virtually no norm that
every nation consistently obeys and, in any event, to reduce customary law to a
mere description of completely universal practices would be to strip it of its force
as law. Nevertheless, I note that a balance must be struck, as there is a point at
which contrary practice reaches such a critical mass that the norm in question
cannot be said to be customary.
II. The ICTYs Conservative Approach to Customary Law

In contrast to the trend described in the previous section, international criminal
tribunals have taken an essentially conservative and traditional approach to the
identication and application of customary international law principles. This is
not to say that customary law has played an insignicant role in the tribunals law.
To the contrary, at least in the case of the ICTY, customary humanitarian law is
central to its authority to punish. Both the centrality of customary law and the
ICTYs rigorous approach to establishing it are the result of the Tribunals obliga-
tion, as a criminal court, to respect the fundamental principle of nullum crimen
sine lege.
To elaborate, although the Tribunals jurisdiction is dened by a specic
Statute adopted by the Security Council, it has been recognized from the begin-
ning of its operation that its authority is circumscribed by customary law. The
Statute was not yet in eect when some of the relevant crimes were committed,
and such acts can only be punished as international crimes if they were so cat-
egorized at the time they were committed. Yet there was a lack of certainty that
all the relevant nations were party to treaties that denitively outline the relevant
criminal prohibitions. Accordingly, in his report accompanying the adoption of
the Statute, the Secretary General noted that the application of the principle of
nullum crimen sine lege requires that the international tribunal apply rules of in-
ternational humanitarian law which are beyond any doubt part of customary law
so that the problem of adherence of some but not all States to specic conven-
tions does not arise.268
It might fairly be asked whether a conviction for violating uncodied cus-
tomary law can ever meet the nullem crimen (or legality) standard. After all, codi-
267 Nicaragua, supra note 5, at para. 186.

268 Report of The Secretary-General Pursuant To Paragraph 2 of Security Council Reso-
lution 808 (1993), at para 34, Presented 3 May 1993 (S/25704).
cation of criminal prohibitions is the modern norm in domestic systems, even in

common law countries in the United States, for example, there are no common
law crimes, and in the United Kingdom there are few. Nonetheless, in my view the
legality principle does not bar such a conviction. It bears noting that application
of the principle always involves some element of legal ction. It is certainly no less
realistic to expect a would-be oender to be aware of, and conform his behavior
to, well-established principles of the law of nations than to expect him to learn
the details of a long, arcane, and often-changing criminal code. Thus, in my view,
customary law can provide a safe basis for a conviction, but only if genuine care
is taken in determining that the legal principle was suciently rmly established
as custom at the time of the oense so that the oender could have identied the
rule he was expected to obey.
This, in a nutshell, has been the approach of the ICTY. In eect, the Tribunals
chambers have superimposed on the Statute the test whether each of the crimes
within the Tribunals jurisdiction reect customary law. This requirement has
been applied not only to crimes specically listed as grave breaches of the Geneva
Conventions as well as genocide and crimes against humanity, but also to viola-
tions of the laws and customs of war, which are mentioned non-exhaustively in
Article 3 of the Statute. Specically, and with rigor that increased over the years,
the chambers have engaged in a serious search for state practice and opinio juris.
Inherent in the requirement that criminal prohibitions be clearly established is
the notion that a tribunals methodology in identifying those prohibitions must
be predictable, and it must not be vague. Predictability is of course also important
in non-criminal areas of the law,269 but in criminal courts, wherein deprivation of
liberty is at stake, there is less freedom than there may be in other institutions to
push the legal envelope when it comes to the recognition of customary norms.
It bears noting at the outset that laborious inquiry into the question whether
a particular legal principle enjoyed the status of customary international law at
a particular time is not always required by the nullem crimen principle with re-
spect to every crime with which an accused is charged in an international crimi-
nal tribunal. Rather, it is only required where the unlawfulness of the conduct in
question at the time would not have been clear absent an applicable customary
international law rule. The ICTY Appeals Chamber has correctly recognized that
the point of the legality principle is to protect persons from later prosecution for
acts that they reasonably believed to be lawful a belief that cannot be reasonable
if the acts in question are obviously barred by domestic law. In the elebici case,
the Appeals Chamber thus armed the Trial Chambers holding that:
269 See Serbia and Montenegro v. Italy (Case Concerning Legality of Use of Force), Joint
Declaration of Vice President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Al-
Khasawneh, Buergenthal, and Eleraby, I.C.J., 15 December 2004, at para. 3 (stating
that in discerning principles of law, the I.C.J. must ensure consistency with its own
past case law in order to provide predictability and that [c]onsistency is the essence
of judicial reasoning).
406 Chapter 6
It is undeniable that acts such as murder, torture, rape, and inhuman treatment are
criminal according to general principles of law recognised by all legal systems. ...
It strains credibility to contend that the accused would not recognise the criminal
nature of the acts alleged in the Indictment. The fact that they could not foresee the
creation of an International Tribunal which would be the forum for prosecution is of
no consequence.270
Likewise, the Appeals Chambers recent decision in the Kordi and erkez case
holds that where conduct is criminalized by an applicable treaty to which all the
relevant states were clearly party, this may itself satisfy the legality principle, mak-
ing recourse to customary law unnecessary.271 The Trial Chambers judgement in
the Galis case raises a related issue. The indictment against General Stanislav
Gali charged him with conduct violating the laws or customs of war, relying not
on customary law but on treaty law, namely the Additional Protocol I to the Ge-
neva Conventions Relating to the Protection of Victims of War.272 While prior
Trial Chamber decisions referred to customary international law to determine
whether the crimes charged complied with the nullum crimen principle, the Gali
judgement refrained from deciding whether the pertinent provision of Protocol I
is declaratory of customary law and relied exclusively on treaty law.273 This judge-
ment has been appealed.
Many of the Tribunals cases, however, involve conduct of less obvious crimi-
nality to take one example, omissions that support liability under a command
responsibility theory and, notwithstanding the approach taken in the Kordi
and erkez case, the above-mentioned report of the Secretary-General makes
clear that it will not always be possible to look to treaties to resolve the matter.
In such cases, the relevant customary law must be ascertained, and fair notice to
the would-be oender, sucient to satisfy the nullum crimen principle, might be
sought through either of two related approaches. The rst might be characterized
as methodological conservatism that is, the use of only rmly established,
traditional methods for identifying the applicable customary norms. Because the
requirement that custom be established through widespread (but not perfectly
consistent) state practice supported by opinio juris has been long established in
international law even if there is no inherent reason that such a requirement is
compelled by the legality principle a methodologically conservative approach
would presumably require a showing that these criteria were satised at the time
of the oense in order to support any particular rules status as customary law. Al-
ternatively, if it could be established that any other method for identifying custom
270 Prosecutor v. Delali et al., Judgement, ICTY App. Chamber, at para. 179, Case No.
IT-96-21-A, (Feb. 20, 2001).
271 Prosecutor v. Kordi and erkez, Judgement, ICTY App. Chamber, at paras. 44-46,
Case No. IT-95-14/2-A (Dec. 17, 2004).
272 Prosecutor v. Gali, Indictment, at para. 5, Case No. IT-98-29-I, (March 26, 1999).
273 Prosecutor v. Gali, Judgment, ICTY Trial Chamber, Case No. IT-98-29-T, (Dec. 5,
2003).
had become so widely accepted at the time of the oense that its use by a later
tribunal was foreseeable, then such a method might be used. In either event, the
question is whether the oender could, at the time of the oense, reasonably be
expected to realize that his conduct conicted with customary international law.
A second approach might be referred to as outcome conservatism, pursu-
ant to which doubts regarding the customary status of any particular legal princi-
ple are resolved in favor of the defendant (in dubio pro reo). This is simply another
way of stating the requirement that criminal prohibitions be clear in their scope
and application. Such an approach would not necessarily tie the tribunal to any
particular methodology. Although the traditional showing of state practice and
opinio juris is likely to be the easiest way to show that a particular prohibition was
clearly established, it might also be possible to point to other factors. For instance,
the existence and widespread recognition of legal precedent identifying a particu-
lar rule as customary such as the ICJs holding concerning the customary status
of common articles 1 and 3 of the Geneva Conventions might be sucient, for
the purposes of the legality principle, to establish the rule with the necessary clar-
ity, such that a putative oender can be expected to conform his conduct to it.
The ICTY has blended these two approaches, and has done so in a way that,
I believe, respects the fundamental principle of nullum crimen. It has emphasized
the core requirements of state practice and opinio juris, and has several times
held that a particular legal rule that the Prosecution sought to enforce was not
suciently supported by state practice or opinio juris to qualify as customary law.
Sometimes, to be sure, the Tribunal has recognized a principle as customary law
without articulating the specic evidence of state practice and opinio juris sup-
porting this nding. But when it has done so, it has had in my view very strong
reasons for believing that the customary principle was clearly established at the
time of the crime. Notably, these cases have typically involved principles that are
grounded in provisions of the Geneva Conventions that are nearly universally
accepted as customary law, and/or general principles of law that have been well
recognized since the time of the Nuremburg proceedings, discussed further in
the next section.
An example illustrating the Tribunals approach is the interlocutory appeal
in Prosecutor v. Hadihasanovi.274 The Appeals Chamber in Hadihasanovi was
confronted with two issues. The rst was whether there was a basis in customary
international law for applying the doctrine of command responsibility to a con-
ict that was internal, not international, in character. On that question the ve-
member panel unanimously agreed, concluding that customary law at all times
relevant to the conict made clear that some war crimes can be committed by a
member of an organized military force in the course of an internal armed con-
ict, and that the doctrine of command responsibility applies to such crimes.275
274 Prosecutor v. Hadihasanovi, Decision on Interlocutory Appeal Challenging Juris-

diction in Relation to Command Responsibility, ICTY App. Chamber, Case No. IT-
01-47-AR72, (July 16, 2003).
408 Chapter 6
In reaching this conclusion, the Appeals Chamber specically noted that to hold
that a principle was part of customary international law, it has to be satised that
State practice recognized the principle on the basis of supporting opinio juris.276
Citing decisions of the ICJ, including the Nicaragua case as well as the Corfu
Channel case from 1949, it held that common article 3 of the Geneva Conven-
tions had long been accepted as having customary status, and held that the logic
of that article was fully applicable to internal conicts.277 For further elucidation
of the command responsibility principle, the Hadihasanovi Appeals Chamber
turned to Additional Protocols 1 and 2 to the Geneva Conventions, the Regula-
tions Respecting the Laws and Customs of War annexed to the Fourth Hague
Convention of 1907, and the authoritative[] ICRC Commentary on the Geneva
Conventions.278 In light of these numerous and strong indicia of general accep-
tance among states of customary laws application of the command responsibility
principle to internal conict, the Appeals Chamber found that it was not neces-
sary to demonstrate that most states had passed domestic legislation codifying
this principle.279
Notably, although the Appeals Chamber found that it was not necessary for
it to set forth anew the evidence supporting ndings of state practice and opinio
juris with regard to this point of law, citing the U.S. Supreme Court case of In re
Yamashita,280 it specically armed the ndings of the Trial Chamber to this
eect.281 The Trial Chambers ndings had encompassed, for instance, the his-
tory of the conrmation of the Nuremberg principles by the General Assembly,
the inclusion of command responsibility principles in the military manuals of,
for instance, the former Yugoslavia, the United States, the United Kingdom, and
Germany; and the history surrounding the adoption of the Geneva Conventions
additional protocols in the 1970s, including the statements of several national
delegates.282 The Appeals Chamber also followed its own case law that had set
forth evidence supporting the customary status of the command responsibility
doctrine, discussed further below. Particularly when this evidence is taken to-
gether with the codication of the command responsibility principle and with the
Appeals Chambers reasoning concerning that principles necessary implications,
the Appeals Chambers approach seems clearly consistent with its duty to uphold
the legality principle.
The second issue in Hadihasanovi proved more contentious. At issue was
whether a superior could be held responsible for acts that were committed before

278 Id. at paras. 14-15.
280 327 U.S. 1, 14-15 (1946).
281 Hadihasanovi, supra note 274, at para. 27.
282 See Prosecutor v. Hadihasanovi, Decision on Joint Challenge to Jurisdiction, ICTY
Trial Chamber, Case No. IT-01-47-PT, at paras. 67-93 (Nov. 12 2002).
he became the superior of the persons who committed the oenses. The indict-
ment had alleged that a co-defendant, Amir Kubura, assumed his position as act-
ing commander of a brigade of the Bosnian Army on 1 April 2003.283 It charged
Kubura with criminal responsibility for crimes that were, for the most part, com-
mitted by the troops of that brigade more than two months before he took com-
mand, including killings and wanton destruction and plunder of property in Du-
sina.284
The Appeals Chamber began its analysis by examining customary law as it
was in force at the time the crimes were committed. The Chamber could nd no
state practice and no opinio juris to sustain the proposition that a commander
could be held responsible for crimes committed by a subordinate prior to the
commanders assumption of command over the subordinate.285 In fact, the Cham-
ber found evidence militating against the existence of such a rule in Article 28 of
the Rome Statute of the International Criminal Court, Article 86(2) of Additional
Protocol I to the Geneva Conventions, and in the Kuntze case before the Nurem-
berg Military Tribunals.286 The Appeals Chamber observed that it was required
to rely not merely on a construction of the Statute to establish the applicable law
on criminal responsibility, but to ascertain the state of customary law in force at
the time the crimes were committed.287 Moreover, an expansive reading of crimi-
nal texts violates the principle of legality, which the Appeals Chamber found was
widely recognized as a peremptory norm of international law, and which in any
event was essential to the protection of the human rights of the accused.288 In case
of doubt, the Appeals Chamber thus found that criminal responsibility cannot be
found to exist.
Two judges (Hunt and Shahabuddeen) dissented. In the views of both dis-
senting judges, the fact that no case could be found that directly answered the
question at issue289 did not answer the question whether the conduct in question
was prohibited by customary law. Rather, as Judge Hunt argued, the proper ap-
proach was to consider the general principle that was found in customary law (in
this case, the principle of command responsibility) and to ask whether the pur-
pose and logic of that principle required its application to the facts now presented
283 Prosecutor v. Hadihasanovi, Third Amended Indictment, ICTY Trial Chamber, at

para. 6, Case No. IT-01-47-PT, (Sep. 26, 2003).
284 Id. at paras. 39, 40, 44, 45.
285 Hadihasanovi, supra note 274, at para. 45.
286 Id. at paras. 46-48, 50.
288 Id. at para. 55. It is not necessary to discuss here the question whether the principle of
legality constitutes a jus cogens norm.
289 Hadihasanovi, supra note 274, Partial Dissenting Opinion of Judge Shahabuddeen,
at para. 2.
410 Chapter 6
to the Tribunal.290 Judge Shahabuddeen contended that crimes could fall between
two stools if they were committed very shortly before the assumption of duty
of the new commander an anomaly at odds with the idea that the power to
punish should always be capable of being exercised.291 He concluded that these
consequences collide with the object and purpose of the relevant provisions of
Protocol I.292 Central to both dissenters analysis were the purposes behind the
treaties regarded as codifying the relevant customary principles.
I read Judge Shahabuddeens policy objection as a proposition characteristic
of the common law in its early development, when the criminal law was essen-
tially judge-made law. Today, as noted above, criminal law is almost exclusively
statutory. Thus, in neither the United States or the United Kingdom is the propo-
sition that the power to punish should always be capable of being exercised as
such any longer valid; to the contrary, it may only be exercised if there is a specic
basis for the punishment set forth in a statute or, in the context of the Tribunal,
in clearly established customary law. More generally, in my view the looser, more
progressive approach to the analysis of customary international law embraced by
the dissents one that would armatively engage the criminal tribunal in the de-
velopment of customary law, rather than simply in its application cannot be rec-
onciled with the legality principle. It is of course true that, as the dissents validly
observe, it cannot be expected that state practice and opinio juris will have com-
prehensively addressed every possible factual scenario; to some extent, a criminal
tribunal must inevitably adapt the established principles to the facts before it. In-
deed, the majority in Hadhihasinovi (Presiding Judge Meron, and Judges Pocar
and Gney) expressly so recognized.293 But before extending a principle to a new
scenario not contemplated by previous custom, a criminal court should be very
certain, in my view, of what result that principle would require. Here it could not
be said that the result was clear; to the contrary, there was a perfectly reasonable
distinction that a commander cannot fairly be held responsible for crimes not
occurring on his watch that could explain the fact that, apparently, no com-
mander had ever been held responsible under those circumstances.294
It should be noted that, in a recent article, Judge Shahabuddeen has argued
eloquently that the principle of nullum crimen sine lege does not prohibit inter-
290 Hadihasanovi, supra note 274, Separate and Partially Dissenting Opinion of Judge
David Hunt.
291 Hadihasanovi, supra note 274, Partial and Dissenting Opinion of Judge Shahabud-
deen, at para. 14.
293 See Hadihasanovi, supra note 274, at para. 12 (holding that where a principle can
be shown to have been so established [as custom], it is not an objection to the ap-
plication of the principle to a particular situation to say that the situation is new if it
reasonably falls within the application of the principle).
294 For a criticism of the Hadihasanovi dissent along somewhat similar lines, see Chris-
topher Greenwood, Command Responsibility and the Hadihasanovi Decision, 2 J.
Intl Crim. J. 598 (2004).
national criminal tribunals from engaging in the progressive development of the

law that is, from interpreting the law in a way that tends to expand over time the
range of conduct that is criminalized.295 My view is consistent with his in certain
core respects. Both of us agree that criminal tribunals may properly apply the
principles established in customary law to new factual circumstances, and may
thereby contribute to the elucidation and development of those principles; and
both of us agree that such tribunals may not cross the line to the creation of new
criminal prohibitions to be retroactively applied. My perspective diers from that
of my colleague as to where that line should be drawn.
Judge Shahabuddeen contends that it is sucient, to justify subsequent
criminal punishment, that the very essence of the act in question have been
forbidden under the law at the time even, it seems, if the actual act of the de-
fendant would not in fact have been forbidden. In support of his position he cites
a European Court of Human Rights case, C.R. v. United Kingdom,296 that upheld
the conviction of a husband for raping his wife, on the basis that the essence of
the oence, i.e. rape, had been clearly criminal deeming it unnecessary to de-
termine the validity of the defendants contention that under the applicable law at
the time of the rape a marital privilege recognized by the courts would have made
such a conviction impossible. The Court also pointed to the essentially debasing
character of rape, from which Judge Shahabuddeen infers that the gravity of the
act charged can also merit subsequent prosecution for an act not criminal at the
time of its commission. In the British case which was the subject of the complaint
to Strasbourg, Lord Chief Justice Lane in the Court of Appeal said that the time
has now arrived when the law should declare that a rapist remains a rapist subject
to the criminal law, irrespective of his relationship with the victim.297 Thus, Judge
Shahabuddeen argues, through a process of judicial interpretation and evolution,
the marital immunity exception was recognized as removed at the time of the
trial, but not beforehand. In these circumstances, the European Court dismissed
the complaint of violation of the principle of legality, stating that at the time of
the act of attempted rape, the absence of immunity became a reasonably foresee-
able development of the law.298 The question is how far to push the idea that the
subsequent development of the law is consistent with the essence of the oense
and its foreseability. I do not disagree with Judge Shahabuddeens reliance on C.R.
v. United Kingdom. But I see a dierence between removing a personal immunity
for liability for an obviously criminal act and extrapolating from it a theory of evo-
lution and thus ex post facto application of criminal liability for acts which were
not unlawful at the time of their commision. Moreover, there is also a dierence
between what Judge Shahabuddeen would have the Tribunal do and the more
limited role conferred on the European Court and thus in determining whether
295 See Mohamed Shahabuddeen, Does the Principle of Legality Stand in the Way of Pro-
gressive Development of Law?, 2 J. Intl Crim. Just. 1007 (2004).
296 Judgment of Nov. 22, 1995, A.335-C, at para. 34.
297 Id. at para. 39. See R.v.R. [1991] 93 Crim. App. R.1, 8.
412 Chapter 6
the British courts decision was permissible under the European Convention. In
the latter case, deference to the national court is an important consideration that
is lacking in the ICTY context.
Judge Shahabuddeen also relies on an ICTY interlocutory decision, in which
the Appeals Chamber stated that the principle of legality does not prevent [the]
court from interpreting and clarifying the elements of a particular crime,299 nor
preclude the progressive development of the law.300 I would not read too much
into the reference to progressive development, given the limitation immediately
imposed by the Chamber: But [this fundamental principle] does prevent a court
from creating new law or from interpreting existing law beyond the reasonable
limits of acceptable clarication.301 Perhaps this is as far as we can take this con-
troversy. Customary law evolves through interpretation and application. Here the
science of the law blends with the judicial culture of caution and restraint.
Hadihasanovi is by no means the only case in which the ICTY has grap-
pled with the application of the legality principle. In the Prosecutor v. Aleksovski,
for example, the accused argued that a previous decision could not be used as a
statement of the governing customary law, since that decision was made after the
alleged commission of the crimes, and thus could not meet the requirements of
the principle of legality.302 In its judgement of 24 March 2000, the ICTY Appeals
Chamber distinguished the interpretation and clarication of customary law,
which is permissible, from the creation of new law, which would violate the ex
post facto prohibition.303 As the Appeals Chamber explained, the nullum crimen
principle does not prevent a court, either at the national or international level,
from determining an issue through a process of interpretation and clarication
as to the elements of a particular crime; nor does it prevent a court from relying
on previous decisions which reect an interpretation as to the meaning to be as-
cribed to particular ingredients of a crime.304
In the elebii case, the Appeals Chamber applied the principles previously
developed in Tadi and Aleksovski,305 arming the general applicability of com-
mand responsibility theories to internal conicts, but refusing to hold that a de-
fendant could be liable under a such a theory if he had no reason to know of the
criminal conduct in question; as to the latter point, the Appeals Chamber cited
examples of contrary state practice and opinio juris that could not be reconciled
299 The Decision on Dragoljub Ojdanis Motion Challenging Jurisdiction Joint Crimi-
nal Enterprise, Case No. IT-99-37-AR72, at para. 38 (citing Prosecutor v. Aleksovski,
Judgement, ICTY App. Chamber, at para. 122-127, Case No. IT-95-14/1-A, (March 24,
2000); Delali Appeals Judgement, supra note 270, at para. 173.).
301 Id.
302 Aleksovski, supra note 299, at para. 123.
303 Id. at para. 126.
304 Id. at para. 127.
305 Delali Appeals Judgement, supra note 270, at paras. 158-173.
with the rule the Prosecution sought.306 The Trial Chamber in the Vasiljevi case
followed suit.307 Indeed, venturing further, the Vasiljevi Trial Chamber conrmed
that the prohibition on the creation of new oenses extends even to oenses stat-
ed in the Statute, if they were not recognized by customary law at the time the al-
leged crime was committed or if they were not dened with sucient clarity so as
to be foreseeable.308 The Trial Chamber therefore held in Vasiljevi that although
common Article 3 of the Geneva Conventions mentions the term violence to life
and person as a prohibited act, and although the Appeals Chamber had earlier
held that customary international law imposed criminal liability for all serious
violations of common Article 3, the Trial Chamber could not convict the Accused
of violence to life and person because this crime was not recognized or dened
with sucient clarity by customary international law.309 The Trial Chamber there-
fore acquitted the Accused of that charge.310 Similarly, in the interlocutory appeal
in the case of Milan Milutonovi and others, the Appeals Chamber claried that
the Tribunals ratione materiae jurisdiction is determined both by the Statute and
by customary international law.311
Other cases, beyond those turning specically on the nullem crimen princi-
ple, further illustrate the comparatively rigorous approach the Tribunal has taken
to the discernment of customary law. For instance, in one of its earliest decisions,
concerning an interlocutory appeal in the Tadi case, the Appeals Chamber of-
fered an important methodological observation: because accurate information
concerning the conduct of troops on the eld of battle is largely inaccessible, con-
clusions about state practice in the area of humanitarian law must necessarily be
based on such sources as ocial pronouncements of States, military manuals
and judicial decisions.312 It then reviewed evidence of state practice and opinio
juris concerning the application of customary humanitarian law to internal con-
icts. This sweeping review included, but was not limited to, statements of the
Spanish and British governments with regard to the status of combatants in the
Spanish Civil War, written instructions given by Mao to the Chinese peoples lib-
eration army, a 1964 statement by the Prime Minister of the Democratic Republic
of the Congo with regard to its civil war, the agreement of parties to the 1967
conict in Yemen, Nigerian, German, New Zealand, and U.S. military manuals
306 Id. at paras. 228-241.

307 Prosecutor v. Vasiljevi, ICTY Trial Chamber, at paras. 196, 201, Case No. IT-98-32-T,
(Nov. 29, 2002).
308 Id. at para. 201.
309 Id. at para. 203.
310 Id. at para. 204.
311 See e.g., Prosecutor v. Milutonovi, Reasons for Decision dismissing interlocutory ap-
peal concerning jurisdiction over the territory of Kosovo, ICTY App. Chamber, Case
No. IT-99-37-AR-72.2, (June 8, 2004).
312 Prosecutor v. Tadi, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, ICTY App. Chamber, at para. 99, Case No. IT-94-1-AR72, (October 2,
1995).
414 Chapter 6
and prosecutions, a statement of the rebel army in El Salvador, ICRC principles

concerning internal conicts and the record of state compliance with them, state-
ments on behalf of the then-twelve members of the European Union with regard
to the Liberian conict and Iraqi human rights abuses, U.S. diplomatic and De-
fense Department statements, British government publications, a consensus view
expressed by various representatives of the international community on the ille-
gality of the domestic use of chemical weapons, the criminal codes of the former
Yugoslavia and Belgium, and the adoption of various General Assembly and Se-
curity Council resolutions.313 Holding that these various sources provided strong
evidence of international custom, the Appeals Chamber found it appropriate to
exercise jurisdiction over crimes emerging from internal conicts.314
More broadly, the Tribunals case law has discerned and discussed a number
of substantive principles of customary law on the basis of careful analysis con-
sistent with the legality principle. For instance, in the context of crimes against
humanity, the Tribunals jurisprudence has broached the nexus of such crimes
to armed conict;315 the distinction between the concepts of attack and armed
conict;316 the requirement of discriminatory intent;317 the elements of the crime,
such as the existence of a plan or policy;318 the relevance of personal motives;319
313 Id. at paras. 96-125.

314 Id. at para. 137.
315 See Prosecutor v. eelj, Decision on the Interlocutory Appeal Concerning Jurisdic-
tion, ICTY App. Chamber, at para. 5, Case No. IT-03-67-AR72.1 (Aug. 31, 2004) (not-
ing, citing previous decisions, that customary international law does not require that
crimes against humanity be committed in an armed conict, but that this require-
ment was instead imposed by the ICTY Statute).
316 See Prosecutor v. Kunarac, Judgment, ICTY App. Chamber, at para. 86, Case. No.
IT-96-23&23/1-A (June 12, 2002) (nding that under customary law, an attack can
precede, outlast, or continue during an armed conict, but need not itself be part of
an armed conict).
317 See, e.g., Prosecutor v. Tadi, Judgment, ICTY App. Chamber, at paras. 287-292, Case
No. IT-94-1-A (July 15, 1999) (nding that customary international law does not re-
quire that discriminatory or persecutory intent be established for all crimes against
humanity); Prosecutor v. Kupreski, Judgement, ICTY Trial Chamber, at para. 558,
Case No. IT-95-16 (Jan. 14, 2000) (following Tadi and holding that discriminatory
intent is only required with regard to the category of persecutions under Article
5(h)).
318 See, e.g., Kunarac, supra note 316, at para. 98 & fn. 114 (holding, based on the over-
whelming[] consensus of relevant state practice including judicial precedents in
Canada, Australia, Israel, Kosovo, and the Nuremburg tribunal as well as reports of
the Secretary-General and the International Law Commission that crimes against
humanity need not be undertaken pursuant to a policy or plan.)
319 See Tadi Appeal Judgement, supra note 317, at paras. 255-270 (holding, based princi-
pally on an evaluation of case law from various countries pertaining to the Holocaust,
that under customary law, purely personal motives do not acquire any relevance for
establishing whether or not a crime against humanity has been perpetrated).
and the actus reus of the crime of persecution.320 Additionally, the Tribunal has
claried the customary law of genocide and the question of genocidal intent,321
in particular in relation to such forms of criminal responsibility as aiding and
abetting and complicity.322 It has elaborated on various aspects of the Hague law,
including for instance the rule of distinction.323 The Tribunal has elaborated on
the denition and the customary law nature of the crimes of torture and rape.324 It
has claried customary aspects of general principles of criminal law, such as the
defences of duress.325 It has claried the immunity of the ICRC to disclosure as
a matter of customary law,326 and has addressed customary rules regarding state
sovereignty, such as the issuance of subpoenas to state ocials,327 the examina-
tion of documents raising national security concerns,328 arrest, abduction, and
international transfer.329 And in addition to command responsibility, the ICTY
320 Prosecutor v. Blaski, Judgement, ICTY App. Chamber, at paras. 143, 147-49, 152, and
156-59, Case No. IT-95-14-A (July 29, 2004) (nding, inter alia, that an inherent right
to life as well as prohibitions against pillage, deportation, and forcible transfer have
customary international law status).
321 Prosecutor v. Krsti, Judgement, ICTY App. Chamber, at para. 25, Case No. IT-98-33-
A (Apr. 19, 2004) (nding that, according to customary international law, the Trial
Chamber was correct to limit the denition of genocide to those acts seeking the
physical or biological destruction of all or part of the group).
322 Id. at paras. 135-144.
323 Blaski, supra note 320, at paras. 109-116.
324 See Kunarac, supra note 316, at paras. 145-48 (addressing the extent to which the
Torture Convention reects customary international law).
325 See, e.g., Prosecutor v. Erdemovi, ICTY App. Chamber, Joint Separate opinion of
Judge McDonald and Judge Vohrah, at para. 55, Case No. IT-96-22-A (Oct. 7, 1997)
(nding that customary international law does not establish whether duress is a de-
fence to a charge of killing innocent human beings).
326 Prosecutor v. Simi, Ex Parte Condential Decision on the Prosecution Motion Under
Rule 73 for a Ruling Concerning the Testimony of a Witness, ICTY Trial Chamber, at
para. 74, Case No. IT-95-9-PT (July 27, 1999) (holding that, under customary law, no
question of a balance of interest arises between a condentiality interest and a claim
to non-disclosure of the Information).
327 Prosecutor v. Blaski, Judgment on the Request of the Republic of Croatia for Review
of the Decision of the Trial Chamber II of 18 July 1997, ICTY App. Chamber, at paras.
38-60, Case No. IT-95-14-108bis (Oct. 29, 1997) (nding that, under customary law,
state ocials cannot suer the consequences of wrongful acts which are not attribut-
able to them personally but to the State on whose behalf they act, and that subpoenas
therefore cannot be issued to state ocials acting in their ocial capacity).
328 Id. at paras. 61-66 (concluding that the drafters of Article 29 departed from interna-
tional customary law in regards to national security concerns because to grant States
a blanket ability to withhold documents for national security reasons would under-
mine the essential purpose of the International Tribunal).
329 Prosecutor v. Nikoli, Decision on Interlocutory Appeal Concerning Legality of Ar-
rest, ICTY App. Chamber, at paras. 20-24, Case No. IT-94-2-AR73, (June 5, 2003)
416 Chapter 6
has addressed the scope of individual liability under customary humanitarian law
for participation in a joint criminal enterprise330 and for the crimes of accom-
plices.331
In some cases, of course, the Tribunals assessments of the evidence support-
ing the relevant customary international law principles have been comparatively
brief; in most of these, it has relied on its own precedents instead of revisiting the
same issues repetitively, an approach that can hardly be faulted. Still, critics may
allege that the Tribunal has not uniformly hewed to the strictest methodological
conservatism, but has sometimes relied to some extent on proxies such as the
long-standing recognition of a principles customary status by the ICJ in place
of the comprehensive detailing of state practice. As noted above, I believe its ap-
proach has nonetheless been generally consistent with the legality principle, for it
has relied appropriately on authoritative sources and rules that are foreseeable to
potential oenders, and thus avoided crossing the line from recognition of exist-
ing customary law to the creation of new law. Moreover, a more relaxed approach
to the identication of relevant customary norms may be justied where the norm
in question does not concern the substantive scope of the criminal prohibition, or
of the defendants liability, and thus does not directly implicate the nullum crimen
principle.
Still, tribunals are inevitably constrained in their approaches by their re-
sources, the evidence before them, and the arguments put to them by the parties,
and some will no doubt criticize the assessments of customary law present in
some of the Tribunals cases. And as a general matter, the greater the condence
that the Tribunal can build in the rigor of its methods, the more eective it will be
in building respect for the rule of law. In this regard, the availability of the ICRC
report (discussed further in part IV) as a resource is a very positive development,
for it should help to facilitate the continued and expanded inclusion in the Tribu-
nals judgements of serious and detailed discussions of the evidence supporting
the recognition of rules of customary humanitarian law.
III. Approaches of Other International Criminal Tribunals

Like the ICTY, other international criminal tribunals are also bound by the prin-
ciple of nullum crimen sine lege. Indeed, this principle has been much discussed
(examining domestic case law and concluding that in cases involving universally con-
demned oenses like genocide and war crimes, jurisdiction should not be set aside
even if there were irregularities in the manner in which the accused was brought
before the Tribunal).
330 See generally Stephen Powles, Joint Criminal Enterprise, 2 J. Intl Crim. Just. 606
(2004); Allison Marston Danner & Jenny S. Martinez, Guilty Associations: Joint
Criminal Enterprise, Command Responsibility, and the Development of International
Criminal Law, 93 Cal. L. Rev. 77 (2005).
331 See Tadi, supra note 317, at para. 220 (holding that the notion of common design as
a form of accomplice liability is rmly established in customary international law).
with respect to the Nuremberg tribunals. Customary law was essential to the
Nuremberg tribunals ability to convict Nazi war criminals: the Geneva POW
Convention of 1929 was not applicable on the Eastern Front, and the Hague Con-
vention No. IV was challenged on the ground that the situation of the belligerents
did not conform with its si omnes clause, as not all the belligerents were party.332
Moreover, the Nuremberg tribunals were faced with the problem that the ap-
plicable provisions of the Geneva and Hague Conventions dening the relevant
substantive proscriptions did not expressly criminalize their violation.333 In light
of this fact, there was some question as to whether, for the purposes of the legal-
ity principle, oenders had been suciently on notice that their conduct entailed
criminal liability. The International Military Tribunal described the Nuremberg
Charter as both the exercise of the sovereign power of the victorious countries
and as the expression of international law existing at the time of its creation.334 In
dismissing the challenge based on the principle of legality, the IMT noted that the
law of war was to be found not only in treaties, but in the customs and practices
of states and the general principles of justice.335
Addressing this question, the Military Tribunal under Control Council Law
No. 10 similarly explained:
It is not essential that a crime be specically dened and charged in accordance with
a particular ordinance, statute, or treaty if it is made a crime by international conven-
tion, recognized customs and usages of war, or the general principles of criminal
justice common to civilized nations generally. If the acts charged were in fact crimes
under international law when committed, they cannot be said to be ex post facto acts
or retroactive pronouncements.336
Some criticized the Nuremberg tribunals for this relatively loose approach to the
legality principle, which looked not just to treaties or customary law dened in
the traditional sense, but also to the notion of general principles of law common
to civilized nations.337 And to be sure, the Nuremberg tribunal did not provide a
very satisfactory explanation as to how aspects of the 1929 Geneva POW Con-
vention and the 1907 Hague Convention No. IV so quickly metamorphosed into
332 See Theodor Meron, Human Rights and Humanitarian Law as Customary Law, su-
pra note 9, at 41-62.
333 See Theodor Meron, International Criminalization of Internal Atrocities, 89 Am. J.
Intl L. 554, 564 (1995) [hereinafter Meron, International Criminalization].
334 Trial of the Major War Criminals before the International Military Tribunal, Nurem-
berg, 14 Nov. 1945- 1 Oct. 1946, at 218 (1947).
335 Id. at 221.
336 United States v. List, 11 Trials of War Criminals Before the Nuernberg Military Tribu-
nals under Control Council law No. 10, at 759, 1239.
337 See Jescheck, The General Principles of International Criminal Law Set out in Nurem-
berg, as Mirrored in the ICC Statute, 2 J. Intl Crim. Justice 38, 40-42 (2004).
418 Chapter 6
customary norms.338 Nonetheless, in my view, the tribunals general approach was

under the circumstances appropriate.339 The crimes with which the Nuremberg
defendants were charged including murder, torture, and enslavement, carried
out on an enormous scale were so clearly criminal under every domestic legal
system in the world that it could hardly be said that the prospect of criminal li-
ability for them was unpredictable. Ultimately, the nullum crimen principle turns
on fairness to the defendant, and it cannot in my view be said that the Nuremburg
war crimes proceedings compromised that fairness.
It should be made clear that the criticism of Nuremberg for violating the le-
gality principle was directed primarily to crimes against peace, and secondarily to
crimes against humanity. Its war crimes jurisdiction triggered few dissents. Cus-
tomary law provided an answer only for the latter; treaties and general principles
for the rst; crimes against humanity were lumped largely with war crimes, but
given a restrictive reading to require them to have been committed in execution
of or in connection with any crime within the jurisdiction of the Tribunal and
thus limited to those committed from the beginning of the war.340 One thing is
clear, however. Nuremberg Tribunals rooted the principle of legality not only in
custom, but also in treaties and general principles of criminal law.
As noted above, the ICTY has likewise declined to engage in an overly for-
malistic assessment of custom in instances where the criminality of conduct is
obvious (or, to use the Nuremberg terminology, where it is clearly established un-
der the relevant general principles of law). In its seminal interlocutory decision
on jurisdiction in the Tadi case, the ICTY Appeals Chamber stated that to be
subject to prosecution by the Tribunal as a violation of laws and customs of war,
an oense must violate either customary law or a treaty that was unquestionably
binding on the parties at the time of the alleged oense.341 Nuremberg, of course,
provides a precedent for the principle of legality to be satised by reference to
treaties that were in force at the time of the oense. However, in the case of the
ICTY, such reliance on treaties must be reconciled with the statement in the Sec-
retary-Generals 1993 report that the Tribunal should apply rules of international
humanitarian law which are beyond any doubt a part of customary law. The Tadi
panel found that the purpose of this statement was merely to avoid a conict with
the nullum crimen principle where a party to the conict was not a party to a
treaty; the statement therefore does not exclude reliance on treaties where there is
338 Theodor Meron, Human Rights and Humanitarian Norms as Customary Law, supra
note 9, at 37-41.
339 See Meron, International Criminalization, supra note 333 at 564-67 (arguing that the
Nuremberg precedent illustrates the legitimacy of international criminal justice for
the Rwandan genocide).
340 Id. at 254.
341 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, at paras.
94, 143, Case No. IT-94-1-AR72, (Oct. 2, 1995).
no potential conict.342 If the principle of legality can thus be satised by ground-

ing a prosecution in a treaty binding the parties, why has the ICTY not made
treaty law the principal foundation of its approach to ratione materiae jurisdic-
tion, preferring instead to rely on customary principles (especially since treaties
have the added advantage of satisfying the principle of specicity343)? I can only
speculate. One reason obviously was to follow as closely as possible the language
of the Secretary-Generals report. Another may have been to avoid doubts as to
succession to treaties, their continuing binding character and reservations, and
the scope and validity of ad hoc agreements between the belligerents. Reliance
on customary law provides additional comfort because of the generality of that
law. Moreover, the treaties typically applied by the ICTY were wholly or largely
customary.
The legality principle likewise governs the other international criminal tribu-
nals operating today, including the International Criminal Tribunal for Rwanda
(ICTR), the Special Court for Sierra Leone, and the International Criminal Court
(ICC). In the case of the ICTR, however, that principle has a less restrictive eect
because of the less signicant role of international custom in that Tribunals law.
Since the conict in Rwanda was non-international in character, and since (as the
Secretary-General noted when the ICTR Statute was adopted) Rwanda had been
party to the relevant international humanitarian law treaties, which were a part of
the law of the land in Rwanda, it is not generally necessary to consider whether a
violation of the ICTR Statute was also a violation of customary law at the time of
the oense; it is enough that the treaties were violated.344 There has therefore been
no obvious need for the ICTR, in its treatment of these provisions, to examine
their customary law underpinnings. The Tribunals contribution to the clarica-
tion of customary law has accordingly been modest, although the Trial Chambers
have occasionally discussed the customary status of various principles of law.345
The Special Court for Sierra Leone, although it has not yet rendered judge-
ments on the merits, has in its decisions on preliminary motions frequently in-
voked customary humanitarian law, and its Appeals Chamber has held that the
nullum crimen principle must be applied by reference to customary law. 346 It may
be too early to discern a clear methodological approach to the identication of
custom in the Appeals Chambers decisions. In nding that common Article 3 of
the Geneva Conventions enjoyed customary status and applied to both internal
342 Id. at 143. See Report of the secretary-General pursuant to Paragraph 2 of Security
Council Resolution 808 (1993), at para. 34.
343 Jescheck, supra note 337, at 41.
344 Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolu-
tion 955 (1994), U.N. SCOR, at paras. 11-12, U.N. Doc. S/1995/134 (Feb. 13 1995).
345 See, e.g., Prosecutor v. Akayesu, Judgement, ICTR Trial Chamber, at paras. 610, 617,
Case No. ICTR-96-4-T (Sep. 2, 1998) (addressing the customary status of Article 4(2)
of Additional Protocol II to the Geneva Conventions).
346 See Prosecutor v. Kallon, Decision on Constitutionality and Lack of Jurisdiction, SCSL
Appeals Chamber, at para 41, Case No. SCSL-2004-15-AR72(E) (Mar. 13, 2004).
420 Chapter 6
and international armed conicts, it relied on the decisions of the ICJ and the
ICTY.347 In nding that customary law precluded the granting of immunity from
prosecution based on the Lom Agreement, it relied, inter alia, on a discussion of
ICTY precedent and a Security Council resolution.348 In concluding that interna-
tional law did not contain a peremptory norm providing immunity from criminal
prosecution to a head of state, it cited a variety of sources, including the statutes
of the various international criminal tribunals, General Assembly resolutions, the
recent ICJ decision in the Yerodia case, and a British domestic court decision.349
And in nding that customary law supported the criminalization of child recruit-
ment, it relied on the widespread ratication of several treaties as evidence of
state practice.350 As the Special Court continues to confront issues of customary
law, including in future decisions on the merits, a clearer picture of its methodol-
ogy may emerge.
In contrast to those of the ad hoc tribunals, the ICC Statute more closely
resembles a civil law code and is meant to be applied as such. Unlike pleadings
in the ICTY, the gravamen of future pleadings in the ICC will be the interpreta-
tion of the Statute, not its customary law underpinnings. Nevertheless, Article
21 of the Statute, which concerns applicable law, opens the door wide to such ad-
ditional sources of international law as the principles and rules of international
law, including the established principles of the law of armed conict, as well as
general principles of law derived by the Court from national laws of legal systems
of the world.351 If the Court decides to take advantage of this article in dening the
scope of criminal liability, it should be guided by the legality principle and should,
in my view, adopt the cautious approach to the interpretation of custom for which
I have argued here.
Moreover, in some situations, the ICC may be forced to address and apply
customary law. First, in the case of a referral of a situation to the Court by the
Security Council acting under Chapter VII and in accordance with Article 13(b)
347 See Prosecutor v. Fofana, Decision on Preliminary Motion on lack of Jurisdiction Ma-
teriae: Nature of the Armed Conict, SCSL Appeals Chamber, at paras. 21-24, Case
No. SCSL-2004-14-AR72(E) (May 25, 2004).
348 See Prosecutor v. Kondewa, Decision on Lack of Jurisdiction/Abuse of Process: Am-
nesty Provided by the Lome Accord, SCSL Appeals Chamber at paras. 52, 57, Case
No. SCSL-2004-14-AR72(E) (May 25, 2004); Prosecutor v. Gbao, Decision on Pre-
liminary Motion on the Invalidity of the Agreement Between the United Nations and
the Government of Sierra Leone on the Establishment of the Special Court, SCSL
Appeals Chamber, at paras. 6-10, Case No. SCSL-2004-15-AR72(E) (May 25, 2004).
349 See Prosecutor v. Taylor, Decision on Immunity from Jurisdiction, SCSL Appeals
Chamber, at paras. 43 53, Case No. SCSL-2003-01-I (May 31, 2004).
350 Prosecutor v. Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction
(Child Recruitment), SCSL Appeals Chamber, at paras. 18- 24, Case No. SCSL-2004-
14-AR72(E) (May 31, 2004).
351 Arts. 21-22, Rome Statute of the International Criminal Court (July 1, 2002), 2187
UNTS 3.
of the Statute as, for instance, with the Darfur atrocities a defendant might
argue that he is subjected to ex post facto legislation, because the provision under
which he is accused is not declaratory of customary law. The success of such an
argument would turn on whether the accused understood or reasonably should
have understood that the act of which he is accused constituted an oense at
the time of its commission. In such a case, the Court will have a rare opportunity
to clarify the customary law status of the particular provisions.
Concluding Observations
The ICRC project I have mentioned above, which for the most part returns to a
traditional approach as far as the identication of customary international law
principles is concerned, will be a signicant aid to international criminal tribu-
nals in exercising their functions consistent with the legality principle. The ICRC
undertook this enormously complicated but essential project for two main rea-
sons.352 One reason was to identify the customary rules of international humani-
tarian law that govern in conicts in which one or more of the parties have not
acceded to one or both of the additional protocols to the Geneva Conventions.
The second reason and, as I see it, the principal driving force behind the project
was the desire to remedy the scarcity of rules applicable to non-international
armed conicts because of a limited number of governing treaties.353 Such non-
international conicts are, as we all know, unfortunately frequent and brutal.
Moreover, as I have sought to demonstrate, the ICRC study will serve as a guide
for the application of customary international humanitarian law by international
criminal tribunals.
Experts from the ICRC, governments and academia combined their eorts
to make the study a reality. They established a generous but credible list of acts,
both physical and verbal, which can be considered state practice for the purposes
of the study. But what makes this study unique is the seriousness and the breadth
of the method employed for the identication of practice. In addition to research
in the ICRC archives of nearly forty recent armed conicts, as well as a study
of international sources including those in the United Nations and regional and
other international organizations, the study commissioned national research
projects in nearly fty countries, with the task of identifying national practice in
international humanitarian law. This has never been done before. No restatement
of international law has even tried to obtain such rich collections of empirical
data. It is not surprising, therefore, that two of the three volumes of the study, and
the biggest volumes at that, contain collections and analysis of national practice.
As a result, we are likely to be able to start utilizing a far more credible, more in-
352 See Henckaerts, supra note 238.

353 Theodor Meron, Towards a Humanitarian Declaration on Internal Strife, 78 AJIL
859 (1984); Theodor Meron, On the Inadequate Reach of Humanitarian and Human
Rights Law and the Need for a New Instrument, 77 AJIL 589 (1983).
422 Chapter 6
ductive method of ascertaining customary rules, binding on all states, with most
rules applicable both to international and domestic conicts.
The ICRC study departed from the traditional approach in the Continental
Shelf Cases and from the famous paradox entailed in that approach, described
by Richard Baxter354 by taking into account for the purpose of establishing cus-
tomary international law the practice of states that are party to an applicable gov-
erning treaty, in addition to the practice of non-party states.355 In the case of the
Geneva Conventions, for which ratication is universal, and even in the case of
treaties such as the Protocols additional to those Conventions, for which ratica-
tion is very widespread, it is hard to see the alternative; a consideration only of
the practice of non-parties would be either meaningless or at least non-represen-
tative of state practice generally.356 The study considered the existence of widely
ratied treaties to be itself evidence of a norms acceptance as customary inter-
national law as the ICJ has recognized since the Continental Shelf cases but
did not treat the presence of such a treaty as denitive, considering it only in the
context of state practice.
The studys general comprehensiveness and rigor does not mean that its as-
certainment of practice and, even more, its formulation of black-letter rules will
not be challenged in any particular case. But there is no question that the study
will be the starting point of all future discussions on customary rules of humani-
tarian law for a long time to come. Over time, the study may well have the sort of
crystallizing eect that Nicaraguas holding regarding the customary law char-
acter of common articles 1 and 3 of the Geneva Conventions has had. And the
study is certain to enter the practice of courts and tribunals, especially in so far as
statements of practice are concerned.
Indeed, the ICRC Study has already been invoked in the ICTYs jurispru-
dence. The ICTY Appeals Chamber cited the study in an interlocutory decision
of March 11, 2005, in the case of the Prosecutor v. Hadzihasanovi, in support of
the Trial Courts conclusions that the prohibition of wanton destruction of cities,
plunder of public or private property, and destruction of institutions dedicated
to religion, and more broadly, the prohibition of attacks on civilian objects, were
customary norms, the violation of which entails the individual criminal respon-
sibility of the violators.357 These norms, derived from conventional, largely Hague
354 Baxter explained that as the number of states that have ratied the treaty increases,
much greater weight is placed, in the discernment of custom, on the practices of
those relatively few states that have not ratied. See R. Baxter, Treaties and Custom,
129 Receuil des Cours 64 (1970). For discussion of the Baxter paradox, see Theodor
Meron, supra note 9, at 50-51. For methods of deriving customary law evidence from
the position of state parties, see id. at 51-57.
355 See Henckaerts, supra note 238, at 184.
356 Id.
357 Prosecutor v. Hadihasanovi, Decision on Joint Defence Interlocutory Appeal of
Trial Chamber Decision on Rule 98 bis Motions for Acquittal, ICTY App. Chamber,
Case No. IT-01-47-AR73.3, (March 11, 2005).
law, for international armed conicts, especially in the context of the law of oc-
cupation, became, through customary law, applicable to non-international armed
conicts as well. Although the relevant principles were articulated already in the
Tribunals earlier decisions by trial chambers in 1999 (Kordi and erkez),358 and
Strugar (2002),359 and by the Appeals Chamber in an interlocutory appeal deci-
sion in Strugar (2002),360 the 2005 interlocutory appeal drew support for these
principles from the ICRC study. In what may be symptomatic of future practice,
the Appeals Chamber cited indications of practice demonstrated by the study,
rather than the black letter rule that the studys authors reached in conclusion.
This approach is, in my view, a salutary one.
The traditional approach taken by the ICRC might, I suspect, be appreciated
by many of the critics of the less formal approach that has been more in vogue
in recent decades. Even advocates of the modern approach will, however, see the
great utility of this study as a resource, for even as a diverse array of sources are
embraced, the careful assessment of state practice and opinio juris will always
have an important role to play in the development and application of customary
law. In particular, as I have argued here, such evidence will be especially useful to
international criminal tribunals, which are in my view compelled by the legality
principle to take a relatively cautious approach to the ascertainment of custom-
ary principles. Some critics of the ICRC study might however argue that while
traditional in methodology, the study was too progressive in the interpretation
of the practice and thus in the black letter rules. The task of elucidating the rules
was left largely to the study of two editors, since the experts committee that had
guided the study was unfortunately disbanded. It will be interesting to see wheth-
er the black letter rules assume in due course an inuence equivalent to that of
the volumes on practice. I believe the ICTYs jurisprudence has been faithful to
the principle of cautiousness in the ascertainment of customary rules, but the ac-
curacy and reasoning of the Tribunals assessments can only be strengthened by
the availability of this new wealth of information. Perhaps such studies could be
usefully undertaken in other areas of international law, provided that one could
nd for them the level of institutional support, the credibility and funding as that
provided by the ICRC.
358 Prosecutor v. Kordi and erkez, Decision on Joint Defence Motion to Dismiss the
Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdiction
Reach of Articles 2 and 3, ICTY Trial Chamber, at paras. 15-31, Case No. IT-95-14/2-
PT, (March 2, 1999).
359 Prosecutor v. Strugar, Decision on Defence Preliminary Motion Challenging Jurisdic-
tion, ICTY Trial Chamber, at para. 17, Case No. IT-01-42-PT, (June 7, 2002).
360 Prosecutor v. Strugar, Decision on Interlocutory Appeal, ICTY App. Chamber, at pa-
ras. 9-14, Case No. IT-01-42-AR72, (November 22, 2002).
Chapter 7: International Courts*
Available space inevitably compels making dicult choices. In this chapter I shall
consider only the International Court of Justice (ICJ) and the European Court of
Human Rights (ECHR).
A. The International Court of Justice

If initially the ICJ has not been a central player in the human rights and humani-
tarian law eld, over the years its judgements have made an ever more important
contribution to both. Few human rights treaties have a compromis clause refer-
ring cases to the Court, and other mechanisms are in place to adjudicate breaches
of these treaties.1 States could bring human rights cases to the Court under other
treaties conferring jurisdiction, but they generally have not done so. Of course,
only States have standing before the Court in contentious proceedings. As Judge
Jennings has observed, this position reects the position in general international
law in 1922 when the Statute of the Permanent Court of International Justice was
rst drawn, and when international law was simply a law between States, and
when the idea that individuals or any entities other than State might become per-
sons in international law was almost unthinkable. This provision has remained
unchanged since then although today it is in important senses a juridical anach-
ronism.2
If, at rst sight, the contributions of the Court seem to have been rather spo-
radic, they nonetheless have addressed some fundamental issues of human rights
* The International Criminal Court and ad hoc Tribunals are considered in the chapter
on the Criminalization of Violations of International Humanitarian Law.
1 Rosalyn Higgins, The International Court of Justice and Human Rights, in Interna-
tional Law: Theory and Practice: Essays in Honour of Eric Suy 691,693-694 (Karel
Wellens ed., 1998). Article IX of the Genocide Convention and Article 22 of the Inter-
national Convention on the Elimination of All Forms of Racial Discrimination pro-
vide for the compulsory jurisdiction of the ICJ for disputes regarding the interpreta-
tion and application of those Conventions.
2 Robert Y. Jennings, The Role of the International Court of Justice, 68 B.Y.B.I.L. 55, 58
(1997).
426 Chapter 7
law and its relationships with general international law. The ICJ and its predeces-
sor, the Permanent Court of International Justice (PCIJ), have made some impor-
tant contributions on such issues as minorities rights, rights of aliens and diplo-
matic protection, self-determination, human rights as a matter of international
concern and scope of domestic jurisdiction, international personality, elementary
considerations of humanity, and erga omnes obligations.
The PCIJ embraced human rights concerns early on by nding that the very
object of an international agreement may be the adoption of some denite rules
creating individual rights and obligations,3 a nding that at the time was in eect
an extraordinary pronouncement.4 Paraphrasing Hersch Lauterpacht, Stephen
Schwebel commented that the Court ignored the postulated insurmountable
barrier between the individual and international law and denied the exclusive-
ness of States as the beneciaries of international rights holdings fundamen-
tal to the modern international law of human rights.5 The ICJ recognized the
principle that entities other than States may have rights and obligations under
international law as early as 1949,6 holding, in its advisory opinion on Repara-
tions for Injuries Suered in the Service of the United Nations, that international
organizations had legal personality under international law.7 The ICJ developed
the idea of non-States as rights bearers under international law in its advisory
opinion on the International Status of South West Africa, in which it held that
Article 80 of the UN Charter safeguarded not only the rights of States, but also
the rights of the peoples of mandated territories,8 in this case safeguarding a
right of petition. Thus individuals [were] treated by the Court as invested by
an international instrument with an international right, in this case with a pro-
cedural right protective of certain fundamental human rights (such as freedom
from slavery and forced labor).9 As Judge Higgins has observed, the Permanent
Court of International Justice, in its role as arbiter and interpreter of the Minor-
ity Treaties concluded in the wake of the First World War, created some precur-
3 Jurisdiction of the Courts of Danzig, Permanent Court of International Justice, Advi-

sory Opinion of 3 March 1928, [1928] PCIJ, Series B, No. 15, at 17-18.
4 Hersch Lauterpacht, The Development of International Law by the International
Court 174 (1958), quoted in Stephen M.Schwebel, The Treatment of Human Rights and
Aliens in the International Court of Justice, in Fifty Years of The International Court
of Justice: Essays in Honour of Sir Robert Jennings 327 (Vaughan Lowe and Malgosia
Fitzmaurice eds., 1996).
5 Stephen M. Schwebel, Human Rights in the World Court, 24 Vanderbilt J. Transnatl
L. 945, 956 (1991).
6 Id. at 332.
7 Reparations for Injuries Suered in the Service of the United Nations, International
Court of Justice, Advisory Opinion of 11 April 1949, 1949 ICJ Rep. 174, 178.
8 International Status of South West Africa, International Court of Justice, Advisory
Opinion of 11 July 1950, 1950 ICJ Rep. 128, 133-134.
9 Schwebel, supra note 4, at 331.
International Courts 427
sors of modern human rights law.10 In 1923, the PCIJ, applying a test of equality
of treatment in fact, held that a law, which on its face appeared neutral, violated
the rights of German settlers in Poland under the Minorities Treaty.11 That Treaty
required Poland to assure full and complete protection of life and liberty to all
inhabitants of Poland without distinction of birth, nationality, language, race or
religion. and mandated that Polish nationals who belong to racial, religious or
linguistic minorities shall enjoy the same treatment and security in law and in
fact as other Polish nationals.12 As noted by Stephen Schwebel, the decision of
the Court focused on discrimination in fact, not only discrimination in law, hold-
ing that such discrimination was a violation of treaty provisions,13 and that civil
rights included property rights.14
The concept of equality of treatment in fact, and its relationship with dis-
crimination and dierential treatment, was further elaborated in the 1935 advi-
sory opinion on Minority Schools in Albania. The Court stated that equality and
suitable means for the preservation of cultural peculiarities
are indeed closely inter-locked, for there would be no true equality between a major-
ity and a minority if the latter were deprived of its own institutions, and were conse-
quently compelled to renounce that which constitutes the very essence of its being
as a minority.15
...
Equality in law precludes discrimination of any kind; whereas equality in fact may in-
volve the necessity of dierent treatment in order to attain a result which establishes
an equilibrium between dierent situations.
It is easy to imagine cases in which equality of treatment of the majority and
of the minority, whose situations and requirements are dierent, would result in in-
equality in fact; treatment of this description would run counter to [Albanias inter-
national obligations]16

11 Certain Questions relating to Settlers of German Origin, Permanent Court of Inter-
national Justice, Advisory Opinion of 10 September 1923, [1923] PCIJ, Series B, No.
6.
12 Quoted in Higgins, supra note 1, at 692.
13 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the
Danzig Territory, Advisory Opinion of 4 February 1932, [1932] PCIJ, Series A/B, No.
44, at 28.
15 Minority Schools in Albania, Permanent Court of International Justice, Advisory
Opinion of 6 April 1935, [1935] PCIJ, Series A/B, No. 64, at 17.
16 Minority Schools in Albania, supra note 15, at 19.
428 Chapter 7
Such ndings have a resonance with the notion familiar today from debates over
armative action programs that dierential treatment may be necessary to en-
sure equality in fact.17 The Human Rights Committee has thus insisted that [t]he
enjoyment of rights and freedoms on an equal footing [...] does not mean identi-
cal treatment in every instance:18
[P]ositive measures by States may also be necessary to protect the identity of a minor-
ity and the rights of its members to enjoy and develop their culture and language and
to practice their religion, in community with the other members of the group. In this
connection, it has to be observed that such positive measures must respect the provi-
sions of articles 2.1 and 26 of the Covenant both as regards the treatment between
dierent minorities and the treatment between the persons belonging to them and
the remaining part of the population. However, as long as those measures are aimed
at correcting conditions which prevent or impair the enjoyment of the rights guar-
anteed under article 27, they may constitute a legitimate dierentiation under the
Covenant, provided that they are based on reasonable and objective criteria.19
In the Upper Silesia Case, construing the Minorities Treaty, the Permanent Court
held that minorities could be identied by taking into account both the facts and
the intention of minority members, and not self-identication alone.20 While the
identication of minorities and of their members is still fraught with diculties,
the Permanent Court had already established the principle that it was not for
the State to decide whether an individual was a minority member or not.21 The
Human Rights Committee General Comment on minority rights agreed: [t]he
existence of an ethnic, religious or linguistic minority in a given State party does
not depend upon a decision by that State party but requires to be established by
objective criteria.22
Minority rights under the Minority Treaties were limited to minorities pro-
tected under the specic treaties concluded with the redrawing of frontiers fol-
lowing the disintegration of the Austro-Hungarian and Ottoman empires. They
did not rise to a principle of general international law applicable to all national
minorities.23 Nonetheless, [t]he jurisprudence of the Permanent Court showed a
17 Higgins, supra note 1, at 693; Schwebel supra note 4, at 328.

18 Human Rights Committee, Thirty-seventh Session, General Comment 18: Non-dis-
crimination, para. 8; also para. 10 on armative action.
19 Human Rights Committee, Fiftieth Session, General Comment 23: The rights of mi-
norities (Article 27), para. 6.2 (1994).
20 Rights of Minorities in Upper Silesia (Minority Schools), Permanent Court of Inter-
national Justice, Advisory Opinion of April 26, 1928, PCIJ Rep., Series A, No. 15, at
32-35.
21 Higgins, supra note 1, at 692.
22 Human Rights Committee, Fiftieth Session, General Comment 23: The rights of mi-
norities (Article 27), para. 5.2, in ne (1994).
profound insight into what was necessary for the protection of national minori-
ties and its ndings continued ideas that have had a lasting importance in human
rights law.24
Apart from issues pertaining to minorities, the PCIJ considered questions
of treatment of aliens and their property, and the law of diplomatic protection.25
In the Mavrommatis Palestine Concessions case it made a pronouncement of the
classic State-centered law of diplomatic protection: By taking up the case of one
of its subjects and by resorting to diplomatic protection or international judicial
proceedings on its behalf, a State is in reality asserting its own rights its right to
ensure, in the person of its subjects, respect for the rules of international law.26
This classic line continued through cases such as Chorzw,27 Interhandel, and
Electronica Sicula.28 Barcelona Traction29 breaks new ground (discussed further
below and in the Chapter on State responsibility)).
The ICJ has made additional contributions to the principle of exhaustion of
domestic remedies and the nature of diplomatic protection. Of particular impor-
tance for the law of diplomatic protection and principles governing exhaustion
of local remedies is the La Grand Case (Germany v. United States of America)
(1991).30 The Court agreed with Germany that Article 36(1) of the Vienna Con-
vention on Consular Relations, concerning consular access and notication for
detained nationals, creates individual rights, which, by virtue of Article I of the
Optional Protocol, may be invoked in this Court by the national State of the de-
tained person.31 It thus rejected the U.S. claim that rights of consular notication
and access under the Vienna Convention are rights of States, and not of individu-
als, even though these rights may benet individuals by permitting States to oer
them consular assistance.32 The Court decided not to consider the additional ar-
gument by Germany that those individual rights assumed the character of human
rights.33
The Court has rarely dealt with substantive aspects of specic human rights,
partly for the simple reason that most human rights treaties set up their own
specic mechanisms for their interpretation and enforcement and partly because

26 The Mavrommatis Palestine Concessions, PCIJ, Series A, No. 2, at 12.
27 Factory at Chrzow, PCIJ, Series A, No. 17.
28 See Interhandel case, 1957 ICJ Rep. 2, 27; Electronica Sicula SpA (ELSI), 1979 ICJ Rep.
42-44.
29 Barcelona Traction, Light, and Power Company (Second Application) (Belgium v.
Spain), International Court of Justice, Judgment of 5 February 1970, 1970 ICJ Rep. 3,
44-45.
30 Judgement of 27 June 2001, 2001 ICJ Rep. 466.
31 Id. at para. 77.
32 Id. at para. 76.
33 Id. at para. 78.
430 Chapter 7
States have been reluctant to invest the political capital necessary for bringing
human rights issues to the ICJ under other treaties. Referring to the UN Charter
human rights clauses, the Court held in the Namibia Advisory Opinion that [t]o
establish
and to enforce distinctions, exclusions, restrictions and limitations exclusively based

on grounds of race, colour, descent or national or ethnic origin which constitute a
denial of fundamental human rights [constitutes] a agrant violation of the purposes
and principles of the Charter of the United Nations .34
Commentators have suggested that the statement of the Court in the Namibia
Advisory Opinion supports the view that the Charter imposes obligations in the
realm of human rights and that [t]he Charter provisions are therefore not just
hortatory and programmatic.35 This view gains additional support from the Unit-
ed States Diplomatic and Consular Sta in Tehran Case, where the Court held
that: Wrongfully to deprive human beings of their freedom and to subject them
to physical constraint in conditions of hardship is in itself manifestly incompatible
with the principles of the Charter of the United Nations, as well as with the funda-
mental principles enunciated in the Universal Declaration of Human Rights.36
As far back as 1923, the PCIJ established that the question whether a matter
was solely subject to domestic jurisdiction was an essentially relative question;
it depends upon the development of international relations.37 Applied to human
rights, this nding suggests that [o]nce a State has undertaken obligations to-
wards another State, or toward the international community, in a specied sphere
of human rights, it may no longer maintain, vis--vis the other State or the in-
ternational community, that matters in that sphere are exclusively or essentially
within its domestic jurisdiction and outside the range of international concern.38
The ICJ has made an important contribution to the narrowing down of the
scope of domestic jurisdiction. In the Interpretation of Peace Treaties with Bul-
garia, Hungary and Romania, the ICJ was called upon by the General Assembly
to give an advisory opinion on the dispute settlement procedure of these treaties.
The dispute related to alleged violations of the obligation to take all measures
necessary to secure to all persons under [their] jurisdiction, without distinction
as to race, sex, language or religion, the enjoyment of human rights and funda-
34 Legal Consequences for States of the Continued Presence of South Africa in Na-
mibia, (South West Africa), Notwithstanding Security Council Resolution 276 (1970),
1971 ICJ Rep. 16, at para. 131.
35 Nigel S Rodley, Human Rights and Humanitarian Intervention: The Case Law of the
World Court, 38 I.C.L.Q. 321, 324 (1989).
36 United States Diplomatic and Consular Sta in Tehran (United States v. Iran), Inter-
national Court of Justice, Judgment of 24 May 1980, 1980 ICJ Rep. 3, par. 91.
37 National Decrees Issued in Tunis and Morocco, Permanent Court of International
Justice, Advisory Opinion of 7 February 1923, [1923] PCIJ, Series B, No. 4, at 24.
38 Schwebel (1991), supra note 5, at 957.
mental freedoms, including freedom of expression, of press and publications, of

religious worship, of political opinion and of public meetings.39 It was argued that
the General Assemblys request for an advisory opinion was ultra vires because,
in dealing with human rights in these States, the Assembly was intervening in
matters essentially within the domestic jurisdiction of States, and because both
the Assembly and the Court were bound to observe Article 2(7) of the UN Char-
ter. Noting that the Assembly grounded its request in Article 55 of the Charter,
the ICJ stated that [t]he interpretation of the terms of a treaty could not be con-
sidered as a question essentially within the domestic jurisdiction of a State. It is a
question of international law which, by its very nature, lies within the competence
of the Court.40 Schwebel observed that, if the nding of the Court was applied to
the UN Charters human rights clauses, it would appear to follow that any ques-
tion of the breach of these treaty obligations ... equally would not be matters es-
sentially within the jurisdiction of a State,41 adding that [t]he importance of that
conclusion to the contemporary international law of human rights is fundamental
in view of the fact ... that the Court was later to hold that these Charter provisions
do give rise to international obligations.42
In the Asylum Case, the Court held that [i]n principle ... asylum cannot be
opposed to the operation of justice, but added that [a]n exception to this rule
can occur only if, in the guise of justice, arbitrary action is substituted for the rule
of law. Asylum protects the political oender against any measures of a manifestly
extra-legal character which a government might take against its political oppo-
nents.43 In its advisory opinion on Reservations to the Genocide Convention, the
Court stated that the principles underlying the Convention are principles which
are recognized by civilized nations as binding on States, even without any con-
ventional obligation.44 Although from a contemporary point of view, this state-
ment does not seem particularly bold, it should be remembered that the opinion
was rendered only two and a half years after the adoption of the Convention, and
that the Convention departed from the model of the Nuremberg Charter and
Judgment by omitting any nexus with an armed conict.45 [T]he opinion [thus]
represented a rst breach by the Court of the doctrine of domestic jurisdiction.46
39 Interpretation of Peace Treaties with Bulgaria, Hungary, and Romania, International

Court of Justice, Advisory Opinion of 30 March 1950, 1950 ICJ Rep. 65, 73.
40 Id., 70-71; Meron, Human Rights and Humanitarian Norms as Customary Law 106
(1989).
42 Id.
43 Asylum Case (Colombia v. Peru), International Court of Justice, Judgment of 20 No-
vember 1950, 1950 ICJ Rep. 266, 284.
Genocide, International Court of Justice, Advisory Opinion of 28 May 1951, 1951 ICJ
Rep. 15, at 23.
45 Rodley, supra note 35, at 322.
46 Rodley, supra note 35, at 322.
432 Chapter 7
In stating that in the Genocide Convention, States did not have any interests of
their own; they merely have, one and all, a common interest,47 the Court antici-
pated the later dicta on obligations erga omnes48 and recognized the normative
or objective character of certain types of treaties. Obligations erga omnes were,
of course, recognized in the Barcelona Traction Case, where the Court made the
essential distinction between the obligations of a State towards the interna-
tional community as a whole, and those arising vis--vis another State in the eld
of diplomatic protection. By their very nature, the former are the concern of all
States. In view of the importance of the rights involved, States can be held to have
a legal interest in their protection; they are obligations erga omnes.49 The concept
of erga omnes obligations has implications also for the scope of States exclusive
jurisdiction, for it follows that, when a State protests that another is violating the
basic human rights of the latter own citizens, the former State is not intervening
in the latters internal aairs; it rather is seeking to vindicate international obliga-
tions which run towards it as well as all other States.50
I turn to the ICJs consideration of genocide. The ICJ addressed genocide in
several cases. In the Reservations to the Genocide Convention Advisory Opinion,
the Court eloquently stated that the origins of the Convention, which was a major
response to Nazi atrocities, revealed that the United Nations intended to punish
genocide as a crime under international law, because it
[s]hocks the conscience of mankind and results in great losses to humanity, and is
contrary to moral law and to the spirit and aims of the United nations. The rst con-
sequence arising from this conception is that the principles underlying the Conven-
tion are principles which are recognized by civilized nations as binding on States,
even without any conventional obligations.51
The question of genocide was briey discussed by the Court in its Advisory Opin-
ion on the use of Nuclear Weapons in response to some States which had argued
that the use of nuclear weapons would amount to genocide.52 The Court claried
that

Genocide, supra note 44, at 23.
49 Barcelona Traction Light and Power Company, Ltd., supra note 29, para 33.
Genocide, supra note 44, at 23.
52 John Burroughs, The Legality of Threat or Use of Nuclear Weapons: A Guide to the
Historic Opinion of the International Court of Justice 116 (1998).
the prohibition of genocide would be pertinent in this case if the recourse to nuclear
weapons did indeed entail the element of intent, towards a group as such 53
Judges Weeramantry and Koroma dissented, opining that intent could be inferred
given the foreseeable consequences of the use of nuclear weapons.54 In the more
recent Case Concerning Application of the Convention on the Prevention and Pun-
ishment of the Crime of Genocide, the Court wrote that the rights and obligations
enshrined in the Convention are rights and obligations erga omnes.55 Thus, the
Courts temporal jurisdiction was not limited to the period from which Bosnia
and the FRY were both bound by the Convention. In this case, however, the Court
did not address the question whether there was automatic succession to human
rights treaties. Instead it relied on the succession of the Federal Republic of Yu-
goslavia to the Former Socialist Republic of Yugoslavia and the retrospective ap-
plication of the jurisdictional clause.56
When the Court rst examined the concept of self-determination, it was still
viewed by many as a political question.57 In the Namibia Advisory Opinion, the
Court, interpreting the Covenant of the League of Nations and the Mandate for
South West Africa, emphasized the centrality of the principle of self determina-
tion in the UN Charter and its passage into customary law through the general
practice of States and of the United Nations, as reected in such documents as
General Assembly Resolution 1514 (XV) (1961).58 In its Advisory Opinion on West-
ern Sahara, the Court described that principle as a right of people59 to determine
their future political status by their own freely expressed will.60 In the East Timor
Case, the Court agreed that:
Portugals assertion that the right of peoples to self-determination, as it evolved from

the Charter and from United Nations practice, has an erga omnes character, is ir-
reproachable. The principle of self-determination of peoples has been recognized by
53 Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, Ad-
visory Opinion of 8 July 1996, 1996 ICJ Rep., para. 26.
54 Legality of the Threat or Use of Nuclear Weapons, supra note 53, Dissenting Opinion
of J. Weeramantry; Dissenting Opinion of J. Koroma.
International Court of Justice, Judgment of 11 July 1996, 1996 ICJ Rep. 616, para. 31.
58 Legal Consequences for States of the Continued Presence of South Africa in Na-
mibia, supra note 34, paras. 51-54.
59 Western Sahara, International Court of Justice, Advisory Opinion of 16 October 1975,
1975 ICJ Rep. 12, 31-33.
60 Western Sahara, supra note 59, at 36.
434 Chapter 7
the United Nations Charter and in the jurisprudence of the Court; it is one of the es-
sential principles of contemporary international law.61
Despite the wide recognition of the concept of erga omnes obligations, the en-
forcement of human rights through international courts is still in its infancy. For
one thing, rules governing jurisdiction and nationality still slow down progress.
The Nottebohm Case shows the limitations that the law of diplomatic protec-
tion may present for the enforcement of individual rights. In that case, the Court
insisted on a genuine link between the individual and the State espousing the
claim.62 The principle [of genuine link] may have the result that no State is in a
position to maintain a claim on behalf of an individual, a result which forecloses
the realization of that individuals human rights.63 In the Barcelona Traction case
the Court referred to the continuing vitality of nationality even in the context of
the protection of human rights:
on the universal level, the instruments which embody human rights do not confer
on States the capacity to protect the victims of infringements of such rights irrespec-
tive of their nationality. It is therefore still on the regional level that a solution to this
problem has had to be sought64
In the South West Africa Cases,65 an inter-State claim, the ICJ required the show-
ing of specic interest. In the East Timor case, the Court insisted that the erga
omnes nature of an obligation did not dispense with the need of consent to juris-
diction:
the erga omnes character of a norm and the rule of consent to jurisdiction are two
dierent things. Whatever the nature of the obligations invoked, the Court could not
rule on the lawfulness of the conduct of a State when its judgment would imply an
evaluation of the lawfulness of the conduct of another State which is not party to the
case. Where this is so, the Court cannot act, even if the right in question is a right
erga omnes.66
The Court took the same position in the more recent Case Concerning Armed
Activities on the Territory of the Congo. Whereas it does not follow from the
mere fact that rights and obligations erga omnes are at issue in a dispute that the
61 Case concerning East Timor (Portugal v. Australia), International Court of Justice,

Judgment of 30 June 1995, 1995 ICJ Rep. 90, para. 29.
62 Nottebohm Case (Liechtenstein v. Guatemala) (Second Phase), International Court of
Justice, Judgement of 6 April 1955, 1955 ICJ Rep. 4, 26.
64 Barcelona Traction Case, supra note 29, para. 91.
65 South West Africa Cases (Ethiopia and Liberia v. South Africa) (Second Phase), Inter-
national Court of Justice, Judgment of 18 July 1966, 1966 ICJ Rep. 4, para. 88.
66 Case concerning East Timor (Portugal v. Australia), supra note 61, para. 29.
Court has jurisdiction to adjudicate upon that dispute; whereas, as the Court has
noted above , it has jurisdiction in respect of States only to the extent that they
have consented thereto; and whereas, when a compromissory clause in a treaty
provides for the Courts jurisdiction, that jurisdiction exists only in respect of the
parties to the treaty who are bound by that clause and within the limits set out
in that clause67 While the holding of the Court clearly distinguishing between
jurisdiction and substantive norms (erga omnes) is no doubt correct, it shows the
limited eect of obligations erga omnes in the practice of international tribunals.
In Military and Paramilitary Activities in and Against Nicaragua, the Court
held that, while the United States might form its own appraisal of the situation
as to respect for human rights in Nicaragua, the use of force could not be the ap-
propriate method to monitor or ensure respect. With regard to the steps actually
taken, the protection of human rights, a strictly humanitarian objective, cannot
be compatible with the mining of ports, the destruction of oil installations, or
again with the training, arming and equipping of the Contras.68 It observed that
where human rights are protected by international conventions, that protection
takes the form of such arrangements for monitoring or ensuring respect for hu-
man rights as are provided for in the conventions themselves.69 Schwebel has
suggested that this holding may clash with the erga omnes character of human
rights obligations.70 Others have criticized it as symptomatic of the restrictive
approach by the Court to questions of standing.71 The Court also held that the
use of force was not an appropriate method to monitor or ensure respect for hu-
man rights. The Court took a more positive attitude to humanitarian assistance,
without, however, approving of crossing frontiers without the consent of the ter-
ritorial State: There can be no doubt that the provision of strictly humanitarian
aid to persons or forces in another country, whatever their political aliations or
objectives, cannot be regarded as unlawful intervention, or as in any other way
contrary to international law. The characteristics of such aid were indicated in the
rst and second of the fundamental principles declared by the Twentieth Interna-
tional Conference of the Red Cross.72
In the Corfu Channel Case, its rst contentious case, the Court held that
Albanias obligation to notify international shipping of mines in its territorial wa-
ters was based on certain general and well-recognized principles, namely: el-
67 (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Order of 10

July 2002 on Request for the Indication of Provisional Measures at para. 71.
267.
69 Military and Paramilitary Activities in and Against Nicaragua, (Nicar. v. USA) Merits,
1586 ICJ Rep 14/Judgement of 27 June), para. 268.
71 Fernando R. Tson, Le peuple, cest moi! The World Court and Human Rights, 81 AJIL
173 (1987).
242.
436 Chapter 7
ementary considerations of humanity, even more exacting in peace than in war,

the principle of the freedom of maritime communications; and every States ob-
ligation not to allow knowingly its territory to be used for acts contrary to the
right of other States.73 Building on this decision, in the Military and Paramilitary
Activities in and Against Nicaragua Case, the Court stated:
If a State lays mines in any waters whatever in which the vessels of another State have
rights of access or passage, and fails to give any warning or notication whatsoever,
in disregard of the security of peaceful shipping, it commits a breach of the princi-
ples of humanitarian law underlying the specic provisions of Convention No.VIII
of 1907.74
The Court conrmed that the conduct of the United States may be judged ac-
cording to the fundamental general principles of humanitarian law.75 It held that
Common Articles 1 and 3 of the Geneva Conventions were part of customary
law. The guarantees of Common Article 3 constitute a minimum yardstick, in
addition to the more elaborate rules which are also to apply to international con-
icts; and they are rules which, in the Courts opinion, reect what the court in
1949 called elementary considerations of humanity.76 At the time of the decision,
the customary character of these provisions was still questioned, as indicated by
Judges Ago and Jennings in their separate or dissenting opinions.
The Nuclear Weapons Advisory Opinion provided the ICJ with the opportu-
nity to address in greater detail humanitarian law principles. The Court identied
these cardinal principles of humanitarian law: the principle of distinction and
immunity of civilians, and the prohibition of unnecessary suering to combat-
ants77. And it conrmed their customary law character: these fundamental rules
are to be observed by all States whether or not they have ratied the conventions
that contain them, because they constitute intransgressible principles of interna-
tional customary law.78
Human rights concerns have also been addressed in the Courts jurispru-
dence on provisional measures. The requirement that the measures sought be co-
terminous with the principal claim has prevented ordering measures that would
have pursued a more general protection of human rights in cases where human
73 Corfu Channel Case, International Court of Justice, Judgment of 9 April 1949, 1949
ICJ Rep. 4, 22.
74 Military and Paramilitary Activities in and Against Nicaragua, supra note 68, at para.
215.
75 See also Meron, supra note 40, at 108-10.
218.
78 Id., para. 79.
rights were not the object of the dispute.79 In United States Diplomatic and Con-
sular Sta in Tehran,80 the Court, while ordering interim measures designed to
protect the right of the parties, i.e., the rights owing from the Convention on
Diplomatic Relations and the Convention on Consular Relations, referred also
to human rights concerns. The United States had sought measures for the pro-
tection of its nationals to life, [and]..liberty, and the right to have its nationals
protected and secure.81 In its considerations the Court referred to the continu-
ance of the situation the subject of the present request exposes the human beings
concerned to privation, hardship, anguish and even danger to life and health and
thus to a serious possibility of irreparable harm.82 It thus made the connection
between harm to the individuals concerned and obligations owed by Iran to the
United States under the Vienna Conventions.83 In the case of the Military and
Paramilitary Activities in and against Nicaragua, where Nicaragua asked the
Court to order interim measures to support the rights of Nicaraguan citizens [on
the territory of Nicaragua] to life, liberty and security,84 the measures ordered by
the Court used the language of inter-State disputes.85
Human rights were considered by a chamber of the Court in the case of the
Frontier Dispute (Burkina Faso/Mali). The chamber found that the facts exposed
the persons and property in the disputed area to serious risks of irreparable dam-
age.86 Higgins has contended that the risk of irreparable harm to persons and
property should provide an adequate basis for provisional measures.87
In the Case Concerning the Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia
(Serbia and Montenegro)), the Court ordered interim measures against Yugoslavia
on the basis of the Genocide Convention, but declined to order measures on the
basis of other humanitarian law instruments. Interim measures were thus avail-
able only for the rights that were the subject of the dispute and within the Courts
jurisdiction.88
79 Rosalyn Higgins, Interim Measures for the Protection of Human Rights, 36 Colum. J.
Transnatl L. 91, 95 (1997).
80 United States Diplomatic and Consular Sta in Tehran (United States v. Iran), Provi-
sional Measures, Order of 15 December 1979, [1979] ICJ Rep. 7.
81 Id., at 19.
82 Id., at 20, para. 42.
83 Higgins (1998), supra note 1, at 698.
States), Provisional Measures, International Court of Justice, Order of 10 May 1984,
[1984] ICJ Rep. 169, 182.
86 Frontier Dispute Case (Burkina Faso/Mali), Provisional Measures, International
Court of Justice, Order of 10 January 1986, [1986] ICJ Rep. 3, 10.
88 Case concerning the Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Monte-
438 Chapter 7
In the Land and Maritime Boundary Case between Cameroon and Nigeria,
the Court showed sensitivity to human rights, and, in particular to civilian casual-
ties.89 Higgins suggests that the Court has thus recognized that [d]isputes about
boundaries are not just about lines on the ground but about the safety and protec-
tion of peoples who live there.90 Although hesitating to take into account rights
of individuals when not the subject of a dispute, the evolving jurisprudence on
provisional measures shows a growing tendency to recognize the human realities
behind disputes of States.91 The La Grand Case ts this trend. However haltingly,
the Court has paid increasing attention to human rights, especially the rights to
life and physical security.
The ICJ has authoritatively determined that human rights provisions contin-
ue to apply in time of armed conict, unless a party has lawfully derogated from
them. In its Advisory Opinion on Nuclear Weapons, the ICJ stated:
the protection of the International Covenant on Civil and Political Rights does not
cease in times of war, except by operation of Article 4 of the Covenant whereby cer-
tain provisions may be derogated from in time of national emergency.92
The Court also claried the relationship between the right to life under Article 6
of the ICCPR and the protection of life under international humanitarian law. On
the basis of the legislative history of that Article, most commentators agree that
to the extent that in present international law lawful acts of war are recognized,
such lawful acts are deemed not to be prohibited by Article 6 ... if they do not
violate internationally recognized laws and customs of war.93 The ICJ gave its
imprimatur to this position. It held that a renvoi to the applicable lex specialis,
the law of armed conict, was necessary in order to determine the legality of a
deprivation of life. While the prohibition of arbitrary deprivation of life continues
to apply, the test of such an act is the province of the lex specialis
namely, the law applicable in armed conict which is designed to regulate the con-
duct of hostilities. Thus, whether a particular loss of life, through the use of a certain
weapon in warfare, is to be considered an arbitrary deprivation of life contrary to
negro)), Provisional Measures, Order of 8 April 1993, [1993] ICJ Rep. 3, 19, para. 34;
Order of 13 September 1993 [1993] ICJ Rep. 325.
89 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nige-
ria), Provisional Measures, Order of 15 March 1996, [1996] ICJ Rep. 13, para 38 (I).
93 Respect for Human Rights in Armed Conicts. Report of the Secretary-General, UN
Doc. A/8052, at 104 (1970); see also id., at 98-101, 37 UN GAOR Supp. (No. 40) at 93,
UN Doc. A/37/40 (1982) (general comments of the Human Rights Committee).
Article 6 of the Covenant, can only be decided by reference to the law applicable in
armed conict and not deduced from the terms of the Covenant itself.94
The Court has thus interpreted Article 6 of the Covenant in light of principles of
international law applicable in armed conict. Such interpretation is of course
supported by Article 31(3)(c) of the Vienna Convention on the Law of Treaties. In
the Advisory Opinion of July 9, 2004, on Legal Consequences of the Construction
of the Wall in the Occupied Palestian Territory, the Court, citing its lex specialis
statement in Nuclear Weapons, held, more generally, that except for derogations
of the kind stated in Article 4 of the International Covenant on Civil and Politi-
cal Rights, the protection oered by human rights conventions does not cease
in case of armed conict,95 and that both humanitarian and human rights law
were applicable in Occupied Territories.96 Through a process of interpretation
of the Geneva Conventions and human rights conventions, and particularly the
International Covenant on Civil and Political Rights, the court found that both
the Covenant on Civil and Political Rights and the Covenant on Economic, Social
and Cultural Rights, as well as the Convention on the Rights of the Child were
applicable to the occupied territories, alongside the Geneva Convention and the
Hague Convention No. IV.97
Also in the Wall case (2004),98 the Court invoked customary law to nd Israel
in breach with regard to a whole range of issues. It did so without much substan-
tive inquiry into practice and opinio juris. It found that under customary law as
reected in Article 42 of the Regulations annexed to the Hague Convention No.
IV, Israel had the status of an occupying power;99 that the Hague Convention had
become part of customary law;100 that the rule of inadmissibility of the acquisition
of territory by force was customary;101 that Israel did not meet the customary law
standards of necessity which would have precluded the wrongfulness of the walls
construction;102 that Israel violated certain erga omnes obligations, such as the
right to self-determination of the Palestinian people and a number of humanitar-
ian rules, which constitute inviolable rules of humanitarian law;103 and that Is-
rael had, under customary law, the obligation to make reparation for the damage
94 Supra note 53.

95 Para. 106, Legal Consequences of the Construction of a Wall in the Occupied Palestin-
ian Territories (Advisory Opinion) 43 I.L.M. 1009 (July 9, 2004).
96 Para. 114.
97 Paras. 89-114.
98 Supra note 95.
99 Id. at para. 78.
101 Id. at para. 117.
102 Id. at para. 140.
103 Id. at paras. 155-57.
440 Chapter 7
caused.104 As already noted that the Court stated that the protection oered by
human rights conventions does not cease in case of armed conict, save through
the eect of derogations of the kind found under Article 4 of the International
Covenant on Civil and Political Rights,105 and that the humanitarian law applied
as lex specialis.106
B. The European Court of Human Rights

As the rst international convention on human rights, and the one with the most
advanced mechanisms of judicial resolution of individual and inter-State com-
plaints, it is natural that the Convention for the Protection of Human Rights and
Fundamental Freedoms,107 and the case law generated by the European Human
Rights Commission (no longer in existence since the entry into eect of Protocol
11) and the European Court of Human Rights, should have an important impact
on the development of public international law, an impact reaching beyond the
eld of human rights and the geographical parameters of the Council of Europe.
Nevertheless, because of the doctrine emphasizing the distinctiveness of interna-
tional human rights (virtual elimination of reciprocity, contraction of domestic
jurisdiction, and operation of the law not between theoretically equal sovereign
entities, but between governments subject to duties and individuals benet-
ing from rights, all that mostly within the nation State), the signicance for gen-
eral public international law of the normative system developed in Strasbourg
cannot be taken for granted. It merits discussion and comment.
My discussion will be limited to the ECHR. Accordingly, it will not address
other regional human rights courts nor the impact on public international law
of other European conventions. The ECHR has had a profound inuence on the
decisions of the Court of Justice of the European Communities, the Maastricht
Treaty, the inclusion of human rights clauses in the economic and development
agreements with States not members of the European Union and the recogni-
tion of the constitutional traditions common to the member States as general
principles of community law and thus as fundamental rights enforceable before
the Court of Justice.108 The ECHR has had a major impact on the development by
the European Communities and the OSCE of what Professor Charles Leben has
called the triad of human rights/democracy/rule of law.109 Beyond Europe, the
104 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Ter-
ritories, supra note 98, at para. 152.
105 Id. at para. 106.
106 Id.
107 Convention for the Protection of Human Rights and Fundamental Freedoms, Rome,
4 November 1950, in force 3 September 1953, Eur. T.S. No. 5, 213 UNTS 221.
108 See e.g., Wachauf v. Germany, Court of Justice of the European Communities, Case
5/88, [1989] ECR 2609.
109 Charles Leben, Is there a European Approach to Human Rights?, in The EU and Hu-
man Rights 69, 93 (Philip Alston ed. 1999).
ECHR has also had a major inuence on other regional human rights systems,
especially the jurisprudence of the American Court of Human Rights, as well as
on the universal human rights system.
Of course, the European Court applies primarily its constitutive instrument,
the European Convention. But increasingly it resorts to general international law
and thus its case law exercises inuence on the general law. The important study
by Lucius Caisch and Antnio Canado Trindade demonstrates how much the
European Court applies general international law, especially the law of treaties
and the law of state responsibility.110 In the case of Mamatkulov and Abdurasulo-
vic v. Turkey, the European Court of Human Rights examined the character of in-
terim measures by reference to general principles of international law, drawing in
particular on the practice of other international courts. Applying a dynamic and
evolutive approach, and in the light of general principles of international law, the
law of treaties and international case-law, the Court related the interpretation of
the scope of interim measures to the context of the pertinent proceedings. It con-
cluded that any state party addressee of interim measures must comply with them
to avoid irreparable harm being caused to the victim of the alleged violation.111
In the judgement of 4 February 2005 in the case of Mamatkulov and Askarov
v. Turkey, the Court held that whatever the legal system in question, the proper
administration of justice requires that no irreparable action be taken while pro-
ceedings are pending, and that preservation of rights of the parties represents an
essential objective of interim measures in international law.112 By failing to comply
with the interim measures indicated, Turkey was found to be in breach of its ob-
ligations under the Convention.113 In the case of Bosphorus Hava Yollari Turizm
v. Ireland (Judgement of June 30 2005), the Court considered the lawfulness of
the impoundment of a Turkish plane by Ireland in the execution of an EC regu-
lation adopted in pursuance of a Chapter VII Security Council Resolution. The
Court found that the impoundment was not an exercise of discretion by Ireland,
and constituted compliance with its international legal obligations. The European
Convention had to be interpreted in light of international law rules applicable
in relations between the contracting parties, including the principle pacta sunt
servanda. Such compliance constitutes a legitimate general interest objective
within the meaning of Protocol I to the Convention. Given that the protection of
fundamental rights of individuals by the EC law was equivalent to the system of
110 Lucius Caisch and Antnio Canado Trindade, Les Conventions Americaine et Eu-
ropeene des Droits de lhomme at le Droit International Gnral, Revue Gnrale de
Droit International Public 5 (2004). In the case of Al-Adsani v. the United Kingdom,
Application No. 35763/97, Judgement of 21 Nov. 2001, the European Court consid-
ered that the prohibition of torture constituted jus cogens, but the majority found that
this nding did not aect the existing immunity of states from civil claims.
111 Judgement of 6 February 2003, at para. 110.
112 Para. 124.
113 Id. at para. 128.
442 Chapter 7
the Convention, Ireland did not violate the Convention by implementing its legal
obligations owing from its membership of the EC.
I. Character of the Convention for the Protection of Human Rights and

Fundamental Freedoms
Strasbourg institutions have articulated the theory of the objective character of
the Convention, emphasizing its normativity and the departure from the reciproc-
ity underlying the law of treaties in general. Thus, in the case of Austria v. Italy,
the European Commission of Human Rights stated the obligations undertaken
by the High Contracting Parties in the Convention are essentially of an objective
character, being designed rather to protect the fundamental rights of individual
human beings from infringements by any of the High Contracting Parties than
to create subjective and reciprocal rights for the High Contracting Parties them-
selves.114 In France et al. v. Turkey,115 the Commission thus stated that
the general principle of reciprocity in international law and the rule in Article 21,
para. 1 of the Vienna Convention on the Law of Treaties, concerning bilateral obliga-
tions under a multilateral treaties do not apply to the obligations under the European
Convention, which 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 (Austria v. Italy, Yearbook 4, 116, at page
140). 116
In the Loizidou case, the Court emphasized the special character of the Con-
vention as a treaty for the collective enforcement of human rights and funda-
mental freedoms117 It emphasized the need not to diminish the eectiveness of
the Convention as a constitutional instrument of European public order (ordre
public).118
Although these characterizations were designed for the Convention only,
they may, in the long run, inuence the interpretation and application of other
normative and multilateral treaties which implicate common values rather than
just the interests of the individual State parties. Possible candidates for such a
114 Decision of the Commission as to Admissibility of Application No. 788/60 lodged by

the Government of the Federal Republic of Austria against the Government of the
Republic of Italy, 4 Yb. Eur. Conv. H.R. 116, 140 (1961).
115 France, Norway, Denmark, Sweden, Netherlands v. Turkey, European Commission of
Human Rights, Appl. No. 9940-9944/82 (joined), Decision on admissibility of 6 De-
cember 1983, 35 Eur. Commn Dec. & Rep. 143 (1984).
116 Id., at 169, para. 39.
117 Case of Loizidou v. Turkey (Preliminary Objections), European Court of Human
Rights, Judgment of 23 March 1995, 310 Eur. Ct. H.R. Rep. (Ser. A), para. 70 (1995).
118 Id., para. 75.
development include treaties concerning the environment and arms control. The
jurisprudence of the European Court of Human Rights may thus contribute to
lling the void left by the Vienna Convention on the Law of Treaties;119 which
hardly dealt with the special problems raised by multilateral normative treaties.
This Strasbourg jurisprudence will continue to drive the movement of interna-
tional law from its State-centered focus to an orientation towards individuals.
II. Reservations
Much has been written about the Strasbourg jurisprudence on reservations to the
ECHR. Because of the ample literature, my discussion will be brief. This jurispru-
dence draws on the special character of the Convention and turns essentially on
the application of Article 57 (former Article 64) and only secondarily on the more
general criterion of compatibility with the object and purpose of the Conven-
tion derived from the Vienna Convention on the Law of Treaties. As Pierre-Henri
Imbert has noted, there is no equivalent at the universal level to the Strasbourg
institutions, and Article 57 enabled the Court (except with regard to the reserva-
tions by Turkey), to avoid addressing the incompatibility criteria of the Vienna
Convention.120 Imbert acknowledged the fact that the Strasbourg jurisprudence
had more of an impact on the work of the Human Rights Committee established
under the International Covenant on Civil and Political Rights121 (CCPR) than on
the practice of States belonging to the Council of Europe. This jurisprudence em-
phasizes the requirement of specicity,122 which kemark regards as a reection
of a regional customary law,123 the exclusion of reservations which may render
the Convention ineective and the severability of inadmissible reservations. In-
admissible reservations would thus be excluded, while maintaining the validity of
the reserving States consent to the Convention (see, in particular, the Belilos and
Loizidou Cases.)124
119 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, UN
Doc. A/CONF.39/27 and Corr.1 (1969), 1155 UNTS 331, reprinted in 63 AJIL 875
(1969), 8 ILM 679 (1969).
120 CAHDI, Group of Specialists on Reservations to International Treaties, 2nd meeting,
Paris, Sept. 1998, Statement by Pierre-Henri Imbert.
121 International Covenant on Civil and Political Rights, UN General Assembly Resolu-
tion 2200A, 19 December 1966, in force 23 March 1976, 21 UN GAOR (Suppl. No. 16),
at 53, UN Doc. A/6316 (1967).
122 A reservation to a particular provision of the Convention has to indicate conict with
a provision of national law. kermark, Reservations: Breaking New Ground in the
Council of Europe, 24 Eur. L. Rev. 499, 503 (1999).
123 kermark, Reservations Clauses in Treaties Concluded within the Council of Europe,
48 I.C.L.Q. 479, 493 (1999).
124 Belilos Case (Switzerland), European Court of Human Rights, Judgment of 29 April
1988, 132 Eur. Ct. H.R. Rep. (ser. A) (1988); Case of Loizidou v. Turkey, supra note
117.
444 Chapter 7
The European jurisprudence has had an important impact on the universal

system of human rights, as exemplied by General Comment No. 24 of the Hu-
man Rights Committee (discussed in the chapter on treaties), and on the jurispru-
dence of the Inter-American Court of Human Rights. Although provisions similar
to Article 57 (former Article 64) can be found in many Council of Europe treaties,
I note the conclusion of kermark that that jurisprudence does not appear to
have been supported by the majority of the members of the Council of Europe,125
at any rate outside of the ECHR (the decisions of the Court are of course binding
on the State parties before the Court). Moreover, two members of the Council of
Europe, France and the United Kingdom, have dissented from General Comment
No. 24,126 especially questioning the competence of the Committee to decide on
invalidity and separability.127
Outside the Council of Europe, the United States has questioned the legal
foundation of the Committees approach.128 The Pellet reports and the recent
work of the International Law Commission (ILC) demonstrate resistance to the
Strasbourg jurisprudence and to General Comment No. 24 as a paradigm for the
law of treaties in general. They reect a preference for the maintenance of the
reservations system established by the Vienna Convention on the Law of Treaties.
Time will tell whether the Strasbourg jurisprudence on reservations will have an
impact, and how much of an impact, on other normative multilateral conventions.
Although, so far, that impact outside human rights treaties has been insignicant,
in the long run the assertive stand taken by the Strasbourg institutions may prove
useful in tempering the laissez-faire of the Vienna Conventions system.
III. Interpretation of Treaties

Sir Ian Sinclair observed that human rights bodies, in particular the European
institutions, have put emphasis on the object and purpose of human rights trea-
ties to such an extent that they sometimes overrode the ordinary meaning of
the text or ignored such evidence of the parties intention as found in the travaux
prparatoires.129 Sinclair gave as an example the Golder case, in which the Court
read into Article 6 of the Convention not only procedural safeguards in legal pro-
125 kermark, supra note 123, 504-507.

126 Committee on Human Rights, General Comment No. 24(52), adopted on 2 Novem-
ber 1994, Report of the Human Rights Committee, 50 UN GAOR (Supp. No. 40), UN
Doc. A/50/40, Annex V.
127 Report of the Human Rights Committee, Vol. I, 50 UN GAOR (Supp. No. 40), UN
Doc. A/50/40, Annex VI, (1995) (UK); 51 UN GAOR (Supp. No. 40), UN Doc. A/51/40,
Annex VI (1996) (France).
128 Report of the Human Rights Committee, Vol. I, 50 UN GAOR (Supp. No. 40), UN
Doc. A/50/40, Annex VI, (1995).
129 Ian Sinclair, The Vienna Convention on the Law of Treaties 133 (2nd ed., 1984).
ceedings, but also a right of access to courts.130 This approach of the Court to the
interpretation of the Convention has been criticized by Judge Fitzmaurice.
what I nd it impossible to accept is the implied suggestion that because the Con-
vention has a constitutional aspect, the ordinary rules of treaty interpretation can be
ignored or brushed aside in the interests of promoting objects or purposes not origi-
nally intended by the parties. Such a view moreover overlooks the patent fact that,
even in the case of constitutions proper, and even allowing for certain permissible
interpretational dierences of treatment between treaties and constitutions there
are rules of interpretation applicable to constitutions, and these rules have in large
measure a character closely analogous to those of treaty interpretation.131
In contrast, Jonathan Charney noted that to the extent that these Courts may
have adopted a teleological approach, it seems to be more consistent with the role
of the treatys purpose as intended in the Vienna Convention. It has rarely, if ever,
been used to sacrice the text in order to carry out judicially created purposes.132
Bruno Simma pointed out that another principle of interpretation has been de-
veloped by the European Court of Human Rights, i.e., that the Convention must
be interpreted in in the light of present day conditions.133
The need to interpret treaties in light of human rights concerns, as devel-
oped by the European Court of Human Rights, has inuenced the jurisprudence
of the European Court of Justice on fundamental rights as a part of the general
principles of law. Those fundamental rights are derived from the national con-
stitutions of member States and from treaties to which they are parties. In the
Nold case,134 the European Court of Justice, after referring to the constitutional
traditions common to the Member States, noted that [i]nternational treaties for
the protection of human rights on which the Member States have collaborated
or of which they are signatories, can supply guidelines which should be followed
130 Golder Case (United Kingdom), European Court of Human Rights, Judgment of 21
February 1975, 18 Eur. Ct. H.R. Rep. (Ser. A) (1975).
131 National Union of Belgian Police Case (Belgium), European Court of Human Rights,
Judgment of 27 October 1975, 19 Eur. Ct. H.R. Rep. (Ser. A), Dissenting Opinion of
J. Fitzmaurice, para. 9 (1975); See also dissenting opinion in Golder Case, supra note
130.
132 Jonathan I. Charney, Is International Law Threatened by Multiple International Tri-
bunals?, 271 Collected Courses 101, 188 (1998); also Buergenthal, The Advisory Prac-
tice of the Inter-American Human Rights Court, 79 AJIL 1, 18-20 (1985).
133 Simma, International Human Rights and General International Law, IV(2) Collected
Courses of the Academy of European Law 155, 185 (1993), citing the Court in the Tyrer
Case (United Kingdom), European Court of Human Rights, Judgment of 25 April
1978, 26 Eur. Ct. H.R. Rep. (Ser. A), at 15-16 (1978).
134 Nold, Kohlen-und Baustogrohandlung v. Commission of the European Communi-
ties, Court of Justice of the European Communities, Case 4/73, [1974] ECR 491, 507,
para. 13.
446 Chapter 7
within the framework of Community Law.135 The Court took note of the ECHR
and, in particular of the First Additional Protocol, which protects the right of
property.136
IV. State Sovereignty, Consent to the Convention and Admission to the

Council of Europe
Although it is not uncommon for international organizations to insist that vari-
ous commitments be made by the applicant States as a condition for admission
to membership, the Council of Europe has gone further. As discussed in greater
detail in the chapter on subjects, before the Parliamentary Assembly (PA) recom-
mends that the Committee of Ministers (CM) invite an applicant State to become
a member of the Council, the PA must satisfy itself that such applicant State has
met the conditions of Article 3 of the Statute of the Council, accepts the principle
of the rule of law and of the enjoyment by all persons within its jurisdiction of hu-
man rights and fundamental freedoms, and is willing to collaborate sincerely and
eectively in the realization of the aims of the Council. In essence, accession to
the Council presupposes that an applicant State has brought its institutions and
legal system into line with the basic principles of democracy, the rule of law and
human rights. The PA further requires that an applicant State accepts and raties
the Convention and a number of additional protocols, including Protocol 6 and 13
prohibiting capital punishment. All this amounts to a robust and innovative use
of admission to the Council of Europe as a tool to compel States to comply with
the Strasbourg system of human rights and to ratify several human rights treaties.
It establishes a model that may yet be followed by other organizations.137
V. Protection of the Environment

Before turning to the ECHRs jurisprudence on environment protection, a brief
introduction to the law of environment might be useful. Under the pressure of
public opinion, there has been considerable growth of normative texts both in
international human rights and environmental law. Both corpora of law comprise
numerous treaties and instruments, adopted at both the global and regional lev-
els, with various scopes of application and covering the multiple facets of human
rights and environmental protection. This parallel evolution has stimulated recip-
rocal inuences and has had a signicant impact on the interpretation of general
international law. My special focus is to examine the vitality and scope of the
inuence that human rights and community interests have had on the shaping of
environmental norms.
135 Id.
136 First Protocol to the Convention for the Protection of Human Rights and Fundamen-
tal Freedoms, Paris, 20 March 1952, in force 18 May 1954, Eur. T.S. No. 9.
137 See Meron & Sloan, Democracy, Rule of Law and Admission to the Council of Europe,
26 Israel Y.B. Human Rights 137 (1997).
International environmental law is mainly concerned with inter-State rela-

tions. Individuals rights and interests have often been given little consideration.
From a human rights perspective, the relationship between human rights and
environmental protection has principally been envisioned in several ways. One
has been the formulation and recognition of an individual substantive right to
a satisfactory, decent, healthy environment. Another approach has been to con-
sider the conservation and improvement of environmental quality as a way to
satisfy human rights.138 A third has been focused on procedural rights, which have
played an important role in this context.139
It is largely under the inuence of the concept of human rights and the
emergence of the concept of obligations erga omnes that international law has
been moving towards multilateral approaches in many areas. Some multilateral
conventions represent broad statements of community values and incorporate
obligations that go beyond the traditional reciprocal obligations. The notion of
community interests resonates through international environmental law.
a) A Right to a Healthy Environment

The Stockholm Declaration refrained from proclaiming a right to a healthy en-
vironment. States have similarly been reluctant to recognize such a right in sub-
sequent texts. Pointing away from human rights, the United Nations Conference
on Environment and Development held in Rio de Janeiro in 1992 [UNCED]
seems even to have played down the role of human rights in the development of
environmental law.140 The Declaration on Environment and Development (1992)
[Rio Declaration] and Agenda 21 contain very few references to human rights.
Principle I of the Rio Declaration merely asserts that [h]uman beings are at the
centre of concerns for sustainable development. They are entitled to a healthy and
productive life in harmony with nature.141 Developing countries wished to give
138 Merrills, Environmental Protection and Human Rights: Conceptual Aspects, in Hu-
man Rights Approaches to Environmental Protection 25, 39-40 (Alan E. Boyle and
Michael R. Anderson eds, 1996); Canado Trindade, The Contribution of Interntional
Human Rights to Environmental Protection, with Special Reference to Global Environ-
mental Change, in Environmental Change and International Law: New Challenges
and Dimensions 244, 271 (Edith Brown-Weiss ed., 1992).
139 Kiss, Le droit la conservation de lenvironnement, 2(12) Revue Universelle des Droits
de lHomme 445, 447-448 (1990).
140 Malgosia Fitzmaurice, Environmental Protection and the International Court of Jus-
tice, in Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert
Jennings 293, 304-305 (V. Lowe and M. Fitzmaurice eds., 1996); Alan Boyle, The Role
of International Human Rights Law in the Protection of the Environment, in Human
Rights Approaches to Environmental Protection 43 (Alan E. Boyle and Michael R.
Anderson eds., 1996); Marc Pallemaerts, La Confrence de Rio: Grandeur ou dca-
dence du droit international de lenvironnement, 28 Revue Belge de Droit Interna-
tional 175, 192-195 (1995).
141 Declaration on Environment and Development, Rio de Janeiro, 13 June 1992, Princi-
ple I, in Report of the United Nations Conference on Environment and Development,
448 Chapter 7
priority to development over environmental considerations,142 while developed

countries wished to avoid expensive constraints for their economies. At Rio, the
United States did not revive its proposal to a right to a safe environment, which
it had suggested in Stockholm.143 A Draft Charter on Environmental Rights and
Obligations originally drafted by experts of the U.N. Economic Commission for
Europe (ECE) was not submitted because of the opposition of the United States
and the United Kingdom.144 Still, preparatory works for UNCED had made exten-
sive reference to human rights. The set of legal principles proposed by the Experts
Group of the World Commission on Environment and Development provided
that [a]ll human beings have the fundamental right to an environment adequate
for their health and well-being.145 Texts adopted after the Rio Declaration fol-
lowed the same approach.146 The Vienna Declaration adopted by the World Con-
ference on Human Rights (1993) includes only tenuous references to the environ-
ment and those appear in the context of the right to development.147 There has
U.N. Doc. A/CONF.151/26 (Vol. I), Annex I (1992), reprinted in 31 I.L.M. 874 (1992). In
1990 the General Assembly adopted a resolution on the [n]eed to ensure a healthy
environment for the well-being of individuals which recognized that all individuals
were entitled to live in an environment adequate for their health and well-being; and
call[ed] upon Member States and intergovernmental and non-governmental orga-
nizations to enhance their eorts towards ensuring a better and healthier environ-
ment.
G.A. Res. 45/94, U.N. GAOR, 45th Sess., Supp. No.49, at 178, U.N. Doc. A/RES/45/94
(1990).
142 Dinah Shelton, What Happened in Rio to Human Rights? 3 Yb. Intl Envtl. L. 75, 89
(1992).
143 At Stockholm, the U.S. had proposed:
Every human being has a right to a healthful environment and safe environment, in-
cluding air, water and earth, and to food and other material necessities, all of which
should be suciently free of contamination and other elements which detract from the
health or well-being of man.
U.N. Doc. A/CONF.48/PC/WG.1/CRP.4, at 65 (1971), quoted in Shelton, supra note
142, at 76-77.
144 Pallemaerts, supra note 140, at 195-196.
145 World Commission on Environment and Development, Our Common Future 348
(1987).
146 See for instance, Declaration of Santiago, Second Summit of the Americas, 19 April
1998, para. 20, reprinted in 37 I.L.M. 947 (1998).
147 It states that:
The right to development should be fullled so as to meet equitably the developmental
and environmental needs of present and future generations. The World Conference on
Human Rights recognizes that illicit dumping of toxic and dangerous substances and
waste potentially constitutes a serious threat to the human rights to life and health of
everyone. [...]
Vienna Declaration and Programme of Action, World Conference on Human Rights,
14-25 June 1993, Part I, 11, U.N. Doc. A/CONF.157/23 (1993).
thus been a trend away from the recognition of a right to a healthy environment
on the international level since the Stockholm Conference.148
None of the principal human rights treaties, whether universal or regional,149
provided for a distinct individual right to a healthy environment at the time
of their adoption. Indeed, it appears from the travaux prparatoires of the U.N.
Covenants and the European Convention for the Protection of Human Rights and
Fundamental Freedoms that such a right was not envisioned.150 The African Char-
ter on Human and Peoples Rights, adopted in 1982, contains the so-called third-
generation rights, including the right to development, the right to peace and the
right to environment. Article 24 of the African Charter states that [a]ll peoples
shall have the right to a general satisfactory environment favorable to their devel-
opment.151 The relationship between the right to environment and development
remained unclear and no indication was given as to what was meant by a general
satisfactory environment.152 However human rights provisions frequently suer
from vagueness which is often corrected by further instruments, the work and
jurisprudence of supervising bodies and State practice. The African Commission
of Human Rights has not yet come up with a comprehensive interpretation of
Article 24. The Commission has inquired about [t]he principal legislation and
other measures taken to fulll the intentions of the Article regarding prohibition
148 There is a growing trend to refer to environmental protection in national constitutions

but those provisions tend to be formulated as policy objectives for State authorities
rather than as enforceable individual rights. See Human Rights and the Environment:
Second Progress Report Prepared by Mrs Fatma Zhora Ksentini, Special Rapporteur,
10-27, U.N. ESCOR, Commission on Human Rights, Sub-Commission on Preven-
tion of Discrimination and Protection of Minorities, 45th Sess., U.N. Doc. E/CN.4/
Sub.2/1993/7 (1993).
Similarly, the Charter of Fundamental Rights of the European Union (2000) adopted
in Nice recognizes the protection of the environment as a policy objective for the
EU institutions and governments. Charter of Fundamental Rights of the European
Union, Article 37, 2000 O.J. C 364/1.
149 International Covenant on Economic, Social and Cultural Rights, U.N. G.A. Res.
2200, U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc. A/6316 (1967); Interna-
tional Covenant on Civil and Political Rights, U.N. G.A. Res. 2200A, U.N. GAOR, 21st
Sess., Supp. No. 16, at 53, U.N. Doc. A/6316 (1967); American Convention on Human
Rights, San Jose, 22 November 1969, OAS Ocial Records OAE/ser.k/XVI/1.1, Doc.
65, rev. 1, corr.2, reprinted in 9 I.L.M. 673 (1970); Convention for the Protection of Hu-
man Rights and Fundamental Freedoms, Rome, 4 November 1950, Eur. T.S. No. 5, 213
U.N.T.S. 221; European Social Charter, Turin, 18 October 1961, Eur. T.S. No. 35, 529
U.N.T.S. 89; African Charter on Human Rights and Peoples Rights, Banjul, 27 June
1981, OAU Doc. CAB/LEG/67/3/Rev.5 (1981), reprinted in 21 I.L.M. 58 (1982).
150 Paula M. Pevato, A Right to Environment in International Law: Current Status and
Future Outlook, 8 R.E.C.I.E.L. 309, 313 (1999).
151 African Charter, supra note 149, art. 24.
152 Robin R. Churchill, Environmental Rights in Existing Human Rights Treaties, in Hu-
man Rights Approaches to Environmental Protection 89, 106 (Alan E. Boyle and Mi-
chael R. Anderson eds., 1996).
450 Chapter 7
of pollution and eorts to prevent international dumping of toxic wastes or other

wastes from industrialized countries. Scientic and ecient methods utilized for
eective disposal of locally produced wastes. 153 The question of dumping toxic
wastes in Africa was, of course, at the forefront of the international environmental
agenda at the end of the 1980s,154 but the Commissions approach was criticized as
narrow and unduly anthropocentric, as no reference was made to the conserva-
tion of species or habitats.155
Within the Council of Europe, proposals to include a right to environment
in the European Social Charter have not been accepted.156 A human rights instru-
ment that recognizes a human right to a healthy environment is the Additional
Protocol to the American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights [Protocol of San Salvador]. Its Article 11 provides
that [e]veryone shall have the right to live in a healthy environment and to have
access to basic public services. The State Parties shall promote the protection,
preservation, and improvement of the environment.157 The Protocol does not de-
ne healthy environment, nor does it indicate measures contemplated for the
promotion of the protection, preservation and improvement of the environment.
Even though the Protocols travaux prparatoires evince the parties belief that
the concept of environment was suciently established,158 the Protocol embod-
ies general policy objectives rather than a tangible, enforceable right. Its imple-
153 Second Activity Report of the African Commission on Human and Peoples Rights
(Section III, General Guidelines regarding the form and contents of reports to be
submitted on the Peopless Rights Articles 19 to 24 of the Charter), 14 June 1989, re-
printed in 11(3/4) Hum. Rts. L.J. 390, 418 (1990).
154 The Convention on the Control of Transboundary Movement of Hazardous Wastes
and Their Disposal, Basel, 22 March 1989, U.N. Environment Programme, U.N. Doc.
UNEP/IG.80/3, reprinted in 28 I.L.M. 657 (1989) was adopted in 1989, followed by
the Convention on the Ban of Import into Africa and the Control of Transboundary
Movement and Management of Hazardous Wastes within Africa, Bamako, 29 Janu-
ary 1991, reprinted in 30 I.L.M. 773 (1991). The latter convention was concluded by
African countries dissatised by the Basel Convention.
155 Churchill, supra note 152, at 106.
156 The Council of Europe Parliamentary Assembly adopted a recommendation for the
preparation of a Charter on environmental rights and duties that would provide for a
human right to an environment [...] conducive to [...] good health, well being and full
development of the human personality. However, the Council of Ministers took no
action. Recommendation 1130 (1990) on the Formulation of a European Charter and a
European Convention on Environmental Protection and Sustainable Development, 28
September 1990, Council of Europe, Parliamentary Assembly, Doc. AREC1130.1403-
28/9/90-27-E, reprinted in 1 Yb. Intl Envt. L. 484, 485 (1990).
157 Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights, San Salvador, 17 November 1988, art. 11, OAS
T.S. No. 69, reprinted in 28 I.L.M. 156 (1989).
158 Canado Trindade, supra note 138, at 289.
mentation is furthermore dependent on the availability of resources.159 Because

the Protocols monitoring and enforcement mechanisms are weak and economic
conditions throughout much of Latin America are unsatisfactory, the Protocol
might not be an eective tool for the protection of the environment. However it
re-arms that the improvement of the quality of the environment is an important
aspect of the promotion of human rights.
b) Environmental Quality and the Protection of Existing Human Rights.

If the recognition of a distinct human right to environment remains controver-
sial, there has been a growing recognition in international human rights case law
that environmental factors are to be taken into account in the interpretation of
traditional human rights. This has been particularly apparent in the case law of
the European Court of Human Rights (and, before the reform, through Protocol
11) of the European Commission of Human Rights.
i) Respect of Private Life, Home and Property

The right to respect for ones private life and home is protected under the CCPR,
the ECHR and the ACHR.160 Most environment-related complaints under the Eu-
ropean Convention alleged infringements of this right to ones private life and
home by various forms of pollution. In the Arrondelle and Baggs cases, for ex-
ample, the applicants alleged that the intensity, duration and frequency of the
aircraft and trac noise had badly aected their health. As the cases were settled
by friendly settlements, including ex gratia payments, no decision was issued on
the merits.161 In the Powell and Rayner cases, which involved noise pollution in
the vicinity of an airport,162 the Commission held the complaints under Article 8
(right to respect for private and family life) to be manifestly ill-founded. In Pow-
ell, the noise was of such a magnitude as to amount to an interference with the
right to private life and in Rayner, the Commission held that the interference was
justied under Article 8(2), because of the economic well-being of the country.163
However, the Commission found that there had been a violation of Article 13

160 Article 17/CCPR, Article 8/ECHR, Article 11/ACHR.
161 Arrondelle v. United Kingdom, App. No. 7889/77, Eur. Commn H.R., 23 Yb. Eur. Conv.
H.R. 166 (1980); Report of 13 May 1982, 25 Yb. Eur. Conv. H.R. 235 (1982); Baggs v.
United Kingdom, App. No. 9310/81, 44 Eur. Commn H.R. Dec. & Rep. 13 (1985); Re-
port of 8 July 1987, 52 Eur. Commn H.R. Dec. &. Rep. 29 (1987).
162 The original application was rst lodged with the Commission by the Federation of
Heathrow Anti-Noise Groups. The Commission rejected the Federations complaint,
but the application was continued by three applicants. One claim was settled by a
friendly settlement (Baggs, supra note 142). The cases of Powell and Rayner were held
admissible under Article 13 of the Convention but inadmissible for the rest.
163 Powell and Rayner v. United Kingdom, App. No. 9310/81, Report of 16 October 1985,
Eur. Commn H.R., 38, reproduced in 172 Eur. Ct. H.R. Reports (ser. A), Annex
(1990).
452 Chapter 7
(right to a remedy for violations of the Convention) in relation to Rayners claim

under Article 8,164 and the case was referred to the Court.
To examine the complaint under Article 13 (right to an eective remedy), the
Court had to consider whether the applicants had an arguable claim that their
rights under Article 8 had been breached. The Court ruled that there had been
interference with the private sphere of both applicants since [i]n each case, albeit
to a greatly diering degrees, the quality of the applicants life and the scope of
enjoying the amenities of his home [had] been adversely aected by the noise
generated by aircraft using Heathrow airport.165
However, the Court found that the interferences were justied under Article
8(2). It took the view that it was neither for itself nor for the Commission to sub-
stitute their own assessment of the optimal policy for those of the authorities. In
such a eld as air trac regulations, States enjoyed a wide margin of reference.
The Court emphasized that some measures had been introduced to control air-
craft noise progressively after consultation with persons and interest groups con-
cerned; that international standards, developments in technology and the varying
levels of disturbance had been taken into account; and that successive govern-
ments had concluded that problems caused by aircraft noise were better dealt
with through regulatory measures than through court settlements. The margin of
appreciation of the British Government had, thus, not been exceeded. The Court
thus balanced individual and community interests. It examined in particular how
the decision was reached, and whether the process allowed taking into account
individual interests.166
In another case, the applicant alleged that the erection of a nuclear power
station near her house had transformed the rural surroundings into an industrial
environment with several negative consequences: alteration of the natural site,
noise pollution, industrial light during the night, a microclimate modication,
and loss of value of the property.167 The applicant had obtained only partial satis-
faction from French administrative courts. The French Conseil dtat had found
that the applicant had not suered a special injury but that the operator of the
station was liable for noise nuisance. On the applicability of Article 8, the Euro-
pean Commission observed that noise nuisance of a considerable level could both
aect the physical well-being of an individual, and prevent her from enjoying the
amenities of her home. The State had a duty not only to refrain from direct inter-
ference but also to prevent interference by individuals.168 It held, however, that the
interference was justied because the operation of a nuclear power station was
164 Id., at 55-61.

165 Powell and Rayner v. United Kingdom, 172 Eur. Ct. H.R. (ser. A), 40 (1990).
166 Richard Desgagn, Integrating Environmental Values into the European Convention
on Human Rights, 89 Am. J. Intl L. 263, 276 (1995).
167 S. v. France, App. No. 13728/88, Eur. Commn H.R., Decision of 17 May 1990, reprinted
in 3 Revue Universelle des Droits de lHomme 236 (1991) (in French only).
168 Id., at 237.
in the interest of the economic well-being of the country and that compensation
had been paid.
In the Lpez Ostra case, the Commission and the Court found, for the rst
time, a breach of the Convention as a consequence of environmental harm. The
applicant complained that she had been unable to obtain relief under Spanish
law for noxious emissions from a water purication and waste treatment station
constructed near her home. She claimed that the passive attitude of Spanish au-
thorities with regard to the smells, noise, and polluting fumes caused by the plant
constituted a violation of Articles 3 (prohibition of torture or inhuman or degrad-
ing treatment or punishment) and 8 of the Convention.169 On the relationship
between the right to private and family life and environmental degradation, the
Court stated: Naturally, severe environmental pollution may aect individuals
well-being and prevent them from enjoying their homes in such a way as to aect
their private and family life adversely, without, however seriously endangering
their health.170
In earlier case-law, the Court had taken the view that Article 8 not only pro-
tects private life against arbitrary interferences by public authorities, but also
imposes on the State a duty to take appropriate measures to ensure respect for
residents private lives.171 Although in the Lopez Ostra case, the interference was
not directly attributable to public authorities, the Court focused on a positive
duty approach, by examining whether the authorities took the measures neces-
sary for protecting the applicants right. It found that after the initial relocation of
the inhabitants from the neighborhood, the municipality had failed to take such
measures. The Court criticized the behavior of public authorities for resisting the
decisions of lower tribunals, which had ordered the closing down of the station.
In Guerra v. Italy, the applicants complained that the failure of the authori-
ties to inform the public about the hazards and the procedure to be followed in
the event of a major accident infringed their right to freedom of information. The
Court found that by failing to provide essential information that would have en-
abled the applicants to assess the risks they and their families might run, the State
had not fullled its obligation to secure the applicants right to respect for their
private and family life (Article 8).172
In so far as of the right to property is concerned, the European Commission
has taken the view that there is a breach of Article 1 of Protocol I173 where pollu-
tion and other environmental degradation result in a substantial uncompensated
169 The Commission found a breach of Article 8 only. Lpez Ostra v. Spain, 313C Eur. Ct.
H.R. Reports (ser. A), 31 (1994).
170 Id., 51.
171 Marckx v. Belgium, 31 Eur. Ct. H.R. (ser.A), 31 (1979); Airey c. Ireland, 32 Eur. Ct.
H.R. (ser. A), 33 (1979); X. and Y. v. Netherlands, 91 Eur. Ct. H.R. (ser. A), 23
(1985).
172 Guerra v. Italy, Eur. Ct. H.R. Rep. Judg. & Dec. (1998-I), 60.
173 First Protocol to the Convention for the Protection of Human Rights and Fundamen-
tal Freedoms, Paris, 20 March 1952, Eur. T.S. No. 9.
454 Chapter 7
fall in the value of the property.174 Environmental degradation that merely impairs
the enjoyment of property has, however, not been regarded as a breach. As the
Commission stated in Rayner [t]his provision does not, in principle, guarantee a
right to the peaceful enjoyment of possessions in a pleasant environment.175
In Strasbourg institutions case law, the legitimacy of the aim pursued by
the impugned measures has seldom been questioned by the Commission or the
Court. Terms such as the economic well-being of the country are regarded as
wide enough to protect most economic or industrial activities. The Court has
recognized the need for a fair balance between the economic well-being of the
community and individual interests. But the Court has not given much guidance
as to how to strike a balance. Moreover, it has recognized that governmental poli-
cies and regulations to ensure an adequate level of environmental protection may
legitimately impinge on such protected rights as respect for ones private life and
property.176 Recognizing that environmental protection is a legitimate aim ad-
vancing the general interest, in the Fredin case, the European Court also accepted
that considerable latitude is left to States in the eld of environmental protection
the State enjoys a wide margin of appreciation with regard both to choosing the
means of enforcement and to ascertaining whether the consequences of enforce-
ment are justied in the general interest for the purpose of achieving the object
of the law in question.177
ii) The Right to Life

The right to life, recognized in all major human rights conventions,178 has been
mostly interpreted as the right not to be arbitrarily deprived of ones life.179 Capital
punishment, of course, is outlawed for parties to Protocol 6 to the Convention
and to the 2nd Optional Protocol to the Political Covenant aiming at the aboli-
tion of the death penalty. That the protection of the right to life involves posi-
tive obligations has emerged from the case law of the European Convention of
Human Rights.180 In L.C.B. v. United Kingdom, the applicant, who had suered
from leukemia since childhood, complained of the failure of the State to warn and
advise her parents of the risks entailed by the alleged exposure of her father to
174 Stefan Weber, Environmental Information and the European Convention on Human
Rights, 12(5) Hum. Rts. L.J. 177, 181 (1991).
175 Powell and Rayner v. United Kingdom, App. No. 9310/81, Appendix III, 47 Eur.
Commn H.R. Dec. &. Rep. 5, 14 (1986).
176 Cases cited in Desgagn, supra note 166, at 280-282.
177 Fredin v. Sweden, 192 Eur. Ct. H.R. (ser. A), 51 (1991).
178 ICCPR, supra note 149, art. 6; ECHR, supra note 149, art. 2; ACHR, supra note 149,
art. 4; African Charter, supra note 149, art. 4.
179 Yoram Dinstein, The Right to Life, Physical Integrity, and Liberty, in The Interna-
tional Bill of Rights: The Covenant on Civil and Political Rights 114, 115 (Louis Henkin
ed., 1981).
radiation at Christmas Island at the time of the United Kingdoms nuclear tests.
The Court construed Article 2 of the European Convention as
enjoin[ing] the State not only to refrain from the intentional and unlawful taking
of life, but also to take appropriate steps to safeguard the lives of those within its
jurisdiction.181 The Court viewed its task as to determine whether, given the circum-
stances of the case, the State did all that could have been required of it to prevent the
applicants life from being avoidably put at risk.182
Some complaints invoking the right to life in relation to environmental concerns

have been submitted to U.N. human rights bodies. Most involve nuclear issues.
Before the Human Rights Committee, citizens of Port Hope (Ontario) alleged
that a large quantity of nuclear wastes stored in their locality constituted a viola-
tion of Article 6 of the Political Covenant. The petition was rejected because local
remedies had not been exhausted, but the Committee observed that the com-
munication raised serious issues regarding the duty of State parties to protect
the right to life.183 Human rights bodies have generally dismissed as ill-founded
complaints where applicants were not personally exposed to an imminent dan-
ger, and thus could not be considered as especially aected victims. In E.W. et al.
v. The Netherlands, the applicants alleged that the deployment of cruise missiles
tted with nuclear warheads on Netherlands territory violated their rights under
Article 6 of the Political Covenant. The Human Rights Committee decided that
the communication was inadmissible, since
the preparations for deployment of cruise missiles ... and the continuing deployment
of other nuclear weapons in the Netherlands did not, at the relevant period of time,
place the authors in the position to claim to be victims whose right to life was then
violated or under imminent prospect of violation.184
The European Court and Commission have similarly dismissed complaints as ill-
founded where applicants were not personally exposed to an imminent danger.185
181 L.C.B. v. United Kingdom, Eur. Ct. H.R. Rep. Judg. & Dec. (1998-III), 36.
182 Id.
183 E.H.P. v. Canada, Communication No. 67/1980, Human Rights Committee, 17th Sess.,
U.N. Doc. CCPR/C/OP/2 (1990), reprinted in 2 Selected Decisions of the H.R. Com-
mittee Under the Optional Protocol 20 (1990).
184 E.W. et al. v. The Netherlands, Communication No. 429/1990, Human Rights Com-
mittee, 47th Sess., at 6.4, U.N. Doc. CCPR/C/47/D/429/1990 (1993).
185 For an early example of the Commissions treatment of this issue, see Dr. S. v. Federal Re-
public of Germany, App. No. 715/60, Eur. Commn H. R., Decision of 5 August 1960, un-
published. In this complaint brought before the European Commission in the 1960s, the
applicant alleged that nuclear tests, the installation of launching pads for nuclear weap-
ons, storage of nuclear materials and the dumping at sea of nuclear wastes by the Federal
Republic of Germany were endangering human lives. The Commission declared the
456 Chapter 7
In Balmer-Schafroth v. Switzerland, the applicants alleged violations of Article

6 of the European Convention (right to a fair trial) and Article 13 (right to an ef-
fective remedy) for not being allowed to challenge a decision of the Swiss Federal
Council to permit the extension of the operating license of a nuclear power sta-
tion. The Government challenged the applicability of Article 6 on the ground that
the complaint did not concern civil rights and obligations. The Court considered
that the right on which the applicants relied was the right to have their physi-
cal integrity adequately protected from the risks entailed by the use of nuclear
energy, a right recognized by Swiss law. However, it held that Article 6 was not
applicable since the applicants had not
establish[ed] a direct link between the operating conditions of the power station [...]
and their right to protection of their physical integrity, as they [had] failed to show
that the operation of the [...] power station exposed them personally to a danger that
was not only serious but also specic and above all, imminent.186
That judgment (adopted by a vote of twelve to eight) was, however, strongly criti-
cized for failing to take into account developments in international environmen-
tal law. Judge Pettiti, thus wrote for the dissenting judges:
The majority appear to have ignored the whole trend of international institutions
and public international law towards protecting persons and heritage, as evident in
European Union and Council of Europe instruments on the environment, the Rio
agreements, UNESCO instruments, the development of the precautionary principle
and the principle of conservation of the common heritage. United Nations Resolu-
tion no. 840 of 3 November 1985 on the abuse of power was adopted as part of the
same concern. Where the protection of persons in the context of the environment
and installations posing a threat to human safety is concerned, all States must adhere
to those principles.
[...]
The Courts assessment of the tenuousness of the connection and of the absence of
imminent danger is, in my opinion, unfounded. Does the local population rst have
to be irradiated before being entitled to exercise a remedy?187
iii) Right to Information and Participation in Decision-Making

All general human rights treaties provide for freedom of expression. Article 10 of
the European Convention includes the right to receive and impart information
complaint ill-founded in the absence of violation of any of the guaranteed rights (Article
2). See J.E.S. Fawcett, The Application of the European Convention on Human Rights
37 (1987); Maguelonne Djeant-Pons, Linsertion du droit de lhomme lenvironnement
dans les systmes rgionaux de protection des droits de lhomme, 2 Revue Universelle des
Droits de lHomme 461, 464 (1991); Churchill, supra note 152, at 91.
186 Balmer-Schafroth v. Switzerland, Eur. Ct. H.R. Rep. Judg. & Dec. (1997-IV), 40.
187 Id.
and ideas without interference by public authority and regardless of frontiers.188

Respect for the right to receive information has been construed by the European
Court as basically prohibi[ting] a Government from restricting a person from
receiving information that others wish or may be willing to impart to him189 and
not as a positive obligation of public authorities to provide the information they
hold. The right to environmental information may, however, involve the right to
life, the freedom of expression and the right to respect for ones private life. As
noted above, in the Guerra case, the applicants alleged that the failure of the au-
thorities to inform the public about the hazards and the procedure to be followed
in the event of a major accident at a nearby chemical factory infringed their right
to freedom of information. The Court rearmed that freedom of information did
not impose any positive information obligations on State authorities,190 but con-
cluded that State authorities had failed to secure the applicants right to respect
for their private and family life by not providing essential information that would
have enabled them to assess the risks of living in a town particularly exposed to
danger in the event of an industrial accident.191 In another case, the Court also
held that. Where a Government engages in hazardous activities, such as those in
issue in the present case, which might have hidden adverse consequences on the
health of those involved in such activities, respect for private and family life under
Article 8 requires that an eective and accessible procedure be established which
enables such persons to seek all relevant and appropriate information.192 In this
case, the applicants complained that they had been denied access to the records
compiled in relation to the radiation levels and the medical treatment they had
received following experimental nuclear explosions at Christmas Islands carried
out by the British Government in the 1950s. However, no violation of Article 8
was found since the applicants had not availed themselves of an existing proce-
dure to request from the competent authorities the production of the documents
in question.
These cases suggest that the Court has been moving towards the recogni-
tion of a right to environmental information based on Article 8 of the Conven-
tion. A State would thus have the duty to provide or disseminate information it
holds when this information is likely to contribute to the protection of guaranteed
rights. The Court did not go as far as to impose a duty to collect information that
might be relevant.193
188 ECHR, supra note 149, art. 10.

189 Leander v. Sweden, 116 Eur. Ct. H.R. Reports (ser. A) at 29 (1987). Gaskin v. United
Kingdom, 160 Eur. Ct. H.R. Reports (ser. A) at 21 (1989).
190 Guerra v. Italy, supra note 172, 53.
191 Id., 60.
192 McGinley and Egan v. United Kingdom, Eur. Ct. H.R. Rep. Judg. & Dec. (1998-III),
101.
193 Sandrine Maljean-Dubois, La Convention europenne des droits de lhomme et le droit
linformation en matire denvironnement: A propos de larrt rendu par la CEDH le
458 Chapter 7
iv) Access to Remedies

Human rights instruments require access to remedies. Article 6 of the European
Convention provides that there must be a fair and public hearing within a rea-
sonable time by an independent and impartial tribunal in the determination of
a persons civil rights and obligations.194 This provision has been construed by
the Court as guaranteeing access to a tribunal for the determination of ones pri-
vate rights and obligations. Article 6 may thus be invoked to challenge actions by
States and public authorities where an environmental issue can be framed in terms
of civil rights and obligations. For instance, in the Zander case, the applicants
owned a property adjacent to land on which a company was storing and treating
household and industrial wastes. The company applied to a licensing board for a
renewal of its permit and an authorization to expand its activities. The applicants
argued before the board that since the new activities entailed additional risks of
water contamination, the renewed permit should impose on the company an ob-
ligation to supply drinking water free of charge in case of pollution. The board
granted the permit but rejected the applicants request. The applicants alleged
a violation of Article 6, since no judicial review of the boards decision could be
obtained. The Court found that the applicants could invoke Article 6 since they
could arguably maintain that they were entitled under Swedish law to protection
against the water in their well being polluted as a result of [the company]s activi-
ties on the dump.195 Since the decision of the licensing board could not have been
reviewed by a tribunal, a violation of Article 6 was found.
Article 6 may also be invoked where environmental measures bear on civ-
il rights and obligations. In De Geoure de la Pradelle v. France, a part of the
applicants land had been designated as an area of outstanding beauty, thereby
restricting its use. An application to the French Conseil dEtat for judicial review
of the decree was held inadmissible, since the two-month period allowed by the
law for challenging such decrees had expired. The applicant alleged before the
European Court of Human Rights that the pertinent law was unduly vague. The
Court decided that [a]ll in all, the system was [...] not suciently coherent and
clear. Having regard to the circumstances of the case as a whole, the Court nds
that the applicant did not have a practical, eective right of access to the Conseil
dtat.196 Most cases raising environmental issues have involved judicial review
of administrative acts. Where no judicial review is provided, as in Denev v. Swe-
19 fvrier 1998 en laaire Anna Maria Guerra et 39 autres c. Italie, 4 Revue Gnrale
de Droit International Public 995, 1015-1017 (1998).
194 ECHR, supra note 149, art. 6.
195 Zander v. Sweden, 279B Eur. Ct. H.R. (ser. A), 24 (1993).
196 De Geoure de la Pradelle v. France, 235B Eur. Ct. H.R. (ser. A), 35 (1992).
den,197 Benthem v. Netherlands,198 and Fredin v. Sweden,199 violations of Article 6

have been found.
v) Indigenous Rights
Indigenous rights have sometimes been blended with traditional human rights.
The European Commission has admitted that the life style of an indigenous com-
munity could be considered as an element of ones private life. In an application
against Norway, two Norwegian Lapps asserted that the erection of a hydroelec-
tric plant and the submersion of a part of the valley in which they lived consti-
tuted a violation of Article 8. The Commission stated that:
under Article 8, a minority group is, in principle, entitled to claim the right to respect
for the particular life style it may lead as being private life, family life, or home.
[T]he consequences, arising for the applicants from the construction of the hydro-
electric plant, constitute[d] an interference with their private life, as members of a
minority, who move their herds and deers around a considerable distance.200
The Commission found, however, that as only a small amount of land would be
ooded, the measure was justied by the economic well-being of the country.
To conclude this discussion of environment let me say that the tremendous
growth in treaties, declarations, procedures and mechanisms for the protection
of the environment has not yet resulted in a consensus on a new generic right to
a healthy environment. While human rights have produced an impressive corpus
of substantive norms, environmental law has focused on procedures and mecha-
nisms. That the quality of the environment is an important aspect for the enjoy-
ment of human rights has gained acceptance since the Stockholm Declaration.
Human rights bodies, notably the European Court of Human Rights, have fac-
tored in environmental protection in their interpretation of human rights pro-
visions. Where environmental degradation has reached a threshold that aects
some individuals or a dened group of individuals, it can be invoked under such
rights as the right to life, to privacy or to property.
Although human rights law contains some positive obligations, most human
rights obligations especially in civil and political rights are obligations of pub-
lic authorities to refrain from certain conduct. In the case of positive obligations,
States are allowed a wider margin of appreciation, involving balancing of dier-
197 Denev v. Sweden, App. No. 12570/86, 59 Eur. Commn H.R. Dec. &. Rep. 127 (1989).
198 Benthem v. Netherlands, 97 Eur. Ct. H.R. (ser. A) (1985).
199 Fredin v. Sweden, 192 Eur. Ct. H.R. (ser. A) (1991); also Skrby v. Sweden, 180B Eur. Ct.
H.R. (ser. A) (1990); Oerlemans v. The Netherlands, 219 Eur. Ct. H.R. (ser. A) (1990).
200 G. and E. v. Norway, App. Nos. 9278/81 and 9415/81, 35 Eur. Commn H.R. Dec. &.
Rep. 30, at 35-36 (1984).
460 Chapter 7
ent values and interests. The discourse on environmental rights has been shifting
from the possible recognition of a substantive right to a healthy environment to
procedural rights, rights that may allow the dierent interests to be voiced in the
formulation and implementation of environmental law.
Human rights law relies only marginally on reciprocity. International envi-
ronmental law is based on the need for cooperative action to tackle problems that
aect States on the regional plane or the entire international community. As such,
it is closer to traditional international law, the law of cooperation. Here reciproc-
ity still has its role to play, but it is a broader, multilateral reciprocity, reecting
collective interests.
Human rights law focuses on governmental behavior towards individuals,
and only secondarily on individual behavior. In contrast, the central aim of en-
vironmental law is to aect and constrain private behavior. Duties imposed by
environmental law fall not only on States, but also on non-State actors. Indeed,
the ultimate objective of minimizing environmental harm can only be attained by
changes in the behavior of private actors. Governmental actions are only a part
of the equation.
Still, by interfering in the relationships between a State and its nationals and
in domestic policies, international environmental law is intrusive on domestic
jurisdiction. In this respect, the inuence of human rights law on international
environmental law is important. Human rights law has challenged absolute sov-
ereignty. Environmental law has had a similar role. Central to these developments
is the emphasis on the broader interests of the international community. Kiss and
Shelton note that States obligations in regard of the environment
correspond to the functions which States must fulll in serving the common interest
of humanity. When they are added to the obligations arising from other recognized
subjects of the common interest, such as human rights and humanitarian law, the
center of the international society shifts from the individual interest and sovereign
rights of each of its members to collective concerns and corresponding State func-
tions.201
The focus of environmental law on inter-State cooperation and on the regula-

tion of private behavior is reected in the discourse on whether there has already
emerged a generic right to a healthy environment. Inter-State environmental co-
operation is primarily a political process, which aims at reconciling competing in-
terests and policies that aect the interests and behavior of private actors. Where
in the eld of human rights there is a tension between the interests of individuals
and those of the State, in the environmental eld the range of competing interests
is more diversied. An examination of the human rights case law shows that hu-
man rights litigation presents limited opportunities to foster the protection of
the environment in general. Environmental-protection has an important public
facet that cannot be translated into an individual perspective and involves social
201 Alexandre Kiss and Dinah Shelton, International Environmental Law 19 (1991).
choices that cannot be dealt with piecemeal.202 Even such litigation has been lim-
ited primarily to the European Court of Human Rights.
The need to reconcile diverging public and private interests is reected in the
increased participation of NGOs. As pointed out by Sands, States can no longer
claim to be the sole holders of the right to participate in the international legal or-
der and its processes, having been joined by a new range of actors.203 In the eld
of human rights, the broader participation of the NGOs has led the way to more
citizen involvement in the promotion of new instruments and monitoring. The
role of NGOs in the environmental eld is more diversied, as are the dierent
interests of their constituencies. Environmental-protection NGOs may clash with
business NGOs in trying to inuence treaty negotiations.204
VI. State Responsibility: Erga Omnes Obligations

The ECHR provides that [a]ny High Contracting Party may refer to the Court
any alleged breach of the provisions of the Convention and the protocols thereto
by another High Contracting Party.205 Standing to submit claims against any oth-
er party to the Convention is not dependent on any special interest or nexus with
the victim. The Convention thus anticipated the principle of erga omnes obliga-
tions stated by the International Court of Justice in the Barcelona Traction case.206
Of course, while the ECHR recognizes the principle of obligations erga omnes
contractantes, the Barcelona Traction case contemplated such obligations under
general international law.207
The ECHR may also have inuenced environmental treaties. The Bern Con-
vention thus provides that any dispute between Contracting Parties concerning
the interpretation or application of this Convention which has not been settled on
the basis of the provisions of the preceding paragraph or by negotiation between
the parties concerned shall, unless the said parties agree otherwise, be submit-
ted, at the request of one of them, to arbitration [...]. 208 As obligations under the
Convention concern national measures for the conservation of wild ora, wild
fauna and natural habitats, a State party would probably not be required to have
suered a specic injury to challenge another Partys performance.
202 Desgagn, supra note 166, at 294.

203 Philippe Sands, Introduction to Greening International Law, at xxv (Philippe Sands
ed., 1993), quoted in Raustiala, infra note 204, at 567.
204 Kal Raustiala, The Participatory Revolution in International Environmental Law, 21
Harvard Envtl. L. Rev. 537, at 558. (1997).
205 Article 33 (former Article 46).
206 Barcelona Traction, Light, and Power Company (Second Application) (Belgium v.
Spain), International Court of Justice, Judgment of 5 February 1970, [1970] ICJ Rep. 3,
at 33.
207 Meron, Human Rights and Humanitarian Norms as Customary Law 190-196 (1989).
208 Convention on the Conservation of European Wildlife and Natural Habitats, Bern, 19
September 1979, in force 1 June 1982, Eur. T.S. No. 104, Article 18.
462 Chapter 7
VII. State Responsibility: Diplomatic Protection

Human rights pertaining to remedies against violating States and to the responsi-
bility of the State to ensure human rights of all persons subject to its jurisdiction,
and especially Article 33 (former Article 46) of the ECHR, are having an impact
on the traditional law of diplomatic protection. There is a trend to present as hu-
man rights issues claims which in the past would have been presented as issues of
diplomatic protection of citizens abroad.
This development may well be illustrated by the application presented by
Denmark against Turkey for alleged violations of the ECHR on behalf of a Dan-
ish national. Denmarks application includes both elements of diplomatic pro-
tection infringements by a foreign State of the rights of one of its nationals
and elements more characteristic of human rights violations of the Conven-
tion. Denmark requested the European Court of Human Rights to examine both
the treatment of its citizen and whether the interrogation techniques applied to
him were used in Turkey as a widespread practice.209 The Danish application thus
challenges not only the treatment of an alien, but also the treatment by the foreign
State of its own nationals.
VIII. Responsibility and Territoriality

The ECHR and its jurisprudence have had an eect on the territorial scope of
responsibility of States under international law. The protection provided by the
CCPR, the ECHR and the ACHR extends to persons within the territory of a
State or subject to its jurisdiction (CCPR), to persons within the jurisdiction of
of a State (ECHR) or to persons subject to the jurisdiction of the State (ACHR).210
In the Soering case, the European Court stated that Article 1 cannot be read as
justifying a general principle to the eect that, notwithstanding its extradition ob-
ligations, a Contracting State may not surrender an individual unless satised that
the conditions awaiting him in the country of destination are in full accord with
each of the safeguards of the Convention.[...].211 Nevertheless, the Court held that
the decision to extradite a fugitive may engage the responsibility of a contracting
State under the Convention where there exist substantial grounds for believing
that the person concerned, if extradited, faces a real risk of being subjected to
torture or to inhuman or degrading treatment or punishment in the requesting
country. The Court added:
209 Denmark v. Turkey (Preliminary Objections), European Court of Human Rights (First
Section), Appl. No. 34382/97, Decision as to admissibility of 8 June 1999. (The deci-
sion is available at <http://www.echr.coe.int/hudoc/>).
210 See Meron, Extraterritoriality of Human Rights Treaties, 89 AJIL 78 (1995).
211 Soering Case (United Kingdom), European Court of Human Rights, Judgment of 26
June 1989, 161 Eur. Ct. H.R. Rep. (Ser. A), para. 86 (1989).
In interpreting the Convention regard must be had to its special character as a treaty
for the collective enforcement of human rights and fundamental freedoms. [...] Thus,
the object and purpose of the Convention as an instrument for the protection of in-
dividual human beings require that its provisions be interpreted and applied so as to
make its safeguards practical and eective. [...] In addition, any interpretation of the
rights and freedoms guaranteed has to be consistent with the general spirit of the
Convention, an instrument designed to maintain and promote the ideals and values
of a democratic society.212
Thus, Article 1 is pertinent to the application of extradition agreements concluded

by the parties to the ECHR. Another aspect of the interpretation and application
of Article 1 of the Convention, and one which has inuenced the work of the Hu-
man Rights Committee, has been to construe the word jurisdiction as extending
to areas outside of a States national territory where that States authorities exer-
cise power over people there present.213 This has implications for international
humanitarian law as well.
Thus, the Commission declared admissible a petition led by Cyprus against
Turkey, alleging murders of civilians, repeated rapes, forcible eviction, looting,
robbery, unlawful seizure, arbitrary detention, torture and other inhuman treat-
ment, forced labor, destruction of property, forced expatriation and separation of
families in the context of occupation.214 In another case, the Commission reiter-
ated that:
the authorized agents of the State, including diplomatic or consular agents and armed
forces, not only remain under its jurisdiction when abroad but bring any other per-
sons or property within the jurisdiction of that State, to the extent that they exercise
authority over such persons or property. Insofar as, by their acts or omissions, they
aect such persons or property, the responsibility of the State is engaged.215
Franoise Hampson thus commented that [i]t is the nexus between the person
aected, whatever his nationality, and the perpetrator of the alleged violation
212 Id., para. 87. The same principles were applied in cases of expulsion, Case of Cruz
Varas and Others v. Sweden, Judgment of 20 March 1991, 201 Eur. Ct. H.R. Rep. (Ser.
A) (1991); Case of Vilvarajah and Others v. the United Kingdom, Judgment of 30 Oc-
tober 1991, 215 Eur. Ct. H.R. Rep. (Ser. A) (1991); Case of Chahal v. the United King-
dom, Judgment of 15 November 1996, V Reports Judg. & Dec. (1998).
213 Meron, supra note 210, 79-81 (1995).
214 Cyprus v. Turkey, European Commission on Human Rights, Appl. No. 6780/74 and
6950/75, Report of 10 July 1976, 2 Eur. Commn Dec. & Rep. 1254 E.H.R.R. 482 (1975).
215 W. v. Ireland, European Commission on Human Rights, Appl. No. 9360/81, Decision
on admissibility of 28 February 1983, 32 Eur. Commn Dec. & Rep. 211, 215 (1983); also
Cyprus v. Turkey, supra note 214, at 136.
464 Chapter 7
which engages the possible responsibility of the State and not the place where the
action takes place.216
In a case also related to the attribution of responsibility for acts committed
in the northern part of Cyprus, Loizidou v. Turkey, the Commission held that
Authorized agents of a State, including armed forces, not only remain under its
jurisdiction when abroad but also bring any other persons within the jurisdic-
tion of that State to the extent that they exercise authority over such persons.217
It then distinguished between acts imputable to Turkey and those imputable to
the Northern Cyprus authorities by reference to a criterion of actual control. In
that same context, the Court held:
Bearing in mind the object and purpose of the Convention, the responsibility of a
Contracting Party may also arise when as a consequence of military action whether
lawful or unlawful it exercises eective control of an area outside its national terri-
tory. The obligation to secure, in such an area, the rights and freedoms set out in the
Convention, derives from the fact of such control whether it be exercised directly,
through its armed forces, or through subordinate local administration.218
Similarly, in the case of Cyprus v. Turkey (Judgment of 10 May 2001), the Court
conrmed its Loizidou decision and held that the acts complained of fell within
the jurisdiction of Turkey within the meaning of Article 1 of the Convention and
therefore entailed Turkeys responsibility under the Convention.219 Similarly, in
the case of Issa and others v. Turkey (Decision of 30 May, 2000), the Court found
admissible complaints arising from alleged violations of the Convention by the
Turkish armed forces during a short incursion into northern Iraq (March 19-April
16, 1995).
However, a few months later, in its 2001 decision on admissibility of the
NATO bombing case (Bankovi Case),220 the ECHR resisted a further pushing of
the envelope of jurisdiction. The question in this case, whether the civilian vic-
tims of the NATO bombing of a Belgrade television station could sue the NATO
governments that were parties to the European Convention before the ECHR,
turned on the construction of the word jurisdiction in Article 1 of the Conven-
tion. The defendant governments disputed the admissibility of the case, contend-
216 Hampson, Using International Human Rights Machinery to Enforce the International
Law of Armed Conicts, 31 Revue de droit militaire et de droit de la guerre 119, 122
(1992).
217 Chrysostomos and Papachrysostomou v. Turkey, European Commission on Human
Rights, Appl. No. 15299/89 and 15300/89, Report of 8 July 1993, 86 Eur. Commn Dec.
& Rep. 4, at paras. 96 and 170. The Council of Ministers agreed with the report of the
Commission: Resolution DH (95) 245 of 19 October 1995.
218 Loizidou v. Turkey, supra note 117, para. 62.
219 Grand Chamber Decision (Application no. 25781/94), at 93.
220 Grand Chamber Decision as to the Admissibility of Application no. 52207/99 by Ban-
covic and others against Belgium and others.
ing that the application was incompatible ratione personae with the provisions of
the Convention because the applicants did not fall within the jurisdiction of the
respondent States within the meaning of Article 1 of the Convention. They denied
the applicants argument that they had control of the airspace over Belgrade and
argued, that in any event, such control could not be equated with the territorial
control of the nature and extent considered in the decisions concerning northern
Cyprus, which involved the exercise of eective control or of legal authority. They
considered the applicants comparisons with the Soering Case to be fundamen-
tally awed. At the time the impugned decision was about to be taken in respect
of Soerings extradition, he was detained on the territory of the respondent State,
a situation constituting a classic exercise of authority over an individual to whom
the State was obliged to secure the full range of Convention rights.
The Court rejected the relevance of its case law pertaining to situations where
the extradition or expulsion of a person by a Contracting State may engage the
responsibility of that State under the Convention (the above-cited Soering Case,
at 91, Cruz Varas and Others v. Sweden, judgment of 20 March 1991, Series A no.
201, 69 and 70, and the Vilvarajah and Others v. United Kingdom, judgment,
of 30 October 1991, Series A no. 215, 103). Liability in such cases is incurred by
an action of the respondent State concerning a person on its territory and clearly
within its jurisdiction. Such cases do not concern the actual exercise of a States
competence or jurisdiction abroad. The Court concluded:
In sum, the case-law of the Court demonstrates that its recognition of the exercise
of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so
when the respondent State, through the eective control of the relevant territory and
its inhabitants abroad as a consequence of military occupation or through the con-
sent, invitation or acquiescence of the Government of that territory, exercises all or
some of the public powers normally to be exercised by that Government.221
In short, the Convention is a multilateral treaty operating, subject to Article 56 of the

Convention222, in an essentially regional context and notably in the legal space (espace
juridique) of the Contracting States. The FRY clearly does not fall within this legal
space. The Convention was not designed to be applied throughout the world, even in
respect of the conduct of Contracting States. Accordingly, the desirability of avoiding
a gap in human rights protection has so far been relied on by the Court in favor of
establishing jurisdiction only when the territory in question was one that, but for the
specic circumstances, would normally be covered by the Convention.223
221 Id., at para. 71.

222 Article 56 1 enables a Contracting State to declare that the Convention shall extend
to all or any of the territories for whose international relations that State is respon-
sible.
223 Id., at para. 80.
466 Chapter 7
The Court is not therefore persuaded that there was any jurisdictional link between
the persons who were victims of the act complained of and the respondent States.
Accordingly, it is not satised that the applicants and their deceased relatives were
capable of coming within the jurisdiction of the respondent States on account of the
extra-territorial act in question.224
The Court thus refused to extend its expansive interpretation of jurisdiction to the
exercise of airpower over foreign territory. Indeed, to view the plaintis claims
as involving violations of human rights appears counterintuitive. The legality and
the consequences of air power over foreign territory is best left to the lex specialis
of international humanitarian law.
IX. State Responsibility for Non-Governmental Acts and Imputability

( Drittwirkung)
Human rights have had an impact on the responsibility of a State for unauthor-
ized acts of its ocials and, in some circumstances, even for acts committed by
non-governmental agencies or individuals in the country. This may be impor-
tant for the law of State responsibility also in matters not involving human rights.
There are increasing departures from the classic paradigm whereby States are
responsible only for conduct attributable to them, that is, mainly the conduct of
State agencies.225
Although contemporary human rights law focuses on the duty of govern-
ments to respect the human rights of individuals, human rights violations com-
mitted by one private person against another (e.g. deprivation of life and liberty
or the perpetration of acts of egregious discrimination) cannot be placed outside
the ambit of human rights law if that law is ever to gain signicant eectiveness.
This is true also of some other rights and obligations under international law. In
our era, many activities are carried out by non-State entities. Making them com-
ply with applicable rules of international law may be essential. The ICJ acknowl-
edged this reality when, in a dierent context, it deplored [t]he frequency with
which at the present time the principles of international law ... are set at naught
by individuals or groups of individuals ...226 Because the purpose of human rights
law is to protect human dignity, and because some essential human rights are
often breached by private persons, the obligation of States to observe and ensure
respect for human rights and to prevent violations cannot be conned to restric-
tions upon governmental powers but must extend to the prevention of some pri-

225 See generally Meron, Human Rights and Humanitarian Norms as Customary Law
155-171 (1989).
226 United States Diplomatic and Consular Sta in Tehran (United States of America v.
Iran), International Court of Justice, Judgment of 24 May 1980, 1980 ICJ Rep. 4, 42.
vate interferences with human rights,227 through prevention, punishment and,

where appropriate, providing the victim with eective civil remedies against the
responsible private actor.
Human rights obligations stated in international humanitarian and human
rights instruments increasingly extend to private individuals and to private ac-
tion. In some areas of international law, such as that governing labor rights and
conditions of work, the relevant international labour conventions routinely regu-
late relations between private employees and employers. The prohibitions of slav-
ery and genocide apply, of course, also to private persons and groups. So does the
prohibition of hostage-taking.
Together with the Human Rights Committee and the Inter-American hu-
man rights institutions, Strasbourg institutions applying Article 1 of the ECHR
have helped to establish the duty of States to ensure compliance by private per-
sons with some of the Conventions norms, or, at a minimum, to adopt measures
against private interference with enjoyment of the rights...228 That Article pro-
vides that the High Contracting Parties shall secure to everyone within their
jurisdiction the rights and freedoms dened in Section I of this Convention.
In the Young, James and Webster Case (Closed Shop Case) (1981),229 the
Court, applying Articles 1 and 11 (which guarantee the rights of peaceful assembly
and freedom of association, including the right to form and to join trade unions),
found that Article 11 had been violated. It stated that:
[a]lthough the proximate cause of the events giving rise to this case was the 1975
agreement between British Rail and the railway unions, it was the domestic law in
force at the relevant time that made lawful the treatment of which the applicants
complained. The responsibility of the respondent State for any resultant breach of
the Convention is thus engaged on this basis. Accordingly, there is no call to examine
227 Forde, Non-Governmental Interferences with Human Rights, 56 Brit. Yb. Intl L. 253
(1985). Note particularly the discussion of the practice of the European Commission
of Human Rights and the European Court of Human Rights with respect to non-gov-
ernmental interference with human rights. Id., at 271-8. See Andrew Clapham, Hu-
man Rights in the Private Sphere 0178-244 (1993); Andrew Clapham, Revisiting Hu-
man Rights in the Private Sphere: Using the European Convention on Human Rights
to Protect the Right of Access to the Civil Courts, in Craig Scott (ed.), Torture as Tort:
Comparative Perspectives on the Development of Transnational Human Rights Liti-
gation 513 (2001).
228 Buergenthal, To Respect and to Ensure: State Obligations and Permissible Deroga-
tions, in The International Bill of Rights: The Covenant on Civil and Political Rights
72, 77-78 (Louis Henkin ed. 1981); Sohn, The New International Law: Protection of the
Rights of Individuals Rather than States, 32 Am. U. L. Rev. 1, 31-32 (1982); Sperduti,
Responsibility of States for Activities of Private Law Persons, in [Installment] 10 Ency-
clopedia of Public International Law 373, 375 (R. Bernhardt ed. 1987).
229 European Court of Human Rights, Judgment of 13 August 1981, 44 Eur. Ct. H.R. Rep.
(Ser. A) (1981); 62 Intl L Rep. 359 (1982).
468 Chapter 7
whether, as the applicants argued, the State might also be responsible on the ground
that it should be regarded as employer or that British Rail was under its control.230
In the National Union of Belgian Police Case,231 the Commission interpreted Arti-
cle 11 by taking into account UN human rights instruments and ILO Conventions
Nos. 87 and 98. It concluded that the latter Conventions reect widely accepted
labor law standards which are elaborated and claried by the competent organs
of the ILO. As a corpus of special rules binding also on European States, they
should not be ignored in the interpretation of Article 11 (freedom of assembly
and association), particularly if the European Convention is to keep pace with the
rules of international labor law and if it is to remain in harmony with the concepts
used in international labor law and practice.232 On this broad international law
basis, the Commission concluded that freedom of association stated in Article 11
may be legitimately extended to cover State responsibility in the sphere of labor
management relations.233
The Commission followed the same approach in Swedish Engine Drivers
Union Case.234 Taking into account once more UN human rights instruments and
the ILO Conventions, the Commission rejected the assertion that Article 11 pro-
vided protection only against governmental interference. On the contrary, the
Article was designed to protect unions against all kinds of interference, includ-
ing interference by employers.235 Invoking the principle of eectiveness in treaty
interpretation, the Commission concluded: If it is the role of the Convention and
the function of its interpretation to make the protection of individuals eective,
the interpretation of Article 11 should be such as to provide, in conformity with
international labor law, some protection against private interference. 236
The Court addressed the duty of States to conform to the Convention by
adopting legislative measures governing certain relations between private indi-
viduals. In the case of X and Y v. The Netherlands,237 the applicant claimed that the
right of both his daughter and himself to respect for their private life, guaranteed
by Article 8 of the European Convention, had been infringed and that Article 8
required that parents must be able to have recourse to remedies in the event of
their children being the victims of sexual abuse. Finding that Article 8 had in fact
been breached, the Court stated:
230 Id. para. 4962 Intl L. Rep. 376-7 (1982).

231 Appl. No. 4464/70, 17 Eur. Ct. H.R. (Ser. B) (1976).
232 Id., at 51. See also id., at 49-51.
233 Id., at 52.
234 Appl. No. 5614/72, 18 Eur. Ct. HR (Ser. B), at 42-46 (1977).
235 Id., at 45.
236 Id., at 46.
237 European Court of Human Rights, Judgment of 26 March 1985, 91 Eur. Ct. H.R. Rep.
(Ser. A) (1985).
The Court recalls that although the object of Article 8 is essentially that of protect-
ing the individual against arbitrary interference by the public authorities, it does not
merely compel the State to abstain from such interference: in addition to this prima-
rily negative undertaking, there may be positive obligations inherent in an eective
respect for private or family life. [...] These obligations may involve the adoption of
measures designed to secure respect for private life even in the sphere of the relations
of individuals between themselves.238
In Osman v. United Kingdom,239 the European Court of Human Rights considered

the alleged failure of public authorities to prevent an individual from deliberately
killing the applicants husband. While nding no violation of Article 2 (right to
life), the Court established a standard for positive State obligations that was simi-
lar, in results if not in legal technique, to the jurisprudence of the Inter-American
Court of Human Rights and the Human Rights Committee:
The Court notes that the rst sentence of Article 2 1[of the European Convention on
Human Rights] enjoins the State not only to refrain from the intentional and unlawful
taking of life, but also to take appropriate steps to safeguard the lives of those within
its jurisdiction It is thus accepted by those appearing before the Court that Article
2 of the Convention may also imply in certain well-dened circumstances a positive
obligation on the authorities to take preventive operational measures to protect an
individual whose life is at risk from the criminal acts of another individual. The scope
of this obligation is a matter of dispute between the parties.
For the Court, and bearing in mind the diculties involved in policing modern socie-
ties, the unpredictability of human conduct and the operational choices which must
be made in terms of priorities and resources, such an obligation must be interpreted
in a way which does not impose an impossible or disproportionate burden on the
authorities. Accordingly, not every claimed risk to life can entail for the authorities
a Convention requirement to take operational measures to prevent that risk from
materializing.240
In contrast to the Inter-American jurisprudence, which emphasizes due diligence

and classic principles of attribution and State responsibility, the Strasbourg in-
stitutions thus focus on the positive obligations of States to ensure an ecient
application of the Convention.
To be sure, in the jurisprudence of the Inter-American Court of Human
Rights the applicability of some human rights instruments to private actors does
not imply that the conduct of private persons when not carried out in fact on
238 Id., at 11.

239 Osman v. United Kingdom, App. No. 00023452/94, III Reports Judg. & Dec. (1998).
(Judgment of Oct. 28 1998, European Court of Human Rights). (The decision is avail-
able at <http://www.echr.coe.int/hudoc/>).
240 Id., at paras. 115, 116 (citations omitted).
470 Chapter 7
behalf of a State is attributable to the State. Rather, the breach is generated by the
fact that the State itself violates its obligation under international law by tolerat-
ing the occurrence of the prohibited acts.241 Thus in the Velsquez Rodrguez case,
the Inter-American Court of Human Rights stated that acts of public authority
which are imputable to the State do not exhaust all the circumstances in which a
State is obligated to prevent, investigate, and punish human rights violations, nor
the cases in which the State itself might be responsible for violations.242 A breach
of human rights which is initially not imputable to a State, having been commit-
ted either by a private or by an unidentied person, can generate State responsi-
bility because of the lack of due diligence to prevent the violation or to respond to
it according to the requirements of the American Convention on Human Rights.
The critical question, therefore, is whether the State has demonstrated lack of due
diligence by allowing the act to take place either with its support or acquiescence
or by not taking measures designed to prevent the act or to punish those respon-
sible.
The extension of some human rights, such as the prohibition of discrimina-
tion on grounds of race or sex, to encompass private action is impelled by signi-
cant community values. This expansion inevitably generates tension with other
human rights, such as the freedom of association and the right to privacy, and
requires a careful balancing of these values. The alternative, limiting the reach of
human rights to public life, would diminish their eectiveness and is thus clearly
unacceptable.
The Strasbourg jurisprudence has implications going beyond human rights.
In the present world, there is a need to control various types of conduct that do
not directly involve the State and its apparatus. Strasbourg jurisprudence pro-
vides examples for addressing this need.
X. International Humanitarian Law: Application of the Principle of

Proportionality and Limits to Collateral Damage
One of the most important principles of international humanitarian law is that of
proportionality. Strasbourg institutions have derived the principle of proportion-
ality from the ECHE, thus further enriching international humanitarian law. The
ECHR is one of the rare human rights treaties with provisions on the use of force,
establishing that the force used must not be more than absolutely necessary.243
The principal provision on this subject, Article 2(2) of the ECHR, states that dep-
241 See [1975] 2 YB Intl L. Commn 71. In its commentary on that Article, the ILC ex-
plains that although the international responsibility of the State is sometimes held
to exist in connexion with acts of private persons its sole basis is the internationally
wrongful conduct of organs of the State in relation to the acts of the private person
concerned. Id., at 82.
242 Velsquez Rodrguez Case (Honduras), Inter-American Court of Human Rights, Judg-
ment of 29 July 1988, [1988] Inter-Am.Ct.H.R. Rep. (Ser. C), No. 4, paras. 172-173.
243 Hampson, supra note 216, at 134.
rivation of life shall not be regarded as inicted in derogation of that Article when
it results from the use of force which is no more than absolutely necessary. This
provision applies to the use of force by both the military and the police. Article
2(2) has inuenced additional normative instruments, as for example, the United
Nations Basic Principles on the Use of Force and Firearms by Law Enforcement
Ocials (1990), adopted by the Eighth United Nations Congress on the Preven-
tion of Crime and the Treatment of Oenders (Articles 9 and 10).244
The European Court of Human Rights addressed the issue of the planning
and conduct of an operation carried out by security forces, in a case involving the
killing of a civilian during an alleged armed clash between the Turkish army and
the PKK in the vicinity of a village. The applicant, a sister of the victim, claimed
that the clash had been an operation of retaliation against the village, while the
Turkish Government asserted that it was an ambush operation conducted by the
security forces and that the victim had not been killed by a bullet red by the mili-
tary side. The Court, following the assessment made by the Commission, found
that it had not been proven that the applicant had been intentionally killed by
the security forces. Nevertheless, emphasizing the principles of necessity, propor-
tionality, and the duty to take sucient precautions, it held Turkey responsible for
a violation of Article 2:
[T]he Court agrees with the Commission that the responsibility of the State is not
conned to circumstances when there is signicant evidence that misdirected re
from agents of the State has killed a civilian. It may also be engaged where they fail to
take all feasible precautions in the choice of means and methods of a security opera-
tion mounted against an opposing group with a view to avoiding and, in any event, to
minimising, incidental loss of civilian life.245
In the circumstances of the case, the Court found that it could reasonably be
inferred that insucient precautions had been taken to protect the lives of the
civilian population.
In a case involving the killing of three IRA members in Gibraltar by members
of the British Special Air Service (SAS), the Court has introduced a two-pronged
test to determine the compatibility of the use of lethal force with the protection
aorded to the right to life:
[I]n determining whether the force used was compatible with Article 2, the Court
must carefully scrutinize, as noted above, not only whether the force used by the
soldiers was strictly proportionate to the aim of protecting persons against unlawful
244 United Nations Basic Principles on the Use of Force and Firearms by Law Enforce-
ment Ocials, Sept. 7, 1990.
245 Case of Ergi v. Turkey, European Court of Human Rights, Judgment of 28 July 1998,
IV Reports Judg. & Dec., at para. 79 (1998). See generally, Reidy, The Approach of the
European Commission and Court of Human Rights to International Humanitarian
Law, Intl Rev. Red Cross, No. 324, 513, 516, (Sept. 1988).
472 Chapter 7
violence but also whether the anti-terrorist operation was planned and controlled by
the authorities so as to minimize, to the greatest extent possible, recourse to lethal
force.246
Applying the rst test to the facts of the case, the Court considered that:
the use of force by agents of the State in pursuit of one of the aims delineated in para-
graph 2 of Article 2 of the Convention may be justied under this provision where it
is based on an honest belief which is perceived, for good reasons, to be valid at the
time but which subsequently turns out to be mistaken. To hold otherwise would be to
impose an unrealistic burden on the State and its law-enforcement personnel in the
execution of their duty, perhaps to the detriment of their lives and those of others.247
The Court found that the actions of the soldiers in themselves did not give rise to
a violation of the Convention. It then turned to the second test, examining the cir-
cumstances of the control and planning of the operation. Here, the Court found
against the government of the United Kingdom since it was not persuaded that
the killing of the three terrorists constituted the use of force which was no more
than absolutely necessary in defense of persons from unlawful violence within the
meaning of Article 2 para. 2 (a) of the Convention.248
The Court thus reversed the conclusion of the Commission, which had held
that the planning and execution of the operation by the authorities [did] not
disclose any deliberate design or lack of proper care which might render the use
of lethal force [...] disproportionate to the aim of defending other persons from
unlawful violence.249
We have thus seen that the ECHR has had an impact not only on other re-
gional human rights and universal human rights systems, but also on such dif-
ferent areas of general international law as principles of State responsibility, in-
terpretation of treaties, and environmental protection. An area where such an
inuence has, at least so far, been limited to human rights systems is that of res-
ervations to treaties.
246 Case of McCann and Others v. United Kingdom, European Court of Human Rights,
Judgment of 5 January 1995, 324 Eur. Ct. H.R. Rep. (Ser. A), at para. 194 (1995).
247 Id., at para. 200.
248 Id., at para. 213.
249 McCann and Others v. U.K., 21 Eur. Hum. Rts Rep. 97, para. 250 (1996).
Chapter 8: UN Institutions and the
Protection of Human Rights
There is no need for me to discuss organs established to promote human rights,

such as the Commission on Human Rights, the Commission on the Status of
Women, the many treaty bodies, such as the Human Rights Committee estab-
lished under the Political Covenant, and the many working groups, rapporteurs
and study groups created by the United Nations under the authority owing from
the human rights clauses of the Charter.
There is an obvious tension between the need for the Secretary-General to
maintain close relations with member governments and his role in the promo-
tion of human rights. The latter requires a modicum of pressure on governments
and an adversarial approach.1 Nonetheless, over the years, succeeding Secretar-
ies-General have raised the prole of human rights. Secretary-General Ko An-
nan has gone furthest, stating in 1997 that As Secretary-General, [he] will be a
champion of human rights and will ensure that human rights are fully integrated
in the action of the Organization in all other domains.2 This evolution conformed
to the system-wide integration of human rights concerns that was urged by the
Vienna Conference on Human Rights3 and has been reected in the work and
outcome of such major world conferences as those held in the 1990s: the Cairo
Conference on Population and Development, Copenhagen Conference on Social
Development, Beijing Conference on Women, and Habitat II Conference.4
The centrality given to human rights in the work of the United Nations of
late contrasts with earlier years, when human rights were viewed as too contro-
versial, delicate and political for incorporation in peace-keeping, development
1 See Andrew Clapham, Mainstreaming Human Rights at the United Nations The
Challenge for the First High Commissioner for Human Rights, 7(ii) collected courses
of the Academy of European Law 159, at 165-72 (1999).
2 Statement to the Commission on Human Rights, 9 April 1997, quoted in Clapham,
3 See Ernst Sucharipa & Engelbert Theuermann, The New United Nations and Human
Rights: The Human Rights Perspective in the Integrated Follow-up to United Nations
Conferences and in the UN Reform Process, 2 Austrian Rev. Intl & Eur. L. 239, 241-42
(1997)
4 See id. at 242.
474 Chapter 8
and many other areas. In the last decade, organizations such as UNICEF or the
UNDP have integrated human rights issues in their elds of activity. Symptomatic
of these trends has been the fact that the Convention for the Rights of the Child
has become the overarching framework for the work of UNICEF.5 Support for
democracy and human rights concerns have increasingly been taken into account
also in peace-keeping operations and in election monitoring.
Because of the many diverse demands on the Secretary-General, there was a
clear need for a more discrete oce dedicated to the protection of human rights.6
This realization eventually led to the creation of a distinct, independent, high-
level ocial within the United Nations with the responsibility for the promo-
tion and advancement of human rights, the UN High Commissioner for Human
Rights (HCHR). As early as 1947, Ren Cassin rst proposed the appointment of
a HCHR.7 Although this idea was raised from time to time with dierent degrees
of seriousness, it was only with the 1993 Vienna World Conference on Human
Rights that a general consensus on a high-level coordinator for human rights ac-
tivities was reached.8 In December 1993, the General Assembly nally adopted
the HCHRs mandate. His tasks include:
(a) To promote and protect the eective enjoyment by all of all civil, cultural, eco-
nomic, political and social rights;
....
(g) To engage in a dialogue with all Governments in the implementation of his/her
mandate with a view to securing respect for all human rights;
....
(i) To coordinate the human rights promotion and protection activities through-
out the United Nations system;
(j) To rationalize, adapt, strengthen and streamline the United Nations machinery
in the eld of human rights with a view to improving its eciency and eective-
ness ...9
The HCHR is to be guided by a vision of human rights which is universal rath-

er than culturally relative.10 Although the coordination of human rights eorts
across the UN system is part of his mandate, the HCHR has not been given au-
thority over other agencies and organs. The task of the Commissioner is to bal-
ance the various competing considerations so as to maximize the promotion of
human rights. He should be free from excessive dependence on governments.
Nevertheless, a certain timidity toward abusive governments has continued, per-
5 See id. at 247.

6 See Clapham, supra note 1, at 171-72.
7 See id. at 172.
8 See id. at 15-17.
9 G.A. Res. 141, U.N. GAOR, 48th Sess., 85th plen. mtg., at para. 4.
10 See id. at para. 3(b).
International Institutions 475
haps inevitably, because of the dependence of the HCHR on government support

for eld missions and technical assistance,11 and the broader need to engage in
negotiations and secure conditions for eective reporting.12 These factors tend to
undermine the HCHRs eectiveness, as fear of public rebuke and the possibility
of a confrontation, are potent factors of accountability.13
In the eld of criminal justice, human rights concerns have been served by
such institutions as the UN Crime Prevention and Criminal Justice Division,
based in Vienna, and the UN Congress on the Prevention of Crime and the Treat-
ment of Oenders, replaced in 1992 by an intergovernmental commission. The
Congress adopted important standards to guide governments in their treatment
of prisoners. These standards provide greater specicity than human rights in-
struments, thus improving prospects for implementation. They include:
The Rules for the Treatment of Prisoners
The Declaration on the Protection of All Persons from Being Subjected to
Torture and Other Cruel, Inhuman or Degrading Treatment
The Code of Conduct for Law Enforcement Ocials
Basic Principles on the Independence of the Judiciary
Standard Minimum Rules for the Administration of Justice
Basic Principles for the Use of Force and Firearms by Law Enforcement Of-
cials
Basic Principles on the Role of Prosecutors.
These institutional developments are, of course, continuing. Perhaps one day the
United Nations will be ready to establish a United Nations human rights tribu-
nal,14 modeled on the European Court of Human Rights, which might take over
the functions of some of the present treaty bodies.
A. Human Rights, Development and Financial Institutions

In this Chapter I shall explore the inuence of human rights on the law and prac-
tice of international institutions.
11 Helena Cook, The Role of the High Commissioner for Human Rights: One Step For-
ward or Two Steps Back?, 89 ASIL Proc. 235, 237-38 (1995).
12 See generally Philip Alston, The UNs Human Rights Record: From San Francisco to
Vienna and Beyond, 16 Hum. Rts. Q. 375, 388 (1994) (discussing the integration of hu-
man rights concerns into other activities, such as development cooperation, peace-
keeping, and dispute settlement).
13 See Clapham, supra note 1, at 181, 199-200.
14 See Yoram Dinstein, Human Rights: Implementation Through the UN System, 89 ASIL
Proc. 242, 247 (1995); see also Meron, Human Rights Law-Making in the United Na-
tions 212-13 (1986).
476 Chapter 8
I. Approaches to Development Issues

a) Right to Development
There has been a growing recognition of the nexus between development and
human rights.15 The concept of development underwent radical changes from
trickle-down growth, to growth with equity and redistribution, to a general con-
ception of development as a process incorporating material and non-material
needs, human rights and environmental concerns.16 Human rights doctrine has
recognized the right to development, in parallel with the principle of the indivis-
ibility of political, economic, social and cultural human rights.
Forsythe argues that for a long time the United Nations has been schizo-
phrenic about development and participatory human rights.17 On the one hand,
it has promoted standards supporting democracy and participatory rights. On
the other hand, it has treated human rights and development as two distinct and
separate areas, at least until the 1980s.18 In 1986, the General Assembly adopted
the Declaration on the Right to Development, which rearmed the Universal
Declaration and the Political Covenant and provided that:
1. The human person is the central subject of development and should be the ac-
tive participant and beneciary of the right to development.
2. All human beings have a responsibility for development, individually and col-
lectively, taking into account the need for full respect for their human rights and
fundamental freedoms as well as their duties to the community, which alone can
ensure the free and complete fulllment of the human being, and they should
therefore promote and protect an appropriate political, social and economic
order for development.19
The Secretary-Generals Agenda for Development (1994) explored the nexus be-
tween democracy and development:
They are linked because democracy provides the only long-term basis for managing
competing ethnic, religious, and cultural interests in a way that minimizes the risk of
violent internal conict. They are linked because democracy is inherently attached
to the question of governance, which has an impact on all aspects of development
eorts. They are linked because democracy is a fundamental human right, the ad-
vancement of which is itself an important measure of development. They are linked
15 See Balakrishnan Rajagopal, Crossing the Rubicon: Synthesizing the Soft International
Law of the IMF and Human Rights, 11 B.U. Intl L.J. 81, 83-5 (1993).
16 Id. at 97.
17 David P. Forsythe, The United Nations, Human Rights, and Development, 19 Hum Rts.
Q. 334, 335 (1997).
18 See id. 335-36.
19 Declaration on the Right to Development, G.A. Res. 925, U.N. GAOR, 41st Sess., 97th
plen. mtg., Annex, Article 2.
because peoples participation in the decision-making processes which aect their

lives is a basic tenet of development.20
Despite earlier reluctance, under the pressure of Western donor governments,

the United Nations Development Programme (UNDP) adopted democratic gov-
ernance as an essential feature of development,21 with special focus on the par-
ticipation of local community groups and non-governmental organizations, and
such accompanying rights as freedom of association,22 and became active in sup-
port of democratization, institution-building and the strengthening of legislative
and judicial systems.23
b) Sustainable Development
The Brundtland Commission dened sustainable development as development
that meets the needs of the present without compromising the ability of future
generations to meet their own needs.24 The concept of sustainable development,
whose primary objective was the protection of the environment,25 has grown out
of its ecological mold to encompass a comprehensive notion of development,
which includes several human rights aspects. Agenda 21, which was endorsed by
the UN General Assembly, thus established a link with universality, democracy,
transparency and accountability.26
The Communiqu of the G-7 Summit of Halifax stated that [d]emocracy,
human rights, transparent and accountable governance, investment in people and
environmental protection are the foundations of sustainable development.27 The
Declaration of the Summit of the Americas of Santa Cruz (1996) similarly reaf-
rmed that [s]ustainable development requires that we strengthen and promote
20 An Agenda for Development: Report by the Secretary-General, U.N. Doc. A/48/935,

para. 120
21 Forsythe, supra note 3, at 338.
22 See id. at 344-46.
23 See Ernst Sucharipa & Engelbert Theuermann, The New United Nations and Human
Rights: The Human Rights Perspective in the Integrated Follow-up to United Nations
Conferences and in the UN Reform Process, 2 Austrian Rev. Intl & Eur. L. 239, (1997)
at 247.
24 World Commission on Environment and Development, Our Common Future 43
(1987).
25 See Gnther Handl, The Legal Mandate of Multilateral Development Banks as Agents
for Change Toward Sustainable Development, 92 AJIL 642, 642 (1998).
26 Agenda 21, para. 38.2, in Report of the United Nations Conference on Environment
and Development, (Rio de Janeiro, 3-14 June 1992), Annex II, at para. 38.2, U.N. Doc.
A/CONF.151/26 (Vol. III) (1992); see also G.A. Res. 191, U.N. GAOR, 47th Sess., 93rd
plen. mtg., Supp. No. 49 (Vol. I), U.N. Doc. A/47/49 (1992).
27 Communiqu of the G-7 Summit (Halifax, 16-17 June 1995), at para. 24.
478 Chapter 8
our democratic institutions and values.28 The Declaration of Copenhagen on So-

cial Development states:
We heads of State and Government are committed to a political, economic, ethical

and spiritual vision for social development that is based on human dignity, human
rights, equality, respect, peace, democracy, mutual responsibility and cooperation,
and full respect for the various religious and ethical values and cultural backgrounds
of people. Accordingly, we will give the highest priority in national, regional and in-
ternational policies and actions to the promotion of social progress, justice and the
betterment of the human condition, based on full participation by all.29
II. Human Rights and International Financial Institutions

There has been increasing pressure on international nancial institutions to take
into account the protection of human rights in their projects and activities.30 Con-
sequently, the World Bank and to a lesser extent the International Monetary
Fund (IMF), the two main international nancial institutions, have been adjusting
their visions of development, their policies and their operations. As some com-
mentators have observed, World Bank funded operations now promote such
economic, social, and cultural rights as health education, social welfare, jobs,
and property,31 and the IMF has been known to engage the Member States in
discussions of its policies relating to health care, environment, welfare, housing,
unemployment, labor markets, military expenditures, and certain aspects of the
management of the States public sector.32
Initially, although the World Bank did not disagree with the broader concept
of development as a comprehensive process incorporating economic, social, cul-
tural, political, and spiritual dimensions,33 it took the view that its mandate was
28 Declaration of Santa Cruz de la Sierra, Summit of the Americas on Sustainable De-

velopment (Santa Cruz, 7-8 December 1996), at para. 3.
29 Declaration of the Copenhagen World Summit for Social Development (Copenha-
gen, 6-12 March 1995), at para. 25, in Report of The World Summit For Social Devel-
opment, U.N. Doc. A/CONF.166/9 (1995) [hereinafter Copenhagen Declaration].
30 See Prohibition of Political Activities in the Banks Work, Legal Opinion by the Senior
Vice President & General Counsel, July 12, 1995, at 26 (citing the Canadian House of
Commons and the Parliamentary Assembly of the Council of Europe, both of which
had called for considering the amendment of the World Banks Articles of Agreement
for that purpose); Ibrahim F.I. Shihata, The World Bank in a Changing World, at 573-
74 (Vol. II 1995).
31 Daniel D. Bradlow, The World Bank, the IMF, and Human Rights, 6 Transnatl L. &
Contemp. Probs. 47, 49 (1996).
32 Id. at 50; see also Shihata, supra note 30, at 567-70 (1995).
33 See Copenhagen Declaration, supra note 29, 25-26.
restricted to the economic aspects of development.34 It invoked its Articles of

Agreement, which provide that
[t]he Bank and its ocers shall not interfere in the political aairs of any member; nor
shall they be inuenced in their decisions by the political character of the member or
members concerned. Only economic considerations shall be relevant to their deci-
sions, and these considerations shall be weighed impartially in order to achieve the
purposes stated in Article I.35
The conclusion was that the Bank may consider human rights violations in the
course of lending decisions if, but only if, they amount to an economic consid-
eration.36 Other multilateral development banks constitutions contain similar
provisions, with the notable exception of the most recently established bank,
the European Bank for Reconstruction and Development (EBRD). The agree-
ment establishing the EBRD states in its preamble that the contracting parties
are [c]ommitted to the fundamental principles of multiparty democracy, the rule
of law, respect for human rights and market economics37 It directs the Bank to
promote in the full range of its activities environmentally sound and sustainable
development.38 These provisions may have been more important in theory, how-
ever, than in the EBRD practice.39
Over the years, the World Bank has shown some exibility in the interpreta-
tion of its mandate,40 as it has begun to recognize that an approach to develop-
ment based solely on economic growth could not be defended if it did not ad-
equately address alleviation of poverty and the fulllment of basic human needs.
The Banks position on the interpretation of its mandate is critical, as it has the
exclusive authority to interpret its Articles of Agreement.41 The Bank thus be-
gan to fund development activities related to health, education, agriculture, and
housing, later adding environmental, gender-related, and governance-enhancing
34 See Bradlow, supra note 31, at 54-55; Ibrahim Shihata, Democracy and Development,
46 I.C.L.Q. 635, 635, 640 (1997).
35 Articles of Agreement of the International Bank for Reconstruction and Develop-
ment, art. IV, 10, Dec.27, 1945, 60 Stat. 1440, 2 U.N.T.S. 134, amended Dec. 17, 1965,
16 U.S.T. 1942.
36 See John D. Ciorciari, The Lawful Scope of Human Rights Criteria in World Bank
Credit Decisions: An Interpretive Analysis of the IBRD and IDA Articles of Agreement,
33 Cornell I.L.J. 331, 346 (2000).
37 Agreement Establishing the European Bank for Reconstruction and Development,
Paris, May 29 1990, reprinted in 29 I.L.M. 1077 (1990).
38 Id. ch. I, art. 2, 1(vii).
39 See Handl, supra note 25, at 645-46, n.35.
40 See Shihata, supra note 34, at 639-40; Ciorciari, supra note 36, at 355-356; Pierre Klein,
Les institutions nancires internationales et les droits de la personne, 32 R.B.D.I. 97,
102-103 (1999).
41 See Ciorciari, supra note 36, at 338.
480 Chapter 8
projects.42 This expansion of the Banks activities led to involvement in many ar-
eas, which have a direct impact on human rights. According to Daniel Bradlow,
it seems reasonable to conclude ... that its operations have a direct eect on the fol-
lowing human rights in its Borrower States: the right to due process; the right to free
association and expression; the right to participate in the government and cultural
life of the community; the right to work; the right to health care, education, food, and
housing; and the rights of women, children, and indigenous peoples to nondiscrimi-
natory treatment.43
It is through the notion of good governance that the World Bank and other
multilateral development banks have gradually embraced some form of partici-
patory rights.44 They have begun to take into account a broad range of consid-
erations now regarded as sound banking practice, including transparency and
public participation in decision making, governmental accountability, and mea-
sures against public corruption.45 To increase transparency, the World Bank has
undertaken to promote public participation as a component in all of its projects
and has adopted a new public disclosure policy.46 The Bank thus expanded its
relations with NGOs. Another innovation is the establishment of the Inspection
Panel, which allows individuals to seek redress when the Bank fails to abide by its
own rules and procedures (discussed in the Chapter on Subjects of International
Law).47 These changes increase the likelihood that the Banks operations will be
designed and implemented in a way that is sensitive to the human rights issues
that may arise in the course of Bank-funded projects and programs.48
The World Banks general counsel outlined the limits of the Banks participa-
tory development policy, which, in his opinion, is only meant to allow the people
aected by a Bank-nanced project to participate eectively in its design and im-
plementation:
[While the] Banks advocacy of participatory development is laudable and may be

further encouraged to ensure grassroots development, [t]his does not, however,
mean that the Bank has a role in the general political reform of borrowing countries
... [and while many] Bank activities can no doubt indirectly have eects on the politi-
42 Bradlow, supra note 31, at 56.

43 Id. at 59.
44 See Ciorciari, supra note 36, at 341-42.
45 See Handl, supra note 25, at 649-50.
46 See Bradlow, supra note 31, at 77. See World Bank Revises Disclosure Policy, World
Bank News Release No. 2002/070/S (Sept. 7, 2001).
47 See Bradlow, supra note 31 at 76; Shihata, supra note 34, at 640; Klein, supra, note 40,
at 108.
cal environment of a country, ... [t]his indirect inuence should not be confused with
a political mandate which the Bank does not have under its Articles of Agreement.49
This opinion is central to the major debate whether human rights can be consid-
ered only in relation to funded projects or if the general human rights situation
in a State may be considered as a conditionality for aid. Gunther Handl has ob-
served that there is no denying that certain human-rights-related conditionali-
ties have become part and parcel of MDBs routine loan requirements.50 Project-
related human rights concerns cannot be easily divorced from the general human
rights situation prevailing in the country. Handl insists that [a] country without
traditions of a civil society that protect these values generally will not easily suc-
ceed in doing so ad hoc, in the limited, specic circumstances of a bank-nanced
project or program.51
Although the dividing line between legitimate and non-legitimate human
rights considerations is nebulous, multilateral banks seem to accept that human
rights can be considered whenever they have direct eects on the economic situ-
ation of a country, which includes factors regarded as a part of good govern-
ance, such as transparency and accountability.52 The decision to include good
governance in their mandates further undermines the traditional position against
consideration of political issues, since it is dicult ... to argue that governments
guilty of widespread human rights violations are practicing sustainable good gov-
ernance.53 The World Banks general counsel has recognized that the participa-
tion and consultation [of aected people], to be useful at all, require a reasonable
measure of free expression and assembly [and that] the Bank would ... be acting
within proper limits if it asked that this freedom be insured when needed for the
above purposes.54 He also recognized that
[t]o the extent that direct and obvious economic eects of political events or factors
can be taken into account by the Bank, an extensive violation of political rights which
take pervasive proportions could impose itself as an issue in the Banks decisions.
This would be the case if the violation had signicant economic eects or if it led to
the breach of international obligations relevant to the Bank, such as those created
under binding decisions of the UN Security Council.55
49 Prohibition of Political Activities in the Banks Work, supra note 30, at 24.
50 Handl, supra note 25, at 650.
51 Id. at 650.
52 See id. at 651.
53 Bradlow, supra note 31, at 65-66.
54 Prohibition of Political Activities in the Banks Work, supra note 30, at 29-30.
55 Id. at 30. Bradlow has criticized this statement for its failure to acknowledge that the
Bank has a responsibility to protect people from human rights abuses that occur as a
direct result of participating in a Bank funded operation and to give clear guidance
on how the Bank should treat the recommendations and opinions of international
organizations other than the Security Council. Bradlow, supra note 31, at 87.
482 Chapter 8
Some scholars have argued that international nancial institutions have a legal
duty to adopt a sustainable development approach. Such a duty could be inferred
from the interpretation of their articles of agreement, from customary law, and
from environmental multilateral agreements.56 Development banks have an af-
rmative duty to take reasonable steps to promote sustainable development.57
Promoting human rights as such is a more dicult issue. Although international
nancial institutions do not have a mandate to promote human rights generally,
they may have limited armative obligations regarding the enhancement of hu-
man rights, as part of the objectives of international normative concepts, extant
or emerging, that bear on sustainable development.58
The World Bank has sought to distinguish between economic factors and
political factors, as its mandate prohibits taking the latter into consideration.59
Under the current interpretation of the Banks Articles of Agreement, human
rights may be considered when such rights are of a predominantly economic
nature (as opposed to political) or when such rights have a direct and obvious
eect on the economic condition of a member nation.60 This working denition,
however, leaves a wide margin of discretion. Narrow constructions of the politi-
cal prohibition have been suggested, constructions that would only preclude the
Bank from interfering in domestic partisan political aairs, but not preclude the
Banks involvement with internationally recognized human rights.61
Human rights concerns have had less inuence on the IMFs operations than
on those of the multilateral development banks. The IMF has maintained that its
operations do not have any relation to or impact on other concerns such as human
rights, arms transfers or environmental wastage.62 This position has been based
on two principal grounds: human rights are within the domestic jurisdiction of
States and, thus, not within the IMFs purview; and human rights are merely
political, without any connection with the IMFs focus on balance of payments.63
The IMF has thus had less inuence than the World Bank on human rights policy
of member States.64 The IMFs programs are less wide-ranging than the Banks
and have a shorter time span. Moreover, the IMFs programs operate at a macro-
level, which may be thought to be less relevant for human rights issues.65
Under its Articles of Agreement, the purposes of the IMF are to promote
international monetary cooperation, to promote orderly and stable exchange
56 See Handl, supra note 25, at 655-61.

57 See id. at 663-64.
58 Id.
59 See Shihata, supra note 30, at 574-76.
60 Ciorciari, supra note 36, at 353; also Klein, supra, note 40, at 102-103.
62 Rajagopal, supra note 15, at 83.
63 Id.
64 See Bradlow, supra note 31, at 73.
65 See id. at 72.
rates, to assist in the establishment of a multilateral system of payments for cur-

rent transactions, and to give condence to member States by helping them cor-
rect balance of payments problems.66 However, over the years, the IMF has been
transformed from a monetary institution with a clearly dened scope of opera-
tions into an institution whose activities often appear to focus more on develop-
mental than monetary matters.67
Nevertheless, the IMF has taken only few steps to take into account human
rights concerns in its internal rules and procedures. NGOs are rarely involved in
its consultations; information about its activities is dicult to obtain, and there
are no formal mechanisms for those aected by its programs to hold the institu-
tion accountable.68
B. Human Rights and the United Nations Practice under the Charter
The Charter of the United Nations states that one of the purposes of the United
Nations is to promote human rights. Nevertheless, the human rights clauses in
the Charter are few in number and modest in content. Except for the prohibition
of discrimination, they are of such a general character that it is not surprising that
initially they were regarded more as programmatic or inspirational than as im-
posing immediate legal obligations. During the rst years of the United Nations,
the doctrine of non-intervention in the domestic aairs of States loomed large in
an uneasy coexistence with the Charters human rights clauses. In recent years,
this perception of the human rights clauses has undergone a dramatic transfor-
mation. The United Nations has been moving from a State-centric approach to an
attitude increasingly focused on human rights and individual concerns.
I. Human Rights and Peacekeeping Operations

Since the end of the Cold War, peace-keeping operations have become one of the
most prominent activities of the United Nations. Between 1945 and 1987, thirteen
operations were started. From 1988 until 1999, forty more have been launched.69
Even more important than the increase in the number of peace-keeping opera-
tions has been the change in the nature of the operations. Early peace-keeping
operations gave little consideration to human rights. But, as Theo van Boven
has noted, [t]he awareness is growing that promotion and protection of human
66 See Articles of Agreement of the International Monetary Fund, Dec. 27, 1945, art. I,
60 Stat. 1401, 2 U.N.T.S. 39, amended July 28, 1969, 20 U.S.T. 2775, amended Apr. 1,
1978, 29 U.S.T. 2203.
67 Bradlow, supra note 31, at 66; see also Rajagopal, supra note 15, at 90-92.
68 See Bradlow, supra note 31, at 77-78.
69 See United Nations Peacekeeping Operations, available at <http://www.un.org/
Depts/dpko/>.
484 Chapter 8
rights is an integral part of peacemaking and peacekeeping.70 Beyond cease-res,

truce observations, troop separations and such other military questions which
characterized the early peace-keeping operations, recent operations have recog-
nized the role of civilians and political settlements, especially in non-internation-
al conicts. One commentator has rightly concluded that [a]s a consequence,
issues such as human rights and democracy have become an important part of
the agenda of these operations.71 The Minister of Foreign Aairs of Germany
emphasized the inuence of peace-keeping of the internalization of conicts and
the growing importance of human rights.72
In this new environment, both the Security Council and the Secretary Gen-
eral have increasingly taken human rights into consideration in designing peace-
keeping operations.73 The rst UN eld mission entrusted with a specic human
rights mandate was the UN Observer Mission in El Salvador (ONUSAL), estab-
lished in 1991.74 The cease-re agreement between the Government of El Salvador
and the Fronte Farabundo Mart para la Liberacin Nacional (FMLN), concluded
under the auspices of the Secretary-General, provided for a UN observer mission
to monitor human rights violations after the conclusion of a cease-re. The man-
date of the Mission required both the active monitoring of the human rights situ-
ation in El Salvador and the promotion of human rights.75 ONUSALs activities
were expanded by further agreements to include judicial reform, the formation
of a national civilian police and an oce of the human rights ombudsman. The
UN Truth Commission for El Salvador found its guiding legal principles in the
rules of human rights and international humanitarian law binding on El Salvador.
76
Similarly, the UN Mission in Cambodia (UNTAC) included an important hu-
man rights mandate, in addition to electoral, military and police matters. Human
rights aspects covered educational programs, general oversight of human rights
issues and investigation of specic cases.77 The United Nations Verication Mis-
sion in Guatemala (MINUGUA) was to verify the implementation of the Com-
prehensive Agreement on Human Rights signed by the Government of Guate-
mala and the Unidad Revolucionaria Nacional Guatemalteca (URNG) in 1994. In
the Agreement, the parties requested that in verifying human rights, the United
Nations Mission should consider complaints of possible human rights violations
70 Theo van Boven, The Security Council: The New Frontier, 48 Intl Commn of Jurists
Rev. 12, 22 (1992).
71 Diego Garcia-Sayan, Human Rights and Peace-keeping Operations, 29 U. Rich. L. Rev.
41, 48 (1994).
72 U.N. GAOR, 54th Sess., 8th mtg. at 11, U.N. Doc. A/54/PV.8, at 11 (1999).
73 See van Boven, supra note 70, at 20.
74 The Mission was established by Security Council Resolution 693 (May 20, 1991).
75 See van Boven, supra note 70, at 20-21; Garcia-Sayan, supra note 71, at 51.
76 Thomas Buergenthal, The United Nations Truth Commission for El Salvador, 27 Vand.
J. Transnatl L. 497, 526-27 (1994).
77 See van Boven, supra note 70, at 21.
and determine whether a violation had occurred. The Agreement dened human
rights as those rights recognized in the Guatemalan legal order, including inter-
national treaties, conventions and other instruments on human rights to which
Guatemala is a party.78
In his Annual Report for 1999, the UN Secretary General observed that mul-
tidimensional peacekeeping was now the norm for the United Nations. Peace-
keeping tasks thus include:
helping to maintain ceaseres and to disarm and demobilize combatants; assisting

the parties to build or strengthen vital institutions and processes and respect for hu-
man rights, so that all concerned can pursue their interests through legitimate chan-
nels rather than on the battleeld; providing humanitarian assistance to relieve im-
mediate suering; and laying the groundwork for longer-term economic growth and
development on the understanding that no post-conict system can long endure if it
fails to improve the lot of impoverished people.79
Despite these developments, some commentators have insisted that human rights
are not yet seen as an essential element of peace-keeping80 and that they deserve
a higher priority.
The inclusion of human rights in peace-keeping mandates of the United Na-
tions requires, of course, that human rights and humanitarian law be respected
by UN personnel engaged in peace-keeping operations.81 The rst HCHR empha-
sized the importance of human rights training for peacekeepers.82 The UN Com-
mission on Human Rights encouraged Governments, UN bodies and organs, the
specialized agencies and intergovernmental and non-governmental organizations
to initiate, coordinate or support programmes designed to train and educate
military forces ... as well as members of the United Nations peace-keeping or ob-
server missions, on human rights and humanitarian law issues connected with
their work.83 The promulgation by the Secretary-General, in 1999, of the long
awaited principles and rules on the observance of international humanitarian law
by peacekeepers, drafted in collaboration with the ICRC, were of particular im-
portance.84 These rules were designed to ensure that the required standards [of
78 See Comprehensive Agreement on Human Rights, Mar. 29, 1994, Annex I, arts. I, IX,
and X, U.N. Doc. A/48/928 (1994).
79 Report of the Secretary-General on the work of the Organization, U.N. GAOR, 54th
Sess., Supp. No. 1, at 12, U.N. Doc. A/54/1 (1999).
80 Clapham, supra note 55, at 219.
81 See Gracia-Sayan, supra note 71, at 45; cf. Clapham, supra note 55, at 221-24.
82 See Jose Ayala-Lasso, Making Human Rights a Reality in the Twenty-First Century, 10
Emory Intl L. Rev. 497, 506-07 (1996).
83 Extrajudicial, summary or arbitrary executions, U.N. Commission on Human Rights,
Res. 1995/73, at para. 13 (1995).
84 See Observance by United Nations forces of international humanitarian law, Secre-
tary-Generals Bulletin, Aug. 6 1999, U.N. Doc. ST/SGB/1999/13 (1999).
486 Chapter 8
humanitarian law] are observed.85 Responding to human rights concerns about

treatment of children in armed conicts, the United Nations started assigning
full-time advocates of children to peace-keeping operations.86
II. Promotion of Democracy, Election Monitoring and Nation Building

Promotion of democracy and monitoring of elections has become another major
area of UN involvement in human rights, and, indeed, of other international in-
stitutions.
a) Normative Standards
Several human rights instruments address the issue of free elections. Article 25
of the Political Covenant provides for the right to take part in the conduct of
public aairs, directly or through freely chosen representatives and to vote and
to be elected at genuine periodic elections ... The OAS Charter proclaims that
[t]o promote and consolidate representative democracy, with due respect for the
principle of nonintervention is an essential purpose of the Organization.87 It fur-
ther rearms the principle that [t]he solidarity of the American States and the
high aims which are sought through it require the political organization of those
States on the basis of the eective exercise of representative democracy.88 The
OAS Permanent Council and OAS Ministers of Foreign Aairs have censured
Nicaragua, Haiti and Panama for violating these principles.89 Article 20 of the
American Convention on Human Rights recognizes several democratic rights:
the right to vote, the right to periodic elections with universal and equal surage
and the secret ballot. In the case of Mexican elections, the Inter-American Com-
mission rejected Mexicos argument that the Commission lacked the competence
to rule on the State Parties internal political processes. In its view,
ratication of the American Convention creates more than an obligation to respect

the exercise of the rights recognized therein; it also creates an obligation to guaran-
tee the existence and exercise of all those rights, without distinction, because they
constitute a whole and are mutually interdependent ... . As the Commission stated in
Report 01/90, Indeed, any mention of the right to vote and to be elected would be
85 Report of the Secretary-General on the work of the Organization, supra note 79, at
12.
86 See Barbara Crossette, Advocates for Children Joining U.N. Peacekeeping Missions,
N.Y. Times, Feb. 18, 2000, at A8.
87 Charter of the Organization of the American States, art. 2, b.
88 Id. at art. 3, d.
89 See Thomas Franck, The Emerging Right To Democratic Governance, 86 AJIL 46, 65
(1992).
mere rhetoric if unaccompanied by a precisely described set of characteristics that

the elections are required to meet.90
The 2001 Third Summit of the Americas in Quebec and the Declaration of the
Quebec City which it adopted, contain robust provisions on democracy, human
rights and the rule of law. The Declaration breaks new ground in providing that
any unconstitutional alteration or interruption of the democratic order in a state
of the Hemisphere constitutes an insurmountable obstacle to the participation of
that states government in the Summit of the Americas process. Consultations
would be conducted in the event of a disruption of the democratic system. Fol-
lowing upon the Declaration, the Inter-American Democratic Charter adopted in
Lima in 2001 provides, in Article 1, that the governments of the Americas have an
obligation to promote and defend democracy. Article 21 provides that the General
Assembly shall suspend a state, where an unconstitutional interruption of the
democratic order has taken place, from the right to participate in the OAS. Ar-
ticle 7 states that democracy is indispensable for the eective exercise of human
rights. Article 3 contains a denition of the essential elements of representative
democracy: respect for human rights, the rule of law, the holding of periodic,
free, and fair elections based on secret balloting and universal surage, pluralistic
system of political parties, and the separation of powers.
Article 3 of Protocol I to the European Human Rights Convention provides
that the parties undertake to hold free elections at reasonable intervals by secret
ballot, under conditions which will ensure the free expression of the opinion of
the people in the choice of legislature.91 This provision was interpreted by the
European Commission to require the existence of a representative legislature,
elected at reasonable intervals ... .92 The European Court held that Article 3 of
Protocol I, even though its wording has an inter-State texture (The High Con-
tracting Parties undertake ...), gave rise to individual rights and freedoms, as do
other provisions of the Convention and its protocols.93 It thus implies subjective
rights to vote and to stand for election,94 although they may be subjected by inter-
nal laws to conditions which are not in conict with Article 3. While States enjoy
a wide measure of discretion in the choice of electoral systems, they may not deny
the right to vote altogether. Thus, in the case of Matthews v. The United Kingdom,
90 Bravo v. Mexico, Case 10.956, Rep. No. 14/93, Inter-Am. C.H.R., OEA/ser.L/V/II.85,
doc. 9 rev., at 259 (1994) (internal citations omitted), reprinted in Thomas Buergen-
thal & Dinah Shelton, Protecting Human Rights in the Americas: Cases and Materials
514, 520 (4th ed. 1995).
91 Protocol I of the Convention for the Protection of Human Rights and Fundamental
Freedoms of 20 March 1952, art. 3.
92 See The Greek Case, 1969 Y.B. Eur. Conv. on H.R. 179 (Eur. Commn on H.R.).
93 Mathieu-Mohin and Clerfayt v. Belgium, European Court of Human Rights, 1987 Eur.
Ct. H.R. (ser. A) at paras. 48-50.
94 Ahmed and Others v. United Kingdom, European Court of Human Rights (Chamber),
1998 Eur.Ct. H.R. at para. 75 (1998) (internal citations omitted).
488 Chapter 8
the Court found that the denial of the right to vote to persons living in Gibraltar
in elections for the European Parliament constituted a violation of Article 3 of
Protocol I imputable to the United Kingdom.95
Human right treaties and declarations also provide for the rights of freedom
of thought, freedom of expression and freedom of association which, as Thomas
Franck has observed, are a renement of an aspect of the older right to self-de-
termination; they also constitute the essential preconditions of an open electoral
process ... .96 The Preamble to the European Convention on Human Rights and
Articles 10 and 11 of the Convention, concerning freedom of thought and of as-
sociation, establish a nexus between democracy and human rights. In the Case
of Ahmed and Others v. United Kingdom, the European Court of Human Rights
insisted that the maintenance and further realisation of human rights and fun-
damental freedoms are best ensured by an eective political democracy and by a
common understanding and observance of human rights.97
At the Copenhagen Meeting (1990), the Conference on Security and Co-op-
eration in Europe (CSCE) spelled out the content of the right to participate in
free and open elections. The participating States armed that democracy is an
inherent element of the rule of law, and recognized the importance of plural-
ism with regard to political organizations.98 Among the inalienable rights of all
human beings was the democratic entitlement, including free elections held at
reasonable intervals by secret ballot or by equivalent free voting procedure, un-
der conditions which ensure the free expression of the opinion of electors in the
choice of their representatives. Rights also include a government representative
in character, in which the executive is accountable to the elected legislature or the
electorate; and political parties that are clearly separate from the State.99 These
norms suggest a tremendous contraction of domestic jurisdiction. As Thomas
Buergenthal has noted,
no domestic institution or norm, in theory, is beyond the jurisdictional reach of

the CSCE. Here the traditional domestic jurisdiction doctrine, which has tended to
shield the oppressive State practices and institutions from international scrutiny, has
for all practical purposes lost its meaning. And this notwithstanding the fact that
non-intervention in the domestic aairs of a State is a basic CSCE principle. Once
the rule of law, human rights and democratic pluralism are made the subject of inter-
95 See Matthews v. The United Kingdom, European Court of Human Rights (Grand
Chamber), 1999 Eur.Ct. H.R. at paras 64-65.
96 Franck, supra note 89, at 61.
97 Ahmed and Others, 1998 Eur.Ct. H.R. at para. 52.
98 Franck, supra note 89, at 66 (quoting from Conference on Security and Co-operation
in Europe (CSCE), Document of the Copenhagen Meeting of the Conference on the
Human Dimension, June 29, 1990, reprinted in 29 I.L.M. 1305, 1308, para. 3 (1990)
[hereinafter Copenhagen Document].
99 See Franck, supra note 89, at 66 (citing to Copenhagen Document, supra note 98, at
para. 5).
national commitments, there is little left in terms of governmental institutions that

is domestic.100
The Copenhagen document went beyond any existing human rights instru-
ments.101 It stated that citizens have the right to expect free elections at reason-
able intervals, as established by law; a national legislature in which at least one
chambers membership is freely contested in a popular vote; a system of universal
and equal adult surage; a secret ballot or its equivalent; free, non-discriminatory
candidature for oce; freedom to form political parties that compete on a basis
of equal treatment; free and fair campaigning, etc.102
In the CSCE Document of the Moscow Meeting, the participating States re-
armed that issues relating to human rights, fundamental freedoms, democracy
and the rule of law are of international concern, as respect for these rights and
freedoms constitutes one of the foundations of the international order, and cate-
gorically and irrevocably declare[d] that the commitments undertaken in the eld
of the human dimension of the CSCE are matters of direct and legitimate concern
to all participating States and do not belong exclusively to the internal aairs of
the State concerned.103 These principles have been followed in the CSCE (later
OSCE) by the creation of machinery for monitoring elections in member States.
In the OSCE too, the democratic entitlement, with its linkage to monitoring and
human rights has trumped the principle of noninterference.104 If international
law is still concerned with the protection of sovereignty, in its modern sense, the
object of protection is not the power base of the tyrant ... but the continuing ca-
pacity of a population freely to express and eect choices about the identities and
policies of its governors.105 In the Nicaragua case, the ICJ rejected the contention
that election monitoring in independent States is necessarily unlawful: A State,
which is free to decide upon the principle and methods of popular consultation
within its domestic order, is sovereign for the purpose of accepting a limitation of
it sovereignty in this eld.106
Conceptually, the UN standards for promotion of democracy and the moni-
toring of elections are derived from and implement in greater detail human rights
treaties. Gregory Fox suggests, however, that the UN practice has been based
100 Thomas Buergenthal, CSCE Human Dimension: The Birth of a System, 1 Collected
Courses of the Academy of European Law, No. 2, at 3, 42-43, quoted in Franck, supra
note 89, at 68.
101 See Meron, Democracy and the Rule of Law, 153 World A. 23, 24, (1990).
102 See Copenhagen Document, supra note 98, at 1310, para. 7 (1990).
103 CSCE, Document of the Moscow Meeting of the Conference on the Human Dimen-
sion, Oct. 3, 1991, Preamble, reprinted in 30 I.L.M. 1670, 1672 (1991).
105 W. Michael Reisman, Sovereignty and Human Rights in Contemporary International
Law, in, Democratic Governance and International Law 239-258, 249 (Gregory H.
Fox and Brad R. Roth eds., 2000).
106 Military and Paramilitary Activities (Nic. v. U.S.) (merits), 1986 I.C.J. 14., para. 258.
490 Chapter 8
on a parallel set of standards derived from the Security Councils competence to

maintain peace and security107 or the General Assemblys general mandate to pro-
mote peace, development and human rights.108 Nonetheless, the legal basis of the
entitlement to democracy is well grounded in the principal human rights instru-
ments. Thomas Franck has rightly observed that the democratic entitlement has
a close relationship with human rights norms:
[T]he rules pertaining to self-determination, freedom of expression and the right to

participate in free and open elections are closely interwoven strands of a single fab-
ric.... [G]enerations of democratic entitlement, reinforced by regional systems, not
only share many of the same or similar norms, but also have developed common and
comparable kinds of institutions, procedures and customs. Each thread reinforces,
and is reinforced by, the weave of the cloth.109
Referring to the most important universal and regional human rights instru-
ments, Franck concluded:
One can convincingly argue that States which deny their citizens the right to free and
open elections are violating a rule that is fast becoming an integral part of the elabo-
rately woven human rights fabric. Thus, the democratic entitlement has acquired a
degree of legitimacy by its association with a far broader panoply of laws pertaining
to the rights of persons vis-a-vis their governments.110
Indeed, the 1992 UN election guidelines for Member States State that the basic
legal framework for the electoral process must be in conformity with the relevant
principles enunciated in fundamental international human rights agreements.111
Important norms have been developed with regard to voter eligibility. In
the Namibian and the Cambodian elections, the United Nations promoted voter
eligibility criteria based on a link with the territory rather than on ethnicity. The
General Assemblys resolutions on South Africa emphasized the non-acceptabil-
ity of electoral processes based on racial criteria.112
The United Nations has also insisted on party pluralism. While the legiti-
macy of one-party elections is not expressly excluded by human rights instru-
ments, UN electoral monitors have properly insisted on the participation of all
107 See also Gregory Fox, The Right to Political Participation in International Law, 17 Yale
J. Intl L. 539, 571, 588-89 (1992).
108 See also Douglas Lee Donoho, Evolution or Expediency: The United Nations Response
to the Disruption of Democracy, 29 Cornell Intl L. J. 329, 335-38.
110 Id. at 79.
111 Enhancing the eectiveness of the principle of periodic and genuine elections: Report
of the Secretary-General, U.N. GAOR, 47th Sess., Addendum, Agenda Item 97(b), at
1, para. 2, U.N. Doc. A/47/668/Add.1 (1992).
112 See G.A. Res. 130, U.N. GAOR, 47th Sess., 92nd plen. mtg., at para. 8 (1992).
major political groupings.113 Fox has noted, with regard to the UN decolonization
electoral missions, that
[t]he most important of [the standards consistently promulgated by election moni-

tors] was the prohibition on any substantive restrictions on party activity. In insisting
on party pluralism the United Nations made clear that the ambiguities of the Political
Covenant on this crucial issue would not carry forward into the new era of participa-
tory rights.114
This standard was applied also by later monitoring missions.115 Fox has identied a
series of standards that the United Nations has developed that go beyond explicit
provisions of human rights instruments:
1) citizens must have the opportunity to organize and join political parties, and
such parties must be given equal access to the ballot; 2) to the extent the gov-
ernment controls the media, all parties must have the opportunity to present
their views through the media; and 3) the election must be overseen by an inde-
pendent council or commission not tied to any party, faction, or individual, but
whose impartiality is ensured both in law and practice.116
Similar norms have been developed by regional organizations. The Inter-Ameri-

can Commission on Human Rights interpreted the general conditions of genuine
elections as requiring that there must be several political groups participating in
the elections, all on an equal footing.117 In the Greek Case, the European Commis-
sion of Human Rights held that the abolition of all political parties was a violation
of Article 3 of Protocol I.118
More recently, the European Court of Human rights addressed the question
of the dissolution of political parties under Articles 10 and 11 of the European
Convention (freedom of opinion and of association). Several cases against Tur-
113 See Fox, supra note 107, at 578-79.

114 Id. at 579.
115 See id. at 581 (describing the role of ONUVEN).
116 Fox, supra note 107, at 590. See also Henry Steiner, Political Participation as a Hu-
man Right, 1 Harv. Y.B. Intl L. 77 (1988).
117 See IACHR, Human Rights, Political Rights and Representative Democracy in the
Inter-American System, Annual Report of the Inter-American Commission on Hu-
man Rights 1990-1991, OEA/Ser.L/V/II.79 rev. 1, doc. 12, 22 February 1991, 514-37,
reprinted in Buergenthal & Shelton, supra note 90, at 511; see also Fox, supra note 107,
at 566 (commenting on the Report of the Commission on Cuba). Cf. Chiiko Bwalya v.
Zambia, Human Rights Committee, Communication No. 314/1988, U.N. Doc. CCPR/
C/48/D/314/1988, para. 6.6 (1993), reprinted in 14 Hum. Rts. L.J. 408 (1993).
118 The Greek Case, 1969 Y.B. Eur. Conv. on H.R. 179, 180 (Eur. Commn on H.R.).
492 Chapter 8
key involved the dissolution of political parties.119 The Court both reiterated that
[t]here can be no democracy without pluralism120 and determined the limits
within which political parties may conduct their activities while enjoying the pro-
tection of the European Convention. It took the view that a political party may
campaign for a change in the law or the legal and constitutional basis of the State
on two conditions: (1) the means used to that end must in every respect be legal
and democratic, (2) the change proposed must itself be compatible with funda-
mental democratic principles.121
b) Practice
The involvement of the United Nations in the promotion and monitoring of elec-
tions began at the height of decolonization and self-determination. It was trig-
gered by the General Assembly Declaration on the Granting of Independence
to Colonial Countries and Peoples, adopted in 1960.122 A Committee for the im-
plementation of the Declaration, which authorized observer missions for elec-
tions and referenda in non-self-governing territories, was established a few years
later.123
From a right to be asserted against colonial powers, self-determination has
gradually come to be viewed as applying also within the territorial State, with, as
Fox has noted, the entire territorial State being viewed as the self.124 Self-determi-
nation has come to be seen as enabl[ing] the people of a country to choose their
political system, their political economic and social institutions and their political
leaders, or to make important constitutional political decisions.125 It thus serves
as an organizing principle for other goals promoted by international institutions:
democratic elections, protection of minority rights and autonomy regimes within
existing States.126 Thus seen, self-determination contributes to refocusing au-
119 United Communist Party of Turkey and Others v. Turkey, Judgment of 30 January
1998, 1998-I Eur. Ct. H.R., Socialist Party and Others v. Turkey, Judgment of 25 May
1998, 1998-III Eur. Ct. H.R., Freedom and Democracy Party (ZDEP) v. Turkey, Judg-
ment of 8 December 1999, 1999 Eur. Ct. H.R., Refah Partisi and others v. Turkey, Judg-
ment of 31 July2001, 2001 Eur. C.H.R.
120 Refah Partisi and others, id. 44.
121 Id. 47.
122 See Declaration on the Granting of Independence to Colonial Countries and Peoples,
G.A. Res. 1514, U.N. GAOR, 15th Sess, Supp. No. 16, at para. 5, U.N. Doc. A/4684
(1960).
123 See Enhancing the eectiveness of the principle of periodic and genuine elections:
Report of the Secretary-General, para. 12, U.N. Doc. A/46/609 (1991).
124 See Gregory Fox, Self-Determination in the Post-Cold War Era: A New Internal
Focus?, 16 Mich. J. Intl L. 733, 752 (1995) (reviewing Yves Beigbeder, International
Monitoring of Plebiscites, Referenda and National Elections: Self-Determination and
Transition to Democracy (1994)).
125 Id., at 752 (quoting Beigbeder, id., at 18) (internal quotation marks omitted).
126 Id., at 752-55.
tonomy claims from the expectation of independence brought on by the success

of decolonization to modes of participation in the domestic political arena.127
Thomas Franck has observed that the idea of self-determination has evolved into
a more general notion of internationally validated political consultation128 and
that the story of self-determination was the rst building block in the creation
of a democratic entitlement.129
In 1988, the General Assembly rst established a link between human rights,
periodic and genuine elections and democracy by grounding in human rights a
rationale for free elections. 130In 1992, the Secretary-General stated that the basic
framework for the electoral process must be in conformity with the relevant prin-
ciples enunciated in fundamental human rights agreements.131 In appropriate cir-
cumstances it constitutes also a component of post-conict peace-building.132
The last of the decolonization era electoral missions was in Namibia (1989).133
It followed a 1976 Security Council resolution which declared that it was impera-
tive that free elections under the supervision and control of the United Nations be
held for the whole of Namibia as one political entity.134 The mandate was broader
than election monitoring: it included overseeing South African withdrawal, the
maintenance of peace, and the return of refugees. The success of the elections
represented for many an emerging consensus on the value of democratic gover-
nance.135
The electoral mission in Nicaragua (ONUVEN), also established in 1989, was
the rst monitoring mission to take place in a sovereign State.136 The President
of Nicaragua requested the assistance of the United Nations. In a letter to the
President of the General Assembly, the Secretary-General explained that it was a
request involved which had the backing of the other four Central American gov-
127 Id. at 755.

129 Id.
130 G.A. Res. 157, U.N. GAOR, 43rd Sess., 75th plen. mtg. at paras. 1-3 (1988).
131 Enhancing the Eectiveness of the Principle of Periodic and Genuine Elections, Re-
port of the Secretary-General, U.N. Doc. A/47/668/Add.1 (1992), at 1, cited in Fox,
supra note 107, at 778, n. 214 (citing Beigbeder, supra note 124, at 111).
132 An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping, Re-
port of the Secretary-General Pursuant to the Statement Adopted by the Summit
Meeting of the Security Council on 31 January 1992, U.N. Doc. A/47/277 - S/24111,
para. 56 (1992).
133 See S.C. Res. 628, 2842nd mtg. (Jan. 16, 1989).
134 S.C. Res. 385, 1885th mtg. at para. 7 (Jan, 30, 1976).
135 Fox, supra note 107, at 774.
136 See Margaret Satterthwaite, Human Rights Monitoring, Elections Monitoring, and
Electoral Assistance as Preventive Measures, 30 N.Y.U. J. Intl L. & Pol. 709, 720-21
(1998).
494 Chapter 8
ernments.137 The mission was supported by the General Assembly as an extraor-

dinary measure related to the maintenance of international peace and security138
and was linked to peace-making rather than to human rights.139 Later monitoring
missions, however, have increasingly been grounded in human rights.
The electoral mission in Haiti (1990) raised novel questions. In contrast to
Namibia or Nicaragua, the situation in Haiti lacked a signicant international di-
mension, except for the movement of refugees to the United States.140 As Franck
observed, [i]n normative terms, Haiti may be understood as the rst instance in
which the United Nations, acting at the request of a national government, inter-
vened in the electoral process solely to validate the legitimacy of the outcome.141
In the same vein, Michael Reisman noted that [t]he results of such elections
serve as evidence of popular sovereignty and become the basis for international
endorsement of the elected government.142 Endorsement may include such ad-
vantages as recognition, bilateral and multilateral assistance and membership in
international organizations.
Following the Nicaraguan elections and a backlash against the growing UN
involvement in elections in sovereign States, the Secretary-General attempted to
limit UN involvement to situations that had a clear international dimension.143
Nonetheless, after the approval by the General Assembly of the monitoring oper-
ations in Haiti the requirement of an international nexus has faded from ocial
commentary on UN electoral activities.144 It is noteworthy that the Secretary-
General in his 1992 Report referred only to a potential international disruption145
and that in his 1993 report he does not even mention the need for an international
dimension as a condition for UN involvement.146
During little more than a decade, the task of monitoring (and thereby legiti-
mating) elections in independent nations was normalized: what was once seen
as a threat to the sovereignty of Member States has become an institutionalized
137 Enhancing the eectiveness of the principle of periodic and genuine elections, Report
of the Secretary-General, U.N. Doc. A/46/609, para. 28 (1991).
138 G.A. Res. 10, U.N. GAOR, 44th Sess., 35th plen. mtg. at para. 8 (1989).
139 See Franck, supra note 89, at 80.
140 See Fox, supra note 107, at 775; cf. Franck, supra note 89, at 72.
141 Franck, supra note 89, at 72-73.
142 Michael Reisman, Sovereignty and Human Rights in Contemporary International
Law, 84 AJIL 866, 868-69 (1990).
143 See Enhancing the Eectiveness of the Principle of Periodic and Genuine Elections,
Report of the Secretary-General, U.N. Doc. A/46/609, at para. 79 (1991); Enhancing
the eectiveness of the principle of periodic and genuine elections: Report of the
Secretary-General, U.N. Doc. A/47/668, at para. 53 (1992).
144 Fox, supra note 107, at 775-76.
of the Secretary-General, U.N. Doc. A/47/668, at para. 57 (1992).
Report of the Secretary-General, U.N. Doc. A/48/590, at paras. 59-60 (1993).
system with its own procedures and practices. As Fox has observed, the failure to
limit peace-keeping operations to situations with clear international dimensions
has reinforced the centrality of monitored elections.147
UN involvement in domestic electoral aairs has been criticized for its fail-
ure to ensure a long-term consolidation of democratic institutions, especially in
post-conicts contexts.148 The validation and legitimation of elections in a na-
tional setting raises the question of follow-up verication. The Secretary General
has framed the question in the following terms:
If the United Nations certies that an election was free and fair and therefore the
result must be considered valid, does it have a responsibility to follow implementa-
tion of the election results? Are there safeguards which might be included within the
United Nations electoral verication activities in order to address such situations.149
In his nal report on the Mission in Haiti, the Secretary-General had warned
that if electoral democracy is to be more than a one-time event in the history
of a State with little experience in such matters, a far more sustained eort will
have to be made under the auspices of the community of nations.150 International
reactions to the overthrow of the President of Haiti and to the resumption of the
civil war in Angola suggest that the United Nations may have a continuing role to
play,151 one that presents major challenges to its limited resources. There has been
a rising demand for monitoring in subsequent elections, and more generally for
a continuing UN role after the rst election.152 In his 1995 report, the Secretary-
General noted that elections are necessary but not sucient to ensure the dura-
bility of a democratization process. That is why the United Nations has broadened
its action to include assistance to constitutional reforms, institution-building and
civic education.153 The General Assembly encouraged the Secretary-General
through the Electoral Assistance Division, to respond to the evolving nature of re-
quests for assistance and the growing need for specic types of medium-term ex-
pert assistance aimed at supporting and strengthening the existing capacity of the
147 Fox, supra note 107, at 776.

148 See Karl J. Irving, The United Nations and Democratic Intervention: Is Swords into
Ballot Boxes Enough?, 25 Denv. J. Intl L. & Poly 41, 59-61 (1996).
149 Enhancing the eectiveness of the Principle of periodic and genuine elections: Re-
port of the Secretary-General, U.N. Doc. A/47/668, at para. 69 (1993).
150 Franck, supra note 89, at 73 (citing to Electoral Assistance to Haiti: Note of the Sec-
retary-General, U.N. Doc. A/45/870/Add.1 (1991)).
Report of the Secretary-General, U.N. Doc. A/48/590, at para. 53 (1993).
Report of the Secretary-General, U.N. Doc. A/49/675, at paras. 32-36 (1994).
of the Secretary-General, U.N. Doc. A/50/332, at para. 125 (1995).
496 Chapter 8
requesting Government, in particular through enhancing the capacity of national

electoral institutions.154
This evolution of election monitoring was recognized by the Secretary-General in

his annual report of 1999:
As the age of democratization has entered into a new phase, the Organization has
shifted its electoral assistance strategy to encompass a broader understanding of
post-conict peace-building. Elections that have in the past served predominantly as
an exit strategy out of conict situations are now seen as providing an opportunity for
institution-building and the introduction of programmes for good governance.
Elections are a necessary, but not sucient, condition for creating viable de-
mocracies. That requires the establishment or strengthening of democratic infra-
structures such as electoral commissions, electoral laws and election administration
structures and the promotion of a sense of citizenship and its attendant rights and
responsibilities.155
Regional organizations have also become involved in election monitoring. The

OAS has carried out such monitoring in countries such as Nicaragua, Haiti,
Suriname, El Salvador, Paraguay and Panama. The CSCE/OSCE has also been
involved in electoral monitoring. The Paris Charter established an Oce for
Free Elections to facilitate contacts and the exchange of information on elec-
tions within participating States.156 The OSCE Oce for Democratic Institutions
(ODIHR) in Warsaw is involved in fact-nding, mediation and negotiations. The
OSCE High Commissioner on National Minorities provides early warning about
minority problems liable to exacerbate into conicts, mediates and provides ad-
visory services. The OSCE statement of commitments to the rights of national
minorities (Copenhagen CSCE Conference 1990), has had a major impact on the
UN Declaration on the Rights of Persons Belonging to National or Ethnic, Reli-
gious and Linguistic Minorities (1992).
Most recently, the role of human rights in nation-building has been em-
phasized in the case of Afghanistan. Security Council Resolution 1378 (2001)
expressed strong support for Afghan eorts to establish a transitional adminis-
tration leading to the formation of a government which would respect the hu-
man rights of all Afghan people, regardless of gender, ethnicity and religion, and
which should be broad-based and multi-ethnic. Resolution 1383 (2001), which
154 G.A. Res. 129, U.N. GAOR, 52nd Sess., at para. 13 (1997).
Sess., Supp. No. 1, paras. 109-10, U.N. Doc. A/54/1 (1999).
156 Franck, supra note 89, at 68 (quoting Conference on Security and Co-operation in
Europe, Charter of Paris for a New Europe and Supplementary Document to Give Ef-
fect to Certain Provisions of the Charter, Nov. 21, 1990, reprinted in 30 ILM 190, 207).
For a discussion of the OSCE, see Thomas Buergenthal, Dinah Shelton and David P.
Stewart, International Human Rights in a Nutshell, 205-24 (3rd ed. 2002).
welcomed the Bonn Agreement (5 December 2001) on provisional arrangements

in Afghanistan, noted that these arrangements were a rst step towards the estab-
lishment of a broad-based, gender-sensitive, multi-ethnic and fully representative
government.
The 2002 UN Human Development Report : Deepening Democracy in a Frag-
mented World, warns, however, that despite the move of many countries into the
democratic column, and the replacement of many military by civilian govern-
ments, in many States democratic culture is slow to develop, political institutions
are not keeping pace with the needs of governance, condence in democracy is
dwindling, problems of development and poverty are not being addressed eec-
tively, and corruption, abuses, and poverty persist.157 While these criticisms may
be true, it is inevitable that such drastic changes as transition to democracy will
be slow and often imperfect. On the balance, it is undeniable that democracy has
become both an expectation of peoples and a universal norm, including in the
practice of the United Nations.158
III. Humanitarian and Human Rights Factors in Sanctions

Although various States have long used sanctions as a foreign policy tool, it was
not until fairly recently that the international community resorted to collective
sanctions. Indeed, until the end of the Cold War, the United Nations imposed
sanctions rarely mostly in response to events in Southern Africa. Since the end
of the Cold War, Chapter VII sanctions have become a more frequent response
to transgressions by States.159 They are perceived as an intermediate option fall-
ing between the extremes of diplomacy and military intervention.160 Multilateral
sanctions have thus been imposed for example on Iraq,161 the former Yugoslavia,162
157 Barbara Crosette, U.N. Report says New Democracies Falter, N.Y. Times, July 23, 2002.
The Report published for the UNDP will appear under the imprint of Oxford Univer-
sity Press.
158 Joshua Muravchik, Democracys Quiet Victory, N.Y.T. Aug. 19, 2002.
159 See Christine Gray, International Law and the Use of Force 154-156 (2000).
160 Joy K. Fausey, Does the United Nations Use of Collective Sanctions to Protect Human
Rights Violate its Own Standards?, 10 Conn. J. Intl L. 193, 194 (1994).
161 See S.C. Res. 661, U.N. SCOR, 2933rd mtg. (Aug. 6, 1990) (trade sanctions); S.C. Res.
670, U.N. SCOR, 2943rd mtg. (Sept. 25, 1990) (air embargo).
162 See S.C. Res. 713, U.N. SCOR, 3009th mtg. (Sept. 25, 1991) (arms embargo); S.C. Res.
757 U.N. SCOR, 3082nd mtg. (May 30, 1992) (trade sanctions and ight ban).
498 Chapter 8
Somalia,163 Libya,164 Liberia,165 Haiti,166 Rwanda,167 and the Sudan.168 Measures tak-
en include diplomatic sanctions, arms embargo, ight bans, trade sanctions and/
or oil embargoes. Several cases have included sanctions against non-State actors,
such as the Khmers Rouges (Cambodia),169 UNITA (Angola),170 the Bosnian Serb
forces (Bosnia-Herzegovina)171 and the Taliban (Afghanistan).172
Sanctions relate to humanitarian or human rights in two ways. The rst con-
cerns the rationale and the justication for sanctions, which may be rooted in
the desire to compel compliance with human rights and humanitarian law. As
observed by Lori Damrosch,
[a] growing body of literature draws attention to the value of economic sanctions,
especially collective ones, in arming the international communitys commitment to
certain fundamental norms, such as nonuse of force, peaceful settlement of disputes
and international human rights.173
Violations of humanitarian norms have been invoked as a ground for resort to

sanctions in such cases as Iraq, for its treatment of the Kurdish population, Serb
controlled areas in the former Yugoslavia and the Federal Republic of Yugosla-
via, for violations of humanitarian norms,174 and Haiti, for violations of human
rights.
163 See S.C. Res. 733, U.N. SCOR, 3039th mtg. (Jan. 23, 1992) (arms embargo).
164 See S.C. Res. 748, U.N. SCOR, 3063rd mtg. (Mar. 31, 1992) (arms and air embargoes);
S.C. Res. 883, U.N. SCOR, 3312th mtg. (Nov. 11, 1993) (freezing of assets, oil equip-
ment).
165 See S.C. Res. 788, U.N. SCOR, 3138th mtg. (Nov. 19, 1992) (arms embargo).
166 See S.C. Res. 841, U.N. SCOR, 3238th mtg. (June 16, 1993) (oil and arms embargo,
freezing of assets); S.C. Res. 917, U.N. SCOR, 3376th mtg. (May 6, 1994) (trade and
nancial assets).
167 See S.C. Res. 918, U.N. SCOR, 3377th mtg. (May 17, 1994) (arms embargo).
168 See S.C. Res. 1054, U.N. SCOR, 3660th mtg. (Apr. 26, 1996) (diplomatic sanctions);
and S.C. Res. 1070, U.N. SCOR, 3690th mtg. (Aug. 16, 1996) (conditional ight ban).
169 See S.C. Res. 792, U.N. SCOR, 3143rd mtg. (Nov. 30, 1992) (petroleum products em-
bargo).
170 See S.C. Res. 864, U.N. SCOR, 3277th mtg. (Sept. 15, 1993) (arms and oil embargoes);
S.C. Res. 1127, U.N. SCOR, 3814th mtg. (Aug. 28, 1997) (ight and travel ban); S.C.
Res. 1173, U.N SCOR, 3891st mtg. (June 12, 1998) (freezing of assets).
171 See S.C. Res. 942, U.N. SCOR, 3428th mtg. (Sept. 23, 1994).
172 See S.C. Res. 1267, U.N. SCOR, 4051st mtg. (Oct. 15, 1999) (ight ban and freezing of
assets).
173 Lori Fisler Damrosch, The Civilian Impact of Economic Sanctions, in Enforcing Re-
straint: Collective Intervention in Internal Conicts 274, 277-78 (Lori Fisler Dam-
rosch ed., 1993).
174 See Adam Winkler, Just Sanctions, 21 Hum. Rts Q. 133, 143 (1999).
The second concerns the impact of sanctions on the target States popula-
tion. As Hans-Peter Gasser has suggested, [t]here seems to be general agreement
that although the purpose of economic sanctions may never be punishment, even
less (collective) punishment of the civilian population at large, their impact on
individuals quite often ultimately bears a close resemblance to it.175 Selective tar-
geting of sanctions, or smart sanctions and the so-called humanitarian excep-
tions have therefore been urged by the Secretary-General to reduce as much as
possible sanctions humanitarian costs to the civilian population.176
Among the many approaches to sanctions and their eects, three merit men-
tion. The rst approach is strategic and focuses on the eectiveness of sanctions.
Can sanctions work eectively when they harm civilians?177 Are sanctions not li-
able to backre, causing hostility toward the international community and a sense
of solidarity within the targeted regime?178 Scholars have argued that sanctions
often miss their target by hurting civilians and leaving elites untouched. Haas
noted that
[s]anctions can be a powerful and deadly form of intervention. The danger inherent
in broad sanctions beyond missing the true target is both moral, in that innocents
are aected, and practical, in that sanctions that harm the general population can
bring about undesired eects, including strengthening the regime, triggering large-
scale emigration, and retarding the emergence of a middle class and a civil society.179
In contrast to Haas, some commentators believe that political change is directly

proportional to economic hardship.180 Sanctions can cause a change in the policy
of the targeted entity either when they directly impact the population and only
indirectly inuence the leaders to change or when they lead to change by signi-
175 Hans-Peter Gasser, Collective Economic Sanctions and International Humanitarian

Law. An Enforcement Measure under the United Nations Charter and the Right of
Civilians to Immunity: an Unavoidable Clash of Policy Goals?, 56 Z.a..R.V. 871, 874
(1996).
176 See Report of the Secretary-General on the work of the Organization, U.N. GAOR,
54th Sess., Supp. No. 1, at para. 124, U.N. Doc. A/54/1 (1999). See also Simon Chester-
man and Batrice Pouligny, The Politics of Sanctions, A Policy Brief (International
Peace Academy, Center for Institutional Studies and Research and the Royal Institute
of International Aairs (2002).
177 See F. Gregory Gause III, Getting It Backward on Iraq, Foreign A., May/June 1999,
at 54, 58 [A-66]; John Mueller & Karl Mueller, Sanctions of Mass Destruction, Foreign
A., May/June 1999, at 43, 48-50.
178 See Richard N. Haas, Sanctioning Madness, Foreign A., Nov./Dec. 1997, at 74, 78-
79.
179 Id. at 79.
180 Larry Minear et al., Toward More Human And Eective Sanctions Management: En-
hancing the Capacity of the United Nations System 4 (1997).
500 Chapter 8
cantly depriving both the population and leaders of goods and services.181 Reis-
man and Stevick refer to the trickle-up theory of deprivation, which contends
that the increased pain of lower social strata will percolate upward, by some re-
markable osmosis, to those who have the capacity to inuence decision.182
Others take a morality- or fairness-based approach. They ask: How can sanc-
tions be justied when they harm mostly civilians?183 Secretary General Boutros-
Ghali wrote that sanctions raise the ethical question of whether suering in-
icted on vulnerable groups in the target country is a legitimate means of exerting
pressure on political leaders whose behavior is unlikely to be aected by the plight
of their subjects.184 Damrosch has suggested normative criteria such as a conict
containment criterion: a collective response to an internal conict should be
designed with a view to containing the theater of violence and mitigating the level
of violence and a dierentiation criterion: that the collective response should,
to the extent possible, target the perpetrators of violence or other wrongdoing
and minimize severe adverse consequences on civilians who are not in a position
to bring about cessation of wrongful conduct.185
A third approach focuses on the legality of sanctions regimes in light of ap-
plicable human rights and humanitarian standards. Gasser argues, for example,
that
[i]t may safely be argued that the [Security] Council may not infringe upon treaty ob-
ligations which protect basic human rights of the individual, in peacetime or during
armed conicts. [T]here are absolutely binding obligations which tie the hands not
only of States individually but also of the Security Council.186
Although [a]ny decision on economic sanctions must ... necessarily take human
rights into account,187 it is rather in the perspective of international humanitarian
law that sanctions have been studied.188 Even where the formal threshold of vio-
lence required for the application of international humanitarian law has not been
reached, humanitarian law terminology has been applied. Adam Winkler thus
speaks, in the context of both Haiti and Iraq, of the principle of noncombatant
immunity and intentional targeting of ordinary civilians as highlighting the most
181 Fausey, supra note 160, at 199.

182 W. Michael Reisman & Douglas L. Stevick, The Applicability of International Law
Standards to United Nations Economic Sanctions Programmes, 9 Eur. J. Intl L. 86, 131
(1998).
183 See Damrosch, supra note 173, at 275-76.
184 Supplement to An Agenda for Peace: Position Paper of the Secretary-General on
the Occasion of the Fiftieth Anniversary of the United Nations, U.N. Doc. A/50/60-
S/1995/1, at para. 70 (1995).
186 Gasser, supra note 175, at 881.
187 Id. at 880.
188 See id. at 873.
troubling moral dilemma of economic sanctions.189 Reisman and Stevick have ar-
gued that sanctions should be subjected to the principles of the law of armed
conict, i.e., the distinction between combatants and non-combatants, and the
imperatives of necessity and proportionality, and should be measured by their
impact on human rights.190
Humanitarian and human rights concerns have aected both normative and
institutional considerations. The United Nations has been struggling to develop
a more coherent, less ad hoc, approach to sanctions. When the Security Council
passes a resolution imposing sanctions under Chapter VII, it delegates imple-
mentation to a sanctions committee. Each regime has its own committee, which
is charged with approving humanitarian exemptions and monitoring implemen-
tation. The United Nations has also established an Inter-Agency Standing Com-
mittee on the Humanitarian Impact of Sanctions, which includes representatives
of United Nations organizations as well as representatives of governmental and
non-governmental organizations active in humanitarian assistance. In a state-
ment to the Security Council, the Standing Committee expressed its concern
with respect to the humanitarian impact of [Security Council sanctions] and [its
belief ] that adverse humanitarian consequences on civilian populations should be
avoided.191 It concluded that [t]he design of sanctions regime should therefore
take fully into account international human rights instruments and humanitarian
standards established by the Geneva Conventions.192
Security Council Resolutions on the Taliban (Afghanistan) refer to violations
of international humanitarian law193 including the Geneva Conventions and
violations of human rights and especially to discrimination against women. Reso-
lution 1267 (1999), which imposed sanctions, was adopted under Chapter VII. It
was triggered by Talibans refusal to turn over Osama bin Laden to the country
where he had been indicted (the United States), or to a country that would return
him to the United States, or to a country where he would be brought to justice.194
The Resolution declared that the failure of the Taliban to respond to the demand
voiced in Resolution 1214 (1998) that it stop providing sanctuary to terrorists and
cooperate with eorts to bring indicted terrorists to justice, constitutes a threat to
international peace and security. Security Council Resolution 1378 (2001) called
on all Afghan forces to refrain from acts of reprisal and to adhere to their obliga-
tions under human rights and humanitarian law. Security Resolution 1381 (2001)
189 See Winkler, supra note 174, at 147.

190 See Reisman & Stevick, supra note 182, at 94-95.
191 Statement dated 29 December 1997 by the Inter-Agency Standing Committee on the
Humanitarian Impact of Sanctions, U.N. Doc. S/1998/147, at para. 1 (1998).
192 Id.
193 See, S.C. Res. 1193, UN SCOR, 3921st mtg. at preamble, para. 14 (1998); S.C. Res. 1214,
U.N. SCOR, 3952nd mtg. at preamble and para. 7 (1998); S.C. Res. 1267, supra note
172, at preamble.
194 See S.C. Res. 1267, supra note 172, at paras. 1-3.
502 Chapter 8
stressed the obligation of all Afghan forces to abide by human rights law, includ-
ing respect for the rights of women, and by international humanitarian law.
The atrocities and violations of the international humanitarian law in Darfur
compelled the Security Council to move from mere condemnation in Resolution
of 1547 (2004), to application by Resolutions 1556 (2004) of Chapter VII and to
sanctions against non-governmental entities and individuals, including the Janja-
weed. Such sanctions included prohibitions on supply of arms and training. This
Resolution also endorsed the deployment of international monitors, including the
protection force envisioned by the African Union, to the Darfur region, continued
the measures established in Resolution 1556, and warned the government of Su-
dan of further measures should it fail to disarm and bring to justice the leaders of
Janjaweed. This warning was repeated in Resolution 1564 (2004). Finally, by Reso-
lution 1591 (2005), the Council applied the sanctions established by Resolution
1556 to all parties to the NDjamena Cease Fire Agreement of April 8, 2004 and
any other belligerents in North, South and West Darfur, thus extending the sanc-
tions to the government of Sudan. Turning from sanctions to criminal responsi-
bility, by Resolution 1593 (2005), the Council referred the situation in Darfur since
July 1, 2002 to the Prosecutor of the International Criminal Court.
a) Humanitarian Exemptions
The increased resort to multilateral sanctions has heightened concerns about the
negative humanitarian consequences of sanctions for civilian populations. Stud-
ies point to increased infant mortality rates, decreased access to clean drinking
water, lack of access to medical care, and malnutrition, as well as to negative social
and political consequences, including the development of a black market in basic
goods, and the increased power of oppressive elites who control access to basic
goods.195
Humanitarian exemptions, which allow essential humanitarian items to pass
through a sanctions program once imposed, reect moral and humanitarian con-
siderations196 and are in keeping with the right of civilian populations to receive
humanitarian assistance as recognized in international humanitarian law.197 Ar-
ticle 23 of the Fourth Geneva Convention requires the free passage of medical
supplies intended only for civilians, and of essential foodstus and clothing
for women and children.198 These exemptions are minimal and hardly protect
all those whom the laws of just war would consider innocent noncombatants.199
195 See Gause III, supra note 177, at 58-59.

196 See Damrosch, supra note 173, at 296.
197 Minear et al., supra note 180, at 37.
198 See Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of
War, August 12, 1949, Part II, art. 23; see also Protocol Additional to the Geneva Con-
vention of 12 August 1949, and Relating to the Protection of Victims of International
Armed Conicts (Protocol I) of 8 June 1977, Section III, Chapter II, arts. 76-77.
199 Winkler, supra note 174, at 151. Meron, Prisoners of War, Civilians and Diplomats in
the Gulf Crisis, 85 AJIL 104(1991).
The practice of the Security Council has, however, been more liberal than the
requirements of Article 23.200 Like Article 54 of Additional Protocol I, prohibiting
starvation as a method of warfare, Article 23 is formally applicable to interna-
tional armed conicts only. These Articles have, however, provided guidelines for
non-international armed conicts as well.
The principle that the people of the targeted country should be protected
from sanctions is reected in the Namibia advisory opinion. The ICJ, in refer-
ring to the sanctions against South Africa, stated that the duty not to recognize
the South African administration of the Namibian territory should not result
in depriving the people of Namibia of any advantage derived from international
co-operation.201 Humanitarian exemptions have become an established feature
of UN sanctions programmes. Concerns about the negative impacts of sanctions
on civilians have grown in recent years to the point that approval of a resolution
imposing sanctions devoid of such pass-through provisions is now unlikely.202
Humanitarian exemptions have been included in Security Council resolutions
in most situations.203 Resolution 253 (1968) which imposed a comprehensive
economic embargo on Southern Rhodesia, for instance, provided for a limited
humanitarian exception for exports to Rhodesia of foodstus and medical, edu-
cational and informational materials.204 However, the case of Rhodesia demon-
strates an inadequate concern for the sanctions impact: despite the comprehen-
sive nature of the sanctions, for the 13 years in which they were in force against
Southern Rhodesia, there was virtually no formal consideration within the United
Nations of the extent to which these sanctions were having a disproportionately
injurious impact on the Rhodesian populace and economy.205 Fortunately, over
time the international community has become more sensitive to the impact of
sanctions on populations.
Sanctions against Iraq adopted in 1991 have been the most comprehensive
ever adopted by the United Nations under Chapter VII.206 The rst measures,
adopted a few days following the invasion of Kuwait, included a trade embargo
and the freezing of assets. The trade embargo excluded supplies intended strictly
for medical purposes, and, in humanitarian circumstances, foodstus.207 The
determination of what constituted humanitarian circumstances was delegated
200 See Gasser, supra note 175, at 890-91.

201 Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971
I.C.J. Rep.16, at para. 125 (June 21).
202 Minear et al., supra note 180, at 37.
203 See Damrosch, supra note 173, at 295-96.
204 See S.C. Res. 253, U.N. SCOR, 1428th mtg.at para 3(d) (May 29, 1968).
205 Reisman & Stevick, supra note 182, at 98.
206 See id. at 101.
207 S.C. Res. 661, supra note 161, at para. 3(c).
504 Chapter 8
to the Sanctions Committee.208 These sanctions not related to human rights

were maintained by Resolution 687 (1991) after Kuwaits liberation. Under this
Resolution, medical and health supplies were exempted, as were foodstus upon
notication to the Sanctions Committee. The Sanctions Committee was also au-
thorized to approve materials and supplies for essential civilian needs under a
no-objection procedure.209
The continuation of sanctions against Iraq has been controversial because of
serious consequences for the Iraqi population. To reduce the impact of sanctions,
the oil-for-food program, initially refused by Iraq, became eective in December
1996.210 While some commentators have advocated the complete lifting of the
sanctions because of their undesirable economic, health and educational eects,
others have argued that the government of Iraq not only exaggerated the conse-
quences of the sanctions, but deliberately worsened their eects on the popula-
tion. Indeed, there is a real dilemma how to treat sanctions when their eects are
intentionally exacerbated by the targeted government. Reisman and Stevick have
dened the issue clearly:
The plight of innocent Iraqi civilians raises one of the thorniest legal dilemmas of any
comprehensive, eective sanctions programme: the proper response of the UN to
the government of a target State that deliberately adopts policies which aggravate the
sanctions impact on the most vulnerable, who are then exploited in public relations
as a way of eroding the legitimacy of the sanctions programme.211
Haas has argued that [s]anctions ... should not necessarily be suspended if the
humanitarian harm is the direct result of cynical government policy, such as
Iraqs, that creates shortages among the general population in order to garner
international sympathy.212 Sanctions against Iraq were declared no longer appli-
cable by Security Council Resolution 1483 (2003) following the establishment of a
governing authority in Iraq.
In the case of Libya, the Security Council imposed diplomatic sanctions, an
arms and military assistance embargo and a ight ban in 1992.213 Further sanc-
tions freezing of assets and prohibition of the sale, supply and maintenance
of oil rening equipment were imposed in 1993.214 The Sanctions Committee
established under Resolution 748 (1992) was authorized [t]o consider and to de-
208 See S.C. Res. 666, U.N. SCOR, 2939th mtg. at para. 1 (Sept. 13, 1990).
209 S.C. Res. 687, U.N. SCOR, 2981st mtg. at para. 20 (Apr. 1991).
210 See Report of the Second Panel Established Pursuant to the Note by the President of
the Security Council of 30 January 1999 (S/1999/100), concerning the Current Hu-
manitarian Situation in Iraq, U.N. Doc. S/1999/356, Annex II, paras. 28-42.
212 Haas, supra note 178, at 82.
213 See S.C. Res. 748, U.N. SCOR, 3063rd mtg. (Mar. 31, 1992).
214 See S.C. Res. 883, supra note 164.
cide expeditiously upon any application by States for the approval of ights on
grounds of signicant humanitarian need ....215 In Security Council debates, the
US representative defended the sanctions as limited and tailored to penalizing
the government of Libya for the oense.216 The sanctions were suspended in April
1998 after the transfer for trial by a Scottish court in the Netherlands of two Liby-
ans for the bombing of the Pan Am airight and are expected to be lifted alto-
gether following the recent settlement of the Lockerbie claims and the admission
of Libyan responsibility.
Sanctions were imposed against the Federal Republic of Yugoslavia (FRY)
from 1992 through 1995. The Security Council rst imposed an arms embargo
against all the parties to the conict in the former Yugoslavia in 1991.217 The Secu-
rity Council later imposed economic sanctions against the FRY in 1992 because of
its responsibility for the conict in Bosnia-Herzegovina. Under Security Council
resolution 757 (1992), supplies intended strictly for medical purposes and food-
stus notied to the Committee ... established pursuant to Resolution 724 (1991)
were exempted.218 Another resolution permitted the approval by the Sanctions
Committee of supplies of non-food, non-medical commodities and products
for essential humanitarian needs.219 The Security Council established additional
sanctions on the FRY and the Bosnian Serb territory in 1993 and later.220 The ef-
fects of the sanctions on the Yugoslav economy and on the population were di-
cult to disentangle from other factors that inuenced the FRYs economic decline.
Reisman and Stevick have argued that
[i]n deciding to remove sanctions against the FRY, the UN pursued a carrot-and-stick
approach that focused on inuencing the behavior of President Milosevic, with scant
concern for the possible disproportionate or discriminatory impact that the sanction
might have had on the FRY populace.221
The Security Council has suspended some sanctions passenger air trac from
Belgrade, passenger ferry service to Bari (Italy) and participation in sporting
events and cultural exchanges.222 These suspensions were regarded as measures
215 S.C. Res. 748, supra note 213, at para. 9 (e). It seems that this provision essentially
contemplated pilgrimages to Mecca.
216 Security Council Debates, U.N. Doc. S/PV.3063 (1992), at 67 (comments of U.S. Rep-
resentative Ambassador Pickering).
218 S.C. Res. 757, supra note 162, at para. 4(c).
219 S.C. Res. 760, U.N. SCOR, 3086th mtg. (June 18, 1992).
220 See S.C. Res. 820, U.N. SCOR, 3200th mtg. (1993); S.C. Res. 942, U.N. SCOR, 3428th
mtg. (1994).
222 See S.C. Res. 943, U.N. SCOR, 3428th mtg. at para. 1 (1994).
506 Chapter 8
which beneted primarily the people of the FRY, not their rulers.223 The Security
Council lifted the sanctions after the signing of the Dayton Peace Accords.
Does the consent of the population to the election of leaders accused of
atrocities aect the need to distinguish between the population and the rulers?224
Lori Damrosch has argued that
[t]o that extent, they are no longer merely innocent bystanders in a conict foisted
on them by a cruel regime, but are at least partly complicit in that cruelty. Under the
circumstances, sanctions have to be continued and probably strengthened, regard-
less of the absolute impact on civilians. Unfortunately, no version of dierentiation
is available to spare those who voted against the incumbents or who were not in a
position to exercise any choice at all (children, for example).225
Nonetheless, applying sanctions against the population as a whole in such situa-

tions without humanitarian exemptions would be at odds with principles of hu-
manitarian law, and in particular with the prohibition of collective punishment.
Humanitarian exemptions may be inadequate, especially for long-term sanc-
tions programs. The UN Committee on Economic, Social and Cultural Rights
thus has observed that
[i]t is commonly assumed that these exemptions ensure basic respect for economic,
social and cultural rights within the targeted country .... However, a number of recent
United Nations and other studies which have analysed the impact of sanctions, have
concluded that these exemptions do not have this eect. Moreover, the exemptions
are very limited in scope. They do not address, for example, the question of access to
primary education, nor do they provide for repairs to infrastructures which are es-
sential to provide clean water, adequate health care etc.226
The administration of humanitarian exemptions, however, has been improv-

ing. In recent years, a number of changes have been introduced by the Security
Council, its various sanctions committees, and the UN Secretariat to make the
management of sanctions more clear, consistent, and transparent.227 Proposals
to frame and improve humanitarian exemptions include: institution-specic ex-
emptions, which would extend blanket exemptions to certain well established in-
ternational humanitarian organizations; item-specic exemptions, which would
exempt certain specied items; and country-specic exemptions, which would
223 See Reisman & Stevick, supra note 182, at 113.

224 See Reisman & Stevick, id. at 119; Damrosch, supra note 173, at 305.
225 See Damrosch, id. at 305.
226 Committee on Economic, Social and Cultural Rights, General Comment No. 8 (1997):
The relationship between economic sanctions and respect for economic, social and
cultural rights, U.N. Doc. E/C.12/1997/8, at paras. 4-5 (1997).
227 Minear et al., supra note 180, at 39; see also Note by the President of the Security
Council: Work of the Sanctions Committee, U.N. Doc. S/1999/92 (1999).
require committees to create specic exemptions lists for each country under
sanctions based on its particular needs and circumstances.228
b) Application of Humanitarian Law to Sanctions Programs

As few treaty provisions pertaining to war-time supplies for the civilian popula-
tion exist, attempts have been made to expand civilian protections through cus-
tomary law. Reisman and Stevick have noted that customary international law has
dened lawful and unlawful primary targets and traced boundaries for collateral
damage, but that such norms have largely been thought irrelevant to non-mili-
tary measures. Economic sanctions may, however, cause greater collateral dam-
age than military strikes.229 They argued that sanctioners must reasonably maxi-
mize discrimination between combatants and non-combatants.230 The need to
discriminate between combatants and non-combatants derives directly from the
recognition that economic sanctions are a tool of war and are therefore guided
by the norms of war. Economic sanctions may only be used when they are capa-
ble of discrimination.231 The political structure of a country will therefore be rel-
evant for designing sanctions regimes. The need for proportionality is compelling
whether sanctions are seen as a tool of war or as an alternative to war.
The ambassadors of the ve permanent members of the Security Council
recognized the concept of side eects of sanctions in a letter to the President of
the Security Council:
[w]hile recognizing the need to maintain the eectiveness of sanctions imposed in

accordance with the Charter, further collective actions in the Security Council within
the context of any future sanctions regime should be directed to minimize unin-
tended adverse side-eects of sanctions on the most vulnerable segments of targeted
countries.232
The Committee on Economic, Social and Cultural Rights likewise noted that
[i]n considering sanctions, it is essential to distinguish between the basic objective of

applying political and economic pressure upon the governing lite of the country to
persuade them to conform to international law, and the collateral iniction of suer-
ing upon the most vulnerable groups within the targeted country. 233
228 See Minear et al., supra note 180, at 45-49.

229 See Reisman & Stevick, supra note 182, at 93-94; see also Haas, supra note 178, at 78-
79.
230 See Reisman & Stevick, id. at 131-40.
231 Id. at 132.
232 Letter Dated 13 April 1995 from the Permanent Representatives of China, France, the
Russian Federation, the United Kingdom of Great Britain and Northern Ireland and
the United States of America to the United Nations Addressed to the President of the
Security Council, U.N. Doc. S/1995/300, Annex (1995).
233 Committee on Economic, Social and Cultural Rights, supra note 226, at para. 4.
508 Chapter 8
Nevertheless, assessments of sanctions by UN bodies have not routinely been

based on the main principles of the law of armed conict, i.e., the distinction
between combatants and non-combatants, and the imperatives of necessity and
proportionality.234 Despite the inclusion of humanitarian exemptions in Security
Councils resolutions, legal issues presented by collateral damage have often been
ignored, or addressed on an ad hoc basis.235
Lori Damrosch has suggested as one guiding element that a program of eco-
nomic sanctions should not diminish the standard of living of a signicant seg-
ment of society below the subsistence level.236 Humanitarian law principles point
in the same direction. Article 54 of Additional Protocol I prohibits the starvation
of civilians as a method of warfare. Gasser extrapolated that [r]ejecting hunger as
a weapon of warfare also means the commitment to undertake relief operations
for persons threatened by starvation, or at least to allow and to facilitate such op-
erations.237 The minimal standard approach of international humanitarian law
to humanitarian assistance is dicult to apply to long-term economic sanctions
regimes.238
Sanctions to be preferred are those which are specically targeted, like those
imposed on Haitian military leaders, restricting their personal ability to travel,
or freezing assets, as in the case of Libya.239 Commentators have argued for more
targeted sanctions against Iraq.240 But doubts about the eectiveness of such
sanctions have been voiced,241 especially when the targeted group can insulate it-
self and its assets.242 Another approach has been to limit sanctions to a geographic
area, as in the case of areas held by UNITA (in Angola)243 and the Bosnian-Serb
controlled areas in the former Yugoslavia,244 but such geographical sanctions may
not oer adequate protection to the non-combatant population.
Rejecting the proportionality approach would emphasize the old State-cen-
tric approach of international law and transform sanctions into something akin to
collective punishment. As Fausey has argued,
[w]ith collective sanctions, the human rights deprived by the sanctions are not solely
the human rights of those violating others human rights.... The question to be an-
234 See Reisman & Stevick, supra note 182, at 94.

235 See id. at 96.
236 Damrosch, supra note 173, at 281-82; see also Gasser, supra note 175, at 900-01.
237 Gasser, id at 882.
238 See id. at 901.
239 See Winkler, supra note 174, 149-50.
240 See Mueller & Mueller, supra note 177, at 52.
242 See Haas, supra note 178, at 79-80.
243 See S.C. Res. 864, supra note 170; S.C. Res. 1127, supra note 170; S.C. Res. 1173, supra
note 170.
swered is whether the human rights being violated by the target leaders are so impor-
tant that they warrant depriving others within the target nation (not responsible for
the initial violation) of their human rights.
....
Holding an entire nation to blame for the acts of a few of its members results in a
disproportionate response by the U.N.245
One thing is clear. Under the inuence of human rights and humanitarian law,
a consensus has emerged that the eects of sanctions on the population of the
targeted State must be taken into account. Thus, the XXVIth International Con-
ference of the Red Cross encouraged both States and the Security Council to con-
sider:
(a) when designing, imposing and reviewing economic sanctions, the possible nega-
tive impact of such sanctions on the humanitarian situation of the civilian popu-
lation of a targeted State and also of third States which may be adversely aected
by such measures,
(b) assessing the short- and long-term consequences of United Nations-approved
economic sanctions on the most vulnerable, and monitoring these consequenc-
es where sanctions have been applied,
(c) providing, including when subject to economic sanctions, and to the extent of
their available resources, relief for the most vulnerable groups and the victims
of humanitarian emergencies in their territories.246
IV. Multilateral Intervention

a) Humanitarian Assistance
Humanitarian assistance is usually provided by the United Nations with the con-
sent of the receiving State in situations ranging from environmental and industri-
al disasters to armed conicts. Whether such assistance can be provided without
State consent continues to present a major controversy. When humanitarian as-
sistance is imposed on a recalcitrant State under a Chapter VII resolution justify-
ing the action on grounds of threat to international peace and security, it tends to
blend with forcible humanitarian intervention.
In 1990, the General Assembly adopted a resolution on humanitarian assis-
tance to victims of natural disasters and similar emergency situations. The resolu-
tion included language respectful of State sovereignty in which it envisaged the
establishment of humanitarian corridors.247
245 Fausey, supra note 160, at 212.

246 XXVIth International Conference of the Red Cross, Resolution IV, Section F, para. 1,
reprinted in Intl Rev. Red Cross, Jan.-Feb. 1996, at 73-74. See also XXVIIth Interna-
tional Conference of the Red Cross, Plan of Action for the Years 2000-2003, point 2,
para. 10, reprinted in Intl Rev. Red Cross, Dec. 1999, at 880-85.
247 G.A. Res. 100, 45th Sess., 68th plen. mtg. at para. 6 (1990).
510 Chapter 8
The 1991 debates in the General Assembly on humanitarian assistance re-

vealed a continuing controversy, with views ranging from outright opposition,
through support of collective action, to advocacy of unilateral action. The resolu-
tion adopted by the General Assembly on emergency humanitarian assistance
emphasized the need for State consent:
The sovereignty, territorial integrity and national unity of States must be fully re-
spected in accordance with the Charter of the United Nations. In this context, hu-
manitarian assistance should be provided with the consent of the aected country
and in principle on the basis of an appeal by the aected country.248
International treaties do not as yet impose on a State unable to cope with an emer-
gency an obligation to accept humanitarian assistance. Such an obligation can
and should sometimes be imposed by a Security Council resolution adopted
under Chapter VII of the UN Charter. At the very least, respect for the human
rights of the population requires that the State concerned should not refuse as-
sistance without the strongest possible reasons.249
b) Interventions under Security Council Resolutions

Except for legitimate self-defense under Article 51 of the Charter, forcible inter-
ventions, including for humanitarian reasons, must be authorized by Chapter VII
resolutions. It is such resolutions that provide forcible interventions with the nec-
essary legality. Security Council resolutions authorizing humanitarian interven-
tion to put an end to atrocities are only a part of the increasing involvement of the
Security Council in human rights issues. They suggest that a new relationship
is being created between the enforcement of international law, including human
rights law, and the use of military force.250
The competence of the Security Council to address human rights has been
contested on the ground that it encroaches on the competence of other UN or-
gans, notably the General Assembly and the Commission on Human Rights. The
Final Declaration of a 1992 Summit Meeting of the Non-Aligned Movement thus
emphasized
the importance of ensuring that the role of the Security Council conforms to its man-
date as dened in the United Nations Charter, so that there is no encroachment on
248 G.A. Res. 182, 46th Sess., 78th plen. mtg., Annex, at para. 3 (1991)(emphasis added).
249 See Laurence Boisson de Chazournes & Richard Desgagn, Le respect des droits de
lhomme et la protection de lenvironnement lpreuve des catrastrophes cologiques:
Une alliance ncessaire, 12 Revue de droit de lULB 29, 42-45 (1995)[A-89]; Dietrich
Schindler, The Protection of Human Rights and Humanitarian law in Case of Disinte-
gration of States, 52 Revue gyptienne de droit intl 1, 22-23 (1996).
250 See David A. Westbrook, Law Through War, 48 Bualo L. Rev. 299, 317-323 (2000).
the jurisdiction and prerogatives of the General Assembly and its subsidiary bod-
ies.251
However the majority of Security Council believes, correctly in my view, that

the Council may deal with human rights issues when appropriate.252 A statement
issued by the Council at a meeting held at the level of Heads of States in 1992
provides clear evidence of the trend to take human rights into consideration in
the work of the Security Council.253 Several members made reference to human
rights as an issue of concern to the international community,254 while others
stressed the need to strike a balance between the rights of States, as enshrined in
the Charter, and the rights of individuals, as enshrined in the Universal Declara-
tion on Human Rights.255
The authority of the Security Council to order measures necessary to allevi-
ate humanitarian crises such as those witnessed in Somalia, Rwanda, and Haiti
is implicit in the broad authority of the Security Council to deal with situations
involving threats to international peace and security.256 It is through this author-
ity, and the increasing readiness of the Council to regard non-international armed
conicts as threats to international peace and security, that the Council has au-
thorized interventions in support of human rights and humanitarian norms. The
rst major Security Council Resolution of this kind, Resolution 688 (1991) relat-
ing to the protection of the Kurdish population in northern Iraq, identied the
ow of refugees and cross-border incursions as threats to international peace and
security.257 The Council may thus tend to view its common law on intervention
as a gradual expansion of its competence with regard to trans-frontier conicts
based on Chapter VII. Nevertheless, the Resolution includes several references to
human rights and humanitarian issues. It [c]ondemn[ed] the repression of the
Iraqi civilian population in many parts of Iraq, including most recently in Kurdish
populated areas, and [d]emand[ed] that Iraq ... immediately end this repression,
although without mandating any implementation measures.258 It also [i]nsist[ed]
that Iraq allow immediate access by international humanitarian organizations to
251 Non Aligned Movement Doc. NAC 10/Doc.1/Rev.1, para. 31 (1992), quoted in Philip
Alston, The Security Council and Human Rights: Lessons to be Learned from the Iraq-
Kuwait Crisis and its Aftermath, 13 Austl. Y.B. Intl L. 107, 137 (1992).
252 See Alston, supra note 251, at 136-37.
253 Note by the President of the Security Council, U.N. Doc. S/23500, at 2 (1992).
254 Van Boven, supra note 70, at 12; see also B.G. Ramcharan, The Security Council: Ma-
turing of International Protection of Human Rights, 48 Intl Commn of Jurists Rev. 24,
27 (1992).
255 Statement by Zimbabwe, U.N. Doc. S/.3046, quoted in van Boven, supra note 70, at
12.
256 Donoho, supra note 108, at 351 (footnotes omitted).
257 S.C. Res. 688, U.N. SCOR, 2982nd mtg. (1991).
258 Id. at para. 2.
512 Chapter 8
all those in need of assistance in all parts of Iraq259 and [d]emand[ed] that Iraq
cooperate with the Secretary-General humanitarian relief eorts.260 A subse-
quent memorandum between the Secretary-General and Iraq provided for exten-
sive arrangements for the provision of humanitarian assistance probably without
precedent in such a situation.261 As such, resolution 688 provides the basis for a
signicant breakthrough in terms of securing access for humanitarian organiza-
tions.262 Nevertheless, because the Council could have been more open in refer-
ring to human rights violations in Iraq as a principal cause of the intervention,
Philip Alston considered the glass as half empty.263
Over time, internal conicts became the most important challenges for the
Security Council. The situations in Somalia, Liberia, Rwanda and Haiti have in-
creasingly driven the Security Council to determine that such internal conditions
as armed conict, strife and famine can constitute threats to international peace
and security. Trans-boundary eects such as ows of refugees were also invoked
by some members of the Council to justify the internationalization of these inter-
nal situations, but the focus of the debates and of the resolutions was the internal
situation,264 humanitarian needs and, increasingly, human rights. Refugee ows
have not historically been viewed by the international community as a sucient
threat to peace to justify mandatory collective security measures.265 The more
recent trend to consider refugee ows as a major factor justifying the application
of Chapter VII represents in itself a signicant achievement for human rights, one
related to the growing recognition of the impact of internal conicts and internal
atrocities.
The ICTY Appeals Chamber endorsed the more expansive Security Council
practice:
[T]he practice of the Security Council is rich with cases of civil war or internal strife
which it classied as a threat to the peace and dealt with under Chapter VII, with
the encouragement or even at the behest of the General Assembly, such as the Congo
crisis at the beginning of the 1960s and, more recently, Liberia and Somalia. It can
thus be said that there is a common understanding, manifested by the subsequent
practice of the membership of the United Nations at large, that the threat to the
peace of Article 39 may include, as one of its species, internal armed conicts.266
259 Id. at para. 3.

260 Id. at para. 7.
261 Alston, supra note 251, at 150.
262 Id.
263 Id. at 144.
264 See Sean D. Murphy, Humanitarian Intervention: The United Nations in an Evolving
World Order 285-87 (1996).
265 Donoho, supra note 108, at 363.
266 Prosecutor v. Tadi, ICTY (Appeals Chamber), Case No. IT-94-1-AR72, Decision on
the Defence Motion For Interlocutory Appeal on Jurisdiction, para. 30 (Oct. 2, 1995).
Distinctions between national and international crises are not clear-cut. As the
former UN Secretary-General Prez de Cuellar noted in 1990, [t]oday, in a grow-
ing number of cases, threats to national and international security are no longer
as neatly separable as they were before. In not a few countries, civil strife takes a
heavy toll on human life and has repercussions beyond national borders.267
In the statement issued at its meeting held at the level of Heads of States
in 1992, the Security Council recognized that [t]he absence of war and military
conicts amongst States does not in itself ensure international peace an security.
The non-military sources of instability in the economic, social, and humanitarian
and ecological eld become threats to peace and security.268 I agree with Philip
Alston that [t]his constitutes a clear recognition that purely humanitarian issues,
including grave violations of human rights, can amount to threats to international
peace and security, thus warranting (and being sucient to trigger) appropriate
action by the Security Council.269 The cumulative eect of actions during the
Gulf War, the turmoil in Haiti, and the conicts in Yugoslavia and Somalia have
changed some of the long accepted ground rules in terms of the range of mea-
sures that might reasonably be contemplated by the international community in
order to restore respect for human rights.270
Nevertheless, the selectivity, the case-by-case approach, and the lack of con-
sistent criteria for Security Council action have been criticized, often correctly.
Indeed, several of the relevant Security Council resolutions described the situ-
ations in Somalia or in Haiti as unique and exceptional.271 The intervention in
Haiti was particularly sensitive because it involved action to support democracy,
rather than to stop atrocities. One commentator noted:
On the one hand, the Security Councils imposition of economic sanctions and au-
thorization of force against the coup ostensibly reects the recognition that, at least
under certain conditions, disruption of democracy may constitute a threat to interna-
tional peace justifying collective enforcement action. On the other hand, the circum-
stances surrounding Haiti, particularly the role of U.S. political interests and practical
considerations, may ultimately render the U.N.s actions in Haiti sui generis. The U.N.s
failure to act in on-going situations reinforces this outlook.272
Successive UN Secretary Generals, as well as States participating in Security

Council debates, have suggested that guidelines should be adopted by the Secu-
267 Report of the Secretary-General on the Work of the Organization, U.N. Doc. A/45/1,
section IV (1990), quoted in van Boven, supra note 70, at 23.
268 Note by the President of the Security Council, supra note 253, at 3 (1992).
269 Alston, supra note 251, at 161.
270 Id. at 108.
271 See S.C. Res. 841, U.N. SCOR, 3237th mtg. (1993); S.C. Res. 940, U.N. SCOR, 3413th
mtg. (1994).
272 Donoho, supra note 108, at 331-32 (footnotes omitted).
514 Chapter 8
rity Council in order to identify those internal situations that warrant interna-
tional action. Zimbabwe proposed that general principles and guidelines that
would guide decisions on when a domestic situation warrants international ac-
tion, either by the Security Council or by regional organizations273 be drafted.
In debates on Resolution 688 (1991), France suggested that interventions would
be legitimate when violations of human rights assume the dimension of a crime
against humanity.274 Whether it would be wise to constrain future action by the
Security Council on the basis of generalized criteria interpreting the Charter is
not clear, however.
A variety of reasons have been advanced to explain the readiness of the
members of the international coalition to use force against Iraq in 1991. Critics
alluded to ensuring access to oil supplies and maintaining Western interests in
the Middle East following the invasion of Kuwait.275 Allies emphasized the pro-
tection of human rights of the people of Kuwait and the desirability of freeing
the people of Iraq from the tyranny and oppression under which they had been
forced to live for so long.276 The General Assembly itself condemned Iraq for its
actions in violation of the Charter of the United Nations, the International Cov-
enants on Human Rights, [and] other relevant human rights instruments.277 The
Security Council lamented the loss of human life and material destruction,278
and expressed its concerns for the safety and well being of third State nationals
in Iraq and Kuwait.279 It also referred to the need for humanitarian assistance
for the civilian populations of Iraq and Kuwait,280 and for respect of the Geneva
Conventions.281 Human rights issues were invoked in Security Council resolu-
tions concerning the Iraqi repression of the Shiites in the south and the Kurdish
population in the north.
The Security Council was seized of the situation in Somalia only in 1992,
although the civil war had been going on since 1988. In January 1992, the Secu-
rity Council directed the Secretary-General to increase UN humanitarian assis-
273 U.N. Doc. S/PV.3046, at 131 (1992) (comments of Zimbabwe representative Mr.
Shamuyarira), quoted in Alston, supra note 251, at 167-68 [A-86]; see also Richard
B. Lillich, The Role of the UN Security Council in Protecting Human Rights in Crisis
Situations: UN Humanitarian Intervention in the Post-Cold War World, 3 Tul. J. Intl
& Comp. L. 1, 13-14 (1994).
274 U.N. Doc. S/PV.2982, at 53 (1992).
275 See Alston, supra note 251, at 110-11.
276 Id.
277 G.A. Res. 170, U.N. GAOR, 45 Sess., 69th plen. mtg. at para.1 (1990).
278 S.C. Res. 661, supra note 161, at preamble.
279 S.C. Res. 664, U.N. SCOR, 2937th mtg. at preamble (1990); see also S.C. Res. 667,
U.N. SCOR, 2940th mtg. at preamble (1990); S.C. Res. 674, U.N. SCOR, 2951st mtg.
at preamble (1990).
280 See S.C. Res. 666, supra note 208, at preamble.
281 See id.; S.C. Res. 674, supra note 279, at preamble.
tance to Somalia and imposed an arms embargo under Chapter VII.282 After the
conclusion of a cease-re, the Security Council established an Observer Mission
(ONUSOM), with the task of assisting in the delivery of humanitarian assistance.
The Secretary-General acknowledged that this exercise represent[ed] an innova-
tion.283 In the Security Council debates and Secretary-General reports, the central
theme was the dire situation of the Somali population, but external factors such
as the ow of refugees to neighboring countries, were also recognized.284 Despite
some agreements between the Somali factions and the UN for the deployment of
an armed UN force, the situation deteriorated. In November 1992, the Secretary-
General reported that Somalia had become a country without a government or
other political authorities with whom the basis for humanitarian activities could
be negotiated, and recommended that the Council act under Chapter VII.285
Resolution 794 (1992) authorized the intervention of a multinational force led by
the United States (UNITAF) to establish a secure environment for humanitarian
relief operations.286 To justify this intervention, which was designed to ensure
humanitarian assistance, while emphasizing the unique nature of the situation in
Somalia, Resolution 794 stated that the human tragedy and obstacles to the dis-
tribution of humanitarian assistance constituted a threat to international peace
and security.287 The Resolution did not mention such internationalizing factors
as refugee ows. Sean Murphy noted that despite the references to international
peace and security, [t]he sense of the [Security Council] debate over Resolution
794 was that the domestic situation alone warranted action.288 President George
Bush explained US involvement as justied also by the need to protect the safety
of Americans and others engaged in relief operations.289
Several members of the Security Council, worried that the operation in So-
malia would constitute a precedent for UN intervention without the consent of
the State concerned, sought to emphasize the specic Somali circumstances, i.e.
the absence of central governmental authority,290 or the situation of a failed or
a disintegrating State. Indeed, the operation in Somalia presented a unique char-
acter because no governmental authority existed that could have consented to

283 The Situation in Somalia: Report of the Secretary-General, U.N. Doc. S/23693 & Corr.
1 (1992), para. 74, quoted in Murphy, supra note 264, at 220.
284 See Murphy, supra note 264, at 220-21.
285 See Letter dated 29 November 1992 from the Secretary-General to the President of
the Security-Council presenting ve options for the Security Councils consideration,
U.N. Doc. S/24868 (1992), reprinted in The United Nations and Somalia: 1992-1996,
at 209 (1996).
286 S.C. Res. 794, U.N. SCOR 3039th mtg. at para. 7 (Dec. 3, 1992).
287 Id. at preamble.
288 Murphy, supra note 264, at 240; see also Lillich, supra note 273, at 7-8.
289 See Letter to Congressional Leaders on the Situation in Somalia, 28 Weekly Comp.
Pres. Doc. 2338, 2338-39 (Dec. 10, 1992), quoted in Murphy, supra note 264, at 237.
290 See Murphy, supra note 264, at 229.
516 Chapter 8
the intervention. Dierent factions controlled dierent areas of the country with
varying degrees of eectiveness. Sean Murphy suggested a useful generalized
principle:
When no authorities exist capable of governing a country, the values of political in-
dependence and sovereignty normally at stake during an intervention would seem to
be minimized. In the case of Somalia, the overwhelming humanitarian values, when
weighed against the values of political independence and sovereignty, were found
compelling and led to the authorization of foreign forces to intervene. Had there been
authorities fully in control of Somalia, it is not clear that the international community
would have viewed the decision to intervene in the same way.291
The attempt to disarm the Somali factions led to direct confrontation between
those factions and UN forces, and eventually undermined States support for the
mission, leading to the termination of the mission in February 1994,292 and of the
UN operation as a whole in February 1995.293
The French initiative for a peace-keeping operation in Rwanda was autho-
rized by the Security Council,294 which determined that the magnitude of the
humanitarian crisis in Rwanda constituted a threat to peace and security in the
region. In an earlier resolution, the Council had already referred to the continu-
ation of the situation in Rwanda as a threat to peace and security in the region.295
As in the case of Somalia, emphasis was put on the internal situation rather than
on external consequences. The French intervention authorized a temporary op-
eration under national command and control aimed at contributing, in an impar-
tial way, to the security and protection of displaced persons, refugees and civil-
ians at risk in Rwanda ... .296 Whatever other considerations may have motivated
the French initiative,297 the primary objective was humanitarian.298 This operation
was accepted by the then recognized Hutu Government, which, at the time, had a
seat in the Security Council and approved of the resolution. The French interven-
tion found little support in the international community, however, as neither the
United States nor other European States oered to provide forces.299
Military intervention in Haiti was considered following the failure of the
Haitian military to abide by the Governors Island Agreement. The use of force
291 Id. at 238.

292 See S.C. Res. 897, U.N. SCOR, 3334th mtg (1994).
293 See S.C. Res. 954, U.N. SCOR, 3447th mtg. (1994).
294 See S.C. Res. 929, U.N. SCOR, 3392nd mtg. (1994).
295 See S.C. Res. 918, supra note 167, at preamble.
296 S.C. Res. 929, supra note 294, at para 2.
298 See Statement by France in the Security Council, U.N. Doc. S/PV.3392, at 5-6 (1994);
Murphy, supra note 264, at 257.
was authorized by Security Council Resolution 940 (1994).300 It was the rst time
that enforcement action was undertaken to restore democracy in an independent
State (although, arguably, precedents can be found in sanctions against Rhodesia
and South Africa).301 The request of the exiled President of Haiti to the Security
Council to take prompt and decisive action302 was an important consideration
in the adoption of the authorizing resolution. In contrast to Bosnia, Somalia, and
Rwanda, humanitarian and human rights concerns did not occupy a central place
in the debates on the Haitian situation. The overriding concern of the interna-
tional community ... seemed to turn more on the fact that a democratically elect-
ed leader had been ousted and replaced by a militant group bent on consolidating
and maintaining their power.303 Resolution 940 thus authorized
Member States to form a multinational force under unied command and control
and, in this framework, to use all necessary means to facilitatethe prompt return of
the legitimately elected President and the restoration of the legitimate authorities of
the Government of Haiti.304
The threat to peace and security identied by the Council in the resolution re-im-
posing sanctions consisted in the situation created by the failure of the military
authorities in Haiti to fulll their obligations under the Governors Island Agree-
ment and to comply with relevant Security Council resolutions ... .305 In reality,
however, the desire of the United States to avoid a large scale refugee ow to the
United States was critical in promoting an agreement on a Chapter VII resolu-
tion.
c) Other Multilateral Interventions

Historically, so-called humanitarian interventions by States for the purpose of
protecting their nationals from imminent danger have been treated as species of
self-defense. Intervening States, reluctant to invoke a doctrine of humanitarian
intervention, have relied on the right of self-defense.306 Where the international
community accepted the bona des of the intervening government, it was ready
to regard such limited and very temporary interventions, on condition that they
conformed to the principle of proportionality, as in the case of the Israeli inter-
vention in Uganda, as not amounting to a violation of Article 2(4) of the UN
Charter, which prohibits the threat or use of force against the territorial integrity

301 See Donoho, supra note 108, at 347, 356 [A-38]; Lillich, supra note 273, at 4-5.
302 Donoho, supra note 108, at 347.
304 S.C. Res. 940, supra note 271, at para. 4.
306 Bartram S. Brown, Humanitarian Intervention at a Crossroads, 41 William and Mary
L. Rev. 1683, 1703 (2000).
518 Chapter 8
or political independence of any State. Article 2(4) together with Article 51 on the
inherent right of individual or collective self-defense against armed attack consti-
tute the ground rules for the use of force by members of the United Nations. The
Security Council may, in resolutions adopted under Chapter VII of the Charter,
authorize the use of force to maintain or restore international peace and security.
Enforcement action by regional agencies is prohibited by Article 53, unless au-
thorized by the Security Council, which has the monopoly on the authorization
of the use of force. Nevertheless, since the 1990s, a number of interventions have
been carried out without prior Security Council authorization by regional forces
acting outside of the United Nations to put an end to atrocities. These interven-
tions did not trigger international condemnation but rather varying degrees of
sympathy or acquiescence.
Following the break out of ghting in Liberia between the Armed Forces of
Liberia (AFL) and Charles Taylors National Patriotic Front (NPFL) in 1989, forces
from ve West African countries were deployed in 1990 (Cease-Fire Monitoring
Group (ECOMOG)) under the aegis of the ECOWAS for the purpose of keeping
the peace, restoring law and order and ensuring that the cease-re is respected.307
There was no formal legal basis for ECOWAS intervention, which was opposed
by the then President of the country (Samuel Doe) and by Charles Taylors NPFL.
The intervention was not limited to the rescue of foreign nationals nor the es-
tablishment of buer zones with neighboring States,308 but involved the estab-
lishment of a zone around the capital to allow humanitarian relief and to bring
about a cease-re, thus reecting a concern for the suering of Liberian people.
It was only ve months later, in January 1992, with the conclusion of a cease-re,
that the Security Council indirectly endorsed the intervention, commending the
eorts made by the ECOWAS Heads of State and Government to promote peace
and normalcy in Liberia.309 And it was only in November of that year, after the
breakdown of the cease-re, that the Council declared that the deterioration of
the situation in Liberia constitute[d] a threat to international peace and security,
particularly in West Africa and imposed an arms embargo.310 Although these de-
cisions by the Council did not follow the Charter requirements for authorization
of enforcement action by regional organizations, the fact is, as Murphy suggests,
that the intervention was largely supported by the international community.311
The Report of the 10th Commission of the Institute of International Law on
The Authority under International Law of International Organizations other
than the United Nations to Use Force, prepared by Thomas Franck and noted
with appreciation by the Institute on August 27, 2003, described the above Se-
307 Murphy, supra note 264, at 150 (quoting ECOWAS, Standing Mediation Committee,
Final Communiqu of the First Session, Aug. 7, 1990, para.11).
308 Id. at 160.
309 Note by the President of the Security Council, U.N. Doc. S/22133 (1991).
curity Council decisions as a precedent for approving after the fact that which
when initiated was in violation of the letter of the Charter (paragraph 33). On
the basis of the Liberia precedent and the treatment by the Security Council of
the Kosovo intervention (1999), the Report predicts that some tolerance (prin-
ciples of mitigation or exculpation) is more likely to occur with regard to use of
force by international organizations other than the United Nations than with uni-
lateral use of force by individual States (paragraph 42). The Report suggests that it
is probable that the customary practice of Charter interpretation by the principal
organs will explore a pragmatic middle ground in which subsidiary regional, mu-
tual defence and functional organizations of states will play a role in addressing,
even by recourse to force as a last resort, situations that would otherwise result
in unbearable tragedy (paragraph 52). In cases of extreme necessity, the Report
suggests, recourse to force by an organization of States should if possible at its
inception but if necessary at its conclusion, be approved, incorporated or at least
absolved by the Council or the Assembly (paragraph 54), presumably under the
Uniting for Peace Resolution.
The most recent intervention in Liberia, involving the departure of President
Charles Taylor, and the establishment of a Multinational Force in Liberia, was
authorized and given a dened mandate by Security Council Resolution 1497 of
August 1, 2003.
The Constitutive Act of the African Union, adopted at Lom (July 11, 2001)
recognizes the right of the Union to intervene in the territory of a member State
pursuant to a decision by the Assembly in respect of war crimes, genocide and
crimes against humanity (Article 4(h)). Like all decisions of the Assembly on non-
procedural matters, such a decision must be one by consensus, or failing consen-
sus, by a two-thirds majority of the member States of the Union (Article 7). The
Constitutive Act may validate regional intervention against atrocities, while limit-
ing action by groups such as ECOWAS without Union authorization. Of course,
this development, while of major signicance, does not resolve the problem of
tension with Article 53 of the UN Charter.
Soon after Security Council Resolution 688 (1991), the United States
launched Operation Provide Comfort, intended to provide humanitarian aid to
refugees outside Iraq and carry out air drops into refugee areas in northern Iraq.
The United States warned the Iraqi authorities not to interfere with the delivery of
humanitarian assistance and declared a no-y zone, prohibiting all Iraqi ights
north of the 36th parallel.312 Safe havens were later established in the northern
part of Iraq. Another no-y zone was established south of the 32nd parallel to
protect the Shiite population in Southern Iraq. The establishment of the zones
was resisted by Iraq,313 requiring the continuation of enforcement by allied air
312 See id. at 172.

313 See id. at 174, 175, 184.
520 Chapter 8
forces. The acknowledged objective of these measures was to assist the civilian
populations, but helping insurgencies may have been a factor.314
The United States and its allies grounded the establishment of the safety
zones on Security Council Resolution 688,315 but this position is controversial.
Resolution 688 does not explicitly mention the establishment of no-y zones nor
does it authorize the use of force to enforce such zones.316 The United Kingdom
noted the trend towards a broader principle grounding humanitarian interven-
tion on factors which go beyond the protection of ones own nationals.317 This
contrasts with the earlier UK position that the protection of human rights does
not justify intervention involving the use of force.318 Only a few years earlier, the
British Foreign Oce had stated that [i]n essence ... the case against making hu-
manitarian intervention an exception to the principle of non-intervention is that
its doubtful benets would be heavily outweighed by its costs in terms of respect
for international law.319
The most massive case of forcible intervention by multilateral organization
acting outside the United Nations was the NATO action against FRY, or the Koso-
vo war of 1999. NATO justied its use of force on humanitarian grounds,320 the
saving of Moslem Kosovars from Serbian atrocities. That intervention outside the
framework of the UN Charter reopened the debate on the balance between the
protection of State sovereignty and the prohibition of the use of force on the one
hand, and the protection of human rights, on the other.321
Denouncing the intervention, Chinas Minister of Foreign Aairs stated the
classic case based on sovereignty and non-interference:
A regional military organization, in the name of humanitarianism and human rights,

bypassed the United Nations to take large-scale military actions against a sovereign
State, thus creating an ominous precedent in international relations. This act was
314 See id. at 182-83.

315 See Backgrounder, 18 April 1991 (USIS, Canberra), at 1, quoted in Alston, supra note
251, at 126; Murphy, supra note 264, at 187-88; see also Oscar Schachter, United Na-
tions in the Gulf Conict, 85 AJIL 452, 469 (1991).
316 See Peter Hilpold, Humanitarian Intervention: Is There a Need for a Legal Appraisal?,
12 Eur. J. Intl L. 437, 445 (2001).
317 The Expanding Role of the United Nations and its Implication for U.K. Policy: Min-
utes Evidence, Hearing Before the Foreign Aairs Comm. of the House of Commons,
Sess. 1992-1993, Dec. 2, 1992, at 92 (Statement of Anthony Aust, Legal Counsellor,
U.K. Foreign and Commonwealth Oce), quoted in Murphy, supra note 264, at 189.
318 See Gray, supra note 159, at 26-27.
319 United Kingdom Foreign Policy Document No. 148 (1984), reprinted in 57 B.Y.B.I.L.
614, 619 (1986).
320 See Antonio Cassese, Ex iniura ius oritur: Are We Moving towards International Le-
gitimation of Forcible Humanitarian Countermeasures in the World Community?, 10
E.J.I.L.23.
321 Brown, supra note 306, at 1687-1690; Gray, supra note 159, at 24-26.
a violation of the United Nations Charter and other universally recognized norms
governing international relations.
...
[T]he issue of human rights is, in essence, the internal aair of a given country, and
should be addressed mainly by the Government of that country through its own ef-
forts ... . Sovereign equality, mutual respect for State sovereignty and non-interfer-
ence in the internal aairs of others are the basic principles governing international
relations today. In spite of the major changes in the post-cold-war international situ-
ation, these principles are by no means out of date.322
The opposite position was voiced by Germanys Minister of Foreign Aairs:
The international community could no longer tolerate a State waging war against its
own people and using terror and expulsion as a political instrument. No Government
has the right to use the cover of the principle of State sovereignty to violate human
rights. Non-interference in internal aairs must no longer be misused as a shield for
dictators and murderers.323
While acknowledging the inability of the Council to agree on an intervention,

and the clash between State sovereignty and the imperative of acting to stop gross
violations of human rights, the UN Secretary-General warned that enforcement
actions without Security Council authorization threaten the very core of the in-
ternational security system founded on the Charter of the United Nations, add-
ing that only the Charter provides a universally accepted legal basis for the use of
force.324 The intervention thus involved a collision between two basic principles
of the UN Charter, sovereign equality and the protection of human rights.325
Most commentators regarded the intervention as a violation of the Charter
provisions on the use of force, but diered on the gravity and the acceptability
of the violation.326 Supporters argued that the departure from the Charter was
necessary and acceptable, especially in light of the multilateral character of the
322 U.N. GAOR, 54th Sess., 8th plen. mtg. at 15, 16, U.N. Doc. A/54/PV.8 (1999).
323 Id. at 11 (1999).
Sess., Supp. No. 1, at para. 66, U.N. Doc. A/54/1 (1999).
325 See Hilpold, supra note 316, at 452; Marcelo G. Kohen, Lemploi de la force et la crise
du Kosovo: Vers un nouvel dsordre juridique international, 32 R.B.D.I. 122, 123-124
(1999).
326 See generally Editorial Comments: NATOs Kosovo Intervention, 93 AJIL 831 (1999);
Bruno Simma, NATO, the UN and Use of Force: Legal Aspects, 10 EJIL 1 (1999); Kohen,
supra note 325, at 132. See also Independent International Commission on Kosovo,
The Kosovo Report: conict, international response, lessons learned (OUP, 2000), at
288-289.
522 Chapter 8
intervention.327 They focused on the gross violations of human rights and hu-
manitarian law committed by the FRY, such as large-scale killings of civilians,
ethnic cleansing, rapes and willful destruction of property. The Secretary-Gen-
eral of NATO and ocials of States participating in the operations invoked hu-
manitarian justications.328 The British government stated in January 1999 before
the House of Commons Select Committee on Foreign Aairs that international
law provided the legal basis warranting intervention in view of the humanitarian
crisis in Kosovo. Professor Greenwood explained:
International law has evolved to the point where it no longer regards the way in which
a State treats its own citizens as an internal matter. The development of human rights
law, the long campaign against apartheid in South Africa and the decisions to give
the criminal tribunals for Yugoslavia and Rwanda and the new International Crimi-
nal Court jurisdiction over international crimes committed in civil wars, mean that
Kosovo is an international concern.
International law is not static. In recent years, States have come, perhaps reluc-
tantly, to accept that there is a right of humanitarian intervention when a government
or the factions in a civil war create a human tragedy of such magnitude that it
constitutes a threat to international peace. In such a case, if the Security Council does
not take military action, then other States have a right to do so.329
More reluctant to acknowledge humanitarian concerns as a rationale for the in-

tervention, the United States refrained from endorsing a legal rationale for the
intervention. Instead, it relied on Security Council resolutions.330
While adhering to the view that the Kosovo intervention was illegal, Antonio
Cassese opined, on the basis of the increasing readiness of States to intervene
against internal atrocities with the acquiescence of others, that a customary ex-
ception to the prohibition on the use of force may eventually emerge,331 but has
not yet materialized.332 When a draft resolution to condemn the intervention was
proposed in the Security Council, it was rejected by a vote of twelve to three
(China, Namibia and the Russian Federation), thus providing some international
327 See Louis Henkin, Kosovo and the Law of Humanitarian Intervention, 93 AJIL 831,
831-32 (1999); Ruth Wedgwood, NATOs Campaign in Yugoslavia, 93 AJIL 835, 839
(1999); Andrew Field, The Legality of Humanitarian Intervention and the Use of Force
in the Absence of United Nations Authority, 26 Monash Univ. L. Rev. 339, 358 (2000).
328 Brown, supra note 306, at 1687-1690; Kohen, supra note 325, at 134-136.
329 Christopher Greenwood, Yes, but is the War Legal?, The Observer (28 March 1999).
330 See Gray, supra note 159, at 33-35.
331 See Cassese, supra note 320; see also Jonathan I. Charney, Anticipatory Humanitar-
ian Intervention in Kosovo, 93 AJIL 841, 843-44 (1999); Wedgwood, supra note 327, at
835
332 See Antonio Cassese, A Follow-up: Humanitarian Countermeasures and Opinio Ne-
cessitatis, 10 E.J.I.L. 791, 796 (1999).
validation for the intervention.333 Louis Henkin suggested that by accepting the
settlement imposed on the FRY, the Security Council had in fact ratied the inter-
vention.334 Given the criticisms of the intervention by several States, it is doubtful,
however, that a customary rule justifying such an intervention has been accept-
ed.335 But the fact is that relatively few States condemned the Kosovo intervention
as contrary to the UN Charter.336
The debate on the legality of intervention without the States consent and
in the absence of Security Council authorization continues unabated. The Sec-
retary-Generals speech before the General Assembly in 1999 on humanitarian
intervention, where he recognized that a developing international norm in favor
of intervention to protect civilians from wholesale slaughter will no doubt con-
tinue to pose profound challenges to the international community, was criticized
by many developing States as an erosion of the principle of sovereignty. Thus, the
President of Algeria, for example, stated,
[W]e remain extremely sensitive to any undermining of our sovereignty not only be-
cause sovereignty is our nal defense against the rules of an unequal world, but be-
cause we are not taking part in the decision-making process by the Security Council
nor in the monitoring of their intervention.337
In the Nicaragua case, the ICJ rejected protection of human rights as a legal jus-
tication for the use of force:
While the USA might form its own appraisal of the situation of human rights in Nica-
ragua, the use of force could not be the appropriate method the monitor or ensure
such respect. With regards to steps actually taken, the protection of human rights, a
strictly humanitarian objective, cannot be compatible with the mining of ports, the
destruction of oil installations, or again with the training, arming and equipping of
the contras.338
In the cases brought by Yugoslavia against NATO States, the ICJ rejected the
request for provisional measures, limiting itself to conrming that when such
a dispute gives rise to a threat to the peace, breach of the peace or act of aggres-
333 See U.N. Doc. S/1999/328, mentioned by Cassese, supra note 320.
334 See Henkin, supra note 327, 833.
335 See Gray, supra note 159, at 38; Hilpold, supra note 316, at 460; Kohen, supra note 325,
at 140-141.
336 Cassese, supra note 320, at 792.
337 Quoted in Innocencio Arias, Humanitarian Intervention: Could the Security Council
Kill the United Nations?, 23 Fordham Intl L.J. 1005, 1010 (2000).
338 Military and Paramilitary Activities (Nicaragua v. U.S.) (merits), supra note 106,
268.
524 Chapter 8
sion, the Security Council has special responsibilities under Chapter VII of the
Charter.339
It is now recognized that States cannot invoke State sovereignty as a shield
of impunity for egregious violations of human rights and that the treatment of
their citizens is no longer entirely a matter of domestic jurisdiction.340 But States
that grossly mistreat their citizens still insist on the attributes of their national
sovereignty. 341 What, then, is the present state of the law in light of the tolerance
shown by the international community or large segments thereof towards multi-
lateral interventions by groups of States acting outside the United Nations? This
tolerance reects the growing, but far from unanimous, acceptance of the idea
that the international community cannot remain passive in the face of massive
atrocities, such as genocide and crimes against humanity, even when action to
save lives involves a violation of the Charter.342 Although action by a single State
or by a group of States presents the same legal questions, the larger and the more
representative the intervening group, the less the risk for an arbitrary and abusive
action, and the greater the likely tolerance by the international community. Ab-
sence of condemnation by a majority of the Security Council members and, even
more, some kind of a prospective or even retrospective blessing by the Council,
though not amounting to an authorization of the use of force under Chapter VII,
may provide useful indicia of a pull towards legality,343 especially since the prac-
tice of UN organs is a source of an authentic interpretation of the Charter.
These developments have generated interest in codifying rules or guidelines
for humanitarian interventions outside the Charter.344 In a thoughtful proposal,
339 Case Concerning Legality of Use of Force (Yugoslavia v. United States of America),
Request for the Indication of Provisional Measures Order, Order of 2 June 1999,
33.
340 See Problems and Prospects for Humanitarian Intervention, Stanley Foundation,
2000, at 13.
341 See Reisman, supra note 105, at 255-256; In using Any Necessary Means for Hu-
manitarian Crisis Response, a conference convened by the Stanley Foundation, par-
ticipants outlined four scenarios where sovereignty would not be a legitimate defense
against outside intervention: if a sovereign State cannot or will not protect its citizens
from genocidal or non-genocidal mass killing; in the event of mass displacement un-
der pressure of violence; where there are systematic violations of group rights (e.g.
apartheid) and when a democratically elected government have been overthrown by
force. Several participants expressed the view, however that the use of force should
only be contemplated in the rst two cases (at 23 (2001)).
342 See Westbrook, supra note 250, at 302, arguing that the old ideas of national interest,
international law and diplomacy, and the use of force have been transformed in our
time. As a result, the concepts no longer relate to one another in the same way they
long did. In particular, international law is no longer dened in opposition to force.
343 See Using Any Necessary Means for Humanitarian Crisis Response, supra note 341,
at 34-35; Wedgwood, supra note 327, at 839.
344 See Brown, supra note 306, at 1722 ; See also, International Peace Academy Conference
Report, Humanitarian Action: A Symposium Summary, 20 November 2000, pp. 4-6.
Louis Henkin has advocated pursuing an exception to the veto for humanitarian
interventions: recognized regional organizations might resort to humanitarian
interventions if authorized in advance by a vote of the Security Council not sub-
ject to the veto.345 The diculty with this proposal is that it is improbable that
the permanent members of the Council will waive their veto rights even in this
limited context.
Proposals for rule-making are not new.346 Many have argued that better and
more objective standards for intervention are needed.347 Suggested guidelines
would direct, for instance, that the use of force should be collective in nature,
limited in scope, proportionate to achieving the humanitarian objects, and con-
sistent with humanitarian law.348 Perhaps the most prominent of such proposed
guidelines is contained in the Report on The Responsibility to Protect: Report
of the Commission on Intervention and State Sovereignty (2001), a result of an
initiative by the government of Canada. The Report states where a population is
suering from serious harm as a result of internal war, insurgency, repression or
State failure, in case of failure of the Security Council to act, alternative options
include action by the General Assembly under the Uniting for Peace Resolution,
or action by regional or sub-regional organizations, subject to their seeking sub-
sequent authorization from the Security Council.
In the context of Iraq, in 1991, Oscar Schachter expressed reservations to a
codied approach, warning against
a tendency on the part of those seeking to improve the United Nations to prescribe
a set of rules for future cases, usually over-generalizing from past cases. Each crisis
has its own conguration. Government will always take account of their particular
interests and the unique features of the case. While they can learn from the past, it
is idle and often counterproductive to expect them to follow codied rules for new
cases.349
There is, indeed, room for skepticism about laying down detailed rules for future
Council action, or for decision-making outside of the United Nations. Such rules
or guidelines might encourage abuses of the law governing the control of use of
force and imperil the development of future common law through the practice of
the Security Council. The Henkin proposal does not present such dangers, as it
does not suggest new criteria for interventions, and fashions modied procedural
rules for the Council. But the prospects of its acceptance by the P-5 are slim. The
evolution of a common law for multilateral humanitarian interventions to put an
345 See Henkin, supra note 327, at 835.

346 See for instance the works of the International Law Association in the mid seventies,
cited in Hilpold, supra note 316, at 455-456.
347 See Problems and Prospects for Humanitarian Intervention, supra note 340, at 11.
348 See id. at 22-23.
349 Lillich, supra note 273, at 14 (citing Oscar Schachter, Commentary, 86 Am. Socy Intl
Proc. 320 (1992)).
526 Chapter 8
end to egregious atrocities, with principles and parameters, when the Security
Council cannot act, as proposed by Antonio Cassese, should be encouraged.
d) Rhetoric and Reality

It is dicult to see the 2003 invasion of Iraq as authorized by Security Council
Resolution 1441 (2002). Nor can the intervention derive an adequate cloak of UN
legitimacy from Resolution 687 (1991). It is uncertain that more time, more pa-
tience and a more determined eort by the United States and the United Kingdom
would have produced an agreement in the Security Council. The result was an es-
sentially unilateral military action by the United States and the United Kingdom.
Resolution 1441 was focused on weapons of mass destruction. Human rights
concerns, regime change, and the need to end the terrible repression of the peo-
ple of Iraq were not even mentioned. Resolution 1483 (2003), recognizing the
Authority under which the occupying powers would be operating, provides that
reporting on the promotion of human rights is one of the responsibilities of the
Secretary-Generals Special Representative for Iraq. Despite this timid return to
human rights rhetoric, the relief at the end of a murderous regime and hopeful
democratisation of Irak are necessarily mixed with concerns about the future of
the UN collective security system.
Some commentators have even announced the utter collapse of that system.
I am not so pessimistic. The system has passed through a signicant trauma but
it continues to play an important role. The unilateral character of the invasion of
Iraq for example has created great diculties in getting additional governments
to provide peace-keeping troops for security in Iraq or money for reconstruc-
tion. Lessons drawn from the alienation of the United States from its traditional
European allies in 2003 and its global implications may yet cause the momentum
to swing towards a revival of international solidarity and a more balanced and ef-
fective role for the Security Council. The developments since the invasion suggest
that momentum towards multilaterism is growing again.
However, even a more pessimistic view about the prospects for a better sys-
tem of international peace and security, and the present fragility of the fundamen-
tal principles of the Charter, cannot obscure the enormous inuence that human
rights have exercised on international institutions particularly in areas such as
promotion of human rights and democracy, and resort to humanitarian interven-
tions and sanctions as weapons against atrocities and repression. These achieve-
ments remain undiminished. I am condent that they will continue to be so.
Index
A composition of, 352

Afghanistan Armed conict
allied bombing campaigns, 87 atrocities, 51
nation-building, role of human rights in, attack, and, 414
496 basic human rights, protection of, 66
Soviet invasion of, 291-292 characterization of, 31-32
African Commission on Human and Peo- crimes against humanity, nexus to, 414
ples Rights cultural property, protection of, 12, 32
access to, 341-342 human rights conventions, continued ap-
African Union plication of, 439
interventions by, 519 human rights law, application of, 46-49
Aggression internal,
crime of, 154 cultural property, destruction of, 135
Rome Statute, provisions of, 154 right to prosecute oenses, 123-124
rule against, 372 rules applied to, 32-33
Aircraft war crimes, 132-139
civil, use of weapons against, 22 weapons and means of warfare, limita-
Aliens tions or prohibitions, 136
human rights, 197 international, parameters of, 30
human rights and humanitarian law pro- law and customs applicable in, violations
tections, interpretation to maximize, of, 152
200 law of,
national treatment standard, 301 United Nations, position of, 65
Permanent Court of International Justice, chivalry as basis for, 2, 8
consideration by, 429 fair play, ensuring modicum of, 8
remedies under international law, lack of, humanizing behavior, eorts for, 3
302 inspiration for, 2
rights of, 200 international humanitarian law replac-
American Civil War ing, 1
Lieber Code, 2 legality of use of weapons, 76
Anti-dumping duties non-international, 30
NAFTA dispute resolution mechanism, threshold of, 153
321-322 Arms control
Arbitration agreements, succession to, 214, 217-218
binding, agreement to, 203-204 Asylum
Arctic Council International Court of Justice, considera-
tion by, 431
528 Index
Atrocities Conicts
armed conicts, in context of, 51 armed conict, not being, 29-30
former Yugoslavia, in, 2, 93 international and non-international dis-
internal, ICTY and ICTR provisions, 100- tinguished, 29, 32-33
110 Council of Europe
internal, recognition as international admission of States to, 311-312, 446
crimes, 137 withdrawal from, 313
mass, legal action against, 91-92 Countermeasures
multilateral intervention against, 522 abuse, possibility of, 288, 300
Nazi, Argentina, against, 293
crimes against humanity, 95 compensatory objectives, 294
eect of, 2 conditions for, 293
nongovernmental actors, by, 87 essential goods, denial of, 299
Rwanda, in, 2, 93 legitimate, resort to, 287
Sierra Leone, in, 174 limitations on, 293-300
meaning, 287
B negotiations prior to, 300
Bosnia-Herzegovina objectives, 295
protected persons in, 34 performance of obligation, compelling,
Boundary disputes 295
International Court of Justice, in, 438 proclamation of martial law in Poland,
Burden of proof following, 292
customary law, of, 369 punishment, for, 295
rationales for, 294
C resort to, tensions caused by, 298
right to take, 288-293
Cambodian Tribunal
settlement of disputes, and, 300
agreement for, 181-182
Soviet invasion of Afghanistan, after, 291-
Chivalry
292
law of armed conict, as basis for, 2, 8
strict reciprocity, resort to, 294
law of war, as basis for, 1
suspension of, 300
Civil aviation
third States, by, 288, 290
universal jurisdiction, treaties creating,
unilateral, 299
119-120
violations of erga omnes obligations, in
Civilians
case of, 288-289, 291-292, 296
denition, 36
Countervailing duties
land-mines used against, 81
NAFTA dispute resolution mechanism,
protection of, 6-7
321-322
Draft Rules for, 64-65
Court of First Instance
sanctions harming, 499-500, 503
individual access to, 332-335
terrorist attacks on, 86
jurisdiction, 332
Combatants
natural and legal persons, actions for
captured, equal treatment of, 5
damages by, 333
protection of, 1, 507-509
Crimes against humanity
land mines. See Land mines
armed conict,
proportionality, principle of, 61-69
nexus to, 414
weapons not to be inherently indiscrimi-
no requirement of nexus with, 98, 100
nate, 73-80
denition, 95-96
weapons not to cause unnecessary suf-
deportation, 151
fering, 69-73, 78-80
disappearances, 99, 150-151
Index 529
discrimination against civilian population, continuing importance of, 357

not requiring, 150 conventional rule distinguished, 359
discriminatory intent, 99 criminalization of child recruitment, sup-
elements of, 97-98 porting, 420
enslavement, 150 formation,
extermination, 150 departure from traditional methods of,
rst recognition of, 95 370
forced pregnancy, 151 treaty provisions, through, 378
genocide, overlap with, 100 general principles falling outside ambit of,
ICTY, 385-386
jurisprudence, 97 human rights,
Statute, denition in, 96-97 content of, 364-365
individuals, responsibility of, 316-317 national plane, development in, 364
inhumane acts, 111 human rights treaties as evidence of, 380
list of, 98, 150 humanitarian, 362
mens rea, 97 ICRC project, 398-399
Nazi atrocities, 95 ICTY, approach of, 404-416
no nexus for prosecution of, 150 jurisprudence, 399
Nuremberg Charter, 95 non-criminal tribunals, applied by, 400-
persecution, 99, 150 404
political debate, 179 nullum crimen sine lege, principle of,
Rome Statute, provisions of, 149-150 399-400, 404-407, 410, 413
torture. See Torture principles, 398-399
universal jurisdiction, subject to, 120, 125 revival of, 398-421
widespread, to be, 97 humanitarian conventions transformed
Criminal law into, 367
individuals, responsibility of, 316-317 humanitarian treaties, role in relation to,
international, 380
crimes under, 183 ICJ, methodology by for identifying, 402
feasibility of, 180 ICRC study, 362, 421-423
international criminal tribunals, progres- identication of, 421
sive development by, 411 inconsistent practice, 371-374
Rome Statute, principles elaborated in, 154 increasing importance of, 360
statutory nature of, 410 International Court of Justice, invoked by,
violence to life and person, no recognition 439
of, 413 International Criminal Court, application
Cultural property by, 420
Hague Convention on the Protection of international criminal tribunals,
Cultural Property in the Event of Armed approaches of, 416-421
Conict, 12, 32, 135 identication in, 360
non-international armed conicts, de- International Law Commission, role of,
struction in, 135 381
Customary law international norms, evidence of, 403
application after adoption of conventional interstices of treaty, introduced into, 359
norm, 25 jus cogens as rules of, 395-396
burden of proof of, 369 law of the land, treated as, 358
challenge to existence of, 371 means of warfare subject to, 26
civilian populations, protection of, 507- multilateral treaties as evidence of, 377,
509 379
conclusory treatment of, 3
530 Index
non-governmental organizations, partici- human rights law, convergence with, 301-

pation by, 354-355 306
Nuremberg tribunals, essential to, 417-418 ILC Special Rapporteur, report by, 302
opinio juris, 366-370 International Court of Justice, considera-
persistent objector, binding, 374-376 tion by, 429
renewed vitality, 363 international standard of civilization, ex-
reservations to, 228-232 ercise invoking, 301
Special Court for Sierra Leone, applica- investment settlement disputes, eect of
tion by, 419-420 access to, 305
State practice, 360-366 local remedies, exhaustion of, 303
States not party to agreement, binding on, Permanent Court of International Justice,
376-377 consideration by, 429
terminology of, 403 rights unrecognized by human rights trea-
treaties, ties, protection of, 303
distillation of rules from, 370 Diplomatic relations
relationship with, 376-383 fundamental rules of, 260
treaty norms transformed into, 358 protection of citizens, 263
uncodied, violation of, 404 Distress
wrongfulness, circumstances precluding,
D 251-252
Darfur, 156, 502 Due process of law
Democracy counsel, representation by, 159-160
culture, development of, 497 domestic criminal process, in, 157
development, nexus with, 476 fairness of trial, 159-160
dissolution of political parties, considera- fundamental norms, 157
tion by ECHR, 491-492 innocence, presumption of, 161
election monitoring, 496 International Convention on Civil and
electoral missions, 493-494 Political Rights, provisions of, 157
free elections, participation in, 486-489 international courts, standards in, 158
human rights, link with, 493 international humanitarian law, protec-
normative standards, 486-492 tions in, 157
party pluralism, 490-491 international instruments, provisions of,
practice, 492-497 157
regional organizations, norms of, 491 International Military Tribunals, problems
self-determination, and, 492 of, 158
UN, promotion by, 486-497 speedy trial, requirement of, 160-161
voter eligibility, 490 trial in absentia, 162
Development
Agenda for, 476 E
Declaration in Right to, 476 Emergency
democracy, and, 476 suspension of protections on, 58
human rights, nexus with, 476 Energy Charter Treaty
right to, 476-477 arbitration tribunals, rules of law applied
sustainable, 477-478, 482 by, 327
UN Development Programme, 477 Environmental protection
World Bank, visions of, 478-481 Charter on Environmental rights and Ob-
Diplomatic protection ligations, draft, 448
advancement of human rights, as tool for, civil rights and obligations, measures
302 bearing on, 458
European Convention, violations of, 462 concerns of law, 447
Index 531
decision-making, participation in, 456-457 interpretation, 444-446

environmental quality, interpretation of obligations erga omnes, 461
traditional human rights, 451 reservations, 443-444
European Social Charter, provisions of, violations, diplomatic protection 462
450 extradition, scope of jurisdiction, 464-465
harm, breach of human rights by, 453 general international law, resort to, 441
healthy environment, right to, 447-451 inuences of, 440-441
human right to environment, lack of, 451 interim measures, interpretation of scope
human rights law, and, 446 of, 441
indigenous rights, 459-461 interpretation of treaties, 444-446
information, right to, 456-457 judges, term of oce, 167
injury, causation of, 277 jurisdiction, scope of, 464-465
inter-State cooperation, 460 killing by security forces, consideration of,
law of, 446-447 471-472
life, right to, 454-456 non-governmental organizations, appear-
North American Agreement on Environ- ance by, 341
mental Cooperation, proceedings under, principle of proportionality, application
323-324 of, 470-472
nuclear power plant, eect on property, public international law, impact on devel-
452 opment of, 440
private life, home and property, right to territorial scope of responsibility, impact
respect for, 451-454 on, 462-466
property, right to, 453-454 European Court of Justice
remedies, access to, 458 individual access to, 332-335
respect for residents private lives, duty to law of European Union, interpretation and
ensure, 453 application of, 196
soft responsibility procedures, 278 preliminary rulings, 334
standing to bring action, 277 standing before, 277
Equality of treatment European Social Charter
dierential treatment, need for, 428 supervisory machinery, 342
Permanent Court of International Justice, European Union
application of test by, 427 Charter of Fundamental Rights, 335
European Commission on Human Rights suspension of Member State, 313
access to, 339-341 Extradition
European Court of Human Rights ECHR jurisdiction, scope of, 464-465
access to, 339 parties to ECHR, agreements by, 463
collateral damage, limits to, 470-472
decisions of other courts, inuence on, F
440 Force majeure
dissolution of political parties, considera- wrongfulness, circumstances precluding,
tion of, 491-492 251-252
environmental treaties, inuence on, 461
European Convention, G
application of, 441
Gender crimes jurisdiction
character of, 442
development of, 179
consent to, 446
Geneva Conventions
environment, protection of, 446-461. See
applicability, 29-31
also Environmental protection
customary law, declaratory of, 104
extradition agreements, application of,
463
532 Index
duty to prosecute or extradite under, 40- accepted view of civilized nations, as, 10
41 civilians, protection of, 6
equality of treatment, 5 International Military Tribunal, proceed-
evolving interpretations, 41 ings at, 114
rst, 2 Martens Clause, 5, 13 See also Martens
fourth, 5-6 Clause
general participation clause, reversal of, penal responsibility, silent as to, 116
10-11 poison and dum-dum bullets, restricting
grave breaches of, 48 use of, 63
system, 117 Protection of Cultural Property in the
homocentric focus 6 Event of Armed Conict, 12, 32
ICRC Commentary, 11 si omnes clause, 9-10, 117
Martens Clause, version of, 19 Hague Law
occupied country, rights of occupant and Lieber Code, following, 2
population of, 6 Haiti
penal system, creation of, 117 electoral mission in, 494
preamble, absence of, 7 multilateral intervention in, 516-517
prisoners of war, 5. See also Prisoners of Human dignity
war respect for, general principle, 47
protected persons, rights invoked by, 8 Human rights
third, 5 acquired rights, as, 215
universal jurisdiction, relationship with, African Commission, access to, 341-342
126 commissions, access to, 339
violations of, compliance by private persons, duty to
oenses, 127 ensure, 467
states punishing, 125-126 court, customary law invoked by, 401
Genocide customary law,
conscience of mankind, shocking, 220 content of, 364-365
Convention, national plane, development in, 364
principles underlying, 220 decision-making, participation in, 456-457
reservations to, 219-221, 243 development, nexus with, 476. See also
succession to, 216 Development
crimes against humanity, overlap with, dictates of public conscience, shaping, 24
100 diplomatic protection, convergence with,
customary law of, 415 301-306
ICTR Statute, prosecution under, 101 enforcement,
intent, 415 force, use of, 435
International Court of Justice, considera- international courts, through, 434
tion by, 432-433 erga omnes character, crystallization of,
Rome Statute, provision of, 149 262
State interests, 432 European Convention,
universal jurisdiction, subject to, 120 character of, 442
Government collective enforcement under, 272
recognition, 313-314 consent to, 446
Guilty plea Court. See European Court of Human
ICTY, possibility in, 143-144 Rights
supervision of, 162 environment, protection of, 446-461. See
also Environmental protection
H extradition agreements, application of,
Hague Convention 463
Index 533
free elections, provision for, 487 UN Secretary-General, role of, 473

interpretation, 444-446 use of force, as justication for, 523
obligations erga omnes, 461 violations,
parallel structure, 257 armed conict, during, 50
reservation to, 235-236, 443-444 State sovereignty as shield against, 524
thought, expression and association, Human rights bodies
freedom of, 488 abuses, examination of, 51
violations, diplomatic protection 462 humanitarian law, application of, 50-55
European system, modication of, 339 mandates, 52
expression, freedom of, 456-457 monitoring,
freedom of association, 467-468 individual access to, 339-344
general principles of law, as, 373 organizations, group complaints by, 343
healthy environment, right to, 447-451 victims, representation of, 343
hierarchy of norms, 392 Special Rapporteurs, 50-51
indigenous rights, 459-461 work of, 8
information, right to, 456-457 Human rights law
inter-American system, access under, convergence of protection, 45-50
340-341 customary rules of humanitarian law, in-
international concern, as matter of, 366 uence on, 3, 6
international conventions, protection by, government behaviour, focus on, 460
435 humanitarian law contexts, application
instruments, right of denunciation, 209 in, 55-57
jus cogens, relationship with, 201-207. See indirect issues, 50
also Jus cogens international organizations, inuence on
law of aliens, impact on, 197 work of, 3
law of treaties, inuence on, 188 physical integrity and human dignity, pro-
life, right to, tection of, 8
environmental protection, 454-456 positive obligations, 459
failure of public authorities to prevent reciprocity, 460
killing, 469 treaties,
killing by security forces, consideration automatic succession to, 215-216
of, 471-472 European Convention, 192, 194
positive obligations, 454-456 evidence of customary law, as, 380
protection of life, consideration of rela- individuals, rights of, 193
tionship with, 438-439 International Court of Justice, reference
limitations of countermeasures to protect, to, 425
297 inter-State procedures, 304
movement, birth of, 6 interpretation, 444-446
nation-building, role in, 496 jurisdictional clauses, of, 197-199
non-governmental acts, State responsibil- legality of reservations, determining, 246
ity for, 466-470 monitoring bodies, control of reserva-
objective obligations, 249 tions by, 244-246
obligations erga omnes, 393 multilateral, 187
outside international law, 362 non-reciprocal character of, 211
peaceful assembly, right of, 467-468 normative, 187
private life, home and property, right to occupied territories, application to, 200
respect for, 451-454 remedies, 291
private persons, violations by, 466-470 reservations, 224-227
regional courts, 440 settlement of disputes, 291
remedies, access to, 458 special character, of, 191
534 Index
specic characteristics of, 237 interpretation, 195

territorial scope of responsibility, 462- rights of parties, preservation of, 196
466 International Center for Settlement of in-
tribunals, emphasis of character by, 192 vestment Disputes
unacceptable reservations, 238 arbitration tribunals, rules of law applied
Vienna Convention, reference in, 188 by, 326
Turku Declaration, 60-61 establishment of, 325
unequal parties,8 jurisdiction, 325-326
Humanitarian assistance settlement of disputes by, 305-306
United Nations, by, 509-510 World Bank organization, as, 325
Humanitarian intervention NAFTA, claims under, 321
diplomatic and political channels, submission of claim to arbitration by, 321
through, 282 International Committee of the Red Cross
multilateral, 517-518 civilian populations, Draft Rules for pro-
Kosovo War, 520-523 tection of, 64-65
Liberia, in, 518-519 Customary International Humanitarian
present state of law, 524520-523 Law, Study of, 14, 31, 362, 421-423
rules or guidance for, 524 customary rules of international human-
Security Council authorization, without, itarian law, formation 355
523 Geneva Conventions, commentary on, 11
self-defense, as, 517-518 immunity to disclosure, 415
United Nations, by. See United Nations protecting power, as, 1
veto, exception to, 525 repatriation, deciding on, 45
obligations erga omnes, 260 reprisals, outlawing, 14
Humanitarian restraints International Court of Justice
principle of, 2 Asylum Case, 431
Humanity authority of, 104-105
crimes against. See Crimes against hu- boundary disputes in, 438
manity consent to jurisdiction, 434-435
elementary considerations of, 21 customary law,
fundamental standards of, 58-61 invoking, 439
military necessity, equilibrium with, 70 methodology for identifying, 402
principles of, 21 treatment of, 3
eect of, 28 diplomatic protection, consideration of
trends, 29 law, 429
exhaustion of domestic remedies, princi-
I ple of, 429
Indigenous peoples genocide, consideration of, 432-433
environmental protection, 459-461 human rights and humanitarian law, con-
human rights, 459-461 tribution to, 425-440
ILO Convention, 350 judges, election of, 167
meaning, 350-351 NATO States, cases by Yugoslavia against,
membership of groups, 351 523
movement, development of, 349 non-State entities, recognition of right of,
protection of land and resources, 350 426
rights, conceptual structures, 349 nuclear weapons, advisory opinion on, 25,
subjects of international law, as, 349-352 377, 436
Innocence provisional measures, jurisprudence on,
presumption of, 161 436-437
Interim measures
Index 535
right to life and protection of life, consid- statement of, 149-152. See also Crimes
eration of relationship of, 438-439 against humanity; War crimes
scope of consent to jurisdiction, 264 crimes against humanity,
scope of domestic protection, narrowing list of, 98-99
down, 430-431 provision on, 149-150
self-determination, examination of, 433 criminalized acts, 151
substantive aspects of human rights, con- draft, 148
sideration of, 429-430 elements of crime, oenses amplied
International crimes by, 153
arguments against concept of, 269 entry into force, 148
conceptual ideas of, 266 general principles of criminal law, elabo-
debate on, 267 ration of, 154
erga omnes and jus cogens, relationship genocide, provision on, 149
with, 268 law and customs applicable in armed
individuals, responsibility of, 265 conicts, violations of, 152
international law consequences, 270 parties not subject to, 156
international obligations, compelling com- personal jurisdiction under, 155
pliance with, 266 prohibited weapons, list of, 152
penal responsibility and punishment in serious violations, criminalization, 152
relation to States, 268 sexual oenses, criminalization,, 153
State responsibility for, 265-270 torture, denition of, 151
test for identifying, 266 US nationals, exclusion of surrender of,
third States, standing to seek redress, 267 156
violations constituting, consequences of, violation of humanitarian law, criminal-
268-269 izing, 99
International Criminal Court war crimes,
ad hoc tribunals, eliminating need for, 156 jurisdiction, exercise of, 156
countries not participating in, 156 provision on, 149
crime within jurisdiction of, 154 States having interest in cases in, 155
customary law, application of, 420 United States, opposition by,
enforcement of international law, increas- 155-156
ing importance of, 271 International Criminal Tribunal for Rwanda
environment for, 183 consensus to apply UN Charter Chapter
establishment of, 3, 148 VII, obtaining, 94
judicial panels, makeup of, 169 eectiveness of international law, contri-
jurisdiction, 155 bution to, 177-181
legality principle, 419 establishment of, 2, 91
pleadings in, 420 genocide, prosecution of, 101
Rome Conference, 3 government, cooperation of, 182
crimes, formulation of, 23 humanitarian law, application of, 4
Rome Statute, individual criminal responsibility, focus
accused or investigated persons, human on, 105-106
rights protections, 163 international legal landscape, transform-
adoption of, 93, 149 ing, 178
aggression, crime of, 154 legality principle, 419
civil law code, resembling, 420 national courts, concurrent jurisdiction
crimes, with, 137
denition in, 184 Statute,
listing and dening, 116 adoption of, 100
536 Index
conict, treatment as non-international, fairness of trial, 159-160

101 formalistic assessment of custom, not en-
documented legislative history, lack of, gaging in, 418
112 guilty pleas, possibility of, 143-144, 162
human rights law issues, addressing, 105 Hague law, elaboration of, 415
internal atrocities, provisions on, 100-110 humanitarian law, application of, 4
international humanitarian law, contri- individual criminal responsibility, focus
bution to, 94 on, 105-107
legal foundations, 109 innocence, presumption of, 161
oenses under, 102 interlocutory appeal in, 142, 407
penalties, 102 international legal landscape, transform-
retrospective penal measures, 101-103 ing, 178
subject matter jurisdiction, 101 judges,
violation of, 419 bench, constitution of, 170
war crimes, nexus for prosecution of, domestic government, role in, 175
132-133 nomination, 166
International Criminal Tribunal for the number of, 140
Former Yugoslavia pre-appeal, 145
Appeals Chamber, 140 pre-trial, 145
cautiousness, principle of, 423 quasi-legislators, as, 140-141
challenges facing, 139-148 selection of, 166-169
civil law contributions to, 144-145 stepping down, 176
command responsibility, application of trial, role of, 145
doctrine, 407-408, 410-412, 415-416 legality principle, 405-406, 412, 418-419
completion of work, 147-148 length and complexity of trials, 141-142
consensus to apply UN Charter Chapter national courts, concurrent jurisdiction
VII, obtaining, 94 with, 137
counsel, representation by, 159-160 non-international aspects of armed con-
crimes against humanity, ict, war crimes, 132-134
denition, 96-97 nullum crimen sine lege, principle of, 404-
jurisprudence, 97 407, 413
criminalized conduct, approach to, 406 outcome conservatism, 407
customary law, peace and security, role in, 180
conservative approach to, 404-416 pre-trial detention, 141, 161-162
dealing with, 4 President,
decisions of, 140 bench, constitution of, 170
dierent legal traditions, elements from, head of institution, as, 171
143 judicial panels, power over makeup of,
domestic jurisdiction, individuals referred 169
to trial by, 148 prosecutor, relations with, 171-172
eectiveness of international law, contri- public function, 171
bution to, 177-181 role of, 169-172
establishment of, 2, 91, 139 procedures, establishment of, 140-141
eventual demise of, 147-148 progress of cases, working group on, 170
evidence, provisional release, provision for, 161-162
assessment of, 416 rights of accused, respecting, 158-159
diculty of gathering, 142-143 rules of international humanitarian law,
hearsay, 145-146 application of, 112
rules of, 145 self-regulation, 170-171
written statements, 146
Index 537
self-representation before, right to, 146- peace, contribution to, 180

147, 159-160 pressure on, 181
sentences imposed by, 144 procedure and evidence, 183
sentencing system, creation of, 147 progressive development of law by, 411
stand-by counsel in, 160 responsibility of domestic governments
Statute, for prosecutions, encouraging, 178-179
conicts, treatment as international, 100 standing to bring case before, 275-281
crimes reecting customary law, test of, types of, 177
405 International nancial institutions
human rights law issues, addressing, 105 human rights, consideration of, 481-482
internal atrocities, provisions on, 100-110 participatory rights, embracing, 480
international humanitarian law, contri- protection of human rights, requirement
bution to, 94 to take into account, 478
jurisdiction, dening, 404 sustainable development approach, 482
violence to life and person, oense of, International humanitarian law
107 applicability,
substantive principles of customary law, blurring, 31
discussion of, 414-415 full-scale civil war, to, 30-31
superior, responsibility for previous acts, Geneva Conventions, 29-31
408-410 ICRC study,
torture, denition of, 4 international armed conict, parameters
trial chambers, 169 of, 30
trial in absentia, 162 personal, 33-38
violence to life and person, no recognition thresholds of, 29-33
of, 413 collateral damage, limits to, 470-472
war crimes prosecutions, 139 convergence of protection, 45-50
nexus for, 132-135 criminal aspects of, 183
International criminal tribunals criminalization, drive for, 185
constraints on, 416 customary,
customary law, ICRC project, 398-399
approaches to, 416-421 ICTY, approach of, 404-416
identication of, 360 jurisprudence, 399
customary norms, application of, 363 non-criminal tribunals, applied by, 400-
East Timor, in, 182 404
eectiveness of international law, contri- nullum crimen sine lege, principle of,
bution to, 177-181 399-400
erga omnes principle, acceptance of, 260- principles, 398-399
261 reading of, 184
erga omnes violations, vindication of renewed vitality of, 363
rights based on, 280 revival of, 398-421
Hague law, application of, 184 study of, 3
individual access to, 329 due process protections, 157
individual claims, adjudicating, 335-339 enforcement, 95
interest in humanitarian law, generating, events driving development of, 2
179 fundamental neutrality, based on, 86
Khmer Rouge, to prosecute members of, fundamental rules, customary character
181 of, 27
legality principle governing, 419 general principles,
mixed, 182 courts relying on, 3
nullum crimen sine lege, bound by, 416
538 Index
Geneva Conventions, common articles declaratory judgment, 284

of, 402 diplomatic intervention, 284
growth in, 179 human dimension, 297
Hague Law, 2 ILC draft articles, 286
human rights, individual States, by, 271
contexts, in, 51 injured States, remedies of, 272-275
enriching, 4 international agreements, specic au-
inuence of, 6 thorization by, 276-277
law, inuence of, 3 International Criminal Court, eect of
organs, application by, 50-55 establishment of, 271
treaties, application of, 55-57 legal standing, 275-281
Inter-American Commission, application non-intervention, principle of, 283
by, 53-55 obligations erga omnes, scope of, 276
investigations and prosecutions, possibil- range of responses, 285
ity of, 182 reparation, 285-286
law of war or armed conict, replacing, 1 State-centric, departure from, 270-272
life, protection of, 46 traditional approach to, 270
move from inter-State to individual rights unilateral responses, 285
perspective, 9-15 erga omnes principle, acceptance of, 260-
nature and intensity of conict, varying 261
according to, 59 general principles of, 373-374
normative principles of, 185 ambit of customary law, outside, 385-386
penal aspects, development of, 115-116 civilization, standards of, 384
penal element, 115 ICJ, reference by, 383
principle of proportionality, application international system, in, 385
of, 470-472 meaning and scope, 383
rearmation and development, confer- unforeseen potential, 384
ence of experts, 78 governing law of contracts, as, 327
reciprocity, rejection of, 11 individuals as participants in, 353
State-centric, 92 individuals, directly concerning, 314-318
State-to-State aspects, shifting, 2 inter-State aair, as, 354
Turku Declaration, 60-61 inter-State relations, as to, 363
UN forces, observance by, 31 non-State actors, role and status of, 315
UN Rome Conference, importance of, 148 obligations and rights Erga omnes, resolu-
United Nations, concerns of, 51 tion on, 287
violations. See Violation of humanitarian persistent objector, binding, 374-376
law responsibility of individuals under, 316-317
weapons violating fundamental principle rights and status of individuals, 318
of, 74-75 separate norms of, 359
International law sources of. See Sources of international
bilateral legal relations, move from, 256 law
breach, States, norms addressed to, 115
justication or denial of, 371 subjects of,
legal standing of States, 286 classical law, in, 352
codication, resisting, 400 identical rights and obligations, lack of,
direct rights granted to individuals under, 353
40 indigenous peoples, 349-352
enforcement, individuals, 314-318
cessation, 286 new, creation of, 352
choice of remedies, 281-287
Index 539
non-governmental organizations, 244- natural persons, claims by, 336

348 presentation of claims to, 336-337
objects, and, 317 Iraq
States. See States humanitarian aid to, 519
trade organizations dispute settlement international coalition, use of force by, 514
mechanisms, access to, 319-344 invasion of, 526
territorial scope of responsibility, 462-466 sanctions against, 503-504
International Military Tribunals
authority of, 103-104 J
criminal acts, presumptions as to, 116 Judicial independence
customary law, use of, 417-418 ensuring, 165-166
due process problems, 158 government, holding to law, 164
establishment of, 157 impartiality, 165-166
Hague Convention, proceedings against individual rights, protection of, 164
violations of, 114 international courts, in,
Hague Regulations, consideration of, 10 experience, 172
individual defendants, obligations binding nancial stake, judge having, 173
on, 114 issues, 175-176
legality principle, 417 openness, approaching case with, 172
multinational courts, as, 157 perception as partial, 172-173, 175
procedural rules, 157 personal connection to party, judge hav-
war crimes, jurisdiction over, 104 ing, 173
International Monetary Fund political environment, relevance of, 165
development, visions on, 478 public expression of opinion, eect of,
human rights concerns, 482-483 173-175
purposes of, 482-483 public perception, 176-177
International organizations recusal of judges, 172-176
admission of States to, 310-313 renomination, judges apprehensive
expulsion or suspension of States, 312 about, 168
normative agreements, 187 selection of judges, 166-169
sources of international law, role in, withdrawal from case, 172-176
enhanced, 387 law-based society, in, 177
internal rules, 387 political environment, relevance of, 165
resolutions and declarations, 388-390 reasoned decisions, need for, 164
use of force by, 518-519 role of, 164
International Tribunal for the Law of the rule of law, critical for, 164
Sea self-perception, 164
individual access to, 329-332 separation of powers, 164
prompt release of vessel, application for, setting of, 163-166
331-332 themes, 163
Sea-Bed Disputes Chamber, 330 tradition of, 163
Investment disputes transparency, 164
arbitration mechanisms, 324-327 Jus cogens
Convention on Settlement of, 325 abusively invoked, 203
ICSID. See International Center for Settle- acceptance of, 392-394
ment of investment Disputes acts violating norms of, 398
settlement of, 305-306 community values, protection of, 370
Iran-United States Claims Tribunal customary rules, as, 395-396
jurisdiction, 335 denition, 396
nationality requirements for claims, 336
540 Index
erga omnes and international crimes, rela- peace-keeping operation in, 518-519
tionship with, 268 Libya
ethical signicance, 206 sanctions against, 504-505
examples of, 392 Lieber Code
exception to norms, 376 American Civil War, following, 2
human rights, relationship with, 201-207 human rights provisions, 5
humanitarian law view of, 39 Life, right to
identication of norms, 394 environmental protection, 454-456
ILC commentary, 203 failure of public authorities to prevent
international law and relations develop- killing, 469
ments, relation to, 204 international humanitarian law, protection
language of, 207 under, 46
law of treaties, extension beyond, 396-398 killing by security forces, consideration of,
mainstream of international law, in, 203 471-472
moral, ethical and rhetorical notion, as, positive obligations, 454-456
393 protection of life, consideration of rela-
national jurisdictions, incorporation in, tionship with, 438-439
394
norms, candidates for, 205 M
particular cases, application in, 207 Maritime delimitation
practical importance, limited, 206 case law, 367
preremptory norm of international law, as, custom formation, 372
201-202 Maritime navigation
public order, concept of, 206 universal jurisdiction, treaties creating,
recognition of, 38 119-120
signicance of, 206 Martens Clause
State succession, in context of, 398 antecedents, 17-18
torture, prohibition of, 397 current signicance of, 27-29
treaty, conict with, 206 evaluating legality of weapons, taken into
work of ILC, inuence on, 207 consideration on, 27
Geneva Convention, in, 19
L Hague Convention, in, 5, 13
Land mines importance of role, 29
anti-personnel, inuence of, 16-17, 28
changes in use of, 80 interpretation, 19
civilians, use against, 81 modernization, 19-21
Convention on Prohibition of, 83 nuclear weapons option, and, 25-27
global ban, strategy for, 82-83 Nuremberg, invoked at, 18
non-combatants, protection of, 81 origins of, 17-19
rationales for banning, 83-84 public conscience, and, 23-25
restriction of, 80 purpose of, 18
total prohibition, absence of, 82 redundant, argument for, 25
internal armed conicts, limitation of use reliance on, 16
in, 136-137 reprisals, invocation as to, 13
International Campaign to Ban, 82 war crimes, eect on, 19
issue of, 50 wording, 17
Protocol, Mines
policy underlying, 81 land. See Land mines
provisions of, 81-82 territorial waters, in, duty to warn of, 435-
Liberia 436
Index 541
Minorities standard-setting activities, 344-348, 354,

protection of, 428 391
Treaty, 426-427 subjects of international law, as, 244-348
texts drawn up by, use of, 346
N WTO dispute settlement mechanism, ac-
NATO cess to, 319-320
Kosovo War, 520-523 North American Agreement on Environ-
Nazi atrocities mental Cooperation
crimes against humanity, 95 implementation, 324
eect of, 2 non-governmental access to proceedings,
Necessity 323
nancial obligations, nonperformance of, North American Agreement on Labor Co-
252 operation
interests of individuals, protection of, 252 enforcement mechanism under, 324
military, 254 North American Free Trade Agreement
wrongfulness, circumstances precluding, anti-dumping and countervailing duties
252-255 dispute settlement mechanism, 321-322
Nicaragua arbitration tribunals, rules of law applied
electoral mission in, 493 by, 326
Non-governmental organizations arbitration, submission of claim to, 321
accountability, lack of, 320 general dispute settlement mechanism,
concerns expressed by, 347 access to, 321
consultative status, 390 private party participation, 323
customary law, participation in formation side agreements, 321
of, 354-355 Nuclear weapons
Economic and Social Council, grant of Case,
consultative status by, 344 advisory opinion, 25, 377, 436
European Convention on Recognition of oral submissions, 24, 26
Legal Personality of, 344 pleadings, 26
European Court of Human Rights, access Martens Clause, and, 25-27
to, 341 military objectives, used for, 76
information providers, as, 345 peace, keeping, 76-77
intergovernmental conferences, participa- self-defence, use in, 62, 77
tion in, 347 specic prohibition, absence of, 75
international institutions, access to, 348 Nullum crimen sine lege
international law, International Criminal Tribunal for the
advancement of, 391 Former Yugoslavia, application by, 404-
increasing involvement in, 347 407, 413
international legal order, participation in, international criminal tribunals bound
461 by, 416
interpretation guidelines, drafting, 346 principle of, 399-400, 404-407, 410, 413
law-making, role in, 344-348 Special Court for Sierra Leone, applica-
NAFTA dispute settlement mechanisms, tion by, 419-420
access to, 321
North American Agreement on Environ- O
mental Cooperation, access to proceed- Obligations
ings under, 323-324 basic, 259
playing eld, expansion of, 345 erga omnes. See Obligations erga omnes
role of, 390-392 nancial, nonperformance of, 252
human rights, objective, 249
542 Index
integral, 257 Oil pollution

objective, 258 Conventions, 252-253
rights, corresponding, 248 Opinio juris
State responsibility. See State responsibil- acceptance of convention as, 383
ity contrary practice yielding to, 372
treaties, created by, 257 evidence of, practice of non-parties, 379
Obligations erga omnes generalis and obligationis conventionalis
basic human rights creating, 393 distinguished, 382
basic rights of human person as, 263 inferred, 366
breach injuring every State, 259 practice,
community interests, transition to, 256, conforming with, 373
265 invoking to conrm, 366
concept of, 247 relationship with, 368
consent to ICJ jurisdiction on basis of, 264 public conscience, dictates of, 23
consent to jurisdiction, and, 434-435 recent trends, 367
European Convention, anticipated by, 461 source of international law, as, 366-370
human rights character, crystallization of, transformation of treaty norms to general
262 law, critical for, 382
ILC research and codication agenda, 264 weight of, 382
illustration of, 258
implementation or enforcement of norms, P
260 Permanent Court of International Justice
injured State, identication of, 273-275 diplomatic protection, consideration of
inter-State claim based on, 249 law, 429
International Court of Justice, anticipation equality of treatment, application of test
of principle by, 259 of, 427-428
international law doctrine, acceptance in, human rights concerns in, 426
261-262 matters subject to domestic jurisdiction,
legal interest in protection of, 248 questions of, 430
multilateral treaty, also obligation under, Minority Treaties, arbiter and interpreter
287 of, 426-427
observance of human rights, assertion of, treatment of aliens, consideration of, 429
262 Persecution
origin of, 260-261 actus reus, 415
practice of international law, gap between Piracy
doctrine and, 286 individuals, responsibility of, 316-317
preremptory norms, and, 268 Poland
protection of, 248 German settlers, rights of, 427
recognition of, 259 martial law, measures following, 292
respect for, right to demand, 264 Prisoners of war
strict reciprocity, resort to, 294 convergence of protection, 45-50
substantial breaches, reaction to, 283 general participation clause, reversal of, 10
vindication of rights based on, 280 Geneva Convention, 5
violations, human rights guarantees, 49
countermeasures, right to take, 288-289, individual rights, recognition of, 38
291-292, 296 personal autonomy, 41-45
remedies for, 284 protections, deprived of, 39
unilateral reactions to, 293 renunciation of rights, prohibition, 40
Occupied country repatriation,
occupier and population, rights of, 6 consent, without, 42-44
Index 543
free choice, right of, 45 R

ICRC, duty of, 45 Rape
North Korea and China, to, 43 relationship of victim and rapist, irrel-
rejection of, 42 evance of, 411
right to, 41 Red Cross
voluntary, 44 draft Convention, 7
Taliban combatants, status of, 87-88 International Committee. See Internation-
thought, religion and conscience, freedom al Committee of the Red Cross
of, 49 Refugees
trial, 45 ows of, 512
Private life, home and property, right to Religion
respect for, law of war, as basis for, 1
environmental protection, 451-454 prisoners of war, freedom of, 49
relations between individuals, 468-469 Reprisals
Property belligerent, 2
civilian, destruction of, 55 denition, 11
enemy, destruction of, 63 ICRC Study of Customary International
Proportionality, principle of Humanitarian Law, 14
codication, lack of, 63 Iran-Iraq War, in, 14
combatants, protection of, 61-69 legitimate, 12, 32
humanity, standards of, 58 limitation of right of, 296
international customary law, in, 63 Martens clause, invocation of, 13
international humanitarian law, applica- prohibition, 12-14
tion in, 470-472 human rights, inuence of, 14
jus ad bellum, in context of, 61 non-international armed conict, in,
jus in bello, in context of, 62 Rule of law
Second Gulf War, military operations in, judicial independence, critical nature of,
61 164
self-defence, right of, 62 Rwanda
State responsibility, as to, 252 atrocities, eect of, 2, 93
warfare, use of means of, 61-69 investigation and prosecution of oenses,
weapons inherently indiscriminate, use 120
of, 73 peace-keeping operation in, 516
Protected persons tribunal. See International Criminal Tri-
Bosnia-Herzegovina, in, 34 bunal for Rwanda
civilian, denition, 36
nationality test, 34-38 S
new interpretation of, 36-38 Sanctions
redenition, 33-38 arms and training, prohibition on, 502
restriction of rights, lack of eect of, 39 assessments of, 508
universal jurisdiction, treaties creating, civilians, harming, 499-500, 503
120 coherent approach, development of, 501
victims. See Victims Darfur, in, 502
Yugoslav conict, in, 34 economic, decisions on, 500
Public international law eectiveness of, 499
humanitarian norms, inuence of, 3 fairness-based approach, 500
Public order Federal Republic of Yugoslavia, against,
international community, of, 206 505
foreign policy tool, as, 497
544 Index
humanitarian and human rights factors in, jus cogens, acceptance of, 392-394
497-509 law of treaties, extension of jus cogens
humanitarian exemptions, 502-507 beyond, 396-398
Iraq, against, 503-504 sources of, 394-396
legality of, 500 State practice, 360-366
Libya, against, 504-505 South African Mandate
management of, 506 legal interest in performance of, 279
morality-based approach, 500 Special Court for Sierra Leone
multilateral, 497-498, 502 legality principle, 419
programs, application of humanitarian nullum crimen sine lege principle, applica-
law to, 507-509 tion of, 419-420
protection from, 503 preliminary motions, decisions on, 419
rationale and justication, 498 State practice
Security Council resolutions, 501 claims and response quality, 361
side eects of, 507 droit de regard, 365
specically targeted, 508 evidence of, 360
Taliban, resolutions on, 501 expansion of concept, 361
target States population, impact on, 499 inclusive view, 362
Self-defense inconsistent, 371-374
humanitarian interventions as, 517-518 matters relevant to, 361-362
necessity and proportionality, conditions opinio juris, relationship with, 368
of, 62 quasi-universal adherence to UN Charter,
nuclear weapons, use of, 62, 77 including, 365
rule, 372 resolutions and declarations as instance
Self-determination of, 388-390
assertion of right to, evolution of, 280 source of international law, as, 360-366
autonomy claims, refocusing, 492-493 State responsibility
International Court of Justice, considera- another State, to, 259
tion by, 433 breach of conventional obligation, for, 209
territorial State, within, 492 community interests, shift to, 247
Sexual oenses conduct inconsistent with international
Rome Statute, provisions of, 153 obligations, for, 248
Slave trading countermeasures, 287-301. See also Coun-
individuals, responsibility of, 316-317 termeasures
Somalia damage not essential to, 249-250
UN intervention in, 514-516 damage to particular State, elimination of,
Sources of international law 249-250
expansion, 389 decisive criterion for determining, 251
general principles of law, 383-387 diplomatic protection, 301-306. See also
human rights, inuence of, 357 Diplomatic protection
inconsistent practice, 371-374 environment, for, 278
international organizations, role of, erga omnes duties, unilateral response to
enhanced, 387 violations of, 282
internal rules, 387 ILC draft articles,
non-governmental, 390-392 Barcelona Traction pronouncement, at-
resolutions and declarations, 388-390 tempt to clarify, 263
opinio juris, 366-370 injured States, identication of, 274
persistent objector, binding, 374-376 international crimes, satisfaction for, 269
preremptory rules, internationally wrongful acts, dening,
catalogue, lack of, 395 247
Index 545
research and codication agenda, 264 government and governed, inuenced by

wrongfulness, circumstances precluding, relationship of, 307
251-255 human rights considerations, 307
injured States, to, 272-275, 283 practice, examination of, 310
international community, to, 259 Second World War, after, 308
international crimes, for, 265-270 Soviet Union, following break up of, 308
international wrongful acts. reactions to, Yugoslavia, following dissolution of, 309
283 standing to sue, 248
internationally wrongful acts, for, 247 violations by, standing to sue, 258-259
non-governmental acts, for, 466-470
objective, 250 T
obligation, violation of, 250 Terrorism
obligations erga omnes, 256-265 universal jurisdiction, treaties creating,
scope of, 276 120
origin of, 247-251 war on, 88
proportionality, principle of, 252 Torture
protection of rights, interest in, 281 denition, 4
rights and remedies, grave breach, as, 127
choice of remedies, 281-287 peacetime in, 127
injured States, of, 272-275 private, perpetrator of, 5
State-centric enforcement, departure prohibition,
from, 270-272 armed conict, in time of, 373
stability and prevention of abuse, consid- excluding, 373
erations of, 281 jus cogens, as, 397
territorial scope, 462-466 Rome Statute, denition in, 151
unilateral State action, application of universality of jurisdiction, 92
terms of preremptory norms to, 397 Trade unions
wrongfulness, circumstances precluding, right to form and join, 467-468
consent of State to which obligation Treaties
owed, 255 automatic succession, rule of, 199-200
distress, 251-252 bilateral,
force majeure, 251-252 conclusion of, 189-190
ILC draft articles, 251 interpretation, 197
necessity, 252-255 bilateral relations under, 256-257
State sovereignty breach, termination or suspension on, 295
protection of, 92-93 codication of law, 392
State succession community values, statements of, 257
treaties, to. See Treaties conversion to custom, 378
jus cogens, application of, 398 custom, relationship with, 376-383
States customary law, as, 191-192
authorized agents under jurisdiction of, norms transformed into, 358
464 denunciation, 205, 208-209
damage to, elimination of, 249-250 clause, 358
governments, recognition of, 313-314 independent international law obliga-
international organizations, admission to, tions, not aecting, 358
310-313 direct rights, grant to individuals, 40
recognition, economic and social elds, in, 188
conditions for, 307 erga omnes doctrine, development of, 191
EC Guidelines for, 308-309 freedom to conclude, 202
546 Index
fundamental rules not to be derogated invalidity, 203

from, 204 investment, arbitration mechanisms, 324-
Havana Convention, 219 327
human rights and humanitarian law, jus cogens,
automatic succession to, 215-216 abusively invoked, 203
European Convention, 192, 194 human rights, relationship with, 201-
evidence of customary law, as, 380 207. See also Jus cogens
individuals, rights of, 193 ILC commentary, 203
International Court of Justice, reference mainstream of international law, in, 203
to, 425 practical importance, limited, 206
interpretation, 444-446 signicance of, 206
inter-State procedures, 304 material breach, 209-211
jurisdictional clauses, of, 197-199 medium of general international law, as,
legality of reservations, determining, 246 386
monitoring bodies, control of reserva- multilateral,
tions by, 244-246 conclusion of, 189
multilateral, 187 contemporary international law, central
non-reciprocal character of, 211 to, 189
normative, 187 customary law, as evidence of, 377, 379
occupied territories, application to, 200 denition and nature of, 189-190
remedies, 291 human rights, 187
reservations, 224-227 international organizations, creation of,
settlement of disputes, 291 187
special character, of, 191 joining, 191
specic characteristics of, 237 obligations erga omnes, and, 287
territorial scope of responsibility, 462- procedures and institutions for enforce-
466 ment, 291
tribunals, emphasis of character by, 192 reservations to. See reservations, below
unacceptable reservations, 238 subject matter of, 187
Vienna Convention, reference in, 188 newly independent States, clean slate for,
ILC draft articles, 189 212
individuals, application to, 189 normative,
internal law, transformation into, 358 characteristics of, 188
interpretation, community values, reecting, 210
bilateral, 197 contractual, technical or administrative
compulsory jurisdiction, acceptance of, provisions, 190
199 human rights and humanitarian law, 187
dynamic, 201 reservations, admissibility of, 227-241
EU law, 196 subject matter of, 190
good faith, in, 193 obligations created by, 257
human rights tribunals, approach of, pacta sunt servanda, rule of, 204
194-195 par excellence of international law, as, 360
jurisdictional clauses, of, 197-199 relevant practice for purpose of custom-
object and purpose, according to, 193, ary law, not, 377
195, 199 reservations,
primary rule of, 193 American Convention on Human
protections, to maximize, 200 Rights, to, 236-237
re-interpretation, 197 codifying treaty, to, 229-230
right of access to courts, 194 communication of, 222
traditional schools of, 194 compatibility, question of, 228
Index 547
customary law, to, 228-232 automatic, 213-214

denunciation and re-accession, by, 240 colonies and non-colonies distinguished,
development of law, 223 212-213
European Convention on Human Rights, continuity, no rule of, 213
to, 235-236, 443-444 declaration of, 213
exible system for, 223-224 general normative conventions, to, 214
general regime, evolution of, 221 Genocide Convention, 216
Genocide Convention, to, 219-221, 243 Hong Kong, position of, 215-216
human rights bodies, assessment of ad- human rights treaties, to, 215-216
missibility by, 241-246 multilateral treaties, 212-215
Human Rights Committee, to compe- personal and dispositive obligations dis-
tence of, 243-244 tinguished, 211-212
human rights treaties, 224-227 presumption of continuity, 217
illegal, eect of, 235 principles of international law, treaties
Inter-American Court, withdrawal of codifying or developing, 214
recognition of, 236-237 successor State, type of, 212
interpretation and determining validity Vienna Convention on, 211-213
of, 241 suspension for violation of essential provi-
invalid, legal eect of, 228 sion, 359
minor, objection to, 220 termination, 203
modication to declaration, 240 denunciation, 205, 208-209
monitoring bodies, control by, 242 essential provision, violation of, 359
non-derogable provisions, to, 232-234 material breach, 209-211
normative treaties, to, 227-241 Vienna Convention, provisions of, 208
object and purpose test, 220, 227 withdrawal from, 208-209
objection to, 234 universal, authority of, 386
permissibility school, 228 universal jurisdiction, creating, 119-120
preremptory norms, to, 232-234 unlawful use of force, contemplating, 203
procedural provisions, to, 241-246 Vienna Convention,
ratication, incidental to, 234 human rights and humanitarian law,
relationship of States, eect on, 229 reference to, 188
remedies, to, 241-246 material breach, provisions on, 209-211
rule of law, 222-223 termination, provisions on, 208
severability, 234-241 violations, challenging, 278-280
State practice, 218 war, application in time of, 201
substantive obligation, to, 240 withdrawal from, 208-209
territorial, 236 Trial
tests, 218-224 fair, to be, 159-160
time of, 239 fundamental norms protecting individu-
unanimity rule, 218-219 als, 157
departure from, 222 in absentia, 162
Vienna regime, 224-227 speedy, requirement of, 160-161
withdrawal of, 240 Trust of civilization
severability, protection of, 260
Human Rights Committee doctrine, 238
integrity, and, 234 U
issue of, 234 United Nations
unacceptable reservations, of, 238 admission of States to, 310-311
succession to, Congress on Prevention of Crime and the
arms control agreements, 214, 217-218 Treatment of Oenders, 475
548 Index
Crime Prevention and Criminal Justice Rwanda, in, 516

Division, 475 UNTAC, 484
democracy, promotion of, URNG, 484
Declaration of Quebec, 487 reporters, mandate, 52
domestic aairs, involvement in, 495 sanctions. See Sanctions
election monitoring, 496 Secretary-General,
electoral missions, 493-494 Agenda for Development, 476
free elections, issue of, 486-489 member governments, relations with,
human rights, link with, 493 473
limiting of activities, 494 promotion of human rights, role in, 473
monitoring missions, 491 Security Council,
normative standards, 486-492 criteria for action, inconsistent, 513
party pluralism, 490-491 human rights, competence to address,
practice, 492-497 510-511
standards, derivation of, 489-490 humanitarian crises, measures to allevi-
voter eligibility, 490 ate, 511-513
Development Programme,. 477 impunity, ghting, 180-181
domestic aairs of States, non-interven- internal conicts, challenge of, 512
tion policy, 483 internal situations warranting interven-
human rights, tion, 514
centrality of, 473-474 threat to peace, dealing with, 512
Charter practice, Verication Commission in Guatemala, 52
democracy, promotion of, 486-497 United Nations Compensation Commis-
peace-keeping operations, 483-486 sion
scope of,483 establishment of, 337
International Commission of Inquiry on non-governmental actors, access by, 337-
Darfur, 52 338
international humanitarian law concerns, procedure, 338-339
51 urgent claims to, 338
multilateral intervention by, United Nations Convention on the Law of
forcible, 510 the Sea
Haiti, in, 516-517 exploration and exploitation of deep sea-
humanitarian assistance, 509-510 bed, dispute settlement, 330
humanitarian crises, measures to allevi- International Tribunal, 329-332
ate, 511-513 settlement of disputes, fora for, 329
internal situations warranting, 514 United Nations High Commissioner for
Iraq, in, 514 Human Rights
Iraq, invasion of, 526 competing considerations, balancing, 474
Rwanda, in, 516 government support, dependence on, 475
Security Council resolutions, under, mandate, 474
510-517 oce of, 474
Somalia, in, 514-516 United States
Observer Mission in El Salvador, 52 International Criminal Court, opposition
peace-keeping operations, to, 155-156
FMLN, 484 Panama, military action in, 53
human rights training, 485 Universal jurisdiction
human rights, and, 483-486 absence of connection with State, exercise
MINUGUA, 484 in, 121-123
multidimensional, 485 basis for, 110
ONUSAL, 484 crimes against humanity, over, 120, 125
Index 549
crimes subject to, 120 jurisdiction, confused with, 113

custodial State and State of nationality, criminalization,
diculties between, 128 inuence on, 91
Geneva Conventions, breaches of, 125-126 Rome Statute, 99
governments protesting, 128 customary international law, part of, 108
growth of, 185 grave breaches system, 117
Institute of International Law, resolution individual criminal responsibility, basis
of, 123 for, 110-114
internal armed conicts, right to pros- individual defendants, obligations binding
ecute oenses, 123-124 on, 114
international crimes, over, 123 internal armed conicts, right to pros-
international oenses, over, 124 ecute oenses, 123-124
law of war, under, 40 joint liability, 108
mechanism of enforcement, as, 118 mass atrocities, legal action against, 91-92
nationality of accused and location of non-grave breaches, jurisdiction over,
crime, irrelevance of, 119 123-129
non-grave breaches, over, 123-129 penalties, 102
oenses involving, 119 prosecutions, 91
Princeton Principles, 122 Protocol, of, 128
principle of, 118 repression, criminal system of, 128
torture oenses, for, 92 retrospective penal measures, 101-103
treaties creating, areas of, 119-120 Rome Statute, provisions of, 152
true meaning of, 126 scope of, 111
universal condemnation of crime, require- subordinate, committed by, 108-109
ment of, 119 torture, 127
war crimes, over, 129-132 universality of jurisdiction, 110, 118-123.
See also Universal jurisdiction
V violence to life and person, 107
Victims
convergence of protection, 45-50 W
fundamental standards of humanity 58-61 War crimes
human rights treaty bodies, representa- command responsibility, doctrine of, 407-
tion before, 343 408, 410-412, 415-416
humanitarian law, domestic oense, distinguished from, 134
application by human rights organs, Hague law, under, 132
50-55 ICTY, prosecutions in, 139. See Interna-
contexts, application of human rights tional Criminal Tribunal for the Former
law in, 55-57 Yugoslavia
inalienability of rights, 38-41 individuals, responsibility of, 316-317
individual rights and duties, 38-41 internal conicts, in, 132-139
minimum humanitarian standards, 58-61 international law, under, 130
personal autonomy, 41-45 International Military Tribunal, jurisdic-
Vienna Convention on the Law of Treaties tion of, 104
jus cogens, recognition of, 38 jus gentium, crimes against, 130
Violation of humanitarian law law coming of age, 181-185
accountability for, 11 law of war, violations of, 113
Belgian law, 120-122 Martens Clause, eect of, 19
crimes against humanity. See Crimes municipal and international law, under,
against humanity 138
criminality, 110-118
550 Index
non-international armed conicts, cus- non-combatants, protection of, 1

tomary law rules applying to, 110 nongovernmental actors, atrocities by, 87
persons present in country, prosecution personal freedom allowing deprivation
of, 131 of, 8
political debate, 179 reciprocity, principle of, 15
Rome Conference on the Establishment of religion as basis for, 1
an International Criminal Court, formu- renaissance, 9
lation in, 23 reprisals. See Reprisals 14
Rome Statute, revision, inuence of human rights, 67
exercise of jurisdiction under, 156 right to life, and, 438-439
provisions of, 149, 151 si omnes clause, 9-10
scope of, 110 State-centric approach, 34
superior, responsibility for previous acts, symmetry, assumption of, 86-87
408-410 universality of jurisdiction, 40
universal jurisdiction over, 120, 129-132 violations, nature of, 103-104
basis for, 110 Warfare, means of
War, law of air power, development of, 64
accountability and protection rules, 1 ban on, 24
basis of, 1 chemical, 50
chivalry as basis for, 1 customary law, subject to, 26
civil wars, extension to, 93 dum-dum bullets, use of, 63, 74
collateral casualties, concern for, 68 Hague Law, 64
collective responsibility, driven by, 1-2 ICRC Draft Rules, 64-65, 67
combatants, protection of, 1 inherently indiscriminate, regulation of,
eectiveness, limitations, 85-89 78-80
gaps in protection, 47 internal armed conicts, limitation of use
human beings, protection of, 5 in, 136
humanization, land mines. See Land mines
armed conict, ending, 9 legality, evaluating, 27
contradiction, as, 9 legality of use of weapons, 76
Martens Clause, 5, 13 long-range missiles, development of, 64
non-international conicts, extending poison, 63
to, 9 prohibition, 23
post-UN human rights instruments, im- obtaining, 28
petus from, 5 proportionality, principle of, 61-69
process of, 1 unnecessary suering, causing,
progress in, 85 prohibition, 69-73
terrorism, eect of, 88 regulation of, 78-80
inter-State law, as, 1 weapons. See Weapons
international humanitarian law replac- Weapons
ing, 1 abhorrence of, 23
jus ad bellum, 86 civil aircraft, sue against, 22
jus in bello, 86 incendiary, 79-80
killing and wounding of innocents, tolera- inherently indiscriminate,
tion of, 8 Conference of Government Experts, 78
military necessity and requirements of Convention, 78-80
humanity, equilibrium between, 70 denition, 73-74
military strategy and victory, considera- prohibition, 73-78
tions of, 1 proportionality, principle of, 73
nationals, rules binding, 40 regulation of, 78-80
Index 551
internal armed conicts, limitation of use International Center for Settlement of In-
in, 136 vestment Disputes, as organization of, 325
laser, 84-85 mandate, interpretation of, 479
legality, evaluating, 27 participatory development policy, 480
non-detectable fragments, causing, 79 participatory rights, embracing, 480
nuclear. See Nuclear weapons World Trade Organization
particular, ban on, 24 dispute settlement mechanism, 319-321
prohibitions, obtaining, 28 global demands, responsiveness to, 320
Rome Statute, provisions of, 152 non-governmental organizations, partici-
unnecessary suering, causing, pation by, 319-320
characterization, 70 World War II
Conference of Government Experts, 78 competence to prosecute war criminals
Convention, 78-80 after, 118
eects, 71-72 events, prosecutions linked with, 92
incurable wounds, causing, 72 recognition of States after, 308
open-tip ammunition, 71
prohibition, 69-73 Y
regulation of, 78-80 Yugoslavia, former
tests of, 71 atrocities, eect of, 2, 93
Women bombing targets, 85
gender crimes jurisdiction, 179 investigation and prosecution of oenses,
rape and violence against, 179 120
World Bank Kosovo War, 520-523
development activities, funding, 479-480 NATO States, cases against, 523
development, visions on, 478-479 recognition of States following break up,
economic and political factors, distin- 309
guishing, 482 sanctions against, 505
human rights, consideration of, 481-482 tribunal. See International Criminal Tri-
Inspection Panel, 327-329, 480 bunal for the Former Yugoslavia
THE HAGUE ACADEMY OF INTERNATIONAL LAW MONOGRAPHS
1. Ian Brownlie, The Rule of Law in International Aairs: International Law at

the Fiftieth Anniversary of the United Nations, 1998 isbn 90 411 1068 2
2. Shabtai Rosenne, The Perplexities of Modern International Law, 2004

isbn 90 04 13692 4
3. Theodor Meron, The Humanization of International Law, 2006

isbn 90 04 15060 9
4. Symeon C. Symeonides, The American Choice-of-Law Revolution in the

Courts: Today and Tomorrow, 2006 isbn 90 04 15219 9

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The Humanization of International Law

THE HAGUE ACADEMY OF INTERNATIONAL LAW MONOGRAPHS

MARTINUS NIJHOFF PUBLISHERS

Printed on acid-free paper.

isbn hardback: 90 04 15060 9

Copyright 2006 The Hague Academy of International Law.

Printed and bound in The Netherlands.

Chapter 1: The Humanization of the Law of War 1

II. Weapons of a Nature to Cause Unnecessary Suering or to be

Chapter 2: Criminalization of Violations of International

Chapter 3: The Law of Treaties 187

I. Withdrawal and Denunciation 208

Chapter 4: Humanization of State Responsibility: From Bilateralism

Chapter 5: Subjects of International Law 307

b)Investment Treaties and ICSID 324

Chapter 6: Sources of International Law 357

Chapter 7: International Courts 425

IV. State Sovereignty, Consent to the Convention and Admission to

Chapter 8: UN Institutions and the Protection of Human Rights 473

I am grateful to the Curatorium of the Hague Academy of International Law for

A. Introduction and General Principles

ant collective sanctions of classical international law: belligerent reprisals durante

3 Abi-Saab, International Criminal Tribunals and the Development of International

nature of conicts from international to internal has drawn humanitarian law in

7 Meron, supra note 5, at 56-57; Meron, The Humanization of Humanitarian Law, 94

Thus, a perpetrator of private torture may be subject to individual criminal re-

a requirement under customary international law in relation to the criminal respon-

The Geneva Convention contains detailed provisions on the protection aorded

The High Contracting Parties, conscious of their obligation to come to an agreement

17 Commentary on the Geneva Convention (IV) relative to the Protection of Civilian

beneciaries of humanitarian protection, i.e. individuals and groups of individu-

21 Abi-Saab, The Specicities of Humanitarian Law, in Studies and Essays on Interna-

B. From an Inter-State to an Individual Rights Perspective:

24 Reports of the Secretary-General on Respect for Human Rights in Armed Conicts,

present Convention in all circumstances,30 epitomizes the denial of reciprocity.

Belligerent reprisals rest on the idea of solidarity, of holding members of a com-

Property. Rule 148 prohibits reprisals in non-international armed conicts. The

C. The Martens Clause, Principles of Humanity, and Dictates of Public

48 These phrases appear, respectively, in Article 23(e) of Hague Convention No. II of

I. The Origins of the Clause

II. The Modernization of the Clause

65 8 Diplomatic Conference on the Rearmation and Development of International

III. The Clause and General Principles

70 See Meron, supra note 5, at 34, 72.

In the decision pursuant to Rule 61 in the Marti case, which concerned

as being incompatible with elementary considerations of humanity, the rules of cus-

IV. The Clause and Public Conscience

80 See Meron, supra note 6, at 30409.

83 See Greenwood, Historical Development and Legal Basis, in Handbook of Humani-

V. The Clause and the Nuclear Weapons Opinion

VI. The Current Significance of the Clause

nding of non liquet. It reinforces a trend, which is already strong in international

104 Military and Paramilitary Activities, supra note 19, at 95.

D. Applicability of International Humanitarian Law

I. The Thresholds of Applicability of Humanitarian Law

guished from non-international armed conicts to which the provisions of that

characterize an armed conict as international or not is apparent with regard to

the impetuous development and propagation in the international community of hu-

torture or the wanton destruction of hospitals, churches, museums or private prop-

II. Personal Applicability of Humanitarian Law Treaties: Redefining