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This article explores the significance of the reference, in proportionality analyses, to proper purpose and legitimate ends, given the traditional aversion of international humanitarian law (IHL) to questions of (political) legitimacy. It demonstrates the centrality of that aversion in doctrinal assertions concerning the goals, characteristics and operational strategy of IHL yet argues that, at its historical and conceptual foundations, the law draws on a construction of war that presupposes legitimacy of the political type. That construction remains embedded, though implicit, in contemporary proportionality analyses.
Thus, the instrumental understanding of war by Carl von Clausewitz poses several challenges to entrenched contemporary doctrinal claims about the law, how it operates and the effects it produces. This provides an impetus for critical reassessment of the aversion to politics and the interaction between the humanitarian, military and political spheres in the operation of IHL norms. Such critique helps to identify novel strategies of humanitarian protection in war outside the confines demarcated by orthodox doctrine.
The work of Carl von Clausewitz6.
Clausewitz, Carl von, [1832] 1976. On War, Michael Howard, and Peter Paret, eds. and trans. Princeton, NJ: Princeton University Press. View all references continues to provoke heated debate. For some scholars, Clausewitz's On War remains indispensable to serious thought on the resort to war in the modern period. Others, however, see Clausewitz's work as either outdated, or a morally repellent argument for unlimited, unrestrained and brutal warfare. This essay argues not only that Clausewitz's work continues to be relevant to discussions on the use of armed force, but also that On War provides a framework for ethical reflection on war and its conduct. Two main preoccupations of western military academies and staff colleges—Clausewitz on the one hand, and the just war tradition on the other—can complement, rather than rival each other. On War creates a space for reflection on the use of armed force, and for that reason if no other, should still be considered an important resource for contemporary students and practitioners of strategy.
The theoretical separation of jus ad bellum and jus in bello provides important protection during armed conflict. It guarantees that jus in bello will apply regardless of the cause of a conflict. However, this distinction has been challenged by the view that in some cases a situation of self-defence may be so extreme, and the threat to the survival of the state so great, that violations of jus in bello may be warranted. The situation is compounded by the confusion of the principles of necessity and proportionality under jus ad bellum and jus in bello in both academic writing and the jurisprudence of international courts. The dangers of blurring the distinction will be elucidated by examining how jus ad bellum considerations have affected the application of jus in bello in armed conflicts between states and non-state actors.
An army attacks a neighborhood where the enemy is hiding among civilians. To what extent is the army required to expose its combatants to life-threatening risks in order to spare enemy civilians? This Article seeks to interpret the pertinent standards and rules of international law from the perspective of the principle of human dignity. The human dignity principle informs the interpretation of the law on the conduct of hostilities and provides a built-in mechanism for improving armies' treatment of enemy civilians. It inspires additional remedial and institutional norms that could overcome armies' distrust of each other during the height of battle. The principle of human dignity recognizes a general duty to strive to reduce harm to enemy civilians as well as specific rules against using them as human shields, hostages, or objects for retaliation. This Article concludes that in general there is no requirement to risk combatants to reduce the risk to enemy civilians, although a number of the specific rules do entail the assumption of such risks.
The exercise of brute force by militaries, though common, reflects professional incompetency. A well-trained military has
an inherent interest in enhancing its operational effectiveness and constraining unnecessary brutality. The law of armed conflict,
however, generally ignores the constraining effect of the necessity principle, originally intended to allow only the minimally
necessary use of force on the battlefield. Consequently, the prevailing law places the burden of restricting the exercise
of brute military force upon humanitarian considerations (and the specific norms derived from them). Humanity alone, however,
cannot deliver the goods and substantially reduce war’s hazards. This article challenges the current dichotomy between the
two pillars – mistakenly assumed to be polar opposites – of the law of armed conflict: necessity and humanity. It calls for
the transformation of the military’s self-imposed professional constraining standards into a revised legal standard of necessity.
Though the necessity principle justifies the mere use of lethal force, it should not only facilitate wielding the military
sword but also function simultaneously as a shield, protecting combatants and non-combatants alike from excessive brutality.
The suggested transformation would bind and restrain the prospective exercisers of excessive force, political and military
alike, and restrict the potential damage that might be caused both intentionally (to combatants) and collaterally (to non-combatants).
The combined effect of the current changes in war’s pattern and the law of armed conflict, in the military and social thinking
of recent decades, and the new strategies available due to the development of new military technologies have all created a
new war environment – one that may be ready to leverage the constraining potential of military professionalism into a binding
legal standard and norms.
This article, whose materials are extracted from a wider project on the doctrinal and humanitarian significance of the 1899/1907
Martens Clause, reviews the strengths and limitations of competing interpretations and judicial applications of this Clause.
It identifies four distinct, if interrelated, approaches to defining its meaning and scope assessing each in turn. We take
issue with recent scholarship that restricts its applicability in various ways that deny its status as a separate and distinct
legal principle of direct and independent applicability to organized atrocities against civilians. We also dispute the view
that this Clause is best interpreted as an aide to judicial interpretation, rather than as an independent source of international
criminal law, by showing that this interpretation is inconsistent with a number of important cases whose authority appears
to be well established and unobjectionable. Furthermore, the moral imperatives that clearly shape the language of the Clause
and have been realized in many of its accumulated judicial applications, positively require this measure to be interpreted
and applied as a freestanding legal norm—albeit one that has to operate as supplement for, rather than alternative to, other
more specific legal rules and principles.
I shall confine my brief thoughts on the recent advisory opinion of the International Court of Justice (ICJ) on the legal consequences of the construction of a wall in the occupied Palestinian territory (OPT) to the Court’s treatment of international humanitarian law (IHL) in general, and to the law of belligerent occupation in particular. To that end, I will focus on the following four areas: the Court’s consideration of the applicable law as regards IHL; the Court’s interpretation of Article 6 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War; the Court’s consideration of the concept of military necessity in the context of foreign military occupation; and the Court’s consideration of the responsibility of third states, particularly the high contracting parties to the Fourth Geneva Convention, for violations of relevant principles of IHL by an occupying power.
With considerable frequency moral dilemmas have prompted ethicists to turn to the principle of double effect. Questions concerning sterilization, prophylactic devices, hunger-fasts, military strikes, and euthanasia have made us think of the principle as a handy problem-solving device. Raise a moral conflict, and the principle is profered. The process of applying the principle is disturbing because it suggests that the principle itself justifies moral solutions
The problems raised by the unwillingness en masse of the North Korean and Chinese prisoners of war to be repatriated in accord with the rights given them under the 1949 Geneva Convention, present, in a revealing perspective, the test to which the Korean conflict has put positive international law. Apart from the final solution, which is based on a United Nations resolution grounded in valid international law, the attitude of both sides throughout the Pan Mun Jom negotiations raised quite sharply several questions. Standing out among them was, on the side of the United Nations, the policy question of confidence in, and application of, international law, and the legal question of its dynamic interpretation and adjustment. More generally and, in part, de lege ferenda, the ideological basis of the war prisoner issue raised a fundamental question of values, and added a new dimension to one of the central foci in the modern development of international law: the rights of individuals, per se and in their relations to the rights of states. Viewed from this standpoint, the prominence of the prisoner-of-war question in the armistice negotiations looks much less incidental or opportunistic than some current commentaries may have made it seem.
To many international lawyers and army officers the terms “law of war” and “military necessity” are mutually incompatible. Many army officers consider the law of war as no more than a collection of pious platitudes, valueless, so they think, because it has no force and effect. Some international lawyers regard military necessity as the bête noire of international jurisprudence, destroying all legal restriction and allowinguncontrolled brute force to rage rampant over the battlefield or wherever the military have control.
This article examines two issues raised by Professor Goodman’s article published in this volume of EJIL: (1) a purported obligation under international humanitarian law (IHL) to minimize harm to enemy fighters; and (2) a purported
IHL duty to capture rather than kill when doing so is feasible in the circumstances. It notes that situations in which it
is possible to wound rather than kill enemy fighters are rare on the battlefield. However, even when such circumstances do
present themselves, there is no obligation under the extant IHL to do so. Similarly, there is no duty to capture rather than
kill under the existing law. Nevertheless, the article offers an analysis that would extend hors de combat status to enemy fighters who have been effectively captured, thereby shielding them from attack. Accordingly, the approach
would often arrive at the same conclusion as that proposed by Professor Goodman, albeit through a different legal lens. The
article concludes by noting that although there is no ‘capture-kill’ rule in IHL, for operational and policy reasons, capture
is usually preferred.
The centennial of the Hague Convention (No. II; No. IV in the 1907 version) on the Laws and Customs of War on Land and the fiftieth anniversary of the four Geneva Conventions for the Protection of Victims of War of August 12, 1949, present an opportunity to reflect on the direction in which the law of war, or international humanitarian law, has been evolving. This essay focuses on the humanization of that law, a process driven to a large extent by human rights and the principles of humanity. As the subject is vast, major issues must inevitably be left out of my discussion, including the impact of the prohibitions on unnecessary suffering and indiscriminate warfare on the regulation of weapons, the proscription of antipersonnel land mines and blinding laser weapons, and the progression of international humanitarian law from largely protecting noncombatants to protecting combatants as well.
Together with the principle prohibiting weapons “of a nature to cause superfluous injury” or “calculated to cause unnecessary suffering,” the Martens clause, in the Preamble to the Hague Conventions on the Laws and Customs of War on Land, is an enduring legacy of those instruments. In the years since its formulation, the Martens clause has been relied upon in die Nurembergjurisprudence, 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 die 1949 Geneva Conventions for the Protection of Victims of War, the 1977 Additional Protocols to those Conventions, and the Preamble to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, albeit in slightly different versions. The Martens clause was paraphrased in Resolution XXIII of the Tehran Conference on Human Rights of 1968, and is cited or otherwise referred to in several national military manuals, including those of the United States, die United Kingdom, and Germany. Moreover, attempts have recently been made, including by parties before die International Court of Jusdce, to invoke the clause, in the absence of specific norms of customary and conventional law, to oudaw the use of nuclear weapons.
Military necessity was first stated as a legal principle in General Orders No. 100, a codification of the law of war drafted by Francis Lieber and issued by President Lincoln in 1863. Controversial from the beginning, the principle was nevertheless intended as a new restraint on military discretion, as Lincoln's application of it during the Civil War demonstrates. Military necessity remains an important restraint on military operations in new situations for which specific rules have yet to be established.
The principle of proportionality is one of the core principles of international humanitarian law. The principle is not easy to apply on the battlefield, but is even harder to apply retrospectively, in the courtroom. This article discusses the challenges in applying the principle during international criminal trials. It discusses the principle itself, followed by an explanation of the general challenges of dealing with violations of international humanitarian law, and more specifically the rules related to the conduct of hostilities, during war crime trials. The way in which the principle has been used before the International Criminal Tribunal for the former Yugoslavia is examined, including an in-depth discussion of the recent Gotovina case. The second part consists of an evaluation of Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court, and discusses the difficulties the International Criminal Court would face in cases dealing with violations of the principle of proportionality.
Military and humanitarian lawyers approach the laws of war in different ways. For military lawyers, the starting point is military necessity, and the reigning assumption is that legal regulation of war must accommodate military necessity. For humanitarian lawyers, the starting point is human dignity and human rights. The result is two interpretive communities that systematically disagree not only over the meaning of particular law-of-war norms, but also over the sources and methods of law that could be used to resolve the disagreements. That raises the question whether military lawyers’ advice should acknowledge any validity to the contrary views of the ‘humanitarian’ community. The article offers a systematic analysis of the concept of military necessity, showing that civilian interests must figure in assessing military necessity itself. Even on its own terms, the military version of the law of war should seek to accommodate the civilian perspectives featured in the humanitarian version.
Since the 1967 War, in the course of which Israel occupied the West Bank and Gaza, the Supreme Court of Israel has considered thousands of petitions relating to acts of the military and other authorities in those territories (OT). This article reviews the contribution to the law of belligerent occupation of the Court's jurisprudence in these cases. After discussing issues of jurisdiction and the applicable norms, the article reviews the way in which the Court has interpreted military needs, the welfare of the local population, changes in the local law, and use of resources; the attitude of the Court to the long-term nature of the occupation and the existence of Israeli settlements, settlers, and commuters in the OT; the introduction of a three-pronged test of proportionality in assessing military necessity; and hostilities in occupied territories. In the final section, I draw some general conclusions on the Court's contribution to the law of occupation.
Understanding military necessity properly involves identifying and distinguishing between the material, normative and juridical contexts within which it appears. Within the juridical context, military necessity functions exclusively as an exceptional clause attached to provisions of the law that envisage its admissibility expressly and in advance. As an exceptional clause, military necessity exempts a measure from certain specific rules of international humanitarian law prescribing contrary action to the extent that the measure was required for the attainment of a military purpose and otherwise in conformity with that law. This definition gives rise to four requirements: that the measure be taken primarily for some specific military purpose, that the measure be required for the attainment of that purpose, that the purpose be in conformity with international humanitarian law, and that the measure itself be otherwise in conformity with that law. The International Criminal Tribunal for the Former Yugoslavia (ICTY) has generated a growing body of jurisprudence on the absence of conditions satisfying exceptional military necessity as an element of several war crimes and crimes against humanity. The ICTY has interpreted military necessity exceptions effectively even in highly complex factual circumstances such as those involving combat-related property destruction in a manner that is broadly consistent with the four requirements just noted. It remains to be seen how the International Criminal Court (ICC) will fare in this regard. The ICC would do well to treat with caution Article 31(1)(c) of its statute, which provides for the exclusion of criminal responsibility for certain acts, including those reasonably taken in defense of property essential to accomplishing a military mission.
The increased fragmentation of international law has been accompanied by a more problematic phenomenon: institutional fragmentation that has strengthened the role of specialised regimes (e. g., WTO, EU, human rights and environmental regimes) within the international legal system. "The emergence of seemingly independent subregimes has given rise to a number of legal concerns – among these is the existence of normative conflicts between regimes." In a recent report by the Chairman of the ILC Study Group on Fragmentation of International Law, Martti Koskenniemi, dealt with the role of the lex specialis maxim as a means of addressing the relation between selfcontained regimes and general international law. This article argues that an application of lex specialis, although widely accepted, is impeded by its conceptual vagueness. Lex specialis may be well-suited to resolve certain types of normative conflicts, such as conflicts within sub-regimes, which may be viewed as a more traditional manifestation of normative conflicts. The fragmentation of international law, however, has also created new types of conflicts, namely those between different, seemingly independent normative orders. The article suggests that the lex specialis maxim is a less-suitable approach to normative conflicts between such unrelated normative orders. In a fragmented legal system such as that of international law, these types of conflicts may, accordingly, prove a particular challenge.
If conduct is consistent with the laws of war, may it nonetheless constitute crimes against humanity during an armed conflict? Crimes against humanity initially emerged during the World Wars, in order to extend the protection of the laws of war to a perpetrator's co-nationals. This new category initially required a nexus with international armed conflict, but is now an autonomous concept based on human rights law that criminalizes large-scale atrocities in both war and peacetime. Crimes against humanity committed in armed conflict continue to be shaped by the laws of war. There is substantial convergence between the normative core of ‘non-derogable’ human rights and the minimum humane treatment standards in the Geneva Law. However, there is considerable divergence with respect to combat operations where the Hague Law applies as lex specialis, displacing certain human rights norms. ICTY jurisprudence demonstrates some of the instinctive tensions inherent in reconciling human rights with armed conflict. A notable instance is the Gotovina case, in which the Trial Chamber held that the laws of war do not apply to ‘deportation’ qua crimes against humanity such that there is no distinction between forcible displacement of civilians in occupied territories as opposed to combat operations. The temptation to dilute the laws of war through reclassification of conduct as crimes against humanity should be resisted because it does not necessarily result in increased protection for civilians in times of armed conflict. Utopian jurisprudence that disregards humanitarian law's realistic code of conduct in the name of progress risks making the law irrelevant to military commanders.
This article examines what it might mean for officers to be held responsible for safeguarding not just the lives of their troops, but also the humanity of their troops. How should such a charge be understood, and can it be justified? Arguably, any experience of combat is an assault on the participants' humanity. The idea that officers should try to shield their troops from combat altogether, however, is untenable, for reasons that are discussed (including the danger of selective conscientious objection). Nor, it is argued, can officers guarantee or ensure that they will never lead troops in conflicts that violate jus ad bellum criteria. If officers are to be held responsible for protecting their troops in any way beyond the physical, it must be against specific, severe threats to their humanity that occur in the course of waging war. Candidates for threats of this kind are considered, leading to the conclusion that the greatest threats arise from jus in bello violations that dehumanize the victim and degrade the perpetrator. The question is then raised whether officers in fact can protect their troops from committing such violations, and the argument is advanced that the command climate officers create in their units plays a significant role in encouraging or deterring serious transgressions of the warrior's code.
Professor Hart defends the Positivist school of jurisprudence from many of the criticisms which have been leveled against its insistence on distinguishing the law that is from the law that ought to be. He first insists that the critics have confused this distinction with other Positivist theories about law which deserved criticism, and then proceeds to consider the merits of the distinction.
The 1999 NATO bombing campaign against the Federal Republic of Yugoslavia relied upon modern precision weaponry and purported to pay due regard to contemporary legal standards, in particular to the requirement to limit incidental civilian casualties. There are no such things as error-free wars or casualty-free wars. It appears, however, that NATO classified a wider range of objects as military objectives than has traditionally been the case, in particular the RTS broadcasting station headquarters in Belgrade. It also appears that some earlier bombing campaigns (the 1972 'Linebacker 2' campaign against North Vietnam which was conducted at the dawn of the era of precision weapons is an example) were conducted paying equal regard to the requirement to limit incidental civilian casualties.
In the future, it is likely that many battles will be fought in an urban environment. In such battles, the risk to both the civilian population and to attacking soldiers will be drastically increased. As a result, commanders will certainly face the very difficult dilemma of determining the amount of danger to which they will expose their forces in order to limit civilian casualties. Additionally, both strategic and tactical considerations will continue to play an influential role in determining their course of conduct on the battlefield.
The article considers whether a state owes any obligation under international humanitarian law or under human rights law to its own soldiers killed or injured during an armed conflict or an occupation of territory. Whether a soldier's own state can be a cause (in conjunction with the acts of enemy forces) of his death during combat is explored through situations such as poor training, equipment, and leadership and of specific issues such as ‘friendly fire’ incidents. It marks out a distinction between causation and the responsibility of a state. Whilst there may be political, or even national law, pressures upon a government which is at fault to some degree in causing casualties amongst its own soldiers this article suggests that, in certain limited circumstances, a duty may crystallise under customary international humanitarian law or arise under human rights law on a state to prevent it being a cause of the death or wounding of its own soldiers. It concludes that soldiers are, perhaps, the last group involved in an armed conflict to be recognised as individuals who should be owed some obligation of protection, in this case, by their own state under international law.
Unlike most other areas of international law which address only State responsibilities, the law of war assigns to individuals the responsibility to observe positive rules. The threat of being charged with a war crime, with all the attached opprobrium, is the chief means by which observance of the law of war is ensured. No one could rightly argue that war crimes prosecutions, even if they were always effectively prosecuted – and they are not – ensure perfect compliance with the law, but they are the best mechanism devised to date. Although war crimes trials has earlier antecedents, the prosecutions following World War II marked the beginning of the modern war crimes model.World War II prosecutions were notable for the scale of atrocities alleged in the various indictments. Once the crimes were defined, and the architecture put in place to establish the various tribunals, proof of wrongdoing was rarely in doubt. There were expected legal issues to be sure: claims of ex post facto crimes, immunities for acts of state, and the defense of superior orders, among many others; but in general prosecutors fully expected convictions across the board. And many convictions did result, though there were several exceptions that resulted in full or partial acquittals.
The ‘direct participation’ exception to the principle of distinction, found in Article 51(3) of Protocol I and Article 13(2) of Protocol II, embodies a long-recognized concept in the laws governing armed conflict. For centuries the broad notion that humanity demands the protection only of those citizens who are harmless has found expression in the rules and norms relating to war. This article traces the historical factors and trends which influenced the development of the ‘direct participation’ exception in its current form, revealing a tendency towards ‘humanizing’ the law in favour of civilians, notwithstanding their increased military value.
In November 2000, a few weeks after the outbreak of a major uprising in the occupied West Bank and Gaza Strip, the Israeli government officially acknowledged it was operating a policy of targeted killing against selected Palestinian militants. On 14 January 2002, an Israeli (PCATI) and a Palestinian (LAW) human rights group jointly submitted a petition to the Israeli High Court to halt the policy and to issue an interim order suspending its implementation. The Court subsequently refused to issue the requested interim order and, when it finally delivered its judgment in the case on 14 December 2006, at least 213 targeted persons and 137 bystanders had been killed and hundreds of others injured in operations of targeted killing. In its judgment, the Court neither banned nor justified the state policy as a whole, but ruled that the lawfulness of targeted killings must be examined separately for each operation.
The dichotomy of reason and passion is so deeply embedded in the construction of what is ‘legal‘ that it seems difficult even to imagine an international law that would not be entrenched in it. The very identity of international law seems based on its capacity to set itself on the side of reason, in opposition to the passionate, the irrational. Is not reason practically synonymous with order, and passion with chaos? And what is law for if not to bring about order, and to allow exit from our slavery under passion? Is not reason what is universal and objective, while passion is particular and subjective? And is it not then the case that a law pretending to universality must perforce align itself with the forces of reason.
The law of armed conflict suffers from an internal ambiguity. The Declaration of St Petersburg (1868) made the ambiguity explicit when it stated that ‘the necessities of war ought to yield to the requirements of humanity’. The Lieber Code (1863) was less explicit, though it suffered from the same ambiguity. The Code received a lengthy critique from the Confederate Secretary of War who stated bluntly: ‘A military commander under this code may pursue a line of conduct in accordance with the principles of justice, faith and honour, or he may justify conduct correspondent with warfare of the barbarous hordes who overran the Roman Empire, or who, in the Middle Ages, devastated the continent of and menaced the civilisation of Europe’. Which of the two considerations, the Confederate Secretary demanded to know, should prevail: humanity or necessity?
The debate about the simultaneous applicability of international humanitarian law and human rights law also affects human rights treaty bodies. The article first considers the difficulty for a human rights body in determining whether international humanitarian law is applicable; second, it examines the problems in practice in applying the lex specialis doctrine and the question of derogation in this particular context. The author finally outlines the impact of the debate as to the extent of extraterritorial applicability of human rights law.
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On the 100th anniversary of the Declaration of St. Petersburg, the International Review of the Red Cross devoted to this important first document of the law of war an article examining the relation between the notion of the “legitimate object” of war as defined in the Declaration and the means of warfare used, whose lawfulness was declared to be limited by their conformance to that legitimate object and by their necessity. Since 1868 the law of international armed conflicts has been supplemented by Protocol I additional to the Geneva Conventions of 1949, which enlarged on the central point of the Preamble to the Declaration of 1868 — i.e. the concept of “maux superflus” (“superfluous injury or unnecessary suffering”); although it was not formulated as such until 1899 in Article 23 e) of the Regulations respecting the Laws and Customs of War on Land, it may, as we shall demonstrate, be traced back to the Declaration's Preamble. Protocol I broadened the concept's scope of application to include methods of warfare, but it also and above all introduced a new rule of considerable import by narrowing the definition of military objectives that may lawfully be attacked.
The ‘equal application’ principle is that in international armed conflicts, the laws of war apply equally to all who are entitled to participate directly in hostilities, irrespective of the justice of their causes. The principle, which depends on maintaining separation between jus ad bellum and jus in bello, faces serious challenges in contemporary armed conflicts and discourses. Some variations of the principle may be inevitable. However, it has a firm basis in treaties and in historical experience. It is the strongest practical basis that exists, or is likely to exist, for maintaining certain elements of moderation in war. The rival proposition – that the rights and obligations of combatants under the laws of war should apply in a fundamentally unequal manner, depending on which side is deemed to be the more justified – is unsound in conception, impossible to implement effectively and dangerous in its effects.
This article argues that the narrow definition of conflict apparently prevailing in international law doctrine and recent
WTO rulings is inappropriate in terms of legal theory and in view of the fundamental structures of the international legal
order. The problem with this strict definition is that it does not recognize that a permissive norm may conflict with a prescriptive
norm. In this perspective, established conflict rules such as the lex posterior and lex specialis principles cannot be applied in order to determine whether a permissive norm (such as a WTO exception or an MEA permission to restrict trade) actually constitutes the lex posterior or the lex specialis which was meant to prevail by the contracting parties. Further problems in recent academic writings and WTO jurisprudence
have been caused by an insufficient distinction between norms of conduct and norms establishing competences. This paper therefore
shows that an adequate definition has to encompass incompatibilities between prescriptive norms as well as permissive norms and concludes that an appropriate definition should rely on the ‘test of violation’ first introduced by Kelsen.
The Martens Clause is indisputably one of the contemporary legal myths of the international community. Being particularly ambiguous, it has been variously interpreted. The author dismisses the more radical interpretation whereby the clause upgrades to the rank of sources of international law the 'laws of humanity' and the 'dictates of public conscience'. The other, less extreme interpretation, whereby the clause merely serves to reject a possible a contrario argument, is equally without merit. He suggests that the clause was essentially conceived of, at the 1899 Hague Peace Conference, as a diplomatic gimmick intended to break a deadlock in the negotiations between the smaller and Great Powers. The clause could nevertheless be given a twofold legal significance. First, it could operate at the interpretative level: in case of doubt, rules of international humanitarian law should be construed in a manner consonant with standards of humanity and the demands of public conscience. Secondly, the clause, while operating within the existing system of international sources, could serve to loosen - in relation solely to the specific field of humanitarian law - the requirements prescribed for usus whilst at the same time raising opinio to a rank higher than that normally admitted.
Typescript. Errata sheet inserted. Thesis (Ph. D.)--College of the Immaculate Conception [Montreal], 1946. Includes bibliographical references (leaves 4-12).
On 2 July 2008, Colombian forces disguised as an international humanitarian mission rescued 15 hostages from the Fuerzas Armadas Revolucionarias de Colombia guerilla group, its opponent in a decades-long conflict. Those forces also captured two guerrillas, including the commander who had been responsible for the hostages. The world's reaction, including those of humanitarian and human rights organizations, was universally positive in spite of reports that Colombian commandos and intelligence agents posed as aid workers and journalists — non-combatants protected by international humanitarian law (IHL) — in effecting the rescue and capture. Criticism of the operation later arose only when it was discovered that at least one of the Colombian soldiers participating in the operation wore the emblem of the International Committee of the Red Cross. Even that criticism focused solely on the misuse of the emblem, not the feigning of non-combatant status resulting in capture. The author examines the rescue operation to determine whether and how it might have violated IHL prohibitions regarding perfidious capture, recently asserted to apply in both international and non-international armed conflict. He reviews the perfidy prohibition, its scope and applicability, and possible interpretations that might explain the world's uncritical reaction to the operation. He also examines doctrines that might preclude or negate potential criminal responsibility for individual participants or decision-makers, as well as those that might apply at a collective level. The author argues that the lack of the clear applicability of any doctrine precluding criminal responsibility for this supposed violation of IHL might confirm either that perfidious capture is permissible in non-international armed conflict or that it is a non-criminal and inconsequential violation of IHL. Alternatively, he suggests that uncritical acceptance of this operation might reveal that the applicable law no longer reflects our intuitive notions of justice.
The court-martial of Corporal Payne and others involved the first charges brought under the International Criminal Court (ICC)
Act in the United Kingdom, and led to the first British soldier ever to be convicted for a war crime under international law.
But the significance of the case extends far beyond its national implications; it represents an important illustration of
the national-level accountability heralded by the ICC regime. This article critically examines the court-martial of Corporal
Payne and others, and uses this analysis as the basis of a broader exploration of the contrast between domestic courts-martial
and international courts as fora for trying international crimes. The final part of the article explores the potential significance
of that dichotomy for the future landscape of international criminal justice.
with Special Reference to Ruses of War and Perfidy; citation_author=Kalshoven, Frits; citation_publication_date=2007; citation_inbook=Frits Kalshoven, Reflections on the Law of War: Collected Essays
- Jus In
- Bello