Sources of the law of armed conflict
|Cours||International humanitarian law|
We are not going to discuss the sources of general law, we have seen it in the course of public international law, but rather to say some specificities of the sources of the law of armed conflict.
- 1 The Treaties
- 2 The custom
- 3 The General Principles of Law
- 4 The Martens Clause
- 5 The Law of human rights
- 6 Annexes
- 7 References
The Treaties[edit | edit source]
First and foremost, there are the treaties. Before I say the role that treaties play, a fundamental role in the law of armed conflict, there is not a single area of international law where there are more treaties, more codification than the law of armed conflict. Before we do that, let us present the three most important sets of conventions in IHL with which we will constantly work. Presenting them means putting them in their historical context and saying a few words about their content. We will then analyse in more detail the provisions in the various chapters where this will be necessary.
The Conferences[edit | edit source]
The first codification of the law of armed conflict took place at the very end of the century, namely in 1899 with the 1907 Review Conference and the next Review Conference would have been in 1914. It did not take place because of the First World War.
There had been some attempts before The Hague in 1899 to generally codify the law of war, but it had not been successful, notably the Brussels Conference of 1874 because too strong differences had emerged between some States on specific issues and in particular the status of combatant which was highly controversial at the time. It is still so today, but not in the same way. The problem at the time was that militarily powerful States only wanted to have recognized as combatants members of the regular armed forces and that small States, sometimes without a regular army, said that in the event of aggression they should also be able to stand up to civilians who would take up arms more or less spontaneously in order to defend the country and a consensus could not be reached on this very difficult issue. It is difficult because we try to separate the combatant from the civilian in order to protect civilians, and if we are not clear in the distinction between the combatant and the civilian, it always becomes complicated in IHL. That's what we couldn't agree on.
For small states, it was still fundamental to have civilians to defend them, because if a state does not even have a regular army or if it is very small, there is no choice. For large states, it was convenient to say that only the regular army because it benefited them.
So, important preparatory work existed, but there was no law of war at the international level, there was a codification at the internal level, as, for example, the United States with the Lieber code had a very good codification already applied in its civil war, namely the Civil War.
This was achieved in 1899 with the Hague Conference, whose main purpose was not to codify the law of war. The main purpose of this conference was twofold: disarmament on the one hand and the peaceful settlement of disputes on the other. In any case, it was therefore a question of preventing war, not so much of organizing it, of laying down rules for doing so, but of preventing it by arbitration, if possible compulsory, first because a settled dispute is a dispute that will not lead to war, and then disarmament, because the link between the means of waging war and peace is quite obvious, in any case, this is one of the great theses of the nineteenth century, which is that it is overarmament that also leads to armed conflicts.
It quickly became clear at the Hague Conference that progress could not be made on these two issues, at least not decisive progress; on disarmament, in any case, no real progress could be achieved even if only because at the time States had very different growth rates in the military field. There were States making considerable efforts to modernize the army, it was a time of motorization of the army, and therefore of great expansion in the development of the army, while other States were stagnating, such as Russia for example, there were many internal problems. Because of these very strong differences, it is impossible to reach an agreement on disarmament. If we are a state that is developing very rapidly, while another state is losing momentum, the one that is developing rapidly will obviously never agree to disarm because it is losing its relative advantage; it is digging at that time; to have disarmament situations, we need situations of much greater stability between states, almost a situation of balance. One solution is to reduce proportionally on both sides, but not in moments of growth when some grow stronger and others fall into hell.
As far as dispute settlement is concerned, not much either because States were wielding sovereignty refusing to submit to an arbitral tribunal that will decide things for them. The only thing we have achieved is voluntary arbitration. If desired, it is possible to have recourse to the arbitrator, which is in line with sovereignty. As a means of preventing war, this is not a terrible thing, because if it is based on will, only a few cases will be submitted, but for major disputes, a state will never want them.
C’est donc un échec sur les deux plans. À ce moment-là, la conférence s’est tout simplement dit qu’on ne peut pas aboutir alors que les attentes étaient énormes, c’était une conférence de paix, la première grande conférence. Et donc, on a repris la seule chose sur laquelle on pensait pouvoir aboutir, c’est-à-dire, le droit des conflits armés. Pourquoi pensait-on pouvoir aboutir ? Pour la simple raison que des travaux avaient déjà été faits. Il y avait quelques points d’achoppement, mais le gros du travail déjà était fait à Bruxelles en 1874. C’est donc à ce titre qu’on a adopté les conventions de La Haye. Elles étaient quatre en 1899, on aboutit à quatorze si on compte aussi la déclaration qui est un texte, qui est un traité, en 1907. Donc, petit départ en 1899, puis grand essor en 1907.
The Conventions[edit | edit source]
The first convention is not the law of armed conflict, it is arbitration. Not all conventions deal with the law of armed conflict, but the vast majority of Hague conventions are the law of war or the law of armed conflict, the law of war as it was called at the time.
What do we need among these Hague Conventions today?
First, Convention IV with the Regulations annexed to the Hague Convention IV on War on Land. It specifically regulates all important issues on the law of armed conflict as they existed in 1899 and 1907. We talk about Convention IV because that is the one we still use today. The Hague Convention IV with its annexed Regulations is the 1907 Convention. The 1899 version, which is quite identical, is Convention II. So, if we see Convention II of 1899, it corresponds to Convention IV of 1907. It's the same, the numbering has changed because in 1907 there are many more conventions, we had to renumber. It is not necessarily wrong to say Convention II if you read old literature, you have to see which one you are referring to. Professor Kolb will always say Convention IV because we are taking the revised version, of course, of 1907.
Convention IV is a relatively short text with brief provisions under the title "Regulations Respecting the Laws and Customs of War on Land" dated 18 October 1907. Why is this text still important today? It is important today and we must not make the mistake that since this text dates from 1907, it is outdated. It is true that it has been more than a century, but there are certain sections of this Regulation that remain of the utmost importance and that the Court of Justice in The Hague will mention first and foremost.
Which are these sections? There are two of them, the rest is largely outdated since we have much more recent texts that apply as lex posteriori. The two important sections in Hague law are the sections on hostilities, namely Section II, Article 22, 23 and following.
These are the prohibited means and methods of warfare and in particular Article 23, which is one of the longest in this Hague Convention and more specifically in the Regulation, contains a whole series of letters ranging from the letter "a" to the letter "h" prohibiting particular means or methods. For example, killing or wounding an enemy who has put in weapons or who no longer has the means to defend himself is left to his discretion, or using or employing weapons or projectiles likely to cause superfluous pain or poisonous weapons. Article 23 is probably still the most quoted article of this convention today, it remains relevant since what has been codified here has not been included in other conventions already included in the Hague Convention, which is considered to be customary law today. The International Military Tribunal in Nuremberg has already told us this.
The second important section in this text is the one on the occupied territories and therefore the very last of articles 42 and following in section III of the military authority on the territory of the enemy State. From article 42 to 56, there is a section on the occupied territories and therefore on the law of war occupation. Above all, there are certain provisions that remain of the greatest importance, namely Articles 42 and 43 in particular. Article 42 is the definition of occupied territory, when is a territory occupied? In the case law of the International Court of Justice, whenever there is territorial occupation, armed activity, DRC versus Uganda, the question of the wall in Palestine, they begin with Article 42 of the Regulation. The Geneva IV Convention also contains rules on the occupied territories, but does not define them at all because it is already in The Hague. Article 43 is the constitutional provision on the occupied territories. It teaches us that the occupier is responsible for maintaining public order and civil life in the occupied territories and must, unless absolutely necessary, not modify the laws and institutions of the occupied territory. It is therefore the most important framework provision.
The 1907 Hague Convention V deals with neutrality in war on land. All other conventions deal with the law of the sea and are largely outdated.
The 1949 Geneva Conventions are Conventions I to IV. We will present these conventions from the point of view of their applicability and later from the point of view of substance. The four Geneva Conventions of 1949 represent the core of humanitarian law today. This is therefore the most important codification we have and it is spread over four conventions.
The first deals with military personnel, i.e. soldiers wounded or sick in the war on land. The Second Geneva Convention deals with wounded, sick or shipwrecked soldiers in the theatre of maritime warfare. The difference between the first and second conventions is therefore one of theatre of war and not of assigned personnel. The personnel are the same, they are military personnel, the situation that gives rise to protection is the same, injury, illness and shipwreck status as far as maritime theatre is concerned. What differentiates the two is therefore the theatre, once on land and once on sea. The reason for separating the two conventions is that the organization of care for the wounded and sick is relatively different on land and at sea for reasons that can be understood relatively quickly. At sea, the protection of the wounded and sick is done in hospital ships, and this protection cannot be decentralized much since there is no firm land.
The Third Geneva Convention deals with the protection of prisoners of war. It is already significantly longer and more extensive than the first two. It should be noted that there is an overlap in application between Conventions I, II and III; this means that if an opposing soldier has been captured without injury or illness, Convention III applies, whereas if the same soldier has been captured or surrendered with injuries or illness, Convention I and Convention III apply at the same time, or, as the case may be, Convention II is Convention III. Convention IV deals with the protection of civilians.
The first three are not new in the sense that there are older Geneva Conventions than the 1949 Geneva Convention simply needs to be revised. Convention IV, on the other hand, is entirely new, as civilians were not protected by IHL until 1949 with the exception of a few scattered provisions, particularly in the law of war occupation of the 1907 Hague Regulations.
The fourth convention is the longest, with around 150 articles, while the first has about 50 provisions, a ratio of 1:3. Overall, the Geneva Conventions open something more than 500 articles, including annexes, so it is a considerable codification if we compare that with the Hague codification which, in the theatre of non-maritime warfare, therefore the 1907 Hague law, contains 56 provisions, against a little more than 500 and what is more, the 56 are generally very brief, they are provisions that take two to three lines whereas the articles of the Geneva Convention, whatever they may be, are generally long and articulated articles. After the abuses of the Second World War, it was necessary to start from scratch somewhere by producing new material instead of the old one, which had been insufficiently proven.
The Geneva Conventions, contrary to what many well-meaning minds believe, do not deal with hostilities, they only deal with the protection of persons outside the context of hostilities. They are therefore people out of combat in non-combat situations, when the fighting has stopped around these people and it is a question of protecting them when they are in the hands of the enemy power. Sick or wounded soldiers, it is obvious, they are protected in that they are now out of action because of injury, illness or shipwreck. The same applies to prisoners of war who are such since they have surrendered or been captured. As for civilians, in principle, they do not fight.
It is in these situations, out of combat, that these people are protected. Civilians, for example, when they are in occupied territory. On the other hand, however, the Geneva Conventions do not contain anything on the conduct of hostilities, including for the persons concerned. Let us take civilians as an excellent example, contrary to what many people believe, there is nothing on the protection of civilians during the phase of hostilities, such as, for example, bombing. To find relevant provisions in this respect, one must look either to the 1907 Hague Regulation, such as Article 23, for example, or to Additional Protocol No 1 of 1977. We must keep in mind that what is related to the conduct of hostilities, also known as Hague law, is not in Geneva in 1949.
Protocol[edit | edit source]
There are a series of three additional protocols to the 1949 Geneva Conventions, the third additional protocol is not of interest to us here because its purpose is very small and in practice of very little importance, it is the 2005 protocol, the third additional protocol, it is a new protective emblem because Israel had difficulty adopting red growth or the red cross, it wanted a particular emblem.
The two additional protocols of 1977 are of great importance. What happened between 1949 and 1977 to justify the adoption of new texts? In other words, how were the Geneva Conventions insufficient? In any case, there are four subjects where gaps appeared in time after 1949.
The first gap is that of non-international armed conflicts, sometimes referred to as civil war. It is possible to use the term "civil war", but only in a historical and descriptive sense, it is not a term of legal art, there are civil wars that are partially international armed conflicts. Thus, a civil war is not necessarily simply a non-international armed conflict, civil war refers rather to a historical or sociological category, but not necessarily a legal one.
Nevertheless, civil wars have increased considerably while "international wars", i.e. inter-state wars, have declined in more or less the same order. Not that there were no such conflicts, there were, but they were not very numerous after 1949, when civil wars accounted for 80 to 90% of the world's real armed conflicts. However, from a legal point of view, the Geneva Conventions do not contain anything on non-international armed conflicts. All these 500 or so articles in the Geneva Conventions are all in favour of international armed conflicts. This means that it covers 10% to 20% of real conflicts while 80% are not resolved. There is an article 3 in the Geneva Conventions which is specifically intended for non-international armed conflicts. It must be said that Article 3 is very weak in order to be able to regulate satisfactorily a phenomenon as complex as non-international armed conflict.
We therefore felt the need for reform and wanted to adopt a text that applies to non-international armed conflicts. This was done in 1977 with Additional Protocol 2 to the Geneva Conventions. This protocol is the first text that applies exclusively to non-international armed conflicts and thus fills a gap.
There is a second area that has remained hidden in the Geneva Conventions and these are the means and methods of warfare, that is, the entire conduct of hostilities. There are reasons why we did not want to base ourselves, look more closely, codify this subject. Nevertheless, the applicable law was that of 1907, which in reality was a law looking back to the 19th century. The 1907 law is the result of a revision of the 1899 law, which is also based very largely on the preparatory work done in Brussels in 1874. It is a little old when there are bombings with the air force; in 1874, it was not possible when this branch of the means and methods of warfare was codified.
In the 1960s and 1970s, the question is not only theoretical, there is the Vietnam War with concrete action on the ground, with bombings, by day, of napalm, with toxins attacking the environment; the question is therefore very practical, it is there and occupies the United Nations General Assembly all the time. It was therefore considered necessary to update the law of the means and methods of warfare and this was done in a most important part, probably the most important part of the first Additional Protocol to Articles 48 et seq.
It is also necessary to mention two other reforms that are felt to be necessary, one of which is a little complicated. The guerrilla problem arose since a large part of the conflicts between 1949 and 1977 were conflicts related to decolonization. Decolonization conflicts where colonial peoples fought against decolonizers for their emancipation and independence were a type of asymmetric conflict where relatively well-armed and trained colonial armies, professional armies in a word, fought against peoples who improvised their capacities for resistance.
In asymmetric wars, there is guerrilla warfare, where the weaker party uses guerrilla tactics. It is the only military tactic that allows it to have some success, whereas a fight open to a delimited battlefield would devote the weaker part to failure, defeat and immediate disappearance. What is guerrilla warfare as a technique of warfare? It is nothing more than to strike and disperse as quickly as possible to hide in the jungle or among civilians, in other words, to make oneself invisible.
The question has arisen as to the extent to which this tactic is compatible with combatant status. To be a combatant in the law of armed conflict, to be a combatant, to be entitled to prisoner of war status, a number of conditions must be met that are largely incompatible with the guerrillas. Therefore, a reform was necessary. If we wanted to recover the fighters practising guerrilla warfare, we would have to recover them to ensure their status as combatants and prisoners of war. This was important because IHL can only function on the basis of reciprocity. If one party still has the right for its captured combatants to prisoner of war status and the other party never has the right because it does not meet the conditions, then there is a complete inequality between the belligerents and the law is simply no longer applied.
In order to address this difficult problem, provisions have been included that are among the most controversial in Additional Protocol 1 to Articles 43 and 44. This was a very important purpose of this protocol.
Finally, the fourth object is that in 1949, international human rights law did not exist. But in 1977, it existed, if only through the 1966 United Nations Covenants. It was therefore considered necessary to update certain provisions of the law of armed conflict to take into account human rights provisions, in particular those relating to persons in detention or to the fair trial of persons detained or even prisoners of war. It is possible to discover the provisions that are in an exclusively human right version in Articles 4 to 6 of Additional Protocol II for non-international armed conflicts and in Article 75 of Additional Protocol I which is the longest provision of Additional Protocol I.
These are the reasons that led to the adoption of these two protocols. The two protocols are therefore as follows: the first additional protocol, with more than a hundred articles, is an additional protocol for international armed conflicts, and additional protocol II is an additional protocol, still to the Geneva Conventions, for non-international armed conflicts. These protocols contain provisions of Hague law on the conduct of hostilities, just as they also contain provisions of Geneva law, i. e. the protection of persons.
The Convention on Certain Conventional Weapons Producing Excessive Traumatic Effects dates back to 1980 and was adopted under the auspices of the United Nations, which is rare enough in the field of IHL to note. The reason for this convention is that the 1977 Additional Protocols contain practically nothing on weapons, because at the 1977 Geneva Conference there was a virtually complete deadlock on the issue of weapons. The reason was that the Third World countries wanted to tackle the issue of nuclear weapons, which they wanted to see largely banned, while Western countries threatened to slam the conference door if nuclear weapons were put on the table. In the end, we agreed at the conference not to talk about weapons at all because it would not have worked.
Nevertheless, the ICRC has decided to do something about weapons and to find useful United Nations collaboration on the issue, and so we ended up with preparatory work for this 1980 convention. This is a relatively short framework agreement. It recalls the general principles of IHL applicable to weapons and provides for the adoption of protocols which are called not additional in this case in order not to create confusion with the protocols additional to the Geneva Conventions, they are called only protocols to the 1980 Convention. It was therefore planned to adopt protocols as new problems arose or as the parties reached agreement on specific topics. There are five protocols to date, the first on cluster munitions, the second on mines and booby traps, the third on incendiary weapons, the fourth on blinding laser weapons and the fifth on explosive remnants of war.
Some of these protocols have been revised, such as the second protocol, which was revised in 1999 to make it applicable to non-international armed conflicts, among other things. There are these five protocols, some in an already revised version with a treaty law problem that some States are bound only by the old one, i.e. some by version one and others by version two. This convention exists and it is of some importance for weapons, it is a major convention apart from the 1993 Chemical Weapons Convention or the Biological Weapons Convention.
Within the framework of IHL, there are an impressive number of treaties on the subject. This is more or less comparable to human rights law. Why this enthusiasm for treaties, why so much codification in the field of IHL? Why is IHL the subject of international law where there is the most written law?
The reason for this is relatively simple. Unlike other subjects, IHL lives better with the text, i.e. with the black letter law. Why? Why? There are a lot of reasons.
The first is that these conventions are intended to apply in the heat of battle, at least in the heat of an armed conflict situation, and in this case, it is necessary to know exactly what is due and what is not due. This is not the time to steal and have complex legal discourses on the content of customary law.
Secondly, we must think about who the target audience for IHL is, or at least the main, not exclusive, audience. The target audience is not a court that will have to apply post-festum war crimes law. It is the military that is targeted. The military must do things during the armed conflict, it is the state body that is bound by IHL and must fulfil the obligations. The military are not lawyers, the military are a type of personnel who seek rigour and clarity that honours the subtlety of lawyers and everything that is not written and not obvious. We cannot ask the military to act as lawyers in a period of armed conflict. If we want things to be clear, we must write them down. It is not possible to have a prisoner of war camp that must be managed according to clear rules if they are not written down.
There are also technical matters to be regulated in IHL such as weapons. The case of chemical weapons is complicated to define. All this cannot be allowed to float in customary law that shakes like an ectoplasm in the air. We need written law, and the same applies to all other weapons.
These are some of the reasons that are important because the treaties provide for this security, precision and instruction of the related personnel.
The custom[edit | edit source]
After examining treaty law, one could say that custom has no role in armed conflict and therefore discussion is superfluous. That would be an incorrect conclusion. Custom plays a role and in some cases a very important role. Unfortunately, it sometimes plays a shimmering role.
How can custom be useful in IHL matters?
There are certain situations that "catch the eye". The first and most obvious is that this or that rule is contained in a convention that is not universally ratified where there are some States parties and others that are not. In this case, the treaty rule can only be applied to States parties: pac tertiis nec nocent nec nocent nec prosunt, i. e. the relativity of treaties in other words, as in article 34 of the Vienna Convention on the Law of Treaties.
This means that in an armed conflict, we could have a State that is bound by a certain rule, but another cobelligerent that is not. Customary law unifies this because if a rule is customary law, it is also applicable to all belligerents, to all States if it is a universal customary law rule. Custom therefore has a unifying and harmonizing value here. It will be necessary to check whether in conventions that are not universally ratified, this or that provision falls under customary law. This is particularly interesting for the first and second supplementary protocols, since there are provisions in these protocols. So the status is not obvious from a customary point of view, but they are in any case texts that are not universally ratified, unlike the Geneva Conventions. There are still about 30 States that are not parties.
We should not conclude that if a convention is universally ratified like the Geneva conventions to which everyone is a party, that the question of customary law would not arise because everyone is a party anyway and therefore the convention is applied.
This is not entirely true, because armed conflicts are treacherous in a certain sense, they creep in especially where new States are under construction, where there are secessions that are often violent and as long as a new State is not yet fully formed or even if it is formed, even if it is already de facto independent, but that the war continues, it may not yet have ratified the Geneva Conventions, because it happens quite often that when a State has just formed and in a situation of armed conflict, the first thing that these leaders think of is not necessarily to submit to the Swiss depositary a declaration of ratification of the Geneva Conventions. Thus, in the war between Ethiopia and Eritrea between 1998 and August 2000, the arbitral tribunal, which had to apply IHL between the two States in order to liquidate the wrongs caused, was unable to apply the Geneva Conventions for the simple but very good reason that Eritrea was not a party to the Geneva Conventions until one month before the end of the armed conflict. That is, most of the armed conflict occurred during the phase when Ethiopia was bound by the Geneva Conventions, but Eritrea was not. If the law of elementary treaties is applied, it is not possible to apply the Geneva Conventions between these two States since one of them could not ratify it. The arbitral tribunal, in an initial paragraph, in each arbitral award it has made on the law of armed conflict, briefly considered the extent to which the Geneva Conventions are customary law, concluded that this was the case for the provisions it had to apply and therefore applied customary law to the case.
In the literature, customary law may have other uses. There are some IHL subjects where there are many gaps. The best from the point of view of an example is the law of non-international armed conflicts. On non-international armed conflicts, there is very little written law. There is common article 3 of the Geneva Conventions, there is Additional Protocol II for those who have ratified it, and some other texts, especially in arms law, which provides for application to both types of conflicts ("IAC" for "international armed conflict" and "NIAC" for "non-international armed conflict").
As a result, there are few provisions and many gaps in the use of customary law to determine some of the belligerent's obligations in the law of non-international armed conflict, which in reality means, in legal terms, that the law of non-international armed conflict is not fixed at its 1977 codification status, but that it develops this branch of law through subsequent norms that arise in custom. The determination of this custom can be found in the ICRC's study on customary law, how it is carried out, which is quite usual to consider the practice of military manuals in particular, and also the legal opinion of States when they take positions in the United Nations General Assembly, in meetings of a particular arms forum, on an international criminal tribunal or otherwise.
Customary law therefore also makes it possible to develop the law of armed conflict and to fill gaps. However, this right remains in a state of chaotic suffering today and customary law has only partially lifted the veil of uncertainty. Nevertheless, the Criminal Tribunal for the Former Yugoslavia has consistently referred to customary law in developing obligations in relation to non-international armed conflict, which is all the more remarkable because it has done so from the perspective of criminal law, i. e. war crimes.
In order to determine customary law, the first thing is that we have a series of positions, uncontested international tribunals that teach us the customary nature of this or that text, such as the 1907 Hague Regulations, since 1946, the Nuremberg International Military Tribunal, we know that this regulation represents customary law from beginning to end. The International Military Tribunal in Nuremberg said so. Since then, case law has confirmed this orientation. For example, at the International Court of Justice, in the case, the 1996 advisory opinion on nuclear weapons, the opinion rendered to the General Assembly.
With regard to the Geneva Conventions, the same is true except for the procedural provisions, i. e. the law of treaties, which are at the end of the Convention. The substantive provisions, it seems, are all customary law, at least as stated in each of its arbitral awards, the arbitral tribunal, the Permanent Court of Arbitration, Eritrea and Ethiopia.
With regard to Additional Protocols I and II, however, we cannot proceed in the same way. There is customary law and there are also provisions that do not fall under customary law. It is therefore necessary to analyse case by case, standard by standard and what the ICRC has been working on in its customary law study. The general tendency in case law and practice is to consider that in these major codification conventions, such as, for example, the two Additional Protocols, substantive provisions, at least those of minimal importance, constitute customary law. This is quite logical, moreover, because IHL is mainly concerned with codifying the law that applies in practice between the military and it would still be funny if the conventions contained a law that differed from the actual practice of States, as it would be unlikely to be applied. Nevertheless, there are of course some provisions that develop the law in a more humanitarian or other way, and for these, we must see. There is one, Article 54 of Additional Protocol I on the means of subsistence of the civilian population, so we know that there was no customary law in 1977, because it was at the time a progressive development of law, this is clear from the preparatory work. In the meantime, this provision seems to be fairly generally accepted, so that the Eritrea-Ethiopia Arbitration Commission may have considered that this provision is a matter of customary law. On the other hand, other provisions were extremely controversial at the conference and have remained so since then, in particular Article 44 of Additional Protocol I, and in this case, seeing the degree of controversy at the time of adoption and since then, the degree of discussion, the fact that some States do not ratify because of Article 44 in particular, certainly does not allow this provision to be considered as customary law. So, we must see in this case, but the general rule is a certain tendency to equalize conventional law in its important substantive provisions and customary law, because in practice it would be stupid to do otherwise. This principle of relative equalization is found in the approach of the International Court of Justice, Nuclear Weapons Advisory Opinion, rendered to the United Nations General Assembly in paragraphs 79 and 82.
The General Principles of Law[edit | edit source]
In every branch of law where there is a mass of detailed rules, general principles, paradoxically perhaps, play a certain role. This is simply because the multitude of detailed rules, the dust of detailed rules, is what makes the branch of law in question no longer visible. The general principles of law make it possible, at that time, to restructure in a slightly more visible way the various contents of this branch of law and to give them a backbone. This is why, IHL, which has many rules of detail, also knows general principles of some importance. It is therefore a branch of law where general principles are also important, perhaps more so than in other branches of law.
Principle of humanity[edit | edit source]
First and foremost, there is the principle of humanity. It is a relatively rare case that international law contains a principle with such a moral connotation as the principle of humanity. This principle, which some prefer to call the "principle of humane treatment", informs all Geneva law. It is the cardinal principle of the Geneva Conventions that is reflected in this general content, humane treatment, in articles 12, 12, 13 and 27 of the Geneva Conventions I to IV.
A particular variation of the principle of humanity or human treatment is found in the Martens clause.
Principle of military necessity[edit | edit source]
In the past, i. e. before 1949 and more precisely before 1945, i. e. before the end of the War; the principle of military necessity had a different value and scope than it has today. At the time, the principle was shimmering to say the least, because it meant that sometimes the belligerent could set aside a rule of the law of armed conflict by simply pleading necessity. It is a bit like the principle "necessity has no law", when you fight for your survival in an armed conflict, you have to be able to invoke necessity to free yourself from obligations that you cannot respect under penalty of possibly causing disproportionate damage, who knows, maybe even losing the war.
In other words, the principle of military necessity was sometimes, in some circles, considered as a kind of State of necessity that could generally be invoked. A state of necessity is within the meaning of article 25 of the draft articles on State responsibility, except that it was given a much greater scope than the state of necessity of the International Law Commission.
Post-war tribunals since the Nuremberg jurisprudence have emphatically rejected this conception of military necessity and it is true that it is legally formidable. If a belligerent can subjectively consider at any time that he does not want to apply this or that rule because he is in a situation of necessity, then that is legally equivalent to saying that the law of armed conflict is not really binding, that it is purely a potestative order: it may not be applied, and if it is to be applied, it is sufficient to invoke necessity.
Therefore, today, this aspect of necessity has changed considerably. It is now considered that military necessity still allows certain rules of the law of armed conflict to be set aside precisely when necessary, but only when the applicable law of armed conflict norm so provides.
This state of necessity can therefore no longer be invoked generally as a reason for not applying rules on the treatment of prisoners of war, for example. It can only be invoked especially when the rule in question so provides. There is a set of rules of the law of armed conflict that provides an exception for military necessity. For example, Article 23, letter "g" of the 1907 Hague Regulations, prohibits the destruction or seizure of enemy property, including private property, except in cases where such destruction or seizure would be compellingly ordered by the needs of war. Private property does not make a direct contribution to the war, it does not support the war effort of one party to the conflict, so it should not be destroyed, but it may happen that a situation arises in which private property must be destroyed. If a house that blocks access to tanks to a theatre to which these tanks must go for military reasons, then it is not forbidden to plasticise this house, to knock it down in order to make the tanks pass through: it is an imperative necessity of war and it is allowed because it is provided for in the standard. Thus, there are other standards that allow this setting aside when there are needs, that is, when military operations imperatively require it. It is up to the belligerent to judge, but he may be exposed to criminal liability.
This is the liberating aspect of military necessity. It therefore makes it possible to set aside certain rules for military necessity. But there is another aspect that is not always perceived as military necessity and which is also very old. It is considered that any destruction, any military action that has an impact on the enemy and on the adversary must be justified by a valid military motive, because destruction that would be useless from a military point of view, done solely out of vengeance, out of pleasure in destroying or out of a desire to terrorize, would already be prohibited from a military necessity point of view, because it is precisely not necessary for the sole purpose of the recognized war, which is to break the enemy resistance.
This shows that the principle of military necessity has two faces, it is truly a janus. On the one hand, it exempts from the application of rules of the law of armed conflict where such rules so provide. Here, he serves the military and untied their hands. On the other hand, there is a restrictive balance. Any destruction or other military action having an impact on the enemy that is not militarily necessary is prohibited because the recognized purpose of war is solely to break down the enemy resistance and not to do things that are unrelated to it.
In the 19th century, this principle was, in its two aspects, it liberates when one needs it, it constrains when one must always measure one's actions against the goals of breaking the enemy's resistance; it was the great pivotal principle of the law of armed conflict in the 19th century. Today, it has been absorbed, it has been reduced, but it is still there in its two aspects, resized. Resized because it is not a general ground that can be invoked against any rule of the law of armed conflict, but only against a few rules that provide for military necessity as an exception, and the second aspect is unnecessary destruction prohibited. It is therefore an important principle that military necessity.
Principle of Limitation[edit | edit source]
The principle of limitation is already apparent from Article 22 of the 1907 Hague Regulation. Article 22 stipulates that "The belligerents do not have an unlimited right to choose the means of harming the enemy". This is obviously a very fundamental rule of IHL and that is why it is rightly said that it is a principle, it means that total war is never lawful. Not all means of harming the enemy and targeting its resistance are legal. Total war is therefore not allowed, it would be the negation of any limitation in the war, i.e. IHL. At the same time, it also shows the fundamental structure of IHL, which is not to authorize acts of war, but rather to limit the freedoms of the belligerent to ensure that certain acts of excessive destruction are not allowed. The principle of limitation therefore operates as a limit to total war, which would be far too widespread destruction, and on the other hand indicates the very structure of the law, which is rather based on prohibitions, at least in Hague law.
Principle of distinction[edit | edit source]
The principle of distinction is reflected in particular in Article 48 of Additional Protocol I. The distinction means that each belligerent must at all times distinguish between civilians and civilian objects on the one hand, and military objectives, i. e. military personnel and military objects on the other hand, and attack only the latter and not the former. In simpler terms, a distinction must be made between civilians and military personnel and only attack the military during the armed conflict. This is obviously a very cardinal principle on which the entire Hague law is based, because without this principle, war would immediately become total. If we could also attack everything that is civilian, there is no longer any limit, we attack everything because there is the military and the civilian, there is nothing else.
It is a principle, we are the foundation of the legal system and these general principles are fundamental keys to understanding it.
Principle of proportionality[edit | edit source]
The principle of proportionality has a particular meaning in IHL, a meaning that is not confused with the meaning it may have in human rights law or elsewhere, such as in administrative law, for example.
In IHL, proportionality means that there must be a relationship of some kind between the military advantage pursued through action and the so-called "collateral" civilian damage inflicted.
It happens, in fact, that when you attack a military objective, that is the only thing you are allowed to attack, you cannot ensure that this attack does not have a certain impact on civilians around the military objective, whether they are people or property. In even simpler terms, when attacking the military objective, one must calculate with a number of dead civilians and damaged civilian buildings or other civilian installations. This is permitted in IHL, but there must be some relationship between the military advantage pursued and its collateral civilian damage. If collateral civil damage clearly exceeds military advantage, then there would be a principle of proportionality that would prevent that attack from being carried out at that time, in that way by causing that kind of collateral damage.
What is common to these general principles is that they form the basis of the IHL legal system and explain its main aspects. The rest are rules of detail. If we take the principle of humanity, it informs all the Geneva Conventions. Each provision in the Geneva Conventions is a provision whose purpose is to serve in one way or another the requirement of humane treatment of protected persons.
The Martens Clause[edit | edit source]
The Martens clause is a concrete expression of this principle of humanity. It is separated because of its particularity. This is a clause that was inserted in the Hague Convention II of 1899 and IV of 1907. In the meantime, the Martens clause has been included in the texts, in the Geneva Conventions, in the provisions dealing with the denunciation of these conventions, it is also found in the 1980 Arms Convention in the preamble, but it is also found in particular in Article 1 § 2 of Additional Protocol I.
Frederic de Martens was a professor of international law in St. Petersburg, having written an important period textbook on DIP. Martens was a delegate of the Russian tsarist government to the Hague Conference, and he proposed this clause with the aim of filling the gaps, the gaps in the law of war occupation.
This clause reads as follows: "Until such time as a more complete code of the laws of war can be enacted, the High Contracting Parties consider it appropriate to note that, in cases not included in the regulatory provisions adopted by them, the populations and belligerents remain under the protection and control of the principles of international law, as they result from established practices between civilized nations, the laws of humanity and the requirements of public conscience". It is a very old formulation; it smells and oozes from all the ports in the 19th century.
A slightly modernized version by still different, the honor is continued to be given to the creator, a slightly modernized version is found in Article 1 § 2.
This clause had no positive legal value before the Second World War and before the Geneva Conventions. It was a preamble clause, beautiful, generous, kind, honoured in words and little known in practice. It was therefore in a revisionist, courageous, no doubt, but revisionist way that the United States Military Tribunal in Nuremberg in the Krupp case, in this 1948 case, was able to consider that the Martens clause was more than a wishful thinking and that it was part of positive law. In 1948, this was frankly not true, since then, it is certainly true, if only because this clause was included in the operational provisions of the Geneva Conventions, but also in the Protocol and elsewhere.
What does this clause mean legally today? It has an original meaning that Martens was already aiming for at the time in 1899 and it has additional meanings that can be given to it today although Martens certainly could not have even dreamed of them at the time he lived.
The original meaning of the Martens clause is still valid, and that of ensuring that when a matter is not settled, when there is a gap in other words in the law of armed conflict, a matter not settled when there should be rules, the rule of residual freedom that would otherwise normally apply cannot be applied. The term "residual freedom rule" means "what is not prohibited is permitted".
When there is an IHL that is not very well codified, as was the case in 1899 and 1907, there were more loopholes than regulations, it may be a little unfortunate to suggest to States that for everything that is not expressly regulated in the convention, they remain free to do what they want because it is not prohibited and therefore permitted. With the Martens clause, we tried to limit this principle and say that if it is not expressly prohibited, it does not yet mean that it is allowed; we must still consider whether the attitude or conduct in question is compatible with the laws of humanity and public conscience, with the moral rule at its heart. It's quite specific really.
Above all, in Hague law, we proceed with a principle of limitation, we limit certain activities, we prohibit certain activities, we are not there to allow States to do what they want during the war. States already have the general authorization that comes from their sovereignty. We do not need to tell them that they can do this or that, they are sovereign, so they can do it automatically, they have a general competence.
Rather, IHL is intended to limit certain actions. We manage to reach agreement in the Hague Regulation, in the Geneva Conventions, we extract certain questions of the freedom of States. This generally restrictive approach is in turn being tempered with the Martens clause, by telling States that if something has not yet been prohibited in this approach, States cannot think that automatically it should be considered permissible.
After the war, this clause was taken a little more seriously, but it is far from playing the role it could still play today.
Of course, it is possible to use the Martens clause for purposes other than those stated, being the original purpose. It is possible to use the Martens clause on the interpretation of IHL to ensure that humanitarian aspirations have a greater impact on a particular interpretation by linking these humanitarian aspirations to the Martens clause, invoking the Martens clause in the argument to be presented. That is quite possible. We simply have to be subtle about the subject because IHL is always a balance between humanitarian and military. If you pull the cover too much on one side, it becomes unworkable. Humanitarian aid must be weighed against the military. War is an abomination, but that is how it is and therefore things must be weighed up and that is why, moreover, in humanitarian codifications, there are always soldiers present and it is very important because it must be an equation that goes on both sides. If we interpret by giving a little more force to the humanitarian side by invoking the Martens clause, that is fine, but it must be done with restraint.
The same can be done in the legislative function, if we are in an international conference where the aim is to codify the new law of armed conflict, it is possible as a delegate to go to the gallery and say that this provision should be reviewed in a slightly more humanitarian sense and invoke the Martens clause in the legislative process with the same limit for interpretation.
Another function that can be granted to the Martens clause is to say that the Martens clause is a legal reference to human rights law and that, therefore, belligerents are asked to take into account not only IHL but also human rights law before deciding on the lawfulness of a certain conduct because the formula itself remains under the protection and control of the principles of international law. Of course, this was not what Martens had in mind in 1899, but we can interpret this clause in this way today, nothing prevents a clause in a multilateral codification treaty from being given a contemporary meaning, one is not bound to give it a historical meaning only.
The Law of human rights[edit | edit source]
The relationship between IHL and human rights law is a highly complex matter. It is such a complicated subject, moreover, that after twenty years of occupation with it, Professor Kolb still does not have very powerful lights on the subject. It's very elusive and it's very articulate. The material is shimmering and uncertain even today because everything has been in motion in recent years.
First and foremost, the question arises as to how human rights can be useful for IHL. What can they bring to us? Isn't IHL sufficient in itself? There are several factors of utility and that is why the question arises both in theory and in practice.
Sociologically speaking, first of all, the question arises because the roles of the army have diversified considerably in recent years, it would be seriously wrong to consider that the armies today do nothing more than traditional belligerent functions, i.e. dropping bombs. Today's armies do just about everything, even nation building in territories under the administration of the United Nations. So the roles are extremely diverse, ranging from combat missions to police functions when you are on a checkpoint and controlling passing vehicles. Through this sociological reality, the military naturally enters the field of human rights.
This is even more true in non-international armed conflicts where, in any case, there is no clear dividing line between armed conflict and human rights in general. Because we are inside a state and we are in situations of violence that are not well defined, where we are constantly in grey areas. In non-international armed conflicts, very often, there are no major battles, but there is a latent conflict with trees of violence here and there where we are constantly between IHL and human rights law, which both seem to apply. So, by this reality, the question arises simply because the functions are diversified and the military is entering functions that until then were reserved for other State bodies to which human rights law was directed.
Secondly, and paradoxically little, human rights law is more modern and more developed than IHL in many respects and therefore it is not completely useless for us to refer to this human rights law.
More "modern" and more "developed" and how is that?
More "modern", because at the universal level, human rights law took off in 1966. The vast majority of instruments are concluded after that, it gets worse between the 1970s, 1980s and 1990s, so it's relatively modern. If we take IHL, 1907 with the Hague Regulations, it is fine, but we cannot say that it is "state-of-the-art"; the 1949 Geneva Convention, it dates from 1949, it is still quite old too, it is the society of war. The 1977 Additional Protocols are already a little better, Professor Kolb was ten years old at the time. Nevertheless, 1977 is the last major codification, neither can we say that it is the latest cry, there have been developments since then; when we simply talk about cyberwar, these are things that we could not have thought of in 1977.
Human rights law is therefore clearly more modern and more developed. This may be surprising, but not so much because in human rights there are many conventions and even if the treaty texts can be brief, the rights set out can be brief, we have a lot of secondary law in human rights, namely the law secreted by the supervisory bodies, by the Human Rights Council, by case law because there are courts on the subject, whereas in IHL there is none of that, there is no supervisory body that secretes reports, opinions, there is no case law, there is no IHL court, there are regional human rights courts, but there is no IHL court. All these forums make it possible to develop the law and therefore, it is not only the provision contained in the convention that must be seen, but also everything that is covered by this provision, through all these sources that come together on the treaty texts, that ends up giving great precision to human rights law through all this practice.
And so we can benefit from it. When we have some very brief provisions on fair trial in IHL, the Geneva Convention, and we compare that with the provisions contained in Article 6 of the European Convention on Human Rights, Article 14 of the Covenant on Civil and Political Rights, and all the case law and reports on it, we really feel like a completely poor relative in the Geneva Conventions, but at the same time we say that by drawing on the sources of human rights, we can give substance to the principle of fair trial.
Thirdly, the usefulness of human rights law also lies in the fact that there are monitoring bodies. That is an additional point. There are monitoring bodies and therefore, there is sometimes the possibility of indirectly monitoring the application of IHL by human rights monitoring bodies and thus giving IHL a kind of sanction through the human rights bodies since we do not have a body that does this for IHL, we do not have one, the ICRC is not. The ICRC is not there to investigate and condemn States; the ICRC is there to ensure respect for IHL and does so with its proverbial discretion. Often, nothing appears, if something appears, the ICRC is not happy.
The Human Rights Council, for years now, has already been doing this, it has been dealing with situations of armed conflict, sometimes in a very visible way, such as the Gaza flotilla issue, the Darfur issue or the Syrian issue, but many others too, not only major conflicts, such as the issue of vulnerable groups in armed conflicts, such as women in armed conflicts, for example; there is really a permanent occupation of this niche. This is the same with case law. If we take the European Court of Human Rights, since we are in Europe, there have been a whole series of cases concerning Turkey and Russia which, during non-international armed conflicts such as the war with the Kurds and the Chechen wars, in these cases there have been cases at the European Court of Human Rights and convictions.
A very good case is the Isayev case, which is a case concerning Chechnya in the early 2000s in which Russia bombed a convoy leaving a city saying that it was fighters, bombed weapons carriers as a military objective. The only problem was that these arms carriers, if they were ever there, were frankly not alone, there was a whole series of civilians that the bombing resulted in the death of a whole series of civilians. The complaint was brought before the European Court of Human Rights. So, obviously, the European Court of Human Rights is not going to say that it applies Additional Protocol II, it cannot do so because its jurisdiction is limited to the application of the European Convention on Human Rights. What does the European Court of Human Rights do? She says that it is a matter of the right to life under article 2, and she is now looking at whether the bombing was done in accordance with the rules of the art to protect the lives of civilians. Was this done properly? Where do you find the best practices? They are found in IHL, in Article 57 of Additional Protocol I. The Court does not say so in its judgment, but we see from the wording it uses that it has looked at Article 57 of Additional Protocol I. In Article 57 of Additional Protocol I, there are the principles, the rules on the preparation of attacks in order to ensure that as many civilians as possible are spared. The Court concludes that Russia did not respect these rules, i.e. it did not meticulously prepare the attack in order not to strike civilians or as little as possible. It therefore considers that, because of the insufficient preparation of the attack, Article 2 of the European Convention on Human Rights, the right to life, has been violated.
What is interesting is that it is not a direct application of IHL, it is completely indirect, IHL is indirectly applied through Article 2 of the right to life, but it is nevertheless indirectly applied and this indirectly leads to a sanction, i.e. a financial penalty for Russia and Russia has always paid because the European Court indisposed them, but only one thing was important for them, namely to get rid of these cases and pay was never a problem for them in the past. Since the Court mainly sentences people to money, then this did not pose any problems for Russia. This is a way of giving IHL a sanction that there is no IHL in IHL and therefore human rights law is not without interest for us because very often, while there is nothing in IHL, we will succeed in giving a certain momentum to the implementation of IHL through human rights bodies, whether it is the Council, the European Court of Human Rights, the Inter-American Court of Human Rights or other bodies.
Now we have to look at the specific problems that arise in this relationship. In what way does human rights law pose a particular problem in its joint application with IHL; and finally, where human rights law can especially provide these services to IHL.
Apart from the difficulties that are due to an insufficiently clear practice on the relationship between the two branches, in other words, many issues are still in full motion and the law is not fixed, there are two additional problems, the first of which is largely solved and the second is not.
The first problem, which is old, is due to the temporal scope of human rights law. According to long-standing doctrine, human rights apply only in times of peace, which by definition excludes the period of armed conflict. The reasons for this old doctrine are diverse and varied. The most obvious is the applicability of human rights law, which often presupposes a functioning State with courts, with public funding, which alone allows for the proper application of human rights. However, it was said that in the past, in times of armed conflict, when everything is turned upside down, it is impossible to guarantee the application of human rights law.
If this doctrine were still true, the question of the relationship between IHL and human rights law would not arise since there would be almost perfect mutual exclusivity, namely that human rights apply in times of peace and as soon as armed conflict prevails, IHL would take over.
This doctrine has been largely abandoned. It is now accepted that human rights law also applies in times of armed conflict, but that certain rights may be limited, sometimes by what is called a derogation and which is rather legally a suspension; in other words, States may suspend certain rights recognised in conventions when they are in an emergency situation of which armed conflict is a part as stipulated in Article 15 of the European Convention on Human Rights or alternatively, without suspending rights, it is possible to limit them by public legislation as is always the case, human rights can always be limited, except for some such as the prohibition of torture, and the State used this limitation of rights by public legislation in a somewhat more generous way in times of armed conflict.
This difficulty having been largely resolved, there is no longer any State that pleads today for the exclusivity of the law along the dividing line mentioned, namely periods of peace and armed conflict.
The second difficulty, however, is always with us. It comes from the spatial scope of human rights law. Indeed, it has been considered for years, and some important States continue to consider it today, that human rights law applies only territorially in the area under the jurisdiction of a State, which is normally its territory. Therefore, for example, if Switzerland ratifies certain conventions, it guarantees the rights contained therein on Swiss territory and not elsewhere. The reason for this is that Switzerland has territorial competence on Swiss territory, but does not have such competence on the territory of other States. Public authority cannot be exercised on the territory of a foreign state. So, since there is no authority to do acts there, it is quite natural to consider that we are not bound by duties towards individuals either, therefore, human rights.
At the very beginning of each convention, there is a provision relating to human rights issues that define the spatial scope of that convention.
According to this doctrine, human rights law does not lose all utility for IHL, there is no mutual exclusivity such as the one we encountered in the first objection, because, for example, in non-international armed conflicts, human rights law could perfectly be applied given that non-international armed conflicts take place on the State's territory. An example of this is the Anatolian conflict with Turkey, which has given rise to human rights jurisprudence in Turkey's area of competence, i. e. on Turkish territory.
On the other hand, for non-international armed conflicts, the problem is much more serious, as it is fairly easy and straightforward to understand that the bulk of acts relating to hostilities in an international armed conflict take place beyond its borders. We do not occupy our own territory so much, it goes without saying, we do not bomb our own territory in the first place, it goes without saying, operations take place extraterritorially.
How do we respond to this difficulty? In very short terms, there is a great division of opinion on this issue. The vast majority of States, as well as all international bodies without exception, whether at the United Nations level, at the level of regional organizations, at the level of regional human rights courts, all these bodies, like the vast majority of States, believe that human rights are not territorially limited, but that they can be applied extraterritorially.
They may apply when the State exercises a certain degree of jurisdiction over a foreign territory. This degree of jurisdiction must be defined more specifically, but according to this view, there is no territorial limitation; human rights law may extend beyond the borders of the State when State organs perform acts of public authority abroad.
There are only a few States and no international body that consider the opposite and still stick to a rigid interpretation that human rights cannot be applied extraterritorially, in particular States that have occupied territories and therefore do not want to be charged with any further human rights obligations in those territories in addition to which they already have under IHL, as in the case of Israel, and they are on the other hand States that are involved in many international armed conflicts and therefore have no interest either in having the total range of obligations attributable to them in the various territories where they operate increased, as is the case with the United States of America. Other states have similar reflexes, such as Russia, which is moving in this direction, but Russia still participates in fewer international armed conflicts than the United States. Its practice is a little less relevant to international armed conflicts. Less relevant in the simple sense that it has had fewer opportunities to express itself in this regard.
Professor Kolb believes that the doctrine of the vast majority of States and international bodies, including the International Court of Justice, for example in the wall case, is better founded.
In any event, a word must be added on the degree of control of foreign territory that a belligerent must exercise in order for human rights law to apply to it.
What is generally accepted by all those who support the extraterritorial application of human rights is that in the case of an occupied territory, there is sufficient control for human rights law to be applicable there and for your human rights obligations to be applicable there, and it is also generally accepted by those same States that in the case of detention of persons in a camp, prison or elsewhere, this degree of control is also achieved. If we look at the English case law, in the Hassan and others case; let us look at the English legislation at the highest level, namely the House of Lords which still existed at the time, and indeed the case law of the European Court of Human Rights which confirmed these judgments; the European Convention on Human Rights applied on Iraqi territory in the prisons under the control of the United Kingdom. These are therefore two situations, namely occupied territory and the detention of persons where the State exercises such intense jurisdiction, that it would be shocking if these human rights obligations did not apply to them. This would mean that we should behave properly on our territory, as soon as we are on a foreign territory, it is possible to do abominable acts without anyone giving an account.
In other situations where there is less control, the assessment is more divided.
We discussed in the Bankovic case, the European Court of Human Rights in 2001, we discussed to what extent the bombings in the territory of the former Yugoslavia, in the context of the 1999 Kosovo war, to what extent the total air control held by the allies and therefore a whole series of European states bound by the European Convention on Human Rights, to what extent this total air traffic control implied that the United Kingdom, for example, had to comply with the obligations of the European Convention on Human Rights, namely adequate preparations and preparations for bombardments in order to respect the right to life as stipulated in Article 2 of the European Convention on Human Rights.
Can it be applied, yes or no? These are bombings, that's exactly what we're talking about. The deeper question of whether human rights law can be applied because the State in question, the United Kingdom or other, would have jurisdiction there, not territorial jurisdiction of course, the United Kingdom is not sovereign in the territory of Kosovo and Yugoslavia, but jurisdiction by virtue of effective control, Is that enough when you have only air traffic control and not ground control, when you are not present on the territory, but you are simply in the air, the European Court of Human Rights has denied that there is sufficient control here and has therefore considered that the Convention does not apply.
There is a whole series of intermediate situations that we are familiar with in human rights practice, such as the case where commandos are sent to abduct persons on foreign territory, the United Nations Human Rights Committee, Civil and Political Covenant, has considered that in this case, the Covenant applies; therefore, extraterritorial application, human rights, on foreign territory for the abduction operation. Could a single belligerent operation on foreign territory, such as sabotage for example, be sufficient, according to some bodies, probably yes, but not all States see it in the same way?
It is simply necessary to perceive that there is a whole series of degraded control situations and the answers are far from clear except in the two cases, which are clear, namely occupation and detention.
In what area can IHL be successful in IHL? What contributions are particularly useful in this regard?
In the field of IHL, we have few provisions, at least until the 1977 protocol on fair trial. The Geneva Conventions provide that protected persons such as prisoners of war may be tried in criminal proceedings generally, but also in civil proceedings. What this implies as an obligation of a fair trial, i.e. "fair trial", a guarantee of defence for example, is not specified. The 1977 protocols already contain much more in this respect, but they are not ratified by all States.
In this area, human rights law is particularly rich. There are not only the provisions contained in the various treaties, there is also the practice of the various bodies such as the European Court of Human Rights, there is an extremely rich practice that makes it possible to specify what is due in terms of a fair trial. The contribution of human rights to IHL is significant here.
The same applies to detention. There are detailed provisions in IHL, even very detailed provisions for the detention of persons in prisoner of war camps or civilian detention camps. The whole 1949 Geneva Convention III concerns this and much of the provisions of the IV Convention concerning civilians in Article 79 et seq. of the Fourth Convention also concerns this.
Apart from these prisoners of war camps and civilian prisoners of war camps, detention is not regulated in the Geneva Conventions and this gap is very appropriately filled and filled by certain provisions of Additional Protocol I and II, Article 75, Article 5 and 6 of Additional Protocol II, as well as by human rights law.
There are also useful contributions from human rights law in the occupied territories. We know this because we have probably already seen that the United Nations, through all its bodies, applies both IHL, i.e. the right of war occupation, and the international covenants on civil and political rights and on social, economic and cultural rights, i.e. the two 1966 covenants, to the occupied Palestinian territory. This is a constant practice of the organization and its bodies such as the Human Rights Council and the Human Rights Committee. Therefore, useful also in this respect in the occupied territories.
Useful also in non-international armed conflicts, sometimes referred to vulgarly as "civil war". This is not a legal art term and the term is not legally precise. Professor Kolb uses it here simply because it refers more than to the legal conflict, but not very transparent to non-international armed conflict. In such conflicts, there are few IHL rules applicable by treaty. There are few rules because states do not want to accept more than a minimum. There are many gaps and many uncertainties. Human rights law can be a useful complement to a certain extent. In situations in Syria, it is difficult to have many positive effects. If we take Anatolia, Turkey, in the 1990s, with the jurisdiction of the European Court of Human Rights, it was already slightly different. It is therefore necessary to distinguish between situations. For Syria, there is no regional court. In the Arab countries and Asia, there is no human rights tribunal as there are in Europe, the Americas and Africa now too.
Finally, even in the conduct of hostilities, or in principle, human rights law touches its nadir, that is, its lowest point, even in this area, there are some ad hoc but nevertheless useful contributions of human rights law. For example, with the right to life, this is what is at stake during the conduct of hostilities, at least very broadly. IHL is quite permissive, one can kill in armed conflict, one can aim to kill; in human rights law, there can be a certain temperament. We can think of the Isaeva case where the aim was to properly prepare a bombardment in order to limit civil collateral damage, which had not been done and what the European Court considered to be a violation of the right to life. There, there is an exceptional contribution of human rights law to the conduct of hostilities and not to the protection of persons, where it has a right to quote a little bit easier and more relaxing.