International Law and the Post-Cold War World: Essays in Memory of Li Haopei (Routledge Studies Ininternational Law)

Li Haopei International Law in the Post-Cold War World What is the state of international law in the post-Cold War w...

Author: Sienho Yee

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Li Haopei

International Law in the Post-Cold War World

What is the state of international law in the post-Cold War world? Focusing on the theme of ‘progressiveness’, this powerful volume offers important new perspectives on the history, theory and practice of international law. The essays are grouped into four key areas: • • • •

Trends and perspectives Sources of international law Substance and theories of international law Courts and adjudication

Contributions address issues of great contemporary relevance relating to human rights and humanitarian law, including war crimes, command responsibility, the contributions of the war crime tribunals, and the International Court of Justice’s encounters with human rights. The volume also offers examinations of important case studies, including former Yugoslavia and Rwanda. An excellent article on jus cogens and international law by the honouree is included as an appendix. These essays are broad in scope, rich in content, rigorous in analysis and inspiring in viewpoint. They will prove invaluable for lawyers, historians and political scientists, along with anyone interested in international law or international politics and relations. Sienho Yee is currently Lecturer in Law, Queen Mary and Westfield College, University of London, and a D.Phil, candidate at Oxford University. He has accepted an offer to become an Associate Professor of Law at the University of Colorado School of Law, starting in August 2001. He has formerly been a judicial law clerk to Judges Li (ICTY) and Cowen (US, Third Circuit), tutor in PIL at Oxford colleges, visiting assistant Professor at Northwestern University, and counsel at the IMF. He is the author of various articles on PIL and constitutional law in Columbia LR, EJIL, ICLQ, German YIL, Max Planck YUNL. Wang Tieya is Professor of International Law at Peking University, a member of the Committee on the Drafting of the Basic Law of the Special Administrative Region of Hong Kong, Lecturer at the Hague Academy of International Law, and a member of l’Institut de Droit International and other learned societies. He is editor-in-chief of the Chinese Yearbook of International Law, and the author of numerous books and articles. During 1997–2000, he served as a judge at the Appeals Chambers, ICTY and ICTR.

Routledge Studies in International Law

International Law in the Post-Cold War World Essays in memory of Li Haopei Edited by Sienho Yee and Wang Tieya

International Law in the PostCold War World Essays in memory of Li Haopei

Edited by Sienho Yee and Wang Tieya

London and New York

First published 2001 by Routledge 11 New Fetter Lane, London EC4P 4EE Simultaneously published in the USA and Canada by Routledge 29 West 35th Street, New York, NY 10001 Routledge is an imprint of the Taylor & Francis Group This edition published in the Taylor & Francis e-Library, 2003. © 2001 editorial matter and selection Sienho Yee and Wang Tieya; individual chapters the respective contributors All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data International law in the post-Cold War world: essays in memory of Li Haopei; edited by Sienho Yee and Wang Tieya p. cm. Includes bibliographical references and index. 1. International law. I. Li, Haopei. II. Yee, Sienho, 1965– III. Wang, Tieya. KZ3410.I58 2001 341–dc21 00–047055 ISBN 0-203-46897-X Master e-book ISBN

ISBN 0-203-77721-2 (Adobe eReader Format) ISBN 0-415-23608-8 (Print Edition)

Contents

Preface and acknowledgements List of abbreviations List of contributors

xi xiii xv

A eulogy for Judge Li Haopei ANTONIO CASSESE

xx

My friend Li Haopei WANG TIEYA

xxii

Li Haopei: a biography

xxv

Li Haopei: a bibliography LING YAN

xxvii

PART I Trends and perspectives

1 Shifting paradigms of international law and world order in an era of historical transition EDWARD MCWHINNEY 2 Towards an international law of co-progressiveness SIENHO YEE

3

18

PART II Sources of international law

3 The contribution of the International Criminal Tribunal for the former Yugoslavia to the ascertainment of general principles of law recognized by the community of nations ANTONIO CASSESE

43

vii

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Preface and acknowledgements

4 Opinio juris: a key concept in international law that is much misunderstood BIN CHENG

56

5 Judicial decisions as a source of international law and the defence of duress in murder or other cases arising from armed conflict BING BING JIA

77

PART III Substance and theories of international law

6 The concept of “war crimes” GEORGES ABI-SAAB

99

7 A new area of international law: the protection of maritime cultural property KAARE BANGERT

119

8 IMF governance, the Asian financial crisis, and the new international financial architecture BARTRAM S.BROWN

131

9 Passing the baton: the delegation of Security Council enforcement powers from Kuwait to Kosovo SIMON CHESTERMAN

148

10 State responsibility for violations of human rights WLADYSLAW CZAPLINSKI

171

11 Russia and international human rights GENNADY M.DANILENKO

182

12 Responsibility of states and individuals for international crimes VLADIMIR-DJURO DEGAN

202

13 China and the principle of sovereign equality in the 21st century GAO FENG

224


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14 The legality of NATO’s military action in Kosovo: is there a right of humanitarian intervention? CHRISTINE GRAY

240

15 Immunity and “Double criminality”: General Augusto Pinochet before the House of Lords JOHN R.W.D.JONES

254

16 The use of the term “(Public) Morality” in the European Convention on Human Rights: a brief history SANTIAGO LEGARRE

268

17 International legal issues arising in the Kosovo crisis VAUGHAN LOWE

278

18 Content and contours of genocide, crimes against humanity, and war crimes JORDAN J.PAUST

289

19 The legal qualification of the conflicts in the former Yugoslavia: double standards or new horizons for international humanitarian law? MARCO SASSÒLI

307

20 Monitoring the convention against racial discrimination in the post-Cold War context THEO VAN BOVEN

334

21 General principles of law regarding the protection of minorities BUDISLAV VUKAS

348

22 Sovereignty in global economic integration: a Chinese perspective GUIGUO WANG

357

23 The doctrine of command responsibility as applied to civilian leaders: the ICTR and the Kayishema case ZHU WENQI

373

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Contents

PART IV Courts and adjudication

24 The international protection of human rights: experiences with the European Court of Human Rights RUDOLF BERNHARDT

387

25 The International Court of Justice and human rights in the 1990s— linking peace and justice through the right to life ROSS GARLAND

398

26 The supervision of the execution of judgments of the European Court of Human Rights RONALD ST. J.MACDONALD

409

27 Judicial procedures and the protection of human rights: the European context PETER MALANCZUK

423

28 Challenges to indictments in international criminal trials RICHARD MAY

433

29 Contributions of the International Criminal Tribunals to the development of substantive international humanitarian law GABRIELLE KIRK MCDONALD

446

30 The competence of a tribunal to deny its existence MOHAMED SHAHABUDDEEN

473

31 The ICJ’s jurisdiction in the Legality of Use of Force cases JIANMING SHEN

480

Appendix Jus cogens and international law LI HAOPEI

Index

499

523


The collection now presented in memory of Judge Li Haopei has had a long period of gestation. When Judge Li was still alive, preparations were already underway for this project. Due to the many demands on our time, we were not able formally to embark upon this venture until after Judge Li left us in November 1997. Nevertheless, we, together with the contributors, persevered. We are all glad that the collection has finally seen the light of day. This collection begins with a set of materials specifically relating to Judge Li. Various contributors relate also in other parts of the collection the personal touch of Judge Li and comment upon his work. The collection also includes an Appendix written by Judge Li on the topic of jus cogens. Together, these no doubt paint a solid picture of the man and his contributions to the cause of international law. We hope that the title of this book will not be considered in the future as evidence of undue optimism, despite some signs that the Cold War may revive, whether between old enemies or new ones. At this time, many of the contributors, from all corners of the world, discern some special features in international law and relations and have endeavoured, in their individual capacity, to dissect and comment upon these features. The contributions have been divided into four parts—Trends and perspectives, Sources of international law, Substance and theories of international law, and Courts and adjudication. The contributions are broad in scope, rich in content, rigorous in analysis, and inspiring in viewpoint. Rather than attempting any introduction, we thought it better to leave it to the readers to appreciate them. We are grateful to all those whom we invited to participate in this venture, particularly the contributors whose works finally appear in this collection. We regret that we have been unable to accept all the manuscripts we received, and that personal circumstances have prevented some invitees from completing their drafts. We are also grateful for the encouragement that we received from the Judges who have not been able to contribute. This collection would not have been possible without the assistance of the Li family, especially Ling Yan, who helped translate various materials from Chinese to English, compiled Judge Li’s bibliography, and, on behalf of the family, gave us permission to reprint Judge xi

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Li’s article entitled ‘Jus cogens and international law’ in the Appendix to this volume. For all this we are grateful to Ling Yan and the entire Li family. Sienho Yee worked on this collection while a member of St Hugh’s College, Oxford, and while a visiting assistant professor of law at Northwestern University School of Law in Chicago. He is grateful to Professors Ian Brownlie, CBE, QC, FBA (Oxford) and Anthony D’Amato (Northwestern) for their encouragement and for answering his various questions. He is also grateful for the hospitality and encouragement he received from Mr Derek Wood, CBE, QC, Principal, and Dr Joshua Getzler, Fellow and Director of Legal Studies of St Hugh’s, and Dean David Van Zandt of Northwestern; and for the assistance he received at Oxford from the staff of the Bodleian Law Library and at Northwestern from his research assistants, Cleo Kung and Todd Lloyd; foreign and international law librarian, Irene Berkey; his secretary, Martha Minor; Professor D’Amato’s secretary, Mary Finn; and Bill Haydasz, computer expert. Finally, we are grateful to Routledge for undertaking to publish this collection and to Joe Whiting, Simon Whitmore and Annabel Watson at Routledge and Mike Hauser and his team at M Rules for having assisted us all along. We can say to the ever-demanding Judge Li that we have all tried our best in this project. Our sincere hope is that this scholarly enterprise will help to deepen our understanding of the pressing issues of our time and to promote peace and justice in the world. Limited though this collection may be, we hope that there will be those who like it. The Editors December 2000

Abbreviations

AER All England Reports AFDI Annuaire français de droit international AJIL American Journal of International Law AmCHR American Convention on Human Rights AUJILP American University Journal of International Law & Policy BYIL British Year Book of International Law GL Comparative Law Cmd. Command Paper [Paper laid by command of the Crown before Parliament] Decl. Declaration by individual judges Diss. op. Dissenting opinion by individual judges Doc. Document ECHR European Convention on Human Rights, or European Court of Human Rights EcmHR European Commission of Human Rights EJIL European Journal of International Law EPIL R.Bernhardt (ed.), Encyclopedia of Public International Law ETS European Treaty Series FRY Federal Republic of Yugoslavia HMSO Her (His) Majesty’s Stationery Office HR Human Rights HRLJ Human Rights Law Journal ICC International Criminal Court ICGPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICJ Reports International Court of Justice Reports of Judgments, Orders and Advisory Opinions ICJYB International Court of Justice Yearbook ICL International & Comparative Law IGLQ International & Comparative Law Quarterly ICRC International Committee of the Red Cross ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the Former Yugoslavia xiii

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Abbreviations

ICTYJR IL ILC ILCYB ILM ILO ILR IMF IMO J JCL JIL JTL LJ LR NATO NY NYU JILP OSCE PCA PCIJ PRC RCADI Res. RIAA Rome Statute Sep. op. Ser. Sess. UN UNESCO Organization UNGA UNJY UNSC UNTS UNWCC USC USSR UST WTO Y YB YBECHR

ICTY Judicial Reports International Law International Law Commission Yearbook of the International Law Commission International Legal Materials International Labour Organization International Law Reports or International Law Review International Monetary Fund International Maritime Organization Journal Journal of Comparative Law Journal of International Law Journal of Transnational Law Law Journal Law Review North Atlantic Treaty Organisation New York New York University Journal of International Law & Policy Organization for Security and Cooperation in Europe Permanent Court of Arbitration Permanent Court of International Justice People’s Republic of China Recueil des Cours de L’Académie de Droit International de La Haye Resolution United Nations, Reports of International Arbitral Awards Rome Statute for an International Criminal Court (1998) Separate opinion by individual judges Series Session United Nations United Nations Educational, Scientific and Cultural United Nations General Assembly United Nations Juridical Yearbook United Nations Security Council United Nations Treaty Series United Nations War Crimes Commission United States Code Soviet Union United States Treaty Series World Trade Organization Yearbook Yearbook Yearbook of the European Convention on Human Rights

Contributors

Georges Abi-Saab, Member of the Appellate Body, WTO; Professor of International Law, Graduate Institute of International Studies, Geneva; Rennert Distinguished Professor in the Global Law School Program, NYU Law School; Honorary Professor, Cairo University; former Judge on the Appeals Chamber at the ICTY and ICTR, Judge ad hoc at the ICJ in Territorial Dispute (Libya v. Chad) and Frontier Dispute (Burkina Faso v. Mali) and Commissioner on the United Nations Compensation Commission; author of Cours général de droit international public (Hague Academy of International Law) and others. Kaare Bangert, Dr, Research Assistant Professor, Danish Research Council; D.Phil. candidate, Wolfson College, Oxford; former Legal Officer, Foreign Ministry of Denmark; former Lecturer in public international law and EEC law, University of Copenhagen; author, 200 soemils fiskeriterritorium (1999). Rudolf Bernhardt, former Judge and Vice-President of the European Court of Human Rights; former Director and Professor, Max Planck Institute for Comparative Public and International Law, University of Heidelberg; General Editor, Encyclopedia of Public International Law. Bartram S.Brown, Associate Professor of Law at the Chicago-Kent College of Law; member, the Council on Foreign Relations and the Board of Directors of Amnesty International, USA; public member, US Delegation to the UN Commission on Human Rights in 1999 and 2000. Antonio Cassese, Professor of International Law, University of Florence; member, l’Institut de Droit International; former Judge and former President of the ICTY; Visiting Fellow, All Souls College, Oxford; former President of the Council of Europe Committee for the Prevention of Torture; participant in numerous international conferences and author of numerous articles and books including International Law in a Divided World (1986) and Self-determination of Peoples: a Legal Reappraisal (1995). Bin Cheng, Ph.D., LL.D., Hon. LL.D., FRAeS, Emeritus Professor of Air and Space xv

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Contributors

Law, and sometime Dean of the Faculty of Law, University of London; author of numerous articles and books including Studies in International Space Law (1997), The Law of International Air Transport (1962) and General Principles of Law as Applied by International Courts and Tribunals (1953). Simon Chesterman is an Associate at the International Peace Academy. His recent publications include articles on war crimes, human rights theory, and euthanasia. His doctoral thesis, supervised by Professor Ian Brownlie at the University of Oxford, is forthcoming from Oxford University Press as “Just War or Just Peace? Humanitarian Intervention and International Law”. Wladyslaw Czaplinski, Jean Monnet Professor of International and European Law, Polish Academy of Sciences and University of Gdansk; has numerous publications on state succession, state responsibility, customary law, Third Pillar of the EU, and jurisprudence of the ECJ; Rapporteur, ILA Committee on State Succession; Editor, Polish YIL and Przeglad Prawa Europejskiego. Gennady M.Danilenko, Professor of Law, Wayne State University School of Law; former head of the Center for International Law, Institute of State and Law, Russian Academy of Sciences; author, Law-Making in the International Community (1993). Vladimir-Djuro Degan, Professor of Public International Law, Faculty of Law, Rijeka; member, l’Institut de Droit International; Director of the Adriatic Institute of the Croatian Academy of Arts and Sciences at Zagreb; author of numerous books and articles including Sources of International Law (1997). Gao Feng, member of the Editorial Committee of the Chinese Yearbook of International Law, Beijing. Ross Garland, Rhodes Scholar and D.Phil. candidate, Brasenose College, Oxford. Christine Gray, University Lecturer and Fellow, St John’s College, Cambridge; former Reader in Public International Law, Oxford; author of Judicial Remedies in International Law (1987). Bing Bing Jia, LL.B. (Peking University); D.Phil. (Oxon.); Legal Assistant to Judge Li Haopei and Judge Wang Tieya, Appeals Chamber, ICTY and ICTR; Associate Legal Officer, Appeals Chamber, ICTY and ICTR; author, The Regime of Straits in International Law (1998). John R.W.D.Jones, M.A. (Oxon.); M.A. in Law; LL.M.; Barrister, Lincoln’s Inn; Associate, White & Case, Paris; Door Tenant, Chambers of Rock Tansey QC, London; former legal officer at ICTY and ICTR; author of The Practice of the International Criminal Tribunals for the former Yugoslavia and Rwanda (2nd edn, 2000). Santiago Legarre, Lecturer in Law, Austral University, Argentina. Vaughan Lowe, Dr, Chichele Professor of Public International Law in the University of Oxford and Fellow of All Souls College, Oxford; former Reader

Contributors

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in Public International Law in the University of Cambridge and Lecturer in the Universities of Manchester and Cardiff; author of The Law of the Sea (with R. Churchill), The Settlement of Disputes in International Law (with J.Collier) and co-editor, Fifty Years of the International Court of Justice; counsel and advisor to various governments and corporations. Ronald St. J.Macdonald, OC, QC, LL.D., former Professor of International Law, Dalhousie; Judge at the European Court of Human Rights; Honorary Professor of Peking University; author of numerous articles and books; member of l’Institut de Droit International. Peter Malanczuk, Dr iur, Professor of International Law, Law Faculty, and Director of the GLODIS-Institute, Erasmus University Rotterdam; Honorary Professor and Honorary Director of the Institute of Globalization and International Law of Peking University; Chair, ILA Study Group on State Responsibility; Series Editor, Studies and Materials on the Settlement of International Disputes (Kluwer); Special Legal Advisor to Ethiopia; Arbitrator, China International Economic and Trade Arbitration Commission; Counsel, Lalive & Partners, Geneva. Richard May, Judge (since Nov. 1997), Presiding Judge, Trial Chamber III, and Chair, Rules Committee of the ICTY; B.A. (1963), LL.B. (1964), Cambridge University; Barrister (Inner Temple, 1965–87); Circuit Judge, Midland and Oxford Circuit (1987–97); author, Criminal Evidence (Sweet & Maxwell, London, 1st edn, 1986, 4th edn, 1999). Gabrielle Kirk McDonald, former President and Judge of the ICTY and Presiding Judge of the Appeals Chambers of the ICTY and ICTR. Before coming to The Hague she was a civil rights lawyer, a partner in a law firm, a law professor, and a federal district judge in the United States. Edward McWhinney, QC, JSD (Yale), President and first Canadian member of l’Institut de Droit International; former M.P. (for Vancouver-Quadra); former member of PCA, The Hague; taught law at Yale, Toronto, McGill, Simon Fraser in Vancouver, Paris I (Sorbonne) (by special decree of the French Cabinet) and The Hague Academy of International Law; former Crown Prosecutor; adviser to the UN Secretary-General, and Canadian and foreign governments; author of numerous books and articles. Jordan J.Paust, University of Houston Law Foundation Professor, University of Houston Law Center, author of numerous articles and books, including The Military in American Society: Cases and Materials (with others, 1978); International Law as Law of the United States (1996). Marco Sassòli, Ph.D. (Basel); Professor of Public International Law at the University of Quebec at Montreal, Canada; former Registrar of the First Court of Public Law of the Swiss Federal Tribunal in Lausanne; former assistant to Professor Luzius Wildhaber (Basel); former Deputy Head of the ICRC’s legal division; former Secretary-General of the Swiss Fund for Needy

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Contributors

Victims of the Holocaust/Shoa in Berne and Executive Secretary of the International Commission of Jurists in Geneva; author of numerous publications on international humanitarian law and human rights. Mohamed Shahabuddeen, Judge of the International Criminal Tribunal for the former Yugoslavia (Vice-President, 1997–1999); former Judge of the International Court of Justice (1988–1997); Member of the Institute of International Law (First Vice-President, 1991–2001); author of Precedent in the World Court (1996). Jianming Shen, S.J.D., Penn University; Visiting Professor of Law, St John’s University School of Law; former Research Fellow in International Law, University of Hong Kong Faculty of Law; Kenneth Wang Research Professor of Law, St John’s University School of Law; Assistant Professor of International Law, Peking University Faculty of Law. Theo van Boven, Professor of International Law, University of Maastricht, Netherlands; member of the UN Committee on the Elimination of Racial Discrimination; President of the Netherlands Association of International Law; Vice-President of the International Commission of Jurists (Geneva); Vice-President of the International Institute for Human Rights (Strasbourg), former Director of the UN Centre for Human Rights, and former Registrar of the ICTY Budislav Vukas, Professor of Public International Law at the University of Zagreb; Judge at the International Tribunal for the Law of the Sea; member of l’Institut de Droit International; lectured at many other universities and at The Hague Academy of International Law (on “States, peoples and minorities” in 1992): author of numerous publications. Guiguo Wang, LL.M, Columbia; J.S.D., Yale; Woo Po Shing Professor of Chinese and Comparative Law, City University of Hong Kong; Visiting Professor of Law, the People’s University of China, Beijing, and Nankai University, Tianjin, China; Arbitrator of China International Economic a n d Tr a d e A r b i t r a t i o n C o m m i s s i o n , B e i j i n g ; M e m b e r o f t h e International Academy of Comparative Law. Wang Tieya, former Judge, Appeals Chamber, ICTY and ICTR; former Professor of International Law and Director of the International Law Institute, Peking University; member, Committee on the Drafting of the Basic Law of the Special Administrative Region of Hong Kong; former Legal Advisor to the Chinese Delegation to the United Nations and to various conferences; lecturer, The Hague Academy of International Law; member of l’Institut de Droit International and other learned societies; Editor-in-Chief of the Chinese Yearbook of International Law and author of numerous books and articles. Sienho Yee, pupil of Professor Ian Brownlie at Oxford, Lecturuer in Law at Queen Mary and Westfield College, University of London; Associate Professor of Law designate, University of Colorado School of Law; former judicial law

Contributors

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clerk to Judges Li (ICTY) and Cowen (US, Third Circuit); former Tutor in PIL at Oxford colleges and Visiting Assistant Professor at Northwestern University; former counsel at the IMF; author of various articles on PIL and constitutional law in Columbia LR, EJIL, ICLQ, German YIL, Max Planck YUNL, etc. Zhu Wenqi, Ph.D. in International Law (Paris II, 1987); Legal Advisor in the Appeals Section of the Office of the Prosecutor of the ICTY; author, Outline of International Humanitarian Law (in co-operation with the ICRC, 1997).

A eulogy for Judge Li Haopei* Antonio Cassese

Ambassadors, Friends, Colleagues, Thank you for coming here today to join in this expression of our regard for Judge Haopei Li. I know you will join me in expressing sympathies to his family. His death is something that has affected all who have had the privilege of knowing and working with this eminent judge and scholar. I would like to share a few thoughts about Judge Li. When I last saw him, he had been in hospital for some time. I asked him what he would do when he returned to China following his retirement. “I will write a book,” he said, “I will write a book on private international law. I have taken many photocopies of the relevant writings and am ready to start on my return.” “Judge Li,” I asked, “Why a book on private international law? Why not public international law?” “Because,” he answered, “private international law is hard law. And when I finish it, I will start again and translate the book into English!” This was the man we knew and loved: whilst frail in body, his fighting spirit and intellectual vigour were undiminished. My lasting memory of this wise and learned man is one of a strong spirit constantly seeking out new challenges and pushing intellectual boundaries. This reminds me of the words of a philosopher I treasure. Nearing the end of his years, he wrote that everyone contributing to the common good, be it by way of manual labour or intellectual pursuits, ought not to stop labouring, even in his twi-light years. Death, he said, must not surprise us in sloth or idleness. Death did not surprise Judge Li in sloth or idleness. My fellow judges and I had great respect for Judge Li. The man with whom we worked in the Appeals Chamber had immense legal knowledge, yet he was always gentle and kind-hearted, taking a cooperative and conciliatory approach. I have always said to myself that we judges should all learn Judge Li’s style of writing succinctly and to the point. His separate opinions in the Appeals Chamber decisions on Tadic and Erdemovic demonstrate, in addition to his courage in expressing his very independent views, his remarkable concision. His genuine *

This oration was delivered at the funeral of Judge Li Haopei at The Hague, 14 November 1997, by Antonio Cassese in his capacity as President of the ICTY.

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A eulogy for Judge Li Haopei

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concern for the fundamental rights of persons and a deep sense of humanity infused his judicial approach. Many a time during the course of deliberations on technicalities, he would see the essence of the issue and insist on the importance of upholding fundamental principles. There are so many such incidents shedding light on the character of Judge Li, which I would like to share with you, but unfortunately, judicial propriety prevents my doing so. Judge Li was the model of an international judge. He was truly independent, had absolute integrity and, of course, deep knowledge of international law. You all know what the Greeks thought of man’s destiny: one should count no man happy until his death, for the gods are jealous, and the mighty and the heroes have their woes just as do ordinary people. As Sophocles wrote at the end of one of his most disconcerting tragedies: Now as we keep our watch and wait the final day, Count no man happy till he dies, free of pain at last. Dear Judge Li, now that your life is done, you may rest in peace, for we may say with certainty of you that you had a rich, long and fulfilled life marked by unstinting intellectual industry, admirable knowledge and wisdom. You have lived surrounded until the end by the love of your relatives, the affection of your friends and the respect and admiration of your fellow judges. What is more, you have passed away peacefully, without suffering. You will always remain to us a model of moral honesty, intellectual vigour and admirable gentleness.

My friend Li Haopei Wang Tieya

On 6 November 1997, Judge Li passed away in The Hague after a short period of sickness. I was deeply saddened when I suddenly received the news in Beijing. The Chinese international law community lost a great scholar of no equal in his time, whose death was like a giant star falling from the sky. On 20 May 1997, I was elected to be a Judge of the UN International Criminal Tribunal for the Former Yugoslavia. I expected to meet him in The Hague. Unfortunately he was gone before I was to go to The Hague. I lost the last chance to listen to his talk about the work of the Tribunal and his experiences. This is my greatest regret. Haopei and I were friends for sixty years. In 1937 I went to the London School of Economics and Political Science to pursue further studies when Haopei had already been there for one year. I had a feeling that we had known each other for a long time when we met for the first time. We became bosom friends at once. He was a couple of years older than I was. We called each other brother. It has been sixty years since then. At the London School of Economics and Political Science, I studied public international law. Haopei studied private international law as well as public international law. We were together from morning till evening studying diligently in the library. Haopei always studied until late at night. He kept up his diligence and industriousness throughout the following decades. This trait of his character is admirable and no one can match him in this regard. His great academic achievements owed a lot to his exemplary hard work. Haopei and I taught and conducted research together on many occasions during the past six decades. I was introduced by him and recommended by Mr Zhou Gensheng to teach at Wuhan University located at Leshan, Sichuan province during the war against the Japanese invaders. Haopei was teaching jurisprudence and private international law at the Faculty of Law. I was teaching international law and history of foreign affairs at the Department of Politics. We encouraged each other and learned from each other by exchanging views, which gave me a good start in my teaching career. Haopei taught conscientiously, lectured at once simply and profoundly, analyzed issues point by point, and gave a clear presentation. This was highly appreciated by the students. I left Wuhan University two years later and taught at Chungqing University xxii

My friend Li Haopei

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and Beijing University successively. Haopei also left to teach at Zhejiang University. We had little contact during that period. However, Haopei came to Beijing soon after the liberation. He first worked at the Bureau of Legislative Affairs of the State Council, and then as a legal advisor at the Ministry of Foreign Affairs. Our contact resumed and increased as my teaching and his work were closely linked. We had more opportunities to see each other, especially after 1978. At that time international law scholarship and teaching was entering a new stage in China. We were often together to discuss international law issues and to cooperate in the work of international law development. Haopei never gave up teaching when he was engaged in practical work. He was invited to lecture as a part-time professor at Beijing University and was well received by the students. Haopei was very much concerned about the development of international law in China. He participated in the activities of the Chinese Society of International Law since it was founded. Haopei made great contributions to improving the academic standard of the Chinese Yearbook of International Law which was launched in 1982. After Professor Chen Tiqiang passed away in 1983, Haopei and I became the co-editors-in-chief of the Yearbook. He was in charge of going over the manuscripts in the field of private international law. He performed his duty carefully and conscientiously. In 1993, I was in charge of editing the International Law volume of the Chinese Encyclopedia of Law. I invited Haopei to be an editor of the section on private international law. He made a great effort to make the book a unique and fairly comprehensive international law dictionary of high standard. Having collaborated with Haopei on several occasions, I deeply admired him for his profound and immense learning. Haopei had a fine command of English. He also read and wrote French, Russian, German and Latin. He translated various classics in English, French and German into Chinese. It is rare in China that a person can use materials and references in English, German and other languages to do research on international law issues as he could. Haopei conducted research on private international law for a long time. His research achievements were known in China and overseas. He lectured on private international law at The Hague Academy of International Law in 1989. The lecture appeared in the Collected Courses and has been well received. Haopei also accomplished many outstanding achievements in public international law. His classic work, The Law of Treaties, contains a wealth of data and materials and firmly establishes his views. This study received favourable review in the Chinese Yearbook of International Law (1989, 607–24) and the Heidelberg Journal of International Law (ZaöRV, 1991, 245–46), and won a coveted prize in China. He also published a study on sources of international law and numerous articles on public international law. His work at the ICTY demonstrated his learning and his talents. He was known as a judge of independence, having absolute integrity and deep knowledge of international law. This is evident from the comments on his work made by

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Wang Tieya

various contributors in this volume. He was unique in present-day China in that he was a learned jurist in both public and private international law. Haopei was gone abruptly and unexpectedly. I felt sad and was at a loss. Only the works he left behind remain. They are our precious heritage in international law. His diligent study and profound learning set an example for us, from which we must make great efforts to learn and with which we will promote the development of international law in China. Only in this way will we not let Haopei down.


Born, Shanghai, 6 July 1906 Education: Comparative Law School, Soochow University, LL.B. (1928); LL.M. (1930); Chinese Government Institute for the Training of Higher Judicial Officers (1935); London School of Economics and Political Science, London University, advanced studies in public and private international law (1936–39). Professional Experience: Associate Professor of Law (1939–41), Professor of Law & Head of the Facultyof Law (1941–45), National Wuhan University; Professor of Law & Dean of the College of Law, National Chekiang University (1945–49); Expert Commissioner, National Law Commission of China (1949–56); Professor of International Law, College of Foreign Relations (1956–63); Legal Advisor, Ministry of Foreign Affairs of China (1963–93); Professor of International Law, Peking University (1963–93); Responsible for drafting the first Criminal Law of the People’s Republic of China and the Law of Criminal Procedure (1975–79); Lecturer, Hague Academy of International Law (1990); Member, Permanent Court of Arbitration (1993–97); Judge, Appeals Chamber, the International Criminal Tribunal for the Former Yugoslavia (1993–97) and the International Criminal Tribunal for Rwanda (1995–97); Co-editor-in-chief, The Chinese Yearbook of International Law (1983–97). Member of the Chinese Delegation to: Asian Legal Consultative Committee, Damascus (1956); Asian-African Legal Consultative Committee (1981, 1985); United Nations Conference on the Law of Treaties between States and xxv

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International Organisations or between International Organisations, Vienna (1986). Member of: The Working Group of the Hague Conference on Private International Law on the drafting of a convention on recognition and enforcement of foreign judgements (1992); Institute of International Law (1985–97); Executive Council, Chinese Society of International Law (1980–94); Executive Council, China Law Society (1990–97). Died, The Hague, 6 November 1997

Li Haopei: a bibliography Compiled by Ling Yan

Judicial opinions: Separate and Dissenting Opinion, Erdemovic, ICTY, Appeals Chamber (6 Oct. 1997). Separate Opinion on the Tadic Jurisdictional Motion, ICTY, Appeals Chamber (2 Oct. 1995), 1 ICTYJR 511.

Books: Selected Works of Li Haopei (2000). The Law of International Civil Procedure (1996). The Concept and Sources of International Law (1994). The Law of Treaties (1988). The Law of Nationality: A Comparative Study (1979). United Nations (1948). With others: Judicature and Judicial System of Great Britain (1946). Introduction to Private International Law (1945).

Articles: One hundred and forty articles on various subjects of private international law in the Great Chinese Law Dictionary (1996). EEC’s Convention on Jurisdiction and Enforcement of Judgment in Civil and Commercial Matters (1968), Chinese YIL (1994). Multilateral Treaties in International Civil Jurisdiction, ibid. (1993). International Private Law Revolution in the United States of America, ibid. (1992). The Provision on International Judicial Competence in the New Swiss Federal Statute, ibid. (1991). On Several Basic Issues of Public and Private International Law, in Dictionary of Chinese Legal Scholars (1991). Some Recent Developments in the Conflict of Laws of Succession, 224 RCADI (1990–V). New Swiss Private International Law, J. of Law (1989–IV). Consensus: A New Decision-making Process in Multilateral Diplomacy, in Bingkun Huang (ed.), Modern International Law (1988). The Character of International Law, ibid. The Development of the Law Applicable to Contracts, in East China Law School (ed.), Lectures on Private International Law (1988).

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Treaty, Quasi-treaty and Non-treaty, Chinese YIL (1987). Illegitimacy of the Judgment of the Japanese Courts on the Ownership of Guanghualiao, in The Chinese View on the Matter of Guanghualiao (1987). The State Jurisdictional Immunity, Chinese YIL (1986). Pacta Sunt Servanda and the Principles of Sovereign Equality and Mutual Benefit, J. of Law (1985–I). Conflict of Treaties, Chinese YIL (1984). Twenty-four articles on various subjects of private international law in the Chinese Encyclopedia of Law (1984). The Problem of Inter-temporal Law in Treaties, J. of Wuhan University (1983–VI). The Law of Treaties, in the Collection of Lectures on International Law (1983). Jus Cogens and International Law, Chinese YIL (1982). Das Internationale Privatrecht des Neuen China, China und das Völkerrecht, Mitteilungen des Instituts für Asienkunde Hamburg (1982, No. 126). The Concept of Private International Law, in East China Law School (ed.), Lectures on Private International Law (1982). History of Private International Law Theories, in East China Law School (ed.), Lectures on Private International Law (1982). Reservation in Multilateral Treaties, Chinese Social Science (1980–V). The Detention of Chinese Diplomats in Brazil, People’s Daily (5 June 1964). Fundamental Human Rights and Freedom, Studies of Politics and Law (1962–II). The Legislation and Trial in USA, ibid. (1962–I). The Present Situation of Mancini’s “Nationality” School, ibid. (1961–IV). Arabian People’s Fight for Independence, ibid. (1958–IV). Nationalization and International Law, ibid. (1958–II). Success of Law, Guangming Daily (29 Apr. 1957), 3. Critique of Code Napoleon, Studies of Politics and Law (1955–II). The Right to Work, New Construction (1954–VIII). Illegality of Intervention in Korea and China by USA, ibid. (1950–XII). The Legal Aspects of the Collision Between Sinan and an American Ship, ibid. (1950–II). Sovereign Immunity and the Case of Chinese Aircraft in Hong Kong Courts, ibid. (1950–II). Conflict of Laws Relating to Divorce and Judicial Separation, New Law (1948–V). Private International Law in 19th Century, ibid. (1948–III). The Three Schools of Private International Law in the Nineteenth Century, ibid. (1948–I ) . Personal Law in Conflict of Laws, ibid. (1948–I). The Law Applicable to the Form of Marriage, Chinese JL (1948–I). Marriage in Private International Law, J. of Zhejiang University (1948–I). Veto of the Big Five of the Security Council, Southeast Daily (15, 22 & 29 Sept. 1948), 6. United Nations, ibid. (24 Oct. 1948), 3. The Law Applicable to Real Right, J. of Zhejiang University (1947–II). Liability Relating to Torts in French Law, Shanghai Dagong (19 & 26 Sept. 1947), 9. Enforcement of Laws, Observation (1947–XII). The Comparative Method in the Study of Law, Southeast Daily (18 Oct. 1947), 6. On the Law of Marriage, ibid. (13 July 1947), 3. Immigration and Treatment of Overseas Chinese, ibid. (26 Jan. 1947), 2. Mr He Dequi Case, Observation (1946–V). The Law Applicable to Capacity, Chinese JL (1945–V). The Conflict of Jurisdictions and Laws Concerning Declaration of Death, Chinese JL (1945–IV).

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Torts in Conflict of Laws, ibid. (1945–III). Ordre Public in Conflict of Laws, ibid. (1945–I). Renvoi in Conflict of Laws, ibid. (1944–VI). New Agreement and the Law of Immigration, World Politics (1943, New Agreement Special). Immigration Laws of USA, Canada and Australia and the Overseas Chinese, ibid. (1943, No. 3 & 4). The Law Applicable to Contracts, Wuhan University Social Studies Quarterly (1943–I).

Translations: Wolff, Private International Law (from English into Chinese) (1988). Verdross, Völkerrecht (5th edn, from German into Chinese) (1981). Code Civil Français (from French into Chinese) (1979). Material Truth in Soviet Law of Evidence (from Russian into Chinese) (1957). Judgment of the International Military Tribunal of the Trial of German Major War Criminals (from English into Chinese) (1955). Strafgetzbuch der Deutschen Demokratischen Republik (from German into Chinese) (1954).

Part I

Trends and perspectives

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Shifting paradigms of international law and world order in an era of historical transition Edward McWhinney*

We live today in an era of historical transition—one of those great periods of very rapid change in society and, of necessity also, in the institutions and processes by which it is governed. One such example, for Europeans at least, occurred with the ending of the Thirty Years War in the mid-17th century and the ushering in of the deemed “modern” system of International Relations, with its prime new institution the national state, in replacement of the old Mediaeval European concept of Unity as expressed in the institutional dyarchy of the Holy Roman Empire and the Holy Roman Church. It is not always apparent to those who live in just such a period of revolutionary change that the basic premises of the existing public order system are being challenged and re-defined operationally; nor are the main trends and directions of the change that is in fact occurring clearly established at that moment in time. It will be the next generation of authoritative interpreters that will proceed to write it all up and establish it as historical folklore. It was Shakespeare’s Tudor-oriented version that established the latter-day historical version of Richard III and the succession to the War of the Roses! I. The paradigm shift in international law and relations The concept of change—of its necessity and inevitability in the World Community in which we all live today—has been defined or codified by the historian of science, Kuhn, in his celebrated formulation of the “paradigm shift”.1 There are elements in this formulation of the thinking of the late 19th century U.S. philosophers, William James and John Dewey, that truth—scientific truth—is not an abstract quality inherent in an idea but something that happens to it: it is validated operationally by the passage of historical events. On the Kuhn thesis, revolutionary change in scientific thinking, in the Natural Sciences, but of necessity also in the Social Sciences, occurs less by linear projection or incremental extension from existing basic premises, than by sharp, radical breaks with past conventional thinking and the venturing on to new, as yet uncharted frontiers of knowledge. The

* Opinions expressed herein are offered in a personal capacity only. 1 Thomas Kuhn, The Structure of Scientific Revolutions (1962). 3

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unbridgeable gap between the Copernican and pre-Copernican visions of the solar system and the rôle of the Earth in relation to the Sun and to the other planets is simply an earlier, at the time theologically shocking demonstration of an intellectual-scientific paradigm shift with dramatic consequences for all subsequent thinking and research in the discipline concerned. Students of public law will find analogues between Kuhn’s theory and the development by the great early 20th century Austrian legal theorist, Kelsen, of his Pure Theory of Law. The core concept or intellectual-legal starting point of Kelsen’s system was always a pre-legal, meta-legal socio-political fact, the Basic Premise or Grundnorm, from which all supporting legal norms and legal relationships were to be derived, and to which they would always be related back. For Kelsen, the Pure system of law involved a set of logical relationships. The Pure system itself was politically neutral in its dynamic unfolding and law-making, once the initial act—the extra-legal, political choice of the authoritative starting point of the whole system— the Grundnorm—should have been accepted or imposed. In examining, in historical retrospect, the past half century in international relations since the close of hostilities in World War II, it is clear that a number of paradigm shifts have occurred, involving the emergence, de jure or de facto, of successive, distinct and different Grundnorms of World public order. II. The short-lived “One World” paradigm The One World model was launched by Wendell Willkie, an unsuccessful Republican candidate for the U.S. Presidency in 1940 when President Roosevelt ran for his third term, and then, at the War’s end in 1945, adopted in the euphoria of the recently victorious Wartime Alliance against Fascism. It was reflected in the new United Nations organisation whose Victors’ Consensus was expressed, concretely in constitutional terms, in the dominant Security Council with its five Permanent Members (reflecting a 1945, idealised version of the political-military power after Germany and Japan’s defeat), and with those Permanent Members’ legal right of veto in all substantive decisions. It is perhaps also to be seen in the unfortunately short-lived Baruch Plan of 1946 for a sharing of the new Atomic Energy. The One World premise, with its Grundnorm rooted in the notion of a World government located in the United Nations itself, was soon rudely shattered by the rapid onset of the Cold War and the emergence of a de facto Bipolar system of World public order resting on a confrontation and accommodation of the twin, politicalmilitary blocs, Soviet and Western, controlled effectively by the bloc leaders, the Soviet Union and the United States. III. The Cold War bipolar paradigm One of the immediate consequences of the new Bipolarity was the jelling of the territorial status quo that had been sanctioned politically at the Roosevelt-ChurchillStalin summit meeting at Yalta in early 1945 and then legally confirmed, on a

Shifting paradigms of international law

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putatively temporary basis, at War’s end in Europe and East Asia in 1945, in the military surrender and truce agreements. Bipolarity meant a perpetuation of the politically divided states—Germany and Korea, as the prime examples—that had been envisaged and sanctioned at the wartime summit meetings of the heads of the anti-Axis alliances and then concretised in political-military terms in the 1945 military cease-fires and military capitulations. But, except for its very early years when the East-West ideological conflict and the ensuing rhetorical battles in the United Nations were at their height, the Cold War emerges, in historical retrospect, as very much more ordered and predictable, and also rational in historical terms in its respect for elementary power considerations and the conventional balance-of-power arguments, than was always understood or appreciated when it was at its rhetorical and propaganda height. For the more than four decades of the Cold War’s duration, from War’s end in 1945 to the symbolic falling of the Berlin Wall in 1989, the political-military lines of territorial demarcation were in fact fairly generally respected and maintained, on both sides. There were, to be sure, continuing probings or testings for points of weakness or ambiguity in peripheral areas where the respective bloc interests had not always been clearly defined or maintained, as in Korea in the summer of 1950 (where an earlier address by U.S. Secretary of State, Dean Acheson, had seemed to indicate it was not within the U.S.-defined sphere of influence); or in Berlin, with the Soviet blockade of land access in the late 1940s, something not envisaged and in consequence not very clearly defined in the Yalta and Potsdam Allies’ settlements of 1945; or even in Cuba, in 1962, when Khrushchev ventured, in a rashly daring gambler’s gesture, to introduce Soviet intermediate-range missiles within a region always considered by the United States, since the early 19th century Monroe Doctrine and certainly since the Spanish American War of 1898, to be a U.S. sphere of influence. Once the Cuban Missile crisis had been successfully resolved however, through direct personal summit diplomacy by the two bloc leaders, Khrushchev and Kennedy, at the end of October, 1962, the Cold War de facto system of World public order, and its territorial divisions and allocations, and its political-military spheres of influence, were not again to be seriously challenged or questioned. What emerged, in fact, was a consolidation and legitimation of the political-military status quo of 1945—a sort of Metternichean settlement on a Pax Sovietica-Americana basis. The operational methodology and processes for negotiation and international law-making during the Cold War in its post-Stalin, what-might-be-called “mature”, period flowed logically and inevitably from its Bipolar paradigm or model of World public order: direct, bilateral diplomacy between the two bloc leaders, preferably in Summit Meetings à deux, followed by model treaties reflecting the bloc leaders’ own bipolar consensus and then presented, after their own bilateral negotiation and drafting, to the lesser, supporting bloc members on either side for signature and ratification, and this normally without the possibility of serious modification or amendment. In terms of concrete problem-solving, the two bloc leaders increasingly put behind them the coloured language and ideological rhetoric of the very early, Stalinist, Cold War years in favour of a pragmatic, empirical, problem-oriented, step-by-step approach

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that gave priority to concrete and immediate inter-bloc tension issues and their resolution on a basis of mutuality and reciprocity of interest as between the two blocs and the two bloc leaders. This was the new International Law of Détente.2 It was most strikingly demonstrated in the course of East-West nuclear and general disarmament treaties throughout the Détente period of the 1960s and 1970s, and in the special European security treaties.3 The distinguished historian of international relations, Huntington, has advanced the rather novel and intellectually provoking thesis that Western Liberal democratic leaders and diplomats were able to carry on negotiation and a fruitful intellectual dialogue with Soviet Marxist-trained leaders and diplomats, during this prolonged Cold War period, because both Liberalism and Marxism had common Western sources.4 A Realpolitik-oriented interpretation might, however, direct attention to the increasingly static, conservative nature of their own long-range interests as identified by both superpowers. The United States and the Soviet Union, as the Cold War matured into Détente, were experiencing difficulties, in common, in reaching political accommodation with the new majorities in the United Nations, and in the U.N. General Assembly in particular, that had been created by the admission as new member-states of the organisation, from the end of the 1950s and throughout the 1960s, of a flood of new, Third World countries established in the wake of Decolonisation, Independence and Self-determination on a World-wide scale. The Winds of Change in the World Community unleashed by the delayed collapse of the pre-War European colonial empires, created vast new tensions and new demands which could only with great difficulty be accommodated or satisfied within the, by now, increasingly outmoded Bipolar World public order system. The bureaucratic inertia and repressiveness of the Soviet system, and the lack of basic imagination or new thinking on entirely new problems on the part of the United States—in Vietnam, in Nicaragua, as merely the more notable examples—were all reflections of an international society in rapid historical transition in response to new societal forces, and of the inability or unwillingness of the then governing political élites to make changes while they were still timely and before the situation should have become pathological and politically out-of-hand. This fundamental contradiction or antinomy, by the 1980s, between what was, by that time, an already out-of-date World public order system and the emerging new set of political and social forces in the World Community, was perhaps temporarily veiled by the fall of the Berlin Wall in 1989 and the resulting sudden collapse of the Soviet Empire and the ending of the Cold

2

The International Law-in-Action of the Cold War era, with its highly developed, special lawmaking processes, and its further refinement and concretisation in an International Law of Détente, is canvassed in my earlier monographs, “Peaceful Coexistence” and Soviet Western International Law (1964); Conflit idéologique et Ordre Public Mondial (1970); and The International Law of Détente (1978). 3 See, especially, Nagendra Singh and McWhinney, Nuclear Weapons and Contemporary International Law (1990); and more generally, my work, The International Law of Détente (1978). 4 Samuel Huntington, The Clash of Civilisations and the Remaking of the World Order (1996).


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War. (It was then Soviet President Gorbachev who made the historically timely and courageously far-sighted decision not to call in aid Soviet military forces in order to control mounting popular unrest and dissension in East Germany as his predecessor, Brezhnev, had done in Czechoslovakia in 1968). There were those, like Fukuyama, who reacted no doubt too quickly, in the euphoria of the rapidly unfolding events, by postulating as the historical outcome the triumph on a global scale of Western liberal democracy and, in consequence, an “end of history” in its special, postRenaissance, Western European vision as a dialectical process of ascertainment and development of truth through the competition and interaction of opposing schools of thought.5 IV. The post-Cold War era: the end of the “End of History” Another paradigm shift with, this time, a Pax Americana presided over and, if need be, militarily and unilateral-militarily enforced by the United States on the pattern of the celebrated 19th century Pax Britannica that had been financially underwritten by the Pound Sterling and unilaterally imposed by the British Navy, would be the obvious logical conclusion from Fukuyama’s reasoning, as the new basic premise of a resulting new World public order system. And yet it has not acquired general recognition or acceptance as the paradigm or model for the post-Cold War World Community. With the disappearance of the Bipolar system of World order with the end of the Cold War and the collapse of the Soviet Empire, at least two competing models have emerged: the one Unipolar and projected from the United States; the other much more diffused or plural, based upon the United Nations, a Polypolar system of World order in which a number of different powers compete or coexist with each other without any one being predominant in relation to the others. It is a paradigm shift that has emerged more easily because of the relative decline, with the ending of the Cold War, of the military-logistical (and especially nuclear-military) underpinnings of the World public order system and also the emergence of new financial and commercial determinants in which non-nuclear powers like Japan and the new Asian economic Tigers have been able (in spite of some, no doubt temporary set-backs in 1998), to compete with or challenge the erstwhile hegemony of older, more traditional World powers. The practical consequences, in International Law terms, of the antinomy between the different contemporary paradigms of World order—the Unipolar and the Polypolar—were demonstrated in the December, 1998 renewal of the military operations in the Persian Gulf. In the earliest, 1990–91 Gulf War, President Bush was able to rally a substantial number of allies, up to thirty states, including the main Arab, Islamic states of the Middle East region, in varying degrees of politicalmilitary logistical involvement in support of collective security measures

5

Francis Fukuyama, The End of History?, The National Interest (Summer 1989), 3–18.

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Edward McWhinney

against Iraq, spearheaded by the United States’ own massive direct military operations in the desert. This was all done under the express authority of United Nations Security Council Resolutions and carried out under the U.S. military command, with the stated design to restore and maintain the territorial integrity of Kuwait and its original frontiers after the invasion by Iraq. But, seven years later, only the United States and the former regional Colonial power, Great Britain, were prepared to venture on fresh direct military action in Iraq at the U.S. President’s call. The U.S. and Great Britain were forced to rely, as legal justification for their new military action in the Gulf region against Iraq, on the earlier Security Council Resolutions from the Gulf War period. But these had all been enacted in another time, and arguably, enacted for another, different political situation and for different political purposes. The alternative, contemporary International Law basic principle has been that the general legal prohibition of the Use of Force is an absolute one under the United Nations Charter (save only for the strictly limited right of self-defence conceded under Article 51 of the Charter); and that that absolute prohibition can only be legally dispensed with by a Security Council Resolution expressly adopted under Chapter VII of the U.N. Charter for that purpose, in a specific, precisely-defined problem-situation. It is the position consistently maintained by the current U.N. Secretary-General, and it was supported by those states that chose not to respond to the urgent and extreme diplomatic pressures exercised upon them by the U.S. and Great Britain to take part directly in their own renewed military operations in the Gulf in December, 1998. In a situation of competing paradigms of World order, with substantially different legal consequences deriving logically, in Kelsenian terms, from each one of them, it is hardly acceptable that any one state or group of states should be able to claim the right to decide and to act unilaterally on recourse to armed force (this, in the absence of any bona fide situation of self-defence, as strictly defined in the United Nations Charter). Otherwise, we would have the situation of one party only to an international dispute acting, in effect, as judge, jury, and executioner on its own behalf. There is the obvious opportunity for authoritative third party adjudication in any such situation. The International Court of Justice, in its recent jurisprudence and its Lockerbie6 ruling in particular, has shown a new tendency to pick up the torch from the very effective national constitutional courts of post-War Europe, and in addition to its more traditional jurisdiction on inter partes issues, to essay new definitions of constitutional power and its limits within the United Nations, and of the proper allocation and distribution of law-making competence as between the different United Nations organs—General Assembly, Security Council, the office of the SecretaryGeneral, and the Court itself. In the Kosovo situation of March, 1999, a latter-day, residual problem surviving

6

Preliminary Objections, ICJ Reports 1998, 115.


9

from the larger Western European powers’ failures in peaceful regulation of the State succession to Tito’s Socialist Federal Republic of Yugoslavia, the United States and its Western European associates evidently chose to bypass or else simply forgot the pragmatic reconciliation of the sometimes competing Law and Power imperatives achieved by President Kennedy and Secretary Khrushchev in the Cuban Missile crisis of October, 1962, with their then opting for the alternative, more moderate, legal controls not involving the recourse to armed force. The Kennedy-Khrushchev peaceful resolution, through diplomatic means, of a crisis that took the World Community to the brink of nuclear war is rightly celebrated today as a textbook example of international problem-solving in tension-situations. In contrast, in the Kosovo situation, the United States and its Western European associates may have broken off, prematurely, the Rambouillet diplomatic processes in favour of direct military action through the vestigial Cold War era Western military alliance, NATO. There was, in particular, no approach by any of the member-states of the NATO military group to the United Nations Security Council for a dispensation from the U.N. Charter’s legal interdiction of the Use of Force—a condition precedent to any international peace-making action under Chapter VII of the Charter. The publicly advanced argument of the NATO states’ various Foreign Ministers for thus avoiding the United Nations was the stated fear of a legal veto being applied in the Security Council by either one of the two non-NATO Permanent Members of the Security Council, Russia and China. The fact remains that that hypothesis was never tried and tested by the NATO member-states. Even more surprising, however, was the failure of the NATO member-states, and especially the United States, to proceed through the alternative United Nations legal route, the General Assembly, on the basis of the Uniting for Peace Resolution successfully sponsored by President Truman and Secretary of State Acheson in the Korean War crisis of 1950, in the then anticipation of just such a Permanent Member’s legal Veto in the Security Council. The celebrated Resolution 377A(V) was pushed through the U.N. General Assembly on 3 November 1950, by the United States and its political associates by a vote of 52 to 5, with 2 abstentions. It proclaimed the full legal authority of the General Assembly to legislate to fill the gap as to international peace-making—“if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case”. The Uniting for Peace process, exercised through the U.N. General Assembly, remains an authoritative constitutional-legal precedent for United Nations action, to this day. It may be speculated that the U.S. Administration’s abandonment of the U.N. Security Council processes for international peace-keeping, without any prior attempt at testing the Security Council’s will on Kosovo, and then its avoidance of its own, U.S. State Department-made, Uniting for Peace process through the alternative, General Assembly route, reflect that visceral distrust or dislike of the United Nations as a whole, earlier evidenced in the (successful) U.S. campaign within the United Nations in 1995 to bar reform-minded U.N. Secretary-General Boutros BoutrosGhali from a second term and in the sustained U.S. refusal to pay the full amount of

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the U.S. assessed contributions to the U.N.’s annual budget. As a result, however, without the prior legal authorisation from the United Nations, whether from the Security Council or from the General Assembly, the U.S.-led NATO direct military action against Yugoslavia was left without any affirmative base in International Law, NATO as a regional security organisation remaining at all times legally subject to and controlled by the stipulations in the U.N. Charter outlawing the Use of Force. NATO could not hoist itself by its own bootstraps into a legal power not expressly given to it by the U.N. Charter and by the principal organs of the United Nations. V. The paradigm competition today: limiting political and societal facts It is, as we have noted, a period of historical transition where the competition and interaction of radically different conceptions of the facts of contemporary international society and the preferred direction in which the World Community should move for the future, coexist and sometimes collide. We may résume these societal facts, which effectively condition or control national and international policymaking today, as follows: 1. From political-military, to political-economic base of World order. There has been a shift from a political-military to a political-economic base of World public order, with the ending of the Cold War. This involves not merely the paradox that some states that are superpowers in strictly military terms because of their nuclear weapon status, may be effectively Third World countries in economic terms. It also means that some of the other, economically better-off states that are part of the nuclear weapons club may need to re-think and re-order national planning policies that have seen too much of their national treasury and their national intellectual-scientific resources devoted to a, by now, historically out-dated nuclear armaments race. In retrospect it may, in one of those unintended historical ironies, have been fortunate for the World War II losers, Germany and Japan, that by the Carthaginian military-peace settlements imposed on them by the victors in the military capitulations of 1945, they were deprived of the legal right and the political opportunity to enter the nuclear arms race, and forced, in default, to concentrate on financial and economic rebuilding and industrial modernisation! 2. Accentuation of rôle of international finance and trade fora. The shift from a politicalmilitary to a political-economic base of World public order means an accentuation of the political importance and the decision-making rôle of those international fora and agencies whose special competence and legal jurisdiction and mandate are the negotiation and development of international trade and commerce. The original hope of the U.N.’s Founding Fathers in 1945 for a World trade body to accompany the new United Nations organisation, had to be down-graded to the complicated, informal, ad hoc arrangements and accommodations and processes of the GATT. A high degree of functional efficacy in international trade was achieved, nevertheless, by these substitute means. But it has now all given way to the new World Trade Organisation which, with the World Bank and the


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International Monetary Fund, looks like it is becoming the prime international arena in the new Millennium, outpacing the U.N. Security Council and General Assembly since taking over the key decisions and decision-making issues from those other institutions. It is, in this sense, speculated that the World Trade tribunal in Geneva, by virtue of its specialist jurisdiction and the sort of cases it is called upon to regulate, may now become more important than the International Court of Justice in the range of key political and political-economic issues that it is called upon to resolve. 3. Transnational Economic Integration and Regional Association. Parallel with the shift from the political-military to the political-economic base of World public order, there is a major trend to trans-national financial and economic association and cooperation on a regional basis, often involving degrees of supra-national constitutional-legal integration. While the European Union is the best established of the examples, similar developments are to be seen in the Canada-U.S. (NAFTA) and the Canada-U.S.-Mexico (trilateral) free trade agreements, the latter soon to be extended to include Chile and with further candidates short-listed. Within Latin America itself, similar regional arrangements are now under way. This new, supra-national integration on a regional basis should, in the long run, strengthen One World, United Nations-based constitutional arrangements. But there will be new necessities required to coordinate and harmonise those special regional arrangements with the U.N. and U.N.-agencies-based powers and actions. 4. Historical resurgence of nationalism and ethno-cultural particularism. Coexisting with these new trends towards supra-nationalism and co-operation across conventional state frontiers, conventionally defined, has been the resurgence of nationalism and ethno-cultural particularism in the wake of the ending of the Cold War and the Bipolar World order system. In the Cold War system of order, the two bloc leaders had clearly preferred stability and predictability—the status quo of existing territorial frontiers and of the late 19th century definitions of state sovereignty— over the pressures for change and rectification of past historical errors or injustices stemming, for example, from the Congress of Berlin of 1878 and the two Balkan Wars of 1912–13. It cannot be said that the present-day Concert of Europe—the Western European Foreign Ministers who presided over the effective dissolution and the resulting State Succession to the former Socialist Federal Republic of Yugoslavia—understood how to reconcile the new political interests and demands in South-Eastern Europe and the Balkans with peace and security on the one hand and the International Law principle of self-determination of peoples. This new Concert of Europe (Western Europe) at the opening of the 1990s singularly lacked the larger vision and imagination of a Bismarck or a Beaconsfield at Berlin a century earlier. The European Foreign Ministers at the opening of the 1990s, in default of a larger intellectual vision of the post-Cold War World or even panEuropean public order seemed, anachronistically, to be reviving their own national Foreign Ministry legal briefs from the pre-World War I conflicts between the European powers of that earlier day. The academic experiments in a new form of federalism within Bosnia-Herzegovina for the power vacuum left by the premature

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dissolution of Titoist Yugoslavia, ventured on in the Vance-Owen and then OwenStoltenberg plans, no one of whose principal authors had ever lived within a genuinely plural-ethnic constitutional system, had from the beginning a curious element of artificiality and unreality, and always seemed threatened with political disaster long-range. The U.N. peace-keeping and peace-making operations (the political, if not the legal line between the two, is hard to draw) in post-succession Yugoslavia became, inevitably, endlessly stop-gap in the absence of a clear and coherent design for future regional development and cooperation. In their approach to the Kosovo situation in 1999, the political and military leaders of the NATO military alliance seem to have learnt nothing and forgotten nothing from the bitter lessons of the Bosnia-Herzegovina internecine conflicts and of the political fragility of the internal political frontiers left behind from Titoist Yugoslavia. In particular, the NATO powers do not seem to have foreseen the “falling dominoes” effect of still further external political tampering with those frontiers, both upon fragile new succession states like FYROM-Macedonia and also upon longer-standing neighbouring states with their own large ethno-cultural minorities. On a more long-range view, the NATO intervention would seem further to have inflamed rather than diminished existing ethnic conflicts within the larger Balkan region. 5. Participatory democracy: the new, People’s power in international relations. A further, potentially highly unsettling, though in the long-range possibly liberating, factor in International law-making in the current era of historical transition, has been the emergence in international policy-making of what has been called, in domestic, national politics, People’s Power, or more scientifically and prosaically, Participatory Democracy. The new People’s Power takes advantage to the full of the new instruments of direct mass communication, through FAX and the World Wide Web and the current cut-rate charges for international telephone conference calls. The Land Mines Treaty, signed in Ottawa at the beginning of December, 1997, by 120 states and then entering into force a bare ten months later with the depositing of the necessary minimum number of forty instruments of state ratification, is a remarkable example of the success of this new, trans-national, populist approach to international law-making. Religious and other peace groups joined forces with the medical and health groups specially involved in caring for the non-combatant, civilian and especially child victims of land mines that had been planted in mostly undeclared Third World civil wars and armed combats. These special interest groups proceeded to lobby their own national Foreign Ministries for an International Law ban on the production, manufacture, export and sale of these particularly vicious and destructive weapons of modern armed conflicts which persist in their effects long after the original conflicts have ceased and the original regular or irregular armed combatants have gone home. After successfully lobbying their own (mostly Western, middle-rank state) Foreign Ministries, the non-governmental groups involved in that movement proceeded to network with church, academic, professional, and scientific-medical interest groups in other countries around the World. In fact, the fortieth state to ratify the


13

Land Mines Treaty and thus bring it into legal force in 1998 was a Third World state, Burkina Faso, and its adherence to the treaty was directly promoted by trans-national exchange between non-governmental groups from original Western sponsor states and their peer groups within Burkina Faso. The signal rapid success of the trans-national populist-based Land Mines Treaty process led on to the subsequent much accelerated achievement, in July 1998, of the signing in Rome of the Treaty establishing a new International Criminal Court. This was done to the evident dismay, and against the negative diplomatic efforts, of a number of key Permanent Members of the U.N. Security Council. That Big-Power opposition, of course, may be enough to hold up or delay ratification and entry into legal force of the International Criminal Court Treaty, for which no less than 60 state ratifications are needed. But it is unlikely to stay the new People’s Power and popular involvement in international law-making, which is widely perceived today as having been, heretofore, a highly arcane exercise appropriated by political leaders and their attendant bureaucratic advisers who are not always open or sympathetic to the Winds of Change in the World Community and in an International Law that is supposed to reflect contemporary societal needs and expectations. One curious and no doubt unintended consequence of the Kosovo armed conflict has been the suggestion to extend to the political and military actors on both sides of the conflict the principle of universality of international criminal law responsibility argued for by the proponents of the new International Criminal Court and resisted, as already noted, by some key Permanent Members of the Security Council. The Prosecutor for the special, ad hoc U.N. War Crimes tribunal for the former Yugoslavia, in various public statements and actions, seems to have concluded that that tribunal’s mandate automatically extended, without more, to the Yugoslav administration’s alleged activities in Kosovo. The extension of the ad hoc tribunal’s mandate in this way may be legally questionable without a further, enabling Resolution adopted by the Security Council for that purpose. Much more interestingly, however, the United Nations Commissioner for Human Rights, former Ireland President, Mary Robinson, made the point that the ad hoc War Crimes tribunal should be authorised to investigate actions by all participants in the Kosovo conflict, expressly including NATO. The U.N. Commission on Human Rights cited the many thousands of civilian deaths and injuries inflicted on Yugoslav civilians by the NATO high-level aerial bombardments. The “smart bombs”, supposedly to be directed with pin-point precision at military targets only, were evidently not so smart after all. NATO officials excused the actions against civilian populations as “collateral” or “incidental” damage only—unfortunate accidents—and offered apologies. The contemporary International Law as to aerial bombardments, contained in the Protocol Additional to the Geneva Conventions of 1949 (Protection of Victims of International Armed Conflicts), adopted in 1977, specifically includes in its legal proscriptions of what it categorises as indiscriminate attacks those which—“may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof,

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which would be excessive in relation to the concrete and direct military advantage anticipated”.7 More seriously in legal terms, the NATO aerial bombardment of the Chinese Embassy in Belgrade with its resultant loss of life and injuries to Chinese diplomatic personnel might also offend International Law protections specially codified in the 1970s as part of the series of anti-terrorism international conventions and having, as such, the rank of Jus Cogens in International Law. In the early 1990s, disappointed by the persistent failure of the five acknowledged existing members of the “nuclear weapons club” (all Permanent Members of the United Nations Security Council), to honour their legal obligation, under the NonProliferation Treaty of 1968, to proceed in timely fashion to negotiate the elimination of all nuclear weapons and nuclear weapon stockpiles, a “ginger group” of international lawyers in New York, associated with the Yale University Law School, working in collaboration with a similar European group of lawyers based in Amsterdam (IALANA), began a campaign to have the International Court of Justice declare the illegality of nuclear weapons and of their use in armed combat. The work of the “ginger group” was devoted to preparing the technical legal briefs and also providing or funding expert counsel and advisers for states otherwise strapped for funds, that might be encouraged to raise the issue in the U.N. General Assembly and in the specialised U.N. Agency, the World Health Organisation. What was sought, specifically, was an Advisory Opinion from the World Court declaring nuclear weapons to be outlawed under International Law. The political campaign within the United Nations to secure the Advisory Opinion reference in the International Court was eventually successful. Though the actual ruling by the Court disappointed some with its multiplicity of separate opinions and the absence of a clear, affirmative ruling on the main substantive issue of the illegality of nuclear weapons, the Court did indeed rule that there is a present legal obligation of states that now have nuclear weapons to proceed to negotiate their abolition. Failure by the five “nuclear weapons club” members to proceed on this obligation “with all deliberate speed”, carries the risk of rendering legally licit any subsequent action by non-“nuclear weapons club”members to proceed in their own conceived self-defence and self-protection by endowing themselves with nuclear weapons. (One notes, in this regard, the mid1998 nuclear test explosions by India and Pakistan which, so far from exacerbating relations between the two neighbouring countries, led to a first goodwill visit by the Indian Prime Minister to Pakistan. Both countries announced follow-up measures

7

1977 Additional Protocol, Part IV, Civilian Population, Chapter II, Article 51(5)(b), 1125 UNTS 3, ILM (1977), 1391.


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for their nuclear programmes, apparently as extra national defence protection measures in the aftermath of the NATO military alliance’s armed intervention in Kosovo in March, 1999). VI. International law in municipal law: the General Pinochet caper A more startling, since unexpected in its timing, demonstration of the new populistbased, activist approach to international law-making has been the initiative of a Spanish judge-of-instruction, with the licence of the Spanish Foreign Ministry, to proceed in British Courts to obtain the extradition from Great Britain, where he was in temporary residence while undergoing medical treatment, of Chilean exdictator, General Pinochet. The extradition to Spain was sought for purposes of trial before the Spanish Courts and on the grounds of Crimes against Humanity allegedly committed by General Pinochet in Chile against persons holding Spanish or double (Spanish and Chilean) nationality. The highest British tribunal, the House of Lords, with its Judicial Committee voting three-to-two, held that extradition proceedings could be had against General Pinochet.8 The matter then went on, on other, nonsubstantive legal grounds, to further judicial review before the British Courts. The original ruling by the British House of Lords, a tribunal not normally noted for venturing on breaking new ground in national or international law, highlighted the fact that, at the end of the 20th century and the opening of the new Millennium, revolutionary changes are beginning to emerge in International law doctrines and jurisprudence, and in the international law-making processes as a whole, balancing the unprecedented changes in international society in the present era of historical transition. In a further and final substantive ruling in the General Pinochet extradition case, the House of Lords, with its Judicial Committee voting six-to-one,9 essentially reaffirmed its own earlier ruling, rejecting the Chilean ex-dictator’s claims to sovereign immunity and ruling that he must remain in Great Britain to face the extradition proceedings initiated by the request from Spain based on crimes against humanity committed during his régime. In a partial step backwards, the judicial committee of the House of Lords also ruled, however, that Pinochet would not be required to answer, in the British extradition proceedings, for crimes committed before 1988, the year in which the United Nations Convention Against Torture was incorporated into British municipal law. While territorially limited, in its juridical application, to Great Britain, the House of Lords’ final ruling was hailed as heralding an end to the raison d’état exemption from criminal law liability and criminal law pursuit for acts committed in their own countries against their own

8 9

Judgment of 25 Nov. 1998 (vacated by Order of 17 Dec. 1998), [1998] 3 W.L.R. 1456. Judgment of 24 Mar. 1999, [1999] 2 All E.R. 97.

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and other states’ citizens, generally accorded by national courts to foreign Government leaders. Taken in conjunction with United Nations Human Rights Commissioner Mary Robinson’s suggestion that NATO political and military officials be subject to international criminal jurisdictions for possible breaches of the law of war on aerial bombardment, the British Court decision raises the possibility of a two-track approach to an International Law-based criminal liability—the one through municipal, national tribunals and their municipal law which, increasingly, incorporates International Law as part of the law of the land, and the other through international courts directly applying International Law. VII. Trial-and-error in the development of a New International Law Right of Humanitarian Intervention It is a new, plural World Community, and that fact must be reflected in International Law and its main institutions and processes. Failure to consult with key, private, non-governmental interest groups and to welcome their suggestions for amendments clearly brought down the Paris-based, OECD project for a Multilateral Agreement on Investment (MAI), which was condemned in very many national fora, in very many different states, as an élitist, non-democratic, technocrats’ project. Failure to consult with their own national Foreign Ministers’ legal advisers, as President Kennedy had done so scrupulously throughout the Cuban Missile crisis of 1962 in pursuit of a peaceful resolution, clearly crippled the NATO states’ attempt to translate a claimed moral imperative for humanitarian intervention in Kosovo in March, 1999, into a new, normative, International Law right of military intervention in defence of Human Rights. Past examples of just such an asserted right of intervention were all too severely compromised by their particular historical antecedents: in the case of the West and Western European powers by their 19th century nakedly imperialist, Colonialist associations, and in the case of the Cold War bloc leaders, by the hegemonic character of the interventions within the respective blocs. To liberate oneself from these past Colonialist and Hegemonic intervention precedents in Customary International Law, it would be wise to try to legitimate any World Community action in behalf of an, as yet inchoate, New International Law principle by first seeking the prior legal authority of a Resolution of the U.N. Security Council or, in default of that, a Resolution of the U.N. General Assembly. In the General Assembly, there is, of course, no legal Veto by any of the five Permanent Members of the Security Council. Only the normal two-thirds majority applying to an “important question” would be required. VIII. The new activism in New International Law-making Music, as Plato concluded, is too serious an affair to leave to musicians alone. In its own way, International law-making is now being perceived by an increasingly welleducated and informed general public in very many countries as too important to remain the exclusive domain of governments and political leaders. There are


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significant new players, and new non-governmental forces, now emerging and operating on a trans-national, participatory basis. As Cold War and post-Cold War eras disappear into the dust-bin of history, we can expect legal change—the clash of old and new legal ideas, and the dialectical development of new International Law norms—to be the leitmotiv of operations within the United Nations and other main international and national arenas, official and unofficial, in the contemporary challenge to develop a new, genuinely comprehensive and pluralistic base for World public order and its law-making processes, and to develop new canons of legal responsibility for state political and military leaders.

2

Towards an international law of co-progressiveness Sienho Yee*

I. Introduction The end of the Cold War has spawned a vast amount of literature on the characteristics of international law and relations in the post-Cold War era.1 This topic also captured Judge Li’s attention during the time when I was his assistant at the ICTY. I was fortunate enough to be able to hear his views on what the world would be and should be. In this short essay I hope to add another dimension to the current debate, without reviewing the existing discussion in detail. While I am mindful that the world is incomplete if seen only from one point of view but incoherent if from all points of view, I still have to paint with a broad brush and with an impressionistic style, given the limited space available and the nature of the topic.

*

I am grateful to Alan L.Bogg, John R.W.D.Jones, Rafaëlle Maison, Andreas L.Paulus, and Stefan Talmon for their queries and criticisms. Needless to say, these friends do not necessarily share my views and any errors are solely mine. Comments may be sent to: [email protected]. 1 See, e.g., E.McWhinney, Shifting Paradigms of International Law and World Order in an Era of Historical Transition, in this volume; various contributions in M.Byers (ed.), The Role of Law in International Politics (2000); S.Marks, The Riddle of All Constitutions (2000); T.Franck, The Empowered Self: Law and Society in the Age of Individualism (1999); R.Higgins, International Law in a Changing International System, Cambridge LJ (1999), 78; H.Owada, The Problem of World Public Order through the Prism of the United Nations, in Boutros Boutros-Ghali Amicorum Discipulorumque Liber (1998), 551; id., Justice and Stability in the International Legal Order, Japanese AIL (1996), 1; J. Pastor Ridruejo, Le droit international à la veille du vingt et uniéme siècle: normes, fait et valeurs, Cours général de droit international public, 274 RCADI (1998), 9; Symposium: The Changing Structure of International Law Revisited, 8 EJIL (1997) & 9 EJIL (1998); R.Foqué, Global Governance and the Rule of Law, in K.Wellens (ed.), International Law: Theory and Practice (1998), 25; International Law on the Eve of the Twenty-first Century: Views from the International Law Commission (1997); I.Brownlie, International Law in the Context of the Changing World Order, in N. Jasentuliyana (ed.), Perspectives on International Law (1995), 49; V.Nanda, International Law in the Twenty-first Century, in ibid., 63; E.B.Weiss, The New International Legal System, in ibid., 83; A.Chayes & A.Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995); M.Koskenniemi, International Law in a Post-Realist Era, Australia YIL (1995), 1; L.Damrosch, et al. (eds.), Beyond Confrontation: International Law for the Post-Cold War Era (1995); E. McWhinney & D.Ross, From Coexistence to Cooperation (1991); W.Michael Reisman, International Law after the Cold War, 84 AJIL (1990), 859; various speakers, International Law after the Cold War, 84 ASIL Proceedings (1990), 156. 18

Towards an international law of co-progressiveness

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There can be many ways of viewing and defining international law. One way is to examine its nature and functions. Thus, Guggenheim was of the opinion that “le droit international public…est l’ensemble des normes juridiques qui règissent les relations internationales”.2 Another way of viewing international law, which would seem to be of some value, is to trace the spirit of international law, whether in terms of its nature or its functions, during each particular time frame, as exhibited in its subjects, its formation, its content and its enforcement. With this as the focus of examination, one can reasonably say that the leitmotiv of international law was coexistence at the height of the Cold War, co-operation during the period of détente, and is now co-progressiveness in the post-Cold War era. Of course, the leitmotiv in each period is not the only theme audible to us: in co-existence there was co-operation; co-existence was the background note to co-operation; and co-existence and cooperation are the background notes to co-progressiveness. While the ideas of co-existence and co-operation are nothing new, the idea of coprogressiveness does not seem to have been talked about too often. Indeed, I have coined the phrase “co-progressiveness”3 for lack of a better word that follows from co-existence and co-operation, and for the reason that other commonly used phrases such as “globalization” do not capture the spirit of our time although they may perfectly describe the actual events taking place at the moment. By the international law of co-progressiveness is meant an international law that is all encompassing (hence “co”), preoccupied with advancements in moral and ethical terms more than in other respects, and, in my view, having human flourishing as its ultimate goal (hence “progressiveness”). In the following pages I will discuss the international law of co-existence, the international law of co-operation and the international law of co-progressiveness separately, by taking a “quick” look at the characteristics of the participation in lawmaking, the lawmaking process, the content of the primary rules of conduct, the ways and means of enforcement, and the scholarly discussion on the basis of the prima facie obligation to obey the law (which is normally treated as a moral obligation). I will conclude this discussion by commenting on what I perceive to be the ultimate goal of this law and the conditions for achieving it. Of course I harbour no ambition of making this discussion a comprehensive one.

2

P.Guggenheim, 1 Traité de droit international public (2nd ed., 1967), 1. For general discussion, see ibid.; I.Brownlie, Principles of Public International Law (5th ed., 1998); M.Mendelson, The Formation of Customary International Law, 272 RCADI (1998), 155; V.D.Degan, Sources of International Law (1997); R.Higgins, Problems and Process: International Law and How We Use It (1994); G.Danilenko, Law-making in the International Community (1993); O.Schachter, International Law in Theory and Practice (1991); A.D’Amato, The Concept of Custom in International Law (1971); W. Friedmann, The Changing Structure of International Law (1964); H.L.A.Hart, The Concept of Law (1961), esp. 208–31. 3 As English is not my mother tongue, I have consulted several native speakers of English on this term. We all agree that it is not perfect or artful but is better than others.

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II. The beginning of the Cold War and the international law of coexistence 4 It seems that since the debut of the modern nation State, the primary concern of the States has been with co-existence, and that continues unabated today. During the period leading up to the height of the Cold War the concern with co-existence consumed the bulk of the energy of the statesmen, who seemed to have done little other than to ensure the existence of States. Traditionally co-existence appeared to mean “separate existence” of each State, which of course would result, by default, in “common existence” of all States. With the debut of the Cold War, co-existence took on an additional dimension. The moralization of international relations resulted in a bi-polar world, and co-existence at this time seemed to denote primarily the confrontation, competition and co-existence of two ideological systems: the capitalist system consisting of free or liberal States and the communist system consisting of authoritarian (for some) or highly centralized (for others) States.5 Each system was intent upon expanding its influence, not only to conquer the minds and souls of people but also territories. In the minds of some, the capitalist system succeeded in erecting an encircling line around the bastions of communism, the USSR and China, in the east from South Korea, to Japan, Taiwan, Hong Kong, and Indonesia, and in the west along the dividing line between the Eastern and Western blocs. The confrontation between the systems, each backed by nuclear power, generated great fear that each could destroy the other and the world. That fear exerted magic power on each side to force a stand-offish peace between the two. Needless to say, during this period international law served as an instrument for the separate existence of States. The main, if not the only, subjects of international law were States. While international law had long been concerned with the interests of individuals, as made clear in Paquete Habana6 and Grisbadana7 and in the regime of minority and individual rights8 thrust upon some States after the First World War, individuals were not considered to have the dignity of subjects of international law. This was the prevailing position, notwithstanding the lofty goals stated in the United Nations Charter and the rights given them under the Universal Declaration of Human Rights. They were subjects mostly as bearers of obligations9 under a variety of conventions and customary international law, and as defendants at the Nuremberg

4 5 6 7 8 9

See generally G.I.Tunkin, Co-existence and International Law, 95 RCADI (1958(III)), 1; E. McWhinney, “Peaceful Coexistence” and Soviet-Western International Law (1964). See Tunkin, ibid.; NSC68, in US Dept of State, 1 Foreign Relations of the United States, 1950 (1977), 235– 92, as summarized in D.Armstrong, Revolution and World Order (1993), 74–75. 175 U.S. 677(1900). PCA (1909), in 11 RIAA 147. For a brief introduction to this regime, see F.Capotorti, Human Rights: The Hard Road towards Universality, in R.St.J.Macdonald & D.M.Johnston (eds.), The Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory (1983), 977, 979–81. Individuals were given procedural capacity, i.e., as bearers of rights, before the European Court of Human Rights, but that did not really function until after 1960.


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and Tokyo Trials. On the other hand, while the United Nations has been given awesome express power under the Charter, and implied power under the interpretation adopted in the Reparation10 advisory opinion, it has also been given watertight immunity from the jurisdiction of courts. Thus, it seemed that only States were full subjects of international law who were both holders of rights and bearers of obligations. The predominant mode of lawmaking seemed to be the customary international law process. Each State independently articulated what they believed to be the law and acted upon it, or simply acted and then justified what it did with legal arguments. Under such circumstances, the more powerful an actor was the heavier its footprint would be in the development of customary international law.11 The smaller States were not well-endowed enough to be contenders in this process. The content of the primary rules of conduct is also State-oriented. The bulk of the rules related to how to identify the State as the unit-entity in international law, how to delimit and protect its territory and its competence,12 which can be summed up in one word, “sovereignty”. This finds expression in the Charter of the United Nations, and elaboration in the Sino-Indian formulation of the five principles of peaceful co-existence: the principles of territorial integrity, non-aggression, nonintervention, equality, and peaceful co-existence among nations.13 Thus, each actor was a separate, independent, and sovereign entity, and a self-contained system on its own, as if an island entirely of itself. Even the concept of self-determination as being developed during this period was basically tied to the national existence as a separate entity.14 The enforcement of international law largely depended on self-help, including counter-measures and reprisals, which fundamentally is based on the threat of sanction. Enforcement thus also favoured the powerful and was at best imperfect. Admirable attempts at collective enforcement resulted in the establishment of the League of Nations and its “successor”, the United Nations, but the former suffered the fate of failure and the latter, that of paralysis. Nevertheless, the establishment of the United Nations stands as the most important milestone in the history of international relations and international law. The attempt to monopolise the use of force and to subject it to the rule of law no doubt is a sign of the maturity of any society.

10 ICJ Reports 1949, 174. 11 See Charles de Visscher, Theory and Reality in Public International Law (3rd ed. (1960), P.E.Corbett tran., 1968), 155. See also generally M.Byers, Custom, Power and the Power of Rules (1999); contra, M. ChemillierGendreau, Humanité et souverainetés: Essai sur la fonction du droit international (1995). 12 A glimpse of the importance of these rules can be found in the fact that text writers devoted the bulk of their treatises to these issues. See, e.g., J.Brierly, The Law of Nations (2nd ed. by H.Waldock, 1963). 13 See F.Gao, China and the Principle of Sovereign Equality in the 21st Century, in this volume, n. 2 therein and accompanying text. 14 See Tunkin, n. 4 above, 67–68.

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This state of the law figured prominently in the discussions during this period on the prima facie obligation to obey the law. Often consent captured the imagination of scholars. The stand-offish peace showed that at least at the height of the Cold War such consent was at best forced consent or reluctant acquiescence. Moreover, often State consent could only be “implied” or “implicit” and thus unreal and not meaningful. It seems that the view that best reflected the spirit of the international law of co-existence is that of Brierly: The ultimate explanation of the binding force of all law is that man, whether he is a single individual or whether he is associated with other men in a state, is constrained, in so far as he is a reasonable being, to believe that order and not chaos is the governing principle of the world in which he has to live.15 This argument may be summed up in one word: necessity. Given the prevailing conditions of international relations especially during the Cold War, it would be hard for one to disagree with this view. More or less, this was a picture of international law for isolated, un-coordinated action.16 Nevertheless international law still managed to maintain a minimal international order, primarily out of necessity, despite the shrill voices of moralism. Attempts at collective coordination through treaties and through intra-bloc customs had not met with great success. While these rules for co-ordinated, common action were beginning to become visible, they did not meaningfully disturb the overall picture of the rules for isolated, un-coordinated action. III. Détente and the international law of co-operation

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Perhaps realizing that neither could annihilate the other in the immediate future, the two rival systems initiated extraordinary efforts to relax the tension between them, starting from the early 1960s.18 The chief rivals, the United States and the USSR started to make “little step” overtures to each other, with a view to solving practical

15 J.Brierly, n. 12 above, 56. See also G.Fitzmaurice, The Foundations of the Authority of International Law and the Problem of Enforcement, 19 Modern LR (1956), 1, 8 (“The real foundation of the authority of international law resides similarly in the fact that the States making up the international society recognize it as binding upon them, and, moreover, as a system that ipso facto binds them as members of that society, irrespective of their individual will.”); H.L.A.Hart, n.2 above, 87. 16 This picture parallels that of the tradition of classical liberalism with its central tenets of atomism and rational self-interested action which was instrumental in shaping Western approaches to law and government in the domestic arena during this period. Interestingly, the present EC legal order, as it relates to the outside world, has been alleged to bear a family resemblance to such an order. See O.Spiermann, The Other Side of the Story: An Unpopular Essay on the Making of the European Community Legal Order, 10 EJIL (1999), 763, 778–79. 17 See, generally, E.McWhinney, The International Law of Détente (1978); A.Cassese, International Law in a Divided World (1986). 18 People may disagree on the dates. Here I follow McWhinney, ibid., 70–71.


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disarmament problems. Their efforts extended to co-operation in economic, cultural, and environmental areas. This spirit then spilled over to and was reinforced by other States. This was accompanied by or resulted from a de-moralization of international relations, with the main players in each system recognizing that differences in the social and economic structure were not, or need not be, obstacles to co-existence and co-operation. The confrontation between the two systems was still simmering, but the intensity, at least in rhetorical terms, was reduced. In short, a climate of co-operation descended upon earth. Peace, if eerie and enforced by mutual deterrence, prevailed. During this period, international law took significant strides ahead, which was influenced by the spirit of co-operation. That spirit was itself reflected in the content of international law. In the first place, there was a dramatic increase in the number of actors or participants in international law. The emergence of the Third World and the addition of its members to the membership of international society not only increased international interactions and exchanges but also brought significant new arguments to international law discourse.19 They became the majority in the General Assembly, and attempted to place that majority at the service of justice and development. Their cause contributed to co-operation and the sophistication of international law. This might also be the reason for the proliferation of international organizations. Finally, individuals were brought out of the preserve of States, that is, domestic jurisdiction, and their rights and plights became more and more the concerns of the international community. They began to exercise procedural rights before the European Court of Human Rights and the Inter-American Court of Human Rights. Their efforts began to contribute to the development of human rights law. The era of détente witnessed the growth of an “infinite variety” of international law.20 The customary international law process still retained its vitality, not only in solidifying existing general rules and principles, but also in producing or crystallizing new ones such as various concepts in outer space law,21 the regime of archipelagic States,22 and the concept of common heritage of mankind.23 The requirements relating to customary law formation were reduced somewhat. Specifically with respect to the passage of time requirement, the concept of “instant custom” was put forward.24 Finally, the International Court of Justice appeared to give special weight to the

19 T.Wang, The Third World and International Law, in Macdonald & Johnston (eds.), n. 8 above, 955; Armstrong, n. 5 above, 158–98; G.Danilenko, n. 2 above, 113–18. 20 See R.Baxter, International Law in “Her Infinite Variety”, 29 ICLQ (1980), 549. See also A. Cassese & J.Weiler (eds.), Change and Stability in International Law-Making (1988). 21 B.Cheng, United Nations Resolutions on Outer Space: “Instant” International Customary Law?, 5 Indian JIL (1965), 23–45. 22 Brownlie, Principles, n. 2 above, 190–91; Churchill & Lowe, The Law of the Sea (3rd ed., 1999), 118–31. 23 Brownlie, ibid., 253–54; Churchill & Lowe, ibid., 223–31. 24 See Cheng, n. 21. Glimpses of this concept are discernible in North Sea Continental Shelf, ICJ Reports 1969, 3, paras. 73–74.

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practices of “specially affected”25 States. While its import is not completely clear, this concept of “specially affected State” stands in contrast to what may be termed the “heavy footprint State” concept as intimated by de Visscher.26 As we know that not all specially affected States are the most powerful States, the “specially affected State” concept may have the effect of egalitarianizing the customary international law process, however slight that effect may be. The emergence of the regime of archipelagic States may be an example of this. Important though the customary international law process might be, the age of détente was an age of treaties, nonbinding agreements, and declarations made by the General Assembly and international conferences. Important treaties and nonbinding agreements were concluded in this period, both to codify existing or emergent norms such as the concept of jus cogens27 and to create new ones such as the various new norms in the 1982 Law of the Sea Convention. The nonbinding agreements and declarations are not legally binding as such, and yet they exert certain constraints on the participants in international affairs, and for this reason they are often called “soft law”. It is these different instruments that Baxter had in mind when he used the phrase “infinite variety” to describe international law in 1980.28 Because of this infinite variety of international law, the age of détente is also an age of “relative normativity”.29 The gradations in the “bindingness” of various forms of international law, such as super norm jus cogens, ordinary binding law and soft law, troubled Weil, leading to his famous protestations.30 Nevertheless, such was and still is the state of the law, despite the fact that it is not aesthetic.31 Secondly, the vague formulations of norms in the treaties, nonbinding agreements and declarations might at first appear “empty”, yet they may gradually become concretized and ripen into customary international law.32 Thirdly, this state of the law may be justified on other grounds. In the first place, it is important to bear in mind that the gradations in normativity that Weil protested against relate to different types of law governing different aspects of international society.33 Uniformity in bindingness in every aspect of the law can only be achieved if the lawmakers in the international community can come to agreement, whether expressly or implicitly, on rules applicable to every aspect of the international community, which is impossible. Therefore, the alternative to the Weil brand of “relative normativity” would be no law applicable to many more aspects of international life. This scenario is not attractive. It is better for 25 ICJ, ibid. 26 See n. 11 above; B.Cheng, Opinio Juris: A Key Concept in International Law that Is Much Misunderstood, in this volume, on the “dominant section” of the international community. 27 Vienna Convention on the Law of Treaties, 1155 UNTS 331, art. 53. 28 See Baxter, n. 20 above. See also O.Schachter, The Twilight Existence of Nonbinding International Agreements, 71 AJIL (1977), 296. 29 See P.Weil, Towards Relative Normativity in International Law, 77 AJIL (1983), 413. 30 Ibid. 31 See G.Abi-Saab, Cours général de droit international public, 207 RCADI (1987(VII)), 459. 32 I am grateful to Marco Sassòli for an email discussion on this point. 33 Another type of “relative normativity” is discussed below, see text to n. 73.


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international society to take whatever law that it can agree upon with respect to specific aspects of its activities and continue to search for an appropriate upgrade for that law in the future.34 The era saw not only an increase of the forms of international law but also an explosion of its content both in terms of concrete obligations and general norms. Indeed, this may be the golden age of norm creation and elaboration.35 This is a tribute to the spirit of co-operation, which made possible the conclusion of varied treaties and the elaboration of “norms”. This spirit was so strong that it was phrased as a “duty”, whatever this term means in this context. Thus, the famous 1970 Friendly Relations and Co-operation Declaration stated that “States shall have the duty to cooperate with one another, irrespective of the differences in their political, economic and social systems, in the various spheres of international relations, in order to maintain international peace and security and to promote international economic stability and progress, the general welfare of nations and international co-operation free from discrimination based on such differences.”36 In each of these categories a great number of declarations were made, treaties concluded, and norms reaffirmed or created.37 First and foremost were those in the service of peaceful co-existence, including those on disarmament and non-proliferation and those on the territorial settlement in Europe. Second, there were those in the service of economic and cultural progress and general welfare. The emergence of the 1982 Law of the Sea Convention may be considered an example of this. Third, a large number of human rights treaties were concluded and declarations made in this period, including the two human rights Covenants of 1966, the Torture Convention, the definition of aggression, the Helsinki Final Act, and the Convention on the Elimination of All Forms of Discrimination against Women. In this respect, the less developed countries made significant contributions by emphasizing social and economic rights. Fourth, the idea of self-determination became a rallying cry for independence and equality between States and for equality between different ethnic groups within a State, as embodied in the idea of “internal self-determination”.38 Finally, environmental concerns began to capture the attention of States,39 together with the concept of sustainable development.40

34 This difficulty was discussed in A.O.Adede, The Minimum Standards in a World of Disparities, in Macdonald & Johnston (eds.), n. 8 above, 1001. 35 Cf. generally Ph. Cahier, Changements et continuité du droit international, Cours général de droit international public, 195 RCADI (1985(VI)), 9. 36 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res 2625(XXV), 1970, UNYB (1970), 788. 37 See generally McWhinney, n. 17 above. 38 See n. 36 above; A.Cassese, Self-determination of Peoples: a Legal Reappraisal (1995), 101–33. 39 Stockholm Declaration on the Human Environment, U.N. Doc. A/CN.48/14/Rev.1, reprinted in 11 ILM (1972), 1416. 40 See generally D.French, Developing States and International Environmental Law: The Importance of Differentiated Responsibility, 49 ICLQ (2000), 35.

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Obviously these rules and obligations, if complied with, would have the effect of moving the world from isolated and unco-ordinated action to common action, leading to collective enforcement of international law. First, the growth of international obligations and rules resulted in a “community interest” in the smooth functioning of the international system.41 The idea of community interest can be seen in the concept of erga omnes rights and obligations42 and its concomitant expansion of the concept of “injured State”.43 This would thus make it easier for the collective enforcement of international law under customary international law. Second, within treaty regimes, the means of enforcement has been normally the sanction of “nonparticipation” or “membership sanctions”,44 including the suspension or expulsion of a member. This normally has the effect of depriving a member of certain benefit resulting from co-operation, rather than imposing sanctions unrelated to the regime. Nevertheless membership sanctions may have broader implications such as channelling foreign investment away from a member. The co-operative spirit was such that few challenged the binding force of international law. Even those who violated the law attempted to employ international law to justify their acts, which is proof that the “internal aspect” of the law does exist.45 Perhaps because of this, international law scholars seemed to be relatively uninterested during this period in the issue of the prima facie obligation to obey the law. Franck believed that the sense of obligation derives primarily from “status”, and the obligation comes “as a necessary reciprocal incident of membership in the community”.46 Such an argument appears to be a reaffirmation of the necessity argument made by Brierly and Fitzmaurice. 47 It was general theorists 48 of jurisprudence such as John Finnis49 who put forward a “law-as-co-ordination” thesis.

41 See generally H.Mosler, The International Society as a Legal Community (1980); B.Simma, Bilateralism and Community Interest in the Law of State Responsibility, in Y.Dinstein (ed.), International Law at a Time of Perplexity (1989), 821; B.Simma, From Bilateralism to Community Interest in International Law, 250 RCADI (1994(VI)), 217. 42 Barcelona Traction, ICJ Reports 1970, 32, para. 33. 43 ILC Draft Articles on State Responsibility, art. 40, ILCYB (1985(II.2)), 25–27. 44 Friedmann, n. 2 above, 88–95; Chayes & Chayes, n. 1 above, 68–87. 45 See, e.g., Nicaragua, ICJ Reports 1986, 14, 98, paras. 185–86; H.L.A.Hart, n. 2 above, 54–57; 79–91. 46 T.Franck, Legitimacy in the International System, 82 AJIL (1988), 753. See also R.Dworkin, Law’s Empire (1986), 176–224, on fraternity, integrity and political community. 47 See n. 15 above and texts thereto. 48 The “international relations and international law” school seems to tell a complicated story of the ways and means of achieving efficiency See K.Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14 Yale JIL (1989), 335. This came relatively late, almost postCold War, and even then these scholars did not seem to expressly focus on efficiency as the basis for a primary obligation to obey the law. By and large, they presumed its “goodness” and set about theorizing on how to achieve it. 49 J.Finnis, The Authority of Law in the Predicament of Contemporary Social Theory, 1 Notre Dame J. of Law, Ethics & Public Policy (1984), 115.


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Basically an argument from efficiency, this thesis best captures the spirit of cooperation. However, this is a controversial point as, although one may agree that efficiency may motivate the acceptance of and compliance with the law, it is not clear that it constitutes the basis for a general prima facie obligation to obey the law. The thesis may be considered at once too narrow, because efficiency sometimes must be subordinated to other considerations such as jus cogens prohibitions, and too broad, because it cannot explain why a motorist is required to obey the law to stop at a red light in the dead of night when there is no sign of other human activity. Raz50 argued that co-ordination cannot form the basis for a general prima facie obligation to obey the law. In his view, there is no such general moral obligation; it is the sense of belonging to a community that forges the respect for law. That sense, however, is a duty of loyalty, not a moral obligation. Finnis countered with an essentially “effectiveness for fairness” argument, pointing out that part of “the law’s point is to maintain real (not merely apparent) fairness between members of a community”.51 No one would disagree that fairness is a goal, but again one might be puzzled as to whether that goal in itself or effectiveness for achieving it would constitute the basis for a general prima facie obligation to obey the law. Nevertheless, these latter two arguments would be echoed, perhaps unknowingly, in the subsequent discussions of international law scholars. By and large, this is a picture of international law for co-ordinated action both for co-existence and for co-operation, and represents an advance in international law. No doubt, self-interest of States made this possible. Two other factors, the emergence of the newly independent States and the relative de-moralization of international relations, appear to have contributed significantly to this advance. As to the extent of the latter’s contribution, one can only speculate. But as Montesquieu long ago noted, “soft manners and morals” naturally help to elevate humanity.52 Of course not all was well during this period. There were turf fights between the capitalist and communist systems in Africa. There were tragic interventions in Nicaragua and in Vietnam, which caused untold miseries. There were also attempts to employ international law to further oppression intra-bloc, such as the extravagant use of the collective self-defence argument in Nicaragua53 and the Brezhnev Doctrine.54 But these were exceptions, and they were limited in scope.

50 See generally J.Raz, The Obligation to Obey: Revision and Tradition, ibid., 139. See also J. Coleman, On the Relationship between Law and Morality, 2 Ratio Juris (1989), 66, 75–78. 51 J.Finnis, Law as Co-ordination, 2 Ratio Juris (1989), 102. 52 Montesquieu, The Spirit of Laws, XX.i (T.Nugent tran. 1823). See also T.Pangle & P.Ahrensdorf, Justice among Nations (1999), 160. 53 See Nicaragua (Merits), ICJ Reports 1986, 14. 54 See McWhinney, n. 17 above, 124. It was argued by some Soviet authors that this doctrine represented “particular” customary international law or even jus cogens. For a strong criticism, see A. D’Amato, It’s a Bird, It’s a Plane, It’s Jus Cogens!, 6 Connecticut JIL (1991), 1 http://anthonydamato.law.nwu.edu/ Papers-1/A914.html

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IV. The post-Cold War era and the international law of coprogressiveness The calm that prevailed during the period of détente was not to last too long. After President Jimmy Carter took office, the human rights banner that he hoisted started to remoralize international relations. That remoralization speeded up when Ronald Reagan took office and called for the ultimate defeat of the Soviet evil empire. The reform that was being carried out in China and elsewhere induced agitation for even broader reform and greater freedom. At the same time, the dire economic reality in the Soviet Bloc, coupled with the pains and shocks caused by imprudent reforms, culminated in the collapse of the chief rival to the capitalist system and thus the end of the Cold War. The post-Cold War world has been a complex and fast-changing one, defying categorization.55 In political terms, broadly speaking, the bipolar Cold War world moved into an almost unipolar world with the United States occupying the apex. However, substantial efforts spearheaded by Russia, China and to some extent, France, have been made to achieve multipolarity, although this has not yet been fully attained, if ever. Such a situation no doubt leaves room for hegemony. In economic terms, obviously globalization has been in full swing and has produced an interdependent world economy encompassing every State and region. Yet the architecture of the world economy seems to be one of anarchical free market. The economic assistance provided by the international financial institutions and States has also been conditioned on measures to reinforce such a system, despite the fact both politicians56 and capitalists57 have made clear the undesirable effects of unrestrained capitalism. In addition, the rise of particularism in some areas, with the overtone of self-determination and human rights, has led to the collapse of various States and resulted in chaos and untold miseries and sufferings in the Balkans and some African States. The advances in information technology not only serve to involve everyone in the world community, but may have also given a boost to overmoralization and demonization of certain groups, thus fanning the fervour of particularism and ethnocentric yearnings, aggravating the deplorable situations in some areas. Despite all this, the tenor of international relations seems to have been progressive. This is reflected in the state of international law which can be called an international law of co-progressiveness. It is all encompassing and preoccupied with advancements in moral and ethical terms, more than in other respects. One of the most notable features is that participation in the lawmaking process has become more inclusive

55 See, e.g., J.Kurth, American Strategy in the Global Era, 83 Naval War College Review (2000), 7; O. Schachter, The Decline of the Nation-State and its Implications for International Law, 36 Columbia JTL (1997), 7; K.Waltz, The Emerging Structure of International Politics, 18 International Security (1993), 44. 56 Politicians have been searching for a “third way” other than capitalism and socialism. See, e.g., http:/ /www.users.dircon.co.uk/~thirdway/; http://www.dlcppi.org/texts/pflib/progsum.htm. 57 See, e.g., G.Soros, The Crisis of Global Capitalism: Open Society Endangered (1998).


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and egalitarianizing. International law has perhaps finally become universal law,58 despite the arguments for some sort of law among liberal States.59 The number of participants in international law keeps increasing. The disintegration of States has increased the number of States. Globalization and technological advances have helped pave the way for non-governmental organizations (NGOs) and individuals to directly participate in the lawmaking process, chiefly the treaty-making process, which may have given a boost to the conclusion of the 1998 Rome Statute for the International Criminal Court (Rome Statute)60 and the 1997 Ottawa Convention Banning Landmines (Landmine Convention).61 Such participation has become substantial and has been said to symbolize an “international civil society”. In addition, individuals have brought an unprecedented number of cases before international courts and tribunals and in so doing they contribute substantially to the development of international law.62 Nevertheless one must not lose sight of some troubling features in the participation in the lawmaking activities. First, the emergence of the “like-minded groups”, as happened during the negotiations on the Rome Statute (in a more “exclusive” form than that occurring during the Law of the Sea Conference in the 1970–80s), not only goes against the general trend of inclusive participation, but also deprives the group itself of differing and valuable views. This phenomenon smacks of invidious discrimination. While coalitions in the lawmaking process have existed since time immemorial and are not objectionable in general, to be truly successful, such coalitions should at least open their discussions to all interested parties. Second, while making participation in the international lawmaking process more inclusive, the growing importance of the NGOs has the effect of distorting that process.63 NGOs have their own agenda, and often are not accountable to any bigger group of citizens. Their input in the lawmaking process may be that of neither States nor their citizens. The results of such a process thus may not represent the state of “opinio juris”, and their implementation in the domestic arena may encounter significant resistance. Customary international law seems to continue its “egalitarianizing” process as noted above, although this is not clear. But it is significant that in the Nuclear Weapons advisory opinion64 the nuclear deterrence policy practised by some nuclear powers was not given the judicial imprimatur as customary international law. This would

58 For a history on this, see G.Abi-Saab, International Law and the International Community: The Long Road to Universality, in R.St.J.Macdonald (ed.), Essays in Honour of Wang Tieya (1994), 31. 59 See, e.g., A.Slaughter Burley, Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine, 92 Columbia LR (1992), 1907. 60 37 ILM (1998), 999; http://www.un.org/law/icc/statute/romefra.htm. 61 36 ILM (1997), 1507. 62 This mirrors developments in recent political theory and the emphasis on republicanism and participatory democracy at the level of municipal polity. 63 See K.Anderson, The Ottawa Convention Banning Landmines, the Role of International Nongovernmental Organizations and the Idea of International Civil Society, 11 EJIL (2000), 91. 64 ICJ Reports 1996, 226; ibid., 277 (Decl. Shi).

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seem to be an implicit application of the concept of “specially affected State”, with the recognition that such States include not only the nuclear powers themselves but also those non-nuclear powers which will probably suffer the consequences of any use of the horrendous weapons. The advance in the lawmaking process is matched to a lesser extent by changes in the forms of lawmaking. While treaties and customary international law still retain their prominence, the resort to Security Council resolutions and general principles of law are noteworthy. The ingeniousness of using Security Council resolutions to establish the ad hoc ICTY and ICTR is extraordinary. This approach at once skirted the cumbersome treaty-making process and broke some new ground in bringing such measures under the umbrella of Chapter VII, thus giving teeth to the entire enterprise.65 Whether such decisions constitute “law”, restatement of the law, or merely obligations remains to be settled. The establishment of these tribunals has led to the increasing resort to general principles of law,66 probably because the precise issues that these tribunals are dealing with have not been dealt with before in any substantial manner in treaties and customary international law. This new development has begun to fill in the gaps in international law and make it more sophisticated. These advances naturally have resulted in improvements in the content of the primary rules of international law. However, this is not an era of norm creation, but rather, it is an era of the concretization of grand ideas in international law. As a commentator has observed, the fundamental structures in international law have already been constructed and international law is now entering an interstitial development phase.67 Indeed, new grand norms in international law are hard to come by in this period; even the most notable success stories, the Rome Statute and the Landmine Convention, can be considered instances of the working out of existing norms.68 Attempts to create a right to humanitarian intervention69 or a right to democracy70 appear to remain attempts at the moment. Nevertheless, the results of the concretization of grand ideas are impressive. Efforts continue to improve the conditions for co-existence and co-operation as evidenced in the various agreements on international security and the international economy.

65 Tadic Jurisdiction Appeal (2 Oct. 1995), 1 ICTYJR 353. 66 See A.Cassese, The Contribution of the International Criminal Tribunal for the Former Yugoslavia to the Ascertainment of General Principles of Law Recognized by the Community of Nations, in this volume. 67 V.Lowe, The Politics of Law-Making: Are the method and Character of Norm Creation Changing?, in M.Byers (ed.), n. 1 above, 207. 68 Article 16 of the Rome Statute may be an exception. See nn. 81–84 below and text thereto. 69 See A.Cassese, A Follow-up: Forcible Humanitarian Countermeasures and Opinio Necessitatis, 10 EJIL (1999), 791; id., Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, 10 EJIL (1999), 23; B.Simma, NATO, the UN and the Use of Force: Legal Aspects, ibid., 1; C.Gray, The Legality of NATO’s Military Action in Kosovo: Is There a Right of Humanitarian Intervention?, in this volume. 70 See B.Roth, Governmental Illegitimacy in International Law (1999); S.Marks, n. 1 above.


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But more importantly, these results reveal international law’s preoccupation with building a better international society, not simply in economic and materialistic terms but also in moral and ethical terms. For example, although the WTO agreements have set up a system for the globalization of trade, these issues appear to have retreated to the background. The ways and means of managing globalization have become technical and, while consuming a great deal of energy, are at most half the story. The social effects of trade on labour, human rights, and the environment, democracy and good governance71 appear to have taken centre stage.72 There are indications that the social and economic rights of individuals are beginning to capture more attention. Many declarations have been made and treaties concluded to deal with these issues and there is a growing call for more to be done. In sum, these issues are eye-catching and have excited many governmental players as well as nongovernmental activists. Second, the concept of sustainable development has received further elaboration in the idea of differentiated responsibility, primarily in environmental law, which recognizes that those who can may be required to do more and those developed countries that have taken advantage of natural resources in the past may be required to refrain from certain acts to a greater extent than are the less developed States.73 At first sight this principle violates the important principle that the law does not distinguish between its subjects. However, on reflection, the differentiated responsibility principle is an advance in the law. By tying responsibility to capability the principle does not demand too much from the less capable and not too little from those who can contribute more; by tying responsibility to past conduct the principle strives to arrive at an appropriate level of “retribution”. Of course the principle must be applied with care in concrete circumstances. If abused, the principle could become a tool of oppression by the majority against the minority, and thus may degenerate into a form of “relativity” by which Weil may be legitimately troubled. Third, the protection of the rights of individuals whether in times of peace or in times of war has become the subject of many treaties and agreements and judicial decisions, and the decisions of other treaty bodies. It has become, perhaps, the main concern of the international community at present.74 Human rights law and humanitarian law have received unprecedented elaboration and concretizations in the decisions of these tribunals and treaty bodies75 and in the newly concluded

71 See B.Brown, IMF Governance, the Asian Financial Crisis, and the New International Financial Architecture, in this volume. 72 See ibid.; J.Dunoff, The Death of the Trade Regime, 10 EJIL (1999), 733. 73 D.French, Developing States and International Environmental Law: The Importance of Differentiated Responsibility, 49 ICLQ (2000), 35. 74 This can be seen in the bulk of the contributions in this volume. See also A.Hegarty & S.Leonard (eds.), Human Rights: An Agenda for the 21st Century (1999). 75 See, e.g., G.K.McDonald, Contributions of the International Criminal Tribunals to the Development of Substantive International Humanitarian Law, in this volume; J.R.W.D.Jones, The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda (2nd ed., 2000); A.Klip & G.Sluiter, Annotated Leading Cases of International Criminal Tribunals (1999).

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treaties such as the Rome Statute and the Landmine Convention. The gaps left behind in the Geneva Conventions and the 1977 Protocols thereto on humanitarian law are being filled in. These efforts not only afford greater protection to the rights of the individual but also improve the system of individual responsibility. Fourth, not only individual rights but also group rights have come to the fore. Despite a great deal of activities in this area, it is fair to say that there has been no new development in it.76 The traditional aspect of self-determination by peoples under colonial or alien domination is no longer an issue. It seems that there is sufficient support for the view that a national/minority group is entitled to internal self-determination, that is, autonomy in governing its own affairs within the confines of a State.77 The existing instruments, reasonably read together, support the view that external self-determination (i.e., independence) belongs to all peoples as a whole within the territory of a State.78 The interesting argument, based on the so-called “safeguard clause” in the Friendly Relations and Co-operation Declaration, that an oppressed minority group under extreme circumstances may have a right to external self-determination79 did not receive the endorsement of the international community in the Kosovo crisis. There the ethnic Albanians’ situation which was so dire as to provoke military intervention has not caused the international community to support their call for independence. Rather, the international community seems to be content with ensuring internal autonomy for the residents in Kosovo, mainly the ethnic Albanians. In future lawmaking, one should temper the seductive appeal that an over-broad right to external self-determination has with several considerations. First, there is seldom any ethnically pure territory left in the present world. Second, carried to its logical extreme, this right will lead to chaos in the world, or it must be arbitrarily stopped somewhere. Third, the argument for such a right is based on the view that a group is entitled to independence if it is different from others, which seems to be a mild form of racism. Fourth, even philosophers cannot agree on either the instrumental or the intrinsic value that external self-determination may have.80 Finally and perhaps most importantly, the rule of law in international relations has occupied a special place in international law. Once freed from the Cold War paralysis, the Security Council started to flex its muscles, causing fear that it may abuse its powers. Gallant attempts have been made to bring it under appropriate

76 See J.Crawford, State Practice and International Law in Relation to Secession, 69 BYIL (1998), 85. 77 See generally A.Cassese, n. 38 above, 101–40. There is still some controversy as to the moral and theoretical justification for this. See W.Kymlicker, Multicultural Citizenship (1995). 78 See R.Higgins, n. 2 above, 124; id., Comments, in C.Brölmann, et al. (eds.), Peoples and Minorities in International Law (1993), 29–35. Cf. Reference re Secession of Quebec (Canadian Supreme Court), 37 ILM (1998), 1340–77, paras. 123–25, which is ambiguous. 79 Cassese, n. 38 above. 80 See J.Raz & A.Margalit, National Self-determination, in J.Raz, Ethics in the Public Domain (1993), 110.


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control, in literature,81 in litigation,82 and in treaty making. In some sense these efforts appear to be a rebellion against power, and a reflection of the growing trend of egalitarianism in international affairs. It remains to be seen whether these efforts will succeed, but at this moment we may note the ICJ’s refusal to rule that it has no power of judicial review over Security Council decisions, although it has not yet said that it has such power either.83 Perhaps the crowning achievement of these efforts is Article 16 of the Rome Statute, which rejects the view that the Security Council should have a veto over the ICC’s activities (as originally proposed by the ILC) and which at the same time reverses the effect of the exercise of the veto power,84 a predominant feature on the landscape of international relations and law since World War II. A strong campaign has been waged by the United States to modify this provision and it remains to be seen whether the ICC will go into operation and function as envisioned. Nor can one be certain as to how Article 16 will be interpreted by the future ICC. If the post-Cold War period is not a golden era of norm creation, it is a golden era of international law enforcement. This is taking place at both international and national levels, involving forcible (such as the Desert Storm operation) as well as non-forcible measures.85 These measures were primarily responses to flagrant violations of the prohibition against use of force (Iraq) and, more importantly, to grave violations of human rights law and humanitarian law. The ICTY and ICTR are the success stories in the collective enforcement of international law by the Security Council. Moreover, the ICJ, the traditional forum for judicial settlement of disputes, at present has an unprecedented number of cases on its General List. These cases concern not only traditional interstate disputes but also disputes relating to human rights. Domestic courts have begun to enforce international law, as evidenced in the prosecutions of former Yugoslavia soldiers in Germany and Switzerland, the efforts to extradite Pinochet from the United Kingdom to stand trial in Spain for acts committed in Chile,86 and the increasing number of civil cases under the Alien Tort Claims Act in the United States. The Pinochet case, if taken seriously and followed

81 See, e.g., I.Brownlie, The Decisions of Political Organs of the United Nations and the Rule of Law, in R.St.J.Macdonald (ed.), n. 58 above, 91; I.Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations (1998). 82 In the Lockerbie case, I.Brownlie, for Libya, made forceful arguments for judicial review of Security Council decisions. See CR 97/21, http://www.icj-cij.org/icjwww/idocket/ilus/ilusframe.htm. 83 Lockerbie (Libya v. UK) (Preliminary Objections), ICJ Reports 1998, 9. 84 This provision states: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.” 37 ILM (1998), 1012. For an early proposal for this solution, see Sienho Yee, A Proposal to Reformulate Article 23 of the ILC Draft Statute for an International Criminal Court, 19 Hastings ICLR (1996), 529. 85 L.Damrosch, Enforcing International Law through Non-Forcible Measures, 269 RCADI (1997), 9. 86 See J.R.W.D.Jones, Immunity and “Double criminality”: General Augusto Pinochet before the House of Lords, in this volume.

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seriously, may have the most far-reaching effect on the enforcement of human rights law. Moreover, in some areas, the enforcement of human rights law has even prevailed over the lapse of time, as in the case of the reparation and restitution for the Holocaust victims. Finally, membership sanctions such as the exclusion of certain States from the activities of international organizations continue to be applied, in a manner not completely free from difficulty. But it seems that such sanctions are intended to express moral outrage more than to deprive a member of any tangible benefit. Similarly, public condemnations of violations of international law including human rights and humanitarian law are being made more than ever before. These membership sanctions as being applied now and public condemnations may be termed “image sanctions”. To the extent that such public shaming exerts some positive influence in policymaking, it is a valuable tool; to the extent that it is merely a means of demonization, it can do a disservice to the enforcement of international law by breeding cynicism in some and hatred in others. All these developments testify to the strengthening of the community interest in international relations and law. The idea of erga omnes rights and obligations no doubt has taken hold,87 and their enforcement is beginning to show some promise, as States have indicated their willingness not only to enforce their own rights but also to act on behalf of other members of the international community, as can be seen in the national prosecutions of international crimes causing no “concrete” injury in the prosecuting States.88 Proposals have been made to eliminate unilateral right to resort to counter-measures,89 although these may not succeed. This general spirit of co-progressiveness is also reflected in the discussion relating to, though perhaps not directly on, the prima facie obligation to obey the law. Fairness has attracted a great deal of attention,90 although it is not clear whether it has been argued by international law scholars that it gives rise to a prima facie obligation to obey the law. Secondly, in this era States seem to be concerned with vindicating their existence as members in good standing of the international system and this concern has helped ensure compliance with international obligations.91 Thus States strive to be members of international organizations and they campaign hard to prevent themselves from being branded as human rights violators in the resolutions of the Human Rights Commission despite the nonbinding nature of those resolutions. And as long as a State shakes off isolation and reacts with the international community, there will be reciprocal influence on each other, hopefully for the better. Whether one calls this cross-fertilization of virtue or constructivism is merely a matter of semantics. It is not at all clear whether this concern with image is completely free of 87 See M.Ragazzi, The Concept of International Obligations Erga Omnes (1995). 88 Germany and Switzerland have prosecuted persons responsible for war crimes taking place in the former Yugoslavia. Cf. also W.Czaplinski, State Responsibility for Violations of Human Rights, in this volume. 89 The discussion by J.Crawford and the proposal made by B.Stern during the session on State responsibility at the 2000 ASIL meeting are instructive on this issue. 90 See, e.g., T.Franck, Fairness in International Law and Institutions (1995). 91 Chayes & Chayes, n. 1 above, 27–28.


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the calculation of general benefit. As has been noted, isolation from the international system means that a State’s “potential for economic growth and political influence will not be realized”.92 Nevertheless this concern gives the appearance that Raz’s earlier view on the duty of loyalty towards the community93 has taken root. As such, however, this sense of duty does not constitute a prima facie obligation to obey the law, but a motivation to do so, nonetheless. As a motivation, the concern with image would seem to operate with maximum effect if a State has achieved a sufficient level of material wellbeing. Moreover, an obsession with “the image thing” can lead to over-zealousness and produce pernicious effects. This period has not been blemish-free. Indeed, it is plagued with excesses and blunders. Firstly, the legal framework for co-existence is being tampered with; the efforts to construct the National Missile Defense system and the Theater Missile Defense system threaten to re-ignite an arms race and thus the co-existence of States. Such efforts, coupled with the refusal to forgo first use of nuclear weapons, do not commend themselves to the world at large as being purely defensive. If this issue is not handled properly, co-existence will re-monopolize our attention. Secondly, the over-moralization of international relations has led to overzealousness in exhibiting their liberal quality or moral superiority on the part of some participants in international law. One example is the NATO intervention in Kosovo, mostly justified on moral rather than on legal grounds by NATO members when the intervention was taking place, and dis-avowed by them as a precedent subsequently.94 A legal right of humanitarian intervention would have unappealing effect, as it might lead to a dreadful world of about 200 States each taking it upon itself to intervene in the territory of another.95 Such a scenario is not conducive to human rights; it will reduce the ideal of human rights to a mirage. Moreover, it is true that a doctrine of humanitarian intervention might soothe one’s urge to do something when witnessing atrocities taking place; however, if history is any guide, one needs to make a choice between causing a greater number of sudden deaths (which is almost always the result of intervention) and letting a greater number of people endure slow sufferings (which may be the result of non-intervention), obviously an unenviable choice. Yet for those (both Albanians and Serbs) who died during the Kosovo intervention, such a choice may have been an easy one. If indeed there could be a clean and successful intervention, where no or few human (or at least civilian) casualties result, the legal and moral calculus might be different. Another example is the over-zealous implementation of the “liberal” legal frameworks such as democracy, free market, and “good governance”, before the States concerned were ready for them.96 It seems that these efforts have given liberalism a bad name.

92 Ibid., 27. 93 See n. 50 above and text thereto. 94 See V.Lowe, International Legal Issues Arising in the Kosovo Crisis, in this volume; Cassese, A Follow-up, n. 69 above; Gray, n. 69 above; Brownlie, et al., Memoranda, ICLQ (2000), 876–943. 95 For a view that may limit this effect, see Lowe, ibid. 96 Cf., e.g., Brown, n. 71 above.

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One perhaps may call this brand of liberalism “militant liberalism”; it is intolerance and irresponsibility masquerading in seductive liberal garb. Thirdly, while the rejuvenated enforcement of international law is laudable, the over-politicized nature of it is troubling. The selectivity in the prosecution of serious violations of humanitarian law gives the impression that victor’s justice at Nuremberg and Tokyo (if this is a valid criticism) perhaps has now become justice whenever the Security Council may come to an agreement.97 The pains and sufferings of the victims of crimes in Africa were ignored until it was too late and in Asia basically still forgotten. The infamous “genocide fax”98 and the discrepancies in the compensation for World War II victims in the West and those in the East will stand as indictments against the unequal justice prevailing in the world or perhaps the failure of enforcement in general. Finally, it is regrettable that when rejecting the requests by Yugoslavia for provisional measures in the Legality of Use of Force cases,99 the International Court of Justice refused to take account of two bilateral treaties for the sole reason that they were invoked too late. Clearly such a move was inspired by concerns for procedural fairness, and is laudable under normal circumstances. However, when bombs were falling from high altitude, bridges collapsing, civilian caravans breaking apart, and human beings dying, as was the case when Yugoslavia made its requests, procedural fairness so achieved seemed to have been purchased at too high a price. It is not clear whether the Court might have acted as it did because of the perception that Yugoslavia might have come before the Court with unclean hands. The Court must not, however, be blind to the plight of individuals simply because their government, the party requesting provisional measures, allegedly or in fact had done something detestable. A better course of action would be an order calling for all parties to the dispute, including Yugoslavia and NATO members, to refrain from violating international law. This seemed to be within the Court’s power, given the terms of those treaties. These problems give me a great deal of hesitation in calling the law an international law of co-progressiveness. Nevertheless, they are exceptions. More importantly, some of them need to be put in perspective. For example, there is inherent selectivity in enforcement as no society can achieve complete enforcement of all laws. Moreover, there are indications that the over-moralization and over-zealousness have calmed down. For example, the term “rogue States” has now been updated to read “States of concern”.100

97 Cf. Damrosch, n. 85 above, 34. 98 Ph. Gourevitch, The Genocide Fax, The New Yorker (11 May 1998), 42–46. 99 ICJ Reports 1999, http://www.icj-cij.org/icjwww/idocket/iybe/iybeframe.htm (Yugoslavia v. Belgium), http://www.icj-cij.org/icjwww/idocket/iyne/iyneframe.htm (Yugoslavia v. Netherlands). For an introduction, see J.Shen, The ICJ’s Jurisdiction in the Legality of Use of Force Cases, in this volume. 100 See Editorial, Updating Diplomacy’s Language, NY Times (23 June 2000), http:// www.nytimes.com/ yr/mo/day/editorial/23fri2.html.


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V. The ultimate goal of the international law of co-progressiveness Having provided a sketch of international law moving from the law of coexistence, to the law of co-operation and to the law of co-progressiveness—an all encompassing law preoccupied with advancements in ethical and moral terms more than in other respects, I would now like to make the picture fuller by commenting on the ultimate goal of this law and the conditions for achieving it, which are not completely clear from the form and content of this law. In my view, the ultimate goal of any society or law including the international law of co-progressiveness is human flourishing. It is not possible to fully defend this view in this short paper; it suffices to point out that this view is consistent with the current state of the international law of co-progressiveness in general and with the human rights movement in particular, and that it has been the view of various solid philosophers and political scientists.101 While human flourishing has a great deal to do with human freedom, or perhaps depends on human freedom, it is more than that. As has been noted, freedom pursued for its own sake is empty, and for most people “there has to be some project that is worth pursuing, some task that is worth fulfilling”,102 or, one may add, some value or some good to be realized. This broader idea is what I perceive to be human flourishing. The current international law of co-progressiveness provides good conditions for human flourishing. However, the present apparent decline of States (or some of them anyway) is not conducive to it. The views of many liberal writers posit a fight between the State and the individual, thus overemphasizing or perhaps dwelling upon “negative liberty”, and overlooking the importance of the State in providing the context and conditions for the exercise of “positive liberty”.103 Moreover, the State, as the personifier of a community, its culture and history, provides not only the context and conditions for the exercise of liberty but also the meaning of such exercise.104 In other words, for many people, belonging to a State is part and parcel of their personality and they will not be complete persons without the State. Efforts to seek meaning do not result from any innate quality of the atomic individual, but are induced by the community, its culture and history. Perhaps one can speak of such liberty as “induced liberty”,105 in the sense that without the State the individual

101 See, e.g., J.Finnis, Fundamentals of Ethics (1983). 102 W.Kymlicka, Liberalism, Community and Culture (1989), 48–49. See also generally J.Raz, The Morality of Freedom (1986). 103 For the exposition on negative and positive liberties, see I.Berlin, Two Concepts of Liberty (1958), and id., Four Essays on Liberty (1969). 104 See, e.g., W.Kymlicka, States, Nations and Cultures (1997). 105 Some have argued that the community and its traditions actually set the goals of the individual. “Set” is too strong a word. 101 See, e.g., J.Finnis, Fundamentals of Ethics (1983).

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would not have thought about many choices. From this perspective, strong States106 are essential to human flourishing. Secondly, the current human rights movement has contributed a great deal to human flourishing. However, with its emphasis on rights in general and civil and political rights in particular the movement is imperfect. The emphasis on rights in general is lacking at least in two respects. First, sometimes it is not clear who is the holder of a right and this may produce some difficulty in its enforcement. In contrast, it is easy to pinpoint and enforce responsibility. Secondly and more importantly, the idea of right is a passive one. In contrast, the idea of responsibility is an active one and can constitute a reason for action more than the idea of right. Thus, it would seem that a law of human responsibility, together with the law of human rights, might promote human flourishing more effectively. The emphasis on civil and political rights, while important, ignores the fact that without social and economic rights, the exercise of civil and political rights will be subjected to severe constraints. Such an emphasis has led to the anomaly that although in some States the enjoyment of civil and political rights can be considered perfect, when individuals walk out into the streets at night they may be fearful for their lives. Perhaps it is now time for greater efforts to improve social and economic rights at both the national and international levels. This would seem to require a proper legal framework for the redistribution of resources, unless one would leave it to the benevolence of those who have a sense of “imperfect duty”107 to help the less fortunate. This is a task most difficult to carry out at the international level. Finally, a properly functioning democracy may provide the best conditions for human flourishing as it affords individuals great opportunities to participate in the life of the polity. For this reason one may take pleasure in the fact that the influence of democracy is growing, under whatever brand or banner,108 and that democracy promises to be the most prevalent form of government in the world. One must not forget, however, the potency of democracy to do harm. None other than Kant reminded us of its inherent “despotic” nature.109 And we do not need philosophers to tell us that democracy is not enough. Its instrumental value in justifying governmental power has not won universal approval110 and its intrinsic value does not appear to have ever been convincingly established.111 Nor is it clear how

106 On the function of States at the present time, see B.Stern, How to Regulate Globalization, in Byers (ed.), n. 1 above, 247. 107 See I.Kant, The Metaphysics of Morals (1797, M.Gregor tran. 1991), 241–42. 108 See generally G.Fox & B.Roth (eds.), Democratic Governance and International Law (2000). 109 I.Kant, Perpetual Peace (1796, H.O’Brien tran.), in 7 Peace Classics (1939), 27 (“a democracy is necessarily a despotism in the true sense of the word, because it establishes an executive power in which all may decide about, which in some cases means against, one who does not give his sanction; that is to say, all, who yet are not really all, which is contrary to the general will and to the principle of liberty.”). 110 See generally Raz, n. 102 above, 80–93; id., Government by Consent, in Raz, n. 80 above, 355–69.


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democracy can be applied to the governance of international organizations or international society as a whole. All this counsels caution in exporting a particular brand of democracy. The defects of democracy may be cured and its potential realized to the greatest extent when a particular polity embraces it on its own and at an appropriate pace. I hope I have painted a good picture of the international law of co-progressiveness, a law which is all encompassing, preoccupied with advancements in moral and ethical terms more than in other respects and, in my view, having human flourishing as its ultimate goal. If not derailed by whatever concerns that may captivate us in the future, this law will no doubt help to make the world a better one.

111 One might think of living in a democracy as part of one’s personality. But this argument does not appear to have been made and is beyond the scope of this paper.

Part II

Sources of international law

3

The contribution of the International Criminal Tribunal for the former Yugoslavia to the ascertainment of general principles of law recognized by the community of nations Antonio Cassese

I had the great privilege of working with Judge Li for four years, when we were both sitting on the Appeals Chamber of the ICTY. I admired his intellectual vigour, his impassioned attachment to the principles of respect for human dignity, as well as his tenacious insisting on treasured legal conceptions while at the same time being prepared to change those conceptions to take into account those of other Judges. One further merit of Judge Li, for which all the other Judges so much appreciated him, was his conciseness. His statements, interventions in plenary meetings and when deliberating, as well as his dissenting or separate Opinions, were always brief, forceful and to the point. In this modest contribution to his memory, I have tried to be as brief as possible, so as to follow his admirable example at least in this respect. I. Resort to principles common to civilized countries in the 1800s and early 1900s It is well known that in the XIXth century and at the beginning of the XXth century courts adjudicating disputes between States, faced with cases where no treaty or customary rule regulated the matter submitted to arbitration, deemed necessary to have recourse to some general principles common to the domestic legal systems of most countries (in that period that of course meant European countries plus some advanced States of other continents such as the US). This was an adroit manner of filling legal gaps thereby developing the rather rudimentary and incomplete body of international law. It should be noted that the courts set out these principles without engaging in a comparative survey of national law. They simply enunciated principles that had a very general purport and were indisputably common to all major Western legal systems. No State protested against these rulings. This is quite natural because those courts had applied principles familiar to the States concerned.1 1 The principles at issue embraced that of necessity (see Neptun case (United States v. Great Britain), decision 43

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II. The codification of resort to those principles in 1921 After the First World War the strong feeling that something should be done to avert another similar cataclysm, among other things led statesmen and diplomats to contrive devices likely to channel conflicts and differences along less dangerous paths. One of them was the Permanent Court of International Justice (PCIJ), which was intended by its creators or inspirers to exert a powerful influence as an agency for resolving conflict. When an “Advisory Committee of Jurists” appointed by the Council of the League of Nations and made up of ten members (eight from the West, a Brazilian, and a Japanese), drafted the Court’s Statute, one of the issues that cropped up was that of the law to be applied by the Court. As a radical difference of views emerged within the Committee on the question of how to allow resort to general principles of law, the American member Root and the British Lord Phillimore proposed a compromise formula: they suggested that the Court should be empowered to apply “the general principles of law recognised by civilised nations”. The proposal was accepted both by the Committee’s majority and later on by the League Council, and eventually became Article 38, paragraph 3 of the Court’s Statute.2 According to Lord Phillimore the general principles referred to were those “which were accepted by all nations in foro domestico, such as certain principles of procedure, the principle of good faith, and the principle of res judicata, etc.” In other words, the rule covered principles which were first, general in character and second, upheld in the domestic legal systems of all “civilised nations”. Clearly, the formula agreed upon followed a middle course between the two opposing views that had emerged in the discussion leading to the adoption of Article 38, paragraph 3. The Court was empowered to apply something more than treaties and custom, and was thus able to go beyond the law resting on the will of States.

of 25 June 1797 (Opinion of Commissioner Pinkney), in Lapradelle-Politis, 1 Recueil des arbitrages internationaux, 1798–1855 (2nd ed., 1957), 156–57; it should be noted that the Commissioner did not mention national legislation but only some famous publicists; see however the Opinion of Commissioner Trumbull, ibid., 177–78); of force majeure (see Permanent Court of Arbitration (PCA), Award of 11 November 1912 on Russian Indemnities case, in United Nations, 11 Reports of International Arbitral Awards (RIAA), 443 (original French; for the English text see 7 AJIL (1913), 178 ff.); res judicata (see PCA, Pious Funds of the Californias, award of 14 October 1902, in RIAA, IX, 12), and, turning to more specific areas, the principle whereby in case of wrongful acts, the delinquent State must pay compensation including both damnum emergens and lucrum cessans (see the award delivered on 29 March 1900 by the Arbitral Tribunal of Delagoa (Portugal v. United States and Great Britain), in La Fontaine, Pasicrisie internationale. Histoire documentaire des arbitrages internationaux, 1794–1900 (1902), 402 as well as the award rendered on 29 November 1902 by Judge Asser in the Cape Horn Pigeon et al. case, in Lapradelle-Politis, above, vol. 2, 285). 2 For the debates in the Committee of Jurists, see League of Nations, Advisory Committee of Jurists for the Establishment of a Permanent Court of International Justice, Procès-verbaux of the Proceedings of the Committee, June 16th–July 24th, 1920 (1922), 287 ff., 306 ff.

General principles of law: ICTY’s contribution

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However, it could not apply general and vague “principles of objective justice” (in which case it would ultimately have been endowed with the power to create law), but only those principles which were clearly laid down in the municipal law systems of dominant States. In spite of the looseness of the formula adopted in 1921, the fact that international courts previously had already drawn upon general principles of law proclaimed in national legal systems, without being challenged by the States concerned, warrants the view that Article 38, paragraph 3 eventually codified what had become over the years an unwritten rule on general principles. It should be emphasized that, unlike treaties and custom, this subsidiary source (that is, to be resorted to only after finding that the matter at issue is covered neither by treaty law nor by a customary rule) did not produce rules resulting from the common will or the common consent of States (as in the case of treaties), or from the convergence of interests and concerns of the majority of States (as in the case of custom). Principles were actually to be formulated by the Court by a process of induction along the lines indicated by Article 38, paragraph 3.3 What use was made of this source of law by the PCIJ? First, the Court very seldom resorted to the principles and, what is more important, it actually relied on principles of legal logic or general jurisprudence, such as the principle nemo judex in re sua4 and the duty of reparation for international wrongs.5 Second, the principles themselves were not identified through a detailed investigation of the legal systems of the various members of the international community. This, in itself, corroborates the view that that they were actually not applied qua general principles obtaining in foro domestico, but as general tenets capable of being induced from the rules of international law or deduced from legal logic. Third, the principles resorted to were not indispensable for the final decision in the case. They were only mentioned ad adjuvandum, that is to bolster a proposition that could already be formulated on the basis of other rules or principles.

3 A different view was taken in 1928 by Anzilotti (1 Corso di diritto internazionale (4th ed., 1955), 107): Inasmuch as [Article 38 para. 3] makes reference to general principles that belong to municipal law alone, one is bound to admit that the [international] judge is referred by the international legal order to a different source, to a material source; this source can only provide the elements necessary for the formulation of the rule that he will apply to a specific case as a rule of international law; thus the judge will create the law for a special case and for that only…by following certain criteria and in particular the general character of the concepts which he may draw upon. Thus conceived, the function granted to the Court by Article 38 para. 3 is not different—except for the greater limitations it encounters—from the function that some recent codes vest in the judge, when they stipulate that when other sources are lacking, the judge shall apply the rule that he would apply if he himself were the law-maker… One could say that to the very new jus gentium there corresponds an even newer praetor, who has, however, powers much more limited than those belonging to the Roman praetor. (Translation by the present author.) 4 5

Mosul Boundary case, PCIJ, Series B, no. 12, 32. Chorzow Factory (Merits) case, PCIJ, Series A, no. 17, 29.

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When the PCIJ was replaced by the International Court of Justice (ICJ) the principles were even less frequently resorted to. In addition, their formulation, especially the outmoded and discriminatory reference to “civilised nations”, was harshly, and rightly, criticized by the Lebanese Judge Ammoun.6 Furthermore, in the 1970s and 1980s socialist legal literature attacked them on the substantial grounds of their failure to reflect the will of States.7 Courts were also keen to specify that of course the general principles under discussion could only be applied at the international level if they were compatible with the essential features and legal institutions of the world community. It was rightly emphasized that it would be inappropriate mechanically to import into the international legal system legal constructs that are not consonant with the specificities of international relations and consequently cannot fit into the body of international law. This notion has been repeatedly underscored by international courts.8 It would seem that the principal reason for the decline of the principles at issue is that meanwhile in the international community a whole network of treaty rules had been established and in addition numerous customary rules had emerged. As a consequence, no need was felt in traditional areas of international law to have recourse to the general principles under discussion. III. The present role of the general principles of law recognized by the community of nations Could it be held that, since it was so scantily relied upon, the general rule on general principles gradually withered away to such an extent that it has now fallen into disuse? Arguably, the rule on these principles has not fallen in desuetude. It has remained dormant, as it were, for a long time, because, as I have just pointed out, in practice all the principles to which it referred had been translated into treaty or customary rules or in general principles of international law. However, as soon as it has appeared that new areas of international law contained conspicuous gaps, the rule in question and the source it envisages have been revitalized. This applies in particular to the area of international criminal law, a body of law still rudimentary and replete with lacunae. In this area the newly established international criminal tribunals have frequently resorted to general principles of law recognized in the principal legal systems of the world, namely both in common law systems and in civil law countries. In addition, in 1998 the framers of the Statute of the International Criminal Court (ICC) laid down in Article 21, on the “applicable law”, explicit reference to the principles at issue, to be used as a subsidiary source of law.9 6 ICJ Reports 1969, 133–34. 7 See, e.g., G.Tunkin, Theory of International Law (1974), 195 ff. 8 International Status of South West Africa, ICJ Reports 1950, 148–49 (Sep. op. McNair); Genocide Convention, ICJ Reports 1951, 21; South West Africa case, ICJ Reports 1966, 47; Barcelona Traction case, ICJ Reports 1970, 66–67. 9 This Article provides as follows: 1. The Court shall apply:


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V. The case-law of the ICTY So far the ICTY has had the opportunity to resort to this subsidiary source of law in a number of cases. In Kupreskic et al. (judgement of 14 January 2000) Trial Chamber II of the ICTY held that [I]t is now clear that to fill possible gaps in international customary and treaty law, international and national criminal courts may draw upon general principles of criminal law as they derive from the convergence of the principal penal systems of the world. Where necessary, the Trial Chamber shall use such principles to fill any lacunae in the Statute of the International Tribunal and in customary law (para. 677; see also para. 539). In a few cases the ICTY found that there existed general principles common to the major legal systems of the world, and accordingly applied them. Thus, in Erdemovic (sentencing judgement of 29 November 1996), Trial Chamber I, in discussing the defences of duress, state of necessity and superior order, held that “a rigorous and restrictive approach” to this matter should be taken, adding that such approach was in line with the “general principles of law as expressed in numerous national laws and case law” (para. 19). However, it actually relied only on French law and case-law (see ibid., note 13). In the same case the Trial Chamber set about looking for the scale of penalties applicable for crimes against humanity. It found that among the various elements to be taken into account were “the penalties associated with [crimes against humanity] under international law and national laws, which are expressions of general principles of law recognised by all nations” (para. 26). After a brief survey of international practice, it pointed out that “[a]s in international law, the States which included crimes against humanity in their national laws provided that the commission of such crimes would entail the imposition of the most severe penalties permitted in their respective systems” (para. 30). However, the Trial Chamber did not give any specific indication of these laws. It then concluded as follows:

(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

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The Trial Chamber thus notes that there is a general principle of law common to all nations whereby the severest penalties apply for crimes against humanity in national legal systems. It thus concludes that there exists in international law a standard according to which a crime against humanity is one of extreme gravity demanding the most severe penalties when no mitigating circumstances are present (para. 31).

Subsequently, after surveying the general practice regarding prison sentences in the case law of the former Yugoslavia, the Court found that reference to this practice was “in fact a reflection of the general principle of law internationally recognised by the community of nations whereby the most severe penalties may be imposed for crimes against humanity” (para. 40). It may be respectfully noted that the court did not only fail to indicate on what national laws it had relied; it also omitted to specify whether it had taken into account, in addition to general criminal legislation, national laws on war crimes as well as those on genocide, to establish whether these last laws provide for penalties as serious as those attaching to crimes against humanity. It would therefore seem that the legal proposition set out by the court does not carry the weight it could have, had it been supported by a convincing legal reasoning. In Furundzija (judgement of 10 December 1998) Trial Chamber II was faced with the problem of the definition of one of the categories of war crimes and crimes against humanity, namely rape. After going through international treaties and having considered the relevant case law for the purpose of establishing if such case law evinced the formation of a customary rule on the matter, the Tribunal stated that no elements other than the few resulting from such examination could be “drawn from international treaty or customary law, nor is resort to general principles of international criminal law or to general principles of international law of any avail. The Trial Chamber therefore considers that, to arrive at an accurate definition of rape based on the criminal law principle of specificity […], it is necessary to look for principles of criminal law common to the major legal systems of the world” (para. 177). After undertaking such examination, the court reached the conclusion that “in spite of inevitable discrepancies, most legal systems in the common and civil law worlds consider rape to be the forcible sexual penetration of the human body by the penis or the forcible insertion of any other object into either the vagina or the anus” (para. 181) (however, on one point, namely whether forced oral penetration could be defined as rape or sexual assault, the court found that there was no uniformity in national legislation). In Kupreskic et al. (judgement of 14 January 2000) Trial Chamber II took into consideration the question of general principles on a number of occasions. Thus it considered whether there were “principles of criminal law common to the major systems of the world” outlining the “criteria for deciding whether there has been a violation of one or more provisions” when the same conduct can be regarded as breaching more than one provision of criminal law (question of cumulation of offences), and concluded that such criteria did exist (ibid., paras. 680–95).


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In Blaskic (judgement of 3 March 2000), Trial Chamber I held that the principle on the various forms of individual criminal responsibility laid down in Article 7 (1) of the ICTY Statute was consonant “with the general principles of criminal law” as well as international customary law (para. 264). Subsequently, in appraising the various elements to be considered for the determination of the appropriate penalty, the Chamber held that the “principle of proportionality” [of the penalty to the gravity of the crime] is a “general principle of criminal law” (ibid., para. 796). It should however be stressed that by far more numerous are the cases where the ICTY has ruled out the existence of a general principle of law recognized by all nations. Thus, in Tadic (Opinion and Judgement of 7 May 1997), Trial Chamber II rightly excluded a principle whereby unus testis nullus testis (one witness is no witness), i.e., a principle requiring corroboration of evidence. It found that this principle was not even universally upheld in civil law systems (paras. 256, 535–39). In Erdemovic (appeals judgement of 7 October 1997), Judges McDonald and Vohrah in their Joint Separate Opinion, as well as Judge Li in his Separate and Dissenting Opinion, held that there was no general principle on the question of whether duress can serve as a defence to the killing of innocent civilians.10 Similarly, in Tadic (appeals judgement of 15 July 1999) the Appeals Chamber held that the criminal doctrine of acting in pursuance of a common purpose, although rooted in the national law of many States, did not amount to a general principle common to the major legal systems of the world (see paras. 224–25). In Kupreskic et al. Trial Chamber II looked for general principles common to the major systems of the world on the question of how a double conviction for a single action must be reflected in sentencing, and concluded that no such principles could be discerned (ibid., paras. 713–16). It accordingly resorted to the “general concepts underlying the Statute” and the “‘general principles of justice applied by jurists and practised by military courts’ referred to by the International Military Tribunal at Nuremberg” (ibid., paras. 717–19). It reached the same negative conclusion in another area: the specific question of “how a Trial Chamber should proceed when certain legal ingredients of a charge [made by the Prosecutor] have not been proved but the evidence shows that, if the facts were differently characterised, an international crime under the jurisdiction of the Tribunal would nevertheless have been perpetrated” (ibid., paras. 728–38). The court therefore held that, lacking a general principle common to the major legal systems of the world, it fell to it “to endeavour to look for a general principle of law consonant with the fundamental features and the basic requirements of international criminal justice” (ibid., para. 738). It is also notable that in Aleksovski (appeals judgement of 24 March 2000), the Appeals Chamber pointed out that the principle of stare decisis, or binding precedent, tended to underpin the general trend of both common and civil law.

10 See Joint Separate Opinion of Judges McDonald and Vohrah, paras. 56–72; Separate and Dissenting Opinion of Judge Li, paras. 3, 4, 8. See also the Separate and Dissenting Opinion of Judge Stephen, paras. 24–26, 63–66.

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However, the Appeals Chamber rightly held that in that event the issue was to be settled in light, not of a general principle common to the systems of the world, but of international law: References to the law and practice in various countries and in international institutions are not necessarily determinative of the question as to the question of the applicable law in this matter. Ultimately, that question must be answered by an examination of the Tribunal’s Statute and Rules, and a construction of them which gives due weight to the principles of interpretation (good faith, textuality, contextuality, and teleology) set out in the 1969 Vienna Convention on the Law of Treaties (para. 98).

V. The need to proceed with great caution when resorting to general principles As pointed out above, international courts have sounded a note of warning about resorting to general principles. They have emphasized that one ought not to transpose legal constructs typical of national legal systems into international law, whenever these constructs do not harmonize with the specific features of the international legal system. The same approach has been taken by the ICTY. It would seem that the more articulate delineation of the limitations inherent in resort to general principles was set out in Furundzija (judgement of 10 December 1998). After mentioning the need to look for “principles of criminal law common to the major legal systems of the world” (para. 177), Trial Chamber II went on to specify the following: Whenever international criminal rules do not define a notion of criminal law, reliance upon national legislation is justified, subject to the following conditions: (i) unless indicated by an international rule, reference should not be made to one national legal system only, say that of common-law or that of civil-law States. Rather, international courts must draw upon the general concepts and legal institutions common to all the major legal systems of the world. This presupposes a process of identification of the common denominators in these legal systems so as to pinpoint the basic notions they share; (ii) since ‘international trials exhibit a number of features that differentiate them from national criminal proceedings’ [reference is made here to Judge Cassese’s Separate and Dissenting Opinion in Erdemovic, 7 October 1997], account must be taken of the specificity of international criminal proceedings when utilising national law notions. In this way a mechanical importation or transposition from national law into international criminal proceedings is avoided, as well as the attendant distortions of the unique traits of such proceedings (para. 178). This notion was clinched by the same Trial Chamber in Kupreskic et al. (judgement of


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14 January 2000). After drawing attention to the importance of general principles of criminal law common to the major legal systems of the world, the Trial Chamber stressed the following: However, it will always be necessary to bear in mind the dangers of wholesale incorporation of principles of national law into the unique system of international criminal law as applied by the International Tribunal (para. 677; see also para. 539). In the same vein Trial Chamber III, in Delalic et al. Judgement of 16 November 1998) ruled out the possibility of relying on certain general principles. It first mentioned the nullum crimen sine lege and the nulla poena sine lege principles, noting that they “are well recognised in the world’s major criminal justice systems as being fundamental principles of criminality” (para. 402). The Chamber also referred to another “fundamental principle”, namely “the prohibition against ex post facto criminal laws with its derivative rule of non-retroactive application of criminal laws and criminal sanctions” as well as “the requirement of specificity and the prohibition of ambiguity in criminal legislation” (ibid.). The Chamber then pointed out that “the above principles of legality exist and are recognised in all the world’s major criminal justice systems” (para. 403). However, the Chamber warned, “[i]t is not certain to what extent they have been admitted as part of international legal practice, separate and apart from the existence of the national legal systems. This is essentially because of the different methods of criminalisation of conduct in national and international criminal justice systems” (para. 403). The Chamber then explained the difference between the two levels (national and international) as follows: Whereas the criminalisation process in a national criminal justice system depends upon legislation which dictates the time when conduct is prohibited and the content of such prohibition, the international criminal justice system attains the same objective through treaties and conventions, or after a customary practice of the unilateral enforcement of a prohibition by States (para. 404). It can be noted, with respect, that this explanation does not appear to be compelling. It would seem that the difference rather lies in the still rudimentary character of international criminal law. This body of law has not yet attained the degree of sophistication proper to national legal systems. It follows that the principles in question are not yet fully applicable at the international level. Whether or not this legal ground is more cogent than the one advanced by the Trial Chamber, one cannot but share at least the substance of the conclusions reached by the Chamber: It could be postulated, therefore, that the principles of legality in international criminal law are different from their related national legal systems with respect to their application and standards. They appear to be distinctive, in the obvious objective of maintaining a balance between the preservation of justice and fairness

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towards the accused and taking into account the preservation of world order. To this end, the affected State or States must take into account the following factors, inter alia: the nature of international law; the absence of international legislative policies and standards; the ad hoc processes of technical drafting; and the basic assumption that international criminal law norms will be embodied into the national criminal law of the various States (para. 405).

VI. The logical order in which courts should apply the general principles and other principles or rules of international law As the source under discussion is subsidiary in nature, recourse to it can only be made if reliance upon the other sources (treaties, custom, general principles of international law, rules produced through a secondary source) has turned out to be of no avail. It is at this stage that the search for general principles shared by the major legal systems of the community of nations may be initiated. This is precisely the approach taken in Article 21 of the ICC Statute. Pursuant to this provision resort to the general principles under discussion is the extrema ratio for the ICC. One may, however, wonder if, in case the search for these general principles does not lead to any positive result, it is still warranted to resort to general principles or general conceptions of law, if any.11 These principles or conceptions are inherent in any legal system. They are crucial to every legal order, whether internal, international, federal or municipal. Hence, their identification does not require an in depth comparative survey of all the major legal systems of the world, but can be carried out by way of generalization and induction from the main features of the legal orders based on the rule of law. At least one of the ICTY Chambers has given a positive answer to the above query. By way of illustration mention can first of all be made of Furundzija (judgement

11 It should be noted that in a few cases international courts have relied on such general principles or general conceptions of law. See, e.g., Chorzow Factory case, PCIJ Series A, no. 17, 29 (“It is a general conception of law that every violation of an engagement involves an obligation to make reparation”). In its Advisory Opinion on Application for Review of Judgement No. 158 the International Court of Justice stated that: “General principles of law and the judicial character of the Court do require that, even in advisory proceedings, the interested parties should necessarily have an opportunity, and on the basis of equality, to submit all the elements relevant to the questions which have been referred to the review tribunals. But that condition is fulfilled by the submission of written statements” (ICJ Reports 1973, at 181). See, furthermore, Nuclear Tests case, ICJ Reports 1974, 268, para. 46 (“One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith”). Mention can also be made of Judgement No. 963 (1989) of the ILO Administrative Tribunal, 6 (“Toute autorité est liée par la règle qu’elle a ellemême édictée aussi longtemps qu’elle ne l’a ni modifiée, ni abrogée. Il s’agit là d’un principe général du droit en vertu duquel les règlements ne disposent que pour l’avenir. Le principe s’impose à toutes les autorités, car il constitue le fondement de tous les rapports juridiques”).


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of 10 December 1998). In that case, after surveying international treaties and case law to establish whether there existed any rule of customary international law on the matter, Trial Chamber II embarked upon an examination of national legislation in order to identify a possible common definition of rape. It concluded that such a common definition did exist, except for one point (whether or not the sexual penetration of the mouth by the male sexual organ amounted to rape), on which a major discrepancy in the various legal systems could be discerned. The Tribunal—it would seem, somewhat contradictorily—held that at this stage it was appropriate to look for “general principles of international criminal law or, if such principles are of no avail, to the general principles of international law” (para. 182). It then applied the “general principle of respect for human dignity” both as a principle underpinning international humanitarian law and human rights law, and as a principle permeating the whole body of international law (ibid., para. 183). It also applied the general principle nullum crimen sine lege (ibid., para. 184), probably as a general principle of criminal law. Arguably a more consistent and compelling approach was taken in Kupreskic et al. In that case Trial Chamber II held that [A]ny time the Statute [of the ICTY] does not regulate a specific matter, and the Report of the Secretary-General [submitted to the Security Council and endorsed by it as a document accompanying the resolution establishing the Tribunal] does not prove to be of any assistance in the interpretation of the Statute, it falls to the International Tribunal to draw upon (i) rules of customary international law or (ii) general principles of international criminal law; or, lacking such principles, (iii) general principles of criminal law common to the major legal systems of the world; or, lacking such principles, (iv) general principles of law consonant with the basic requirements of international justice. (Trial Chamber II, Judgement of 14 January 2000, para. 591). Later on the Tribunal applied these general criteria, when dealing with the question of determining how a double conviction for a single criminal action should be reflected in sentencing. After finding that no general principle could be garnered from the various legal systems, the Tribunal stated the following: Faced with this discrepancy in municipal legal systems, the Trial Chamber considers that a fair solution can be derived both from the object and purpose of the provisions of the Statute as well as the general concepts underlying the Statute and from ‘the general principles of justice applied by jurists and practised by military courts’ referred to by the International Military Tribunal at Nuremberg (ibid., para. 717). The Trial Chamber came back to the same problem when it dealt with the issue of how a Trial Chamber should act in the case of an erroneous legal classification of facts by the Prosecutor. It carefully examined various legal systems for the purpose

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of establishing whether principles of criminal law common to the major legal systems of the world exist on the matter (ibid., paras. 728–37). The Chamber concluded that no such principle could be found and added: “It therefore falls to the Trial Chamber to endeavour to look for a general principle of law consonant with the fundamental features and the basic requirements of international criminal justice” (ibid., para. 738). It then set out two basic, potentially conflicting requirements: the requirement that “the rights of the accused be fully safeguarded” and the requirement that “the Prosecutor and, more generally, the International Tribunal be in a position to exercise all the powers expressly or implicitly deriving from the Statute or inherent in their functions, that are necessary for them to fulfil their mission efficiently and in the interests of justice” (paras. 738–39). The Trial Chamber concluded that a careful balancing of these two requirements, as delineated by it, enabled it to attain a satisfactory legal solution (paras. 742–48). One could note that, in actual practice, rather than applying a general principle or conception of law, the Trial Chamber outlined—others could say, crafted—a principle based on such general concepts as fair trial and equality of arms. VII. Concluding remarks It would seem that the following conclusions may be drawn from the above survey of the ICTY case law. First, only in relatively few instances have the ICTY Chambers identified general principles common to the major criminal law systems of the world. This is probably due to the difficulty of finding, especially in the field of criminal procedure, areas where common law and civil law systems take the same approach to a legal issue. Indeed, it cannot be denied that the differences between the two systems are conspicuous. Therefore, the ICTY Chambers deserve to be commended for identifying at least some areas where the two systems share a common view. Second, in the field of criminal law and criminal procedure more than in any other area of international law the proposition remains valid that, in finding general principles of law common to the major legal systems of the world, courts do not create legal standards—as had instead been held by Anzilotti back in 1928, as mentioned above.12 If this were so, the fundamental principle of legality—so crucial in the field of criminal law—would be infringed, with the ensuing consequence that the rights of the accused would be jeopardized. Clearly these rights include inter alia the right to know both the charges preferred by the prosecution and the substantive law applicable to the crimes alleged in those charges. In fact courts look for general principles common to the major legal systems and apply them in international cases. They do not create such principles. To be sure, in proceeding to the ascertainment of those principles and in establishing that they are shared by the major legal systems, courts play a pivotal role. This is acknowledged in the Statute of the ICC, where it is stated that “general principles of law” are “derived by the [International Criminal] 12 See n. 3 above.


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Court from national laws of legal systems of the world” (emphasis added). Plainly, although the search for and the identification of a general principle can be accomplished by academics, it is only after such a principle has been legally found, through an appropriate and cogent legal reasoning, by a court of law that its existence can no longer be questioned. This bears out the importance of courts’ legal findings in this delicate area. However, as pointed out above, it does not follow that courts set the law, not even for the specific case at issue. Third, the ICTY case law confirms the need for great caution in the ascertainment of a general principle and its transposition onto the level of international law. The ICTY Chambers have emphasized that when drawing on general criminal principles common to both civil law and common law countries, courts must be careful in transposing these principles from the national level into the international setting. Indeed, the unique features of international criminal proceedings ought never to be disregarded, lest one should introduce into these proceedings legal constructs inconsistent with the spirit and the fundamental requirements of international trials. Fourth, while Article 21 of the ICC Statute provides that resort to the general principles has the value of a last-ditch attempt at avoiding rejection, on a specific point, of the Prosecution’s charge or the Defence objections, the ICTY case law shows that if the search for such a general principle fails, a court may still try to rely upon general principles or general conceptions of law (assuming they have not already turned into general principles of law common to the major systems of the community of nations). It could be added that, at least in the area of international criminal law, courts could rely, in addition to the principles invoked in a few instances by the ICTY Trial Chambers, on such sweeping legal concepts as favor rei in substantive criminal law or, in procedural criminal law, fair trial or equality of arms (if one does not consider that these notions have so deeply permeated all the major legal systems of the world as to become general principles of law shared by these legal systems). Be that as it may, it would seem that the general principles under discussion constitute a promising and significant source of law in the area of international criminal law, as shown by the important reference to this source in the aforementioned Article 21 of the ICC Statute. Despite major differences between common law and civil law systems, and subject to the aforementioned caveat concerning the need never to disregard the specificities of international criminal proceedings, general principles of criminal law common to the major legal systems of the world may prove of assistance to international criminal courts. Indeed, these courts are likely to continue to draw on them, perhaps even at an increasing pace, in the next years.

4

Opinio juris: a key concept in international law that is much misunderstood Bin Cheng

I. Introduction The late Judge Li Haopei was particularly interested in the sources of international law. Indeed, his last book but one was on The Concept and Sources of International Law (1994), and the one before that on The Law of Treaties (1988). It is fitting, therefore, that in this Memorial volume to Judge Li, international lawyers should continue the efforts to unravel what appears more and more to be the most baffling mystery of the subject, seeing the amount of attention it is attracting. Among recent publications in this field may be cited the 1998 issue of International Legal Theory,1 Maurice Mendelson’s lecture at the Hague Academy of International Law,2 and Michael Byers’ Custom, Power and the Power of Rules.3 The discussion or debate in not only these publications but also in the bulk of the literature on the subject centres on the nature of what the Statute of the International Court of Justice calls “international custom”,4 how it is formed, from where it gets its legal force, and its relationship with the other so-called sources of international law, particularly treaties. It is submitted that central to the discussion is the notion of opinio juris, including its cognate notions, and that this notion has been much misunderstood. Some thoughts on the subject are being offered here in the hope that they may assist in the discussion. II. The alleged circularity One of the chief criticisms against the notion of opinio juris is its alleged circularity. However, the alleged circularity of the notion of opinio juris springs mainly from the 1

This issue contains Anthony D’Amato’s “Customary International Law: A Reformulation”, and the Comments of numerous members of the interest group of the American Society of International Law. 2 The Formation of Customary International Law, 272 RCADI (1999), 155–410. Maurice Mendelson is the Chairman of the International Law Association’s International Committee on the Formation of Customary (General) International Law. 3 Sub-titled: “International Relations and Customary International Law” (1999). 4 Art. 38(1)(b). 56

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meaning traditionally, and to a large extent erroneously, attributed to it. Here it needs perhaps to be pointed out that when international law uses concepts and terms that are of municipal law origin, it borrows for convenience the general idea behind them, but is not and should not be hidebound by their origins.5 When applied in international law, they need to be adapted to the special structure of the international law system, which may give them quite a different twist, a different function and a different meaning. What one needs to do in international law is to analyse and explain their use in international law as they operate in international law, and not according to the life they lead in their other lives. But let us first have a look at where some of the misunderstandings come from. Now, the American Restatement of the Law, Third, for instance, defines opinio juris as “a sense of legal obligation”, and states: “For a practice of states to become a rule of customary law it must appear that the states follow the practice from a sense of legal obligation (opinio juris sive necessitatis).”6 Thus defined, it inevitably faces two objections. First, how did the “custom” first start, inasmuch as there would be no preceding “legal obligation” to follow? Secondly, where is the legal character of the obligation from? If there is already a “legal obligation”, why is it necessary to find out whether the practice is “custom”? It is perhaps little wonder that the longer D’Amato ponders over this notion, the more he is disenchanted with it. In his latest article, he says that when he wrote The Concept of Custom in International Law,7 he was still “trying to work within the notion of opinio juris”, now with the passage of time he realises that he “should have discarded it entirely”. As to what Byers calls the “chronological paradox”,8 D’Amato, in his The Concept of Custom in International Law,9 thought that I, in my paper in the Indian Journal of International Law,10 tried to resolve it by reiterating Kelsen’s “initial error” theory. This is really not so. Having stated that, in view of the Canadian and United States delegates’ formal announcements in the UN General Assembly on behalf of their respective governments that they considered the principles enunciated in the draft resolution to be already international law, I asked whether in the circumstances Canada and the United States would not be estopped from subsequently denying

5 Mendelson appears to attribute some relevance to the fact that the term cannot be found in Roman law (Mendelson, n. 2 above, 268), and is altogether of “dubious provenance” (292). With respect, where it comes from matters not at all. All that matters is whether it is a useful term to describe a notion that helps to explain this phenomenon in international law that is, perhaps mistakenly, called “international custom”. 6 The American Law Institute, Restatement of the Law, Third: The Foreign Relations Law of the United States (1987), 102, Comment c. 7 (1971). 8 Byers, n. 3 above, 130–33. 9 D’Amato, n. 7 above, 66–67. 10 United Nations Resolutions on Outer Space: “Instant” International Customary Law?, 5 Indian JIL (1965), 23–45; reprinted in B.Cheng (ed.), International Law: Teaching and Practice (1982), 237–62, with clear indication of the pagination in the Indian JIL. See n. 107 and particularly text thereto.

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the binding character of those principles as law.11 Then rather supererogatorily I added in a footnote that the answer would not be affected even if the Canadian and United States statements were based on a mistaken belief, seeing that, according to Kelsen’s initial error theory, all customs were supposed to begin with a mistake, and such mistakes would not matter. But this was by no means to subscribe to the initial error theory. Indeed, in my opinion, the very existence of the alleged circularity or so-called chronological paradox owes its origin to an error in the traditional definition of opinio juris in international law, an error caused by the erroneous transfer of the municipal law meaning of opinio juris to international law, oblivious of the difference in the structure of the two systems.12 III. Opinio juris in municipal law Municipal law differs from international law in structure. The former is a hierarchical legal system, whilst the latter is a horizontal legal system.13 In municipal law, however democratic may be the body politic, there is normally a State (in the widest sense of the term, be it a modern State, an autocratic king, a chieftain or the old man under the palm tree) exercising State authority, legislative, executive and judicial, over the subjects. Whether the State be democratic or autocratic, the subjects themselves do not hold any of these powers, especially not individually and on their own. The result is that the subjects themselves can never by themselves and off their own bat create law (in the proper sense of the term, as distinct especially from contract) with legally binding effect on the community as a whole or even on specific groups, without receiving the tacit or express recognition by the power that be in the community, the State in short, that the rule is legally binding on either the community

11 Cheng (1965), n. 10 above, 45. I similarly referred to the Canadian and US statements in my paper (1983), cited in n. 12 below, 531, which was probably the passage Danilenko had in mind when in his Sources of International Law in a Changing International Community, in W.E.Butler (ed.), Perestroika and International Law (1990), 72, n. 60 and text thereto, he said: “The contention is made that official pronouncements in international organisations or similar forums are sufficient for the creation of customary law”. This is a gross simplification of a much more complex problem. In the event, a careful reading of the 1965 paper will show that the conclusion I reached was far from a straightforward yes and no. For those who are in haste, look simply at conclusion No. 15 at p. 46. At the same time it needs to be said that the implication in the quoted passage from Danilenko that official pronouncements in international organisations or similar forums cannot possibly be legally opposable and binding is more than questionable. See, e.g., text to nn. 43 and 44 below. 12 See, e.g., Bin Cheng, Custom: The Future of General State Practice in a Divided World, in R.St. J.Macdonald & D.M.Johnston (eds.), The Structure and Process of International Law (1983), 513–54, sect. V.1: Opinio Juris Explained, 530–32. NB: 545–46 are reversed and wrongly paginated. 13 See Bin Cheng, How Should We Study International Law, 13 Chinese Yearbook of International Law and Affairs (1994–95), 214–28, 218–19, and Figure 1 on p. 220; Bin Cheng, Studies in International Space Law (1997), 178–79; the same diagram may also be found in Bin Cheng, Some Remarks on the Constituent Element(s) of General (or So-called Customary) International Law, in A.Anghie & G. Sturgess (eds.), Legal Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry (1998), 377, 384.

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as a whole or a specific group. This recognition can come through the State’s legislative, executive or, most usually, judicial authorities. In terms of Kelsen’s normodynamics, this recognition by the State is the superior norm which confers validity on the rule embodied in certain practices in the community. It is this recognition which turns a mere usage into a custom. In this context, the two terms—usage and custom—must be clearly distinguished, although one Latin term consuetudo is sometimes used specifically to describe usage and sometimes to describe both, and currently there is a great deal of confusion in their use. In order to avoid such confusion, one should use the term custom to mean solely a rule of customary law which is normally unwritten and based on usually prolonged practice, i.e., on usage. Usage is used then to describe what are wellestablished traditions and practices which are without legal force, even where they may be backed by strong social pressure. For instance, in a given society, there may be a well-established practice that only women who have never been married before are entitled to get married in white, and cases have been known where neighbours try to hold up weddings where the bride seeks to defy the rule. Where the rule is a mere usage, the neighbours’ action would be illegal, and the bride would be able to invoke the law to come to her assistance. But if the law considers the bride to be in the wrong and the neighbours’ action lawful, then the rule is no longer a mere usage, but a custom. What has just been said can apply to a general custom, a local custom or a special group custom such as a trade custom. And it would be true, whether it be a sophisticated municipal society or a so-called primitive municipal society. In municipal law, therefore, it is ultimately this homologation by the State that distinguishes usage from custom. It follows that in municipal law there is no question of circularity or chronological paradox in the notion of opinio juris. The problem how can the first person, subject of the law, starting a custom have the sense that he or she is following a legal obligation simply does not arise; for, while any subject may initiate a usage, no subject is capable of initiating a custom. Only when the usage has been treated as a custom by the authorities, would the subjects be aware that the usage is now a matter of law, and that it is now obligatory not only socially but in law. Henceforth they follow the usage not out of convenience, but with a sense of a legal obligation, i.e., opinio juris. In these circumstances, it becomes perfectly correct to analyse custom in municipal law as consisting of two elements, usage (consuetudo) and opinio juris, variously qualified respectively as corpus and animus, or the material and psychological, objective and subjective elements. François Gény is generally reckoned to have been the first to make this distinction. Literally, opinio juris can be translated as “recognition/acceptance/ conviction that [something] is of the law” or more fully as “recognition/acceptance/ conviction that [something] is part of the law”.14

14 Pace Mendelson, n. 5 above, international law terms in Latin do not necessarily have any connection with Roman law. At best, they convey a similar idea. Even without any connection, the use of

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The conventional wisdom is to attach the requirement of opinio juris to the subjects of the legal system. Hence the translation of it as “a sense of obligation”, and the subject is said to follow the practice because of it. In this sense, this opinio is supposed to be individual to the person following the practice or the rule, which let us call “individual opinio juris” or opinio individualis juris. He or she must feel legally obliged to follow the practice. However, in reality even in municipal society, what is required is that the generality of the subjects must have this sentiment, rather than specifically the person that has to comply with the rule, inasmuch as no one is supposed to be ignorant of the law. Thus, if the wedding dress rule were a custom properly socalled, instead of a mere usage, the bride would be obliged to observe it whether or not she was aware of the rule or its legally obligatory character, or whether she liked it or not. While the translation of opinio juris in this case as a sense of legal obligation is not incorrect, it is, however, not entirely complete; for where there is an obligation, there would also be a corresponding right, which is merely the other side of the coin. Thus in the example we have used before, assuming that the rule in question is a custom and not a mere usage, a young maiden getting married for the first time, in wearing a white wedding gown to the wedding ceremony, can feel that, by following the rule, she is exercising a right which no one can deny her. And in this, she will be supported by the law. This side of opinio juris has somehow been much neglected in discussions, a fact which is apparent from the gap in the usual definition or translation of this term. Now, in addition to this personal individual opinio juris, inasmuch as the custom has to be observed either by the community at large or by a specific group, what happens is that there is also a communal opinio juris which let us call “general opinio juris” or opinio generalis juris. It describes the shared belief or conviction in the community as a whole or in the specific group concerned that the practice is legally obligatory. But it would be apparent from what has just been said that in municipal law, while usage and this individual and general opinio juris are the constituent elements of custom, neither the individual nor the general opinio juris suffices in itself to turn usage into custom. At the end of the day, it is the opinio juris of the State that is crucial. The State that exercises sovereign powers, imperium, over the subjects must recognise or accept that the rule is legally obligatory, and is prepared to enforce it. We shall call this the opinio imperialis juris, the opinio juris of the sovereign. One ends up, therefore, in having three slightly different types of opinio juris. There is first, the individual subject’s opinio individualis juris which means that the

Latin is nevertheless justifiable in appropriate cases, especially when it is used to indicate that what is involved is a technical and specific term and not a mere ad hoc factual description, just as scientists give so-called scientific names in Latin to various species of objects. The Latin used is mostly modern Latin, and has no pretence to being classical or elegant. It is purely functional.

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subject has the sense that the rule is part of the law and that it has, therefore, to be followed, or that he or she can rely on it as a matter of right. Then secondly we have the general sense prevailing in the community or in the group concerned that the rule is part of the law and that everyone in the community or group ought to obey it. This we have called opinio generalis juris. This opinio generalis juris which becomes a verifiable and objective phenomenon, is made up of the individual opiniones juris of all the members, or at least the generality of the members, of the community or group. But the crucial and indispensable component is the third type of opinio juris, what we call the opinio imperialis juris. This is the opinio juris of the State, and of all its officials, that the rule is part of the law which has to be followed by the community as a whole or by a specific group, and which in addition it is their function to implement and enforce. Without this opinio imperialis juris the usage would not be a custom, and all the subjects would be mistaken if they were to believe that it is and any opinio juris they may entertain vis-à-vis it would be false; for at the end of the day breaches of such a usage would have no legal consequences. The opinio juris that we have been speaking of is that relating to a custom. The specific character of a custom is that it is a usage with opinio juris attached to it. It is a specific recognition/acceptance/conviction that a given usage is part of the law. This opinio juris is thus specific to custom, and in order to distinguish it from other forms of opinio juris, it may be called opinio juris consuetudinalis, that is, an opinio juris attached to a usage which turns the usage into a custom. In other words, it is a recognition/ acceptance/conviction that it is a custom. Now this opinio juris consuetudinalis should be distinguished from opinio juris legalis which is the opinio juris relating to law unattached to usage, and which refers in particular to legislation in the broad sense of the term in the community, i.e., all rules made by the State authorities with the force of law which is not attached to any specific usage. IV. International legal system entirely different from municipal legal systems It is an undeniable fact that municipal law precedes international law. It is inevitable that international law and international lawyers borrow a great deal from municipal law, in terms of concepts, methods of reasoning, technique, procedure, terminology, and so forth, as can easily be seen from many of the terms used in international law and by international lawyers, such as res nullius, res communis, pacta sunt servanda, clausula rebus sic stantibus, jus cogens, estoppel, preclusion, good faith, not to mention opinio juris. Indeed, States have created the international legal system to govern their interrelations by borrowing the very concept of law from municipal society which first developed it.15 What Article 38(1)(c) of the Statute of the International Court of 15 For my view of the international legal system, see n. 13 above, Cheng (1994–95), 223–25 and Figure 3, 226; (1997), 175–79; and (1998), Figure 1, 380.

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Justice calls the general principles of law recognised by civilised nations16 represents precisely this concept of law which is at the apex of every legal system and imparts jural character to it.17 It needs perhaps to be explained that these general principles are not self-executing and are in themselves, unlike rules, value-neutral. In the first place, they need to be embraced voluntarily by either all the members of the community, or at least by the dominant section of the community, with the remaining section or sections of the community accepting or acquiescing in the legal regime through fear or favour.18 These principles cannot impose themselves on any community. In fact, how much of the concept of law is implemented in any community depends entirely on its members or ruling section. The more it is supported and implemented, the better is the legal system in terms of the rule of law. The more its principles are ignored through ignorance or wilfulness, the more defective is the legal system by the same token. Witness, for instance, the children in William Golding’s Lord of the Flies, who, when stranded on a desert island, try to establish some kind of a government. Secondly, these general principles of law are essentially value-neutral in the sense that they do not seek to protect any specific social value, except the integrity of the legal system itself.19 It is up to the community in question itself to establish rules to protect values and interests which, to use R.von Ihering’s phrase, it deems worthy of protection. It thus follows that while these general principles are common to all legal systems, the laws of every community are essentially all different, including the structure of its legal system. Thus the international legal system is quite different in its structure from municipal legal systems. The founder States, which need to be a minimum of two but can be more, agree that henceforth their relations will be governed by law, which of course postulates that they have a common understanding of what law or the concept of law means, instead of no-law which can mean war, either hot or cold. This adoption of law to govern their relations involves an act of will on their part. They consent

16 See Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953, reprinted 1987 by Grotius as its Classic Reprint No. II). 17 See Bin Cheng, On the Nature and Sources of International Law, in Bin Cheng (ed.), International Law: Teaching and Practice (1982), 203–33, sect. IV.5: General Principles of Law a Universal Grundnorm?, 219–20. 18 On “dominant section” and its role in law making, see Cheng (1997), n. 13 above, sect. III, 680–87. The position is really so in every society. As I found in studying the position of rival governments in international law, ultimately what enables a given legal order to be established and sustained is the will of “the greatest social force predominating in any given society in a more or less stable manner” (Cheng, n. 16 above, 187). This is what I mean by Control+will+general principles of law=legal order (see Cheng, n. 17 above, 219–20). Fear, which need not be of physical or other form of pressure, can consist simply in the fear of being left outside the legal system, with all the attending consequences. Cf. Byers, n. 3 above. 19 Every legal system thus requires reparation to be made for violations of its rules. See Cheng, n. 16 above, Part III: General Principles of Law in the Concept of Responsibility, 163–253.

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to submit their relations to be governed by law, and to comply with the rules which the legal system they establish creates or will create in the future. The same applies to any State which joins an existing international legal system.20 However, States, at least up to now, have not created a world State with a system of world law, but have established instead an intermediate regime between municipal law and world law, namely, the international legal system which is different in structure from municipal legal systems. As mentioned before, whilst municipal law is hierarchical in character, international law is horizontal.21 In international law, there is no temporal authority above States which are, under international law, sovereign and equal. States, the primary subjects of international law, being sovereign and equal, are themselves the direct makers of international law. They have no legislative, executive or judicial authority above them, except those created by themselves through their consent. International law is their own creation, and receives its jural character, if not exactly from them, at least from their hands, because it is they who by their consent establish the international legal system to regulate their interrelations. The determination of the content and meaning of the rules of international law is ultimately also in their hands. There is no authority that has the power authoritatively to determine the meaning of its rules or/and to enforce them, unless the authority is created by States through their consent.22 All this makes up the horizontal character of the international legal systems. It is quite a different picture from the municipal legal system. It follows that the notions, concepts, and terminology of municipal law cannot be transplanted into international law without appropriate adjustments to take into account the differences in the structure of the two systems. This is perhaps particularly true of the notion of opinio juris. Likewise the term custom. V. The specific meanings of opinio juris in international law As we have seen, in municipal law, there is first a usage among the subjects which is then turned into a custom when the State confers the force of law on it. In international law, there is no super-State that makes the law. States make their own law. Here we are using the term law in the strict sense of legal rules intended for general application throughout the system binding on all (erga omnes), excluding thus agreements which

20 See Cheng, n. 12 above, sect. II.3: International Legal Order a Voluntary and Cooptative System, at 516–19. 21 See n. 13 above. 22 Eastern Carelia Case (1923), PCIJ, Ser. B, No. 5, 27.

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have application only between the parties, which in international law, as in municipal law, are not sources of law, but only sources of legal obligations.23 In international law, in the legal order which States have established, it would be up to the States themselves to decide which interests they deem worthy of legal protection and to make rules to protect them.24 However, States are not bound by some collective legislative authority above them. In their horizontal system, they do it individually or collectively themselves. Insofar as general international law is concerned, it is for each State to confer the quality of law on the rule by recognising or accepting it as a rule of law applicable to all, including itself. This is its opinio individualis juris generalis, its individual recognition/acceptance/conviction that it is a rule of the general law. Here is of course where the opinio juris of the subjects of international law differs from the opinio juris of the subjects of municipal law. In the first place, as we have mentioned, the latter, in their opinio individualis juris consuetudinalis, recognise, accept or are convinced that the rule embodied in the practice is a binding rule of law since the State has recognised it as legally binding and is enforcing it. This opinio juris is in consequence purely passive. The subject is merely aware that the rule is obligatory and that he or she just has to follow it. In international law, the position is quite different. Since the State in international law is not a mere subject of the legal system, but also one of its law-makers, its opinio individualis juris has a dual aspect, one reflecting its position as a mere subject, the other its position as one of the law-makers. On the one hand, as a subject of the legal system, the first aspect of a State’s opinio individualis juris has certain similarity to that of the subject in municipal law. The State has towards the rule in question a sense of its legally obligatory character conferring on it both rights that it can exercise and obligations that it has to observe. However, even here there is a difference in that in international law there is not, like in municipal law, a dichotomy between rules made directly by the State and rules based on usage recognised by some superior authority as law. There is in international law only one law, that made and accepted by the generality of States, which through tradition has been called, as in Article 38(1)(b) of the Statute of the International Court of Justice and that of its predecessor the Permanent Court of International Justice, “international custom, as evidence of a general practice accepted as law”. But as it has become evident for some time, on the basis of both theory and practice, as Sir Robert Jennings has so rightly pointed out:

23 Cf. G.G.Fitzmaurice, Some Problems Regarding the Formal Sources of Law, Symbolae Verzijl (1958), 153; Cheng (1983), n. 12 above, sect. IV: Treaties Form Part of the International Legal System, but Are Not a Source of General International Law, at 526–30; Cheng (1997), n. 13 above, Ch. 8, sect. V.E: The International Legal System and General International Law Distinguished, at 175–6, and Figure VIII.1: The International Legal System, at 176; the diagram is to be found also in Cheng (1998), n. 13 above, 380. 24 See Cheng (1982), n. 17 above, sect. IV.7: Protection of Specific Interests Through General International Law, at 221–22.

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Customary law properly so-called is based upon the passage of a long period of time, and is accordingly both slow to develop and difficult to change. Most of the non-treaty international law of today is not at all like this. Professor Cheng’s imaginative phrase of ‘instant custom’ should, by the irony of its inherent contradiction, have made us more aware of this. The time has surely come to recognise boldly that it is not custom at all, and never was.25 It is indeed time for international lawyers to accept that what is called “international custom” in Article 38(1)(b) of the ICJ Statute is simply what Sir Robert Jennings called the non-treaty part of international law, in other words, the whole of international law without the treaties, or what is increasingly known as general international law. The recognition of this simple truth would free the writings of international law from the constant wild-goose chase of either trying to find and identify the usage (often mistakenly called custom) that is supposed to be the basis of a given international custom and desperately to trace its origin, or to find all sorts of names for what the writers believe to be novel sources of international law not based on usage that they have just discovered. The simple explanation is that there is in the international legal system only one general international law with rules obligatory for all the subjects of international law (erga omnes), apart from the general principles of law, which in any case are generally subsumed under the broad definition of general international law. Unlike in municipal law, there is not a separate category of rules so tied to usage that the generality of States cannot change, if they so wish, at will and instantly by the ordinary process of changing rules of general international law. Such changes can be initiated, if necessary, by a single State. General international law is in fact changing all the time. It is a living and dynamic law. There is in reality in international law no opinio individualis juris consuetudinalis strictly speaking, only opinio individualisjuris generalis. “International custom” is merely an accepted misnomer for “general international law”. The sooner this is realised, and the sooner this misnomer is abandoned, the better. There is, on the other hand, a second aspect of a State’s opinio individualis juris generalis. It is not purely passive, in the sense that there is a rule which the authorities have given the force of law and the State has simply to follow. On the contrary, being one of the lawmakers, a State’s opinio individualis juris generalis has a constitutive effect. Instead of some higher authority conferring the force of law on a given rule, it is the State itself which, by entertaining an opinio juris towards the rule, helps to confer the force of law on the rule. Its opinio individualis juris generalis partakes of the character and force of the opinio imperialis juris in municipal law, except that it is only

25 The Identification of International Law, in Bin Cheng (ed.), International Law: Teaching and Practice (1982), 3–9, 6. Footnote omitted; emphasis added. Byers seems to suggest that the idea of “instant” custom was based on a single passage in the North Sea Continental Shelf Cases decided by the ICJ in 1969, ICJ Reports 1969, 3 (Byers, n. 3 above, 38–39). In fact, it was first developed in 1965 on the basis of a study of the nature of the so-called “international custom”. See Cheng (1965), n. 10 above.

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on an individual basis like a single vote in an assembly. Unlike in municipal law, there is no opinio imperialis juris. It is subsumed under the opiniones individuates juris generalis of States. Of course, international law is not made by a single State. It is made when accepted by the generality of States, which should include what the International Court of Justice in the North Sea Continental Shelf Cases called the “States whose interests are specially affected”.26 This phrase can obviously be just a euphemism to describe the dominant section of international society; for at the end of the day what matters are those voices that carry weight.27 To be able to say that a rule of general international law exists, what is required, to paraphrase Article 38(1)(b) of the ICJ Statute, is only its general acceptance by States as law, in other words, an opinio generalis juris generalis. Unanimity is not required.28 VI. The formation of opinio generalis juris generalis When international courts and international lawyers refer to opinio juris, they almost invariably refer to what I call opinio generalis juris generalis. The courts in particular use it as a litmus test as to whether an alleged rule is actually a rule of international law. Courts, however, are seldom concerned with how this opinio generalis juris generalis grew up, and writers appear mostly very uncertain about it. Thus Mendelson, who, like D’Amato, would rather dispense with the notion of opinio juris, seems to side with the New Haven School and explain the whole process of international law as one of claims and responses,29 or conflict resolutions.30 But as Byers would say, the New Haven School is more concerned with policy than law.31 Dispensing with the so-called subjective element of custom, as Mendelson and D’Amato would prefer, means that there is no guarantee that such claims and responses, and the practice they create, are meant as claims and responses with any bearing to law.32 Opinio juris is precisely what separates the wheat from the chaff. International life is full of claims and responses, but does not stop at them. It is

26 ICJ Reports 1969, 3, 42. 27 Cf. n. 18 above. 28 See Cheng (1997), n. 13 above, Ch. 8, sect. V.H.2: General or Universal Acceptance Required?, 183–90. 29 Cf. Mendelson, n. 2 above, 282. 30 Cf. D’Amato, n. 1 above, 7–8. 31 Cf. Byers, n. 3 above, 207–10. 32 Cf. various similar comments on D’Amato’s winner rule in the issue of the International Legal Theory (1998) cited in n. 1 above, such as those of Anita Drummond (11), Janet Ours (22), and Jianming Shen (31). Where, I submit, D’Amato’s theory is questionable is when he said that “Customary [international] law is formed in much the same way that common law is formed” through resolution of conflicts by the courts (7–8). Municipal courts are (a) above the subjects, and (b) deemed to dispense justice. Their decisions are consequently justifiably, to use D’Amato’s term, generalisable, but conflicts in international society are only rarely resolved by impartial authorities. In many cases, neither the parties nor third parties may wish the solution to be visited upon themselves or upon themselves again.

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obvious that in any society there are diverse interests which compete for recognition as legal rights worthy of protection. The process is not unlike the long haggling that goes on in a flea market or a bazaar before a price can be reached. However, in international life, not every claim or response is made with a view that the compromise to be reached at the end is the line that is to mark the rights and obligations of the parties not only for themselves in that particular case, but also as a rule of general international law to be observed by all. Just as in some societies, there are those who can make offers and demands that nobody dares to refuse, bullies are not unknown in international history. Are their purely opportunist and strong-arm bully-boy claims and responses which are made without any sense of possible reciprocity or opinio juris also to be given the same weight among the building blocks of international law as those of the more law-abiding States? Opinio juris is what matters. Moreover, the New Haven School appears to believe not only in no fixed prices, but also in no stable prices. Life is a continuous turmoil, where every what the socalled traditionalist would regard as a well-established legal rule has to be bargained afresh every time it is invoked. Life is not like that. It may be true that, in principle, every State, being one of the international law-makers, should not just follow the law simply because it was the law yesterday and the day before, but should reassess it in terms of national interests before invoking it or complying with it. However, in reality more than half of the time, a State will find that it is in the national interests to apply the established law of yesterday today either because it endorses it wholeheartedly or at least because it is not worthwhile to reopen the issue and thereby harm the advantages of legal stability. The latter situation corresponds more or less to what Byers calls the “power of rules”.33 In any case, the State knows what it is doing. It is acting with opinio juris. Now, opinio generalis juris generalis does not just spring from nowhere. In international law it is made up of the generality of the individual opinio juris of members of the international legal system, their opiniones individuals juris generalis. It is the concordance of the generality of opiniones individuales juris generalis of the subjects of international law which forms the opinio generalis juris generalis. This concordance is not an agreement between States. It is not a treaty. States individually happen to hold the same opinio individualis juris generalis. Thus when in 1970, Canada extended its territorial sea from three to twelve miles, it was obviously of the view that the new rule of international law permitting twelve miles had already become law; for as Premier Trudeau said, Canada was willing to be taken to the International Court of Justice in order to vindicate its position. This is all the more significant because it at the same time modified its Declaration under the Optional Clause of the Statute in order to prevent being taken to the Court over its Arctic Waters Pollution Prevention Act, which it considered

33 Byers, n. 3 above.

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also to be lawful, but simply thought that the rest of the world might be a little behind in their views on the law on pollution, especially in polar conditions. Now, on the issue of the width of the territorial sea, in order to justify its view that the new rule had already become law, it pointed out that by 1970, some 45 States had established a twelve mile territorial sea, and 57 States had established a territorial sea of twelve miles or more.34 In so doing, Canada was by no means saying that these fifty-odd States had an agreement to extend their territorial seas to twelve miles. It is more than probable that in most cases, if not all cases, the States had simply decided individually that it was in their national interests to extend their territorial seas to twelve miles, and in doing so, like Canada, they did not think that they were breaking the law. Instead, they took their actions to be lawful, whether or not the others agreed with them. In other words, their actions disclose concordant opiniones individuales juris generalis in respect of the twelve-mile rule. What happens in such cases is as follows. The first few States that acted thus considered their actions lawful, just as Canada did in 1970 with its Arctic Waters Pollution Prevention Act, but other States probably would not, and they would regard the States that took such actions as acting contrary to international law.35 If, at this point, it is taken to court, it would lose the case.36 However, as with the case of the twelve-mile territorial sea rule, when there are a fair number of similar opinio individuals juris generalis, including most of the so-called States specially affected, then there is a possibility of claiming that the rule has been generally accepted because there is already an opinio generalis juris generalis. Finally, when all the States specially affected, when all the States that really matter in the area in question have embraced the rule, and there is no effective opposition, we then definitely have an opinio generalis juris generalis. Thus is how the opinio juris generally referred to formed: the concordance of the opiniones individuales juris generalis of the generality of States. As to when precisely a rule can be said to have been accepted by the “generality of States” is, to borrow a simile used by, I believe, Mendelson, like asking when is a fruit ripe. The answer depends on so many factors that it is not possible to reduce it

34 See Canadian Reply of 16 April 1970 to the United States Government’s protest, Summary tabled by the Canadian Secretary of State for External Affairs in the Canadian House of Commons on 17 April 1970, 9 ILM (1970), 607, at 609. On the lesson to be learnt from the whole episode regarding these two pieces of Canadian legislation in 1970, see generally Cheng (1983), n. 12 above, 538–40. 35 Many writers consider that in such cases, the State concerned would not be acting with opinio juris as it would not be following a pre-existing obligation. In doing so, they make it impossible to explain how eventually a new opinio generalis juris generalis is formed, when the new rule fully emerges, which is made up of the opiniones individuales juris generalis of all the States which embrace the new rule from the very beginning. 36 Cf. Fisheries Jurisdiction Case (UK v. Iceland) (Merits), ICJ Reports 1974, 3: “…the Court, as a court of law, cannot render judgment sub specie legis ferendae, or anticipate the law before the legislator has laid it down.” It would not apply an emerging rule before it receives general acceptance.

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to some mathematical formulae. Perhaps, apart from what has just been stated above, all that can be said in this context is that, if referred to a court, the court, since the parties have asked it to resolve the dispute and can be presumed not to wish to receive a non liquet, enjoys a wide margin of discretion. For the parties, unless the judgment can be annulled, as the Romans have so aptly put it, they would just have to accept what the court decided as true: res judicata pro veritate habetur (“what has been finally decided judicially is to be taken as the truth”). For others, the judgment would at least have high persuasive authority. VII. The true nature of opinio individualis juris generalis Opinio juris has been variously described as the psychological or the subjective element of custom, or the motives behind State actions, and all kinds of question have been raised as to whether it is really possible to discover the motives behind State actions37 or the psyche of corporate persons.38 In the first place, opinio juris certainly does not mean the motives behind a person’s or State’s action. We have constantly referred to it as a person’s or State’s recognition, acceptance or conviction. Whether it is appropriate to label these as psychological elements is debatable. That they represent a subjective element is probably undeniable. As to whether such subjective sentiments can be objectively established, the following quotation from the well-known textbook Winfield and Jolowicz on Tort seems highly apposite: To begin with, it is impossible for the law to do more than to infer a man’s intention, or indeed any other mental state of his, from his conduct. The law may frequently attribute to him an intention which a metaphysician would at most consider very doubtful. Centuries ago, Brian C.J. said: “It is common knowledge that the thought of man shall not be tried, for the Devil himself knoweth not the thought of man.” On the other hand, Bowen L.J. in 1885, had no doubt that “the state of a man’s mind is as much a fact as the state of his digestion”. There is no contradiction in these dicta. All that Brian C.J. meant was that no one can be perfectly certain of what passes in the mind of another person. But Brian would certainly not have dissented from the proposition that in law what a man thinks must be deduced from what he says and does, and that is all that Bowen L.J. meant.39

37 See, e.g., M.Sørensen, Les sources du droit international (1946). In his view since the explanations of States’ diplomatic activities are not normally made public: “Le fait que les motifs restent ainsi célés à tous ceux qui ne sont pas directement engagés dans la direction des affaires étrangères, est fatal à la possibilité de prouver l’opinio juris” (109). Translation: “The fact that the motives remain thus closed to all those who are not directly engaged in the management of foreign affairs is fatal to the possibility of proving the opinio juris.” 38 Cf., e.g., A.Carty, The Decay of Intentional Law? (1986), 26. 39 (10th ed., 1975) 24; footnotes omitted.

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The same applies to States. What a State thinks can equally be deduced from what it says and does. In that connection, it is curious that some seem to believe that States are mindless entities and that they speak and act mindlessly. From that point of view, Guy de Lacharrière’s La politique juridique extérieure40 is more than instructive. As to how the actions of a State’s agents are attributed to the State, this is a simple question of imputability,41 one which one faces every day in international law. First, there is the question from what sort of acts or words of a State one is entitled to deduce a State’s opinio juris. On this there is a constant debate.42 The answer is in many ways complex, but is not unanswerable. It is complex because, in principle, it can include any act or omission or statement on the part of the State in any circumstances, not excluding, for instance, statements at international conferences,43 press conferences or television interviews,44 not to mention legislation like the Canadian 1970 Arctic Waters Pollution Prevention Act,45 executive acts like the well-known 1945 Truman Proclamation on the continental shelf,46 or the 1983 Reagan Proclamation of the US Exclusive Economic Zone.47 However, in order to avoid any misunderstanding,48 it needs to be pointed out that this excludes in the first place all acts, omissions and statements on the part of anyone who is not an official or agent of the State, and secondly, all acts, omissions and statements of a State’s officials and agents who are not acting in their official capacity. This is a question of understanding the rules of imputability in international law.49 Secondly, before one can speak of a State’s opinio juris, the act, omission or statement must be of such a nature and made in such circumstances that it is possible to deduce from it a recognition, acceptance, or conviction on the part of the State in question that a given rule of international conduct is part of existing international law, and that such a deduction is invocable (opposable) against it. Neither deducibility nor invocability (opposabilité or opposability) is a process or notion that is susceptible of simple and clear-cut definitions, inasmuch as both depend

40 (1983). 41 See Cheng, n. 16 above, Ch. 6, sect. C.III: Imputability in International Law, 180–207. 42 See e.g., D’Amato, n. 7 above, 88 ss.; Mendelson, n. 2 above, Ch. II, sect. II: Forms of Practice; Byers, n. 3 above, Ch. 8, [sect. 2]: The Character of State Practice, 133–36. 43 Cf. Danilenko, n. 11 above, who rather questioned the effect of statements made in the UN General Assembly. See also next footnote, regarding the French Foreign Minister’s statement. 44 Cf. ICJ: Nuclear Tests Cases, ICJ Reports 1974, respectively 253, at esp. 267; and 457, at esp. 472. Statements included the French President’s press conference, the Defence Minister’s TV interview, and the Minister for Foreign Affairs’ address at the UN General Assembly. 45 Revised Statutes of Canada 1985, vol. 1, c. A12; reproduced in 9 ILM (1970), 543. 46 Presidential Proclamation 2667, 10 Federal Register 12303 (1945). 47 Presidential Proclamation 5030 of 10 March 1983, and accompanying Presidential Statement on US Ocean Policy, 10 Presidential Documents, No. 10 (14 March 1983), 383–85; reproduced in 22 ILM (1983), 461–65. 48 Such as that of Noel Malcolm in his article, “The New World Order”, The Spectator (21 Nov. 1992), 18, 19. 49 See n. 41 above.

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on factual circumstances to which all kinds of rules of international law may be applicable. Insofar as deducibility is concerned, one may well ask, for instance, whether a smoking gun in a person’s hand necessarily denotes intentional homicide? In the same way the question is constantly being asked whether voting for a General Assembly resolution, or a unanimous General Assembly resolution, denotes an opinio juris, which causes the State or States concerned to be bound, without inquiring into what kind of resolution it is and what the resolution exactly says.50 In that connection, I am sometimes rather nonplussed by those writers who glibly attribute to me the view that all General Assembly resolutions are binding as instant customary international law, on the basis presumably of my article in the Indian Journal of International Law,51 but evidently without having ever bothered to get hold of it, or to read it, let alone to read and understand it properly. One notable exception is Maurice Mendelson who not only draws attention to the question mark, which, as he says, “is often forgotten”, at the end of the title of the article,52 but also remarks that: the conditions or criteria he [Cheng in his article] imposes, and which I have just discussed, operate as a very fine sieve, through which very few General Assembly resolutions will pass [as bringing forth a new binding rule of international law]… In fact, the only one which does pass, according to his 1965 article, is General Assembly resolution 96(I) of 11 December 1946, affirming unanimously ‘that genocide is a crime under international law’.53

50 Mendelson, n. 2 above, at 373, asks why, in my view, for a unanimous General Assembly resolution to qualify as what I call a law-finding resolution which renders the rule stated in the resolution invocable against all the UN Members, not only must the Members have the necessary opinio juris communis, but this opinio juris must also be unequivocally expressed in the resolution. He says: “If satisfactory evidence of this opinio juris could be found elsewhere (e.g., in explanations of vote), then there seems to be no particular reason to insist that the opinio juris appear on the face of the instrument.” The answer is quite simple. In that case, the evidence of the opinio juris, which is what really counts, is to be found at that “elsewhere”, which is the crucial piece of evidence of the rule professed. The resolution which does not unequivocally express this opinio juris evidences no opinio juris and, therefore, brings forth no new law. The wording of that part of the resolution which indicates what effect which the General Assembly intends to give to what follows is all-important. As I pointed out in the 1965 article, the General Assembly had been known deliberately to water down whatever effect a resolution might otherwise have. For example, in resolution 95(I) “affirming” the Nuremberg principles, which has been hailed right, left and centre as one of the great corner stones of international criminal law, the General Assembly refused to “reaffirm” them as was originally proposed, and even declined to “confirm” them. Consensus was reached only when the operative word was tuned down to “affirm”, whatever that was supposed to mean (see Cheng (1965), n. 10 above, 40). Is nothing to be read into such charade? See further Cheng (1997), n. 13 above, Ch. 8, sect. V.J.5: Effects of General Assembly Resolutions and the Importance of the Wording and of the Voting Pattern, 196–203. 51 See n. 10 above. For example, see Cheng, n. 17 above, 222. 52 Mendelson, n. 2 above, 371. 53 At 375–76 (additions in square brackets are mine).

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Incidentally, Mendelson who appears to be more liberal than I in letting through General Assembly resolutions as binding, does not think that resolution 96(I) was setting a new rule, on the ground that “this resolution affirms something which the Nuremberg Charter and Tribunal had already declared to be the case”.54 In view of the current interest in international criminal law and the prevalence of this view, it may be worth pointing out that not all crimes against humanity were under the jurisdiction of the Nuremberg International Military Tribunal according to the London Agreement (the Nuremberg Charter) of 8 August 1945,55 as modified by the Four-Power Protocol of 6 October 1945.56 The 6 October Protocol, the existence or import of which is often ignored, in changing the semi-colon after the word “war” in Article 6(c) of the Agreement of 8 August to a comma, had the effect of limiting the scope of Article 6(c) to only crimes against humanity committed in execution of, or in connection with, crimes “within the jurisdiction of the Tribunal”, in other words, those against peace and conventional war crimes. Crimes against the civilian population in time of peace were, therefore, excluded.57 In any event, the term genocide as used in the resolution is by no means coterminous with crimes against humanity as defined in the Nuremberg Charter, especially as modified by the October Protocol. Resolution 96(I) was, therefore, clearly enunciating a new rule of international law. The entire body of UN Members in adopting the resolution in such categoric terms must be deemed to recognise, accept and be convinced that what they were enunciating was true, namely that genocide was an international crime, whatever at the time that meant. The resolution thus clearly evinces a collective opinio juris generalis, which represents precisely the acceptance by all the UN Members of the stated rule as law, and, one can probably also say, by the generality of States notwithstanding the fact that there were at the time a number of non-members. What was the precise moment in this case when the rule can be said to be in existence so that, if called upon, it could have been applied? Even here, that is a question that is not easy to answer. Inasmuch as General Assembly resolutions are not legally binding except in budgetary and housekeeping matters, it was obviously not the resolution which created the new law. It was the parallel and concordant decisions of all the individual Member States to take such a step that did it, or in other words, their concordant opiniones individuales juris generalis, in this case in sufficient number and strength to form an opinio generalis juris generalis that made the new law. The new law existed the moment such an opinio generalis juris generalis was formed. The resolution merely makes this opinio generalis known for the first time, thus bringing to the world instantaneously a new rule of international law, just like a midwife helping in the birth of a child.

54 55 56 57

At 376. Cmd. 6668 (1945) 5. Cmd. 6903 (1945) 5. See G.Schwarzenberger, International Law as Applied by International Courts and Tribunals. Vol. II: The Law of Armed Conflict (1968), 496–97.

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What is important to look for in the action of the State, whether in deeds or in words, is that it discloses a recognition or acceptance or conviction that a given rule is one of general international law. What is necessary is a meticulous examination of all the circumstances. What is required is an opinio juris that a rule is one of existing general international law, opinio juris generalis de lege lata, not a recognition, acceptance or conviction that it is something else, or to borrow Mendelson’s neologism, an opinio non juris.58 To be distinguished from true opinio juris generalis, and to be excluded would, therefore, include recognition of a rule as merely a regional one (opinio juris regionalis)59, acknowledgements that such a rule would be desirable but not already existing (opinio juris de lege ferenda), or that it is a treaty obligation but not one of general international law, in other words, an opinio obligationis conventionalis.60 What is decisive in every instance is, therefore, the precise opinio of States. Finally, as to the need that this recognition, acceptance or conviction should be such that it is opposable to the State concerned, one has to rely on one of the underlying working premises or principles of the international legal system, or all legal systems where the subjects are equal before the law, namely, what Byers correctly identifies as the principle of reciprocity: “in the context of general customary international law any State claiming a right under that law has to accord all other States the same right.”61 One may have just added: “and any State which claims that another State

58 Mendelson, n. 2 above, e.g., 272. Incidentally, if Mendelson accepts that where there is opinio non juris, it is not a rule of international law, and where there is doubt whether a rule is or is not one of international law, opinio juris is the test (e.g., 273 ss), it is difficult to see why opinio juris should not be the test of all rules of international law, and that in fact it is the jural essence of rules of international law. For a State, in Mendelson’s so-called “standard type of case” to dispense with inquiring into its own and others’ opinio juris, and to simply accept as a rule of international law and to follow it “where there is a constant, uniform and unambiguous practice of sufficient generality, clearly taking place in a legal context [etc., etc.]” (292), would in fact be precisely what the New Haven School of virtually “Free Law” would say a State must never do even when there is an opinio generalis juris generalis if it does not accord with its vision of the New World Order (cf. Cheng (1982), n. 17 above, sect. II, 204– 9). Without embracing in any way this form of Freirechtslehre in international law, it is fair to say that in practice States do inquire carefully in every case into their own and others’ opinio juris (cf. Lacharrière, n. 40 above). However, in reality, Mendelson’s “standard type of case” is no other than one where opinio juris is so obvious that it can be seen instantly by anyone concerned without close scrutiny (see Cheng (1998), n. 13 above, 388–89). It would thus appear that in reality Mendelson admits that opinio juris is the quintessence of the rules of international law, though he protests to the contrary. All that he is saying is that in obvious cases, one may take it for granted. 59 Cf. Asylum Case (1950), ICJ Reports 1950, 266. 60 On treaties to be distinguished from general international law, see, e.g., Cheng, n. 12 above, sect. IV.3: Treaties and Customary International Law Distinguished, 528–30. 61 Byers, n. 3 above, Ch.6, 88–105, 89. See G.Schwarzenberger who called reciprocity “the most reliable of the three working principles behind international law”, The Inductive Approach to International Law (1965), 54. He discussed it at some length in his The Frontiers of International Law (1962), 29–34. The reciprocity referred to here is positive reciprocity: what you claim for yourself to be the law, you are irrebuttably presumed juris et de jure to have conceded the same to others; for the law does not discriminate between its subjects. Incidentally, this is not based on Kant’s categorical

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owes it an obligation under a rule of general international law must be deemed to have the opinio juris that the rule exists, and must, in like circumstances, accept the same obligation.” This principle of reciprocity or consistency, as some prefer to call it, can also be said to be derived from the principle of good faith, one of the general principles of law inherent in the concept of law.62 Thus in the case of Atlantic and Hope Insurance Companies (The Mechanic) decided by the Ecuadorean-United States Claims Commission (1862), it was held that: Ecuador…having fully recognised and claimed the principle on which the case now before us turns, whenever from such a recognition rights or advantages were to be derived, could not in honour and good faith deny the principle when it imposed an obligation.63 Thus the conduct of a State disclosing a recognition of a rule or principle of international law enables other States to invoke the same principle against it. The 1945 Truman Proclamation, for example, clearly indicates that the United States, unless it admits that it was deliberately violating international law, must, by that Proclamation which was an official act irrefutably imputable to the United States, be recognising, accepting and convinced that, at that moment, there was a rule of international law which allowed a coastal State to appropriate title to the natural resources of the continental shelf contiguous to its coasts, and to do so by a simple declaration without having to display effective occupation. The United States’ view may or may not be a United States invention, but such an opinio juris may be deduced from the Proclamation. It is in this way that one establishes the opinio individual juris generalis of a State. As can be seen, it is not a question of the motives of the United States, although the Proclamation did go into them. It is also not a question of the psychology of the United States or that of President Truman or that of any other officials of the United States. Although called sometimes the psychological or subjective element of a custom, in reality it is an objective legal construct deduced from the conduct of a State. Moreover, without going over the old story, it matters not whether the US view as disclosed in the Proclamation was or was not a correct reading of the law at the time. What can be deduced from it is opposable to the United States, on account of the principle of reciprocity.64 Any State can invoke it against the United States, and the

imperative, as some say I have done. It follows really from the logic of the situation where the subjects of the legal system are equal. Put it on a more down-to-earth level, as the saying goes, what is sauce for the goose is sauce for the gander. It is, however, definitely not negative reciprocity in the sense that the acceptance and observance of all rules of international law and other legal obligations are in principle conditional on reciprocity, rather like the United States version and interpretation of the most-favoured-nation clause. 62 See Cheng, n. 16 above, Ch. 4, sect. C: Allegans Contraria Non Est Audiendus, 141–49. 63 J.B.Moore, International Arbitrations, vol. 3, 3221, at 3226. 64 See Cheng, n. 12 above, 536–37.

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United States would not be able to deny the validity of the rule implicit in the Proclamation. When in my 1965 article, I advanced the proposition that the only requisite constituent element of general international law, alias the so-called international custom, is the opinio generalis juris generalis, some commentators jumped to the conclusion that I dispensed entirely with State practice so that international law is just some mental state floating in thin air unattached to any State practice. This is a grotesque misunderstanding. All that is meant is that the quintessence of general international law, alias international custom, is the opinio generalis juris generalis of States, while State practice is merely the evidence of it.65 I have never said that one can dispense with the evidence. In this case, what is relevant is the opinio individualis juris generalis extracted from the Truman Proclamation which marks the beginning of a new rule of international law, and not the mere fact that the United States has issued such a document. This case shows that in principle it is perfectly possible for a State by a single act evincing clearly its opinio individualis juris generalis to cause a new rule of international law to be immediately established if a generality of other States instantly manifest in one way or another that they hold the same opinio individualis juris generalis.66 I have no wish to go over here the question of instant general, alias customary, international law which I hope I have explained quite fully in 1965 except perhaps to ask those who concede that the so-called time factor is getting more and more irrelevant, but end up by saying that yet they would not go as far as Cheng, how far they think it is in law and in principle permissible to go. Five years, one year, six months, one month, 36 hours? And why? Byers, quoting Villiger67, thought that the problem with instant customary international law68 is that it does not give other States “sufficient time to become aware that these rules are emerging”.69 Assuming this to be so even in an age of realtime electronic communications, the question is not one of practicality or how often instant rules of general international law come into existence through the rapid emergence of an opinio generalis juris generalis without it being based on any specific

65 Regarding the evidence of opinio juris and hence of the rules of international law, see Cheng (1994– 95), n. 13 above, sect. VI.B, 225, and Figure 4 at 227; Cheng (1997), n. 13 above, 180–81 and Figure VIII.3, 180, which is also found in Cheng (1998), n. 13 above, 390. 66 See R.R.Baxter, Treaties and Custom, 129 RCADI (1970–I), 25–206: “The time factor as a separate element in the proof of custom now seems irrelevant” (67); “If all States were today to declare that the state of the law is that foreign States are not entitled to immunity in national courts, that would be the law, even though it had theretofore been acknowledged that the law is just the opposite” (44). Baxter appeared very happy with the concept of “instant” customary international law, and called it “this felicitous expression” (69, n. 46). 67 Customary International Law and Treaties (1985), 4. 68 It may be worthwhile to bear in mind that I do not regard the “international custom” referred to in Art. 38(1)(b) of the ICJ Statute as being based on usage, and consider the term to mean simply general international law. Cf. Jennings, n. 25 above. 69 Byers, n. 3 above, 161.

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usage—and we have seen an instance of it with the rule on genocide70—the real questions are first whether instant general international law is in principle possible, and secondly whether the view that I have advanced assists in explaining the birth of rules of international law. It is submitted that the view that the opinio generalis juris generalis of States as disclosed by the conduct of States is the quintessential constituent element of rules of general international law provides affirmative answers to both these questions, and that it is a lack of a proper understanding of the notion of opinio juris in international law that inhibits its acceptance. In any event, as D’Amato kindly reported in 1997, “the idea of ‘instant’ customary law…is now generally accepted”.71 VIII. Definition of opinio juris in international law and summary In conclusion, opinio juris in international law may thus be defined as a State or other international person’s recognition, acceptance or conviction, tacit or express, of a given rule as a valid and binding rule of general international law, recognition, acceptance or conviction which can be conclusively deduced from the pronouncement or conduct of that State or international person, and which is invocable (opposable) against that State or international person on the basis of good faith or reciprocity. This is a State’s or international person’s individual opinio juris of general international law, its opinio individualis juris generalis, which as such does not make a rule of general international law. A rule of general international law can be said to exist when there are sufficient concordant and parallel opiniones individuales juris generalis from the generality of States to form an opinio generalis juris generalis. Thus are rules of general international law made and changed according to what States and other international persons accept at any given moment, making international law a truly living law. Since what makes a rule of general international law binding is the acceptance of it as legally binding by the generality of States and other international persons, opinio juris is thus what determines the existence and content of rules of general international law. State practice serves merely to provide evidence of it. A proper understanding of the notion of opinio juris is thus vital to the proper understanding of the sources of international law and the nature of international law itself. To achieve this understanding, one must first clearly distinguish the notion of opinio juris in international law from that in municipal law. Failure to do so is the source of much of the misunderstanding.

70 See text following n. 53 above. 71 Identifying Rules of Customary Law (1997), 107.

5

Judicial decisions as a source of international law and the defence of duress in murder or other cases arising from armed conflict Bing Bing Jia*

Defences, though innate to international criminal proceedings, have long been vague in definition,1 and difficult to categorise by reference to the established sources of international law. This paper is not intended to be a compendious study of every source of international law as authoritatively enumerated in Article 38 (1) of the Statute of the International Court of Justice (“the ICJ Statute”). It is proposed to consider one of the sources in particular, namely: judicial decisions under Article 38 (1) (d), in relation to the specific defence of duress in international criminal proceedings. It goes without saying that judicial decisions under Article 38 (1) (d) are regarded as one of the “subsidiary means for the determination of rules of law”. The defence of duress is here to be considered in connection with murder or other cases where they are charged as war crimes or crimes against humanity. As the late Judge Li of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) stated in his Separate and Dissenting Opinion in the Erdemovic case,2 “[W]ith regard to this question, there is neither applicable conventional nor customary international law for its solution”.3 Having decided that municipal law did not provide for a general principle in the sense of Article 38 (1) (c) of the Statute of the ICJ, he went on to examine the decisions of the military tribunals established after the Second World War, and came up with the conclusion that there was a general rule as evidenced by the decisions that duress constituted a complete defence, subject, however, to the exception that it would not apply to heinous crimes.4

* 1

2 3 4

The views expressed herein are those of the author and do not necessarily reflect the position of the International Tribunal or of the United Nations. See the following discussion on the jurisprudence of various military tribunals established immediately after the end of the Second World War. This fact has also been recognised by the ILC after many years of efforts in drafting a Code of Crimes against the Peace and Security of Mankind. See Report of the International Law Commission on the work of its Forty-Eighth Session (6 May–26 July 1996), UN Doc. A/ 51/10, 73, Art. 14 and the commentary. Case No. IT-96–22-A, ICTY, Appeals Chamber, 7 October 1997 (Sep. & diss. op. Li). Ibid., para. 2. Ibid., para. 5. 77

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It appears that his conclusion was meant to show that rules of law might be crystallised from case law, but that this crystallisation would be achieved in a manner different from that in which a custom is formed. On the other hand, Judge Li’s Separate and Dissenting Opinion only briefly touches upon this topic of finding a rule through a study of judicial decisions. It seems useful to peruse available cases at some length to explore the way in which the defence of duress may be extracted from cases. It is first of all intended to consider briefly the question of judicial decisions as a source of international law. Do the decisions point to a rule which can be derived by sole reference to them and nothing more? Or do they ultimately reflect a rule derived from existing precepts of national law but now restated in international decisions? The second issue will be the plea of duress and its parameters as understood by military tribunals established after the Second World War. The existence and content of the plea will also be considered. There will also be examined certain cases in relation to the question of whether duress was regarded by the military tribunals as a factor mitigating sentences or a ground for absolving the accused of criminal responsibility. The concluding remarks will gauge the implications of this approach of deriving rules of law only from cases. I. Judicial decisions as a source of international law I.A. The question in the context of the ICJ Statute Article 38 of the ICJ Statute provides in relevant parts the following: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: … (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. The curious juxtaposition of the teachings of publicists and judicial decisions was reflective of the situation in the field of international law in the early days of the last century. It cannot be the same in our times when international tribunals have assumed considerably greater authority in interpreting international law by reason not only of consistency in their reasoning and balance in their conclusion, but, far more importantly, of their power given by States to pronounce authoritatively upon legal issues. It is simply unrealistic to continue to treat judicial decisions and valuable opinions of publicists as being of equal authority. Or in the eloquent words of the late Judge Fitzmaurice, “[A] decision is a fact: an opinion, however cogent, remains an opinion.”5 5

G.Fitzmaurice, Some problems Regarding the Formal Sources of International Law, in Symbolae Verzijl (1958), 172.

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The history of the ICJ dealing with this question is long and may provide certain pointers for a study as attempted by this paper. As one writer observes, “[S]trictly speaking, the Court does not observe a doctrine of precedent, but strives nevertheless to maintain judicial consistency”.6 He states, interestingly, in a footnote that, “[B]ut precedent is firmly adhered to in matters of procedure”.7 Similar comments can be found in a recent monograph on this topic.8 It may be submitted that the precedential value of the existing jurisprudence of the ICJ and other international tribunals is the basis for the source of judicial decisions to have a role to play on the international plane. It is not, however, to be presumed that there is the likelihood that the ICJ may create international law so as to apply it in a pending case, without the consent of the parties as to the way the case should be adjudicated. On the other hand, any rule or principle proclaimed by judicial decisions has “some antecedent source”.9 Is it possible that a rule can be established solely by virtue of judicial pronouncements, the antecedent source present here, if any, being none other than logical conclusions based on characteristic circumstances of a certain type of case? A partial answer has already been given in respect of the “antecedent source”: The Court must—and this is perhaps the most important requirement of the judicial function—be seen to be applying existing, recognized rules, or principles of law…. But whatever juridical design it decides to construct in its decision, it must do so, and be seen to do so, from the building materials available in already existing law. The design may be an imaginative artifact, but the bricks used in its construction must be recognisable and familiar.10 There is also the point that logic requires that such antecedent source must be in existence.11 Here comes to mind the celebrated Anglo-Norwegian Fisheries case,12 which has been thought as an exercise of judicial legislation endorsing Norway’s use of straight baselines linking promontories on its ragged western coast.13 Yet, the ICJ stated clearly that “the Court is unable to share the view of the United Kingdom Government, that ‘Norway, in the matter of base-lines, now claims recognition of

6 7 8 9 10

I.Brownlie, Principles of Public International Law (5th ed., 1998), 21. Ibid., 21, n. 133 therein. M.Shahabuddeen, Precedent in the World Court (1996) (“Precedent”), 97–99. R.Jennings & A.Watts (eds.), 1(i) Oppenheim’s International Law (1996), 41. R.Jennings, The Judicial Function and the Rule of Law in International Relations, in 3 International Law at the Time of its Codification, Essays in Honour of Roberto Ago (1987), 144–45, cited in Shahabuddeen, n. 8 above, 232. 11 H.Thirlway, The Law and Procedure of the International Court of Justice, Part II, 61 BYIL (1990), 3, 133. 12 ICJ Reports 1951, 116. 13 See H.Lauterpacht, The Development of International Law by the International Court (reprinted 1996), 190– 99.

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an exceptional system’…all that the Court can see therein is the application of general international law to a specific case.”14 In the view of the ICJ, there was no judicial legislation involved in its acceptance of the Norwegian system, even though the Court had recognised it as not being part of customary practice.15 As far as the Statute of the ICJ is concerned, the intention behind the qualification that judicial decisions are a subsidiary means for the determination of international law seems to be clear on paper. For such decisions provide evidence for the finding of a rule not reflected in a custom, a treaty or a general principle of law. Judicial decisions handed down from international tribunals are strictly speaking not part of State practice. They reflect the sense of justice of those independent jurists mandated under international law to render juridical solutions to international disputes. Because of the existing structure of international law, which treats States as primary subjects, it is no surprise that the possibility for judges, who are individuals, to decide on and apply rules of law is defined by the ICJ Statute as a subsidiary means for determining the content of those rules. Even so, the significance of Article 38 (1) (d) is plain to see, irrespective of the condition of Article 59 of the Statute of the ICJ. For, although the binding force of decisions is confined to the parties to a particular case brought before the ICJ, as so provided in Article 59, it is a separate matter that Article 38 (1) (d) defines judicial decisions as a subsidiary, but, in my view, independent source of international law. A question may be asked whether these existing propositions regarding precedents in the practice of the ICJ help solve the questions posed by the topic of this paper, since a defence belongs to substantive criminal law. I.B. Article 38 (1) (d) partly applies to other international tribunals including the ICTY International criminal law is a branch of general international law, even though it has recently come to prominence in the wake of the founding of ad hoc international criminal tribunals. It is the vehicle whereby a long-established strain of international law, humanitarian law, is enforced in our times. Its distinctive features do not set itself apart from the norms, principles and structure of general international law, and the nascent system it is nourishing internationally retains tenaciously one of the fixtures of the existing world order: sovereign States. It is the States that decide the content of the substantive law and give the system the approval to build on. Without the aid of States, international criminal law is doomed to fail instantly. The list of sources of international criminal law is also not different from that agreed on by States in Article 38 (1) of the Statute of the ICJ. However, there may be one or two questions concerning the applicable scope of Article 38 (1) (d) in the field of international criminal law.

14 ICJ Reports 1951, 131. 15 Ibid.


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It is thought that the terms of Article 38 (1) (d) no doubt bind the ICJ in the exercise of its judicial function, but that the cross-reference to Article 59 does not have to in respect of other international tribunals, such as the ad hoc tribunals for the former Yugoslavia and for Rwanda. Both tribunals were established by United Nations (“UN”) Security Council resolutions based on enforcement powers provided under Chapter VII of the UN Charter. Their jurisdiction is not strictly consensual in respect of each case, as is that of the ICJ. The mechanism established by Article 38 (1) (d) is, it seems, tailored to suit the requirement of respect for State sovereignty and the concomitant principles recognised in Article 2 of the UN Charter. Without the backing of the consent of States which is both the basis for the making of treaties and the proof for the necessary showing of the opinio juris, the ICJ cannot assume the power to impose on States its judicial findings derived from sources other than those listed in Article 38 (1). The Court is established chiefly to apply, not to create, international law. Ultimately, the ICJ is the judicial organ of a treaty-based organisation, although its authority on questions of international law is not doubted. However, the operation of international criminal law assumes a great degree of independence from the fundamentals of public international law. It is an interface between the latter and municipal law to the extent that individuals are directly drawn into the law as subjects, and this body of law may borrow readily and copiously from general principles and rules of national penal law. This exercise of incorporating national law is open to few dissents from States because the object in this field is the individual, natural person, rather than a collectivity of such persons forming a nation State, whilst the prosecuting authority now lies with the international community, suitably represented by the UN. Controversies may arise when this natural person turns out to be an incumbent government official.16 However, any impact from conducting prosecution in this field is specific and personal. Given that the offences recognised by international criminal law are generally defined and relatively repetitive, the precedential effect of previous judicial decisions will certainly not prejudice the dispensation of criminal justice; rather, their very existence enhances the certainty of the law.17 The requirement of Article 38 (1) (d), “subject to the provisions of Article 59”, in short, does not apply to tribunals not having States as parties. Further, attention should be paid to Article 59 of the ICJ Statute. The restraint shown by the ICJ in the use of precedents is sometimes thought to be contained in the terms of Article 59: “The decision of the Court has no binding force except as between the parties and in respect of that particular case.” As such, there is no stare decisis rule applicable in the work of the ICJ.18 Judicial precedent, if recognised only

16 Cf. R. v. Bow Street Stipendiary Magistrate and others, ex p. Pinochet Ugarte (Amnesty International and others intervening), [1998] 4 AER 897. Also, H.Fox, The First Pinochet Case: Immunity of a former Head of State, 48 ICLQ (1999), 207. 17 Certainty is the most important property of law. See Hale, Reflections by the Lord Chief Justice Hale on Mr. Hobbes: His Dialogue of the Lawe, cited in Holdsworth, 1 A History of English Law (7th ed., 1956), 499–513. 18 Shahabuddeen, n. 8 above, 97.

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as such among States, will not be capable of clarifying and circumscribing the content of a certain rule being contested by States. For, under Article 59, States parties to the ICJ Statute are not bound by the finding made by the ICJ regarding that rule. The generality of the rule would thus be very doubtful. On the other hand, the terms of Article 59 do not negate the terms of Article 38 (1) (d) which explicitly refer to judicial decisions as a subsidiary means for determining international law and which are intended to clearly establish the authority of judicial decisions. Such decisions always emanate from international tribunals which are not only often composed of jurists versed in international law, but are created and authorised to deal with disputes on the sole basis of international law. This interplay between Article 38 (1) (d) and Article 59 seemingly suggests that judicial precedent can exist without having as its basis the doctrine of stare decisis. A prescient word from Lord McNair may also be in order: “this article [Article 59] is closely linked with Article 63 (giving a right of intervention), is to some extent complementary to it…. It does not appear to have originated as a Continental protest and safeguard against the English doctrine of judicial precedent but to have been inspired by a wider (though not entirely dissimilar) purpose; namely, to prevent a State which has not intervened in a suit from being bound by the decision given in it ‘and any ulterior conclusions to which that decision may seem to point’.”19 For Article 59, which has such a specific purpose under the ICJ Statute, it should certainly not take on any wider applicability outside the context of the Statute. Does this mean that international judicial decisions may exert a different type of impact as far as other tribunals are concerned, such as the ICTY? I.C. Judicial decisions in the area of international criminal law The answer to the above question is in the affirmative. The ICTY is mandated to dispose of cases involving individuals only. It deals with rights and duties of natural persons under the Geneva Conventions of 1949, the Genocide Convention of 1948, customary law as embodied in the Hague Conventions of 1899 and 1907 and the Geneva Conventions of 1949, and customary law regarding crimes against humanity. The confines of such rights and duties are comparatively clear in terms of the ICTY Statute. Further, individuals have not been involved independently in the making of the law to be applied by the ICTY. In fact, it may be submitted that the applicable law has been given by a lawgiver somewhat in the traditional sense of that term: the UN Security Council acting in pursuance of the UN Charter.20 Since this body of law was originally agreed upon by States, there would be no room for persistent

19 A.McNair, The Development of International Justice (1948), 13. 20 The author is well aware of the instructions of the UN Secretary-General that the UN Security Council would not create or legislate for the ICTY, whom the Council expected to apply existing international humanitarian law: Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993) (S/25704), 3 May 1993, para. 29.


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objection from an individual concerned with the application of the law. This view certainly sounds harsh for the individual adversely affected, except for the fact that that law also provides for guarantees of his rights, in the shape of the procedural law enunciated by both the Statute and the Rules of Procedure and Evidence, both of which have been designed with account fully taken of recognised human rights standards in relation to judicial proceedings. All this ensures that the ICTY apply international law within legitimate limits, and makes it possible that previous judicial decisions in the area of international criminal law can be relied on by the ICTY judges in finding suitable rules to dispose of pending cases. It is conceded that the preceding consideration is based on the premise that there is a lawgiver in the form of the UN Security Council, whose authority is recognised as legitimate by States and individuals and whose decisions are accepted as obligatory, but that the premise may be questioned in some circles. What is important is, however, that, as far as the applicable law of the ICTY is concerned, this authority of the UN Security Council in prescribing law is no longer challenged by the accused coming before the ICTY.21 The next question would be whether the doctrine of precedents, well practised by the ICJ, has any role to play in this context of international criminal law. If judicial decisions alone can serve as the basis for the finding of a rule, should they not be any different from such decisions as reflect a custom? The answer is affirmative. Judicial decisions forming a source of law do not constitute State practice as such. There may be decisions of courts constitutive of State practice, but they are so by reason of their reflecting domestic understanding of what is international law. In other words, this type of decision belongs to the domestic sphere, and has more to do with Article 38 (1) (b) regarding custom than with decisions envisaged in Article 38 (1) (d) of the Statute of the ICJ. If so, it is still worthwhile to know in which sense judicial decisions in terms of that article are precedential, which point is the basis for treating judicial decisions as a source of law. At this point, the word “precedent” begs some explanation. Does it refer, in the present context, to decisions which are binding upon subsequent judicial practice or something else? General jurisprudence of the common law school would thus describe the origin of a system of precedents: “It is a basic principle of the administration of justice that like cases should be decided alike… Judicial precedent has some persuasive effect almost everywhere because stare decisis (keep to what has been decided previously) is a maxim of practically universal application.”22 This statement is somewhat contradictory in that being persuasive is not equivalent to being binding. Even in English law precedent may assume two allied but different meanings. Where the maxim of stare decisis applies rigidly (in fact, it is not rigid anywhere any more),

21 Cf. Prosecutor v. Dusko Tadic, Case No. IT-94–1-AR72, Appeals Chamber, Decision on Jurisdiction, 2 October 1995, where the question of legality of the establishment of the ICTY by the UN Security Council was settled, as far as the work of the Tribunal was concerned. 22 R.Cross and J.Harris, Precedent in English Law (4th ed., 1991), 3.

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persuasion does not affect the formation of judicial decisions. But there are cases where the maxim does not apply, and the English House of Lords has for one not been bound by it since 1966.23 It is noted that, even in the English system where case-law plays a prominent role, there are many different kinds of precedent for a future judge, amongst which there is such precedent as has persuasive effect as opposed to coercive or binding effect.24 For many international jurists, there is also “a distinction between the force of the decision itself and the force of international law as authoritatively expressed in the decision”.25 Whether a decision is persuasive and sound can be answered differently by different tribunals. In practice, persuasion alone does not confer authority. Authority comes often from both the persuasiveness of an opinion and the fact that the organ or the person that pronounces the opinion is authoritative by virtue of an enabling statute: it or he is conferred with legal power to state the opinion authoritatively. Does a precedent mean a rule as relied on by a previous decision, i.e., as the ratio for decision, or a reasoning of a court which is sound and persuasive, thus making the latter day tribunals willingly follow it in similar cases, but which would be known as obiter dicta? It is clear that a persuasive opinion should point to a rule after persuasion, so to be taken into account by a later court. As for the underlying reasoning for that opinion, there may be less than a need to adopt it in a later decision, for, among others, the reason that the facts relied upon for the reasoning may have long since changed. If the previous decision derived reasons for the rule from the fact that the rule was anticipated by statutory instruments, the decision could not be said to form, with other similar decisions, a source of law for a particular type of case, because the law had already been in existence. It would be like judicial decisions evident of a treaty rule or custom in international relations. If so, the decision is not different from such materials as diplomatic notes, exchanges of letters, protests, or similar forms of expression of legal opinion. It would then be justifiable to ask why it should be given an elevated place as a subsidiary source of law. The conclusion may therefore be that judicial decisions forming a source of law can only be such that they conclude, by examining existing law and practice, that, in the absence of a treaty, custom, or a general principle of law, there exists and should exist a rule in respect of cases they are intended to decide. Lauterpacht would describe this approach in terms of judicial legislation.26 It is, further, necessary to confine the interpretation of the subsidiary source of judicial decisions to such decisions as proclaim rules of international law that apply to later cases. Assuming what has been argued above makes sense, it is submitted that judicial decisions are capable of

23 Cf. Lord Wright, Precedents, 8 Cambridge LJ (1944), 119–20; Cross and Harris, n. 22 above, 104. The lower courts are still bound by the decisions of the superior courts. 24 Cross and Harris, n. 22 above, 4. 25 Shahabuddeen, n. 8 above, 107. This is also recognised by the ICJ: Temple of Preah Vihear (Cambodia v. Thailand) (Preliminary Objections), ICJ Reports 1961, 17, 27. 26 Lauterpacht, n. 12 above, 186, 190


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affording the ratio for a decision in a given case in the field of international criminal justice. It is submitted that, in the area of international criminal law, judicial decisions of competent international tribunals constitute a source of the law. It may be questioned if the military trials after the Second World War could be counted among such decisions for the reason of the extraordinary circumstances prevalent at the time. I could only observe that the military tribunals whose jurisprudence is to be considered in this paper were composed of mainly civilian judges some of whom were ranking officers due to general mobilisations in the wartime situation. They did not apply military law specific to that period of occupation or military government, but applied the law promulgated by civilian governments, including international treaties and custom, this fact making their judgements highly relevant as judicial precedents in international criminal law. It can be said with certainty that legal rules derived from such judgements are precedents unless a treaty or a principle of law emerged since 1945 clearly states otherwise. Whether a general principle has any significant role to play in this field begs questions, given that national penal practices are quite often divergent. Examples are ready: the grade of penalty, the characterisation of offences, or even the very rationale for penal punishment. It is not proposed to deal further with this aspect. On the other hand, opinions of the most highly qualified publicists of the various nations, as will be shown briefly below, always constitute a material source of law, in that their apt propositions or meticulous observations of the working of the law often persuade judges to adopt them in the formulation of a legal rule. II. Defence of duress, coercion, or necessity in military trials after the Second World War As the title implies, this paper looks at the military trials based on international instruments. There is a strong sense that the trials conducted after the Second World War serve as a fountain of persuasive, rather than coercive or binding, authority in respect of rules of international criminal law. They dealt with cases essentially identical to those a contemporary, international criminal tribunal would be required to decide. The law that they applied was a mixture of national penal precepts and public international law norms, which later became the font et origo of the law contained in, among others, the Statute of the ICTY. Duress is a long-established defence to criminal charge in municipal law.27 Its entrance into the practice of international law, however, took place with the

27 Cf. 11(i) Halsbury’s Laws of England (4th ed., 1990), 32; Black’s Law Dictionary (6th ed, 1990). Also, the cases cited in Halsbury’s, and in Dienstag, Fedorenko v. United States: War Crimes, the Defence of Duress, and American Nationality Law, 82 Columbia LR (1982), 120, 137, esp. n. 62 therein. As for continental jurisprudence, see Desportes and le Gunehec, Le Nouveau Droit Pénal (3e éd., 1996), 505– 07; Eser, Justification and Excuse, 24 American JCL (1976), 621; id., Defences in War Crime Trials, Israeli YHR (1994), 201, 213–14.

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organisation of international war crime trials in the 20th century.28 As a general introduction, the question of duress or coercion always arises with that of illegal superior orders which result in violations of the rules of jus in bello, or international humanitarian law, and which are often accompanied by threats of danger to the life or limb of the recipient or his family. Whilst the plea of superior order has been generally accepted as a mitigating fact,29 the status of the plea of duress is less certain. The Judgement of the International Military Tribunal (“IMT”) in 1946 touched upon the root of the defence of duress in its consideration of the plea of superior orders. With regard to the argument that most of the defendants acted under the orders of Hitler and therefore could not be held responsible for the acts committed by them pursuant to such orders, the IMT stated: That a soldier was ordered to kill or to torture in violation of the International Law of war has never been recognized as a defence to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible.30 The lack of choice in the face of superior orders, which are enforced by severe penalties in time of war, sums up the circumstance of duress. It is, however, entirely possible that not every superior order comes with the penalty of death in wartime; besides, chaos or defeats may seriously undermine the disciplinary structure in armies so that enforcing the orders is impossible, thus rendering ineffective the threat or penalty attached to the orders. The distinction between the plea of superior orders and the defence of duress is clear from the above statement: there are orders and orders. The question of duress only arises with such orders as leave no room for moral choice. In U.S. v. Flick et al.,31 compulsion, a term interchangeable with that of duress, was raised as a defence to Count One charging the use of slave labour. The treatment in the judgement of the defence was brief, with the tribunal merely relying on Wharton’s Criminal Law (12th edn., 1932), volume I, chapter III, subdivision VII, paragraph 126, which stated that “Necessity is a defense when it is shown that the act charged was done to avoid an evil both serious and irreparable; that there was no other

28 Cf. C.Bassiouni, Crimes against Humanity in International Law (1992), 438 et seq. 29 Cf. the London Charter, Control Council Law No. 10, and the Statutes for the Yugoslav and Rwandan Tribunals. Also, Y.Dinstein, The Defence of ‘Obedience to Superior Orders’ in International Law (1965). 30 22 The Trial of German Major War Criminals (Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany) (HMSO, London, 1950), 411, 447. 31 VI Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 (October 1946–April 1949), (US Government Printing Office, Washington, D.C.) (“Subsequent Proceedings”).


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adequate means of escape; and that the remedy was not disproportioned to the evil.”32 The noteworthy point is that the tribunal used “necessity” to mean “compulsion”.33 The tribunal also referred, for the underlying principle of the defence of necessity, to Lord Mansfield’s statement in Stratton’s Case,34 cited in Wharton’s book, which read: “Necessity forcing a man to do an act justifies him, because no man can be guilty of a crime without the will and intent in his mind. When a man is absolutely, by natural necessity, forced, his will does not go along with the act.”35 In view of the Prosecution’s argument that the defence of duress required proof of a clear and present danger, the tribunal found that such a danger did exist for some defendants in the instant case.36 It then added another statement from Wharton’s Criminal Law to the effect that the law of necessity defence was unlikely to be composed of precise rules, for “necessity creates the law, it supersedes rules, and whatever is reasonable and just in such cases is likewise legal.”37 The question it raises is whether necessity is capable of legal definition so as to avoid a multiplication of meanings that confuse rather than clarify. In U.S. v. Krauch et al. (the I.G.Farben case),38 the defence of necessity was raised in connection with Count Three charging the accused with participation in the enslavement and deportation to slave labour of civilians from occupied territories and of prisoners of war.39 On examining the jurisprudence of the trials of major German war criminals, the Flick case, and the Roechling judgement delivered by the General Tribunal of the Military Government of the French Zone of Occupation, the tribunal concluded thus: an order of a superior officer or a law or governmental decree will not justify the defense of necessity unless, in its operation, it is of a character to deprive the one to whom it is directed of a moral choice as to his course of action. It follows that the defense of necessity is not available where the party seeking to invoke it was, himself, responsible for the existence or execution of such order or decree, or where his participation went beyond the requirements thereof, or was the result of his own initiative.40 In U.S. v. Ohlendorf et al. (the Einsatzgruppen case),41 defence counsel raised the defence

32 Ibid., 1200. 33 It should be noted that necessity and duress in many aspects are governed by the same principles: J.Smith, Justification and Excuse in the Criminal Law (The Hamlyn Lectures) (1989), 84. 34 21 Howard’s State Trials, England, 1046–1223. 35 See n. 31 above, 1200–01. 36 Ibid., 1201. 37 Ibid. 38 Ibid., vol. viii. 39 Ibid., 1174 ff. 40 Ibid., 1179. 41 Ibid., vol. iv.

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on the basis that the accused acted as they had under “conditions of presumed necessity to act for the rescue of a third party from immediate, otherwise unavoidable danger”, and that, in terms of the Soviet law cited by him in this connection, “Acts of necessity are unrestrictedly permissible if they are necessary for the protection of higher interests insofar as the danger could not be averted by any other means”.42 The counsel further stated that “If the existence of the state or of the nation is directly threatened, then any citizen—not only those appointed for this purpose by the state—may act for their protection.”43 The tribunal summarily dismissed the arguments, emphasising the difference between patriotism and murder and noting that, in the course of making his statement, the counsel did not claim that, when the accused allegedly acted in contravention of international law, there was present the circumstance in which the German state found its survival to be endangered. The defence of necessity in the sense of duress was also raised in the case in connection with superior orders.44 In respect of their participation in the mass killings, the defendants pleaded military orders in order to show the lack of will of their own and to prove that they had acted under duress.45 The tribunal first clarified that superior orders in such circumstances must be unlawful orders, and that the harm caused by carrying out the orders must not be disproportionate to the harm incurred by disobeying the orders.46 It further stated that there is no law which requires that an innocent man must forfeit his life or suffer serious harm in order to avoid committing a crime which he condemns. The threat, however, must be imminent, real, and inevitable. No court will punish a man who, with a loaded pistol at his head, is compelled to pull a lethal lever. Nor need the peril be that imminent in order to escape punishment… When the will of the doer merges with the will of the superior in the execution of the illegal act, the doer may not plead duress under superior orders.47 In U.S. v. Krupp et al.,48 the tribunal observed: “The defence of necessity in municipal law is variously termed as ‘necessity’, ‘compulsion’, ‘force and compulsion’, and ‘coercion and compulsory duress’. Usually, it has arisen out of coercion on the part of an individual or a group of individuals rather than that exercised by a government.”49

42 43 44 45 46 47 48 49

Ibid., 462, 463. Ibid., 463. Ibid., 480–83. Ibid., 470. Ibid., 471. Ibid., 480. Ibid., vol. ix. Ibid., 1436.


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The tribunal also noted that the defence found recognition in the systems of various countries, including Germany and common-law countries. The German Criminal Code, Section 52, stated: “A crime has not been committed if the defendant was coerced to do the act by irresistible force or by a threat which is connected with a present danger for life and limb of the defendant or his relatives, which danger could not be otherwise eliminated.”50 The then Anglo-American rule was described in Wharton’s Criminal Law.51 However, most of the cases decided in accordance with existing rules concerned situations in which either greater interests required protection at the expense of lesser interests, or the participation in crime was coerced “under the immediate or present threat of death or great bodily harm”.52 Therefore, “[S]o far as we have been able to ascertain with the limited facilities at hand, the application to a factual situation such as that presented in the Nuremberg trials of industrialists is novel.”53 As for the nature of the defence of necessity, the tribunal stated that “[T]he plea of necessity is one in the nature of confession and avoidance.”54 It also distinguished the defence of necessity from that of self-defence by stating that “[S]elf-defense excuses the repulse of a wrong whereas the rule of necessity justifies the invasion of a right.”55 The tribunal went on to define the object of coercion thus: “Under the rule of necessity, the contemplated compulsion must actually operate upon the will of the accused to the extent he is thereby compelled to do what otherwise he would not have done.”56 The tribunal contemplated three types of circumstance that would cause duress, i.e., those “independent of human agencies”, “due to accident or misadventure”, or “exclusively due to the certainty of loss or injury at the hands of an individual or individuals if their orders were not obeyed”. In respect of the last type, the tribunal stated: “In such cases, if, in the execution of the illegal act, the will of the accused be not thereby overpowered but instead coincides with the will of those from whom the alleged compulsion emanates, there is no necessity justifying the illegal conduct.”57 In U.S. v. von Leeb et al. (the High Command case),58 the tribunal stated, in respect of the question of superior orders, that:

50 51 52 53 54 55

Ibid. See n. 32 above and accompanying text. See n. 48, 1437. Ibid., 1437. Ibid. Ibid., 1438. Here seemed to have arisen a question of interpretation, for it would be equally reasonable to regard self-defence as a justification and necessity as an excuse. 56 Ibid., 1439. 57 Ibid. 58 Ibid., vol. xi.

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The defendants in this case who received obviously criminal orders were placed in a difficult position, but servile compliance with orders clearly criminal for fear of some disadvantage or punishment not immediately threatened cannot be recognized as a defense. To establish the defense of coercion or necessity in the face of danger there must be a showing of circumstances such that a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong.59 The defence of duress was also put forward in cases decided by other military tribunals or commissions.60 British Military Courts a) In the Almelo trial,61 the defence pleaded superior force which, being in the form of threats of certain dire consequences for the accused themselves and their families, compelled the accused to commit the killing of a captured British airman and a Dutch civilian for which they were charged with a war crime. The court, however, dismissed the plea in the belief that the accused were willing executors of the illegal order they claimed to have received from above. b) In the Stalag Luft III case,62 the defence of duress was raised in connection with the orders issued by Hitler which authorised the shooting of recaptured Allied prisoners of war. The Judge Advocate, quoting in his advice to the court from Archbold’s Criminal Pleadings (1943 Edition, p. 19), stated: The same principle which excuses those who have no mental will in the perpetration of offences protects from the punishment of the law those who commit crimes in subjection to the power of others and not as a result of an uncontrolled free action proceeding from themselves. But if a merely moral force is used as threats, duress of imprisonment, or even an assault to the peril of his

59 Ibid., 509. 60 It is to be noted that the US military tribunals applied “fundamental concepts of Anglo-Saxon jurisprudence which have sunk their roots into the English common law and have been stoutly defended in the United States since its birth”: U.S. v. Milch, ibid., vol. ii, 778. 61 Law Reports of Trials of War Criminals (“Law Reports” hereafter), selected and prepared by the United Nations War Crimes Commission, published for the Commission by HM Stationery Office, 1947– 1949, vol. i, 35. 62 Ibid., vol. xi, 31, Re Max Wielen et al. 63 Ibid., 47. The Prosecutor quoted paragraph 10, chapter 7, the British Manual of Military Law, which stated: “An act may also be excused if committed by a person acting in subjection to the powers of others providing that he is compelled to act as he does by threats of death or serious physical injury continued during the whole time that he so acts and that the part taken by him in the unlawful act or acts is throughout strictly a subordinate part.”


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life in order to compel the accused to kill, this is no excuse in law.63 (emphasis added) c) In the trial of Gustav Jepsen et al.,64 the Judge Advocate advised the Court thus: Duress can seldom provide a defence; it can never do so unless the threat which is offered as a result of which the unlawful act is perpetrated is a threat of immediate harm of a degree far, far greater than that which would be created if the order were obeyed… If you are contemplating that possibly this threat of death may provide a defence then let me ask you not to give effect to it unless you think that he really was in danger of imminent death and that the evil threatened him was on balance greater than the evil which he was called upon to perpetrate.65 d) In the trial of Valentin Fuerstein et al., the Judge Advocate advised the Court that: There is, further, a defence which to some extent is akin to that of superior orders, and that is the defence which I may describe as the defence of ‘duress and coercion’… Now that defence of ‘duress and coercion’ is not a defence in law. You are not entitled, even if you wish to save your own life, to take the life of another….66

Canadian Military Courts In the trial of Robert Holzer et al., duress was pleaded by Holzer for the killing of a Canadian prisoner of war for which he was tried. The Judge Advocate stated: The Court may find that Holzer fired the shot at the flyer under severe duress from Schaefer, actually at pistol point, although there is testimony in this regard. The threats contemplated as offering a defence are those of immediate death or grievous bodily harm from a person actually present but such defence will not avail in crimes of a heinous character such as the Court might find existed in this case. As to the law applicable upon the question of compulsion by threats, I would advise the Court that there can be no doubt that a man is entitled to preserve his own life and limb, and on this ground he may justify much which

64 65 66 67

Ibid., vol. xv, 172–73. Ibid., 172. Ibid., 173. Ibid., vol. v, 15–16. See also ibid., 19–22, for the useful collection of various States’ law providing for defences of necessity and superior orders.

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would otherwise be punishable… There is no doubt on the authorities that compulsion is a defence when the crime is not of a heinous character. But the killing of an innocent person can never be justified.67 The plea of duress was thus regarded by the tribunals as one form of the plea of necessity. The UN War Crimes Commission, for one, found it not always easy to distinguish between the pleas involving the element of necessity.68 It is nonetheless possible to deduce from the above citations certain criteria for the plea of duress in war crime trials. First, there is a manifestly illegal order. Secondly, there is no moral choice left for the recipient of the order to disobey it or to cause it to be withdrawn or revised. Thirdly, moral choice is closed to him because of the threat of a grievous bodily harm or a present or imminent danger to the life of the recipient of the order or his immediate family.69 It should be noted that the standard of English common law, which disproved self-preservation at the expense of another person’s life, was not followed by the US military tribunals. A further comment is that the condition of proportionality between greater harm and lesser harm in connection with the implementation of the illegal order may not be easy to fulfil even in cases in which only the life of the recipient of the order would be endangered if he did not kill under the order dozens of people or more. For it is difficult for even a reasonable man to hold that his life does not amount to the greater interests in such cases and should therefore be relinquished, and he might think that the order could well be carried out by others after he was punished severely for disobeying the order. Fourthly, the accused has no will or intent to act in the way as demanded by the order, although he has knowledge of the consequences of his act in pursuance of the order. These four criteria constitute the concept of duress in the context of international war crimes trials, as evidenced by the military trials considered so far. III. The admission of the plea of duress; the plea as a defence or mitigating factor The heading may be inelegant in that it harks back to the criteria listed in the previous section. It touches upon two points. First, if the plea is admitted, it must be because it has fulfilled the criteria for the rule of duress. The criteria precede the admission of the plea. Secondly, there is a distinction between a defence and a mitigating factor, if the former is generally understood as leading to exoneration or acquittal by reducing or eliminating the liability or culpability of the accused, whilst the latter shows its imprint in the adjustment of the penalty. Whether a plea of duress is treated in judicial practice as a defence or mitigating factor, it tends to lead

68 Ibid., vol. xv, 155. 69 Punishment in the form of dishonourable dismissal or various terms of confinement would not seem to suffice to constitute such danger: cf. Stalag Luft III, n. 62 above and accompanying text.


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to a lighter sentence or no sentence at all. Both points tend to show the distinctive manner in which the plea of duress operates on the international plane. The first point relates to the way in which the plea of duress has been accepted by previous tribunals,70 and it leads to certain comments. First, the existence of a present and imminent danger threatening grievous bodily harm or death is a crucial element for the plea of duress to be admitted, on the condition that the other three criteria of the concept of duress could be presumed to exist. Secondly, if the danger threatened is real, there remains to be answered the question as to whether the defendant had voluntarily placed himself in a situation or position which later gave rise to the circumstance of duress, and whether the defendant had any opportunity to extricate himself from an illegal order after the circumstance arose. Thirdly, proof is required to show a bona fide belief on the part of the defendant as to the presence or threat of danger. There have been certain cases in which duress was admitted under these conditions.71 The second concerns the different nature ascribed to the plea by the tribunals.72 In most cases, the plea of duress would constitute a defence if it were admitted by courts. It is sometimes a partial defence, if the crime at issue is of such severity that the harm it has brought about is disproportionately greater than would have been if the interests to be preserved in the circumstance of duress were not protected by committing the crime. Indeed, duress is treated in municipal law as a general defence, often appearing in the General Part of a penal code. There is thus no need to characterise it also as a mitigating factor. IV. Judicial decisions as a source of international criminal law

70 U.S. v. Milch, Subsequent Proceedings (n. 31 above), vol. ii, 791–793 (the plea failed because of the shortage of proof of the lack of will or intent on the part of the defendant); the Flick case, ibid., vol. vi, 1201–02 (the tribunal admitted the plea of duress raised in behalf of the defendants Steinbrinck, Burkart, Kaletsch and Terberger, on the basis that the evidence clearly established the existence of “clear and present danger” in the form of the Reich reign of terror); the I.G.Farben case, ibid., vol. viii, 1174 (the tribunal rejected the plea on the ground that the projects at Auschwitz and Fuerstengrube were privately operated by Farben, “with considerable freedom and opportunity for initiative on the part of Farben officials connected therewith”, that the choice of the Auschwitz site and the erection of a plant thereon were not the result of compulsion, and that involuntary labour was used therein with the initiative on the part of Farben officials); the Einsatzgruppen case, ibid., vol. iv, 470, 480–83 (the tribunal rejected the plea because non-compliance with the orders would entail only dismissal or transfer, and certain defendants obeyed them without even trying to raise objection). 71 Cf. Prosecutor v. Erdemovic, Case No. IT-96–22-A, Judgement, 7 October 1997, Judge Cassese, Separate and Dissenting Opinion, paras. 35–39. 72 Cf. the Flick case, Subsequent Proceedings, n. 31 above, vol. vi, 1194, 1202, 1220–22 (the tribunal accepted the defence with regard to the defendants Steinbrinck, Burkart, Kaletsch and Terberger, who were consequently found not guilty under Count 1. The defence was denied to Flick and Steinbrinck under Count 4, but was accepted as a mitigating factor).

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The consideration of the question of duress as a defence in international criminal proceedings has its starting point in the fact that defences including that of duress have been a long-established institution in national criminal law, having undergone few changes over the ages. Unlike the creation of new categories of crimes or amelioration of punishments due to modern conditions, the defence of duress can rightly be said to belong to the category of concepts in criminal law that are proved to have been resilient in the face of social changes. However, this proposition applies equally to the long-standing rift between the approaches of common law and civil law countries, in particular in relation to serious offences.73 Nonetheless, it is clear that there is an antecedent source in respect of the defence of duress on the international plane. The question is whether we could still assert that it is the judicial decisions studied in this paper, rather than the antecedent source of municipal law, that forms the basis for the formulation of the parameters of the defence. Considering the gaping void between the circumstances in which a domestic offence and an international crime are committed, the answer to the above question is a positive one. There is no need to retrace the national legislation examined by the military tribunals, unless an attempt is made to discover a general principle of law on the basis of a survey of national law. However, such an attempt would face two difficulties. First, a defence is more in the nature of a legal rule, rather than a principle underlying the rule. Penal codes define the defence without the necessity of stating beforehand a certain general principle which, even revealed through research, is a quite different matter from the defence. Secondly, a proposed survey would have to cover both the original sources of reference to national law, which significantly underpinned the military trials with regard to the defence of duress, and those of the contemporary legal systems, so that the change or development in the content of the defence could be taken into account. In this connection, it is necessary to be aware of the issue as to whether such a change or development could be recognised as part of international law. The approach this paper is arguing for is that suggested by Judge Li’s Dissenting Opinion: to study the military trials and to use them as a source of law. It happened that the trials did contain materials on the defence of duress and lengthy perusal of the defence in the context of concrete cases. It is further submitted that the general defence of duress contains three criteria in order to be admitted by an international criminal tribunal. First, there has to be an illegal, superior order, recognised as such by the person to whom the order is directed.

73 Cf. Prosecutor v. Drazen Erdemovic, Case No. IT-96–22-A, Appeals Chamber, 7 October 1997, the survey at 41–56 of the Joint Separate Opinion of Judge McDonald and Judge Vohrah. Cf. S.Yee, The Erdemovic Sentencing Judgement: A Questionable milestone for the International Criminal Tribunal for the former Yugoslavia, 26 Georgia JICL (1997), 263; O.Swaak-Goldman, Prosecutor v. Erdemovic, 92 AJIL (1998), 282; D.Turns, The International Criminal Tribunal for the former Yugoslavia: the Erdemovic case, 47 ICLQ (1998), 461.


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Secondly, the order has to be accompanied for its implementation by a present and imminent danger to the life or body of the recipient of the order or those of his close family, leaving him with no moral choice but to comply therewith. Thirdly, the recipient, though knowing of the consequences of following the order, has no will or intent of his own to act in the way required by the order. There is a fourth one I hesitate to add, because it is controversial and involves extra-juridical considerations. It requires the person concerned to weigh up the interests he will jeopardise and those he will protect by following the superior order. If this weighing exercise is a legal entitlement of the person, it could be argued that that would lead to a onesided decision on his part all too often. However, if this exercise is only open to judicial decision, it could also be said that the court called upon to weigh the choices would not understand the circumstances in which the person concerned found himself. Here we can see that there may be questions in law not readily open to legislation, which should, therefore, be left to precedents. The last remark is that precedents in this field of international law are persuasive authorities, rather than binding decisions. This is clear from the fact that there is no relationship between the military tribunals and modern-day international tribunals. Deference shown to the decisions of the military tribunals is due to the fact that cases dealt with by the two groups of tribunals are so similar that the theory of precedents may instil a considerable measure of certainty in the development of jurisprudence in respect of international criminal cases, and that the application of this theory is strengthened by the reality that international decisions made 50 years ago reflected precepts of municipal law that are still functional in national systems today. No disquietude will be echoed by States towards this effort in establishing a consistent body of international jurisprudence, in the absence of treaties, customs, and general principles of law that they recognise. Thus, the Rome Statute of the International Criminal Court, adopted at Rome on 17 July 1998, in Article 21, provides that “The Court may apply principles and rules of law as interpreted in its previous decisions”. Given that Article 21 (1) obligates the Court to apply a hierarchical system of law, including the Statute, Elements of Crimes, its Rules of Procedure and Evidence, applicable treaties, principles and rules of international law, and general principles of law derived by the Court from national laws of legal systems of the world, Article 21 (2) is not a resounding endorsement of the role of precedent, since the Court is not required to apply precedent. However, it is clear that rules under Article 21 (1) will be interpreted by the Court, and that the Court will be free under Article 21 (2) to apply its own interpretations in later cases. No restriction is placed on the phrase “principles and rules of law” in Article 21 (2). Judicial decisions in the context of the Rome Statute are no longer a “subsidiary means for the determination of rules of law”. The significance of this change should not be underestimated.

Part III

Substance and theories of international law

6

The concept of “war crimes” Georges Abi-Saab*

I first met Professor Li Haopei on his election to the Institut de droit international in 1985 and was pleasantly surprised later on to find myself beside him on the bench of the International Criminal Tribunal for the Former Yugoslavia (ICTY) when it was established in 1993. We both sat on the Appeals Chamber and worked closely together, particularly during the early pioneering period of institution-building which witnessed inter alia the drafting of the Rules of Procedure and Evidence. It was through this close contact that I came to know better Judge Li and to appreciate his intellectual and human qualities: his mental alertness, logical rigour and argumentative vigour, in spite of his great age; and his genuine interest and warm friendship that extended to all those who surrounded him. I can still see him in his office with his caring daughter, who is also a professor of international law, and his faithful assistant, the co-editor of this volume, working hard into the early evening when most of us were leaving the building. To all of us, he was the respected and beloved elder. One of the daunting tasks of the Tribunal was, and still is, to elucidate the applicable law, which is largely customary and rather fleeting, notwithstanding its cursory rendering in the Statute. Concepts such as war crimes, crimes against humanity and genocide seem clear from afar. But the closer one gets to them, the greater the blur that appears to surround them. It was my privilege to hear with Judge Li the defense interlocutory appeal on jurisdiction in the Tadic case and to partake with him in the decision of the Chamber on that appeal;1 a fundamental decision which shed new light on many aspects of the law, including the vexed question of the applicability of the concept of war crimes in non-international armed conflicts. It is therefore not unbefitting, in a volume dedicated to the memory of Judge Li, to analyze the concept of war crimes and trace its evolution, a process in which he effectively participated.

* 1

This essay owes much to the valuable assistance of my spouse, Dr. Rosemary Abi-Saab, who also knew well Judge Li and remembers him with affection. ICTY (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, The Prosecutor v. Dusko Tadic (IT-94-I-AR72), 2 October 1995. 99

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I. Origins and evolution It is difficult to trace with any certitude the origins of the concept of “war crimes”; a concept that has evolved with the codification and progressive development of the law of armed conflicts, and more particularly with the establishment of international criminal tribunals. It had not acquired a clear and stable normative content in contemporary international law until the Judgement of the Nuremberg Tribunal after the Second World War.2 Historically, the question arose in practice for belligerent States to determine the acts committed in time of war for which they could try the combatants or civilians belonging to the enemy, or possibly to a third, neutral State (as they could proceed a fortiori and without any restriction from international law, against their own nationals).3 The concept of war crimes was thus initially related, in international law, to the delimitation of the penal jurisdiction of States to prosecute and punish, rather than to the definition of the incriminated acts and the attendant penalties. This latter task was left to municipal law, and more particularly to military codes. The role of international law was thus limited in this respect to the recognition of the criminal jurisdiction of the belligerents over the perpetrators of certain categories of acts. However, this role becomes more intrusive once international law imposes on the belligerents the obligation to prosecute these individuals. For, according to classical international law, the violation of the rules of the jus in bello engaged the responsibility of the belligerent State and not that of the individual who committed the violation. Individual criminal responsibility deriving directly from international law developed discretely, by stages, via the obligation to punish the individuals who commit certain violations of the jus in bello. I.A. From the Lieber Code to the Second World War

I.A.1. The First Codifications The principle of criminalizing violations of the laws and customs of war appears already in the first modern effort to codify the laws of war, i.e., the Lieber Code of 1863,4 although the idea of repressing and sanctioning violations is embedded in the very concept of the laws and customs of war and, as such, goes back well beyond

2 3 4

For a first attempt to define “war crimes” in the context of the First World War, see n. 12 and accompanying text. This approach is clearly illustrated by the definition of “war crimes” in the British Manual of Military Law of 1929 (Chap. XIV, § 441) as “the technical expression for such an act of enemy soldiers or enemy civilians as may be visited by punishment or capture of the offenders”. Text reproduced in, D.Schindler & J.Toman (eds.), The Law of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents (2nd ed., 1981), 3.

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that instrument.5 Prepared by Francis Lieber in the context of the American Civil War, this Code was promulgated by President Lincoln in 1863 as General Order No 100, under the title “Instructions for the Government of Armies of the United States in the Field”. It enunciated the principle of individual criminal responsibility for violations in several of its provisions such as article 44, which reads: All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense. A soldier, officer or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior.6 Notwithstanding its status as a municipal law instrument, this comprehensive and detailed codification exerted a great influence on the subsequent efforts to codify the laws of war on the international level, as well as on numerous national military codes and manuals. It also largely inspired the Brussels Conference of 1874, which was convened at the invitation of the Czar of Russia. The ensuing “Project of an International Declaration Concerning the Laws and Customs of War”7—which was submitted to the Governments of participating States for mere consideration, but not for ratification—did not provide, however, for penal repression of violations. Private scientific efforts at codification continued within the framework of the Institute of International Law, culminating in the adoption in 1880 of the “Oxford Manual”,8 which was intended, according to the Institute, to serve as a model for national military codes and manuals, insuring their conformity with the laws and customs of war. It provides in its article 84: “Offenders against the laws of war are liable to the punishments specified in the penal law.”9

5

6 7 8 9

For earlier history, see in particular, H.McCourbey, War Crimes: The Criminal Jurisprudence of Armed Conflicts, 31 Revue de droit pénal militaire et de droit de la guerre (1992) (Nos 1–4); G.I.A.D.Draper, The Interaction of Christianity and Chivalry in the Historical Development of the Law of War, International Review of the Red Cross (Jan. 1965), 3; M.H.Keen, The Laws of War in the Late Middle Ages (1965); L.C.Green, The Contemporary Law of Armed Conflicts (1993), Chap. 18. Schindler & Toman (n. 4), 10; see also article 71, ibid., 13. Ibid., 27. This instrument is frequently called the “Brussels Declaration”. Ibid., 35. Ibid., 47. This is the first of 3 articles in Part III (concluding the Code) entitled “Penal Sanctions”. There is a short explanatory note before the article which reads: “If any of the foregoing rules be violated, the offending parties should be punished, after a judicial hearing, by the belligerent in whose hands they are”. There follows article 84 quoted above. After the article, the following comment is given as a prelude to the last two articles of Part III dealing with reprisals: “This mode of

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This specific mention of individual penal sanctions can be explained by the fact that the Oxford Manual, as the Lieber Code before it, was not intended as an international instrument but as a model for domestic legislation. The Hague Conventions of 1899 and 1907 and their attendant Regulations,10 did not provide for individual criminal responsibility for violations of the laws and customs of war codified therein. They remained at the level of state responsibility for such violations, which was expressly addressed for the first time in article 3 of Convention IV of 1907 (revising Convention II of 1899): A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.11 After the First World War, the Paris Preliminary Peace Conference appointed from amongst the Allied Powers a fifteen member “Commission on the Responsibility of the Authors of War and on Enforcement of Penalty”. Apart from the “responsibility of the authors of the war”, the Commission was also to inquire into and report on “the degree of responsibility…[of] members of the enemy forces [for] breaches of the laws and customs of war”, as well as on “the constitution and procedure of a tribunal appropriate for the trial of these offences”. In its report, the Commission included a long list of 32 acts characterized as “war crimes”.12 In Articles 228 to 230 of the Treaty of Versailles, Germany recognized the Allied Powers jurisdiction to try persons accused of violations of the laws and customs of war as well as its obligation to hand over such accused persons to them.13 None of these provisions was implemented, however. They met with heavy resistance in Germany, which proposed to try its own nationals accused of war crimes before the Supreme Court of the Reich in Leipzig; a proposal which produced mock trials

10 11 12

13

repression, however, is only applicable when the person of the offender can be secured. In the contrary case, the criminal law is powerless, and, if the injured party deem the misdeed so serious in character as to make it necessary to recall the enemy to a respect for law, no other recourse than a resort to reprisals remains….” Ibid., 63. Ibid., 65. The UN War Crimes Commission, History of the UN War Crimes Commission and the Development of the Laws of War (H.M.S.O., 1948), 34. In a famous article, Professor Hersch Lauterpacht considered that one of the causes of the failure of the efforts to prosecute war criminals at the end of the First World War may have been the lack of distinction in this very long list between the mere violations of the laws and customs of war and those among them that constitute war crimes, in the strict sense of the term. H.Lauterpacht, The Law of Nations and the Punishment of War Crimes, 21 BYIL (1944), 78. A similar provision was included in the Treaty of Sèvres of 1920 between the Allied Powers and Turkey. Moreover, article 227 of the Treaty of Versailles provided for the trial of Kaiser Wilhelm II before an international tribunal “for supreme offense against international morality and the sanctity of treaties”, in other words, for resorting to war; an article prefiguring the “Crimes against Peace” of the Nuremberg Charter, but which remained a dead letter.


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where only 13 out of 901 cases led to convictions with insignificant sentences that were not even executed.14 I.A.2. The Geneva Conventions before the Second World War The early history of the Geneva Conventions reveals a timid movement towards the recognition of individual criminal responsibility for violations of jus in bello. The first “Convention for the Amelioration of the Condition of the Wounded in Armies in the Field” of 1864 did not address at all the issue of violations and their sanction.15 The question appears for the first time in the first revision of the Convention in 1906. According to article 28 of the revised Convention, States Parties undertake to provide in their municipal law for the criminalization of the violations of the Convention in two instances: In the event of their military penal laws being insufficient, the signatory governments also engage to take, or to recommend to their legislatures, the necessary measures to repress, in time of war, individual acts of robbery and ill treatment of the sick and wounded of the armies, as well as…the wrongful use of the flag and brassard of the Red Cross by military persons or private individuals not protected by the present convention.16 During the second revision of the Convention in the 1929 Diplomatic Conference, the ICRC proposed to add at the end of article 28 the following clause: “and in general all acts contrary to the provisions of the Convention”.17 This idea was finally adopted as a separate article 29 which provided: The Governments of the high contracting Parties shall also 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.18 Paradoxically, however, the new “Convention relative to the Treatment of Prisoners of War”, which was adopted at the same time in 1929, did not mention anything about violations of its provisions and their repression. 14 The United Nations War Crimes Commission (n. 12), 48. 15 A draft article 10 that failed to be adopted provided “Persons without the right to wear the armlet, who assume it for the purpose of committing acts of espionage, shall be punished with the full rigour of military law”. Jean Pictet (ed.), The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: Commentary (ICRC, 1952), 353, n. 1. 16 During the Diplomatic Conference of 1906 for the revision of the Convention, the fourth Committee, which examined the question of repression of violation, adopted by a large majority a draft which provided for the repression of all violations without distinction. However, in the final report of the drafting committee, this draft was replaced by article 28 reproduced above. Ibid., 355. 17 Ibid., 356. 18 See also article 30 of the same Convention.

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Thus, until the end of the Second World War, the criminalization of violations of the rules of jus in bello, i.e., the definition of war crimes and attendant penalties, was left to the belligerent States themselves and their municipal law (even though their jurisdiction to do so could only be exercised by reference to, and within the limits of the rules of jus in bello, and its exercise was, in certain cases, in fulfilment of a conventional obligation). A quantum leap took place, however, when international law undertook to define “war crimes” directly, instead of leaving it to municipal law. I.B. The Post-War Era

I.B.1. The Nuremberg Trials While the undertaking by the Allied Powers to establish a United Nations Commission for the Investigation of War Crimes goes back to 1942, the intention to prosecute and punish war criminals was clearly expressed for the first time in the “Declaration on German Atrocities in Occupied Europe” of 30 October 1943, better known as the “Moscow Declaration”, in which the Governments of the US, the UK and the USSR, stated inter alia that: Those German officers and men and members of the Nazi party who have been responsible for, or have taken a consenting part in the above atrocities, massacres and executions, will be sent back to the countries in which their abominable deeds were done in order that they be judged and punished according to the laws of these liberated countries…without prejudice to the case of the major criminals, whose offences have no particular geographical localization and who will be punished by the joint decision of the Governments of the Allies.19 On the 8th of August 1945, following upon the Moscow Declaration, the Governments of the US, France, the UK and the USSR, signed the “London Agreement”, which provided in its first article for the establishment of an International Military Tribunal (IMT),

19 The full text of the Moscow Declaration is reproduced as Annex I in UN, The Status and Judgement of the Nuremberg Tribunal: History and Analysis (Memorandum of the Secretary-General) (A/CN 4/5, 3 March 1949), 94. 20 Ibid., Annex II, 96. Nineteen other countries from amongst the United Nations subsequently acceded to the London Agreement as was provided for in its article 5 (ibid., 3).


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For the trial of war criminals whose offences have no particular geographical location whether they be accused individually or in their capacity as members of organizations or groups or in both capacities.20 The Statute of the IMT was annexed to the London Agreement and formed an integral part of it. Article 6 defined the jurisdiction of the Tribunal as follows: The Tribunal…shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: a) Crimes against peace… b) War crimes… c) Crimes against humanity…21 It is paragraph (b) of article 6 that provides, for the first time in an international instrument, a definition of “war crimes” as “violations of laws and customs of war” followed by a non-exhaustive list of acts considered as falling within this category: b) War crimes namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity. In its judgement, in response to the arguments of the defense, and bearing in mind the principle of legality, nullum crimen, nulla poena sine lege, the Tribunal stated that while it is bound by the definition of war crimes as formulated in article 6(b) of the Statute, the characterization as war crimes of the acts enumerated therein does not derive exclusively from this provision, but from general international law as well: …the crimes defined by Article 6, section (b), of the Charter were already recognized as war crimes under international law. They were covered by articles 46, 50, 52 and 56 of the Hague Convention [sic, read Regulations] of 1907, and Articles 2, 3, 4, 46 and 51 of the Geneva Convention of 1929. That violation of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit argument.22 21 Ibid., 100. “Crimes against humanity” was a new category introduced to cover substantially the same acts as “war crimes”, except that they were committed against persons who were not protected by the jus in bello (the nationals of the belligerent whose troops commit the atrocities and stateless persons). 22 Judgement of the International Military Tribunal for the Trial of Major German War Criminals, Nuremberg, 30th September and 1st October 1946 (H.M.S.O., 1946), 64.

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Moreover, the Tribunal affirmed that the rules figuring in Hague Convention No. IV of 1907 and its attendant Regulations, whose application was contested by the defense on the basis of the si omnes clause, “by 1939, were regarded as being declaratory of the laws and customs of war which are referred to in Article 6(b) of the Charter”.23 In other words, they were, by 1939, part of general international law. The International Military Tribunal for the Far East, which later sat in Tokyo, followed the rationale of the Nuremberg Judgement as far as war crimes are concerned. Furthermore, soon after the Nuremberg Judgement, by its Resolution 95(I) of 11 December 1946, the General Assembly of the United Nations unanimously affirmed “the principles of international law recognized by the Charter of the Nuremberg Tribunal and the Judgement of that Tribunal”, and by its resolution 177 (II) of November 1947, it entrusted the newly established International Law Commission (ILC) with the “formulation” of these principles. The report of the ILC, adopted in its second session in 1950, defines war crimes as the violations of Laws and customs of war, reproducing almost verbatim Article 6(b) of the Statute of the Nuremberg Tribunal.24 I.B.2. The Geneva Conventions of 1949 The Geneva Conventions of 1949, adopted shortly after Nuremberg, do not use the term “war crimes” in their provisions relating to “Repression of Abuses and Infractions”.25 Instead, certain violations are classified as “grave breaches” if committed against persons or property protected by the Convention.26 The definition of these “grave breaches” in common articles 50/51/130/147 is, however, very close to that of “war crimes” in the Statute of the Nuremberg Tribunal. Indeed, grave breaches are enumerated as those involving: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. This formulation is identical in the first two Conventions (articles 50 and 51 respectively). It varies somewhat in the third and fourth Conventions owing to the

23 Ibid., 65. 24 Report of the International Law Commission on the Work of its Second Session from 5 June to 29 July 1950 (A/1316), 13. 25 This is the title of Chapter IX in the first Convention and Chapter VIII in the second. There are no corresponding chapters in the last two Conventions, where the same provisions appear in Part VI on the “Execution of the Convention”. 26 For the definition of the “protected persons” by the four Geneva Conventions, see articles 13/13/4/4.


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difference of their subject-matter. The last category of acts (“the extensive destruction and appropriation of property…”) does not figure in article 130 of the third Convention on Prisoners of War, while the following acts are added: compelling a prisoner of war to serve in the forces of the hostile power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention. Similarly, article 147 of the fourth Convention on the Protection of Civilians (while not excluding the last category), adds the following acts: Unlawful deportation or transfer or unlawful confinement of protected persons, compelling protected persons to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, the taking of hostages…. The first Additional Protocol to the Geneva Conventions, relating to the Protection of Victims of International Armed conflicts (Protocol I), adopted in 1977, having integrated and developed in its provisions the bulk of the rules of combat figuring in the Hague Regulations, extended the category of grave breaches to include inter alia several violations of these rules (violations which were obviously not mentioned in the Geneva Conventions whose ambit is limited to the protection of nationals of belligerents hors de combat, who are in the power of the enemy). Thus, paragraphs 3 and 4 of Article 85 of Protocol I add the following acts:

3. …the following acts shall be regarded as grave breaches of this Protocol, when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health: a) making the civilian population or individual civilians the object of attack; b) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a) (iii); c) launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a) (iii); d) making non-defended localities and demilitarized zones the object of attack; e) making a person the object of attack in the knowledge that he is hors de combat; f) the perfidious use, in violation of Article 37, of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or this Protocol.

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4. …the following shall be regarded as grave breaches of this Protocol, when committed wilfully and in violation of the Conventions or the Protocol: a) the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in violation of Article 49 of the Fourth Convention; b) unjustifiable delay in the repatriation of prisoners of war or civilians; c) practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination; d) making the clearly recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, for example, within the framework of a competent international organization, the object of attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse Party of Article 53, sub-paragraph (b), and when such historic monuments, works of art and places of worship are not located in the immediate proximity of military objectives; e) depriving a person protected by the Conventions or referred to in paragraph 2 of this Article of the rights of fair and regular trial.27

I.B.3. International Criminal Tribunals Recent tragic events in the early nineties, particularly in the former Yugoslavia and in Rwanda, brought the issue of war crimes back into the limelight and led to the establishment of two ad hoc international criminal tribunals; a development which culminated in the adoption of the Statute of a permanent International Criminal Court in 1998. I.B.3.i. The ad hoc Tribunals for the Former Yugoslavia and for Rwanda By its resolution 808 (of 22 Feb. 1993), the Security Council of the UN, acting under Chapter VII of the Charter, decided to establish “an international tribunal… for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991” (ICTY). Two months later, by its resolution 827 of 25 May 1993, it adopted the Statute of the Tribunal, as proposed by the Secretary General in his report of 3 May 1993.28 A little more than a year later, by its resolution 955 of 8 November 1994, the 27 Paragraph 3 above starts with the proviso: “In addition to the grave breaches defined in Article 11”. This article entitled “Protection of Persons”, prohibits endangering the physical or mental health of persons who are in the power of the adverse Party and more particularly medical or scientific experimentations or removal of organs which are characterized in paragraph 4 of that article as “grave breaches” of the Protocol. 28 S/25704 and Add. 1 (3 May 1993).


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Security Council, also acting under Chap. VII of the Charter, established an International Criminal Tribunal for Rwanda (ICTR), whose Statute follows closely that of the ICTY, with a major exception relating to the jurisdiction ratione materiae of the Tribunal, the Rwandan conflict being purely internal. Article 1 of the Statute of the ICTY provides that the Tribunal has “the power to prosecute persons responsible for serious violations of international humanitarian law…” (Emphasis added). These violations are specified in articles 2 to 5. Article 2 enumerates the “grave breaches” of the Geneva Conventions of 1949, without referring, however, to those found in Protocol I. Article 3 covers “violations of the laws and customs of war”, i.e., “war crimes” in the Nuremberg sense, which are defined as follows: …Such violations shall include, but not be limited to: a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings or buildings; d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property.29 In the same vein, the ICTR is competent, according to article 1 of its Statute, “to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighboring States”. These violations are specified in articles 2 to 4 of the Statute; article 2 covering “genocide” and article 3 “crimes against humanity”. Article 4, for its part, covers “serious violations of Article 3 common to the Geneva Conventions…and of Additional Protocol II…”. According to this Article, these violations include, without being limited to: a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; b) Collective punishments; c) Taking of hostages; d) Acts of terrorism;

29 Articles 4 and 5 cover “genocide” and “crimes against humanity”.

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e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; f) Pillage; g) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples; h) Threats to commit any of the foregoing acts.

I.B.3.ii. The International Criminal Court (ICC) The initial drive of the UN General Assembly and its ILC, following upon their affirmation of the principles of international law recognized by the Charter and the Judgement of the Nuremberg Tribunal, to elaborate “a Code of Crimes Against the Peace and Security of Mankind”, and to examine the possibility of establishing an international judicial organ for the trial of persons charged with such crimes, was arrested by the advent of the Cold War. But it revived, to some extent at the end of the eighties, as the Cold War subsided, with the resumption of the work of the ILC on the Code and the examination in this context of the possibility of establishing an international criminal court. The establishment of the two ad hoc tribunals, by providing the proof of practical feasibility of such a jurisdiction, accelerated the movement which culminated in the adoption, in July 1998 in Rome, of a convention incorporating the Statute of the International Criminal Court. The Statute comprises a very lengthy article 8, entitled “war crimes”, which represents the most recent and most detailed articulation of this concept to date in a formal international legal instrument.30 II. Analysis of the concept II.A. Distinction of war crimes from other similar crimes i. In the first place, it is necessary to distinguish the concept of “war crimes” in international law from what it can or may be in municipal law. The latter is generally perceived as covering all crimes related to war, including those exclusively governed by municipal law, such as treason. Oppenheim, for example, distinguishes under the uniform designation of “war crimes” four “essentially different” categories of acts: 1) Violations of recognized rules regarding warfare committed by members of the armed forces, 30 A Draft Code of Crimes Against the Peace and Security of Mankind was adopted by the ILC in its 48th session in 1996 (A/CN 4/L 532 of 8 July 1996), and was submitted to the General Assembly which did not adopt it formally. This Draft was, however, largely overtaken by the Statute of the ICC which covers to a great extent the same grounds.


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2) all hostilities in arms committed by individuals not members of the enemy armed forces, 3) espionage and war treason, 4) all marauding acts.31 Yet, apart from the first category, the characterization of the remaining three as “war crimes” under international law is questionable, even though they may involve acts taking place in time of war (or in a war-like context). Thus, “marauding” is a common crime, which in some of its forms is indeed prohibited by the jus in bello. To the extent of this prohibition, it does not constitute a separate category, distinct from the other violations of the laws and customs of war, but is merely one of these violations. Beyond the specific limits of its prohibition by the jus in bello, it is not a war crime at all, even if it constitutes a crime under municipal law. Similarly, “espionage and war treason” are acts which can take place in time of peace as in time of war, can be committed by nationals or foreigners, whether belonging to a neutral or an enemy State. “Espionage” (and a fortiori war treason which is limited to nationals) is not regulated by the jus in bello, except in a passive or indirect manner, in the sense that it does not fall within its ambit and is left to the exclusive jurisdiction of municipal law, with no possible immunity deriving from international law, as a result, for example, of belonging to the armed forces of the enemy or acting on his behalf. The same applies finally to the “francs tireurs” who, like spies, do not enjoy the status of “legitimate combatants” and are similarly left to the exclusive jurisdiction of the custodian State, without any particular protection derived from the laws and customs of war (at least in their classical version). In consequence, the only category of acts that remains from this list, of which the criminal character is necessarily determined by reference to the jus in bello, is the first one, i.e., “serious violations of the laws and customs of war”. ii. The Statute of the Nuremberg Tribunal mentions in article 6 three categories of acts within the jurisdiction of the Tribunal: crimes against peace, war crimes and crimes against humanity. “Crimes against peace” are acts that do violate the law of war, but in its jus ad bellum dimension, not that of jus in bello. These crimes are necessarily limited to the summit of the State structure, i.e., to the leadership of the State that is in a position to take the decision to go to war in violation of the rules of international law. However, it is a basic premise of the law of war (or of armed conflict) radically to separate jus in bello from jus ad bellum, a premise without which it would be impossible to apply the fundamental principle that underlies the whole edifice of jus in bello, i.e., the principle of the equality of the parties. The acts and decisions constituting “crimes against peace” (the crime of “aggression”) take place before or up to the moment of the out-break of war (or

31 L.Oppenheim, 2 International Law (7th ed. by H.Lauterpacht, 1947), 567.

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ostilities), although they may be theoretically considered as “continuous” crimes, lasting as long as the war lasts. “War crimes” by contrast, as serious violations of the laws and customs of war, can only take place in the course of an armed conflict and only once it has started. “Crimes against humanity”, an innovation of the Charter of the Nuremberg Tribunal, was introduced basically to fill the gap in the protection afforded by the jus in bello to civilian populations, which did not cover the stateless or the citizens of the belligerent whose forces commit the atrocities. These atrocities would have constituted in most cases war crimes had they been directed against enemy nationals. This is why article 6 of the Charter of the Nuremberg Tribunal required that these crimes be committed “in execution of or in connection with” one of the other crimes covered by the Statute, (crimes against peace and war crimes) for them to fall within the jurisdiction of the Tribunal (a nexus or condition which has not passed into general international law). II.B. Definition of “war crimes” As mentioned above, the law of war in its classical representation as the jus in bello or “the laws and customs of war” that apply once a war breaks out, attributed the responsibility for violating its rules exclusively to the belligerent States and not to the individuals who committed such violations. Individual criminal responsibility for such violations under international law developed progressively and for certain of them only. “War crimes” can thus be defined as “the violations of the rules of jus in bello (renamed since the Geneva Conventions of 1949 as the law of armed conflict and more recently international humanitarian law), which entail, in international law, the personal criminal responsibility of the individuals who commit them”. In other words, international law attributes to these violations a penal consequence which goes beyond the traditional legal effect of violating its rules in terms of State responsibility According to this definition, not all violations of jus in bello are necessarily “war crimes”, under international law, though they may be sanctioned by national military codes, for disciplinary purposes for example. How can we then identify the violations that entail this individual criminal responsibility in international law? It is not enough, as is currently done, simply to use adjectives, by describing the violation as “serious” or “grave” or the violated norm, as “fundamental”. Such a question-begging approach is neither valid nor operational as a distinguishing criterion. In fact, for a violation of a rule of jus in bello to produce the special legal effect of entailing the criminal responsibility of the individual who commits it, one should prove not only the existence of the violated rule in international law, but also the parallel existence of a secondary rule, usually a customary one, ascribing to the former rule this special legal effect in case of violation. It is one of the technical failings of the Nuremberg Judgement, in my submission, to have telescoped these two stages of proof into one, by insisting on the importance of the violated rules, and their passage into general international law, without


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sufficiently addressing or providing proof of the secondary rule that ascribes to them this special legal effect.32 The progressive elaboration of the technical concept of “war crimes” has been accompanied by a parallel elaboration of their legal status and effects in international law. Thus, there is a widening consensus at present to consider that these crimes are “imprescriptible”, i.e., they are not subject to any statute of limitations, and that they are subject to “universal jurisdiction” in inter-state relations, i.e., that any State has jurisdiction to prosecute and judge persons accused of committing these crimes, in the absence of any connecting factor (situs of crime, nationality of accused or victim, or protection of State interests) apart from their presence on the State’s territory.33 II.C. “War crimes” and “grave breaches” Mention has already been made of the introduction in the Geneva Convention of 1949 of the legal regime of “grave breaches”, providing an exhaustive list of the violations of the conventions which are thus characterized, and engage in consequence the criminal responsibility of the individuals who commit them. The denomination “grave breaches” recalls the concept of war crime, and raises the question of the relationship between the two categories. A first answer to this question is provided by the ICRC Commentary on the Conventions: The actual expression “grave breaches” was discussed at considerable length. The USSR Delegation would have preferred the expression “grave crimes” or

32 The Tribunal cites on several occasions the articles of the Hague Regulations and the Geneva Conventions (of 1929) whose violations it considered as “war crimes” (e.g., in the quotation from the judgement cited in n. 22 above). But it does not address the secondary rule that attributes this special effect to them except in a very general, not to say rhetorical, way as in its famous dictum: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced” (ibid., 41); or still: It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized. (Ibid.) However, all the Tribunal managed to do, in order to substantiate these large affirmations, was to cite one (then very recent) case of 1942, decided by the US Supreme Court (Ex parte Quirin, 317 US 1, 63 S. Ct. 2 (1942)), which did not in fact involve “war crimes” under international law as defined above at all, dealing as it did with “spying and sabotage”. (Ibid.) 33 The United Nations Convention on the Imprescriptibility of War Crimes and Crimes Against Humanity of 1968 and the parallel European Convention of 1974. It should be noted that the opinio juris on the rule of imprescriptibility is much larger in scope than the parties to these two Conventions. Cf. Article 29 of the Statute of the International Criminal Tribunal.

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“war crimes”. The reason why the Conference preferred the words “grave breaches” was that it felt that though such acts were described as crimes in the penal laws of almost all countries, it was nevertheless true that the word “crimes” had different legal meanings in different countries.34 This pragmatic explanation does not however address the question of the logical relations between the two concepts; a question which was formally answered at last in 1977 by the First Additional Protocol, in its article 85(5), which provides: “Without prejudice to the application of the Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes.” Grave breaches are thus a species of a larger genus which is war crimes. But they are distinguished from the other species by two characteristics. The first relates to the “secondary rule” which enables us to identify among the violations of the jus in bello those which engage in international law the criminal responsibility of the individuals committing them. This secondary rule which is usually customary, is very difficult to establish; and its dodging was one of the major logical failings of the Nuremberg Judgement. In identifying the violations of the laws and customs of war that constitute war crimes (without however, providing the proof of the secondary rule establishing them as war crimes), the Nuremberg Tribunal did refer to several articles of the Geneva Prisoners of War Convention of 1929.35 Rather than leaving this difficult task of identification to the subjective determination of the judge (or another instance), the authors of the Geneva Conventions of 1949, by introducing the regime of “grave breaches”, have identified themselves the norms expressed in their provisions to whose violations the secondary rule applies. This conventional rendering of the secondary rule lifts the ambiguity that necessarily surrounds the proof of custom and constitutes a decisive advantage, particularly from a criminal law perspective, over the other species of war crimes. The second characteristic of “grave breaches” as a species of war crimes is the procedural component of their regime in the Conventions, which is provided in Common Article 49/50/129/146: The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its

34 Pictet (n. 15), 1 Commentary, 371. 35 See quotation cited in n. 22 above.


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own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case. This article imposes on States Parties two series of stringent obligations: in the first place, to complete their internal legislation criminalizing these acts; secondly to search actively for the persons accused of committing grave breaches who happen to be on their territory; and once arrested, to prosecute and judge them, unless the custodian State prefers to extradite them to another State that also seeks to judge them for the same grave breaches. In other words, the regime purports to be water-tight against impunity, by imposing on States parties the alternative obligation to prosecute or extradite, according to the principle aut dedere aut judicare. This principle is more stringent than that of “universal jurisdiction” largely recognized as applicable to war crimes in general, which is merely permissive.36 II.D. War crimes and non-international armed conflicts Until recently, it was generally considered that the ambit of war crimes was limited to armed conflicts of an international character. It should be recalled that the category of “crimes against humanity” was introduced in the Charter of the Nuremberg Tribunal mainly to overcome this limitation, by covering acts committed by persons belonging to a belligerent Party against its own nationals (or against stateless persons); acts which would have generally constituted war crimes had they been committed against enemy nationals. Similarly, the dominant interpretation of the regime of “grave breaches” limited its application to armed conflicts of an international character. The issue of the applicability of war crimes to internal armed conflicts was recently raised with the advent of international criminal tribunals and more particularly the ICTR, considering that the Rwanda conflict was exclusively internal. The question was thus put whether the Statute of the Tribunal had not violated the principle of legality, by retroactively criminalizing, in article 4, the violations of common article 3 of the Geneva Conventions of 1949 and of the Second Additional Protocol of 1977.37

36 Some writers contend that the principle aut dedere aut judicare applies to all war crimes. But this is a minority opinion. It should be recalled however that the “Draft Code of Crimes Against the Peace and Security of Mankind” (n. 30 above) applies this principle to all international crimes, including war crimes (but excluding aggression). Yet, as already mentioned, this Draft had no follow up. It should equally be noted that with the advent of international criminal tribunals, and to the extent that States are (or will be) under an obligation, in case of non-prosecution of an accused found on their territory, to “transfer” him to a competent international tribunal, this difference between “grave breaches” and “war crimes” will fade away. 37 Genocide and crimes against humanity did not raise this problem as, according to general international law, these crimes can take place in non-international armed conflicts and even in the absence of an armed conflict.

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While recent doctrinal effects shed light on the growing tendency in general international law towards such a criminalization,38 the decisive contribution in this regard came from the Appeals Chamber of the ICTY, in its interlocutory judgement on jurisdiction of 2 October 1995 in the Tadic case,39 that reached the conclusion, on the basis of a thorough survey of recent practice of States and international organizations, that “war crimes” in the sense of “serious violations of the law and customs of war”, as provided in article 3 of the Statute of that Tribunal, apply in internal armed conflicts according to general international law; but not the regime of “grave breaches”, as provided in article 2 of the Statute.40 The question of applicability of “war crimes” in internal armed conflicts was the basis of one of the great controversies at the Rome Diplomatic Conference for the establishment of the ICC. It led to the insertion of two sections on internal armed conflicts in the extremely lengthy article dealing with war crimes which emerged from these negotiations. These are sections (c) and (e) of the second paragraph of article 8, dealing respectively with violations of common article 3 of the Geneva Conventions (section (c)) as well as with a long list of 12 other crimes covering other serious violations of the laws and customs of war including those of Protocol II.41 II.E. General international law and its Statutory reflections An ultimate query relating to the concept of war crimes is raised by the problem of transcription of general international law into written legal instruments, particularly when it comes to transcribing the “secondary rule” which identifies and establishes certain violations of jus in bello as “war crimes” entailing the criminal responsibility of the individuals that commit them. The problem is even more delicate when such instruments do not have as their main purpose the codification of substantive law, but are drafted for other purposes, as is the case of the statutes of international criminal tribunals.

38 See, in particular, the percipient article of Theodor Meron, International Criminalization of Internal Atrocities, 89 AJIL (1995), 554. 39 Cited in n. 1 above. 40 It is to be noted that one of the judges envisaged, in a separate opinion, on the basis of the same survey of practice carried out in the judgement, the extension of the regime of “grave breaches” to internal armed conflict; an extension which could be seen as resulting either from a customary development or through a reinterpretation of the relevant articles of the Geneva Convention according to the principle of the “subsequent practice” of the parties (Separate opinion of Judge Abi-Saab, ibid.). 41 Three other provisions of article 8, of the nature of Safeguard clauses, also deal with non-international armed conflict: sections d and f of paragraph 2 which exclude from the ambit of sections c and e situations of internal disturbances and tensions, and paragraph 3 which safeguards the responsibility of governments to maintain law and order and of States to defend their unity and territorial integrity by all legitimate means.


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Indeed, one of the decisive arguments put forward in 1949 in favour of using the term “grave breaches” in the Geneva Conventions instead of “war crimes” was that the Conventions were not intended to serve as a criminal code, thus implying that the article enumerating these breaches had the exclusive purpose to designate the violations of the Conventions that entail the special effect ascribed by the Conventions to this category (i.e., identifying those violations of the Conventions to which apply the “secondary rule”), while leaving the detailed definition of the crimes themselves to the municipal law of the States Parties to the Conventions. In purporting to fulfil the same function, the Statute of the ICTY, in article 2, sins by timidity, by enumerating as “grave breaches” only those which figure in the Geneva Conventions, to the exclusion of the ones that were added by Protocol I in 1977. The reason for this exclusion is that they presumably do not pass the test of having “beyond any doubt become part of international customary law.”42 But the “grave breaches” listed in the Protocol are in their great majority serious violations of the Hague Regulations which are generally considered as “war crimes”, at least since Nuremberg. Moreover, the Statute says nothing in articles 2 and 3 (which are of interest here) about armed conflicts not of an international character. However, article 3, by providing a non-exhaustive list of “serious violations of laws and customs of war” (i.e., “war crimes” in the Nuremberg sense), leaves open the possibility of a direct “transfusion” into the Statute of general international law; a possibility that enabled the ICTY, in the exercise of its judicial function, to incorporate under a different label, what was left out in article 2, as well as tackle the great problem dodged in the Statute by its initial drafters, the issue of war crimes in internal armed conflicts. In this way, through jurisprudential adjustment and articulation, the Statute was adapted to general international law. On the other hand, the Statute of the ICTR, which was directly prepared by the Security Council, without passing through the legal services of the Secretariat, was criticized by the Secretary-General (or rather these legal services) as going beyond lex lata (which means that it did not respect the principle of legality) in its article 4, by extending the jurisdiction of the Tribunal to serious violations of Article 3 common to the Geneva Conventions…and of Additional Protocol II thereto”.43 The fallacy of this accusation was however subsequently demonstrated not only by the jurisprudence of the two Tribunals but also by the Statute of the ICC and in the long debates that led to its adoption. The Statutes of the two ad hoc Tribunals have thus served as an institutional vehicle for general international law; which law maintains its autonomy and superiority in their regard, while being naturally influenced by their judicial activities.

42 This reason can be gleaned from the Report of the Secretary-General (prepared by the legal services of the secretariat) that accompanied the draft Statute S/25704 (3 May 1993), para. 35. 43 S/1995/134 (13 February 1995), para. 12.

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The preparation of the draft Statute of the ICC started with the same idea: establishing an institutional structure that deals with substantive law only in a general manner and only to the extent necessary for the definition of the jurisdiction of the Court ratione materiae and the applicable law by it. The substantive law in question was supposed to be codified in the draft “Code of Crimes Against the Peace and Security of Mankind”. The approach changed, however, in the process, particularly under the influence of the United States; their argument being that it was impossible to accept the establishment of such a Court before knowing in detail the crimes which fall within its ambit. This led to the reopening for examination of the whole body of substantive law and submitting it in precipitation to an intense diplomatic negotiation, with all the dangers that such a situation entails for the final product. This final product is not limited, as far as “war crimes” are concerned, to the interminable article 8, but goes much further in detail to include the “elements of the crimes” (article 9) that have to be elaborated by the Preparatory Commission and approved by the Assembly of the States Parties. As far as article 8 is concerned, its inordinate complexity and length belie all the supposed virtues of codification. Moreover, as a codification, it goes well beyond general international law on certain subjects (especially as concerns war crimes in internal conflicts, ethnic cleansing, sexual crimes and crimes against UN material and personnel on mission); while on other subjects it falls well short of general international law (especially as concerns the protection of civilians against bombardments and the use of indiscriminate weapons of mass destruction, particularly nuclear weapons), reflecting the interests and the influence of those who championed these variations. These developments led to the introduction in the Statute of a safeguard, or “without prejudice” clause, in article 10 which (in contrast to the other Tribunals that miss no opportunity to affirm their fidelity to general international law) provides: Nothing in this Part [Part 2 on Jurisdiction, Admissibility and Applicable Law] shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. One is thus led to conclude, at least as things stand at present, that article 8, far from being a faithful snapshot, is but a mere “artist’s sketch” of war crimes in general international law. In the final analysis, it falls to the international criminal tribunals themselves, in the day-to-day exercise of their jurisdiction on the basis of their specific statutes (jurisdictio in Latin literally means “stating the law”), to elaborate and adapt the generic categories of general international law to the pathological realities of contemporary armed conflicts.

7

A new area of international law: the protection of maritime cultural property Kaare Bangert

I. Introduction The protection of maritime cultural property is a newly emerging area of international law.1 This new regime adds an immaterial “soft” dimension to hard-core legal interests such as the exploitation of natural resources. Moreover, as all States have a cultural past and identity, the new regime is of concern for all States. Throughout world history, sea-transport was fundamental for various cultures, from ancient, rich China to the marauding Viking communities of early Scandinavia. As a consequence, the seabed contains important archaeological evidence of the various world civilisations in the form of wrecks and other cultural objects. Both the definition of what constitutes cultural property and the extent of its protection are, however, a matter of controversy This paper will outline some of the constituent elements of this emerging regime. The protection of historical wrecks is chosen as an illustrative example, as this regime is the most developed at this point. This area of law is interesting not only because of its material content but also as a case study in the process of international law making. The emerging regime is created from interaction between the few general principles stated in treaty law and their often liberal interpretation in national legislation, thereby creating a customary law regime of its own. The starting point will be the framework in general treaty law. The focus will be on Article 303 of the 1982 Law of the Sea Convention, which states the main treaty rule. Article 149 of the 1982 Law of the Sea Convention is part of the special Arearegime, and a detailed analysis of this provision is beyond the scope of this paper. Article 149 will be included in so as far the Article is evidence of a general principle.2

1

The leading monograph is A.Strati, The Protection of Underwater Cultural Heritage (1995). Brice’s Maritime Law of Salvage (3rd ed. 1999), contains an excellent overview of salvage of historical wrecks. For a similar highly useful overview of selected State practice including UK and US national law and important major law of the sea treaties, see E.D.Brown, 1 The International Law of the Sea (1994); R.R.Churchill and V.Lowe, The Law of the Sea (1999); and D.P.O’Connell, The International Law of the Sea (1984), who treat the question within the framework of the general law of the sea. For evidence of a guarded early US position, see American Law Institute, 2 Restatement of the Law, Third, Foreign Relations Law of the United States (1987), 82–83. 119

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The main purpose of this paper is to argue that the wording of Article 303 makes room for a wider application than generally suggested. It is suggested that this interpretation not only solves some inherent conflicts in the law but is also supported by emerging trends in State practice. Without attempting to give an exhaustive analysis of this new regime, this paper will outline the practical issues behind the legal regulation of maritime cultural property and the basic general treaty-law relating to these issues, and to provide some perspectives on the future of the emerging law. The analysis will mainly be concerned with wrecks as the main cultural property, but the emerging regime covers other cultural objects as well. II. The issues: emerging conflict over maritime cultural property and the legal responses Wrecks and their legal status have caused legal conflicts throughout history. Wrecks and/or their cargo have often represented considerable commercial value, and early legislation mostly includes regulation of this aspect. The legal interests involved have, however, primarily been purely economic or in some cases in the safety of navigation which may be endangered by “dangerous wrecks”. The question of wrecks has been of growing importance in the last part of the 20th century due to the explosive development of amateur diving. The development of amateur diving is in itself a positive development and has broadened from purely professional to more casual leisure activities. The development was initiated by the emergence of new revolutionary scuba diving technology during the Second World War. This originally highly specialised equipment for underwater military operations was made available for general use at reasonable cost after the war. From the 1960s on it was possible for a single person with relatively little equipment to carry out extensive underwater exploration and excavation operations. The practical effect of this development was twofold: first, the number of potential salvage operations considerably expanded; second, the possibility for evasion of existing control procedures was vastly increased. Before this development of scuba diving, a salvage operation was a costly enterprise often involving one or two special salvage vessels, heavy equipment and specialist divers. As a consequence, salvage operations were visible and easy to detect from sea- or air-inspection. But after the development of the new diving technology, any small boat could be used as a platform for diving operations, and salvage activities were hard to distinguish from underwater swimming or fishing. Moreover, wrecks are natural targets for underwater swimming. Wrecks are often a natural refuge for fish and therefore a natural goal for fish watching or catching. Finally, wrecks often contain not only objects of pure souvenir value

2

For the genesis and interpretation of Article 149, see generally Strati, n. 1 above, 295–326 and the extensive references in the footnotes.

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but of commercial value as well, ranging from vases, bronze cannons, plates, furniture, and wine to silver and gold treasures. The popularisation of diving created enormous interest in wrecks on the seabed and new legal problems as to ownership and conservation procedures. In 1974 the Turkish authorities opined that all wrecks in the Turkish territorial sea had been the objects of illegal operations.3 In 1984 Danish authorities estimated that in a distance of 24 nautical miles from the baselines ca 10,000 wrecks of historical interest and ca 40,000 registered wrecks could be found.4 The extent of operations is not registered, but the Royal Commission of Historical Monuments of England estimated that ca 70,000 sports divers carried out about 1.5 million diving operations in 1992. 5 Mostly, amateur diving activities were uncontroversial. But a cause of major concern was the growing number of illegal searches for treasures and other items of commercial value creating a booming black or grey market in maritime cultural objects. Not only was considerable damage caused due to the use of explosives, but also underwater fights occurred between rival illegal treasure hunters. The result was not only the destruction of the wrecks but life-threatening situations.6 Conflicts of this kind made legal regulation necessary, and a number of States introduced national legislation on the protection of maritime cultural property in the early 1970s. Precisely such a case in 1967, concerning exploration of the wreck of HMS Association, resulted in the Protection of Wrecks Act of 1973.7 As the rights to wrecks often involve questions of conflict of different States’ national jurisdiction, an international framework was suggested. III. The international framework: general treaty law IIIA. Overview The question of marine cultural property was not dealt with in the 1958 Law of the Sea Conventions. The issue of wrecks was raised during the drafting of the 1958 Convention on the Continental Shelf, but excluded from the final text. Protection of maritime cultural property was first raised in a general law of the sea context in the United Nations Seabed Committee in 1970–738 in relation to the special seabed regime outside exclusive national jurisdiction (Area). These proposals were introduced

3 4 5 6 7 8

See Preliminary Study on the Drafting of an International Instrument for the Protection of Underwater Cultural Heritage, UNESCO Doc. 28 C/39, 1, para. 4. See in general K.Bangert, Denmark and the Law of the Sea, in T.Treves (ed.), The Law of the Sea (1997), 111–12. See the Royal Commission of Historical Monuments of England, The National Inventory of Maritime Archaeology for England (1996); S.Dromgoole (ed.), Legal Protection of the Underwater Cultural Heritage (1999), 181–82. See Dromgoole, ibid., 182. See ibid. See Strati, n. 1 above, 296–97.

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at the first meeting of the Third Law of the Sea Conference in 1974 and emerged in the final text as Article 149. The question of cultural property outside this special provision was introduced later during the Third Law of the Sea Conference in 1980 and resulted in Article 303. Other attempts have been made at general treaty regulation, though the European Council instrument has not come to fruition, and parallel drafting is still ongoing in various international fora such as UNESCO and IMO. These ongoing and often quite detailed new instruments have not yet succeeded in materialising into actual treaty law. Articles 149 and 303 of the 1982 Law of the Sea Convention are still the only provisions in general treaty law. III B. The 1958 Geneva Convention on the Continental Shelf The legal status of wrecks on the continental shelf was brought forward during the preparation of the 1958 Convention on the Continental Shelf. The discussion focused on wrecks of commercial value. Wrecks of cultural value were not mentioned as a separate issue. Denmark raised the question of removal of dangerous wrecks, that is, wrecks that endanger the safety of navigation. Denmark had generally removed such wrecks even outside its territorial sea, mainly to carry out its duties under the Danish Straits regime.9 In the final preparatory report, the International Law Commission excluded jurisdiction over wrecks from the coastal State’s sovereign rights over the continental shelf. In its commentary to draft Article 68, the International Law Commission expressly states that the sovereign rights of the coastal State do not include jurisdiction over wrecks on the seabed of the continental shelf: (5) It is clearly understood that the rights in question do not cover objects such as wrecked ships and their cargoes (including bullion) lying on the seabed or covered by the sand or the subsoil.10 This became the final position and no rule on wrecks was included in the Convention on the Continental Shelf or any of the other 1958 Conventions. The issue of wrecks and especially cultural wrecks was not a major one at the time of drafting, and the States parties either ignored the question or thought that the existing general principles of the law of the sea combined with maritime law were a sufficient framework for the regulation of these issues. The 1958 Conventions and their preparatory conferences are signs of the first step in the sense of an awakening on the issue of wrecks, but no action at the time was thought necessary.

9 See ILCYB (1950–II), 53–54; ibid. (1956–I), 46 (Doc. A/CN. 4/99/Add.9). See K.Bangert, n. 4 above, 111–12. 10 See ILCYB (1956–II), 298.


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III.C. United Nations 1982 Law of the Sea Convention In 1970 the United Nations Seabed Committee suggested a rule on the protection of cultural heritage objects in relation to the special seabed regime outside exclusive national jurisdiction (Area). These proposals were introduced into the first meeting of the Third Law of the Sea Conference in 1974 and emerged in the final text as Article 149. The question of cultural property outside the special zone of the Area was introduced in a later session of the Third Law of the Sea Conferences and resulted in Article 303. In 1980 seven States suggested adding the following paragraph 5 to Article 77 on the coastal State’s sovereign right over the continental shelf:11 5. The coastal State exercises sovereign rights over any object of purely archaeological and historical nature on or under its continental shelf for the purpose of research, salvaging, protection and proper presentation. However, the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin shall have preferential rights over such objects in the case of sale or any other disposal, resulting in the removal of such objects out of the coastal State. This amendment was put forward again at the ninth meeting in 198012 and Greece put forward a similar amendment, which was supported by some States including Denmark.13 Notably, the US was opposed to any extension of the continental shelf regime to include cultural heritage as wrecks, as creeping jurisdiction was feared. The US proposed a compromise solution, in which the cultural property issue was disconnected from the continental shelf:14 All States have the duty to protect objects of an archaeological and historical nature found in the marine environment. Particular regard shall be given to the State of origin, or the State of cultural origin, or the State of historical and archaeological origin of any objects of an archaeological and historical nature found in the marine environment in the case of sale or any other disposal, resulting in the removal of such objects from a State which has possession of such objects. The US proposal introduced a duty to conserve cultural property. The duty to

11 Cape Verde, Greece, Italy, Malta, Portugal, Tunisia and Yugoslavia, See R.Platzöder, 5 Third United Nations Conference on the Law of the Sea: Documents (1982), 50. 12 See R.Platzöder, ibid., 51. 13 See ibid., vol. 4, 526. 14 See ibid., vol. 12, 299.

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protect and the precise legal effects were not elaborated. No specific area of application was given. The term marine environment was broad and covered in principle both the water column and the seabed. The term cultural property was not used, replaced with the vague phrase “objects of an archaeological and historical nature”. The proposal was accepted as a starting point. The area of application of the duty to protect cultural property was a matter of discussion. States like Greece15 suggested a special 200-mile zone based on the European Council draft of 1978.16 Other States like the US and USSR feared creeping jurisdiction. A compromise was agreed upon and became the present Article:17

Article 303 Archaeological and historical objects found at sea 1. States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose. 2. In order to control traffic in such objects, the coastal State may, in applying Article 33, presume that the removal from the seabed in the zone referred to in that Article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that Article. 3. Nothing in this Article affects the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges. 4. This Article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature. The wording of Article 303 reflects its character as a compromise between divergent positions on the territorial extent of the duty to protect cultural heritage. Article 303 is a good example of the mini-compromise structure of the 1982 Law of the Sea Convention. The precise legal content of the Article is somewhat unclear. The Article is divided into four parts. In paragraph 1 a duty to protect cultural heritage is introduced. Paragraph 2 provides for enforcement powers based on the contiguous zone. Paragraphs 3 and 4 caution that the new principles of protection of cultural property must not infringe upon existing maritime or cultural heritage law. In general, the wording of the Article raises a series of new questions as to the precise meaning of the basic concepts used in the Article, including “found at sea”, and “historical and archaeological nature”, and whether these two concepts are analogues or two

15 See ibid., 302. 16 See Council of Europe, Parliamentary Assembly, The Underwater Cultural Heritage, Report of the Committee on Culture and Education, Doc. 4200 (1978); cf. Council of Europe, in Recommendation No. 848 on the underwater cultural heritage, Parliamentary Assembly 4 October 1978; cf. Texts adopted by the Parliamentary Assembly, 30th session, 2nd part, at 848 (1978). 17 See Platzöder, n. 11 above, Vol. 2, 303 (A/CONF.62/WP.10/Rev.3*).


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different categories. Finally, the linkage of this Article to the contiguous zone regime in Part II conflicts with its position in the General Provisions which otherwise apply to all regimes mutatis mutandis. In the following discussion, the focus will be on those general sets of interpretation problems. Due to the clearly intentionally vague drafting, Article 303 can be interpreted in two opposite but not necessarily mutually exclusive ways, with each giving a basis for quite different regimes of maritime cultural property law. The two different interpretations can be supported by the actual wording of Article 303, and by evidence of State practice. Both are alternative interpretations and can exist as parallel regimes. In general, Article 303, paragraphs 1 and 2 are interpreted as: paragraph 1 containing the substantive principle and paragraph 2 its territorial application. The duty to protect cultural property can consequently be applied on a 24-mile zone measured from the baseline of the territorial sea. According to this interpretation the coastal jurisdiction over cultural property is comparatively limited compared to other draft instruments where this jurisdiction was linked to the continental shelf. The other and somewhat more radical interpretation is that paragraph 1 states the general principle of protection of cultural property. The area of application is not stated in Article 303 as it follows from its position in Part XVI that it has general application mutatis mutandis. Precisely due to its position in this Part it is superfluous to further specify the area of application, as this is presumed by its very position. No other rule in Part XVI has special rules on its area of application. In any case, guidelines for the application flow from the reference of the duty to cooperate in paragraph 1. So paragraph 1 is a self-contained unit consisting of a substantive rule, the duty to protect, and the procedure for the enforcement of this principle by cooperation. Moreover, this duty is not limited to coastal States but to all States, whether coastal, archipelagic, landlocked, geographically disadvantaged and/or flag States. How this principle is to be implemented will depend on the individual circumstances and must be decided by mutual co-operation. Paragraph 2, however, is a “lex specialis” covering the removal and perhaps even the mere transport of any cultural property over a 24-mile zone. The legal effect of the principle in paragraph 2 is first and foremost the power of the coastal State to enforce its cultural property legislation covering both its land and sea-territory. The coastal State has a duty to regulate any illegal cultural property transported in a 24mile zone from its baselines. In that sense, paragraph 2 is much more radical, and covers a wider range of cultural objects: not only objects found at the wreck but any object of cultural property transported over a 24-mile zone from the baselines. Paragraph 2 is thus a special application of the general powers to enforce national law in that zone. It is evident from the drafting process that some States chose to place Article 303 in the General Provisions as a method to prevent its inclusion in the continental shelf regime. Thus a linkage between coastal sovereignty over the continental shelf and cultural property could be restricted or prevented. It is, however, just as clear that other States sought an expansion of the regime to a 200-mile zone. Moreover, if

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the principle embodied in Article 303 was clearly meant to have the contiguous zone as the area of application, it would have been easy and uncontroversial to add one or more paragraphs to Article 303. Other substantive rules, such as some of the basic principles of the EEZ regime in Part V, found their final form even later than Article 303. Other articles in the Convention are extensive, such as Articles 53 and 76. Moreover, even though originally there might be practical reasons behind the position of a certain rule in a treaty, this does not necessarily bind the subsequent interpretation of the 1982 Convention. The Convention must be taken as a whole. If the States parties have agreed upon the position of a rule in a certain part with evident, prima facie legal effect on its interpretation as in the General Provisions, this creates a presumption against a restrictive interpretation, which in this case conflicts with the contextual framework. It must then require a special reservation in the actual ratification if an exception must be claimed, as in the case of the United Kingdom. The fact that a reservation was thought necessary corroborates the argument for a general application. Exceptio confirmat legem. The interesting point about Article 303 is, whatever might be the original intention or the subsequent development, the interpretation outlined above is possible according to the wording. Moreover, this interpretation solves some internal contextual conflicts, such as why a principle with its claimed area of application is placed so out of context. IV. Subsequent developments of the general treaty law The open-ended framework of Article 303 has been supplemented by various methods. Two main law-creating procedures can be outlined: State practice and general treaty law. It is only possible to outline some general points. The 1992 Draft convention by the International Law Association (ILA) will be discussed as a specimen of the developing treaty law. As to State practice, two formal different approaches in national legislation will be discussed, with Danish State practice as a representative for the developing law. IV.A. Treaty law The rudimentary, basic general conceptual framework has been elaborated in various treaty draft instruments within various law-making arenas including UNESCO, IMO and the European Council. The most extensive is the International Law Association’s draft convention of 1992. Moreover, the ILA draft was treated as the basis for the ongoing UNESCO draft convention. The ILA clarifies basic concepts such as cultural property and wrecks, and suggests a territorial extent and procedures for clarification where no rules are stated in the text (e.g., the reference to Annexes).

18 For a detailed discussion, see The International Law Association, Report of the Sixty-fifth Conference, Cairo 1992 (1993), 338–65; P.O’Keefe and J.A.R.Nafziger, in 25 Marine Policy (1994), 391–418.


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No detailed analysis can be given here.18 The ILA draft convention consists of 11 Articles, of which Articles 1–4 outline the basic principles of a new cultural property regime extending to a 200-mile cultural heritage zone. Article 5 gives guidelines for the settlements of disputes, and Articles 6–11 regulate the implementation procedures of the new regime. Article 119 defines the basic concept of underwater cultural heritage. One of the most important additions is the introduction of a formal time limit of 50 years in Section 4. Moreover, it is noteworthy that the concept of cultural heritage covers physical objects only and not cultural activities. Moreover, aeroplanes are included in the cultural heritage, and this will add to the objects covered by the cultural heritage protection. Article 220 and Article 321 define the jurisdictional powers of the States. Article 2 defines the new special 200-mile zone. The first sentence defines the extension and the second the substantive content of the new zone. The question of delimitation towards opposite States, etc., is not dealt with within the draft treaty. Finally, in Article 3 the general regime of the 200-mile zone is extended to apply to coastal

19 Article 1 provides: 1. Definitions: For the purposes of this Convention: “Underwater cultural heritage” means wreck,and any part of the cargo and other contentshereof,including human remains, as well as underwatersites, structures (including wharves and bridges),buildings, artefacts,implements, and related objects, together with theircontents. “Wreck” means a vessel, ship or aircraft or any part thereof that has been lost or abandoned. 2. To the extent that a State is entitled to sovereign immunity under international law, such immunity shall continue to apply in the municipal legal systemsof Parties notwithstanding the Convention. 3. This Convention shall apply to all activity that could affect the underwater cultural heritage beyond the territorial sea of States Parties, as defined by international law. 4. The provisions of this Convention shall apply to all underwater cultural heritages at least 50 years old. Any Party may extend the provisions, however, to underwater heritage, which i s less than 50 years old. 5. Parties are encouraged to apply these provisions and the criteria set forth in the Appendix to activity within their internal and territorial waters. 6. Parties are encouraged to prescribe by law that heritage covered by this Convention shall not be subject to salvage laws. 20 Article 2 provides: Each Party shall undertake to establish a “cultural heritage zone” coextensive with its contiguous zone, continental shelf, 200-mile exclusive economic zone, a special 200-mile protection zone, or any combination of these. Within the cultural heritage zone, the Party may regulate all activities affecting the underwater cultural heritage in accordance with the criteria set forth in the Appendix, subject to internationally recognised principles of innocent passage, transit passage and freedom of navigation. 21 Article 3 provides: 1. Beyond its territorial waters and cultural heritage zone, each Party shall prohibit its nationals from interfering with or excavating underwater cultural heritage except in accordance with the criteria set forth in the Appendix.

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State nationals operating on the high sea that is outside the outer limit of the 200mile cultural heritage zone. By introducing a detailed definition of cultural heritage which specifies the content as well as the extent of the powers of protection, the ILA draft is a major improvement on existing general treaty law. The controversial issue of the relation of this regime to maritime law remains, not surprisingly, unsolved. Moreover, the choice of the zonal approach in the form of a 200-mile zone is still seen as controversial by some important naval States. Whether an international consensus can be worked out within the framework of UNESCO based on this draft remains to be seen. An interesting recent development is the changing concept of cultural property from physical objects such as wrecks to cultural activities such as folk-dances or religious indigenous ceremonies. If such a broad definition were to be applied to the law of the sea, local coastal fishing or traditional whaling and sealing activities could be included which would create co-ordination problems with existing protection of living resources. The balancing of often very wide and politicised definitions combined with the extension of the coastal State’s exclusive jurisdiction will require a considerable amount of negotiations before an agreement can be reached. It seems that less ambitious and less general instruments would have a good chance of succeeding. Perhaps a regional approach would be preferable to the global approach chosen by UNESCO. An EU-regime would be a more effective approach and could be a first step towards a general international regime. Regional regimes in other areas such as Africa, the Americas and Asia would have similar law-creating effects and seem preferable to a global approach. The experiences from the various regional regimes could be collected and, if possible or desirable, developed into a general instrument by UNESCO. IV.B. State practice As no comprehensive publication of relevant legislation or case studies of national law exists, it is hardly possible to make definite statements as to the present status of State practice and its relation to an emerging customary law regime. Some emerging trends can, however, be discerned. There is little evidence of a 200-mile cultural heritage zone in State practice.22 In general, States either apply a more limited zonal approach based on the territorial sea (e.g., the US and the United Kingdom) or a 24-mile special zone (e.g., Denmark and France). In both cases the zonal approach is supplemented on a case-by-case basis by extra-territorial individual object conservation through bilateral agreements between the involved parties. Such an example is the agreement of 23 February 1995 between Denmark, Estonia, Finland and Sweden regarding the wreck of MS Estonia.23 This and similar agreements are evidence of the 22 See E.D.Brown, n. 1 above, 244; B.Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (1989), 228. 23 See the Danish Official Notice no. 33 of 20 May 1999, published in the Official Danish Gazette (Lovtidende), Section C, 315, 1999.


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implementation of the duty to protect by co-operation between the involved States as suggested in Article 303 of the 1982 Law of the Sea Convention.24 A major problem with these bilateral extra-territorial conservation agreements is that they by nature apply to the parties only. Non-parties are not necessarily prevented from unwanted salvage operations, unless of course the mere fact that a bilateral arrangement is in force suspends the status of abandoned wreck. This question, however, must be decided on a case by case basis. In addition to the United States’ otherwise limited zonal approach, United States courts have developed a judge-made extra-territorial quasi in rem jurisdiction, in cases where the salvor had brought cultural maritime property within the zone onto land and thereby created a quasi in rem link to the wreck positioned outside the territorial sea.25 The creation of new concepts in international environmental law as “conservation zones” and “natural underwater parks” is envisaged in the Abandoned Shipwrecks Act of 1988 of the United States. Moreover, the application of a precautionary approach to underwater cultural heritage law could solve some of the conflicts as to rights of salvage. If a wreck is positioned in a national underwater park or conservation zone, this would not necessarily affect the rights of ownership or flag State rights as such. The rights would still be reserved. The actual removal or salvage would, however, be prohibited or restricted due to the wreck’s position in a no-access zone. Similar application of the precautionary approach to salvage operations in such areas, in general or toward historical wrecks, would change the burden of proof of a no-harm salvage to the salvagers. In practice, this would lead to a drastic fall in salvage operations in these areas, with this inherent uncertainty. The forging of new concepts will change and push the limits of existing trends of including historical objects into conservation zones. Recent Danish environmental legislation from 1999 extends the protection of the marine environment to the 200-mile EEZ.26 The historical value of an area or object has been included in the list of legally protected interests. Although this empowerment has not been used to conserve wrecks, this broadening of the concept of marine environment could be applied to the conservation of wrecks. The existence of a number of wrecks or other marine cultural property in a given area of the EEZ could, on the basis of this new legislation, be sufficient reason to declare a specially protected conservation zone. The legal effect would be that any salvage operation on Danish, foreign, or abandoned wrecks would require special permission. If similar legislation were to be enacted in other States or even made a general EU-law, a 200-mile cultural heritage zone would have been developed mutatis mutandis by existing environmental law. The duty to protect cultural property in Article 303 would then have been implemented, not within a special regime but

24 See O’Keefe in Dromgoole, n. 5 above, 225–26. 25 See Brice, n. 1 above, 271. 26 See the Danish Statute on the protection of the marine environment no. 476 of 30 June 1993 as changed by statute no. 902 of 16 December 1998, §§ 1 and 2.

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within the general provisions of environmental law. A similar development of the traditional legal conceptual framework can be seen in US legislation. In the Abandoned Shipwrecks Act of 1988, §2(b), the concept of natural resources is expanded to cover such historical objects as abandoned wrecks: “(b) included in the range of resources are certain abandoned shipwrecks…”27 The expansion of existing concepts of natural resources or marine environment to include cultural property is important and evidence of an emerging new regime. V. Conclusion A 200-mile cultural heritage zone has not been developed in general customary international law. There seems, however, to be interesting evidence of an emerging obligation to protect cultural property not only on the territorial sea or within a 24mile special zone, but also on the seabed outside narrow zonal limits. The development of the international law of marine environment could overlap and include the protection of wrecks, as defined as a public interest to be protected by law. The general treaty law of Article 303 in the 1982 Law of the Sea Convention does not prevent such a development. On the contrary, both the textual vagueness and the contextual position in the General Provisions of the 1982 Law of the Sea Convention leave room for such a development. But precisely this vague open-ended structure has made it a helpful instrument for development of new legislation in this new area of law. Independent of the original intent of some of the drafters of Article 303, the legal effect has been the framing of a useful vehicle for lawmaking and protecting new interests in the world community. Again, a word of caution is perhaps necessary. The final interpretation rests with the State, and it still has to be seen what will be the dominating trends in the new regime. Perhaps a regional approach such as an EU-regime and similar localised approaches would be more effective than the ongoing attempts at general regulation. It seems certain that a new regime is emerging, albeit slowly. The precise content and territorial extent of that regime, however, are a thing of the future.

27 102(I) Statutes at Large (U.S., 1988), 432, para. 102.

8

IMF governance, the Asian financial crisis, and the new international financial architecture Bartram S.Brown*

I. Introduction The International Monetary Fund (IMF) was created over 50 years ago as a key pillar of the post-World War II international economic order. The ultimate goal of the international financial institutions (IFIs) of that era was to create a more open and global economy. Now that a high degree of economic globalization has been achieved, a new “international financial architecture” is needed. The Asian financial crisis of 1997–1999 was in many ways a turning-point. It provided dramatic proof that the globalization of capital flows has left national economies more vulnerable than ever to panics and other external developments.1 The crisis also raised questions about the role of the IMF in the newly globalized economy. The IMF’s original role was principally to manage the fixed exchange rate system, which collapsed in the 1970s. It has adapted itself into an organization that makes loans to developing countries and provides them with economic policy advice often unrelated to exchange rate stability.2 By conditioning its loans upon compliance with its policy advice the IMF has evolved into the international financial policeman of the world economy. As the Asian crisis dawned, the Fund offered advice and formulated new programs of conditional financial assistance to Thailand, Indonesia, and other affected Asian states. Some aspects of these IMF programs have been criticized for contributing to the panic, adding fuel to the calls for a new international financial architecture. As its influence has grown, the IMF has resisted adapting its policies to changed conditions and challenges. Following the example of the World Bank, the Fund now monitors the compliance by states with fundamental principles of good “governance”. Unlike the World Bank, however, the IMF has resisted pressures to respect these principles in its own operations. This is no longer acceptable. The IMF must accept

* The views expressed herein are solely the author’s. 1 See IMF Annual Report 1999, 33. 2 Raymond Mikesell, Proposals for Changing the Functions of the International Monetary Fund (IMF), Working Paper No. 150 (Dec. 1995). 131

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that economic globalization entails a new set of responsibilities for those international institutions entrusted with the stewardship of the global economy. II. The Bretton Woods Framework II.A. The post-World War II vision of economic globalization The present system of multilateral economic institutions was established after World War II, as part of a very forward-looking Anglo-American vision of international economic globalization. The period preceding that war had been characterized by protectionist high tariffs, exchange rate manipulations, and other economic policies reflecting a narrowly nationalistic perspective. These policies had contributed to global economic stagnation by choking off international trade. Recalling the international economic chaos which had preceded the war, the leading economic powers of the time decided to construct a postwar system of international economic organizations which would structure international economic relations along more positive and cooperative lines. Economic globalization, via more open international trade and a more stable and predictable international monetary system, was the goal. At first, only two international institutions were contemplated as pillars of the postwar international economic order: an International Trade Organization (ITO), and an International Monetary Fund (IMF). A third pillar, the International Bank for Reconstruction and Development (IBRD) was created along with the IMF at the 1944 Bretton Woods Conference. An ambitious ITO agreement, designed to bring about the progressive elimination of all tariffs, was negotiated in Havana in 1948.3 This part of the structure was abandoned, however, when the US and other states failed to ratify the treaty. The limited framework of the General Agreement on Tariffs and Trade (GATT), originally intended to function only as an interim arrangement pending ITO ratification, remained in place for almost 50 years. Only when the Marrakesh agreement brought the WTO into existence in 1994, would the international community begin to realize a true globalization of trade. The IMF was intended to be the second major pillar of the international economic order, maintaining exchange rate stability, helping its members to deal with shortterm balance of payments disequilibria and, in general, establishing a reliable international payments system. The Bretton Woods fixed exchange rate system completely collapsed in 1973 leaving the IMF in search of a new mission. In adapting to the developing country debt crisis of the 1980s the IMF found a new niche as the designated advisor to heavily indebted developing countries. This occurred largely during the thirteen-year mandate of Michel Camdessus as Managing Director of 3

United Nations, Final Act and Related Documents, U.N. Conference on Trade and Employment, held at Havana, Cuba from 21 Nov. 1947 to 24 Mar. 1948, Interim Commission for the International Trade Organization, Lake Success, New York, Apr. 1948, U.N. Doc. E/Conf. 2/78.

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the Fund. On the surface, the Fund’s two major activities remain the same: surveillance of national economic policies, and providing financial support for adjustment programs when necessary. Now, however, the Fund’s advice concerns not only fiscal policy but also banking, competition policy and a broad range of economic policy matters, including governance.4 Heavily indebted countries generally have little choice but to accept the Fund’s austere policy directives. Fund surveillance is facilitated by the extensive economic information that members are required to divulge to the Fund. Every year or so, pursuant to Article IV of the IMF’s Articles of Agreement, the IMF sends a staff team to visit each member country to hold bilateral discussions. The team visits the country to collect economic and financial information and to discuss the country’s economic developments and policies with national officials. After returning to headquarters, the staff prepares a report, which is used by the Executive Board as the basis of discussion. The basic financial resource of the IMF consists of funds from member states, each of which is required to contribute according to a “quota” reflecting the size and strength of its economy. Members are entitled to draw freely upon a first “reserve tranche” of these resources representing their contribution in gold and convertible currencies in excess of this quota. The Fund allows member countries to draw upon additional “credit tranches” of its resources only if they comply with IMF “conditionally”, making financing available to debtors only if they promise to comply with IMF-determined conditions concerning their national economic policies and performance. After initial approval, the Fund continues to act as a sort of international financial policeman, monitoring compliance with the promises it has exacted from debtor countries and giving a creditworthiness green light to the international financial community.5 Supplementing the basic financial support it makes available to its members, the Fund has developed an array of special “facilities” in response to the persistent economic problems of debtor countries. These will be discussed in greater detail below. In 1945, many countries did not share the enthusiasm of the US and the UK for an IMF to support monetary and financial discipline. Creation of the International Bank for Reconstruction and Development (IBRD), the third pillar of international economic cooperation, broadened the appeal of the proposed system of international financial institutions by offering something concrete to the economically disadvantaged regions of the world. The IBRD was established in 1945 to finance the reconstruction of countries devastated by World War II and the development of more traditionally impoverished areas of the world. The Marshall Plan, introduced in June of 1947, eventually assumed the burden of financing reconstruction in Europe

4 5

Robert Graham, Thirteen Years of Change Take Toll on IMF Chief: The Camdessus Years, Financial Times (London) (10 Nov. 1999), 16. For an early analysis, see E.Robichek, The International Monetary Fund: An Arbiter in the Debt Restructuring Process, 23 Columbia JTL (1984), 143.

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leaving the Bank free to devote its resources to the development task. Today, the IBRD is the central institution in what is known as the World Bank Group. The Bank’s role goes beyond providing development financing, since it has always provided borrowers with advice on development as well. There is at times a fine line between giving advice on development and giving general advice on economic policy, and the Bank now shares with the IMF responsibility for inducing debtor countries to make much needed macroeconomic reforms. II.B. Voting and decision-making procedures at the IMF The Bank and the Fund are organized along much the same lines. The business of the Fund is conducted by an Executive Board. The relative economic strength of the various member countries is reflected in the composition and voting of that Board. As a result, five members of the Fund wield 40% of the total voting power.6 This weighted voting formula has never been popular with the developing countries since, in effect, it institutionalizes within the IFIs the inequality between the economically strong countries and the economically weak ones. The desire of these latter countries for greater equality has led the UN General Assembly to adopt resolutions calling for the reform of the decision-making procedures in international economic and financial institutions.7 Though it may seem to conflict with notions of “sovereign equality”8 the weighted voting procedure has the virtue of being a practical solution to a very real problem. The major contributors to the Bank and the Fund are naturally concerned about how the contributed funds are used. Weighted voting answers these concerns and thereby assures the participation of donor countries. While there is a certain logic to weighted voting, that system is subject to abuse. The power it concentrates in the hands of the principal contributor countries, especially the US, raises the possibility that this power could be used for purposes unrelated to the Fund’s goals. This could constitute a politicization of the Fund and a violation of its Charter. II.C. The concept of politicization The term “politicization” refers to an organizational dysfunction in which actions or decisions relating to technical or “non-political”9 matters are influenced by “political” considerations unrelated to the agreed purposes of the organization.10 6 7 8 9

The percentage of total voting power in the IMF for each of the five is presently as follows: US: 17.53%, Japan: 6.29%, Germany: 6.15%, UK: 5.08%, France: 5.08%. IMF Annual Report 1999, 194. See, for example, Article 10 of the Charter of Economic Rights and Duties of States, adopted by the UN General Assembly as Resolution 3281 (XXIX) on 12 Dec. 1974. Article 2 (1) of the UN Charter states that “The Organization is based on the principle of sovereign equality of all its Members.” The term “politicization” as used in this study cannot be applied in any meaningful way to an organization such as the United Nations whose primary function is political, i.e., the maintenance of international peace and security.

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The concept of politicization can best be understood in relation to the functionalist theory of international organization that was prevalent in the 1940s. The theory holds that the process of international organization should begin with the creation of “non-political” international agencies dealing with specific economic, social, technical, or humanitarian functions upon which state actors can most easily agree, leaving more ambitious political goals until later.11 According to this theory it is only later, after states have developed habits of effective international cooperation, that it will be possible for them to cooperate in resolving high-level political problems.12 The fact that certain IGOs are referred to as non-political is a reflection of this theory. In stressing that international organizations must be built upon the consensus of states, this theory helps to clarify the link between the agreed purposes of an IGO and the notion of politicization. A legal approach to the issue of politicization has been well-developed in the law and practice of the World Bank, and that experience is directly relevant to the Bank’s sister institution, the IMF. II.C.1. The World Bank’s Articles of Agreement The World Bank’s Articles of Agreement are a logical place to look for principles applicable to the governance of the Bank. Article IV section 10, entitled “Political activity prohibited”, sets out a clear rule that the Bank and its officers are not to be influenced by “the political character of the member or members concerned” and that “only economic considerations shall be relevant to their decisions”.13 This section has been interpreted as a prohibition on the politicization of the Bank. The first part of Article IV(10) is clearly designed to protect member states from interference in their internal political affairs. The second part14 sets out a positive

10 See B.Brown, The United States and the Politicization of the World Bank: Issues of International Law and Policy (1992), 14. 11 See D.Mitrany, A Working Peace System (4th ed., 1946). 12 Inis L.Claude Jr. calls this the “separability-priority” thesis, I.Claude, Jr., Swords Into Plowshares: The Problems and Process of International Organization (4th ed., 1971), 384. 13 Articles of Agreement of the International Bank for Reconstruction and Development, Article IV(10), reads as follows: The Bank and its officers shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the political character of the member or members concerned. Only economic considerations shall be relevant to their decisions, and these considerations shall be weighed impartially in order to achieve the purposes stated in Article I. 14 The second clause of that Article’s first sentence mandates that the Bank and its officers shall not “be influenced in their decisions by the political character of the member or members concerned”. This clause serves a dual purpose, providing some protection for the internal affairs of states while also setting out a “functionalist” definition of how the Bank is supposed to reach its decisions.

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definition of how the Bank, its organs, and its officers are to exercise their discretion in decision-making. Both the General Counsel of the Bank, and the Bank’s EDs, have endorsed the view that section 10 “is no more than a reflection of the technical and functional character of the Bank as it is established under its articles of agreement”.15 II.C.2. The IMF’s Articles of Agreement While the IMF’s charter does not contain language similar to Article IV(10) of the Bank’s articles16 the Fund has nonetheless taken the position that it is prohibited from making decisions based upon political considerations. Sir Joseph Gold, former General Counsel of the Fund, argued that such a prohibition results from the last sentence of Article I of the Fund’s Articles of Agreement,17 which lists the purposes of the IMF and states that “[t]he Fund shall be guided in all its policies and decisions by the purposes set forth in this Article”.18 In his view, “[d]omestic policies are ‘social’ or ‘political’ if they do not fall within the scope of the purposes of the Fund as set forth in Article I, and the Fund may not base its decisions on political considerations of this character”.19 Thus a political activity prohibition such as that explicitly set out in the Bank’s charter applies to the Fund as well. Although the Fund, like the World Bank, is to act solely on the basis of economic considerations, this is more easily said than done. Despite the neat verbal distinction between the aspects of governance that are economically significant and those that are not, the IMF concedes that “in practice there is seldom a clear separation between such economic and noneconomic aspects”.20 The consensus among member states as to the definition of a legitimate economic consideration is also subject to evolution and change. Recently there has been some debate as to whether IMF support for Russia should be terminated in response to the Russian government’s indiscriminate use of force against civilians in Chechnya. Russia’s policy raises fundamental issues of human rights, and must surely have disastrous economic effects. So far, US Secretary of State Madeleine Albright has nonetheless argued for maintaining a separation

15 From a letter dated 5 May 1967 from the IBRD General Counsel to the UN Secretariat, cited in UNJY (1967), 121. 16 See Y.Yokota, Nonpolitical Character of the World Bank, Japanese Annual of International Law (1976), 45 (“For the Americans who [at Bretton Woods] held a view that economics cannot be separated from politics, it was perhaps easier to accept a non-political Bank than a non-political Fund”). 17 See J.Gold, Political Considerations are Prohibited by Articles of Agreement when the Fund Considers Requests for Use of Resources, 12 IMF Survey (No. 10, 23 May 1983), 146. 18 Virtually identical language appears in Article I of the Bank’s charter. After listing the Bank’s purposes that Article states that “[T]he Bank shall be guided in all its decisions by the purposes set forth above”. 19 Gold, n. 17 above, 146. 20 The Role of the IMF in Governance Issues: Guidance Note (Approved by the IMF Executive Board, 25 July 1997), para. 22.

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between the economics of IMF funding and this humanitarian issue.21 In a radical break from past practices, the Fund’s outgoing Managing Director, Michel Camdessus suggested that this separation will be difficult if not impossible to maintain because “this war (in Chechnya) has given Russia a very negative image internationally”.22 The Russian government’s response was to condemn this statement as inconsistent with the Fund’s basic policies.23 II.C.3. Types of politicization In an earlier study, I examined legal issues raised by the “negative politicization” of the World Bank. “Negative politicization” generally involves the use or abuse of a multilateral institution by one of its member states in an attempt to punish another member state for political reasons inconsistent with the agreed purposes of the institution.24 In general, attempts at the negative politicization of the Fund have been unsuccessful. Disputes over the “positive politicization” of the Fund have emerged in recent years. These allegations have taken two forms. The first concerns cases where IMF financing has allegedly been provided to members even though the economic rationale for that assistance was dubious at best. The financing provided to Russia amid allegations that it had lied to the IMF about its financial situation,25 and allowed past disbursements to be stolen is a good example.26 The IMF insists that its decisions on lending to Russia have been economically justified.27 At the same time, the Fund has officially complained of those donor/creditor governments who decide, for political reasons, to continue to provide bilateral financial assistance to countries without regard to economically significant defects in governance.28 Of greater relevance here, however, is a second form of positive politicization. This would occur if the power of the IMF, including the promise of its financing and/or its economic imprimatur, were used to promote in member states policies or policy changes which go beyond the agreed purposes of the IMF. Some of the

21 See, National Public Radio (USA), All Things Considered, Secretary of State Madeleine Albright Wants to Keep Economic Aid Going to Russia Regardless of its Internal Affairs, 24 Nov. 1999 (available on LEXIS/NEXIS Library NEWS, File ALLNEWS). 22 IMF: Chechen War Hurt Russian Image, AP Newswire, 27 Nov. 1999. 23 See C.Belton, IMF Chief Links Chechnya to Loans, The Moscow Times, 30 Nov. 1999, Section 1848 (available on NEXIS/LEXIS, Library NEWS, File:ALLNEWS). 24 Brown, note 10 above, 22. 25 See S.Fidler, Russian Central Bank “Lied” to IMF, Financial Times (London) (30 July 1999), London Edition 1, World News—Europe, 2. 26 See, IMF comes under scrutiny over disbursal of funds: John Thornhill on whether the institution should have kept a sharper eye on the $4.8bn it lent to Russia, Financial Times (London), 10 Sept. 1999, Section: World News—Europe, 2. 27 See, IMF agrees Russia is keeping to conditions of loan: Money-Laundering Allegations, Camdessus Says There Is No Evidence of Theft of Earlier Credits From Fund, Financial Times (London), 24 Sept. 1999, Section: Europe, 3. 28 See n. 20 above.

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Fund’s policy prescriptions to Asian states went beyond the consensus of its members and contributed to the severity of the Asian financial crisis. II.D. The emergence of governance as an issue The IMF was slow to address the issue of governance, and has only done so in recent years. In these matters the Fund generally takes the lead of the World Bank which over the last decade has evolved an elaborate set of practices and procedures for assessing and addressing the governance of potential borrowers. The law and practice of the World Bank and its member states now recognize that the strict prohibition upon political activity found in the Bank’s Charter does not preclude it from considering matters of governance which may touch upon the political order within a state.29 Issues of governance are considered relevant to the Bank’s decisionmaking to the extent that they produce economic consequences. The World Bank applies the following definition in evaluating the impact of “governance” upon the economic performance of states: We define governance as the traditions and institutions by which authority in a country is exercised for the common good. This includes (i) process by which those in authority are selected, monitored and replaced, (ii) the capacity of the government to effectively manage its resources and implement sound policies, and (iii) the respect of citizens and the state for the institutions that govern economic and social interactions among them.30 This definition can be accepted as that of the IMF as well since, in matters of governance, the IMF defers to the superior expertise of the World Bank.31 Both the Fund and the Bank walk a fine line when evaluating the governance of member countries. They must be wary of crossing the critical boundary between considering the economic implications of national governance and improperly interfering in the political affairs of a member. The IMF has acknowledged the need to find and respect the proper boundaries to its involvement in governance, and has reiterated the standard of the political activity prohibition.32 During its periodic Article IV consultations with member states, IMF policy advice is supposed to be based on the principles of transparency, simplicity, accountability and fairness, which are essential aspects of good governance.33 The irony here, as will be discussed further below, is that the IMF itself has not traditionally observed these principles of good governance. 29 See Brown, n. 10 above, 156. 30 The World Bank Institute, Governance, Finance and Regulation: Governance, available on the Internet at http://www.worldbank.org/wbi/wbigf/governance.html. (Accessed 12 Oct. 1999). 31 See, The Role of the IMF in Governance Issues: Guidance Note (Approved by the IMF Executive Board, 25 July 1997), paragraph 6. 32 Ibid., para. 7. 33 Id., para. 13.

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II.E. Oversight on structural issues NGO critics of the Fund stress that the IMF “does not have the expertise to provide the far-reaching policy prescriptions that it ties to its loans,” and that multilateral consultation about economic development policy is better left to the World Bank.34 Concerns about politicization have grown as the IMF has assumed an increasingly broader role in prescribing national economic policy. Under the Fund’s Enhanced Structural Adjustment Facility (ESAF), the world’s poorest developing countries are eligible for special economic assistance if they commit to a three-year comprehensive macroeconomic and structural adjustment program. The financial terms of the assistance are quite favorable, but the conditions are tough.35 As of February 1999, over 50 developing countries had received funds under ESAF concessional arrangements.36 Each such arrangement involves the formulation of a detailed macroeconomic and structural reform framework suitable to the IMF’s staff of economists. In 1986 the IMF and World Bank jointly developed a special debt relief initiative for the Heavily Indebted Poor Countries (HIPCs), many of which suffer under an especially crushing burden of international debt. The goal is to reduce the debt to sustainable levels by coordinating and requiring the participation of all bilateral, multilateral and commercial creditors.37 Taken together, these various facilities have led to an unprecedented level of IMF influence over national economic policies. III. The Asian financial crisis and lessons for the new international financial architecture III.A. The IMF and the Asian financial crisis In 1997 a devastating financial crisis hit Thailand. After trying in vain to defend the Thai baht the government reluctantly decided to let it float. The result was a 40 percent drop in the value of the currency over the next eight months, causing foreigners to lose confidence and withdraw their assets from Thailand. Foreign capital stopped flowing into the country, foreign exchange reserves dwindled, and Thailand had to go to the IMF for help.38 The crisis spread quickly within the region to the Philippines, Indonesia, Malaysia and South Korea, and ultimately affected economies around the world.39 34 Carol Welch, The IMF and Good Governance, 3 Foreign Policy In Focus (No. 33, Oct. 1998), (available at http://foreignpolicy-infocus.org/briefs/vol3/v3n33imf.html, accessed 15 Oct. 1999. 35 See IMF Concessional Financing through ESAF, 5 Sept. 1999, , accessed 2 Dec. 1999. 36 Id. 37 IMF, Debt Initiative for the Heavily Indebted Poor Countries (HIPCs), , accessed 7 Nov. 1999. 38 The Economist, On the rocks—How did Asia’s supposedly watertight economies sink? (7 Mar. 1998, U.S. Edition), section: survey, 5. 39 Ibid.

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Both the outbreak of this crisis and its severity are linked to the “unprecedented move towards financial market globalization”40 in recent years. The crisis was generated by excesses within the private sector rather than by government policy. Governments contributed to the problem by remaining inactive in terms of supervising and controlling the financial and corporate sector.41 Proper regulation was complicated by the fact that, generally speaking, East Asian economies were lacking transparency in business and financial dealings.42 The IMF played a role as well. Just prior to the start of the crisis, the Fund’s Directors had “praised Thailand’s remarkable economic performance and the authorities’ consistent record of sound macroeconomic fundamentals”.43 When the crisis began, the Fund formulated new programs for Thailand, Indonesia, and other affected Asian states, and these programs have been criticized for contributing to the panic in several ways. The IMF ordered sudden bank closures and, when these were implemented without a more comprehensive plan for financial sector reform, the effect was to deepen the panic.44 The Fund also contributed to the severe credit crunch by pushing banks to recapitalize within an unrealistic time frame and by recommending contractionary fiscal and monetary policies.45 Much of this advice was similar to past IMF prescriptions for debtor countries in the throes of overspending and inflation. Many doubt that this advice was an appropriate response to problems largely attributable to the volatility of private capital flows.46 In any case, the IMF’s lending rose to record levels during the crisis.47 The IMF has not publicly acknowledged making errors during the crisis, but there are reports that a confidential IMF review concluded that the Fund’s policy on bank closures did indeed exacerbate the crisis.48 Despite the IMF’s lack of official public contrition, several of its Directors have acknowledged that mistakes were made. The Fund reports without elaboration that some Directors expressed concern that Fund policies had liberalized capital movements before appropriate regulatory regimes were in place49 or that the IMF had overreacted by loading the first stage of its programs with too many structural reforms.50

40 IMF Annual Report 1999, 33. 41 James D.Wolfensohn (President, World Bank), Address to the National Press Club (Washington, D.C., 25 Mar. 1998) . 42 See n. 38 above. 43 Summary of a July 1996 IMF Board discussion on Thailand, in Steven Radelet and Jeffrey Sachs, The Onset of the East Asian Financial Crisis (30 Mar. 1998), 33 (appendix). The IMF did warn, however, that “the level of short term capital inflows and short-term debt were somewhat high”. Id. 44 See, IMF Now Admits Tactics in Indonesia Deepened Crisis, NY Times (14 Jan. 1998), 1. 45 Steven Radelet and Jeffrey Sachs, n. 43 above, 24–30. 46 See Paula Hawkins, International Misery Fund, The European (5 Oct. 1998), Section: Finance. 47 The total credits drawn from the IMF accounts during the years 1997/1998 reached a total of $75.4 billion, $20.1 billion more than the previous year. IMF Annual Report 1998, 13 (Overview—Asian Financial Crisis Propels IMF Activity to New Levels in 1997/98). 48 See n. 44 above. 49 See IMF Annual Report 1999, 36. 50 Ibid.

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III.B. The need for a new consensus The multiple roles of the IMF leave it near the center of the new globalizing economy, and vest it with a great deal of power. This, in itself, is not a problem. When it acts according to the consensus of member states that created it the IMF makes legitimate use of its power and influence, but the use of that same authority for other purposes lacks legitimacy. In the wake of the Asian financial crisis, there is clearly a lack of agreement concerning the appropriate role of the IMF in encouraging adjustment. Among economists there is a lack of technical consensus,51 among governments there is a lack of political consensus. Thus, the IMF exercises a growing influence over debtor states even as support for its policies has eroded. The lack of agreement on multilateral economic policy is in stark contrast to the strong international consensus on genocide, crimes against humanity and war crimes. The successful negotiation of the Rome Statute of the International Criminal Court in 1998 proved that there is broad agreement upon both the fundamental values embodied in the definition of these international crimes, and also on the precise details of international mechanisms to ensure their prosecution. In contrast, the international consensus on the role of the IMF has eroded in recent years, and is seriously vague and outdated. It is strained, if not outright exceeded, by the IMF’s efforts to restructure national economies around the world on the model of the western industrial democracies. III.C. Key aspects of the needed reforms Many proposals for a new international financial architecture call for little, if any, change in the functioning of the IMF itself.52 A new IMF facility, the Contingent Credit Line (CCL), has already been created to arm the IMF with the means to help “deserving”53 countries withstand financial pressures caused by external developments. The Fund stands ready, as always, to create new “facilities” which operate within the same institutional context. Not surprisingly, some of the changes suggested by the Managing Director of the Fund would increase the authority of that institution more than they would reform its policies. Perhaps the most radical of

51 See P.Passell, Economic Scene: The I.M.F. Must Go, Critics Say, But Who Will Cope with Crises?, NY Times (12 Feb. 1998), D2. 52 Alan Blinder’s eight principles for a new financial order, for example, are: (1) Don’t fix your exchange rates (allow them to float), (2) Borrow less in foreign currency, (3) Don’t rush to open capital markets, (4) Follow sound macroeconomic and financial policies, (5) Austerity is not always the right medicine, (6) Devote more resources to protecting innocent bystanders, (7) Agree on procedures for orderly debt settlement, and (8) Prevention is better than cure. See A.Blinder, Eight Steps to a New Financial Order, Foreign Affairs (Sept./Oct. 1999), 50. 53 This program is designed to help countries deemed to have strong financial systems and sound macroeconomic management. See, IMF Tightens Defenses Against Financial Contagion by Establishing Contingent Credit Lines, IMF Press Release No. 99/14 (25 Apr. 1999), , accessed 26 May 2000.

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these is the idea that the IMF might be endowed with the legal authority to declare a stay on legal action by “dissident creditors” when this is needed to prevent disruptions of ongoing negotiations on rescheduling debts.54 Some critics of the IMF call for its abolition, or for folding it into another existing organization such as the World Bank. Others take the position that the Fund should be strengthened with additional financial resources so that it can do more to help developing countries deal with balance of payments and exchange rate crises.55 Even some of the more traditional proposals for reform acknowledge that certain IMF policies need to be modified in light of the lessons of the Asian financial crisis. One analyst blames three IMF policies, in particular, for promoting and aggravating that crisis. These are: (1) pushing all states to open capital markets; even before adequate supervisory structures are in place; (2) simplistic reliance by the IMF upon austerity as the right medicine for all financial crises; and (3) inadequate attention by the IMF to the social effects of economic policy.56 This essay proposes that three types of reform, in particular, will be essential to restoring the credibility of the IMF. These would: (1) increase the transparency and accountability of the IMF; (2) pay closer attention to the social effects of IMF operations; and (3) formalize IMF consultations with NGOs. III.C.1. Increasing IMF transparency and accountability The IMF, in publicizing its own formulation of the lessons of the Asian financial crisis, has focused upon the things that states need to do to avoid such crises in the future. But in stressing the importance of transparency in both debtor and creditor countries, the Fund notes in passing that “[g]reater transparency of the IMF itself is an integral part of this agenda”.57 Any institution as powerful as the IMF should be subject to a high degree of accountability,58 but this will be impossible until the Fund operates with greater transparency.59 Although it lags far behind the World Bank in this regard, the IMF has recently implemented changes intended to increase the transparency and the accountability of the Fund’s own operations. When requested by the state concerned, the IMF

54 Michel Camdessus, Global Financial Reform—The Evolving Agenda (Remarks by the IMF Managing Director at the Council on Foreign Relations, New York), M2 Presswire, June 7, 1999 (available on Lexis/Nexis, Library: NEWS, File: WORLD). 55 Mikesell, n. 2 above, 6. 56 See A.Blinder, n. 52 above, 54–62. 57 Timothy Lane, The Asian Financial Crisis: What Have We Learned?, 36 Finance & Development (1 Sept. 1999), 44. 58 See Carol Welch, n. 34 above. 59 Those on the political right have also complained of the IMF’s secrecy and lack of accountability. See Prepared Testimony of Ian Vasquez, Director, Project on Global Economic Liberty, Cato Institute Before the House Committee on Banking and Financial Services General Oversight and Investigations Subcommittee. Subject—The International Monetary Fund, Federal News Service, (United States), 21 Apr. 1998, available on Lexis/Nexis Library NEWS, File ALLNWS.

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website now posts key documents such as Public Information Notices (PINs) following Article IV consultations, Letters of Intent, and Policy Framework Papers underpinning programs supported by the Fund. The Fund needs detailed information from its members as a basis for its economic and policy analysis.60 By encouraging its members to agree to the public release of these documents the Fund reconciles the need for confidentiality with the pressing need for greater transparency. Releasing these documents is a necessary step towards greater transparency, but it is far from sufficient. Because of its reputation as one of the world’s most secretive organizations,61 the IMF must become more transparent in the way it reaches its decisions as well. The IMF Board generally makes its decisions by consensus, rarely taking a formal vote.62 This procedure may promote collegiality within the Board, but it reduces the transparency of the decision-making process. Expanding formal IMF consultations with NGOs would help open up that process and make it easier to hold the Fund and its staff accountable for decisions and policies. III.C.2. Increased attention to social effects and human rights The IMF was established in 1945, a full three years before the adoption of the Universal Declaration of Human Rights began a revolution in international law.63 Although the primary focus of the IMF should remain economic, the work of the IMF should also respect the fundamental values of international human rights law. The practice of the IMF and its members in this regard has been evolving. One aspect of this issue concerns the effect of Fund policies upon the basic human needs of impoverished individuals. With its new focus upon poverty-reduction programs such as the HIPC initiative,64 the Fund has implicitly acknowledged the need for attention to the social effects of its policies. The Finance Ministers of the G7 countries have endorsed the idea of “a strengthened link between debt relief and poverty reduction” through the enhancement of the HIPC Initiative.65

60 “The Fund may require members to furnish it with such information as it deems necessary for its activities.” Articles of Agreement of the IMF, Article VIII(5)(a). 61 “Though it is concerned with neither military nor intelligence matters, the International Monetary Fund is one of the most secretive organizations in Washington.” C.Farnsworth, I.M.F.: Unveiling a Secretive Agency, NY Times (10 June 1986), Late City Final Edition, A24. 62 The U.S. Executive Director to the IMF testified before Congress that, during her tenure, there had been only 12 formal votes out of more than 2,000 decisions made by the Board. See Karin Lissakers, U.S. Executive Director of the IMF, in Review of the Operations of the International Monetary Fund, Testimony before the Subcommittee on General Oversight and Investigations, Committee on Banking and Financial Services, U.S. House of Representatives, 105th Cong., 2nd Sess., 21 Apr. 1998, 27, 46, and 47. 63 See, W.M.Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 AJIL (1990), 866, 873. 64 See n. 37 above and text thereto. 65 Text of statement issued by G-7 finance officials, Japan Economic Newswire, 25 Sept. 1999 (Available on Lexis/Nexis, Library: NEWS, File: WORLD).

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In a largely symbolic gesture, the Managing Director of the IMF announced that the successor to the Enhanced Structural Adjustment Facility (ESAF) will be named the Poverty Reduction and Growth Facility.66 These developments indicate a limited trend towards IMF attention to social issues, but the IMF’s member states may require a significant acceleration of this trend in the future. In July of 1999 the IMF announced its plan to auction off 10 per cent of its gold reserves (300 tons) to raise $2 billion for HIPC debt relief for the poorest countries.67 Gold-exporting countries such as Ghana and South Africa protested that the sale would further depress gold prices and send more miners into unemployment. Members of the US Congress from gold-producing states also opposed the sale.68 The Fund eventually conceded that the plan could have “an adverse social and economic impact” and decided to sell the gold to central banks instead of on the open market.69 If the IMF can respond to social concerns in conducting its gold sales, it can incorporate them into its lending decisions as well if its members so demand. More controversial than the issue of social effects is that of human rights. Should the IMF refuse support to a government responsible for gross violations of human rights, or should human rights be considered a political issue extraneous to the IMF’s economic mission?70 Some IMF members, such as the US, now accept that human rights concerns can be relevant to Fund decision-making.71 In keeping with the Fund’s Charter and the practice of its members, human rights considerations are legitimately relevant insofar as these may have tangible economic effects. This threshold needs further definition based on the general agreement of the Fund’s members. III.C.3. Formalizing consultations with NGOs and civil society The very limited exchanges between the IMF and civil society (including NGOs) have for the most part developed only in the 1990s, and even now these exchanges have been only “weakly institutionalized and haphazardly sustained”.72 There are a number of reasons for this state of affairs.

66 Address by Michel Camdessus, Chairman of the Executive Board and Managing Director of the International Monetary Fund to the Board of Governors of the Fund, Washington, D.C., 28 Sept. 1999, (accessed 30 Nov. 1999). 67 Paul Blustein, IMF, Nations Plan to Sell Gold Stir Political Fight; Foes Say Sale of Gold Reserves Will Undermine Debt-Relief Plan, The Washington Post, 8 July 1999, E01. 68 See, Gold Sale to Plunge South African Miners into Misery, Xinhua News Agency, 4 July 1999, available on Nexis/Lexis, Library:NEWS, File: ALLNEWS. 69 D.Doyle, IMF to Change Tack on Planned Gold Sale, The Independent (London), 3 Sept. 1999, 16. 70 Ghébali refers to one type of organizational dysfunction within the UN specialized agencies as “extraneity”, i.e. “the systematic insertion of extraneous issues into agendas, debates and work programmes…exemplified by the intrusion of the Middle East question into the debates of virtually all the agencies since 1973”. V.Ghébali, The Politicisation of UN Specialized Agencies: A Preliminary Analysis, 14 Millennium: J. International Studies (1985), 322. 71 See D.Sanger, IMF Funding Is Tangled In US. Debate on Rights, Int’l Herald Tribune (23 Apr. 1998), 10. 72 See J.Scholte, The IMF Meets Civil Society, 35 Finance & Development (No. 3, Sept. 1998). Accessible at http://www.imf.org/external/pubs/ft/fandd/1998/09/scholte.htm.

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IMF relations with NGOs touch upon three of the bugbears of the IMF: the IMF’s traditional aversion to dealing with non-state actors, the IMF’s “institutional culture of secrecy”, and the reluctance of the IMF, as an institution focused on macroeconomic policy, to address the social issues of primary concern to NGOs. Civic organizations are some of the harshest critics of the IMF, and the Fund has been reluctant to enter into a dialogue with these critics. Concerns about maintaining the confidentiality of sensitive information (which is necessary to some degree despite the overall need for increased transparency), and the fear of being diverted into a non-constructive and “uncivil”73 dialogue have contributed to this reluctance. The generalized fear of NGOs is an aspect of an institutional culture of secrecy at the IMF.74 This culture will have to change both because it is inconsistent with principles of good governance espoused by the Fund, and because (like any failure of governance) it is an obstacle to progress in improving performance. The IMF has been criticized for relying too much upon the same formulas and approaches in dealing with a diverse group of borrowing countries.75 Indeed, even former IMF Managing Director Michel Camdessus has acknowledged that the IMF must make more of an effort to tailor its policy advice to the local situation of debtor states.76 An improved dialogue between the IMF and representatives of civil society in borrowing countries will be an indispensable step in achieving this goal. The experience of the World Bank proves that NGO contacts are the best way to introduce proper concern for social policies and good governance to the internal operations of the IMF. Unlike the IMF, the Bank has moved aggressively over the last 15 years to institutionalize a strong cooperative relationship with NGOs.77 One of the most forward-looking elements of this evolving relationship was the creation of the World Bank Inspection Panel in 1993.78 This three-member body of independent experts receives requests from private citizens alleging actual or likely harm resulting from the Bank’s failure to follow its own policies and procedures. So far, twelve requests for inspection have been filed, and only two of the five investigations recommended by the Inspection Panel have been approved by the World Bank’s Board.79 While these numbers don’t sound very impressive, the very creation of the Inspection Panel was a landmark in the development of international

73 74 75 76

Ibid. Ibid. See Hawkins, n. 46 above. See M.Camdessus, Global Financial Reform—The Evolving Agenda (Remarks by the IMF Managing Director at the Council on Foreign Relations, New York), M2 Presswire, 7 June 1999 (available on Lexis/Nexis, Library: NEWS, File: WORLD). 77 See, The World Bank Operational Manual, Good Practices Involving Nongovernmental Organizations in Bank-Supported Activities, GP 14.70, Mar. 1998. 78 See, The World Bank Operational Manual, Bank Procedures, Inspection Panel, BP 17.55, Aug. 1999. 79 See, The Inspection Panel for the World Bank, Requests for Inspection Summaries, June 1998, , accessed 27 Nov. 1999.

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institutions. It has established the principle that international organizations can be held accountable to the public, and will surely inspire new and better mechanisms of this kind in the future. III.D. Building the new consensus A new consensus on IFIs is needed, but how can this be achieved? The technocrats of the IMF and the World Bank have struggled to adapt IFI policies to the conditions of the rapidly-evolving global economy but their efforts can only take things so far. An important lesson from the 1940s is relevant here. The IMF cannot take its members beyond the consensus of its members any more than the GATT of 1945 could take the states to the free trade promised land of the proposed ITO. A new round of international negotiations will be needed before the IMF can act with legitimacy to break such new and radical ground. In recent years the need to modify existing international institutions, or to create new ones, has been the occasion for intensive rounds of international negotiations. The transformation of the old GATT framework into the new World Trade Organization was painstakingly negotiated in diplomatic conferences held over several years. The sometimes violent demonstrations at the 1999 Seattle WTO meeting complicated efforts to start another phase of trade negotiations. In matters of international justice, it took years of periodic negotiations hosted by the United Nations, and a five-week diplomatic conference in Rome before the Statute of the International Criminal Court could be adopted in 1998.80 The failure of the international consensus on macroeconomic policy and governance issues indicates that a diplomatic conference will ultimately be needed to address these issues. Some details of international cooperation are too important to be left for decision by faceless international technocrats. As always, the political and diplomatic process will take some time. There has been far too little informed81 and realistic public debate on the IMF and its future at either the national or the international levels. IV. Conclusions The Asian financial crisis did not create the problems at the IMF, but did serve to bring them to light at a critical moment. Economic globalization leaves national

80 See B.Brown, US Objections to the Statute of the International Criminal Court: A Brief Response, 31 NYU JILP (1999), 855. 81 Hundreds of protesters chanted against free trade at the annual assembly of foreign ministers from the OAS in June of 2000. This is evidence both of the high level of fear and concern about the effects of economic globalization, and of the unwillingness of these particular protesters to distinguish between the international organizations responsible for economic globalization, such as the IMF, and those which are not, such as the OAS. See, Trade Protesters Descend on Hemisphere Meeting, NY Times (5 June 2000), A4.

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economies more vulnerable to external developments, and the need for a viable international monetary system is greater than ever. But to be both effective and legitimate that system must be based upon a more solid technical and political consensus. There is usually a lag between the crumbling of an old framework and agreement upon the specifics of the new one. In a time of such shifting norms, it is especially important to maintain a principled approach to the development of the needed reforms. A new consensus on the IMF, reflecting the lessons of the recent crisis, should be founded upon a few key legal principles. In responding to the Asian crisis the IMF overreacted in the short run, and compounded the mistakes made at the national level with policy errors of its own. The first principle is therefore that the IMF should follow the physician’s rule of “First, do no harm”. Another principle, which is essentially a corollary of the first, is that the IMF itself must be held accountable for its errors. This goal can only be achieved if there is greater transparency in IMF governance, so as to facilitate monitoring and accountability. No hidden agenda of the managers or staff of the IMF or of any individual member, should be allowed to subvert the power and influence of that institution. The IMF must also be more sensitive to the social effects of its operations and should be informed by direct formal consultations with NGOs. Finally the principles originally designed to protect the Fund from politicization should be maintained. The economic ramifications of political factors are properly relevant to the IMF’s decisions. The renewed debate about the political parameters of IMF decision-making shows once again that the old international consensus has become obsolete. In the past, member-countries have allowed the IMF itself to decide how that institution should adapt, but they no longer have that kind of confidence in the Fund. Only an open transnational debate and a round of high-level political negotiations can clarify the future of the IMF, but this will not be possible until that institution achieves greater transparency. The future of the IMF cannot be properly debated behind a curtain of secrecy. To be viable, the new international financial architecture must be built upon a democratic foundation. There is a strong need at present for an open, informed and public debate about the proper role of the IMF.

9

Passing the baton: the delegation of Security Council enforcement powers from Kuwait to Kosovo Simon Chesterman*

The purpose of the enforcement action under Article 39 is not to maintain or restore the law, but to maintain, or restore peace, which is not necessarily identical with the law. Hans Kelsen, 19501

I. Introduction By late October 1990, Iraq had occupied Kuwait for more than two months and a consensus was emerging between the United States and the USSR that some form of enforcement action might be authorized by the Security Council. In the course of negotiations, a senior US State Department official was quoted to the effect that, “[l]egally, our position and the position shared by others is that Article 51 provides a sufficient basis under international law for further action”. A Council resolution authorizing some specific military action would, however, “provide a firmer political basis”.2 There was little serious discussion of establishing an independent UN force; rather, the preferred action would put coalition forces under a kind of UN “umbrella”. On a visit to Moscow on 8 November, US Secretary of State James Baker lobbied for such a resolution, citing President Mikhail Gorbachev’s 1987 speech on enhancing the role of the UN.3 Gorbachev suggested that the Council pass two resolutions: the first, adopted in late November, would authorize force after a six week grace period; the second would provide the actual go-ahead. Baker proposed a single resolution with a grace period before it would become operative.4

*

The author would like to thank Ian Brownlie, Michael Byers and Sven Koopmans for their comments on previous drafts of this article. 1 Hans Kelsen, The Law of the United Nations (1950), 294. 2 T.Friedman, Allies Tell Baker Use of Force Needs UN Backing, NY Times (8 Nov. 1990), A14. 3 Mikhail S.Gorbachev, Reality and the Guarantees of a Secure World, in FBIS [Foreign Broadcast Information Service] Daily Report: Soviet Union, 17 September 1987, 23–28, cited in David Malone, DecisionMaking in the UN Security Council: The Case of Haiti, 1990–1997 (1998), 8. 4 T.Friedman, How US Won Support to Use Mideast Forces, NY Times (2 Dec. 1990), 1:1; M. Beschloss & S.Talbott, At the Highest Levels: The Inside Story of the End of the Cold War (1993), 282. 148

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When he met the Soviet Foreign Minister Eduard Shevardnadze in Paris on 18 November, the United States believed it had the votes for a resolution but the USSR demurred;5 among other concerns, Shevardnadze insisted that the actual word “force” not be used. Baker came up with five different euphemisms, finally settling on the phrase “all necessary means”.6 On 29 November 1990, resolution 678 (1990), was adopted by twelve votes to two (Cuba and Yemen, with China abstaining). In its operative paragraph, the Security Council Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements…the foregoing resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.7 The extraordinary breadth of the resolution was barely remarked upon during debate. Cuba and Iraq denounced it as illegal for its failure to refer to the relevant articles of Chapter VII,8 but only Yemen expressed concern at the possible scope of “restor[ing] international peace and security in the area”.9 Resolution 678 (1990) provided the template for most of the enforcement actions taken through the 1990s: it was dependent on the willingness of certain states to undertake (and fund) a military operation; it conferred a broad discretion on those states to determine when and how the enumerated goals might be achieved; it limited Council involvement to a vague request to “keep the Security Council regularly informed”;10 and it failed to provide an endpoint for the mandate. These four elements came to typify the manner in which the authority to maintain peace and security was delegated by the body given primary responsibility in this area. Early questions about the procedural legality of this adaptation of the Council’s role now appear moot in light of the practice over the past decade. The Council has delegated its Chapter VII powers to member states for a variety of objectives: to counter a use of force by a state or entities within a state; to carry out a naval interdiction; to enforce a Council-declared no-fly zone; and to ensure implementation of an agreement that the Council has deemed is necessary for the maintenance or restoration of peace.11 Of central interest here is the extent to which Council actions over the course of the

5 A.Rosenthal, Bush Fails to Gain Soviet Agreement on Gulf Force Use, NY Times (20 Nov. 1990), A1. 6 Beschloss and Talbott, above n. 4, 284; David Hoffman, Six Weeks of Intense Consultations Led to UN Resolution, Washington Post (2 Dec. 1990), A1. 7 SC Res 678 (1990), para. 2. 8 S/PV 2963 (1990), 20–21 (Iraq), 58 (Cuba). 9 S/PV 2963 (1990), 33 (Yemen). 10 SC Res 678 (1990), para. 4. 11 See Danesh Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (1999), 167–246.

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past decade in fact mark a trend away from the substantive provisions of the collective security system envisaged in the UN Charter—and, indeed, that envisaged in the “New World Order” rhetoric amid the euphoria that followed Operation Desert Storm. This chapter argues that the weakening of the normative framework of the collective security system can be tracked in the progression from open-ended resolutions “authorizing” unilateral action, to the retrospective validation of actions by regional arrangements and, finally, unilateral action claimed to be “in support of” Council resolutions. First, it will be necessary to examine the legal and political bases for delegating Security Council enforcement powers. This provides a framework for the analysis of the normative consequences of such delegation. Section II then considers the effect that handing over effective responsibility for enforcement actions has on the initial decision to take such action and the increasingly explicit links with the self-interest of the acting state(s). The central argument advanced here is that the Council’s practice of delegating its enforcement powers has depended more upon a coincidence of national interest than on procedural legality. It would be naïve to expect complete disinterestedness on the part of states exercising such delegated power. Nevertheless, the trend towards action in advance of Council authorization can, in part, be attributed to the reduction of delegation to a mere formality. II. The delegation of Security Council enforcement powers The Security Council resolutions delegating its enforcement powers to states or regional arrangements uniformly use the term “authorize”. This is misleading. Whereas an authorization implies the conferring of a limited power to exercise a function, delegation more properly denotes a broader discretion to use the power held by the delegator. As Danesh Sarooshi observes, this is an important distinction to maintain, even if it is not always clear in formal terms.12 Though some of the delegations discussed in this article were circumscribed by Council requirements as to the objectives, reporting requirements or time limits, the central characteristic has been the transferral of discretion in the exercise of Council powers to the acting state(s). This section discusses the emergence of delegation in Council practice and the modalities of delegation through the 1990s. The provisions in the UN Charter concerning Security Council enforcement actions presume the existence of agreements with member states to make forces available to the Council “on its call”.13 Article 106, for example, provides for transitional security arrangements “[p]ending the coming into force of such special agreements referred to in Article 43 as in the opinion of the Security Council enable

12 Sarooshi, above n. 11, 13. 13 UN Charter, art 43(1). Such agreements were to be negotiated “as soon as possible”: art 43(3).


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it to begin the exercise of its responsibilities under Article 42”.14 Governments at the San Francisco Conference and many subsequent commentators on the Charter considered Article 43 agreements a condition precedent to collective military measures by the Security Council.15 Such agreements were never concluded. Some sixteen years after the formation of the UN a number of states refused to pay for the UNEF and ONUC peacekeeping operations in the Middle East and the Congo, arguing inter alia that they involved military forces operating outside of Article 43 agreements and were therefore unconstitutional. In the Certain Expenses advisory opinion, the ICJ held that these were not, in fact, enforcement actions under Chapter VII, but went on to outline a broad compass for Security Council action under Chapter VII: [A]n argument which insists that all measures taken for the maintenance of international peace and security must be financed through agreements concluded under Article 43, would seem to exclude the possibility that the Security Council might act under some other Article of the Charter. The Court cannot accept so limited a view of the powers of the Security Council under the Charter. It cannot be said that the Charter has left the Security Council impotent in the face of an emergency situation when agreements under Article 43 have not been concluded.16 This flexibility has been confirmed by subsequent practice and a strong argument may now be made that agreements under Article 43 are not a prerequisite to enforcement action under Article 42—merely to the ability legally to compel participation by member states at large.17 On this reading, Article 42 also provides the basis for voluntary action by member states acting on Council authorization.18

14 UN Charter, art 106. 15 See 12 UNCIO 508–12; Kelsen, above n. 1, 756; Leland M.Goodrich & Anne P.Simons, The United Nations and the Maintenance of International Peace and Security (1955), 398–405; Yoram Dinstein, War, Aggression and Self-Defence (2nd ed., 1994), 296–297. 16 Certain Expenses case, ICJ Reports 1962, 151, 167. 17 See, e.g. J.Halderman, Legal Basis for United Nations Armed Forces, 56 AJIL (1962), 971; Rosalyn Higgins, 2 United Nations Peacekeeping 1946–1967: Documents and Commentary: Asia (1970), 176–77; O.Schachter, United Nations Law in the Gulf Conflict, 85 AJIL (1991), 464; R.Higgins, The New United Nations and the Former Yugoslavia, 69 International Affairs (1993), 465, 468; M.Bothe, PeaceKeeping, in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (1994), 590–91. 18 Cf. Schachter, above n. 17, 464–65. 19 See, e.g., E.Rostow, Until What? Enforcement Action or Collective Self-Defense?, 85 AJIL (1991), 506; Schachter, above n. 17, 459–460; Dinstein, above n. 15, 272; D.J.Harris, Cases and Materials on International Law (5th ed., 1998), 961–962.

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At the time of the Gulf War, a number of writers persisted with the argument that the absence of Article 43 agreements deprived resolution 678 (1990) of any legal basis, with many preferring to locate the basis for the action of coalition states in the collective self-defence provisions of Article 51.19 Devoid of legal significance, the resolution was regarded as more of a public relations exercise.20 In light of the large number of such operations undertaken in the 1990s, such a distinction now appears untenable.21 Most criticism of resolution 678 (1990) focused on the decision to delegate the enforcement powers of the Security Council, invoking either the letter or the spirit of the Charter. In addition to the requirement for Article 43 agreements, some writers noted that Articles 46 and 47 imply that enforcement actions should take place under the control of the Council and the Military Staff Committee.22 Others argued that the primary responsibility for peace and security conferred upon the Council by Article 24 was incompatible with delegation,23 and that in handing over control of the operation to the coalition forces, the Council “eschewed direct UN responsibility and accountability for the military force that ultimately was deployed”.24 These criticisms recall earlier disputes about the legal status of the Korean operation in 1950.25 That case was further complicated by the Council’s use of the word “recommend” in the relevant resolution,26 recalling the language of Article 39. The geopolitics of the Cold War ensured that the legal ambiguities of the Korean operation were left unresolved. The precise legal basis for delegation remains in dispute. One view is that, as a matter of the law of international institutions, the Council has competence to delegate Chapter VII powers to member states. This competence is located in the practice of the Council and other UN organs, and in an interpretation of Articles 42 and 53 of the Charter.27 Sarooshi has argued that a corollary of this position is that there are certain limits on the Security Council’s power of delegation: a minimum degree of clarity, a requirement for some form of supervision on the part of the Council, and

20 Schachter, above n. 17, 460. Cf. above n. 2. 21 Cf. K.Kaikobad, Self-Defence, Enforcement Action and the Gulf Wars: 1980–88 and 1990–91, 63 BYIL (1992), 299, 353–363; J.Quigley, The “Privatization” of Security Council Enforcement Action: A Threat to Multilateralism, 17 Michigan JIL (1996), 249, 269–270. 22 See, e.g., B.Urquhart, Learning from the Gulf, New York Review (7 Mar. 1991), 34. 23 See, e.g., M.Bothe, Les limites des pouvoirs du Conseil de sécurité, in R.J.Dupuy (ed.), The Development of the Role of the Security Council: Peace-Keeping and Peace-Building (1993), 73. 24 B.Weston, Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy, 85 AJIL (1991), 516, 517. 25 See, e.g., Kelsen, above n. 1, 756; Leland M.Goodrich, Edvard Hambro & Anne Patricia Simons, Charter of the United Nations: Commentary and Documents (3rd ed., 1969), 315–16; Harris, above n. 19, 955. 26 SC Res 82 (1950); SC Res 83 (1950); SC Res 84 (1950). 27 See generally Sarooshi, above n. 11, 142–66. 28 Ibid., 155–163; J.Lobel & M.Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime, 93 AJIL (1999), 125.


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a requirement that the Council oblige member states to report on the way in which the delegated powers are being exercised.28 Secondly, it has been argued that the Council possesses—or has created—a general implied power under the Charter to authorize member states to use force.29 This view is based on an “effective” interpretation of the Charter and finds some support in the Reparation case.30 It has the benefit of “fitting” all purported delegations, but at the expense of any clear limitations on the Council’s power to delegate. Thirdly, it has been argued that Article 48 of the Charter, which provides that the “action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all Members of the United Nations or by some of them, as the Security Council may determine”, allows the Council to delegate its Chapter VII powers.31 This interpretation has received little support. Article 48 refers only to the execution of decisions of the Council, which must find their basis in other provisions.32 Its effect is to restate the obligation of members to carry out the decisions of the Council and to allow the Council flexibility in its mandate by giving it discretionary authority to decide which members shall be called upon to take action.33 The experience of the Security Council over the decade following resolution 678 (1990) has seen procedure evolve through practice: the delegation of Chapter VII powers now appears to have gained relatively broad acceptance, with few publicists seriously contesting its legitimacy after about 1996,34 and very few states criticizing delegation in principle.35 Such an organic interpretation of the UN Charter is not

29 See T.Franck & F.Patel, UN Police Action in Lieu of War: “The Old Order Changeth”, 85 AJIL (1991), 63, 74; O.Schachter, Authorized Uses of Force by the United Nations and Regional Organizations, in L.Damrosch & D.Scheffer (eds.), Law and Force in the New International Order (1991), 68; Weston, above n. 24, 522 (referring to “Article 42 1/2”); H.Freudenschuss, Between Unilateralism and Collective Security: Authorizations of the Use Force by the UN Security Council, 5 EJIL (1994), 492, 526; G.Gaga, Use of Force Made or Authorized by the United Nations, in C.Tomuschat (ed.), The United Nations at Age Fifty: A Legal Perspective (1995), 41; F.Kirgis, The Security Council’s First Fifty Years, 89 AJIL (1995), 506, 521. 30 See Reparation case, ICJ Reports 1949, 174, 179, 182: “Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.” See also the discussion of the Certain Expenses case, above n. 16. 31 UN Charter, art 48(1). See, e.g., M.Weller, The Kuwait Crisis: A Survey of Some Legal Issues, 3 African JICL (1991)1, 25–26; C.Greenwood, The United Nations as Guarantor of International Peace and Security: Past, Present and Future—A United Kingdom View, in C.Tomuschat (ed.), The United Nations at Age Fifty: A Legal Perspective (1995), 69–70. Cf. Kelsen, above n. 1, 756. 32 Brun-Otto Bryde, Articles 44–50, in Simma, above n. 17, 652. 33 Goodrich, Hambro & Simons, above n. 25, 334. 34 See, e.g., Urquhart, above n. 22 (criticizing SC Res 678 (1990)) and cf. Brian Urquhart, How Not to Fight a Dictator, New York Review (6 May 1999), 25 (referring to the Council’s actions as “exemplary and prompt”). 35 In addition to the criticism of SC Res 678 (1990) on Iraq, see also the criticism of SC Res 940 (1994) on Haiti: S/PV 3413 (1994) 5 (Cuba), 10 (China). The policy concerns attendant to handing over primary responsibility for peace and security are considered below. 36 GA Res 377A(v) (1950).

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uncommon—Secretary-General Dag Hammarskjöld famously located the basis for peace-keeping in “Chapter VI 1/2” of the Charter, and the Uniting for Peace resolution was a legally questionable response to Security Council deadlock.36 But it is not an adequate response simply to conclude that the Council may play “fast and loose” with the Charter, privileging success over legitimacy.37 Rather, it is necessary to adopt a more nuanced critique of the practice of delegation. The greatest innovation of the UN Charter was the prohibition of the use of force by member states other than in self-defence, with the authority to use force in other situations reserved to the Security Council. The Covenant of the League of Nations, by contrast, merely gave its Council the power to advise members of the League on matters of collective security: the decision to act on any such advice lay ultimately with states themselves.38 In many respects, current practice resembles this structure more than that originally envisaged in Chapter VII.39 A central concern with such an application of the Charter, then, is the extent to which a liberal attitude to Security Council authority affects the more basic normative constraints on unilateral action. A preliminary question that must be considered is where delegated enforcement action fits within the collective security regime of the UN Charter. In June 1992, Secretary-General Boutros Boutros-Ghali attempted to outline a framework within which the revitalized United Nations could play a more significant role in maintaining international peace and security. An Agenda for Peace defined four key areas in which the Organization could assist in the resolution and prevention of conflict: (a) Preventive diplomacy—action to prevent disputes from arising between parties, to prevent existing disputes from escalating into conflicts, and to limit the spread of conflicts when they occur. (b) Peace-keeping—the deployment of a UN presence in the field, with the consent of the parties concerned, normally involving UN military and/or police personnel and frequently civilians as well. (c) Post-conflict peace-building—action to identify and support structures that strengthen and solidify peace to avoid a relapse into conflict.

37 Quigley, above n. 21, 260. Cf. D.Caron, The Legitimacy of the Collective Authority of the Security Council, 87 AJIL (1993), 552, 554 n. 8; R.Falk, The United Nations and the Rule of Law, 4 Transnational L & Contemporary Problems (1994), 611, 613 n. 4. 38 Covenant of the League of Nations, art 10: “The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.” 39 Cf. Quigley, above n. 21, 261. 40 An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping (Report of the SecretaryGeneral pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992), UN Doc. A/47/277-S/24111 (1992), paras. 20–21.


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(d) Peacemaking—action to bring hostile parties to agreement, “essentially through such peaceful means as those foreseen in Chapter VI of the Charter”.40 The first three areas of action were premised on the consent of the parties concerned and will not be directly considered here. “Peacemaking”, by contrast, was applicable to hostile parties and embraced a range of options, from adjudication by the ICJ and non-coercive humanitarian assistance, to sanctions and the use of military force by member states authorized by the Security Council or “peace-enforcement units” operating under Article 43 agreements.41 This schema did not reflect practice, however, and in the Secretary-General’s March 1994 report on peace-keeping, peaceenforcement constituted an independent category,42 as it did in the more conservative Supplement to An Agenda for Peace of January 1995.43 The search for an effective taxonomy is of more than academic interest. Clarity of mandate has been one of the primary concerns of “Blue Helmets” operating under UN command and national troops under UN authorization—a major criticism of the Security Council has been the tendency for such mandates to relate more to the political climate in New York than the situation on the ground.44 As the concern here is with the legality of the use of force, the focus will be on “peace-enforcement” (here referred to simply as enforcement actions) and those situations in which peacekeeping adopts a more “muscular” profile (variously described as “extended” peacekeeping in Whitehall or “aggravated” peace-keeping in the Pentagon45). The lack of coherence in the manner in which the Council delegated its enforcement powers in the period 1990–1999 has spawned a veritable cottage industry of analysis and critique. It is, however, useful to carve out some basic conceptual categories in the different forms of delegation adopted by the Security Council. Broadly, five classes of action can be identified: (i) Article 42 action by the Security Council using troops contributed pursuant to Article 43 agreements; (ii) action under the command of the Secretary-General; (iii) action by any state; (iv) action by certain nominated state(s); and (v) action by regional arrangement(s). These will be considered in turn.

41 Ibid., paras. 34–44. 42 A/48/403-S/26450 (1994), para. 4. 43 Supplement to An Agenda For Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations, UN Doc. A/50/60-S/1995/1 (1995), paras. 77–80. 44 See below Section III.B. 45 T.Weiss, Rekindling Hope in UN Humanitarian Intervention, in W.Clarke & J.Herbst (eds), Learning from Somalia: The Lessons of Armed Humanitarian Intervention (1997), 211.

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II.A. Action by the Security Council under Article 42 The failure to implement the collective security system as envisaged by the framers of the Charter is well known. In particular, agreements to place military forces at the disposal of the Security Council were never completed,46 and the Military Staff Committee (MSC), which was to advise and assist the Security Council on the “employment and command of forces placed at its disposal”,47 remains little more than a curiosity. Its published records indicate that the MSC has met once every two weeks since February 1946; in over fifty years, it has done nothing of substance since it reported to the Council in July 1948 that it was unable to complete the mandate given to it two years previously. Meetings presently last a couple of minutes.48 There are, occasionally, proposals to reinvigorate the MSC and conclude agreements under Article 43.49 President Gorbachev suggested that the MSC be activated to manage the Council’s response to Iraq’s invasion of Kuwait;50 resolution 665 (1990) requested the MSC to co-ordinate a naval “interdiction” against Iraq, though its involvement was ultimately restricted to a few informal meetings for the exchange of information.51 In An Agenda for Peace the Secretary-General recommended that the Security Council, supported by the MSC, “initiate negotiations” towards Article 43 agreements.52 By the time of the Supplement, however, this was merely “desirable in the long term”; to attempt to do so at the present time would be “folly”.53

46 UN Charter, art. 43. See Andrew Boyd, Fifteen Men on a Powder Keg: A History of the UN Security Council (1971), 78–81. 47 UN Charter, art. 47(1). 48 Sydney D.Bailey & Sam Daws, The Procedure of the Security Council (3rd ed., 1998) 274. See also Boyd, above n. 46, 80; Bryde, above n. 32, 648. 49 For an early example, see GA Res 2734 (XXV) (1970), para. 6. 50 See Frank J.Prial, Crisis Breathes Life into a Moribund UN Panel, NY Times (6 Sept. 1990), A20; Paul Lewis, Security Council’s Military Panel Reviews Naval Efforts to Enforce Trade Embargo, NY Times (19 Sept. 1990), A11; P.Lewis, Soviet Announces Shift on UN Staff Demanded by US, NY Times (4 June 1988), A1. 51 Bailey and Daws, above n. 48, 280. 52 Agenda for Peace (1992), para. 43. See also S.Murphy, The Security Council, Legitimacy, And the Concept of Collective Security After the Cold War, 32 Columbia JTL (1994), 201, 275. 53 Supplement to An Agenda for Peace (1995), para. 77. 54 Cf. Schachter, above n. 17, 464; Dinstein, above n. 15, 297–299. 55 Rick Atkinson, US to Leave Somalia with Its Guard up: Officers Say Lessons Learned in Perils of Urban Combat, Foreign Command, Washington Post (8 Dec. 1993), A25. This is, of course, a misrepresentation of UNOSOM II—US troops remained at all times under US command, following US policy, but under a more robust UN mandate as determined by the Security Council. Blaming the UN for the death of Americans was more a rallying call for a return to isolationism than for US independence: see J.Woods, US Government Decisionmaking Processes During Humanitarian


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The relevant Charter provisions are hardly dead letters,54 but the likelihood of member states concluding such agreements in the foreseeable future is slim. In the words of one US officer, quoted during the gun-cocked withdrawal from Somalia in December 1993, the idea of US troops even operating under foreign command would be revived “as soon as it snows in Mogadishu.”55 II.B. Action under the command of the Secretary-General In the absence of a functioning collective security regime, peace-keeping became a substitute for Chapter VII action during the Cold War. With no provision for such operations in the Charter, peace-keeping was a pragmatic institutional response to the geopolitical climate in which the UN found itself. Ultimate political control for such operations remains with the relevant principal organ (typically the Security Council),56 but executive command is delegated to the Secretary-General.57 The legality of such delegation by the Security Council was accepted by the ICJ in the Certain Expenses case,58 and is now established practice.59 As UN peace-keeping operations grew more complex in the 1990s, however, the line between peace-keeping and enforcement actions became blurred. In a departure from the principles of impartiality, consent and minimum force,60 it became common for peace-keepers to be given more “muscular” mandates while remaining under the operational control of the Secretary-General. UNPROFOR, for example, was initially established in February 1992 as a peace-keeping operation with the consent of the Yugoslav and other governments.61 As the situation deteriorated, its mandate was expanded from monitoring demilitarization in certain “United Nations Protected Areas” in Croatia to conducting more complex security operations through Croatia and Bosnia and Herzegovina. Then, in 1993, the Security Council established “safe

Operations in Somalia, in Clarke & Herbst (eds.), above n. 45, 167 (Woods served as Chair of the US Office of the Secretary of Defence Somalia Task Force); J.Howe, Relations Between the United States and United Nations in Dealing with Somalia, in Clarke & Herbst (eds.), above n. 45, 185–86 (Howe was Special Representative of the Secretary-General in Somalia); H.Johnston & T.Dagne, Congress and the Somalia Crisis, in Clarke & Herbst (eds.), above n. 45, 202. 56 The First UN Emergency Force (UNEF I) (1956–1967) and the UN Security Force in West New Guinea (West Irian) (UNSF: 1962–1963) were established by General Assembly resolutions. 57 See Supplement to An Agenda for Peace (1995), para. 38, distinguishing three levels of authority in respect of command and control over UN peace-keeping forces: (a) Overall political direction, which belongs to the Security Council; (b) Executive direction and command, for which the Secretary-General is responsible; (c) Command in the field, which is entrusted by the Secretary-General to the chief of mission (special representative or force commander/ chief military observer). 58 59 60 61 62

Certain Expenses case, ICJ Reports 1962, 151, 177. See Sarooshi, above n. 11, 64. M.Berdal, Whither UN Peacekeeping? (1993), 3. SC Res 743 (1992). SC Res 819 (1993); SC Res 824 (1993).

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areas” around five Bosnian towns and the city of Sarajevo.62 UNPROFOR was given an ambiguous mandate to protect them: [The Security Council authorizes UNPROFOR] acting in self-defence, to take the necessary measures, including the use of force, in reply to bombardments against the safe areas by any of the parties or to armed incursion into them or in the event of any deliberate obstruction in or around those areas to the freedom of movement of UNPROFOR or of protected humanitarian convoys.63 This exhibited an unusual interpretation of a right of “self-defence”, but recalled the expanding mandate given to ONUC forces in the Congo. At the same time, while UNPROFOR operated on the ground an apparently general authorization was given to member states to take “all necessary measures, through the use of air power” to support it in and around the safe areas from the air.64 Though unclear in the resolution, the decision to initiate the use of air power was to be taken by the SecretaryGeneral in consultation with the members of the Security Council.65 This served to deter attacks in the short term, but when it was overrun by the Bosnian Serbs in 1995, the name of one of the safe areas, Srebrenica, became synonymous with the disjunction between Council rhetoric and resolve.66 Conventional wisdom concerning the fall of the Bosnian safe areas was that the international community had failed to learn the lessons of Somalia: that absolute impartiality was the keystone to a peace-keeping operation (i.e., the “Mogadishu line” was crossed), and that UN command provided an unworkable structure for the alternative—an enforcement action.67 The apparent success of NATO air strikes in coercing the parties to negotiate at Dayton, Ohio in November 1995 reinforced this view, and the Dayton Accords were subsequently implemented and maintained by IFOR and SFOR—NATO-run operations authorized by but independent of the Security Council.68 Such wisdom gave rise to three policy changes. First, the strict dichotomy between peace-keeping and enforcement actions was reasserted, most notably by the SecretaryGeneral in his Supplement to An Agenda for Peace.69 Secondly, subsequent enforcement actions were kept under national and, importantly, regional control, rather than under

63 SC Res 836 (1993), para. 9 (emphasis added). 64 SC Res 836 (1993), para. 10. 65 S/25939 (1993). See D.Leurdijk, The United Nations and NATO in Former Yugoslavia: Partners in International Cooperation (1994), 16–17; Sarooshi, above n. 11, 72–73. 66 See Malone, above n. 3, 23. 67 M.Dobbs, Srebrenica Massacre’s Uncertain Legacy: Slaughter by Serbs Last July Prodded NATO to Halt War, Yet Peace Remains Illusory in Bosnia, Washington Post (7 July 1996), A20. Cf. Berdal, above n. 60, 39–41 (discussing the difficulties of command and control in UN peace-keeping activities generally); Leurdijk, above n. 65, 81. 68 See below Section II.E. 69 Supplement to An Agenda for Peace (1995), para. 36. See also S.Tharoor, The Changing Face of Peace-Keeping and Peace-Enforcement, 19 Fordham ILJ (1995), 408. 70 See, e.g., R.Holbrooke, To End a War (1998), 72–73.


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that of the Council or the Secretary-General. Thirdly—and of particular importance to the situation in Kosovo in 1998–1999—Bosnia was taken as proof that superior air power could provide a “clean” resolution to a messy conflict on the ground by coercing belligerents to negotiate. (This view overlooked the importance of Croatia’s ground offensive in reversing Bosnian Serb gains and the effect that the prolonged ground war had had on the parties.)70 II.C. Action by any state The authorization granted by resolution 678 (1990) was general in form: addressed to “Member States co-operating with the Government of Kuwait”, it provided a broad mandate for the international community to respond to Iraqi aggression.71 This was also the approach adopted in the first response to the humanitarian crisis in Bosnia and Herzegovina. Resolution 770 (1992) called upon “States to take nationally or through regional agencies or arrangements all measures necessary” to facilitate delivery of humanitarian assistance in co-ordination with the UN.72 Similarly, in resolutions 816 (1993) and 836 (1993), the Council’s authorization was to states “acting nationally or through regional organizations or arrangements”.73 Two countervailing factors led to the abandonment of such a strategy. On the one hand, there was dissatisfaction with the breadth of the mandate that such an approach entailed; subsequent authorizations were generally more defined in their mandate and their reporting requirements. On the other, the experiences in Somalia and Bosnia led to a more explicit link between UN-authorization and the preparedness of a state or states to act. II.D. Action by nominated state(s) The majority of Chapter VII enforcement actions in the period under consideration were delegated by the Security Council to certain nominated states or regional arrangements. The degree of specificity has varied, however. II.D.1. Authorization excluding (a) certain state(s) First, an authorization may merely operate to exclude a certain state or states. Resolution 678 (1990), for example, authorized “Member States co-operating with the Government of Kuwait” to use all necessary means to restore peace and security— the apparent intention being to exclude Israel from the enforcement action. At the

71 72 73 74

SC Res 678 (1990), para. 2. SC Res 770 (1992), para. 2. SC Res 816 (1993), para. 4; SC Res 836 (1993), para. 10. See above nn. 19–20.

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same time, this terminology also confused the issue as to whether the action was in fact enforcement or collective self-defence.74 II.D.2. Authorization to participate in an operation led by a nominated state Secondly, an authorization may be addressed to member states in general but make their participation subject to the leadership of a nominated state. Though it was not technically an enforcement action, this is analogous to the resolution that put the Unified Command in Korea under US command and control in 1950.75 Operation Restore Hope (UNITAF) in Somalia (1992–1993) was the first enforcement action of this type. Resolution 794 (1992) authorized the Secretary-General and Member States cooperating to implement the offer referred to in paragraph 8 above to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia.76 In language that bordered on the coy, paragraph 8 referred to “the offer by a Member State described in the Secretary-General’s letter to the Council of 29 November 1992”.77 A subsequent provision authorized the Secretary-General and member states concerned to “make the necessary arrangements for the unified command and control of the forces involved, which will reflect the offer referred to in paragraph 8 above”.78 The effect was to hand over responsibility for the military operation to the United States. Resolution 940 (1994) on Haiti was still more discreet, simply authorizing “Member States to form a multinational force under unified command and control”. Nevertheless, US preparedness to organize and lead the operation to reinstall Aristide was made clear in Council debate immediately after the resolution was adopted.79 The resolutions concerning Canada’s proposed operation in Eastern Zaire (1996) and the Italian-led multinational force in Albania (1997), by contrast, both welcomed the offer by a member state to take the lead in organizing and commanding the

75 At the same time, Sarooshi argues that the Security Council delegated other powers to the Unified Command (such as the power to conclude a cease-fire) making it comparable to a subsidiary organ: see Sarooshi, above n. 11, 111–19. 76 SC Res 794 (1992), para. 10. 77 SC Res 794 (1992), para. 8, referring to S/24868. 78 SC Res 794 (1992), para. 12. 79 S/PV 3413 (1994), 13 (statement by Madeleine Albright that “the United States is prepared to organize and lead such a force”). 80 SC Res 1080 (1996), para. 4 (welcoming Canadian offer S/1996/941 to lead an operation in Eastern Zaïre); SC Res 1101 (1997), para. 3 (welcoming Italian offer S/1997/258 to lead operation in Albania). 81 SC Res 1264 (1999), para. 6 (welcoming the “offers by Member States to organize, lead and contribute to the multinational force”, with the Australian offer to lead (S/1999/975) welcomed in the preamble).


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action.80 The resolution authorizing the Australian-led multinational force in East Timor (1999) followed a similar model.81 II.D.3. Authorization solely to nominated state(s) Thirdly, a resolution may explicitly authorize a named state or states to undertake action on the Council’s behalf. Such a practice is not without precedent —resolution 221 (1966) authorized the United Kingdom (named in the resolution) to use force to police the embargo on Southern Rhodesia, though it is arguable as to whether this was in fact an enforcement action.82 Opération Turquoise by France (with Senegal) in Rwanda in 1994 is the only other action to have been undertaken on such a basis. Though such an authorization is not far removed from one in which a state is given leadership of an action, it was presumably the lack of even a suggestion of multilateralism that explains the failure to repeat this practice. An additional concern was that France was hardly the most appropriate state to intervene, given its role in arming and training the predominantly Hutu government forces.83 These reservations were reflected in the five abstentions to resolution 929 (1994) and statements made before and after the vote.84 II.E. Action by regional arrangements (or agencies) 85 Finally, and in what may prove to be the most significant trend in Security Council practice, authorization has, on a number of occasions, been granted to regional arrangements. Delegation to a regional arrangement is less problematic than delegation to member states as it is specifically provided for in Chapter VIII of the Charter, Article 53(1) of which provides that:

82 See Sarooshi, above n. 11, 195–200. 83 J.Murphy, “Force and Arms” in O.Schachter & G.Joyner (eds.), United Nations Legal Order (1995), 248; P.Gourevitch, We Wish to Inform You that Tomorrow We Will Be Killed with Our Families (1999), 88– 90, 154–55. 84 SC Res 929 (1994) adopted 10–0–5 (Brazil, China, New Zealand, Nigeria, Pakistan abstaining). See S/PV 3392 (1994). 85 On the delegation of enforcement powers to regional arrangements generally, see Sarooshi, above n. 11, 247–284 and sources there cited. 86 UN Charter, art. 53(1). 87 See, e.g., S/25996 (1993), 18, in which NATO presents itself as a “collective defence organization” prepared to support peace-keeping activities on a case by case basis. 88 UN Charter, art. 51. 89 The German Constitutional Court has held that NATO may be classified as a type of collective security system, and that German troops could participate in NATO actions directed at the

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The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.86 Though NATO has long resisted characterization as a regional arrangement87 (which would require it to act only on the Council’s authorization, rather than merely to report on measures taken in its capacity as a collective self-defence organization),88 its “out of area” actions will be included within this category.89 Certainly, the resolutions concerning NATO show that the Council has considered it as one of the regional arrangements that may be entrusted with specific enforcement actions.90 Earlier resolutions on Bosnia had authorized member states to act nationally or “through regional arrangements”,91 but the first delegation to a regional arrangement stricto sensu was the IFOR operation that superseded UNPROFOR in Bosnia and Herzegovina. The Dayton Agreement—which had been concluded under the threat of further NATO air strikes—reinforced the view that military rather than political mechanisms were necessary to enforce a peace agreement. This was specifically provided for at Dayton, with the parties “invit[ing]” the Security Council to adopt the resolution to establish IFOR.92 Resolution 1031 (1995), duly adopted, authorized member states “acting through or in cooperation with the organization referred to in Annex 1-A of the Peace Agreement [NATO]…under unified command and control” to take “all necessary measures to effect the implementation of and to ensure compliance with Annex 1-A of the Peace Agreement”.93 As in the case of the US offer to lead troops into Somalia, NATO was not explicitly mentioned in the text of the resolution, nor in resolution 1088 (1996) establishing SFOR as IFOR’S legal successor. Lesser authorizations have also been given to the Economic Community of West African States (ECOWAS) acting through the ECOWAS Cease-fire Monitoring Group (ECOMOG) in Western Africa. The retrospective validation of ECOMOG’S “peace-keeping” role in Liberia (1990–1992) was passed with a preambular reference

90

91 92 93 94 95 96 97

implementation of Security Council resolutions: Adria-, AWACS- und Somalia-Einsatze der Bundeswehr, 90 BVerfGE [Entscheidungen des Bundesverfassungsgerichts] (1994), 286. See also Markus Zöckler, Germany in Collective Security Systems—Anything Goes?, 6 EJIL (1995), 274, 279. For an early argument that NATO may plausibly be considered a regional arrangement, see Hans Kelsen, Is the North Atlantic Treaty a Regional Arrangement?, 45 AJIL (1951), 162. G.Ress, Article 53, in Simma, above n. 17, 730; C.Gray, Regional Arrangements and the United Nations Collective Security System, in Hazel Fox (ed.), The Changing Constitution of the United Nations (1997), 113. Contra Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 EJIL (1999), 10. See above nn. 72–73. Dayton Agreement (1995), Annex 1A, art. I(1)(a). SC Res 1031 (1995), paras. 14–15. SC Res 788 (1992). SC Res 1132 (1997), para. 8. SC Res 1125 (1997), para. 2. UN Press Release SC/6407 (6 August 1997); Keesing’s (1997), 41481.


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to Chapter VIII of the UN Charter, though Chapter VII was only invoked to impose an arms embargo.94 In Sierra Leone (1997–1998), ECOWAS was expressly authorized under Chapters VII and VIII to enforce the arms embargo against rebel forces.95 Two months earlier, the Council specifically approved the “peace-keeping” activities of the Inter-African Mission to Monitor the Implementation of the Bangui Agreements (MISAB) in the Central African Republic (CAR).96 An ad hoc organization formed to supervise the Bangui Agreements, MISAB comprised troops from six countries in the region (Burkina Faso, Chad, Gabon, Mali, Senegal and Togo).97 The ambiguous legal status accorded by the Security Council to NATO’S actions in Kosovo is evidence of the strengths and weaknesses of such a regime. NATO was by then regarded as the United States’ “institution of choice” for defending Western values on “Europe’s doorstep”.98 At the same time, Russia (among others) expressed its concern that an organization specifically set up in opposition to Russian interests was now asserting regional pre-eminence.99 This tension was reflected in the Council resolutions on point: in October 1998, it endorsed agreements concluded under the threat of NATO air strikes,100 but failed to gain support for NATO to follow through with those threats. The requirement that NATO troops be allowed freedom of movement throughout the whole of the FRY101 was one of the main reasons given by the FRY for rejecting the Rambouillet Accords, and the composition of a “peacekeeping” force was a major stumbling block in negotiations to stop the air strikes that followed. In its new Strategic Concept adopted in April 1999, NATO acknowledged the Security Council’s “primary responsibility for the maintenance of international peace and security”.102 This was hailed by President Chirac as a “triumph for French diplomacy”103—France had previously expressed concern about the lack of any clear legal basis for NATO’S threatened action in Kosovo in late 1998.104 Nevertheless, US officials reportedly said that the provision is “virtually meaningless”, because it does not require the alliance to obtain explicit UN Security Council approval for NATO military actions beyond its territory.105 II.F. Conclusion

98 99 100 101 102 103 104 105 106

US Secretary of State Madeleine Albright, Press Conference on Kosovo, Brussels, 8 October 1998 . See, e.g., T.Lippman, Russian Leader Cancels Trip in Protest, Washington Post (24 Mar. 1999), A22. SC Res 1203 (1998), para. 1. Interim Agreement for Peace and Self-Government in Kosovo (Rambouillet Accords), 23 February 1999, S/1999/648, Appendix B, art. 8. NATO Press Release (1999) 65 (24 Apr. 1999), para. 15. W.Drozdiak & T.Lippman, NATO Widens Security “Map”, Washington Post (25 Apr. 1999), A1. S.Erlanger, US to NATO: Widen Purpose to Fight Terror, NY Times (7 Dec. 1998). See above n. 103. Australia’s role in securing authorization to lead INTERFET in East Timor fits a similar model.

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The general trend of Security Council delegated actions in the 1990s, then, was towards intervention only when such action coincided with the preparedness of a regional power to act NATO in Europe, France and ECOWAS in Western Africa, the United States in the Americas.106 Evidence of such a trend has been shown in the form of authorizations, but this was accompanied by a more troubling shift in the practice of the Security Council away from debating international peace and security issues in open session, to granting its formal imprimatur to pre-arranged deals. Such a role depended on a level of political comity that ultimately foundered when national interests clashed over the appropriate response to the situation in Kosovo in 1998–1999. III. The willing and the able In the period under consideration, it became relatively common for the Security Council to authorize an enforcement action without formal debate, or with minimal statements that indicated that the true work was taking place outside the Council.107 The Council is, of course, a political body and such manœuvrings are a necessary part of its work. Nevertheless, two aspects of this procedural shift suggest that the Council delegated more than responsibility for the implementation of its decisions: the increasing dependence of Council action upon offers by member states to undertake or lead a given operation, and the changing role of the Secretary-General. III.A. Offers of acting states The trend towards delegation has been compared to privatization of the Security Council’s responsibility to maintain international peace and security.108 Certainly, the Council has demonstrated a willingness to hand over control of enforcement actions to member states or regional arrangements, and its preparedness to invoke Chapter VII powers at all has been contingent on the political willingness of member states at least to impose sanctions.109 This is commonly viewed as a realistic assessment of the capabilities of the UN. Secretary-General Boutros-Ghali observed that neither he nor the Security Council had the capacity to deploy, direct, command and control

107 108 109 110 111 112

Malone, above n. 3, 13–15. Quigley above n. 21, 250. P.Kooijmans, The Enlargement of the Concept “Threat to the Peace”, in R.J.Dupuy (ed.), The Development of the Role of the Security Council: Peace-Keeping and Peace-Building (1993), 112–13; N. White, The United Nations and the Maintenance of International Peace and Security (1990), 37. Supplement to An Agenda for Peace (1995), para. 77. M.Mandelbaum, The Reluctance to Intervene, 95 Foreign Policy (1994), 11. Walter Clarke, Failed Visions and Uncertain Mandates in Somalia, in Clarke & Herbst (eds.), above n. 45, 9. Modifications were made in the course of Security Council debate, but the substance of both this and resolution 814 (1993) were consistent with Pentagon demands: ibid.


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such operations.110 In the words of one analyst, the UN itself can no more conduct large scale military operations than a trade association of hospitals can conduct heart surgery.111 The UNITAF operation in Somalia confirmed this view in the most graphic terms. Resolution 794 (1992) was not merely contingent on a US offer of troops: the first draft was written in the Pentagon and tailored to US Central Command (CENTCOM) concerns.112 In a statement after the Security Council voted on the resolution, India’s representative reflected on the fact that action was possible only because of the offer of the United States. Together with France and Morocco, India favoured an arrangement under which the United Nations would keep effective political command and control while leaving enough flexibility for the contributing States to retain on the ground the operational autonomy they had requested and which was understandable, given the circumstances…. The present action should not, however, set a precedent for the future. We would expect that, should situations arise in the future requiring action under Chapter VII, it would be carried out in full conformity with the Charter provisions and in the spirit of the Secretary-General’s report “An Agenda for Peace”.113 Such hopes were misplaced. The action to protect Bosnian “safe areas” in 1993 was authorized without a clear leadership role established in advance of the mandate, and was perceived to have failed, in part, for precisely that reason.114 No action whatsoever would have been taken in response to the genocide in Rwanda had France not gone to the Council with a ready-made plan.115 Similarly, the Council only proposed an enforcement action in Haiti when the United States had reversed its position to support and offer to lead such an action.116 The process was repeated in Eastern Zaire (1996) and Albania (1997) where action followed Canadian and Italian offers to lead the respective actions.117 And it seems probable that no action would have been taken in relation to the violence that followed East Timor’s popular consultation on independence from Indonesia, had Australia not offered to lead a multinational force.

113 114 115 116 117 118

S/PV 3145 (1992), 51 (India). See above Section II.B. See above Section II.D.3. See above n. 79. See above n. 80. Weston, above n. 24, 523–525.

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This explicit conjunction of Security Council enforcement actions and national interest has exacerbated the politicization of Council voting. The inducements offered by the United States to members of the Security Council voting on resolution 678 (1990) are merely the most prominent example. These included promises of financial help to Colombia, Côte d’Ivoire, Ethiopia and Zaire, and agreements with the USSR to help keep Estonia, Latvia and Lithuania out of the November 1990 Paris summit conference, and to persuade Kuwait and Saudi Arabia to provide it with hard currency. China’s abstention appears to have been secured by agreements to lift trade sanctions in place since the June 1989 Tian’anmen Square incident, and to support a World Bank loan of US$114.3m.118 Yemen, one of the two states to vote against the resolution, had US$70 million in annual aid from the United States cut off119—minutes after the vote was taken, a senior US diplomat reportedly told the Yemeni representative: “That was the most expensive no vote you ever cast”.120 The other dissenting state (Cuba) was already the subject of extensive sanctions. Similar horse-trading has been documented in relation to the Security Council’s treatment of Haiti. David Malone writes that when an expanded mandate to provide international support for the restoration of democracy was first discussed in the Council, Russia threatened to veto it owing to lack of US support for the language Russia had proposed in a separate resolution welcoming a CIS peace-keeping mission in Georgia. He also suggests that Russia was disappointed that its support for France’s Opération Turquoise had not paid more dividends. It is, he concludes, impossible to determine the extent to which Russian objections to [the draft of resolution 940 (1994)] were bought off by specific promises of a more forthcoming US (and French) position on Georgia and Tajikistan…. Nevertheless, leading Russian, US, and French diplomats do not deny that linkages were loosely established at the time.121 It would be idealistic in the extreme to argue that national interest should not play a role in such actions. Unless the UN establishes its own armed forces it will remain dependent on national forces, which in turn are dependent on domestic political support. The problem, rather, is that as Council authorization has become viewed as a formal step towards legitimate intervention, its substantive role in decisions on international peace and security has been diminished correspondingly.

119 Weston, above n. 24, 524. 120 T.Friedman, How US Won Support to Use Mideast Forces, NY Times (2 Dec. 1990), 1:1. 121 Malone, above n. 3, 107. 122 Ibid. 14, citing confidential interviews.


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III.B. The changing role of the Secretary-General The changing nature of the advice provided by the Secretary-General to the Security Council also reflects the Council’s shift from substantive to formal over-sight of enforcement actions. Increasingly, the Secretary-General’s reports to the Council have served to recommend actions agreed in advance with one or more member states. Reflecting the move from debate in Council to politicking behind closed doors, this approach meant that reports were tailored to comply with the parameters acceptable to member states and to the Permanent Five (P5) in particular.122 In the case of Haiti, the Secretary-General reported to the Security Council that a UN-led operation was beyond the Organization’s capacity. 123 Instead, he recommended another option that would also “conform with the Charter, with past practice and with established principles”:124 authorizing a group of member states to carry out the operation. China abstained from resolution 940 (1994), stating that it was disconcerted by the practice of the Council authorizing certain member states to use force;125 Pakistan supported the resolution, but would have preferred a UNled operation.126 New Zealand also voted in favour of the resolution, but disputed the implications of the Secretary-General’s report: The resource and management difficulties that the United Nations faces are undeniable, but we believe they should be seen as challenges to be overcome, not as excuses for throwing in the towel and abrogating the responsibilities for international-dispute settlement under United Nations auspices which New Zealand and other Governments expect this Organization to fulfil.127 The Secretary-General is, of course, in a difficult position. In particular, the 1990s saw a divergence between the increased costs associated with UN peacekeeping activities and the commitment of the United States (among others) to fulfilling its funding obligations.128 Boutros-Ghali’s reappointment was blocked when he failed to satisfy US requirements in relation to UN reform.129 As the situation in Kosovo deteriorated, his replacement, Kofi Annan, faced the impossible task of maintaining a relevant role for the UN without alienating its major donors or being seen as complicit in NATO unilateralism. He settled on an uncomfortable fence. In January 1999 he stated in a press conference that the use of force in Kosovo might be “unavoidable”:

123 124 125 126 127 128 129

S/1994/828 (1994), paras. 18–19, 25. S/1994/828 (1994), para. 20. S/PV 3413 (1994), 10 (China). S/PV 3413 (1994), 26 (Pakistan). S/PV 3413 (1994), 22 (New Zealand). See generally E.Newman, The UN Secretary-General from the Cold War to the New Era (1998). Such, at least, were the reasons given by the USA: ibid. 190. See now Boutros Boutros-Ghali, Unvanquished: A US-UN Saga (1999). 130 UN Press Release SG/SM/6875 (26 Jan. 1999).

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Normally the use of force in the past for these operations has required Security Council approval. The Council has not discussed this issue fully. There are expectations that there may be difficulties in the Council, one or two members may have difficulties embracing the use of force. But they have not really either vetoed it or not. I think that what I should say here is that given the situation on the ground, if it were to deteriorate very quickly, I think the Council will have to face up to this. We have had other situations where compelling situations on the ground have required the international community to act.130 This extraordinary statement was followed two days later by a speech at NATO headquarters in Brussels, in which he said that the past decade had left the international community with no illusions about the difficulty of halting internal conflicts: “But nor have they left us with any illusions about the need to use force, when all other means have failed. We may be reaching that limit, once again, in the former Yugoslavia.”131 This was reported as a de facto authorization to use force,132 and on 30 January 1999, the North Atlantic Council reissued activation orders (ACTORDS) authorizing the NATO Secretary General to launch air strikes if negotiations in Rambouillet, France, failed to resolve the dispute.133 When air strikes began, Secretary-General Annan could only note that while the UN Charter “assigns an important role to regional organizations”, such as NATO, the Security Council “should be involved in any decision to resort to the use of force.”134 At the same time, he stressed his deep regret that in spite of all the efforts made by the international community, the Yugoslav authorities have persisted in their rejection of a political settlement, which would have halted the bloodshed in Kosovo and secured an equitable peace for the population there. It is indeed tragic that diplomacy has failed, but there are times when the use of force may be legitimate in the pursuit of peace.135 This was interpreted as implicit endorsement of the action,136 an assessment that gained support when he presented five conditions to end the hostilities in Kosovo during the third week of bombing. These included the FRY’s acceptance of an international military presence to ensure a secure environment for the return of the refugees and the unimpeded delivery of humanitarian aid. He continued:

131 132 133 134 135 136 137

UN Press Release SG/SM/6878 (28 Jan. 1999). C.Whitney, NATO Says It’s Ready to Act to Stop Violence in Kosovo, NY Times (29 Jan. 1999). NATO Press Release (1999)12 (30 Jan. 1999). UN Press Release SG/SM/6938 (24 Mar. 1999). Ibid. J.Miller, The Secretary General Offers Implicit Endorsement of Raids, NY Times (25 Mar. 1999). UN Press Release SG/SM/6952 (9 Apr. 1999) (emphasis added).


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Upon the acceptance by the Yugoslav authorities of these conditions, I urge the leaders of the North Atlantic Alliance to suspend immediately the air bombardments upon the territory of the Federal Republic of Yugoslavia.137 This marks a fine line between pragmatism and endorsing NATO’S air campaign. During the Cold War, the Secretary-General’s role in peaceful change and conflict settlement was constrained and defined by Great Power politics. The post-Cold War situation has allowed greater scope for a proactive Secretary-General—notably in Africa, Central America and the former USSR—but the position remains subjectto political constraints that are as strong as before, if less predictable.138 This is especially the case where enforcement actions are concerned. The danger is that in attempting to protect the relevance of the office and the Organization, the Secretary-General becomes complicit in diluting the authority of both. IV. Conclusion If the Council were to be fully faced with the issue, I am not sure whether there would be vetoes on the table or not. But we have to understand in recent history that wherever there have been compelling humanitarian situations, where the international community collectively has not acted, some neighbours have acted. Here for example I have in mind Viet Nam in Cambodia. And that did not destroy, I hope, the international system, and I think given the nature of the regime and what was happening there, the international community came to accept it. Kofi Annan, January 1999139 The progression from the euphoria of the new world order to the cautiously pragmatic approach to the role of the UN in the quote above casts a sobering light on the United Nations Decade of International Law (1990–1999).140 This article has argued that the transition from Operation Desert Storm in Kuwait to Operation Allied Force in Kosovo is not, however, as great as it might at first appear. The Security Council resolutions that authorized the coalition action against Iraq depended upon a broad international consensus, but also upon a coincidence with the national interests of those acting states. In a voluntary regime, this is perhaps inevitable. As subsequent enforcement actions showed, however, this coincidence of interests quickly resolved into a condition precedent to action. This was reflected most graphically in the changing role of the Secretariat, as the Secretary-General’s reports to the Council increasingly reflected pre-arranged deals with the P5. In the

138 139 138

Newman, above n. 128, 189–91. UN Press Release SG/SM/6875 (26 Jan. 1999). GA Res 44/23 (1989).

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lead up to and during Operation Allied Force—where there was no deal—this role as salesman seamlessly transformed into that of apologist. The very smoothness of this transition from Council delegation to unilateralism in Kosovo shows that the veneer of multilateralism in Council actions in the early 1990s was even thinner than suspected at the time, but it also demonstrates three important factors in the emerging international order. First, the action reflected the trend towards regionalism in matters of international peace and security. Secondly, Operation Allied Force was consistent with the view that the use of force—in particular, air strikes—was a decisive factor in averting or stopping internal conflicts. Thirdly, and most importantly, NATO’S action demonstrated the effect of reducing Council authorization to a purely formal level: rather than operating as a source of legal authority, it was seen as one policy justification among others. Reference was made to action being taken “in support of” or “consistent with” Security Council resolutions, and it was on this basis that recourse to force swiftly became the preferred option to continued diplomacy.141 To note the failure to take seriously the provisions of the UN Charter is not simply to bemoan a lack of respect for international law, however. On the contrary, the formal requirements of the Charter encapsulate sound policy requirements that should precede action—even where that action may coincide with the interests of an acting state. Without defending the composition of the Security Council or the continued right of veto, the need to ensure the concurrence or acquiescence of nine members including those with a power of veto ensures that a substantial body of world opinion consents to a particular action. If the role of the Security Council presently approximates that of the Council of the League of Nations, with power merely to recommend action to its members,142 it is possible that an increasingly regionalized international system may yet come to resemble something slightly older—notably, the alliances of the nineteenth century under the Concert of Europe. And, as the aftermath of the war in Kosovo may yet demonstrate, such alliances of convenience do not always remain so.143

139 Cf. Jimmy Carter, Have We Forgotten the Path to Peace?, NY Times (27 May 1999). 142 See above n. 38. 143 For a fuller examination of these and related issues, see S.Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (2001).

10 State responsibility for violations of human rights Wladyslaw Czaplinski

1. The rapid development of international law on human rights during the latest decades had an important influence upon different fields of law indirectly connected with the position of individuals under international law. Some of these interactions found their normative outputs and/or were discussed widely by international lawyers; the others remain explored to a much lesser extent. The issues of responsibility of states for violations of human rights belong to the latter category. The present paper is intended to show the most important problems connected with the issue rather than to elaborate on it in a detailed and exhaustive manner. The topic of state responsibility for infringements of human rights law should be divided into two aspects: responsibility for violations of international instruments on human rights by states-parties, and responsibility of states for violations of customary law. We shall concentrate upon the latter question, although to achieve the clarity of the analysis the most important elements of the responsibility based on the treaty violations will be presented. 2. The regime of state responsibility for violations of human rights treaties is relatively simple and clear, as it is manifestly governed by Article 60 of the Vienna Convention on the Law of Treaties of 23 May 1969. According to its wording (al.2c), every party to the treaty other than the defaulting State is entitled to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. Although—according to al.5—the foregoing provision cannot be applied to provisions relating to human rights treaties (or provisions of treaties relating to the protection of human rights), nonetheless it seems clear that under the regime of the Vienna Convention, responsibility for a violation of a multilateral treaty can be invoked by every party to such treaty, and the only problem to be discussed is the possible scope of remedies at the disposal of the parties concerned. In some cases these consequences are defined in the treaty itself, in other cases they can be deduced from the law on state responsibility.1

1

A detailed analysis of this interesting topic would be too extensive; we can indicate some 171

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Some subsystems dealing with the protection of human rights based on international agreements (multilateral conventions) can be defined as self-contained regimes. This is especially true in respect of the legal system of the European Union. The protection of fundamental rights (understood as classical freedoms and liberties) was introduced into the Community legal order in a series of decisions of the European Court of Justice.2 The ECJ established some general principles in this respect: fundamental rights originate from the common constitutional tradition of the Member States, and from international agreements concluded or adhered to by all Member States. The European Convention on Human Rights of 1950 establishes a general standard for the protection of fundamental rights within the Community (although it happens that the ECJ interprets the content of specific rights in a different way than the Strasbourg organs); every judge (including also a national judge) deciding the case involving Community law (including domestic measures enacted in order to implement Community law) should ex officio control whether the ECHR has not been violated. Notwithstanding a long-lasting discussion on the possible accession of the Community to the Convention, it must be emphasized that this discussion remains to a large extent hypothetical. Firstly, the ECHR itself does not provide for the possibility of accession of international organizations. Secondly, what is equally or even more important, the Community itself has no competence to adhere to the ECHR because of two reasons. According to the principle of functional competence of international organizations, generally accepted under international law, the Community can act on an international plane exclusively if the competence to act has been provided for in the establishing treaty. According to the well-established jurisprudence of the Court—also having a constitutional character—every act of the Community institution including international agreements (as the Court classified the agreements defining the scope of its jurisdiction in this respect)3 is valid exclusively if it indicates its legal basis, i.e., in principle a specific provision of the Treaty of Rome. Generally the scope of external competence of the Community to conclude

publications dealing with this question—e.g., Lord McNair, The Law of Treaties (1961), 539 ff; Sh. Rosenne, Breach of Treaty (1984), 45 ff; D.W.Bowett, Treaties and State Responsibility, in Le droit international au service de la paix, de la justice et du développement. Mélanges M.Virally (1991), 137 ff; R.Pisillo Mazzeschi, Termination and Suspension of Treaties for Breach in the ILC Works on State Responsibility, in UN Codification on State Responsibility (1987), 57 ff; P.Weil, Droit des traités et droit de la responsabilité, in 1 El derecho internacional en un mundo en transformacion (1994), 523 ff; A.Yahi, La violation d’un traité: l’articulation du droit des traités et du droit de la responsabilité internationale, R.Belge DI (1993–ii), 437 ff; Ph. Weckel, Convergences du droit des traités et du droit de la responsabilité internationale, 102 RGDIP (1998), 647 ff; K.Sachariew, Die Rechtsstellung der betroffenen Staaten bei Verletzungen miltilateraler Vertraege (1986), passim. 2 Cf. in particular the following cases: 11/70 Internationale Handelsgesellschaft v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, [1970] ECR 1161; 4/73 J.Nold, Kohlen- und Baustoffgrosshandlung v. European Commission, [1974] ECR 491; 44/79 L.Hauer v. Land Rheinland-Pfalz, [1979] ECR 3727; C-260/89 ERT, [1991] ECR I-2925; C-159/90 SPUC v. Grogan, [1991] ECR I-4685; C-299/95 Kremzow v. Austria, [1997] ECR I-2629. 3 See the decision in the case 181/73 Haegeman v. Belgian State, [1974] ECR 449.

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international agreements corresponds with the scope of intra-organizational competence. If the Community lacks specific competence to act, it is possible to base the legislation on so-called implied powers. However, the Court stated that the implied powers cannot be used in order to modify the establishing treaties. The Luxembourg judges emphasized also that the accession of the Community to the ECHR would mean the acceptance of the control of its jurisprudence by the Strasbourg organs. The Court protected in that way its own power as the only and final guardian of the legality of the Community’s actions. The situation did not change under the Treaty of Amsterdam. During the revision of the Treaty on the Union no provisions enabling the accession of the Union into the ECHR were introduced into the Treaty. Instead of the competence of the Strasbourg Court, the Council was empowered to decide on possible violations of human rights and to proclaim possible measures against the violating state.4 Fundamental rights constitute the object of interest of the Community inasmuch as this is necessary to evaluate the way of implementation of the Community law. In no case did the Court decide that the Community infringed the Convention. This means in practice that it recognized a primacy of Community law over the ECHR (the latter cannot be invoked in order to undermine the effectiveness of the Community law, and every fundamental right should be considered in the context of its social and economic function). The decisions in the Irish Abortion and Kremzow cases are the most representative in this respect. In the former case the judges decided that it is out of their power to evaluate from the point of view of conformity with the ECHR the ban in force in Ireland on providing the addresses of British clinics where abortion can be done if the activity, consisting of disseminating such information, was not recognized as services within the meaning of the EC Treaty. Let us add that the Strasbourg Court, after having heard the similar claim by an Irish lady decided that such a ban is contrary to the ECHR.5 In Kremzow the Court stated that an imprisonment contrary to the ECHR did not come under its jurisdiction even if it potentially limited a right of free movement of persons. In this context we can also consider the principles governing the responsibility of the Member States for violations of Community law. These principles have been formulated by the jurisprudence of the ECJ.6 The State bears the responsibility if it has seriously violated the directly effective norm of the

4

See P.Wachsmann, Les droits de l’homme, 33 Revue trimestrielle de droit européen (1997), 883 ff; H.Schermers, Protection of Human Rights in the European Union, in T.Heukels et al. (eds), The European Union after Amsterdam (1998), 307 ff; J.Duvigneau, From Advisory Opinion 2/94 to the Amsterdam Treaty: Human Rights Protection in the European Union, 25 Legal Issues of European Integration (1998), 61; W.Hummer, Der Schutz der Grund- und Menschenrechte in der Europaeischen Union, in W.Hummer (ed.), Die Europaeische Union nach dem Vertrag von Amsterdam (1998), 71 ff. 5 Open Door and Dublin Well Women case, ECHR Series A, No. 246. 6 Cf. the joined cases C-46 and 48/93 Brasserie du Pêcheur S.A. v. Germany and Secretary of State for Transport, ex parte Factortame, [1996] ECR I-1029.

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Community law (i.e., the norm granting individual rights which can be claimed before state agencies and courts of the Member States), if this violation results in material damage (and the direct connection between the violation of law and damages exists). By the way, the Court recalled the principles governing claims based upon the Community law. The claims can be presented by the same courts which are competent for the corresponding claims based upon municipal law, and the same procedures should apply; the same rules should also govern reparation. Finally, we must remember that the principle of judicial autonomy belongs to the fundamental principles of the EC legal system. According to it, all disputes arising out of the Community law should be decided exclusively by the European Court of Justice, and other means of dispute settlement known under general international law are therefore excluded. This principle has been also observed by the Strasbourg organs which have avoided interfering in the matters of the EC law. It is unclear whether the system of the European Convention on Human Rights can be qualified as a self-contained regime as well. A distinction should be made between situations where a State party to the Convention violates the rights of its own nationals on the one hand, and situations in which the rights of aliens under the Convention are at stake. In the former case, according to Article 62 of the ECHR, States will not avail themselves of treaties, conventions or declarations in force between them for the purpose of submitting, by the way of petition, a dispute arising out of the interpretation or application of the Convention to a means of settlement other than those provided for in the Convention. The Convention offers two methods of settlement: claims presented by the other parties to the Convention and individual petitions by the persons directly damaged by the act of the State. The situation is different, however, in the latter case. It seems manifest that notwithstanding individual claims presented against the violator by the persons whose rights were directly violated, the State concerned is free to present the claims by means of diplomatic protection, in accordance with the rules of general international law. The claim is presented by the State in its own name, and not on behalf of its national who suffered direct damage. The situation described does not confirm a self-contained nature of the European Convention. It should be recalled that the UN Covenant on Civil and Political Rights of 1966 contains the provision of Article 44 which expressly allows the States parties to have recourse to other procedures for settling a dispute arising out of the Convention. It cannot be qualified therefore as a self-contained regime. It is interesting as well to note the nature of the rights of third parties to the respective human rights treaty, and whether these rights can be qualified as amounting to an actio popularis. In our opinion, such a conclusion would be premature. It is true that although the ICJ stated in its advisory opinion on the reservations to the Genocide Convention: in such a Convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the


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Convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of maintenance of a perfect contractual balance between rights and duties.7 This, however, does not mean that the Court intended to formulate the Convention as an obligation erga omnes. The rights deriving from the Convention refer directly to the situations covered by Article 60 of the Vienna Convention on the Law of Treaties. However, the conclusion reached by the Strasbourg Commission in the Pfunders case8 was to the contrary. The decision emphasized that the Convention was not intended to create subjective and reciprocal rights for the parties to the Convention but rather to allow them to act by bringing before the Commission an alleged violation of the public order of Europe. The same line was followed by the Inter-American Court of Human Rights in its widely known advisory opinion on the effect of reservations on the entry into force of the American Convention (1982).9 This approach might suggest that both human rights organs were willing to accept an actio popularis directed towards the protection of specific values amounting to the Euro-American public order established by the respective human rights instruments. Such an understanding of the obligations in the field of human rights corresponds in fact with the approach to the same issue by the European Court of Justice. The idea corresponding in fact with the Pfunders case can be found in the judgment in the case of Ireland v. UK.10 There the Strasbourg judges decided that a State bringing a complaint against another State party to the Convention may both enforce its own rights and act on behalf of the common interest of all parties. Another issue arising from the violation of human rights provided for in the international conventions is individual reparation claims or remedies granted under the respective instruments. Under traditional international law States were the only subjects entitled to claim reparation for violation of international obligations. In most human rights treaties States parties to the respective instruments still have an active legitimation to claim reparation for the violations of these treaties. The development of the concept of human rights modified this approach. The violation of rights granted under the treaties entails State responsibility towards individual human beings, although the locus standi of the individuals and the remedies should be expressly stated in these treaties. Let us limit the discussion here to three examples: Article 2(3)(a) of the Covenant on Civil and Political Rights formulates a general obligation of the States parties to provide individuals with effective remedies in case

7 8 9 10

Reservations to the Genocide Convention (Advisory Opinion), ICJ Reports 1951, 15, 23. Austria v. Italy, decision of 11 January 1961, 4 YBECHR (1961), 140. Opinion of 24 September 1982, 22 ILM (1983), 46–48. Judgment of 18 January 1978, ECHR Series A, vol. 25, 89–91.

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of the violations of their rights. This general provision is supported by a number of specific obligations dealing with consequences of infringement of respective obligations (right to release, Article 9(3); or right to compensation, Articles 9(5), and 10(6)). It has been stressed that the importance of this regulation does not lie in granting exclusively formal (procedural) rights to the individual concerned, but rather in the emphasis on the substantive rights to compensation.11 Any claim under Article 2(3)(a) of the Covenant can be directed against the State, and not against another individual (it should be therefore of a vertical nature). A person entitled to this remedy must be a direct victim of the violation (again, there is no actio popularis by the individual), or—at least—the person whose interests should be protected by the violated human rights norm. Finally, as to the quality of the remedies proposed, the practice of the Human Rights Committee developed a whole spectrum of different measures, the only requirement being their effectiveness. The Inter-American system of protection of human rights is another example of a highly developed set of rules granting to the individual remedies against violation of his or her rights. The development of the system is interesting, as specific interstate agencies dealing with the protection of human rights were created before the Convention codifying these rights came into being.12 The Convention recognizes the right to individual petitions (Article 44) together with claims brought by the State parties and reports elaborated by the Commission of Human Rights on its own initiative. Both the Commission and the Court can grant compensation to victims of violations of the Convention, as well as specify other consequences including specific measures and remedies to be taken by the State concerned. The practice of the Court clarified to a certain extent the requirements put down by the Convention; as to the form of compensation due by the violating State towards individuals, the Court repeated, however, the wording of the Convention according to which the compensation should be just and it should not be of a punitive nature. On the other hand, the Court did not exclude payments of moral damages. The system of protection of human rights offered by the European Convention on the Protection of Human Rights and Fundamental Freedoms of 1950 is based upon two forms of claims: those made by the State parties against other States, and individual petitions by the persons directly concerned by the violations of human rights. The institutional system of protection was modified and the unique Human Rights Court replaced former institutions. The Convention contains Article 50 which

11 See E.Klein, Individual Reparation Claims under the International Covenant on Civil and Political Rights: the Practice of the Human Rights Committee, in C.Tomuschat & A. Randelzhofer (eds.), State Responsibility and the Individual (1999), 33. 12 The Inter-American Commission of Human Rights was created in 1959, while the American Convention of Human Rights was signed on 22 November 1969 (see 9 ILM (1969), 673), and entered into force in 1978. The Convention established the Inter-American Court of Human Rights. See W.M.Reisman, Compensation for Human Rights Violations: The Practice of the Past Decade in the Americas, in Tomuschat & Randelzhofer, ibid., 63 ff.


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states that the European Court is entitled to afford just satisfaction to the victim, the forms of such a satisfaction vary according to the circumstances of the case (from restitution to pecuniary compensation). Obviously the human rights treaties entitling individuals to claim reparations for the violation of specific rights prescribe certain general limitations of possible remedies. The most important ones are: a local remedies rule (according to which an individual can bring his claim before an international body only after having exhausted all measures available under domestic law)13 and a time limit for bringing international claims (e.g., 6 months).14 3. The problem of responsibility of States for violation of customary human rights is certainly more complicated. It can be divided into two interrelated issues: substantive and procedural. The identification of substantive rules of customary law of human rights is relatively simple and in major part has been done by the International Court of Justice, and other international bodies including the UN agencies like the General Assembly, Security Council, International Court of Justice, and International Law Commission. Some of these rights correspond with those formulated in the Universal Declaration of Human Rights,15 and in international conventions. It is not our task to formulate all the norms of customary human rights law, so we discuss some aspects of the problem only. There are numerous authorities confirming the customary nature of certain human rights. ILC Draft Articles on State responsibility refer in Article 19 (adopted in 1976 and still present in the version of 1996) to international crimes of States, i.e., breaches of public international legal obligations so essential for the protection of fundamental interests to the international community that its breach is recognized as a crime by that community as a whole. Examples of the international crimes given by the ILC cover i.a. colonial domination (regarded as a breach of the right to self-determination), slavery, genocide and apartheid. In the Barcelona Traction judgment, the ICJ invoked as obligations erga omnes: genocide, and principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. As we shall indicate below, the Court’s understanding of this kind of obligation was purported to show their higher status under general international law rather than to provide effective legal remedies to counter-act these violations by the third States. There is no doubt that all rights enumerated by the ILC and ICJ are protected under customary international law. All these rights (as well as the right to live and the ban on torture) belong to the socalled core human rights which should be protected under all circumstances.

13 See Art. 26 of the ECHR, Art. 46(1) of the AmCHR; Art. 50 of the African Charter of Human Rights; Art. 41(1)(c) of the Covenant on Civil and Political Rights. 14 See Art. 26 of the ECHR and Art. 46(b) of the AmCHR. 15 Cf. A Survey of International Law, ILC, UN Doc. A/CN.4/245, in particular, 196–197 (1971), referring to the practice of both States and international bodies.

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The situation is different in respect of procedural rights. In the same Nicaragua judgment the ICJ stated that if the customary rules co-exist with substantially identical treaty regulations, the identity does not cover procedural issues. Even if we accept therefore that customary rules were created on the basis of the European Convention on Human Rights or of the Covenants of Human Rights, this does not mean that violations of these customary rules by the States non-parties to the respective conventions can be reported by the other States to the organs established on the basis of these conventions (in this case, the Strasbourg Court or the Human Rights Committee). The right to claim reparations for such violations involves the problem of defining an injured State to be discussed below. 4. Conditions of the responsibility of States for violations of customary human rights are generally the same as conditions of the responsibility for infringements of international instruments in this field. The premises were elaborated by the customary law, and formulated in the Draft Articles on State Responsibility by the ILC. According to the draft, every internationally wrongful act of a State entails the international responsibility of that State. There are two preconditions of the responsibility: the illegal conduct must be attributable to the State, and the conduct must constitute a breach of an international obligation of that State (Draft Article 3). The responsibility does not depend on the nature of the obligation broken by that State; it is unclear as well whether any other specific premises should be fulfilled (like, e.g., a real and irreversible effect of the specific measures undertaken by the State upon the position of the individual concerned, and an existence of the fault or damage including immaterial or moral damages).16 The issue of attribution (or imputability) can be crucial to defining the scope of responsibility of the particular State. In general, it is clear that acts of persons entitled to represent the State in international relations will certainly be imputable to the State, notwithstanding a possible criminal responsibility of such persons. There is also a general agreement that the acts of all State agencies, independent of their position within the constitutional structure of the State, will be attributed to this State. These rules remain fully actual in respect of the responsibility for violations of human rights. A specific solution has been proposed by the Restatement (Third) of the Foreign Relations Law of the USA (1986) according to which the State is responsible for such violations only if they result from the official policy of that State. Such an approach cannot, however, be upheld on the plan of the ECHR. In the Ill-Treatment case (Ireland v. UK) decided in 1978 the Strasbourg Court stated that: “it is inconceivable that the higher authorities of a State should be, or at least should be entitled to be, unaware of such a practice. Furthermore, under the Convention those authorities are strictly liable for the conduct of their subordinates”.17 16 On the notions of violations of human rights and remedies available under the human rights instruments and customary international law see in particular an interesting study by M.Trassl, Die Wiedergutmachung von Menschenrechtsverletzungen im Voelkerrecht (1994), passim. 17 ECHR Series A, vol. 25 (1978), para. 159.


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It is also unclear under what circumstances the State can be held responsible for acts of private individuals. In the Tehran Hostages case the ICJ decided that there was not sufficient evidence that militants (attacking and occupying the US Embassy and Consulates in Iran) had been charged to do that by competent authorities of the Iranian State. Therefore Iran was not declared liable for an assault, but only for the non-compliance with the duty to protect the diplomats against the militant Islamists. 5. The problem of State responsibility for violations of customary human rights brings us unavoidably to the important question of an injured State, particularly in the context of a right to claim reparation for violations. Two notions must be invoked in this context: jus cogens and obligations erga omnes. The relationship between them is unclear.18 It is usually stated that although all peremptory norms are effectively erga omnes, the reverse is not necessarily true. We fully endorse this opinion. Misunderstandings connected with obligations erga omnes stem from the double meaning of this notion. Firstly, it covers all the international obligations which are not based upon mutuality. Secondly, it is often used as synonymous with the notion of peremptory norms. The ICJ in its famous obiter dictum in the Barcelona Traction case19 stated that there are certain international obligations of a State towards the international community which by their very nature are of concern for all the States, and all States have legal interest in their protection. After having demonstrated examples of such obligations, the Hague judges stated clearly that the breach of the obligation erga omnes did not entitle third States to protect the victims of such infringements irrespective of their nationality. They rejected therefore a proposal of introducing an actio popularis into international law, as they had done before in the South-West Africa case (Second Phase). While rejecting such a construction, the statement by the Court seemed exclusively to amount to an emphasis on the superior nature of certain categories of international obligations, without accepting any specific effect of the violations thereof. We support the former stance. Obligations of States in the field of human rights (both customary and conventional) are not owed towards a particular State because the State bound by specific obligation usually guarantees these rights to its own nationals. In a case of its violation no State can be called directly injured. On the other hand, all other States bound by the respective norm of human rights law have a legal interest in the observance of international law. Therefore, all these States can be found indirectly injured, and they are entitled to claim reparation for infringements of human rights. Such a position has been confirmed by the Draft Article 40 on State Responsibility by the ILC. According to Article 40(2)(e)(iii):

18 See on this topic in particular A.De Hoogh, Obligations Erga Omnes and International Crimes, (1996); M.Ragazzi, The Concept of International Obligations Erga Omnes (1997), passim; J.A.Frowein, Reactions by Not Directly Affected States to Breaches of Public International Law, 248 RCADI (1994), 352; C.Tomuschat, Obligations Arising for States without or against Their Will, 241 RCADI (1993), 205 ff; V.Starace, La responsabilité résultant de la violation des obligations a l’égard de la communauté internationale, 153 RCADI (1916), 263 ff. 19 ICJ Reports 1970, 32.

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In particular, “injured State” means: …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…the right has been created or is established for the protection of human rights and fundamental freedoms. Article 40(3) grants the right to claim reparation for violation of international law amounting to international crime in the meaning of Article 19 of the ILC Draft. “Injured State” in such a case is any other State-member of the international community. In the opinion of the present author, this conclusion was modified to a certain extent by the judgment of the ICJ in the East Timor case.20 The Court stated that the right of the local population to self-determination is a right erga omnes and it should therefore be protected under international law. However, it did not indicate any specific form of protection, nor any remedy available to this group of population. Does it mean that every State should support the legal claim to independence of the people of East Timor? The reaction of the international community against mass violations of human rights in the territory, including the establishing of peace forces by the Security Council, seems to support such a view. Obviously not all injured States have the same rights as to the scope of possible claims for reparation. The consequences of the internationally wrongful act were defined by both the ICJ and ILC as: the right of the injured State to claim for the cessation of illegal acts, the right to reparation, and the right to obtain guarantee of non-repetition of the wrongful act in future (Articles 41, 42 and 46 of the ILC Draft of 1996).21 In our opinion, the rights of indirectly injured States are limited to claim for the cessation of violations of law, and to non-repetition; the right to reparation is limited to enforce the restitution, and to satisfaction, while it is excluded to claim any kind of pecuniary indemnity. 6. The analysis of the responsibility of States for violations of human rights must entail also the problem of its relationship to the UN law, and in particular to the competence of the UN Security Council. In many resolutions the Security Council referred to grave violations of different human rights as a danger for international peace and security. The first example thereof is Resolution 161B of 24 November 1961 concerning the systematic violation of human rights and fundamental freedoms in Congo. Then, Resolution 232 of 16 December 1966 dealing with the situation in Southern Rhodesia and adopted on the basis of Articles 39 and 41 of the UN Charter, condemned the activities of the local regime against the ban on racial

20 ICJ Reports 1995, 90. 21 See the Tehran Hostages and Nicaragua cases, ICJ Reports 1980, 44, and ICJ Reports 1986, 14, 442; as well as the Security Council Resolution 674 of 29 October 1990 dealing with the aggression of Kuwait by Iraq.


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discrimination, as they deprived the majority of the population of freedom and selfdetermination. Resolution 418 of 4 November 1977, the first one concerning South Africa and based upon Chapter VII of the Charter, proscribed the policy of racial discrimination and apartheid together with an aggressive policy towards the neighbouring States. Resolution 688 of 5 April 1991 was directed towards protecting the Kurdish population of Iraq against the attacks by the Hussein regime. It dealt mostly with the aspects of humanitarian law, and it was unclear whether it was adopted on the basis of Chapter VII. In fact, it repeated the wording of Article 39 but it did not refer clearly to this provision because of the feared veto by China. Numerous resolutions concerning Yugoslavia invoked violations of human rights, in particular the practices of ethnic cleansing and violations of humanitarian law, which had their international dimension, even though the conflict—at least in its initial phase—was of a domestic nature (Resolutions 713, 824, 836). Finally, resolutions dealing with the situations in Somalia, Rwanda, and Haiti can be invoked. It is beyond any doubt that in case of mass and grave violations of human rights the Security Council, in most cases, reacted categorically and treated these violations as matters of international concern, although situations of strange inertia because of political reasons can be observed (like the position of the UN and the most important States towards the situation in Chechnya). Sanctions for human rights violations were introduced not only by the UN organs but also by other international organizations. 7. Finally, we would like to refer here to the report of Dutch international lawyer Th. van Boven, elaborated on invitation of the UN Committee on Human Rights in 1997, and subsequently re-examined in 1998. The report22 stresses the duty of States to ensure respect for human rights and humanitarian law under all circumstances. All States are obliged to prevent violations, to take appropriate action against the violator, to investigate violations, and to grant effective remedies to the victims of violations. The basis for these actions should be found both in international law and in domestic law implementing international law. The States should introduce effective procedures under their national laws to implement international human rights law. As to the possible forms of reparation, the study by van Boven provides for restitution, compensation, rehabilitation of the person concerned, satisfaction and guarantees of non-repetition of the acts.

22 UN Doc. E/CN.4/1997/104 (16 Jan. 1997).

11 Russia and international human rights* Gennady M.Danilenko

I. Introduction In the post-Cold War era, human rights have become one of the principal focuses of international relations. The disappearance of the former “socialist bloc” of Eastern European countries opened new opportunities for broader global consensus on human rights. Political and legal reforms in Russia have resulted in new domestic approaches to human rights that have effected a clear break with the past. International human rights standards have served as a source of inspiration for Russian constitutional and legislative reforms. At the same time, in many areas the human rights situation in Russia has deteriorated. In recent years, several international bodies had an opportunity to assess human rights in Russia. The findings are far from complimentary. In commenting on the fourth periodic report of the Russian Federation, the Human Rights Committee noted that “it is necessary to overcome vestiges of the totalitarian past and that much remains to be done to strengthen democratic institutions and respect for the rule of law.”1 The Committee expressed concern over human rights violations in several areas, including gender equality, the death penalty, widespread use of pre-trial detention, and the cruel, inhuman and degrading conditions that persist in many detention centers and penitentiary facilities.2 The Committee on Economic, Social and Cultural Rights noted that “the process of transition to a democratic country with a market-based economy is being undermined by the development of corruption, organized crime, tax evasion and bureaucratic inefficiency and has resulted in inadequate funding for social welfare expenditure and payment of wages in the state sector.”3 The Committee expressed concern over serious

*

1 2

This article was completed in July 1999. In this article, “Sobranie zakonodatel’stva Rossiiskoi Federatsii (Compilation of Legislation of the Russian Federation)” is referred to as “Sobranie”, and “Vestnik Konstitutsionnogo Suda Rossiiskoi Federatsii (Herald of the Constitutional Court of the Russian Federation)”, “VKS”; “Biulleten’ Verkhovnogo Suda Rossiiskoi Federatsii (Bulletin of the Supreme Court of the Russian Federation)”, “BVS”. UN Doc. CCPR/C/79/Add.54 (1995). Ibid. 182

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violations of the economic, social and cultural rights of the population. It noted, among other things, the development of poverty, unemployment, environmental problems and deterioration of the educational system.4 The Committee on the Elimination of Racial Discrimination noted increasing incidents of acts of ethnic discrimination and inter-ethnic tensions and conflicts in various parts of the Russian Federation.5 The Special Rapporteur on Torture mentioned numerous reports alleging resort to torture and ill-treatment by the police, particularly during pre-trial detention. Detention conditions were characterized by overcrowding, unsatisfactory sanitation and medical care amounting to ill-treatment. Torture and ill-treatment had also been reported to occur on a wide scale within the armed forces.6 Although in 1996 Russia became the 39th member state of the Council of Europe, it was clear that the Russian legal system and its human rights situation did not meet the Council of Europe’s standards.7 While these findings raise serious doubts about Russia’s commitment to international human rights, there is also evidence of improvements in human rights in Russia, especially when compared with its recent totalitarian past. The most positive indicator of progress is the implementation of the rights and freedoms of expression, information and association. It is my contention in this article that, despite continuing violations of human rights and freedoms, Russia made a serious effort to incorporate international human rights in its domestic legal order. The 1993 Constitution of Russia8 and recent legislation reflect new approaches to human rights. Recent trends in domestic

3

4 5 6

7

8

UN Doc. E/C.12/1/Add. 13 (1997). Before making these observations, the Committee stated that Russia “inherited from the former regime an unfavorable framework for the promotion of economic, social and cultural rights.” It would be interesting to see a more detailed explanation of this remarkable finding. Ibid. UN Doc. CERD/C/304/Add.43 (1998). See UN Doc. E/CN.4/1998/38 (1998). An earlier report by the Special Rapporteur, issued after his visit to Russia, contained many detailed findings. The description of conditions in one of Russia’s prisons is particularly devastating: “The Special Rapporteur would need the poetic skills of a Dante or the artistic skills of a Bosch adequately to describe the infernal conditions he found in these cells. The senses of smell, touch, taste and sight are repulsively assailed. The conditions are cruel, inhuman and degrading; they are torturous. To the extent that suspects are confined there to facilitate the investigation by breaking their wills with a view to eliciting confessions and information, they can properly be described as subject to torture.” UN Doc. E/CN.4/1995/34/Add.1 (1995). See Opinion on Russia’s Application for Membership in the Council of Europe, Doc. 7463 (1996), reprinted in 17 HRLJ (1996), 218, 226 (“From a legal affairs and human rights point of view, applying strict criteria, the Committee must…conclude that the Russian Federation does not yet fulfill the conditions of membership as laid down in Article 3 and 4 of the Statute of the Council of Europe.”). Konstitutsia Rossiiskoi Federatsii (Constitution of the Russian Federation) 1993 (hereinafter cited as Constitution). The text of the 1993 Constitution was published in Rossiiskaya Gazeta (25 Dec. 1993), 3.

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enforcement of human rights also indicate that the idea of human rights is gradually taking root in the new Russia. II. Constitutional and legislative innovations On the constitutional level, Russia has made impressive normative progress in the area of human rights. The 1993 Constitution includes an extensive catalogue of human rights that is based on the universally recognized international standards. Only the most important innovations introduced by the 1993 Constitution will be mentioned here. From a broad political-legal perspective, the 1993 Constitution signifies a complete departure from the communist theory of human rights. While the communist doctrine rejects the idea of inherent human rights, the 1993 Constitution establishes a new relationship between individuals and the state by proclaiming that “fundamental human rights and freedoms shall be inalienable and shall belong to everyone from birth.”9 It also provides that “human beings and their rights and freedoms shall be of supreme value. Recognition of, respect for and protection of the rights and freedoms of the human being and citizen shall be the duty of the state.”10 This approach is in full accord with international human rights instruments which are based on the idea of inalienable rights. Another principal feature of the 1993 Constitution is its attempt to provide legal guarantees for a wide variety of human rights. While the Constitution’s chapter on human rights deals first with civil and political rights, it also contains an extensive catalogue of economic and social rights, including the right to work, housing, education and health care. One might argue that the list of economic and social rights is a relic of the socialist past; many lawyers would also argue that the presence of these essentially aspirational or programmatic rights in the Constitution undermines the credibility of the document and eventually may even serve to dilute political rights. However, it is useful to keep in mind that it is not unusual for European countries to include economic and social rights in their constitutions. Furthermore, economic and social rights are recognized as human rights by such important international instruments as the 1948 Universal Declaration of Human Rights,11 the 1966 Covenant on Economic, Social and Cultural Rights12 and, at the European regional level, by the 1961 European Social Charter.13 The Constitution guarantees not only traditional civil and political rights (the “first generation” of human rights), social and economic rights (the “second generation” of human rights), but also several new human rights of the “third

9 10 11 12 13

Constitution, Art. 17 (2). Constitution, Art. 2. GA Res. 217 (1948). 993 UNTS 3. 529 UNTS 89.


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generation.” Among “third generation” human rights, the right to a “favorable environment”14 merits particular attention. The “constitutionalization” of the right to a favorable environment should serve to underscore environmental issues that emerged as a result of a series of environmental disasters caused by the former communist economic system. The inclusion of the “second” and “third” generation of human rights raises serious concerns about direct applicability of the relevant constitutional provisions. International practice demonstrates that the essentially programmatic nature of the “second” and “third” generation of human rights makes them largely unenforceable. Judges who are asked to decide cases based on the right to housing or the right to a favorable environment may find that the alleged right simply lacks any specific normative content capable of judicial enforcement. Yet an analysis of the Russian Constitution indicates that it is based on the idea of direct applicability of all human rights. The drafters of the Constitution embraced the idea of direct applicability because prior constitutions established only “paper rights.” One of the lessons of the communist past is that constitutional provisions on human rights can be meaningless if the enforcement is not secured by direct applicability and a strong and independent judiciary. As a result, the Constitution includes a special article that provides for the direct applicability of the Constitution.15 Furthermore, Article 18 states that “the rights and freedoms of the human being and citizen shall have direct effect” and that they “shall be enforced by the judiciary.” While the goal of direct applicability of human rights is thus recognized, it will be difficult to achieve it with respect to all rights guaranteed by the Constitution. However, practice indicates that courts may gradually develop certain standards that would make even programmatic rights more meaningful. Recent judicial practice with respect to the right to a favorable environment is an interesting example of this trend. It indicates that the new entitlement to a favorable environment may be judicially enforceable. The right to a “favorable environment” has been interpreted by the Constitutional Court to allow citizens to judicially challenge conclusions of environmental impact assessment commissions.16 The Constitutional Court also held that Article 42 imposed on the state an obligation to “take adequate measures to protect the environment and the people from nuclear accidents and catastrophes.”17 The Court noted that Article 42 mandates the state to establish a “system of benefits and compensation” that would go beyond the limits of ordinary compensation of harm caused by environmental law violations.18

14 Constitution, Art. 42. 15 Constitution, Art. 15 (1). 16 See Case Concerning State Ecological Examination of the Project to Rebuild Kusnetsk Metallurgical Works, VKS (1994, No. 8), 3. 17 Case Concerning Art. 1(3) of the Law on the Social Security of Citizens—Victims of the Nuclear Accident of 1957, VKS (1996, No. 2), 26. 18 Ibid.

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The 1993 Constitution provides strong institutional guarantees for human rights enforcement. All branches of government are supposed to ensure respect for international law,19 including international human rights. However, the principal guarantor of the rule of law and human rights is the judiciary. Like other European countries emerging from oppressive or totalitarian regimes, Russia entrusted the enforcement of the Constitution to a new judicial body—the Constitutional Court. The Constitutional Court is designed to guarantee the supremacy of the Constitution and to ensure institutional protection of democracy and fundamental human rights. Under Article 125(4) of the Constitution and the 1994 Constitutional Law on the Constitutional Court,20 the Constitutional Court has the power to review the constitutionality of “laws” in response to complaints filed by individuals and juridical persons alleging violations of constitutional rights and freedoms. This procedure, based on the model of the German Federal Constitutional Court, means that individuals and juridical persons have direct access to constitutional review. While individuals and juridical persons may file complaints about the constitutionality of statute-level laws with the Russian Constitutional Court under Article 125(4) of the Constitution, there also exists a general right of review of all normative acts and agency actions violating human rights and freedoms in “ordinary” courts under Article 46 of the Constitution. Article 46 of the Constitution provides that “everyone shall be guaranteed protection of his or her rights and freedoms in a court of law.” Although the Constitutional Court has exclusive power to declare statutes unconstitutional, “ordinary” courts have been granted the power to review the constitutionality of laws or other normative acts that litigants seek to apply.21 Following the model of some European states, the 1993 Constitution also provides for the creation of a special agency that will exclusively deal with human rights violations—the Office of the Commissioner for Human Rights (Ombudsman). The powers of the Commissioner are defined by the 1997 Constitutional Law on the Commissioner for Human Rights.22 The primary task of the Commissioner is to

19 As the Constitutional Court stated in the Chechnya Case “in accordance with the principles of a lawgoverned state laid down by the Constitution of the Russian Federation, the organs of power are bound in their activities both by internal and international law.” VKS (1995, No. 5), 3. English translation of this decision may be found in G.M.Danilenko & W.Burnham, The Law and Legal System of the Russian Federation (1999), 192. 20 Sobranie, No. 13, item 1447 (1994). 21 The eminent experts of the Council of Europe who analyzed the legal situation in Russia prior to its accession to the Council, apparently had no idea about Russia’s system of judicial review. This follows from their statement that “a complaint against administrative abuse cannot even be brought to court, since the prosecutor’s office is the competent state organ” (Opinion on Russia’s Application for Membership in the Council of Europe, n. 7 above, at 219). This assertion is simply wrong. For a detailed discussion of the Russian judicial system and judicial review, see Danilenko & Burnham, n. 19 above, 57–109. 22 Sobranie, No. 29, item 1011 (1997).


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receive complaints about human rights violations in the country and to remedy these violations. The aggrieved individuals may file human rights complaints with the Commissioner if they are not satisfied with the relevant decisions of courts or administrative agencies. As an independent officer functioning outside the judicial system, the Commissioner is empowered to examine complaints and take measures to remedy violations. These measures include petitions to courts (including petitions to reconsider decisions that have already entered into legal force), participation in court proceedings, petitions to state organs, and petitions to the Constitutional Court. Under the 1997 Constitutional Law, in cases of grave and massive violations of human rights, the Commissioner may react to human rights violations even in the absence of formal complaints. In such cases the Commissioner has the right to make reports to the State Duma which may establish a parliamentary commission to investigate. Another important feature of the new Russian Constitution is its “openness” to international law in general and the international human rights law in particular. Russia has rejected the traditional dualist approach to implementation of international law in its domestic legal system. Article 15(4) of the Constitution provides that “the generally recognized principles and norms of international law and the international treaties of the Russian Federation shall constitute an integral part of its legal system.” It also states that “if an international treaty of the Russian Federation establishes rules other than those stipulated by the law, the rules of the international treaty shall apply.” In addition, Article 17 of the Russian Constitution declares that “the rights and freedoms of the human being and citizen shall be recognized and guaranteed in the Russian Federation in conformity with the generally recognized principles and norms of international law.” These provisions represent an important step toward wider application of international human rights law in the Russian domestic legal order. New Russian codes and specific legislation contain additional references to international law. For example, both the 1994 Civil Code23 and the 1999 Labor Code24 provide for the supremacy of international treaties over contrary domestic law. III. Domestic implementation of human rights Russia is a party to all fundamental human rights treaties, including the Covenant on Civil and Political Rights25 and the Covenant on Economic, Social and Cultural Rights.26 International practice suggests that effective implementation of many political and especially socio-economic rights requires adoption of specific domestic legislation. Regrettably, progress in this area has been slow. Only some civil and political rights

23 24 25 26

Sobranie, No. 32, item 3301 (1994); ibid., No. 5, item 410 (1996). Rossiiskaya Gazeta (28 Apr. 1999), 4. 999 UNTS 171. See n. 12 above.

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have been developed by basic codes enacted in recent years. Of particular importance are the new Civil Code,27 and the new Criminal Code.28 Other basic codes, in particular a new Criminal Procedure Code and a number of specific laws concerning human rights, are still being debated by the Federal Assembly. In the meantime, old restrictive Soviet laws continue to govern many areas not covered by recent enactments. Implementation of socio-economic rights in Russia presents even more challenging problems. Economic and social rights require not only specific legislation but also an effective and socially oriented economic system. As a transitional economy in deep economic crises, Russia is ill-equipped to guarantee adequate implementation of economic, social and cultural rights. There is, however, one area where Russia made impressive progress—the direct application of international human rights norms in national courts. After the adoption of the 1993 Constitution some experts expressed doubts as to whether Russian constitutional provisions concerning incorporation of international law, in particular Article 15(4) of the Constitution, would have any practical effect on the operation of its legal system.29 Judicial practice since 1993 indicates that these doubts were unfounded. Russian courts have developed an extensive jurisprudence based on international law. Practice of the Constitutional Court. The Russian Constitutional Court took the lead by applying international human rights law in numerous cases. An analysis of the jurisprudence of the Constitutional Court indicates that it invokes international standards in almost all decisions concerning human rights. Earlier pronouncements of the Russian Constitutional Court have already been discussed in some detail elsewhere.30 It would be redundant to cover the same ground. Only some points need to be emphasized here. The Constitutional Court often relies on universal international human rights treaties.31 Russia ratified the European Convention on Human Rights and Protocols

27 See n. 23 above. 28 Sobranie, No. 25, item 2954 (1996). 29 An example of the prevailing scepticism is the report of the group of eminent experts of the Council of Europe who stated that with respect to the implementation of international human rights in Russia Art. 15(4) of the Constitution seems “to be more theory than practice.” Report on the Conformity of the Legal Order of the Russian Federation with the Council of Europe Standards, Doc. AS/Bur/ Russia (1994), reprinted in 15 HRLJ (1994) 249, 250. 30 See G.M.Danilenko, The New Russian Constitution and International Law, 88 AJIL (1994), 451; id., International Law in the Russian Legal System, ASIL Proceedings (1998), 294; J.Henderson, Reference to International law in Decided Cases of the First Russian Constitutional Court, in R. Mullerson, et al. (eds.), Constitutional Reform and International Law in Central and Eastern Europe (1998), 59. 31 See, e.g., Case Concerning Art. 42 of the Law of the Chuvash Republic on the Election of the Deputies of the State Assembly of the Chuvash Republic, VKS (1995, No. 4), 2. (In that case the Constitutional Court found that local regulations governing elections violated not only Art. 3 of the 1993 Constitution which guarantees “free elections” but also Art. 25 of the International Covenant on Civil and Political Rights. Art. 25 of the Covenant provides that every citizen must have the right and the opportunity,


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No. 1, 4, 7, 9 and 11 in 1998.32 The Constitutional Court started to invoke the European Convention even prior to its ratification by Russia.33 Subsequent decisions often refer to this regional convention.34 The Constitutional Court also relies on “the generally recognized principles and norms of international law.” In doing so, the Court bases its authority to apply international law primarily on the general incorporation clause included in Article 15(4) of the 1993 Constitution. In addition, it often invokes Article 17 of the 1993 Constitution which provides that “the rights and freedoms of the human being and citizen shall be recognized and guaranteed in the Russian Federation in conformity with the generally recognized principles and norms of international law.” For example, in the Case Concerning Certain Normative Acts of the City of Moscow and Some Other Regions,35 which dealt with the attempts of the local authorities to reintroduce the infamous residence permit practice, the Constitutional Court noted that under Article 17 of the Constitution human rights are recognized and guaranteed “in conformity with the generally recognized principles and norms of international law.” The Court then emphasized that the right to freedom of movement and the right to freely choose a place of temporary or permanent residence is guaranteed not only by the Constitution but also “by the International Covenant on Civil and Political Rights (Article 12), other international and international legal acts, including Protocol No. 4 to the European Convention on Human Rights (Article 2).” In the Case Concerning Articles 180, 181, 187 and 192 of the Arbitration Procedural Code,36 which raised questions about appeal procedures envisioned by the Arbitration Procedure

32 33 34

35 36

without any discrimination and without unreasonable restrictions, to vote and be elected at “genuine periodic elections which shall be held by secret ballot, guaranteeing the free expression of the will of the electors.” The Court noted that Art. 25 of the Covenant “specifies” electoral guarantees established by the general language of Art. 3 of the 1993 Constitution) and Case Concerning Arts. 2, 5 and 6 of the Law on Payment of Pensions to Persons Residing Abroad, VKS (1998, No.5), 42. (In that case, involving restrictions on payments of pensions to persons residing abroad, the Court invalidated the offending provisions by referring, among other things, to Art. 4 of the Covenant on Economic, Social and Cultural Rights. Art. 4 provides that states may subject the rights recognized in the Convention only to such limitations as are determined by law only insofar as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society). Sobranie, No. 14, item 1524 (1998). See, e.g., Case Concerning Certain Normative Acts of the City of Moscow and Some Other Regions, VKS (1996, No. 2), 42. English language translation of this decision may be found in Danilenko & Burnham, n. 19 above, 267. See, e.g., Case Concerning Arts. 232, 248 and 258 of the Criminal Procedure Code, Rossiiskaya Gazeta (22 Apr. 1999), 4 (Art. 6 of the European Convention concerning the right of everyone charged with a criminal offence to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law) and Case Concerning Art. 335 of the Civil Procedure Code, Rossiiskaya Gazeta (22 Apr. 1999), 5 (Art. 6 of the European Convention concerning the right of participants in civil proceedings to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law). See n. 33 above. VKS (1998, No. 3), 11.

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Code, the Constitutional Court found that the state must ensure a fair, independent and effective hearing of cases. According to the Court, this obligation results not only from the Constitution but also “from the generally recognized principles and norms of international law, in particular those which are embodied in Articles 8 and 29 of the Universal Declaration of Human Rights and Article 2 (2, 3(a)) of the International Covenant on Civil and Political Rights.” The Court also cited Article 14(6) of the Covenant on Civil and Political Rights which envisions revision of criminal convictions on the ground that newly discovered facts show conclusively that there has been a miscarriage of justice. Although the Case Concerning Articles 180, 181, 187 and 192 of the Arbitration Procedural Code dealt with arbitration and not criminal procedure, the Court applied Article 14 of the Covenant by analogy and stated that “under Articles 15(4) and 17(1) of the Constitution of the Russian Federation the right of everyone to court protection envisioned by Article 46(1) of the Constitution must be ensured in accordance with the above norm of international law, which has a generally recognized character and as such constitutes an integral part of the legal system of the Russian Federation.” Practice of Russian Ordinary Courts. Article 15(4) of the Constitution has provided a normative basis for broader application of international law by courts of general jurisdiction (ordinary courts). Ordinary Russian courts have much less experience in applying international law than the Constitutional Court. In contrast to the Constitutional Court, ordinary courts tend to base their decisions only on constitutional clauses. A good example of this trend is litigation concerning residence permits. When dealing with the constitutionality of residence permits, the Constitutional Court invoked not only the relevant constitutional provisions but also international law.37 In its decision concerning essentially the same issue in a specific case38 the Supreme Court referred only to constitutional provisions. However, some pronouncements of ordinary courts indicate that they have also started to take notice of international human rights law that may govern cases at hand. In 1995 the Supreme Court issued a special ruling concerning direct application of constitutional and international law in the form of an “explanation.” “Explanations” of the Supreme Court are abstract opinions that are binding on all lower courts. The 1995 Ruling “On Some Questions Concerning the Application of the Constitution of the Russian Federation by Courts”39 instructed all lower courts to apply international law. In 1995 the Supreme Court also adopted a more specific “explanation” instructing the courts to apply Article 9 of the International Covenant on Civil and Political Rights directly.40

37 38 39 40

See n. 35 above and accompanying text. Onischenko v. Main Department of Internal Affairs of Moscow, BVS (1996, No. 3), 4. BVS (1996, No. 1), 3. The Ruling of the Plenary Session of the Supreme Court of the Russian Federation “On the Judicial Practice Concerning Verification of the Legality and Justification of Arrests or the Extension of Periods of Detention”, BVS (1995, No. 1), 3, states:


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In accordance with these guidelines, ordinary courts started to invoke international treaties in specific cases. A good example is a judgment of the Moscow Regional Court in Re Belichenko.41 Mr Belichenko was acquitted by a jury with respect to charges of committing the crime of murder. The Procurator General challenged the decision of the Moscow Regional Court in the Supreme Court which vacated the judgment and remanded the case for a new trial in the Moscow Regional Court. The Moscow Regional Court held that under Article 15(4) of the Constitution, “when considering specific cases, courts must apply the rules of the relevant international acts if they determine that a [domestic] norm contravenes the generally recognized principles and norms of international law or international treaties of the Russian Federation.” The Moscow Regional Court found that the cassational decision of the Supreme Court contravenes “supreme rules of law” as laid down in Article 14(7) of the Covenant on Civil and Political Rights. Article 14(7) of the Covenant provides that “no one shall be liable to be tried or punished for an offence for which he has already been finally convicted or acquitted in accordance with the law and procedure of each country.” The Court found that Article 14(7) allows new trials only if there are new circumstances, such as miscarriage of justice. Because none were found in that case, the court dismissed it. The available judicial practice demonstrates that constitutional provisions on international law are not a dead letter. International law can be invoked in domestic courts in Russia. Russian courts usually rely on international law as an additional argument in support of their conclusions based on the applicable constitutional provisions or as an interpretation tool to clarify the scope of the relevant constitutional clauses or to expand them. Although this approach makes it difficult to assess the independent normative value of international human rights standards, it is quite understandable in view of the fact that the 1993 Constitution contains a detailed catalogue of fundamental human rights and freedoms. It appears that when the courts apply international law standards as an aid for interpreting the Constitution, The courts must take into account that, in accordance with Art. 9 of the International Covenant on Civil and Political Rights, which entered into force on May 23, 1976, and the rules of which, under Art. 15, para. 4 of the Constitution of the Russian Federation, are an integral part of the legal system of the Russian Federation and have priority over its domestic legislation, everyone who is deprived of his liberty by arrest or detention has the right to institute proceedings before a court in order that the court may decide, without delay, the lawfulness of his detention and order his release, if the detention is unlawful. In view of this, the complaint of anyone detained on the suspicion of committing a crime, or the complaint of her or his lawyer or legal representative, concerning the lawfulness and wellfoundedness of the detention must be considered and resolved by the court in the manner established by the criminal procedure legislation. This ruling significantly expanded judicial protection of detainees because under the existing Russian Criminal Procedure Code only persons arrested (not simply detained) on a criminal charge had the right to bring proceedings before a court. 41 VKS (1998, No. 1), 47. Note that this judgment was published in the Herald of the Constitutional Court (VKS). This indicates the significance of the decision.

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only constitutional clauses provide an actual rule of decision in the particular case. It is important to note that in some cases courts apply international law directly, if there is a real gap in domestic law. When courts apply international human rights standards to fill the gap in domestic law, international rules themselves provide rules of decision in the particular case. IV. Techniques of law-finding Judicial practice suggests that Russian courts have encountered serious difficulties in clarifying the methods for ascertaining applicable international law rules. The most controversial aspect of judicial practice is the application of the “generally recognized principles and rules” of the human rights law. The Constitutional Court often bases its decisions on “the generally recognized principles and norms of international law.” When dealing with principles and norms of general international law, the Court appears to believe that they may be proved by simply citing international treaties or even non-binding international instruments. For example, in the Labor Code Case,42 which dealt with compulsory termination of labor contracts with persons who had reached pension age, the Court found that the challenged provisions of the old Labor Code violated “the generally recognized principles and rules of international law.” These principles were derived from the Covenant on Economic, Social and Cultural Rights, the International Labour Organization Convention No. 111 and certain ILO recommendations. The Court made no effort to analyze the legislative or other practice of members of the international community on the question of termination of labour relations with persons who reach retirement age. Case Concerning the 1995 Law on the Election of Deputies of the State Duma43 provides another example of existing deficiencies of lawfinding. The Constitutional Court invoked the “generally recognized principles and norms of international law concerning electoral rights.” It then referred to Article 3 of Protocol No. 1 of the European Convention on Human Rights and Article 25 of the Covenant on Civil and Political Rights. No other proof of the “generally recognized principles and norms” was cited. The Supreme Court appears to be moving in the same direction. The 1995 Ruling of the Supreme Court44 provides that all lower “courts shall take into account the generally recognized principles and norms of international law laid down in international covenants, conventions and other documents (particularly in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights).” Under this Ruling all Russian ordinary courts must ascertain “the generally

42 VKS (1993, No. 1), 29. English language translation of this decision may be found in Danilenko & Burnham, n. 19 above, at 34. 43 Sobranie, No. 48, item 5969 (1998). 44 See n. 39 above.


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recognized principles and norms of international law” by simple reference to international conventions or “other documents.” This approach is similar to that of the Russian Constitutional Court and is open to the same objections. Even if one accepts such an approach to ascertaining general international law, not all examples given by the Supreme Court are persuasive. For example, many international lawyers would argue that the Covenant on Economic, Social and Cultural Rights, in view of its ratification record, cannot in itself constitute or generate “the generally recognized principles and norms of international law.” In view of this trend, one could say that Russian courts have invented their own version of sources of international law for domestic consumption. “Domestication” of the international sources doctrine may lead to undesirable results, in particular incorrect ascertainment and application of international human rights norms. Russian courts would be better advised to follow the recommendation on the matter issued by the Institut de droit international. The Institut believes that “national courts, in determining the content of customary international law, should use the same techniques as international tribunals and should enjoy the same freedom to apply rules of customary international law in their current context, taking into account, to the appropriate extent, developments in the practice of states, jurisprudence and doctrine.”45 Although international human rights recommendations have no formal status in the Russian domestic legal system, the Constitutional Court often refers to resolutions of international organizations, in particular resolutions of the UN General Assembly. The Universal Declaration of Human Rights has been cited in numerous cases involving human rights as an indication of the “generally recognized principles and norms of international law.”46 It is interesting to note that in some cases resolutions were cited on their own authority. For example, in the Case Concerning Articles 2, 5 and 6 of the Law on Payment of Pensions to Persons Residing Abroad,47 the Constitutional Court cited the UN General Assembly Resolution on the Indivisibility and Interdependence of Economic, Social, Cultural, Civil and Political Rights.48 In the Case Concerning Article 296 of the Criminal Procedure Code,49 which dealt with the existing restrictions on the rights of victims of crimes or abuses of power to present their views during criminal proceedings, the Constitutional Court invalidated the relevant restrictions by relying, among other things, on the UN Declaration of Principles for Victims of Crime and Abuse of Power.50 The Court noted that under the Declaration victims of crime are entitled to access to the mechanisms of justice and prompt redress. The Court also invoked the “duty” of all UN members to strengthen judicial and administrative procedures and allow victims to present their views and concerns.

45 Institut de droit international, 65(II) Annuaire (1993), 257 (emphasis added). 46 See, e.g., Case Concerning Arts. 180, 181, 187 and 192 of the Arbitration Procedural Code, n. 36 above and accompanying text. 47 See n. 31 above. 48 GA Res. 41/117 (1986). 49 Sobranie, No. 4, item 602 (1999). 50 GA Res. 40/34 (1985).

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These cases suggest that in Russia even non-binding resolutions may affect legal reasoning and court decisions. V. Direct applicability of international human rights law The 1993 Constitution makes no distinction between directly applicable or selfexecuting and non-self-executing treaties or norms.51 Because Russian domestic tribunals have little experience in applying international norms, they often fail to realize that vague or broad international rules cannot apply directly. An analysis of decisions of the Constitutional Court indicates that it makes no distinction between self-executing and non-self-executing treaties or rules. The Constitutional Court often gives direct effect even to treaty provisions that clearly need implementing legislation. In the Labor Code Case52 the Constitutional Court declared age discrimination in labor relations unconstitutional. The Court relied, among other things, on the International Covenant on Economic, Social and Cultural Rights and International Labour Organization Convention No. 111.53 Although it could be argued that the general non-discrimination clause of the Economic Covenant may be considered self-executing,54 it is difficult to assert that the non-discrimination clause of the ILO Convention No. 111 enjoys the same status. Article 2 of the Convention requires states to formulate “a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.” It is unlikely that the courts of the majority of monistic countries would consider this provision to be self-executing, first, because it is essentially programmatic and, second, because it expressly refers to “methods appropriate to national conditions and practice.”

51 For the doctrine of self-executing treaties, see generally Y.Iwasawa, The Doctrine of Self-Executing Treaties in the United States: A Critical Analysis, 26 Virginia JIL (1986), 627; Th. Buergenthal, SelfExecuting and Non-Self-Executing Treaties in National and International Law, 235 RCADI (1992 IV), 303. 52 See n. 42 above. 53 See 2 International Labour Conventions and Recommendations (1996), 176. 54 Cf. General Comment No. 3 issued by the Committee on Economic, Social and Cultural Rights, UN Doc. E/1991/23 (1991) (The Committee noted that while the Covenant provides for progressive realization, it also imposes various obligations which are of immediate effect. One of these “is the ‘undertaking to guarantee’ that relevant rights ‘will be extended without discrimination’.”). In its General Comment 9 (UN Doc. E/C.12/1998/24 (1998)), the Committee went even further. It stated that “the Covenant does not negate the possibility that the rights it contains may be considered selfexecuting in systems where that option is provided for.” The Committee stressed that “it is especially important to avoid a priori assumption that the norms [of the Covenant] should be considered to be non-self-executing. In fact, many of them are stated in terms which are at least as clear and specific as those in other human rights treaties, the provisions of which are regularly deemed by courts to be self-executing”.


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Another example is the Case Concerning Article 335 of the Criminal Procedure Code.55 The applicant in this case challenged the constitutionality of a provision of the old Criminal Procedure Code which restricted the right of convicted persons to participate in cassational hearing and to present their arguments against the sentence not only through an attorney but also in person. The Constitutional Court declared these provisions unconstitutional by referring, among other things, to Article 14(4) of the Covenant on Civil and Political Rights and Article 2(1) of Protocol No. 7 of the European Convention. Article 14(5) of the Covenant provides that everyone convicted of a criminal offence has the right to have her or his conviction or sentence reviewed “by a higher tribunal according to law.” However, Article 2(1) of Protocol No. 7 states that “the exercise of this right…shall be governed by law.” This means that the modalities of the review are governed by domestic law. The direct reference to domestic law would seem to make these provisions non-self-executing. The Constitutional Court appears to consider as self-executing even treaty rules that require creation of necessary domestic organs or mechanisms. A remarkable example is furnished by the decision of the Constitutional Court in the Case Concerning Article 325 of the Criminal Procedure Code.56 Russian law permits some criminal cases to be tried in the first instance by the Supreme Court, the highest court in the system of ordinary courts. The applicant in this case challenged the constitutionality of the rule excluding all such convictions from cassational review. The Constitutional Court found that the absence in the old Criminal Procedural Code of the right of convicted persons to have their conviction reviewed by a higher tribunal in cases in which the persons concerned were tried in the first instance by the Supreme Court was unconstitutional. The Court referred, among other things, to the requirement of Article 14(5) of the Covenant on Civil and Political Rights that review be available in “a higher tribunal according to law,”57 notwithstanding the fact no such higher tribunal existed. The Constitutional Court suggested that the Federal Assembly revise the Criminal Procedure Code and other relevant laws in accordance with its holding.58 While the Russian Constitutional Court refused to draw any distinction between self-executing and non-self-executing treaties, the legislature took the initiative. The 1995 Law on International Treaties59 in Article 5(3) provides that “the provisions of officially published international treaties of the Russian Federation, which do not

55 Sobranie, No. 51, item 6341 (1998). 56 Sobranie, No. 28, item 3394 (1998). 57 The Court was not able to invoke Art. 2 of Protocol No. 7 of the European Convention because Art. 2 contains an exception to the right to review by a higher tribunal in cases in which a person has been tried in the first instance by the highest tribunal. 58 The Federal Assembly enacted the relevant amendments by the end of 1998. The amendments created a special cassational instance of the Supreme Court to review judgments made by that court in its capacity as a trial court of the first instance. See Sobranie, No. 1, item 5 (1999). 59 Sobranie, No. 29, item 2757 (1995).

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require the promulgation of domestic acts for their application, shall operate in the Russian Federation directly. In order to effectuate other provisions of international treaties of the Russian Federation, the relevant legal acts shall be adopted.” Although Article 5(3) does not tell us much about characteristics that make a treaty non-selfexecuting, its wording makes it clear that at least treaty provisions that expressly require states to adopt “domestic acts for their application” cannot be considered directly applicable or self-executing. The 1995 Law on International Treaties was cited by the Russian Supreme Court in its 1995 Ruling60 concerning application of international law. The Supreme Court ruled that “the courts shall bear in mind that, according to Article 5(3) of the Federal Law on International Treaties of the Russian Federation, the provisions of officially published international treaties of the Russian Federation that do not require the promulgation of domestic acts for their application, shall operate in the Russian Federation directly. In other cases it is necessary to apply, along with the international treaty of the Russian Federation, the relevant domestic legal act that was enacted for effectuating the provisions of the said international treaty.” Although the Supreme Court’s attempt to distinguish between self-executing and non-self-executing treaties is commendable, the italicized portion of its statement may have created even more confusion by appearing to require simultaneous application of domestic laws and underlying nonself-executing treaties. Specific laws containing references to international law raise additional questions. Article 7 of the Civil Code61 provides that international treaties apply to civil law relations “directly, except in cases when, from the international treaty, it follows that the issuance of a domestic act is required for its application.” While under Article 5(3) of the 1995 Law on International Treaties62 the need to promulgate a domestic act follows only from “the provisions” of international treaties, Article 7 of the Civil Code refers only to “international treaties” in general. At least in theory, these different formulations may require different interpretation techniques. At this stage, it is unclear whether or not these discrepancies would have any practical effect on judicial practice. Article 14 of the 1999 Labor Code63 may be an illustration of still another approach to direct applicability of international rules. It provides that “rules of international treaties of the Russian Federation also apply directly in cases when a particular relationship is not regulated by the laws or other normative acts.” This clause appears to imply that if there is a gap in domestic law, all international labor conventions may be applied directly irrespective of their specific normative content. Such an approach would hardly be compatible with realities of the international treaty law.

60 61 62 63

See n. 23 above. See n. 39 above. See n. 59 above and accompanying text. See n. 24 above.


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Be that as it may, the distinction between self-executing and non-self-executing treaties is not important when courts refer to treaties or other norms as an aid for interpreting constitutional provisions. As noted earlier, Russian courts usually rely on international law as an additional argument in support of their conclusions based on the applicable constitutional provisions or as an interpretation tool to clarify the scope of the relevant constitutional clauses or to expand them. In such cases, courts can apply international norms regardless of whether they are self-executing or not. VI. Hierarchical status of international human rights law Under the hierarchy established by Article 15(4) of the 1993 Constitution, all treaties, including human rights treaties, prevail over contrary domestic laws. However, Article 15(4) does not establish a higher hierarchical status for the “generally recognized principles and norms of international law.” Nonetheless, human rights principles and norms may override contrary domestic legislation according to Article 17 of the 1993 Constitution which provides that “the rights and freedoms of the human being and citizen shall be recognized and guaranteed in the Russian Federation in conformity with the generally recognized principles and norms of international law.” Recent developments in judicial practice support this proposition. Thus, in the Case Concerning Certain Normative Acts of the City of Moscow and Some Other Regions,64 the Constitutional Court declared the local regulations requiring residence permits unconstitutional by referring, not only to human rights treaties, but to the “generally recognized principles and norms of international law.” Re Belichenko65 may be an indication that ordinary courts are moving in the same direction. As noted earlier, the Moscow Regional Court stated that “when considering specific cases, courts must apply the rules of the relevant international acts if they determine that a [domestic] norm contravenes the generally recognized principles and norms of international law or international treaties of the Russian Federation.” At the legislative level, an indication of the same trend is the 1996 Constitutional Law on the Judicial System of the Russian Federation.66 Article 5 of the 1996 Constitutional Law provides that “a court, having established when considering a case the nonconformity of acts of a state or other agency, and likewise of an official, to…the generally recognized principles of international law or an international treaty of the Russian Federation shall adopt a decision in accordance with the legal provisions having the greatest legal force.” Some commentators claim that “the generally recognized principles and norms of international law” have the same status as constitutional norms.67 Others contend

64 65 66 67

See n. 33 above. See n. 41 above and accompanying text. Sobranie, No. 1, item 1 (1997). See I.I.Lukashuk, Normy mezhdunarodnogo prava v pravovoi sisteme Rossii [Norms of International Law in the Russian Legal System] (1997), 39–40.

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that under Article 17 of the 1993 Constitution “international norms are placed ahead of even the Constitution.”68 This is a very bold proposition which so far has not been confirmed by any practice. No decision of the Constitutional Court or of “ordinary” courts allowed general international law to prevail over contrary provisions of the Constitution. VII. Decisions of international human rights organs in Russia Under Article 15(4) of the 1993 Constitution it is possible not only to invoke enacted human rights rules before Russian domestic courts, but also to rely on the interpretation of such rules by international institutions. Direct legal force of decisions of human rights bodies within the Russian domestic legal order has been facilitated by the ruling of the Constitutional Court in the Case Concerning Articles 371, 374 and 384 of the Criminal Procedure Code.69 The Court held that “decisions of inter-state organs [concerned with the protection of human rights and freedoms] may lead to the reconsideration of specific cases by the highest courts of the Russian Federation and, consequently, establish their competence with respect to the institution of new proceedings aimed at changing the previously rendered decisions, including decisions handed down by the highest domestic judicial instance.” The Constitutional Court made this important pronouncement in connection with Article 46 of the Constitution which provides that all persons enjoy a constitutionally protected right to submit petitions to “inter-state organs concerned with the protection of human rights and freedoms” after exhausting domestic remedies. Although the Russian legislature has yet to adopt new procedural codes that would add a new ground for reopening proceedings with express reference to findings of international organs,70 the innovative interpretation of Article 46 advanced by the Constitutional Court established an obligation to give direct domestic effect to findings of international human rights bodies, including the Human Rights Committee71 and the European Court of Human Rights. Russian courts have not yet developed any consistent jurisprudence relying on decisions of international human rights organs. There is, however, at least one decision of the Constitutional Court that referred to rulings of Council of Europe’s

68 See V.P.Zvekov & B.I.Osmin (eds.), Kommentarii k federal’nomu zakonu “O mezhdunarodnykh dogovorakh Rossiiskoi Federatsii” [Commentary to the Federal Law “On International Treaties of the Russian Federation”] (1996), 17. Cf. also W.E.Butler, The Russian Law of Treaties (1997), 26 (Art. 17 “places international law ahead of the Constitution and, in so doing, confers upon international law a special status in the Russian legal system”). 69 VKS (1996, No. 2), 2. 70 Under the existing Criminal Procedure Code, it is possible to request review of a conviction following a finding of “newly discovered facts” or a breach of “the law,” a formula which may include violations of international law. Similar considerations may be invoked in civil cases. 71 Russia is party to the Optional Protocol to the Covenant on Civil and Political Rights (999 UNTS 171) conferring jurisdiction on the Human Rights Committee in relation to individual communications.


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organs. In the Case Concerning the 1995 Law on the Election of Deputies of the State Duma72 the Constitutional Court considered the constitutionality of the dual system of representation in which each voter casts two ballots, one for an individual candidate, the other for a political party. In finding the system constitutional, the Court relied, among other things, on Article 3 of Protocol No. 1 of the European Convention on Human Rights. Under Article 3 states parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which ensure the free expression of the opinion of the people in the choice of the legislature. In order to determine the nature and scope of Article 3 the Court referred to the opinion of the European Commission No. 8941/80.73 In this opinion the Commission had found that the disparity of the number of votes supporting members of parliament from different constituencies cannot be considered to be in contravention of Article 3 which does not stipulate that the weight of votes behind each member of parliament must be equal. Other state organs and officials have also started to pay attention to international precedents and case-law, especially the case-law of the Council of Europe. After the ratification of the European Convention, President Yeltsin sent a message to the State Duma urging it to adopt a new Criminal Procedure Code in an expeditious manner. The President also urged the State Duma to carry out an analysis of the Draft Code to ensure its compatibility with the European Convention and “the case-law of the European Court.”74 The Chairman of the Presidential Commission on Human Rights emphasized the need for a wider dissemination of information about the European Convention and the importance of training courses on “the case-law of the Council of Europe” addressed at Russian judges.75 The Commissioner for Human Rights in its 1999 Opinion Concerning the Federal Law on the Freedom of Conscience and on Religious Associations76 found that several restrictions introduced by the 1997 Law with respect to non-traditional religious associations contravene international human rights standards and “the case-law of the organs of the Council of Europe.” VIII. Importance of international institutions Experience suggests that participation in international institutions may be an important factor favoring direct application of treaties. If a country joins international institutions to which aggrieved individuals may appeal against breaches of treaty obligations on the domestic level, then national authorities tend to take treaty obligations seriously.77

72 73 74 75

Sobranie, No. 48, item 5969 (1998). See European Commission on Human Rights, 27 Decisions and Reports (1982), 145. Rosiiskaya Gazeta (7 Apr. 1998), 6. See the statement of V.A.Kartashkin, Chairman of the Presidential Commission on Human Rights, made during a symposium on the European Convention on Human Rights, 7 Gosudarstvo I pravo [State and Law] (1998), 110. 76 Rosiiskaya Gazeta (22 Ap. 1999), 5.

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It is well-known, for example, that the jurisprudence of the European Court of Human Rights exerts a strong influence on the attitude of domestic courts of the members of the Council of Europe. As soon as domestic authorities, including judges, realize that the European Court is emerging as a kind of Pan-European constitutional court, they start to pay much closer attention to the European Convention on Human Rights and to the case-law of the European Court. As a result, there is much more willingness to apply the European Convention directly. Russia has joined the Council of Europe, ratified the European Convention and recognized the jurisdiction of the European Court. One can expect that the interaction between Russian domestic courts and the European Court will have a particularly significant impact on the direct domestic application of human rights treaties in Russia. Russia has also ratified the CIS Convention on Fundamental Rights and Freedoms.78 However, the CIS human rights system has not resulted in the creation of a strong enforcement mechanism. The CIS Convention contemplates the establishment of the CIS Human Rights Commission which will be monitoring the enforcement of the Convention. Regulations on the CIS Human Rights Commission79 provide that the Commission may “examine individual and collective applications submitted by any person or non-governmental organization concerning matters connected with human rights violations by one of the parties.” However, the CIS Human Rights Commission has been granted only limited powers and its opinions are not legally binding. It is unlikely that this new regional human rights organ will be able to ensure successful transnational protection of human rights and thus affect domestic implementation of international human rights standards. Not surprisingly, there are no Russian domestic cases that rely on the CIS Convention. IX. Importance of international pressure International pressure from different sources is another factor promoting domestic implementation of human rights. Russian practice confirms that international pressure may lead to far-reaching structural reforms affecting human rights. A good example is a recent reform concerning the Russian prison system. Intense pressure from the Council of Europe to reform the pre-existing prison system, which was administered by the Ministry of Internal Affairs, became an important factor in a fundamental innovation in this area. In 1998, the responsibility for the prison administration and the execution of sentences was transferred to the Ministry of Justice.80

77 Cf. Buergenthal, n. 51 above, 394. 78 Sobranie, No. 13, item 1489 (1999). For an English language text of the CIS Convention on Human Rights, see 17 HRLJ (1996), 159. 79 See ibid., at 163. 80 See Sobranie, No. 31, item 3841 (1998).


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There are many specific examples illustrating the same trend. Thus, the legality of the use of force in Chechnya was examined at both domestic and international levels. In the Chechnya Case81 the Constitutional Court determined that the President had the power to use the armed forces (the Court did find, however, that the Russian military violated principles of humanitarian law). In contrast, at the international level, the use of force encountered strong condemnations.82 Although it is difficult to assess the effect of these condemnations on the Chechen situation, it appears that they have been useful in stimulating domestic reassessment of the policy based on the use of force. Viewed from this perspective, the international community’s strong reaction contributed to the process of peaceful solution of the crisis. Another example is the 1997 Federal Law on the Freedom of Conscience and on Religious Associations.83 Human rights and religious organizations mounted an intense campaign of criticism of restrictions imposed by the 1997 Law on “nontraditional” religions and foreign sects. In 1999, the Russian Commissioner for Human Rights issued an Opinion Concerning the Federal Law on the Freedom of Conscience and on Religious Associations.84 The Commissioner found that the restrictive provisions of the 1997 Law are inconsistent with international human rights standards. It appears that international pressure was at least one of the factors leading to this finding. X. Concluding remarks Any objective observer would acknowledge that Russia has achieved considerable progress in domestic implementation of international human rights standards. It is unprecedented in the history of international law that such a large country has so rapidly opened itself to direct reception of both treaty and general international human rights law. Judicial practice confirms that Russian courts often apply international human rights norms. Russia’s participation in the Council of Europe will only strengthen this trend. Despite remaining relics of the totalitarian past and numerous new problems, there have never been better prospects for true human rights enforcement in Russia to succeed.

81 See n. 19 above. 82 The Human Rights Committee deplored “the excessive and disproportionate use of force by Russian forces in Chechnya indicating grave violations of human rights.” It expressed concern “about the large number of reported cases of torture, ill-treatment of the person and arbitrary detention in ‘reception centers’ or ‘filtration camps’” established by the Russian military in Chechnya (See UN Doc. CCPR/C/79/Add.54 (1995)). “Grave violations of human rights, as well as of international humanitarian law” have also been condemned by the UN Commission on Human Rights (See UN Doc. E/CN.4/1997/10 (1997)). At the European regional level, human rights violations in Chechnya became the major obstacle to the acceptance of Russia in the Council of Europe. One of the principal conditions for membership was a political solution of the Chechen conflict. 83 Sobranie, No. 39, item 4465 (1997). 84 See n. 76 above.

12 Responsibility of states and individuals forinternational crimes* Vladimir-Djuro Began

Law must be the same for all, whether it protects or punishes. From the 1789 French Declaration of the Rights of Man and of the Citizen.

I. Introduction The first time I met Professor Li Haopei was at the Cairo Session of the Institute of International Law in 1987. Being myself, at that time, one of the youngest associés, a spontaneous friendship arose between me and my much older Chinese confrères in the Institute, especially with Li Haopei and Wang Tieya. I still remember the scholarly interventions of Li Haopei in discussions—which he read from exercise books used in schools—on some complicated legal issues of international commercial intercourse, in all modesty inherent to his character. About his critical views there was no argument, simply because of the self-evident legal reasons he presented. In these debates he proved the qualities of an excellent lawyer among the members of the most prestigious institution for international law. The last time I met Li Haopei was during the Strasbourg session of the Institute in 1997. He was then a Judge at the International Criminal Court for the former Yugoslavia. Before that jurisdiction, a number of Croatian soldiers from BosniaHerzegovina were indicted. The topic on which I decided to write a contribution to the Collected Essays in honour of my old friend is connected with his last activities as a Judge of an international criminal tribunal in respect of which there are still many misunderstandings and mis-judgments. It is my impression that there are not a few lawyers who believe that mere establishment of institutions such as international criminal courts and tribunals will resolve and prevent, in future, all problems for which they were established. Such view is even more widespread among politicians and diplomats. In striving for new institutions of this kind some important legal aspects of * This paper was completed in the summer of 1999. 202

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international crimes are sometimes neglected. It is perhaps insufficiently taken into account that the very concept of international crimes is a result of development of general customary international law, and that the prosecution of some generally recognized international crimes is not in the competence of any existing or potential international judicial tribunal. What is also neglected is the delicate link, and simultaneously far reaching differences, between the responsibility of States and the responsibility of individuals acting in the capacity of State organs, for the same international crimes. State responsibility should not be neglected even in criminal trials. That is because, except on some rare occasions, only the wrongdoing State can give some kind of reparation to the victims of international crimes. For the civilian victims, the fact that responsible persons may (or may not) be apprehended and surrendered to the Tribunal is of little consolation, if nobody is responsible to adequately compensate them. II. Common elements of international crimes As a distinct category from ordinary international delicts, international crimes are defined in paragraph 2 of article 19 of the Draft Articles on State Responsibility by the International Law Commission.1 This qualification is not opposed by anyone who recognizes their existence as a special category of internationally wrongful acts.2 The definition reads as follows: “An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole constitutes an international crime”. According to paragraph 4 of that article: “Any internationally wrongful act which is not an international crime (in accordance with the above definition) constitutes an international delict”. As stressed in the commentary of the International Law Commission, the criterion of international crimes has two aspects: “one is the requirement that the obligation breached shall, by virtue of its content, be essential for the protection of fundamental interests of the international community; the other, which completes the first and provides a guarantee that is essential in such a delicate matter, makes the international community as a whole responsible for judging whether the obligation is essential and, accordingly, whether its breach is of a ‘criminal’ nature.”3

1 2

3

ILCYB (1976–II(2)), 72, 95. Prosper Well, Towards relative normativity in international law, AJIL (1983), 413, 423–430, has seen in graduated normativity between peremptory and merely binding norms, as well as between international crimes and international delicts, the potential danger for the international normative system. However, in spite of the basic correctness of some of his critical remarks, all these notions are now deeply rooted in positive international law. Cf. ILCYB (1976–II(2)), 119, para. 61.

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With these criteria taken into account, the list of international crimes having been adopted as such in the body of general international law is impressive today. They are: piracy on the high seas, slavery and slave trade, aggression, genocide and apartheid. In statu nascendi are perhaps the crimes of international terrorism and of drug trafficking. Various international instruments attach the following crimes to this list: establishment and maintenance by force of colonial domination; massive pollution of the atmosphere or of the seas;4 and crimes against UN and associated personnel.5 The statutes of international criminal courts and tribunals have added to this long list some crimes that can be committed in connection with armed conflicts: crimes against humanity; violations of laws or customs of war; serious violations of Article 3 common to the 1949 Geneva Conventions and of Protocol II of 1977 (that can be committed in non-international armed conflicts); and grave breaches of the 1949 Geneva Conventions (that can be committed only in international armed conflicts). The Rome Statute of the International Criminal Court of 1998 encompasses the last three groups of crimes in its large text of Article 8 as “war crimes”. But the provision is not yet a law in force. In case of institution of any new international court or tribunal, the principle of non-retroactivity will not be violated if the prosecution of past acts that have already been recognized as a part of positive international law is conferred in their competence. The principle nullum crimen sine lege cannot apply in respect of these acts of wrongdoing. Finally, it seems important to stress another distinction relating to perpetrators of international acts. Crimes of piracy, slavery and drug trafficking are usually committed by individuals or groups acting for their own interests. Although anything in life is possible, it is difficult to impute these acts to one or more States. Some of the most dreadful crimes such as genocide, apartheid, or terrorism, or crimes against humanity, can also be committed by groups of individuals acting in their own capacity; but individuals can be inspired by, or act as agents of, a State. However, crimes against peace (i.e., the crime of aggression) can by definition be committed by individuals only if acting in the capacity of State organs. State responsibility cannot be dissociated from them, while in other cases it should be proved. Common legal features of all international crimes can in our view be defined as follows: (1) They involve personal responsibility of their perpetrators, but some of them can involve State responsibility as well.6

4 5 6

Cf. paragraphs 3 (b) and (d) of article 19 in the Draft Articles on State Responsibility. Cf. Article 19 of the Draft Code of Crimes against the Peace and Security of Mankind. For a discussion of the dilemmas relating to this, see ILCYB (1995–II(2)), 47–51, paras. 253–281.


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(2) International crimes affecting human rights are absolutely forbidden as measures of reprisals against internationally wrongful acts by other States, in time of peace or in time of armed conflicts. As such, they are prohibited even as countermeasures against international crimes which were first committed by the wrongdoing State. (3) They all have “imprescriptible” character, in the sense that no statutory limitations can apply to them, irrespective of the date of their commission. (4) Obligations not to breach fundamental norms prohibiting international crimes are all obligations erga omnes. In respect of their transformation into customary rules of general international law all international crimes elude strict positivistic requirements.7 Hence, written provisions qualifying these crimes from the general conventions on slavery, genocide, apartheid, etc., usually transform in a short period of time into new customary rules of general international law.8 As customary rules, these qualifications are binding on third States, which are not parties to respective conventions. These conventional definitions most often serve their purposes when a State’s responsibility is at issue. But they are sometimes too scanty and insufficient in case of criminal responsibility of individuals before a criminal tribunal. Unlike most other international crimes, the crime of aggression was not defined by a conventional instrument but by the UN General Assembly resolution 3314 (XXIX) of 14 December 1974. However, this last problem raises other difficulties which will be discussed separately. (5) The fifth important feature of all international crimes is their delicate link to jus cogens, as defined by Article 53 of the 1969 Vienna Convention on the Law of Treaties.9 All aspects of the relationship between State responsibility for any internationally wrongful acts, including international crimes, and the personal criminal responsibility of individuals acting as State organs, are not as yet clear. Nevertheless, the commission of international crimes like that of aggression, involves both responsibility of the wrongdoing State and of individuals acting in its name. On the contrary, the commission of ordinary international delicts by a State like unlawful use of force

7

The same is true, however, with the set of rules which in doctrine are called “fundamental principles of international law” or “fundamental rights and duties of States”. 8 On customary process in respect to all these norms see V.D.Degan, Sources of International Law (1997), 83–89, 220–36, 520–24. 9 According to that definition: “a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole” (this element is similar to that of international crimes). Then follow the words: “as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” The second element is, however, dissimilar. On this subject matter see F.Rigaux, Le crime d’Etat. Réflexions sur l’article 19 du projet d’articles sur la responsabilité des Etats, in 3 Le droit international à l’heure de sa codification, Etudes en l’honneur de Roberto Ago, Milano (1987), 301–53.

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short of aggression, does not involve personal responsibility of individuals who are its organs, but only the responsibility of the intervening State. All international crimes that are now parts of positive international law are, according to Article 53 of the 1969 Vienna Convention, violations of norms of jus cogens. Hence, circumstances precluding wrongfulness of an “act of the State” such as consent, state of necessity or legitimate counter measures, force majeure and fortuitous events, do not apply if the obligation arises out of a peremptory norm.10 They do a fortiori not apply in case of international crimes. Nevertheless, even in the domain of international protection of human rights there are some non-derogable rules of jus cogens which have not been recognized so far as international crimes by the international community of States. Examples of such peremptory norms are: freedom from ex post facto laws; prohibition of imprisonment for debt; right to equal protection of the law; right to personal liberty; right to a fair trial; freedom of thought and expression; etc. An even better example is the principle of non-discrimination. Its frequent violations by States against individuals do not constitute international crimes but, perhaps, ordinary international delicts. Nevertheless, some forms of systematic and widespread violation of this principle can result in international crimes, such as that of apartheid, or even the crime of genocide.11 The degree and intensity of violation is an even more important issue in respect of the principle of non-intervention, which prohibits dictatorial interference in internal or external affairs of another State. Measures of an intervening State by which it does not actually transgress any of its international obligations (for example its unilateral breach of diplomatic or consular relations, or withdrawal of a promise to conclude a favourable treaty) can be encountered only by retorsion of the State affected. However, any measures of unlawful intervention are international delicts entailing international responsibility of the intervening State, because they constitute a breach of an obligation from a norm of jus cogens.12 The State victim can resist them with its acts of lawful reprisals. Finally, measures of armed intervention as determined by the 1974 Definition of Aggression, constitute international crime. In order to make this relationship clearer, several possible situations of international responsibility may arise: (i) A breach by a State of any of its international obligations, regardless of its origin (whether customary, conventional or other), constitutes its internationally

10 Cf. Arts. 29(2), 33(2a) and 50(e) of the Draft Articles on State Responsibility. 11 According to Article II of the Apartheid Convention of 1973, this crime is a policy or practice of racial discrimination “committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them”. 12 In this respect see especially: Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, adopted by the UN General Assembly resolution 2131 (XX) of 21 December 1965.


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wrongful act and entails its international responsibility (see articles 1 to 4 of the Draft Articles on State Responsibility by the International Law Commission (hereafter: “the Draft Articles”)). (ii) Every State is subject to the possibility of being held to have committed an ordinary international delict by action or omission of its organs in breach of its obligations from a treaty, from a particular customary rule of law, from a judgment binding on it, etc., (article 17). “Injured State” in such situations is only the State whose rights are infringed by that wrongful act (article 40). These relations belong to the field of diplomatic protection and they are not a matter of concern of third States. (iii) A State can also commit an ordinary international delict in breach of its obligation from a peremptory norm of general international law (jus cogens), the violation of which has not yet been generally recognized as an international crime. This is a breach of an obligation erga omnes, and any other State, as a matter of principle, can consider itself an “injured State”.13 But still, the personal responsibility of individuals acting as State organs does not arise, because no international crime was committed. There is, nevertheless, a strong tendency evident in the further development of general international law that large scale and widespread violations of norms of jus cogens, especially in the field of protection of human rights, will transform into new international crimes.14 (iv) There is, however, a further far reaching limitation. Together with the responsibility of the wrongdoing State itself, only the commission of international crimes generally recognized as such by the international community of States involves personal responsibility of individuals acting as State organs. But an international criminal court or tribunal can prosecute individuals only for crimes which are specifically conferred into its competence by its statute. Punishment of individuals for crimes which are not within the jurisdiction of a tribunal of that kind is violation of the principle nullum crimen sine lege. Now, a few words about “injured States”. According to Article 40(3) of Draft Articles on State Responsibility: “‘injured State’ means, if the internationally wrongful

13 This follows from a famous dictum by the International Court of Justice in its 1970 Judgment on Barcelona Traction, “…an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.” I.C.J. Reports 1970, 33, para. 33. 14 In a remarkable book by L.Hannikainen, Peremptory Norms (Jus Cogens) in International Law (1988), 716–23, the author has undertaken careful research in order to ascertain norms of jus cogens which are now in force. The results of his analysis indicate that the difference between these peremptory norms and international crimes is thin. It sometimes depends more on the degree and harmful consequences of the act than on the nature of the unlawful attitude. For instance, even if torture and other forms of brutal or cruel treatment or punishment are not as yet recognized as a specific international crime, a widespread practice of torture under some particular circumstances is already incorporated into other crimes.

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act constitutes an international crime, all other States” (meaning all other States members of the international community). However, as stressed above, the same applies to violations of any other norms of jus cogens, which this draft article does not expressly provide. Nevertheless, accurateness in this respect seems to be necessary. As stated in the United States Comments on these Draft Articles: “all states…have the ability to call for cessation of unlawful conduct and for reparation to be provided to the injured State [one should add: to injured persons also]… But the circle of states considered to have standing to claim reparation should be limited to those that identify a particular provision of law…granting them such a right”.15 III. Legal consequences of State responsibility for international crimes In its Draft Articles the International Law Commission was not able to ascertain and provide criminal responsibility of States for international crimes analogous to or like that of individuals. Although such tendency was present at the time of drafting of what became Article 19 of the Draft Articles on State Responsibility, it was later abandoned altogether.16 Hence, it is true that State responsibility for international crimes is essentially “a form of civil responsibility”.17 This means that when a State commits an internationally wrongful act consisting of an international crime, it bears the responsibility to make reparation, just as in case of an ordinary international delict.18

15 Cf. ILM (1998), 477–478. For a similar view, see A.Cassese, Remarks on the Present Legal Regulation of Crimes of States, in 3 Le droit international à l’heure de sa codification, Etudes en l’honneur de Roberto Ago (1987), 57, 63. 16 In a succinct review of the former doctrine, Professor Roberto Ago has described the views of supporters of the so-called theory of penal responsibility of the State, which experienced certain success in the period between the two world wars: “…reference must be made to the school which includes V.V.Pella, Q.Saldaña, H.Donnedieu de Vabres and others, who urged the adoption of a code listing the most serious breaches of international law and specifying the penalties attaching to them. These range from punitive damages to the occupation of territory, and, as a last resort, the loss of independence. All the authors in question make the implementation of their principles dependent upon the establishment of an international criminal court responsible for applying the penalties in question.” Cf. ILCYB (1976–II(2)), 113, para. 141. Such a proposed court, if adopted under present circumstances, would perhaps assume a part of the responsibilities of the UN Security Council. However, if not for other reasons, it is hard to believe that any of its five permanent members would agree to such far reaching revision of the UN Charter. 17 Cf. discussion in I.Brownlie, System of the Law of Nations: State Responsibility (1983), 32–33. 18 These shortcomings in positive international law were reflected in Chapter IV of Part Two of the Draft Articles on State Responsibility, containing only three provisions. According to Article 51: “An international crime entails all the legal consequences of any other internationally wrongful act …”, and in addition such further consequences as are set out in the following two articles. Article 52 provides specific consequences for the injured State, and Article 53 relates to obligations for all States. For critical notes on provisions concerning ordinary international delicts v. international crimes, see A.Pellet, Remarques sur une révolution inachevée, le projet d’articles de la CDI sur la responsabilité des Etats, AFDI (1996), 22–25.


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However, this flaw in positive international law should not be filled in by easily attributing criminal responsibility in international trial proceedings to individuals who have no personal guilt for the crime in question that can even be committed by a third State. On the other hand, there is no doubt that conduct of any State organs, being of executive, military, legislative or even judiciary branches, consisting either in actions or omission, which constitute an international crime recognized as such by the international community of States, is considered an act of that respective State and entails its international responsibility. Nevertheless, under some particular circumstances, international responsibility of a State can be involved in the conduct of agencies or persons who, strictly speaking, are not State organs. Article 7(2) of the Draft Articles on State Responsibility provides attribution to the State of the conduct of other entities empowered by its internal law to exercise elements of government authority. Article 8 provides, furthermore, attribution to the State of the conduct of persons or groups who, in fact, exercise elements of the governmental authorities in the absence of the official authorities. On the same footing, a State can be responsible for some indirect acts of aggression. Article 3 of the Definition of Aggression qualifies as aggression: “(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating of an act of aggression against a third State”, and “(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such a gravity as to amount to the acts listed above, or its substantial involvement therein.” The spectrum of indirect acts of unlawful intervention short of war is even much larger. Certainly, wherever there is omission of State organs to prevent internationally wrongful acts on its territory affecting another State, a difficult problem can arise of attribution of these acts to its particular organs. It must be, however, acknowledged that an injured State or a person obtains, in practice, reparation from a wrongdoing State mostly as a consequence of its ordinary international delicts committed in time of peace, and then only if both respective parties have strong interests in continuing their peaceful cooperation and trade. On the contrary, for the commission of the most serious crimes like that of aggression, State responsibility can remain platonic in its consequences. It depends on the power relations whether a State victim of aggression can be successful in its recourse to self-defence against a more powerful aggressor. Actions by the UN Security Council under Chapter VII of the UN Charter cannot be successful if the aggressor is one of its permanent members, or another State acting under its protection. IV. International organizations and international crimes As distinct subjects of international law, international organizations can, just like States, commit international crimes either by action or, more often, by omission of organs acting on their behalf.

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It is easy to assume that international crimes can be committed by the UN troops involved in an enforcement action or a peacekeeping operation. But the fact of who will bear the responsibility for the acts of armed forces can sometimes depend on stipulations in the agreement between the State furnishing its troops for such a mission and the United Nations. The same applies mutatis mutandis if a military alliance like NATO is involved in an enforcement action, even without the permission of the Security Council, when it is a matter of lawful collective humanitarian intervention like the one against the Federal Republic of Yugoslavia in 1999. Another aspect is much more delicate. The responsibility of the United Nations can at least be discussed when the Security Council sends an observer or peacekeeping mission to an area in a situation which urgently requires an enforcement action, like the one undertaken in 1991 against Iraq. Unlike the enforcement actions against a declared aggressor, there are three particularly important principles of peacekeeping. These are the consent of all the parties to a conflict, impartiality and the non-use of force (except in self-defence).19 This exactly happened with the peacekeeping operations in Bosnia-Herzegovina and Somalia after 1992. UNPROFOR was never authorized in Bosnia-Herzegovina and in occupied parts of Croatia to use force beyond that required in self-defence, while performing its rapidly expanding duties. As a matter of principle, it was not authorized to prevent or deter international crimes, including the most dreadful crime of genocide. Its duty was only to observe the situation. Such operations can prove to be unsuccessful merely for the mis-judgment by the Security Council of a particular conflict, and not strictly in breach or in abuse of its primary responsibility for the maintenance of international peace and security, as conferred to it by Article 24 of the UN Charter. Nevertheless, all aspects of personal responsibility of individuals acting as its organs in omission to prevent the crime of genocide, such as the one in Srebrenica in Bosnia-Herzegovina in 1995, are not quite clear. V. Some features of personal responsibility of individuals for international crimes Persons accused of international crimes can in principle be tried either by a municipal court of a State, or by an international criminal court or tribunal. On the basis of their treaty commitments or otherwise, most States have included in their penal laws a large number of international crimes, providing severe penalties for them. The essential elements of these crimes are sometimes defined in such municipal legislation with more precision than in general conventions which have State responsibility in view. However, the results of the States’ prosecution of their own nationals for the commission of international crimes have been very discouraging

19 Cf. Supplement to the Agenda for Peace, A/50/60 (1995), para 33, by the UN Secretary-General.


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so far. This strongly indicates that in including international crimes in their penal laws, States in fact pay lip service to their assumed international obligations. National courts are perhaps ready to prosecute individuals for international crimes which they commit in their own interests, such as that of drug trafficking. However, if a criminal act might involve even indirect international responsibility of the respective State, persons responsible remain most frequently unpunished, or get symbolic penalties. This was especially the case with crimes committed by national armed forces abroad. The French Professor Charles Rousseau exposed some discouraging details in this respect in his remarkable book on international armed conflicts.20 In the course of the Vietnam War the most serious incident happened at My-Lai, a village on the eastern coast of Vietnam, 510 kilometers north-east of Saigon. On 16 March 1968, 347 Vietnamese civilians were massacred there by the servicemen of the 20th US Infantry Regiment. In an inquiry made by the US Army, it was found that 30 persons took part in the massacre. Of them, only Lieutenant Calley was sentenced, on 31 March 1971, to life imprisonment for his personal involvement in the massacre, himself killing twenty-two civilians. But soon afterwards, on 20 August 1971, his sentence was reduced to 20 years imprisonment, and on 9 November 1974 he was released on bail by a judgment issued by the United States Court of Appeals in New Orleans. However, on a personal intervention of President Nixon, after his first sentence he was already placed under house arrest following 1 April 1971. In most other countries in the world, there are no impartial inquiries of the crimes committed, or no legal suits or sentences for international crimes like that, except perhaps in Israel. This is only to indicate how serious political obstacles in the administration of justice against individuals responsible for international crimes are. Unlike national courts which are usually entrusted with prosecuting a large scale of international crimes, but for the reasons of political expedience do not properly fulfil their judicial function, international criminal courts and tribunals have, in this respect, very limited competencies. Their statutes confer upon them the jurisdiction to prosecute only a few specific international crimes. In order not to grossly violate the principle nullum crimen sine lege, they cannot transgress their competencies, nor the qualifications of crimes as provided in their statutes. Beside these far-reaching restrictions, the respect for some general principles of criminal law may shed particular light on the responsibility of individuals, as compared to the State responsibility for the same crimes. The rules on State responsibility do not know limits which will now be discussed. As pointed out previously, the responsibility of States for the acts of their organs is more direct, yet in practice it can remain platonic.

20 Cf. Charles Rousseau, Le droit des conflits armés (1983), 186–87.

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It is not contested that every accused person, even for international crimes, has the right to a fair trial which includes the respect of all fundamental rules that can be called “general principles of criminal law”. These principles are inherent to any judicial process. Their aim is on the one hand not to exculpate perpetrators from their personal responsibility nor to attenuate it, but on the other hand to prevent injustice against those who are innocent. The breaches of these general principles, or their manifest violations, would affect the judicial character of criminal proceedings and easily lead to a mockery of justice. Most of these general principles are embodied in statutes and rules of procedure and evidence of criminal tribunals. Some of them can only be mentioned here as examples: the ban of analogy, the principles nullum crimen and nulla poena sine lege, that of non-retroactivity of criminal law, and res judicata. We shall now discuss the limits of personal responsibility of individuals for international crimes, bearing in mind mainly the experience and problems of the International Criminal Tribunal for the Former Yugoslavia (ICTY). 1. The most basic among all these principles is that expressed in Article 4 of the French Declaration of the Rights of Man and of the Citizen of 1789, where it was stated that law “must be the same for all, whether it protects or punishes”. The confirmation of the respect for this principle is found in a part of the Judgment of the Nuremberg Tribunal of 1946 relating to the German admirals Dönitz and Raeder. They were both charged by the Prosecution with waging unrestricted submarine warfare contrary to the Naval Protocol of 1936, which reaffirmed the rules of submarine warfare laid down in the London Naval Agreement of 1930. The Tribunal, however, found in its Judgment the following: “In view of all of the facts proved and in particular of an order of the British Admiralty announced on 8 May 1940, according to which all vessels should be sunk at night in the Skagerrak, and the answers to interrogatories by Admiral Nimitz stating that unrestricted submarine warfare was carried on in the Pacific Ocean by the United States from the first day that Nation entered the war, the sentence of Dönitz is not assessed on the ground of his breaches of international law of submarine warfare.”21 The Tribunal made the same finding on Admiral Raeder, with an important difference with respect to the time limit of his responsibility: he retired on 30 January 1943.22 It cannot be alleged that the above attenuating circumstances released the United Kingdom, the United States, Nazi Germany and Japan, from their State responsibility for the violations of the rules of warfare at sea, and for the ill-fate of all shipwrecked persons who perished in that war. The respective rules of warfare persisted unchanged as a part of positive law up to the present date. They should apply in cases of enforcement actions by the United Nations at sea, such as that in the Gulf War in 1990 and 1991.

21 AJIL (1947), 305. 22 Ibid., 308.


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It was, however, an elementary requirement of justice not to punish two German admirals for the same crimes committed by all other State parties in World War II. This precedent should, however, not apply to persons directly committing or directly ordering international crimes, on condition, however, that all such persons are brought to justice, irrespective of religious affiliation of their victims in an internal conflict like that in Bosnia-Herzegovina. And perhaps this precedent should also not apply to any persons responsible for the most serious crime of genocide. 2. Under Article 9 of the London Charter a competence was conferred to the Nuremberg Tribunal to declare that a group or organization, of which an individual was a member, was a “criminal organization”. The part of the Nuremberg Judgment of 1946 relating to criminal organizations is one of the most balanced. It provided strict legal requirements in order not to produce great injustice and to prevent punishment of innocent persons who merely belonged to such group or organization. On the basis of these criteria, the Nuremberg Tribunal declared that the S.A., the Reich Cabinet, the General Staff and High Command of the German Armed forces were not criminal organizations. However, because the criminal law prohibits analogies, and statutes of later criminal tribunals and courts did not confer such a competence to them, all persons indicted before them can be charged only for their own actions or omission, and not for their bare belonging to an armed formation, or political party, as an alleged criminal organization or group. In favour of this principle now militates the governing legal principle applicable to all armed conflicts that all their parties (whether aggressor or his victim) are equally responsible for their respective violations of the rules of humanitarian law. VI. Responsibility of individuals in different types of armed conflicts A particular problem was created by the drafters of the Statute of the ICTY in respect of its Article 2, which empowers the Tribunal to prosecute persons committing grave breaches of the 1949 Geneva Conventions. All four Geneva Conventions, except their common Article 3, apply to international armed conflicts. The Appeals Chamber of the Tribunal noted in its Decision of 2 October 1995 in the Tadic case the fact that: “in the present state of development of the law, Article 2 of the Statute only applies to offences committed within the context of international armed conflicts” (p. 48, para. 84). It cannot be otherwise, at least not in criminal law. Grave breaches of the Conventions which as such are applicable to international armed conflicts, apply only to this type of hostilities, and not to non-international armed conflicts, nor in situations of internal disturbances. Analogies in criminal law are forbidden. With this in view, and probably in order to avoid this gap, the drafters of the 1994 Statute of the later International Tribunal for Rwanda introduced in its Article 4 a specific crime: “Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II”. This was because of the fact that throughout the critical year of 1994, there was no evidence that Rwanda was engaged in an international

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armed conflict with its neighbouring States. All crimes were committed within the context of an internal armed conflict. Finally, the large and complex text of Article 8 of the 1998 Rome Statute of the International Criminal Court, under the title of “war crimes” encompasses: violations of the laws or customs of war and grave breaches of four Geneva Conventions and of both Additional Protocols of 1977. However, according to its text, subparagraphs (c), (d), (e) and (f) of its paragraph 2 will in future apply only to armed conflicts which are not of international character. The rest of paragraph 2 will apply to genuine international armed conflicts. But Article 8 of the Rome Statute is still a lex ferenda. For the application of Articles 3 to 5 of the Statute of the ICTY it is irrelevant whether violations of laws or customs of war or crimes against humanity were committed in an international or an internal armed conflict. The crime of genocide can even be committed in time of peace. However, to prosecute a person for grave breaches of the Geneva Conventions, the Tribunal must establish the existence of an international armed conflict. Besides that, the ICTY has no jurisdiction to prosecute persons for Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, that can specifically be committed in an internal armed conflict. For the above reasons the ascertainment of facts becomes of utmost importance for exercising the ICTY jurisdiction. We shall try to trace some guiding principles here. Prior to the 1949 Geneva Conventions on Humanitarian Law, classical international law knew only three types of armed conflicts: (1) war; (2) civil war; and (3) use of force short of war, such as armed reprisals, self-defence, other kinds of armed interventions like “pacific blockade” of a part of the coast of a foreign State, etc.23 Conventional rules which are now in force distinguish between: (1) international armed conflicts; (2) armed conflicts not of an international character (or “noninternational” or “internal” armed conflicts); and finally (3) situations of internal disturbances and tensions which are not armed conflicts. As usual, this repartition does not avoid certain doctrinal confusions which will be discussed later on. We shall now explain the criteria for availability of all these three different situations. International armed conflicts. The four 1949 Geneva Conventions do not only formulate international crimes consisting of grave breaches of certain of their provisions. They, in addition, prescribe in their common Article 2 the criteria for existence of international armed conflicts to which all their provisions, except their common Article 3, apply. According to common Article 2(1), the four Geneva Conventions apply:

23 Cf. D.Schindler, The Different Types of Armed Conflicts according to the Geneva Conventions and Protocols, 163 RCADI (1979), 125.


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(i) To all cases of declared wars which, however, after 1945 are practically nonexistent. Nevertheless, it is generally admitted that formal declarations of war by numerous Latin American States against the Axis Powers during World War II, created the state of war, although their armed forces were not engaged in actual hostilities. (ii) The above Conventions equally apply to any other armed conflict which may arise between two or more of the High Contracting Parties, “even if the state of war is not recognized by one of them”. This a contrario means that there is no international armed conflict if all belligerent parties deny the existence of the state of war. However, most doctrinal writings neglect this important difference, probably in the light of the large post-war practice of denials of the existence of the state of war. (iii) The third situation of international armed conflicts is provided in paragraph 2 of Article 2. It reads: “The Convention shall apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no resistance.” This provision had in view, in 1949, the German occupation of Denmark during World War II, where, unlike Norway and other occupied States, there was no armed resistance against the invasion. However, in 1944, the same situation of occupation occurred in Romania and Bulgaria where there was no resistance to the advancing Red Army. (iv) Under the impact of later development of general international law, paragraph 4 of Article 1 of the 1977 Protocol I to the Geneva Conventions, assimilates into international armed conflicts some kinds of armed struggles which were previously considered as civil wars. That situation includes: “armed conflicts in which peoples are fighting against colonial domination and alien occupation or against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”. It seems, nevertheless, that in the trial proceedings before the current international criminal tribunals and before the future International Criminal Court, these varieties of international armed conflicts will be of little use. Non-international armed conflicts. The four 1949 Geneva Conventions, and especially their common Article 3, did not define non-international armed conflicts. That would presume, at least until 1977, a negative determination, namely that non-international armed conflicts are all those which do not meet the above requirements for international armed conflicts. Nevertheless, Article 1 of the 1977 Protocol II tried to define armed conflicts not of international character as distinguished from situations which are not armed conflicts at all. In fact, it defined only one of the possible kinds of these conflicts. In its paragraph 1 it provides that this Protocol shall apply to armed conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command exercise such control over a part of its territory as to enable them to carry out sustained and concentrated military operations and to implement this Protocol”.

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It was, however, proved in reality that as a consequence of destruction of State structure, different factions within a State can fight one against another and the Protocol II will still apply to such conflicts. It seems that such situation actually happened in Somalia, or between HVO (Croatian Defence Council) and the Bosnian Army in the Valley of Lašva in Bosnia-Herzegovina. Internal disturbances and tensions. Finally, paragraph 2 of Article 1 of the Protocol II provides that: “This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of similar nature, as not being armed conflicts.” Such situations, however, presume the existence of central government authorities on a State territory. As regards the ICTY, in its Celebici Judgment of 16 November 1998 it established that: “The Government of Bosnia and Herzegovina, for its part, undoubtedly considered itself to be involved in an armed conflict as a result of aggression against that State by Serbia and Montenegro, the Yugoslav Army and the SDS (local Serbian Democratic Party). On 20 June 1992, it proclaimed a state of war, identifying these parties as aggressors…” (para. 225). It remains to ascertain whether the conflict between the HVO and the Bosnian Army between January 1993 and January 1994 was also an international armed conflict because of the temporary presence of the units of the Croatian Army in some parts of that State. It remains also to ascertain whether at all, or from which date, the conflict on the territory of Croatia with the Yugoslav Army and local Serbian forces became an international armed conflict. In case the existence of an international armed conflict cannot be proved on the basis of the above criteria, there are still additional tests for ascertainment of its existence. They appeared in previous wartime practice of States. They will shortly be explained here. A. The outbreak of a war has usually a rupture of diplomatic and consular relations between belligerent States as its immediate effect. However, because of the practice of some belligerents to keep diplomatic relations even during full-fledged hostilities,24 other tests for existence of an international armed conflict are also of importance. B. The outbreak of a war has considerable effects on treaties between belligerent States. There are now not generally agreed rules on the effects of international armed conflicts on multilateral and bilateral treaties of which the belligerents are parties. That is because this important topic remained outside the scope of the 1969 Vienna Convention on the Law of Treaties.25 Nevertheless, from the former State practice the following can be deduced:

24 That was the case with China and Japan until 1 February 1938; with the Soviet Union and Japan during the hostilities in Siberia and Mongolia in mid-1938 and in 1939; or with Iran and Iraq throughout the war between 1980 and 1988. 25 On this problem, see V.D.Degan, Sources of International Law (1997), 465–69, where a resolution on this subject-matter adopted by l’Institut de Droit international in 1985 is analyzed.


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(i) The outbreak of a war cancels all bilateral treaties on political or military cooperation or alliances between the belligerents. (ii) During wartime each of the belligerents is free to suspend the operation of treaties on trade, commerce and similar matters, unless the UN Security Council decides otherwise. This relates above all to bilateral treaties between belligerents, but not to multilateral treaties and treaties constituting international organizations of which all belligerents are parties. And finally, (iii) the outbreak of hostilities renders operative multilateral and bilateral treaties which expressly provide to be operative during the armed conflicts. In armed conflicts on the territory of the former Socialist Federal Republic of Yugoslavia the International Committee of the Red Cross was active as mediator in the conclusion of ad hoc agreements on the application of Geneva Conventions and Protocols between conflicting parties, be they States or non-recognized entities. C. The outbreak of hostilities has important effects on enemy citizens in the territory of another belligerent State. An important objective test of existence of an international armed conflict proceeds from Article 4(2) of the 1949 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War. It provides: “…Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.” In the case that no nationals of another State were treated as enemy citizens, and that all of them enjoyed protection of their embassy which continued its mission, that can be strong evidence that there was no international armed conflict. D. And finally, the outbreak of hostilities has important effects on the intercourse, especially trading, between belligerents.26 From the legislation and practices on trading with the enemy of the United Kingdom, France, the United States, Italy and Germany, some conclusions can be drawn: Each of the belligerents is empowered to prohibit by its laws all trade between its own and enemy subjects, including of course their State enterprises. By application of these laws, in two World Wars practically all trading and contracting with persons resident in an enemy country, or with persons from neutral countries doing business with the enemy, all payments to such persons and all business and communications with them were interrupted. All contracts made before the entry into force of that legislation were abrogated. Being in contravention of that legislation, all new contracts were null and void and constituted criminal offences. Only contracts concomitant with the rights of property,

26 In this respect provisions from peace treaties concluded in 1919 and 1947 respectively are not conclusive, for these treaties settled very unequal relations in these issues between victorious States and their subjects on the one hand, and vanquished States and their subjects in two World Wars on the other. Conclusive is, however, the practice of all belligerents during these wars.

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such as leases or mortgages, were not abrogated, but were suspended until the conclusion of peace treaties. Furthermore, all belligerent States seized public enemy property on their own territory and on the occupied territory, such as funds, ammunition, provisions, or rolling stock of enemy State railways. All these measures were considered by all belligerents as consistent with the law of war, which did not suffer changes even after 1945.27 In the case that there was no such practice, that is another strong indication of the absence of the objective situation of an international armed conflict. VII. Unlawful intervention, aggression and grave breaches of the 1949 Geneva conventions in respect of individual criminal responsibility The Nuremberg Tribunal was right in confirming in its 1946 Judgment that: “To initiate a war of aggression…is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”28 However, in respect of this supreme international crime, in order not to punish innocent persons, every judicial body must differentiate between the responsibility for its commission by the wrongdoing State and the personal responsibility of its alleged perpetrators. Not every participant in an aggressive war can be accused of the crime of aggression. Even more important in this respect seem to be the differences in practice between: unlawful use of force short of war, genuine acts of aggression and existence of “international armed conflicts”. As already said, while the classical doctrine distinguished between war, civil war, and the use of force short of war which finally became prohibited by the UN Charter of 1945, the doctrine is inclined to assimilate into international armed conflicts all unlawful uses of force by a State against another State. Thus, Dietrich Schindler has asserted: “If troops of a third State take part in an armed conflict, and if these troops are not integrated in the forces of a party to the conflict (meaning an internal armed conflict), the third State itself becomes a party to the conflict within the meaning of the Geneva Conventions and the Protocol”.29 In this basically correct conclusion an important requirement that any armed conflict must be protracted in time and intensity is missing. Hence, while subparagraph (f) of paragraph 2 in Article 8 of the Rome Statute of the International Criminal Court prescribes that an armed conflict not of international character must be protracted, such requirement is not expressly provided in it for the existence of international armed conflicts.

27 These data can be found inter alia in Oppenheim—Lauterpacht, 2 International Law (1952), 318–32; Charles Rousseau, Le droit des conflits armés (1983), 49–64. 28 AJIL (1947), 186. 29 Schindler, n. 23 above, 131.


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It has already been said that unlawful use of force short of war involves the responsibility of the respective State, but not the personal responsibility of its decisionmakers. However, even the assimilation of the crime of aggression in international armed conflicts can sometimes lead to absurd results. In respect of the State responsibility, after many years of debates, the UN General Assembly, by its resolution 3314 (XXIX) of 14 December 1974, adopted the Definition of Aggression. In Article 5(2) it is confirmed that a war of aggression is a crime against international peace, with aggression giving rise to international responsibility, meaning State responsibility. Article 1 provides a general, descriptive definition of aggression. Under Article 2, the “first use” of armed force by a State in contravention of the Charter, is to constitute prima facie evidence of an act of aggression, although it is open to the Security Council, in conformity with the Charter, to conclude otherwise. Finally, a list of specific acts of direct or indirect aggression is given in Article 3, regardless of a declaration of war. But again, Article 4 provides that the Security Council is free to determine that other acts constitute aggression under the provisions of the Charter. Hence, following this definition, a crime of aggression is any of the acts provided in its text, if undertaken by a State or a group of States not being previously authorized by the Security Council under Chapter VII of the Charter, or if the Security Council did not expressly conclude that such act was not aggression. Another important circumstance precluding the criminal character is the use of force in individual or collective self-defence. However, in respect of the resort to this “inherent right”, stringent conditions laid down in Article 51 of the Charter apply to the members of the United Nations.30 For all other unauthorized uses of armed force the euphemism “unlawful uses of force” can be used, or they can simply be called “international crimes”, but their nature remains the same. The list of such acts committed since 1945 is a long one. Among them is the joint intervention by troops of the United Kingdom, France and Israel in the Zone of the Suez Canal in 1956, and the US armed interventions in the Dominican Republic in 1965, in Grenada in 1985, in Panama in 1989, etc. Among them are also the Soviet armed interventions in Hungary in 1956, in Czechoslovakia in 1968, and in Afghanistan after 1980. Not to mention numerous other acts of this kind committed by South Africa against some of its neighbouring States, or in the Middle East, or in the Indian sub-continent.

30 It is the view of this author, which is not shared by the majority of others, that another exception can be confirmed in previous practice, namely the collective use of force as humanitarian intervention in order to prevent and suppress large scale and grave international crimes against the civilian population. This can happen when the Security Council is unable to prevent the commission of such crimes by its own action, nor is able to authorize another organization. This applies to the NATO air strikes against the FRY in 1999. However, it is also our conviction that the ICTY is competent pursuant to Article 1 of its Statute to prosecute persons responsible for all crimes committed in that intervention, whether otherwise lawful or not as a matter of jus ad bellum, especially for the crimes mentioned in its Articles 2 and 3.

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However, although all these acts constitute international crimes, not all of them lead to international armed conflicts. This finding can be supported by various provisions from the Draft Articles on State Responsibility by the International Law Commission. The breach of an international obligation can be committed by an act of a State not extending in time (Article 24), or by an act extending in time (Article 25), or there can be a breach of an obligation to prevent a given effect (Article 26). Article 24 reads: “The breach of an international obligation by an act of the State not extending in time occurs at the moment when that act is performed. The time of commission of the breach does not extend beyond that moment, even if the effects of the act of the State continue subsequently.” Consequently, the use of armed force not authorized by the Security Council can consist of a single act. Then it does not necessarily create a “state of war” or a “state of international armed conflict”, because it is not a protracted armed conflict. An example is the US bombing of the Libyan territory for its involvement in terrorist acts in Berlin in 1986, or its launching of cruise missiles against the installations allegedly used by the terrorists in Sudan and Afghanistan in 1998. Even if acts like these do not provoke international armed conflicts, and even if the respective States maintain their diplomatic and other peaceful relations, these acts remain crimes of aggression according to the definition adopted in 1974. On the contrary, they create the state of international armed conflicts only if such unlawful acts extend in time and intensity. This was the case, for instance, during the shortlived intervention in Egypt in 1956, or the Soviet invasion of Czechoslovakia without armed resistance in 1968 resulting in the occupation of that State. Therefore, the classical division between the state of war and the use of force short of war which can now constitute an international crime, seems more sound. Beside this, all conventions on humanitarian law which are now in force confirm the principle of the utmost importance: that their provisions must be fully applied “in all circumstances” to all persons protected by these instruments, “without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict”.31 Both humanitarian law and international criminal law thus distinguish between jus ad bellum and jus in bello. Even if the aggression is in itself international crime, international crimes can also be committed by the adverse party to the conflict which is the victim of aggression. To sum up: (a) Any act of aggression constitutes in itself an international crime. (b) In the commission of this crime the aggressor State can commit other international crimes, such as intentional attack against the civilian population or attack against civilian objects which are not military objectives. But even if this is not the case, the aggression remains international crime. Finally, (c) in the case that an act of aggression generates an armed conflict between two or more States, or has as its consequence a partial or total occupation of another State without resistance, then both parties can

31 Cf. fifth paragraph of the Preamble to the Protocol I of 1977.


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commit other international crimes, such as those provided in the Statute of the ICTY, including grave breaches of the 1949 Geneva Conventions. Such crimes can be committed even by the UN troops engaged in a peacekeeping or enforcement mission, or the NATO troops engaged in an unauthorized humanitarian intervention. A foreign State’s support of insurgents in a civil war (i.e., in an armed conflict not of international character) can entail the responsibility of such State for the commission of at least an ordinary international delict of unlawful intervention. If that support consists in protracted and intensive engagement of its troops not authorized by the Security Council, such foreign intervention can transform a civil war into an international armed conflict. The intervening State can by its involvement commit the crime of aggression. This is perhaps what happened first with the involvement of the troops from North Vietnam, and then the subsequent massive intervention of the US troops in the war in South Vietnam, which was initially only an internal armed conflict. The Judgment of the International Court of Justice in the Nicaragua case of 1986, is important above all for its precise description of the content and scope of the peremptory norms of non-use of force and non-intervention. As such, it prescribed precise conditions for the recourse to legitimate self-defence. In this regard it offered some criteria concerning the involvement of third States in an internal armed conflict. However, these criteria apply only to the State responsibility. In this case the Hague Court was not competent to assess the personal responsibility for the crime of aggression of the political and military leaders of the United States. The Trial Chamber of the ICTY came essentially to the same conclusion stating in the Celebici Judgment of 16 November 1998 that: “The International Tribunal is a criminal judicial body, established to prosecute and punish individuals for violations of international humanitarian law, and not to determine State responsibility for acts of aggression or unlawful intervention. It is, therefore, inappropriate to transpose wholesale into the present context the test enunciated by the ICJ to determine the responsibility of the United States for the actions of the contras in Nicaragua.” (para. 230). As already said, the responsibility of a State for the crimes of aggression remains most often platonic in its effects, unless the Security Council takes action against it under Articles 41 or 42 of the UN Charter. But actions of this kind are practically impossible if the aggressor State is a permanent member of the Security Council. One can only lament that the situation of the criminal responsibility of individuals for the crime of aggression is quite different than that described above. The prosecution of this crime has been conferred so far only to two international military tribunals at Nuremberg and Tokyo, after the unconditional surrender of the two Axis Powers and after a temporary disappearance of any Government in these two States. Hence, Article 6(a) of the London Charter defined “crimes against Peace” as “planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a

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common plan or conspiracy for the accomplishment of any of the foregoing”. It is obvious that only the highest civilian and military authorities in an aggressor State can commit this crime. Of twenty-two major war criminals sentenced by the Nuremberg Tribunal, only half were found guilty of this crime.32 It appeared unusual that the power to prosecute persons who have committed the crime of aggression was not conferred to the ICTY. That was probably politically motivated. Persons who can be responsible for the crime of aggression are important partners in the negotiating process for lasting peace in the region. It was no different with the Japanese Emperor Hirohito, to whom the immunity from prosecution was recognized by the International Military Tribunal for the Far East. A new global definition of the crime of aggression de lege ferenda was so far provided only in Article 16 of the Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission in 1996. It reads as follows: “An individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression.” But in its substance, it is the same as the crimes against peace formulated in 1945. Only the highest political and military leaders of the aggressor State can be prosecuted for the crime of aggression. It is therefore not surprising that the 1998 Rome Statute of the International Criminal Court in its Article 5 provides jurisdiction of this new judicial body with respect to the crime of aggression but postpones the adoption of its definition for the Review Conference which will take place seven years after its entry into force. That could mean ad calendas graecas. VIII. Concluding remarks At the end of this explanation one can conclude that the shortcomings in carrying out the State responsibility for international crimes directly proceed from structural weaknesses of the international legal order. However, some essential differences between the responsibility of States and the responsibility of individuals for the same international crimes are dictates of good administration of justice. As legal principles, they must be respected under all circumstances. Let us now explain some critical remarks on the relationship between international criminal justice and world diplomacy. A famous Soviet international lawyer E.B.Pashukanis, after practising self-criticism for his originally Marxist ideas on law, but before his execution in the 1937 Stalinist purges, published one of the first Soviet systematic treatises on international law in 1935. In his desire to prove the full

32 In its 1946 Judgment the Tribunal brought separate charges for the common plan or conspiracy (Count One), and planning and waging of war (Count Two). Cf. AJIL (1947), 222. On both Counts were convicted: Göring, Hess, Ribbentrop, Keitel, Rosenberg, Raeder, Jodl and von Neurath. Only on Count Two were convicted: Frick, Funk and Seyss-Inquart.


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success of his brainwashing, he wrote inter alia the following in its preface: “The task of the Soviet doctrine of international law is to provide to our red diplomacy this auxiliary instrument in its activities”.33 It seems at present that some international diplomats make use of international criminal justice as their auxiliary instrument in order to assure more noble aims than the Soviet red diplomacy had between two World Wars: lasting peace in a region such as the Balkans. With suspects of international crimes who are still leaders of their countries they bargained about their possible prosecution or pardon, in exchange for far-reaching political concessions by the suspects. It seems, however, that the exercise of this kind of diplomacy can hardly go together with international criminal justice, and that this practice can in the long run be disastrous to the objectives of the latter. In this light, a contrary example of the recent indictment of Slobodan Milosevic by the Prosecutor of the ICTY is very encouraging. The second complaint is addressed to the ICTY and its Prosecution in particular. They want to have a few of their prison cells in The Hague full all the time, probably to justify the efforts and money invested in their institution and to keep the idea of international criminal justice alive. Some suspects voluntarily delivered themselves to the Tribunal, convinced of their personal innocence and trusting the justice it has to do. For some of them, the trial proceedings have lasted for more than three years now, throughout which they have been imprisoned. Their detention under such circumstances is very much like the crime of unlawful confinement of civilians in an armed conflict for which some of them are perhaps indicted, but which, after all, did not last so long. International justice must be prompt and efficient. It, in addition, must not discriminate against the victims of the crimes committed in a conflict. All suspects must be brought to justice, without distinction of the national or religious affiliation of their victims. After that, just and speedy trial proceedings in full impartiality must prove either their culpability or innocence. Finally, the efforts of drafters of the Statutes, and of criminal tribunals themselves in their practice, to strengthen the responsibility of commanders for the crimes of their subordinates, are not consonant with the absence of the crime of aggression from their jurisdiction. The same applies to the future International Criminal Court. Whatever the justification of the governing principle of all humanitarian law, that in any armed conflict suspects on all sides (including the side which is the victim of aggression) bear equal responsibility for the crimes they have actually committed, it seems surrealistic to pardon the highest political and military leaders of the aggressor State for their planning, preparation, initiation or waging of aggression. It should never be forgotten what the Nuremberg Tribunal had asserted, that the supreme international crime of aggressive war contains within itself the accumulated evil of the whole.

33 Cf. Otcherki po mezhdunarodnomu pravu (Essays on International Law) (Moskva 1935), 6.

13 China and the principle of sovereign equality in the 21st century Gao Feng

I. Introduction It is well known that the principle of sovereign equality is derived from the perception that all men are naturally equal,1 the very conceptual basis of the modern Western democracy. It has then through the centuries evolved into one of the fundamental principles of the UN Charter. The whole international community, with China as a member, warmly embraces this principle. Modern international law was introduced into China from the West around 1860, a time when China was not even regarded as a “nation”. The 140 years since then has witnessed the unflagging struggle of the Chinese people for modernization and for integration into the international community on an equal footing. The path to modernity has by no means been a short and even one. In its endeavours China has increasingly been aware of the imperative role of international law, as a language and an instrument in its interactions with other members of the world community. China’s practice since the founding of the People’s Republic in 1949 shows that China takes the principle of sovereign equality as the cornerstone of its foreign policy, as well as one of the benchmarks for international right and wrong. The Five Principles of Peaceful Coexistence2 have served as guidelines in many bilateral

1 2

Vattel, Le droit des gens, ou principles de la loi naturelle, appliqués à la conduite et aux affairs des nations et des souvereins (1758), cited in G.Zhou, International Law (1976), 207–16. The Five Principles are: (1) Mutual respect for each other’s territorial integrity and sovereignty; (2) Mutual non-aggression; (3) Mutual non-interference in each other’s internal affairs; (4) Equality and mutual benefit, and (5) Peaceful coexistence. These principles were first embodied in the Agreement between India and China on Trade and Intercourse between Tibet Region of China and India, on 29 Apr. 1954, 1299 UNTS 57–81. They have been invoked in a large number of agreements between China and other countries. See, e.g., Sino-US Joint Communiqué on 28 Feb. 1972; Sino-Japanese Joint Declaration on 29 Sept. 1972, in 19 Treaty Series of the People’s Republic of China (1972). For detailed comments on the Five Principles, see T.Wang, et al. (eds.), International Law (1981), 64–83. 224

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agreements reached between China and other countries, and have been stressed in probably every statement made by the Chinese leaders in the UN General Assembly sessions.3 In the Security Council and all the main General Assembly committees, China constantly upholds the principle of sovereign equality, the Five Principles and the UN Charter. Without surprise, China has serious concerns about the handling of the Kosovo crisis. During a meeting with Finnish President and the European Union’s envoy on Kosovo Martti Ahtisaari, the Chinese President Jiang Zemin expressed his stance against power politics. He was reported as saying that Kosovo had a bearing on fundamental issues as to which direction the world was heading. If power politics would run wild, the sovereignty and independence of many countries, especially the small and weak, would be impaired, which would lead to a turbulent world. He said the UN Charter was far from outmoded.4 China was one of the strongest opponents in the UN Security Council to NATO’s air raid, and always maintained that Yugoslavia’s sovereignty and territorial integrity should be respected. President Jiang’s opinion is illustrative of China’s being wary of power politics and its determination to adhere to the UN Charter as the basis of the international order in the coming century. Certainly it is not the concern of China alone. This is neither new nor unclear to the world. What deserves discussion is how well the principle of sovereign equality fits into the post-Cold War world. This question will be examined here. II. Sovereign equality as a legal principle and the basis of the world order Perhaps the inescapable starting point is the concept of sovereignty. As a legal proposition, sovereignty has been a subject of hot contention for hundreds of years ever since its birth. There are publicists “who do not consider sovereignty to be a basic criterion of the State as subject of international law.”5 There are also publicists who prefer the term “autonomy” to “sovereignty” and those who use “sovereignty and autonomy” at the same time.6 In reality, however, the school of thought that sovereignty is the “foundation of the whole system” of international law has obviously gained predominance.

3 4 5 6 7

See, e.g., statement by Qian Qichen, Vice Premier and Foreign Minister of China, at the 50th session of the UNGA, UN Doc. A/50/PV. 8. He said that “[t]he core of the UN Charter is the principle of equality between sovereign states and non-interference in each other’s internal affairs.” China Daily (9 June 1999), 1. Korowicz, Modern Doctrines of the Sovereignty of States—II, as cited in B.Kingsbury, Sovereignty and Inequality, 9 EJIL (1998), 611, n. 35 therein. See, e.g., O.Schachter, The Decline of the Nation-State and its Implication for International Law, 36 Columbia JTL (1997), 7; J.Charney, Universal International Law, AJIL (1993), 529. Kingsbury, n. 5 above, 599.

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Oppenheim’s International Law (1905) has been perhaps the “most influential and certainly the most enduring English-language treatise of the 20th century.”7 It defines “sovereignty of state governments” as consisting of “independence, and authority in the form of supremacy over territory and supremacy over persons.”8 Since “sovereignty as supreme legal power and authority is inapplicable to the position of states within the international community…the relationship of states on the international plane is characterized by the equality and independence and, in fact, by their interdependence.”9 The central position of sovereignty in international law has been proved by state practice in all areas, such as jurisdiction, sovereign immunity, regimes of EEZ and continental shelf, nationality of persons, aircraft and vessels, etc. Chinese jurists agree, in general, with Oppenheim’s definition. They believe, however, that this definition must fit into the contemporary international legal system with the Charter as its normative framework. In their view, the Five Principles are perfectly consistent with the Charter principles.10 With regard to the relationship between state sovereignty and international law, they disagree with the two extreme views that state sovereignty is either absolute or evil. To their mind, both extremes have the potential of infringing other states’ sovereign rights and causing inequality, thus only favouring the interests of the imperialists.11 In their opinion, the exercise of sovereign rights is not free from the strictures of international law. A review of views and practices prevailing at Oppenheim’s time will provide a broader and deeper understanding of the principle of sovereign equality. In the first years of the 20th century, international legal personality was confined to “Christian States” only. Persia, China, Siam, Korea, other half-civilized states or similar states, states under suzerainty and under protectorate were deemed not up to the “standard of civilization”. One scholar commented that “[in Oppenheim’s] opinion—although this view was contested at the time—the law of nations placed no restrictions on the treatment of states or entities that were wholly outside the Family of Nations; such treatment was a matter of discretion, and frequently was ‘not only contrary to Christian morality, but arbitrary and barbarous’.”12 Inequality between Christian and non-Christian states might not even amount to a legal or political problem. With the completion of the national liberation movement, the world community is now composed of some 200 states. The rule of sovereign equality enshrined in the UN Charter finally becomes universal. The Charter, in Article 2(1), declares that

8 9 10 11 12

Oppenheim, 1 International Law (1905), 101, cited in Kingsbury, n. 5 above, 599, n. 1 therein. R.Jennings & A.Watts (ed.), 1 Oppenheim’s International Law (9th ed., 1992), 125. T.Wang, n. 2 above, 81–3; Zhou, n. 1 above, 177. T.Wang, ibid., 69; Zhou, ibid., 175–85. Kingsbury, n. 5 above, 606 and nn. 20, 21 therein.


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“[t]he Organization is based on the principle of sovereign equality of all its members.” The term “sovereign equality” was elaborated in further detail in the Declaration of Principles of International Law as including in particular the following elements: (a)States are juridically equal; (b) Each State enjoys the rights inherent in full sovereignty; (c) Each State has the duty to respect the personality of other States; (d) The territorial integrity and political independence of the State are inviolable; (e) Each State has the right freely to choose and develop its political, social, economic and cultural systems; (f) Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.13 Today, it is widely recognized that “[t]he Declaration…can be taken to reflect the views of the United Nations membership as a whole on the legal meaning of the principles in the Charter upon which it elaborates.”14 The International Court of Justice took the Declaration as an evidence of opinio juris of all states to accept the Charter principles as rules of customary international law.15 Some Chinese authors take 1945 as a turning point from which the world finally entered an age of sovereign states.16 They note that half-sovereign or not-full sovereign states are scarce remnants of the days of colonialism.17 The evolution of humankind is slow, but in steady progress. In addition to its enormous legal strength, the principle of sovereign equality also possesses a heavy moral weight. It builds on both positive and negative experiences in human history, particularly in the scourge of two world wars, and has been continuously reinforced by comprehensive modern state practice. Today, nobody would unwisely take the risk of advocating in international fora systematic or institutionalized inter-state inequality as a matter of policy, although inequality is still a widely discerned reality, as discussed below. It is safe to say that this principle, among other Charter principles, has been the crystallization of the basic perception, by the international community as a whole, of universal fairness and justice. III. Rethinking sovereign equality in the post-Cold War era

13 14 15 16

GA Res. 2625(XXV), Oct. 24, 1970. The resolution was adopted without a vote. Harris, Cases and Materials on International Law (4th ed., 1991), 821. T.Wang, n. 2 above, 58–60. Nicaragua Case (Merits), ICJ Reports 1986, para. 188. J.Wang, The Doctrine of the Clash of Civilizations: Its Theoretical Basis and Practical Significance, in J.Wang (ed.), Civilizations and International Politics (1995), 188. 17 T.Wang, n. 2 above, 91; G.Zhou, n. 1 above, 76.

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Notwithstanding the foregoing, in the post-Cold War era, the principle of sovereign equality must be reassessed in light of the rapid, earth-shaking changes in international relations. In so doing, it seems impossible to escape from some widely noted phenomena, such as globalization and the “decline of nation-states”. In the vast recent literature on this subject, it is the state per se, not just state sovereignty and equality, that is under intense attack. Related questions include whether the UN Charter regime is still valid or workable in the new century. It is the responsibility of the Chinese scholars to effectively participate in the debate. In exploring these questions, it is necessary to go beyond a strict legal analysis in order for deeper discussions to take place. Nevertheless, the constrained space will permit only brief comments on some issues. III.A. Sovereign equality and inequality management Critique of the nation-state and sovereignty is nothing new; what is novel are the socioeconomic changes underlying the so-called globalization, the profound impacts of which are sharply felt in international relations. The “decline of the nation-state” is a proposition describing the complex phenomena that the nation-state is declining in power and authority, or even no longer relevant, in the long run. This is a tendency that will have continuing impact on international law.18 Koskenniemi observed that states are “declining” because of the pressure or criticism from mainly three dimensions. The first is the interest of sub-state entities and peoples. They claim that their interests should be recognized under international law, as their linguistic, cultural, or even religious identity is more authentic than the artificial state. The second is the interest of the free market. The argument is that given the economic globalization, the play of market forces ought to be allowed to flourish and the artificial state hampering of economic forms and processes should be tossed aside. The third is the interest of individuals’ rights that are deemed as having an authority far more compelling than statehood.19 These developments have a close bearing on the flourishing of human rights and democracy. Koskenniemi’s answer is three-fold. First, the above claimants’ interests or rights are contradictory, as expected. It seems unlikely that social groups, not to say individuals, can resolve these conflicts automatically. Second, the above arguments do not logically point to some authentic structures that should be used to replace the state. Third, each of the above various claims, if taken to the extreme, is oppressive and has the inherent potential of totalitarianism, and will endanger open society. Unchecked interests

18 Schachter, n. 6 above. 19 Koskenniemi, Summary of the Discussion on Section XI. Implications for International Law of New Challenges to State Sovereignty, in UN Secretariat (ed.), International Law as a Language for International Relations, Proceedings of the United Nations Congress on Public International Law (hereinafter UN Proceedings) (1996), 581–82. See also views voiced by an unnamed speaker, 589.


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or rights are dangerous and destructive to a democratic society. His conclusion is, therefore, that it is dangerous to dismantle the existing judicial state and international legal system.20 These views are echoed in the views of some Chinese scholars.21 Schachter and Kingsbury reached similar conclusions, though from different perspectives. They note that values and interests of individuals and groups will continue to stretch international law. However, the critical fact is that so far no systematic alternative is better than the state in coping with claims of competing social groups and to manage social inequality. To pursue effectively the aspired new liberal global legal order before it becomes realistic, organized inequality (interventions or coercive activities in other countries) will, paradoxically, be required on a large scale. We cannot ignore the reality that the weak and vulnerable are, on the whole, more likely to obtain protection, benefits and equal legal status through the system of state sovereignty than through free markets or non-governmental associations.22 At the same time, scholars all recognize the need for international society to develop other means or constructs for handling the claims of different individuals and social groups. However, the general conclusion will not be different. The corollary is, at least in the foreseeable future, that an autonomous territory defined as a state would continue to be the basic landscape on this planet. To survive as a state in a society of states, state sovereignty, juridical equality between such states, and an international legal system based on these norms to ensure peaceful coexistence of these states, are all inevitable and indispensable. Admittedly, there is always a gap between reality and legal norms. States are different in power and influence. Juridical equality has never wiped out inequality de facto, or even de jure. Evidence can be found everywhere in international political and economic relations. It is high time today to face such inequality and get down to its management. It is said that the international arena is dominated by the law of the jungle that is equally applied to the strong and the weak. The market is the best guarantee of efficiency, but in the meanwhile it splits and rots society.23 According to the latest human development report of UNDP, globalization is compounding the gap between rich and poor nations. The report concludes that the so-called “rules of globalization” should be rewritten to save the 60 countries that are now worse off than they were in 1980 from falling even further behind. The report warns that glaring, growing inequalities in the distribution of wealth pose a “dangerous polarization” between rich and poor countries.24

20 Koskenniemi, ibid., 583–84. See also G.Soros, The Crisis of Global Capitalism: Open Society Endangered (1998), arguing that the open society will be endangered if the market force is unrestrained. 21 See, e.g., X.Yang & L.Wang, Dialogue on Globalization and China Study, Xinhua Digest (Dec. 1998), 16–22. 22 Kingsbury, n. 5 above, 622–25; Schachter, n. 6 above, 21–23. 23 Thurow, The Future of Capitalism (1996), particularly Ch. 13; K.Mahbubani, The Danger of Decadence, What the Rest Can Teach the West, in Huntington (ed.), The Clash of Civilizations? The Debate (1996), 40. 24 J.Miller, Globalization Widens Rich-Poor Gap, U.N. Report Says, NY Times (13 July 1999), A8. The UNDP report was published on 13 July 1999.

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This report may coincide with a gentleman’s passionate criticism of such inequalities. J.Brian Atwood, administrator for the US Agency for International Development, observes: We are fast approaching a world in which 10 percent of people control 90 percent of the wealth. We hear rhetoric about a more equitable world where America’s vision of a democratic, market-based globe can be realized, but it isn’t matched by resource allocation.25 He sharply criticized the very essence of capitalism and “America’s vision of a democratic, market-based globe”, which cannot survive without such inequality, oppression and exploitation. Furthermore, this economic inequality must be guaranteed by political inequality. What the world has done in this respect is rather limited so far. The cry for the new international economic order in 1970s and 1980s has not resulted in systematic programmes to remedy the adverse effects of the free market. The widening gap between rich and poor has contributed to tragedies such as “failed states”, internal turmoil, refugees and migration, terrorism, etc. Historically, the impacts of such inequality were corrected spontaneously through various forms of violence, in the absence of an effective mechanism to achieve such correction. Perhaps it is not up to international law to reallocate resources as governments do domestically in their respective countries. However, it is up to international law to establish regimes to regulate and manage such inequality. This is the proper challenge that has to be addressed in the coming century. At present, the international legal order based on sovereign equality is the starting point for the international community as a whole to manage such de facto and de jure inequality. More concrete mechanisms and programmes must then follow. III.B. State sovereignty and self-determination Related to the general critique of the state as seen above, a “societal disintegration” process is witnessed in many Western and Central European countries, Canada and other countries, “[calling] into question the relevance of nation-states as the basic unit of international society”.26 This question might have been settled in part in the preceding section (III.A). This may be answered in part by cases of dissolution in the last decade of the former Soviet Union, Czechoslovakia, and the former Yugoslavia. East Timor is to follow suit. The disintegration of an existing nation-state has led to the creation of more nation-states. In these cases the right of self-determination of the peoples expresses itself in the establishment of nation-states. This fact, according to some Chinese

25 J.Atwood, Trade, Not Aid, The Christian Science Monitor (6 July 1999), 9. 26 H.Owada, Justice and Stability in the International Order, in UN Proceedings, n. 19 above, 26.


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scholars, is evidence that in general, inter-state relations will remain to be the axis of international politics. Differences among races, ethnic groups or civilizations will not surpass the importance of states.27 The effect of societal disintegration within the sphere of the existing state is far more complex. International legal practice has indicated that the principle of selfdetermination goes hand in hand with the principle of sovereign equality. The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples proclaims: Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.28 This pronouncement was reaffirmed, word-by-word, by the Declaration on Principles of International Law in 1970. Through the years, this principle has become well established and universally recognized as an almost sacrosanct principle. However, Hisashi Owada pointed to an inherent tension between these two principles of modern international law. Today, the critical question is “whether one should be thinking about this problem primarily in terms of the legitimate interest and justice of sovereign States or rather in terms of the legitimate interest and justice of a group of individuals to decide upon their own destiny, or both in harmony.”29 His solution was a “harmonious equilibrium” between the two. Through a process of harmonization the concept of justice as defined in terms of international society of sovereign states, and the concept of justice as defined in terms of a group of individuals, “should and indeed could be brought together as a harmonious unity to form the key concept to govern the new international legal order.”30 In this context, one instance of state practice is especially noteworthy, i.e., the opinion of the Canadian Supreme Court of August 20, 1998 in Reference re Secession of Quebec.31 In that opinion, the Court determined that under Canadian constitutional principles, Quebec did not have a right to unilateral secession, despite a clear referendum result, nor could Quebec purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties of the federation. Secession would have to be decided by negotiations between Quebec and the federal government, other provinces and all other participants whose interests were involved. The majority in Quebec could not trump the majority of Canada as a whole.32

27 28 29 30 31 32

Y.Wang, Another Perspective of International Politics, in J.Wang (ed.), n. 16 above, 64. GA Res. 1524 (XV), 1960. Owada, n. 26 above, 25. Ibid., 26. 37 ILM (1998), 1340–77. Ibid., see particularly paras. 91–96, 151–52.

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The Court went on to consider whether Quebec had a right to unilateral secession in international law. It noted that “international law expected that the right to selfdetermination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states.”33 The Court read the reference in the Helsinki Final Act to a people determining its external political status “to mean the expression of a people’s external political status through the government of the existing state.”34 Only under two clear exceptional circumstances could a right to secession arise under the principle of self-determination of peoples in international law, i.e., where “a people” was governed as part of a colonial empire or “a people” was subject to alien subjugation, domination or exploitation. Whether this principle could apply to “a people” blocked from the meaningful exercise of its right of self-determination internally, there was no clearly established international law standard.35 Since Quebecois had not been denied their right to political, economic and cultural development, the third standard did not apply to Quebec in any case.36 If the proposed unilateral secession took a violent form, say, a revolution, whatever the result, it could not be justified retroactively as legal in the first place, either under the Constitution of Canada or international law.37 Although states are different in terms of constitutional structures and other relevant circumstances, the opinion of the Supreme Court of Canada may have a general application. Cases in other parts of Europe have illustrated that the political process within a state’s constitutional framework, democratic or not, could not ensure a complete satisfaction of the unilateral secessionists. Such unilateral demands may turn into terrorist acts, causing painful security problems for all states. Neither internal violence nor outside intervention can be the best way to pursue the right of selfdetermination. Kosovo is still a political uncertainty. “It remains to be seen whether [NATO has] stabilized or further destabilized this complex region…”38 III.C. Sovereign equality in a world of diversity Another aspect directly linked to the foregoing development is the obvious trend toward diversity both at the international level and at the national level. The principle of sovereign equality recognizes and legitimizes at the same time political, economic and cultural diversity among the community of states. Such diversity has also become, as a part of the principle of self-determination, one of the pillars of human rights protection under international law. Both the International Covenants on human

33 34 35 36 37 38

Ibid., para. 122. Ibid., para. 129. Ibid., paras. 129–39, 154. Ibid., paras. 135–39, 155. Ibid., paras. 140–46, 155. See comments by S.Toope, Self-determination, 93 AJIL (1999), 519. See Grier & Thurman, A Page Turns in Europe’s History, The Christian Science Monitor (June 14, 1999), 1.


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rights provide that “[a]ll peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”39 This principle requires every state to respect and protect such diversity, so as to leave ample room for the promotion and development of diverse human aspirations. The application of international law has long expanded beyond the Christian world. The end of the Cold War released a long-suppressed impulse for the rethinking of the interests of peoples. On this basis civil society is blooming. While the long-term trend of interactions among states may gradually blur or even eradicate differences in the political, economic and cultural lives of different countries, no one can tell how long it will take for that process to complete. In the foreseeable future, the diversification will most likely be intensifying, rather than waning. In the view of China, “[t]he world is evolving toward multipolarity with growing diversity in the countries’ political, economic and cultural lives. Such a trend has become an irresistible tide of history.”40 The international legal order in the new century is bound to adapt itself to this evolution. This leads us to two basic observations. First, the world must learn to tolerate different communities and values, that is, to put it in normative language, to comply with international legal requirements of sovereign equality and peaceful coexistence. On this basis, policies, institutional arrangements and legal norms for participation and international democracy have been, and will be, developed.41 Samuel Huntington, the advocate of the doctrine of clash of civilizations, himself had to conclude at the end of his treatise that “[f]or the relevant future, there will be no universal civilization, but instead a world of different civilizations, each of which will have to learn to coexist with the others.”42 The Cold War mentality is out of date and no longer useful. Second, the world must learn to not tolerate international illegalities endangering international peace and security or amounting to oppression of other states or peoples. This is a much more difficult issue relating to the making, application and enforcement of international law. In the area of international peace and security, we have a collective security mechanism established by the Charter. The UN General Assembly and Security Council are the organs envisaged to make a collective judgment and to make decisions accordingly. However, it is known to all that the UN is becoming weaker and weaker. Paralysis and collapse of collectivism is a pressing challenge that the world must meet in the future.

39 International Covenant on Civil and Political Rights, Article 3, 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights, Article 1, 993 UNTS 3. 40 Statement by Qian Qichen, Vice Premier and Foreign Minister of China at the 52nd session of the UN General Assembly, 24 September 1997. UN Doc. A/52/PV. 9. 41 Pinto, Democratization of International Relations and Its Implications for the Development and Application of International Law, in UN Proceedings, n. 19 above, 250–63. 42 Huntington, The Clash of Civilizations?, in Huntington (ed.), n. 23 above, 25.

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III.D. United Nations at a crossroads As the most important inter-governmental organization, the United Nations plays an irreplaceable role in international affairs. The United Nations, in contrast with its predecessor, the League of Nations, is the only organization of almost every state in the world. It bases itself on those principles that are universally recognized as fundamental norms, even jus cogens, of international law. It operates in democratic modalities, with the widest possible participation of all members of the world community. Each member has one vote. The collective security system places the primary responsibility to maintain peace and security on the shoulders of the Security Council, envisaged to represent all members of the United Nations, while preserving every member’s right to self-defence. In short, the UN stands for a fair and just international order, in political, legal, and moral terms, given the present realities of international life. The United Nations has traversed a tortuous and uneven path over the past fifty years. Its remarkable achievements in maintaining international peace and security must not be undervalued. As Kingsbury notes, There have been extraordinarily few cases of recolonization of former colonies once recognized as independent states. Since 1945 not only has the death rate of sovereign states been remarkably low, there have been few military invasions intended to terminate the independent existence of an established state. Direct large-scale unilateral military intervention without an invitation has probably been constrained somewhat by the sovereignty model and the UN Charter norms that give expression to it.43 On the other hand, there do exist cases where the collective security system has been breached, the latest being the NATO intervention in Kosovo. Bruno Simma and Antonio Cassese have adequately testified to the illegality of Kosovo intervention as far as lex lata is concerned.44 What is most dangerous and cause for concern is that the violation of the Charter obligation may be carried out as an established policy of the biggest military organization in the world. In paragraph 31 of the Alliance’s Strategic Concept, NATO outlines its policy on conflict prevention and crisis management. Among other things, NATO will “support on a case-by-case basis in accordance with its own procedures, peacekeeping and other operations under the authority of the UN Security Council or the responsibility of the OSCE”.45 For NATO to take military action, an OSCE authorization is good 43 Kingsbury, n. 5 above, 618–19. 44 B.Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 EJIL (1999), 1; A.Cassese, Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, ibid., 23; Ambos, NATO, the UN and the Use of Force: Legal Aspects (comment, 10 EJIL, www.ejil.org). 45 The Alliance’s Strategic Concept, approved by the Heads of State and Government participating in the meeting of the North Atlantic Council in Washington D.C. on 23rd and 24th April 1999, NATO Press Release NAC-S (99) 65 (emphasis added).


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enough. However, this leaves open whether an OSCE authorization must first be endorsed by the Security Council pursuant to Article 53(1) of the Charter. In case an OSCE authorization is made without the consent of the Security Council, NATO will, under its policy, still go ahead with its military operation. Thus, NATO may act without the Security Council’s authorization, as it did in Kosovo. As Deputy Secretary of State Strobe Talbott stated, …we must be careful not to subordinate NATO to any other international body or compromise the integrity of its command structure. We will try to act in concert with other organizations, and with respect for their principles and purposes. But the Alliance must reserve the right and the freedom to act when its members, by consensus, deem it necessary.46 Although the wording of the Alliance’s Strategic Concept is a watered-down version of Talbott’s statement, it is still crystal clear that the Security Council, or UN, will be rendered useless if this policy is applied. It is clear that NATO does want to give itself the freedom to act outside the Security Council’s authorization. This would in turn encourage or compel other states to disregard the UN collective security system and act on their own impulses. Thus the marginalization of the UN is glaring. Admittedly, this development may have brought to the fore the inherent defects of the collective security system.47 Kosovo and the UN impotence are two sides of the same coin, with one contributing to the other. However, many people did not find anything astonishing about the UN turning a blind eye to the worst killings in other parts of the world, for example, in East and West Africa. One can be sure that human rights promotion and protection will remain a major challenge to the world. A clear picture of UN reforms is not yet in sight. It is doomed to be a perennial process. And yet total anarchy or the disintegration of the UN is not a solution to the problem, to be sure. Whatever the structure of the future collective security mechanism, when it breaks down completely, totalitarianism will prevail. This is not a promising future for all. But the essence of the matter is, when no interests of theirs are at stake, big powers will turn their back to human rights abuses, as discussed below. III.E. Sovereign equality and the prohibition of intervention Forcible intervention is the most extreme form of breaches of the principle of sovereign equality. In this regard it is interesting to review Oppenheim’s approval of interventions

46 Cited in Simma, n. 44 above, Section 3. 47 Apart from vast literature on the well-known stalemate or “paralysis” of the Security Council, there have been also recent scholarly studies devoted to legitimacy of the Council’s use of its authority. See, e.g., Caron, The Legitimacy of the Collective Authority of the Security Council, 87 AJIL (1993), 552–88.

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by rights and in pursuit of the balance of power and of human rights.48 Many cases of intervention in colonial times were invoked to exemplify the legitimacy of interventions. His comment on the Monroe Doctrine of 1823 is worth quoting: Since the Law of Nations is a law between all the civilized States as equal members of the Family of Nations, the States of the American continent are subjects of the same international rights and duties as the European States. The European States are, in principle, free to acquire territory in America as elsewhere. The same applies to intervention on the part of European Powers in American affairs.49 Nevertheless Lauterpacht admits that the UN Charter imposes prohibition on intervention of individual states. This prohibition does not properly apply to remedial or preventive action undertaken by or on behalf of the organ of international society.50 His appraisal of the prohibition, though in a somewhat negative tone, is by and large well founded, because the UN Charter, in Article 2(4), imposes a universal ban on the use of force,51 rendering at least “dictatorial interference” legally impossible. He is correct again to say that “[t]he fact that, when [humanitarian intervention is] resorted to by individual States, it may be—and has been—abused for selfish purposes tended to weaken its standing as a rule of International Law.”52 This assessment is still valid in the light of the Kosovo incident. As has been indicated above, Simma and Cassese do not disagree on the illegality of NATO’s intervention. However, they disagree with each other on whether this illegality could, at least to some extent, be mitigated or justified in the light of an imminent necessity to halt human rights atrocities. Cassese is of the view that the trends in the world community show that “under certain strict conditions resort to armed force may gradually become justified, even absent any authorization by the Security Council.”53 From the perspective of lex ferenda, the set of 6-point conditions he suggests is thoughtful and well structured. With due respect, further comments on these conditions need to be made. Legal norms never apply in a vacuum. The interpretation and application of these conditions will utterly depend on the willingness of the states having the power to intervene. Thus the humanitarian argument will

48 49 50 51

H.Lauterpacht, Oppenheim’s International Law (8th ed., 1955), 304–20. Ibid., 316. Ibid., 317–20. The only exceptions to the prohibition are self-defence as provided for in Article 51 and collective use of force authorized by the Security Council pursuant to Articles 42 and 53 of the Charter. See, e.g., MacCoubrey & White, International Law and Armed Conflict (1992), 24–26; Akehurst, Humanitarian Intervention, in Bull (ed.), Intervention in World Politics (1984), 104–05. 52 Lauterpacht, n. 48 above, 313. 53 Cassese, n. 44 above, Comment, 5.


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always be a convenient cloak covering the selfish purposes of the intervening states and will be, in the final analysis, open to ridicule and critique. It is difficult to find in history an intervenor who did not intervene for selfinterests. When bombs were falling on Yugoslavia, British Prime Minister Tony Blair was elaborating his (or maybe NATO’s) five major considerations for making decisions on how and where to intervene. Item 5 was: “Do we have national interests involved?”54 This item leaves no doubt that there will be no intervention when no national interests are involved, no matter how intolerable the humanitarian catastrophe might be. It was not only some Asian countries that saw the humanitarian argument for the Kosovo intervention as hypocritical;55 people with vision in the West also pointed out that “it leaves open the question of why [NATO members] do not intervene in East Africa, Sri Lanka, Kurdistan, Kashmir and Afganistan—to name just a few of the places where infinitely more casualties have been incurred than in Kosovo…”56 Apart from Rwanda where “[h]undreds of thousands of lives were lost in the course of the genocide that was perpetrated in full view of the international community”,57 an on-going case at the time of writing is Sierra Leone. The UN Human Rights Commissioner Mary Robinson was reported to have said that the scale of human rights abuses in Sierra Leone was greater than that in Kosovo. Her assessment was supported by the Human Rights Watch report finding that atrocities committed in Sierra Leone were among the worst violations of human rights in the world.58 The conflict in that country had already been going on for some eight years. Troops from some member states of the Economic Community of West African States59 did intervene in 1997, but obviously they were not able to overcome the forces committing atrocities. The UN and those humanitarian intervenors in Kosovo have been standing by idly, watching the worst bloodletting. As Sir John Weston, the Permanent Representative of the United Kingdom to the UN, observed in one of the Security Council meetings, “We must admit our mistakes and do so frankly. We should have moved more quickly to secure peace in Sierra Leone before its people were subject to the brutalities of last year’s military coup. We could, and should, have done more to halt the fighting in the Congo (Brazzaville).”60 The third case is the different treatment of Kurds in different countries. The United States Air Force has imposed no-fly zones in Iraq allegedly for the purpose

54 Tony Blair, Doctrine of International Community (speech to the Economic Club of Chicago), Chicago Tribune (22 Apr. 1999), Internet Edition, 12; see also Kingsbury, n. 5 above, 620. 55 Grier & Thurman, n. 38 above. 56 Kissinger, Doing Injury to History, Newsweek (5 Apr. 1999), 38. 57 UN Secretary-General’s report The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa, 13 Apr. 1998, UN Doc. A/52/871-S/1998/318, para. 32. 58 BBC News, June 25, 1999, published at 02:02 GMT 03:02 UK (news.bbc.co.uk). 59 Nigeria, Mali, Guinea and Ghana contributed to the ECOWAS peacekeeping force. 60 Official record of the 3875th meeting of the Security Council, 24 April 1998, UN Doc. S/PV. 3875, 13.

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of protecting the human rights of Iraqi Kurds, while the Kurds in Turkey fighting for their rights are called “terrorists”;61 “while at the same time the Iranian Kurds are encouraged to rebel against the government in Tehran”.62 Apparently the Kurds’ human rights must serve the strategic needs of the United States. The lessons of Kosovo, Africa and the Kurds are acute. The reality is that when no self-interests of the big powers are involved, humanitarian actions will not be taken. The protection of human rights is definitely not the primary consideration for the intervenors. Strategic, geopolitical and other motivations will always take precedence. Humanitarian intervention, so styled, could seldom be humanitarian. For this reason, as indicated by Lauterpacht, it could not even gain full legitimacy in Oppenhaim’s time. It has no place in modern international law today.63 The international community must take measures to suppress all large-scale atrocities through effective collective mechanisms, and leave no room for arbitrary interventions by an individual state or small group of states. One may claim that such intervention may be legal in international law in the future. But there will be nothing to celebrate. If such dreadful double standards are allowed to ripen into rules of customary international law, there would be little hope for customary international law to be relied upon in combating humanitarian catastrophes.64 The world may find itself entangled in both unchecked humanitarian catastrophes and selfish military interventions. IV. Conclusion The principle of sovereign equality, together with other principles of the Charter, did not come into being from a vacuum. It is a reflection of the wisdom of humanity through hundreds of years and at the cost of millions and millions of lives. Humanity used to be characterized by organized and institutionalized inequality. This should not be allowed to symbolize the 21 st century. Nonetheless, the universal juridical equality of states is in confrontation with inequality in reality. In the process of global expansion of capitalism, its intrinsic defects will also become increasingly globalized. Capitalism will be wrestling with itself both at home and abroad. If inequalities are not well managed from time to time, the international community will not enjoy full and enduring security and prosperity.

61 Joe Lockhart, the White House spokesman, called Mr. Ocalan “an international terrorist who should be brought to justice.” See Kinzer, Turkish Court Sentences Kurdish Rebel Leader to Death, NY Times (30 June 1999), A3. 62 Thurow, n. 23 above, 62. 63 See Simma’s comment on humanitarian intervention, n. 44 above, Sections 1, 5–6. 64 BBC, n. 58 above. Mary Robinson was reported as saying that it was for others to judge whether the world was exercising double standards by reacting firmly to Kosovo, while paying less attention to Sierra Leone. As the UNHRC, she is supposed to have the brains, courage and responsibility to speak her mind.


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The post-Cold War era is witnessing the increasing diversity of states in political, economic and cultural affairs and their growing interdependence and interactions. The Cold War mentality will be phased out. But states will be more vulnerable to crises or developments outside their borders. The role of the state is weakening, in terms of the state’s increasing vulnerability, and, at the same time, is strengthening, in terms of their ability to make other states vulnerable. States are facing common problems. Programmes for coping with global threats or problems in all areas, such as financial security, poverty, environmental protection, drug trafficking, and terrorism, call for the widest possible international cooperation. This would be made possible only by an international legal order based on improved respect for and observance of the principle of sovereign equality, as well as international democracy and participation. The principle of sovereign equality will become more important. China believes that the UN, whatever the outcome of its reform, will maintain its central role in the coming century, particularly in those fields where global coordination and cooperation are crucial in tackling global problems. As Qian Qichen, the Chinese Vice Premier and Foreign Minister, stated before the UN General Assembly, “[c]ountries around the world need the United Nations. So does the United Nations their support.”65 This attitude reflects one of China’s fundamental ideas that a collective regime representing all states of the international community is more likely to lead to a more equitable and safer international legal order in which China will find itself. China is also aware of the urgent need for the reform of the UN, though it is not addicted to the illusion that when the balance of power is broken, the UN can help. This is still a world of self-help. The reshaping of international law is pressing on, but in an interwoven world, international law will always be on the side of those who are fighting for equality. Five thousand years of ancient flourishing and the pain and humiliation of its modern history have decisively contributed to shaping China’s outlook on international law, particularly on the paramount role of state sovereignty and the principle of sovereign equality. This outlook is also in line with the ideas of both the great ancient Chinese thinkers—when the great way is followed, all under heaven are equal—and the ideas of great modern thinkers in the West—all men are born equal. China has waged an unflagging struggle for equal status in the community of states since 1840. Yet history reveals that when China was strong and stable, its peripheral regions would be more likely to live in peace.66 In the new century, China is poised to seek harmony and prosperity together with other members of the international community.

65 Qian Qichen, n. 40 above. 66 X.Yan, et al., The International Environment for China’s Rise (1998), 345.

14 The legality of NATO’s military action in Kosovo: is there a right of humanitarian intervention?* Christine Gray

The recent 78 days of NATO military action in the Federal Republic of Yugoslavia (Yugoslavia) were justified by the 19 member states of NATO on a variety of grounds. The underlying ground seemed to be humanitarian intervention to protect the ethnic Albanians of Kosovo from violent repression and forcible displacement by the government of Yugoslavia, but this was not always unequivocally expressed and this equivocation reflects the uncertainty as to its status as a legal doctrine. The fundamental disagreement in the Security Council between, on the one hand, China and Russia with their steadfast opposition to the NATO action and, on the other, the NATO states reflects a division that goes back to the foundation of the United Nations—a division as to the proper interpretation of the prohibition of the use of force in Article 2(4) UN Charter. Should this be construed to allow the use of force to further the aims of the UN? Did Article 2(4) in 1945 represent a radical departure from previous customary law, to be narrowly interpreted? The controversy centred on the second part of Article 2(4): should the prohibition of the use of force “against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations” be construed as a strict prohibition of all use of force against another state or did it allow the use of force provided that the aim was not to overthrow the government or seize the territory of the other state and provided that the action was consistent with the purposes of the UN? Many US commentators argued during the Cold War that the interpretation of Article 2(4) depended on the functioning of the United Nations collective security system, and therefore that the inability of the Security Council to act because of the veto meant that Article 2(4) should be read to allow the use of force to further “world public order” or the principles and purposes of the UN.1 Those writers who used to put forward such an interpretation of Article 2(4) have not totally abandoned their position. Now that the Cold War is over and the collective

* 1

This article was completed in August 1999. For a brief summary of this position see Reisman, Coercion and self-determination: construing Charter Article 2(4), and reply by Schachter, The Legality of Pro-Democratic Invasion, AJIL (1984), 642, 646. See also Farer, Human Rights in Law’s Empire: the Jurisprudence War, AJIL (1991), 117. 240

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security system under Chapter VII of the UN charter is functioning successfully they still argue for a narrow interpretation of Article 2(4) to allow humanitarian intervention. NATO has been able to use this doctrine to try to justify its action in Yugoslavia. I. A new role for NATO The action in Yugoslavia in 1999 marked a new departure for NATO; it has moved away from its original role as an organisation for collective self-defence. At the end of the Cold War it sought a new role for itself; from 1990 on it began to redefine itself.2 It agreed on the need to transform the Atlantic Alliance “to reflect the new, more promising era in Europe” and it adopted a new Strategic Concept in 1991. This provided that risks to allied security were less likely to result from calculated aggression against the territory of the Allies, but rather from the adverse consequences of instabilities that may arise from the serious economic, social and political difficulties, including ethnic rivalries and territorial disputes which are faced by many countries in central and eastern Europe. These tensions could lead to crises inimical to European stability and even to armed conflicts which could involve outside powers or spill over into NATO countries, having a direct effect on the security of the Alliance. Moreover Alliance security must also take account of the global context; security interests could be affected by other risks including proliferation of weapons of mass destruction, disruption of the flows of vital resources and actions of terrorism and sabotage. Accordingly NATO would have to be prepared to undertake management of crises. In pursuance of this new role, NATO became involved in the conflict in the former Yugoslavia and used force other than in collective self-defence before the military action in Kosovo. But in this conflict its member states were specifically authorised to use force by the Security Council. First, after the imposition of a complete trade embargo on Serbia and Montenegro, member states acting nationally or through regional agencies or arrangements were called on “to use such measures commensurate with the specific circumstances as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping” in order to ensure strict implementation of the embargo.3 Despite the controversy as to whether NATO is actually a regional arrangement, it was clear that this was intended to authorise NATO action. Subsequently, NATO was authorised to use force to ensure compliance with the ban on military flights over Bosnia-Herzegovina and to protect the “safe areas” in Bosnia.4 The action taken under these resolutions by NATO was its first out of area action and its first UN authorised action.

2 3 4

On NATO’s redefinition of its role up to February 1999 and on the NATO action with regard to Kosovo up to this date see Simma, NATO, the UN and the Use of Force: Legal Aspects, EJIL (1999), 1. SC Res. 787. SC Res. 816 and 836.

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After this action further changes were made to NATO’s strategic concept. The 1991 new Strategic Concept had still emphasised that “The Alliance is purely defensive in purpose.” This phrase has disappeared from the newest Strategic Concept adopted in 1999. NATO was now not only to ensure the defence of its members but also to contribute to peace and security in the “Euro-Atlantic region”. NATO would undertake new missions including conflict prevention and crisis management. This latest redefinition of NATO was made specifically in response to the events in Kosovo. The member states in announcing the 1999 Strategic Concept explained that: The continuing crisis in and around Kosovo threatens to further destabilise areas beyond the FRY. The potential for wider instability underscores the need for a comprehensive approach to the stabilisation of the crisis region in SouthEastern Europe. We recognise and endorse the crucial importance of making South-Eastern Europe a region free from violence and instability. A new level of international engagement is thus needed to build security, prosperity and democratic civil society, leading in time to full integration into the wider European family.5 Nevertheless, when NATO resorted to force to protect ethnic Albanians in Kosovo there was some ambivalence in the official NATO statements as to the precise legal justification for its action against Yugoslavia. NATO did not on the whole clearly and expressly invoke humanitarian intervention as a legal doctrine; the initial authorisation by the North Atlantic Council of air strikes in January 1999 said simply that the crisis in Kosovo was a threat to the peace and security of the region; the NATO strategy was to halt the violence in Kosovo and thus avert a humanitarian catastrophe.6 When Operation Allied Force actually began in March 1999 the NATO justification focused primarily on moral and political rather than expressly legal justifications for the action. The Secretary-General of NATO said that all efforts to achieve a negotiated, political solution to the Kosovo crisis had failed and they were taking action to support the political aims of the international community. The military aim was to disrupt the violent acts being committed by the Serb army and to weaken their ability to cause further humanitarian catastrophe. They wished thereby to support international efforts to secure Yugoslav agreement to an interim political settlement. “We must halt the violence and bring an end to the humanitarian catastrophe now unfolding in Kosovo.”7 Implicitly this seems to be a claim to humanitarian intervention; it also claims that the action was to further the aims of

5 6 7

NATO Press Release NAC-S(99)64. NATO Press Release 99/12, 30 January 1999. NATO Press Release 1999 (040).


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the international community. That is, NATO seemed to be relying in part on a doctrine of implied authorisation by the Security Council to justify the legality of its use of force.8 The official NATO statements left some uncertainty as to whether they were relying on an autonomous doctrine of humanitarian intervention or whether the Security Council resolutions and the doctrine of implied authorisation had been a necessary part of the legal justification for the action initiated in March 1999. II. Implied authorisation of the use of force by the Security Council? The Security Council had passed three resolutions in 1998 in response to events in Kosovo. It is clear that these did not expressly authorise the use of force. Nor did the words of these Resolutions 1160, 1199 and 1203 amount to an implied authorisation of force. This interpretation is confirmed by the fierce opposition of China and Russia in 1998 to any UN authorisation of the use of force against Yugoslavia. Thus Russia in the debate leading up to the adoption of Resolution 1199 warned that “the use of unilateral measures of force in order to settle this conflict is fraught with the risk of destabilizing the Balkan region and of all of Europe and would have longterm adverse consequences for the international system which relies on the central role of the United Nations.”9 In the debate leading to Resolution 1203 it said that “Enforcement elements have been excluded from the draft resolution, and there are no provisions in it that would directly or indirectly sanction the automatic use of force, which would be to the detriment of the prerogatives of the Security Council under the Charter.”10 Costa Rica also warned against any attempt to claim implied authorisation under Resolution 1203; it said that any action which implies the use of force requires clear authorisation by the Security Council for each specific case. The resolutions were all passed under Chapter VII of the UN Charter; they all condemned the use of excessive force by Serbian forces against civilians and also acts of terrorism by the Kosovo Liberation Army. In March 1998 Resolution 1160, passed by 14–0–1 (China) imposed an arms embargo on Yugoslavia and called for a political solution for the issue of Kosovo. It concluded by emphasising that failure to make constructive progress towards the peaceful resolution of the situation in Kosovo would lead to the consideration of additional measures.11 Resolution 1199, passed by 14–0–1 (China) in September 1998, expressed grave concern at the excessive and indiscriminate use of force by Serbian security forces and the Yugoslav army which had resulted in numerous civilian casualties and the displacement of

8 This reflects the justification offered by NATO for its earlier threat of force against Yugoslavia in October 1998; at that time the North Atlantic Council had based itself more explicitly on Security Council resolutions. See Simma, n. 2 above. 9 SC 3930th meeting, 23 September 1998. 10 SC 3937th meeting, 24 October 1998.

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over 230,000 persons from their homes. It now determined that the deterioration of the situation in Kosovo constituted a threat to peace and security in the region and demanded an end to hostilities. It demanded that the authorities of Yugoslavia and the Kosovo Albanian leadership should take immediate steps to improve the humanitarian situation and to avert the impending humanitarian catastrophe. In particular it spelled out certain concrete measures to be taken by Yugoslavia, including the cessation of all action by the security forces and the withdrawal of security units used for civilian repression. It also called for the full implementation of the commitments made by President Milosevic of Yugoslavia in June 1998 to resolve problems by peaceful means and not to use repression against the peaceful population. It concluded by deciding that should the concrete measures demanded in this resolution and Resolution 1160 not be taken it would consider further action and additional measures to maintain and restore peace and stability in the region. Resolution 1203 was passed by 13–0–2 (China, Russia) in October 1998 to welcome the agreements between Yugoslavia and the OSCE and NATO concerning the verification of compliance by Yugoslavia with the requirements of Resolution 1199. It affirmed that the unresolved situation in Kosovo constituted a continuing threat to peace and security in the region; this characterisation of the situation was not acceptable to China and Russia. The Security Council demanded full implementation of the agreements. These three resolutions may justify a claim that NATO was acting in pursuance of the aims of the international community but they cannot support any claim of implied authorisation of force against Yugoslavia by NATO.12 Rosalyn Higgins, in response to the claim that Resolution 1199 was enough to justify military action, said “One must necessarily ask whether this is not to stretch too far legal flexibility in the cause of good”.13 III. Security Council debates on action on Kosovo In Security Council meetings on Kosovo in 1999 a variety of arguments were put forward for and against the NATO air strikes. Those attacking the NATO action accused it of a clear violation of the UN Charter; they focused on the absolute prohibition of the use of force in Article 2(4), the primary role of the Security Council in the maintenance of international peace and security and the need for Security Council authorisation rather than unilateral action. Some member states assumed that NATO was a regional organisation under Chapter VIII of the Charter and therefore limited also by the specific requirement in Article 53 that any enforcement action be authorised by the Security Council.

11 This resolution was adopted without express reference to a determination by the Security Council that there existed a threat to international peace and security as required by Article 39, because of Russian and Chinese opposition to such a statement. 12 On implied authorization see Lobel & Ratner, Bypassing the Security Council: Ambiguous Authorisations to Use Force, Ceasefires and the Iraqi Inspection Regime, AJIL (1999), 124. 13 Higgins, International Law in a Changing International System, Cambridge LJ (1999), 78.


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The UN Secretary-General speaking in response to the start of the NATO air strikes reminded states of the primary responsibility of the Security Council for the maintenance of international peace and security; this was explicitly acknowledged in the NATO Treaty. Therefore the Council should be involved in any decision to resort to force.14 At the first emergency Security Council meeting called immediately after the start of the NATO air attacks, states supporting the action said it was taken as a last resort to prevent a humanitarian catastrophe after the failure of all diplomatic efforts to find a peaceful solution.15 Security Council resolutions had recognised that the situation in Kosovo was a threat to regional peace and security and invoked Chapter VII of the UN Charter. But almost all those states supporting the NATO action made no expressly legal argument. The USA took the line that NATO had acted to avert a humanitarian catastrophe and deter future aggression and repression in Kosovo. It referred to Resolutions 1199 and 1203 recognising that the situation in Kosovo constituted a threat to peace and security in the region, but did not expressly claim Security Council authorisation. The UK was alone in making an explicitly legal argument; it offered a relatively extensive argument. It said: The action being taken is legal. It is justified as an exceptional measure to prevent an overwhelming humanitarian catastrophe… Every means short of force has been tried. In these circumstances, and as an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention is legally justifiable. The force now being used is directed exclusively to averting a humanitarian catastrophe, and is the minimum necessary for that purpose. China argued that the NATO action had seriously exacerbated the situation in the Balkans in blatant violation of the UN Charter and international law. The problem was an internal matter which should be solved by the parties in Yugoslavia. China was opposed to interference in the internal affairs of another state on whatever pretext or in whatever form and called for an immediate end to the military attacks. At the subsequent Security Council meeting called two days later to vote on a resolution condemning the use of force by NATO the Security Council rejected the resolution by 3 votes (China, Namibia and Russia) in favour to 12 against.16 The draft resolution affirmed that the unilateral use of force by NATO constituted a violation of Article 2(4), Article 24 (on the primacy of the Security Council) and Article 53 (on the need for Security Council authorisation of enforcement action by regional organisations). Those speaking against the NATO action (Cuba, India, Russia, China, Ukraine and Belarus), were clear that this was a gross violation of the Charter, whereas those defending the action concentrated on the continuing

14 www.un.org/News/dh/latest.htm, 24 March 1999. 15 SC 3988th meeting, 24 March 1999. 16 SC 3989th meeting, 26 March 1999.

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violence by the government of Yugoslavia against the people of Kosovo. Those defending the NATO action offered a variety of arguments. They stressed the earlier Security Council resolutions passed under Chapter VII calling on Yugoslavia to stop its actions. Although these resolutions did not expressly authorise the use of force by NATO, several states seemed to argue that they nevertheless justified the NATO action. Thus France spoke of the fact that the Security Council had adopted three resolutions under Chapter VII. In Resolution 1199, the Council had affirmed that the deterioration of the situation posed a threat to regional peace and security and made a number of demands on Yugoslavia. In Resolution 1203 the Council had demanded that the agreements between Yugoslavia, the OSCE and NATO should be implemented. As Yugoslavia had not done so, NATO’s action had responded to this failure. The Netherlands took a similar approach; it said that “The NATO action followed directly from Resolution 1203, in conjunction with the flagrant non-compliance on the part of Yugoslavia. Given its complex background, the action could not be allowed to be described as unilateral use of force.” Slovenia also took a similar line; it stressed that the Security Council had declared the situation a threat to regional peace and security, had spelled out the requirements for the removal of the threat and the fact that these requirements had been flagrantly violated by Yugoslavia. The Security Council’s responsibility in this area was primary but not exclusive so NATO had been entitled to act. The USA was apparently less concerned to offer a specifically legal justification. It mentioned the violation of resolutions by Yugoslavia, and then said simply that “NATO’s actions were completely justified. They were necessary to stop the violence and to prevent a further deterioration of peace and stability in the region.” IV. Applications to the International Court of Justice When the NATO air strikes against the Federal Republic of Yugoslavia had been going on for a month, Yugoslavia brought actions against 10 of the 19 NATO member states before the International Court of Justice. It sought a declaration that by taking part in the bombing each respondent was in breach of the obligation not to use force and also that by taking part in training terrorists (the so-called Kosovo Liberation Army) each respondent was in breach of its obligation not to intervene in the affairs of another state. It also alleged breaches of international humanitarian law and finally claimed that by committing all these acts NATO was in breach of the obligation not to directly inflict on a national group conditions of life calculated to bring about its physical destruction in whole or in part. Yugoslavia followed this application by a request for provisional measures; it listed the targets alleged to have come under attack in the air strikes and the damage claimed to have been inflicted upon them. At the end of each request for provisional measures Yugoslavia stated that “If the proposed measure were not to be adopted, there will be new losses of human life, further physical and mental harm inflicted on the population of the Federal Republic of Yugoslavia, further destruction of civilian targets, heavy environmental pollution and further physical destruction of the people


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of Yugoslavia”. It asked the Court to order that the respondent shall cease immediately its acts of force and shall refrain from any act of threat or use of force against the Federal Republic of Yugoslavia. This case gave the parties the opportunity to set out their positions on the use of force; Yugoslavia set out the reasons why it regarded NATO’s actions as an illegal use of force and an unlawful intervention in some detail. Although the respondents generally stressed that they would not go into the merits of the case, some of them also offered some justification for their own actions and challenged the legality of Yugoslavia’s actions in Kosovo. The case therefore provides important material on the fundamental controversy as to humanitarian intervention. During the request for provisional measures Yugoslavia set out its position on the intervention at some length. Its argument was in two parts: first, there was no right to humanitarian intervention in international law and second, even if there were such a right, the modalities chosen by NATO, the air strikes, could not constitute humanitarian intervention. In the oral argument Yugoslavia said that the prohibition in Article 2(4) was unqualified. The preparatory work of the Charter indicated that intervention for special motives was ruled out by the inclusion of the phrase “against the territorial integrity or political independence of any State”. The subsequent practice of states had not produced a departure in international law; such a departure would be a major aberration and would require consistent and substantial evidence. Such a change in customary law had not been proved by any NATO member state. This position was confirmed in the General Assembly Declaration on Friendly Relations which excludes the right to intervene in absolute terms and makes no provision for humanitarian intervention.17 The Definition of Aggression provision that “no consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression” also confirmed this.18 The Yugoslav argument went on to quote writers opposed to humanitarian intervention and the 1984 UK Foreign and Commonwealth Office position that humanitarian intervention was of doubtful legality.19 The second stage of Yugoslavia’s argument was that on the facts of the case the NATO action could not qualify as humanitarian intervention.20 Yugoslavia claimed that there was no genuine humanitarian purpose. Moreover, the modalities selected disqualified the action as a humanitarian one. Bombing populated areas of Yugoslavia from a height of 15,000 feet could not qualify. The selection of a bombing campaign was disproportionate to the declared aims of the 17 GA Res. 2625 (1970). For a discussion of the status of this resolution and of its provisions on the use of force see Gray, in Lowe & Warbrick (eds), The United Nations and the Principles of International Law (1994), 33. 18 GA Res. 3314 (1974). 19 Foreign Policy Document No. 148, BYIL (1986), 614. 20 There is no space here to discuss this aspect of the debate as to the legality of the NATO operation. Simma, n. 2 above, argued that the NATO action could not be seen as humanitarian intervention but was rather reprisals or countermeasures. Many commentators expressed concern that the bombing campaign was not appropriate humanitarian action; the only truly humanitarian action would have been a ground operation.

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action. In order to protect one minority in one region all the other communities in the whole of Yugoslavia were placed at risk of intensive bombing. The pattern of targets and the geographical extent of the bombing indicated broad political purposes unrelated to humanitarian issues. Finally, major considerations of international public order disqualified the bombing as a humanitarian action. NATO states had intervened in civil war in Kosovo. The threats of massive force went back seven months before the NATO action and were intended to produce a dictated result. The massive air campaign was planned in order to force Yugoslavia to accept NATO demands. There was no attempt to obtain Security Council authorisation. At the provisional measures stage most of the respondent states said that they did not want to go into the merits of the case and they limited themselves to descriptions of atrocities in Kosovo as background to their argument that Yugoslavia’s claim for provisional measures should be rejected and to strengthen their claim that Yugoslavia did not come to the Court with clean hands. But Belgium did go into the law on the use of force in order to offer a legal justification of the NATO action. It argued that the armed intervention was in fact “based on” Security Council resolutions; this is another instance of the argument of implied Security Council authorisation. However, Belgium said that it was necessary to go further and to set out the doctrine of humanitarian intervention. There was an obligation to intervene to prevent the humanitarian catastrophe which was occurring and which had been established by the Security Council resolutions, in order to protect those essential human rights which had also achieved the status of jus cogens. NATO had never questioned the political independence or the territorial integrity of Yugoslavia; this was not an intervention directed against the territorial integrity or political independence of Yugoslavia. It was intended to save a population in danger and so it was compatible with Article 2(4) of the Charter which only prohibited those interventions directed against territorial integrity or political independence. This is an express adoption of the narrow interpretation of Article 2(4). Belgium invoked as precedents the intervention by India in Bangladesh, Tanzania in Uganda and even the intervention of Vietnam in Cambodia, despite its repeated condemnation by the UN General Assembly. It also invoked the ECOWAS actions in Liberia and Sierra Leone on the ground that these interventions had not been expressly condemned by the competent organs of the UN. Moreover Belgium said that the rejection by the Security Council of the Russian draft resolution condemning the NATO action confirmed that the action was legal. The Security Council had decided that there was a humanitarian catastrophe and that the situation was a threat to the peace. It was clear from the resolutions that Yugoslavia was responsible for this state of affairs. The UN Secretary-General had said that “Emerging slowly, but I believe surely, is an international norm against the violent repression of minorities that will and must take precedence over concerns of State sovereignty.” The intervention was also intended to safeguard the security of the whole region.


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Other respondent states did not go into any detail on the legal justification for the NATO action. The USA listed a variety of justifications, that the action was to avert humanitarian catastrophe, that there was a threat to the security of the neighbouring states, that there had been serious violations of human rights by Yugoslavia and that the Security Council had determined the existence of a threat to international peace and security and had under Chapter VII demanded a halt to such violations. The UK, in response to the Yugoslav accusation that the doctrine of humanitarian intervention had only been relied on at a late stage by NATO and was therefore of doubtful plausibility as a justification, denied this accusation and briefly repeated the position it had put forward in the Security Council that the NATO action was designed to avert humanitarian catastrophe. In October 1998 NATO had focused primarily on implied authorisation by the Security Council, but it had also included reference to the need to avert humanitarian catastrophe. The argument by Yugoslavia highlighted the (apparently deliberate) lack of clarity in the NATO position and its unwillingness expressly to rely only on the doctrine of humanitarian intervention. Yugoslavia’s argument was designed to indicate that there was considerable uncertainty about the doctrine, preventing its unequivocal support by NATO. In fact, the UK may turn out to have played a crucial role in the development of the law in this area. It seems to have been the first state expressly to put forward the doctrine of humanitarian intervention as a legal justification for the use of force. In 1984 the Foreign and Commonwealth Office had expressed considerable doubt as to the existence of such a doctrine, saying that it was very controversial: the state practice to which advocates of the right of humanitarian intervention had appealed provided an uncertain base on which to rest such a right. Not least this was because history had shown that humanitarian ends were almost always mixed with other, less laudable motives for intervening, and because often the humanitarian benefits of an intervention were either not claimed by the intervening state or were only put forward as an ex post facto justification of the intervention. In fact “the best case that can be made in support of humanitarian intervention is that it cannot be said to be unambiguously illegal”.21 The UK has now fundamentally altered its position. It did not at first offer much in the way of a legal justification for its intervention (with the USA and France) to protect the Kurds in Iraq in 1991, but retrospectively it turned to the doctrine of humanitarian intervention. From August 1992 it moved gradually towards an expression of the doctrine of humanitarian intervention as the justification for the actions in Iraq. It did so, not in the Security Council, but in statements and publications in the UK. The Foreign and Commonwealth Office said that international law develops to meet new situations: We believe that international intervention without the invitation of the country concerned can be justified in cases of extreme humanitarian need. This is why

21 UK Materials on International Law, BYIL (1986), 614.

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we were prepared to commit British forces to Operation Haven, mounted by the coalition in response to the refugee crisis involving the Iraqi Kurds. The deployment of these forces was entirely consistent with the objectives of SCR 688.22 But it did not explain how this development in the law had come about. The UK later elaborated on the doctrine of humanitarian intervention, suggesting possible conditions which should govern its use. First there should be a compelling and urgent situation of extreme humanitarian distress which demanded immediate relief; the other state should not be able or willing to meet the distress and deal with it; there should be no practical alternative to intervening in order to relieve the stress; and also the action should be limited in time and scope.23 The Court refused provisional measures in all 10 cases brought by Yugoslavia against NATO member states. As is customary at this stage of the proceedings, the Court did not pronounce on the legality of NATO’s use of force, but it did indicate concern. In all the cases it said: Whereas the Court is deeply concerned with the human tragedy, the loss of life, and the enormous suffering in Kosovo which form the background of the present dispute, and with the continuing loss of life and human suffering in all parts of Yugoslavia; Whereas the Court is profoundly concerned with the use of force in Yugoslavia; Whereas under the present circumstances such use raises very serious issues of international law; Whereas the Court is mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter and the Statute of the Court; Whereas the Court deems it necessary to emphasize that all parties appearing before it must act in conformity with their obligations under the United Nations Charter and other rules of international law, including humanitarian law.24 V. Analysis The adoption by the Security Council of Resolution 1244 (passed on 10 June 1999 after the agreement in principle on a political solution to the Kosovo crisis) did not mark a retrospective acceptance of the legality of the NATO action or of humanitarian intervention. Many states, including some of those like Slovenia and Canada who had supported the NATO action, stressed their relief that the Security Council was 22 BYIL (1992), 826–828. Again, there were indications of a claim by the UK of implied Security Council authorisation for the use of force, but this was not a strong case given the Security Council’s invocation of Article 2(7) and the lack of reference to Chapter VII. The UK acknowledged that there was no express authorisation of intervention in Resolution 688. 23 Ibid., 828. 24 ICJ decision of 2 June 1999. The reasoning of the Court in its denial of provisional measures suggests that it is unlikely that the Court will find that it has jurisdiction to give a decision on the merits of these cases.


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again taking a central role. Those who had opposed the action took this line even more strongly. Thus Russia said that it was glad that NATO had recognised that the Security Council was the body primarily responsible for the maintenance of peace and security. China maintained its view that NATO had “seriously violated the Charter of the United Nations and norms of international law, had undermined the authority of the Security Council, and had, hence, set an extremely dangerous precedent in the history of international relations.” Because the resolution failed fully to reflect China’s principled stand, China had difficulties with it, but in view of the fact that Yugoslavia had accepted the peace plan; that NATO had suspended its bombing; and that the draft resolution reaffirmed the purposes and principles of the UN Charter and the primary responsibility of the Security Council and also reaffirmed the commitment of all Member States to the sovereignty and territorial integrity of Yugoslavia, China abstained rather than vetoed the resolution. It is noteworthy that Latin American states (Costa Rica, Brazil and Mexico) continued to express concern about the use of force by NATO without Security Council authorisation.25 Thus the controversy over the legality of humanitarian intervention continues. The arguments put forward by states in the Security Council and before the ICJ show vividly the fundamental differences on the law on humanitarian intervention. States are divided on treaty interpretation and on the significance of state practice. Does Article 2(4) UN Charter allow humanitarian intervention? The states who argued in favour of this saw humanitarian intervention as an emerging right; this indicates that they saw Article 2(4) as open to changing interpretation over time and not with a fixed meaning. They did not argue that the right of humanitarian intervention existed in 1945. But the basis for the claim that this change in meaning has taken place is not clear. Apparently it rests in part on an argument that the law of human rights has developed since 1945 to such an extent that certain human rights are now jus cogens just as the prohibition on the use of force is jus cogens. But it does not follow from the mere fact that human rights may now be jus cogens that this overrides the prohibition on the use of force. For this further, crucial step in the argument it would be necessary to show not only that human rights are accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted but also that states have accepted the right to use force to protect them. Those who opposed the interpretation of Article 2(4) to allow humanitarian intervention saw it as a prohibition that cannot be altered without universal agreement. To confirm this view they also invoked the General Assembly resolutions on the use of force which outlawed forcible intervention in absolute terms. They stressed the primary responsibility of the Security Council under Chapter VII in order to exclude unilateral action.

25 SC 4011th meeting, 10 June 1999.

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Therefore it seems necessary for those states supporting humanitarian intervention on the basis that it is an emerging or a new right to show how the change in the law that they rely on has come about. They must show that state practice supports their argument as to the meaning of Article 2(4). A certain amount of revisionism in the interpretation of past practice has proved attractive to some states. Until recently unilateral humanitarian intervention was not put forward as a legal doctrine by states. The Indian action in Bangladesh (1971) which was taken to help the people secure independence from Pakistan and to end repression, the Tanzanian action in Uganda (1979) which led to the overthrow of Idi Amin and the Vietnamese invasion of Cambodia (1978) which overthrew Pol Pot were not in fact justified by the states concerned on the basis of humanitarian action; rather the states using force focused mainly on self-defence. The first two episodes avoided condemnation by the Security Council or the General Assembly but the last, although it was at least as persuasive a case for intervention, divided states partly on Cold War lines (and partly because of the regional rivalry between Vietnam and China) and was repeatedly condemned by the General Assembly. Many states, including France and the UK, said that violations of human rights could not justify the use of force.26 During the Cold War it was writers rather than states that argued in favour of the doctrine of humanitarian intervention as a justification for the use of force by states. The absence of the express invocation of the right by states did not deter some writers from arguing that all or some of these episodes were actually part of state practice supporting a legal right to humanitarian intervention because the states using force should have or could have used this justification.27 The Belgian arguments on the significance of state practice follow the approach of those, mainly US, writers who had argued for a right of humanitarian intervention before this was expressly adopted by any state, relying on what states did rather than on what they said. But the UN Secretary-General was not willing to go so far. He argued that in all three of the cases mentioned what justified the action in the eyes of the world was the internal character of the regimes the intervening states acted against. Yet at the time in all three cases the international community was divided and disturbed because these interventions were unilateral. The states in question had no mandate from anyone else to act as they did. He concluded that most would prefer to see such decisions

26 UNYB (1979), 271, 274. The intervention in Cambodia was retrospectively said by the Netherlands in the Security Council debate over Kosovo to have been a genuine humanitarian intervention. It said “One could not imagine a replay in the twenty-first century of the shameful episode of the 1980’s, when the United Nations had been more indignant at a Vietnamese military intervention in Cambodia which almost all Cambodians had experienced as a liberation, than at three years of Khmer Rouge genocide. That misconception resulted in the majority of delegations, including his own, allowing the Khmer Rouge to continue to occupy the Cambodian seat in the General Assembly for more than a decade. Today, 20 years later, it seemed inconceivable that respect for national sovereignty and territorial integrity could once more prompt so many States to pursue such a mistaken policy.” SC Press Release 6686, 4011th meeting, 10 June 1999. 27 See D’Amato, Trashing Customary International Law, AJIL (1987), 101; Farer, n. 1 above; Mullerson, Sources of International Law, AJIL (1989), 494; Gray, n. 14 above.


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taken collectively by an international institution, and surely the only institution competent to assume that role was the Security Council.28 During the Kosovo crisis some of the states in favour of humanitarian intervention also argued that humanitarian action by the UN or authorised by the UN or taken by a regional organisation and acquiesced in by the UN showed the existence of a general doctrine of humanitarian intervention and the right of states to act unilaterally.29 This was the position of Slovenia in the Security Council and of Belgium before the ICJ.30 It is difficult to see how this argument can be sustained. The UN actions in Somalia and the former Yugoslavia were within the Charter scheme, even if such actions were not initially envisaged by the drafters of the UN Charter. Member states were specifically authorised to use force in those states for humanitarian ends by the Security Council under Chapter VII. The regional actions in Liberia and Sierra Leone were justified by ECOWAS as regional peacekeeping with the consent of the host state; the response by the Security Council was cautious. It did not authorise force except to secure compliance with an arms embargo under Article 41 of the UN Charter or on the basis of a peace agreement between the parties.31 It is very doubtful whether this state practice or UN action could amount to a basis for a new right of humanitarian intervention such as the action over Kosovo.32 For those states who do support the legality of humanitarian intervention the operation in Kosovo has left some issues as to the scope of the right unclear. The official position of NATO seemed to reflect a fundamental division as to the legal basis for the operation. It remains doubtful whether the NATO operation could be a precedent for unilateral action by one state rather than a regional organisation or other group of states. The constant stress on the Security Council resolutions by certain states indicates that they were putting forward a doctrine of implied authorisation by the Security Council; they were not arguing for a unilateral right of humanitarian intervention. Alternatively, a less strict view of the scope of the doctrine would be that Security Council authorisation is not necessary, but that a determination by it under Chapter VII of the existence of a threat to international peace and security and of the imminence of humanitarian disaster is crucial.

28 UN Chronicle (1998 (No.3)), 3. 29 Some states even went so far as to suggest an obligation to intervene, but the limited and selective state practice cannot support such a doctrine. As Cuba argued, there have been many other terrible violations of human rights where no humanitarian intervention was undertaken. 30 For Slovenia’s argument see SC 3989th meeting, 26 March 1999. 31 For a detailed discussion of the ECOWAS action in Liberia and the Security Council response see Nolte, Restoring Peace by Regional Action, Zeitschrift für ausländisches öffentiliches Recht und Völkerrecht (1993), 603; and Gray in Fox (ed.), The Changing Constitution of the United Nations (1997), 91. On Sierra Leone see my forthcoming book on The Use of Force (OUP). 32 Similarly, the legality of the earlier action against Iraq in protection of the Kurds and Shiites in Iraq after the 1991 Iraq/Kuwait conflict is doubtful. It is striking that the states using state practice to support a right to humanitarian intervention in Kosovo did not refer to this action. Gray, After the Ceasefire: Iraq, the Security Council and the Use of Force, BYIL (1994), 135.

15 Immunity and “Double criminality”: General Augusto Pinochet before the House of Lords John R.W.D.Jones

It is a pleasure to contribute to this volume of essays in honour of Judge Li. I greatly admired Judge Li, whom I met several times when he was a Judge at the International Criminal Tribunal for the former Yugoslavia (“ICTY”) in The Hague. He was kind and courteous to everyone, and astonishingly active despite his advanced years. Although an octogenarian, he travelled to Arusha, in Tanzania, to attend the plenary sessions of the International Criminal Tribunal for Rwanda (“ICTR”) and even braved the Tanzanian dirt roads for thsse safari organised for the Appeals Chamber Judges. He remained vigorous and good humoured to the end of his days. Moreover, Judge Li left an invaluable legacy to the ICTY in terms of his contribution to its case-law (notably his Separate Opinion appended to the Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, rendered in the Tadic case on 2 October 1995, in which he held, inter alia, that the conflict in the former Yugoslavia should be viewed in its entirety and considered as international), his work as an appellate and trial (briefly in Blaskic) judge, and his active participation in the many plenary discussions on amending the Rules of Procedure and Evidence (as his law clerks, Wenqi Zhu, and in turn, Sienho Yee, put it, Judge Li read “everything” which was distributed to the judges for the plenary sessions). He was an inspiration to all who had the good fortune to know his intellectual courage and human kindness. I. Introduction 1. The House of Lords decisions in Pinochet,1 rejecting General Augusto Pinochet’s (“Pinochet”) claim for immunity as a former Head of State, have had a tremendous impact. Never before has a domestic court so drastically curtailed the immunity of a

1

Regina v. Bartle and the Commissioner of Police for the Metropolis and Others ex parte Pinochet (On appeal from a Divisional Court of the Queen’s Bench Division), Decision of 25 November 1998 (hereinafter “Pinochet No. 1”), [1998] 3 W.L.R. 1456, and Decision of 24 March 1999, [1999] 2 All E.R. 97 (hereinafter “Pinochet No. 3”). 254

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former Head of State for crimes committed on foreign territory. Paradoxically, at the same time as being ground-breaking, the decisions are a sign of the times. With the proliferation of human rights conventions and tribunals, the increasing acceptance of universal jurisdiction for certain crimes, the establishment of the ICTY and ICTR in 1993 and 1994, respectively, and the establishment of the International Criminal Court in 1998, the unthinkable has become thinkable. A former Head of State may now be subject to criminal proceedings (in this case, extradition) for an international crime (torture), allegedly committed not in the requesting State (Spain), nor in the requested State (the United Kingdom), but in a third state (Chile). 2. Principally two issues were involved in the Pinochet case: State immunity and “double criminality”. The first issue is governed, ultimately, by international law, albeit as incorporated into UK domestic law by the State Immunity Act 1978. “Double criminality”, on the other hand, is a mixed issue of domestic law, treaty law and, possibly, of international law.2 Even as a principle of domestic law, however, it is a well-recognised rule of statutory interpretation that domestic law should be construed as much as possible in conformity with international law. In this case the relevant obligations of the UK under international law are those arising from its ratification of the Torture Convention 1984, in particular the obligation to try the offender or to extradite him (aut dedere aut judicare) imposed by Article 7 of the Torture Convention. According to this principle, the “double criminality” rule should be interpreted in such a way as to ensure that, put bluntly, torturers do not escape prosecution. Thus international law comes into play in considering the rules of both state immunity and “double criminality”. 3. The rules under international law pertaining to State immunity may be briefly summarised as follows. First, States are generally immune from the jurisdiction of the courts of other States. A qualified exception exists, however, when a State enters into commercial transactions.3 This immunity arises, according to some authors, from the needs of international comity. According to others, it is a corollary of the principle par in parent non habet imperium (since all States are equal, no State may judge another). Whatever its rationale, State immunity traditionally covers Heads of State as well as the State itself. Again, a number of reasons have been given for the existence of Head of State immunity.4 4. Second, serving Heads of State, as well as ambassadors and diplomats enjoy absolute personal immunity, also described as inviolability of their person.5 The state representative’s immunity ratione personae serves the function of allowing him or her to carry out their official duties “without being subject to detention, arrest or 2

Brownlie, Principles of Public International Law (4th ed. 1990), 316; Huet & Koering-Joulin, Droit pénal international (1994), 359–60; Lombois, Droit pénal international (1979), 550–51. 3 Trendtex Trading Corporation Ltd v. Central Bank of Nigeria, [1977] QB 529, per Lord Denning MR. 4 Sir Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 RCADI (1994), 9, 36 n. 34 (citing Sir Robert Jennings & Sir Arthur Watts (eds.), Oppenheim’s International Law (9th ed. 1992), §447 (p. 1034 n. 2)). 5 See Article 29 of the Vienna Convention on Diplomatic Relations of 1961: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity”.

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embarrassment in a foreign country’s legal system”.6 Personal immunity of state officials is distinguished from state immunity in that the former covers personal acts of diplomats and heads of state (for example diplomats, famously, are immune from paying parking fines). Personal immunity is not strictly necessary for official acts, at least for those of Heads of State, since the acts of a Head of State are already covered by state immunity. 5. A related doctrine is “Act of State”. This is a principle of non-justiciability which precludes domestic courts from sitting in judgement upon the acts of another State.7 Since the doctrine of state immunity produces the same result when a State or Head of State is sued, it would seem superfluous. However, unlike state immunity, the “Act of State” doctrine would, in principle and unless waived, grant immunity to the acts of all State organs, not just those of Heads of State or diplomats. Thus, if this doctrine is accepted,8 a minor official who committed torture might be able to invoke “Act of State” to claim that he tortured as an organ of a State and that since his actions are therefore those of the State, they are not capable, and nor is he, of being judged in the courts of another sovereign jurisdiction. 6. The “double criminality” rule provides that an accused may only be extradited for trial in another State when the crime in question is a crime both in the requesting State and in the requested State. The rule, not considered in any detail in Pinochet No. 1, assumed great importance in Pinochet No. 3, since the House of Lords there held that extra-territorial torture only became a crime in the UK when it was incorporated into English law by section 134 of the Criminal Justice Act 1988, which came into force on 19 September 1988. Before that date, therefore, the “double criminality” rule was not satisfied and Pinochet could not be extradited for those crimes—the bulk of them—allegedly committed before then. 7. The purpose of this article is to examine these two aspects of the Pinochet case and to test the validity of the various conclusions reached by the House of Lords. II. Factual and procedural background 8. First, the factual and procedural background to the case needs to be briefly described. II.A. Factual background 9. On 11 September 1973, the left-wing regime of President Allende was ousted by a right-wing, military coup d’état led by Pinochet. Shortly thereafter, Pinochet installed

6 7 8

United States v. Noriega, 746 F. Supp. 1506 (S.D.Florida, 1990). Brownlie, n. 2 above, 507. Defendants unsuccessfully invoked the “Act of State” doctrine in the Alien Tort Claims Statute cases in the United States, Filartiga v. Pena-Irala, 577 F. Supp. 860 (EDNY 1984), reversed, 630 F.2d 876 (2d Cir. 1980) and Kadic v. Karadzic, 70 F. 3d 232, (2d Cir. 1995). See also Siderman de Blake v. Republic of Argentina, 965 F 2d 699 (9th Cir. 1992).

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himself as the Chilean Head of State. There followed a brutal repression of real or imagined opponents of the régime, a great many of whom were tortured, murdered or “disappeared”. 10. An official Chilean report says that some 3,000 people were murdered in this way or “disappeared” by Pinochet’s secret police. The crimes were amnestied on 19 April 1978, while Pinochet was still Head of State. On 11 March 1990, after democratic elections in Chile, Pinochet resigned as Chilean Head of State and was created a Senator for life, amnesty being the quid pro quo for his relinquishment of power. 11. In 1998, Pinochet went to England for medical treatment and was detained in London on 23 October 1998 in response to a request by a Spanish investigating magistrate, Judge Baltasar Garzon, to extradite him to Spain for trial on charges, inter alia, of genocide, crimes against humanity, terrorism and torture.9 Judge Garzon justified the jurisdiction of the Spanish courts by virtue of both the “passive personality” principle (the victims of certain of the crimes were Spanish nationals) and the “universality” principle (the crimes were of universal jurisdiction, meaning that any State could prosecute them). II.B. Procedural background

II.B.1. The judgement of the Divisional Court 12. Following his detention, Pinochet initiated proceedings for habeas corpus and for leave to move for judicial review of the two provisional warrants issued against him. The proceedings came before the Divisional Court (Lord Chief Justice Bingham of Cornhill, Justices Collins and Richards) which, on 28 October 1998, quashed both warrants. The first warrant was “bad” since it did not disclose an “extradition crime”. It charged Pinochet, a Chilean citizen, with murder of Spanish citizens in Chile. Equivalent conduct would not constitute a crime in England since “the United Kingdom Courts only have jurisdiction to try a defendant where he has committed a crime outside the United Kingdom if he is a British citizen, regardless of the nationality of the victim”.10 13. While murder of Spanish citizens in Chile was not, under section 2 of the Extradition Act 1989,11 an “extradition crime” under English law, the torture of Chilean and Spanish citizens in Chile was an “extradition crime”, since the Torture Convention of 1984, incorporated into English law by the Criminal Justice Act 9

See Le Monde of 21 October 1998, which published Judge Garzon’s “Request for provisional arrest for the purposes of extradition”, filed in Madrid on 18 October 1998. 10 Paragraph 23 of the Judgement of Lord Chief Justice Bingham. 11 The Extradition Act 1989 (1989 c 33), section 2 defines an “extradition crime” as follows: (1) In this Act, except in Schedule 1, “extradition crime” means— (a) conduct in the territory of a foreign state […] which, if it occurred in the United Kingdom, would constitute an offence punishable with imprisonment for a term of 12 months, or any greater punishment, and which, however described in the law of the foreign state […] is so punishable under that law;

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1988, made torture an extra-territorial offence. An extra-territorial offence is one which may be tried in English courts notwithstanding that it was committed abroad. This is in contrast to murder, which is not an extra-territorial offence (unless the perpetrator is a British national). 14. The Divisional Court did not seem to consider it important that most of Pinochet’s crimes would have been committed before 1988, when torture became an extra-territorial offence in the UK.12 While not determining the point directly, Lord Chief Justice Bingham said that, in order for a crime to amount to an extradition crime, it was not necessary that the conduct be criminal at the date of the conduct relied upon, but only at the date of the request for extradition: I would […] add on the retrospectivity point that the conduct alleged against the subject of the request need not in my judgement have been criminal here at the time the alleged crime was committed abroad. There is nothing in section 2 which so provides. What is necessary is that at the time of the extradition request the offence should be a criminal offence here and that it should then be punishable with 12 months imprisonment or more. Otherwise section 2(1)(a) [of the 1989 Extradition Act, see footnote 11] would have referred to conduct which would at the relevant time ‘have constituted’ an offence and section 2(3)(c) would have said ‘would have constituted’. I therefore reject this argument.13 15. In other words, in the Lord Chief Justice’s opinion, the “request date”, not the “conduct date”, was the crucial determinant of whether a crime was an “extradition crime” or not. 16. The Divisional Court nonetheless quashed the second warrant, alleging torture, on the grounds of immunity since the ac ts described therein related to Pinochet’s

(b) an extra-territorial offence against the law of a foreign state […] which is punishable under that law with imprisonment for a term of 12 months, or any greater punishment, and which satisfies— (i) the condition specified in subsection (2) below; or (ii) all the conditions specified in subsection (3) below. (2) The condition mentioned in subsection (1)(b)(i) above is that in corresponding circumstances equivalent conduct would constitute an extra-territorial offence against the law of the United Kingdom punishable with imprisonment for a term of 12 months, or any greater punishment. (3) The conditions mentioned in subsection (1)(b)(ii) above are— (a) that the foreign state […] bases its jurisdiction on the nationality of the offender; (b) that the conduct constituting the offence occurred outside the United Kingdom; and (c) that, if it occurred in the United Kingdom, it would constitute an offence under the law of the United Kingdom punishable with imprisonment for a term of 12 months, or any greater punishment. 12 Torture would of course have been an offence if committed in the UK long before 1988 as amounting to assault, battery, false imprisonment, and grievous or serious bodily harm under English criminal law. The crucial question, however, is whether torture committed outside the UK, and not involving UK nationals, would have been an offence in England before 1988. 13 Paragraph 33, Judgement of Lord Chief Justice Bingham.

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activities as a Head of State.14 The Court rejected the Prosecution’s contention that certain crimes, in particular torture, could not be considered under international law as constituting official acts and therefore would not be covered by state immunity. Relying on the decision of the English Court of Appeal (Civil Division) in Al-Adsani v. Government of Kuwait (1996), Lord Chief Justice Bingham held, “if the Government there could claim sovereign immunity in relation to alleged acts of torture, it would not seem surprising if the same immunity could be claimed by a defendant who had at the relevant time been the ruler of that country”.15 In other words, torture could be the official act of a State. 17. No appeal was brought to the quashing of the first warrant, but the quashing of the second warrant was appealed by the Crown Prosecution Service, acting on behalf of the Government of Spain, to the House of Lords, with the leave of the Divisional Court. II.B.2. Pinochet No. 1: the House of Lords Judgement of 25 November 1998 18. On appeal to the House of Lords, the Divisional Court certified the following point of law of general importance for their Lordships’ decision: “the proper interpretation and scope of the immunity enjoyed by a former head of state from arrest and extradition proceedings in the United Kingdom in respect of acts committed while he was head of State”. The appeal was heard from 5–12 November 1998, and the House of Lords rendered its Judgement on 25 November 1998. Since the Judgement was subsequently annulled, it will only be briefly summarised here. 19. The Law Lords agreed in general on the parameters of the debate. They accepted that Pinochet was Chilean Head of State at all relevant times until March 1990.16 They agreed that a serving Head of State enjoyed absolute personal immunity, but that whether a former Head of State continued to enjoy immunity depended on the true construction of the UK Diplomatic Privileges Act 1964 (and the Vienna Convention on Diplomatic Relations of 1961, to which it referred) read together, with “any necessary modifications”, with the UK State Immunity Act 1978. Central to this construction was the enquiry whether the acts of torture and hostage-taking alleged against Pinochet17 would constitute “official acts performed by a Head of

14 “The thrust…of that warrant makes it plain that the applicant is charged not with personally torturing or murdering victims or causing their disappearance, but with using the power of the state of which he was head to that end.” (Para. 43, Judgement) 15 Justices Collins and Richards agreed with Lord Chief Justice Bingham. 16 While valid arguments could be, and were, advanced that Pinochet was not Head of State when certain of the crimes were allegedly committed—a fact which, if established, would not entitle him to claim immunity in relation to those crimes—the House of Lords does not appear to have given the issue serious consideration in either Pinochet No. 1 or Pinochet No. 3. 17 For the purposes of the appeal, the House of Lords had to assume that the allegations against Pinochet were true. As Lord Steyn said in the first House of Lords Judgement: “the House must assume the correctness of the allegations as the backcloth of the questions of law arising on this appeal”.

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State” under international law. The Judges divided on this question. The minority (Lord Slynn of Hadley and Lord Lloyd of Berwick) agreed with the Divisional Court that acts committed under colour of state authority—even if they constituted international crimes—were “official” and therefore covered by state immunity. The majority (Lord Nicholls of Birkenhead, Lord Steyn and Lord Hoffmann) considered that such illegality removed the acts from the “official” sphere. A former Head of State would therefore enjoy no immunity with respect to those “unofficial” acts. 20. The practical consequence of the first House of Lords Judgement was that Pinochet could be extradited to Spain to face trial on all of the charges in the second provisional warrant, provided of course that the conditions for extradition were met, namely that a prima facie case had been made out, a properly formulated request had been sent and none of the defences to extradition applied. II.B.3. Pinochet No. 3: the House of Lords Judgement of 24 March 1999 21. The House of Lords judgement, Pinochet No. 1, was set aside by another Lords’ panel on 17 December 1998 in an unprecedented decision18 (Pinochet No. 2) on the grounds that Lord Hoffmann had not disclosed his ties with the human rights group Amnesty International, which had appeared as a party in the proceedings.19 On 18 January 1999, the case reopened before a new House of Lords panel comprising seven Judges20 and the second House of Lords Decision, Pinochet No. 3, was rendered on 24 March 1999. The lead speech in Pinochet No. 3 was rendered by Lord BrowneWilkinson, although all seven Law Lords delivered their own views. The majority (Lord Goff of Chievely dissenting) rejected Pinochet’s claim of immunity but for somewhat different reasons from those relied on by the majority in Pinochet No. 1. They accepted, apparently as a result of a concession by the Prosecution,21 that the crimes charged against Pinochet would have been carried out under colour of state authority and were therefore acts performed in the exercise of the functions of the head of state and, prima facie, protected by immunity. Their enquiry then focused on whether there was an exception to this immunity in the case of “acts the prohibition of which has acquired the status under international law of jus cogens”.22 They concluded

18 Reported at [1999] 2 W.L.R. 272. 19 Amnesty International was described as amicus curiae in the House of Lords proceedings, but it seems the organisation was formally admitted as an intervenor or party. 20 Amnesty International was again given leave to make submissions and the Government of Chile was allowed to appear for the first time. 21 See Hazel Fox, The Pinochet Case No. 3, 48 ICLQ (1999), 687–702, 692: “A concession was made in the case by the Crown Prosecution Service on behalf of Spain that the alleged acts of General Pinochet were performed for State purposes as an exercise of his functions as head of state and not in a private capacity, for private gratification. This disposed of the ambiguity […] that an international crime of the gravity of torture must always be construed as a personal act since no lawful State would authorise it.”

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that there was and that torture, by virtue of the Torture Convention of 1984, constituted such an exception. 22. However, on “double criminality”, the House of Lords took a new approach which had the effect of greatly reducing the practical significance of its rejection of the immunity plea. Lord Browne-Wilkinson, giving the majority opinion on this issue, held, for the first time, that the “double criminality” rule required that the crime in question be an extradition crime when committed (“the conduct date”) rather than, as Lord Chief Justice Bingham had held, when the extradition proceedings take place (“the request date”). This meant that torture had to be a crime in the UK at the time that the crimes were committed in Chile, not at the time that Pinochet’s extradition was requested. Torture became a crime in the United Kingdom only on 29 September 1988, when section 134 of the Criminal Justice Act brought the Torture Convention of 1984 into effect.23 Pinochet could not, therefore, be extradited to stand trial in Spain for those acts of torture which were committed before 1988. Since most of the crimes were alleged to have been committed between 1973 and 1977, the impact on the case was profound: as Lord Goff of Chievely noted, “the great mass of the offences with which Senator Pinochet is charged must be excluded”.24 The House of Lords took away with one hand what it gave with the other. III. Immunity 23. While the rejection by House of Lords majorities, in Pinochet No. 1 and Pinochet No. 3, of Pinochet’s claim to immunity as a former Head of State seems to be correct, the reasoning relied on in both instances is not entirely convincing. In Pinochet No. 1, the majority argued that torture cannot constitute an official act, or alternatively fall within the functions of a Head of State. But, as Justice Collins convincingly pointed out in the Divisional Court, “history shows that it has indeed on occasions been state policy to exterminate or to oppress particular groups. One does not have to look very far back in history to see examples of that sort of thing having happened”. Some States still do practice torture, including States in Europe.25 There are States which are referred to as “criminal” or “pariah” States precisely because they systematically practice torture, terrorism or genocide. The fact that torture is universally recognised as a crime does not mean that only private individuals, acting in a “non-official” capacity, may commit torture. Indeed, by definition, torture must be committed with the consent or acquiescence of one acting in an official capacity (Article 1, Torture Convention 1984). To recognise that these are “official” acts is

22 23 24 25

Lord Hope of Craighead, Pinochet No. 3, 147. See Brownlie, n. 2 above, 48. Lord Goff of Chievely, Pinochet No. 3, 118. The European Court of Human Rights has found that both France and Turkey have committed torture.

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not to condone them, unless one subscribes to the naïve belief that States can do no wrong. They are official and, at the same time, criminal acts. 24. If one accepts this reasoning, then it is clear on the issue of state immunity that Pinochet’s acts, undertaken as they were using the organs of the State and under colour of State authority, were at the same time acts of the Chilean state, and thus official. Prima facie, therefore, he would be immune. This is in a sense the starting point for the majority in Pinochet No. 3. But their argument that the Torture Convention 1984 carved out an exception to the general rule of state immunity, is not compelling either. More convincing is the argument that rather there is no state immunity for certain international crimes, in particular crimes against humanity, and to the extent that torture is committed as a crime against humanity, there can, therefore, be no immunity. But this principle antedates the Torture Convention. Crucially, therefore, for this case, in light of the “double criminality” requirement, it was not necessary to wait for the Torture Convention in 1984 to deny immunity to a former Head of State accused of torture as a crime against humanity. Such immunity ceased to exist long before. Article IV of the Genocide Convention of 1948 provided that, “Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals”. According to the Nuremberg principles, affirmed by the General Assembly of the United Nations in 1946,26 as codified by the International Law Commission,27 war crimes and crimes against humanity are “punishable as crimes under international law” (Principle VI) and “[t]he fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law” (Principle III). Thus if Pinochet were charged with genocide, war crimes or crimes against humanity, he would clearly enjoy no immunity under international law, irrespective of when he committed the crimes.28 25. The Torture Convention of 1984 contains no provision expressly stating that it abrogates Head of State immunity. The majority of the House of Lords in Pinochet No. 3 felt that it was nonetheless necessary to imply such a waiver of immunity into the Torture Convention. Otherwise, since the Convention’s definition of torture includes the requirement that it be committed “by or with the acquiescence of a public official or other person acting in an official capacity” (Article 1), it would have created a defence which was co-extensive with the definition of the crime. If torture’s official and state-sponsored character were at the same time a defence, then the Convention would appear to be self-defeating.

26 GA Res. 95(I) of the United Nations General Assembly, adopted on 11 December 1946. 27 Report of the International Law Commission Covering its Second Session, 5 June–29 July 1950, Document A/1316, 11–14. 28 Pinochet was initially charged with genocide but this charge was dropped. This is almost certainly correct on the facts, since it does not appear to be anywhere alleged that Pinochet committed murder or other acts with the intent to destroy, in whole or in part, an ethnic, racial or religious group as such.

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26. Lord Goff replied convincingly, however, to this argument: […] I wish first to observe that the assumption underlying the present argument, viz. that the continued availability of state immunity is inconsistent with the obligations of state parties to the [Torture] Convention, is in my opinion not justified. […] I need only refer to Article 7 which requires that a state party under whose jurisdiction a person alleged to have committed torture is found shall, […] if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. […] First of all, in the majority of cases which may arise under the Convention, no question of state immunity will arise at all, because the public official concerned is likely to be present in his own country. Even when such a question does arise, there is no reason to assume that state immunity will be asserted by the state of which the alleged torturer is a public official; on the contrary, it is only in unusual cases, such as the present, that this is likely to be done.29 27. As Lord Goff went on to say, not only is there no express provision in the Torture Convention which waives state immunity (as there is in the Genocide Convention), but “the travaux preparatoires […] reveal no trace of any consideration being given to waiver of state immunity”.30 The conclusion must be that a charge of torture per se does not abrogate a claim of state immunity.31 28. It is clear, on the other hand, from Principle III of the Nuremberg Principles, referred to above, that there is no state immunity for torture when committed as a crime against humanity. A crime against humanity is commonly defined as any one of a number of acts when committed as part of a widespread and systematic attack on a civilian population.32 Arguably a discriminatory intent may also be required for crimes against humanity (although this holding was recently over-turned on appeal in the Tadic case before the ICTY),33 that is, the civilian population must be the object of discrimination on political, racial, religious or national grounds. Torture is enumerated as a form of crime against humanity in both the ICTY and ICTR Statutes,34 and it would come within the definition of both inhumane acts or

29 Lord Goff of Chievely, Pinochet No. 3, 127. 30 Ibid. 31 Michel Cosnard, Quelques Observations sur les décisions de la chambre des Lords du 25 novembre 1998 et du 24 mars 1999 dans l’affaire Pinochet, 103 RGDIP (1999), 309 ff., suggests that this argument is question-begging: the State can only waive the immunity if it first enjoys it. But in this instance, the premise, based on the existing state of customary international law prior to the Torture Convention of 1984, is that there is state immunity. The question is then to see whether States waived such immunity when they signed the Torture Convention. The question is, therefore, not begged. 32 See Article 5 of the ICTY Statute, para. 48 of the Secretary-General’s Report on the ICTY Statute (S/ 25704) and Article 3 of the ICTR Statute. 33 See the ICTY Appeals Chamber’s Judgement in the Tadic case of 15 July 1999. 34 Article 5(f) of the ICTY Statute and Article 3(f) of the ICTR Statute.

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persecution under the Charters of the International Military Tribunal at Nuremberg and at Tokyo.35 29. To the extent, then, that Pinochet were to be charged with torture as a crime against humanity, he would not enjoy immunity as a former Head of State under international law. The crimes alleged in Spain’s extradition request would certainly seem to fall into this category, not of isolated instances of torture but of an organised and wide-scale campaign, which would characterise them as crimes against humanity, practised discriminatorily on political grounds. 30. It appears that Lord Hope of Craighead and Lord Millett took this view. Lord Hope held that there was no head of state immunity for crimes of jus cogens (peremptory norms of international law). Torture was contrary to jus cogens when it was committed as part of a widespread and systematic attack on a civilian population, but not when it concerned an isolated act. Lord Hope held that while the Torture Convention did not expressly waive head of state immunity, therefore, the waiver had to arise by necessary implication when it concerned torture as an international crime. Lord Hope concluded, therefore, that Pinochet had “no immunity from prosecution for the charges of torture and of conspiracy to torture which relate to the period after [8 December 1988, the date upon which the Torture Convention was ratified by the United Kingdom]”.36 31. The problem with Lord Hope’s approach is that, while he recognises the importance of jus cogens, he nonetheless relies on the Torture Convention of 1984 for the waiver of immunity, which inevitably implies a cut-off date in the 1980s, with immunity subsisting before that date. An approach grounded in customary international law would avoid this flaw, an approach which Lord Millett alone appears to have taken. In a dissenting opinion, he held that universal jurisdiction over a crime exists when two criteria are satisfied: (1) the crime is one of jus cogens; and (2) the crime is so serious and on such a scale that it can justly be regarded as an attack on the international legal order. Lord Millett applied this second criterion in such a way as to suggest that the crime was an attack on the international legal order when it was a crime against humanity. 32. It is submitted that the approach most consistent with international law consists of, first, acknowledging that the acts allegedly committed by Pinochet would be official acts and, therefore, prima facie covered by state immunity, and, second, invoking the principle established by the Nuremberg Tribunal whereby such immunity does not exist in the case of crimes against humanity or, in this case, torture as a crime against humanity, as Lord Millett recognised. 33. It will be apparent that this interpretation is based on international law, while the House of Lords’ task was to apply English law. This is particularly noticeable in

35 See Article 6(c) of the Nuremberg Charter and Article 5(c) of the Tokyo Charter. 36 Lord Hope, Pinochet No. 3, 153. Lord Hope considered that the key date was 30 October 1988, the date that Chile’s ratification of the Torture Convention took effect, but for reasons which he did not explain he associated himself with the view of Lord Saville that Pinochet continued to have immunity until 8 December 1988, when the UK ratified the Torture Convention.

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Pinochet No. 1, where the Judges saw it as their task to interpret the Diplomatic Privileges Act 1964 read together with the State Immunity Act 1978, subject to “any necessary modifications”. As they recognised, the purpose of the Diplomatic Privileges Act 1964 was, however, to give effect to the Vienna Convention on Diplomatic Relations 1961, which itself codified international law. Thus the Act had to be interpreted in accordance with international law, including the absence, under international law, of immunity for crimes against humanity. Thus for the UK Parliament to give proper effect to the Vienna Convention of 1961—and making the “necessary modifications”—would require it to bar immunity for crimes against humanity. As Lord Browne-Wilkinson said, “Parliament cannot have intended to give heads of state and former heads of state greater rights than they already enjoyed under international law”.37 Ultimately the question must be settled by reference to international law. International law gives a clear answer. There is no immunity for Heads of State charged with crimes against humanity. The widespread and systematic infliction of torture on political grounds is such a crime against humanity. IV. “Double criminality” 34. If one concludes that the crime which should be considered for these purposes is not simply torture, but torture as a crime against humanity, this provides the answer not only to the question of immunity, but also to that of “double criminality”. As Lord Millett explained: Every state has jurisdiction under customary international law to exercise extraterritorial jurisdiction in respect of international crimes which satisfy the relevant criteria. Whether its courts have extra-territorial jurisdiction under its internal domestic law depends, of course, on its constitutional arrangements and the relationship between customary international law and the jurisdiction of its criminal courts. The jurisdiction of the English criminal courts is usually statutory, but it is supplemented by the common law. Customary international law is part of the common law, and accordingly I consider that the English courts have and always have had extra-territorial criminal jurisdiction in respect of crimes of universal jurisdiction under customary international law. […] In my opinion, the systematic use of torture on a large scale and as an instrument of state policy had joined piracy, war crimes and crimes against peace as an international crime of universal jurisdiction well before 1984. I consider that it had done so by 1973. For my own part, therefore, I would hold that the courts of this country already possessed extra-territorial jurisdiction in respect of torture and conspiracy to torture on the scale of the charges in the present case and did not require the authority of the statute to exercise it.38 (Emphasis added.)

37 Lord Browne-Wilkinson, Pinochet No. 3, 113. 38 Lord Millett, 177–78.

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35. On this view, therefore, section 134 of the Criminal Justice Act of 1988 was not needed to make widespread and systematic torture a crime under UK law. Even the Torture Convention of 1984 was not necessary. Torture as a crime against humanity was a crime jus cogens and of universal jurisdiction under international law as far back as 1973. Accordingly, in the absence of a contrary statutory enactment, torture as a crime against humanity was a crime under English common law from that date. It follows that the “double criminality” requirement would be met in Pinochet’s case: torture was a crime in both the UK and Spain as far back as 1973.39 36. This proposed solution aside, one cannot but criticise the majority’s holding in Pinochet No. 3 that it is the “conduct date” which matters for “double criminality” under English extradition law rather than the “request date”. Even Lord Chief Justice Bingham in the Divisional Court and Lord Lloyd, in the first House of Lords panel— the only Judges to consider the matter, and both of whom considered that Pinochet was immune—believed that the “request date” was the crucial time-frame. On this basis they assumed that the crimes in question were “extradition crimes” at all pertinent times. 37. The contrary conclusion reached by Lord Browne-Wilkinson was based on an analysis of the 1870 Extradition Act. As a matter of statutory interpretation, his approach is not entirely convincing. Given that this is a matter on which reasonable minds can differ, the most convincing rebuttal to Lord Browne-Wilkinson’s interpretation derives from basic notions of justice, taking into account the respective rights of the defendant, the prosecution and the alleged victims. 38. On the one hand, if the “request date” were used, Pinochet could complain of ex post facto law. Had he been arrested in 1987, he could not have been extradited. After the passage of the Criminal Justice Act of 1988, he could be. Such retroactivity, he would claim, is impermissible in a criminal matter. This would not, however, be a convincing argument. The commission of widespread and systematic torture in Chile was, on any view, a crime under international law in 1973. To hold Pinochet liable for such a crime would, therefore, not violate the principle of legality (nullum crimen sine lege). Even if Chilean law condoned such conduct, either at the time, by virtue of the declaration of a state of emergency, or afterwards, by the passing of an amnesty, it is a generally accepted principle that, “the fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who acted from responsibility under international law” (Nuremberg Principle II). 39. In addition, any concern for the principle of non-retroactivity has to be balanced against other considerations. As Hans Kelsen stated, in the context of the trials of war criminals after the Second World War:

39 As far as the criminality of extra-territorial torture in Spain was concerned, this was taken for granted by the House of Lords. See the speech of Lord Browne-Wilkinson, “The Spanish courts have held that they have jurisdiction over all the crimes alleged”.

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In all cases where the rule against ex post facto laws comes into consideration, we must bear in mind that this rule is to be respected as a principle of justice and that […] this principle is frequently in competition with another principle of justice, so that the one must be restricted by the other. It stands to reason that the principle which is less important has to give way to the principle which is more important. There can be little doubt that, according to the public opinion of the civilised world, it is more important to bring the war criminals to justice than to respect, in their trial, the rule against ex post facto law, which has merely a relative value and, consequently, was never unrestrictedly recognised.40 40. In the context of the Pinochet case, “another principle of justice”, which must be balanced against the danger of retrospective application of the Torture Convention of 1984, and the legislation implementing that Convention into English law, is the need for justice to be done for the thousands who were murdered or “disappeared” during Pinochet’s regime. The approach taken by the House of Lords in Pinochet No. 3 renders such justice all but impossible. V. Conclusion 41. Admittedly, the House of Lords in Pinochet found themselves in uncharted waters. In these circumstances, they should, it is submitted, have considered the maxim, hominum causa omne jus constitutum (“all law is created for the benefit of human beings”), and striven for the just solution, rather than cobbling together a compromise satisfactory to none. As Lord Denning put it, “the law should not be an ass”. To rule, in Pinochet No. 3, that Pinochet is not entitled to immunity as a former Head of State for conducting a widespread and systematic campaign of torture and “disappearances”, while at the same time construing an ambiguous section of the Extradition Act of 1989 to quash the bulk of the charges against him, does not seem to produce the result which law and justice require.

40 Hans Kelsen, The Rule against Ex Post Facto Laws and the Prosecution of the Axis War Criminals, 2 The Judge Advocate J. (1945), 11; see also Michael Birnbaum, Pinochet and Double Criminality, Crim. L.R. (2000), 127.

16 The use of the term “(Public) Morality” in the European Convention on Human Rights: a brief history Santiago Legarre I. Introduction The Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (the Convention)1 was formulated in order to protect and guarantee the fundamental rights and freedoms of the people of Europe. With respect to most of those rights, it nevertheless recognizes and establishes the possibility of rightful limitations by the State. The relevant articles lay down the grounds upon which valid limitations on such rights may be based. The protection of morals is included among the legitimate reasons to restrict those rights. This is reflected in the following provisions: Article 8 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 9 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or in private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or belief shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

1

ETS No. 5, http://www.coe.fr/eng/legaltxt/5e.htm. 268

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Article 10 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Article 11 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. These articles protect several fundamental rights: right to respect for private and family life; right to respect for home and correspondence; freedom of thought and conscience; freedom of expression; freedom of assembly; freedom of association. Each article has a clause which limits the exercise of these rights. Some of the restrictions permitted depend on the nature of each right. But, in part, the restrictions are the same and, therefore, similar wording has been used in the four above quoted articles. The following is a synthesis of those similarities: The exercise of the mentioned rights is subject only to limitations: (a) prescribed by law (b) necessary in a democratic society: (b)(1) in the interests of national security and public safety or (b)(2) for the protection of: (b)(2)(i) health or morals or (b)(2)(ii) the rights and freedoms of others.

Article 9 allows limitations “for the protection of public order, health or morals”. Is it talking of “public order” on the one hand, and of “health or morals” on the other?

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Or does “public” apply also to “health” and “morals”? The latter is the natural meaning of the expression and we can assume that competent drafters were aware of this. Furthermore, there is no evidence in the debates which preceded the drafting that they would want the clause to be read otherwise. The French official version confirms the suggested reading. It says “la protection de l’ordre, de la santé ou de la morale publiques”. The plural “publiques” obviously qualifies each of the three previous nouns. For the purpose of this paper it is relevant to note that all the above quoted articles include the protection of morals as a reason that justifies, under certain circumstances, a restriction of the aforementioned rights. Now, why did the drafters of the Convention include this limitation clause? In an attempt to answer this question we will turn to the legislative history of the treaty, the so-called travaux préparatories. My aim is to trace the origins of the kind of restriction envisaged as based upon the protection of morals and to show the evolution of both the wording and the meaning of the terminology employed in the different drafts that preceded the final version. Since it may contribute to the understanding of the subject, I will first give a general account of how the Convention came into existence in 1950. II. The genesis of the European Convention of 1950 One of the consequences of the Second World War was that the people of Europe decided to strengthen their bonds in order to prevent repetitions of the disasters they had suffered. As a result, they created the Council of Europe2 “to achieve a greater unity between its Members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage and facilitating their economic and social progress”.3 “This aim shall be pursued through the organs of the Council by discussion of questions of common concern and by agreements and common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realization of human rights and fundamental freedoms”.4 This shows how the concern for the protection of human rights was present from the very beginning of the venture of European integration. Furthermore, Article 3 of the Statute prescribes: Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realization of the aim of the Council as specified in Chapter I.

2 3 4

The Statute of the Council of Europe, ETS No. 1, http://www.coe.fr/fr/txtjur/1fr.htm, was signed in London, 5 May 1949. It was adopted by Belgium, Denmark, France, Ireland, Italy, Luxembourg, Netherlands, Norway, Sweden and the United Kingdom. Ibid., Art. 1. Ibid., Art. 1. Emphasis added.


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Yet even before the Council of Europe saw the light of day, an unofficial institution called the European Movement took the first initiative by publishing in February 1949 a “Declaration of Principles of European Union” which stated, inter alia, that “no State should be admitted into the European Union which does not accept the fundamental principles of a Charter of Human Rights, and which does not declare itself willing and bound to ensure their application”.5 Subsequently, an International Juridical Section of the European Movement was set up and it produced a draft European Convention of Human Rights and a draft Statute of the European Court of Human Rights. The former was based on a full consideration of the Universal Declaration of Human Rights adopted by the United Nations on December 10, 1948.6 These documents were submitted to the Council of Europe on July 12, 1949.7 The Committee of Ministers, the executive organ of the Council, was initially reluctant to consider the subject but, under pressure from the European Assembly, it finally removed the obstacles to discussion. The Assembly dealt with the issue of human rights during its first session held at Strasbourg in August and September of 1949 and decided to refer the topic to its Committee on Legal and Administrative questions.8 Sir David Maxwell-Fyfe was elected chairman of the Assembly Committee and M.Pierre-Henri Teitgen was appointed rapporteur. Both had participated prominently in the preparation of the European Movement’s draft, which was suggested by Teitgen as a possible inspiration for the Assembly’s work.9 The suggestion was warmly received by various members of the Assembly.10 Thus, the Assembly Committee worked on the basis of the European Movement draft and finally produced a new draft that was presented to the Assembly together with a Report by M.Teitgen on September 5, 1949.11 In the course of a long, heated debate, the Assembly considered several amendments to the Committee’s draft but only a few were adopted and the draft convention was finally approved. The Assembly then recommended that the Committee of Ministers draw up a convention for the protection of human rights, taking into account what the European legislative body had approved and drafted. This was Recommendation 38, adopted on September 8 of the same year. The Ministers agreed in principle with the idea of an international guarantee of human rights within the jurisdiction of the Council, but they did not want to issue a blanket approval of the Assembly’s proposal. So they appointed a committee of legal experts that would be composed of qualified persons from each Member State. This committee was asked to draw up a draft Convention and was instructed 7 to

5 6 7 8 9 10 11

Collected Edition of the “Travaux préparatoires” (1975), vol. I, xxii (Introduction by A.H.Robertson). Ibid., 94. Ibid., xxiv. Ibid., 36 (Eighth sitting, held August 19, 1949). Ibid., 48. Ibid., 60; 66; 90–92. Ibid., 264–294 (The Teitgen Report), see also ibid., 192–212; 216–34.

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pay due attention to the progress of work of the United Nations, which was also preparing a convention on human rights.12 But the previous Assembly’s work was not mentioned in the instructions contained in the letter of convocation of the new committee. This led to a foreseeable protest by the Assembly.13 The legal experts worked in Strasbourg in February and March 1950 and prepared a new draft Convention. Despite the aforementioned omission, the basis of their work was the Assembly’s proposal. Nevertheless, since they were not able to agree on several points they submitted to the Committee of Ministers various alternative versions of the draft. At this point, a political decision was needed. The Committee of Ministers did not itself make that choice; it delegated to a conference of senior officials, under instructions from their governments, the task of preparing the grounds for the political decisions to be taken by the Committee. This conference was also held in Strasbourg, in June of the same year. The senior officials reached agreement on a compromise formula and produced a new draft—based once more, on the previous ones. They left undecided, however, a number of questions that they considered to be beyond the scope of their authority. On August 7 of 1950 the Ministers adopted the draft prepared by the senior officials and submitted it to the Assembly. The latter’s Legal Committee considered the document and proposed amendments to it, which were approved by the Assembly. But the Ministers did not agree with the amendments and when the convention was finally signed on November 4, 1950, its content was substantially the same as the senior officials’ draft of August 1950. III. Public morality and morals in the drafts of the European Convention After having noted the historical process that led to the present text of the Convention we can now analyse how and to what extent the concept of public morality was introduced throughout the various stages of that process. We shall first focus on the Draft European Convention on Human Rights prepared by the International Juridical Section of the European Movement (July 1949).14 This draft was inspired by the Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948. Therefore, it is important to take notice of the latter document’s methodology. After enumerating and defining—sometimes at length—a large number of rights in the first 28 articles, the Declaration concludes with the following provisions:

12 Letter addressed on November 18, 1949 by the Secretary General to the Ministers for Foreign Affairs of the Member States, ibid., vol. II, 302–304. The work of the United Nations mentioned in the text ended in 1966 with the formulation of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. 13 See ibid., vol. II, 288–300. 14 The full text can be found in ibid., vol. I, 296–302.


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Article 29 Everyone has duties to the community in which alone the free and full development ofhispersonalityispossible. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. Article 30 Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein. The methodology of the Universal Declaration is clear. It does not attach a limitation clause to each right. Instead, it establishes in the last two articles general limitation clauses that apply to every enumerated right. And “meeting the just requirements of morality” is among the justifications for that limitation. Even though the Draft Convention prepared by the European Movement had essentially the same content as the Universal Declaration, the methodology was different in part: most rights were enumerated in one long, opening article, without a descriptive definition of each of them. Nevertheless, the methodology for the limitation clause was identical to that of the Universal Declaration. Article 3 of the Draft Convention says: The rights specified in Articles 1 and 2 shall be subject only to such limitations as are in conformity with the general principles of law recognized by civilized nations and as are prescribed by law for: a) Protecting the legal rights of others; b) Meeting the just requirements of morality, public order (including the safety of the community), and the general welfare. So we have again a general limitation clause that would apply to all rights. And the term morality was copied from the Universal Declaration without any alteration. As we have already seen this Draft Convention was the basis for the discussion in the Council of Europe that ended with the adoption of the European Convention of 1950. I will give a brief chronology of the events in the Assembly’s work. No relevant discussions with respect to our subject took place in the sittings of the Assembly in August-September 1949, preceding the work of the Committee on Legal and Administrative Questions.15 Now, what happened in the Assembly’s 15 It may be useful to reproduce, nevertheless, an idea articulated by one of the representatives of

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Committee? The Rapporteur was asked to propose a list of questions for examination. This list did not include, at least in a direct way, the question of the valid limitations on human rights. It did not mention, therefore, the question of morality or public morality as a possible ground for justifying any limitations.16 Nor did the members of the Committee pay much attention to the issue during the meetings. It seems that they took it for granted that human rights should be limited in their exercise and no one rejected, in particular, the idea that morality was among the valid reasons to limit the exercise of rights. Thus the Report presented by the Committee to the Assembly states that: 14. After having drawn up the list of the rights and freedoms which should be guaranteed, the Committee approved the principle of international law according to which each State reserves the right to organize the exercise within its territories of the guaranteed freedoms (Art. 4), but it also formulated the principles by which this right is to be governed: a) prohibition of any arbitrary discrimination (Art. 5); b) prohibition of any restriction on a guaranteed freedom for motives based, not on the common good or general interest, but on reasons of State (Art. 6).17 Accordingly, the Draft Convention produced by the Committee includes a provision quite similar to Article 3 of the European Movement’s Draft: Article 6 In the exercise of these rights, and in the enjoyment of the freedoms guaranteed by the Convention, no limitations shall be imposed except those established by the law, with the sole object of ensuring the recognition and respect for the rights and freedoms of others, or with the purpose of satisfying the just requirements of public morality, order and security in a democratic society.18 We should notice that the expression “morality” used both in the Universal Declaration and in the European Movement’s Draft was replaced here by the new expression “public morality”. There is no evidence in the preparatory works, however, showing the reasons for this change or if it was deemed relevant. Moreover, the French official version used the word “morale” (morality), without the qualification “publique”.

Greece which bears some relation to the subject-matter: “…the freedom and safety of human persons, by reason of their very universality and interdependence, have, as a necessary corollary and front line the freedom and security of one’s neighbour… Speaking generally every right implies as an indispensable, inseparable, irrefutable corollary, a corresponding duty which is inherent in law. Otherwise the right is only theoretical; indeed, it offers a prize to those who violate it.” Ibid., vol. I, 108. 16 Ibid., 156–62. 17 Ibid., 222. 18 Ibid., 230 (emphasis added).


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What I said about the lack of references to the concept of public morality in the Committee’s discussions applies equally to the Assembly’s debates. Nevertheless, we should be aware that during the general debate, Teitgen asserted that the limitation clause proposed in Article 6 was “of capital importance”: This is a fundamental principle. It is legitimate and necessary to limit, sometimes even to restrain, individual freedoms, to allow everyone the peaceful exercise of their freedom and to ensure the maintenance of morality, of the general wellbeing, of the common good and of public need. When the State defines, organizes, regulates and limits freedoms for such reasons, in the interest of, and for the better insurance of, the general well-being, it is only fulfilling its duty. That is permissible; that is legitimate.19 There [in Article 6] it is stated clearly that the State may define, limit and restrain such freedoms, when public order and security are threatened. There can be no conceivable freedom at the expense of the common interest, the common good, and the order and security of the citizen.20 He added that the representative of Norway was the one who had proposed in the Committee the inclusion of this provision.21 The particular debate about Article 6 was brief and there was hardly any discussion.22 It was approved in the same terms that the Assembly’s Committee had proposed. Thus the corresponding Recommendation 38 to the Committee of Ministers of the Council of Europe included the concept of public morality in its Article 6 with the text as quoted above.23 The next chapter in the history of the European Convention was the meeting of the legal experts convened in February 1950 by the Committee of Ministers. Since reports of their discussions were not made at that time, we do not know much about it. With respect to Article 6, we know that the expert of Luxembourg proposed unsuccessfully an amendment intended to give the clause an affirmative rather than a restrictive meaning: In the exercise of these rights, and in the enjoyment of the freedoms guaranteed by the Convention, limitations may be imposed by law with the object of ensuring the recognition and respect for the rights and freedoms of others, and with the purpose of satisfying the just requirements of public morality, order and security in a democratic society.24

19 Ibid., 278. 20 Ibid., vol. II, 32. 21 Ibid., 176. Teitgen only mentioned this incidentally while he was addressing a different question and there are no further materials in the travaux préparatories regarding the Norwegian representative’s proposal. 22 Ibid., 142. 23 Ibid., 278. 24 Ibid., vol. III, 194 (emphasis added). For the rejection of the amendment, see ibid., 202.

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At the early stages of the meeting the experts produced at least two preliminary drafts following the method of the Assembly of having one general limitation clause, which had substantially the same content.25 But, as we already have explained, since some of them did not share this methodology, the experts presented two alternatives. The first one was an improved version of the Assembly’s draft and it reproduced its Article 6, including the wording “public morality” (although the French version kept on using the expression morale without qualification). The second one, instead, contained a detailed definition of the rights and their particular limitations. The new attached limitation clauses included “the protection of health or morals” as a valid ground for restricting some rights.26 So we can see a shift in the wording: from “public morality” to “morals”; and “morals” are here linked with “health”. Again there is no evidence available of the reasons for this change. I should point out, too, that the French official version of this draft used the same word—morale—that had been used in an earlier draft where the English version talked about public morality. The last relevant episode in this saga is the Conference of senior officials. The second view finally prevailed in their draft. At this point, then, we lose forever the kind of general disposition that had been present in the Universal Declaration (Art. 29), in the European Movement’s draft (Art. 3) and in the Assembly’s draft (Art. 6). The same principle of the limitation of rights and its valid grounds would now be present but in a different way, spread out in different clauses.27 And with the change in the wording that we had detected in the second alternative presented by the experts. This methodology was not altered in the successive stages of the history of the Convention that have been illustrated above. IV. Conclusions This inquiry has led me to a general conclusion that I have already implicitly suggested: the preparatory materials for the European Convention do not really clarify the concept of morals embraced by the Convention in several articles. We do not find in any of the stages of the drafting of the treaty any significant elaboration or discussion regarding that concept. Furthermore, the few explanatory references to it during the debates, which I have quoted above, were not contested at all. Rather, the members of the different bodies that participated in the preparation of the Convention were concerned with more urgent questions, such as the possibility of creating an international court for the protection of human rights. These reasons indicate, I think, that there was among the drafters an implicit consensus that the protection of (public) morals was a valid ground to restrict rights. But they shed

25 Documents 809 and 833, of February 1950. See, ibid., 220 et seq. and 236 et seq. 26 In the case of the right to freedom of thought, conscience and religion, the wording is slightly different: “protection of public order, health or morals”, ibid., vol. IV, 62. 27 See Arts. 6(1) and 8 to 11 of the draft, ibid., 274 et seq.


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little light, if any, on the content of the concept of (public) morality that they appropriated. I have already pointed out some differences in the wording used at each of the stages that we have studied: morality, public morality, public morals, and morals, were the variations. The text finally approved uses the last two.28 There is nothing in the preparatory works of the Convention, however, that could allow anyone to argue that the successive drafters attributed a different meaning to those expressions. On the contrary, unlike what happened with other issues that were highly controversial, they did not seem to care much about the wording in this case. The fact that on some occasions the French official version did not vary its vocabulary while the English did supports this hypothesis. Of course, this is not to say that, for example, “public morality” and “morals” convey the same meaning regardless of context. Nor that the qualification “public” adds nothing to “morality” or “morals”. The only conclusion here is that on this point the travaux préparatories remain substantially silent. Finally, we have noticed that the earlier versions used a general limitation clause while the newer, which finally prevailed, attached a limitation clause to each right. But this is only a difference in the legislative technique: the existence of legitimate restrictions to the exercise of rights—which include the protection of (public) morality— is common to both. Therefore, the difference does not yield any relevant consequences for our inquiry.

28 See Arts. 8 to 11. Only Art. 9 uses the expression “public morals”, according to the reading suggested above, section I of this paper. See also Art. 6(1) which allows that the press and public may be excluded from a trial in the interest of morals, public order or national security.

17 International legal issues arising in the Kosovo crisis* Vaughan Lowe

As is the case in all international crises, it is possible to identify a wide range of questions of international law that have arisen during the course of the Kosovo crisis. Of these, two are in my view of particular importance; and it is with these two that this memorandum is concerned. They are (1) the question of the right of humanitarian intervention, and (2) the question of the selection of targets for military attack. I. Humanitarian intervention I.A. The general position in international law Kosovo was not and is not a sovereign State. The conflict between Kosovo and Belgrade was a matter internal to one State, the Former Republic of Yugoslavia. The NATO military action in Kosovo, Operation Allied Force (26 March–10 June 1999),1 was plainly an armed intervention in a foreign State, and an intervention in its internal affairs. It was a prima facie breach of article 2(4) of the United Nations Charter, which prohibits “the threat or use of force against the territorial integrity or political

*

1

In 1999, the House of Commons Foreign Affairs Committee in the United Kingdom invited a number of international lawyers to submit papers on the legal aspects of the Kosovo crisis. The following paper is that which I submitted, reprinted here at the invitation of the editors of this Festschrift and with the permission of the Foreign Affairs Committee. No changes have been made, except that section numbers and some punctuation marks have been added in order to conform with the style used in this volume. In addition to the points discussed in the paper itself, the consideration of the papers by the Foreign Affairs Committee gives rise to two questions of great interest. First, when a State acts, may it (re)write the opinio juris afterwards? Second, if the Executive and Parliament differ as to the correct or desirable justification for an action, whose view of the opinio juris is to prevail? In my view the answer to the first question must be, yes. International law is concerned with reasons for action, not motives for action; and reasons may well be most clearly and definitively articulated after the event. The second question goes to the heart of the debate over the control of foreign affairs; but it is difficult to see how international law, when assessing the significance of Britain’s actions, can ignore the opinio juris of those who control those actions. The dates given by NATO: see . 278

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independence of any State”. That prohibition was reinforced in the context of Kosovo by the legal duty of NATO (and all other) States not to interfere in civil strife in another State. Even in cases where the civil strife is the result of the use of force by groups within a State in order to achieve self-determination, the general view is that while States are certainly obliged not to assist those using force to deny the right to self-determination, neither may States assist those who are using force to assert the right. As an exception to the general prohibition on the use of force, the United Nations Charter permits the use of force in two circumstances: first, in self-defence; and second, with the authorisation of the Security Council. Neither provided a justification for the NATO bombing campaign. I deal with each in turn. The right of self-defence is set out in article 51 of the Charter, which states that Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. There was no element of individual or collective self-defence on the part of the NATO States, and the character of the NATO campaign was clearly not that of a defensive action. The purpose of self-defence, and the limit of the right to use force in self-defence, is the prevention of harm to the “defender” from an armed attack. There was no “armed attack”, or anything close to an armed attack, upon a NATO State, such as would have provided a justification for the bombing campaign under article 51. Proposals have been made within the North Atlantic Assembly that the scope of the right of self-defence should be extended to include the “defence of common interests and values, including when the latter are threatened by humanitarian catastrophes, crimes against humanity, and war crimes” [North Atlantic Assembly, Resolution 283, Recasting Euro-Atlantic Security: Towards The Washington Summit, November 1998, paragraph 15(e)]. International law does not yet extend so far; and I think that it is unwise to seek to change international law in this direction. It would open the door to the justification of intervention in States for the “protection” of all manner of shared moral, cultural and political values under the pretext of self-defence; and as self-defence is a clear right in international law, it would be difficult for the international community to impose effective constraints upon its exercise. The second exception in the UN Charter to the prohibition on the use of force is that which permits the use of force with the authorisation of the Security Council. States, directly and acting through regional arrangements or organisations such as the OSCE and perhaps NATO (the doubt arises from NATO’s limited purpose as a collective self-defence arrangement, focused on article 5 of the NATO treaty), may be utilised by the Security Council for the maintenance of peace and security, under the terms of articles 48 and 53 of the UN Charter. But article 53 specifically provides that “no enforcement action shall be taken under regional arrangements or by regional

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agencies without the authorisation of the Security Council”. It is clear that the nondefensive use of armed force without the consent of the State in which it is deployed constitutes “enforcement action”. The Security Council resolutions concerning Kosovo, however, stopped short of authorising this use of force. Resolution 1199 (1998), adopted by the Security Council at its 3930th meeting on 23 September 1998, stated that the Council had decided, “should the concrete measures demanded in this resolution and resolution 1160 (1998) not be taken, to consider further action and additional measures to maintain or restore peace and stability in the region.” The Security Council was plainly asserting its continuing responsibility for the crisis. So, too, in Resolution 1203, adopted on 24 October 1998, the Council recorded its decision to remain seised of the matter. Neither resolution authorised military action by NATO. Operation Allied Force cannot be justified on the basis of Security Council authorisation. Indeed, it is only in recent years that the Security Council has asserted that it possesses any competence in relation to what are, at least initially, internal disputes within States. Article 2(7) of the UN Charter provides that “nothing in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State…” Not until the 1990s, in its responses to the crises in Somalia, Iraq, Haiti, Rwanda and the Balkans, did the Security Council assert that certain situations internal to a State may be so grave as to threaten international peace and security and accordingly engage the competence of the Council, including its right to authorise the use of force under Chapter VII of the UN Charter. But there was no such authorisation given to NATO for Operation Allied Force. The analysis of the text of the UN Charter, therefore, yields no clear legal justification for the NATO action. On the contrary, it suggests that the action was unlawful. The question is whether there is any further right to use force, such as would justify the NATO action. I.B. NATO’s justification of Operation Allied Force The legal justification offered by NATO itself is one of some subtlety. Many commentators have suggested that international law should admit a right to use force in another State without the authorisation of the Security Council, when it is necessary in order to prevent massive and grave violations of human rights. This is what is known as the right of humanitarian intervention, though it is a very controversial matter and few lawyers would claim that the “right” is at present clearly established in international law. In fact, two issues are wrapped up in the concept of such a right. The first is the substantive question of the criteria upon which it may be judged lawful to intervene. The second is the procedural question of the manner in which it is to be determined whether those criteria are met. Proponents of the right of humanitarian intervention have tended to concentrate on the substantive question; but the NATO justification shrewdly locked the two issues together.


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The Secretary of State for Defence, Mr Robertson (as he then was), set out the Government’s position concerning the multinational NATO intervention in Kosovo, in a statement made to the House of Commons on 25 March 1999: We are in no doubt that NATO is acting within international law. Our legal justification rests upon the accepted principle that force may be used in extreme circumstances to avert a humanitarian catastrophe. Those circumstances clearly exist in Kosovo. The use of force in such circumstances can be justified as an exceptional measure in support of purposes laid down by the UN Security Council, but without the Council’s express authorisation, when that is the only means to avert an immediate and overwhelming humanitarian catastrophe. UN Security Council resolution 1199 clearly calls on the Yugoslav authorities to take immediate steps to cease their repression of the Kosovar Albanians and to enter into a meaningful dialogue, leading to a negotiated political solution. [Cols 616–617]. That statement is a useful epitome of the position that was, as I understand it, adopted by NATO and its member States. The statement relies upon two elements: the prior prescription of policies or “purposes” by the United Nations Security Council, and the existence of an imminent humanitarian catastrophe that can, and can only, be averted by the use of force. It is not an assertion of a simple right of humanitarian intervention. The crucial differences between this approach and simple humanitarian intervention need to be emphasised. First, the right to act is not a unilateral right, under which each and every State may decide for itself that intervention is warranted. The statement does not assert that States have the right to intervene using force in circumstances where there has been no prior determination of the gravity of the situation by the Security Council. The prior decision of the Security Council is asserted as a key element of the justification. Although the Security Council had not authorised the use of force in Kosovo, it had determined that the situation there constituted a threat to international peace and security and so made the determination that is the essential precondition under the UN Charter to the authorisation of the use of force by the Security Council. Second, it is not asserted that the right is unlimited. The right is to take action “in support of purposes laid down by the UN Security Council”. Conversely, any action whose objectives (in so far as they can be defined with any precision) went beyond the Security Council’s stated purposes, as set out in its resolutions on Kosovo, would not be justified by the principle advanced by the Secretary of State. (In addition, it is clear that the right was understood to be subject to the requirements of proportionality and so on, which as a matter of international law constrain all uses of force.) Third, it is not every “purpose” of the Security Council whose enforcement may be sought by the use of force in this way. In the Secretary of State’s statement it was the existence of the impending humanitarian crisis, which had itself been the subject of explicit reports to and determinations by the Security Council (for example, in Resolution 1203), that was said to justify the taking of action by NATO. The statement

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does not assert that NATO would have been justified, in the absence of Security Council authorisation, in taking any action at all if there had not been an imminent humanitarian crisis. It would be very difficult to adduce convincing evidence that the “right of intervention” asserted by the Secretary of State is already clearly established as a rule of international law. Most international lawyers would in my view say that it is not, and that the NATO action lacked a clear legal justification. Indeed, at various stages of the crisis representatives of some NATO States seem to have revealed a lack of confidence in the legal justification. Foreign Minister Kinkel, for example, is reported to have said that the NATO action “must not become a precedent. As far as the Security Council monopoly on force is concerned, we must avoid getting on a slippery slope.” Secretary of State Albright is reported to have adopted a similar position. But if the action was lacking legal justification at the time that it was taken, what now is the best policy? Should the use of force in Kosovo be treated as an anomaly, demanded by the exigencies of the situation? Or should it be treated as an instance of an emergent and exceptional right to humanitarian intervention? I.C. How should international law develop? International law is not a static system. It can change. States may make a treaty setting out new rules to cope with the changing demands of international life. If they do, the States that are parties to the treaty will be bound by the rules set out in it, but non-party States will not. It is unlikely that there is either an international consensus on what the law regarding humanitarian intervention should be, or even any substantial support for the convening of a conference to seek such a consensus. No treaty on the matter is likely within the near future. The alternative is for international law to develop by changes in customary international law, which binds all States. New rules of customary law emerge when a consistent practice is followed or acquiesced in by States in general, with the belief that the practice is applying a rule of law and is not simply a matter of convenience or discretion. For a right of humanitarian intervention to emerge it would have to be shown that States do in fact intervene, or approve intervention by others, and that they consider the interventions to be the exercise of an articulated legal right of humanitarian intervention. (Like law-making in all customary law systems, this process seems to pull itself up by its own bootstraps; but the process has been well established in the international legal system for upwards of two centuries.) The attitude of the NATO States to Operation Allied Force is, therefore, very important. If they assert that the action was the exercise of a legal right, they help to lay the foundations of a legal rule that would entitle all States to act similarly in comparable situations. On one view, this possibility is best avoided because of the dangers of abuse. The NATO action should, it is said, be regarded as an act of doubtful legality which had a clear moral and political justification. The moral and political justifications of the action are of course of the utmost importance. If this memorandum appears to focus


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its attention elsewhere, that does not indicate any doubt that actions such as Operation Allied Force must ultimately have a moral justification: no State is morally justified in forcibly intervening in another State simply because it may be legally entitled to do so. But the purpose of this memorandum is to explore the main issues of legal principle, not the broader issues of morality and policy; and in that regard, some say that it is unwise to seek to change the established principles of law in order to accommodate one difficult moral case. That is not a view that I share. From the legal perspective what may appear at first sight to be wise caution in not seeking to modify the rules on the use of force may come on closer analysis to seem less prudent. If the Kosovo campaign is labelled by NATO States as an action sui generis that is not to be regarded as a precedent for future actions, it will surely come to be regarded by other States as a precedent for the use of force by any State in circumstances which are said to be sui generis and not to constitute precedents for future actions. Other States and other regional organisations may assert a similar right to use force, without Security Council authorisation, and perhaps in circumstances where the NATO and the rest of the international community do not consider the use of force to have the moral justification that the general international toleration of Operation Allied Force suggests existed in relation to Kosovo. One has only to recall the Soviet interventions in Czechoslovakia and Afghanistan, and the US interventions in Cuba and Grenada, for instance, to be able to generate examples of such circumstances. It is in my view preferable to seek to define with some precision the criteria that were considered to justify the NATO action. Better to define a narrow principle and have it invoked by others than to act on the basis of no principle and encourage unprincipled action. I.D. A right of humanitarian intervention? The elements in the Secretary of State’s formulation of the principle may be set out as follows: • prior determination by the Security Council of a grave crisis, threatening international peace and security • articulation by the Security Council of specific policies for the resolution of the crisis, the implementation of which can be secured or furthered by armed intervention • an imminent humanitarian catastrophe which it is believed can be averted by the use of force and only by the use of force • intervention by a multinational force. Each of those elements is of the highest importance. If the Security Council is denied a determinative role, the only body charged with world-wide responsibility for the maintenance of peace and security will have been consciously excluded from the process of legitimating the use of force. The

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result would almost certainly be the increasing fragmentation of the international community into regional groupings; and at a time when old groupings are breaking up and new ones being formed, and the old balances of power between States are in a state of flux, the outcome of any such fragmentation is not predictable. While some may argue that, on the basis of a simple head-count, the nineteen NATO democracies ought to be better placed to legitimate the use of force than the fifteen States, of mixed political complexions, that happen to be in the Security Council at any given time, the unique authority of the Security Council as the guardian of peace and security on behalf of the entire international community cannot be denied. The Security Council began to be a credible body in the 1990s: it would be foolish to consign it to the sidelines at the very time that it is beginning to prove itself able to work out ways of discharging its responsibilities. The limitation of the action to the purposes set by the Security Council reflects the acknowledgement of the primacy of the responsibility of the Council for the maintenance of peace and security, and emphasises that the action is undertaken not for the benefit of, or as a unilateral exercise of the individual rights of, the intervening States but rather is action taken on behalf of the international community. The practice of prompt and frequent reporting to the Security Council on action taken underlines this aspect of the justification, and offers a valuable alternative to the more cumbersome device of “dual control” of military operations by the intervening States and the Security Council. The delays and difficulties in implementing dual controls during the Bosnian crisis were widely considered to have compromised the effectiveness of military action. Reporting acknowledges that the interveners are answerable to the Security Council, itself acting on behalf of the international community, for their actions. The requirement that there be an imminent humanitarian catastrophe is also important. It is the acknowledgement of the need for some exceptional factor to justify States in acting without waiting for Security Council authorisation. It provides the moral justification for unilateral intervention. The requirement is, however, beset by difficulties. Most obviously, in order that the scale and imminence of the catastrophe be clearly established, the criterion itself requires States to stand to one side in the early stages of a conflict while grave violations of human rights occur. States will be asked how many people must die before action is justified (though numbers cannot be the only factor: the duration, methods and targets of the violence, and the clarity of the evidence implicating the authorities of the target State, must also be taken into account). States will be asked why they have not intervened in the instant case while they did in another. Those questions are poignant, and it is difficult to frame an answer that will satisfy critics. But that is because the criterion is a difficult one, not because the criterion is wrong. The prohibitions on the threat or use of force against other States and on intervention in their domestic affairs are essential to the maintenance of the sovereignty and independence of States. Without them, the right of each State to choose its political, economic and cultural systems could not be maintained. The use of force in international relations, without the consent of the State in which it is used and without the authorisation of the one body that the international community has empowered to authorise uses


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of force, should not be undertaken except in the most exceptional cases. Internal disorder and civil war do not of themselves warrant outside intervention. If they did, the right of governments to tackle internal disorder, and of peoples to determine their own future free of outside interference, would be sacrificed. Regional powers could assert a right to impose their own solutions whenever they considered there to have been repression or a breach of human rights within a State. Difficult and uncomfortable as it might be, it is in my view correct to insist that States do stand aside while violence occurs within another State, until it reaches a point where the scale of the violence demands that the principles on the use of force and on the sovereign equality of States be overridden by exceptional rights of intervention. It is also important not to lose sight of the importance of persisting with the search for a negotiated solution, and of the need to keep the role of intervention clear. If the purpose of intervention is to induce, or compel, the authorities in the target State to accept the terms of a particular “peaceful” settlement, the military action would, or at least should, have a character different from that which it would have if the purpose of the intervention is to impose a military solution. While it is not made explicit in the part of the Secretary of State’s statement quoted above, it must be remembered that the NATO action was multinational, and taken within a diplomatic matrix including NATO, the OSCE, and the UN. While it may be easy for States to remain silent in the face of threatened intervention by a powerful State in a region, actual participation in the intervention is a very different matter, unlikely to be undertaken unless the intervention is considered to be justified. Confining the precedent to multilateral humanitarian intervention offers a further (albeit fallible) safeguard against the use of humanitarian intervention as a cloak for oppressive intervention by regional superpowers. I think it desirable that a right of humanitarian intervention, within the limits described above, be allowed or encouraged to develop in customary international law. No one, no State, should be driven by the abstract and artificial concepts of State sovereignty to watch innocent people being massacred, refraining from intervention because they believe themselves to have no legal right to intervene. If armed forces are not used in these circumstances, one wonders what point there is in maintaining them. There is little point in seeking to accelerate the process by drafting a convention on the question. As was remarked above, there is no reasonable prospect of consensus on the definition; and even if it were possible to draft a text there is no reason to suppose that States would wish to ratify and become bound by such a convention. Moreover, the international community is at the early stages of developing multilateral mechanisms for responding to humanitarian crises. A convention at this time might arrest the development of thinking and practice in this field. It is preferable to allow experience to accumulate, and to reflect upon its lessons, allowing the emergence of the right in customary international law. In summary, in my view there was no clear legal justification for the NATO action in Kosovo, but it is desirable that such a justification be allowed to emerge in customary international law. That justification should be limited by the criteria

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adopted in the Secretary of State’s statement to the House of Commons on 25 March 1999. II. Targeting The second major issue arising from the Kosovo crisis is the question of the selection of military targets. The deliberate targeting of certain facilities, such as broadcasting stations, bridges and electricity supply facilities, has been criticised and alleged to violate the limitations imposed by international law upon the conduct of hostilities. The basic principle of international law is clear. It is conveniently expressed in article 52 of Additional Protocol I (1977) to the 1949 Geneva Conventions:

Article 52—General Protection of civilian objects 1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2. 2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage. 3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. Contemporary warfare admits of no clear distinction between civilian and military targets. Practically all factories can, no doubt, be turned to the manufacture of some item of equipment useful for the armed forces. Petrol, food, and clothing are as essential for armed forces as for the rest of the population. With the exception of hospitals, places of worship and education, and cultural sites (as long as they have not been diverted for military use), practically all other facilities in a modern State are dual-use facilities, as valuable to the armed forces as to civilians. The use of broadcasting facilities for the transmission of military information, for example, clearly marks those facilities out as legitimate military objectives, even though they may appear to be civilian facilities. But even when they are transmitting only, or primarily, to civilian audiences, broadcasting stations can play a powerful role in promoting or sustaining the war effort. It is, for example, notable that the earliest targets in any armed coup usually include broadcasting studios. Control of the media is an indispensable element in control of the State. If it could be shown that the studios in the former Yugoslavia were making a contribution to the war effort, by inciting continued violence against ethnic Albanians in Kosovo for example, that would open up the possibility that attacks upon them were justified. If it could


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be shown that fewer deaths, less injury and less damage would be caused by attacking them than by allowing them to continue to make their contribution to the war effort, the attacks would be justifiable as a matter of international law. This reasoning is, however, problematic. It may be difficult to justify attacks on such facilities without compromising sources of secret intelligence. It may be even harder to explain targeting strategy by publicising intended targets and the reasons for their inclusion on the list without compromising the effectiveness of the military operation. And there is no way in which speculation on net savings in terms of lives and damage can be proved correct or incorrect. Nor is there any practical way of quantifying suffering. What weight, for instance, should be put on the additional terror caused by taking the war beyond Kosovo to suburban Yugoslavia? What weight does one attach to the pressure that one supposes was brought to bear on the Milosevic government by bombing bridges or cutting electricity supplies? These points are made in order to establish a broader point. Whatever the legal limitations upon targeting, as long as it remains legitimate to target facilities that make a contribution to the war effort it is practically impossible to improve upon the existing formulation of the legal principle set out in article 52 of Additional Protocol I. The problems arise not from the law, but rather from the making of factual judgments in concrete cases on the application of a perfectly clear rule, often on the basis of dated and incomplete information, to the facts. If force is to be used at all, there must surely be a common interest in using as little force as is possible to achieve the objectives set. Put another way, the common objective must be to use force as effectively and efficiently as possible. Pursuit of that objective will often, perhaps usually, be enough to ensure that targets that make no contribution to military action are not attacked. However, in circumstances where one of the aims of military action is to overthrow an incumbent government, not by defeating it militarily but by inducing the population of the State to rise up against it, these constraints may not be effective. It might be thought that a popular uprising can be provoked by making life for the population difficult and unpleasant, in the hope that the population will blame the government of the State for their problems. If that were so, the military objectives themselves would inevitably tend to undermine attempts to distinguish between military and non-military targets. (I am not asserting that this was necessarily the case in the Kosovo action. The point is made in order to address a widespread popular concern that stemmed, no doubt, largely from the fact that news coverage showed a good deal of destruction of what many think of as ordinary urban facilities and much less of the destruction of the tanks and rockets that are the popular epitomes of military targets.) The thinking behind the strategy of seeking to displace foreign regimes by inducing popular uprisings is no doubt complex. One element may be the thought that a popular uprising is likely to avoid creating a power vacuum in the State. Another may be the thought that, compared with a direct military attack on the foreign regime, it is more consistent with international law duties of non-intervention and rights of self-determination, than is a direct military attack on the regime itself. In

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any event, it is a strategy that would benefit from open debate. I do not believe that international law can dispel the suspicion of confusion over the legitimacy of targets in the context of such a strategy. It is fundamentally a problem demanding the explanation of the moral, political, and military justifications for the selection of targets. III. Concluding remarks It is likely that many specific difficulties in the detailed application of international law arose during the Kosovo crisis. Some of those may have caused serious operational difficulties. Such specific matters may, indeed, have a practical importance as great as the broader principles discussed in this memorandum. For example, the definition and implementation of rights to visit and search foreign ships bound for the coasts of a State against which force is being used is an area that has caused difficulties in past conflicts, in the Gulf and elsewhere, that have not yet been resolved. It would be paradoxical, for instance, if oil tankers were allowed to deliver cargoes bound for the former Yugoslavia at a time when NATO was bombing refineries in order to cut off oil supplies. No doubt the lawyers in the armed services have been asked to make a submission on these operational issues. I do not discuss them here; but they deserve the most serious consideration.

18 Content and contours of genocide, crimes against humanity, and war crimes* Jordan J.Paust

This chapter focuses on three significant types of international crime that too often occur during, but which are not all restricted to, various forms of social violence: genocide, crimes against humanity, and war crimes. The chapter provides merely selective commentary on various aspects of these crimes, including definitions, other substantive aspects, and observations concerning various trends and limitations in application of relevant legal instruments. Particular attention is also paid to recent trends in coverage of these crimes under statutes of international criminal tribunals, including the tribunal on which Judge Li Haopei served, the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the International Criminal Court (ICC). The end of the chapter includes attention to standards of leader responsibility for such crimes, universal jurisdiction, non-immunity, and possible sanctions. I. Genocide Genocide, like other crimes against humanity, can occur during times of relative peace through all forms of social violence, including armed conflict. The definition of genocide contained in Article II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide1 is part of customary international law and the prohibition of genocide is also recognized jus cogens or peremptory international law.2 Genocide involves a specific intent found within the definition, i.e., the targeting of persons because they are members of a certain group. Targeted groups covered by the definition are “national, ethnical, racial or

* 1 2

This chapter was completed in July 1999. 78 UNTS 277. See, e.g., J.Paust, M.Cherif Bassiouni, et al. (eds.), International Criminal Law (1996), 1081–82, 1109; J.Paust, Congress and Genocide: They’re Not Going to Get Away With It, 11 Michigan JIL 90, 90– 94 (1989). The latter cite also demonstrates that present U.S. legislation on genocide does not comply with Articles I and V of the Convention. Further, the U.S. has no legislation on crimes against humanity as such. War crimes legislation is of two types: (1) 10 U.S.C. §§ 818 and 821, plus 18 U.S.C. § 3231, as noted in Paust, Bassiouni, et al., supra, 215–32, and (2) the War Crimes Act of 1996, 18 U.S.C. § 2401, which is severely limited in scope and would not itself comply with Geneva Convention obligations to enact needed legislation. 289

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religious” groups, but customary international law may have developed to include the targeting of political groups.3 In any event, when there are mixed motives for targeting a person (e.g., including political orientation), but the person is targeted partly because she or he is a member of a national, ethnical, racial or religious group, prosecution for genocide can be appropriate.4 Moreover, certain political targetings can constitute crimes against humanity or war crimes. The definition of genocide contains no limiting words such as “widespread” or “systematic.” Thus, genocide can occur with the specific intent to destroy a small number of a relevant group, i.e., an intent to destroy merely “part” of a relevant group by certain acts listed within Article II of the Convention. Successful counts or prosecutions of crimes against humanity, of which genocide is a species,5 have involved relatively small numbers of victims.6 Recent definitions of genocide in the statutes of the two ad hoc international criminal tribunals (the ICTY and the International Criminal Tribunal for Rwanda [ICTR]) and the newer “Rome” Statute for the permanent International Criminal Court (ICC)7 mirror the customary definition of genocide. As long as the customary definition is adhered to, there will be no lapses in coverage under the statutes. II. Crimes against humanity In sharp contrast, coverage of crimes against humanity under statutes for the ICTY, ICTR, and ICC are severely limited in their reach and do not reflect customary international law evidenced in earlier instruments addressing crimes against humanity [hereinafter referred to as the customary instruments].8 For example, none of the

4 5 6 7 8

3 See, e.g., Paust, Bassiouni, et al., above n. 2, 1035, 1087 and n.2, also noting that “political” groups had been included in a 1946 General Assembly resolution. See, e.g., id., 1095. See, e.g., id., 1033, 1036, 1041, 1043–46, 1050, 1054–55, 1062, 1077, 1085. See, e.g., id., 1054, 1077 and n.*; and the next section regarding crimes against humanity. Rome Statute adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 17 July 1998, reprinted in 37 ILM 999 (1998). The Rome Statute for the ICC expressly notes that coverage of international crimes is limited. For example, Article 5 (1) expressly states that “jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole.” Thus, not all international crimes are covered. This point is reiterated by implication in Article 10, which declares: “Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing…rules of international law for purposes other than this Statute.” Since the relevant part of the Statute addresses the crimes of genocide, crimes against humanity, and war crimes, with the crime of aggression left for further definition, it is evident that definitions and/or lists of the three general crimes addressed in the Statute are not meant to completely cover each form of international crime addressed or to change customary international law. Article 22 (3) similarly affirms that application of the article “shall not affect the characterization of any conduct as criminal under international law independently of this Statute.” More specifically with respect to crimes against humanity, Article 7 (1) begins with the phrase “[f]or purposes of this Statute, ‘crime against humanity’ means…”, thus further implying that coverage is limited. These points are significant, since the definitions and/or lists of crimes against humanity and war crimes within the jurisdictional competence of the ICC are quite limited and thus do not cover all such crimes.

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customary international instruments contain the limiting words “widespread” or “systematic,” nor does the definition of genocide, which is a species of crimes against humanity.9 Some customary instruments, like Article 5 (c) of the Tokyo Charter for the I.M.T. for the Far East10 do not even contain the limiting phrase “against any civilian population,” which can be found in other customary instruments such as the Charter for the I.M.T. at Nuremberg11 and Control Council Law No. 10.12 However, the first paragraph of Article 7 of the Rome Statute for the ICC contains the limiting condition “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Also, a Trial Chamber in the ICTY strangely went far beyond its statute to limit coverage of crimes against humanity defined therein to require acts directed against a civilian population, that are organized and systematic, and that are of a certain scale and gravity.13 Article 7 (2) (a) of the Rome Statute provides an even more limiting and an illogical definition of “attack” as “a course of conduct involving the multiple commission of acts.” Clearly, an “attack” can otherwise involve a single act. The limitations are compounded by an additional requirement in Article 7 (2) (a) that a covered attack be engaged in “pursuant to or in furtherance of a State or organizational policy.” Thus needlessly excluded are customary crimes against humanity perpetrated by: (a) governmental actors whose crimes are not “pursuant to or in furtherance of” a State or organizational policy, (b) private unorganized actors, and (c) private actors who do not act pursuant to or in furtherance of a State or “organizational” policy.

legal qualification of the conflicts in the former Yugoslavia

9 See, e.g., Paust, Bassiouni, et al., above n. 2, 1030–31, 1035–38, 1054–62; J.Paust, Threats to Accountability After Nuremberg: Crimes Against Humanity, Leader Responsibility and National Fora, 12 NY Law School JHR (1995), 547; I.Cotler, International Decisions: Regina v. Finta, 90 AJIL (1996), 460; L.Wexler, The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again, 32 Columbia JTL (1994), 289; Prosecutions for Crimes Against Humanity in French Municipal Law: International Implications, 97 ASIL Proceedings (1997), 270, 271–73 and n. 13. Perhaps believing that the broad definition of crimes against humanity in the Nuremberg Charter was refined by the International Military Tribunal at Nuremberg, the ILC added some substantially limiting elements in its definition in Article 18 of its 1996 Draft Code of Crimes Against the Peace and Security of Mankind. See ILCYB (1996) (Article 18 and commentaries thereto). However, these limits and phrases do not appear in the customary instruments, in even earlier practice and opinio juris, or in the Judgment of the International Military Tribunal at Nuremberg with respect to individual crimes against humanity under Count Four, although Count One had addressed a separate international offence involving a common plan or conspiracy to commit, among others, crimes against humanity. 10 Charter for the International Military Tribunal for the Far East (19 Jan. 1946), TIAS No. 1589, portion reprinted in Paust, Bassiouni, et al., above n. 2, 1035. 11 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis (London Agreement), Annex (8 Aug. 1945), 82 UNTS 279, portion reprinted in id., 712–13. 12 Control Council Law No. 10 (Punishment of Persons Guilty of War Crimes, Crimes Against Persons and Against Humanity) (20 Dec. 1945), Doc. No. I.37, portion reprinted in id., 1031. 13 See, e.g., Paust, Bassiouni, et al., above n. 2, 1079, addressing The Prosecutor v. Nikolic, IT-94–2-R61 (20 Oct. 1995), para. 26.

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Article 7 (1) (h) of the Rome Statute for the ICC concerning persecution is also severely limited. Instead of addressing persecutions of persons, like the customary instruments, it addresses persecution “against any identifiable group or collectivity.” Perhaps the targeting of a few members of a relevant group will suffice as persecution “against any identifiable group,” but the persecution will also have to be part of either a widespread or systematic attack directed against a civilian population. One extension of express coverage found in the ICC concerning persecution involves the expansion of listed groups in Article 7 (1) (h) from customary documents identifying political, racial, or religious targeting14 to expressly include national, ethnic, cultural and gender targeting as well as targeting on “other grounds that are universally recognized as impermissible under international law, in connection with” persecution “or any crime within the jurisdiction of the Court.” The express extension partly reflects forms of discrimination found within the definition of genocide, a type of crime against humanity, and developments in customary human rights law more generally.15 Under customary international law, the actual number of direct victims of crimes against humanity has in some cases been relatively small.16 The quick massacre of a village containing a targeted ethnic minority or the single use of bacteriological agents to attack those attending an enemy soccer event is certainly sufficient under customary international law. Under customary law, it is not a defense to a particular crime that is was not “widespread” or “systematic.” Also under customary international law, there are two basic types of crimes against humanity.17 Article 7 (1) of the Rome Statute fuses the two together, making the second basic type—persecution—merely applicable in circumstances pertaining to the first type, i.e., when acts are committed as part of an “attack directed against any civilian population.” Use of the phrase “population,” therefore, is limiting of the customary reach of the crime of persecution. Additionally, the phrase “against any identifiable group or collectivity” found in Article 7 (1) (h) is limiting of the reach of customary international instruments to persecutions of persons who may not be part of a group or collectivity. Thus, the International Criminal Court’s jurisdiction will not reach all crimes against humanity and some will have to be prosecuted in national or new regional tribunals.

14 See, e.g., id., 1029 (Charter of the I.M.T. at Nuremberg), 1031 (Control Council Law No. 10), 1035 (Charter of the I.M.T. for the Far East). 15 Concerning the norm of nondiscrirmination under human rights law, see, e.g., M.McDougal, H. Lasswell, L.Chen, Human Rights and World Public Order (1980), 564–68, 583–601, 702–07, 909, 916–18, passim. 16 See, e.g., Paust, Bassiouni, et al., above n. 2, 1054, 1077 and n.* (In Attorney General of Israel v. Eichmann, as few as 93 people suffered in one circumstance. In Matter of Barbie, sometimes as few as 3, 7, 11, 30 or 44 victims comprised separate counts or crimes. In Touvier, one crime involved 7 victims). More recently in The Prosecutor v. Akayesu, ICTR-96–4-T (2 Sept. 1998), reprinted in 37 ILM (1998), 1401, the number of direct victims were as few as 3, 5, 8 and 8. Id., paras. 57–61. Clearly, the number of victims need not be large or the crime “widespread” or “systematic”. 17 See, e.g., id., 712–13, 1027–31, 1034–35, 1075; Paust, above n. 9, 551–53.


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Nonetheless, Article 21 (1) (b) and (3) of the Rome Statute also require use of relevant international law, especially human rights, for applicative and interpretative purposes. Paragraph (1) (b) requires application of international law “where appropriate,”18 and paragraph (3) mandates both “application and interpretation” of the Statute consistently with human rights law. Thus, where human rights law is relevant to criminal responsibility, the Statute must not only be interpreted, but also applied in a manner consistent with the requirements of human rights law. When human rights law implicates or requires criminal sanctions, the Statute must be applied and interpreted consistently. In this sense, Article 21 incorporates other international law by reference and for various purposes, and judges on the ICC will be able to use such law to identify, clarify, and supplement the meaning of crimes under the Rome Statute. Since crimes against humanity are a form of crimes against human rights, there is some room for a clarified, less limiting interpretation of the Statute’s definition. Several crimes against humanity also reflect peremptory human rights jus cogens.19


III. War crimes III.A. Customary laws of war Customary laws of war apply to certain forms of social violence, as explained below. It should be emphasized that there is widespread recognition that every violation of the law of war is a war crime.20 In his separate opinion in The Prosecutor v. Dusko Tadic,21 Judge Li Haopei agreed that violations of the Hague and Geneva law during armed conflicts of an international character were among customary war crimes, but seemed to disagree that violations of common Article 3 of the Geneva Conventions were war crimes under customary international law.22 However, Judge Li may merely

18 Article 31 of the Vienna Convention on the Law of Treaties, 1155 UNTS 331, UN Doc. A/CONF. 39/27 (1969), assures that it is “appropriate” and necessary to use relevant international law as an interpretive aid, i.e., to identify, clarify, and supplement the meaning of treaty norms or proscriptions. 19 Concerning relevant human rights jus cogens, see, e.g., Restatement of the Foreign Relations Law of the United States § 702 (3rd ed., 1987); General Comment Adopted by the Human Rights Committee Under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights, Addendum, HR Committee, General Comment No. 24 (52), para. 8, 4–5, UN Doc. CCPR/C/21/Rev.1/Add.6 (1994) [hereinafter General Comment No. 24], reprinted in J.Paust, International Law as Law of the United States (1996), 375; J.Paust, Applicability of International Criminal Laws to Events in the Former Yugoslavia, 9 AUJILP (1994), 499, 505 [hereinafter Paust, Bosnia]. Concerning human rights and laws of war, see, e.g., id., 518–20. 20 See, e.g., US. Dep’t of Army Field Manual FM 21–10, The Law of Land Warfare (1956), 178, para. 499; Paust, Bassiouni, et al., above n. 2, 24, 84–86, 744, 761, 967–69, 984–94; J.Pictet (ed.), 3 Commentary, Geneva Convention Relative to the Treatment of Prisoners of War (1960), 421 (“The International Law Commission has defined war crimes as: ‘Acts in violation of the laws or customs of war.’”); id., 4 Commentary, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958), 583. 21 ICTY, IT-94–1-AR72 (2 Oct. 1995).

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have been stressing that not all conduct within Article 3 (a)–(e) of the Statute of the ICTY should apply to an internal conflict. Nevertheless, he acknowledged that violations of common Article 3 were subject to criminal sanctions under the statutes of the ICTY and ICTR.23 In the Tadic case, the majority also concluded that although breaches of common Article 3 are war crimes, they are not “grave breaches” of the Geneva Conventions. Using normal means of treaty interpretation, I still disagree with that conclusion.24 Apparently all States, the International Military Tribunal at Nuremberg, the International Criminal Tribunal for Former Yugoslavia (ICTY), and the U.N. Secretary General recognize that the Regulations Annexed to the 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land25 are a part of customary international law.26 As such, their provisions represent binding obligations on all States and persons. The 1907 Convention, like much of the customary law of war, is applicable in case of an international armed conflict, whether or not war is declared,27 including a recognized “belligerency” or true civil war.28 Recognized criteria for existence of a belligerent status include: (1) existence of a belligerent armed force with a responsible command structure, (2) the semblance of a government, (3) control of significant amounts of territory within a state, (4) recognition by others as a “belligerent” or as a state, and (5) general compliance with the laws of war.29 Among various other customary laws of war are those reflected in the 1863 Lieber Code,30 a U.S. codification of many laws of war applicable during the U.S. Civil War, and the 1919 List of War Crimes prepared by the Responsibilities Commission of the Paris Peace Conference.31 It is also widely recognized that the 1949 Geneva Conventions32 are part of the

22 See Paust, Bassiouni, et al., above n. 2, 989–91, 993, reproducing paras. 7–12 of Judge Li’s Opinion, which had also quoted an ICRC remark, para. 9, arguing that the notion of war crimes is limited to international conflicts. 23 See id., paras. 11–12. 24 See Paust, Bosnia, above n. 19, 511–12 and n.40. See also Paust, Bassiouni, et al., above n. 2, 991–92 (ICTY, Opinion of Judge Abi-Saab), 993. 25 Done 18 October 1907, Treaty Series No. 538; Malloy, 2 Treaties 2259. 26 See, e.g., Paust, Bassiouni, et al., above n. 2, 4, 716 (Opinion and Judgment of the International Military Tribunal at Nuremberg (1946)), 764 (Report of the Secretary-General Pursuant to Paragraph 2 of SC Res 808 (1993), UN Doc. S/25704, paras. 35 and 41 (3 May 1993)), 825 (ICTY), 968–69, 975, 991 (ICTY, Opinion of Judge Sidhwa). 27 See, e.g., id., 970–71. 28 See, e.g., id., 971, 975–76, 980, 982–83. 29 See, e.g., id., 975, 980. 30 Instructions for the Government of Armies of the United States in the Field, General Orders No. 100 (1863), extracts reprinted in id., 1011–13. 31 Reprinted in id., 24–25. Members of the Commission were: Belgium, the British Empire, France, Greece, Italy, Japan, Poland, Roumania, Serbia, and the U.S. 32 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 [hereinafter GWS]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85 [hereinafter GWS at Sea]; Geneva Convention Relative to the


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customary law of war.33 Common Article 2 of the Geneva Conventions assures that the conventions apply to conflicts of an international character, including belligerencies. Common Article 3, by express language, is technically applicable to an insurgency or “armed conflict not of an international character” (what many laypersons and the media often consider to be a “civil war,” but which has not achieved the legal status of a belligerency—normally due to lack of outside recognition of such status—or which has not otherwise been internationalized by outside intervention).34 An important development in Geneva law involves recognition that common Article 3 now provides a minimum set of rights or guarantees applicable also during an international armed conflict.35 Textwriters and judges also consider that the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) mostly reflects customary international law binding on all humankind.36 Further, the International Criminal Tribunal for the Former Yugoslavia has held that the “core” of Protocol II to the Geneva Conventions, applicable to an armed conflict not of an international character, is also customary international law.37 Certain other international legal instruments repeat or reinforce the standards laid down in the Hague Convention and the Geneva Civilian Convention. Among these additional instruments are the Universal Declaration of Human Rights,38 now


33 34

35

36

37 38

Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 [hereinafter Geneva Civilian Convention]. See, e.g., Paust, Bassiouni, et al., above n. 2, 764 (Report of the Secretary-General), 824 (ICTY), 969, 991 (ICTY, Opinion of Judge Sidhwa). For recognition of criteria relevant to the status of an insurgency, see, e.g., id., 972–975, 978, 980–83. The KLA in Kosovo do not appear to have gained outside recognition as “belligerents,” however, the warfare engaged in between NATO armed forces and Yugoslavia had internationalized the conflict into an armed conflict of an international character to which all of the customary laws of war apply, including common Article 2 of the 1949 Geneva Conventions. Concerning the internationalization of an armed conflict by outside intervention, including enforcement or security action involving armed force engaged in or authorized by international organizations such as the United Nations and NATO, see, e.g., id., 970, 975–76, 982–84; U.S. Dep’t of Army Field Manual 27–10, above n. 20, 7, para. 8 (a) (including “the exercise of armed force pursuant to a recommendation, decision, or call by the United Nations…, or in the performance of enforcement measures through a regional arrangement….”); Paust, Bosnia, above n. 19, 507–10. See, e.g., id., 827–30 (ICTY, Trial Chamber, The Prosecutor v. Tadic (10 Aug. 1995), paras. 60–74, noting especially the express recognition of the International Court of Justice in Nicaragua v. United States, ICJ Reports 1986, 4, paras. 218, 255 (27 June 1986)), 976, 980–81, 986, 991–93 (ICTY recognition that common Article 3 violations are “war crimes”). See, e.g., id., 969, 981, 991 (ICTY, Opinion of Judge Sidhwa); W.Mallison, The Palestinian Problem in International Law and World Order (1986), 400 n.437; panel, Customary International Law and Additional Protocol I to the Geneva Conventions for Protection of War Victims, 81 ASIL Proceedings (1987) (remarks of: Meron, Carnahan, Matheson). See Paust, Bassiouni, et al., above n. 2, 833 (The Prosecutor of the Tribunal v. Dusko Tadic, Appeals Chamber (2 Oct. 1995)); concerning Protocol II, see also id., 981, 991. GA Res. 217A, UN Doc. A/810, 71 (1948).

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regarded by many commentators as having acquired the status of customary international law and, at a minimum, as identifying and clarifying the basic human rights norms referred to in the legal obligations set forth in Articles 55(c) and 56 of the United Nations Charter;39 and the International Covenant on Civil and Political Rights.40 Relevant provisions, especially when they coincide, represent international standards by which many aspects of the law of war, including human rights in times of armed conflict, can be evaluated. At a minimum they are useful juridic aids for interpreting the evolving content of custom, the specific guarantees of the Geneva Conventions, and human rights guaranteed to all persons by the U.N. Charter. Of course, human rights law is applicable in times of relative peace as well as armed conflict,41 and is applicable in all earth territories. III.B. Applicable portions of humanitarian law Applicable portions of customary humanitarian law include the 1907 Hague Convention No. IV, the 1949 Geneva Conventions, and the core of the 1977 Protocols to the Geneva Conventions. Because common Article 3 of the 1949 Geneva Conventions is customary international law providing a special set of minimum rights for all persons who are “taking no active part in the hostilities,” either in an international or internal armed conflict or occupation,42 such minimum guarantees and obligations are also humanitarian law applicable in any armed conflict. With respect to the Geneva Civilian Convention, Part II of the Convention can apply to certain persons, even co-nationals, in any territory, and certain persons are protected by the provisions in Part III of the Convention, as noted in the next section. Of course, human rights law also applies to all persons in all relevant circumstances, and human rights jus cogens reflected in Geneva law remain peremptory norms. It should also be noted that there is no distinction in Geneva law between hostilities (or belligerent occupations) that are defensive or offensive, just or unjust, nonaggressive or aggressive.43 Further, Geneva norms are not merely contractual or of an ordinary nature, but are obligatio erga omnes binding on all signatories and all of humankind, even if an enemy is violating the norms.44 39 See, e.g., Paust, Bassiouni, et al., above n. 2, 390, 505, 756; McDougal, Lasswell, Chen, above n. 15, 272–74, 302, 325–27; J.Paust, International Law as Law of the United States (1996), 181, 191, 198, 228, 245–46, 256; H.Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 Georgia JICL (1995/96), 287; W.Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 AJIL (1990), 866, 867. 40 999 UNTS 171 (1966). 41 See, e.g., Paust, Bassiouni, et al., above n. 2, 968, 980, 1024, 1115. 42 See, e.g., id., 827–30, 981, 991–93. 43 See, e.g., Geneva Civilian Convention, arts. 1 (the “Parties undertake to respect and to ensure respect for the present Convention in all circumstances”), 2 (“shall apply to all cases of declared war or of any other armed conflict which may arise”); see Pictet (ed.), above n. 20, vol. 4, 13–17; Paust, Bassiouni, et al., above n. 2, 970–71. 44 See, e.g., Paust, Bassiouni, et al., above n. 2, 5, 13, 75, 79, 756; Paust, Bosnia, above n. 19, 505. Reprisals, for example, are also expressly prohibited. See, e.g., Geneva Civilian Convention, art. 33; Pictet (ed.), above n. 20, vol. 4, 15, 228.


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III.C. Protection of civilians

III.C.1. Types of civilian persons protected Article 4 of the Geneva Civilian Convention, applicable in an international armed conflict or occupation,45 states that “[p]ersons protected by the Convention [in such a conflict or occupation] are those who…[are] in the hands of a Party to the conflict or Occupying Power of which they are not nationals,” and thus contains an exclusion of some coverage with respect to co-nationals of a party to an international armed conflict or of an occupying power. However, Article 4 expressly recognizes that “[t]he provisions of Part II are, however, wider in application, as defined in Article 13,” and Article 13 expressly affirms that the provisions of Part II of the Convention “cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on…nationality….” Thus, Part II of the Geneva Civilian Convention can expressly apply to co-nationals of any party to an international armed conflict.46 Persons entitled to special protections under Part II of the Convention include: (1) wounded, (2) sick, (3) the infirm, (4) expectant mothers, (5) all “persons exposed to grave danger,”47 (6) “children under fifteen who are orphaned or are separated from their families as a result of the war,”48 and (7) members of a hospital staff.49 Other forms of impermissible discrimination identified “in particular” in Article 13 include “any adverse distinction based…on race,…religion or political opinion.” It should be emphasized that common Article 3 of the Geneva Conventions has become part of customary international law and now provides a minimum set of protections in both international and internal armed conflicts, as well as during armed occupation. Article 3 protects all “[p]ersons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause” and demands humane treatment for all such persons “without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.”50 Thus, to the extent that there are specific protections, Articles 13–26, in addition to common Article 3, will provide protections for civilians even against actions of their fellow nationals when their country is involved in an international armed conflict.51


45 46 47 48 49 50 51

See also Paust, Bassiouni, et al., above n. 2, 980–81. See, e.g., id., 976, 980–81, 1020. Geneva Civilian Convention, art. 16. Id., art. 24. Id., art. 20. Geneva Civilian Convention, art. 3. See, e.g., Paust, Bassiouni, et al., above n. 2, 976, 980–81; Paust, Bosnia, above n. 19, 512–13; J. Paust & A.Blaustein, War Crimes Jurisdiction and Due Process: The Bangladesh Experience, 11 Vanderbildt JTL (1978), 1, 14–15; J.Paust, Legal Aspects of the My Lai Incident: A Response to Professor Rubin, 50 Oregon LR (1971), 138, 143–49, reprinted in R.Falk (ed.), 3 The Vietnam War and International Law (1972), 359.

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III.C.2. Civilians in occupied territory The persons protected by humanitarian law in occupied territory generally include all persons found within such territory. The Hague Regulations and most other customary legal norms make no distinction based on the nationality of persons found within such territory. The Geneva Civilian Convention, however, contains some articles that will not apply to nationals of the occupying power. Nevertheless, as noted above, common Article 3 of the Geneva Conventions contains customary protections applicable to all armed conflicts and provides a set of minimum protections for all persons, and thus to certain co-nationals of the occupying power as well as conationals of the occupied. III.C.3. Types of protection III.C.3.A. G EN ERAL PROTECTION S

The types of rights and related prohibitions under humanitarian law are too numerous to list in a short chapter. It should be recalled that common Article 3 of the Geneva Conventions provides a minimum set of guarantees. Article 3 expressly recognizes the fundamental right, in all circumstances, to be treated humanely as well as specific prohibitions of: “(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages, (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples….” Articles 27–34 of the Geneva Civilian Convention also contain several related rights and prohibitions, including the prohibition of collective penalties and reprisals addressed in the next section. Section III of Part III of the Convention adds several other specific rights and prohibitions concerning occupied territories as such. Specific rights and prohibitions concerning occupied territory can also be found in Articles 43–56 of the Annex to the 1907 Hague Convention No. IV. III.C.3.B. S PECIALLY NOTED PROHIBITIONS AN D PROTECTION S

III.C.3.b.i. Collective penalties Customary international law prohibits collective punishment—that is, punishment of persons not for what they have done, but for the acts of others, for example, because they come from a group or family that contains an individual that can be subject to punishment under law. Article 50 of the Annex to the 1907 Hague Convention No. IV expressly affirmed: “No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of acts of individuals for which they cannot be regarded as jointly and severally responsible.” The 1919 List of War Crimes prepared by the Responsibilities Commission of the Paris Peace Conference expressly affirms the customary prohibition of “[i]mposition


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of collective penalties.”52 Article 33 of the Geneva Civilian Convention affirms these customary prohibitions when recognizing: “Collective penalties and likewise all measures of intimidation…are prohibited,” and adding: “Reprisals against protected persons and their property are prohibited.” Collective punishments are also prohibited under Article 75 (2) (d) of Protocol I and human rights law.53 As Pictet notes, the prohibition “does not refer to punishments inflicted under penal law,…but penalties of any kind inflicted on persons or entire groups of persons, in defiance of the most elementary principles of humanity, for acts that these persons have not committed…. Responsibility is personal and it will no longer be possible to inflict penalties on persons who have themselves not committed the acts complained of.”54 The claim that “one of them did the wrong; they must be punished” is tribalistic, potentially genocidal, and serves the evil of impermissible discrimination. It is in fundamental opposition to the human rights of each person to individual worth and dignity, to recognition as a person before the law, to be presumed innocent, and to be free from “inhuman or degrading treatment or punishment.”


III.C.3.b.ii. Cruel, inhumane treatment, injury and suffering As noted, common Article 3 of the Geneva Conventions applies as a minimum set of rights. Article 3 prohibits, among other conduct, “violence to life and person, in particular… mutilation, cruel treatment and torture…”55 and requires that all persons taking no active part in hostilities “shall in all circumstances be treated humanely….”56 Articles 27–34 of the Geneva Civilian Convention contain similar rights and prohibitions as well as more specific guarantees. Article 27 expressly affirms: “Protected persons are entitled, in all circumstances, to respect…. They shall at all times be humanely treated, and shall be protected….” Rape, as in other customary instruments,57 is also expressly prohibited in Article 27. Article 31 commands: “No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.” Wilful “torture or inhuman treatment” is also listed in Article 147 among grave breaches of the Convention. Further, the claim of “necessity” for violating Geneva prohibitions is legally unacceptable.58 Relevant human rights prohibitions of cruel, inhumane or degrading treatment or punishment are also

52 Crime number 17, reprinted in Paust, Bassiouni, et al., above n. 2, 24. On collective penalties, see also id., 29–30, 49, 73, 1017, 1024, 1395. 53 See, e.g., Paust, Bassiouni, et al., above n. 2, 29–30. 54 Pictet (ed.), above n. 20, vol. 4, 225; see also id., 228 (re: reprisals and collective penalties). 55 Geneva Civilian Convention, art. 3 (1) (a). 56 Id., art. 3 (1). 57 See, e.g., Paust, Bassiouni, et al., above n. 2, 24, 64–65, 247, 708, 742, 744, 760–61, 765, 774, 808, 817, 1012, 1020–21. 58 See, e.g., Pictet (ed.), above n. 20, vol. 4, 34, 37, 39, 47, 200–02, 204–05, 207; Paust, Bassiouni, et al., above n. 2, 995, 1010.

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nonderogable human rights59—that is, the prohibitions apply in all circumstances and despite claims of reasonable necessity. III.C.3.b.iii. Food as a weapon There is language in Article 8 (2) (b) (xxv) of the Rome Statute for the ICC addressing the customary crime of “intentionally using starvation.” The use of starvation as a strategy or policy of denial of food clearly involves responsibility when starvation is intentional or deliberate. Crime number 4 on the 1919 List of War Crimes uses the phrase “[d]eliberate starvation” and the United Nations Security Council has condemned the “deliberate impeding of the delivery of food and medical supplies.”60 A policy of denial and neglect involving starvation can also constitute other violations of humanitarian law when used wantonly or in reckless disregard of consequences. The indiscriminate use of food as a weapon is covered under Articles 51 (4) (“[i]ndiscriminate attacks”) and 54 (1) (“[s]tarvation of civilians as a method of warfare”) and, especially, 54 (2) of Protocol I, as well as under Article 14 (1) of Protocol II. A policy of denial and neglect involving starvation can also result in violations, for example, of Articles 3, 16, 23, 24, and 147 of the Geneva Civilian Convention. Such a policy should also be prosecutable, for example,

59 See, e.g., International Covenant on Civil and Political Rights, arts. 4 (2), 7; African [Banjul] Charter on Human and Peoples’ Rights, art. 5, O.A.U. Doc. CAB/LEG/67/3 Rev. 5 (1981); American Convention on Human Rights, arts. 5, 27 (2), O.A.S. T.S. No. 36, 1, O.A.S. Off. Rec. OEA/Ser. L/V/ II.23 doc. rev. 2 (1969); European Convention on Human Rights, arts. 3, 15 (2), 213 UNTS 222, ETS No. 5 (1950). The Restatement, above n. 19, § 702 (d) also lists this prohibition as customary jus cogens. See also General Comment No. 24, above n. 19, paras. 7–9, 11–12, 18, 3–5, 8; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 Dec. 1984, 39 UN GAOR, Supp. No. 51, 197, UN Doc. A/39/51. 60 See, e.g., UN SC Res. 787, UN SCOR, 47th Sess., 3137th meeting, UN Doc. S/RES/787 (1992) (condemning as violations of humanitarian law the deliberate impeding of the delivery of food and medical supplies to the civilian population in Bosnia-Herzegovina); UN SC Res. 771, UN SCOR, 47th Sess., 3106th meeting, UN Doc. S/RES/771 (1992) (same); UN SC Res. 794, UN SCOR, 47th Sess., 3145th meeting, UN Doc. S/RES/794 (1992) (“Strongly condemns all violations of international humanitarian law occurring in Somalia, including in particular the deliberate impeding of the delivery of food and medical supplies essential for the survival of the civilian population….”); see also Declaration on the Protection of Women and Children in Emergency and Armed Conflict, Dec. 14, 1974, UN GA Res. 3318 (XXIX), UN GAOR, 29th Sess., para. 6 (1974) (“women and children belonging to the civilian population…shall not be deprived of shelter, food, medical aid or other inalienable rights….”), quoted more fully in D.Buckingham, A Recipe for Change: Towards an Integrated Approach to Food Under International Law, 6 Pace ILR (1994), 285, 298 n. 53; Report of the Secretary-General Pursuant to Paragraph 2 of Security Resolution 808 (1993), UN SCOR, 48th Sess., para. 6, UN Doc. S/25704 (1993) (violations of humanitarian law include “impeding the delivery of food and medical supplies to the civilian population”), UN Doc. S/25704 (3 May 1993), reprinted in Paust, Bassiouni, et al., above n. 2, 759, 760; 1995 Indictment of Karadzic and Mladic by the Prosecutor of the International Criminal Tribunal for Former Yugoslavia, para. 22 (regarding inadequate food and medical care for civilians detained in camps, including women, children, and elderly persons), reprinted in Paust, Bassiouni, et al., above n. 2, 61, 65; Buckingham, supra at 296– 301; Jordan J.Paust, The Human Rights to Food, Medicine and Medical Supplies and Freedom from Arbitrary and Inhumane Detention and Controls in Sri Lanka, 31 Vanderbilt JTL (1998), 617 [hereinafter Paust, Human Rights to Food, Medicine]; Paust, Bosnia, above n. 19, 516–17 and n. 62.


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under Article 8 (2) (a) (ii), (iv), (b) (x), (xi), (xiii), (xvi), (xxi), (c) (i)–(ii), and (e) (v), (ix), (xi), and (xii) of the Rome Statute even if starvation is not intentional. In my opinion, food, like medicine and medical supplies, should always be treated as neutral property during an armed conflict. Starvation, even of enemy combatants, seems necessarily inhumane and to involve unnecessary and lingering death and suffering.61 Moreover, Article 8 (2) (b) (xxv), addressing starvation, is too limited for a different reason. Not all means of starvation are addressed, but only starvation perpetuated “by depriving them of objects indispensable to their survival.” The latter phrase should at least be interpreted logically and in view of a plain meaning to include starvation by depriving persons of food and any other “object” that in context is indispensable to the survival of civilians. Article 54 (1) and (2) of Protocol I to the Geneva Conventions lists starvation of civilians and the deprivation of objects indispensable to their survival as separate crimes. In any event, “starvation of civilians,” by any means, is already proscribed under customary international law.62


III.C.3.c. Wilful, wanton, and criminally negligent targeting of civilians Article 8 (2) (b) (i) of the Rome Statute for the ICC, concerning international armed conflicts, and a related provision in Article 8 (2) (e) (i), concerning non-international armed conflicts, properly prohibit attacks on individual civilians “not taking direct part in hostilities.” This latter phrase makes clear that “civilians” who take an active part in hostilities can be lawful military targets. Common Article 3 of the 1949 Geneva Conventions, which is the customary standard, does not protect every person, but only those “[p]ersons taking no active part in the hostilities….” Article 4 of Protocol II to the Geneva Conventions only covers “persons who do not take a direct part or who have ceased to take part in hostilities….” Thereafter, Article 13 of Protocol II states that “[t]he civilian population as such, as well as individual civilians, shall not be the object of attack….” It is apparent that Article 4 and Article 13 of Protocol II must be interpreted consistently so that the phrase “individual civilians” is not read too broadly to cover persons who are not entitled to protection under Article 4. The same is true with respect to Article 51 of Protocol I, especially paragraph 3 of Article 51 (which recognizes that civilians lose protection when “and for such time as they take a direct part in hostilities”),63 although Article 50 of Protocol I contains a presumption of “civilian” status in case of doubt. This matter may otherwise become confusing in cases where the President, Prime Minister, or Defense Minister of a country is also in charge of the military and would be a proper military target during an international armed conflict.

61 See, e.g., Paust, Human Rights to Food, Medicine, above n. 60. 62 See, e.g., crime no. 4 of the 1919 list; Paust, Bassiouni, et al., above n. 2, 24, 1022; Paust, Human Rights to Food, Medicine, above n. 60. 63 Concerning “civilians” who lose such protection, see, e.g., M.Bothe, K.Partsch, et al., New Rules for Victims of Armed Conflicts (1982), 301–04; see also below n. 64.

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During an insurgency, enemy police, para-military, intelligence agents, guards, and other officials or agents may take an active part in hostilities and be proper military targets.64 Words such as “civilian” are not helpful with respect to the propriety of target selection unless these distinctions are kept in mind. Perhaps the word “noncombatant” is more meaningful, but it does not appear to cover all cases of proper military targets (e.g., the President of the United States, Director of the CIA, and Director of the FBI in case of an international armed conflict during which the United States is engaged in war). Within Article 8 (2) (b) (iv), concerning attacks, for example, causing “incidental loss of life or injury to civilians or damage to civilian objects,” one finds the only provision containing the delimiting phrase “in the knowledge that such attack will cause.” This is an improper standard or threshold with respect to all forms of relevant criminal liability and, thus, is another indication of the quite limited jurisdiction of the Court. The phrase “in the knowledge or in wanton disregard that such attack may cause” would have reached other serious war crimes, but was not chosen. Instead, the limiting phrase within Article 8 (2) (b) (iv) assures that an entire area of criminal responsibility attaching to wanton or reckless disregard of consequences will not be addressed by the ICC unless it falls within other sections of Article 8 (2), which is possible depending on the language used in other sections and various features of context. Sometimes the mens rea standard concerning customary war crimes is reflected in the words “wilful,” “wilfully,” or “deliberate,” as used in Article 147 of the 1949 Geneva Civilian Convention or used a few times with respect to certain customary war crimes found in the 1919 List of War Crimes prepared by the Responsibilities Commission,65 but sometimes the standard includes “wanton” or “wantonly,” as in Article 147 of the Geneva Civilian Convention66 and certain crimes in the 1919 List. Both instruments are evidence of the fact that the two standards are different, that their drafters knew how to set higher or lower thresholds of criminal responsibility, and that they chose to set higher thresholds only in certain instances. Indeed, the same points pertain with respect to Article 8 of the Rome Statute. More generally with respect to wanton or reckless disregard, it is informative that Article 44 of the customary 1863 Lieber Code proscribed “[a]ll wanton violence” and Article 16 addressed “wanton devastation.”67 “Wanton devastation and destruction” was also the standard used in crimes numbers 18 and 20 in the 1919 List prepared by the Responsibilities Commission.68 With respect to World War II

64 See also Paust, Bassiouni, et al., above n. 2, 376, 1178; Jordan J.Paust, An Introduction to and Commentary on Terrorism and the Law, 19 Connecticut LR (1987), 697, 744; above n. 63. 65 See 1919 list, crimes nos. 19 and 23, reprinted in Paust, Bassiouni, et al., above n. 2, 24–25. 66 See also GWS, above n. 32, art. 50; GWS at Sea, above n. 32, art. 51. 67 Instructions for the Government of Armies of the United States in the Field, General Orders No. 100 (1863), arts. 16, 44, reprinted in Paust, Bassiouni, et al., above n. 2, 1011–12. 68 Numbers 18 (“Wanton devastation and destruction of property”) and 20 (“Wanton destruction of religious, charitable, educational and historic buildings and monuments”), reprinted in Paust, Bassiouni, et al., above n. 2, 24.


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prosecutions, the Report of Robert H.Jackson to the President of the United States identified “wanton destruction” as among the “[a]trocities and offenses against persons or property” to be addressed at Nuremberg.69 Similarly, United States v. List, et al. noted that “military necessity…does not admit the wanton devastation of a district….”70 The crime of “wanton destruction of cities, towns or villages” was also expressly recognized in Article 6 (b) of the Charter of the International Military Tribunal at Nuremberg. Thereafter, the Principles of the Nuremberg Charter and Judgment formulated by the International Law Commission and adopted by the U.N. General Assembly affirmed that “[v]iolations of the laws or customs of war…include, but are not limited to,…wanton destruction of cities, towns, or villages….”71 The same crime was also recognized in Article 3 (d) of the Bangladesh International Crimes (Tribunals) Act of 1973.72 More recently, the Indictment of Radovan Karadzic and Ratko Mladic issued by the International Criminal Tribunal for the Former Yugoslavia addresses crimes involving “wantonly appropriated and looted” property and “wanton and unlawful destruction of” property.73 The Statute of the International Criminal Tribunal for the Former Yugoslavia has also identified crimes involving “extensive destruction and appropriation of property…carried out unlawfully and wantonly” and “wanton destruction of cities, towns or villages….”74 Interestingly, Article 8 (2) (b) (xiii) and (e) (xii) of the Rome Statute assures that the new ICC will be able to address “destroying or seizing the enemy’s property” without limiting words such as “intentionally” or “wantonly.” In order to constitute a “grave breach” within the meaning of the Rome Statute, however, Article 8 (2) (a) (iv) requires “Extensive destruction or appropriation of property…[that is] carried out unlawfully and wantonly.” Article 51 (5) of Protocol I to the Geneva Conventions also provides a standard with perhaps a lower threshold when using the phrase “an attack which may be expected to cause incidental loss” (emphasis added). Similarly, the phrase “intended, or may be expected, to cause” found in Article 35 (3) of Protocol I (emphasis added) includes a standard of responsibility far less than “in the knowledge that such… will cause.” The “or may be expected” language also appears in the preamble to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional


69 Reprinted in Paust, Bassiouni, et al., above n. 2, 1027. 70 11 Trials of War Criminals before the Nuremberg Military Tribunals under Control Council law No. 10., Nuremberg, October 1946–April, 1949 (US Gov. Printing Office, 1948), 757, reprinted in Paust, Bassiouni, et al., above n. 2, 1004, 1007. 71 GA Res. 177 (II) (a), 5 UN GAOR, Supp. 12, 11, UN Doc. A/1316, reprinted in Paust, Bassiouni, et al., above n. 2, 985–86. 72 Reprinted in Paust, Bassiouni, et al., above n. 2, 743, 744. 73 Indictment, The Prosecutor v. Radovan Karadzic, Ratko Mladic, (ICTY, July 24, 1995), paras. 27, 41, 44, reprinted in Paust, Bassiouni, et al., above n. 2, 61, 66, 70. 74 UN Doc. S/25704 (May 3, 1993), Annex, Articles 2 (d) and 3 (b), reprinted in Paust, Bassiouni, et al., above n. 2, 772–73.

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Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects.75 A contextually-oriented word implicating a lower threshold than “in the knowledge that such attack will cause” can also be found in Article 23 (b) of the 1907 Hague Convention No. IV, Annex, assuring that it is “especially forbidden…to kill or wound treacherously” (emphasis added), a crime also listed in Article 8 (2) (b) (xi) and (e) (ix) of the Rome Statute. Similarly, the phrase “unless such destruction… be imperatively demanded,” found in Article 23 (g) of the 1907 Hague Convention as well as in Article 8 (2) (b) (xiii) and (e) (xii) of the Rome Statute, requires contextual inquiry concerning responsibility and can at least implicate wanton or reckless disregard. Even more generally, leader responsibility can be based on criminal negligence under the “knew or should have known” standard under customary international law,76 a standard also generally reflected in Article 28 (1) of the Rome Statute concerning military commanders. A related problem concerning ICC coverage of customary crime involves the oftrepeated phrase “intentionally directing attacks” found in Article 8 (2) (b) (i)–(iii), (ix), (xxiv) and (e) (i)–(iv). For reasons noted above with respect to criminal responsibility for wanton or reckless disregard, the language used in the Rome Statute clearly does not reach all customary criminal responsibility. However, language involving the crime of “intentionally directing attacks against the civilian population as such”77 seems appropriate because attacks directed at civilians as such would necessarily involve the intent to direct an attack against civilians as such. This is a special crime, different even from the use of indiscriminate weaponry or indiscriminate attacks—both of which include responsibility for wanton disregard of consequences. IV. Leader responsibility for violations of international criminal law Article 28 of the Rome Statute for the ICC addresses the criminal responsibility of military commanders and other superiors, noting that such responsibility is in addition to any responsibility listed elsewhere in the Statute, for example, in Article 25, which includes responsibility when one “[o]rders, solicits or induces,” “aids, abets or otherwise assists,” or “[i]n any other way contributes to the commission or attempted commission of…a crime by a group of persons acting with a common purpose.” Article 28, paragraph (1), concerning a military commander “or persons effectively acting as a military commander,” generally reflects leader responsibility under customary international law identified as the “knew or should have known” test

75 UN Doc. A/CONF.95/15 (1980), reprinted in 19 ILM (1980), 1523; see also J.Paust, Controlling Prohibited Weapons and the Illegal Use of Permitted Weapons, 28 McGill LJ (1983, No. 3), 608, 617 and n. 43. 76 See generally, Paust, Bassiouni, et al., above n. 2, 22–23, 32–72, passim. 77 See Rome Statute, above n. 7, art. 8 (2) (b) (i) and (e) (i).


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(which includes criminal responsibility for negligence or dereliction of duty if a responsible person under the circumstances “should have known,” had an opportunity to act, and took no reasonable corrective action).78 One problem is that Article 28 (1) (a) addresses circumstances where subordinates “were committing or about to commit” crimes, but does not expressly include the circumstance also addressable under customary international law where a superior knew or should have known that crimes had already been committed and the superior fails to take needed corrective action within his or her power.79 Perhaps the next paragraph, addressing, for example, failures to “repress their commission or to submit the matter to the competent authorities for investigation and prosecution,” when coupled with customary international law as an interpretive background,80 will assure adequate coverage. Another problem concerns the needless limitation of the ICC’s competence to address leader responsibility of those other than military commanders or those who are effectively acting as military commanders. In paragraph (2) (a), the test concerning civilian leaders has been changed to “knew, or consciously disregarded information which clearly indicated.” The test does not reflect a long and rich history of application of leader responsibility under the “knew or should have known” test to nonmilitary officials, leaders, and persons with actual authority or control under the circumstances.81


78 See, e.g., Paust, Bassiouni, et al., above n. 2, 21–25, 32–41, 43, 45, 49, 53, 60–72, 74–75, 78 (diplomat Abetz), 707–08, 765–66, 774, 840, 861, 889–97. As the cited material demonstrates, what a person “should have known,” but did not actually know or consciously disregard, involves a criminal negligence standard which addresses fault or dereliction of duty under the circumstances including what a reasonable person under the circumstances should have known. Article 86 (2) of Protocol I to the Geneva Conventions is similar, since it focuses on a circumstance where persons either “knew, or had information which should have enabled them to conclude in the circumstances at the time….” The latter refers to a circumstance where a person had information from which, under the circumstances, a reasonable person should have known. It uses a criminal negligence standard. Although the phrase requires that the accused leader have “had information,” clearly the accused need not have known that a subordinate was committing or was going to commit a breach of the Geneva Conventions or the Protocol (i.e., knowledge of illegality). Clearly also the accused leader need not have “consciously disregarded” illegality and need not have “consciously disregarded” the consequences flowing from known information. All that is required is that, given that certain information was known to the accused, a reasonable leader “in the circumstances at the time” “should have [been] enabled…to conclude…that…[a subordinate] was committing or was going to commit” a breach of the Conventions or the Protocol. The phrase “should have [been] enabled” unavoidably involves a criminal negligence type of inquiry. 79 See, e.g., id. 80 Recall Vienna Convention on the Law of Treaties, above n. 18, art. 31; Rome Statute, above n. 7, art. 21 (1) (b) and (3). 81 See, e.g., above n. 78, including the 1474 trial of Peter von Hagenbach, claims against a King and public arraignment of a Kaiser, diplomats, an ex-Prime Minister (in Japan and, more recently, in Rwanda (Jean Kambanda, see 37 ILM (1998), 1411, 1420), other government officials, the BosnianSerb leader Radovan Karadzic, and a mayor in Rwanda (Jean Paul Akayesu). Importantly, under international law such persons are not entitled to immunity regarding such crimes. See, e.g., id.; Rome Statute, above n. 7, preamble (“Determined to put an end to impunity for the perpetrators of these crimes”), art. 27.

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V. Sanctions for violations of international criminal law Under international law, both civil and criminal sanctions are available against any individual who engages in genocide, crimes against humanity, or war crimes.82 Every violation of the law of war is a war crime83 over which, as in the case of genocide and other crimes against humanity, there is universal jurisdiction84 and responsibility.85 There is no immunity for violations of international law, even if committed by a head of state, diplomat, or other official.86 Further, any form of domestic immunity, amnesty, asylum, pardon, statutes of limitation, or other impunity under domestic law is not binding at the international level or in other domestic legal processes.87 Thus, under international law, any tribunal might provide civil or criminal sanctions against those who have committed genocide, crimes against humanity, or war crimes. Those responsible can include military or civilian leaders who knew or should have known that their subordinates or others under their control had committed, were committing, or were about to commit violations of international criminal law, had an opportunity to act, and failed to take reasonable corrective action under the circumstances.88 Complicitous behavior is also sanctionable,89 and superior orders are not a defense if the recipient knew the orders were illegal or if they were manifestly illegal.90

82 On civil sanctions, see, e.g., Paust, Bassiouni, et al., above n. 2, 45, 96, 102, 110, 114, 249–52, 801– 02, 1021–22, passim; J.Paust, Suing Karadzic, 10 Leiden JIL (1997), 91; Suing Saddam: Private Remedies for War Crimes and Hostage-Taking, 31 Virginia JIL (1991), 351; Kadic v. Karadzic, 70 F.3d 232, 239–40, 242–43 (US 2d Cir. 1995); Linder v. Portocarrero, 963 F.2d 332, 336–37 (US 11th Cir. 1992). 83 See, e.g., Paust, Bassiouni, et al., above n. 2, 24–25, 85–86, 826, 969, 984, 993. 84 See, e.g., id., 74–75, 95–103, passim. 85 See, e.g., id., 74–78; UN GA Res. 3074, 28 UN GAOR Supp. No. 30, 78, UN Doc. A/9030 (1973); UN GA Res. 2840, 26 UN GAOR Supp. No. 29, 88, UN Doc. A/8429 (1971); UN GA Res. 96, UN Doc. A/64, 188 (1946) (re: genocide); J.Paust, Universality and the Responsibility to Enforce International Criminal Law: No U.S. Sanctuary for Alleged Nazi War Criminals, 11 Houston JIL (1989), 337. 86 See, e.g., Paust, Bassiouni, et al., above n. 2, 21–23, 25, 32–41, 43, 46, 53, 60–72, 78, 108–11, 707–8, 811–12, 833–44, 861, 889–97, 984, 986, 1395–96. Non-immunity under international law exists with respect to both civil and criminal sanctions. 87 See, e.g., id., 21, 75–76, 78, 80–81, 108. 88 See, e.g., id., 22–23, 32–41, 43–45, 49–52, 60–72, passim. 89 See, e.g., id., 21–29, 60. 90 See, e.g., id., 23, 1361–76.

19 The legal qualification of the conflicts in the former Yugoslavia: double standards or new horizons for international humanitarian law? Marco Sassòli* I. Introduction The armed conflicts in the former Yugoslavia1 have been in many respects a turning point and a challenge for international law. For International Humanitarian Law2 this is true not only because it has been systematically violated, as in many other past and contemporary conflicts, but also particularly because never before has International Humanitarian Law so frequently been invoked by the parties to the conflicts and, to a lesser extent, by third States and often abusively or at least wrongly. In addition, in no other conflict has International Humanitarian Law been so often mentioned in resolutions of the UN Security Council—and neither always correctly nor consistently. Finally, this is true because never before have the international society, i.e., States, and the international community deployed so many efforts to enforce International Humanitarian Law, including establishing for the first time since World War II a tribunal to try the violators: the International Criminal Tribunal for the Former Yugoslavia (ICTY).3 In this tribunal, the late Judge and Professor Li Haopei played an important role as a member of the Appeals Chamber. It may therefore be appropriate to honour his memory with a contribution enquiring into

* 1 2 3

This article was completed in August 1999. The views expressed in this article are exclusively those of the author who would like to thank his former colleague Ms. Laura Olson for having revised and edited a first version of this text. For a brief history, see Part IV below. International humanitarian law of armed conflicts is the branch of international law protecting the victims of armed conflicts. The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, established by the Security Council through Resolution 827 (1993) of 25 May 1993 and functioning under a Statute originally published as an Annex to the Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), S/25704, and approved by the Security Council. 307

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how the conflicts in the former Yugoslavia were legally qualified, a subject on which the Appeals Chamber was subject to criticism.4 Indeed, before International Humanitarian Law could be applied, all those institutions necessarily had to determine which International Humanitarian Law applied: the more elaborate rules applicable to international armed conflicts or the more rudimentary rules applicable to non-international armed conflicts? If the international community has not answered this question consistently, serious doubts could be entertained on the claim that events were judged according to the law and not arbitrarily, a claim inherent in the establishment of a tribunal and crucial for its credibility. Such doubts would be particularly troublesome when applying International Humanitarian Law, as the necessity to apply it impartially and independently of any consideration of jus ad bellum, i.e., related to the causes of the conflict, is an important legal principle5 and moral requirement.6 Finally, as far as the Serb people are concerned, the feeling that double standards were applied against them, a feeling exacerbated by their leaders, strengthened many Serbs in their tendency to justify the unjustifiable. This article first attempts to recall the difference between international and noninternational armed conflicts in and for International Humanitarian Law. It will then remind the reader of the recent stages of the tragic history of the Balkans, i.e., the different conflicts in the former Yugoslavia. It will finally analyse, in its main part, the different arguments relevant for the qualification of the conflicts, how they were used by the UN Security Council and the ICTY, whether such arguments reveal double standards, and whether they applied the existing law or opened new horizons for International Humanitarian Law. II. Double standards in international law Before it can be analysed whether double standards have been applied, some thoughts may be appropriate on what is a double standard in international law. The prohibition of double standards is addressed to those who apply the law. Identical cases must be treated equally before the law and similar cases similarly according to their degree

4

See, e.g., G.Aldrich, Jurisdiction of the International Tribunal for the Former Yugoslavia, 99 AJIL 90 (1996), 66–67; T.Meron, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua’s Fallout, 92 AJIL (1998), 237–39. 5 This fundamental distinction between jus ad bellum and jus in bello is recognized in preambular para. 5 of Protocol I (see n. 9 below) and has already been recognized in US v. Wilhelm List and Others (The Hostage Case), by the US Military Tribunal at Nuremberg, reproduced in L.Friedman (ed.), 2 The Law of War, A Documentary History (1972), 1313–14. On the principle of the equality of the belligerents before International Humanitarian Law, see generally Henri Meyrowitz, Le principe de l’égalité des belligérants devant le droit de la guerre (1970), and C.Greenwood, The Relationship between Jus ad Bellum and Jus in Bello, 8 Review of International Studies (1983), 221–34. 6 Indeed, as the aim of International Humanitarian Law is to protect victims of armed conflicts, it could not be justified to deny some of them protection or to offer them different protection according to the side on which they are dragged into the conflict.

legal qualification of conflicts in the former Yugoslavia

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of similarity. Furthermore, cases may not be treated differently based on distinctions prohibited by or irrelevant under international law. Thus, in our field, because of the strict distinction between jus ad bellum and jus in bello, two acts of warfare may not be qualified differently under International Humanitarian Law if the only difference between the two is the legitimacy of the cause for which the belligerent concerned is fighting. To apply or enforce a different rule in a new case than in a previous case because the rule has changed, is, however, not prohibited. In traditional international society, States are not only the subjects of international law, but also its legislators and its main implementing mechanisms. As implementers they should treat identical cases equally, while as legislators they may and should start to create new rules as soon as they discover in a given case that the old rule is not appropriate. Traditional customary law cannot evolve if States may not behave according to a new rule until a sufficient number of other States have already behaved in a sufficient number of cases in the new manner. What makes it even more difficult to blame an individual State of using double standards in applying international law is that international law leaves States a wide latitude of different reactions to a certain legal situation. Under traditional international law, for instance, a State could react to an act of aggression against a third State with everything from the use of force against the aggressor to strict neutrality and if in identical cases very different reactions were chosen, legally there would be no double standard. The enforcement organs of the organized international community, such as the UN Security Council, have to be more coherent than individual States. The UN Charter gives, however, the Security Council wide discretionary powers in evaluating whether a threat or a breach of the peace exists and how to react to such a situation. This involves “political evaluation of highly complex and dynamic situations.”7 The Security Council is certainly not “legibus solutus” (unbound by law),8 but it is also not only a law enforcement mechanism. It is a political organ. The present author would simply submit that if the Security Council chooses to invoke the law, to qualify a given situation under the law, or to state legal consequences of a given situation under existing law, it is bound not to apply double standards. The prohibition of double standards is obviously most relevant for a court, as a court is bound to apply the law and only the law. It is inherent in the idea of law that a rule must be general and abstract and that, even if it has been laid down on the occasion of an individual situation, it must be meant to apply to all future similar cases. In addition, if the court is a criminal tribunal, the alternative that an apparent double standard could in reality be the application or definition of a new rule becomes

7 8

The Prosecutor v. Tadic, Appeal on Jurisdiction, Decision of the Appeals Chamber of 2 October 1995, ILM 35 (1996), 32 ff., para. 39. Tadic Jurisdiction, n. 7 above, para. 28.

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less relevant, because the principle “nullum crimen sine lege” bars the application of a new rule to an act committed before that new rule evolved. Due to the foregoing, we will limit ourselves, when reviewing the qualification of the different conflicts in the former Yugoslavia under International Humanitarian Law, to pronouncements of the ICTY and to instances in which the UN Security Council implicitly or explicitly invoked the rules of International Humanitarian Law of international or of non-international armed conflicts. III. International and non-international armed conflicts III.A. Two similar real life situations From a humanitarian point of view, the same rules should protect victims of international and of non-international armed conflicts. The same problems arise and the victims need the same protection. In both situations, fighters and civilians are arrested and detained by “the enemy”, civilians are forcibly displaced, or the places where they live come under control of the enemy, attacks are launched against towns and villages, food supplies need to transit through front lines, and the same types of weapons are used. Furthermore, a different law for international and for non-international armed conflicts obliges humanitarian actors and victims to qualify the conflict before they can invoke the applicable protective rules. Such qualification is sometimes theoretically difficult and always politically delicate. Sometimes, e.g., in the case of Croatia discussed below, to qualify the conflict obliges one to implicitly pass judgement upon questions of jus ad bellum. III.B. Two very different situations for the States International Humanitarian Law, however, offers two different sets of written rules for international and for non-international armed conflicts. As far as treaties are concerned, the former are regulated by the comprehensive and detailed regime of the Hague Regulations of 1907, of the four Geneva Conventions of 1949 and of the Additional Protocol I of 1977.9 The latter are regulated only by a much more summary 9

Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (“Hague Regulations”), The Hague, 18 October 1907, reproduced in Scott (ed.), The Hague Conventions and Declarations of 1899 and 1907 (3rd ed. 1918), 100–32; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, of 12 August 1949, 75 UNTS 31–83 (“Convention I”); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, of 12 August 1949, 75 UNTS 85–133 (“Convention II”); Geneva Convention relative to the Treatment of Prisoners of War, of 12 August 1949, 75 UNTS 135–285 (“Convention III”); Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, 75 UNTS 287–417 (“Convention IV”); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, of 8 June 1977, 1125 UNTS 3–434 (“Protocol I”).


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regime, contained in one single article of the Geneva Conventions, namely in their common Article 3, and in Additional Protocol II of 1977.10 This difference in the treatment of the two types of conflicts by international law is due to the fact that, despite all modern theories, international law is basically made by States and States have never agreed to treat international and noninternational armed conflicts equally. Indeed, wars between States have until recently been accepted as a legitimate form of international relations and the use of force between States is still not totally prohibited today. Conversely, the monopoly of the legitimate use of force within its boundaries is inherent in the concept of the modern State and it precludes that groups within a State may wage armed conflicts against each other or against the government. Rules of international law protecting victims of international armed conflicts have long since been accepted by States, even by those having the most absolutist concept of their sovereignty. States have very early on accepted that soldiers killing enemy soldiers on the battlefield may not be punished, in other words that they have a “right to participate” in the hostilities.11 On the other hand, the law of non-international armed conflicts is more recent. States have for a long time considered such conflicts as their internal affairs governed by their internal law. No State is ready to accept that its citizens may wage war against their government. No government is ready to renounce, in advance, punishment of rebels for their mere participation, a renunciation which is the essence of the combatant status as prescribed by the law of international armed conflicts. To apply all rules of contemporary International Humanitarian Law of international armed conflicts to non-international armed conflicts would be incompatible with the very concept of a contemporary international society made up of sovereign States. Conversely, if the international community was organized as a world State, a right for combatants to participate in hostilities independently of the cause for which they fight, as foreseen in the present law of international armed conflicts, would be inconceivable. Theoretically, one should therefore apply International Humanitarian Law of international armed conflicts and International Humanitarian Law of noninternational armed conflicts as two separate branches of law. In practice, however, once one is confronted with a question not explicitly regulated by Article 3 common to the four Conventions nor by Protocol II, or forced to interpret those less detailed provisions, one will refer to the law of international armed conflicts. Indeed, International Humanitarian Law of non-international armed conflicts must provide solutions to problems similar to those arising in international armed conflicts; it developed later and it involves the same principles, although they are elaborated, in the applicable written rules, in less detail. Analogies are necessary to provide details

10 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, of 8 June 1977, 1125 UNTS 609–99 (“Protocol II”). 11 As recalled in Art. 43 (2) of Protocol I.

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0or to fill logical gaps. Once the solution provided by the law of international armed conflicts is found, an analysis is, however, necessary to determine whether the nature of non-international armed conflicts and the fundamental differences between both protective regimes permit application of that same answer in a non-international armed conflict. III.C. The law of non-international armed conflicts is, however, better adapted to these conflicts One should not draw from the above discussion the conclusion that, from a humanitarian point of view, the law of international armed conflicts always offers better protection and that its full application to non-international armed conflicts would be the ideal to be achieved. This would be an oversimplification. III.C.1. No protected person status and no concept of occupied territory The protection traditionally offered by the law of international armed conflicts to a person who is in the hands of a belligerent, differs greatly according to the nationality of that person, to whether that person is a civilian or a combatant, and to the status of the territory on which he or she is found. Full protection as “protected persons” is offered to enemy and certain third country nationals,12 while a Party’s own nationals benefit from much more limited, fundamental guarantees.13 Combatants may be interned without any further reason until the end of active hostilities, while civilians may only be interned in exceptional circumstances.14 Protected civilians benefit from much more extensive guarantees in occupied territories, than on the “own” territory of the enemy.15 In a non-international armed conflict, it would often be difficult to practically determine who is a “combatant” and who is a “civilian”. Those categories are not foreseen in the written law as it stands for non-international armed conflicts. We will also discuss later that it would be difficult to replace nationality by another appropriate criterion.16 Finally, it would be nearly impossible conceptually to consider a government or rebels as an “occupying power” over parts of the territory of the country in which they fight. Even if a line could be drawn between a party’s own territory and the territory it occupies, this would never have the slightest chance of being respected by a party in a non-international armed conflict.

12 13 14 15 16

Cf. Art. 4 of Convention IV. Cf. in particular Arts. 13–26 of Convention IV and Art. 75 of Protocol I. Cf. Arts. 21 and 118 of Convention III and Arts. 41–43 and 78 of Convention IV. Compare Arts. 35–46 to Arts. 47–78 of Convention IV. Cf. below, Part V.D.4.


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III.C.2. Protection of all those who do not or no longer take an active part in the hostilities The law of non-international armed conflicts, conversely, protects according to the actual situation of a person. Most of its rules benefit all persons not or no longer taking an active part in the hostilities, without any adverse distinction.17 Other, additional rules protect persons in particularly risky situations, e.g., those whose liberty has been restricted for reasons related to the armed conflict or who face penal prosecutions.18 It is not only champions of the dogma of “State sovereignty” who may consider that such rules are much more appropriate for the necessarily less formalized and more fluid situations of non-international armed conflicts. III.C.3. The regulation of “ethnic cleansing” All of the preceding analysis can be illustrated by an example of unfortunate actuality. The horrible practice of “ethnic cleansing”, so widely used in the former Yugoslavia, is clearly prohibited by International Humanitarian Law of international and of non-international armed conflicts if the means used to expel the victims are unlawful as such, e.g., murder, rape, pillage, etc. The law of noninternational armed conflicts, in addition, prohibits any forced movement of civilians.19 The law of international armed conflicts is weaker on this point. Only out of occupied territories, does Article 49 (1) of Convention IV prohibit “[i]ndividual or mass forcible transfers, as well as deportations of protected persons […], regardless of their motive.” Out of a Party’s own territory, expulsions of “protected civilians”, i.e., foreigners, are not explicitly prohibited.20 Nothing is foreseen, in the law of international armed conflicts, concerning the expulsion of civilians who do not fall under the definition of protected persons. The question of the expulsion of the State’s own nationals has probably been considered as regulated by national legislation and International Human Rights Law. III.D. The traditional standards applied to distinguish the two categories of conflicts Under Article 2 common to the four Conventions, the law of international armed conflicts applies to those conflicts fought between two or more High Contracting Parties. Basically, only States can be High Contracting Parties. The law of non-

17 18 19 20

Cf. Art. 3 common to the four Conventions and Art. 4 of Protocol II. Cf. Arts. 5 and 6, respectively, of Protocol II. Cf. Art. 17 of Protocol II. Art. 35 of Convention IV regulates only their right to leave the territory and J.S.Pictet (ed.), 4 Commentary, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (ICRC, 1958), 235, considers that “the right of expulsion has been retained”.

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international armed conflicts conversely applies to all other armed conflicts occurring on the territory of a High Contracting Party, except that the law of international armed conflicts applies if the government recognizes the belligerency of rebels, or, partially or entirely, through agreements21 between the parties to a non-international armed conflict. The international community has, in addition, decided to move a certain category of conflicts from the category of non-international armed conflicts to that of international armed conflicts: Article 1 (4) of Protocol I clarifies that national liberation wars fall under the law of international armed conflicts. Under this distinction, many conflicts have been obviously of a mixed character, either because foreign powers intervened in a non-international armed conflict or because international armed conflicts were fought, in particular during the Cold War, through local proxies. In such mixed conflicts, the law of international armed conflicts applied to the relation, i.e., the fighting, between (the armed forces of) two States and the law of non-international armed conflicts to the fighting between the government and rebel forces.22 According to the general rules of State responsibility, this necessity to fragment a conflict into its components found its limit in the case in which a party to a non-international armed conflict could be considered as the de facto agent of an intervening State, in which case its behaviour fell under the law of international armed conflicts. IV. The conflicts in the former Yugoslavia This is not the place to analyse the reasons for the conflicts in the former Yugoslavia. It may however be appropriate to recall some of the events which preceded the conflicts: —The economic crisis of the Yugoslav system of self-governing economy and economic tension between the richer northern and the poorer southern Republics. —Bloody riots in Kosovo (1981, 1989, 1990) by the large Albanian majority living in that historical heartland of Serbia, pressing the Serb minority towards emigration; the abolition of the autonomous status of Kosovo, which was an autonomous province within Serbia, but also a subject of the Federation (1988). —The publication of a Serb nationalist Memorandum by the Serbian Academy of Sciences and the rise to power of the Serb nationalist politician Slobodan Milosevic in Serbia (1986).

21 See Part V.B. below. The law applied based on such agreements is not the agreement itself but International Humanitarian Law, as such application is foreseen by Art. 3 (3) common to the four Conventions and the substantive law applied is that of the law of international armed conflicts. 22 See the judgement of the ICJ in the case Nicaragua v. United States, Merits, ICJ Reports 1986, 14 ff., para. 219, and D.Schindler, The different types of armed conflicts according to the Geneva Conventions and Protocols, 163 RCADI (1979–II), 150.


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—The disbanding of the communist one-party system with the formation of opposition parties in the Republics of Slovenia and Croatia (1988) and multi-party elections in all six Republics bringing nationalist parties to power. In 1991, the fragmentation increased to such a degree that the Republics of Slovenia and Croatia wanted to become independent and the central Yugoslav institutions were increasingly blocked by a stalemate between the “Serb bloc” and those two Republics. IV.A. The conflicts in Croatia (and Slovenia) On June 25, 1991, Croatia and Slovenia declared their independence. At the request of the European Community, these declarations were suspended, under the Brioni Agreement of 7 July 1991, until 7 October 1991. It was, however, only in 1992 that third States started to recognize Croatia and Slovenia. On 22 May 1992, Croatia and Slovenia were admitted to the United Nations. In Slovenia, the armed conflict lasted for only ten days in the summer of 1991 and was successful for Slovenia, in that it resulted in the retreat of the Yugoslav Peoples’ Army from Slovenia. In Croatia, the situation was much more complicated. The Serbs living in Eastern Slavonia, Western Slavonia, and the Krajinas did not agree with the independence of Croatia and opposed it violently. The Yugoslav Peoples’ Army tried to hinder Croatia from what it qualified as a secession and to maintain itself in at least the parts of Croatia preponderantly inhabited and controlled by the Serb minority by first trying to intercede between Croat and local Serb forces and later more and more openly supporting local Serb forces. As a result, the Yugoslav Peoples’ Army obtained or maintained, through fierce fighting, control over one third of the territory of Croatia. This armed conflict continued until the first days of 1992. On January 4, 1992, the 15th cease-fire agreement between Croatia and the Yugoslav People’s Army entered into force and was long-lasting. On February 21, the UN Security Council established, through Resolution 743 (1992), the United Nations Protection Forces (UNPROFOR), which were deployed, in particular, in the Serb held territories in Croatia, with the mandate of ensuring that these “UN Protected Areas” (UNPAs) were demilitarized and that all persons residing in them were protected from fear of armed attack. In reality, UNPROFOR could only partly fulfil this mandate as local Serb forces remained in control of the areas and continued to expel local Croats. Those local Serbs continued to receive support from Belgrade and formed the “Republic of Serbian Krajina”, which controlled nearly one third of the territory of Croatia in its frontiers within the former Yugoslavia. In May 1995, Croatian forces again took control over Western Slavonia, and in August they took control over the rest of the UNPAs except Eastern Slavonia. In both cases nearly all Serb inhabitants fled to the Serb controlled regions of the former Yugoslavia. Control over Eastern Slavonia was gradually handed over to Croatia between 1996 and 1998 under the Dayton Agreement.

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IV.B. The conflicts in Bosnia and Herzegovina

IV.B.1. The independence of Bosnia and Herzegovina Bosnia and Herzegovina is ethnically divided between a relative majority of Bosniac Muslims (considered as a nationality called “Muslims” in the former Yugoslavia), Serbs, and Croats. In April 1992, it declared its independence following a referendum, boycotted by Serbs, in which Muslims and Croats voted in favour of independence. An armed conflict broke out between (Muslim and Croat) forces loyal to the government and supported by Croatia, on the one hand, and Bosnian Serb forces opposing the independence of Bosnia and Herzegovina, supported by the Federal Republic of Yugoslavia (FRY), on the other. On 7 April 1992, Bosnia and Herzegovina was recognized by the Member States of the European Union and many other States soon followed. On 22 May 1992, it was admitted as a Member State to the UN. Officially, the Yugoslav Peoples’ Army withdrew from Bosnia and Herzegovina on 18 May 1992. However, its units made up of Bosnian Serbs remained on the spot, with all their heavy military material, and functioned as the army of the “Republika Srpska” which had declared its independence on 7 April 1992. This conflict, in which Bosnian Serb forces gained control over vast areas previously inhabited mainly by Muslims and Croats, whom they expelled, lasted until 1995. In 1995, following NATO air-strikes and successful military offensives by Croatian and Bosnian government forces in the Croatian Krajinas and Western and Central Bosnia, the international community, led by the US, persuaded the parties to conclude a cease-fire on October 5, 1995. After considerable pressure and exhausting negotiations with the Presidents of Bosnia and Herzegovina, Croatia, and Serbia (the latter two also representing the Bosnian Croats and Serbs, respectively) the Dayton Peace Agreement was reached in Dayton, Ohio on November 21 and signed in Paris on December 14. IV.B.2. The Croat-Bosniac conflict In the beginning of 1993, the Co-Presidents of the International Conference on the Former Yugoslavia, Cyrus Vance and Lord Owen, presented a peace plan for Bosnia and Herzegovina (the Vance-Owen Plan), which involved dividing it into 10 nationally defined cantons. While Bosnian Croats were delighted by the plan which increased their territory, Bosnian Serbs rejected it coolly. The Bosnian (Muslim) President was un decided. The Bosnian Croats which had declared their independence as the “Croatian Community of Herceg-Bosna” on 4 July 1992, tried to implement the plan forcefully in central Bosnia. They demanded that the Bosnian government forces withdraw from within the borders of their assigned cantons and that a joint command of the forces of the Croat Defence Council (HVO) and the Army of Bosnia and Herzegovina be established. If not, HVO threatened to implement the Vance-Owen Plan itself. After the deadline expired, on April 16, 1993, HVO forces


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carried out a co-ordinated attack on a dozen villages in the Lasva Valley (belonging to a Croatian canton under the Vance-Owen Plan). Troops from Croatia were present on HVO-controlled territory but did not fight in the Lasva Valley. Croatia financed, organized, supplied, and equipped HVO. After causing extensive human suffering in Central Bosnia and in the Mostar region, this conflict was stopped only under considerable US pressure through the Washington Agreement of 2 March 1994. IV.B.3. The conflict in the Bihac area The Bihac area in the western-most part of Bosnia and Herzegovina is inhabited nearly exclusively by Bosnian Muslims. Mr Fikret Abdic, a Muslim businessman and politician, and his followers (mainly the employees of his “Agrokommerc” industry near Velika Kladusa) controlled the northern part of this area and were not ready to follow the politics of the Bosnian government. They claimed autonomy and aligned themselves with the Bosnian Serbs and the neighbouring Croatian Serbs. An armed conflict followed, with Bosnian government forces in the Bihac enclave also besieged by Bosnian and Croatian Serb forces. In 1995, this two-and-a-halfyear siege was ended by an offensive of Croatian forces against the Croatian Serb forces. When Bosnian government forces subsequently took Velika Kladusa, the followers of Mr Abdic fled into neighbouring Croatia. IV.C. The conflict in Kosovo The tragedy of the former Yugoslavia started in the eighties in Kosovo. Tensions then continued there all during the nineties between the Albanian majority population and the Serb security forces. In 1998, these tensions intensified into an armed conflict between the “Kosovo Liberation Army” and Serb forces. In 1999, this conflict was aggravated by massacres against the Albanian civilian population, NATO air-strikes against the FRY and the expulsion of large parts of the Albanian majority population from their homeland. One can only hope that the recent agreement to put Kosovo under the control of international forces and the retreat of the Serb forces, permitting the return of the refugees, was the last act in the Yugoslav tragedy. Recent massacres perpetrated against local Serbs raise some doubts in this respect. V. The arguments used to qualify the conflicts V.A. From which moment on does a war of independence become an international armed conflict? Whatever their legitimacy under international law or under the constitutional law of the former Socialist Federative Republic of Yugoslavia, the conflicts in Slovenia and Croatia in 1991, the conflict between the “Republic of Serbian Krajina” and Croatia from 1992 to 1995, and the conflicts between Bosnian government forces

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on the one hand and Bosnian Serb forces, Bosnian Croat forces or the followers of Mr Abdic, on the other hand, could be seen as cases in which parts of an existing State tried to or were successful in breaking away. To qualify them as international or non-international armed conflicts, the decisive question under traditional law would be whether the part breaking away was already, or when it became, an independent State. From that moment on, the conflict would be an international one. The traditional criteria of statehood are a defined territory, permanent population, and a government clearly manifesting its effectiveness.23 In all the above mentioned cases, the question arose as to whether a territory over the boundaries of which there is still fighting can be considered as defined. Whatever answer is given to this question of international law, it must be the same for all these cases. The ICTY Appeals Chamber considered the conflict in Croatia to be an international one “by the involvement of the Yugoslav National Army”.24 In his separate opinion, Judge Li was more precise, qualifying that conflict as international from 8 October 1991, since Croatia’s and Slovenia’s declaration of independence came into effect on this date.25 Conversely, the Appeals Chamber considered that “it cannot be contended that the Bosnian Serbs constitute a State”, and their conflict therefore could only be classified as international based on the assumption that they were organs or agents of the Federal Republic of Yugoslavia (FRY).26 Concerning the Bosnian Croats too, an ICTY Trial Chamber considered that their behaviour could only fall under the law of international armed conflicts because of the involvement of Croatia.27 Finally, in the case of the “Serbian Republic of Krajina”, an ICTY Trial Chamber did not explain why it simultaneously applied to the “Republic’s” conduct of hostilities the law of non-international and international armed conflicts.28 The UN Security Council, however, had called the areas controlled

23 Cf., e.g., I.Brownlie, Principles of Public International Law (4th ed., 1990), 73; M.Akehurst, A Modern Introduction to International Law (6th ed., 1987), 75 ff. 24 Cf. Tadic Jurisdiction, n. 7 above, para. 72. 25 Cf. Ibid. (Sep. op. Li). The Swiss Divisional Court Martial I followed the same approach in the case of G. heard from 14 to 18 April 1997 (in M.Sassòli & A.Bouvier, How Does Law Protect in War? (1999), Case No. 165). J.O’Brien, The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, 87 AJIL (1993), 647, goes so far as to consider that the conflicts started to be international on 25 June 1991, when Croatia and Slovenia “began declaring their independence”. 26 Cf. Tadic Jurisdiction, n. 7 above, para. 76. Judge Kreca considered in his Dissenting Opinion in the case Application of the Genocide Convention, Preliminary Objections, ICJ Reports 1996, 765, that there was an international armed conflict between the Republika Srpska and the Republic of Bosnia and Herzegovina. A US Court considered that “Srpska” satisfied the criteria for a State and its leader therefore fulfilled the State Action Requirement for violations of international law under the US Alien Tort Act (see Kadic et al. v. Karadzic (US 2d Cir. 1995), 34 ILM (1995), 1595–614). 27 Cf. ICTY, The Prosecutor v. Rajic, Review of the Indictment (13 Sept. 1996), paras. 9–31. 28 Cf. ICTY, The Prosecutor v. Martic, Review of the Indictment (8 Mar. 1996), paras. 8–18. Perhaps the Chamber assumed that the mentioned provisions of the law of international armed conflicts had become part of the law of non-international armed conflicts. In this case one wonders, however, why the Chamber mentioned also some provisions which have exactly the same meaning in Protocol I and in Protocol II (cf., e.g., paras. 12 and 16 of the decision).


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by that “Republic” “integral parts of the territory of the Republic of Croatia.” In the same resolution, it nevertheless called for “full respect for […] the Geneva Conventions in these areas.”29 Perhaps the ICTY made an implicit assumption that in all cases other than that of Slovenia and Croatia, the government of the break-away part was not sufficiently independent of external control from Belgrade or, in the case of the Bosnian Croats, from Zagreb, to fulfil the criteria of statehood.30 It may be that the foregoing discussion neglects the important tendency in international law to recognize or deny statehood based on considerations of legitimacy and not only on the traditional three criteria.31 Under this criterion, the reaction, whether declaratory or constitutive of statehood, of the existing members of the international society would be decisive. The ability and willingness to act in accordance with international law could thus be described as being the overriding criterion. It has been suggested that cases like Rhodesia, the Turkish Republic of Northern Cyprus, the Republika Srpska, and the Serbian Republic of Krajina, on the one hand, and of Croatia and Bosnia and Herzegovina, on the other hand, prove that this criterion is decisive in the State practice of recognizing statehood.32 Whatever the merits of this theory for explaining some of the apparent double standards of the international society, it is not very helpful for the qualification of the conflict in Croatia. Indeed, with less than 30 States having recognized Croatia on 4 January 1992, when the actual conflict with the Yugoslav Peoples’ Army ended, and Croatia having been admitted to the UN only on 22 May 1992, such legitimizing influence was very limited at the decisive moment for International Humanitarian Law. One may notice in this context that on 21 February 1992, the UN Security Council still referred to “Yugoslavia”, while on 15 May 1992 it referred for the first time to “the former Socialist Federal Republic of Yugoslavia”.33 At that moment, the authorities in Belgrade themselves no longer claimed that Croatia was a part of their territory.34 Another factor which could make a conflict within an existing State an international one is the right to self-determination under international law. Whether the Croats had a right to break away based on this right is very difficult to determine, as the

29 Cf. para. 5 of Resolution 815 (1993) of the Security Council. 30 Only Judge Li explained, in his Separate Opinion, n. 25 above, 18, why the conflict in Bosnia and Herzegovina had remained, in his opinion, basically a conflict between that country and the FRY. 31 Cf. Vera Gowlland-Debbas, Collective Responses to Unilateral Declarations of Independence of Southern Rhodesia and Palestine: An Application of the Legitimizing Function of the United Nations, 61 BYIL (1990), 135–53. 32 Cf. C.Hillgruber, Die Aufnahme neuer Staaten in die Völkergemeinschaft (1998), 722–31. 33 Cf. Resolutions 743 (1992) and 752 (1992), respectively, of the Security Council. 34 On 27 April 1992, the constitution of the FRY, comprising only Serbia and Montenegro, was adopted in Belgrade. Once one part of a country declares its independence and the other parts of the country no longer claim that that part is still part of their country, a conflict between the two parts of the former country must be subject to the International Humanitarian Law of international armed conflicts.

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extent of the right to external self-determination, beyond the clear cases of colonial domination, foreign occupation and racist regimes, which were not those of the former Yugoslavia, is very controversial. The most traditional claim is that a people can exercise the right to external self-determination only once. The Croat people did that when they joined Yugoslavia after World War I. Others would, however, claim that the right to self-determination is an ongoing right, which could give a people a right to secede in extreme cases of human rights violations. In any event, the right to self-determination could only give a people the right to secede where it lives, but not to a federate State to secede within its frontiers as they existed in the former federal State and which included parts inhabited by a majority of a people which do not want to secede, as in the case of the Serbs of the Krajinas in Croatia.35 Finally, whatever the intrinsic merits of all those statehood theories for other purposes, any theory which would make the determination of rules of International Humanitarian Law applicable in a given conflict directly or indirectly dependent on the legitimacy of the claims of a party, is very dangerous. First, it violates the fundamental distinction between jus ad bellum and jus in bello discussed above,36 which dictates that International Humanitarian Law must apply independently of the legitimacy of the causes espoused by the parties. Second, the legitimacy of their cause is by definition the very controversy over which the parties of a conflict are fighting. The victims of the conflict, however, need legal protection at that very moment. Third, even if the international community ever agrees on the legitimacy of a statehood retrospectively after the conflict, the law applicable to the conflict must be clear during the fighting. The criteria to determine whether and which International Humanitarian Law applies should therefore be as objective as possible and dependent as little as possible on the reasons for the conflict, the aims of the parties or the outcome of the conflict. V.B. Of what significance are special agreements between the parties? The International Committee of the Red Cross (ICRC) had to face, because of the above-mentioned difficulties in qualifying the conflict, the resulting inability to invoke the protective rules of International Humanitarian Law in its operations. The ICRC therefore, beginning in November 1991, invited plenipotentiaries of the belligerent sides to Geneva in order to agree on rules to be respected in their armed conflict.37 The ICRC wished those rules to be as close as possible to those that International Humanitarian Law prescribes for international armed conflicts. On 27 November

35 On this the European Arbitration Commission chaired by Robert Badinter came to the very opposite conclusion. It considered that because of the principle “uti possidetis” and provisions of the constitution of the former Socialist Federative Republic of Yugoslavia, the former internal frontiers must be the new international frontiers, and that those frontiers cannot be modified based on the right to selfdetermination (cf. Opinions 2 and 3, 31 ILM (1992), 1499–500). 36 See n. 5 above.


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1991, a Memorandum of Understanding was concluded between representatives of the Yugoslav Peoples’ Army, the Republic of Croatia, the Executive Council of the Socialist Federative Republic of Yugoslavia, and the Republic of Serbia, in which they agreed to respect most, but not all, rules of International Humanitarian Law of international armed conflicts. They did not in particular include the rules on occupied territories of the Fourth Convention. The ICTY has invoked this agreement and the fact that, unlike later agreements on Bosnia and Herzegovina, it was not explicitly based on Article 3 (3) common to the four Conventions,38 as evidence that the parties and the ICRC considered the conflict to be international.39 The agreements on Bosnia, conversely, were based on Article 3 (3) common to the four Conventions and omitted some more rules of International Humanitarian Law of international armed conflicts. These agreements were considered as evidence for the noninternational character of that conflict, as the ICRC could not be supposed to suggest an agreement violating the prohibition of agreements depriving protected persons of some of their rights.40 If the latter argument is true, it should, however, also apply to the agreement for Croatia and that conflict therefore should also be qualified as non-international. The present author thinks that such arguments are too formalistic and dangerous from a humanitarian point of view. Confronted with an actual conflict, the first priority of the ICRC as a humanitarian organization must always be to get the parties to apply as much of International Humanitarian Law as possible.41 To this end, it must avoid any linkage between the application of International Humanitarian Law and the cause for which the parties are fighting, i.e., in a war of independence, the question of whether the entity breaking away is a State or not. The parties to such a conflict should be encouraged to agree to apply as much of International Humanitarian Law as possible, and not be threatened, as the ICTY does with its theory, that so agreeing sets a precedent on the question whether the seceding entity is a State or not. Otherwise, they will no longer conclude such agreements.

37 Cf. Y.Sandoz, Reflexions sur la mise en oeuvre du droit international humanitaire et sur le role du Comité international de la Croix-Rouge en ex-Yougoslavie, 3 Revue suisse de droit international et de droit européen (1993), 464–70. Some of these agreements are reproduced in M.Mercier, Crimes Without Punishment (1996), 195–207, and in Sassòli & Bouvier, n. 25 above, Case No. 151. 38 Which calls upon the parties of a non-international armed conflict to “endeavour to bring into force, by means of special agreements, all or part of the other provisions” of the respective Convention. 39 Cf. Tadic Jurisdiction, n. 7 above, para. 73. If this was true, why should they have concluded on 22 May 1992 a supplementary agreement (cf. Sandoz, n. 37 above, 467), bringing all of the law of international armed conflicts into force? 40 Cf. Tadic Jurisdiction, n. 7 above, para. 73, and Art. 6, 6, 6 and 7, respectively of the four Geneva Conventions. 41 Cf. Meron, n. 4 above, 237.

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V.C. Condemnation of war crimes as an implicit qualification of a conflict? An implicit qualification of the conflicts could be seen in the fact that the UN Security Council repeatedly condemned violations of International Humanitarian Law42 and reaffirmed the individual criminal responsibility of persons committing such violations.43 Indeed, as Judge Li pointed out in his separate opinion in the Tadic case, under international law, the concept of war crimes implying individual criminal responsibility for violations of International Humanitarian Law, was traditionally confined to international armed conflicts.44 However, in connection with the conflicts in the former Yugoslavia, the law has developed and this cannot be considered to be a double standard, as the same rule has in the meantime been applied to the clearly internal conflict in Rwanda and has been laid down as a general rule in the Statute of the International Criminal Court.45 However, the Security Council went further and condemned the commission of “grave breaches”.46 This concept of grave breaches should be explained. The Geneva Conventions and Protocol I list and define a certain number of violations as “grave breaches”.47 They require States Parties to enact legislation to punish such grave breaches, to search for persons who have allegedly committed such crimes, and to bring them before their own courts or to extradite them to another State for

42 The present author would submit that the numerous calls by the Security Council to respect “the Geneva Conventions” (cf., e.g., SC Res. 764, 771, 780 and 787 (1992)) cannot be understood as an affirmation that they apply in their entirety and not only their common Article 3 and the provisions the parties agreed upon. Contra C.Greenwood, International Humanitarian Law and the Tadic Case, 7 EJIL (1996), 318. 43 Cf. SC Res. 764 (1992), 787 (1992), 913 (1994), 941 (1994), and 1010 (1995). 44 Cf. Judge Li, in his Sep. op., n. 25 above, paras. 5–13, referring also to an opinion expressed by the ICRC in 1993, and D.Plattner, The Penal Repression of Violations of International Humanitarian Law Applicable in Non-international Armed Conflicts, 278 International Review of the Red Cross (1990), 414. At least in 1994 this was interestingly enough still the opinion of Theodor Meron, War Crimes in Yugoslavia and the Development of International Law, 88 AJIL (1994), 80, and of the Commission of Experts established pursuant to Security Council Resolution 780 (1992), Final Report of 27 May 1994, S/1994/674, para. 42. 45 See Statute of the International Criminal Tribunal for Rwanda, Annex to Resolution 955 (1994), Art. 4, and Art. 8 (2) (c) and (e) of the Statute of the International Criminal Court, adopted in Rome on 17 July 1998. What is more delicate, however, is the fact that this very rapid development of International Humanitarian Law was applied, in 1995, to acts committed by Tadic in 1992, when most authorities (see n. 44 above) still considered the concept of war crimes to be limited to international armed conflicts. The present author, however, considers that this is no violation of the principle “nullum crimen sine lege” because all the acts of which Tadic was accused were criminalized by the penal law of the former Yugoslavia (cf. M.Sassòli, La première décision de la Chambre d’appel du Tribunal pénal international pour l’ex-Yougoslavie: Tadic [compétence], RGDIP (1996), 128–30). See also the convincing line of arguments by T.Meron, International Criminalization of Internal Atrocities, 89 AJIL (1995), 565–68. 46 Cf. SC Res. 764 (1992), para. 10, SC Res. 771 (1992), para. 1, and SC Res. 780 (1992), para. 1. 47 Cf. Art. 50 of Convention I, Art. 51 of Convention II, Art. 130 of Convention III, Art. 147 of Convention IV, and Arts. 11 (4), 85 and 86 of Protocol I.


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prosecution. They confer to all States Parties universal jurisdiction over grave breaches and, what is more, require them to use such jurisdiction, regardless of the nationality of the alleged offender, the nationality of the victim, and where the crime was committed. According to the text and the system of the Conventions and Protocols, the concept of grave breaches does not apply to violations of the law of noninternational armed conflicts. First, common Article 3 and Protocol II are silent on the criminalization of their violations. Second, the field of application of the provisions on grave breaches is limited, as for all articles of the Conventions other than common Article 3, by Article 2 common to the Conventions to international armed conflicts. Third, the mentioned provisions limit the concept of grave breaches to acts “against persons or property protected by the present Convention”, and the term of “protected person” is, as far as civilians are concerned, limited to “[p]ersons […] who […] find themselves […] in the hands of a Party to the conflict […] of which they are not nationals.”48 Fourth, grave breaches include some acts committed against protected persons which are not even prohibited by International Humanitarian Law if committed by a State towards its own nationals. Thus, “compelling a protected person to serve in the forces of a hostile Power” is a grave breach,49 while in a noninternational armed conflict civilians, although protected by the applicable law, may be under a legal obligation to serve in the armed forces of the government, even if they consider it to be a hostile government. In the resolution establishing the ICTY50 and in the report of the Secretary-General on which it is based,51 no attempt is made to qualify the conflicts. The resolution does not refer to “grave breaches”, but to “serious violations of International Humanitarian Law”. The Statute of the Tribunal and the Report of the SecretaryGeneral count, however, “grave breaches” among the most evident examples of such “serious violations”.52 The ICTY Appeals Chamber has recognized that this concept of “grave breaches” can only apply in international armed conflicts.53 There are, though, some diverging views.54 If grave breaches can only exist in international armed conflicts and the Security Council refers to grave breaches in the context of the conflicts in the former Yugoslavia, some of those conflicts must, necessarily have been considered as international by the Security Council,55 although it is not clear to which conflicts it

48 49 50 51 52 53 54 55

Cf. Art. 4 of Convention IV Cf. Art. 130 of Convention III and Art. 147 of Convention IV. Cf. SC Res. 827 (1993). Cf. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), 3 May 1993, UN Doc. S/25704. Cf. Art. 2 of the Statute. Cf. Tadic Jurisdiction, n. 7 above, paras. 79–83. Cf. Ibid. (Sep. op. Abi-Saab), Chapter IV; Amicus curiae brief presented by the United States of America (17 July 1995), 35–36. One may, however, notice that the Security Council has also referred to “grave breaches” in such a clearly internal armed conflict as the current one in Afghanistan (cf. SC Res. 1193 (1998), para. 10).

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referred. In only one resolution referring to Bosnia and Herzegovina did the Security Council refer to “grave breaches” without identifying the party responsible.56 When it referred to specific behaviour of the Bosnian Serbs, it usually simply reaffirmed the individual responsibility for violations of International Humanitarian Law.57 When referring to acts by Croatian forces when capturing the Krajinas, it simply demanded Croatia to judge and punish those responsible for violations of International Humanitarian Law.58 V.D. When are rebels sufficiently dependent upon a foreign State to make the law of international armed conflicts applicable to their acts? As mentioned above, the law of international armed conflicts not only applies to conflicts between armed forces of different States, but also to rebels fighting on the territory of one State against its government, if those rebels appear as de facto agents of another State. It is uncontroversial that the Federal Republic of Yugoslavia (FRY) supported the Bosnian Serbs and Croatian Serbs and that Croatia supported the Bosnian Croats. What is controversial, however, is not only the factual degree of this support, but also the legal standard according to which such outside support can make International Humanitarian Law of international armed conflicts applicable to the behaviour of the rebels. V.D.1. Controversies about the applicable standard The International Court of Justice (ICJ) had to define this standard when it had to decide whether the violations of International Humanitarian Law committed by the Nicaraguan contras could be attributed to the US as its own behaviour. The argument of the ICJ for not attributing the acts of the contras to the US was that the US participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself […] for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. […] For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had

56 Cf. SC Res. 764 (1992), para. 10. 57 Cf. SC Res. 787 (1992), para. 7; SC Res. 913 (1994), preambular para. 6; SC Res. 941 (1994), para. 2, and SC Res. 1010 (1995), para. 3. 58 Cf. SC Res. 1019 (1995), para. 6.


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effective control of the military or paramilitary operations in the course of which the alleged violations were committed.59 An ICTY Trial Chamber applied this same standard to the Tadic case and decided that after 19 May 1992, the Bosnian Serb forces could not be considered as de facto organs or agents of the FRY because the latter did not exercise control over the activities of the former.60 This standard is also very similar to that suggested by the ICRC Commentary which considers that when a violation has been committed by someone who is not an agent of an occupying power, but by local authorities, “what is important is to know where the decision leading to the unlawful act was made, where the intention was formed and the order given.”61 Eminent authors and an ICTY Trial Chamber have strongly argued that the test applied for the purpose of establishing State responsibility cannot be used to determine whether the “grave breaches” provisions apply.62 The ICTY Appeals Chamber correctly rejected this argument.63 State responsibility and individual responsibility are admittedly different issues and the ICJ had not to determine in the Nicaragua case whether the law of international or of non-international armed conflicts applied, for the simple reason that it considered the prohibitions of common Article 3 to apply, as a minimum yardstick, to both kinds of conflicts.64 The preliminary underlying issues are, however, the same in both cases. Indeed, before State responsibility or individual responsibility can be established in a given case, the rules according to which the State or the individual should have acted in that case have to be clarified. Only if the acts of the Nicaraguan contras had been attributed to the US, these acts, as acts of the US against Nicaragua, were subject to International Humanitarian Law of international armed conflicts. Similarly, the law of international armed conflicts could only apply to acts of Mr Tadic, a Bosnian Serb, committed, in a conflict with the Bosnian government, against Bosnian Muslims, if those acts could be legally considered as acts of another State, the FRY In both cases, the Nicaragua case and the Tadic case, the question therefore arose as to when acts of rebels in an internal conflict can be legally considered as acts of a third State.

59 60 61 62

Cf. Nicaragua, Merits, ICJ Reports 1986, 14, paras. 110–15. Cf. ICTY, The Prosecutor v. Tadic, Judgement (Merits) (7 May 1997), paras. 578–607. Cf. Commentary, n. 21 above, 212. Cf. B.Fenrick, The Development of the Law of Armed Conflict through the Jurisprudence of the International Tribunal for the Former Yugoslavia, in M.Schmitt & L.Green (eds.), The Law of Armed Conflict: Into the Next Millennium (71 International Law Studies) (1998), 85–92; Meron, n. 4 above, 236– 42, and another Trial chamber of the ICTY in The Prosecutor v. Delalic et al. (“The Celebici case”) (16 Nov. 1998), paras. 230–31. 63 Cf. ICTY Appeals Chamber, Prosecutor v. Dusko Tadic, Judgement (15 July 1999) (“Tadic Appeals Judgement”), paras. 103–5. 64 Cf. Nicaragua, Merits, ICJ Reports 1986, 14, para. 219. One wonders why the ICTY could not use the same line of argument. It could thus have avoided many legal controversies. It would, however, also have deprived the present writer of an opportunity to honour the memory of Judge Li.

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The ICTY Appeals Chamber, however, decided in the Tadic Appeals Judgement case that the test applied by the ICJ in the Nicaragua decision was unconvincing even for the purpose of establishing State responsibility, because it was contrary to the very logic of the law of State responsibility and at variance with State and judicial practice.65 In its view, when responsibility for a military organization was in question, overall control by a foreign State over that organization was sufficient to render the foreign State responsible for all acts of that organization and to make International Humanitarian Law of international armed conflicts applicable to its acts.66 First, one may question whether it is appropriate that the ICTY provides to a question of general international law a different answer than that given by the ICJ, the principal judicial organ of the United Nations.67 Even if the theory of the ICTY Appeals Chamber is well reasoned, the ICJ can be expected to continue to apply its theory to inter-State disputes worldwide, and double standards will therefore inevitably result. Second, with the exception of a German case concerning the former Yugoslavia, the practice mentioned by the Chamber consists mainly of cases where a State was held responsible for armed groups acting on its own territory. There, territorial control might have been the decisive factor. The other case mentioned by the Chamber is that of an occupied territory,68 where armed forces of the occupying power were actually present and where International Humanitarian Law expressly prescribed that protected persons cannot be deprived of their rights by any change introduced into the institutions of the territory.69 One may doubt whether those precedents can be applied without further arguments to the Tadic case, where a local military group was constituted, out of the rests of the army of the former central State, on the territory of a State falling apart. Third, as far as the logic of the law of State responsibility is concerned, the Appeals Chamber is certainly correct in affirming that a State should not hide behind a lack of specific instructions to disclaim international responsibility for a military group, whether at home or abroad. Abroad, this argument is only convincing if the group has been entrusted with a certain task. As far as the Bosnian Serbs are concerned, one may, however, argue that they were executing their own task. Whether rightly or wrongly, they did not want to join the State of Bosnia and Herzegovina.

65 Cf. Tadic Appeals Judgement, n. 63 above, paras. 115–45. 66 Earlier a Trial Chamber of the ICTY had already come to a similar conclusion in the Celebici case. Because of the continuing involvement of the FRY, it applied the law of international armed conflicts to the detention of Bosnian Serbs by Bosnian Muslims, considering that the Nicaragua test was not applicable to the question of individual responsibility (cf. the Celebici Judgement, n. 62 above, paras. 233 and 234). 67 Cf. Art. 92 of the UN Charter. 68 Cf. Loizidou v. Turkey, ECHR Reports of Judgments and Decisions 1996, 2216 ff., paras. 56 and 57. 69 Cf. Art. 47 of Convention IV.


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V.D.2. Application of the standard to the Bosnian Serbs and Croats When the overall control test had to be applied to the case of the Bosnian Serbs, the Appeals Chamber came to the conclusion that they were under such control by the FRY.70 It mentioned, similarly to the Trial Chamber, impressive circumstantial evidence for the existence of such control. Perhaps it neglected the particularities of the situation of a State falling apart into several States, where the armed forces of the former central State necessarily have many links with the former central authorities which are now foreign authorities. As such links are inherent in the situation, they are not necessarily an indication of control. The Appeals Chamber added the argument that the FRY had signed the Dayton Peace Agreement for the Bosnian Serbs. With all due respect, this argument is almost contrary to good faith, when one recalls that it has been the international community, and particularly the US, which has refused to negotiate with the Bosnian Serbs and which obliged the FRY to negotiate and sign for the Bosnian Serbs.71 Another Trial Chamber of the ICTY came to similar conclusions concerning the involvement of Croatia in the conflict in Bosnia and Herzegovina, in a Review of an indictment against an absent defendant,72 the Bosnian Croat commander Ivica Rajic. In that case, the Trial Chamber applied the law of military occupation of the law of international armed conflicts to an attack launched on the Bosnian Muslim village of Stupni Do, because it considered the Bosnian Croats as agents of Croatia. According to this Chamber, this was sufficient to apply International Humanitarian Law of international armed conflicts to all their acts, independently of whether Croatia had specific operational control over these acts.73 This led to the astonishing result that a Bosnian village became a territory occupied by Croatia and its inhabitants were legally in the hands of Croatia, although possibly no one in Croatia ordered or even knew that this village would be taken and the attacking forces were possibly the inhabitants of the neighbouring Bosnian Croat village, or even inhabitants of the village to be “occupied”. V.D.3. Risks inherent in the theories adopted by the ICTY and suggested in scholarly writings In any case, there are some risks inherent in theories like those applied by the Appeals Chamber in the Tadic case and by the Trial Chamber in the Rajic case. First, such theories imply an unintended form of judicial ethnic cleansing. Instead

70 Cf. Tadic Appeals Judgement, n. 63 above, paras. 146–62. Earlier, Trial Chambers had come to similar conclusions in the Review of the Indictment of a Bosnian Serb (cf. ICTY, The Prosecutor v. Nikolic (20 Oct. 1995), para. 30) and in the trial of Bosnian Muslims and Croats in the Celebici case, n. 62 above, paras. 233 and 234. 71 Cf. Richard Holbrooke, To End a War (1998), 4, 5, 99, 105–7, 139, 140, 148–51, 197, 243, 255, 256, 310, and 341–43. 72 According to Rule 61 of the Rules of Procedure and Evidence of the ICTY. 73 Cf. Rajic, n. 27 above, para. 25.

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of constituent peoples of Bosnia and Herzegovina, the Serbs and Croats are considered as agents of a foreign State. If their acts can be legally attributed to a foreign State, why should they themselves not be “attributed” to that State, i.e., considered to be foreigners? This is precisely what a Trial Chamber concluded in the Celebici case, arguing that Bosnian Serbs detained by the Bosnian government were protected persons because they had not accepted the nationality of Bosnia and Herzegovina.74 It did not explain why the will of the persons should be controlling in the determination of their nationality in a State which breaks up, although the Bosnian Serbs were not allowed to choose the State in which they wanted to live. In any event, if those persons are foreigners, their forcible transfer to their “home State” is no longer a war crime, but rather a favour.75 Today, after the conflict, such theories are not a helpful contribution to peace and reconciliation. During such a conflict, one cannot imagine obtaining from a military commander the respect of certain rules by arguing that he is an agent of a foreign country while his enemy is at home. Second, such theories lead to results incompatible with the principle of the equality of belligerents before International Humanitarian Law. We have seen above that this is not only a legal principle, but also the only chance to obtain this law’s respect in practice. Even if the conflict was international in relation to the interference of the FRY and Croatia, to apply the law of international armed conflicts to the conflict between Bosnian government forces and Bosnian Serb and Croat forces “legally considered as agents of Serbia or Croatia”, puts those fighting on both sides only formally on the same footing. Will the governmental forces consider a captured “agent” as a prisoner of war? May they repatriate him at the end of the conflict to the “country on which he depends”, i.e., deport him abroad? The consequences for civilians are even worse. This may be illustrated with the case of rapes, one of the most horrible practices in the conflicts in the former Yugoslavia. Under the traditional concept of protected persons, those committed by the government army of Bosnia and Herzegovina against Bosnian Serb women would not be regarded as “grave breaches”, because those women, having the nationality of Bosnia-Herzegovina, would not be regarded as “protected persons” under Convention IV By contrast, rapes committed by Bosnian Serbs against Bosnian Muslim women would be regarded as “grave breaches”, because such civilians would be “protected persons” under the Convention, in that the Bosnian Serbs would be acting as organs or agents of the FRY of which the Bosnian women did not possess nationality. The Appeals Chamber has correctly pointed out in the Tadic Jurisdiction case that “this would be, of course, an absurd outcome, in that it would place the Bosnian Serbs at a substantial legal disadvantage vis-à-vis the central authorities of Bosnia-Herzegovina.”76

74 Cf. the Celebici Judgement, n. 62 above, paras. 250–66, in particular para. 259. 75 Cf. n. 21 above. 76 Cf. Tadic Jurisdiction, n. 7 above, para. 76.


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V.D.4. Necessity to redefine the concept of protected persons? Following suggestions to adapt the definition of protected persons “to the principal challenges of contemporary conflicts,”77 the same Appeals Chamber abandoned in the Tadic Appeals Judgement, against the same accused, the above-mentioned literal interpretation of the definition of protected persons and it replaced the factor of nationality by the factors of allegiance and effective protection.78 The justification provided was very short. It referred on the one hand to some cases for which nationality is not decisive under explicit provisions (or according to the “travaux préparatoires”) of the Geneva Conventions, namely for refugees and neutral nationals.79 The victims in the Tadic case were, however, not neutral nationals or refugees. It referred, on the other hand, to the inadequacy of the criterion of nationality for contemporary conflicts and recalled that International Humanitarian Law must apply according to substantial relations rather than formal bonds. The latter reminder is correct for the law of non-international armed conflicts and for the question of whether an armed conflict exists. However, once the law of international armed conflicts applies, the formal status of a party, a territory or a person is relevant for the protective regime applicable.80 The logical consequence of this theory is that from now on, all victims of international armed conflicts should benefit from the full protection of the protected persons status under International Humanitarian Law. One may wonder whether States will be ready to treat, in international armed conflicts, their own nationals as protected persons as soon as those persons’ allegiance lies with the enemy. In any case, even if this approach has many advantages de lege ferenda, one may wonder whether it is admissible to reinterpret ex post a constitutive element of a grave breach, i.e., that it must be committed against persons of another nationality. Furthermore, allegiance is difficult to determine in the heat of the conflict. Finally, some acts such as employing protected persons in military activities or enrolling them into the armed forces are only and can only be prohibited in international armed conflicts and if committed against enemy nationals.81 V.E. Uniform qualification due to the complexity of the conflicts? It is perhaps because of all the aforementioned, and many more, problems of qualification that many have suggested to simply apply the law of international armed conflicts, at least in the former Yugoslavia.82

77 Cf. Meron, AJIL (1998), n. 4 above, pp. 238–42; Greenwood, n. 42 above, 273–74; Fenrick, n. 62 above, 91–92, and the ICTY in the Celebici case, n. 62 above, paras. 245–66 . 78 Cf. Tadic Appeals Judgement, n. 63 above, paras. 163–69. 79 Cf . Arts. 4 (2), 44, and 70 (2) of Convention IV. 80 Cf. above, Part III.C.1., and nn. 12–15. 81 Cf. Arts. 50 and 130 of Convention III and Arts. 40, 51, and 147 of Convention IV. 82 Cf. Separate opinion Li, n. 25 above, para. 17; Aldrich, n. 4 above, 66–67; Meron, AJIL (1998), n. 4 above, 238–39; Meron, AJIL (1994), n. 44 above, 81; Meron, AJIL (1995), n. 45 above, 556;

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This is a questionable finding of the facts of the case. It would, indeed, be an oversimplification to consider all fighting in the former Yugoslavia as part of one conflict of “Belgrade” against all other States and parties in the region. The Bosnian Serbs, the Croatian Serbs and Mr Abdic were not simply “puppets” of President Milosevic and the Bosnian Croats were not simply puppets of President Tudjman. At least Milosevic repeatedly had serious difficulties imposing solutions of the international community on his “puppets”.83 The other possible reason to uniformly apply the law of international armed conflicts would not be based on an interpretation of the facts, but on an interpretation of the law: that in this case or in all cases the law of international armed conflicts should also apply to non-international armed conflicts. The Commission of Experts established pursuant to Security Council Resolution 780 (1992) has expressed this most bluntly. First, it made the correct legal analysis: “Under existing treaty law […] to classify the various armed conflicts in the territory of the former Yugoslavia as international or internal ones would require it to determine whether a given situation amounts to an armed conflict […] between two or more States or one being waged in the territory of one State. Further determinant factors would be the dates on which the several States in the region are deemed to have acquired statehood and the dates from which the treaties in question are regarded as applicable to each of them.” But then it continued stating that it “is of the opinion, however, that the character and complexity of the armed conflicts concerned, combined with the web of agreements on humanitarian issues the parties have concluded among themselves, justify an approach whereby it applies the law applicable in international armed conflicts to the entirety of the armed conflicts in the territory of the former Yugoslavia.”84 Such an approach may be expedient for a commission called upon to establish facts. It is, however, inappropriate and even unacceptable if applied beyond that. First, the fact that a situation is difficult to qualify under existing law is, except for first-year students, no argument to apply a new, easy solution. In many branches of law difficult distinctions have to be made. If they correspond to a social reality, they are not abandoned simply because they are particularly difficult to apply in an important case, neither in that case nor for the future. Second, the solution is in fact not at all an easy one, as it requires defining in each of the conflicts who are the genuine parties and who are their agents, who are the protected persons (or whose

O’Brien, n. 25 above, 647; US Amicus curiae Brief, n. 54 above, paras. 26–34 and to a certain extent the ICTY in the Celebici case, n. 62 above, para. 266. Greenwood, n. 42 above, 270–77, supports the differentiated approach of the Appeals Chamber of the ICTY in Tadic Jurisdiction. 83 Cf. David Owen, Balkan Odyssey (1995), 153, 155, 301, 309, 326, 348, 353, 354, and Holbrooke n. 71 above, 151, 159, 218, 292–93, 310. 84 See UN Doc. S/25274, 10 February 1993, paras. 44 and 45, confirmed in the Final Report UN Doc. S/1994/674, 27 May 1994, para. 44.


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allegiance is with which side) and which side is an occupying power over which territory. Third, even the proponents of this theory would not seriously suggest applying the law of international armed conflicts to such a conflict as that between the followers of Mr Abdic and the Bosnian government. Fourth, to treat a situation, which “under existing treaty law” falls under certain rules, under another set of rules can only be a proposal for the future, not a solution applied to a past situation. Otherwise, it would seriously violate international legality and openly apply double standards. Why should a situation which “under existing treaty law” is a noninternational armed conflict, and would and will therefore be qualified as such if it happened elsewhere, be judged under the law of international armed conflicts only because it arises in a region where other conflicts make the situation complex? How are soldiers, parties and humanitarian actors to know, when a conflict just breaks out, that the situation will later become complex and that they should therefore immediately apply the law of international armed conflicts? The fact that this results in some instances to render behaviour criminal which would not be criminal “under existing law”, makes things even worse if this solution is applied de lege lata. Fifth, the reference to the web of agreements concluded among the parties cannot justify applying the law of international armed conflicts in cases where this is not foreseen by those agreements. Finally, one may be wondering under which law the champions of this approach, i.e., of simply applying the law of international armed conflict, will judge the horrible practices of Serb forces against Kosovo Albanians and the more recent atrocities of Kosovo Albanians against local Serbs in Kosovo. Will they apply the law of international armed conflicts because most of those acts were committed during an international armed conflict between NATO member States and the FRY? Or will they apply it because the crimes were committed during the same, ongoing “complex conflict” in the former Yugoslavia which started in 1991? Or because the Kosovo Albanians have declared their independence? Or because the latter could never exercise their right to self-determination? If the law of international armed conflicts applies, the Kosovo Albanians would certainly qualify as protected persons by the ICTY Appeals Chamber, because their allegiance was certainly not with the FRY. Or will the champions of this approach apply the law of non-international armed conflicts, because the independence of the Kosovo Albanians, unlike that of Croatia, Slovenia, and Bosnia and Herzegovina, is, for the time being, not on their political agenda?85 The only consolation for those puzzled by such questions is that, whatever law is applied, those horrible practices were prohibited.

85 It is interesting to notice that the Indictment against Slobodan Milosevic and others (Case IT-99–37) of 22 May 1999 and its Review by the ICTY of 24 May 1999 (for acts committed in Kosovo before the NATO forces intervened), make no reference to grave breaches or to the law of international armed conflicts.

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VI. One law for international and non-international armed conflicts? The idea underlying many suggestions to apply the law of international armed conflicts to all conflicts in the former Yugoslavia, is the old idea of applying the same law to all armed conflicts, not only in the former Yugoslavia, one hopes, but everywhere. As seen above, this wish must be shared from a humanitarian point of view. Until now, States, who are still the legislators in the international community, have not wished to do so. As explained above, at least the present author considers, in addition, that the idea is incompatible with the still predominant nature of the international community as a society of States. This nature is certainly in the process of changing and armed conflicts change simultaneously. Conflicts are, however, clearly not yet all internal conflicts in one world. In those happening between States it is still meaningful to have a prisoner-of-war status implying that those participating may not be punished for their mere participation and a concept of occupied territories which fall under the power of another sovereign during an armed conflict. These concepts cannot be applied to conflicts within an existing State, but they continue to protect human beings in international armed conflicts. Furthermore, the suggestion to apply International Humanitarian Law of international armed conflicts to all conflicts rests on the assumption that it always offers better protection for the victims. We have seen that this is not true. The law of non-international armed conflicts is, in addition, easier to apply and has a better chance of being respected in the chaotic and “complex” situations of current conflicts. The present author would therefore suggest that the solution cannot be to apply one law to the situations for which the other law was made, but, if ever, to create a new law applicable to all situations—a challenge for the new millennium. If States, as they are today, undertook such a codification exercise, the risk would, however, be so high that they would reduce the protection foreseen for international armed conflicts rather than dramatically increase that for non-international armed conflicts. For the time being it is also very important not to forget that the distinction between international and non-international armed conflicts in the former Yugoslavia has important implications in terms of fairness and the rule of law, but there and elsewhere it has only a minor impact on the victims. The problem is not that the wrong set of rules has been respected, but that no rules have been respected. None of the horrible crimes which have destroyed that region and others would be lawful if only the law of non-international armed conflicts applied. All the war criminals violated even the simple rules of Article 3 common to the four Conventions. VII. Conclusion The conclusion of this chapter is frustrating and yet permits hope. When analysed without preconceived ideas or in view of a certain result, the conflicts in the former Yugoslavia are very complex and show how complex International Humanitarian Law can be, although its principles are obvious. The conflicts in the former Yugoslavia were a serious blow to the old dichotomy between international and non-international


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armed conflicts in International Humanitarian Law. They have led to nearly instant developments which may be perceived by those affected as double standards. Some of these developments, such as the international criminalization of violations of the law of non-international armed conflicts, have been confirmed and are positive. Others, such as the attribution of hostilities to third States or the reinterpretation of the concept of protected persons, still need to be refined. Only the future will show whether those developments are developments of the law for the benefit of all victims of all conflicts or double standards applied for political reasons. The application of International Humanitarian Law to recent conflicts in which permanent members of the Security Council or their close allies were involved leads to some scepticism in this respect. What we need, however, is that all those committed to International Humanitarian Law and the rule of international law fight to refine the new solutions applied to the former Yugoslavia. We must ensure that future generations can say that the application of International Humanitarian Law to the conflicts in the former Yugoslavia was not an instance of double standards, but opened new horizons for the protection of all victims of all conflicts. This would also honour the memory of those who perished as victims of violations of International Humanitarian Law in those conflicts, and of those who left us while applying International Humanitarian Law to those conflicts, such as Judge Li Haopei.

20 Monitoring the convention against racial discrimination in the post-Cold War context Theo van Boven

I. Introduction The end of the Cold War stirred up a sense of euphoria among leaders and common people. The Heads of State or Government of the States participating in the Conference on Security and Cooperation in Europe declared in November 1990, in the “historic” Charter of Paris, that “the era of confrontation and division in Europe has ended”. They stated that “Ours is a time for fulfilling the hopes and expectations our peoples have cherished for decades: steadfast commitment to democracy based on human rights and fundamental freedoms; prosperity through economic liberty and social justice; and equal security for all our countries.”1 Very soon the days of euphoria were over. In many places struggles for power and hegemonic aspirations became manifest, with concomitant misuse of national and ethnic precepts for self-serving purposes, leading to national and ethnic violence and reaching proportions and a degree of hatred and cruelty which were reminiscent of the practices of World War II. In the former Yugoslavia many of these practices amounted to war crimes and crimes against humanity. One of the responses of the international community was the urgent call for international criminal jurisdiction in order to bring to justice those who were bearing major responsibility for these international crimes. The United Nations Security Council took the unprecedented decision, as a measure for the maintenance or restoration of international peace and security under Chapter VII of the UN Charter, to set up an ad hoc tribunal for the prosecution and punishment of persons having committed grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war, genocide and crimes against humanity.2 The creation of such an international judicial organ by the Security Council would have been inconceivable in the days of the Cold War and the tribunal is a typical product of the post-Cold War context. As a result of elections pursuant to Article 13 of the Statute of the International Criminal Tribunal

1 2

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for the former Yugoslavia, a college of distinguished lawyers, representing a rich variety of legal cultures, were called to The Hague to serve as Judges of the International Tribunal. One of those eminent personalities who took office on 17 November 1993 was Judge Li Haopei who had a long and distinguished legal and diplomatic career and to whose memory this collection of essays is dedicated. As the first Registrar of the International Criminal Tribunal for the former Yugoslavia and as someone who highly values the human and intellectual qualities of the late Judge Li Haopei, I feel very honoured by the invitation to make a contribution to the present collection of essays. In this contribution I will highlight some developments which characterize the monitoring of the International Convention on the Elimination of All Forms of Racial Discrimination in the post-Cold War context. Also, from the perspective of this Convention, we have been witnessing dramatic events and practices shaking the very foundations of the Convention. Practices of physical destruction and ethnic cleansing come to mind. Perhaps paradoxically the post-Cold War situation created the political space to make human rights monitoring more incisive and, to a modest extent, more effective. It is against this background that the present essay in honour of Judge Li is written. II. The International Convention against Racial Discrimination The International Convention on the Elimination of All Forms of Racial Discrimination, adopted and opened for signature and ratification by United Nations General Assembly Resolution 2106 A (XX) of 21 December 1965, originated in a climate that was marked by a militant stand against colonialism and white domination.3 At the time, persistent patterns of colonialism still prevailed in large parts of Southern Africa and the policy of apartheid in the Republic of South Africa as an institutionalized form of racism and racial discrimination met with widespread criticism and strong condemnation and was branded as a crime against humanity. This historical context of a strong nexus between colonialism, white European rule, apartheid and racial discrimination clearly transpires in the preamble of the Convention, in particular where it refers to the UN Declaration on the Granting of Independence to Colonial Countries and Peoples adopted by General Assembly Resolution 1514 (XV) of 14 December 1960, and in the body of the Convention itself. This stands out in Article 3 condemning racial segregation and apartheid and in Article 15 relating to petitions from inhabitants of Trust and Non-Self-Governing Territories and all other territories to which General Assembly Resolution 1514 (XV) applies.

3

See M.Banton, International Action Against Racial Discrimination (1996).

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The original perception of the Convention as an anti-colonial instrument fostered in the United Nations the political climate and the political will to incorporate, for the first time in a UN human rights treaty itself, an elaborate system of international supervision. Thus, the Convention established in Article 8 a Committee on the Elimination of Racial Discrimination (CERD) consisting of eighteen experts serving in their personal capacity, with the task to monitor on a regular basis the implementation of the Convention by the States Parties on the basis of reports and, as the case may be, by receiving and considering communications from individuals or groups. This system of international supervision served in later years as a model and a precedent to include similar supervisory mechanisms in other UN human rights treaties.4 The concept of discrimination as defined in Article 1(1) of the Convention is a very broad one. It reads: In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social and cultural or any other field of public life. It should be noted that the non-discrimination grounds spelled out in the definition article go far beyond the anti-colonial history and context of the Convention and include, in addition to “race” and “colour”, such other grounds as “descent” and “national or ethnic origin”. In fact, these terms make the scope of the Convention very comprehensive and cover groups and persons who can be distinguished on the basis of their colour of skin or their belonging to national or ethnic minorities, to indigenous populations, to deeply-rooted disadvantaged sectors of society, or being immigrants or otherwise of foreign origin. By way of illustration it should be recalled that CERD dealt with travellers in Great Britain and Northern Ireland and in Switzerland, with Roma in Bulgaria, the Czech Republic and in Germany, with Tibetans in the People’s Republic of China, with Dalits in India, with Mapuches in Chile, with Chiapas in Mexico, with Blacks in Costa Rica, Colombia and Cuba, with Aboriginals in Australia, with Serbs, Croats and Albanian Muslims in the former Yugoslavia, with immigrants in France, Germany and Italy, with Hungarians in Rumania, with Turks in Bulgaria, with Hutus and Tutsis in Rwanda and in Burundi, etc., etc. Given the rich variety in the world of national and ethnic groups, of traditional and new minorities, of indigenous peoples, of people with different external complexion, this list can assume limitless proportions and demonstrates the very broad reach of the Convention.

4

See Theo van Boven, The International System of Human Rights; An Overview, in Manual on Human Rights Reporting (HR/PUB/91/1 (Rev.1) (United Nations, 1997), 3–16.


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It may happen, however, that disagreement exists between a State Party and CERD whether certain persons or groups fall within the scope of the Convention. Thus, with respect to the Dalits in India the Committee stated in its concluding observations of 1996 relating to India that the term “descent” mentioned in Article 1 of the Convention did not solely refer to race and that the scheduled castes and scheduled tribes fell within the ambit of the Convention. The Committee emphasized its great concern that within the discussion of the report, there was no inclination on the side of the State Party to reconsider its position.5 In written comments on the concluding observations the Government of India repeated its position that the concept of “race” in India as recognized under the Constitution is distinct from “caste” and that communities which fall under the definition of scheduled castes and scheduled tribes do not fall under the purview of Article 1 of the Convention.6 In order to appreciate the full reach of the Convention it must be recalled that its scope extends to the political, economic, social, cultural or any other field of public life. In this respect two aspects deserve to be underlined. First, the related rights and freedoms are spelled out in Article 5 of the Convention which covers the right to equal treatment before the tribunals, the right to security of person and protection against violence or bodily harm, as well as a whole series of political and civil rights, an important list of economic, social and cultural rights, and, quite significantly, the right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafés, theatres and parks. Article 5 of the Convention is based on the comprehensive notion of all human rights and fundamental freedoms and on the recognition that these human rights are indivisible and interdependent. It also takes into account that in every-day life racial discrimination is particularly tangible in the economic and social sphere and in the access to places and services for use by the general public. The second aspect deserving attention is the mention of any other field of public life which would have a limiting effect on the scope of the Convention inasmuch as this would exclude private life from its purview. It should, however, be borne in mind that the dividing line between public life and private life is not fixed and not immutable. The Convention makes it clear in Article 5, para, (f), that privately owned facilities intended for use by the general public, notably means of transportation, hotels, restaurants and cafés, are covered by the non-discrimination principle. The Convention also makes it clear in Article 2, para. 1 (d), that the prohibition of racial discrimination also applies to private persons, groups or organizations, for instance, in matters of employment, housing, education and training, health services and participation in cultural activities.

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Report of the Committee on the Elimination of Racial Discrimination, 1996, UN Doc. A/51/18, para. 352. Ibid., Annex IX.

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III. Innovations in the post-Cold War context The International Convention on the Elimination of All Forms of Racial Discrimination defines the obligations States Parties have undertaken and which must be complied with in good faith. The UN General Assembly when adopting the Convention attached great importance to the effective implementation of the Convention and therefore included in the Convention—for the first time in a UN human rights treaty—an elaborate supervisory system. Insofar as this supervisory system relied on the method of State complaints (Articles 11–13) and, as an optional device, on complaints from individuals (Article 14), the Convention described in a fairly detailed manner the relevant procedures. However, when the Convention referred to the reporting procedure as a supervisory method, it did not enter into great detail (Article 9) and left it largely to subsequent practice to organize and give substance to the reporting procedure. Since CERD like the other treaty bodies used to carry out their monitoring functions based on reporting by way of consensus among the members of the Committee, the common denominator was low, in particular because the Cold War left little political space for a more forward-looking and effective system of international supervision.7 III.A. Procedural innovations It was only after the end of the Cold War, during the nineties, that procedural innovations were introduced by the various UN treaty bodies. Practices were developed to give the reporting system more teeth and to add weight and collegial authority to these bodies.8 In addition to information and opinions contained in the reports submitted by States Parties, the treaty bodies including CERD decided to make use of other sources of information, often non-governmental sources, allowing them to obtain a fuller and a more nuanced picture of the situation prevailing in the respective States Parties. Moreover, the treaty bodies proceeded to draw up concluding observations after the examination of a State Party’s report so as to highlight positive developments, principal subjects of concern, suggestions and recommendations. These concluding observations constitute the collective opinion of the treaty body on the performance of individual States Parties and carry considerable weight as an authoritative expression of opinion by an independent expert body. The concluding observations also enable actors at national and international levels, and notably the treaty bodies themselves, to use the suggestions and recommendations contained therein as suitable tools for follow-up action and follow-up control. In terms of enhancing the effectiveness of international supervision, the introduction of concluding observations constitutes considerable progress provided that these observations are concrete in terms of suggestions and recommendations and that

7 8

See Banton, n. 3 above, 123–141. Ibid., 142–181. See also the detailed analysis by I.Boerefijn, The Reporting Procedure under the Covenant on Civil and Political Rights; Practice and Procedures of the Human Rights Committee (1999).


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they become widely known, in particular at the national level, with a view to monitoring follow-up measures. III.B. Prevention, including early warning and urgent procedures In the period immediately following the end of the Cold War, at a time when the role of the UN Security Council was revitalized and increased expectations were vested in the United Nations and its Secretary-General, new emphasis was put on the capacity of the United Nations in the areas of preventive diplomacy, peacemaking and peacekeeping. This new orientation was skilfully and thoroughly expounded in Mr Boutros-Ghali’s An Agenda for Peace, published in June 1992, which outlined a dynamic policy programme for a leadership role of the United Nations.9 The line set forth in An Agenda for Peace was further pursued by the Secretary-General in his annual report (1992) to the UN General Assembly, in which he identified “the need to consider ways to empower the Secretary-General and the expert human rights bodies to bring massive violations of human rights to the attention of the Security Council together with recommendations for action.”10 In response to this trend and this encouragement, CERD accepted the challenge, in March 1993, to map out a preventive approach to situations involving serious and massive patterns of racial discrimination. The Committee adopted a working paper under the title “Prevention of racial discrimination, including early warning and urgent procedures”,11 as a guide for its future work concerning possible measures to prevent and more effectively respond to violations of the Convention. In devising this new procedure, not explicitly provided for in the Convention,12 the Committee considerably stretched its mandate. Article 9 of the Convention sets out, in general terms, the procedure for the periodic reporting system as the principal means to monitor the compliance by the States Parties of the provisions of the Convention. But the same article allows the Committee, in addition to examining the periodic reports submitted by States Parties, to request further information from the States Parties. It is precisely this phrase which allows the Committee the leeway to request on an urgent basis any State Party for information whenever the Committee considers such action necessary as part of its preventive strategy. It is obvious that the Committee as a treaty body can only relate to States that are parties to the Convention and not to other States. It should also be kept in mind that the approach aimed at prevention, including early warning and urgent procedures, is without

9 UN Doc. A/47/277-S/24111. 10 UN Doc. A/47/1, para 101. 11 Report of the Committee on the Elimination of Racial Discrimination, 1993, UN Doc. A/48/18, Annex III. 12 It was not feasible to rely on Articles 11–13 of the Convention which provide for an inter-state complaint procedure thus far never resorted to.

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prejudice to the Committee’s regular task of examining the periodic reports submitted by States Parties according to the schedule provided for in Article 9 of the Convention. Since 1993 the Committee has resorted many times to prevention, including early warning and urgent procedures as a regular feature on its agenda.13 The procedure has served as a response to actual or imminent situations involving ethnic conflicts, ethnic cleansing, flows of refugees or displaced persons, threats to the lives and the fundamental existence of peoples, groups and other collectivities as well as individual persons. It seeks constructive dialogue with States Parties concerned and the involvement of UN bodies and authorities such as the UN Secretary-General and the High Commissioner for Human Rights. Under this procedure CERD dealt with a good number of situations, including those in Bosnia-Herzegovina, Federal Republic of Yugoslavia, Rwanda, Democratic Republic of Congo, Mexico, Russian Federation, Papua New Guinea, Australia, Israel, Czech Republic. In most instances the States Parties concerned did not question the Committee’s competence to have recourse to prevention, including early warning and urgent procedures. However, some States Parties did raise questions as to the parameters of the Committee’s competence. Thus, when the Committee requested the Government of Israel in March 1994, in connection with the massacre at the Tomb of the Patriarchs in Hebron on 25 February 1994, to submit an urgent report on measures taken to guarantee the safety and protection of Palestinian civilians in the occupied Palestinian territory, Israel contested the Committee’s competence to deal with the matter and only supplied information “as a matter of courtesy”. However, it was not so much the special procedure of prevention which was objected to by Israel but rather Israel’s position that the Convention does not apply to the occupied territories.14 When Australia was asked in August 1998 under the same prevention procedure to provide the Committee with information on changes introduced to the 1993 Native Title Act and on changes of policy as regards Aboriginal land rights,15 Australia did provide the Committee with the information as requested. This information did not allay the Committee’s concerns as to the compatibility of these changes with Australia’s obligations under the Convention and led the Committee to continue its monitoring role of the Aboriginal land rights issue under the prevention procedure as a matter of utmost urgency.16 The prospects of a prolongation of this procedure caused a

13 See in greater detail Theo van Boven, Prevention, Early-Warning and Urgent Procedures; a New Approach by the Committee on the Elimination of Racial Discrimination, in E.Denters & N. Schrijver (eds.), Reflections on International Law from the Low Countries, in Honour of Paul de Waart (1998), 165–82. 14 Note Verbale dated 8 August 1994 from the Permanent Representative of Israel to the United Nations Office at Geneva, reproduced in UN Doc. CERD/C/282. 15 Decision 1 (53) on Australia, dated 11 August 1998. 16 Decision 2 (54) on Australia, dated 18 March 1999.


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great deal of unrest in Australia’s political and diplomatic circles. The view was expressed that “consideration of this matter under the emergency procedures mechanism was inappropriate” and that the Committee should not “become a participant in a complex political debate involving reconciliation of diverse legitimate interests.”17 While in some instances States Parties immediately concerned raised questions as to the propriety of the prevention procedure, no State Party has raised formal objections and the Committee itself has always insisted on its competence to resort to this procedure. In this respect the Committee takes comfort in the position of the General Assembly which has repeatedly commended the Committee for its continuing contribution to the prevention of racial discrimination and which welcomed the Committee’s relevant action thereon.18 IV. Clarification of applicable law and concepts As stated above, CERD has regularly taken up issues—under its new procedure on prevention, including early warning and urgent procedures—involving actual or imminent ethnic conflicts. In this context it has faced many legal, humanitarian and political complexities concerning rights of collectivities, notably peoples generally, indigenous peoples, minorities and other groups with a distinct racial, religious, ethnic or national character. In its review of these situations CERD has had to deal with the fate of victims, especially those whose right to security of person and protection against violence or bodily harm (Article 5, para, (b) of the Convention) was seriously at stake, the plight of the uprooted, refugees and displaced persons, and with practices of persistent discrimination against indigenous peoples. CERD was also mindful that in certain situations where all basic principles of the International Convention on the Elimination of Racial Discrimination were grossly and massively flouted, the violations amounted to genocide, crimes against humanity and war crimes, which raised the issue of the criminal responsibility of the perpetrators of these crimes. In order to make its position clear on these fundamental issues, in particular visà-vis the States Parties who may expect from the Committee that it act consistently in compliance with the terms of the Convention and with international law, CERD applied the formula of general recommendations (referred to in Article 9, para. 2, of the Convention) for setting out its considerations and views. In this context four general recommendations will be briefly reviewed as significant expressions of the Committee’s basic stands. (i) In the light of the Committee’s close and constant consideration of the situations prevailing in the former Yugoslavia and in the Great Lakes Region of Africa, which were characterized by large numbers of racially and ethnically motived massacres 17 Quotations from an Australian diplomatic letter dated 27 July 1999 sent to members of CERD (text in the author’s file). 18 See lately GA Res. 53/131 (part I, para. 6) of 9 December 1998.

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and atrocities, CERD felt that the impunity of the perpetrators was a major factor contributing to the occurrence and recurrence of these crimes. CERD considered therefore in a general recommendation of March 1994 that an international tribunal with general jurisdiction should be established urgently to prosecute genocide, crimes against humanity, including murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions on political, racial and religious grounds and other inhumane acts against any civilian population, and grave breaches of the Geneva Conventions of 1949 and the Additional Protocols of 1977 thereto.19 (ii) In the context of CERD’s involvement in situations where secessionist claims were expressed by militant groups and other collectivities in the name of their right to self-determination (such as Chechnya in the Russian Federation, Kosovo in the Federal Republic of Yugoslavia, Bougainville in Papua New Guinea), the Committee discussed at length the implications of the concept of self-determination. These discussions resulted in March 1996 in a general recommendation which reviewed the existing international standards on the subject, notably Article 1 of both International Covenants on Human Rights and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, approved by the UN General Assembly in its resolution 2625 (XXV) of 24 October 1970. The general recommendation distinguished between the internal aspect of the right to self-determination and referred in this regard to Article 5, para, (c), of the Convention, and on the other hand the external aspect of the same right. Most significantly, CERD stressed that in accordance with Article 2 of the Convention and other relevant documents, Governments should be sensitive to the rights of persons belonging to ethnic groups, particularly their rights to lead lives of dignity, to preserve their culture, to share equitably in the fruits of national growth and to play their part in the government of the country of which they are citizens. However, in a crucial passage the Committee emphasized that: in accordance with the Declaration on Friendly Relations, none of the Commitee’s actions shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and possessing a government representing the whole people belonging to the territory, without

19 General Recommendation XVII on the establishment of an international tribunal to prosecute crimes against humanity (1994). It should be noted that on 17 July 1998 the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court adopted the Rome Statute of the International Criminal Court (UN Doc.A/CONF.183/9).


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distinction as to race, creed or colour. In the view of the Committee, international law has not recognized a general right of peoples unilaterally to declare secession from a State….20 (iii) As part of its regular supervisory activities and its urgent procedures on prevention and early warning, the Committee received many reports on massive flows of refugees and the displacement of persons who had been uprooted on the basis of ethnic criteria. CERD highlighted in this respect the importance of Article 5 of the Convention which obliges States Parties to prohibit and eliminate racial discrimination in the enjoyment of civil, political, economic, social and cultural rights and freedoms. In particular, CERD emphasized the rights of refugees and displaced persons to return to their homes on a voluntary basis, to have their property restored or to be compensated appropriately and to participate fully and equally in public affairs.21 (iv) While at the time of the drafting of the major UN human rights instruments, limited or no attention was paid to the rights of indigenous peoples, it was only since 1982 when it was decided to establish a UN Working Group on Indigenous Populations that a specialized forum took up the interests of indigenous peoples and started to formulate concepts and standards representing their rights. The indigenous peoples thus obtained a permanent place on the agendas of human rights policy organs, such as the Commission and the Sub-Commission on Human Rights, and national and international awareness of their plight was growing. There was no doubt that in view of the terms “race, colour, descent or national or ethnic origin” the indigenous peoples were falling under the scope of the International Convention on the Elimination of All Forms of Racial Discrimination. In the examination of periodic reports submitted by Latin American countries, Canada, Australia, New Zealand, Bangladesh, Nepal and other States Parties and in dealing with situations under the prevention and early warning procedure (Chiapas in Mexico, aboriginal land rights in Australia), the rights and interests of indigenous peoples became a matter of close attention and concern. In light thereof and in the context of the International Decade of the World’s Indigenous Peoples (proclaimed by the UN General Assembly and commencing on 10 December 1994), CERD decided to draw up a general recommendation. The Committee was conscious of the fact that in many regions of the world indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. The Committee especially called upon States Parties:

20 General Recommendation XXI (1996). 21 General Recommendation XXII (1996).

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to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation.22 V. Striking a balance between competing values One of the intricate problems arising from Article 4 of the International Convention which has been the subject of extensive legal and socio-political discourse, is the potential conflict between protection against racist speech and other expressions of racial hatred and on the other hand the right to freedom of expression.23 The complexities of this issue have been manifest from the time the Convention was drawn up in 1965 up till the present day. An illustration of these complexities is the case of the Danish journalist Jersild which was discussed by CERD and also adjudicated by the European Court of Human Rights. The case also raises issues as to the consonance between global and European monitoring. Article 4, para, (a), of the International Convention obliges States Parties to prohibit and to criminalize the following acts: all dissemination of ideas based on racial superiority; all dissemination of ideas based on racial hatred; incitement of racial discrimination; all acts of violence against any race or group of persons of another colour or ethnic group; incitement to such acts; the provision of any assistance to racist activities, including the financing thereof. At the time of the drafting of Article 4, Western countries expressed concern that this provision might unduly restrict freedom of expression and freedom of association. As a compromise it was decided to include in the chapeau of the article the wording: “with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of this Convention”. Nevertheless, many Western countries upon ratification of the Convention made interpretative declarations in which they put emphasis on the “with due regard” clause. Some of them expressed similar reservations with regard to Article 20, para. 2, of the International Covenant on Civil and Political Rights, reading: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”. In the examination of periodic reports submitted by States Parties under Article 9 of the Convention, CERD expressed many times its concern that States failed to enact and enforce legislation aimed at the implementation of Article 4 of the 22 General Recommendation XXIII on the rights of indigenous peoples (1997). 23 See K.Partsch, Racial Speech and Human Rights: Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination, in S.Coliver (ed.), Striking a Balance: Hate Speech, Freedom of Expression and Non-discrimination (1992). See further Régis de Gouttes, À propos du conflit entre le droit à la liberté d’expression et le droit à la protection centre le racisme, in Mélanges en hommage à Louis Edmond Pettiti (1998), 251–265.


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Convention. In order to emphasize the importance it attaches to Article 4, CERD adopted twice a general recommendation on the subject and recalled that the provisions of Article 4 are of a mandatory character.24 The Committee also expressed the view that the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression and in this regard drew attention to Article 29, para. 2, of the Universal Declaration and Article 20 of the International Covenant, quoted above. In the Jersild case, a Danish journalist interviewed two “Greenjackets” in a television programme and allowed or even encouraged highly offensive and racist statements to be made against foreigners, in particular black people. This journalist was held criminally liable by the Danish courts under national legislation which was introduced in Denmark to implement Article 4 of the Convention. When this case came up in the examination of the Danish periodic report in 1990, several members of CERD expressed their satisfaction with the views of the Danish courts as “the clearest statement yet, in any country, that the right to protection against racial discrimination took precedence over the right to freedom of expression”. Some other members were of the opinion that in such cases “the facts needed to be considered in relation to both rights”.25 Jersild brought his case to Strasbourg and claimed that he was a victim of a violation of Article 10 of the European Convention on freedom of expression. The European Court of Human Rights could not ignore that Denmark was bound by potentially conflicting obligations stemming from the European Convention of Human Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. The crucial question was what weight was to be given to the latter Convention in appraising Denmark’s international human rights obligations. The Court in its judgement argued that: the object and purpose pursued by the UN Convention is of great weight in determining whether the applicant’s conviction, which—as the Government has stressed—was based on a provision enacted in order to ensure Denmark’s compliance, was necessary within the meaning of Article 10, para. 2. Denmark’s obligations under Article 10 must be interpreted, to the extent possible, so as to be reconcilable with its obligations under the UN Convention. In this respect it is not for the Court to interpret the “due regard” clause in Article 4 of the UN Convention, which is open to various constructions. The Court is however of the opinion that its interpretation of Article 10 of the European Convention in

24 General Recommendations VII (1985) and XV (1993) on Article 4 of the Convention. 25 UN Doc. A/45/18, para. 56. (In 1990 the Committee had not yet introduced the practice of drawing up of collective concluding observations.)

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the present case is compatible with Denmark’s obligations under the UN Convention.26 It appears that the European Court as a custodian of the European Convention is inclined to interpret the International Convention so as to conform it to the European Convention, thereby giving the International Convention in the present case only minor weight and thus reducing the margin of appreciation that Denmark should possess when faced with potentially conflicting obligations under two treaties. The Court consequently ruled that in this case there was a breach of Article 10 of the European Convention inasmuch as Jersild’s conviction could not stand the test of the requirements in the limitation clause of para. 2 of Article 10, in particular that the means employed were disproportionate to the aim of protecting “the reputation or rights of others”. In strongly worded dissenting opinions several judges argued that the protection of racial minorities should not be given less weight than freedom of opinion and expression and that the International Convention which is binding on Denmark must guide the European Court of Human Rights, in particular as regards the scope it confers on the terms of the European Convention and on the exceptions which the Convention lays down in general terms. When CERD again examined in March 1996 periodic reports submitted by Denmark, mixed feelings about the judgement of the European Court prevailed. Also, several commentators had shown more sympathy for the opinions of the dissenters than for the reasoning of the Court in its judgement.27 In a relevant concluding observation CERD expressed itself in moderate terms that it did not wish to polarize the issue. It stated: Noting the judgement of the European Court of Human Rights in the case of Jersild v. Denmark, the Committee affirms that the “due regard” clause of Article 4 of the Convention requires the balancing of the right of protection from racial discrimination against the right to freedom of expression. The Committee recalls its General Recommendation XV on this point.28 The reference to General Recommendation XV is to be considered as an implicit criticism on the part of CERD with respect to the Jersild judgement of the European Court. As was noted earlier, in this general recommendation the Committee recalled the mandatory character of Article 4 of the International Convention. The European Court could have taken into account the interpretation by CERD of Article 4 as

26 Jersild v. Denmark, Judgment of 23 September 1994, Publications ECHR, Series A, vol. 298, para. 30. 27 See in particular Gérard Cohen—Jonathan, Discrimination raciale et liberté d’expression—à propos de l’arrêt Jersild de la Cour européenne des droits de l’homme, 7 Revue Universelle des Droits de l’Homme (1995), 1–8. 28 UN Doc. A/51/18, para. 62.


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evident in the Committee’s General Recommendations VII and XV The Court refrained from doing so and similarly it explicitly avoided interpreting the “due regard” clause in Article 4 of the International Convention. The European Court showed great reluctance in entering into the substance of the International Convention and preferred to simply declare this convention to be in conformity with the European Convention. The present author has more affinity with the dissenters who gave greater weight to the International Convention on the Elimination of Racial Discrimination and who considered the norms and obligations of this Convention legitimate grounds for limiting the freedom in question. VI. Concluding remarks The citizens of today’s world find themselves in a phase of transition to a new millennium. The twentieth century has come to a close and witnessed two world wars which, as the preamble of the United Nations Charter puts it, have brought twice in our lifetime untold sorrow to mankind. In spite of risky brinkmanship a third world war was avoided but numerous internal armed conflicts in nearly all continents demanded a heavy toll in terms of human life and human welfare. This pattern continued in even an aggravated manner since the end of the Cold War. Moreover, in the present era of globalization, the gap between the destitute and the affluent is widening and discrimination based on race and religious intolerance is rampant. The United Nations is desperately looking for ways and means to cope with these complex problems. It appears that with the end of the Cold War the world has not become a safer place in spite of some progress in terms of emancipation and democratic governance. Prevention of human catastrophes and human suffering and implementation of basic standards of human dignity remain essential undertakings for today’s and tomorrow’s world. Prevention and implementation are ingredients as well as objectives of human rights monitoring. The thrust of the present essay written to honour the memory of Judge Li Haopei was to identify trends and developments in the process of monitoring one of the major human rights instruments of the United Nations, viz. the International Convention on the Elimination of All Forms of Racial Discrimination. None of the more than 155 States Parties to this Convention can legitimately claim that it has definitively overcome the evil of racism and racial discrimination. Vigilance is required at all levels—international, regional, domestic and local—to forestall and to combat racial discrimination. The political openings in the post-Cold War context did allow the Committee on the Elimination of Racial Discrimination to make a few steps forward in means and methods of procedural and preventive monitoring. These steps produced limited results but they are trendsetters for a new century which will need bolder and more durable steps if civil society is to survive in conditions of peace and human dignity.

21 General principles of law regarding the protection of minorities Budislav Vukas

I. Initial claims A quarter of a century ago I tried to answer the following question: does international law concerning the protection of minorities contain anything other than the scanty conventional provisions? Although minority protection has always been a topical issue in the part of Europe where I live, the reason for engaging in this research was my personal interest, and not any specific development in the field. In fact, that was not an appropriate period of time to engage in this research. International law really did not offer much on this subject matter. The League of Nations system of minority protection was no more operative. Although the United Nations has never taken a formal position thereon, the real situation was reflected in a study made by the Secretary-General. The study claimed that the pre-war system was no more in force, because of the essential changes that had taken place in the meantime relating to the situation at the time of the League of Nations.1 Although immediately after World War II the international community was reluctant to adopt special provisions on minority rights, several instruments adopted within the United Nations system of organizations were also relevant for minorities. The most important were the Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948)2 and the International Convention on the Elimination of All Forms of Racial Discrimination (21 December 1965).3 The first treaty containing provisions in which minorities were expressly mentioned was the UNESCO Convention against Discrimination in Education (14 December 1960).4 A real breakthrough in terms of the international interest in minorities was

1 2 3 4

UN Doc. E/CN.4/367, Chapter XIV. 78 UNTS 277. Ibid., vol. 660, 195. Ibid., vol. 429, 93. 348

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the insertion of a provision on the rights of persons belonging to ethnic, religious or linguistic minorities in the International Covenant on Civil and Political Rights.5 Although the Covenant was adopted and opened for signature on 16 December 1966, it entered into force only on 23 March 1976. In addition to these universal treaties applicable to minorities in general, there were some treaties concluded for the benefit of individual minorities. Yet all these treaty provisions were not sufficient to permit the conclusion that they could have been the basis for the crystallization of general customary international law regarding minority protection. Contrary to the slow development of international law, municipal law of many States, particularly in Europe, at that time already contained detailed rules ons minorities. Such rules often reflected the content of the provisions on minority rights contained in the League of Nations instruments. In my ardent desire to find in international law something more than mere conventional rules on minority rights, I resorted to Article 38(1)(c) of the Statute of the International Court of Justice. Namely, the above mentioned situation seemed to be appropriate to claim that there are “general principles of law” in the field. In using the “general principles”, I understood them in the sense defined by Juraj Andrassy, as “the common value of the entire legal life”.6 However, I ventured to elaborate further on this concise statement of Professor Andrassy in these terms: “in contrast to the regular way in which these principles are formed in internal legal orders, with the possibility of their application also in international law, the principles concerning the status of minorities have come into being through the mutual and parallel interaction of internal and international law”.7 On the basis of this definition I established a list of rights and duties of minorities, and of States in which they reside, which, in my view, could be considered as “general principles of law”.8 In doing so, I stressed that I might be wrong in characterizing some of these principles as being “general”. The main purpose of the whole exercise was to claim that there was a body of general principles concerning the status of minorities. II. Critical comments

5 Article 27 of the Covenant reads: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or use their own language”; ibid., vol. 999, 171. 6 J.Andrassy, Medjunarodno pravo (Školska knjiga, Zagreb, 5th ed., 1971), 20. 7 B.Vukas, General International Law and the Protection of Minorities, 8 Human Rights J. (1975), 47. 8 Ibid., 47–48. 9 P.Thornberry, International Law and the Rights of Minorities (1991), 221–22; 247. 10 Ibid., 221.

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The mentioned assertion concerning the existence of some general principles of law relevant to the status of minorities did not pass unnoticed. Most extensively it was commented by Patrick Thornberry.9 His introductory statement that “Vukas is another writer with a clear view of the law…”10 must not be understood as meaning that P.Thornberry in any manner agrees with my conclusions. It only means that he has clearly understood every segment of my argument, which he proves in a detailed and exact summary of my main points.11 However, he fundamentally disagrees with all the major elements of the structure on which I based my claims: a) P.Thornberry considers my list of principles unjustifiably long: “The list of general principles is, to the present author, surprisingly extensive and detailed”.12 It is exactly in order to check this list on the basis of the most important international instruments adopted in the last 25 years that I have decided to write the present article. b) The second criticism of P.Thornberry is directed at the suggested European origin of the principles I listed: “Vukas’s claims on the basis of general principles of law are essentially generalizations of European activity and experience in the protection of minorities.”13 The analysis of the new instruments shall very seriously take into account this remark. c) Finally, P.Thornberry has a different opinion than this author concerning the place of “general principles of law” among the sources of international law: “In any case, general principles of law are, as a source of international law, secondary to treaties and custom”.14 I consider all the sources of international law listed in Article 38 (1) from (a) to (c) as hierarchically equal. It is only due to the way and form in which international rules are created by this source, and the always increasing number of treaties, that general principles—similar to customary law—are not so often referred to in practice as treaties. Be that as it may, for the purpose of this article I do not consider it necessary to discuss the position of general principles of law in relation to other sources of international law. What I should reconsider are the conclusions concerning the formation of some general principles in this field. III. New developments As indicated at the beginning, my claims concerning the existence of some general principles of law on the protection of minorities were formulated in the early seventies, before all the major developments which have brought again the problems of

11 12 13 14

Ibid., 221–22. Ibid., 222. Ibid., 247. Ibid.


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minorities to the forefront of the attention of the international community. Taking into account the topic of this article, the most relevant development is the adoption of some multilateral international instruments dealing with the principles I dared 25 years ago to proclaim as “general principles of law”. Due to the purpose of this analysis, I will not deal with bilateral and other instruments adopted by a restricted number of states. Therefore, I will not take into account even one of the most substantive and detailed instruments adopted so far— the Central European Initiative Instrument on the Protection of Minority Rights— because it reflects the stance of the States from a limited geographical area.15 The conventions and recommendations adopted in the framework of the International Labour Organisation (ILO), dealing with tribal and indigenous peoples will also bes left out, although they deal with a topic closely related to the problems of minorities.16 Finally, I will not analyze the effects which the content of Article 27 of the Covenant on Civil and Political Rights has had on the establishment of general law. It is clear that the adoption of this provision in the Covenant and the wide ratification of the Covenant have contributed to the definite acceptance of minority protection as an institution of general international law. However, this fact, as well as the practice of the Human Rights Committee, confirms the general applicability only of the concise content of Article 27 of the Covenant, not the rather long and detailed list of principles I suggested. I will check this list of principles on the basis of four instruments adopted recently in the framework of the major international organizations dealing with human and minority rights: the United Nations, the Organization for Security and Co-operation in Europe (OSCE), and the Council of Europe. These instruments differ among themselves in terms of their legal nature and the number of States committed to abide by their provisions. a) Part IV of the Concluding Document of the 1990 Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Cooperation in Europe (hereinafter: Copenhagen Document)17 contains a list of elaborate principles on national minorities.18 Although it is not a treaty, the Copenhagen Document has played an outstanding role in the subsequent international as well as national legislation and practice concerning minorities. The 55 member

15 CEI—Center for Information and Documentation, CEI Instrument for the Protection of Minority Rights (1996). 16 For the texts of the most important ILO instruments on tribal and indigenous peoples, see ILO, 2 International Labour Conventions and Recommendations (1996), 56, 99 and 109; vol. 3, 324. 17 Doc. CSCE/CHDC.43. 18 The content of the rights and duties attributed to “national minorities” in the documents of the OSCE makes it clear that this expression—regularly used in this organization as well as in the Council of Europe—covers all the categories of minorities usually mentioned in the United Nations: ethnic, religious and linguistic minorities. 19 Adopted by GA Res. 47/135.

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States of the OSCE, including Canada and the United States, are committed to the Document. b) On 18 December 1992 the General Assembly of the United Nations adopted the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (hereinafter: UN Declaration).19 After 15 years of protracted negotiations in a special working group of the UN Human Rights Commission, the Declaration was adopted as a clarification and elaboration of Article 27 of the Covenant on Civil and Political Rights. c) On 1 February 1993 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1201 (1993) “on an additional protocol on the rights of national minorities to the European Convention on Human Rights” (Recommendation 1201). The main purpose of the Recommendation was to organize the further work of the Council of Europe in respect of the drafting and adoption of some instruments on minority rights. For this purpose the Assembly annexed to the Recommendation a text of a proposal for an additional protocol “concerning persons belonging to national minorities”. The Assembly hoped that the Summit of Heads of State and Government of the Council of Europe, convoked for October 1993, could adopt the protocol. As this did not happen, a special expert body was meeting for some time in order to keep the idea of a protocol alive. However, as there was no enthusiasm shown for the adoption of such a protocol, the Committee of Ministers decided to suspend the work on the protocol.20 As a result of the failure to draft a protocol to the European Convention on Human Rights dealing with the rights belonging to minorities, the Council of Europe has revitalized Recommendation 1201. It considers now the provisions of the draft it proposed in 1993 as obligatory for member States, and the new candidates for membership have to commit themselves to incorporate the principles contained in the Recommendation into their legal and administrative system and practice.21 d) On 10 November 1994 the Framework Convention for the Protection of National Minorities (Framework Convention) was adopted by the Committee of Ministers of the Council of Europe;22 it was opened for signature on 1 February 1995. The Convention has been signed by 40 States, and so far 32 States have ratified the Convention; it entered into force on 1 February 1998. Non-member States of the Council of Europe may also be invited by the Committee of Ministers to become Parties to the Convention.

20 Council of Europe, Human Rights Information Bulletin, No. 39, Doc. H/INF(97)2, 78. 21 See some details on the way in which Recommendation 1201 (1993) is applied in the Council of Europe in: B.Vukas, States, Peoples and Minorities, 231 RCADI (1991(VI)), 476. 22 Doc. Council of Europe, Framework Convention for the Protection of National Minorities and Explanatory Report, Strasbourg, February 1995, H (1995) 10.


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IV. Reconsideration of the principles The above-mentioned instruments on the protection of minorities were adopted in a significantly different political environment from the one at the beginning of the 1970s. The end of the Cold War removed some of the basic controversies concerning human rights, which in turn opened the door to a more comprehensive treatment of minority interests. In such a new climate the above-mentioned instruments stress that the protection of minorities is part of the general protection of human rights. They proclaim the duty of States to enable persons belonging to minorities to take an active role in the cultural, religious, social, economic, and public life of the State where they reside. Members of minorities should be free to establish contacts acrosss frontiers with citizens of other States to whom they are related by ethnic, religious or linguistic ties. States are obliged to develop national policies and programmes for the promotion of legitimate interests of minorities, and these interests have to be taken into account also in the international relations of States. International public organizations as well as non-governmental organizations are required to contribute to the realization of minority rights and interests. Special international institutions entrusted with the protection and promotion of minority rights have been established, such as the OSCE High Commissioner for National Minorities and the Advisory Committee under the Framework Convention. In such a radically changed situation it would be useful to identify all the potential general principles in the field. However, as already mentioned, I have limited my inquiry to the fate of the 11 principles I listed in the Human Rights Journal in 1975. In a nutshell, the results of that analysis are the following: a) All the four relevant instruments expressly mention the following principles with insignificant variations in their formulation: equality before the law of persons belonging to minorities; the right of persons belonging to minorities to establish and maintain their associations aimed at the preservation of the distinctive characteristics of minorities; the right of persons belonging to minorities to use their own language in private and public. In respect of this last right, Recommendation 1201 states that it shall “also apply to the use of his/her language in publications and in the audiovisual sector” (Article 7 (1)). The content of all the four instruments proves that the use of the minority language is free in business relations, in religious rites, in the media, at public gatherings and cultural events. My general claim that minorities have the right to use their language “before courts of law and other State agencies” was an oversimplification.23 Although this right is mentioned is some of the instruments, the cautious formulation of the Framework Convention indicates the multiple conditions which have to be satisfied for its application:

23 Vukas, n. 7 above, 47. 24 See n. 22.

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In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if these persons so request and where such a request corresponds to a real need, the Parties shall endeavour to ensure, as far as possible, the conditions which would make it possible to use the minority language in relations between those persons and the administrative authorities. (Article 10 (2))24 b) The duty of States to take appropriate measures to create adequate opportunities for persons belonging to minorities to learn their mother tongue or to have instruction in their mother tongue is contained in all four instruments. Within the educational system of each State, persons belonging to a national minority also have the right to set up their own private educational establishments. However, the instruments vary in respect of the requirements for inserting such opportunities in States’ education systems and States’ financial obligations towards the establishments providing instruction in minority languages. While there is no doubt that minorities should not be asked to participate in financing instruction in their mother tongue in public educational establishments, the documents vary in respect to financing private minority establishments. While the Copenhagen Document (paragraph 32.2) provides that all minority institutions can seek public assistance, the Framework Convention states that the set-up of private educational establishments “shall not entail any financial obligation for the Parties” (Article 13 (2)). c) There are two principles which are not expressly mentioned in one of the four instruments relevant to the present analysis. However, in both cases it can not be considered that the omitted principle is not contained in the respective instrument. The right of persons belonging to minorities to freely choose to be treated or not to be treated as such—although drafted in various manners—is mentioned in all the instruments except the U N Declaration. However, this right is implied in Article 3 (2) of the Declaration, which states that “No disadvantage shall result for any person belonging to a minority as the consequence of the exercise or non-exercise of the rights set forth in the present Declaration”. Recommendation 1201 is the only instrument to not expressly mention the rights of religious minorities. This is, probably, the consequence of the fact that the Annex to the Recommendation was conceived as a draft protocol to the European Convention on Human Rights, the text of which contains provisions relative to the freedom of religion (Article 9) applicable also to minorities. On the other hand, all the rights of religious minorities are implied in the right of persons belonging to religious minorities to preserve and develop their religious identity, recognized in the Recommendation (Article 3 (1)). d) There are two principles which, although being of paramount importance for minorities, have almost been neglected by the recent instruments. Thus, only the UN Declaration mentions the right of minorities to existence. The reason for this omission is the fact that the physical existence of the persons belonging to minorities and of minorities as groups is granted as a fundamental human right. The same can be said for the duty of States to prevent any propaganda and practice of discrimination


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against minorities, which is dealt with in detail only in the Copenhagen Document (paragraph 40). e) There is one principle that does not appear in any of the four instruments: the right of persons belonging to minorities to the nationality of the State in which they live under the same conditions as apply to the persons belonging to the majority. The right of every human being to a nationality has been confirmed by Article 15 (1) of the Universal Declaration of Human Rights. In respect to persons belonging to minorities this was a topical issue in the early stages of the development of the international protection of minorities (Final Act of the 1878 Congress of Berlin, League of Nations system), when the international community wanted to ensure the basic condition for the equality before the law of all the individuals living in thes State—the nationality (citizenship) of that State. This right is generally important even today, particularly in the case of the creation of new States after the dissolution of former multinational federal States. f) The suggested principles included only one duty of minorities and persons belonging to them: the duty to refrain from acts directed against the preservation of the territorial integrity or political independence of the State in which they live. All the four instruments contain provisions reflecting this principle. V. Conclusions The above reconsideration of the principles suggested in 1975 as “general principles of law” shows that, with minor exceptions, they have been included also in the four most important instruments on minority protection adopted in the last decade. P.Thornberry remarked that my list had been too long but, as mentioned above, the recent instruments permit today even the inclusion of additional principles to such a list. The second remark of P.Thornberry concerns the European origin of the principles I proposed in 1975. I have to agree with this remark: those principles, as well as the international protection of minorities in general, have their origin in the bilateral and multilateral treaties concluded among European States in the past centuries, and in the instruments imposed mostly on some Northern, Eastern and Southern European States in the time of the League of Nations. However, the International Covenant on Civil and Political Rights has definitely confirmed the universal applicability of the international protection of minorities. Three of the most important instruments adopted in the last several years also have their origin in European organizations, but the basic elements of their content are contained also in the UN Declaration which commits all the 189 member States of the United Nations. This development of international law is accompanied by a constant improvement of national legislation of States concerning the treatment of minorities. This is the consequence of the general development in the enjoyment of human rights and democracy, but also an effect of the supervisory mechanisms functioning in the framework of international organizations—the United Nations, the OSCE and the Council of Europe.

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The brief overview of the main developments in the last 25 years enables me to claim that the existence of some universally applicable principles of international law concerning the rights and duties of minorities do exist. For the same reasons as I did in 1975 I would characterize them as general principles of law. Yet, due to the increasing number of international instruments dealing with the status of minorities, it could be plausible also to claim that these principles belong today to the body of general customary international law. The claim concerning the existence of general principles on minority rights has recently been confirmed also by a relevant international juridical body—the Arbitration Commission of the Conference on the former Yugoslavia. In its Opinion No. 1 of 29 November 1991 and Opinion No. 2 of 11 January 1992, the Arbitration Commission expressed its view concerning the existence of general international law on the rights of minorities.25 Moreover, the Commission stated that “peremptory norms of international law require States to ensure respect for the rights of minorities”.26

25 31 ILM (1992), 1496; 1498. 26 Ibid., 1498 (emphasis added).

22 Sovereignty in global economic integration: a Chinese perspective Guiguo Wang

This article is written in memory of Judge Li Haopei who introduced me to international law. I got to know Professor Li in 1979 when I joined the Chinese Ministry of Foreign Affairs. At that time, law was just beginning to play a role in the country. The most impressive thing I discovered, right after I began to work in the then Department of International Organisations, Law and Treaties of the Ministry, was that a senior scholar spent almost all his time reading books in his office. When discussing issues with other people he was very sharp, forceful and principled. He was Professor Li. Not long after I got to know Professor Li, he became my personal tutor for international law. Each week he would assign a chapter or two of the books by renowned international law scholars. I would read and write a summary of my understanding of the part for Professor Li to comment on. Most of the time, we either met in his office or at the cafeteria during lunchtime. All this was done on a voluntary basis and out of his love of young people and international law. Looking back, I feel very privileged to have had such rare opportunities directly to benefit from Professor Li who was a very strict, warm-hearted and obviously knowledgeable teacher. The reason for me to choose the topic of sovereignty in international economic integration is that issues relating to sovereignty such as sovereign immunity, jurisdiction over sovereign state, etc., have been considered by the Chinese government in its international relations and that Professor Li, through his long time service in the Ministry of Foreign Affairs of China, directly or indirectly contributed to the formation and implementation of China’s policy in this regard. Another reason is that as a large developing country, with itself being integrated into the world economy, China has over the last fifty years revised its policy toward sovereignty. China is a country with a long history full of glories and gloom. In the past it was humiliated by foreign countries under a series of unequal treaties which undermined China’s sovereignty. Restoration of complete sovereign right of China at both domestic and international levels was for a long time the prime concern of the Chinese leaders. For China, international relations should be developed under the principles of equality, territorial integrity, non-aggression, non-intervention and peaceful co-existence among nations.1 These “five principles of peaceful coexistence” have been applied by China 1

These principles were first reflected in the Agreement between the People’s Republic of China and Republic 357

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to maintain good relations with not only the socialist countries but also the nonsocialist countries; not only with the developing countries but also the developed countries. The main thrust of these principles is the mutual respect for sovereignty of states. A logical result of equality of sovereign states and respect for sovereignty is immunity of a sovereign state from court jurisdiction of any other state. With the development of international economic integration, especially the establishment of the WTO, sovereign states have been willing to sacrifice certain traditional aspects of sovereignty in return for economic benefits. The same happened with regard to China. This article will first provide a historical account of the Chinese view on state immunity and then explain the underpinnings of China’s adherence to the traditional view on this issue. Some cases involving China and China’s comments on the work of the International Law Commission will be considered in order to analyse the Chinese policy in this regard. At the time of this writing, China has already entered bilateral WTO agreements with the United States, Japan, Canada and the European Union. The impact of WTO membership on China’s policy toward state sovereignty will also be scrutinised. As the readers will notice, the Chinese approach towards state sovereignty is tackled by analysing the position of the Chinese government and that of Chinese scholars. Although the views of Chinese scholars may not necessarily represent or even reflect the position of the government at any given time, in the long run, they do mutually influence each other. The Chinese government’s position on international human rights is an example. Before the mid-1990s, the Chinese government was reluctant to discuss human rights issues in any public forum. Chinese scholars, however, started to do research and express their views in international conferences and published works on human rights as early as the late 1980s. Currently the Chinese government has adopted a new approach toward international human rights, i.e., from avoiding such issues to actively discussing them in international settings by emphasising the peculiar situation of China. I. A retrospective review History has played an important role in the development of international law in China. In the history of China and of international law in China, the Opium War (1839–42) was the turning point.2 That fateful war forced China to conclude a

2

of India on Trade and Intercourse between Tibet Region of China and India signed on 29 Apr. 1954. On 29 June 1954 the Prime Ministers of both countries reiterated the “five principles of peaceful co-existence” in their joint statement issued in New Delhi, India. These principles reached the height of their influence when they were accepted and acknowledged by the Asian and African countries in the Asian-African Conference held in Bandung, Indonesia, on 24 Apr. 1955. For the situation of international law in Chinese history and the socio-political development after the Opium War, see J.Cohen & H.Chiu, 1 People’s China and International Law: A Documentary Study (1974), 3–22.

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number of “unequal treaties” under which it ceded its territory to other nations like the UK, Japan, and Portugal.3 This scene of imperialism continued until 1949 when the Nationalist Government was ousted by the People’s Liberation Army and before the establishment of the present People’s Republic of China. The period from 1842 to 1949 is considered by China as a “century of humiliation” during which it had to do almost everything dictated by the Western countries. Because of this history, it was natural for China to adhere to the principle of absolute sovereign immunity when the period of semi-colonialism was brought to an end and the People’s Republic was established in 1949. For China, absolute sovereign immunity means equality, territorial integrity, non-intervention, non-aggression and peaceful co-existence. By the time the Chinese government was established in 1949s the United Nations was already in existence and the UN Charter stipulates “equality among nations” as a fundamental principle. Thus it was understandable that the Chinese government emphasised sovereignty to achieve the idea of equality, territorial integrity, non-intervention and peaceful co-existence among all nations.4 “As one of the Five Principles of Peaceful Co-existence is equality and mutual benefit, one should believe that an independent sovereign state acts in good faith and performs sincerely its obligations. Only on the basis of political equality could countries develop economic and trade relations on the principle of mutual benefit.”5 China’s emphasis on equality was largely because of the unequal and unfriendly treatment it had received in the past. In fact, before the late 1970s the Western countries were sceptical of and isolated China, resulting in a mutual distrust between these countries and China. As a result, China could only develop relations with countries with the same ideologies.6 Even when dealing with those countries China was cautious about sovereignty matters.7

3

The treaties concerning Hong Kong entered into between China and the United Kingdom and the treaty related to Macao by China and Portugal are some examples of those “unequal treaties”. 4 The question of Hong Kong exemplifies the understanding of sovereignty by China. Since Hong Kong was ceded and leased through “unequal treaties” to the United Kingdom, the Chinese government first declared these treaties as invalid and asked for the return of Hong Kong to China. By virtue of the Joint Declaration signed by the Chinese government and the British government, Hong Kong was handed over to China on 1 July 1997 under the “One Country, Two Systems” principle. While granting the local people the power to administer their own affairs, China keeps foreign affairs and defence matters under its own control, thus affirming its sovereignty over Hong Kong. 5 Z.Ni, Theory and Practice of State Immunity, Chinese YIL (1983), 27–28. 6 The former Soviet Union was a major partner of China in the area of trade and other co-operation. See Declaration of the USSR on the Foundation for the Development and Further Strengthening of Friendship and Cooperation between the Soviet Union and Other Socialist States, 30 Oct. 1956, Soviet News, No. 3502:1–2 (31 Oct. 1956), which was supported by the Chinese government. See Statement by the Government of the People’s Republic of China on the Declaration by the Government of the Soviet Union on 30 Oct. 1956, on 1 Nov. 1956, 4 Wen Chien-Chi (Collection of Documents Relating to Foreign Relations of the PRC) 1956–57 (1958), 148–50. 7 China did not accept the Soviet model of “socialist internationalism” which gave the Soviet Union primacy over and interference in other Communist states, rather it proposed the “five principles of peaceful co-existence” to be applicable not only between socialist countries and non-socialist countries but also between socialist countries themselves. See Declaration of the USSR and Statement of the PRC, ibid.

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Until the 1960s China was aloof from the international arena. It was trying to be self-reliant. That was also the period when Cultural Revolution was going on in China. When the period of Cultural Revolution ended, the domestic economy was on the verge of bankruptcy. This forced China to adopt a more pragmatic attitude towards the world. It soon realised that economic interdependence had increased so much that it was impossible for China to stay away from the mainstream.8 Soon after that, the interaction of China with the rest of the world started; China concluded a number of bilateral and multilateral agreements with other countries in the areas of business, trade, investment and technological co-operation.9 With the increasing economic interactions with other countries and its economy becoming ever stronger, China finally and quietly recognised some exceptions to state immunity, particularly in commercial cases.10 In its agreements with other countries on the protection of foreign investment and taxation treaties, which were signed in the last 20 years, China showed its willingness to compromise. Initially, foreign investors were not sure that China would be a secure place for investment; they were not confident that their investment would be protected by the Chinese government. After the reinstatement of China’s membership in the International Monetary Fund (IMF), the International Bank for Reconstruction and Development (World Bank), the International Development Association (IDA) and the International Finance Corporation (IFC) in 1980 and China’s successful implementation of the policy of absorbing foreign capital and technology, foreign investors became comfortable investing in China.11 Some Chinese scholars, however, still feel very strongly about the principle of state sovereignty and sovereign equality. For instance, Professor Li argued in an article that “the principle that no sovereign state is subject to the jurisdiction of foreign courts has long been a principle of general customary international law. …Its basis is the principle of equality among sovereign states.”12

8 By then China had already acquired some very advanced technology in some limited areas like nuclear weapons and space satellites. It had also developed good economic and strategic positions with the United States. China had already passed the period of self-reliance. 9 These countries included Austria, Belgium, the Belgium-Luxembourg Economic Union, Britain, Denmark, Finland, France, Italy, Japan, Kuwait, the Netherlands, Norway, Romania, Singapore, Sri Lanka, Sweden, Thailand, the United States, the former West Germany, etc. See China Int’l Economic Consultant, Inc. (ed.), The China Investment Guide 1986 (1985), 441. 10 Up to the 1990s there had been more than 60 treaties concluded or acceded to by China which involve judicature or arbitration. See Y.Xiao, Major Principles of International Law in China’s Legislation and Judicature, China Law (1994, No. 12), 65. 11 For detailed discussions on China’s participation in international organisations and its consequential effect on the domestic legal system, see G.Wang, Economic Integration in Quest of Law—The Chinese Experience, 29 J. of World Trade (1995, No. 20), 5–28. To provide for a domestic legal system conducive to importation and protection of foreign investments and technology, China promulgated from 1979 to 1994 more than five hundred laws and regulations, with a majority concerning the economy and the introduction of capital and technology from foreign countries. For discussion on China’s legislative work, see R.Song, Record of My Participation in Legislation (1994); M.Gu, The Present State and Assignment of Chinese Economic Legislation and Institutions, 34 Outlook Weekly (26 Aug. 1986), 11; and M.Gu, On Laws with Foreign Concerns, 35 Outlook Weekly (1 Sept. 1986), 11.


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According to him, “To say the most, the principle of restrictive sovereign immunity has occurred as a principle of special customary international law…. In compliance with recognised international law, a customary international law principle which is in the process of forming has no binding force whatsoever on those countries which have been opposing it”.13 Other scholars also consider the restrictive theory of state immunity as having no place in international law. In their view: Restrictive immunity has become a trend in the domestic courts of some countries. Nevertheless, the restrictive theory of state immunity has not yet established a position under the customary international law, it also lacks a s precise definition.14 Since the restrictive view of state immunity has not been granted a place in the customary international law, it is not acceptable for China. In the Chinese view “state immunity is based on customs: foreign countries request for it, the host country explicitly or implicitly recognises it, therefore a generally accepted principle is formulated”.15 Although China is critical of the restrictive theory of state immunity, it does so only as a matter of principle. Even in the early years after the establishment of the People’s Republic, China occasionally accepted the restrictive theory of state immunity in commercial cases on the basis of reciprocity. At the same time, China was still attentive about the dispute resolution and the sovereignty matters. On 23 April 1958, China concluded the Treaty of Commerce and Navigation with the former Soviet Union. The Annexure to the Treaty defined the legal status of the trade delegation of each contracting state in the territory of another contracting state. Article 4 of the Annexure stipulated: The trade delegation shall enjoy all the immunities to which a sovereign state is entitled and which relate also to foreign trade, with the following exceptions only, to which the Parties agree: (a) Disputes regarding foreign commercial contracts concluded or guaranteed under Article 3 by the trade delegation in the territory of the receiving state shall, in the absence of a reservation regarding arbitration or any other jurisdiction, be subject to the competence of the courts of the said state. No interim court orders for the provision of the security may be made; (b) Final judicial decisions against the trade delegation in the aforementioned

12 13 14 15

H.Li, On State Immunity from Jurisdiction, Chinese YIL (1986), 301. Id., 301–302. See T.Wang (ed.), International Law (1995), 132. Ni, n. 5 above, 7.

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disputes which have become legally valid may be enforced by execution, such execution may be levied only on the goods and claims outstanding to the credit of the trade delegation.16 This provision reveals that in the view of the Chinese government commercial activities of the state entities (trade delegation) might not be entitled to immunity as the state would be. Secondly, in the absence of any arbitration agreement, the courts of China might have jurisdiction to resolve any commercial disputes. Most importantly, these exceptions to the principle of state immunity applied only when the parties so agreed. In other words, the absolute principle may be modified only by the states concerned, as giving consent to the restrictive theory on specific occasions is arguably an exercise of state sovereignty. From the Chinese point of view, state immunity is the principle of international law based on sovereign equality. At the same time there exists an exception to this principle. “In fact, the exercise of jurisdiction by a country is not completely absolute and without any restriction. The exercise of jurisdiction must be in compliance with the principles of international law, such as non-discrimination based on race or injustice, nor should it violate the norms of private international law on jurisdiction which have been generally accepted”.17 “It is surprising that some countries have accepted laws the contents of which are similar to the [Conventions on State Immunity], to which they are parties. When they have disputes with non-contracting parties, they try to impose on the latter or citizens of the latter the restrictions on immunity under their domestic laws and exercise jurisdiction, pretending that the domestic laws are in compliance with the Conventions and thus must conform to international law. Such lame arguments will never be accepted by other countries in particular socialist and developing countries.”18 II. Case studies II.A. Cases involving the issue of sovereign immunity In one case, China invoked the defence of state immunity when it was wrongly named as a party. In Scott v. People’s Republic of China (1979),19 the plaintiff argued that his eyes were injured by fireworks which were defective and were produced by a Chinese factory. The Chinese government did not appear in this case. When the motion for default judgement was filed against it, the Chinese government sent a note to the State Department of the USA. In that note, the PRC stated that it was a

16 Treaty of Commerce and Navigation between the People’s Republic of China and Union of Soviet Socialist Republics, signed in Peking, 23 Apr. 1958, Peking Review (29 Apr. 1958), 21–23. 17 Ni, n. 5 above, 5. 18 Ni, ibid., 28. 19 Scott v. People’s Republic of China, No. CA3-79–0836-D (N.D.Tex. Filed 29 June 1979).


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sovereign state and invoked the doctrine of sovereign immunity. As a result, the note claimed, the PRC could not be sued as a defendant.20 The plaintiff then amended the complaint and added the China National Native Produce and Animal By-Products Import and Export Corp. as defendant. Still the Chinese government was kept as a defendant because the plaintiff could not serve notice to the new defendant. To save the government from appearing before the court, the China Council for the Promotion of International Trade (CCPIT), a semi-government instrumentality applied for leave to appear as amicus curiae to file a brief. Soon after that, the plaintiff withdrew his case, as his claim was satisfied in a private settlement with the Chinese party. China claimed state immunity in this case because it was incorrectly named as the defendant. The trading entity was not named a party. Although it controlled thes trading entity, China believed that it should not be made responsible for the commercial activities of that entity. China argued that the definition of the Foreign Sovereign Immunities Act (FSIA) could not be applied in the abstract, particularly to a socialist country like China where many commercial enterprises were controlled by the government,21 and that the commercial activities of those enterprises should be equated with any private enterprises of the Western countries.22 Had China agreed to be the defendant in that case, it would have amounted to conceding that a sovereign state was responsible for the commercial acts of its instrumentalities. Apparently, while China insisted on the principle of absolute immunity, it was very much interested in settling the issue. That could be the reason why CCPIT offered to contest the case as amicus curiae.23 It is also apparent that when the Chinese government was not made a party, Chinese entities concerned were quite prepared to appear in court. In 1980, the United States District Court for the Southern District of New York granted sovereign immunity to a state-owned enterprise of China under the FSIA in Paterson, Zochonics (UK) Ltd. v. Compania United Arrow, S.A.24 There the court held that the China Ocean Shipping Co. had not conducted commercial activity which had any direct effect in the USA. The China Ocean Shipping Co., a State-owned enterprise of China, continued to appear as defendant for a limited purpose even after it was granted sovereign immunity. Both the Chinese government and scholars are still critical of the FSIA. Nevertheless, since the early 1980s, Chinese entities have invoked it from time to time, reaping the benefit of its restrictive theory of state immunity. For example, in

20 See Memorandum of Law in Support of Dismissal of the Action Based upon the Sovereign Immunity of the Defendant (prepared by the attorneys for the China Council for the Promotion of International Trade) filed on 19 Nov. 1982, at 3, in Scott, ibid. 21 This case was filed under Foreign Sovereign Immunities Act of the USA. 22 See also J.Sgro, China’s Stance on Sovereign Immunity: A Critical Perspective on Jackson v. People’s Republic of China, 22 Columbia JTL (1983), 128. 23 Ibid., 127–128. 24 493 F.Supp. 621 (S.D.N.Y. 1980). 25 China National Chemical Import & Export Corp. v. MV Lago Hualaihue, 504 F.Supp. 684 (D. Md. 1981).

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China National Chemical Import & Export Corp. v. MV Lago Hualaihue (1981),25 the People’s Insurance Company of China and Foreign Trade Corporation, both state-owned enterprises, successfully invoked the FSIA against the Chilean Government Merchant Marine for damages resulting from a collision, resting their claims on the commercial activities of the Chilean government. This practice shows that the Chinese government has recognised the restrictive theory of state immunity in specific cases, such as in cases involving commercial activities.26 Of course, one may argue that foreign trade companies and other commercial entities, although owned and controlled by the Chinese government, have their own interest to protect, an interest which might not necessarily be identical to that of the state government insofar as the principle of state immunity is concerned. It must be pointed out that in the late 1970s and the early 1980s, China had just started the economic reforms, and the government still tightly controlled state-owned enterprises in particular with regard to lawsuits in foreign countries. Thus, unless they had the explicit blessing of the government, it would be impossible for any such enterprises to start or defend any lawsuit in a foreign court. In Jackson v. People’s Republic of China (the Huguang Railway Bonds Case),27 first decided in 1982 by a United States district court, the cause of action was based on the Railway Bonds issued in the early 20th century by the previous Chinese government.28 The People’s Republic did not honour these bonds. A United States citizen, a bondholder, instituted the case against China. The court issued a notice to the Chinese government through its embassy in the USA. The Chinese government, however, refused to appear before the court. Then the court entered a default judgment in favour of the plaintiff. The court also ordered the Chinese government to satisfy the judgment, otherwise certain properties of the Chinese government would be seized.29 This order was taken seriously by the Chinese government. It issued an aide memoire30 to the US government. There China presented its view regarding sovereign immunity as follows: Sovereign immunity is an important principle of international law. It is based on the principle of sovereign equality of all states as confirmed by the Charter of the United Nations. As sovereign state, China incontestably enjoys judicial

26 See Sgro, n. 22 above, 126. 27 505 F.Supp. 869 (N.D.Ala. 1982) (decided that the Court had jurisdiction and entered a default judgment against China); Memorandum of Opinion Setting Aside Default Judgment, Civil Action No 79-C-1272-E (N.D.Ala., 27 Feb. 1984); 596 F.Supp. 386 (N.D.Ala. 1984) (decided the Court had no jurisdiction and dismissed the case); 794 F.2d 1490 (11th Cir. 1986) (affirmed 1984 dismissal). 28 For history of dispute see J.Sgro, n. 22 above, 102–07. 29 For critical analysis of the Court’s decision and also of China’s stand in this case see T.Chen, State Immunity and International Law—Comments on the Huguang Railway Bonds Case, Chinese YIL (1983), 31; E.Theroux & B.Peele, China and Sovereign Immunity: The Huguang Railway Bonds Case, China Law Reporter (1982–83), 129–52. 30 The aide memoire was issued on 2 February 1983 and its English translation appeared in the China Daily on 10 Feb. 1983.


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immunity. It is in utter violation of the principle of international law of sovereign equality of all states and the UN Charter that a district court of the United States should exercise jurisdiction over a suit against a sovereign state as a defendant, make a judgement by default and even threaten to execute the judgement.31 It should however be noted that before advancing the defence of state immunity, China had already explained in the aide memoire that the cause of action was based on the odious debt which the Chinese government did not recognise hence there was no case for the plaintiff.32 Through this aide memoire, China argued that state immunity was based on sovereign equality. In this case China also pleaded immunitys against execution of judgment because the American court threatened to attach Chinese property in the USA. It must be pointed out that when China and the United States normalised their diplomatic relationship in 1979, an agreement was entered into by the two governments for the settlement of claims of one against the other.33 However, the American party did not raise a claim under this agreement; rather, he filed a suit in the court.34 Besides, the bonds were issued when absolute state immunity was prevailing, therefore the restrictive theory could not be applied with retrospective effect.35 China treated the Jackson case as a matter of principle. Thus, a renowned Chinese scholar stated that: The Huguang Railway Bonds case is not simply a case in which bond holders claim for damages. It is a reflection of the two opposite views of international law and the struggle thereof. In one view, the mutual respect of sovereign immunity is a fundamental principle guiding the relationship of the nations in the world; the other view believes that one country may at its own will exercise its jurisdiction over other countries and control and order the latter. Under one view, every country must abide by international law; the other view believes that a country may freely use its domestic laws to replace and revise international law, and that other countries must abide by domestic laws. The opposition of the views is a matter of principle and hence no compromise may be made.36

31 Ibid., para 3. 32 Ibid., para 2. 33 Agreement Concerning Settlement of Claims, 11 May 1979, United States—People’s Republic of China, 30 UST 1957, T.I.A.S. No. 9306, amended by 31 U.S.T. 5596, T.I.A.S. No. 9675 (28 Sept. 1979). 34 This was viewed by some in China as an unfriendly act. 35 See Sgro, n. 22 above, 112–14. 36 Chen, n. 29 above, 52. Translation by the present author.

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All of the above cases were litigated in the early 1980s. All the senior scholars advising the Chinese government on legal issues were those who were trained in the West prior to the establishment of the People’s Republic of China and returned to China out of love of the country. After returning to China, they stopped having access to the development of the new theories and practices of international law. For them, the traditional theory of absolute immunity had penetrated into their minds deeply and had become their firm belief. Naturally their advice was to oppose the restrictive theory. From the Chinese government’s point of view, the absolute immunity theory derived from the principle of state equality under the UN Charter. If this principle could be compromised so would others. As a result, China’s internal affairs might be affected.37 II.B. Cases involving immunity of state property Another set of cases related to the judicial immunity of state property. Most of these cases concerned China’s succession to certain property previously held by the Nationalist government. In this series the Civil Air Transport Inc. v. Central Air Transport Corporation38 is an important one which was decided by the Hong Kong Court of Appeal and later by the Privy Council. The material facts of this case may be summarised as follows. In 1949 the present Chinese government took control over mainland China and the then Nationalist government was forced to leave the mainland and settled in Taiwan. In that period some aeroplanes of the government were flown to Hong Kong with a view to keeping the Chinese government away from the national property. When the Chinese government requested the Hong Kong government to return its property, the Hong Kong government—by virtue of a hurriedly passed ordinance39—took charge over those aeroplanes with a view to avoiding any confrontation between Hong Kong, the Chinese government and the Nationalist government. In the meantime, motivated by the political situation, the Nationalist government sold those aeroplanes to certain American nationals who in turn resold them to a company owned by them. The American company and the Chinese government fought for the possession of those aeroplanes. The American company filed a suit against the American parties for not delivering the assets sold to them. The trial court and the Court of Appeal dismissed the claim of the plaintiff on the ground of jurisdictional immunity, as the UK government formally recognised the Beijing government as the de jure government of China on 6 January 1950. But the Privy Council on 10 May 1950 ordered that a dispute regarding ownership of

37 China is very concerned about the danger of being interfered with in connection with Taiwan. This has become more and more serious as Taiwan tries to join the UN and expand ties with other countries. 38 [1953] AC 70. 39 The Representation of Foreign Powers (Control) Ordinance was enacted by the Hong Kong legislature to deal with this problem in 1949.


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assets still remained to be resolved. The Privy Council took cognisance of the date of the sale and the date of recognition and decided the case in favour of the plaintiffs, maintaining that the sale was entered into before the date of recognition of the new government and that the alleged sale made by the old government was valid and legally enforceable. The grant of de jure recognition to a new government, as the Privy Council opined, did not invalidate the act done by the previous government. Thus the claim of sovereign immunity over property of China was denied by the Privy Council on the pretext of the date of recognition. The Chinese government showed its resentment during the proceedings through the official channel to the UK government. On 3 December 1949, the Chinese Premier Zhou En-Lai issued a s statement in which he pointed out: The China National Aviation Corporation and the Central Air Transport Corporation have already been transferred to the Central People’s Government of the People’s Republic of China and been directly subjected to the Civil Aviation Administration of the Central People’s Government. It is only the Central People’s Government of China and its entrusted person that have the right to dispose the retained assets of the two aviation corporations in Hong Kong. This sacred property right of the Chinese Central People’s Government should be respected by the Hong Kong Government.40 Against the decision of the Privy Council the Chinese government declared: The British Government has no right of jurisdiction over the assets of the two Chinese aviation corporations retained in Hong Kong. Neither does it have any right to infringe upon, impair, or transfer them. The British Government must immediately stop its illegal acts against the sovereignty of the People’s Republic of China.41 According to China, the British government did not follow the principle of international law related to state succession under which China would succeed to the property laying in Hong Kong as that property, being state property, qualified for jurisdictional immunity. Although the Privy Council took notice of the political motive of the Nationalist government with respect to the sale of the government property,42 the Court rendered its judgment in favour of the plaintiff and denied

40 1 Documents on Foreign Relations of the People’s Republic of China (1957), 88. 41 2 Documents on Foreign Relations of the People’s Republic of China (1958), 85. 42 In 1979 when the United States recognised the Chinese government, the Nationalist government, through a similar means, sold its embassy to a private body in order to avoid the succession by the Chinese government to the property. This time the Chinese government did not take any legal action. 43 See Documents, n. 41 above, 14–17.

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state immunity to the Chinese government’s property on the ground of the date of recognition and the sales agreement. The “Yonghao” Oiltanker43 case is another example where China claimed state immunity for state property which not only was denied to it but was also acquired by the British government. After its establishment, the Central People’s government declared that all vessels anchored outside China belonged to the Chinese government. Yonghao was one of the vessels anchored at the Hong Kong port at that time. It was owned by the former Nationalist government. By virtue of the Chinese government announcement, it became state property of China. The Nationalist government brought an action in the Hong Kong court claiming the vessel as its own property. Above all, the Hong Kong government acquired this vessel under the Emergency Act in the guise of public interest and then transferred it to the British Royal Navy. This act of the British government was condemned and protested seriously by the Chinese government.44 Only a Swedish court granted immunity to Chinese property in Beckman v. Chinese People’s Republic45 where a piece of property was sold to the Chinese embassy in Stockholm. The plaintiff wanted to claim back the property, which was sold by their father without their consent, on the ground that the sale was not for the benefit of their estate and also disadvantageous to them. In this case China pleaded state immunity in respect of the property, and did not appear before the trial court. The trial court disposed of the case on the ground of sovereign immunity which was upheld by the court of appeal and the Supreme Court of Sweden. The reason for granting sovereign immunity to the state property seemed to be the fact that the property was used by the Chinese embassy and according to the established principle that the property of an embassy is entitled to immunity from jurisdiction. III. The current approach After the passage of almost fifty years, the whole world has changed a lot and so has the principle of state sovereignty, including sovereign immunity. It is now settled that a sovereign act is immune from the jurisdiction of a foreign court, while commercial activities are justiciable. When the principle of absolute sovereign immunity was recognised by all countries in the world without exception, China was under the influence and control of foreign countries. When the People’s Republic was established, its first duty was to restore its pride, independence, to do away with the unequal treaties which were forced upon it, to get rid of imperialism and to achieve sovereign equality. It was therefore in the best interest of the state to adhere to the principle of absolute sovereign immunity which was based on the concept of

44 See ibid., 14–15. 45 This case was reprinted in Materials on Jurisdictional Immunities of States and Their Property, United Nations Legislative Series 1982, UN Doc. ST/LEG/SER.B/20, 426–427.


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sovereign equality. From the Chinese point of view, sovereign immunity was used by other countries as a shield to protect their sovereignty at the same time as it was used as a sword to impose imperialism on the comparatively weaker countries. Therefore, it was quite natural for China to oppose the restrictive theory. Only by adhering to the principle of absolute sovereign immunity could equality among nations be achieved. It was never the view of China to insist on absolute sovereign immunity for commercial activities of the state. Nevertheless, whilst China was isolated, the rest of the world started to distinguish commercial acts from sovereign acts and to put forward the theory of restrictive state immunity. Due to this development, China’s emphasis on the principle of sovereign immunity came into conflict with the restrictive theory. In the view of China, “the absolute immunitys sometimes creates inconvenience, but the restrictive theory will unnecessarily create confusion, and will also bring blackmail and abusive litigation. There has been an emergence of this trend. Asian and African countries including China were for a long time subject to foreign jurisdictions. Even today, a sovereign state has to be tried by the court of another country. No nation with a little self-respect will tolerate such violations of the principle of state equality under international law.”46 China’s attitude toward sovereignty was also reflected in the work of the International Law Commission for codification of international law on “Jurisdictional Immunities of States and Their Property”.47 When the first draft was transmitted to the member states for comments and observations, China responded enthusiastically.48 China presented the picture of its view on jurisdictional immunity as follows: The Chinese Government maintains that the jurisdictional immunity of states and their property is a long established and universally recognized principle of international law based on the sovereign equality of states.49

46 Ni, n. 5 above, 27–28. 47 This topic was included in the Commission’s current programme of work by the decision of the Commission at its thirtieth session, in 1978, on the recommendation of a Working Group which it had established to commence work on the topic and in response to the General Assembly resolution 32/151 of 19 December 1977 (para. 7). The final text of a set of 22 draft articles were adopted by the International Law Commission and submitted to the General Assembly with recommendation that it should convene an international conference of plenipotentiaries to examine the draft articles on this topic and conclude a convention on the subject. 48 At its thirty-eighth session the Commission adopted on first reading an entire set of draft articles on the topic, which was transmitted, in accordance with articles 16 and 21 of the Commission’s Statute, through the Secretary-General to Governments for comments and observations returnable by 1 Jan. 1988. 49 See ILCYB (1988–II(1)), 63. 50 Ibid.

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The Chinese government also requested the Commission to “spell out the status of this principle in international law”.50 The Chinese government wanted the basic principles to be clearly laid down and their exceptions carved out after careful and thorough study of the practices of different states. It proposed: The draft articles should affirm the principle mentioned above and, on the basis of a thorough study of the practice of states, including the socialist and developing countries, pragmatically identify those “exceptions” whose necessity and reasonableness are borne out by reality, e.g., “ownership, possession and use of immovable property”, “ships engaged in commercial service”, so as to accommodate the present state and the development of international relations, particularly international economic and commercial links.51 For China, instead of recognising as or making the restrictive theory of sovereignty a principle of international law, it is important to confirm the principle of absolute sovereign immunity as an international norm and then highlight the exceptional cases where sovereign immunity may not apply. From the Chinese viewpoint, “replacing this principle [of sovereign immunity] with the concept of so-called functional immunity considerably weakens the effectiveness of the principle and the number of exceptions should be kept to a minimum.”52 This was also supported by the Special Rapporteur in his preliminary report stating that “the draft should endeavour to establish in a clear cut and balanced way the principle of immunity, on the one hand, and the appropriate limitations, on the other.”53 From China’s treatment of sovereign immunity it is clear that the country is pragmatic about international relations. The realistic approach of China was considered “the surest, and perhaps the only way to reconciling two opposite positions and achieving the objective of the future convention.”54 With regard to what should be the objective of the legal regime for jurisdictional immunities, China’s view is: The object of establishing a legal regime for jurisdictional immunities of states should be to strike the necessary balance between the limitation and prevention of abuses of national judicial process against foreign sovereign states and the provision of equitable and reasonable means of resolving disputes, thus helping to safeguard world peace, develop international economic co-operation and promote friendly contacts between peoples.55

51 Ibid. 52 Ibid., 100 (see also Preliminary Report on Jurisdictional Immunities of States and Their Property by Mr. Motoo Ogiso, Special Rapporteur. Document A/CN.4/415). 53 Ibid. 54 Ibid. 55 Ibid., 63. 56 See the Preliminary Report of the Special Rapporteur in ibid., 261.


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In order to find a realistic solution to the problem of sovereign immunity, as suggested by China, the members of the Commission also agreed, during the first reading of the draft articles, “not to plunge too deeply into the restrictive merits of the two theories of immunity and to concentrate rather on concrete problems, trying to identify the activities to which immunity from jurisdiction should apply and those to which it should not.”56 To avoid any theoretical discussion, the International Law Commission kept the debate on the “act of state” doctrine away from its agenda while drafting the articles related to jurisdictional immunity, because sovereign immunity and the “act of state” doctrine have different effects on the competence of the court. Jurisdictional immunity presupposes the jurisdiction and competence ofs the court while in an “act of state” case the court has no competence to judge the matter.57 Sovereign immunity is a bar which prohibits the court to take cognisance of the matter which may be removed if the defendant state submits itself to the court or agrees to waive the immunity. In regards to “act of state” cases the defect of inherent lack of competence of the court is not curable by any means.58 These distinctions were appreciated by the Commission and hence the issue of “act of state” was kept away from the discussion on the issue of sovereign immunity and it was stated that jurisdictional immunity in this sense was far more relative—and even subjective—than the doctrine of “act of state”.59 With regard to other aspects of sovereignty, however, China has also adopted quite a realistic view. When it first restored its membership in the UN, it regarded international organisations as a forum for international struggles. It also considered economic data to be state secrets and accordingly kept such information confidential as a symbol of exercising sovereignty. As discussed earlier, China had its seat at the IMF and World Bank group restored in 1980. When the matter was discussed at the Ministry of Foreign Affairs, the first issue considered and debated was whether the IMF and World Bank membership would impair China’s sovereignty and if so to what extent. In the end, most of the people realised that in order to develop its economy, China needed technology and capital and that the membership of the IMF and World Bank group would not only bring badly needed hard currency to the country but would also help build confidence in foreign investors interested in doing business in China. As almost all countries in the world submit economic data to the IMF and World Bank, the principle of sovereignty should be given a new meaning under the circumstances.

57 For discussion on “jurisdictional immunity” and “act of state” by the International Law Commission see, Draft Articles Submitted by the Special Rapporteur (1653rd Meeting), in ILCYB (1981–I), 57. 58 For a detailed discussion on the “act of state” doctrine with respect to its historical development and the practice of China, see G.Wang, A Comparative Study on the Act of State Doctrine—With Special Reference to the Hong Kong Court of Final Appeal, in G.Wang & Z.Wei (eds.), Legal Developments in China: Market Economy and Law (1996), 249–85. 59 See Documents of the Thirty-Third Session, ILCYB (1987–II), 134.

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In addition to the IMF and the World Bank, the WTO is another example of where China is prepared to compromise the principle of sovereignty for economic benefits. WTO agreements cover almost every aspect of the economic life of every member ranging from tariffs, antidumping, subsidies, evaluation of imported goods to government procurement, from trade in goods and services, to trade related investment measures and intellectual property. WTO agreements not only impact the lawmaking of members, but also affect the latter’s law enforcement systems and standards and values in relation to law enforcement. These requirements however have not hindered China’s desire to join the organisation. In fact, even the US bombing of the Chinese Embassy did not make the Chinese government close the door to WTO entry negotiations. China’s willingness to compromise the principle of sovereignty in economic matters does not mean that China agrees with the Western interpretation of sovereignty. Human rights issues are cases in point. The difficulties Western countries come across in discussing human rights issues with China in recent years show that China still holds very strong views towards the traditional principle of sovereignty. It considers that natural persons lack any international status in international law and that, therefore, issues relating to human rights are internal affairs. Accordingly, they should not be subject to interference by foreign states. It also views the dialogue on human rights issues as a gesture of friendship and a compromise to the principle of sovereignty. As a result, after the Chinese Embassy in Belgrade, Yugoslavia, was bombed by the United States Airforce as part of the NATO forces, China immediately terminated the dialogue on human rights with the United States. The termination of dialogue was announced as one of the retaliation measures. It is submitted that the international economic integration of China will force the country to learn to live up to the rules of the world economic game. With China’s increased participation in international matters, its influence in world affairs will grow and it will feel more secure in dealing with the strong international powers. This will in turn affect China’s attitude toward state sovereignty.

23 The doctrine of command responsibility as applied to civilian leaders: the ICTR and the Kayishema case Zhu Wenqi*

It is really a privilege for me to participate in this collective effort in memory of Judge Li Haopei, one of the world’s most outstanding international lawyers. I have had the honour of working together with Judge Li in the Chinese Foreign Ministry for six years (1988–1994), and then for six months (Jan.–June, 1995) as his Legal Assistant in the ICTY. One of the many legal issues that we discussed while he was at the Tribunal was the doctrine of command responsibility in particular, how this doctrine should be applied to civilian leaders in relation to their individual criminal responsibility. I feel that now is the appropriate time to discuss this issue in memory of Judge Li, for whom I have always had great respect. I. Introduction Under Article 6 of the Statute of the International Criminal Tribunal for Rwanda (“the ICTR”), an accused person may incur individual criminal responsibility as a result of having participated in the commission of a crime either through direct commission of an unlawful act1 or by omission where there is a duty to act. The liability of a superior for a failure to act is set forth in Article 6(3) of the ICTR Statute. It reads as follows: The fact that any of the acts referred to in articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary

* 1 2

The views expressed in this article are personal ones, and thus do not necessarily reflect those of either the Office of the Prosecutor of the ICTY or the United Nations. Article 6(1) provides that “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute, shall be individually responsible for the crime.” ICTR Statute, adopted in SC Res. 955 (1994). 373

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and reasonable measures to prevent such acts or to punish the perpetrators thereof.2 The notion of superior responsibility derives from the doctrine of command responsibility which was originally viewed as being essentially applicable to military commanders. However, Article 6(3) does not establish any distinction between military and civilian leaders. It does not even seem to be concerned with the possible distinction between military and civilian leaders. Rather, the more generic term of “superior” is used. Together with other terms such as “official position” or “Head of State or Government” in Article 6(2),3 it is clear that the drafters of the Statute intended to extend superior responsibility beyond military commanders to encompass political and governmental officials. The doctrine of command responsibility as applied to civilian leaders has been of significance in the prosecution of crimes before the ICTR. In 1994, genocide took place in Rwanda in which more than half a million Tutsis were killed in one hundred days.4 In accordance with general principles of criminal law, individuals, regardless of their social position, should be brought to trial if they have committed crimes under international law. However, the reality is that the ICTR, with its limited resources,5 is not capable of prosecuting all of those who are responsible for the genocide that occurred in Rwanda in 1994.6 It is thus reasonable to expect that the Office of the Prosecutor would make the best use of its limited resources by taking all practicable measures to build cases against high level politicians and senior government officials, those who, ultimately, are responsible for planning and organising the genocide. The fact that a breach of international humanitarian law may consist of an omission, i.e., a failure to act, is uncontested nowadays both in the legal literature and case law on international humanitarian law. However, the doctrine of command responsibility is based on the fact that the military commanders have control over subordinates in a rigid and hierarchical military system with disciplinary powers and have the authority to order subordinates. This is by no means always the case in a civilian authority structure. The military commanders have a duty and power to ensure compliance with the rules of international law that is applicable in armed conflicts. However, although such commanders have real control over their 3 4

5 6

Article 6(2) of the ICTR Statute provides that “The official position of any accused person, whether as Head of state or government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment.” Estimates of the number of victims appear to vary depending on the source. For example, while discussing the establishment of the ICTR, the Representative of New Zealand estimated that “[b]etween 500,000 and 1 million people may have been slain in Rwanda in a little over three months”; by contrast, the Representative of Rwanda estimated that “over 1 million perished in the course of this genocide”. What is generally agreed, however, is that more than half a million people lost their lives in the genocide. See UN Doc. S/PV. 3453 (8 Nov. 1994), 4 and 14. In the prisons of Rwanda, there are more than 130,000 suspects awaiting trial. See, A.Des Gorges, Leave None to Tell the Story—Genocide in Rwanda (1999). One Representative stated in the Security Council during the adoption of Resolution 955 that “given the very large number of perpetrators of serious offences, all of them cannot be tried by the International Tribunal.” See UN Doc. S/PV. 3453 (8 Nov. 1994), 3.

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subordinates, civilian leaders often do not possess such power. Therefore, while it is generally accepted that civilian superiors can be held responsible for acts of their subordinates under certain circumstances, the elements giving rise to such responsibility for military commanders and for civilian leaders do not appear to be identical. The limits of superior responsibility for acts of omissions that are attributable to civilian leaders need to be articulated and elaborated in the case law, including that of the ad hoc tribunals. On 21 May 1999, a Trial Chamber of the ICTR delivered the Judgement of The Prosecutor v. Kayishema and Ruzindana. Since Kayishema was the Prefect of Kibuye during the genocide in 1994 and was charged under Article 6(3) in his capacity as a superior for the unlawful conduct of his subordinates,7 the Kayishema judgement provides as basis to examine the elements of command responsibility as applied to civilian leaders, and to assess its significance in the development of international criminal law as it is reflected in the jurisprudence of the ICTR.8 It is true that the distinction between military commanders and civilian leaders is sometimes difficult to make from a factual perspective.9 For the purpose of this discussion, a rather broad definition will be given to civilian leaders. Military leaders are considered to be those who hold absolute control over the formulation of military policy. But a person will be considered a civilian leader when he was a member of the government, army officer or not, who fulfilled his official duty without a direct relation to or control over or by the armed forces. II. “Civilian status” in command responsibility

7 The indictment of Clement Kayishema and Obed Ruzindana alleged in part that: “Each of the accused is individually responsible for the crimes alleged against him in this indictment, pursuant to Article 6(1) of the Tribunal Statute”. “In addition, Clement Kayishema is also or alternatively individually responsible as superior for the criminal acts of his subordinates in the administration, the Gendarmerie Nationale, and communal police with respect to each of the crimes charged, pursuant to Article 6(3) of the Tribunal Statute”. See The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR95–1-T, Judgement (21 May 1999), 7. 8 In her Legal Brief submitted before the Trial Chamber, the prosecutor used the term “superior responsibility”. That notion which originally comes from the Doctrine of Command Responsibility is normally applicable to military commanders for their failure to act. Compared to the Doctrine of Command Responsibility, the notion of superior responsibility may be viewed as a more generalised one that imputes liability to both military superiors and political/bureaucratic superiors. 9 In the case of the Tokyo trials, for example, many members of the Japanese government were also high ranking military officers during the period alleged in the indictment. 10 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), 1013, para. 3544; see also Trial of Wilhelm von Leeb and Thirteen Others, United States Military Tribunal (1948), in UNWCC, 12 Law Reports of Trials of War Criminals (HMSO, 1949), 76; and Trial of General Tomoyuki Yamashita, United States Military Commission (1946), in ibid., vol. 4, 35 and 87.

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The “superior-subordinate relationship” in Article 6(3) requires that it shall apply to any “superior” who has “a personal responsibility with regard to the perpetrator of the acts concerned because the latter, being his subordinate, is under his control”.10 For the Trial Chamber in Kayishema, the significance of the doctrine of command responsibility is given recognition in the form of a duty or a legal obligation of commanders to ensure that their subordinates observe the laws of war: “It is now firmly established that for the accused to be criminally culpable his conduct must have been proved, beyond a reasonable doubt, to have contributed to, or have had an effect on, the commission of the crime.”11 Consequently, failing to exercise that duty would be a violation of the laws of war. This position of the Trial Chamber is consistent with post-World War II jurisprudence. The Tokyo Military Tribunal, while addressing the question of the treatment of prisoners and imposing direct legal responsibility on civilian leaders, stated that: “The duty to prisoners is not a meaningless obligation based upon a political abstraction. It is a specific duty to be performed in the first case by those persons who constitute the government… It is the duty of all those on whom responsibility rests to secure proper treatment of prisoners and to prevent their ill treatment by establishing and securing the continuous and efficient working of a system appropriate for these purposes. Such persons fail in this duty and become responsible for ill treatment of prisoners.”12 Accordingly, it is the duty which gives rise to legal responsibility when a superior fails to act in breach of a clear duty to act. Command responsibility is derived from a duty to take adequate measures in order to secure the observance of the laws and customs of war and to prevent their breach, and any corresponding failure to execute such a duty is consequently an invitation to apply the principle of command responsibility. However, the doctrine of command responsibility is originally a military concept. It must be noted that “[t]he first duty of a military commander, whatever his rank, is to exercise command. Therefore, relationships between ranks and responsibilities are, as a general rule, exactly determined within the armed forces, and the authority of each of the different levels of the hierarchy is precisely defined.”13 Since it is a fact that civilian status is different from military status, caution should be exercised when command responsibility is applied to civilian leaders.

11 Kayishema Judgement, n. 7 above, para. 199. 12 The Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East, reprinted in R.J.Pritchard & S.M.Zaide (eds.), The Tokyo War Trial (1981), 48, 444. 13 ICRC, n. 10 above, 1017, para. 3549 14 See The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96–4-T, Judgement (2 Sept., 1998), para. 491. 15 Ibid., para. 490.


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In the Akayesu case14, the first trial involving genocide charged in the international arena since the Genocide Convention of 1948, the Trial Chamber took note of the dissenting opinion of Judge Röling who stated that “Generally speaking, a Tribunal should be very careful in holding civil government officials responsible for the behaviour of the army in the field.”15 The Trial Chamber in Akayesu therefore finds that in the case of civilians, the application of the principle of individual criminal responsibility, enshrined in Article 6(3), “remains contentious”.16 The Chamber in the Kayishema case adopted a different approach. For them, “the application of criminal responsibility to those civilians who wield the requisite authority is not a contentious one.”17 It is not the civilian status of an accused, but rather “the degree of authority” exercised by the accused over his subordinates thats should be the essential element in determining whether the accused should be held responsible under Article 6(3).18 The Trial Chamber in the Kayishema case went on to state that: This jurisprudence extends naturally to give rise to responsibility when the accused failed to act, and any corresponding failure to execute such a duty is a question that is inextricably linked with the issue of command responsibility. This is because under Article 6(3) a clear duty is imposed upon those in authority, with the requisite means at their disposal, to prevent or punish the commission of crimes.19 The construction of the Statute itself is clear. It makes no limited reference to the responsibility to be incurred by military commanders alone.20 Accordingly the Chamber accepted “the submission made by the prosecution that a civilian in a position of authority may be liable under the doctrine of command responsibility.”21 Thus the reasoning in Kayishema is first to stick to the duty or legal obligation, and then to stress that both a military commander and a civilian official may have an affirmative duty to take such measures as are within his or her power, in particular, in exercising control over his or her subordinates. If a military leader can fail in this duty, a civilian official may likewise do so. As a consequence, it is clear that the commander or the civilian official who disregards this duty has committed a violation of the humanitarian law. It is thus clear that civilian leaders (political and/or bureaucratic leaders) can be held legally responsible for the acts of subordinates when they fail to act, so long as the degree of authority is similar to that of a military commander.

16 The Trial Chamber in the Akayesu case is composed of three judges: Judge Laïty Kama, Presiding, Judge Lennart Aspegren and Judge Navanethem Pillay. 17 Kayishema Judgement, n. 7 above, para. 213. 18 Ibid., para. 216. 19 Ibid., para. 202. 20 Ibid., para. 214. 21 Ibid., para. 216.

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This ruling in the Kayishema case finds its support in the Draft Code of Crimes against Peace and Security, as provided by the International Law Commission (ILC): The provisions concerning superior orders, command responsibility and official position contained in articles 5 to 7 are intended to ensure that the principles of individual criminal responsibility apply equally and without exception to any individual throughout the governmental hierarchy or military chain of command who contributes to the commission of such a crime.22 The language “without exception” clearly explicates the position of the ILC: namely, that under international law, a civilian superior as well as a military commander will be held responsible for their contribution to the commission of crimes. The Kayishema Trial Chamber, therefore, accepted the submission made by the Prosecution that a civilian in a position of authority may be liable under the doctrine of command responsibility.23 III. “De jure” and “de facto” control The requirement of a legal obligation before applying Article 6(3) of the ICTR Statute indicates that the critical issue for command responsibility is whether a superior actually possesses power and control over his subordinates, as an Article 6(3) charge demands that the Tribunal convict only those superiors who truly have control over those who committed the unlawful acts. It is this “real power” and then a “fail[ure] to act” that characterises culpability central to the principle of superior responsibility. This should apply equally to military commanders as well as to civilian superiors. The power or control of authority may be de jure or de facto. The term “superior” in Article 6 does not offer any indication as to what sort of control or power it refers to. However, viewed from the purpose and objective of that article, it must encompass a position based on the existence of de facto powers of control. The concept of a “duty to act” raises the complex prxoblem of the attribution of powers and duties that are obviously governed by the national law. Once national law has attributed powers and duties, the duty resulting therefrom with regard to international law has to be interpreted in the light of treaty instruments. At the time when the alleged crimes in the Indictment against Kayishema occurred, the Republic of Rwanda was divided into eleven Prefectures. These eleven Prefectures are further divided into communes.24 The massacres that formed the basis of the

22 Report of the International Law Commission on the work of its forty-eighth session, UN Doc. A/ 51/10, 31. 23 Kayishema Judgement, n. 7 above, para. 216. 24 See Paragraph 2 of the Indictment The Prosecutor v. Clement Kayishema & Obed Ruzindana. 25 Rwandan Laws (11 Mar. 1975)—Decret-Loi no. 10/75 (Organisation and function of the Prefecture), art. 3.


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charges in the indictment all occurred in the Prefecture of Kibuye, of which Kayishema was the Prefect. In accordance with the applicable law in Rwanda in 1994, the function of Kayishema, as being the Prefect of the Kibuye Prefecture, was defined as “the highest local representative of the government” and “the trustee of the State Authority”.25 As a direct consequence, he had the duty and responsibility for “maintaining the peace, public order, and security of persons and goods within the prefecture”. In carrying out his duty to maintain peace, a Prefect may demand assistance from the army or from the Gendarmerie Nationale.26 Kayishema certainly enjoyed the power of control over the Prefectoral administration and its agencies. Indeed, “effective control” is the appropriate test for the Trial Chamber tos determine the individual responsibility of the superior for the criminal acts of his/ her subordinates. A superior would not incur criminal responsibility for failing to perform an act that was impossible to perform. During the trial, the Counsel for Kayishema argued that there existed a state of turmoil between April and July 1994 in Rwanda which made the country “a society that no longer recognised the rule of law”.27 In light of that, the Counsel submitted that “after the crash of the President’s plane (6 April 1994), the situation that occurred was such that a government had to be invented.”28 As a consequence, his client, Kayishema, though Prefect of Kibuye Prefecture, did not actually have any true power or control over his so-called subordinates. It is axiomatic that the ability to prevent and punish a crime is a question that is invariably linked with a given situation. The necessary prerequisite for superior responsibility must be considered by virtue of a person’s de facto, as well as de jure, position as a superior. In the case of Kayishema, only in light of the realities of the given situation in Rwanda in 1994 could the Trial Chamber consider whether Kayishema exercised the requisite degree of control over his subordinates in order to arrive at the conclusion that he was individually criminally responsible for the atrocities committed by these subordinates. The Prosecutor submitted that Kayishema exercised both legal or de jure command over those who committed the massacres and de facto authority over the same assailants, and also over other assailants as the members of the Interahamwe.29 It was established during the trial that Bourgmestre Sikubwabo, a number of communal police officers, and members of the gendarmerie nationale, all of whom were considered as subordinates of Kayishema, were responsible for numerous deaths and injuries inflicted upon innocent Tutsis. In order to hold Kayishema liable for these criminal acts under the principle of superior responsibility, the superior-subordinate relationship

26 27 28 29 30

Rwandan Laws (23 Jan. 1974)—Decret-Loi (Creation of the Gendarmerie), article 8–2. Closing argument, Mr. Ferran, Transcript of 3 Nov. 1998, 112. Transcript of 4 Nov. 1998, 90. Prosecutor’s Closing Brief, Case No ICTR-95–1-T, 9 October 1998, para. 219. Celebici Judgement (16 Nov. 1998), Case No: IT-96–21-T, para. 354.

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has to be established between Kayishema and these people, on the basis of de facto authority. In relation to this point, the Trial Chamber in Kayishema relied on the reasoning that was put forth by a Trial Chamber of the International Tribunal for the Former Yugoslavia (“the ICTY”) in the Celebici case, namely that “The mere absence of formal legal authority to control the actions of subordinates should therefore not be understood to preclude impositions of such responsibility.”30 “Equally…the mere existence of de jure power does not always necessitate the imposition of command responsibility.”31 And furthermore, “[i]n order to ‘pierce the veils of formalism’ therefore, the Chamber must be prepared to look beyond the de jure powers enjoyed by the accused and consider the de facto authority he exercised within Kibuye during April to July 1994.”32 It is also interesting to note that the Kayishema Trial Chamber considered the ILC as going too far by having both “the legal competence…and the material possibility”33 to hold an individual responsible under Article 6(3), stating that this ILC’s proposition “does not assist the Trial Chamber in tackling the ‘realities of any given situation’.”34 The ruling of the Trial Chamber in Kayishema demonstrated that the International Tribunal should, in particular, look into the de facto control that a superior exercises over his subordinates in a given situation in order to define his individual responsibility. IV. The mens rea for command responsibility as applied to civilian leaders The mens rea in Article 6(3) of the Statute requires that a superior is held criminally responsible for the conduct of his subordinates where he “must have known, or had reason to know”, of their unlawful acts. In order to hold Kayishema criminally responsible for the wrongful conduct of his subordinates, the Tribunal had to make sure that he “must have known or had reason to know” under the circumstances, that his subordinates were committing or were going to commit an offence that is punishable under the Tribunal’s Statute. This element in Article 6(3) indicates, however, that a superior may have the mens rea in two different situations. First is a “must have known” scenario: that is, when a superior has actual knowledge that his subordinate is going to commit or is about to commit a crime. If it can be proved beyond a reasonable doubt that a superior knew

31 Akayesu Judgement (2 Sept. 1998), Case No: ICTR-96–4-T, para. 491. 32 Kayishema Judgement, para. 218. 33 In the Draft Code of Crimes against Peace and Security, the ILC stated that “for the superior to incur responsibility, he must have had the legal competence to take measures to prevent or repress the crime and the material possibility to take such measures.” See ILC Draft Code of Crimes against Peace and Security, Report of the International Law Commission on the Work of its 48th Session, UN Doc. A/51/10, 38–39. 34 Kayishema, n. 7 above, para. 218.


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of the crimes that were being committed by those over whom he exercised control, then the requisite mens rea is clearly established. But the other situation is defined by a “had reason to know” mental state: meaning that a superior may have sufficient relevant information to enable him to conclude under the circumstances at the time that his subordinates are committing or are about to commit a crime. In the second scenario, the superior does not have actual knowledge of the unlawful conduct being perpetrated by his subordinates, but he may have sufficient and relevant information of a general nature that would enable him to conclude that such is the case. Therefore, when it is considered that individual responsibility arises when the superior “had reason to know” that a crime had been, or was about to be committed, the requisite mens rea is not so clear. This may give rise to uncertainty in situationss where the superior lacks such information by virtue of his failure to properly supervise his subordinates. The mens rea requirement for command responsibility is provided, for the first time in an international legal instrument, in Article 86 of Protocol I to the 1949 Geneva Conventions. However, the English version of that article is different from its French counterpart. While the English version contains the wording “information which should have enabled them to conclude,” the French text, rather than convey a literal translation of the English text (i.e., “des informations qui auraient dû leur permettre de conclure) reads “des informations leur permettant de concluire” (literally: information enabling them to conclude). Due to this discrepancy, the English text seems to embrace two requirements: one objective (i.e., that the superior had certain information) and the other subjective (i.e., from the information available to the superior he should have drawn certain conclusions). The French text, on the other hand, only contains the objective element.35 The ILC takes the position that “the phrase ‘had reason to know’ is taken from the statutes of the ad hoc tribunals and should be understood as having the same meaning as the phrase ‘had information enabling them to conclude’ which is used in Additional Protocol I.”36 It is generally accepted that there are three constituent elements for the command responsibility, similar to that for (civilian) superior responsibility: (1) the superior concerned must be the superior of that subordinate; (2) he knew, or had information which should have enabled him to conclude, that a breach was being committed or was going to be committed; and (3) he did not take the measures within his power to prevent it.37

35 M.Bothe, K.Partsch, & W.Solf, Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (1982), 525. 36 ILC Draft Code of Crimes, n. 33 above, 38. 37 ICRC, n. 10 above, 1012–13, para. 3543.

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Within the jurisprudence of the Nuremberg and Tokyo Military Tribunals can be found the genesis of the principle that the absence of knowledge should not be considered a defence. For example, the Nuremberg Tribunal held in the Hostage case that a commander of occupied territory is: charged with notice of any occurrences taking place within that territory. He may require adequate reports of all occurrences that come within the scope of his power and, if such reports are incomplete or otherwise inadequate, he is obliged to require supplementary reports to apprise him of all the pertinent facts. If he fails to require and obtain complete information, the dereliction of duty rests upon him, and he is in no position to plead his own dereliction as a defence.38 It can be deduced from such cases that a commander who simply ignores information within his actual possession compelling the conclusion that criminal offences are being committed, or are about to be committed, by his subordinates commits a serious dereliction of duty for which he may be held criminally responsible under the doctrine of command responsibility. The same criteria may also be applied to non-military superiors if they exercise powers over their subordinates much in the same way as do the military commanders. But this is not always the case. In reality, the structure of social society is not as rigid as in the military. All of the cases of the Nuremberg and Tokyo trials appeared to impose a duty on military commanders to know everything that occurred within their ambit of jurisdiction,39 and, on that basis, imposed responsibility upon the commander for failure to fulfil that duty. However, the proposed Statute of the International Criminal Court does not embrace such practice. Article 28 of the Rome Statute provides that military commanders shall be criminally responsible if they “either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes.” However, with respect to the non-military superiors, the same provision provides that their responsibility would occur if they “either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes”.40 Thus, the Rome Statute makes a distinction between military commanders and non-military superiors. In the case involving a military structure, the Statute imposes a more active duty upon a military commander to inform himself of the activities of his subordinates when he “knew or, owing to the circumstances at the time, should

38 United States v. Wilhelm List et al., UNWCC, n. 10 above, vol. 11, 1230, 1271. 39 Celebici Judgement, para. 389. 40 Rome Statut of the International Criminal Court, UN Doc. A/CONF. 183/9, http:// www.un.org/ law/icc/index.html. 41 Kayishema Judgement, n. 7 above, para. 228.


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have known that the forces were committing or about to commit such crimes.” This is juxtaposed with the mens rea element demanded of all other superiors who must have “[known], or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes.” As a consequence thereof, the degree of knowledge required for military commanders is different from that for non-military commanders. Endorsing the approach of the Rome Statute, the Kayishema Trial Chamber stated that “it does not demand a prima facie duty upon a non-military commander to be seized of every activity of all persons under his or her control.”41 The Trial Chamber regarded Article 28 of the Rome Statute as “an instructive one.”42 In light of the objective of Article 6(3), the Chamber found that “the Prosecution must prove thats the accused in this case either knew, or consciously disregarded information which clearly indicated or put him on notice that his subordinates had committed, or were about to commit acts in breach of Article 2 to 4 of this Tribunal’s Statute.”43 V. Conclusion The Kayishema case has demonstrated that for an accused to be held responsible for atrocities that are committed by his subordinates, the International Tribunal must examine the circumstances under which a civilian can be considered a superior for the purpose of Article 6(3), and the degree of authority required in order to establish individual criminal culpability pursuant to the Doctrine of Superior Responsibility. For the Trial Chamber in Kayishema, the crucial element that renders a civilian superior criminally responsible under Article 6(3) is not their civilian status; rather, it is the degree of authority exercised by the accused over his subordinates. Power, duty, capacity of control and failure to act are also crucial elements in assessing the responsibility of civilian leaders under principles of superior responsibility. The power or control of authority may be de jure or de facto. Taking into consideration the given situation in Rwanda in 1994 as well as the argument advanced by the Defence that Kayishema did not have any actual power of control because of the turmoil that prevailed in the country, the Kayishema Chamber looked beyond the de jure powers enjoyed by the accused and focused more on the de facto authority which the accused exercised within Kibuye Prefecture during the time of the genocide. The mens rea in Article 6(3) requires that, for a superior to be held criminally responsible for the conduct of his subordinates, he must have known, or had reason to know, of their unlawful acts. In ascertaining the parameters of the “had reason to know” element, the Trial Chamber in Kayishema relied upon the Rome Statute and made a distinction between military commanders and non-military superiors:

42 Ibid., para. 227. 43 Ibid.

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ultimately ruling that the degree of knowledge should be different for military commanders and for non-military superiors. Consequently, while a military commander has an obligation or duty to actively be seized of activities of his subordinates, the requirement for a civilian superior is that he must have consciously disregarded information which clearly indicated that the subordinates were committing or about to commit the unlawful acts. During the trial of Kayishema, the evidence established that the accused, as Prefect of Kibuye Prefecture, had both de jure and de facto authority over his subordinates who were proved to have committed the crimes that came within the jurisdiction of the ICTR. In light of this evidence, the Trial Chamber concluded that Kayishema “knew or had reason to know” that a large-scale massacre was imminent,44 and he did not take measures to prevent the attack before the attack on the massacre site, nor to punish the perpetrators after the attack.45 As a consequence, the Trial Chamber found that Kayishema “must be held responsible for the actions and atrocities committed” under Article 6(3) of the Statute of the ICTR.46

44 The facts that helped the Judges to be convinced of this are as follows: “First, the Tutsis were the subject of attacks throughout Rwanda by the date of the attack at Mubuga Church, and Kayishema was privy to this information. Second, following Kayishema’s conversation with the Hutu priest, witnessed by a number of Tutsis at the Church, the priest refused the Tutsis access to water and informed them that they were about to die. Finally, the attackers included soldiers, gendarmes, and the members of the Interahamwe, all of whom he exercised either de jure or de facto control over.” His identification at the site of massacre both before and during the attacks also leaves the Trial Chamber in no doubt that Kayishema knew of the crimes that were being committed by his subordinates. See Kayishema Judgement, n. 7 above, para. 509. 45 See Indictment in Prosecutor v. Clement Kayishema & Obed Ruzindana, paras. 30, 37 and 43. 46 Kayishema Judgement, para. 516.

Part IV

Courts and adjudication

24 The international protection of human rights: experiences with the European Court of Human Rights Rudolf Bernhardt The collection of essays in memory of Judge Li Haopei is published under the title “International Law in the Post-Cold War World”. In this context, it might be of some interest to reflect on the role of an institution, which dates back to the time of the so-called Cold War and in which for several decades only western European States were represented, but which gained a new and different importance in the last decade of the 20th century with the participation of nearly all central and eastern European States: the European Court of Human Rights. Judicial settlement of international disputes has a long history, from the Jay Treaty at the end of the 18th century to the Permanent Court of International Justice during the League of Nations and the present International Court of Justice. But this history is essentially a history of inter-State disputes, with sovereign States as parties, and judicial settlement required an agreement or understanding between the States concerned that a dispute should be decided by a court or by arbitrators. Individuals and private law persons did not play any significant role in this system. Only if their home State espoused their claim and exercised diplomatic protection, could individual rights become the subject of judicial settlement on the international level. Exceptions such as some arbitral tribunals after the First World War1 and some arbitral commissions after the Second World War,2 where individuals and private law companies were able to present their claims without State support, remained exceptional and were connected with the special post-world-war situations.3 Since the end of the Cold War period, we have experienced new developments also in the area of judicial settlement of disputes. The International Court of Justice has at present a considerable number of cases on its docket, and the Law of the Sea

1

See N.Wühler, Mixed Arbitral Tribunals, in R.Bernhardt (ed.), 3 Encyclopedia of Public International Law (EPIL) (1997), 433. 2 See K.Arndt, Arbitral Commission on Property, Rights, and Interests in Germany, 1 EPIL (1992), 211; but see also I.Seidl-Hohenveldern, Conciliation Commissions established pursuant to Art. 83 of Peace Treaty with Italy of 1947, ibid., 725. 3 But see also R.Dolzer, Mixed Claims Commissions, 3 EPIL, 436; these Commissions played an important role mainly in the 19th century. 387

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Tribunal has been created and has rendered its first decisions. Both institutions still belong, at least primarily, to the area of inter-State dispute settlement. In respect of criminal responsibility of individuals for international crimes, the International Criminal Tribunal for the former Yugoslavia and the similar Tribunal for Rwanda have inaugurated a new era of international judicial activity. Individuals have become responsible for having committed serious violations of humanitarian rules, and they are accused before international tribunals. These two tribunals were created by the Security Council under Chapter VII of the UN Charter. The envisaged permanent international tribunal for the prosecution of war crimes and crimes against humanity rests upon a different basis; it can only be set into motion after the ratification of the treaty adopted in Rome in the summer of 1998. The European Court of Human Rights and the Inter-American Court of Human Rights are again quite different institutions.4 Their aim is the protection of individuals against their own State. While conventions for the protection of human rights exist on the universal as well as the regional level, human rights courts are at present created only in and for a few regions with a more or less homogeneous community of States. There are many other international bodies for securing the respect of human rights, but they possess limited competences and cannot render binding decisions. The European Court of Human Rights (and its American companion) is an institution which has opened a new chapter in the international protection of human rights. In the forty years of its existence, it has created a substantial body of human rights law, and it is encouraging to see that now nearly all European States have accepted the Court’s jurisdiction. On the following pages, we will briefly describe the Court’s development; thereafter we will consider two areas where national and international rules and actors must combine for an effective protection of human rights. I. Forty years of the European Court of Human Rights I.A. Background and developments 1950–1989 On 10 December 1948, the General Assembly of the United Nations adopted and proclaimed the famous Universal Declaration of Human Rights. At that time, the Cold War had already started, and one consequence was that the central and eastern European communist States abstained in the vote in the General Assembly. Very soon thereafter, in 1949, the Council of Europe came into existence, designed as the Western European regional organisation uniting democratic States accepting the rule of law and the respect of human rights in their internal legal order. Still in 1949, the Council and its main organs, the Committee of Ministers and the so-called

4

It remains to be seen whether the projected African Court of Human Rights becomes a reality.

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Consultative Assembly—one of the first international assemblies with parliamentarians as members5—elaborated the European Convention on Human Rights,6 which was signed on 4 November 1950 and came into force on 3 September 1953, after ten instruments of ratification had been deposited. The European Convention refers in its preamble to the Universal Declaration of 1948, and many of its provisions follow the model of that Declaration. But two elements were entirely new: what was envisaged and drafted was not a declaration without legally binding force, but a binding treaty under international law. Secondly, this treaty created international organs which were empowered to investigate and decide whether a State had violated the human rights protected by the Convention. One of these organs was the European Commission of Human Rights before whichs all complaints alleging violations of human rights had to be presented first— applications of States as well as of individuals. The Commission had to decide whether an application was admissible or not, and it had to adopt a report on the substance of applications if they were found admissible. Thereafter, two alternatives were envisaged for the adoption of a final and binding decision on the alleged human rights violation: the decision was to be taken up either by the Committee of Ministers of the Council of Europe or by a new European Court of Human Rights. The jurisdiction of the Court required an express declaration of acceptance of the compulsory jurisdiction “in all matters concerning the interpretation and application of the… Convention” (Article 46). Failing such a declaration, a State could ad hoc accept the jurisdiction of the Court in a specific case (Article 48). In the early 1950s, it was a courageous step to envisage independent international institutions, especially a human rights court, for the protection of individual rights against sovereign States. But the same States which made this decision were at the same time cautious and introduced several safe-guards in order to limit the jurisdiction and competence of the institutions. Individuals could bring claims to the European Commission of Human Rights only if the State concerned had accepted the rights of individual petition by an express declaration under the (former) Article 25; and another declaration had to be made, as mentioned before, for the acceptance of the jurisdiction of the Human Rights Court. These declarations could be made—and were normally made—for limited periods of time and had to be renewed; without such a renewal, the control machinery could no longer function. States were (and are) also entitled to denounce the whole Convention (Article 65) after certain time limits. While the European Commission of Human Rights began its work soon after the entry into force of the Convention, it took several years before the Court came into existence. Article 56 of the Convention required eight declarations under Article 46, accepting the compulsory jurisdiction of the Court, before the first judges could be elected. This condition was met in 1958, and in January 1959 the first 15 judges 5 See H.Lindemann, Parliamentary Assemblies, International, 3 EPIL, 892, and C.Walter, ibid., 898. 6 The history of the Convention is documented in 8 volumes, published by the Council of Europe between 1975 and 1985: Collected Edition of the “Travaux Préparatoires”. During the Discussion and Drafting of the Convention, the creation of a Human Rights Court was for a long time controversial.

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were elected. During the following years, important cases were decided by the new Court: in the Lawless case,7 emergency measures in Ireland, taken in the context of terrorist activities and dangers, were at stake. In other cases, the respect of the freedoms of expression and association were controversial, etc. But the importance of some of the judgments rendered during the first years of the Court cannot hide the fact that States and the Commission brought only a very few cases to the Court. During the first 20 years, from 1959 through 1978, only 28 cases were brought to the Court, and 31 judgments were adopted and promulgated (in some cases, several judgments dealt with different aspects of the same case). In eight of these 20 years, no case was submitted to the Court, and in six years, no judgment was pronounced. This situation changed, for several reasons which can only be mentioned here, step by step since the late 1970s. More and more member States of the Council of Europe ratified the Convention and accepted the right of individual petition to the Commission and the compulsory jurisdiction of the Court. The Commission was no longer reluctant to bring cases to the Court. And the public at large, including the lawyers in the member countries, became more and more aware of the existence and possibilities of an international control machinery in human rights matters. The result of these factors was that in 1982 for the first time in one year, 10 new cases were brought before the Court, and 11 judgments were pronounced. Until 1989, the figures increased steadily, but not drastically. Also the number of participating States moderately increased: 22 States had, at the end of the year 1989, ratified the Convention, and the great majority of them had also accepted the jurisdiction of the Court. At this time, the end of the East-West conflict was already visible, but the Council of Europe and the parties to the European Convention on Human Rights was still comprised only of States belonging to the Western European family of likeminded democratic States. During the 15 years from 1975 to 1989, 187 judgments were issued by the Court (compared with 18 judgments 1959–1974). The cases and judgments dealt with a great number of different human rights questions. The freedom of expression, the freedom of association, the protection of private and family life, property rights, fair trial principles and many other individual liberties played a role in the evolving jurisprudence of the European Court of Human Rights.8 I.B. Developments 1989–1998 With the end of the East-West confrontation, the change of governmental structures in central and eastern Europe and the dissolution of the Soviet Union, the Council

7 8

See Lawless Case (Merits), Judgment of 1st July 1961, Publications of the ECHR, Series A: Judgments and Decisions. Details can be found in the annually published “Survey of Activities” of the Court and also in the Yearbook of the European Convention on Human Rights, published by the Council of Europe.


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of Europe experienced entirely new developments. Nearly all States in the region applied for membership in the Council. The Council, on its side, required from all candidates the respect of human rights and, in connection therewith, the ratification of the European Convention on Human Rights, at least after a certain period of transition necessary to reform the internal legal order in the States concerned. The result of these procedures, which cannot be described here in detail, was that in the summer of 1998 forty States had become members of the Council of Europe, all of them had ratified the European Convention on Human Rights and had also accepted the right of individual petition to the Commission and the compulsory jurisdiction of the Court. The Russian Federation was the last of these States, when it ratified the Convention in May 1998. At the end of the same year, very few European Statess remained outside the Human Rights Community, and nearly all of them had applied for admission. Belarus, Bosnia-Herzegovina, Yugoslavia (Serbia/Montenegro), and the three Caucasian States Armenia, Azerbaijan and Georgia9 remained, for the time being, outside the Council and the Convention system. All other European States had become parties, along with the non-European parts of their territory (Turkey and Russia). During the same period in which these changes took place, an intensive discussion on the reform of the Convention system was underway and finally resulted in farreaching reform. It is interesting to note that the reform discussion was to a large extent independent of the developments just mentioned; it was not the result of the admission of new States to the Council of Europe, at least not primarily, as other factors were more decisive. The number of cases before the Commission and the Court had again considerably increased, and nearly all of these cases were still coming from the “old” member States. Austria, the United Kingdom, France, Italy, Switzerland and later also Turkey had become the best “clients” of the Human Rights Court. Annually thousands of complaints reached the Commission, and even if only a very small percentage of them finally reached the Court, the workload of the Court became critical. The Commission and Court were still institutions whose members came to Strasbourg only for sessions of one or two weeks per month. The procedures in Strasbourg lasted, from the application to the Commission to the final judgment of the Court, a considerable number of years. To a certain extent, the Commission and the Court did the same work twice. These and other factors led to a reform of the whole system. After an extensive and controversial debate, the Additional Protocol No. 11 to the European Convention was signed in May 1994. It provided for the substitution of the part-time Commission and the part-time Court by a new full-time European Court of Human Rights. This Court would be composed of the same number of judges as there were parties to the Convention, and these judges would work on a full-time basis. In October 1997, all States parties to the Convention had ratified the Protocol, and it came into force on 1st November 1998. Since that date the new

9

Georgia became a member of the Council of Europe and ratified the Convention in 1999.

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Court has assumed the duties and the competence of the former two organs, the Commission and the “old” Court.10 II. National and international protection: complementarity and subsidiarity II.A. The Exhaustion of local remedies and the subsidiarity of the international machinery It is a long-standing rule of customary international law that a State can exercise diplomatic protection for its nationals vis-à-vis another State only after the citizen concerned has applied to the authorities of the latter State, especially the courts, for seeking redress for the alleged violation of his rights.11 The requirement of an exhaustion of local remedies has been developed in the area of inter-state disputes for the protection of individual rights. The rule has been transposed to the protection of the rights of individuals by international human rights bodies12 and it has been incorporated into the European Convention on Human Rights. Article 26 of the Convention provided that “the Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law…” (Article 35 § 1 of the Convention as amended by the 11th Protocol contains the same rule for the new court). It had been a constant and controversial practice of the Strasbourg Court to reconsider the relevant pronouncement of the Commission; that means that the Court investigated again whether local remedies had been exhausted, even if the Commission had come to the conclusion that this condition had been satisfied. The rationale of the rule was recently explained again by the Court in its Akdivar judgment of 16 September 1996: “States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system.”13 One should add that the exhaustion of local remedies together with the existence of an effective judicial system in the member States is vital for a proper functioning of the European control machinery. If several hundred millions of European citizens (and aliens living or present in these countries) have the right to bring their complaints to an international institution, it is absolutely necessary that they should normally find judicial protection before the national courts, and that recourse to international protection remain the exception. The fatal consequences of a non-existing or ineffective 10 In 1998, during the last 10 months of its existence, the old Court adopted and pronounced more than 100 judgments. 11 See K.Doehring, Local Remedies, Exhaustion of, 3 EPIL, 238. 12 See e.g., Article 2 of the Optional Protocol to the International Covenant on Civil and Political Rights; Art. 46 of the American Convention on Human Rights; Art. 56 of the African Charter on Human and Peoples’ Rights. 13 ECHR, Reports of Judgments and Decisions, 1996–IV, 1192, 1210.


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national court system for the international system are obvious. The enlargement of the membership of States in the European human rights community may produce more problems in this area in the future. But let us consider the case law of the European Court of Human Rights. In a considerable number of judgments the Court has investigated the availability of local remedies and their exhaustion, with different results in the concrete circumstances. The most crucial question often was not the state of the law “in the books”, but the effectiveness of court protection. In a number of cases decided in the 1990s, it was fair to assume that the national legal order provided in theory adequate court protection, but this protection seemed to be insufficient in concrete situations. In cases in which it was alleged that military or security forces had destroyed villagess or in which torture might have occurred in police custody or in which persons had disappeared after having been seen in police custody, the effectiveness of local remedies was doubtful. Without going into details, we may again quote the Akdivar judgment14 which circumscribed and developed the Court’s philosophy in the following terms: 65. Under Article 26 normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness… Article 26 also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used… 67. However, there is, as indicated above, no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the “generally recognised rules of international law” there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal (see the Van Oosterwijck v. Belgium judgement of 6 November 1980, Series A no. 40, pp. 18–19, §§ 36–40). The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective… The court went on to make some statements concerning the burden of proof:

14 Ibid., 1210–11.

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68. In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement… One such reason may be constituted by the national authorities remaining totally passive in the face of serious allegations of misconduct or infliction of harm by State agents, for example where they have failed to undertake investigations or offer assistance. In such circumstances it can be said that the burden of proof shifts once again, so that it becomes incumbent on the respondent Government to show what they have done in response to the scale and seriousness of the matters complained of. 69. The Court would emphasise that the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting parties have agreed to set up. The intricate connection between international control and the national court system including the procedure of national courts has many other aspects. Articles 5 and 6 of the European Convention contain detailed rules for fair trials in criminal matters and adequate court protection and proceedings also “in the determination of…civil rights and obligations…”. These rules have played a significant role in the case law of the Strasbourg institutions. The national legal systems and the relevant practices must conform to these rules. A few remarks in the present context may be added. Questions of fact have played a greater role in the proceedings in Strasbourg only in exceptional cases. As a rule, if national courts have had an opportunity to investigate the factual situation, the facts were no longer controversial before the Convention organs. Where doubts existed, the Court accepted in general the findings of the Commission. Also in this respect, it remains to be seen whether the new Court may face new problems and conditions. II.B. The so-called margin of appreciation Another area or problem illustrates again the close connection between the international protection of human rights and the responsibilities of State organs under their national legal order. The much debated and still controversial notion “margin of appreciation” indicates that, according to the case law of the European Court of Human Rights (as well as the Commission), national authorities may have a certain discretion or latitude of appraisal when applying the European Convention.


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A “margin of appreciation” may permit State organs—the legislature as well as the administration and the courts—to interfere with rights guaranteed under the Convention in a manner and to a degree which is not entirely controlled by the international organs. A few examples may illustrate the difficult factual and legal questions involved. The doctrine of margin of appreciation has its main domain (and also its origin) in those areas where the European Convention of Human Rights permits expressly some interferences by public authorities with rights guaranteed in the Convention. Article 15 permits restrictions “in time of war or other public emergency threatening the life of the nation”, but only “to the extent strictly required by the exigencies of the situation.” The second paragraphs of Articles 8, 9, 10 and 11 (protecting inter alia private and family life, freedom of thought, conscience ands religion, freedom of expression and freedom of association) permit interferences with the protected rights under certain conditions. One of these conditions is that interferences are “necessary in a democratic society”. We neglect in the present context the two other requirements, namely that the interferences must be prescribed or permitted by the national law and that they must pursue legitimate aims. The national legislature has to decide whether interferences are necessary at all, and what measures are permitted. The administrative authorities (e.g., the police) have to apply the law and to enforce restrictions, and the national courts also have a role to play in the enforcement of restrictions. The doctrine of the margin of appreciation leaves States and their organs a certain degree of autonomy in deciding whether the situation requires certain measures and restrictions and, if an interference is considered necessary, what measures are adequate and should be taken. Measures taken by public authorities inside the margin of appreciation are accepted by the international supervisory organs; these organs control only if the national authorities have acted beyond their margin, for instance by taking disproportionate measures, by acting unreasonably or by interfering in a situation where any interference is obviously not required. The European Court has always underlined that it is its duty to control whether State authorities have acted inside or outside their margin of appreciation. The doctrine just described started with the first case before the Strasbourg Court, even if the notion of margin of appreciation is not mentioned in the relevant judgment. In the Lawless case,15 the Republic of Ireland had taken some measures to combat terrorism, and the government invoked Article 15 in order to justify the measures. The Court found, inter alia, that the existence of a public emergency “was reasonably deduced by the Irish Government from a combination of several factors…”. In other decisions the European Court has repeatedly stated that national authorities are in closer contact with the actual situation and are often better equipped to deal with it than an international organ16 (which, incidentally, can decide only 15 Supra n. 7. 16 See, e.g., the Stjerna Judgment of 25 November 1994, Publications Series A No. 299-B, 62: “…the Court considers that the national authorities are in principle better placed to assess the level of inconvenience relating to the use of one name rather than another within their national society…”.

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some years later and without a close contact with the society in which the interference has occurred). In substance, the same doctrine has more often been applied in cases coming under the second paragraph of Articles 8 through 11. It has sometimes been contended that no clear guidelines or principles clarify the substance and the borderline of the margin of appreciation and that the case law is not always coherent. This criticism may be to a certain extent justified, but each decision has to take account of the concrete situation and the measures actually taken by State authorities. Interferences with the freedom of expression may need closer scrutiny by the international court when political debate in a democratic society is restricted.17 A larger margin of appreciation can be accepted in the restriction of commercial activities, for instance in the area of competition.18 It can also be relevant how far national courts have carefully investigated an interference and on what basis they came to the conclusion that the situation required the restrictions concerned. Therefore, the doctrine of margin of appreciation provides certain guidelines, but cannot dispense with the control in each case. The result may be that in one case the measures taken on the national level are inside the margin of appreciation and that in other cases the limits of the margin have not been respected. It has been noted that the margin of appreciation doctrine was developed in the area of interferences by State authorities with certain rights guaranteed by the European Convention. It should be seen that the doctrine has become relevant in recent years also in a different context. The European Court of Human Rights has found, in more and more cases, that the Convention not only forbids or restricts interferences with human rights, but that it also requires positive measures in certain situations, measures to be taken by the State for the protection of human rights against dangers arising in the society, for instance by third (private) persons. Many and different examples can be given for such positive obligations, obligations to protect the individual. Public authorities may be obliged, under Article 8 of the Convention (protection of private life), to inform the citizens of dangers stemming from environmental pollution,19 and to protect them against these dangers. State organs may have the duty to protect citizens against private acts of violence. If persons have come to death through violence or have suffered grave bodily harm, State authorities may have the duty to investigate the events and to seek and to punish those responsible for the violence. This has been deduced by the European Court in recent years from Articles 2 (right to life)20 and 3 (prohibition of torture and inhuman treatment).21 The margin of appreciation doctrine can play a role also in this area of positive obligations. States may have some discretion when deciding whether protective measures are necessary and adequate, and they will often have a

17 18 19 20 21

See the Lingens Judgment of 8 July 1986, Publications Series A No. 103. The Hertel Judgment of 25 August 1998, Reports 1998, 2298, is a controversial example. See the Guerra Judgment of 19 February 1998, Reports 1998, 2100. See the Yasa Judgment of 2 September 1998, Reports 1998, 2411. Assenov Judgment of 28 October 1998, Reports 1998, 3264.


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choice between different measures of protection. Again, the international court decides finally whether State authorities have acted inside or outside their margin of appreciation. Some critics have argued that the margin of appreciation doctrine should be abandoned since in the area of human rights the standards of protection must be the same. This criticism is, in the opinion of this author, unfounded. A uniform standard is absolutely necessary in respect of the core of human rights: States should never be permitted to torture or murder persons, they are never permitted to interfere with fundamental requirements of private and family life, etc. But there is a zone around many human and civil rights where some regulation by States is acceptable or even necessary, and in this zone—and only in this zone—the margin of appreciation has itss proper place. While international human rights guarantees do not and cannot eliminate all differences between different States and societies, they can and should protect the hard core of human rights and fundamental freedoms. III. Concluding remarks The great number of human rights treaties, on the universal as well as the regional level, the number of other human rights documents like those adopted by the Organization for Security and Cooperation in Europe, and State practice show that the respect or violation of the rights of the individual have become matters of international concern. These matters no longer belong to the domestic domain of sovereign States. International law has changed accordingly, and the statement of the Permanent Court of International Justice of 192322 remains valid: “The question whether a certain matter is or is not solely within the jurisdiction of a state is an essentially relative question; it depends upon the development of international relations.” If human rights matters are of international concern, the question becomes crucial as to how far international institutions (and other States) can intervene in order to protect individuals against State interference. This question has not yet found a general and universal answer. Monitoring systems, the obligation to submit State reports which are scrutinised by an international organ without any legally binding result, and individual complaints with similar consequences have been introduced by some conventions, but not by others. Human rights courts with the competence to make binding decisions are still not the rule, but the exception. The experience of and with the European Court of Human Rights demonstrates that, at least on the regional level, individual rights can be protected by an international court. States were, during a long period, reluctant to accept the jurisdiction of the European Court, but over the decades and in spite of decisions considerably restricting the sovereignty of States, at first the western European States and since 1990 nearly all other European States have accepted the international control and the compulsory jurisdiction of the Court. 22 Publications Series B No. 4, 20.

25 The International Court of Justice and human rights in the 1990s—linking peace and justice through the right to life Ross Garland If the Court intervenes directly in the fate of an individual, this would mean some departure from the function of the principal judicial organ of the United Nations, which is essentially a tribunal set up to settle inter-state disputes concerning the rights and duties of states. I fervently hope that this case will not set a precedent in the history of the Court. While I consider that the International Court of Justice should be utilized more frequently in the world, I cannot condone the use of the Court for such matters as the above under the pretext of the protection of human rights. Judge Oda1

I. Introduction This comment by Judge Oda illustrates a paradox in the functioning of the International Court of Justice (ICJ). The ICJ was not established as a “human rights court”. It was established as an international court for the peaceful settlement of interstate disputes. However, the Court has through the years made important decisions bearing on matters pertaining to human rights. This is especially true of recent cases, involving the use of force or alleged genocide, where the Court has made important contributions to human rights protection. Although it is true that the Court was not intended to function as a “human rights court”, human rights is an important element of the ambit of its influence. The ICJ is inherently involved in human rights protection: as an organ of the United Nations (UN), its mandate encompasses pursuing the aim of the UN in promoting human rights; as a judicial organ functioning under its Statute, it must interpret and apply human rights treaties when called upon to do so. It is most frequently in its search for peace that the ICJ is confronted with the concomitant need for justice. The violation of human rights is often in the background of an interstate conflict, or may even be the very subject matter, in whole or in part,

1

LaGrand (Germany v. United States of America), ICJ Reports 1999 (Decl. Oda), at http:// www.icj-cij.org/ icjwww/idocket/igus/igusframe.htm . 398

ICF and human rights

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of such a conflict. In the past decade a number of cases have come before the Court in which this dual focus has been evident. In these cases, potential or actual violations of the right to life have been referred to, by states and the Court, as material to these disputes before the Court. This article examines what these cases tell us about the present and future role of the ICJ in the area of human rights protection, by using the right to life as a case study. II. The aims of the United Nations Two of the purposes of the UN are the maintenance of international peace and security,2 and the promotion and encouragement of respect for human rights.3 Thes development of international human rights law following the Second World War was due to the perceived link between human rights violations or justice, and threats to international peace.4 This body of law has thus developed at the same time as have the UN structures such as the ICJ. The ICJ is the principal judicial organ of the United Nations.5 As a UN organ, it is committed to the twin aims of peace and justice. However, it is the former that the drafters of the Charter intended the Court to focus on. The function of the ICJ is the peaceful settlement of disputes.6 Its “function is to decide in accordance with international law such disputes as are submitted to it.”7 However, the ICJ is a visible, if rarely used, forum for pursuing human rights concerns.8 Human rights protection is a field in which the Court can and should participate. The Security Council has begun to link threats to peace with grave human rights violations, for example, by creating war crimes tribunals.9 The initial aim in these cases was to try persons for humanitarian law and human rights violations. The long-term aim is the restoration of peace and stability.10 The Security Council had previously considered its mandate to extend to the protection of human rights, addressing the questions of apartheid and the treatment of Palestinians in Israeli occupied territories.11

2 3 4 5 6 7 8 9 10 11

UN Charter, art. (1). Ibid., art. 1 (3). R.Mullerson, Fifty Years of the United Nations: Peace and Human Rights in the UN Agenda, in R.Blackburn & J.Basuttil (eds.), Human Rights for the 21st Century (1997), 144. UN Charter, arts. 7, 92; S.Rosenne, 1 The Law and Practice of the International Court 1920–1996 (1997), 104. J.Collier, The International Court of Justice and the peaceful settlement of disputes, in V.Lowe & M.Fitzmaurice (eds.), Fifty Years of the International Court of Justice (1998), 364. ICJ Statute, art. 38(1). F.Newman & D.Weissbrodt, International Human Rights (1990), 682. Security Council Resolution 955 (8 November 1994) creating the International Criminal Tribunal for Rwanda, and resolution 827 (25 May 1993) creating the International Criminal Tribunal for Yugoslavia. Mullerson, n. 4 above, 155. S.Davidson, Human Rights (1993), 74–75.

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According to Mullerson, the link between international relations and human rights is the issue of stability.12 Motives for state concern with human rights include, therefore, the perceived frequent link between undemocratic or weak regimes and political instability. The search for stability and peace through the vehicle of the UN has led to a concomitant concern with human rights protection.13 The proliferation of human rights treaties in the aftermath of the Second World War resulted from this concern that peace cannot last without justice.14 III. The role of the ICJ The human rights treaties could have potentially created a fundamental role for the ICJ in respect of human rights protection. Notwithstanding the general nature of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, a number of these treaties deal with specific subject matters.15 Under Article 38 of the ICJ Statute, the Court has jurisdiction over the interpretation of treaties, and generally over disputes concerning treaties. This would include human rights treaties. Therefore there is the potential for the Court to be involved in human rights cases directly. However, whether the Court has jurisdiction over cases arising under these treaties entirely depends on whether states have consented to the Court’s jurisdiction either within these treaties or separately. The frequent lack of specific compromis clauses in human rights treaties further reduces this potential.16 The Court is most often not given express and direct jurisdiction to deal with disputes concerning a specific treaty. A notable exception is the Genocide Convention. Disputes under that convention regarding the “interpretation, application or fulfilment” of the convention, are to be submitted to the ICJ.17 The Court is granted jurisdiction under this treaty to deal with alleged violations of the convention. The United Nations Human Rights Commission is the intended body for dealing with gross human rights violations.18 But this body has had only limited success. The ICJ has in a number of cases dealt with such violations, where they bear on inter-state disputes before the Court. This more formal and public environment

12 13 14 15

Mullerson, n. 4 above, 148. UN Charter, art. 55. Mullerson, n. 4 above, 144. R.Higgins, The International Court of Justice and Human Rights, in K.Wellens (ed.), International Law: Theory and Practice (1998), 693. 16 Ibid. 17 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948), 78 UNTS 277, art. IX; see also Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (1984), 23 ILM 1027. 18 The Human Rights Committee also has a role to play, under the International Covenant on Civil and Political Rights.


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may be desirable in terms of discouraging states from future violations. As other specific bodies such as the International Criminal Court (ICC) develop though, this aspect of the Court’s work may decrease. Granting individuals access to the Court may increase its effectiveness in promoting human rights. But this begs the question of whether access for individuals is indeed desirable. IV. Individuals before the ICJ The human rights movement is concerned with human rights protection not interstate relations.19 It is concerned primarily with persons, and only with states to the extent that state action affects the rights of persons. Rights in human rights instruments ares generally granted to and exercised by individuals. The ICJ, however, is concerned with states, and interstate disputes. Individuals have no standing before the Court. The Court therefore only deals with the rights of persons to the extent that they are implicated by the dispute before the Court. Janis proposes that individuals be given access to the Court.20 Using the European Court of Justice and the European Court of Human Rights as models,21 he argues that the Statute of the Court should be altered to allow individuals to bring cases against states. This would increase the insubstantial caseload of the Court. Individuals would be able to petition the Court on the basis of a violation of international law by a state which is party to the statute of the Court, or by an international organisation. This would explicitly alter the Court’s mandate to peacefully settle interstate disputes. Presently, individuals and their human rights are protected only indirectly, where their interests relate to the subject matter in dispute. This will only occur whilst the Court is carrying out its main function of resolving interstate disputes, or where the interpretation or violation of a human rights treaty is at issue. The question arises whether this bifurcation of the Court’s role is desirable, or even necessary. There are other UN bodies designated for the direct function of protecting human rights, such as the Human Rights Commission or the Human Rights Commissioner. There are also specific bodies established to deal with violations of specific rights or treaties. Notwithstanding the existence of these other institutions, the ICJ can play a significant role in human rights protection. To claim that this requires the granting of access to the Court to individuals misconstrues the essential interstate dispute settlement orientation of the Court. It is preferable for human rights issues to filter through to the Court where they are implicated in interstate dispute settlement cases.

19 Mullerson, n. 4 above, 145. 20 M.Janis, Individuals and the International Court, in A.Muller, et al. (eds.), The International Court of Justice—Its future role after fifty years (1997), 205. 21 Protocol 11 to the European Convention on Human Rights has expressly provided for direct access by individuals to the European Court of Human Rights.

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V. Principles from previous case law Without wishing to engage in a comprehensive review of references by the ICJ to human rights, I wish to set out a number of basic principles which may be extracted from previous ICJ contentious cases and advisory opinions:22 (1) “Basic rights of the human person” create obligations for states towards the entire international community.23 (2) Such obligations may be found in the UN Charter and the UDHR.24 (3) Certain specific obligations under international law, which pertain to human rights, have expressly been accepted by the Court as binding under customary international law.25 This article aims to address how the Court has in the last decade of the twentieth century dealt with human rights issues. During this period, the Court has had cause to invoke human rights standards in a number of cases, particularly those involving right to life issues. These cases have generally involved armed conflict situations. It is apposite to consider in what ways and to what degree the Court has dealt with human rights in these situations. Those cases concerning the laws of war or humanitarian law will be treated in this article as human rights cases. Traditionally the two areas have been separated but the “two domains have begun to converge”.26 It is in the area where the two areas of law converge or overlap that the ICJ has been involved. One can classify those cases concerning the right to life as either human rights law or humanitarian law cases. They most often involve allegations of human rights infringement in times of armed conflict. An important consideration is that these cases may be presented to other tribunals, reducing this human rights element of the Court’s work. With the advent of the Rwandan and Yugoslavian War Crimes Tribunals, as well as the development of the International Criminal Court, there may be an overlap in the future in the jurisdiction of these various international tribunals. States may prefer to bring their applications to the tribunal specifically designed to hear that type of case. 22 N.Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 ICLQ (1989), 321. 23 Case concerning the Barcelona Traction and Power Company Limited, ICJ Reports 1970, 3, para. 34 (these obligations erga omnes were said to derive from the “outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person”). 24 United States Diplomatic and Consular Staff in Tehran (United States v. Iran), ICJ Reports 1980, 3. The Court held that holding persons hostage violated their right to liberty, a right protected in the Charter and Universal Declaration of Human Rights. Ibid., para. 91. 25 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1951, 15. Here the Court recognised that the principles underlying the Genocide Convention were binding on states regardless of any obligation arising from a treaty. Ibid., 23. 26 Newman & Weissbrodt, n. 8 above, 684. International humanitarian law can be viewed as a specific area of the law of human rights. However, a certain school of thought argues that the two areas of law should be treated as separate.


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VI. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) 27 Bosnia-Herzegovina brought an application against Yugoslavia for a violation of the Genocide Convention. Bosnia sought a declaration that Yugoslavia should cease committing genocide, and reparations for the killing of Bosnian citizens. Bosnia succeeded in obtaining an order for provisional measures on 8 April 1993, followed by a reaffirmation of that order on 13 September 1993. In this second order, the Court stated that no reparation could “efface the results of conduct” violating the Genocide Convention,28 thereby emphasising the urgency of these cases concerning violations of the right to life. s Although the merits of the case have not yet been dealt with, the potential for the Court to intervene in situations of human rights abuses, by granting provisional measures, is evident in this case. The Court ordered Yugoslavia to take all measures in its power to prevent the commission of the crime of genocide, and to ensure that no military or paramilitary units, or other groups or persons, subject to Yugoslavia’s control, committed, incited, or conspired in acts of genocide. The ICJ quoted a UN General Assembly resolution, stating that genocide “shocks the conscience of mankind, results in great losses to humanity…and is contrary to moral law and to the spirit and aims of the United Nations”.29 In its second order on 13 September, the Court stated that despite its first order and a number of Security Council Resolutions, there had been continued violations of the right to life, in circumstances which “shock the conscience of mankind and flagrantly conflict with moral law and the spirit and aims of the United Nations”.30 The Court therefore underlined the fundamental nature of the right to life, as a norm of international law. The ICJ determined that it had jurisdiction to hear the case, when it quashed Yugoslavia’s preliminary objections on 11 July 1996. In this Judgment, the ICJ reaffirmed the position that the obligations enshrined by the Genocide Convention are obligations erga omnes.31 On this basis there can be no territorial limitation on these obligations. The norms of the convention are applicable to a state or its agents, in any country in which it may have operations. Notwithstanding the importance of the recognition of the obligation not to commit genocide as an erga omnes obligation, the problem remains of proving that a state has consented to the jurisdiction of the

27 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures Order, ICJ Reports 1993, 3. 28 Ibid., para. 58. 29 Ibid., para. 49, quoting Resolution 96 (I) of 11 Dec. 1946 on “the Crime of Genocide”. 30 Ibid, para. 52. 31 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, ICJ Reports 1996, 596, para. 31.

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ICJ, as the forum for governing disputes concerning the application of the obligations under the Genocide Convention.32 Bosnia’s application alleged that by killing Bosnian citizens Yugoslavia had violated fundamental principles of international humanitarian law; provisions in the Universal Declaration of Human Rights, including the right to life; articles 55 and 56 of the UN Charter; and general and customary international law. The Court restricted itself to violations of rights under the Genocide Convention, as this was the basis for the application itself. Provisional measures can only be aimed at protecting the rights of the parties in the main case. VII. Land and maritime boundary between Cameroon and Nigeria (Cameroon v. Nigeria) 33 This case is a further example of the Court granting provisional measures in cases concerning the use of force and related killings of persons. This case primarily concerned disputes over territory. However, the Court recognised the connection between the violation of the right to sovereignty of the relevant state, and the violation of the rights of its nationals through the use of force by the offending state. Although the rights in the main case were rights pertaining to sovereignty, provisional measures protecting the rights of individuals could still be granted in this case because these sovereign rights also concerned persons.34 The killing of citizens had caused irreparable damage to the rights of the parties.35 Provisional measures were therefore necessary in order to prevent further damage to their respective rights, which appeared likely in the absence of intervention. Alhough the ICJ was carrying out the UN aim of maintaining peace and security, by granting provisional measures in a situation of armed conflict, it was effectively protecting the rights to life of those citizens on either side of the conflict, who were potentially in danger of being killed. This implicit recognition of a need for the protection of fundamental rights as an integral element of the Court’s attempts to resolve a dispute is significant. Where the violation of rights is tied to the use of force (especially violations of the right to life) or is concomitant to the basis of the dispute, the Court may order provisional measures requiring the termination of the violation.

32 A further case dealing with a claim under the Genocide Convention is Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Yugoslavia), http://www. icj-cij.org/icjwww/ idocket/icry/icryframe.htm. This case involves a claim for compensation for violations of the Genocide Convention by Yugoslavia in 1993. Croatia claims that the alleged killing of its citizens constituted a violation of international law, and of Croatian persons’ fundamental rights. 33 Cameroon v. Nigeria, Provisional Measures Order, ICJ Reports 1996, 13. 34 Ibid., para. 39. Other recent cases concerning the use of force and potentially involving human rights violations are the cases brought by Yugoslavia against a number of NATO states, and the cases brought by Congo against its neighbouring states. See http://www.icj-cij.org/icjwww/ idecisions.htm. 35 Cameroon v. Nigeria, ibid., para. 42.


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VIII. LaGrand36/Breard37 These cases are further examples of the Court protecting human rights through the granting of provisional measures in contentious cases.38 In both cases, the United States executed foreign nationals, notwithstanding the attempted intervention by states in which those nationals were citizens. The interventions took the form of applications to the ICJ, coupled with requests for provisional measures, alleging that the Vienna Convention on Consular and Diplomatic Relations had been violated. The United States neglected to inform the foreign nationals of their rights to consult their embassies for advice, after they were arrested by United States authorities. The foreigners were subsequently convicted and sentenced to death. The Court ordereds provisional measures, calling upon the government of the United States to do all in its power to prevent the executions taking place. This was a matter of urgency meeting the article 41 requirements, including the potential of irreparable prejudice to the rights in dispute. The ICJ in both of these cases failed to prevent the execution of the foreign nationals. Angel Fransisco Breard, a Paraguayan national, was executed on 14 April 1998, despite the provisional measures that were ordered on 9 April. Walter LaGrand was executed on 3 March 1999, despite provisional measures ordered earlier that day by the ICJ. Nevertheless, the potential clearly exists for provisional measures to be resorted to in order to protect human rights, especially the right to life. The Court was very clear that it would not act as a final court of criminal appeal. It was also not qualified to, nor would it comment on, the legality of the death penalty,39 especially in light of article 6 (right to life) of the International Covenant on Civil and Political Rights (ICCPR). The Court, however, referred to Paraguay’s and Germany’s arguments regarding the level of importance of human life recognised in international law and the role of article 6 of the ICCPR.40 The question before the Court, however, was one of conformity of state action with international law, and on this basis the Court ordered the United States in both cases to take the measures necessary to ensure that there should be no executions pending resolution of the dispute. It was Judge Oda’s comments on the LaGrand case that were quoted at the beginning of this article. According to Judge Oda in his declaration in LaGrand, the ICJ should not be manipulated to protect individuals’ human rights, under the guise of inter-state disputes. However, he supported the orders in both cases for “humanitarian reasons”.41 Oda’s comments illustrate the tension between adhering

36 LaGrand (Gemany v. United States), ICJ Reports 1999, http://www.icj-cij.org/icjwww/ idocket/igus/ igusframe.htm. 37 Vienna Convention on Consular Relations (Paraguay v. United States) (“Breard”), ICJ Reports 1998, http:// www.icj-cij.org/icjwww/idocket/ipaus/ipausframe.htm. 38 Cf. United States v. Lombera Camorlinga, 206 F.3d 882 (U.S. 9th Cir. 2000). 39 See Breard, n. 37 above, para. 38. 40 Ibid., para. 8. 41 LaGrand, n. 36 above, para. 7.

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to the strict legal function of the Court and a concern for justice. Oda’s “I know it when I see it” basis for supporting the order can be seen as recognition of the role notions of justice play in cases before the Court which have a human rights element. A further aspect of the case is that the Court indicated provisional measures proprio motu in the LaGrand case. Notwithstanding Judge Schwebel’s concerns expressed in his separate opinion, this case does serve as a precedent for the Court making an order without an oral hearing in situations of urgency where there is danger to human life. This was not strictly proprio motu, since there was actually a request for provisional measures by one of the state parties to the case. However, the case does demonstrate the Court’s proactive attitude where human life is at stake. IX. Legality of the use by a state of nuclear weapons in an armed conflict42 The ICJ has the competence to give advisory opinions on any legal question, at the request of any body authorised by the UN Charter to make such a request.43 The giving of advisory opinions can be an alternative method for developing principles of international law, to make up for the lack of contentious cases which come before the Court.44 This could be particularly applicable to the area of human rights law. However, only a few of the opinions given by the Court have had a bearing on human rights. An advisory opinion with important consequences for the protection of the right to life was that pertaining to the legality of the possession or use of nuclear weapons. Like genocide, weapons of mass destruction are a threat to the “right to life writ large”.45 There is not merely risk to an individual but risk of wide scale and intentional loss of life. The Court recognised that nuclear weapons are unique, in that they can destroy a large number of people in one strike, including specific groups.46 The Court delivered an ambiguous opinion, holding that nuclear weapons were in general illegal under international law, but that the Court could not say that in all circumstances and especially in situations of self-defence, when the very survival of a nation may be at stake, that these weapons were illegal. But the Court held that the right to life under article 6 of the ICCPR cannot be suspended in times of war.47 There is consequently a right not to be arbitrarily deprived of one’s life, even in hostile contexts.48

42 43 44 45 46 47 48

Nuclear Weapons, Adv. Op., ICJ Reports 1996, 66. ICJ Statute, art. 65 (1). Newman & Weissbrodt, n. 8 above, 731. B.Ramcharand, The Right to Life in International Law (1985), 114. See n. 42 above, paras. 26, 35. Ibid., para. 25. This assertion was based on article 4 of the ICCPR. Ibid., para. 25. Arbitrariness is judged according to the laws of armed conflict, not deduced from the article 6 right to life clause of the ICCPR itself.


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Judge Bedjaoui referred in his declaration to the potential damage to the environment in the long term which would impede the exercise of the right to life.49 He thus linked the right to a healthy environment to the right to life. Judge Weeramantry in his dissent also commented on the tendency of nuclear weapons to harm the environment in a manner which threatens not only human life but the “entire ecosystem of the planet”.50 A contrast was drawn between the right to survival of a state, and the right to survival of an individual. Judge Shahabuddeen in his dissent articulated these rights in the following manner. He stated that the Court should have given a decisive answer to the question of whether it was possible to reconcile the “imperative need of a state to defend itself with the no less imperative need to ensure that in doing so,s it does not imperil the survival of the human species”.51 Thus, at the heart of rules governing the aggressive and defensive tactics of states is this concern for the sanctity of human life, formulated in law as the right to life, a fundamental human right. Judge Weeramantry in his dissent stated that the use of a weapon of mass destruction contradicts the fundamental principle of the dignity and worth of a human person. He regarded the right to life as a “nonderogable right and an integral part of the irreducible core of human rights”.52 The Court examined international human rights law in answering the question posed to it by the General Assembly. The Court went a fair distance to strengthen the right to life of people in general in the nuclear age. The opinion demonstrates the significant contribution the ICJ can make to human rights protection, by being presented with opinions on the conformity of potentially hazardous life-threatening activities with international law. X. Conclusion In spite of Oda’s cautious comments regarding the role of the ICJ under the UN Charter, cited at the beginning of this article, it is clear that in the past ten years the Court has been used by states, whether indirectly or not, as a potential source for human rights protection. States have used the Court’s advisory and contentious jurisdiction to achieve this. As regards the latter, the majority of these contentious cases have not reached a conclusion on the merits. However, the ICJ has ordered provisional measures in a number of these cases which have prevented further human rights abuses in a particular dispute, although these measures have on occasion had limited effect. The Nuclear Weapons advisory opinion is a significant example of the potential for using the Court’s advisory jurisdiction to curtail the abuse of human rights.

49 50 51 52

Ibid., 272 (Decl. Bedjaoui), para. 20. Ibid., 454 (Diss. op. Weeramantry). Ibid., 375 (Diss. op. Shahabuddeen). Ibid., 507 (Diss. op. Weeramantry).

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Most of the jurisprudence discussed in this article has involved the right to life. This is clearly due to its frequent violation or potential violation in interstate conflict. It has been the subject matter of disputes and not merely indirectly implicated, as in the LaGrand and Breard cases. This is probably due to its fundamental nature.53 This article supports the Court’s role in protecting human rights, and specifically the right to life. This does not mean the Court should become a “human rights court”, aimed at protecting the rights of individuals. This would clearly be beyond the Court’s mandate. Nevertheless, the Court should fulfil its potential to carry out one of the fundamental aims of the UN, which is the promotion of human rights. It is clearly possible, and indeed necessary, to achieve this, whilst carrying out its primary function of settling international disputes.

53 Judge Shahabuddeen stated that “the preservation of the human species and of civilization constitutes the ultimate purpose of a legal system. In my opinion, that purpose also belongs to international law, as this is understood today”. Ibid., 381 (Diss. op. Shahabuddeen).

26 The supervision of the execution of judgments of the European Court of Human Rights Ronald St. J.Macdonald

I. Introduction 1. From 1 November 1998, the European Court of Human Rights (“the Court”) became the permanent court with the largest jurisdiction in the World, extending to over 800 million people in 40 nations. The Court’s principal role is to pronounce on applications, brought both by individuals and States, under the European Convention on Human Rights (“the Convention”). The Court’s judgments are final1 and legally binding on respondent States.2 They are “essentially declaratory” in nature: thus, the Court can announce that the facts of the application disclose a violation of one or more Articles of the Convention and award monetary compensation, but it cannot order a State to change its law or practice so as to prevent similar violations from recurring in the future, nor do its judgments have direct effect in the domestic legal systems of the Contracting States. To date, the Court has been unwilling to rule on matters relating to the execution of its judgments.3 2. It is, however, a truism that, without compliance or enforcement, the best of judgments are useless to the victims of human rights violations. As Ms Leni Fischer, the President of the Council of Europe’s Parliamentary Assembly, said at the Court’s inauguration ceremony on 3 November 1998: “What the new European Court of Human Rights needs most is unequivocal respect for and follow-up to its decisions in the Council of Europe member countries. This alone will provide the Court with the authority it needs in order to protect the fundamental rights of our people.”4 The Committee of Ministers (“the Committee”) is the organ of the Council of

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Article 44 formerly Article 52) of the Convention (ETS No. 5, http://www.coe.fr/ eng/legaltxt/5e.htm). The Reports of Judgments and Decisions of the Court is referred to herein as “Reports”. Article 46 § 1 of the Convention as amended by Protocol No. 11 (formerly Article 53) provides: “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties”. See the Olsson v. Sweden (No. 2) judgment of 27 November 1992, Series A No. 250, 37, § 94, and the Akdivar & Others v. Turkey judgment of 1 April 1998 (Article 50), Reports 1998–11, 723, § 44, discussed in greater depth below. Council of Europe Press Release No. 729a98. 409

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Europe charged with the task of supervising the execution of these judgments.5 In this article I will outline how the Committee operates in its supervisory role, attempt to assess the success of the system, and discuss various avenues of reform which could reinforce it. II. Composition and procedure of the Committee 3. The Committee is, together with the Parliamentary Assembly, one of the organs of the Council of Europe.6 According to Article 14 of the Statute of the Council of Europe, each of the 41 member States7 is entitled to one representative on the Committee, and each representative is entitled to one vote. In principle these representatives are the Ministers of Foreign Affairs of each member State, but the Ministers themselves usually meet only twice a year. At the six to eight meetings a year which the Committee, prior to the coming into force of Protocol No. 11, devoted to its tasks under the Convention, the Ministers acted through their Deputies, namely their Permanent Representatives (ambassadors) in Strasbourg. It is likely that this arrangement will continue. 4. Until 1 November 1998, when Protocol No. 11 to the Convention came into force, the Committee performed a three-fold function in connection with the Convention: it elected the members of the European Commission of Human Rights,8 decided whether there had been a violation of the Convention in cases not referred to the European Court of Human Rights (“the Court”),9 and thirdly, supervised the execution of the Court’s judgments.10 The first two functions were abolished by Protocol No. 11, which gives the new, permanent Court the sole judicial role within the Strasbourg system; only the third, supervisory function was retained. 5. The Committee applies four Rules of Procedure in the exercise of its supervisory function.11 Rule 1 states that a judgment of the Court should be included on the Committee’s agenda without delay (in practice, within six weeks of the Court’s judgment). According to Rule 2(a), respondent States are under an obligation to

5 Article 46 § 2 of the Convention provides: “The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” 6 See C.Ravaud, The Committee of Ministers, in R. St. J.Macdonald, et al. (eds.), The European System for the Protection of Human Rights (1993), 645. 7 Georgia joined the Council on 3 May 1999, bringing the total of member States to 41. 8 Article 21 of the Convention before it was amended by Protocol No. 11. 9 Article 32 of the Convention before it was amended. 10 Article 54 of the Convention before it was amended; now Article 46. 11 Rules adopted by the Committee of Ministers for the application of Article 54 of the European Convention on Human Rights (Text approved by the Committee of Ministers at the 254th Meeting of the Ministers’ Deputies in February 1976), in “Rules adopted by the Committee of Ministers for the application of Articles 32 and 54 of the European Convention on Human Rights”, published by the Council of Europe, Strasbourg 1992; see also the Committee of Ministers’ internet site: http:// www.coe.fr/cm/.

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inform the Committee about the measures taken in consequence of a judgment, whether in respect of the payment of any just satisfaction awarded by the Court under Article 41 of the Convention (formerly Article 50) or with regard to any general measures taken by the State, for example, changes of practice or legislation to prevent the same violation from recurring. If the respondent State informs the Committee that it is not yet in a position to provide information about measures taken in execution of the judgment, which, because of the shortness of the six-week delay, will frequently occur at the first meeting at which the judgment is placed on the agenda, the case will automatically return to the agenda of a Committee meeting within the following six months (Rule 2(b)). s 6. An important footnote to Rule 2(a) states: At the 215th meeting of the Ministers’ Deputies (November 1972), it was agreed that the Committee of Ministers is entitled to consider a communication from an individual who claims that he has not received damages in accordance with a decision of the Court under Article 50 of the Convention affording him just satisfaction as an injured party, as well as any further information furnished to it concerning the execution of such a judgment of the Court, and that, consequently, any such communication should be distributed to the Committee of Ministers. This is the only formal acknowledgement of the standing of the individual victim of a violation before the Committee, a point to which I revert in greater depth below. 7. Rule 3 provides that the Committee shall not regard its functions as having been exercised until it is satisfied that the State has paid the just satisfaction awarded by the Court. Finally, Rule 4 requires the Committee to close a case by the adoption of a resolution. These resolutions are regularly published in collections by the Council of Europe and are also available on the internet.12 III. The execution of judgments III.A. Just satisfaction 8. As mentioned above, the Court does not in its judgments prescribe measures of reform to the respondent States. It can, however, award “just satisfaction” under Article 41 of the Convention (formerly Article 50), which provides: If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. 12 Addresses: www.dhdirhr.coe.fr/hudoc or www.coe.fr/cm.

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9. The Court has consistently interpreted the words “just satisfaction” in Article 41/ 50 as meaning monetary compensation only. If, having found a violation, it decides to award just satisfaction, it will require the respondent State to pay the applicant within three months of the delivery of the judgment. After the Committee’s first examination at its meeting immediately following the delivery of the judgment, a case involving an award of just satisfaction will usually come up for renewed examination after the expiry of the three-month time-limit. If the respondent State is unable to supply proof of payment, the case will return to the agenda at every subsequent meeting until the Committee is satisfied that the money has been paid in full. Since January 1996, following discussions between the Court and the Committee, the Court has included in its awards of just satisfaction an order to States to pay simple interest, calculated on a daily basis, from the expiry of the three months until payment. The purpose of the award of interest is obviously to encourage States to pay up quickly, and to safeguard the value of the award. However, the Court’s practice is to apply the legal rate of interest of the respondent State, which, in some countries, is inadequate to guard against high levels of inflation. In some cases, in order to guard against inflation, the Court has expressed the monetary award in US dollars, pounds sterling or French francs, to be converted into the less stable national currency at the date of payment.13 10. The most difficult case of late payment that the Committee of Ministers has so far had to deal with, and which was, indeed, largely responsible for the introduction of default interest, was that of Stran Greek Refineries and Stratis Andreadis v. Greece. The background to the case was that the applicant company had entered into a contract with the Greek State (which at the time was governed by the military junta) to build an oil refinery, and had incurred considerable expenditure procuring goods and services for the construction of the refinery. When the democratic government regained power, they decided that it was not in the national interest for the refinery to be built and they terminated the contract. The company commenced proceedings against the State for compensation for the expenditure it had incurred under the terms of the contract, and a substantial arbitration award was made against the Government, which appealed to the Court of Cassation. However, the State then asked for the hearing to be postponed on the ground that a draft law concerning the point in issue was just about to go through Parliament. The new legislation in fact made it inevitable that the Court of Cassation would find against the applicant. The Court of Human Rights unanimously found a violation of Article 6 § 1, and awarded pecuniary damages of almost 30 million US dollars, together with simple interest at 6% from 27 February 1984 (the date of the arbitration award) to the date of judgment.14

13 See, for example, the Selçuk & Asker v. Turkey judgment of 24 April 1998, Reports 1998–11, and the Assenov & Others v. Bulgaria judgment of 28 October 1998, Reports 1998. 14 Judgment of 9 December 1994, Series A No. 301-B.


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11. Because of the size of the award, the Greek government refused to pay within the three-month limit and asked the Committee if it could pay by instalments over a period of five years, without interest. This request was rejected by the Committee. The President at the time, the Estonian Foreign Minister, wrote to the Greek Minister of Foreign Affairs, stressing that “the credibility and effectiveness of the mechanism for the collective enforcement of human rights established under the Convention was based on the respect of the obligations freely entered into by the States and in particular in respect of the supervisory bodies”.15 In the event, the case was not resolved until 17 January 1997, when the Government transferred 30,863,828 US dollars to the applicants, corresponding to the just satisfaction awarded by the Court, increased in order to provide compensation for the loss of value caused by the delays in payment.16 III.B. Other individual measures 12. The majority of individual applications under the Convention concern alleged violations of Article 6, the right to a fair trial in civil and criminal matters. In many cases where the Court finds a violation in respect of an unfair procedure in the determination of civil rights and obligations, a sum of monetary compensation will often be an adequate remedy for the aggrieved individual. In other cases, however, and particularly where an applicant has been convicted and sentenced following unfair criminal proceedings, the only way fully to put right the wrong would be to reopen the proceedings or quash the conviction. 13. For example, on 10 July 1992 the Turkish Constitutional Court ordered the dissolution of the Turkish Socialist Party, on the grounds that its chairman, Mr Dogu Perinçek, had made certain statements which could be interpreted as advocating Kurdish secession, contrary to the Constitution. In its judgment of 25 May 1998,17 the European Court held that the dissolution of the Socialist Party amounted to a violation of Article 11 of the Convention (right to freedom of assembly and association) and awarded damages under Article 50 of the Convention. The Committee, which examined the case under Article 53 of the Convention, adopted a resolution on 4 March 1999, stating that it was satisfied that Turkey had paid the just satisfaction ordered by the Court, but continued: The Committee of Ministers…[h]aving, however, been informed that by judgment of 8 July 1998—i.e. after the Judgment of the European Court of Human Rights—the Court of Cassation of Turkey confirmed a criminal conviction imposed on Mr Perinçek by the first State Security Court of Ankara on 15 October 1996, according to which the sanction of dissolution of the party also carried with it personal criminal responsibility; 15 Resolution DH(97) 184. 16 Ibid. 17 Socialist Party & Others v. Turkey, Reports 1998–III.

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Noting that the Court of Cassation based its judgment on the statements which had been pronounced by Mr Perinçek in 1991; Noting, furthermore, that by virtue of his conviction, Mr Perinçek has been sentenced to a 14-month prison sentence, which he started to serve on 29 September 1998, and has furthermore inter alia been banned from further political activities; Insists on Turkey’s obligation under Article 53 of the Convention to erase, without delay, through action by the competent Turkish authorities, all the consequences resulting from the applicant’s criminal conviction on 8 July 1998; Decides, if need be, to resume consideration of the present case at each of its forthcoming meetings.18

III.C. General measures 14. The aim of general measures is to prevent the recurrence of similar violations of the Convention. There are countless examples of States taking action as a result of findings of violation of the Convention, including the adoption by Belgium of measures for subsidising French-speaking schools in the Flemish area; Denmark amending the law on custody of illegitimate children; France passing a law relating to the secrecy of telephone communications; Sweden amending the law on compulsory religious instruction; and, finally, the United Kingdom outlawing corporal punishment in state schools.19 15. Over half of the general measures taken by respondent States involve changes to legislation. The Committee has to date taken note of 130 legislative reforms under the Convention system. Other general measures include administrative measures, changes to court practice or the introduction of human rights training of the police, for example. 16. As mentioned above, Rule 2(b) of the Committee’s Rules provides that, until the Committee is satisfied with the measures taken by a State to comply with a judgment of the Court, that case will be returned to the Committee’s agenda at least every six months. On the whole, States are relatively quick to implement the recommendations of the Committee in respect of general measures, sometimes even adopting the necessary measures before the case in question comes before the Committee or even the Court.20 Thus a written question put forth by four members of the Parliamentary Assembly to the Committee in September 1998,21 identified 18 Interim Resolution DH(99)245. 19 For a longerversion of this list, see http://www.dhdirhr.coe.fr. 20 For example, the Court “noted with satisfaction” in its Findlay v. United Kingdom judgment of 25 February 1997, Reports 1997–I, that the United Kingdom had implemented changes to its courtmartial procedure following the Commission’s finding of a violation of Article 6. 21 See “Execution of certain judgments forwarded to, or certain cases pending before, the Committee of Ministers”, Reply from the Committee of Ministers to Written Question No. 378, Council of Europe document No. 8253, 29 October 1998.


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only seven cases which had at that time been pending before the Committee for more than three years waiting for general measures to be taken for their adequate execution. Moreover, as will be seen, in relation to each of these cases the Committee was able to provide some explanation on behalf of the respondent State. 17. Delays in executing judgments, the Committee explained, could sometimes be accounted for by the extent of the reforms required. This applied to the longest outstanding case mentioned in the Parliamentary question, Gaskin v. the United Kingdom, where the Court, in its judgment of 7 July 1989,22 found a violation based on the absence of any procedure to determine when the interests of an individual brought up in public care in having access to his or her medical and other records should outweigh the public interest in the confidentiality of such data. According to thes Committee, the United Kingdom Government had been preparing a broad comprehensive reform of the law governing public access to documents held by the authorities. In the meantime, the State had been able to give partial effect to the judgment through Regulations, a Local Authority Circular and the Data Protection Act of 1998. 18. Secondly, the length of time could sometimes be explained by difficulties encountered by the member State in implementing reforms. For example, in its Modinos v. Cyprus judgment of 22 April 1993,23 the Court found a violation of Article 8 of the Convention arising from the criminalisation in Cyprus of private homosexual relations. Since 1995 various draft laws had been drafted, with a view to lifting the ban, but at each attempt the legislation was blocked following extensive Parliamentary debate. Finally, in June 1998, the Committee was informed that an Act had been passed by the Cypriot Parliament on 21 May 1998. At the time of the response to the Parliamentary question, the Committee still had to examine the legislation to assess whether it was sufficient. 19. The above examples concern individual judgments with which States have been slow to comply. Perhaps more serious is the situation where measures are required to remedy a whole series of cases which highlight an ingrained and persistent problem within the respondent State. Probably the most notorious example of this situation is the Italian length of proceedings cases. Under Article 6 § 1 of the Convention, “[i]n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a…hearing within a reasonable time…”. This provision is violated by Italy on a constant, even a systematic, basis. In the period immediately prior to entry into force of the Eleventh Protocol, the Commission, Court and Committee of Ministers (acting under Article 32 of the Convention) together dealt with approximately 12,000 applications leading to some 500 findings of violation. Of the violations, approximately 60% arose from the length of civil and criminal proceedings in Italy (where proceedings lasting 10–20 years are not uncommon).

22 Series A No. 160. 23 Series A No. 259.

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20. In order to remedy this situation, the Italian Government informed the Committee in early 1995 that it had instituted a new office of Justice of the Peace and had hired approximately 5,000 magistrates to perform this function. In addition, a number of procedural simplifications were proposed. The Committee accepted these measures as execution in a number of cases,24 but it does not appear to have resolved the problem. In the summer of 1997 the Committee took note of additional measures, including the hiring of another thousand new judges to deal specifically with the backlog of cases. In an interim resolution on the subject25 the Committee took note of these measures and “decided to…maintain the cases relating to this problem on its agenda until the implementation of these reforms.” 21. Another striking example of a series of related findings of violation against a member State concerns the Kurdish conflict in Turkey. At the time of this writing, the Court has found, in three cases, that Turkish soldiers had destroyed Kurdish villages, giving rise to numerous violations of the Convention.26 In three other cases it found that allegations of the torture or serious ill-treatment of Kurds held in police custody had been established.27 Finally, in five cases it held that Turkey was, in one way or another, responsible for breaches of the right to life or for disappearances.28 In almost all of these cases the Court in addition found breaches of the Convention relating to the absence of adequate official investigations into the allegations in question, giving rise to the virtual impunity of agents of the State and a lack of effective domestic remedies for their Kurdish victims. Moreover, the Commission, which in such cases sends a fact-finding delegation to Turkey, has found many other similar serious human rights violations. 22. The Committee has been grappling with these problems since 1996. To date, the Turkish Government has informed the Committee of a number of general measures taken in response to the above findings of violation, including the translation into Turkish of all of the above judgments of the Court, and their publication in legal journals and distribution to members of the security forces. In an attempt to combat the prevalence of torture, a law increasing the penalties in respect of State agents found guilty of ill-treating suspects is currently pending before the Turkish Parliament. Moreover, on 6 May 1997, legislation came into force reducing the maximum length of time during which a person can be detained before being brought before a magistrate. In respect of “collective crimes” (i.e., crimes allegedly involving more than one person), the maximum period of preliminary detention has been reduced from 15 to 7 days, and from 30 to 10 days for crimes allegedly committed

24 See, for example, Zanghi v. Italy, Resolution DH(95)82. 25 DH(97)336. 26 Akdivar & Others v. Turkey, cited in n. 3 above, Mentes & Others v. Turkey, judgment of 28 November 1997, Reports 1997–III; Selçuk & Asker v. Turkey, cited in n. 13 above. 27 Aksoy v. Turkey judgment of 18 December 1996, Reports 1996–VI; Aydin v. Turkey judgment of 25 September 1997, Reports 1997–VI; Tekin v. Turkey judgment of 9 June 1998, Reports 1998–IV. 28 July 1998, Reports 1998–IV; Yasa v. Turkey judgment of 2 September 1998 Reports 1998–VI.


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within the State of Emergency region (i.e., most of South-East Turkey). For individual crimes, the time limits have dropped from 96 to 48 hours. In addition, various safeguards for the detainee have been introduced: for example, a person held in preliminary detention now has the right, at any time after the first four days in custody, to see a lawyer and to apply for habeas corpus. Such a person must also be examined by a doctor at the beginning and end of the period of detention. The Committee is currently considering whether or not these measures are sufficient. IV. Improving the system 23. As is apparent from the foregoing, the Committee is increasingly being calleds upon to deal with grave and endemic breaches of human rights. It might, therefore, be of use to consider whether any amendments could be made to the Convention system to enable it to combat more effectively such recalcitrant problems. In the following paragraphs I make a few, tentative, suggestions as to possible areas of reform. IV.A. Wider range of sanctions available to the Committee 24. As Rolv Ryssdal, former President of the Court, once remarked, “[the Convention], as an international treaty that encroaches on domestic law, relies for its enforcement on a combination of binding legal obligation and the traditional good faith required of the signatories to an international agreement.”29 Good faith and diplomatic pressure aside, the only sanction available to the Committee is the threat of expulsion from the Council of Europe under Articles 8 and 3 of the Council’s Statute.30 So far, in the history of the Council, the Committee has never made use of its powers to suspend a member State, although it came close to doing so in 1970, when the military dictatorship which had seized power in Greece in 1967 declared that it considered the finding by the Commission in an inter-State case of a number of serious human rights violations, including torture,31 to be “null and void” and

29 Lecture given at Masaryk University, 20 March 1996. See also R.Ryssdal, The Enforcement System Set Up Under the European Convention of Human Rights, in M.Bulterman & M.Kuijer (eds.), Compliance with Judgments of International Courts: Symposium in Honour of Professor Henry G.Schermers (1996) 49–84. 30 The Statute of the Council of Europe (London, 5 May 1949), provides in Article 3: “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment of persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.” Article 8 States: “Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine.” 31 Denmark v. Greece; Norway v. Greece; Sweden v. Greece; The Netherlands v. Greece, Decision of the Commission, Yearbook vol. 25, 92–116.

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that it “[did] not consider itself legally bound by the conclusions of the said report”.32 In the end, however, Greece withdrew from the Council of Europe without being expelled, and did not join again until the dictatorship had been overthrown. 25. Recently, the Turkish Government similarly repudiated the Court’s judgments in the case of Loizidou v. Turkey,33 where the Court found that the denial of access to a Greek Cypriot to her property in Northern Cyprus was a breach of Article 1 to the First Protocol to the Convention (right to peaceful enjoyment of property), imputable to Turkey, and ordered the payment of substantial compensation. The case is still pending before the Committee, which has not yet issued any public resolution or statement, although on 22 September 1998 the Committee’s President, the Greek Minister of Foreign Affairs, told the Parliamentary Assembly: A few weeks ago the Turkish Ministry of Foreign Affairs convened the ambassadors of the Council of Europe member States posted in Ankara and handed them a memorandum. In this memorandum it is clearly stated that Turkey will not comply with the Court’s judgment, on the grounds that the Turks consider that they are not liable for what is going on in the occupied part of Cyprus. If Turkey insists on her refusal beyond the three-month term provided for the execution of the Court’s judgment, the Committee of Ministers will certainly assume its responsibility, provided by Article 54 of the Convention of Human Rights, and will—I am sure—use all statutory means at its disposal to obtain the execution of the Court’s judgment. If Turkey does not pay the compensation and does not take individual measures to restore Mrs Loizidou’s rights, putting an end to their violation, then Turkey is simply being consistent with what it has already declared. In such a case the problem is not with Turkey, the problem remains with the other members of the Committee of Ministers.34 26. Despite the President’s thinly-veiled threats, it is relevant to note that, although this is not the first time that serious problems have arisen within the Council of Europe in respect of Cyprus, both under British rule35 and Turkish Occupation,36 the Committee has never to date appeared to consider expulsion. Indeed, to do so would seem to be at odds with the prevailing philosophy within the Council of Europe, that human rights can best be protected by working with a State within the organisation. This principle was instrumental in the acceptance as members of a number of new democracies which clearly fell far short, in many areas, of the

32 Resolution DH(70)1. 33 Judgments of 23 March 1995 (preliminary objections), Series A No. 310, 18 December 1996 (merits), Reports 1996–VI and 28 July 1998 (Article 50), Reports 1998–IV. 34 See the verbatim record of the afternoon debate on 22 September 1998, available from the Council of Europe or on the internet: stars.coe.fr 35 Resolution DH(97)376. 36 Resolutions DH(92)12 and DH(79)1.


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Convention standards. Thus, for example, the Parliamentary Assembly’s Political Affairs Committee, which made an initial assessment as to whether Russia’s request for membership should be granted, reported that, although Russia did not meet the Council of Europe’s standards, membership of the organisation “would enable the support and pressure that have so often been identified as essential to progress”.37 27. It would appear, therefore, that a more flexible range of powers is required. Such powers should fulfil a two-fold purpose. First, it is striking that at present the Committee is almost entirely dependent on information provided to it by the respondent State. It might, therefore, assist the Committee if it had at its disposal, probably for use only in exceptional cases, some sort of independent monitoring procedure. Secondly, the effectiveness of the Committee’s work could, perhaps,s benefit from the availability of sanctions, short of expulsion, but nonetheless calculated to place pressure on States to comply with their Convention obligations. 28. In this connection, it is perhaps relevant to note the steps taken over the past decade by the United Nations’ Human Rights Committee. Thus, in 1990 the UNHRC created the mandate of a “Special Rapporteur for the Follow-up on Views”; in 1995 it approved a follow-up fact-finding mechanism, which was used for the first time during a mission to Jamaica in June 1995; and since 1996, all States which fail to co-operate under the follow-up mandate appear on a special “black-list” in the Committee’s Annual Report to the General Assembly. None of these measures have been provided for by treaty; they have all been instituted by the UNHRC in reliance on the legal doctrine of “implied powers”. IV.B. Increased access to the decision-making process for victims and third parties 29. As noted above, the footnote to the Committee’s Rules recognises the right of an applicant to submit complaints to the Committee if he or she considers that the respondent State has failed properly to execute the Court’s judgment. This right, as far as it is provided for in the Rules, extends only to the applicant’s complaints relating to his or her personal situation. However, in a large number of cases brought before the Court, the applicant’s prime concern is one of principle, to achieve changes to existing domestic law or practice. Moreover, there is no formal right of access to the Committee’s decision-making process for non-governmental organisations or other third parties which might have a vital interest in seeing that effective general measures are implemented. Quite apart from the fact, linked to my earlier point

37 Muehlemann, Report by the Political Affairs Committee on Russia’s Request for Membership of the Council of Europe, Council of Europe document No. 7443, 2 January 1996; and see also the views expressed by members of the Parliamentary Assembly in the course of its debate on Russia’s request for membership (25 January 1996, Official Report, Council of Europe document No. AS (1996) CR 7).

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about monitoring, that the Committee’s work could be greatly assisted by information from those with first-hand experience of the domestic situation, the lack of standing for applicants is contrary to the principle of equality of arms which runs throughout the Convention, particularly as amended by Protocol No. 11. It is therefore suggested that a procedure allowing applicants and interested third parties, perhaps subject to leave, to submit observations should be introduced. IV.C. Increased supervisory role for the Court 30. As briefly noted above, the Court has, to date, interpreted its role under the Convention as limited to the pronouncement of declaratory judgments and has repeatedly held that it has no competence to order a State to change its law or practice so as to prevent similar violations from recurring in the future. For example, in the inter-State case Ireland v. the United Kingdom,38 Ireland had requested the Court to make a number of consequential orders against the United Kingdom, such as to refrain from reintroducing interrogation techniques found by the Court to have violated Article 3 of the Convention and to take disciplinary proceedings against members of the security forces found to have ill-treated suspected terrorists. The Court rejected the applicant State’s request and stated: The Court does not have to consider in these proceedings whether its functions extend, in certain circumstances, to addressing consequential orders to Contracting States. In the present case, the Court finds that the sanctions available to it do not include the power to direct one of those States to institute criminal or disciplinary proceedings in accordance to domestic law.39 31. Moreover, in contrast, for example, to the position of the Court of Justice of the European Communities under the Treaty of the European Union, the Court has never interpreted the Convention as giving its judgments direct effect in the domestic legal systems of the Contracting States. Thus, in the Marckx v. Belgium judgment of 13 June 1979, it held: [I]t is inevitable that the Court’s decision will have effects extending beyond the confines of the particular case, especially since the violations found stem directly from the contested provisions and not from individual measures of implementation, but the decision cannot of itself annul or repeal these provisions: the Court’s judgment is essentially declaratory and leaves to the State the choice

38 Judgment of 18 January 1978, Series A No. 25, 72, § 187. 39 See also, e.g., X. v. United Kingdom (Article 50), judgment of 18 October 1982, Series A No. 55, §§ 13 and 15; F. v. Switzerland, judgment of 18 December 1987, Series A No. 128, §§ 42–43; and Belios v. Switzerland, judgment of 29 April 1988, Series A No. 132, §§ 77–78.


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of the means to be utilised in its domestic legal system for performance of its obligations under Article 53.40 In keeping with this principle, the Court has been unwilling to rule on matters relating to the execution of its judgments.41 32. It is arguable that the Convention enforcement mechanism would be strengthened if the Court were to abandon its above position and take a more active role in supervising the execution of its judgments. However, in a case where the Court has already found a State to be in breach of the Convention, and the State is determinedly unwilling or unable to take the measures required to implement the Court’s judgment, it is doubtful whether a further finding by the Court would bes any more effective than a resolution of the Committee. Moreover, in terms of economy of procedure, and in view of the ever-increasing number of applications pending before the Court, it is perhaps preferable to retain the current division of roles. IV.D. Punitive damages 33. In a system for the protection of individual human rights, the award of damages performs several functions. In the first place, of course, damages provide some recompense to an individual who has suffered a breach of his or her rights. In addition, however, and particularly where the sums concerned are substantial, the award might have a deterrent effect on errant States, which may find the threat of similar payments to other victims an added incentive to put right the wrong. Finally, the award of compensation, which frequently attracts greater media interest than the finding of a violation alone, can help to reinforce the stigma of a breach of the Convention and underline the judicial condemnation of the facts in question. 34. Within the European system, the Court has applied a rather narrow interpretation of the expression “just satisfaction” in Article 50 (now Article 41) of the Convention. To date, such “just satisfaction” has taken the form of (a) financial compensation for any pecuniary and/or non-pecuniary damage suffered as a result of the violation found and (b) reimbursement of necessary and reasonable legal costs and expenses. The Court has consistently rejected requests by applicants to award punitive damages against a respondent State.42 It is noteworthy, however, that despite certain dicta in the separate opinions of individual judges,43 the Court has

40 Series A No. 31, § 58. 41 See n. 3 above. 42 See, for example, the Akdivar & Others v. Turkey (Article 50) judgment of 1 April 1998, Reports 1998– II, 722, § 38; the Selçuk & Asker v. Turkey judgment of 24 April 1998, Reports 1998–II, 918, § 119; and the Cable & Others v. United Kingdom judgment of 18 February 1999, §§ 29–30. 43 See, for example, Judge Matscher’s partly dissenting opinion in the Gaygusuz v. Austria judgment of 16 September 1996, Reports 1996–IV, 1147.

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never expressly stated that it does not have the power to award punitive damages. Thus, in the Turkish cases cited in note 42 above, the Court stated simply that it “rejects the claim for punitive and aggravated damages”. The new Court has been even more ambiguous in its pronouncements on this subject. In the Cable & Others case44 the Court found that the court-martial system in the United Kingdom had not afforded the applicants fair trials before independent and impartial tribunals. The applicants’ representative argued at the hearing that they were entitled to punitive damages, since the respondent State had failed, immediately following the publication of the Commission’s report finding a violation of Article 6 § 1, to take steps to ensure that military personnel did not continue to be tried by courts martial convened under the impugned procedure. The Court, again leaving open the general question of its power to award punitive damages, stated that “[it] finds no basis, in the circumstances of the present cases, for accepting this claim”. 35. It will be interesting to see how the Court determines this question in the future. Punitive damages might prove an effective weapon in the human rights arsenal, particularly against States which repeatedly and/or deliberately fail to comply with their obligations under the Convention. For example, if in each case where the Court found a breach by Italy of the “reasonable length of proceedings” provision in Article 6 § 1, the respondent State were required to pay substantial damages, perhaps reflecting the true cost of the Strasbourg proceedings, it might eventually find it cheaper to invest the money in increasing the resources of the Italian courts. V. Conclusion 36. In the first few decades of its existence, the organs of the European Convention system, in contrast to those of other regional systems for the protection of human rights, were privileged in that their field of application extended, on the whole, to a relatively homogeneous region of Europe where democracy and the rule of law were well-established. However, this region has now expanded as far as the Pacific, to incorporate new member States which, in the last 50 years alone, have developed very different cultures and traditions to those prevailing in the West, giving rise to new challenges for the Strasbourg organs. The amendment of the Convention by the Eleventh Protocol may represent an opportunity for the Court and Committee to improve the implementation of the Court’s judgments and the protection of human rights in Europe.

44 Cited in n. 42 above.

27 Judicial procedures and the protection of human rights: the European context Peter Malanczuk

I. Introduction It is a great pleasure to submit this small contribution to a collection of essays in memory of Judge Li Haopei. He was a distinguished scholar and a true gentleman, still full of ambitious plans at an advanced age at which many others would have long contemplated relaxation. I very well remember when we last met with his family at his home in Scheveningen, before I left for some lectures in China and learned to my dismay when I returned that he had unexpectedly died. At that last meeting, he had been so full of energy and was seriously considering to complete several volumes of a study on private international law, an indication of the broad range of his scholarship stretching far beyond the immediate boundaries of public international law. I admired him greatly also for his wisdom and humble and friendly personality. In selecting a contribution to honour the memory of Judge Li Haopei, I thought it may be most appropriate to submit a paper I presented at Peking University in October 1999 at the “Conference on Civil Rights Protection and Judicial Justice”, organized by the Hong Kong University Law School (Chinese Center for Legal Studies) and the Research Center for Human Rights of Peking Law School.1 The paper gives an overview on judicial procedures and the protection of human rights on the European level. It first outlines some recent developments under the European Human Rights Convention (Part II). It then addresses the relevance of human rights in European Community law (European Union) (Part III). The paper also briefly looks at some other international human rights instruments relevant in the European context (Part IV) and ends with some conclusions on the “margin of appreciation” doctrine that may be interesting for the continuing discussion on human rights in the European-Asian dialogue (Part V).2 1 2

Beijing, October 16–17, 1999. See P.Malanczuk, The Universality of Human Rights and Differences in Asian and European Values from the Perspective of International Law (Keynote Speaker), in: Raul Wallenberg Institute of Human Rights and Humanitarian Law, Second Informal Asian-European Meeting (ASEM) Human Rights Seminar, co-sponsored by China, Sweden, France, Indonesia and the Asian-European Foundation (ASEF), Beijing 27–29 June 1999, Lund 1999, Report No. 30, 9–67. As to human rights in international law in general see, with further references, P.Malanczuk, Akehurst’s Modern Introduction to International Law (7th revised ed., 1997), Ch. 14, 209 et seq. 423

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II. Recent developments under the European Human Rights Convention The European Convention on Human Rights and Fundamental Freedoms was adopted in 1950 (41 ratifications as of 23 June 1999).3 A number of protocols (that is, supplementary agreements) were added later.4 After the changes in Eastern Europe (in 1989 there were 23 member states of the Council of Europe) a number of former socialist states also joined the Council of Europe and the Convention. On 28 February 1996, Russia was admitted as the thirty-ninth member state of the Council of Europe. It also signed the European Human Rights Convention (but not, however, the protocol abolishing the death penalty).5 Georgia was admitted as the 41st member in 1999; other candidates are Bosnia-Herzegovina, Armenia, Azerbaijan, the Federal Republic of Yugoslavia and Monaco. Politically, the accessions of Russia, the Ukraine and Croatia were the most difficult and controversial procedures. The Council of Europe has introduced a “monitoring procedure” to control whether the principles of the organization relating to democracy, rule of law and human rights are actually respected, especially in the new member states. The issue has recently emerged whether the Ukraine should be excluded because of its continued adherence to the death penalty and the alleged lack of a sufficient democratic separation of powers.6 The protocol abolishing the death penalty (No. 6) was added to the Convention in 1983. The death penalty is permitted only for acts committed during war or in the face of the imminent threat of war and may be applied only in the instances laid

3

4 5 7 6

Text in I.Brownlie, Basic Documents on Human Rights (3rd ed., 1992), 326. See V.Berger, 2 Case Law of the European Court of Human Rights, 1988–1990 (1992); M.Delman-Marty & C.Chodkiewicz (eds.), The European Convention for the Protection of Human Rights (1992); R.St.J.Macdonald, et al., (eds), The European System for the Protection of Human Rights (1993); R.Beddard, Human Rights and Europe (3rd ed., 1993); J.G.Merrills, The Development of International Law by the European Court of Human Rights (2nd ed., 1993); A.M.Robertson & J.G.Merrills, Human Rights in Europe (3rd ed., 1993); L.Clements, European Human Rights: Taking a Case under the Convention (1994); L.Heffernan (ed.), Human Rights—A European Perspective (1994); J.A.Frowein, European Convention on Human Rights (1950), in R. Bernhardt (ed.), 2 EPIL (1995), 188–96; D.J.Harris, et al., Law of the European Convention on Human Rights (1995); M.Janis, et al., European Human Rights Law: Text and Materials (1995); I.Cameron & M.K.Eriksson, An Introduction to the European Convention on Human Rights (2nd ed., 1995); P.Kempees (ed.), A Systematic Guide to the Case Law of the European Court of Human Rights 1960–1994, 2 vols. (1996), vol. 3: Update 1995–1996 (1998); C.A.Gearty (ed.), European Civil Liberties and the European Convention on Human Rights—A Comparative Study (1997); P.van Dijk & G.J.H.van Hoof, Theory and Practice of the European Convention on Human Rights (3rd ed., 1998); T.Barkhuysen, et al. (eds.), The Execution of Strasbourg and Geneva Human Rights Decisions in the National Legal Order (1999). Texts in Brownlie, n. 3 above, 347. Protocol No. 6, ratified by all other parties. See D.P.Forsythe (ed.), Human Rights in the New Europe: Problems and Progress (1994); A.M.Gross, Reinforcing the New Democracies: The European Convention on Human Rights and the Former Communist Countries—A Study of the Case Law, EJIL (1996), 103–11. Frankfurter Allgemeine Zeitung of 25 June 1999, 12. The exclusion of the Ukraine has been demanded by the control committee of the Parliamentary Assembly, see Frankfurter Allgemeine Zeitung of 30 June 1999, 2.

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down in the law and in accordance with its provisions.7 In contrast to most other member states, Turkey has not ratified the protocol. It has only informally agreed not to execute death sentences and has so far abided by this commitment in practice. The test case now, of course, is the recent death penalty imposed upon the Kurdish leader Öcalan. Meanwhile, however, the abolition of the death penalty has become a precondition for states to be admitted as members to the Council of Europe. This wave of accessions to the Council of Europe must be seen in the context of the enlargement plans of the European Union (which is a different organization) and the enlargement of NATO. In addition, the Vatican, the USA, Canada and Japan have observer status in the Council of Europe. In 1989 the Parliamentary Assembly of the Council of Europe further introduced a special guest status fors certain eastern European countries enabling them to take part in some sessions of the organization (Bosnia-Herzegovina, Armenia, Azerbaijan and Belarus—in the latter case it was suspended in January 1997).8 In spite of all cultural and other diversity among the now 41 member states of the Council of Europe, there are now common principles to which all must adhere to be admitted: human rights and fundamental freedoms, especially the freedom of expression, standards of democracy and the rule of law. The 1950 European Convention, plus the protocols, is the Magna Carta of the protection of human rights in Europe. The Convention covers much the same ground as the Universal Declaration of Human Rights. One revealing difference is that Article 1 of the first protocol goes much further than Article 17 of the Universal Declaration in underlining the sanctity of property, which is not mentioned at all in the 1966 Covenant on Civil and Political Rights. Since the Convention and protocols are legally binding on the states parties to them, they are drafted in much more detail than the Universal Declaration—as one would expect in the case of a legal document. Some of the details have the effect of restricting the force of the Convention. In particular, Article 15 provides: “In time of war or other public emergency threatening the life of the nation any… Party may take measures derogating from its obligations under this Convention.”9 There is nothing in the European Convention which corresponds to Articles 22– 25 of the Universal Declaration, which deal with social security, full employment, fair conditions of work and adequate standards of living. These are covered in detail by a separate treaty, the European Social Charter, which was opened for signature in 1961 and entered into force in 1965 (twenty-three ratifications by August 1999).10 The semi-judicial enforcement machinery of the European Convention would be

7 Art. 2. 8 L.Fischer, Das demokratische Gewissen—der Beitrag des Europarates zur Schaffung einer dauerhaften Friedensordnung für den Kontinent, Frankfurter Allgemeine Zeitung of 5 May 1999, 11. 9 Subject to certain conditions and expectations, see R.Higgins, Derogations under Human Rights Treaties, 48 BYIL (1976–77), 301–07, 319–20; J.M.Fitzpatrick, Human Rights in Crisis: The International System for Protecting Rights During States of Emergency (1994). 10 On the list of ratifications see 34 ILM (1995), 1714.

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inappropriate for the European Social Charter, which uses a less “legal” and more “political” system of enforcement.11 An attempt to improve the reporting system was made by an Additional Protocol to the European Social Charter adopted in 198812 (eight ratifications by 1999) and by a Protocol amending the Charter signed in 199113 (fourteen ratifications by 1999). On 9 November 1995, the Council of Europe adopted a further Protocol amending the European Social Charter which provides for a system of “collective complaints”.14 This system is similar to that of existing arrangements of the International Labour Organisation. International and national organizations of employers and trade unions and other international and national NGOs can submit complaints to an independent committee of experts. The European Human Rights Convention originally set up a Commission of Human Rights,15 composed of individuals elected by the Committee of Ministers of the Council of Europe (the Committee of Ministers is a political body roughly corresponding to the General Assembly in the UN) and a Court of Human Rights in Strasbourg (which is often confused with the European Community Court—The European Court of Justice—in Luxembourg). The Commission heard complaints against state parties to the Convention who were accused of breaking it. Complaints may be made by any other state party to the Convention, although experience has shown that states have little inclination to protect other states’ nationals except when their own interests are involved.16 In addition, under Article 25, states were given the option of empowering the Commission to hear complaints brought against them by individuals, groups of individuals or NGOs; all states parties to the Convention gradually accepted this right of individual petition,17 as it is called. Some member states were long reluctant to submit the required declaration. The United Kingdom, for example, did not accept it until 1966, even though it ratified the Convention in 1953. France did not even ratify the Convention until 1974 and agreed to the right of individual complaint only in 1981. A commitment to accept this right has now become a condition for admission to the Council of Europe. There are, however, a number of obstacles to

11 Text in 529 UNTS 89; ETS No. 35. See D.J.Harris, The European Social Charter (1984); K. Drzewicki, et al. (eds.), Social Rights as Human Rights: A European Challenge (1994); W.Strasser, European Social Charter, in Bernhardt (ed.), 2 EPIL, 291–94. 12 27 ILM (1988), 575. 13 31 ILM (1992), 155. See M.Mohr, The Turin Protocol of 22 October 1991: A Major Contribution to Revitalizing the European Social Charter, 3 EJIL (1992), 363–70. 14 34 ILM (1995), 1453. 15 H.G.Schermers (ed.), The Influence of the European Commission of Human Rights (1992); C.A.Nørgaard, European Commission of Human Rights, in Bernhardt (ed.), 2 EPIL, 154–59. 16 G.Nolte & S.Oeter, European Commission and Court of Human Rights, Inter-State Applications, ibid., 144–54. 17 See T.Zwart, The Admissibility of Human Rights Petitions: The Case Law of the European Commission of Human Rights and the Human Rights Committee (1994); I.Cameron, Turkey and Article 25 of the European Convention on Human Rights, 37 ICLQ (1988), 887.


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be overcome before the Convention admits a complaint, and the obstacles are particularly severe in the case of individual petitions. For instance, if local remedies exist, they must be exhausted before the individual concerned or a state party to the Convention can refer the case under the Convention;18 individual petitions may also be rejected for other reasons, for example, if they are anonymous or an abuse of the right of petition. Under the previous procedure, the Commission investigated the complaint, if it was admissible, and tried to solve the dispute by conciliation.19 If conciliation failed, the Commission drew up a report on the merits of the claim, which it sent to the Committee of Ministers. Unless the case was referred to the Court, the Committee of Ministers could, by a two-thirds majority, decide that there was a breach of thes Convention and order the defaulting state to rectify the situation. In extreme cases, the ultimate sanction still is expulsion from the organization—a threat which forced Greece to withdraw from the Council of Europe in 1969 (Greece was readmitted to the Council of Europe in 1974, after the restoration of democratic government). After the case had been heard by the Commission, the Commission or (in certain circumstances) a state party to the Convention could refer the case to the European Court of Human Rights, if the defendant state had accepted the jurisdiction of the Court under Article 46 (which all parties have done).20 The Court’s decision is binding and may be enforced by the Committee of Ministers (Article 54). The growing number of complaints and an increasing backlog of cases made a reform of the supervisory machinery of the Convention an urgent matter. The urgency was enhanced by the accession of new states from Eastern Europe and the prospect that by the year 2000 or 2001 there may well be some forty-five states parties to the Convention. While the number of applications filed with the Commission had risen from 404 in 1981 to 2,037 in 1993, the number of pending cases before the Commission in January 1994 stood at 2,672, almost 1,500 of which had not yet even been looked at. On average it took more than five years for a case to be finally decided by the Court or by the Committee of Ministers. In 1996 the number of complaints had risen to about 12,100.21 On 11 May 1994, the Council of Europe therefore decided to adopt an amending (meaning not optional) Protocol No. 11 to the Convention to restructure the control machinery by creating a new single Court to replace the former Court and the Commission.22 Previously, the Court met only for a week once a month; now it is in

18 See B.Robertson, Exhaustion of Local Remedies in International Human Rights Litigation—The Burden of Proof Reconsidered, 39 ICLQ (1990), 191 et seq. The local remedies rule in general international law is discussed in Malanczuk, Akehurst’s, 267–68. 19 On conciliation, see Malanczuk, ibid., 278–81. 20 W.J.G.van der Meersch, European Court of Human Rights, in Bernhardt (ed.), 2 EPIL, 201–17. 21 Frankfurter Allgemeine Zeitung of 1 October 1998, 7. 22 33 ILM (1994), 943; text in Brownlie, n. 3 above, 372. See R.Bernhardt, Reform of the Control Machinery under the European Convention on Human Rights: Protocol No. 11, 89 AJIL (1995), 145–54.

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permanent session. The delay caused by the double control through the Commission and the Court was abolished. The jurisdiction of the Court now covers inter-state complaints as well as individual applications which it may receive from any person, non-governmental organization or group of individuals claiming to be the victim of a violation of the Convention by one of the states parties. Under the new system, applicants are able to bring their cases directly before the Court without restrictions, but must still exhaust national remedies first. The Committee of Ministers has lost its previous legal decision-making power, but it is still responsible for the enforcement of the judgements of the Court. The new Court has been operating since 2 November 1998. It has 41 Judges, one from each member state, and decides on the basis of four Chambers of seven Judges each, allocated to the Chambers according to regions but also in view of the number of cases filed. Important cases are determined by a larger chamber of 17 Judges. In view of the fact, however, that there are some 800 million people from Greenland to Wladiwostok who now have the right to approach the Court, it remains to be seen how effectively the new institution can function. The judicial character of human rights protection has certainly been strengthened, at least on paper. There is no experience, however, with regard to new members of the Convention, such as Poland, Hungary, or Russia. When the new Court started its work, it was estimated that it would already have to deal with some 8,000 cases. If the past experience is any guide, some 10% of cases may be admitted; in 2/3 of those cases admitted a violation of the rights of the Convention will be found to have occurred, and it is an open question whether the aim of completing a procedure within two years can really be achieved. In addition to the Convention mechanism, the Council of Europe has agreed to institute a European Human Rights Commissioner who is to be elected for six years by the Parliamentary Assembly.23 The main task of the Commissioner is a political one, namely to draw the attention of member states to human rights issues and to take preventive action to reduce the number of cases being brought to the Court in Strasbourg. It is fair to say that the European Convention on Human Rights is the most sophisticated and practically advanced international system of the protection of human rights. It grants individuals direct legal access to an international judicial body which reaches binding decisions. Member states may not invoke political arguments to avoid implementing a decision of the Court. It is noteworthy that so far all states have respected the Court’s judgements. One of the most recent judgements (in July 1999) has condemned France to pay compensation for material and moral damages inflicted by torture to the Dutch-Moroccan Ahmed Selmouni by five French police agents in 1991.24 The reaction in France, not only in the press, to this judgement has

23 Frankfurter Allgemeine Zeitung of 30January 1999, 6. 24 See NRC Handelsblad of 29 July 1999, 5.


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been an outcry with reference to the sovereignty of France and its tradition of human rights established with the French Revolution. However, in practice the decisions made in Strasbourg have established an additional and effective constitutional layer of norms above the national legal systems of the state parties to the Convention. Indeed, it has proved so effective that over the years quite a number of barristers in London have found it possible to make a living from cases brought to the European Court to override national law in Britain in the final European instance. With the 1998 Human Rights Act, the UK government has taken the step to incorporate the European Convention into domestic law, so that British judges may apply its provisions directly in national cases.25 s

III. Human rights in European Community law (European Union) Only some brief remarks should be added on the role of human rights in European Community law, the law of the European Union.26 The treaties establishing the supranational community of the now 15 member states of the European Union did not provide for a comprehensive human rights catalogue. This was felt to be unnecessary at the beginning because of the predominantly economic nature and limited scope of activities of the originally quite separate three Communities. However, it is recognized, since the decision of the European Court of Justice 1969 in the Stauder case,27 that fundamental rights, reflecting common principles of the EU member states, as laid down in their national constitutions and in the European Human Rights Convention, belong to the general principles of Community law. The 1992 EU Treaty of Maastricht, amending the basic treaties of the European Communities, even stipulated in Article F (2) that: The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms

25 See L.Betten, The Human Rights Act 1998—What it Means—The Incorporation of the European Convention on Human Rights into the Legal Order of the United Kingdom (1999). On the previous status of the Convention in the UK see A.J.Cunningham, The European Convention on Human Rights, Customary International Law and the Constitution, 43 ICLQ (1994), 537–67; R.R.Churchill & J.R.Young, Compliance with Judgments of the European Court of Human Rights and Decisions of the Committee of Ministers: The Experience of the United Kingdom, 1975–1987, 62 BYIL (1991), 283–346. 26 See H.-W.Rengeling, Grundrechtsschutz in der Europäischen Gemeinschaft, 1993; N.A.Neuwahl & A. Rosas, The European Union and Human Rights (1995); L.Betten & D.M.Devitt (eds.), The Protection of Fundamental Social Rights in the European Union (1996); E.Guild & G.Lesieur, The European Court of Justice on the European Convention on Human Rights (1998); Comité des Sages, Leading by Example: A Human Rights Agenda for the European Union for the Year 2000 (1998). 27 Stauder v. City of Ulm, Case 29/69 [1969] European Court Reports 419; see also Rs 11/70 Internationale Handelsgesellschaft/Einfuhr und Vorratsstelle, Slg 1970, 1125 (1135); Nold case, EuGH Rs 7/73, Slg 1974, 491 (507); Hauer case, EuGH Rs 44/79, Slg 1979, 3727 (3726).

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signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the member-States, as general principles of Community law.28 However, the same Treaty (in Article L) clarified that the jurisdiction of the European Court of Justice does not cover that provision. There have been divergent decisions in similar matters between the Court in Strasbourg and the Court in Luxembourg (concerning broadcasting monopolies in Austria and in Greece). This has contributed to the question whether the EU as such should accede directly to the European Human Rights Convention. In an opinion, requested by the EU Council of Ministers, the European Court of Justice held in 1996 that Community law, as it stands at the moment, does not provide for such a competence of the European Community.29 This raises some complicated questions of the relationship between national law, European Community law and the law of the European Human Rights Convention, which cannot be further discussed in this context.30 It should only be noted that the old discussion on whether the European Union should adopt a catalogue of fundamental rights of its own is still continuing.31 Another matter of importance for developing countries relying on aid and assistance from the EU is the introduction of conditions relating to human rights, democracy and the rule of law in the respective policies of the Community. However, this matter is beyond the scope of this presentation.32 IV. Other human rights instruments in Europe There are a number of other European human rights instruments that should be at least briefly mentioned. First of all, there are the important developments concerning the promotion of human rights within the framework of the Conference on Security and Co-operation in Europe (CSCE, now the OSCE).33 Starting from the 1975 Helsinki Final Act and the 1989 Vienna Follow-up Meeting, this process culminated in the 1990 Charter of Paris for a New Europe and the 1992 Helsinki Documents. They established a

28 Common Market Law Reports, 17 and 25 March 1992, 728. 29 2/94 of 28 March 1996, Slg 1996, I-1759, reprinted in Europäische Grundrechte-Zeitschrift (1996), 197 et seq. 30 See G.Ress, Menschenrechte, europäisches Gemeinschaftsrecht und nationales Verfassungsrecht, in H.Haller et al. (eds.), Staat und Recht, Festschrift für Ewald Wiederin (1997), 897–932. 31 See, for example, H.-W.Rengeling, Eine Charta der Grundrechte—Die EU wird zur Wertegemeinschaft, Frankfurter Allgemeine Zeitung of 21 July 1999, 13. 32 See T.King, Human Rights in the Development Policy of the European Community: Towards a European World Order?, 28 Netherlands YIL (1997), 51 et seq. 33 See Malanczuk, Akehurst’s, 34 with references. 34 E.Klein (ed.), The Institution of a Commissioner for Human Rights and Minorities and the Prevention of Human Rights Violations (1994).


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High Commissioner on National Minorities34 and laid down provisions for strengthening the Office for Democratic Institutions and Human Rights that has been set up in Warsaw with regard to the process of transition in Eastern Europe.35 Furthermore, there are more specific other European treaties. There is a European regional counterpart of the 1984 UN Torture Convention, the European Convention for the Prevention of Torture and Inhuman Treatment.36 Other Council of Europe conventions address various issues, such as nationality, personal data protection, human rights and biomedicine, refugees, regional or minority languages, the protection of national minorities, and rights of the child. The details may be neglected here. V. Conclusions: the “margin of appreciation doctrine”

s

I would like to conclude this paper by making a specific proposal for the future dialogue between Asia and Europe on human rights relating to the above mentioned “margin of appreciation doctrine” in the case-law of the European Court of Human Rights. Although the doctrine already came up earlier in the context of emergency situations,37 the most well known formulation was given in 1976 in the Handyside case against the United Kingdom concerning the criminal conviction of the applicant under the British Obscene Publications Act 1959/1964. The case concerned the “Little Red Schoolbook”, an advice manual for young people which included information on sexual matters. The Court decided that this infringement on the freedom of expression did not violate Art. 10 of the Convention. It held that it is not possible to find in the domestic laws of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, state authorities are in principle

35 Text of the Charter of Paris in 30 ILM (1991), 190; the 1992 Helsinki Summit Documents are in 31 ILM (1992), 1385; on the 1994 Budapest Summit Declaration of the OSCE see 34 ILM (1994), 764. See A.Bloed & P.v.Dijk, The Human Dimension of the Helsinki Process (1991); W.Korey, The Promises We Keep: Human Rights, the Helsinki Process and American Foreign Policy (1993); A.Bloed, et al. (eds.), Monitoring Human Rights in Europe—Comparing International Procedures and Mechanisms (1993). 36 See K.Ginther, The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 2 EJIL (1991), 123–31; M.Evans & R.Morgan, The European Convention for the Prevention of Torture: Operational Practice, 41 ICLQ (1992), 590 et seq.; J.Murdoch, The Work of the Council of Europe’s Torture Committee, 5 EJIL (1994), 220–48; M.Evans & R.Morgan, The European Torture Committee: Membership Issues, ibid., 249–58. 37 For example, in the case Lawless v. Ireland, Eur.Ct.H.R. (ser.B) at 408 (1961).

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in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them… Consequently, Article 10 para. 2 leaves the Contracting States a margin of appreciation. This margin is given both to the domestic legislature (‘prescribed by law’) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force….38 It must be noted that the application of this “margin of appreciation doctrine” by the Court in various cases differs, depending on the legal and social context. The quotation should also not convey the wrong impression as if a broad discretion or unlimited powers of appreciation were left to national authorities. The Court has certainly made it clear that it retains the ultimate supervisory control. A balanced assessment of the real meaning of the doctrine would require a much more extensive analysis than is possible within the limited framework of this presentation.39 The European-Asian dialogue may be well advised to focus on the precise meaning of this doctrine in the practice under the European Convention. The aim would be to see which lessons may perhaps be learned for a constructive human rights dialogue between various nations by concentrating on specific rights and their concrete application under an international instrument, rather than dwelling, in my view less fruitfully, on general and abstract concepts of human rights.

38 The Handyside Case, 24 Eur. Ct.H.R. (ser. A) at 22–23 (1976). 39 See, for example, E.Brems, The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights, 56 Zeitschrift für ausländisches offentliches Recht und Völkerrecht (1996), 240–314; H.C.Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (1996); see also the contributions by various authors to the topic The Doctrine of the Margin of Appreciation under the European Convention on Human Rights: Its Legitimacy in Theory and Application in Practice, 19 Human Rights LJ (1998), 1–36; Y.Arai, The Margin of Appreciation Doctrine in the Jurisprudence of Article 8 of the European Convention on Human Rights, 16 Netherlands Quarterly on Human Rights (1998), 41–61.

28 Challenges to indictments in international criminal trials Richard May*

I. Introduction The indictment in a criminal trial sets out the charges against the accused. Issuing it involves decisions as to who to charge, what offences to charge and how to put the charges. Once issued, the indictment has a significant effect upon the scope and conduct of the trial. This applies in international criminal trials as in trials in national jurisdictions and gives the indictment its importance. The purpose of this paper is to discuss the practice to date in relation to the challenges to indictments in trials before international criminal tribunals; mainly the International Criminal Tribunal for the former Yugoslavia (ICTY), but also the International Criminal Tribunal for Rwanda (ICTR), as well as the International Military Tribunals at Nuremberg and Tokyo, and the secondary military tribunals in Germany (for the trials under Control Council Law No. 10) and Japan (for the Yokohama trials). The discussion falls under four broad headings: I. II. III. IV.

Who is to be indicted. The form of the indictment. Challenges to the form of the indictment. The number of violations.

II. Who is to be indicted? The choice of those to be indicted is entirely a matter for the Prosecutor of the International Tribunal, acting within the jurisdiction of the relevant Tribunal. This gives the Prosecutor very broad discretion since, typically, war crimes may be widespread and involve a large number of offenders. As the Prosecutor in the trials under Control Council Law No. 10, Brigadier General Telford Taylor, said in his Final Report: “the individuals indicted under Law No. 10 were a small minority of

*

The opinions and views expressed here are personal. The author wishes to acknowledge the assistance given in research and preparation for this paper by Marieke Wierda. The law is stated as at 31 July 1999. 433

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those who, on the basis of available evidence, appeared and probably could be proved to be guilty of criminal conduct”.1 The choice in those cases was governed by legal and other considerations so that the accused were chosen according to the existence of evidence against them, their availability, policy factors and administrative considerations such as the availability of time, staff and money.2 No appeal is exercisable against the Prosecutor’s exercise of discretion. Joint trials before international criminal tribunals are common; so are motions for separate trials. In the Yokohama trials motions for separate trials were “uniformly unsuccessful. Having been convened to try those accused in common trials, the commissions literally carried out such orders”.3 In the Krupp case under Control Council Law No. 10, the defendants applied for separate trials since there would be mutually antagonistic defences, and the flexible rules of evidence would permit the admission of affidavits taken from co-defendants which might be prejudicial and about which the co-defendants could not be compelled to testify. The defence submitted that the resulting confusion of issues and diversity of interests would render a fair trial “impracticable and improbable, if not in fact impossible”.4 The Tribunal rejected the motion, stating simply that “the showing made is insufficient to warrant the granting of a severance”.5 Issues of joinder and severance before the modern Tribunals have been complicated by the fact that many of the accused who have been indicted jointly have come into the custody of the Tribunal at different times. Moreover, once an accused comes into the custody of the Tribunal, his right to an expeditious trial without undue delay is activated immediately and the Trial Chamber has to proceed, regardless of the possibility of the surrender of co-accused in the future.6 According to Rule 82(B) of the ICTY Rules of Procedure and Evidence (Rules), there are two grounds for severance; if a Trial Chamber finds it necessary, in order to avoid a conflict of interests (causing serious prejudice to an accused), or to protect the interests of justice. In Delalic, et al., it was determined that the fact that all accused would be obliged to be present when evidence that did not concern them was given might constitute an inconvenience but not a conflict of interests.7 In Simic, et al., the Trial Chamber found that the possibility of mutually antagonistic defences did not constitute a conflict of interests capable of causing serious preju dice, since a Trial

1

Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials under Control Council Law No. 10, Telford Taylor, Brigadier General, USA, 15 Aug. 1949, 74. 2 In his Report Telford Taylor stated: “As matters worked out, all of the trials took considerably longer than I or my colleagues had estimated and this, of course, meant that fewer individuals were brought to trial”. Ibid., 76. 3 R.Miller, War Crimes Trials at Yokohama, 15–16 Brooklyn LR 1948–50, 200. 4 Motion on Behalf of All Defendants, 9 Dec. 1947, Requesting Separate Trial for Each Defendant, 15 Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 (1946– 1949) (hereinafter “NMT”), 238–239. 5 Order of Tribunal, 10 Dec. 1947, Dismissing Defense Motion, 15 NMT, n. 4 above, 240. 6 Dokmanovic (IT-95–13a-PT), Decision (hereinafter “Dec.”), 28 Nov. 1996. 7 Delalic, et al. (IT-96–21-T), Dec., 26 Sept. 1996.

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Chamber of the International Tribunal is composed of professional judges able to assess the evidence in such a case in a fair and just manner without prejudice to the accused.8 Rule 48 of the ICTY Rules provides that those “accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried”. Trial Chambers have found that where the acts alleged in the indictment are part of the “same transaction” it is usually in the interests of justice to have a joint trial. In Delalic, et al., the Trial Chamber decided that separate trials would, in total, be likely to take much longer than a joint trial. A joint trial was clearly in the interests of justice, in order to avoid duplication of testimony and great hardship for already traumatised witnesses. Similarly, in another case the Chamber stated that “as joint trial avoids duplication of evidence, minimises hardship caused to witnesses and is generally in the interests of judicial economy”.9 In 1998 the Prosecution applied for concurrent presentation of evidence in two cases. The ground for the application was that the three existing indictments against the four accused all dealt with crimes committed in the Omarska and Keraterm camps in Bosnia and Herzegovina. The Prosecution argued that such concurrent presentation would be compatible with the search for truth and appropriate for reasons of witness protection and judicial economy. The Defence opposed the application on the ground that this would substantially prejudice the rights of the accused to a fair trial. The Trial Chamber found that to grant the Prosecution request would essentially amount to ordering a joint trial, which would lead to a conflict of interests between the accused in the conduct of their defence and would violate the right to an expeditious trial of the one accused who had been in custody longer than the others.10 III. Form of the indictment To some common lawyers, used to a succinct statement of the offences charged, the indictments before the International Tribunals appear lengthy. This arises partly from different traditions of indicting. However, it also reflects the breadth and scope of the offences charged. The different approaches to the form of the indictment are illustrated by the indictment in the trial before the International Military Tribunal in Nuremberg. The Charter provided that the indictment should include full particulars specifying in detail the charges against the accused (Article 16(a)). The indictment, as drafted, was 65 pages in length; it contained four counts, namely, a common plan or conspiracy (13 pages drafted by the United States), crimes against peace (less than one page drafted by the United Kingdom), war crimes and crimes against humanity (27 pages 8 Simic, et al. (IT-95–9-PT), Dec., 15 March 1999. 9 Delalic, et al., Dec., 26 Sept. 1996. Kovacevic (IT-97–24-PT) andKvocka, et al. (IT-98–30-PT), Dec., 14 May 1998. 10 Kovacevic and Kvocka, et al., Dec., 14 May 1998.

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drafted by France and the Soviet Union for the western and eastern fronts respectively).11 Three appendices were attached dealing with individual criminal responsibility, the criminality of organisations and international treaties. The drafting reflected national differences. Thus, it has been noted: “[the] French and Russian sections on war crimes and crimes against humanity were very detailed; those sections which had been drafted mainly by American staff were instantly recognisable to an American lawyer as in the narrative style of an anti-trust indictment; [and the section] drafted by the British occupied three-quarters of a page.”12 However, Justice Robert Jackson, Chief Prosecutor, later wrote in explanation of the form of the indictment: Soviet and also Continental jurists consider that our method of providing the accused with only a skeleton argument of charges, withholding the evidence until he is in court, does not give an innocent man fair opportunity to prepare for trial and leads a guilty one to contest charges to which he might plead guilty if he knew the government’s evidence. There is much to be said in support of these criticisms. The Russians proposed that this indictment should furnish to the court and to the defendants a dossier of the evidence, including statements of all the witnesses and all documents relied upon. Our compromise was that the indictment should contain much more than would be customary in the United States, while giving the defendant much less information than would be given in France, Germany or Russia.13 This longer form of indictment was used in subsequent proceedings. The indictment for the International Military Tribunal for the Far East contained 55 counts (including 36 counts charging crimes against peace) and 5 appendices. Similar indictments were used in the Control Council Law No. 10 trials, although Ordinance No. 7 (governing those cases) provided that the indictment should state plainly, concisely and with sufficient particulars to inform the defendant of the offences charged (Article IV (a)). The rationale for the longer form of indictment was explained by the Tribunal in the Judgement in U.S. v. Josef Alstötter (the Justice case): No defendant is specifically charged in the indictment with murder or abuse of any particular person… Simple murder and isolated instances of atrocities do not constitute the gravamen of the charge. Defendants are charged with crimes of such immensity that mere specific instances of criminality appear insignificant by comparison… The record is replete with evidence of specific criminal acts but they are not the crimes charged in the indictment. They constitute evidence

11 See, for instance, Q.Wright, The Nuremberg Trials, 27 (No. 5) Chicago Bar Record (April 1946), 208. 12 A.Tusa & J.Tusa, The Nuremberg Trial (1995), 113–114. 13 R.Jackson, Nuremberg in Retrospect: Legal Answers to International Lawlessness, 35 ABA Journal (Oct. 1949), 816.


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of the intentional participation of the defendants and serve as illustrations of the nature and effect of the greater crimes charged in the indictment. Thus it is that the apparent generality of the indictment was not only necessary but proper. No indictment couched in specific terms and in the manner of the common law could have encompassed within practical limits the generality of the offense with which these defendants stand charged.14 Similarly, another Tribunal said: The crimes against the defendants in this indictment do not consist of single or isolated acts but of a long and continuous series resulting from plans and schemess carefully laid out and matured long prior to their execution; they differ from usual offenses which are directed against the life, limb, property or reputation of an individual.15 The Statute of the ICTY provides that the indictment shall contain a concise statement of the facts and the crime or crimes with which the accused is charged (Article 18(4)). (This provision is reflected in Rule 47(C) of the Rules.) In fact, indictments before the ICTY have followed a broad form. Such indictments normally contain a background section, followed by general allegations against the individual accused and end with the specific counts; the counts are prefaced by paragraphs setting out the circumstances of the various alleged offences. This has led one Trial Chamber to say that as a general rule, the degree of particularity required in indictments before the International Tribunal is different from, and perhaps not as high as, the particularity required in domestic criminal law jurisdictions… The massive scale of the crimes with which the International Tribunal has to deal makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes.16

IV. Challenges to the form of the indictment IV.A. An historical note On occasion defendants in the Control Council Law No. 10 cases complained that an indictment did not meet the standards set in Ordinance No. 7. In U.S. v. Karl 14 U.S. v. Josef Alstötter, et al. (Justice case), Case 3, 3 NMT, n. 4 above, 984–985. 15 U.S. v. Ernst von Weizsaecker, et al. (Ministries case), Order of the Tribunal Denying Defense Motions, 5 Jan. 1948, and the Tribunal Memorandum Thereon, 15 NMT, n. 4 above, 258–60. 16 Kvocka, et al., Dec., 12 April 1999.

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Brandt, et al.,17 the defendant Schaefer filed a motion complaining that the section of the indictment concerning sea water experiments, with which he was charged, did not meet the necessary standards because it did not allow the defendant to deduce with what criminal activity he was charged. The Prosecution robustly replied that the indictment did meet these standards, there could be no “doubt in the mind of [the accused] as to the offense charged”, what he requested would necessitate extending the length of the indictment beyond reason and the pleading of the facts of the crime did not require “the specification of each act by the defendant with respect to that crime”. The Tribunals usually denied these motions without giving reasons (and did so on this occasion).18 IV.B. The modern cases Although there has never been a successful application to have an entire indictment dismissed on grounds of vagueness, the Trial Chambers have dismissed portions of indictments for not meeting the requirements of Rule 47 (C) of the ICTY Rules. Thus, in Tadic, the Trial Chamber noted in relation to a particular paragraph that “it says nothing specific about the accused’s conduct, about what was the nature and the extent of his participation in the several courses of conduct (deportation, transfer, confinement) which are alleged over the months in question.” (The Trial Chamber then granted leave for the Prosecution to amend the indictment.)19 On the other hand, another Trial Chamber rejected a motion which challenged an indictment for vagueness, finding that the indictment provided adequately the place, approximate date, names of the victims, description of the underlying conduct and information about the participation of the accused and others; “[I]n sum, each count of the indictment against Zdravko Mucic gives him warning of the nature of the crimes with which he is charged and sets out the factual basis of the charges”.20 Whether sufficient detail is provided in a particular case will depend on the nature of the charges and the circumstances of that case. As a Trial Chamber of the International Criminal Tribunal for Rwanda has observed: “Whilst, prima facie, the accused should be informed in as great detail as possible of the elements of the offence against them, such details will necessarily depend on the nature of the alleged crimes”.21

17 US v. Karl Brandt, et al. (Medical case), Denial of Motion of Defendant Schaefer in the Medical Case Requesting that the Prosecution “Supplement the Indictment”, 15 NMT, n. 4 above, 243–46. 18 Medical case, Order of Tribunal I, Denying Motion, 3 Dec. 1946. 15 NMT, n. 4 above, 247. 19 Tadic (IT-94–1-T), Dec., 14 Nov. 1995, para 12. 20 Mucic (IT-96–21-T), Dec., 8 July 1996, para. 2. 21 Kayishema and Ruzindana (ICTR-95–1-T), Judgement, 21 May 1999, para. 84. In Blaskic, Dec., 4 April 1997, the Trial Chamber held that certain expressions such as “including, but not limited to”, or “among others” were vague and should not be used in an indictment.


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IV.C. Motions for particulars of indictments While no indictment has been dismissed, applications for particulars of the indictment have been upheld. Thus one Trial Chamber held that an accused was entitled to particulars “necessary in order for an accused to prepare his defence and to avoid prejudicial surprise”.22 In this connection a distinction must be “drawn between the material facts upon which the prosecution relies (which must be pleaded) and the evidence by which those material facts will be proved (which must be provided by way of pre-trial discovery)”.23 In the former case an insufficiently pleaded indictment may be susceptible to a challenge for particulars. (Materials provided in pre-trial discovery cannot then be used to fill gaps in the indictment.) In Krnojelac24 the Trials Chamber said that if the Prosecution could not be more specific because the witness statements in its possession did not allow it to be so, the question would arise as to whether it would be fair to the accused to permit such an imprecise charge to proceed. The Trial Chamber said “the absence of such information effectively reduces the defence of the accused to a mere blanket denial: he will be unable, for example, to set up any meaningful alibi, or to cross-examine the witnesses by reference to surrounding circumstances as would exist if the acts charged had been identified with reference to some more precise time or other event or surrounding circumstances”25. (The Prosecution was required to make substantial amendments to the Indictment). Accordingly, where appropriate, the Indictment should contain information as to (a) the identity of the victims and co-perpetrators (if any); (b) the place and the approximate date of the alleged offences; and (c) the means by which the offences were committed. These requirements will be separately discussed: (a) Identification of victims and co-perpetrators. On various occasions Trial Chambers have concluded that the massive scale of the crimes alleged does not always allow the Prosecution to identify victims and perpetrators with precision.26 In the case of perpetrators whose identification by name is not possible, at least reference should be made to their “category”: e.g., camp guards, soldiers, etc. “If the events themselves are sufficiently identified, the names of the victims are of less importance”.27 (b) Date of offence. Decisions of Trial Chambers have varied as to the degree of precision required. The Chamber in Blaskic held that “from about May 1992 to

22 23 24 25 26 27

Mucic, Dec., 8 July 1996, para. 9. Krnojelac (IT-97–25-PT), Dec., 24 Feb. 1999, para. 12. Knrojelac, Dec., 24 Feb. 1999, para. 40. Ibid. Blaskic (IT-95–14-PT), Dec., 4 April 1997. Kvocka, et al., Dec., 12 April 1999 (see n. 16 above). Krnojelac, Dec., 24 Feb. 1999, para. 60.

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about April 1994” was too vague. (However, the Trial Chamber did note that the time period of violations of humanitarian international law may in general be vague.)28 In Aleksovski, the Trial Chamber held that the time period alleged in that case (the first five months of 1993) was sufficiently circumscribed.29 On the other hand, in Krnojelac the Trial Chamber took the view that the finding in Aleksovski wrongfully placed a burden on the accused to know what he was actually doing during the relevant period rather than to know what he was charged with: “it cannot be assumed that the two are the same”. The Trial Chamber in Krnojelac said that the Prosecution was required to specify at least the approximate time (within a reasonable range) when each offence is alleged to have taken place. (The Chamber held that in the circumstances of that case, April 1992 to August 1993 was not a reasonable range).30 In similar vein, a Trial Chamber of the ICTR has said that “where timing is of material importance to the charges, then the wording of the count should lift the offence from the general to the particular”.31 It is submitted that this latter statement correctly describes the law. What is “a reasonable range” will depend on the circumstances of the particular offence. (c) Means by which the alleged offences were committed. It has been common for indictments to list most (if not all) types of participation provided for under Article 1 of the Statute. According to the Trial Chamber in Krnojelac, “what must be clearly identified by the prosecution so far as the individual responsibility of the accused…is concerned are the particular acts of the accused himself or the particular course of conduct on his part which are alleged to constitute that responsibility”.32 In this connection mutually exclusive alternative formulations of guilt (e.g., “knew”; “had reason to know”) are recognised in military manuals and under humanitarian law and do not render an indictment fatally vague.33 On the other hand, the indictment must be reviewed in the light of whether or not the accused has been able to prepare his defence, and although nothing prevents the prosecution from pleading these alternative grounds of responsibility, the factual allegations supporting either alternative must be sufficiently precise.34 Thus in Furund•ija the Trial Chamber instructed the Prosecution to file a document specifying how the accused was alleged to have been individually responsible for the alleged offences in the indictment.35

28 Blaskic, Dec., 4 April 1997, para 23. 29 Aleksovski (IT-95–14/1-PT), Dec., 25 Sept. 1997. It may be noted that the Prosecution advanced a similar argument in the Medical case, n. 17 above, when it said that “the pleading of the ultimate facts of the crime does not require the specification of each act of the defendant with respect to that crime. The defendant is his own best informant as to such matters”. Such an assumption may be in violation of the presumption of innocence. 30 Krnojelac, Dec., 24 Feb. 1999, paras. 38–42. 31 Kayishema and Ruzindana, Judgement, 21 May 1999, para. 86. 32 Krnojelac, Dec., 24 Feb. 1999, para. 13. 33 Delic (IT-96–21-T), Appeals Chamber Dec., 6 Dec. 1996, para. 31. 34 Blaskic, Dec., 4 April 1997, para. 32. 35 Furund•ija (IT-95–17/1-PT), Order, 19 March 1998.


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On the other hand, the following challenges to the form of indictments have been held not to be sustainable: (a) Challenges to the background section. This is because the background section is no more than introductory, makes no specific charges and is “intended only to place in their context the material facts which are alleged in the indictment”.36 (b) Challenges relating to the facts alleged in the indictment. Trial Chambers have consistently held that motions relating to the form of the indictment are not the appropriate forum in which to make challenges as to the alleged facts.37 (c) Challenges based on a lack of elaboration of the law. It has been held that the elements of crimes and concepts such as command responsibility do not need elaboration in the indictment.38 Similarly, the Appeals Chamber has held that the principle of nullums crimen sine lege is not violated if an indictment refers solely to the Articles of the Statute, rather than to corresponding norms of international humanitarian law.39 IV.D. Motions to dismiss portions of the indictment for failure to establish jurisdiction Such motions are presented on the grounds of failure to establish jurisdiction over the charges alleged in a particular portion of the indictment. Examples of successful motions of that nature are found in the Medical, Justice, and Pohl cases. The first count of the indictment in each of those cases was entitled “the common design or conspiracy”. The Defence moved to have this count dismissed on the ground that Control Council Law No. 10 did not define conspiracy to commit war crimes and crimes against humanity as a crime. A joint session was held of all the Tribunals involved, and within one week each of the three Tribunals made similar orders that “neither the Charter of the IMT nor Control Council Law No. 10 has defined conspiracy to commit a war crime or a crime against humanity as a separate substantive crime. Therefore, this Tribunal has no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offence”.40

36 Krnojelac, Dec., 24 Feb. 1999, para. 24; Delalic, Dec., 2 Oct. 1996; Delic, Dec., 15 Nov. 1996. 37 See for instance Delic, Appeals Chamber Dec., 6 Dec. 1996, paras. 37–40. 38 Blaskic, Dec., 4 April 1997; Krnojelac, Dec., 24 Feb. 1999, paras. 18–21; Kvocka, et al., Dec., 12 April 1999, para. 36. 39 Delic, Appeals Chamber Dec., 6 Dec. 1996, paras. 25–28. 40 15 NMT, n. 4 above, 233–35: Order of the Tribunal in the Justice case, 11 July 1947, Concerning the Defence Motion against Count One of the Indictment (ibid., p. 235). The count in question also charged unlawful participation in the commission of war crimes and crimes against humanity and the Tribunal could therefore not strike the whole of count one from the indictment. But the Tribunal stated that it would disregard the charge insofar as it charged the commission of the alleged crime of conspiracy as a separate substantive offence. A similar order in the Pohl case of 18 July 1947 stated that count one would be quashed and stricken from the indictment. (Ibid., 236–37)

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In the practice of the ICTY these motions have usually been denied on one (or both) of the following grounds: (a) the necessary jurisdiction exists in the Statute or in customary international law,41 or (b) disputes as to the law are more fairly resolved at trial when issues of fact will have become clearer and both parties will have an opportunity to make submissions both as to facts and law.42 In Blaskic and Kordic and Cerkez it was submitted that jurisdiction had not been established in relation to superior responsibility where there had been a “failure to punish”. In both cases the Trial Chamber held that there was at this stage of the proceedings no ground for striking the clause about “failure to punish” from the indictment, and that this was a mixed question of fact and law which should be resolved at trial.43 (An added consideration may be that the indictment has already been deemed to meet the prima facie standard necessary for confirmation by a judge of the International Tribunal under Article 19 (1) of the Statute.)44 V. Number of violations According to Article 1 of its Statute, the International Criminal Tribunal for the former Yugoslavia was established to “prosecute persons responsible for serious violations of international humanitarian law”. (Article 1 of the Statute of the Rwanda Tribunal is in similar terms). It has been held that such violations must constitute “a breach of a rule protecting important values…[and involving] grave consequences for the victim”.45 As a result, the accused will often be charged with multiple violations. However, a single violation may form the subject of an indictment provided that it was committed as a war crime. Thus serious sexual assault has been held to be an international crime if committed as a war crime or as a crime against humanity.46

41 Furund•ija, Dec., 29 May 1998; Kordic and Cerkez (IT-95–14/2-PT), Dec., 1 March 1999. 42 Blaskic, Dec., 4 April 1997, para. 7: “When reviewing the case-law, it is to be noted that this is the solution generally adopted by Tribunals, including and especially those at Nuremberg and Tokyo, which, when dealing with similar questions, did not resolve them at pre-trial stage”; Furund•ija, Dec., 29 April 1998; Kovacevic, Dec., 7 July 1998. 43 Blaskic, Dec., 4 April 1997; Kordic and Cerkez, Dec., 2 March 1999. 44 Kovacevic, Dec., 3 July 1998. 45 Tadic, Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, para. 94 (iii). The Appeals Chamber went on to say that the appropriation by a combatant of a loaf of bread in an occupied village, though technically a violation of Art. 46, para. 1 of the Hague Regulations, would not amount to a serious violation of international humanitarian law. 46 Furund•ija, Judgement, 10 Dec. 1998, para. 184. The Trial Chamber pointed out that such assaults are often committed in time of armed conflict on defenceless civilians; hence the offence is “not simple sexual assault but sexual assault as a war crime or crime against humanity”.


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Where the accused is charged with a number of offences, the charges may be framed in the alternative. In such a case no problems arise. However, the charges also may be framed cumulatively, i.e., an accused may be charged with one or more offences arising from the same set of facts. The Tribunals trying crimes committed during the Second World War did not differentiate clearly between war crimes and crimes against humanity and often convicted for both. For example, the indictment presented to the International Military Tribunal for the Far East contained different legal charges based upon the same facts.47 Similarly, the Statute of the ICTY does not prohibit cumulative charging. For example, a murder of an individual or group of persons may be charged cumulatively as (i) killing under Article 2 (Grave Breaches); (ii) murder under Article 3 (Violations of the laws or customs of war); (iii) killing ofs members of a group under Article 4 (Genocide); and (iv) murder under Article 5 (Crimes against Humanity). In support of this practice the Prosecution has argued that the Articles of the Statute have distinct objects and purposes and contain substantially different elements, and that it is in the interests of international justice to convict the accused of all provisions charged cumulatively when the Prosecution has proved that the accused is guilty on each charge.48 On the other hand, the defence has opposed the practice, arguing that it violates (i) the laws of the former Yugoslavia; (ii) the notion of double jeopardy familiar to common lawyers; (iii) notions such as concursus idealis or lex specialis familiar to civil lawyers.49 The two ad hoc Tribunals have reacted differently to questions arising from the practice. Trial Chambers of the ICTY have thus far allowed cumulative charging. In the Decision on the form of the indictment in Tadic the Trial Chamber disposed of the issue by stating that “this is a matter that will only be at all relevant insofar as it might affect penalty” and “it can best be dealt with if and when matters of penalty fall for consideration”.50 This Decision was applied by several subsequent Trial Chambers51 and upheld by the Appeals Chamber in Delic.52 In Kupreckic, et al., the

47 The indictment put an alternative charge of murder to the charge of aggressive war for two reasons; it was considered that those who initiated aggressive wars should be recognised as ordinary murderers as well as being in a special category of their own, and also to alleviate any possible doubts as to the charge of aggressive war being considered as ex post facto (based upon a legislative act of the victorious parties): A.S.Comyns Carr, The Judgement of the International Military Tribunal for the Far East, 34 Problems of Public and International Law (The Grotius Society, 1949), 34, 142. 48 For example, see Prosecutor’s Response to the Trial Chamber’s Request for a Brief on the Use of Cumulative Criminal Charges in Relation to a Proposed “Substantive” Non Bis In Idem Principle in International Criminal Law, Dokmanovic, 10 Feb. 1998, para. 23. 49 Dutch Penal Code Art. 55. See also “Defense’s response to Prosecutor’s brief on the Permissibility of Charging Criminal Violations under the Same Articles of the Statute Based on Conduct Arising from a Single Incident”, Kupreskic, et al. (IT-95–16-PT), 13 Nov. 1998. 50 Tadic, Dec., 14 Nov. 1995. 51 Delalic, Dec., 2 Oct. 1996; Landzo (IT-96–21-T), Dec., 15 Nov. 1996. 52 Delic, Dec., 6 Dec. 1996. Although in Blaskic the Trial Chamber invited the Prosecution to decide whether a particular act fell under “the precise scope of Article 2…or under the broader scope of Article 3” (while, however, noting that both these characterisations could be chosen). Blaskic, Dec., 4 April 1997, para. 38.

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Trial Chamber said that “the Prosecutor may be justified in bringing cumulative charges when the Articles of the Statute referred to are designed to protect different values and when each Article requires proof of a legal element not required by the others”.53 In Krnojelac the Trial Chamber dismissed an argument that Articles 2, 3 and 5 were mutually exclusive because “each Article is designed to protect different values, and each requires proof of a particular element which is not required by the others. It therefore does not follow that the same conduct cannot offend more than one of those values and thus fall within more than one of those Articles”.54 The Trial Chamber concluded: The Prosecution must be allowed to frame charges within the one indictment on the basis that the Tribunal of fact may not accept a particular element of one charge which does not have to be established for the other charges, and in any event in order to reflect the totality of the accused’s criminal conduct so that the punishment imposed will do the same.55 On the other hand the Trial Chambers of the ICTR have been prepared to set limits to this practice. In Akayesu, the Trial Chamber concluded on the basis of national and international jurisprudence that it was acceptable to convict an accused of two offences based on the same facts provided a three-tier test was met: (1) where the offences have different elements; (2) where the provisions creating the offences protect different interests; and (3) where it is necessary to record a conviction for both offences in order fully to describe what the accused did.56 However, the Trial Chamber held that it was not acceptable to convict an accused of two offences based on the same set of facts where “(a) one offence is a lesser included offence of the other, for example, murder and grievous bodily harm, robbery and theft, or rape and indecent assault; or (b) where one offence charges accomplice liability and the other offence charges liability as a principal, e.g., genocide and complicity in genocide”.57 The test in Akayesu was applied in Kayishema and Ruzindana, where the Trial Chamber held that there was an overlap in the crimes charged and that counts charging extermination and murder as crimes against humanity were subsumed fully by a count charging genocide:58 [B]ecause the crime of genocide is established against the accused persons, then they cannot simultaneously be convicted for murder and/or extermination, in this case. This would be improper as it would amount to convicting the accused person twice for the same offence. This, the Trial Chamber deems to be highly

53 54 55 56 57 58

Kupreckic, et al., Dec., 15 May 1998. Krnojelac, Dec., 24 Feb. 1999, para. 8. Ibid., para. 10. Akayesu (ICTR-96–4-T), Judgement, 2 Sept. 1998, para. 468. Ibid., para. 468. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 648.


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prejudicial and untenable in law in the circumstances of this case. If the Prosecution intended to rely on the same elements and evidence to prove all three types of crimes, it should have charged in the alternative. As such, these cumulative charges are improper and untenable.59 It follows that the practice of cumulative charging is one that is ripe for consideration by the Appeals Chamber. Until that Chamber resolves the matter, it would appear likely that the two Tribunals will follow their own practices.

s

59 Ibid., para. 649.

29 Contributions of the International Criminal Tribunals to the development of substantive international humanitarian law Gabrielle Kirk McDonald* I. Introduction Prior to the creation of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda in 1993 and 1994 respectively,1 judicial pronouncements upon legal issues in the field of international humanitarian law2 in the past half-century had been few and far between.3 These Tribunals are the

*

Opinions are personal. The author gives special appreciation to Daryl A.Mundis and Renee C. Pruitt for their invaluable assistance in preparing this chapter. 1 The International Criminal Tribunal for the former Yugoslavia (hereinafter, “the Yugoslav Tribunal” or “ICTY”) was established in 1993 by the Security Council pursuant to Resolution 827. S/RES/827 (3 May 1993). See also S/RES/808 (22 February 1993) (directing the Secretary-General to prepare a report on all aspects of the matter of establishing an international tribunal “for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”). The International Criminal Tribunal for Rwanda (hereinafter, “the Rwanda Tribunal” or “ICTR”) was established in 1994 by the Security Council pursuant to Resolution 955, to prosecute persons “responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States” during 1994. S/RES/955 (8 November 1994). Collectively, these Tribunals shall be referred to as “the International Criminal Tribunals”. Both the ICTY and ICTR are composed of three Trial Chambers of three Judges each. Pursuant to ICTR Statute Article 12(2), the five Judges of the ICTY Appeals Chamber also serve as the Appeals Chamber for the ICTR. The Appeals Chamber is composed of five Judges and presided over by the President of the ICTY See ICTY Statute Articles 12(b) and 14(2). 2 International humanitarian law is the modern term encompassing what was previously referred to as the law of armed conflict or the law of war. One prominent international legal scholar has defined international humanitarian law as “(T]hat body of norms that protects certain categories of persons and property and prohibits attacks against them during the course of armed conflicts be they of an international or non-international character.” See M.Cherif Bassiouni, The Normative Framework of International Humanitarian Law: Overlaps, Gaps and Ambiguities, 8 Transnational Law and Contemporary Problems (1998), 199–273, at 200. 3 Cases involving international humanitarian law have arisen, on occasion, before national courts. See, for example, Matter of Barbie, (France) Court of Cassation (Criminal Chamber), 6 October 1983 and 26 January 1984 and Court of Cassation (Criminal Chamber), 20 December 1985, 78 ILR 125 (crimes against humanity); and United States v. Calley, 22 USCMA 534, 48 CMR 19 (U.S. Court of Military Appeals 1973) and Calley v. Callaway, 519 F.2d 184 (United States 5th Cir. 1975), cert. denied, 425 US 911 (1975) (war crimes). 446

Contributions of the International Criminal Tribunals

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first international bodies to apply this important corpus of law since the Nuremberg and Tokyo trials convened in the wake of the Second World War. In the 50 years since the conclusion of those trials, international humanitarian law has undergone significant codification and development, and the jurisprudence of the International Criminal Tribunals reflects this change. From its inception in 1993, the ICTY has undergone significant growth and is now a fully functioning international criminal court. The first trial commenced in May 1996,4 and since then Judgements have been rendered in eight cases.5 Twelve cases, involving twenty-five accused, are in the trial or pre-trial stages,6 including Momcilo Krajišnik, President of the Bosnian Serb Assembly between October 1991 and November 1995 and General Momir Talic, the Chief of Staff of the Army ofs Republika Srpska. Similarly, the ICTR has delivered Judgements in seven cases.7 In addition, the ICTR has nearly forty persons in pre-trial custody, many of whom are major figures charged with the genocide found to have been committed that resulted in the deaths of as many as one million persons. By demonstrating that it is possible to hold individuals criminally liable for their participation in violations of international humanitarian law, the International Criminal Tribunals have been a major stimulus for the establishment of the International Criminal Court. After decades of inaction, the international community

4 5

Prosecutor v. Tadic, Case No. IT-94–1. Prosecutor v. Tadic, Opinion and Judgement, Case No. IT-94–1-T, Trial Chamber II, 7 May 1997; Prosecutor v. Erdemovic, Sentencing Judgement, Case No. IT-96–22-Tbis, Trial Chamber IIter, 5 March 1998; Prosecutor v. Delalic, and Others, Judgement, IT-96–21-T, Trial Chamber IIquater, 16 November 1998; Prosecutor v. Furund•ija, Judgement, Case No. IT-95–17/1-T, Trial Chamber II, 10 December 1998; Prosecutor v. Aleksovski, Judgement, Case No. IT-95–14/1-T, Trial Chamber Ibis, 25 June 1999; Prosecutor v. Jelisic, Judgement, Case No. IT-95–10-T, Trial Chamber I, 14 December 1999; Prosecutor v. Kupreškic and Others, Judgement, Case No. IT-95–16-T, Trial Chamber II, 14 January 2000; Prosecutor v. Blaštic, Judgement, Case No. IT-95–14, Trial Chamber I, 3 March 2000. 6 The four cases (with ten accused) currently in trial are: Prosecutor v. Kordic and Cerkez (IT-95–14/2-T) with two accused; Prosecutor v. Kvocka and Others (IT-98–30-T) with four accused; Prosecutor v. Kunarac and Others (IT-96–23-T and IT-96–23/1-T) with three accused; and Prosecutor v. Krstic (IT-98–33-T) with one accused. The following nine cases (with sixteen accused) are in various stages of pre-trial preparation: Prosecutor v. Krnojelac (IT-97–25-PT) with one accused; Prosecutor v. Simic and Others (IT-95– 9-PT) with four accused; Prosecutor v. Naletilic and Martinovic (IT-98–34-PT) with two accused; Prosecutor v. Galic (IT-98–29-PT) with one acused; Prosecutor v. Brôanin and Talic, (IT-99–37-PT) with two accused; Prosecutor v. Sikirica and Others (IT-95–8-PT) with three accused; Prosecutor v. Krajišnik (IT-00–39-PT) with one accused; Prosecutor v. Vasiljevic (IT-98–32-PT) with one accused; and Prosecutor v. Nikolic (IT95–2-PT) with one accused. The cases of Prosecutor v. Dokmanovic, IT-95–13a-T, and Prosecutor v. Kovacevic, IT-97–24-T, were discontinued prior to the entry of judgement due to the deaths of the accused on 29 June 1998 and 1 August 1998, respectively. 7 Prosecutor v. Akayesu, Judgement, Case No. ICTR-96–4-T, Trial Chamber I, 2 September 1998; Prosecutor v. Kambanda, Judgement and Sentence, Case No. ICTR-97–23-S, Trial Chamber I, 4 September 1998; Prosecutor v. Kayishema and Ruzindana, Judgement, Case No. ICTR-95–1-T, Trial Chamber II, 21 May 1999; Prosecutor v. Serushago, Sentence, Case No. ICTR-98–39–1, Trial Chamber I, 5 September 1999; Prosecutor v. Rutaganda, Judgement, Case No. ICTR-96–3-T, Trial Chamber I, 6 December 1999; Prosecutor v. Musema, Case No. ICTR-96–13-T, Trial Chamber I; 27 January 2000; and Prosecutor v. Ruggiu, Case No. ICTR-97–32-T, Trial Chamber I, 1 June 2000.

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finally indicated, with the signing of the Rome Statute of the International Criminal Court (“ICC Statute”) on 17 July 1998, its intent to establish a permanent international organisation dedicated to enforcing international humanitarian law. This essay will focus on the contributions of the International Criminal Tribunals to the substantive development8 of international humanitarian law, delineating the extensive jurisprudence concerning the elements9 of war crimes, crimes against humanity, genocide and grave breaches of the four Geneva Conventions. In addition, this essay will highlight a few of the many contributions of Judge Li Haopei, who took, as one of the original 11 Judges of the ICTY, a strong and pro-active role in the formulation of the Rules of Procedure and Evidence and left a lasting contribution to the development of substantive international humanitarian law through the opinions he authored.10 II. Competence of the International Criminal Tribunals To fully understand the contributions of the ICTY and ICTR to the development of international humanitarian law, it is necessary to first examine the competence of the Tribunals. Pursuant to Article 1 of the Statutes of both Tribunals, the ICTY and ICTR have competence over serious violations of international humanitarian law. As noted in the Secretary-General’s Report11, the primary sources of international humanitarian law include:

8 For analyses of the Pre-trial, Trial and Appellate Procedures and Practices of the International Criminal Tribunals, see Lal Chand Vohrah, Pre-Trial Procedures, in O.Swaak-Goldman & Gabrielle Kirk McDonald (eds.), Substantive and Procedural Aspects of International Criminal Law (2000); Gabrielle Kirk McDonald, Trial Procedures and Practice, in ibid.; and Adolphus G.Karibi-Whyte, Appeal Procedures and Practices, in ibid. 9 The elements are the “ingredients” of the offences that must be proven by the Prosecutor beyond a reasonable doubt in order for a conviction to result. 10 Judge Li, while sitting on the Appeals Chamber, participated in the following important Decisions and Judgements: Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94–1-AR72, Appeals Chamber, 2 October 1995; Prosecutor v. Erdemovic, Judgement, Case No. IT-96–22-A, Appeals Chamber, 7 October 1997; and Prosecutor v. Blaškic, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Case No. IT-95–14AR108bis, Appeals Chamber, 29 October 1997. 11 On 3 May 1993, the Secretary-General of the United Nations presented a report to the Security Council pursuant to Security Council Resolution 808. Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (22 February 1993), (“Secretary-General’s Report”), S/25704 and Add. 1. The Secretary-General’s Report requires the ICTY to apply rules of international humanitarian law that are “beyond doubt part of customary law”. Ibid., para. 34. Article 38(1) of the Statute of the International Court of Justice sets forth what are widely recognized as the sources of international law. Pursuant to sub-paragraph (b) of that article, customary international law is defined as a “general practice accepted as law.” Similarly, §102(2) of the Third Restatement of the Foreign Relations Law of the United States provides that customary international law “results from a general and consistent practice of States followed by them from a sense of legal obligation.”


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(a) The four Geneva Conventions of 1949,12 (b) The Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto of 1907,13 (c) The Genocide Convention of 1948,14 and (d) The Charter of the International Military Tribunal of 1945 (“the Nuremberg Charter”).15 Each of these documents reflect customary international law and provide the cornerstone of the substantive law of the International Criminal Tribunals. The offences over which the International Criminal Tribunals have jurisdiction are grave breaches of the Geneva Conventions of 1949 (ICTY only); violations of the laws ors customs of war (ICTY only); genocide; crimes against humanity; and violations of common Article 3 of the Geneva Conventions and Additional Protocol II thereof. Because the International Criminal Tribunals are ad hoc creations of the Security

12

13 14 15

Consequently, customary international law consists of two essential components: state practice and a sense of legal obligation, often called opinio juris. State practice is best defined as official government conduct. The opinio juris requirement means that in order for a rule to be binding, it must be deemed by States to be obligatory as a matter of law. Only if both of these elements are present does customary international law exist. This requirement was inserted to ensure that the principle of nullum crimen sine lege was not violated and to meet two concerns. First, not all States are parties to all of the treaties governing international humanitarian law. Second, because international humanitarian law exists in both customary international law and conventional law, there is some customary international law that is not reflected in conventional law. Conversely, there is some conventional law that has become part of customary international law and some conventional law that has not yet achieved the status of customary international law. See Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, (“Tadic Interlocutory Appeal Decision”), Case No. IT-94–1-AR72, Appeals Chamber, 2 October 1995, para. 143 (“It should be emphasised again that the only reason behind the stated purpose of the drafters that the International Tribunal should apply customary international law was to avoid violating the principle of nullum crimen sine lege in the event that a party to the conflict did not adhere to a specific treaty”). See also Secretary-General’s Report, para. 35. Convention on the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, Convention relative to the Treatment of Prisoners of War of 12 August 1949, and Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949. 75 UNTS 970–973. Carnegie Endowment for International Peace, The Hague Conventions and Declarations of 1899 and 1907 (1915), 100. 78 UNTS 1021. The Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed at London, England on 8 August 1945. 82 UNTS 251. See also Judgement of the International Military Tribunal for the Prosecution and Punishment of the Major War Criminals of the European Axis (United States Government Printing Office, Nazi Conspiracy and Aggression, Opinion and Judgement) and UN General Assembly Resolution 95(I) of 11 December 1946 on the Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal.

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Council and were not intended to be permanent and universal international criminal courts, both operate under limits on their temporal and territorial jurisdiction. With respect to temporal and territorial jurisdiction, Article 8 of the ICTY Statute provides that the Yugoslav Tribunal shall have jurisdiction over events occurring on the territory of the former Socialist Federal Republic of Yugoslavia, including its land surface, airspace and territorial waters, for events occurring after 1 January 1991. The Statute is silent as to the terminal date for the Yugoslav Tribunal’s temporal jurisdiction. Article 7 of the ICTR Statute establishes that the Rwanda Tribunal has jurisdiction over the territory of Rwanda and the “territory of neighbouring States in respect of serious violations of international humanitarian law committed by Rwandan citizens”. Such acts must have been committed between 1 January and 31 December 1994. III. Individual accountability One of the most significant contributions of the International Criminal Tribunals is that they have advanced the concept of individual accountability under international humanitarian law. The statutory provisions governing individual accountability serve as the bedrock for the enforcement of international norms proscribing criminal behaviour, since it is individuals that commit violations of the law. “Individual Criminal Responsibility” is the subject of ICTY Statute, Article 7 and ICTR Statute, Article 6. These provisions are substantively identical and contain four sub-paragraphs reflecting various concepts of individual accountability under international criminal law. Sub-paragraph 1 extends criminal liability to any individual who plans, instigates, orders, commits or otherwise aids and abets in the planning, preparation or execution of a crime as set forth in the Statute. This paragraph has the effect of criminalizing— and giving the Tribunals jurisdiction of—not only the direct commission of the crime, but also the conduct of individuals who assist in the perpetration of the crime as well. This concept was confirmed in the Tadic case, wherein Trial Chamber II of the ICTY analysed customary international law as it relates to criminal accountability.16 The Trial Chamber concluded that there is a “basis in customary international law for both individual responsibility and of participation in the various ways provided by Article 7 of the Statute”.17 Consequently, the Trial Chamber convicted the accused of one count of cruel treatment under Article 3(1)(a) and one count of inhumane acts under Article 5(i) for his intentional and substantial assistance in inflicting suffering on the victim, notwithstanding a lack of direct evidence that he physically participated in the beating of that victim.18

16 See Prosecutor v. Tadic, Opinion and Judgement (“Tadic Opinion”), Case No. IT-94–1-T, Trial Chamber II, 7 May 1997, paras. 661–69. 17 Ibid., para. 669. 18 Ibid., paras. 731–38.


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Trial Chamber II expanded on the law pursuant to Article 7 in Prosecutor v. Furund•ija,19 where it undertook an extensive analysis of aiding and abetting, after which it concluded that [I]t is not necessary for the accomplice to share the mens rea of the perpetrator, in the sense of positive intention to commit the crime. Instead, the clear requirement in the vast majority of cases is for the accomplice to have knowledge that his actions will assist the perpetrator in the commission of the crime.20 In addition to disallowing defences based on non-participation in the actual “act”, this Article prevents the accused from raising his or her official governmental positions as a defence. Specifically, sub-paragraph 2 of ICTY Statute, Article 7 and ICTR Statute, Article 6 provide that: “The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.” Nor are superiors immune from prosecution. Sub-paragraph 3 sets forth the principle of superior or command responsibility. Under this theory, a subordinate’s offence is attributable to the superior if the superior (i) knew or had reason to know that the subordinate was about to commit or had committed such an offence and (ii) failed to take the necessary and reasonable measures to prevent such acts or to punish the subordinate.21 This principle has been applied in cases before both International Criminal Tribunals. In the Celebici case,22 Trial Chamber IIquater of the ICTY found Zdravko

19 Case No. IT-95–17/1-T. 20 Prosecutor v. Furund•ija, Judgement (“Furund•ija Judgement”), Case No. IT-95–17/1-T, Trial Chamber II, 10 December 1998, para. 245. See also Tadic Opinion, n. 16 above, para. 666 (“The concept of direct individual criminal responsibility and personal culpability for assisting, aiding and abetting, or participating in, in contrast to the direct commission of, a criminal endeavour or act also has a basis in customary international law”); Prosecutor v. Delalic and Others, Judgement (Celebici Judgement”), IT-96– 21-T, Trial Chamber IIquater, 16 November 1998, paras. 319–329; Prosecutor v. Aleksovski, Judgement (“Aleksovski Judgement”), Case No. IT-95–14/1-T, Trial Chamber Ibis, 25 June 1999, paras. 62–63 (noting that criminal responsibility may arise for participation that occurs before, during or after the criminal act is committed and stating that “[s]uch participation need not be manifested through physical assistance. Moral support or encouragement expressed in words or even by the mere presence at the site of the crimes have at times been considered sufficient to conclude that the accused participated”); Prosecutor v. Jean-Paul Akayesu, Judgement (“Akayesu Judgement”), ICTR-96–4-T, Trial Chamber I, 2 September 1998, para. 472 (“in addition to responsibility as principal perpetrator, the Accused can be held responsible for the criminal acts of others where he plans with them, instigates them, orders them or aids and abets them to commit those acts”). 21 Article 28 of the ICC Statute addresses “Responsibility of commanders and other superiors”. This provision is divided into two sub-categories: military commanders and other superior and subordinate relationships. With respect to the latter category, Article 28(2)(b) requires, inter alia, the alleged crimes concerned to have been committed “within the effective responsibility and control of the superior” in order for responsibility to attach to the superior. 22 Celebici Judgement, n. 20 above. See also Aleksovski Judgement, n. 20 above, paras. 66–81.

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Mucic criminally liable for the acts committed by camp guards under his authority, despite that Mucic was a civilian and was not acting as camp commander pursuant to any de jure authority.23 In the Akayesu case, ICTR Trial Chamber I found the accused—a civilian—guilty of genocide, relying on sub-paragraphs 1 and 3 of ICTR Statute, Article 6. The Trial Chamber acknowledged the controversial nature of command responsibility as it relates to civilians, stating that: [T]he application of the principle of individual criminal responsibility, enshrined in Article 6(3), to civilians remains contentious. Against this background, the Chamber holds that it is appropriate to assess on a case by case basis the power of authority actually devolved upon the accused in order to determine whether or not he had the power to take all necessary and reasonable measures to prevent the commission of the alleged crimes or to punish the perpetrators thereof.24 Based on these rulings, it is apparent that criminal liability is not limited to official commanders in the military sense, but can also attach to those with actual, albeit unofficial, authority over the actor actually committing the act from which the injury directly resulted. Along these same lines, sub-paragraph 4 of ICTY Statute, Article 7 and ICTR Statute, Article 6 reflect the Nuremberg principle that reliance on the order of a superior is not a defence to the commission of a crime. Regarding the related issue of duress as a defence, the Appeals Chamber held in Prosecutor v. Erdemovic25 by three votes to two, that duress does not afford a complete defence to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent civilians.26 Regarding this point, Judge Li, in his Separate and Dissenting Opinion, wrote:

23 Celebici Judgement, n. 20 above, paras. 722–775. In making this finding, the Trial Chamber stated: “The conduct of Zdravko Mucic towards the guards renders him criminally liable for their acts. Mr. Mucic was the de facto commander of the Celebici prison-camp. He exercised de facto authority over the prisoncamp, the deputy commander and the guards. Mr. Mucic is accordingly criminally responsible for the acts of the personnel in the Celebici prison-camp, on the basis of the principle of superior responsibility”. Ibid., para. 775. Two other accused in the Celebici case were also charged with responsibility as a superior, pursuant to Article 7(3), for the criminal acts of subordinates. With respect to Zejnil Delalic, the Trial Chamber undertook a lengthy analysis of his role in the camp before concluding that the Prosecution had failed to prove that he had command authority over the Celebici prison-camp, its commander, deputy commander or guards. Ibid., paras. 605–721. With respect to Hazem Delic, the Trial Chamber found that he was not in the chain of command of the camp and had no authority to issue orders to subordinates or to prevent or punish criminal acts of subordinates. Consequently, he was not found to be responsible under Article 7(3). Ibid., paras. 776–810. 24 Akayesu Judgement, n. 20 above, para. 491. 25 Prosecutor v. Erdemovic, Judgement (“Erdemovic Judgement”), Case No. IT-96–22-A, Appeals Chamber, 7 October 1997. 26 Ibid., 17. See also Erdemovic Joint and Separate Opinion of Judge McDonald and Judge Vohrah, para. 88, and Erdemovic Separate and Dissenting Opinion of Judge Li appended thereto.


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[A]s a general rule, duress can be a complete defence if the following requirements are met, (a) the act was done to avoid an immediate danger both serious and irreparable, (b) there was no other adequate means to escape, and (c) the remedy was not disproportionate to the evil. To this general rule there is an important exception: if the act was a heinous crime, for instance, the killing of innocent civilians or prisoners of war, duress cannot be a complete defence, but can only be a ground of mitigation of punishment if justice requires.27 As can be seen from the above referenced cases, the International Criminal Tribunals have built considerably upon international law with respect to individual accountability. The precedent of the Tribunals will undoubtedly aid the judges ands practitioners of the International Criminal Court in this area. IV. Statutory provisions and elements relating to the substantive offences When addressing the contributions of the International Criminal Tribunals with respect to specific offences, it is necessary to analyse the statutory provisions setting forth the subject matter jurisdiction of the International Criminal Tribunals. A thorough understanding of the statutory framework governing the substantive provisions is necessary to appreciate the differences and similarities among the underlying offences. For example, the killing by one person of another can fall within the scope of four distinct articles of the ICTY Statute depending on the factual circumstances. Thus, depending on the facts, the killing could be wilful killing under Article 2(a), murder under Article 3 or Article 5(a), and/or genocide under Article 4(a). As mentioned above, the Judges look to customary international law in determining the precise elements of the offences as defined in the Statute.28 In addition to analysing the statutory provisions, this section will set forth the elements of the various offences under each article of the Statutes of the International Criminal Tribunals,29 as has been determined by the case law to date.

27 Erdemovic Separate and Dissenting Opinion of Judge Li, para. 5. 28 It must be borne in mind that the only precedent for the trials conducted by the International Criminal Tribunals were the Nuremberg and Tokyo trials. Although those trials are certainly of great historical importance, the developments in international humanitarian law in the intervening period resulted in much of their jurisprudence being of limited value. For example, the Statutes of the International Criminal Tribunals rely heavily on the 1948 Genocide Convention and the four Geneva Conventions of 1949, all of which were enacted after the Nuremberg and Tokyo trials. 29 It is important to keep in mind that, in addition to the elements, the statutory requirements must be met in order for the accused to be found guilty of an offence. Thus, if the accused is charged with grave breaches, the victim must be a protected person within the meaning of the Statute. See discussion, infra. Only if the Trial Chamber concludes that the victim was a protected person would it then undertake an analysis of the elements of the underlying offence.

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IV.A. ICTY Statute, Article 2: Grave breaches of the Geneva Conventions of 1949 Article 2 of the ICTY Statute grants the ICTY the power to “prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949”, including the commission of several enumerated acts “against persons or property protected under the provisions of the relevant Geneva Convention”. IV.A.1. Protected persons The four Geneva Conventions of 1949 establish a grave breaches regime that proscribes certain types of behaviour30 directed against protected persons or property. In order for the ICTY to exercise jurisdiction over grave breaches, such violations must be committed in the context of international armed conflicts.31 Thus, for Article 2 to apply, the crime must have been committed in the course of an international armed conflict and directed against protected persons or property.32 Whether a conflict is international in character is not necessarily a straightforward determination. For example, the Appeals Chamber in the Tadic Interlocutory Appeal concluded that the conflict in the former Yugoslavia had both international and internal aspects.33 The Appeals Chamber determined that the Security Council, in establishing the ICTY, “intended to empower the International Tribunal to adjudicate violations of international humanitarian law that occurred in either context”.34 In his Separate Opinion,35 Judge Li concluded that the Appeals Chamber was faced 30 The following underlying offences are grave breaches if the target is a protected person or protected property: wilful killing; torture or inhuman treatment, including biological experimentation; wilfully causing great suffering or serious injury to body or health; extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or a civilian to serve in the armed forces of a hostile power; wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement of a civilian; taking civilians as hostages. See the following provisions of the four Geneva Conventions: Article 50, Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 31; Article 51, Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85; Article 130, Convention (III) Relative to the Treatment of Prisoners of War, 75 UNTS 135; and Article 147, Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287. See also ICTY Statute, Article 2. 31 Tadic Interlocutory Appeal Decision, n. 11 above, para. 84. There is no provision of the ICTR Statute governing grave breaches, since the conflict in Rwanda was internal and the grave breaches regime only applies to international armed conflicts. 32 Ibid., paras. 79–85. See also Prosecutor v. Tadic, Judgement (“Tadic Judgement”), Case No. IT-94–1-A, Appeals Chamber, 15 July 1999, para. 82 (“Only if the Appeals Chamber finds that the conflict was international at all relevant times will it turn to the second question of whether the victims were to be regarded as ‘protected persons’”). 33 Tadic Interlocutory Appeal Decision, n. 11 above, para. 77. 34 Ibid. 35 Ibid. and Separate Opinion of Judge Li on the Defence Motion for Interlocutory Appeal on Jurisdiction appended thereto.


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with two choices in making this determination.36 The first approach asserted on appeal was to look at the various conflicts in isolation. The second approach, asserted by the Prosecutor, was to look at the armed conflict in its entirety. The Appeals Chamber determined that the alleged crimes were committed in the context of an armed conflict, but left for the Trial Chamber the determination of whether that armed conflict was international or internal in character. Contrary to the majority, Judge Li would have taken the next step and made that characterisation: I must point out that, because the Decision has not determined that the armed conflict in the context of which the alleged criminal acts were committed was international in character, it has a flaw in that it has not established an importants element of the jurisdiction of this Tribunal under Article 2 over this case.37 As to the second requirement, the Appeals Chamber stated in the Tadic Interlocutory Appeal that “the offences listed under Article 2 can only be prosecuted when perpetrated against persons or property regarded as ‘protected’ by the Geneva Conventions under the strict conditions set out by the Conventions themselves”.38 The Fourth Geneva Convention sets forth the following requirements for determining if an individual is a protected person: (1) The person must be in the hands of: (a) a party to the conflict; or (b) an occupying power; and (2) The person must not be a national of either the party to the conflict or the occupying power.39 Several cases have dealt with the requirements of Article 2 as elaborated by the Tadic Interlocutory Appeal Decision. The Trial Chamber in Tadic found, after the Interlocutory Appeal Decision, that the civilian victims were not protected persons within the meaning of the Fourth Geneva Convention, since the majority concluded that the victims were not in the hands of a party to the conflict of which they were not nationals40. Judge McDonald dissented from this finding41 and would have held that the armed conflict in the opština Prijedor was international in character and that the victims of the accused were in the hands of a party to the conflict of which they were not

36 37 38 39 40 41

Tadic Separate Opinion of Judge Li on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 14. Ibid., para. 20. Tadic Interlocutory Appeal Decision, n. 11 above, para. 81. Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Article 4, 75 UNTS 287. Tadic Opinion, n. 16 above, para. 608. See Prosecutor v. Tadic, Separate and Dissenting Opinion of Judge McDonald Regarding the Applicability of Article 2 of the Statute, Case No. IT-94–1-T, Trial Chamber II, 7 May 1997.

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nationals. Consequently, she opined that they were protected persons within the meaning of Geneva Convention IV and that the accused should have been convicted on the charges based on Article 2. In another split decision, the Trial Chamber in the Aleksovski case made a finding similar to that of the majority in Tadic when it determined that it was not proven that the victims were protected persons within the meaning of the Fourth Geneva Convention.42 Contrary to the Majority in Aleksovski but similar to Judge McDonald’s dissenting opinion in Tadic, Judge Rodrigues would have found the grave breaches regime applicable to the victims in question. In contrast, Trial Chamber IIquater concluded that the civilian victims in the Celebici case were protected persons for purposes of applying the Fourth Geneva Convention.43 The difference of opinions among the Trial Chambers in these cases can be explained, in part, by the difference in the evidence that was presented by the parties. Moreover, as noted above, the interpretation of the nature of a conflict is not as straightforward as one might think. However, pursuant to an appeal by the Prosecutor against the determination that the victims were not protected persons for the purposes of Article 2, the Appeals Chamber in the Tadic case44 recently provided additional guidance with respect to Article 2. The issue on appeal concerned whether the Bosnian Serb forces “could be considered as de jure or de facto organs of a foreign power, namely the FRY”.45 The Trial Chamber had concluded that prior to 19 May 1992, the conflict in the opština Prijedor—between the armed forces of Bosnia Herzegovina and the Federal Republic of Yugoslavia (FRY)—was of an international character.46 On 19 May 1992, however, the forces of the FRY purported to withdraw from Bosnia Herzegovina and Bosnian Serb forces continued the struggle against the armed forces of Bosnia Herzegovina. The victims in this case were Bosnian civilians who were in the hands of Bosnian Serb forces. On 15 July 1999, the Appeals Chamber found that the Bosnian Serb armed forces were acting “under the overall control of and on behalf of the FRY,”47 and consequently, the victims were in the hands of the armed forces of a State of which they were not nationals and were thus protected persons within the meaning of Article 2.48 The Appeals Chamber thus reversed the Trial Chamber and held the

42 See Aleksovski Judgement, n. 20 above, para. 46; Prosecutor v. Aleksovski, Joint Opinion of the Majority, Judge Vohrah and Judge Nieto-Navia, on the Applicability of Article 2 of the Statute Pursuant to Paragraph 46 of the Judgement, Case No. IT-95–14/1, 25 June 1999 and Prosecutor v. Aleksovski, Dissenting Opinion of Judge Rodrigues, Presiding Judge of the Trial Chamber, Case No. IT-95–14/1, 25 June 1999. 43 Celebici Judgement, n. 20 above, para. 274. 44 Tadic Judgement, n. 32 above, paras. 68–171. 45 Tadic Judgement, n. 32 above, para. 87. 46 Tadic Opinion, n. 16 above, para. 570. 47 Tadic Judgement, n. 32 above, para. 162. 48 Ibid., para. 167. In the Tadic Interlocutory Appeal Decision, n. 11 above, the Appeals Chamber had concluded that an armed conflict existed in the Prijedor region, although it did not determine if the armed conflict was international or internal:


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grave breaches regime applicable. Therefore, the accused was convicted on the counts for which the Trial Chamber had acquitted him49 solely on the grounds that the grave breaches provisions did not apply. In making these decisions, the ICTY has given additional interpretation to Article 2, particularly in situations where nationality is not readily apparent. Guidance provided by these decisions will no doubt be of significant assistance to the International Criminal Court and other judicial bodies when addressing these issues in the future. IV.A.2. Specific offences under Article 2 The International Criminal Tribunals have also contributed to the development ofs international jurisprudence with respect to specific offences. For example, in regard to the crime of wilful killing under Article 2 of the ICTY Statute, Trial Chamber IIquater found in Celebici that, for an accused to be guilty of wilful killing as a grave breach under customary international law, it must be established beyond reasonable doubt that the accused intended to kill or inflict serious injury in reckless disregard of human life; that the victim died; and that the conduct of the accused was a substantial cause of the victim’s death.50 The Celebici Trial Chamber also had before it charges of torture as a grave breach. After a thorough examination of the elements of that offence under customary international law, the Judges concluded that the following elements constitute torture under international law: (i) There must be an act or omission that causes severe pain or suffering, whether mental or physical; (ii) which is inflicted intentionally; (iii) and for such purposes as obtaining information or a confession from the victim, or a third person, punishing the victim for an act he or she or a third person has committed or is suspected of having committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind;

[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States, or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there. Tadic Interlocutory Appeal Decision, n. 11 above, para. 70. 49 Tadic Judgement, n. 32 above, para. 171. 50 Celebici Judgement, n. 20 above, para. 424. The Trial Chamber found that these elements are the same whether prosecuted under Article 2, “wilful killing” or Article 3 of the ICTY Statute under the crime of “murder”. See ibid., para. 439.

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(iv) and such act or omission being committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official capacity.51 In addition, in a finding important to the development of international criminal law, the Trial Chamber concluded that “private” conduct, such as rape and other sexual assaults, can also be a “prohibited purpose” under the 1984 Torture Convention. Consequently, such “private” conduct may be unlawful, assuming the elements of intimidation, coercion, punishment or discrimination are present.52 Therefore, the Trial Chamber in Celebici concluded that, in certain circumstances, rape and other forms of sexual violence constitute torture as a grave breach punishable under Article 2(b) of the ICTY Statute. The Trial Chamber found that although the grave breaches regime does not explicitly include rape, “there can be no doubt that rape and other forms of sexual assault are expressly prohibited under international humanitarian law”.53 The Trial Chamber went on to recognise that although there was a general prohibition of rape under international humanitarian law, there was no convention or other international instrument defining rape.54 Noting that ICTR Trial Chamber I had analysed the elements of rape under customary international law in the context of crimes against humanity in the Akayesu case,55 the Celebici Trial Chamber then concluded that there was “no reason to depart from the conclusion of the ICTR Trial Chamber in the Akayesu Judgement on this issue”56 and adopted the definition of rape set forth in that Judgement. Because the grave breaches regime does not explicitly include the crime of rape, this Judgement fills a gap in international humanitarian law and sets a precedent for the protection of victims of sexual assault in the context of grave breaches. One other offence under Article 2 merits brief discussion. With respect to unlawful confinement, the Celebici Trial Chamber ruled that although confinement of civilians may be warranted during armed conflict in certain limited cases,57 “the measure of internment for reasons of security is an exceptional one and can never be taken on a collective basis”.58

51 52 53 54 55

Ibid., para. 494. Ibid., paras. 470–472. Ibid., paras. 476–477. Ibid., para. 478. Ibid. In Akayesu, ICTR Trial Chamber I found that under customary international law, rape was “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence which includes rape, is considered to be any act of a sexual nature which is committed under circumstances which are coercive.” Akayesu Judgement, n. 20 above, para. 598. 56 Celebici Judgement, n. 20 above, para. 479. 57 The Trial Chamber stated that such confinement must always be consistent with Articles 42 and 43 of the Fourth Geneva Convention. See Celebici Judgement, n. 20 above, para. 583. 58 Ibid. Moreover, an initially lawful internment becomes illegal if the detaining party fails to respect the procedural rights of the detainees and fails to establish an appropriate court or administrative board as required by Article 43 of the Fourth Geneva Convention.


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As is evident from the above-referenced decisions, the ICTY has significantly advanced the law of the grave breaches regime, through its application of the law of “protected persons”, internationality of conflicts, and specific offences, which, significantly, have been interpreted to include rape as a violation. IV.B. ICTY Statute, Article 3: Violations of the laws or customs of war and ICTR Statute, Article 4: Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II

IV.B.1. ICTY Statute, Article 3: “Hague Law”

s

Article 3 of the ICTY Statute grants the Tribunal the power to prosecute persons “violating the laws or customs of war”. This Article is based on the body of law known as “Hague Law”, which governs the means and methods of land warfare.59 In the Tadic Interlocutory Appeal Decision of 2 October 1995, the Appeals Chamber set forth four prerequisites for Article 3 to apply.60 First, the alleged violation must constitute an infringement of a rule of international humanitarian law. Second, the rule must either be customary, or if it derives from conventional law, then all the required conditions under the treaty must be satisfied. Third, the violation must be “serious”; that is, it must constitute a breach of a rule protecting important values and the breach must present grave consequences for the victim. And fourth, the violation must entail, under either customary or conventional law, the individual criminal responsibility of the alleged perpetrator. Thus, there is no requirement that violations of the law or customs of war be committed in international armed conflict.61

59 Secretary-General’s Report, para. 41. In international humanitarian law, “Hague Law”, which governs the actual conduct of armed conflict, is generally distinguished from “Geneva Law”, which governs the treatment of non-combatants. Article 3 of the ICTY Statute sets forth the following non-exhaustive list of offences that constitute violations of the laws or customs of war: (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity or education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property. 60 Tadic Interlocutory Appeal Decision, n. 11 above, para. 94. 61 In fact, the Appeals Chamber explicitly acknowledged this in its Decision: [I]t cannot be denied that customary rules have developed to govern internal strife. These rules…cover such areas as protection of civilians from hostilities, in particular from indiscriminate attacks, protection of civilian objects, in particular cultural property, protection of all This Decision effectively makes

1

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Article 3 a residual clause for certain offences that do not otherwise fall within another article of the Statute.62 Judge Li dissented with respect to two of these points. First, Judge Li concluded that Article 3 of the ICTY Statute was applicable only to international armed conflicts. He based his dissent on an analysis of “Hague Law,” which, he concluded, applies only in international armed conflict.63 Second, with respect to the notion of Article 3 as a residual clause, Judge Li stated: I cannot agree with the Decision that Article 3 “confers on the International Tribunal jurisdiction over any serious offence(s) against international humanitarian law not covered by Articles 2, 4 or 5”…and that “the conditions to be fulfilled for Article 3 to become applicable”…may be laid down by the Decision. The Decision on this question is in fact an unwarranted assumption of legislative power which has never been given to this Tribunal by any authority.64

IV.B.2. Common Article 3 to the four Geneva Conventions In addition to the violations specifically enumerated under ICTY’s Article 3, decisions by the ICTY have indicated that Article 3 grants the ICTY jurisdiction of additional offences, including violations of common Article 3 of the Geneva Conventions. The four Geneva Conventions of 1949 contain a common Article 3 which sets forth

those who do not (or no longer) take active part in hostilities, as well as prohibition of means of warfare proscribed in international armed conflicts and ban of certain methods of conducting hostilities. Ibid., para. 127. 62 Regarding this point, the Appeals Chamber stated: Article 3 thus confers on the International Tribunal jurisdiction over any serious offence against international humanitarian law not covered by Article 2, 4 or 5. Article 3 is a fundamental provision establishing that any “serious violation of international humanitarian law” must be prosecuted by the International Tribunal. In other words, Article 3 functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal. Article 3 aims to make such jurisdiction watertight and inescapable. Ibid., para. 91. Similarly, in Furund•ija Judgement, n. 20 above, para. 132, the Trial Chamber held: As interpreted by the Appeals Chamber in the Tadic Jurisdiction Decision, Article 3 has a very broad scope. It covers any serious violation of a rule of customary international humanitarian law entailing, under international customary or conventional law, the individual criminal responsibility of the person breaching the rule. It is immaterial whether the breach occurs within the context of an international or internal armed conflict. 63 See Tadic Interlocutory Appeal Decision, n. 11 above, Separate Opinion of Judge Li on the Defence Motion for Interlocutory Appeal on Jurisdiction, paras. 6–12. 64 Ibid., para. 13.


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minimum standards of treatment for persons taking no part in the hostilities during cases of internal armed conflict.65 However, common Article 3 has become a norm of customary international law and sets forth mandatory minimum rules that are applicable in armed conflicts of any kind, thus making the character of the conflict irrelevant.66 IV.B.2.A. COMMON ARTICLE 3 IN THE ICTR Common Article 3 has been incorporated into the ICTR Statute in its Article 4. Specifically, Article 4 of the ICTR Statute provides the following examples67 of offences that violate common Article 3 of the Geneva Conventions and Additional Protocols II:

65 Additional Protocol II (1977) to the four Geneva Conventions also contains common Article 3, but that Protocol applies only to internal armed conflicts. There is no direct reference to that convention in the ICTY Statute, although there is one in the ICTR Statute. Common Article 3 states: In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. 66 Tadic Interlocutory Appeal Decision, n. 11 above, para. 102 (“States specified certain minimum mandatory rules applicable to internal armed conflicts in common Article 3 of the Geneva Conventions of 1949. The International Court of Justice has confirmed that these rules reflect “elementary considerations of humanity” applicable under customary international law to any armed conflict, whether it is of an internal or international character…. Therefore, at least with respect to the minimum rules in common Article 3, the character of the conflict is irrelevant”). See also Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits), Judgement, ICJ Reports (1986), 114. 67 ICTR Statute, Article 4 explicitly states that this list is illustrative and not exhaustive.

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(a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; (b) Collective punishments; (c) Taking of hostages; (d) Acts of terrorism; (e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; (f) Pillage; (g) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples; (h) Threats to commit any of the foregoing acts. These provisions were analysed in Prosecutor v. Akayesu, where the accused faced five charges under ICTR Statute, Article 4. Four of these charges, involving murder and cruel treatment, cited to common Article 3 as the sole grounds of the Tribunal’s subject matter jurisdiction. The fifth charge, outrages upon personal dignity, in particular rape, cited to both common Article 3 and Additional Protocol II as the basis for subject matter jurisdiction. The Trial Chamber concluded that when the Prosecutor charges offences under both common Article 3 and Additional Protocol II, it is “necessary and reasonable to establish the applicability of both common Article 3 and Additional Protocol II individually”68 by proving that the criteria set forth in those treaties are both met.69 However, for criminal liability to attach under this article, the Trial Chamber also required a showing that the accused had acted for either the Government of Rwanda or the Rwandese Patriotic Front in the exercise of their respective conflict objectives.70 The court found that this would require proof either that the accused was a member of the armed forces under the command of one of the belligerent parties, or that the accused was a legitimate or de facto Government official supporting or fulfilling the war objectives.71 Since the Prosecutor failed to prove either of these factors, the accused was acquitted of the charges under Article 4. IV.B.2.B. COMMON ARTICLE 3 IN ICTY

68 69 70 71 72

Akayesu Judgement, n. 20 above, para. 607. Ibid., para. 618. Ibid., para. 640. Ibid. See Tadic Opinion, n. 16 above, paras. 609–617. See also Tadic Interlocutory Appeal Decision, n. 11 above, paras. 89, 98 and 102.


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In the first application of common Article 3 by the ICTY, Trial Chamber II in the Tadic case72 held that the following three requirements must be met for purposes of applying common Article 3 as a violation of the laws or customs of war: (i) The act(s) must be committed within the context of an armed conflict; (ii) The act(s) must have a close connection to the armed conflict; and (iii) The act(s) must be committed against a person taking no active role in the hostilities.73 Evaluating the facts with respect to these requirements, the Trial Chamber found the accused guilty under Article 3 of the ICTY. Other ICTY decisions with respect to common Article 3 have addresseds inhuman treatment.74 In the Celebici case. Trial Chamber IIquater defined inhuman treatment as an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. The plain, ordinary meaning of the term inhuman treatment in the context of the Geneva Conventions confirms this approach and clarifies the meaning of the offence. Thus, inhuman treatment is intentional treatment which does not conform with the fundamental principle of humanity, and forms the umbrella under which the remainder of the listed “grave breaches” in the Conventions fall. Hence, acts characterised in the Conventions and Commentaries as inhuman, or which are inconsistent with the principle of humanity, constitute examples of actions that can be characterised as inhuman treatment.75 In the Aleksovski case, Trial Chamber Ibis expanded on the notion of inhuman treatment with respect to the harm that the victim must suffer. In that case, the Trial Chamber concluded that the act must cause serious humiliation or degradation to the victim, finding that “[i]t is not necessary for the act to directly harm the physical or mental well-being of the victim. It is enough that the act causes real and lasting suffering to the individual arising from the humiliation or ridicule”.76 The Trial Chamber also recognised that, in the context of an offence arising from humiliation or ridicule, the degree of suffering endured by the victim will depend on his or her temperament.

73 Tadic Opinion, n. 16 above, paras. 614 and 617. 74 Common Article 3 seeks to protect non-combatants from inhuman treatment and to uphold and protect the “inherent dignity of the individual”. See Aleksovski Judgement, n. 20 above, para. 49 and, on common Article 3 in general, paras. 47–57. See also Celebici Judgement, n. 20 above, paras. 512–43. 75 Celebici Judgement, n. 20 above, para. 543. 76 Aleksovski Judgement, n. 20 above, para. 56. 77 Ibid.

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That is, sensitive individuals may be more prone to regard their treatment as humiliating and may suffer the consequences more seriously than individuals with “nonchalant dispositions”.77 Consequently, an objective standard must be applied to the actus reus: the victim’s humiliation must be so intense that a reasonable person would be outraged by the conduct of the accused.78 As for the mens rea, the accused must have acted with the intent to humiliate or ridicule the victim or must have known that humiliation or ridicule would be “the foreseeable and reasonable consequence of his actions”.79 On the basis of this analysis, the Trial Chamber convicted the accused of one count of violating Article 3 for his role in abusing prisoners in the Kaonik prison.80 Also contributing to the development of law pursuant to common Article 3 is the decision by the Trial Chamber in the Tadic case analysing the elements of cruel treatment as a violation of Article 3 of the Statute and common Article 3 of the Geneva Conventions. Noting that no international instrument defines cruel treatment because it had proven impossible to find a satisfactory definition, the Trial Chamber held that the specific facts of each case must be assessed “on the basis of all the particularities of the concrete situation”.81 Based on its conclusion that the accused took part in beatings of grave severity and other grievous acts of violence inflicted on nine non-combatants with the intention of inflicting suffering, the Trial Chamber convicted the accused of cruel treatment of those individuals.82 The Celebici Trial Chamber also analysed the elements of murder under customary international law as a violation of the laws or customs of war. In this context, the Trial Chamber determined that the analysis for adjudicating murder charges under Article 3 was identical to the analysis used to determine wilful killing under Article 2. That is, the mens rea required to establish the crime of murder is an intention of the accused to kill, or inflict serious injury in reckless disregard of human life.83 IV.B.3. Rape under Article 3 of the ICTY One of the most significant contributions by the International Criminal Tribunals is its case law on rape and sexual assault. The Prosecutor v. Furund•ija was the first case to focus exclusively on rape and sexual violence as a form of torture in violation of the laws or customs of war. In that case, the accused was charged with torture and

78 Ibid. The Trial Chamber noted that in the absence of this objective component, “unfairness to the accused would result because his/her culpability would depend not on the gravity of the act but wholly on the sensitivity of the victim”. 79 Ibid. 80 Ibid., paras. 228–29. 81 Tadic Opinion, n. 16 above, para. 724, quoting J.H.Burger & H.Danelius, The United Nations Convention Against Torture, 122. 82 Ibid., paras. 726, 742, 752 and 763. 83 Celebici Judgement, n. 20 above, para. 439.


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outrages upon personal dignity including rape. In a finding similar to that of the Celebici Trial Chamber’s analysis of the requirements of torture under Article 2 of the ICTY Statute, the Trial Chamber concluded that torture: (i) consists of the infliction, by an act or omission, of severe pain or suffering, whether physical or mental; in addition (ii) this act or omission must be intentional; (iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person; (iv) it must be linked to an armed conflict; (v) at least one of the persons involved in the torture process must be a publics official or must at any rate act in a non-private capacity, e.g., as a de facto organ of a State or any other authority-wielding entity.84 Finding that certain rapes may amount to torture, the Trial Chamber then took an additional step and concluded that, “[d]epending on the circumstances, under international criminal law rape may acquire the status of a crime distinct from torture”.85 In analysing the elements of rape under customary international law, the Trial Chamber in Furund•ija found the objective elements of rape to be:86 (i) the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) the mouth of the victim by the penis of the perpetrator; (ii) by coercion or threat of force against the victim or a third person.87 In this case, the victim was alternately raped by one accused and interrogated by another accused. Although the accused in question did not personally rape the victim, the Trial Chamber found that he had encouraged the perpetrator and “substantially

84 Furund•ija Judgement, n. 20 above, para. 162. See also n. 51 above and accompanying text. 85 Ibid., para. 164. 86 In setting forth this definition of rape, the Trial Chamber relied upon the findings of ICTR Trial Chamber in the Akayesu case and the ICTY Trial Chamber in the Celebici case. The Trial Chamber in the Celebici case had also held that rape could constitute a form of torture under Article 3 of the ICTY Statute, depending on the circumstances of the case. See Celebici Judgement, n. 20 above, paras. 475– 93. The Akayesu case dealt with rape as a crime against humanity and is discussed infra. 87 Furund•ija Judgement, n. 20 above, para. 185. 88 Ibid., para. 273. 89 Following the closing of the trial in that case, evidence became known relating to the treatment for post-traumatic stress syndrome of one of the rape victims. Evidence concerning this treatment had not been provided to the Defence. Consequently, the Trial Chamber ordered the hearing reopened to permit the Defence to introduce evidence pertaining to treatment of the victim. The Furund•ija case illustrates how seriously the Judges of the Tribunal take their obligations under ICTY Statute, Article 22 to protect victims and witnesses, while also guaranteeing the accused a fair and expeditious trial.

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contributed to the criminal acts committed by him”.88 Pursuant to Article 7(1), the Trial Chamber concluded that the accused had aided and abetted in the commission of the rape, and consequently convicted him of the rape.89 IV.C. ICTY Statute, Article 4 and ICTR Statute, Article 2: Genocide ICTY Statute, Article 4 and ICTR Statute, Article 2 give the Tribunals jurisdiction over the crime of genocide. These two provisions, which are identical, incorporate the definition of genocide as set forth in the 1948 Genocide Convention.90 Genocide is a “special intent” crime, which means that the perpetrator must have the “clear intent to cause the offence charged”.91 Unlike the other substantive provisions under the Statutes, ICTY Statute, Article 4 and ICTR Statute, Article 2 specifically proscribe inchoate offences. Thus, conspiracy to commit genocide, incitement to commit genocide, attempt to commit genocide and complicity in genocide are punishable under the respective Statutes. Trial Chamber I of the ICTR, in the case of Prosecutor v. Akayesu, was the first Trial Chamber to apply the statutory provisions governing genocide. In that case, the Trial Chamber analysed the concept of “members of the group”, since one of the fundamental principles underlying the crime of genocide is that the criminal action be taken against such members.92 The Trial Chamber concluded that, for an act charged under ICTR Statute, Article 2(2) to constitute genocide, the act must have been committed against an individual who was selected because of his or her membership in a group. The Trial Chamber continued: Thus, the victim is chosen not because of his individual identity, but rather on account of his membership of a national, ethnical, racial or religious group. The victim of the act is therefore a member of a group, chosen as such, which, hence, means that the victim of the crime of genocide is the group itself and not only the individual.93

90 See Convention on the Prevention and Suppression of the Crime of Genocide, 78 UNTS 277, Article 2 and Article 3. Genocide constitutes any of the following acts when committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. 91 92 93 94

Akayesu Judgement, n. 20 above, para. 518. See Akayesu Judgement, n. 20 above, paras. 510–24. Ibid., para. 521. ICTR Statute, Article 2(2)(a).


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The Akayesu Trial Chamber also undertook an analysis of the elements of each offence under section (2)(a) of ICTR Statute, Article 2 for which the accused was charged. With respect to killing members of the group,94 the Trial Chamber concluded that “killing [is] homicide committed with the intent to cause death”.95 Regarding ICTR Statute, Article 2(2)(b), “causing serious bodily or mental harm to members of the group,” the Trial Chamber held that this provision includes, but is not limited to, “acts of torture, be they bodily or mental, inhumane or degrading treatment, [or] persecution”.96 The Trial Chamber construed ICTR Statute, Article 2(2)(c)97 to mean the “methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction”.98 Examples of such methods include subjecting members of the group to an insufficients diet, systematic expulsion from their homes, and a reduction of medical services below minimum requirements.99 The Trial Chamber took an expansive position with respect to defining the offence of imposing measures intended to prevent births within the group under ICTR Statute, Article 2(2)(d), holding that such measures include “sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages”.100 With respect to this sub-section, the Trial Chamber made additional findings of significance. First, it noted that: In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is a case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother’s group.101 Second, the Trial Chamber acknowledged that measures intended to prevent births within the group might be mental, as well as physical. In this regard, it noted that “rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of the group can be led, through threats or trauma, not to procreate”.102

95 96 97 98 99 100 101 102 103

Akayesu Judgement, n. 20 above, para. 501. The Trial Chamber concluded that this definition was consistent with Article 311 of the Penal Code of Rwanda, that provides: “Homicide committed with intent to cause death shall be treated as murder”. Ibid., para. 500. Ibid., para. 504. This section governs the deliberate infliction of conditions of life calculated to bring about the physical destruction of a group in whole or in part. Akayesu Judgement, n. 20 above, para. 505. Ibid., para. 506. Ibid., para. 507. Ibid. Ibid., para. 508. Ibid., para. 509.

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Regarding the final sub-section of Article 2(2), the forcible transfer of children of one group to another group, the Trial Chamber concluded that “the objective is not only to sanction a direct act of forcible physical transfer, but also to sanction acts or threats or trauma which would lead to the forcible transfer of children from one group to another”.103 In Akayesu, the accused was also charged with direct and public incitement to commit genocide under ICTR Statute, Article 2(3)(c). The Trial Chamber defined this offence as: directly provoking the perpetrator(s) to commit genocide, whether through speeches, shouting or threats uttered in public places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters, or through any other means of audiovisual communication.104 The Trial Chamber found that not only must the suspect have an intent to directly prompt or provoke another to commit genocide, but he himself also must have the specific intent to commit genocide.105 The Trial Chamber also noted that direct and public incitement to commit genocide is punishable even where the incitement failed to produce the desired result.106 IV.D. ICTY Statute, Article 5/ICTR Statute, Article 3: Crimes against humanity

IV.D.1. Statutory distinctions between ICTY and ICTR ICTY Statute, Article 5 and ICTR Statute, Article 3 grant the respective Tribunals jurisdiction over crimes against humanity, including a wide range of proscribed acts.107 However, there are several important distinctions between the two provisions. For example, Article 5 of the ICTY Statute requires that the acts be committed in an armed conflict108 while ICTR Statute, Article 3 has no such requirement. Rather, ICTR Statute, Article 3 requires the crime to have been part of a “widespread or 104 Ibid., para. 559. 105 Ibid. 106 Ibid., para. 562. 107 The following offences are designated by ICTY Statute, Article 5 and ICTR Statute, Article 3 as crimes against humanity: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial and religious grounds; and other inhumane acts. 108 The Tadic Appeals Chamber noted that in order for an offence to be considered a crime against humanity under customary international law, there may not be a requirement of a connection between an armed conflict and noted that in the ICTY Statute, “the Security Council may have defined the crime in Article 5 more narrowly than necessary under customary international law”. Tadic Interlocutory Appeal Decision, n. 11 above, para. 141.


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systematic attack against any civilian population on national, political, ethnic, racial or religious grounds”. Another difference between the two Statutes is that, unlike Article 3 of the ICTR Statute, Article 5 of the ICTY Statute does not explicitly require a discriminatory intent for all crimes against humanity. A Trial Chamber adopted such a requirement based on the legislative history of the Statute,109 but the Appeals Chamber reversed the decision, holding that: [T]he Trial Chamber erred in finding that all crimes against humanity require a discriminatory intent. Such an intent is an indispensable legal ingredient of the offence only with regard to those crimes for which this is expressly required,s that is, for Article 5(h), concerning various types of persecution.110 The Statutes and jurisprudence of the International Criminal Tribunals thus set forth certain requirements with respect to crimes against humanity, including that the underlying crime must be committed as part of a widespread or systematic attack against a civilian population. In addition to the general requirements, the Trial Chambers of both Tribunals have elaborated on the elements with respect to the underlying offences. As determined by the Trial Chamber in the Tadic case, persecution as a crime against humanity encompasses two elements: a persecutory act or omission; and a discriminatory basis for that act or omission on racial, religious or political grounds.111 The Akayesu Trial Chamber evaluated the crime of murder as a crime against humanity under customary international law and found that the following elements need be shown: 1. the victim is dead;

109

See Tadiæ Opinion, n. 16 above, paras. 650–652. Relying on the Secretary-General’s Report, the Trial Chamber decided: Nevertheless, because the requirement of discriminatory intent on national, political, ethnic, racial or religious grounds for all crimes against humanity was included in the Report of the Secretary-General, and since several Security Council members stated that they interpreted Article 5 as referring to acts taken on a discriminatory basis, the Trial Chamber adopts the requirement of discriminatory intent for all crimes against humanity under Article 5.

Ibid., para. 652. See also Secretary-General’s Report, para. 48. 110 Tadiæ Judgement, n. 32 above, para. 305. 111 Tadiæ Opinion, n. 16 above, para. 694. 112 Akayesu Judgement, n. 20 above, para. 589. These elements are very similar to those enunciated in the ICTY with respect to wilful killing under Article 2 and murder under Article 3. See n. 50 above and accompanying text.

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2. the death resulted from an unlawful act or omission of the accused or a subordinate; 3. at the time of the killing the accused or a subordinate had the intention to kill or inflict grievous bodily harm on the deceased person having known that such bodily harm is likely to cause the victim’s death and is reckless whether death ensues or not.112 The Trial Chamber in Akayesu found that extermination, as a crime against humanity, differs from murder in that it requires the additional element of mass destruction.113 Thus, the elements for extermination are as follows: 1. the accused or his subordinate participated in the killing of certain named or described persons; 2. the act or omission was unlawful and intentional[;] 3. the unlawful act or omission must be part of a widespread or systematic attack; 4. the attack must be against the civilian population; 5. the attack must be on discriminatory grounds, namely: national, political, ethnic, racial or religious grounds.114 The Akayesu court also considered sexual violence and torture. As a crime against humanity, sexual violence, including rape, is considered to be “any act of a sexual nature that is committed on a person under circumstances that are coercive”.115 The act must also be committed as part of a widespread or systematic attack on a civilian population on discriminatory grounds.116 With respect to torture, the Trial Chamber in Akayesu found the essential elements of torture to be substantially similar to those found by the ICTY Trial Chambers in the Celebici and Furund•ija cases.117 In addition, however, for the act of torture to

113 Ibid., para. 591. 114 Ibid., para. 592. 115 Ibid., para. 598. 116 Ibid. 117 Specifically, the Akayesu Trial Chamber found that the following elements must be present for a finding of torture: (i) The perpetrator must intentionally inflict severe physical or mental pain or suffering upon the victim for one or more of the following purposes: (a) to obtain information or a confession from the victim or a third party; (b) to punish the victim or a third person for an act committed or suspected of having been committed by either of them; (c) for the purposes of intimidating or coercing the victim or a third person; (d) for any reason based on discrimination of any kind. (ii) The perpetrator himself was an official, or acted at the instigation of, or with hte consent or acquiescence of, an official or person acting in an official capacity. 118

Ibid., para. 594. see also nn. 51 and 84 above accompanying text. Ibid., para. 595.


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constitute a crime against humanity, the Trial Chamber held that the following elements must also be met: (a) Torture must be perpetrated as part of a widespread or systematic attack; (b) the attack must be against the civilian population; (c) the attack must be launched on discriminatory grounds, namely: national, ethnic, racial, religious and political grounds.118 As can be gleaned from these cases, the International Criminal Tribunals have developed and analysed the requirements for finding crimes against humanity, including the specific requirements of the underlying offences as well as the context of the offence and the nature of the intent of the accused. While not always ins complete agreement with regard to the necessary elements, the jurisprudence created by the Tribunals with respect to crimes against humanity nevertheless has served to provide a sound basis for further evolution of the law in this area.

V. Conclusion International humanitarian law has undergone significant development since the trials at Nuremberg and Tokyo in 1945. Refinement of conventional law and the progressive development of customary law have played an important role in this evolution. Nevertheless, violations of international humanitarian law proliferated and, for the most part, the international community remained silent. However, with the establishment of the International Criminal Tribunals in the 1990s, the international community began building effective enforcement mechanisms based on the concept of individual criminal accountability. Perhaps the most important contribution of the International Criminal Tribunals is that they have demonstrated that international criminal law can work on a practical level.119 In less than six years, the ICTY and ICTR have evolved into mature, fully functioning judicial institutions. Trials, appeals and other proceedings are routinely conducted, making international criminal justice a reality. In reaching this stage, the Tribunals have developed jurisprudence relating to and significantly advancing the development of international humanitarian law. For example, by myriad decisions, the ICTY has significantly advanced the law of the grave breaches regime, defining the meaning of “protected persons” and determining

119

Moreover, although beyond the scope of this essay, the International Criminal Tribunals have developed Rules of Procedure and Evidence that are the first true international codes of criminal procedure. The practices of the International Criminal Tribunals have provided a wealth of practical guidance to the drafters with respect to the elements of offences and the drafting of the Rules of Procedure and Evidence for the International Criminal Court. In fact, the Judges of the ICTY prepared a report on their experience drafting and amending the ICTY Rules of Procedure and Evidence and in handling trials and appeals for presentation at the Second Preparatory Commission for the Establishment of the International Criminal Court. The author presented this report to the Preparatory Commission on 30 July 1999. See ICTY Press Release 425-E, 30 July 1999.

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the way to ascertain whether a conflict is international or internal (or both). Moreover, the ICTY Appeals Chamber has determined that it is not necessary to demonstrate a discriminatory intent for crimes against humanity except for certain types of persecution referred to in Article 5(h). Further, the Akayesu case has shown that it is possible to try and convict individuals on charges of genocide in an international forum. The International Criminal Tribunals have also made important contributions to the law of individual accountability, command responsibility and defences. The Trial Chambers in the Celebici and Akayesu cases applied command responsibility to de facto leaders and civilians, having important practical consequences for persons exercising command authority. First, the notion of command responsibility for civilian leaders was most recently utilised in the indictment of Slobodan Miloševic for crimes against humanity and war crimes alleged to have been committed in Kosovo. Second, it puts on notice those in similar positions of authority that there are very real consequences for any default on their legal obligations. The lengthy discussion of aiding and abetting in Furund•ija is of great importance in clarifying inchoate international crimes. Further, the finding in Erdemovic that duress is not a complete defence to a soldier who kills innocent persons enhances the role of humanitarian law in armed conflicts. Finally, with respect to the underlying crimes, the Tribunals have established the elements (or ingredients) that must be met for an accused to be convicted of murder, wilful killing, extermination, torture, unlawful confinement, inhuman treatment, cruel treatment, persecution and inhumane acts. Significantly, the Tribunals have established clearly that rape and other forms of sexual assault are international crimes within the scope of war crimes, grave breaches and crimes against humanity. Even though the work of the International Criminal Tribunals is not yet complete, their legacy is already apparent. The adoption of the ICC Statute, on 17 July 1998, was one step in this process, bringing renewed hope that those who commit serious violations of international humanitarian law outside the jurisdiction of the two Tribunals will eventually face justice. With his scholarship, strength and commitment to the principles of international humanitarian law, Judge Li Haopei, one of the original eleven Judges elected to the ICTY in 1993, made a significant contribution to this legacy.

30 The competence of a tribunal to deny its existence Mohamed Shahabuddeen*

Though limited in certain ways, the International Criminal Tribunal for the former Yugoslavia (“ICTY”) has a claim to be considered the first truly international criminal court. Its jurisprudence has thrown up interesting legal issues, some relating to procedural matters, others relating to substantive ones. Within the latter category are two issues. The first concerns the competence of the Tribunal to pass on the authority of the Security Council to create it; the second concerns the question whether a crime against humanity is more serious than a war crime in respect of the same act, such that the penalty for the latter has to be lower than that for the former. The late Judge Li took a minority position on both of these issues. His opinions repay reading. The second issue could engage further judicial consideration. This is unlikely to be the case with the first, in respect of which the views expressed below make no difference to the practical result. On this basis, it is proposed to look briefly at this question. In Prosecutor v. Tadic1 the appellant contended that the Security Council was not competent to establish the Tribunal. The Trial Chamber had held that the Tribunal was not empowered to deal with the question, although expressing an opinion on it. It put the matter this way: [I]t is one thing for the Security Council to have taken every care to ensure that a structure appropriate to the conduct of fair trials has been created; it is an entirely different thing in any way to infer from that careful structuring that it was intended that the International Tribunal be empowered to question the legality of the law which established it. The competence of the International Tribunal is precise and narrowly defined; as described in Article 1 of its Statute, it is to prosecute persons responsible for serious violations of international humanitarian law, subject to spatial and temporal limits, and to do so in

* The author is writing in his individual capacity. 1 1 ICTY JR (1994–1995), 65. 473

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Mohamed Shahabuddeen

accordance with the Statute. That is the full extent of the competence of the International Tribunal.2 The Appeals Chamber disagreed with that view, holding that the principle of compétence de la compétence gave jurisdiction to any international judicial body to determine its own jurisdiction, that the validity of the establishment of the Tribunal by the Security Council was a matter of jurisdiction, that therefore that principle empowered the Tribunal to decide the question of whether it had been validly established by the Security Council, but that the question should be answered in the affirmative and not in the negative as contended by the appellant. The decision of the Appeals Chamber was a majority one, supported by President Cassese, Judge Deschenes, Judge Abi-Saab and Judge Sidhwa. Judge Li dissented. Paragraph 2 of his opinion read: The Decision [of the Appeals Chamber], relying on the doctrine of competencecompetence, reviews the legality of the resolution of the Security Council on the establishment of this Tribunal. However, the said doctrine, properly understood, only allows the Tribunal to examine and determine its own jurisdiction, while here it has been improperly extended to the examination of the competence and appropriateness of the resolution of the Security Council on the establishment of this Tribunal. As Article 1 of the Statute of this Tribunal only grants this Tribunal “the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute”, and as the Charter of the United Nations also has never given this Tribunal the power of reviewing the legality of the resolutions of the Security Council, it is crystal clear that this Tribunal has no such power. So this review is ultra vires and unlawful.3 Thus, Judge Li drew a distinction between jurisdiction and the forum. In effect, jurisdiction allows the court to decide on its competence over cases, and not to decide on the competence of the body which established it. In his view, the principle of compétence de la compétence pertained to the former, with the latter being taken as a given. Was he right? The opposite view, upheld by the majority, has the attraction of enabling an important point to be determined at a conveniently early stage in the life of the Tribunal concerned, but it presents difficulties. If jurisdiction entitles the ICTY to say that it has not been validly established, in what capacity is it acting when it makes that determination? Is it acting as a judicial body when it holds that it has not

2 3

Ibid., 369, citation from para. 8 of the judgement of the Trial Chamber (Judges McDonald, Stephen and Vohrah), 10 August 1995, 1 ICTY JR (1994–1995), 65, 71. 1 ICTY JR (1994–1995), 357, 513.

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been validly established? Are its members acting as judges when they hold that they are not judges? Or are they acting as individuals? It may be thought that there are problems with the view that persons who accept appointment as judges of a court and who swear to serve as such can, as such judges, question the validity of the law establishing the court, as distinguished from the validity of a law by which some branch of its jurisdiction was conferred. In sum, the question is not as to the competence of persons who have been appointed as members of a judicial body to say that that body has not been competently established; the question is as to the capacity in which such persons are acting when they make that decision. Are they acting as individuals? Or, are they acting as judges? It is not believed that much assistance on this point is to be hads from a perusal of the literature relating, for example, to challenges to the validity of an arbitral agreement. The general principle is that jurisdiction “is the power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties”.4 Familiar as is the principle, what it implies is that jurisdiction is a separate matter from the anterior question of the existence of the court; it does not include power to determine whether the adjudicating court exists in law. Analogies with municipal law are to be used with caution in international law. However, the substance of the concept of compétence de la compétence exists in both municipal law and international law. Of one national legal system, in this respect perhaps typical of many, it is said that “[e]very court has judicial power to hear and determine, or inquire into, the question of its own jurisdiction…”.5 Yet, it is added, almost axiomatically, that a “court cannot pass on its own existence as a court, or entertain a motion to set aside its judgement on the ground that the law creating the court is unconstitutional, so that the court is a nullity”.6 And why should this be so? Because, as it was said in Luther v. Borden: Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. The acceptance of the judicial office is recognition of the authority of the government from which it is derived. And if the authority of that government is annulled and overthrown, the power of its courts and other officers is annulled with it. And if a State court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an

4

Black’s Law Dictionary (with pronunciations) (6th ed., 1990), 853, citing Pinner v. Pinner, 33 N.C. App. 204, 234 S.E. 2d 633. 5 See 21 Corpus Juris Secundum (1990), 104, para. 88. 6 See ibid., 105, footnotes not reproduced.

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opposing government, it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power.7 The particular situation to which the remark was directed was of course different; but the generality of the principle involved should be apparent. If judges say that their court was never lawfully established, they are speaking in their individual capacities. If they are speaking as a court, they are exercising judicial power and therefore recognising the authority from which that judicial power flows; for the only way they can decide as a court is by affirming the validity of the law by which the court was established. The contradiction then will be that they are accepting that they are a court at the same time when they are denying that they are a court. Such a contradictory situation will not arise if it is accepted that a court cannot, qua court, pass on the validity of its own establishment. As indicated above, the majority in the Tadic appeal did not appear to doubt that municipal law would not authorise a court to question the validity of its establishment. They thought, however, that the position was different in international law. They said: A narrow concept of jurisdiction may, perhaps, be warranted in a national context but not in international law. International law, because it lacks a centralized structure, does not provide for an integrated judicial system operating an orderly division of labour among a number of tribunals, where certain aspects or components of jurisdiction as a power could be centralized or vested in one of them but not the others. In international law, every tribunal is a self-contained system (unless otherwise provided). Of course, the constitutive instrument of an international tribunal can limit some of its jurisdictional powers, but only to the extent to which such limitation does not jeopardize its “judicial character”…. Such limitations cannot, however, be presumed and, in any case, they cannot be deduced from the concept of jurisdiction itself.8 Much of this is true, particularly as regards the absence of an integrated judicial system in international law. The existence of a higher tier of courts in municipal systems can provide machinery for determining the constitutionality of the establishment of a lower court. If there is a higher court, the power to pass on the validity of the establishment of the challenged tribunal may lie within the jurisdiction of the higher court. But it is useful to remember that, even in a municipal system,

7 48 U.S. (7 Howard) (1849), 1, 40, quoted in Adams v. Adams, [1970] 3 All ER 572, 591. 8 Tadic, 1 ICTY JR (1994–1995), 367, para. 11.


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upward progression in the judicial hierarchy stops when a point is reached beyond which there is no higher court. What is to happen when there is a challenge to the validity of the establishment of the highest court? If the members of this court say that the court is illegal and so does not exist, are they acting as judges? Or, are they acting as individuals? The problems being the same, too much need not be made of differences between municipal systems and the international system. The international system has to be accepted as it is, and the best use made of such possibilities as it offers. In this case, for example, the Security Council would have been competent, acting under paragraph 1 of Article 96 of the Charter, perhaps at the instance of an interested state, to refer the matter to the International Court of Justice for an advisory opinion. It was on a request by the General Assembly, mades under the same provision, for an advisory opinion on connected matters, that the International Court of Justice decided in the Effect of Awards9 case that the General Assembly was competent to establish the United Nations Administrative Tribunal as a judicial body. By a similar procedure, the Court could have been asked for its advice as to whether it was competent for the Security Council to establish the Tribunal. What is difficult is the proposition that it is logically within the jurisdiction of the adjudicating court to say, as a court, that it does not exist. This does not mean that an international criminal tribunal may not notice the law which entitles its creators to establish it. Both the Nuremberg International Military Tribunal and the International Military Tribunal for the Far East alluded, naturally, to the competence of victors under international law to establish special courts for the trial of offenders; yet, it is not so clear that those tribunals asserted a power to vote themselves out of existence by saying, qua courts, that their establishment was invalid. It seems that their concern was with the question of the validity of their jurisdiction over certain crimes, a matter which logically presupposed their existence as courts. Prosecuting counsel Mr Keenan did submit to the International Military Tribunal for the Far East that what the defence was submitting was that the Charter of the Tribunal was “ultra vires—beyond the power of the Supreme Allied Commander to proclaim”. And the Tribunal did appear to address its mind to that point; but it also seems that its focus was on an attack on specific branches of its jurisdiction over certain offences made on the ground that those branches of its jurisdiction were conferred on it by the Charter in breach of international law.10 Addressing this aspect, after stating that it derived its jurisdiction from the Charter, the Tribunal said:

9 ICJ Reports 1954, 47, 56–58. 10 See the transcript in R.J.Pritchard & S.Zaide (eds.), The Tokyo War Crimes Trial (1981), vol. 1, 119, 129, 132, 139 and 152, and vol. 20, 48, 435–48, 4420.

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The foregoing expression of opinion [that “the law of the Charter is decisive and binding on the Tribunal”] is not to be taken as supporting the view, if such view be held, that the Allied Powers or any victor nations have the right under international law in providing for the trial and punishment of war criminals to enact or promulgate laws or vest in their tribunals powers in conflict with recognised international law or rules or principles thereof. In the exercise of their right to create tribunals for such a purpose and in conferring powers upon such tribunals belligerent powers may act only within the limits of international law.11 It is, at any rate, clear that the Tribunal did not touch on the question of the capacity in which it might hold that it had not been validly constituted. Accordingly, its decision does not help to answer the question whether its members would be acting as members of the Tribunal or as individuals if they were to take the view that the Tribunal had not been validly established. It might have assisted appreciation if the majority in the Tadic appeal had cited any case in which, pursuant to the principle of compétence de la compétence, an international judicial body, while functioning as such a body, declared its establishment to have been invalid. If there were any decisions to that effect, their rationale would be hard to follow. It is difficult to conceive of any norm which would accomplish the impossibility of empowering a court, qua court, to decide that it is not a court. In the case of the Arbitral Award of the King of Spain, it is arguable that, in the view of the International Court of Justice, the King would have been competent to determine that he had not been validly appointed as arbitrator,12 had the point been raised before him. But it is not possible to interpret the Court’s brief reference to this aspect to mean that, in its view, the King could, qua arbitrator, have determined that he was not validly appointed as arbitrator. He would have had to make that determination in his individual capacity. Both international law and municipal law say that anyone who is asked to exercise judicial powers must first satisfy himself that he has been properly appointed, but it does not follow that the law accomplishes the contradiction of saying that such a person is acting as the designated judge if he decides that he is not the designated judge. The judge, in his individual capacity, draws the necessary authority to make that kind of decision directly from the law itself, not from any authority that the court may itself possess as a court—for the premise is that the court does not exist. By contrast, the position taken by the Appeals Chamber in Tadic suggested that the Tribunal, qua tribunal, could have decided that it was not a tribunal. It is, also, not germane to consider the question whether the International Court of Justice may pass on the legality of a measure taken by the Security Council if to do so is necessary for the determination of an issue as to the rights of parties before the Court. Nor it necessary to debate the question whether the Court is competent to 11 Id., vol. 20,is48,436. 12 act See as aICJ constitutional Reports 1960, 205–06. court to review the validity of the acts of the Security Council.


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It would be more to the point to consider whether the Court, qua court, could pass on the validity of its own establishment by the Charter or the Statute (which forms part of the Charter) setting up the Court. It is difficult to think that the Court has that competence. In this case, there is potency, but also irrelevancy, in appealing to the fact that there may be no other court with competence to pass on the validity of the establishment of the Tribunal, and on that ground treating the Tribunal as vested with competence to pass, qua Tribunal, on the question whether it exists. In brief, it is not possible to see how a court, qua court, can say that it is not a court.s It is avoiding the question and not answering it to say, as Judge Sidhwa said in paragraph 36 of his opinion in Tadic: Were it to find a serious flaw in its establishment, what steps the Tribunal would take, I would not like to determine now. Whether it would make a simple declaration to that effect and leave it to the Security Council of the United Nations to correct the situation, or having made such a declaration, continue as an ad-hoc tribunal till the said body or Organisation comes to its aid, are some of the lines of action that may be debated, but the matter can be best dealt with when it arises and I would leave the matter perennial and open.13 The problematic character of these speculations is an indicium of the difficulties from which they spring. One question, precipitated by the speculations, is how a court can, by virtue of its own decision, continue as an ad hoc tribunal having declared that it is not a tribunal. That looks suspiciously like giving oneself a lift by tugging at one’s bootstraps. The difficulty does not arise on the view taken by Judge Li that the doctrine of compétence de la compétence relates to the jurisdiction of a court as distinguished from the question of the validity of its establishment. No doubt, the point in question was both important and interesting, but that was not necessarily coextensive with the competence to decide it. Numbers do not guarantee juridical correctness, but they do advise caution in departing from the majority view. Judge Li stood alone, and that is a matter to be considered. Might there, however, be something in his views which merits reconsideration in accordance with the well known statement of Charles Evans Hughes? For convenience, it reads: “A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”14 13 Tadic, 1 ICTY JR (1994–1995), 585, para. 36. 14 Charles Evans Hughes, The Supreme Court of the United States (1928), 68, quoted in Sir Hersch Lauterpacht, The Development of International Law by the International Court (1958), 66, n. 10 therein. Hughes served as a Chief Justice of the United States and a member of the Permanent Court of International Justice.

31 The ICJ’s Jurisdiction in the Legality of Use of Force cases Jianming Shen

I. Introduction In late April 1999, Yugoslavia filed with the International Court of Justice (ICJ) ten separate Applications instituting Cases Concerning Legality of Use of Force (“Legality cases”) against Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, the United Kingdom and the United States for violations, inter alia, of the obligation not to use force.1 At the same time, Yugoslavia requested the Court to indicate provisional measures by ordering the Respondent States to “cease immediately [their] acts of use of force” and to “refrain from any act of threat or use of force”.2 It claimed that if the interim protective measures “were not to be adopted, there will be new losses of human life, further physical and mental harm inflicted on the population of… Yugoslavia, further destruction of civilian targets, heavy environmental pollution and further physical destruction of the people of Yugoslavia”.3 On 2 June 1999, the ICJ, in each case, denied Yugoslavia’s requests.4 In the cases against Spain and the US, the Court held that it manifestly lacked jurisdiction and ordered these cases to be removed from its General List.5 In the remaining eight cases, the Court found that it lacked prima facie jurisdiction, and therefore could not indicate provisional measures, but decided to remain seised of them in respect of both jurisdiction and the merits.6 Yugoslavia attempted to found the Court’s jurisdiction on (1) declarations of the parties accepting the Court’s compulsory jurisdiction made in accordance with the optional clause of Article 36(2) of the ICJ Statute,7 (2) Article IX of the Genocide Convention of 1948,8 and/or (3) specifically with respect to Belgium and the

1 2 3 4 5 6 7 8

E.g., Legality of Use of Force (Yugoslavia v. Belgium), Applications of 28 April 1999, www.icj-cij.org. E.g., ibid., Request for the Indication of Provisional Measures (Request). Ibid. E.g., ibid., Provisional Measures Order (Order). Yugoslavia v. Spain, Order, para. 40; Yugoslavia v. United States, Order, para. 34. E.g., Yugoslavia v. Belgium, Order, para. 51. ICJ Statute, art. 36(2). Convention for the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, art. IX. 480

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Netherlands, two bilateral treaties of Yugoslavia with Belgium and the Netherlands providing for the Court’s jurisdiction (the Dispute Settlement Treaties). In a recent paper, I have dealt at some length with the jurisdictional issues relating to Article IX of the Genocide Convention.9 In this chapter, I will focus my attention on the optional clause jurisdiction of the Court and its jurisdiction based the Dispute Settlement Treaties. Part I briefly discusses the effect of the waiting period requirement in the Spanish and British declarations. Part II reviews the effect of Yugoslavia’s self-placed limitation ratione temporis in its declaration upon the Court’s optional clause jurisdiction over Belgium, Canada, the Netherlands and Portugal. Part III considers the Court’s jurisdiction over Belgium and the Netherlands under the Dispute Settlement Treaties. s

II. Jurisdiction over Spain and the UK One way to accept the Court’s jurisdiction is to file a declaration under the optional clause of Article 36 of the Court’s Statute. Yugoslavia had filed such a declaration shortly before filing its Applications. Six of the ten Respondent States had previously accepted the Court’s jurisdiction under Article 36(2) of the Statute. Among these, Spain and the United Kingdom conditioned the Court’s optional clause jurisdiction upon a 12-month waiting period. Spain’s declaration of 29 October 1990 states: 1. …Spain accepts as compulsory ipso facto and without special agreement, the jurisdiction of the International Court of Justice…in relation to any other State accepting the same obligation, on condition of reciprocity, in legal disputes not included among the following situations and exceptions: … (c) disputes in regard to which the other party or parties have accepted the compulsory jurisdiction of the Court less than 12 months prior to the filing of the application bringing the dispute before the Court….10 Similarly, the British optional clause declaration of 1 January 1969 states: 1. …[T]he United Kingdom…accept[s] as compulsory ipso facto and without special convention, on condition of reciprocity, the jurisdiction of the International Court of Justice…over all disputes…other than: … (iii)… where the acceptance of the Court’s compulsory jurisdiction on behalf of any other Party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court….11

9 J.Shen, Yugoslavia’s Application for Provisional Measures—The 1999 Cases of Legality of Use of Force, Australia ILJ (1999), 33–62. 10 Yugoslavia v. Spain, Order, para. 22 (italics added). 11 Yugoslavia v. United Kingdom, Order, para. 22 (italics added).

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Yugoslavia’s declaration was deposited with the UN Secretary-General on 25 April 1999, only a few days “prior to the filing of the application” instituting proceedings, and the filing clearly did not meet the Spanish and British 12-month waiting period requirement. Therefore, Yugoslavia could hardly found the Court’s jurisdiction upon Article 36(2) of the Statute vis-à-vis Spain and the United Kingdom. The Court was right in holding that “there can be no doubt that the conditions for the exclusion of the Court’s jurisdiction” provided for in paragraph 1 (c) of the Spanish declaration or paragraph 1(iii) of the British declaration “are satisfied”, and that “the declarations made by the Parties under Article 36, paragraph 2, of the Statute manifestly cannot constitute a basis of jurisdiction…, even prima facie”.12 The waiting period requirement shows how a carefully worded optional clause declaration can effectively block or delay the institution of proceedings against the declaring State by another State. Yugoslavia’s reliance upon the declarations filed under Article 36(2) of the Statute by Spain and the United Kingdom was apparently futile. Nevertheless, this defect alone would not preclude Yugoslavia from instituting or re-instituting proceedings against Spain and the United Kingdom twelve months after its own declaration was filed, i.e., on or after 25 April 2000. III. Jurisdiction over Belgium, Canada, the Netherlands and Portugal under optional clause declarations The Court’s Orders of 2 June 1999 denying Yugoslavia’s requests for the indication of provisional measures were the most questionable in the cases against Belgium, Canada, the Netherlands and Portugal. In determining whether the ICJ had jurisdiction over Belgium, Canada, the Netherlands, and Portugal under Article 36 of the Statute, the key issues to look at should be whether the Court’s jurisdiction was limited (1) by the terms of the optional clause declarations of Belgium, Canada, the Netherlands and Portugal, and/or (2) by the terms of the Yugoslav declaration itself. III.A. Declarations of Belgium, Canada, the Netherlands and Portugal Belgium, Canada, The Netherlands and Portugal had all made optional clause declarations accepting the ICJ’s compulsory jurisdiction, subject to certain conditions. Belgium’s declaration, dated 17 June 1958, reads in part: …[Belgium]…recognize[s] as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of

12 Yugoslavia v. Spain, Order, para. 25; Yugoslavia v. United Kingdom, Order, para. 25.


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the International Court of Justice…in legal disputes…except those in regard to which the parties have agreed…to have recourse to another method of pacific settlement….13 This acceptance of jurisdiction appears virtually unconditional. Specifically, it does not contain a twelve-month waiting period requirement. The only noticeable condition is the parties’ prior agreement to resort to alternative means of peaceful settlement. There was no evidence that Belgium and Yugoslavia had agreed to have recourse to another means of pacific settlement of their underlying disputes. Therefore, Yugoslavia’s action against Belgium did not appear to be limited by the terms of s Belgium’s declaration. Similarly, the Portuguese declaration of 19 December 1955 reads as follows: …Portugal recognizes the jurisdiction of this Court as compulsory ipso facto and without special agreement…under the following conditions: (1) the present declaration covers disputes arising out of events both prior and subsequent to…16 December 1920…; (2) the present declaration…shall be valid for a period of one year, and thereafter until notice of its denunciation is given…; (3) the Portuguese Government reserves the right to exclude from the scope of the present declaration, at any time during its validity, any given category or categories of disputes….14 Like Belgium’s declaration, the above declaration fails to require a twelve-month waiting period. The disputes between Yugoslavia and Portugal apparently satisfied condition (1). No notice of denunciation had been given in accordance with condition (2). As to condition (3), it was similarly presumable that Portugal had not excluded any category of disputes covering the instant ones from the scope of its declaration. Accordingly, nothing in the Portuguese declaration appeared to defeat the ICJ’s jurisdiction over Portugal. Canada’s declaration of 10 May 1994 similarly does not include a waiting period condition, but it clearly subjects its acceptance of the ICJ’s compulsory jurisdiction to reciprocity and other conditions. Canada’s declaration reads: (2) …Canada accepts as compulsory ipso facto and without special convention, on condition of reciprocity, the jurisdiction of the International Court of Justice…until such time as notice may be given to terminate the acceptance, over all disputes arising after the present declaration with regard to situations or facts subsequent to this declaration…15

13 Yugoslavia v. Belgium, Order, para. 23. 14 See Yugoslavia v. Portugal, Order, para. 22. 15 See Yugoslavia v. Canada, Order, para. 22.

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Canada had not terminated its declaration, and the disputes under consideration were clearly disputes arising after such declaration. Indeed, the Canadian declaration constituted no bar to the Court’s jurisdiction despite its more restrictive terms and conditions. What Canada could attempt to do was to rely on its stated “condition of reciprocity”. Where the condition of reciprocity applies, “the reservations of each declaration will be binding on both parties, in the sense that each party is entitled to invoke to its benefit any relevant reservation appearing in its own declaration or in that of the other party”.16 An express condition of reciprocity presupposes that jurisdiction can be established only if both parties have made declarations under Article 36(2) covering the subject matter of the dispute. Further, because of the condition of reciprocity, a party can invoke the conditions of the other party to defeat the Court’s jurisdiction. Here, Canada could arguably look to Yugoslavia’s declaration to see what benefits it could possibly obtain therefrom. Netherlands’ declaration of 1 August 1956 is similar in some respects to Canada’s and in other respects to Belgium’s: …[T]he Netherlands recognizes…as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, that is on condition of reciprocity, the jurisdiction of the said Court in all disputes arising or which may arise after 5 August 1921, with the exception of disputes in respect of which the parties, excluding the jurisdiction of the International Court of Justice, may have agreed to have recourse to some other method of pacific settlement….17 Again, the Dutch declaration contains no waiting period limitation. The underlying disputes clearly arose after 1921, and apparently did not fall within any exception to the coverage of disputes, for there was no indication that Yugoslavia and the Netherlands had agreed to resort to an alternative means of peaceful settlement. Thus, the Dutch declaration per se did not seem to defeat the Court’s jurisdiction unless the Netherlands could successfully invoke to its benefit the terms of Yugoslavia’s declaration. The conditions and exceptions contained in the above four declarations differ in degree and scope. Whether different or similar, none of such conditions and exceptions appeared to have defeated the Court’s jurisdiction in the Legality cases. Most importantly, none of the declarations contain a waiting period requirement excluding disputes arising within twelve months after the other party’s declaration. Logically, Yugoslavia could immediately resort to these declarations after its own declaration, and thus easily establish the Court’s jurisdiction vis-à-vis Belgium, Canada, the Netherlands and Portugal, unless such jurisdiction could be excluded or postponed by the terms of Yugoslavia’s own optional clause declaration. 16 S.Rosenne, The Law and Practice of the International Court of Justice (1965), 386. 17 See Yugoslavia v. Netherlands, Order, para. 23.


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III.B. Yugoslavia’s own limitation ratione temporis Whether Yugoslavia’s declaration excluded the Court’s jurisdiction was a highly controversial issue. The Court nevertheless concluded that it lacked prima facie jurisdiction over the above four Respondents18 by accepting the contention that Yugoslavia’s own declaration contained a limitation ratione temporis that invalidated its actions.19 The declaration of Yugoslavia reads: …Yugoslavia recognizes…as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, that is on condition of reciprocity, the jurisdiction of the said Court in all disputes arising or which mays arise after the signature of the present Declaration, with regard to the situations or facts subsequent to this signature….20 The Court found that Yugoslavia’s Applications were “directed, in essence, against the ‘bombing of [its] territory…’, to which the Court is asked to put an end”.21 It went on to note that “the bombings in question began on 24 March 1999 and have been conducted continuously over a period extending beyond 25 April 1999”, and that a legal dispute arose between Yugoslavia and Respondents “well before 25 April 1999 concerning the legality of those bombings”.22 The fact that the bombings had continued after 25 April 1999 and that the disputes between the parties had persisted since that date, according to the Court, “[was] not such as to alter the date on which the dispute arose”.23 The Court continued that “each individual air attack could not have given rise to a separate subsequent dispute”, stating that Yugoslavia had failed to establish that “new disputes, distinct from the initial one”, had arisen between the parties since 25 April 1999 in respect of subsequent situations or facts attributable to Respondents.24 This is where the problem mostly lies. What does the phrase “disputes arising… after the signature of the…declaration” mean? Were the disputes between Yugoslavia and Respondents ones that had all arisen before 25 April 1999? After all, what was intended by Yugoslavia’s temporal restriction? The following sections deal with these issues.

18 Yugoslavia v. Belgium, Order, para. 27; Yugoslavia v. Canada, Order, para. 27; Yugoslavia v. Netherlands, Order, para. 27; Yugoslavia v. Portugal, Order, para. 26. 19 See, e.g., Yugoslavia v. Belgium, Verbatim Records (Canada), 10 May 1999, CR 99/16, paras. 4 and 16– 25. 20 See, e.g., Yugoslavia v. Belgium, Application (italics added). 21 See note 18 above. 22 Yugoslavia v. Belgium, Order, para. 28; Yugoslavia v. Canada, Order, para. 28; Yugoslavia v. Netherlands, Order, para. 28; Yugoslavia v. Portugal, Order, para. 27. 23 Yugoslavia v. Belgium, Order, para. 29; Yugoslavia v. Canada, Order, para. 29; Yugoslavia v. Netherlands, Order, para. 29; Yugoslavia v. Portugal, Order, para. 28. 24 Ibid.

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III.C. Meaning of “disputes arising after…” How we understand and interpret a “dispute” can be critical to the determination of whether Yugoslavia’s legal actions were excluded by its own limitation ratione temporis. In his dissenting opinion, Judge Weeramantry clarified the meaning of the word “dispute”: A dispute may remain at an abstract level, as where one party alleges that it has a particular right and the other party disputes it. A dispute may on the other hand, as in most instances, assume a practical form, as where one party causes damage to another by some wrongful act and that other party asserts a violation of its rights and makes a claim for compensation. There is then a dispute as to whether a wrongful act has been done and a claim to damages exists. Both types of dispute fall within the accepted definition in the Court’s jurisprudence, namely, “a disagreement on a point of law or fact, a conflict of legal views or interests between the parties”…. Clearly the allegations of wrongful acts of the varied descriptions set out in [Yugoslavia’s] Application and the resulting claims based upon them are all “disputes” within the meaning of that term….25 What is meant by the word “arising” can also be crucial. If “arising” referred to the ultimate source of the disputes, the Court would have been justified in rejecting Yugoslavia’s jurisdictional claims under Article 36(2) of the Statute, because the disputes between Yugoslavia and Respondents could be said to originate in a series of situations surrounding the Rambouillet talks and the start of the NATO bombing on 24 March 1999. Yet, were this interpretation to be adopted, then many disputes before the ICJ could have been disqualified and excluded because they might have emanated from historical facts long predating a critical date specified in any optional clause declaration. The term “arising”, rather than referring to the ultimate origin of a dispute, more reasonably denotes the facts or situations directly giving rise to a dispute. Then does the entire phrase “disputes arising…after the signature…” mean that all the facts or situations giving rise to the disputes must begin to take place after the designated date? A reasoned interpretation would hold that the facts or situations leading to a subsequent dispute may have been initiated either before or after the signature date so long as such facts or situations persist after the signature. In this regard, it is helpful to refer to draft Article 25(1) of the ILC’s Draft Articles on State Responsibility: 1. The breach of an international obligation by an act of the State having a continuing character occurs at the moment when that act begins. Nevertheless, the time of commission of the breach extends over the entire period during 25 E.g., Yugoslavia v. Belgium (Diss. op. Weeramantry, quoting East Timor (Portugal v. Australia), ICJ Reports 1995, 99, para. 22).


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which the act continues and remains not in conformity with the international obligation.26 The fact that a breach of an international obligation begins at a certain moment does not necessarily suggest that the resulting dispute arises at that moment as well. A breach is not in itself a dispute, rather, it is a fact that gives rise to disputes. When a breach extends over a period of time, it gives rise and continues to give rise to disputes at any moment it persists, not just at the moment when it begins. Thus, Respondents’ continuing participation in NATO’s bombing beyond 25 April 1999 constituted continued facts or situations that undoubtedly gave rise to disputes after s the signature date. As Judge Shi points out, …[T]he alleged breach of obligations by such a ‘continuing’ act first occurred at the moment when the act began, weeks before the critical date of 25 April 1999. Given that the acts of aerial bombing continued well beyond the critical date and still continue, the time of commission of the breach extends over the whole period during which the acts continue and ends only when the acts of the Respondent State cease or when the international obligations alleged to be breached by the acts of that State cease to exist or are no longer in force for it.27 Judge Weeramantry similarly treated a State’s breaches of international obligations as capable of constituting parts of a series of violations. In his view, “the time of commission of a breach extends over the entire period during which the act continues and that in the case of a series of acts or omissions the breach of an international obligation occurs at the moment when the particular act or omission is accomplished”.28 Another way to look at the meaning of “disputes arising after…” is to take notice of Yugoslavia’s individualization of separate disputes with each Respondent upon filing its Applications and Requests for provisional measures. Using the words of Judge Vereshchetin, “these separate disputes may have the same origin but they became distinct bilateral legal disputes…only after they had been presented as ‘the claim of one party…positively opposed by the other’” through “the filing of the Applications by Yugoslavia against ten individual States”.29 III.D. Determining when a dispute arises From a different perspective, to find out whether a dispute arose before a certain date, we must determine whether all the material facts leading to the dispute took

26 See www.un.org/law/ilc/re p./1996/96repfra.htm. See also 2(ii) ILCYB (1978), 89 E.g., Yugoslavia v. Belgium (Diss. op. Shi). 27 E.g., Yugoslavia v. Belgium (Diss. op. Shi). 28 Ibid. (Diss. op. Weeramantry). 29 Ibid. (Diss. op. Vereshchetin, quoting South West Africa, ICJ Reports (1962), 328).

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place before that date. Where all the material facts took place before a given date, the resulting dispute would presumably have arisen before that date in its entirety. Where a series of interrelated facts took place both before and after that date, however, the resulting dispute would then become a compound one, part of which arose before, and part of which after, the critical date. The NATO bombing began on 24 March 1999 and continued well into mid-June 1999. Disputes clearly had arisen between Yugoslavia and Respondents prior to 25 April 1999; yet, when Yugoslavia initiated the proceedings, Respondents were continuing their participation in the NATO bombing. Such acts constituted continuing material facts that gave rise to continued or new disputes beyond 25 April 1999. Yugoslavia could perfectly well submit to the Court disputes arising on and after that date which were connected with the pre-declaration initial disputes but nevertheless constituted new and separate ones both in law and in fact. Had NATO discontinued the bombing and other alleged violations before 25 April 1999, Yugoslavia’s limitation ratione temporis would probably have barred it from instituting actions against such alleged violations. The Court was inclined to treat Yugoslavia’s disputes with Respondents as a whole. However, the fact that such disputes began to arise before 25 April 1999 does not disqualify them as a series of disputes that in essence arose after such date. As Judge Shi observed in his dissenting opinion, …[T]he legal dispute before the Court…consists of a number of constituent elements. Prior to the coming into existence of all the constituent elements, the dispute cannot be said to arise…. It is true that the aerial bombing of… Yugoslavia began some weeks before [25 April 1999]. But aerial bombing and its effects are merely facts or situations and as such do not constitute a legal dispute. The constituent elements of the present dispute are not present before the critical date and only exist at and from the date of Yugoslavia’s Application on 29 April 1999. It is true that, prior to the critical date, Yugoslavia had accused NATO…of illegal use of force against it. However, this complaint constitutes at the most one of the many constituent elements of the dispute….30 The alleged breaches by Respondents could also be divided into a planning phase and a phase to actually carry out the bombing plans. While the planning phase might have been completed prior to 25 April 1999, the phase of actual bombing stretched well beyond that date. As Judge Weeramantry stated, to determine when Yugoslavia’s disputes with Respondents arose, it was “inappropriate to refer back to the time of planning of the ongoing NATO air operations”.31 He further pointed out that “[a] vast enterprise may be planned and conceived at a particular time and date

30 Ibid. (Diss. op. Shi). 31 Ibid. (Diss. op. Weeramantry).


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but it does not follow that every major operation conducted within that enterprise over the ensuing months, if it gives rise to a claim at law, dates back to the conception of the entire enterprise”.32 Accordingly, he emphasized, the NATO bombing “may involve several breaches of vastly different State obligations”, and it was “difficult to maintain that all such breaches of obligation occurred when the initial plan was conceived”.33 As long as Respondents, allegedly in breach of their obligations, were accomplishing their pre-planned acts and operations beyond the date of 25 April 1999, such perceived breaches would form the basis of legal disputes between the parties not excluded by Yugoslavia’s limitation ratione temporis. Further, Yugoslavia not only made claims against the NATO bombing per se, but also asserted violations of different legal obligations respecting different categoriess of damage, including violations of the obligation not to use prohibited weapons, the obligation not to cause extensive health and environmental damage, the obligation not to interfere with the right to information, the obligation to respect freedom of navigation on international rivers and the obligation not to commit any act of hostility towards historical monuments, works of art or places of worship. The alleged violation of each category of obligations gave rise to a dispute, and each time an alleged violation of one particular category of obligations took place, a dispute arose. Many of such individual violations took place after the Yugoslav declaration date. As Judge Weeramantry noted, by way of examples, “the disputes arising from the bombing of an embassy, from the bombing of a TV station, from the bombing of a passenger train, a school or a power station all arise when those acts in fact take place and not before the acts were done”.34 The fact that a major campaign may even take years, he continued, “does not mean that every act of wrongdoing that may be committed in the course of that campaign—even though those acts are years apart—dates back in law to the time when it was decided to commence hostilities”.35 Alternatively, it is useful to distinguish a general dispute and specific disputes that are linked to but distinct from the general dispute. Such a distinction was recognized in Libya v. United Kingdom, where the Court “finds that there exists between [the parties] not only a dispute of a general nature…, but also a specific dispute which…falls to be decided by the Court”.36 The Court’s jurisdiction over a dispute of a specific nature cannot be affected by the mere fact that this specific dispute is linked to a general dispute that has been excluded from its jurisdiction. Specific disputes may be said to have arisen after 25 April 1999 between Yugoslavia and each Respondent concerning the latter’s alleged continuing breach of international obligations, although

32 33 34 35 36

Ibid. Ibid. Ibid. Ibid. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), ICJ Reports 1998 (www.icj-cij.org), para. 28.

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they might be linked to a general dispute(s) that had arisen before that date. Judge Vereshchetin convincingly held that one could not conclude, from Yugoslavia’s own limitation ratione temporis, that “each and every dispute…must be viewed by the Court as a single dispute or disputes which existed before 25 April 1999 or…that the Court cannot consider situations and facts relating to these disputes which arose after that date”.37 Judge Vereshchetin continued: …[E]ven after “the critical date” Yugoslavia has, with good reason, complained of a number of new major breaches of international law by the NATO States. Each of these alleged new major breaches…may be seen as constituting specific disputes…which clearly occurred after 25 April 1999…. Nothing in the jurisprudence of the Court justifies the suggestion that a specific legal dispute…may not be considered by the Court solely on the ground that it is linked with, or part of, a dispute excluded….38

III.E. The significance of Yugoslavia’s intention In its jurisprudence, the ICJ has considered it necessary to take into account the intention of the declaring State when interpreting an optional clause declaration. In Fisheries Jurisdiction, for example, the ICJ held that in interpreting the relevant words of an optional clause declaration, the Court must have “due regard to the intention of the State concerned at the time when it accepted the compulsory jurisdiction of the Court”.39 In denying Yugoslavia’s requests for provisional protection on jurisdictional ground, the Court clearly ignored the intention of Yugoslavia, which could not have been to limit itself from instituting proceedings in the ICJ against Respondents vis-à-vis the very types of alleged violations against which it was charging in its Applications and oral arguments. In this connection, Judge Vereshchetin stated: …I disagree with the majority…[due to] their complete disregard of the clear intention of Yugoslavia…. In…the present cases, the Court, by refusing to take into account the clear intention of Yugoslavia, has taken an approach to the Yugoslav declaration which could lead to the absurd conclusion that Yugoslavia intended by its declaration of acceptance of the Court’s jurisdiction to exclude the jurisdiction of the Court over her Applications instituting proceedings against the Respondents.40 Judge Weeramantry likewise criticized the majority for failing to “adequately consider the intention of the author of the reservation, which is an important factor to be 37 38 39 40

E.g., Yugoslavia v. Belgium (Diss. op. Vereshchetin). Ibid. Fisheries Jurisdiction (Spain v. Canada), ICJ Reports 1998 (www.icj-cij.org), para. 49. See note 37 above.


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taken into account in construing the overall meaning of a declaration”.41 He pointed out that Yugoslavia “could not have intended to exclude from the Court’s jurisdiction the very incidents of which it was complaining and which it had made the subject matter of its Application”, and that such “a self-defeating intention can scarcely be imputed to the author of such an important document”.42 Indeed, Article 36(2) of the Statute was so “sufficient to confer prima facie jurisdiction for the purposes of provisional measures” that Judge Weeramantry even did not “think it necessary to examine the other grounds further”.43 The Court clearly erred in holding that it lacked prima facie jurisdiction over Belgium, Canada, the Netherlands and Portugal for it had mistakenly interpreted the limitation ratione temporis embodied s in Yugoslavia’s declaration. IV. Treaty-based jurisdiction over Belgium and the Netherlands At the second round of hearings that took place on 12 May 1999, Yugoslavia invoked, as an additional jurisdictional ground, its 1930 Convention of Conciliation, Judicial Settlement and Arbitration with Belgium and its 1931 Treaty of Judicial Settlement, Arbitration and Conciliation with the Netherlands. Both treaties are still in force. Article 4 of the 1930 Convention provides: “All disputes with regard to which the Parties are in conflict as to their respective rights shall be submitted for decision to the Permanent Court of International Justice unless the Parties agree…to resort to an arbitral tribunal….”44 Article 4 of the 1931 Treaty similarly provides that where the parties fail to agree on alternative ways of settling their dispute, “either Party shall be at liberty…to bring the dispute…direct [sic] before the Permanent Court of International Justice”.45 The Court declined to consider these two treaties as a potential basis for jurisdiction for the purpose of indicating provisional measures, on the ground that “Yugoslavia gave no explanation of its reasons for filing…at this stage of the proceedings” its “Supplement to the Application” invoking the 1930 Convention with Belgium and the 1931 Treaty with the Netherlands.46 The Court continued: [T]he invocation by a party of a new basis of jurisdiction in the second round of oral argument on a Request for the Indication of Provisional Measures has never before occurred in the Court’s practice; …such action at this late stage, when not accepted by the other party, seriously jeopardizes the principle of

41 42 43 44 45 46

Ibid. (Diss. op. Weeramantry). Ibid. Ibid. See also ibid. (Diss. op. Kreca, para. 14). See Yugoslavia v. Belgium, Verbatim Records (Yugoslavia), 12 May 1999, CR 99/25. Ibid. Yugoslavia v. Belgium, Order, para. 42; Yugoslavia v. Netherlands, Order, para. 42.

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procedural fairness and the sound administration of justice; and…in consequence the Court cannot, for the purpose of deciding whether it may or may not indicate provisional measures…, take into consideration the new title of jurisdiction….47 The above observation of the Court appears contrary to the facts, and at least inaccurate. On several occasions, the Court had dealt with the permissibility of the invocation of new title of jurisdiction at a later stage. In Nicaragua v. U.S., e.g., the Court had held: …[T]he fact that the 1956 Treaty was not invoked in the Application as a title of jurisdiction does not in itself constitute a bar to reliance being placed upon it in the Memorial. Since the Court must always be satisfied that it has jurisdiction before proceeding to examine the merits of a case, it is certainly desirable that ‘the legal grounds upon which the jurisdiction of the Court is said to be based’ should be indicated at an early stage in the proceedings, and Article 38 of the Rules of Court therefore provides for these to be specified ‘as far as possible’ in the application. An additional ground of jurisdiction may however be brought to the Court’s attention later, and the Court may take it into account provided the Applicant makes it clear that it intends to proceed upon that basis (Certain Norwegian Loans, I.C.J. Reports 1957, p. 25), and provided also that the result is not to transform the dispute brought before the Court by the application into another dispute which is different in character (Société Commerciale de Belgique, P.C.I.J. Series A/B, No. 78, p. 173).48 The same Court, in the Genocide case between Bosnia and Yugoslavia, had similarly recognized the above rationale by holding that for the purposes of a Request for the Indication of Provisional Measures, it should “not exclude a priori such additional bases of jurisdiction from consideration, but that it should consider whether the texts relied on may…afford a basis on which the jurisdiction of the Court to entertain the Application might prima facie be established”.49 Even if it were true that a new ground of jurisdiction had never been invoked in the second round of oral argument in the practice of the ICJ, that would not necessarily mean that such invocation was prohibited altogether. The alleged lack of precedence, therefore, should not serve as a bar to Yugoslavia’s invocation of the 1930 Convention with Belgium and the 1931 Treaty with the Netherlands. While the invocation of a new jurisdictional ground after the filing of an application should undoubtedly be discouraged, such action is nevertheless not prohibited by the jurisprudence of the Court. As Judge Vereshchetin pointed out:

47 Ibid., para. 44. 48 Nicaragua v. United States (Jurisdiction and Admissibility), ICJ Reports 1984, 426–427, para. 80 (italics added). 49 Bosnia and Herzegovina v. Yugoslavia, ICJ Reports 1993, 338–339, para. 28.


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…[T]he conditions set out by Article 38 of the Rules of Court and in its jurisprudence are fully satisfied…. The jurisprudence of the Court clearly shows that for the purposes of a Request for the Indication of Provisional Measures additional grounds of jurisdiction may be brought to the Court’s attention after filing of the Application. In such a case, the Court should be primarily concerned with determining objectively whether the additional grounds of jurisdiction “afford[s] a basis on which the jurisdiction of the Court to entertain the Application might prima facie be established”.50 Article 38(2) of the Rules of Court provides that “[t]he application shall specify ass far as possible the legal grounds upon which the jurisdiction of the Court is said to be based”.51 This provision makes it clear that a State, when filing an application, is required to list as far as possible, not necessarily all, the legal grounds upon which the Court’s jurisdiction is to be based. Neither the Rules nor the Statute precludes an applicant State from referring to additional jurisdictional grounds after the application is filed. In the Legality cases, I see no reason why such new grounds could not be invoked in the second round of hearing. It was allegedly in reliance upon the “principle of procedural fairness and… sound administration of justice” that the Court refused to consider Yugoslavia’s newly invoked jurisdictional ground. However, “the principle of procedural fairness and the sound administration of justice” would appear to require the Court to do exactly the contrary. In this regard, Judge Vereshchetin opined: The…“principle of procedural fairness and the sound administration of justice” cannot be stretched to such an extent as to exclude a priori the additional basis of jurisdiction from its consideration, solely because the Respondent States have not been given adequate time to prepare their counter-arguments. Admittedly, it cannot be considered normal for a new basis of jurisdiction to be invoked in the second round of the hearings. However, the Respondent States were given the possibility of presenting their counter-arguments to the Court, and they used this possibility to make various observations and objections to the new basis of jurisdiction. If necessary, they could have asked for the prolongation of the hearings. In turn, the Applicant may reasonably claim that the belated invocation of the new titles of jurisdiction was caused by the extraordinary situation in Yugoslavia, in which the preparation of the Applications had been carried out under conditions of daily aerial bombardment by the Respondents. It will also be recalled that it is for the Court to determine the validity of the new basis of jurisdiction, which at this stage of the proceedings may not and should not be decided conclusively.52 50 E.g., Yugoslavia v. Belgium, Order (Diss. op. Vereshchetin). See also ibid. (Diss. op. Kreca), paras. 15–17. 51 ICJ Rules of Court (1978), www.icj-cij.org, art. 38(2). 52 E.g., Yugoslavia v. Belgium, Order (Diss. op. Vereshchetin).

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There appeared to be no basis upon which Yugoslavia could be accused of acting in bad faith. It is not hard to imagine what kind of conditions and urgencies Yugoslavia and its legal team were facing, given the catastrophic ongoing bombing they were experiencing at the time of preparing the Applications. It became evident that neither Russia, nor any other power, could stop NATO. The Security Council, largely controlled by NATO countries, was de facto disabled in the crisis. It may well be that a last-minute decision to resort to the ICJ was not reached until around 25 April 1999. The Yugoslav legal team had to prepare and file ten different Applications under extreme urgency and time pressure. It was quite possible and excusable that they might have incidentally omitted, in good faith, one or more legal grounds to support the Court’s jurisdiction. Additionally, in its Applications, Yugoslavia expressly “reserves the right to amend and supplement” the Applications.53 “Such a reservation to an application instituting proceedings”, according to Judge Vereshcheitn, “is standard, and in relation to grounds of jurisdiction has for a long time been interpreted by the Court as permitting the addition of a basis of jurisdiction”.54 The Court should have taken into serious account the express reservation as well as the extraordinary and utmost urgent circumstances surrounding Yugoslavia’s filing of its Applications and preparation for its cases against Respondents. V. Conclusion While Yugoslavia could not found the ICJ’s jurisdiction over six of the Respondent States upon Article 36(2) of the Statute, it would seem that it could do so vis-à-vis Belgium, Canada, the Netherlands and Portugal. At least insofar as concerns these four cases, the Court’s rejection of Yugoslavia’s Requests for the Indication of Provisional Measures appears unsound and erroneous. None of these States in their respective optional clause declarations laid down waiting period conditions for the exclusion of the Court’s jurisdiction, nor did they otherwise exclude such jurisdiction. Yugoslavia’s self-imposed limitation ratione temporis, while making it impossible for it to complain of acts and atrocities committed before 25 April 1999, was unquestionably no bar to its legal actions with respect to acts that were committed on and after that date. It was not legally logical to exclude alleged post-declaration violations of Respondents’ obligations merely because they were related to pre-declaration violations. Prima facie, and even formal, jurisdiction existed under the optional clause of the Statute. Further, the Court’s jurisdiction in the cases against Belgium and the Netherlands would in fact be enhanced due to the jurisdictional provision in two bilateral treaties. In the recent LaGrand case, the Court reconfirmed the principle that, for the purpose of indicating provisional measures, it “need not, before deciding whether or

53 E.g., Yugoslavia v. Belgium, Application, last para. 54 See n. 52 above.


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not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case”.55 In the Legality cases against Belgium, Canada, the Netherlands and Portugal, the Court could have ruled that it was satisfied that it had prima facie jurisdiction. It could and should have ordered at least these four Respondents to immediately cease participating in the NATO bombing. The Court’s denial of Yugoslavia’s utmost urgent requests for interim protection on jurisdictional grounds showed nothing but its pre-determined unwillingness or inability to “offend” NATO and NATO countries at the expense of fairness and justice. Nevertheless, this unwillingness or inability of the Court to confront NATO powers by no means approved of Respondents’ conduct, as the Court itself, albeit insufficiently, stated that it “is profoundly concerned with the use of force in Yugoslavia” and stressed that “all parties…must act in conformitys with their obligations under the United Nations Charter and other rules of international law”.56

55 LaGrand (Germany v. United States), Provisional Measures, ICJ Reports 1999, para. 13, www. icj-cij.org/ icjwww/idocket/igus/igusframe.htm. 56 E.g., Yugoslavia v. United States, Order, paras. 15–18.

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Appendix

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Jus cogens and international law* Li Haopei

Jus cogens is expressly provided for in the 1969 Vienna Convention on the Law of Treaties (hereinafter referred to as “the Convention”). This is of great importance in the theory and practice of international law. This article seeks to deal with some provisions in the Convention relating to the subject. I. The concept of jus cogens in municipal law Jus cogens, or peremptory norm of law, originates from municipal law. Therefore, an explanation of the concept of jus cogens in international treaty law must begin with the concept of jus cogens in municipal law. In municipal law, the concept may be traced back to the Roman Law. A rule of law in the Digest says: “jus publicum privatorum pactis mutari non potest” (Private contract cannot change public law.)1 “Public law” here includes not only laws regulating relations between a state and its nationals, but also the rules of law which individuals must not derogate from or contract out.2 Today, jus cogens can be found in the municipal laws of almost all nations. For example, the rule of law concerning the capacity to conclude contracts in municipal contract law is in principle a peremptory norm. Therefore, the civil laws of all countries do not permit persons under legal age to conclude contracts in violation of the rules of law on capacity to conclude contracts. Usually, their contracts should be concluded by their legal representatives or by themselves with the permission of their legal representatives.3 Moreover, the rule of law on defects in the declaration of intention

*

1 2 3

This article was first published in Chinese in the Chinese Yearbook of International Law (1982). The English translation appeared in Selected Articles from Chinese Yearbook of International Law (1983). As this article has been cited in various rigorous studies and yet it is not widely available, we believe it worthwhile to reprint it here, with the permission of the Li family. We have decided not to disturb the original text and citations in the translation, with the exception that the footnotes are now numbered consecutively and that some very minor stylistic corrections have been made.—The editors. Digest, Vol. II, Chapter XIV, sect. 38. Digest, Vol. L, Chapter XVII, sect. 45. For example, French Civil Code, Article 1108, para. 1, and German Civil Code, Article 104 ff. 499

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is usually a peremptory norm too. For example, according to German Civil Law, a contract concluded under illegal coercion is not considered a juristic act made as a result of the declaration of intention by the party under coercion, and can therefore be rescinded. Nor can such a rule of law be excluded from application through a contractual stipulation by the parties.4 To give another example: according to the civil laws of a great many countries, marriage is voluntary union for life between man and woman. Therefore, if a man and a woman conclude a contract for a oneyear marriage or for a one-year trial marriage, such a contract is obviously void. Finally, provisions on the form of legal transactions are usually of a jus cogens character, because the form ensures that parties to the transaction declare their intentions truly and after careful consideration. According to the definition given by Radnitzky, jus cogens (Zwingendes Recht) “heisst so, weil diejenigen, die es angeht, sick seiner Geltung schlechterdings nicht entziehen können” (is so called because “the people whom it concerns can absolutely not escape from its effect”).5 Provisions of jus cogens are generally contained in explicit terms in the civil codes of almost all countries. For example, Article 6 of the French Civil Code says: “On ne peut déroger, par des conventions particulières, aux lois qui intéressent l’ordre public et les bonnes moeurs.” There are also similar provisions in other civil codes, such as Articles 134 and 138 of the German Civil Code, Article 879 of the Austrian Civil Code, Article 671 of the Portuguese Civil Code, Article 1255 of the Spanish Civil Code, Article 1322 of the Italian Civil Code, Article 19 of the Swiss Code of the Law of Obligations, Article 30 of the Civil Code of Soviet Russia, Article 9 of the Bulgarian Civil Code and Article 36 of the Czechoslovakian Civil Code. There is “public policy” in British and American laws. According to the jurisprudence of U.S. and British courts, contracts contrary to public policy are null and void.6 However, in municipal law, mainly in the law of contracts, many provisions concerning the substance of contracts are not jus cogens, but jus dispositivum. For example, Article 706 of the German Civil Code says: “In the absence of a contrary agreement the partners shall make equal contributions,” and Article 727 says: “A partnership is dissolved by the death of one of the partners, unless a contrary intention appears from the contract of partnership.” From the explicit provisions of the two Articles, it is clear that they can be contracted out by the parties concerned and replaced by rules stipulated by themselves. Therefore, each of these two provisions is intended to supplement the intention of the contracting parties: if they have made a stipulation different from the legal provision, the former applies instead of the latter, otherwise the latter applies. Such a rule of law is jus dispositivum. According to Radnitzky, “als dispositives Recht…wird in der Regal jenes Recht bezeichnet, das nur gilt, wenn die Personen, die es angeht, nichts anderes an seine Stelle setzen, wenn es also die Parteien gelten lassen wollen.”7 (Jus dispositivum…as a rule denotes the law which applies only when people whom it 4 German Civil Code, Article 123, para. 1. 5 Österreichische Zeitschrift für Öffentliches Recht, Vol. I, 1914, p.656 ff. 6 E.Jenks: Digest of English Civil Law, Vol. I, 2nd ed., 1921, p.41. 7 Digest, Vol. II, Chapter XIV, sect. 38.

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concerns do not put anything else in their place, and therefore is the law which the parties wish to apply.) From what has been said above, it is clear that so far as municipal law is concerned, rules of law are hierarchical, being divided into two ranks: rules of jus cogens belong to the higher rank, while those of jus dispositivum to the lower one. That the distinction is so made is obviously because the former involve the important interests of a state and the general well-being of the community while the latter do not. So Suy defines jus cogens as “the body of those general rules of law whose non-observance may affect the very essence of the legal system to which they belong to such an extent that the subject of law may not, under pain of absolute nullity, depart from them in virtue of particular agreements.”8 II. The place of jus cogens in international law before the 1969 Vienna Convention On this question, we can begin with studies by an examination of doctrine, jurisprudence, international legislation and international practice. The relationship between jus cogens and the general principles of law recognized by civilized nations will be discussed in the third part of this article. (I) Doctrine So far as the doctrine is concerned, naturalists and publicists in the 17th and 18th centuries who did not entirely deny natural law logically admitted that international law includes rules of jus cogens which can not be derogated from by treaties since they both held the view that natural law exists above positive law made by man, and that positive law is valid only when it accords with natural law. For example, Emmerich de Vattel said that international law consists of necessary international law, apart from voluntary law emerging from the will of nations. Necessary international law consists of the “application of natural law to nations,” and it is “necessary because nations are absolutely obliged to observe it.” As to the “obligations it imposes, necessary and indispensable, nations can not bring any change by their conventions, or excuse from them by themselves or reciprocally.”9 Christian Wolff and A.W.Heffter maintained similar views.10 Even in the latter half of the 19th century, Johann Kaspar Bluntschli, in Article 410 of his “Le Droit International Codifié,” stated the rule of international law that “the treaties which interfere with general rights of mankind or necessary principles of international law are null and void.”11 And then he laid

8 E.Suy: “The Concept of Jus Cogens in Public International Law”, Carnegie Endowment Conference on International Law, Lagonisi (Greece), 3–8 April 1966. Papers and Proceedings II, 1967. 9 Emer de Vattel: Le Droit des Gens ou Principes de la Loi Naturelle, 1758, introduction sect. 7–9. 10 See Verdross: “Jus Cogens and Jus Dispositivum,” American Journal of International Law, Vol. LX, 1966, p.55 ff.

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down in two more articles that “the treaties which introduce, extend or protect slavery, those which deny all rights to foreigners, those which are contrary to the freedom of the seas, and those which stipulate for the pursuit of religious opinions are contrary to recognized human rights and are consequently null and void, and those whose objectives are the establishment of domination of the entire world by one power and the violent suppression of a State which is capable of existence and does not menace the maintenance of peace are contrary to international law and are therefore also null and void.”12 But, some publicists of the positivist school maintained later that general international law is entirely composed of dispositive rules, which can be derogated from or excluded by treaties concluded between or among nations, and consequently that the freedom to conclude treaties by nations is almost unlimited. For example, Liszt said: “International law is jus dispositivum. It is not absolutely binding on nations, and can be altered in particular cases, if the nations concerned wish to. This originates from the basic right to independence the member nations of the international community enjoy.”13 Rousseau wrote that since international law is of an individualistic character, the principle of ordre public is almost non-existent in international law, and that to suppose the object of an international treaty could be unlawful would be actually useless.14 Morelli also said that rules of international law do not restrict a nation’s freedom to conclude a treaty in respect of the object of a treaty.15 Nevertheless, some modern publicists maintain that there are norms of jus cogens in general international law which must not be excluded by treaties and that treaties derogating from these norms are void. For example, L.Oppenheim said: “It is a customarily recognized rule of the law of nations that immoral obligations can not be the object of an international treaty. Thus an alliance for the purpose of attacking a third State without provocation is, from the beginning, not binding.”16 Likewise, A.D.McNair wrote that if State A and State B conclude a treaty whereby they purport to divide the territory of State C into two spheres of influence and agree to compel the Government of State C by the use of armed force to grant concessions for mining in these spheres to the corporations of States A and B, the treaty would be contrary to international law and void.17 Alfred von Verdross also held that although most of the rules of general international law are not peremptory, jus cogens does exist in general international law. Rules of jus dispositivum are the rules of law which nations can exclude by treaties,

11 12 13 14

See American Journal of International Law, Vol. XXIX, 1935, supplement, p.1208 ff. Ibid. F.Von Liszt: Das Völkerrecht, 12th ed. Fleischmann, 1925, p.12. Rousseau: Principes de le droit des gens, 1944. In his “Droit International Public,” Vol. I, 1970, he still denied the existence of jus cogens in international law. See the book, pp. 150–151. 15 Morelli, Nozioni di diritto iternazionale, 1951, 3rd ed., p.37. 16 L.Oppenheim: International Law, Vol. I, ed. H.Lauterpacht, 8th ed., 1954, p.896. 17; A.McNair: The Law of Treaties, 1938, p.113.


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and thus they are applicable only to the nations which have not concluded contrary treaties. For example, the rules of general international law concerning diplomatic privileges and immunities do not prevent nations from changing the rules by treaty and from granting the diplomatic envoys of each other privileges and immunities other than those prescribed in these rules. On the contrary, rules of jus cogens are the rules which must not be excluded or contravened by a treaty since they exist to satisfy the higher interests of the international community, and not to meet the needs of individual nations, as rules of jus dispositivum. Therefore, rules of jus cogens are absolute, while those of jus dispositivum are relative. A.Verdross holds that peremptory norms of general international law can be classified into three groups: (1) The first group of peremptory norms of international law requires States not to give up their rights necessary to fulfil international obligations. For example, according to international law, all nations are in duty bound to protect foreigners and thus to maintain public order within their territorial boundaries. Therefore, they must not, under treaty commitments, reduce their police or courts to such an extent that they are no longer able to maintain public order. This rule exists in the interest of the whole international community and is therefore peremptory. (2) The second group of peremptory norms of international law includes norms of general international law for the purpose of humanitarianism. These norms have emerged not for the benefit of individual nations, but for the higher interests of all mankind. Therefore, all treaties contrary to the conventions banning sales of slaves, women and children and protecting prisoners of war are null and void, and the International Court of Justice or Court of Arbitration will not apply these treaties “in contradiction to bonos mores.” Even if the nations parties to these treaties do not ratify the above-mentioned conventions of humanitarianism, the treaties they conclude in violation of the principle of humanitarianism are null and void. This is because the humanitarian principles underlying these conventions are basic principles of general international law with the character of jus cogens. A.Verdross believes that the international humanitarian principles that existed prior to World War II are augmented by the Charter of the United Nations. “To reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women,” and “promoting and encouraging respect for human rights and for fundamental freedom for all without distinction as to race, sex, language or religion” are purposes of the United Nations explicitly set forth in its Charter. Infringement on fundamental human rights means violation of the Charter, because all members of the United Nations, in accordance with Article 56 of the Charter, pledge themselves to cooperate with the Organization of the United Nations for the achievement of the purposes set forth in Article 55 which reads: “The United Nations shall promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.” (3) The third group of peremptory norms of international law are the rules in the Charter of the United Nations relating to the use of force. It consists of three

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interrelated rules. The first is that all Members of the Organization shall refrain in their international relations from the threat or use of force except in individual or collective self-defense (Article 2, para. 4, and Article 50). The second is that all Members shall settle their international disputes by peaceful means (Article 2, para. 3). The third is that all Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any State against which the United Nations is taking preventive and enforcement action (Article 2, par. 5). Clearly, these rules have been made for the common interests of all mankind. Therefore, bilateral or multilateral treaties in violation of these rules are null and void. The contracting parities are not bound by them, and neither the International Court of Justice nor a Court of Arbitration will ever regard them as valid.18 Moreover, some publicists first denied but then later agreed that there are peremptory norms in international law. The most illustrative example of this is provided by Guggenheim.19 After reviewing a good number of writings on international law we agree to the conclusion of H.Kelsen: “No clear answer to this question (i.e. whether the norms of customary general international law have the character of jus cogens or of jus dispositivum) can be found in the traditional theory of international law. Some writers maintain that there exists complete, or almost complete, freedom of contract in this respect; others maintain that treaties which are at variance with universally recognized principles of international law are null and void. But they do not and cannot precisely designate the norms of general international law which have the character of jus cogens, that is to say, the application of which cannot be excluded by a treaty.”20 (II) Jurisprudence So far as jurisprudence is concerned, no authoritative international court judgment has so far affirmed the existence of jus cogens in international law. (1) United States v. Alfred Krupp and others. In 1947–1948, the U.S. Military Tribunal in Nuremberg tried the U.S. v. Alfred Krupp and others. The defendants were accused of, apart from committing other crimes, having violated the provision in Article 31, para. 1, of the Geneva Prisoners of War Convention of 1929, that bans “employment

18 A.Verdross: “Forbidden Treaties in International Law,” American Journal of International Law, Vol. XXXI, 1937, p.571 ff. Also see Quellen des universellen Völkerrechts, 1973, p.25 ff. 19 P.Guggenheim: Traité de Droit International Public, Vol. I, 1953, p.57: “International law admits…a treaty can have whatsoever content, and that any matter can be its object…”. P.Guggenheim and K.Marek: Völkerrechtliche Vertrage: Strupp-Schloschauer: Wörterbuch des Völkerrechts, Vol. III, 1962, pp.531–532: “International law also contains compulsory norms, because it must contain such norms to become a legal order, and these norms constitute barriers to the freedom to conclude treaties.” 20 H.Kelsen: Principles of International Law, 1952, p.344.


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of prisoners of war in…work having a direct relation to war operations, including the manufacture and transport of armament and munitions…” The defendants’ plea was that the Hitler Government had concluded an Agreement with the French Vichy Government permitting such employment. The Tribunal said there was no convincing evidence of such an Agreement. But it was added in the Tribunal’s judgment that even if such an Agreement did exist, permitting the German Government to employ French POWs in the manufacturing of armament in Germany, the Agreement was obviously contrary to good morals and was therefore null and void.21 However, since the judgment is based on the absence of the said Agreement, the dictum of the Tribunal concerning the supposition of the existence of the Agreement is not the principal reason of the judgment. (2) The Wimbledon. The facts of this case are: During the Russo-Polish War of 1921, Germany, as a neutral state, prohibited the British merchant ship from passing though the Kiel Canal, in accordance with its neutrality orders, because the ship was loaded with a cargo of military material destined for Poland. Britain, France, Italy and Japan brought the matter to the Permanent Court of International Justice, insisting that Germany’s act ran counter to Article 380 of the Treaty of Versailles. The Article says: “The Kiel Canal and its approaches shall be maintained free and open to the vessels of commerce and of war of all nations at peace with Germany on terms of entire equality.” The Court’s judgment was that the Article applied to the case and Germany failed to fulfil the treaty obligation. Mr. Schücking, the German national judge ad hoc, rendered a dissenting opinion, saying that Germany, if it had permitted a merchant ship with wartime banned goods to pass through the Kiel Canal, would have violated the duties of a neutral State; that the victorious States could not be regarded as having the intention to oblige Germany, by means of the Treaty of Versailles, to violate her duties of neutrality and thus to encroach on the rights of a third State, nor could Germany undertake to encroach on the rights of a third State by treaty. However, Mr. Schücking’s dissenting opinion had no binding force on the case.22 (III) International legislation International legislation that was approaching the affirmation of rules of jus cogens before the 1969 Vienna Convention was Article 20 of the Covenant of the League of Nations and Article 103 of the Charter of the United Nations. (1) Article 20 of the Covenant of the League of Nations says: “1. The Members of the League severally agree that the Covenant is accepted as abrogating all obligations or understandings inter se which are inconsistent

21 See A.Verdross: Völkerrecht, 1964, p.172. 22 M.O.Hudson: International Legislation, Vol. I, 1934. p.163 ff.

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with the terms thereof, and solemnly undertake that they will not hereafter enter into any engagements inconsistent with the terms thereof.” “2. In case any Member of the League shall before becoming a Member of the League, have undertaken any obligations inconsistent with the terms of this Covenant, it shall be the duty of such Member to take immediate steps to procure its release from such obligations.”23 However, this Article did not provide explicitly that any treaty concluded between Member States inconsistent with the Covenant of the League should be regarded as invalid, even less that such a treaty concluded between a Member State and a nonMember State should be regarded as invalid. Therefore, this Article cannot be interpreted as a rule of jus cogens. (2) Article 103 of the Charter of the United Nations says: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”24 The interpretations of this Article differ among publicists. On the one hand, McNair said that the Articles in the Charter concerning rights and obligations are of constitutive or semi-legislative character and therefore none of the Members shall contract out or derogate from them by treaties, and that treaties attempting to contract out or derogate from these Articles are null and void. According to this view, therefore, this Article is a peremptory norm of general international law.25 On the other hand, Fitzmaurice argued that Article 103 of the Charter stipulates only that the obligations of the Members of the United Nations under the present Charter shall prevail, but not that a treaty between or among Members of the United Nations shall be regarded as null and void in the event of a conflict between the treaty and the Charter. If the execution of the treaty would result in a violation of the Charter, the treaty would be unenforceable, but not void.26 Therefore, according to this view, Article 103 and other Articles of the Charter do not have the character of peremptory norms of general international law. (IV) International practice In 1964, when the Cyprus issue was brought before the Security Council of the United Nations, the Cyprus delegate raised the question of whether Article 4, para.

23 24 25 26

Collected International Treaties (1917–1923), 1961, in Chinese, p.274. Collected International Treaties (1945–1947), 1959, in Chinese, p.58. A.D.McNair: The Law of Treaties, 1961, p.217. Fitzmaurice: The Third Report on the Law of Treaties, Yearbook of the International Law Commission, 1958, Vol. II, p.43 ff.


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2, of the Treaty of Guarantee signed in Nicosia in 1960 by Britain, Greece, Turkey and Cyprus was contrary to peremptory norms and void. The Treaty was signed when the Greeks and Turks in Cyprus were unable to become truly reconciled in their dispute over whether Cyprus should be united politically with Greece after its independence from Britain. Article 2 of the Treaty stipulates: “Greece, Turkey and the United Kingdom, taking note of the undertakings of the Republic of Cyprus set out in Article 1 of the present Treaty, recognize and guarantee the independence, territorial integrity and security of the Republic of Cyprus, and also the state of affairs established by the Basic Article of its Constitution. “Greece, Turkey and the United Kingdom likewise undertake to prohibit, so far as concerns them any activity aimed at promoting, directly and indirectly, either union of Cyprus with any other state or partition of the Island.” Article 4 says: “In the event of a breach of the provisions of the present Treaty, Greece, Turkey and the United Kingdom undertake to consult together with respect to the representations or measures necessary to ensure observance of these provisions. “In so far as common or concerted action may not prove possible, each of the three guaranteeing Powers reserves the right to take action with the sole aim of re-establishing the state of affairs created by the present Treaty.”27 In February 1964, when the Turks were losing in a sharp armed conflict between the Greeks and Turks in Cyprus, the Turkish Government threatened to take action alone. Therefore, Britain and Cyprus requested the Security Council to hold an emergency meeting to discuss the aggravating situation on the Island. In the course of the debate, the Cyprus delegate said that the action the guaranteeing nations reserve their rights to take as stipulated in Article 4, para. 2, of the above-mentioned Treaty could only be an action by peaceful means, that if it was interpreted as military interference or the threat or use of force, that stipulation would run counter to the peremptory norms of general international law stipulated in Article 2, paras. 1 and 4, and Article 103 of the UN Charter, and the Treaty would become entirely null and void. Moreover, the Cyprus delegate also invoked Article 37 of the Draft Law of Treaties prepared by the International Law Commission concerning jus cogens as the basis for his argument, the Article became Article 53 of the Convention concerning jus cogens after a few changes were made at the conference on the Convention held in Vienna in 1969.28

27 Collected International Treaties (1960–1962), 1975, in Chinese, p.173. 28 Yearbook of the International Law Commission, 1963, Vol. II, p.198.

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However, the Security Council made no decision on the interpretation of Article 4, para. 2 and the question of jus cogens. As the French delegation said, the Security Council’s function is not to provide interpretations of the rules, because that is the business of the International Court of Justice, nor to change the content of the rules, because only through negotiations among the nations concerned can the content be changed.29 III. Some questions concerning the provisions on peremptory norms in the 1969 Vienna Convention (I) The question of how to identify peremptory norms In drafting the Convention, the International Law Commission tried to give a clear definition of peremptory norms so as to make it easier for nations to identify them when they are applied. However, as Bartos, a member of the Commission pointed out, because two thirds of the members agreed to none of the formulas proposed, its Drafting Committee had to give up formulating a definition for peremptory norms.30 Secondly, the Commission also tried to explain peremptory norms by enumerating them. H.Waldock, who presented the second report on the Law of Treaties in 1963, made an enumeration of peremptory norms. He said in article 13 of his report: “In particular, a treaty is contrary to international law and void if its object or execution involves— (a) the use or threat of force in contravention of the principles of the Charter of the United Nations; (b) any act or omission characterized by international law as an international crime; or (c) any act or omission in the suppression or punishment of which every State is required by international law to cooperate.”31 At the Commission meetings, some members also said on several occasions that the following norms should also be regarded as peremptory norms and treaties contrary to them shall also be void: the norms concerning human rights, the equality of states, pacta sunt servanda, rebu sic stantibus, the freedom of the seas and the selfdetermination of peoples.32 However, the members failed to be unanimous as to which examples should be given. Some members did not even agree to giving examples at all. Therefore the Commission did not adopt this method.33 As a result,

29 30 31 32

Security Council, 19th Year, Official Records, Supplement for January, February, March, 1964. Yearbook of the International Law Commission, 1963, Vol. I, p.214. Yearbook of the International Law Commission, 1963, Vol. II. English ed., p.52. Yearbook of the International Law Commission, 1963, Vol. I English ed., pp.67 ff, 143 ff, 197, and 213 ff.


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Article 50 of the Draft on jus cogens proposed by the Commission gave neither definition nor illustration. It merely states: “A treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”34 The Commission’s report agreed that there is jus cogens in modern international law, but it said that “there is no simple criterion by which to identify a general rule of international law as having the character of jus cogens.” Therefore, “the Commission considered the right course to be to provide in general terms that a treaty is void if it conflicts with a rule of jus cogens and to leave the full content of this rule to be worked out in state practice and in the jurisprudence of international tribunals.”35 At the Vienna Conference on the Law of Treaties in 1968–1969, the vast majority of the delegates present had no objections to including rules of jus cogens in the Treaty, but they expressed dissatisfaction over the failure to give a clear definition of rules of jus cogens and proposed amendments to the draft of Article 50. Wider attention was paid to the amendment proposed by the United States and the amendment proposed jointly by Greece, Finland and Spain. The U.S. amendment says: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law which is recognized in common by the national and regional legal systems of the world and from which no derogation is permitted.”36 The purpose of the amendment proposed by Greece, Finland and Spain was to include in the treaty the concept that the rules of jus cogens must be recognized by the international community. Except for the phrase “at the time of its conclusion” that was adopted, the U.S. amendment was rejected. The tripartite amendment was adopted and put to the Drafting Committee for language polishing without changing its essence. As a result, the Drafting Committee revised the text of the draft Article into that of Article 53 of the Convention to the following effect: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” In the definition of the Article on the peremptory norm of general international law, “the international community of States as a whole” is an important concept, of

33 United Nations Conference on the Law of Treaties, Vienna, Official Records, Documents of the Conference. English ed., p.68. 34 American journal of International Law, Vol. LXI, 1967, p.409. 35 Ibid., p.410. 36 United Nations Conference on the Law of Treaties, Vienna, Official Records, Documents of the Conference, English ed., p.174.

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which two publicists have made interpretations. One interpretation was given by Mustafa Camil Yassen, Chairman of the Drafting Committee for the Conference on behalf of the Committee, when he said: “…the Drafting Committee had wished to stress that there was no question of requiring a rule to be accepted and recognized as peremptory by all States. It would be enough if a very large majority did so; that would mean that, if one State in isolation refused to accept the peremptory character of a rule, or if that State was supported by a very small number of States, the acceptance and recognition of the peremptory character of the rule by the international community as a whole would not be affected.”37 So “the international community of States as a whole” is interpreted as “a large majority of States” or all States less “a very small number of States.” Yet, what definite quantity either of these numbers amounts to is not free from ambiguity. Another interpretation was offered by another member of the International Law Commission, Mr. Roberto Ago, who says: “…il faut que la conviction du caractère impératif de la règle soit partagée par toutes les composantes essentielles de la communauté internationale et non seulement, par exemple, par les Etats de l’Ouest ou de l’Est, par les pays développés ou en voie de développement, par ceux d’un continent ou d’un autre.”38 Of course, if only States of one region or one political group affirm that a certain rule has the character of jus cogens, it is unable to make the rule a rule of jus cogens accepted and recognized by the international community of States as a whole. However, even if a rule is affirmed in common by all necessary elements of the international community to be peremptory, the affirmation may yet remain to be that of only a minority of States. Therefore, this explanation is still unable to make the term “the international community of States as a whole” as accurate as possible. In short, it is a pity that the Convention went through more than ten years of drafting and two sessions of a diplomatic Conference without giving a precise definition of jus cogens. In fact, it is not easy for the full content of jus cogens to be worked out through state practice and international jurisprudence in the absence of a precise definition of the concept. A decision of the International Court of Justice, in particular, has no binding force except between the parties and in respect of the particular case under Article 59 of the Statute of the Court. Therefore, it is very difficult for such a decision to produce a positive effect on the formation of peremptory

37 United Nations Conference on the Law of Treaties, Vienna, Official Records, First Session, English ed., p.472. 38 Academie de Droit International Recueil des Cours, Vol. CXXXIV, 1971, p.297.


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norms of general international law unless a series of decisions of the International Court of Justice can be regarded as giving rise to customary international law. (II) The questions of whether rules of jus cogens are universal international law and whether the Convention can decide that any treaty derogating from the rules is void As the two questions are interrelated, they are discussed together. Publicists are divided in their views on these two questions. On the one hand, Mr. Milan Bartos, Chairman of the Drafting Committee of the 15th Session of the International Law Commission, said that “general international law” here means “universal international law, not including regional international law.”39 Viralli also said that “general international law” in the sense of Articles 53 and 64 of the Convention refers to the rules of international law applicable to all members of the international community, in contrast with the rules of international law that are applicable to only certain nations and constitute particular international law (such as regional or bilateral rules of international law). He stressed that because jus cogens is of special importance to the whole international community—jus cogens serves the general interests of the whole international community, embodies the concept of ethics of the whole international community and guarantees the protection of all states—it must be universal and no State is allowed to say that it can be free from it.40 C.Rozakis also said: “It would be really absurd to consider that a norm of jus cogens, such as, for instance, the prohibition of war, does not apply to the entire community, and that, therefore, two or more States may deny its peremptory character and contract out of its application.”41 On the other hand, in the view of positivists, international law can be created only by the will or consent of States, universal international law can be created only by common consent of all States in the world, and non-universal international law can only bind the States which give their explicit or tacit consent to it, but cannot bind the States which do not. The States subject themselves to rules of international law by giving explicit consent through treaty or tacit consent through custom. Therefore treaty and custom are the only two sources of international law.42 According to this theory, if a rule of jus cogens is formed because it is recognized and accepted by the international community of States as a whole, the rule is naturally not binding on the States which have unequivocally and consistently objected to it in the course of its formation when it is a rule of customary international law,43 nor on the States which are not parties to the treaty when it is a rule of treaty international

39 40 41 42 43

Yearbook of the International Law Commission, 1963, Vol. I, English ed., p.204. Annuraire francais de Droit International, 1966, p.14. C.Rozakis: The Concept of Jus Cogens in the Law of Treaties, 1976, p.78, note 59. R.Ago: “Positive Law and International Law,” American Journal of International Law, Vol. LI, 1957, p.691. H.Waldock: “General Course on International Law,” Academie de Droit International: Recueil des Cours, Vol. CVI, 1962, Vol. II, p.5 ff; also see pp.49–50.

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law.44 In other words, the rule of jus cogens is not a rule of universal international law. Therefore, G.Schwarzenberger, a positivist, said that in international law, rules of jus cogens effective only among the contracting parties provide the only way that can be thought of for materializing the concept of jus cogens.45 J.Sztucki, another positivist, went even further by attacking the Convention for giving birth to a “still-born baby.” He said: “If one takes into account that, at the moment of its prospective entry into force, the Convention will be acceded to by only 1/4 of the States of the World, and that the number of acceding States is not likely to reach a very great majority in a foreseeable future—then it turns out that the Convention creates indeed, a particular law which introduces the category of ‘peremptory norms of general international law.’ Article 53 and the related articles establish, in fact, a legal regime which is a still-born baby, a regime which ipso jure can never be applied since the requirement of universality fails to be satisfied.”46 He also quoted words from a Spanish delegate’s speech at the Vienna Conference on the Law of Treaties to support his argument: “From the theoretical point of view, it was not clear how the existence of a rule of jus cogens could depend on any declaration by a group of States (i.e. not all States of the world—the author). The current Conference, for example, could establish binding rules which might be peremptory inter se, but not in respect of Third States: jus cogens, however, was universal peremptory law, as recognized by the international community binding by its very nature.”47 We find it very difficult to agree to the views expressed by the above-named positivists. First, if international law must have the consent of States before it is created, it must cease to be effective after the States withdraw their consent. Therefore positivists have based international law on a layer of loose sand. Second, the argument that international law must have the explicit or tacit consent of States is basically on an assumption, not factual. This is clearly shown when the positivist Oppenheim interpreted explicit or tacit consent by the overwhelming majority of the members of the international community as “common consent” disregarding any objections from the minority of dissenters.48 Furthermore, although treaty and custom are two important formal sources of international law there are still other equally important formal sources of international law. This is explicitly provided for in the Statute of the International Court of Justice. Finally, the Statute of the International Court of Justice expressly acknowledges the general principles of law recognized by civilized nations as the third important source of international law, but positivists have either

44 45 46 47 48

“Pacta tertüs nec nocent nec prosunt”—the Vienna Convention of the Law of Treaties, Article 34. G.Schwarzenberger: International Law, Vol. I, 3rd ed., 1957, p.427. J.Sztucki: Jus Cogens and the Vienna Convention of the Law of Treaties: A Critical Appraisal, 1974, pp.106–107. United Nations Conference on the Law of Treaties, Vienna, Official Records, First Session, English ed., p.315. L.Oppenheim: International Law, 1954, 8th ed., by H.Lauterpacht, p.17.


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ignored them intentionally or belittled their value arbitrarily. This not only shows their one-sidedness and subjectiveness, but also results in their partial negation of international law, thus partially negating the rule of law in the international community. The general principles of law recognized by civilized nations are mainly, but not limited to, the general principles of law in the private laws of different States. In the present time, all States which join the United Nations can be considered as civilized nations. That the Statue of the International Court of Justice has acknowledged the general principles of law recognized by civilized nations as the third source of international law, is partly because treaty and custom cannot fully define all rules of international law in every detail and it has long been the custom of International Courts of Arbitration to invoke the principles as international law for their awards and partly because the general principles of law recognized by civilized nations represent the common legal conviction and experience of all mankind and thus should be applied, by way of analogy, as international law when they do not conflict with the actual conditions of the international community. The principle that a treaty conflicting with a peremptory norm of general international law is void is a general principle of law recognized by civilized nations. This general principle of law originated from the principle, recognized by the internal laws of all nations, that a contract contrary to an internal rule of jus cogens is void, and when transplanted into the international community, it becomes the principle that a treaty derogating from a peremptory norm of general international law is void. As is known, international treaty and internal contract are essentially the same thing. Therefore, most of the rules on treaties in international law and most of the rules on contracts in municipal laws are similar and the former are derived from the latter. The reason why this general principle of law has existed in the municipal laws of all States is that if there was not a principle as such, all contracts contrary to the important interests of the State and the well-being of society would be regarded as valid, and that would result in the disintegration of the State and society. That this general principle of law must be introduced into the international community is because, if there was not such a principle in the international community, just as a noted German publicist in the 19th century said, “all international wrongs can become right by being raised to the legally valid content of a treaty”,49 and the consequence would be the disintegration of the international community. In time, this general principle of law in internal law has long existed since Rome, without interruption. In space, almost none of the legal systems of nations have failed to recognize it. So there is no doubt that this is a general principle of law recognized by all civilized nations. A general principle of law recognized by all civilized nations, for the very reason that it is universally recognized by all civilized nations, is necessarily universal.50 Article 53 of the Convention does nothing more than formally proclaim a general 49 G.Jellinek: Die rechtliche Natur der Staaten-Vertrage, 1880, p.59. 50 G.Scelle: Droit international public, 1944, p.400; also see H.Lauterpacht: International Law: Collected Papers, Vol. I, 1970, pp.68–77, 113–117.

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principle of law which has in fact existed for a long time. Therefore, even though not many countries participated in the Convention, it did not harm the universal validity of the general principle of law it proclaimed, and what is more, the Article was passed by a vast majority of 87 votes to 8 (with 12 abstentions). The International Court of Justice, in its advisory opinion about the Convention on the Prevention and Punishment of the Crime of Genocide, explicitly declared: “The principles underlying the Convention are principles which are recognized by civilized nations as binding on States even without any conventional obligations.”51 We feel the same about the general principle of law as stated in the Article. What has been said above tells why the Vienna Convention can include the principle binding on all nations that a treaty derogating from a rule of jus cogens is void. A rule of jus cogens which is recognized and accepted by the international community as a whole in accordance with Article 53 of the Convention and from which no derogation is permitted should be a rule of universal international law. No States, including those not parties to the Convention, may reject its binding force on them by any statement or objection. This is the natural result of the character inherent in a rule of jus cogens. Therefore, this should form an exception to the rule that a treaty cannot impose an obligation on a third State. More specifically, because of its importance, a rule of jus cogens requires every State to undertake the absolute obligation to the international community as a whole to observe it, and not only to undertake the relative obligation to observe it among or between the contracting parties. Therefore it should be binding on all nations. In international law, there is no lack of precedents that a treaty to which not all States are parties includes articles binding on a third State. For example, Article 2, para. 6 of the Charter of the United Nations says: “The Organization shall ensure that States which are not Members of the United Nations act in accordance with these principles so far as may be necessary for the maintenance of international peace and security.”52 Whether a third State agrees or not, the clause provided for the obligation applicable to it, obviously on the ground that peace is indivisible for the international community.53 Peremptory norms of general international law are also established in the general interest of the international community and are also indivisible for the international community. Therefore they should also be applicable to a third State whether it agrees or not. This does not mean, however, that peremptory norms cannot emerge in regional international law. As a matter of fact, it is naturally easier for peremptory norms to emerge among States in the same geographical region, as they have closer relations and more identical interests, than among all States of the world. Therefore, although Article 53 of the Vienna Convention does not include peremptory norms of regional

51 International Court of Justice: Reports of Judgements, Advisory Opinions and Orders: Advisory Opinion, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951, p.23. 52 Collected International Treaties (1945–1947), in Chinese, p.37. 53 H.Kelsen: Principles of International Law, 1952, pp. 347–348.


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international law, the Article should be so interpreted as to permit the emergence of such peremptory norms. If there were no universal norms of jus cogens, it would be dangerous to permit regional norms of jus cogens, because this would lead to the establishment of several regional rules of jus cogens that conflict with each other, thus creating disorder in the international community. With universal norms of jus cogens, there is no danger in permitting regional norms of jus cogens, because the latter naturally become void when they conflict with the former. (III) The question of whether a rule of jus cogens has retroactive effect In accordance with Article 53, a treaty is void only if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. This rule of intertemporal law means that a rule of jus cogens has no retroactive effect. A treaty is valid at the time of its conclusion if it does not conflict with the existing peremptory norms of general international law. Even if a subsequent peremptory norm of general international law inconsistent with the treaty should be established, the rule cannot retroactively make the treaty void from its very beginning. Of course, in accordance with Article 64 of the Convention, a rule of jus cogens created subsequently to the conclusion of the treaty will still have an impact on the treaty if it conflicts with the treaty. However, such impact is merely to make the treaty “become void and terminate.” It is very clear, under Article 53, that a rule of jus cogens has no retroactive effect. But does Article 53 itself have retroactive effect? In other words, after the Convention has entered into force, can the Convention be invoked to claim that a treaty concluded before the entry into force of the Convention was void from the very beginning because it conflicted with the rule of jus cogens existing at the time of its conclusion? The answer to this question is not clear. Article 4 of the Vienna Convention says: “Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States.” The question is whether rules of jus cogens shall apply to treaties independently of the Convention. The answer to this question depends on another question: Did rules of jus cogens exist before the Convention entered into force? However, neither governments of States nor publicists could find unanimity as regards the answer to this question. In 1963, the report of the International Law Commission, in the interpretation of Article 37 of the Draft (the Article becomes Article 53 of the Convention after revision), admitted: “The opinion of writers has been divided upon the question of whether international law recognized the existence within its legal order of rules having the character of jus cogens…”54 The opinions were divided not only among writers, but also among the delegates of the governments of States

54 Yearbook of the International Law Commission, Vol. II, 1963, English ed., p.198.

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present at the Vienna Conference on the Law of Treaties. Some delegates (such as the delegates of Lebanon, Nigeria, Ghana, Poland, Italy, Bulgaria, Ivory Coast, Malaysia, Mali, Mexico and Argentina) said that rules of jus cogens had long existed, and therefore Article 53 was no more than a codification of international law, and consequently it must be logically held that after the entry into force of the present Convention, Article 53 could be invoked to claim that a treaty concluded before the entry into force of the present Convention was void from its very beginning, because at the time of its conclusion, it conflicted with an existing rule of jus cogens,55 However, the Mexican delegate put forward a proposal that Article 53 should have no retroactive effect, though he admitted that rules of jus cogens had long existed. The proposal was supported by the Argentine delegate, but was withdrawn later.56 On the other hand, some other delegates (such as the delegates from Cuba, Chile, Turkey, Sierra Leone, Romania, Ethiopia, Australia, Brazil, Ceylon, Canada, Norway, Thailand, and Trinidad and Tobago) said that rules of jus cogens had not existed before and that Article 53 was a new creation, a progressive development of international law, and it followed logically that it had no retroactive effect.57 Finally, the delegate from Cyprus said that the Article was a codification of international law as well as a progressive development.58 As said above, we hold that the provision in Article 53 on the rule of jus cogens is a proclamation of the long-existing general principle of law recognized by civilized nations and is therefore a codification of international law and should have retroactive effect. (IV) The question of modifying rules of jus cogens In accordance with Article 53 of the Vienna Convention, a peremptory norm of general international law can be modified by a new peremptory norm of general international law. Moreover, Article 64 states: “If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.” But how does the new rule of jus cogens emerge? Generally speaking, a rule of general international law, apart from being contained in a general principle of law recognized by civilized nations,59 mainly derives from international custom or treaty. As to the question of international custom being the formal source of rules of general international law, Oppenheim said, “Whenever and as soon as a line of international conduct frequently adopted by States is considered legally obligatory or legally right, the rule which may be abstracted from

55 56 57 58 59

United Nations Conference on the Law of Treaties, Vienna, Official Records, First Session, pp. 293–334. Ibid., pp.294, 308, 325. See note 54. United Nations Conference on the Law of Treaties, Vienna, Official Records, First Session, English ed., p. 305. Yearbook of the International Law Commission, 1963, Vol. II, p. 155.


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such conduct is a rule of customary international law.”60 Therefore, for a rule of general international law to arise from custom, two requirements must be met: 1. the same international conduct that all states repeatedly adopt, that is, an international practice; 2. such international practice is regarded by the vast majority of States as legally obligatory or legally right, that is, “opinio juris.” Now, suppose there is already a rule of jus cogens in the international community that conforms to Article 53 of the present Convention, and a certain State adopts a conduct contrary to the rule of jus cogens, how can that conduct which derogates from the rule of jus cogens from the very beginning be regarded by the international community as a whole as “legally obligatory or legally right”? How can it be conceived that it should be ultimately developed into a new rule of jus cogens as a modification of the old? Therefore it is theoretically impossible to create a new rule of jus cogens through international custom as a modification of the old. This is why the International Law Commission says in its report: “A modification of a rule of jus cogens would today most probably be effected through a general multilateral treaty.”61 Moreover, whether an old rule of jus cogens could be modified through a declaration or resolution adopted by the United Nations General Assembly is also a question that merits study. Under Article 10 of the Charter of the United Nations, a resolution adopted by the U.N. General Assembly is none other than a recommendation that has no legal binding force. Therefore, even if a resolution of the United Nations is adopted almost unanimously in the name of a “declaration,” it is still nothing but a recommendation that has no legal binding force under Article 10 of the U.N. Charter. However, according to some international law doctrines, if States show by declaration or any other action their recognition of the principle of law proclaimed in the resolution before or after it is adopted by vote, the principle of law has a legal binding force on the States which recognize it.62 If the principle of law is recognized by as many states as required for “the international community as a whole” provided for in Article 53 of the present Convention, and if the principle of law is in essence a new rule of jus cogens different from the old rule, the new rule of jus cogens is thus established as modification of the old rule. (V) The question of sanction against a treaty conflicting with a rule of jus cogens This question can be divided into three parts: (1) Is a treaty severable? (2) How to eliminate the consequences? and (3) Who has the right to say that a treaty is invalid?

60 L.Oppenheim: International Law , Vol. I, 1954, 8th ed., by H.Lauterpacht, p.20. 61 United Nations Conference on the Law of Treaties, Vienna, Official Records, 1971, English ed., p.68. 62 See A.Verdross: Die Quellen des universellen Völkerrechts, 1973, p.140.

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(1) The question of whether a treaty is severable On this question, H.Waldock, Special Rapporteur on the law of treaties, proposed the following draft Article in his report of 1963: “If a provision, the object or execution of which infringes a general rule or principle of international law having the character of jus cogens, is not essentially connected with the principal objects of the treaty and is clearly severable from the remainder of the treaty, only that provision shall be void.”63 However, the majority of the members of the International Law Commission at the 1963 session held this view: “Rules of jus cogens are of so fundamental a character that, when parties conclude a treaty which conflicts in any of its clauses with an already existing rule of jus cogens, the treaty must be considered totally invalid.”64 Since then, the Commission has consistently stuck to this position. At the 1968 Vienna Conference on the Law of Treaties, the Finnish delegate proposed two amendments to the final draft on the inseverability of a treaty prepared by the Commission, in an attempt to sever the clauses conflicting with and not conflicting with a rule of jus cogens in the same treaty and to stipulate that only those conflicting with a rule of jus cogens are invalid, but his efforts failed.65 Under Article 44, para. 5 of the Vienna Convention, when a treaty falls under Article 53 and is regarded as invalid from the beginning, the provisions of the treaty are not allowed to be severed so that those that do not derogate from the rule of jus cogens are considered valid. That is to say, the provisions of a treaty that conflict with the rule of jus cogens seem to “infect” their illegality to the other provisions of the treaty that do not conflict with the rule, thus making the whole treaty invalid. We hold such a provision unreasonable. Freedom to conclude treaties is a basic rule of international law, and the invalidation of the provisions of a treaty not conflicting with rules of jus cogens simply because some other provisions of the treaty conflict with a rule of the character of jus cogens should not be used as a sanction against the contracting parties. To make the part of the treaty not conflicting with rules of jus cogens invalid can result only in hindering the normal intercourse and interdependence among nations. However, where a new rule of jus cogens emerges, it is doubtful under the Vienna Convention if the provisions in the same treaty conflicting with and not conflicting with the new rule of jus cogens can be severed and only those provisions conflicting with the rule are considered invalid. This is because Article 44, para. 5 of the Convention only provides: “In cases falling under Articles 51, 52 and 53, no separation of the provisions of the treaty is permitted.” It makes no mention of Article 64. From this an inference can be drawn that under Article 64, separation of the provisions of the treaty is permitted.66 However, Article 64 does not say in explicit

63 Yearbook of the International Law Commission, 1963, Vol. II, p.32. 64 Yearbook of the International Law Commission, 1963, Vol. II, p.199. 65 United Nations Conference on the Law of Treaties, Vienna, Official Records. First Session, English ed., pp.228, 294–295, and Documents of the Conference, pp.163, 174. 66 O.Elias: The Modern Law of Treaties, 1974, p.182.


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terms that the provisions can be separated and that only some of them are invalid. Moreover, Article 71, para. 2 (a) of the Convention states: “In the case of a treaty which becomes void and terminates under Article 64, the termination of the treaty releases the parties from any obligation further to perform the treaty.” “Performing the treaty” here may be interpreted as performing the whole treaty, and thus the provisions of the treaty again seem inseparable.67

(2) The question of how to eliminate the consequences A treaty conflicting with a rule of jus cogens is invalid from the very beginning under Article 53 of the Convention if it conflicts with the existing rule of jus cogens at the time of its conclusion. In this case, the contracting parties have no obligation to perform the treaty. However, if one party has performed all or part of the obligations under the treaty, should the consequences of the performance be eliminated so that all contracting parties restore the original state of affairs before the treaty is concluded? Article 71, para. 1 of the Convention gives the following answer to this question: First, eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law; second, bring their mutual relations into conformity with the peremptory norm of general international law. Therefore, this provision, in effect, distinguishes the provisions that conform to the rule of jus cogens from those that conflict with the rule in the same treaty and limits the scope of eliminating consequences to the performances in respect of the provisions that conflict with the rule of jus cogens. On the other hand, if a treaty does not conflict with existing rules of jus cogens at the time of its conclusion, but conflicts only with a new rule of jus cogens created afterwards, the treaty is invalid not from the beginning under Article 64 of the Convention, but from the time when it conflicts with the new rule of jus cogens subsequently created. Under Article 71, para. 2 of the Convention, the termination of the treaty releases the parties from any obligation further to perform the treaty on the one hand, and on the other, although any right, obligation or legal situation of the parties resulting from the execution of the treaty before its termination is not affected, the maintenance of these rights, obligations or legal situations is permitted only when the maintenance does not conflict with the new rule of jus cogens. Explaining on the latter point, the International Law Commission says: “A right, obligation or legal situation valid when it arose is not to be made retroactively invalid; but its further maintenance after the establishment of the new rule of jus cogens is admissible only to the extent that such further maintenance is not in itself in conflict with that rule.”68

67 See J.Sztucki: Jus Cogens and the Vienna Convention of the Law of Treaties: A Critical Appraisal, 1974, p.182. 68 United Nations Conference on the Law of Treaties, Vienna, Official Records, Documents of the Conference, 1971, English ed., p.86.

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(3) The question of who has the right to say that a treaty is invalid On the question of who has the right to say that a treaty conflicts with a rule of jus cogens of general international law and shall be considered invalid, Article 65, para. 1 of the Convention clearly provides that the right belongs to the parties. This is the natural result of the principle that “pacta tertüs nec nocent nec prosunt.” At the Vienna Conference on the Law of Treaties, however, delegates from some countries said that States not parties to a treaty could also invoke the concept of jus cogens to oppose a treaty concluded by other States. For example, the Chilean delegate Barros said: “…jus cogens could be invoked not only by the parties to a treaty but— what was far more dangerous—by any States.”69 His view is not correct under the above-mentioned provision. Of course, if the treaty concluded between State A and State B conflicts with a rule of jus cogens and harms the rights of State C, they are responsible to State C for reparation of the injury done to State C, just as they are responsible to State C if their wrong is done to State C in contravention of a rule of jus dispositivum. Under such circumstance, State C can also claim that the treaty is void. However, if the treaty does not harm the rights of State C, it has no right under Article 65, para. 1 of the Convention to interfere with the treaty concluded between States A and B. It is true that Article 53 of the Convention provides, “a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted,” but the Convention does not give a third State the right to interfere with the treaty conflicting with a peremptory norm of general international law on behalf of the international community. (VI) The question of the procedures of settling disputes As to a dispute over jus cogens provided for in Article 53 and Article 64 of the Vienna Convention, in accordance with Article 65, para. 3 of the Convention, the parties to the dispute shall, as indicated in Article 33 of the Charter of the United Nations, seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other means of their own choice. If the dispute cannot be settled according to the procedure mentioned above in 12 months after it arises, any party to the dispute shall submit it to the International Court of Justice by a written application, unless all parties submit the dispute for arbitration by common consent under Article 66(a) of the Convention. The provision in Article 66(a) was the outcome of repeated struggles of the Western countries with the Third World countries and Eastern European countries. Because parties to the dispute have agreed to the provision when they ratify or accede to the Convention, if the dispute arises, a party need not get the consent of other party or parties before submitting the dispute to the International Court of Justice. However,

69 United Nations Conference on the Law of Treaties, Vienna, Official Records, First Session, p.299.


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due to the reservation clauses contained in the Convention, there is already difficulty in the application of this provision. For example, on June 23, 1971, Tunisia made a reservation in its instrument of accession to the Convention: “The dispute referred to in Article 66(a) requires the consent of all parties thereto in order to be submitted to the International Court of Justice.” The United Kingdom, the United States, New Zealand and Sweden all raised objections to the reservation. The United Kingdom said that it would not accept the entry into force of the Convention as between the United Kingdom and Tunisia. The three others said that they would be in treaty relations with Tunisia, only with the exception in respect of the provisions of the Convention concerning jus cogens.70 IV. Conclusions (1) It is impossible for any legal order to contain only dispositive norms which can be excluded freely by the subjects of law. The theory that a sovereign State has the right to contract out of all rules of international law by treaties tends to negate the legality of international law and is contrary to the objective reality and needs of the international community. The principle that a treaty conflicting with a rule of jus cogens is void is a general principle of law recognized by civilized nations, an important principle of law of long existence. It was first affirmed explicitly in the Vienna Convention—something which only can be regarded as a major event in the history of international law. By virtue of the expressed provisions of the Convention, international law, like municipal law, draws a clear distinction between the rule of jus cogens and the rule of jus dispositivum: the former stands in higher rank than the latter; and the former, which exists in the interest of the whole international community, is an absolute rule from which no derogation is permitted by treaty, while the latter, which exists to meet the needs of individual States, is a relative rule that can be excluded by a treaty. (2) However, the provisions of the Convention concerning jus cogens cannot be considered perfect. The main drawback is that the procedure of its creation, its scope and content are not stated explicitly enough, which is apt to cause disputes as to its application, and sometimes the disputes seem to be difficult to settle. This is harmful to the stability of treaties. However, since under Article 53 of the Convention, a peremptory norm of general international law must be “accepted and recognized by the international community of States as a whole” before it can be established, which is not very easy to prove, there will be, in fact, probably not many cases of the invocation of Article 53 or Article 64 for impeaching the validity of a treaty or terminating it. (3) The study of jus cogens clearly shows it is contrary to the objective reality and needs of the international community that positivists take the will or consent of States

70 Multilateral Treaties Deposited with Secretary-General, 1980, p.507 ff.

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as the sole basis for international law, and treaty and custom as the only two sources of international law. In view of the reality, it is not only necessary to acknowledge the general principles of law recognized by civilized nations as one of the formal sources of international law, but also necessary to make a further study of the problem of under what conditions declarative resolutions containing general principles of law adopted unanimously or almost unanimously by the General Assembly of the United Nations can be considered a formal source of international law. accomplice responsibility 451

Index

Agenda for Peace 154–9, 165; Supplement to Agenda for Peace 154–9 aggression 202–8, 216, 218–22 Akayesu case 376, 452, 458, 462, 466, 468–70 Akdivar & Others v. Turkey 392–4, 409, 416, 421 Aksoy v. Turkey 416 Al-Adsani v. Government of Kuwait 259 Aleksovski case 49–50, 440, 456, 463 American Convention on Human Rights 175–6 Andrassy, J. 349 Anglo-Norwegian Fisheries case 79 Annan, Kofi on Kosovo 167–9 Arbitral Award of the King of Spain 437 armed conflict: existence 454–5; international v. internal 307–33, 446–72; non-nternational and war crimes 115–6 Asian financial crisis 131–47; role of IMF 139–40 Atlantic and Hope Insurance Companies (The Mechanic) 74 Atwood, B. 230 Austria v. Italy (Pfunders case) 175 Aydin v. Turkey 416 Barcelona Traction cast 177–9 Baxter, R. 23–4 Beckman v. Chinese People’s Republic 368 Belgium 482–95; on humanitarian intervention 248, 253 belligerency 294–5 Berlin, I. 37–38 Blaskic case 439 Blinder, A. 141 n.52 Bosnia and Herzegovina v. Yugoslavia 403–4 Bosnia “safe areas” 157–8, 165 Boutros-Ghali, Boutros 154, 164–5, 167; see also Agenda for Peace Breard case (Paraguay v. United States) 405–6 Bretton Woods Framework 132–9

Brierly, J. 22 Brownlie, I. 33, 79 Byers, M. 56–8, 66–7, 73–5

Cable & Others v. United Kingdom 421–2 Cameroon v. Nigeria 404 Canadian Supreme Court 78, 231–2 Cassese, A. 32, 35, 236–7 Celebici (also Celebici) case 216, 221, 325, 379–80, 451, 456–8, 463–5, 470, 572 CERD, see Committee on the Elimination of Racial Discrimination (CERD) Certain Expenses case 151 n.16, 157 n.58 Chechnya case 186 Chen, T. 365 Cheng, B. 23, 56–76 China, aide memoire on immunity 3 6 4–5; comment on immunities 3 6 9–71; relation with international organizations 371–2; sovereign equality 224–39 China National Chemical Import & Export Corp. v. M/V Lago Hualaihue 363–4 Civil Air Transport Inc. v. Central Air Transport Co-operation 366 Civil and Political Rights, Covenant on: art. 2.3a 174–6 civil war: compared to international conflict or belligerency 294–5 civilian leaders, see command responsibility civilians, protection of and crimes against in armed conflicts 289–93, 297–304 co-existence, law of 20–22 Cold War 4–7, 18–22; see also post-Cold War collective guilt, punishment 298–9 colonialism 335–6 command responsibility 304–5; control, de jure or de facto, 378–80; especially as 523

524

Index

applied to civilian leaders 373–84, 452, 471; mens rea 305, 380–83, 451 Committee of Ministers, Council of Europe 272, 409–22 Committee on the Elimination of Racial Discrimination (CERD) 336–47; conflict Swith European Court of Human Rights 346–7 compétence de la compétence, principle of 473–9 consent theory of international law 22, 511–3, 520–1 Constitutional Court of the Russian Federation, see Russia continental shelf 119–30; 1958 Geneva Convention 122; 1982 Law of the Sea Convention 123–6 contract law: jus cogens 499–501 control, de jure and de facto 378–80 co-operation, law of 22–7 co-progressiveness, law of 19, 28–39 crimes against humanity 290–3, 435–6, 441–5; discriminatory intent 468–9; no state immunity 261–5; and war crimes 105 n.21, 112–13, 115 cruel treatment, elements of: as elaborated by ICTY 450, 461–2, 484 cultural heritage zone, see maritime cultural property cultural property 119–30; see also maritime cultural property customary law: opinio juris 56–76; emerging regime on maritime cultural property 119–30; genocide 289–90; human rights 171–81; jus cogens 499–522; war 293–304 D’Amato, A. 56–7, 66, 76 Dayton Peace Agreement 158, 162, 315–6, 327 de Visscher, Ch. 21 n. 11, 24 declaration, friendly relations, see Friendly Relations Declaration Declaration on the Granting of Independence to Colonial Countries and Peoples 231 Delalic case 51, 325, 434 delegation of UNSC enforcement power 148–70 Delic case 440 democracy 12–13, 38–9 détente 4–7, 22–7 differentiated responsibility 31 discrimination, racial 334–47

discriminatory intent, see crimes against humanity Dokmanovic case 434 Dönitz 212 double criminality, principle of 265–7 double standards 36, 235, 237–8 dualism 184–7 duress, defence of 77, 85–95, 452–3, 472 East Timor case 180 Effect of Awards case 477 Einsatzgruppen case (U.S. v. Ohlendorf et al.) 87 end of history 7–10 enforcement actions of UNSC 148–70 environment, right to a favorable 185 environmental law: differentiated responsibility 31; international 119–30 equality, sovereign 224–39 Erdemovic 47, 49–50, 77–8, 93–5, 452–3, 472 erga omnes, obligations 31–2, 175–81, 205, 207 ethnic cleansing 313, 328 European Convention on Human Rights 171–81; accession by EEC or other international organizations 172–3; Arts. 8–11 and public morality as a restriction 268–77; drafting history 272–6; execution of judgments 409–422; Protocol 11 amending the Convention 427–9; relation with elimination of racial discrimination 345–7; relationship with European Union law 429–30 European Court of Human Rights 387–97; 4 2 3–3 2; execution of judgments 409–22; local remedies and subsidiarity 392–4; margin of appreciation 394–7; relationship with ECJ 429–30 European Court of Justice (ECJ) 172–4 ex post facto laws, in Pinochet case 266–7 exhaustion of local remedies 392–4 extermination, as crime against humanity 469–70 Extradition Act 1989 (UK) and Pinochet case 257–8 fairness, procedural 36 Finnis, J. 26–7 Fisheries case (Anglo-Norwegian Fisheries case) 79 Fitzmaurice, G. 22 n.15 five principles of peaceful co-existence, see Sino-Indian five principles of peaceful co-existence

Index

food, see starvation as a weapon Friendly Relations Declaration 226–7 Fukuyama, F. 7 Furund•ija (also Furundzija) 48, 50, 52–3, 442, 451, 464–5, 470 Gaskin v. United Kingdom 415 General Assembly, United Nations 8–9, 16–18 general principles of law 43–6; as applied in Russia 187–92, 197–201; contribution of ICTY 47–55; jus cogens 511–7; on protection of minorities 348– 56; value-neutral 62 Geneva Civilian Convention 297–304 Geneva Conventions of 1949 on humanitarian law 293–304, 307–33; common art. 3 issues 449–50, 460–4; criteria for international armed conflicts prescribed by 204, 213–8; grave breaches and war crimes 106–8, 113–5; Protocol I 286–88; see also grave breaches genocide 174–6, 289–90, 403–4; GA Res. 96(I) 71–2; ICTY & ICTR 466–8 genocide fax 36 n.98 Germany v. United States (LaGrand case) 405– 6, 494–5 government and scholars 358 grave breaches 106–8, 113–15, 293–304, 322–8; art. 2 of ICTY Statute 454–9; see also Geneva Conventions of 1949 Grisbadana 20 Grundnorm 4 Guggenheim, P. 19 Hague Conventions of 1899, 1907 on laws of war 100–4 Hague Law 100–4, 459–65 Hart, H.L.A. 21, 26 heavy footprint State 21, 24 High Command case (U.S. v. von Leeb et al.) 89 Hostage case (United States v. Wilhelm List et al.) 381–2 n.38 human flourishing 37–9 human responsibility 37–9 human rights 20–1, 25, 31–2, 37–9, 289– 306; cases in Russia 187–201; civil and political compared to economic and social 18–39, 184–7; ICJ 398–408; judicial procedures 423–32; margin of appreciation 431–2; minorities 348–56;

525

second and third generation 184–7; State responsibility 171–81, 202–9; see also self-determination humanitarian intervention 7–17, 35, 235– 38, 240–53, 278–88; lex ferenda 282–6 humanitarian law 99–118, 289–306, 307– 33, 446–72 Hungtington, S. 233 Hutu 373–84 ICTR 373–84; art. 6 of the Statute on command responsibility 373–4; cumulative charges 442–5; see also ICTY ICTY 446–72; concept of war crimes 108–10, 117; cumulative charges 442–5; conflict with ICJ 324–9; internal armed conflict 115–6, 213–8; see also command responsibility; general principles of law; genocide; grave breaches; individual criminal responsibility I.G.Farben case (US. v. Krauch et al.) 87 immunity, Head of State 261–5 immunity of State, 261–5, 357–72; case studies 362–8; Chinese attitude, history of 358–62; current approach 368–72 indictments: challenges to 433–45; cumulative charges 442–5; form 435–42; who to be indicted 433–5 individual criminal responsibility 99–118, 202–8, 210–23, 450–3 infinite variety of international law 23–4 inhuman treatment 463–4 injured State, definition of 26, 179–80, 207– 8 international armed conflict v. internal armed conflict 213–8, 307–33 International Bank for Reconstruction and Development (IBRD), see World Bank international civil society, see NGO International Committee of the Red Cross (ICRC) 320–1, 325 International Convention on the Elimination of All Forms of Racial Discrimination 334–47; conflict with

526

Index

European Convention on Human Rights 346–7; post-Cold War 337–47; pre-Cold War 335–7 International Court of Justice: arts. 38 and 59 of the Statute and issue of stare decisis 78–85; conflict with ICTY 324–9; individual 401; jus cogens 520–1; mandate of and relation to human rights protection 398– 408; optional clause declarations 480–95 international crimes 88–118, 202–8, 289– 306; distinguished from international delicts 202–8 International Criminal Court (ICC), see Rome Statute of the International Criminal Court International Criminal Tribunal for Rwanda, see ICTR; ICTY International Criminal Tribunal for the former Yugoslavia, see ICTY International Law Association (ILA), draft Convention on underwater cultural heritage 126–8 International Law Commission (ILC): China’s comments regarding immunity 369–71; on command responsibility 377–8; see also State responsibility International Monetary Fund (IMF) 131–47; governance 138; human rights 143–4; politicization 134–8; reforms 141–7 international organizations: responsibility for international crimes 209–10 Ireland v. The United Kingdom 175, 178, 420 Irish Abortion case 173 Jackson v. People’s Republic of China 364–6 Jennings, R. 79 Jersild case 345–6 Jiang Zemin 225 joinder and severance, issues of 434–5 judicial review 33, 473–9 jurisdiction 473–9, 480–95; ICTY and ICTR 448–50; intention 490–91; optional clause declarations 480–91; prima facie 480–91; reciprocity 481–5; reservations 480–91; universal, crimes of 254–67; see also International Court of Justice jus ad bellum 308–10, 320 jus cogens 289–90, 499–522; before the 1969 Vienna Convention 501–08; in the 1969 Vienna Convention 508–21; Cyprus Question 507–08; identification 508–11; international crimes 202–23, 261–7;

modification 516–7; in municipal law 499–501; retroactive effect 515–6; sanctions 517–20; see also erga omnes jus dispositivum 500–1 jus in bello 307–333; and jus ad bellum 99– 118, 308–10, 320 just satisfaction 410–13, 421–2 Justice case, U.S. v. Josef Alstötter 436–7 Kant, I. 38 Kayishema and Ruzindana 373–84, 438 Kingsbury, B. 226, 234 Kordic and Cerkez 442 Koskenniemi, M. 228 Kosovo, conflict in 7–17, 35, 230–9, 240– 53, 278–88 Kovacevic 435 Kremzow case 173 Krnojelac 439 Krupp case 88–9, 434, 504–5 Kuhn, T. 3–4 Kupreskic 47–53, 443 Kurds 237–8 Kvocka et al. 435 Labor Code case 192 LaGrand case, see Germany v. United States Lauterpacht, H. 235–6 Lawless case 395 leader responsibility, see command responsibility legality, principle of 51–2, 54, 265–7 Legality of Use of Force cases 36, 240–53, 480–95 Libya v. United Kingdom, see Lockerbie Li Haopei xx–xxix; dissenting opinion Tadic 293–4, 307–33, 454–5, 460, 474; immunity of State 360–1; jus cogens 499–522; separate and dissenting opinion in Erdemovic 77–8, 452–3 liberty 37–39; induced 37–38; negative 37; positive 37 Lieber Code 100–1 Lockerbie case 8, 33, 485 Loizidou v. Turkey 418 Luther v. Borden 476 Marckx v. Belgium 420–1 margin of appreciation 394–7 maritime cultural property 119–30; 1958 Geneva Convention on Continental Shelf 122; art. 303 of 1982 Law of Sea Convention 123–6; draft conventions by

Index

UNESCO and ILA 126–8; State practice 128–30 McDonald, Judge: dissenting opinion in Tadic 455–6 McNair, A. 82 Medical case (U.S. v. Karl Brandt et al.) 437–8 Mendelson, M. 56–9, 71, 73 Mentes & Others v. Turkey 416 military commanders, see command responsibility Ministries case (U.S. v. Ernst von Weizsaecker et al.) 437 Modinos v. Cyprus 415 Mucic 438 multipolarity 233 municipal law: concept of opinio juris 58–61; concept of war crimes in 99–118; judicial systems compared to the international system 475–7; jus cogens 499–501 murder 464, 469 My-Lai massacre 211 nationalism 11–12; 38–9 NATO 234–35; Alliance’s Strategic Concept 234, 278–88 necessity, defence of 85–95 NGO 29, 144–6 non-governmental organizations (NGO), see NGO non-intervention 206, 219, 221; see also humanitarian intervention North Atlantic Treaty Organization (NATO) 148–70, 240–53, 480–95 Ni, Z. 361–2 Nicaragua v. United States 178, 221–2, 314, 325 Nuclear Weapons, advisory opinion 14–15, 406–7 Nuremberg Principles: on immunity for crimes 262–4, 266 Nuremberg War Crimes Trials 100, 104– 118, 433–45; Döratz and Raeder 212; duress, necessity, superior orders 85–95 obligation to obey, prima facie or general 22, 26–7, 34–5 Oda, Judge 398, 405–6 One World paradigm 4 Operation Allied Force 278–88 opinio juris 56–76; executive and legislative branches 278; rewrite 278

527

Opium War 358–9 Oppenheim 225–6 OSCE 234–5 Paquete Habana 20 paradigm shift 3 Paraguay v. United States, see Breard Paris, Charter of 334 Paterson, Zohonics (UK) Ltd. v. Compania United Arrow, S.A. 363 peace and security 240–53 peacekeeping operations, UN 148–70, 210–1 peremptory norms, see jus cogens Permanent Court of International Justice (PCJ) 44–6, 397 Pictet, J. 299 Pinochet case 15–16, 254–67 politicization, see International Monetary Fund, World Bank positivism, see consent theory of international law post-Cold War 7–17, 28–39 precedent 77–85, 93–5 Prosecutor v. Akayesu 374 n.14 Prosecutor v. Furund•ija see Furund•ija Prosecutor v. Karadzic, Mladic 303 Prosecutor v. Kayishema and Ruzindana 373–84 Prosecutor v. Tadic (also Tadic) 49, 99, 116, 214, 263, 293–4, 309, 322–33, 450, 454–6, 459, 462–4, 469, 473 Prosecutor v. Rajic 318 Prosecutor v. Martic 318 Prosecutor v. Delalic see Delalic prosecutorial discretion 433–4 protected persons 307–33, 454–7 Protocol I to Geneva Conventions 286–88; see also Geneva Conventions provisional measures of the ICJ 246–53, 403–6, 480–95 punitive damages 421–2 Qian Qichen 233, 239 Quebec 78, 231–2 Raeder 212 rape, as war crime 464–5 Raz, J. 26–27; 34–5 reciprocity, principle of 73–4 Reference re Secession of Quebec 231–2 regional arrangements under Chp. VIII of UN Charter 148–70 relative normativity 24, 31

528

Index

Reparation case 21, 153 Robertson, G. 281 Robinson, Mary 13, 237, 238 n.64 Röling, B. 376 Rome Statute of the International Criminal Court: art. 16 on Security Council 33; art. 21 and general principles, 46, 52, 55; art. 21 and precedent 9 5; command responsibility 382–3; crime against humanity 290–93; genocide 290; war crimes 110, 116, 293–306 Russia: human rights 182–201 Rwanda conflict 373–84; UNSC role in 36, 161, 165–6, 237 sanctions, image 34–5; membership 21, 26; traditional 21; violations of international criminal law 306 Scott v. People’s Republic of China 362–3 sea, law of the: 1982 Law of the Sea Convention 123–6 secondary rules on individual responsibility for war crimes 112–4, 116–9 Selçuk & Asker v. Turkey 421 self-defence 279; collective 152, 159, 161 self-determination 32, 230–3, 319–20, 331, 342–3 self-executing v. non self-executing treaties 194–7 severability: jus cogens 518–9 sexual violence, as war crime 458, 464, 470; see also rape Shi, Judge 487–8 shipwrecks 119–30 Sierra Leone 237 Simic et al. 435 Sino-Indian five principles of peaceful coexistence 21, 224, 357–8 Socialist Party & Others v. Turkey 413 Somalia 156–62, 164 sources of law: customary international law 21, 23–24, 29–30, 56–76; distinction between ICJ and international criminal tribunals 81; general principles of law, judicial decisions 77–95 sovereignty, generally 224–39; concept 225–6; Chinese view 226; economic integration 357–72 Spain 481–2 Spain v. Canada 490

specially affected states 23–24 standing, lack of, individual before the ICJ 401 starvation as a weapon 300–1 state, act of, doctrine 256 state immunity, see immunity of State state practice: as evidence of opinio juris 75 state responsibility: human rights 171–81; 314, 325–33, 480– 95; ILC draft articles 177–81, 202–9; international crimes 202–10 statehood 318–20, 333; see also selfdetermination Stauder case 429 Stjerna case 395 n.16 Stran Greek Refineries and Stratis Andreadis v. Greece 412 superior responsibility, see command responsibility Tadic (also Tadic) case, see Prosecutor v. Tadic Talbott, S. 235 target, civilian and military 286–88 Tehran Hostages case 179–80 Teitgen, P. 271, 275 Tekin v. Turkey 416 territorial sea: opinio juris on 12-mile rule 68 Thornberry, P. 349–50, 355 torture, as crime against humanity 254–67 Torture Convention 254–67 treaties: 1969 Vienna Convention on the Law of Treaties 499–522; effect of war on 216–7; unequal 358–59 Truman Proclamation: opinio juris 70, 74–5 tu quoque 212 Tutsis 373–84 unilateral state action 240–53 United Kingdom: humanitarian intervention 245, 247, 249–50, 252 United Nations Charter 234–8, 359, 364–65; art. 2(4) and use of force 240–53; Chapter VII 148–70, 243–4; art. 103 and jus cogens 506 United Nations General Assembly: resolutions 58, 71–3 United Nations Secretary-General, changing role of 166–9 United Nations Security Council 3–17, 21, 32–6, 116–9, 148–70, 224–39, 240–53, 277–88 United States v. Alfred Krupp 88–9, 434, 504–5

Index

United States v. Lombera Camorlinga 206 Uniting for Peace Resolution 8–9, 17–19 Universal Declaration of Human Rights 177, 271–2 U.S. v. Ernst von Weizsaecker et al. (Ministries case) 437 U.S. v. Flick et al. 86–7 U.S. v. Josef Alstötter (Justice case) 436–7 U.S. v. Karl Brandt et al. (Medical case) 437–8 U.S. v. List, et al. 303 use of force 7–17, 35, 202–23, 240–53, 480–95; implied authorization by UNSC 243–44 Vereshchetin, Judge 487, 492–4 Vukas, B. 348–56 Wang, T., on immunity 361 war crimes 293–306, 307–33, 433–45; concept and history 99–118; see also Geneva Conventions; grave breaches; jus cogens

529

Weeramantry, Judge 486–91 Weil, P. 24–5, 31 Weston, Sir John 237 Wimbledon case 505 World Bank 131–47; governance 138; human rights 143–4; politicization 134–8; reforms 141–7 Yasa v. Turkey 416 “Yonghao” Oiltanker 367 Yugoslavia, former 210, 212, 217, 307–33, 480–95; see also humanitarian intervention; ICTY Yugoslavia v. Belgium; Yugoslavia v. Canada, Yugoslavia v. France; Yugoslavia v. Germany; Yugoslavia v. Italy; Yugoslavia v. Netherlands; Yugoslavia v. Portugal; Yugoslavia v. Spain; Yugoslavia v. United Kingdom; Yugoslavia v. United States; see Legality of Use of Force Zhou En-Lai 367

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