Geneva Law Research Articles

Reconciling Crimes Against Humanity with the Laws of War: Human Rights, Armed Conflict, and the Limits of Progressive Jurisprudence

If conduct is consistent with the laws of war, may it nonetheless constitute crimes against humanity during an armed conflict? Crimes against humanity initially emerged during the World Wars, in order to extend the protection of the laws of war to a perpetrator's co-nationals. This new category initially required a nexus with international armed conflict, but is now an autonomous concept based on human rights law that criminalizes large-scale atrocities in both war and peacetime. Crimes against humanity committed in armed conflict continue to be shaped by the laws of war. There is substantial convergence between the normative core of ‘non-derogable’ human rights and the minimum humane treatment standards in the Geneva Law. However, there is considerable divergence with respect to combat operations where the Hague Law applies as lex specialis, displacing certain human rights norms. ICTY jurisprudence demonstrates some of the instinctive tensions inherent in reconciling human rights with armed conflict. A notable instance is the Gotovina case, in which the Trial Chamber held that the laws of war do not apply to ‘deportation’ qua crimes against humanity such that there is no distinction between forcible displacement of civilians in occupied territories as opposed to combat operations. The temptation to dilute the laws of war through reclassification of conduct as crimes against humanity should be resisted because it does not necessarily result in increased protection for civilians in times of armed conflict. Utopian jurisprudence that disregards humanitarian law's realistic code of conduct in the name of progress risks making the law irrelevant to military commanders.

Introduction

International trials of war crimes, crimes against humanity and genocide are currently a matter of considerable interest – legal, political and human. The work of the International Criminal Tribunals for the former Yugoslavia and for Rwanda (ICTY and ICTR), set up respectively in 1993 and 1994, and the establishment of the International Criminal Court (ICC) at the Hague in 2002, have focused attention on the practice and value of such juridical processes both as forms of law and in terms of the events they address. The unexpected death of Slobodan Milosevic during his trial at the ICTY has only intensified the controversy aroused by such proceedings. Politics, history, memory, mourning, reparation and even reconciliation are inescapably part of the legal process, often in an explicit and even formal manner. This means that scholars in disciplines other than legal science and people from many backgrounds are interested in the work of such international tribunals and in the types of ‘truth’ that they seek to establish.Such trials are not new. The idea stems directly from the intersection of military violence and humanitarian impulses in the 19th century. Geneva law, emanating from the International Red Cross (founded after the main war of Italian unification), dealt with the humane treatment of wounded and prisoners. Hague law, which codified the conduct of belligerents towards non-combatants, grew from the Lieber Code devised by the Union during the American Civil War and from the attempts by European powers to regulate military conduct after the Franco-Prussian War, culminating in the Hague conferences of 1899 and 1907.

Traditions of War: Occupation, Resistance, and the Law (review)

Reviewed by: Traditions of War: Occupation, Resistance, and the Law Gary Solis Traditions of War: Occupation, Resistance, and the Law. By Karma Nabulsi. New York: Oxford University Press, 2005 [1999]. ISBN 0-19-927947-0. Notes. Bibliography. Index. Pp. xii, 293. $35.00. To paraphrase a description from Michael Herr's Dispatches, this book does to your understanding of the law of war what flares do to your night vision. It also illustrates the strengths and weaknesses of doctoral dissertations re-worked as books: fresh slants on familiar topics, burdened with verbosity and jargon. In this case, there is a personal agenda, as well. Wading through "normative frameworks," "hegemonic discourse," and "taxonomical analysis," one discovers that Doctor Nabulsi has a startling [End Page 893] idée fixe. She argues that traditional law of war consciously structures battlefield law to wrongfully restrict combatant status to members of national armies, excluding civilians who take up arms against those occupying national armies. Upon capture, she urges, such civilians merit POW status, just like soldiers of occupying forces. She is not writing about levées en masse. To accept the author's position that civilians who fight an occupying army should be considered lawful combatants, rather than unprivileged belligerents accorded only protected person status upon capture, would stand Geneva law on its head. 1977 Additional Protocol I to the 1949 Geneva Conventions takes significant steps in that direction—a principal reason why the U.S. will not ratify that Protocol. The writer's unlawful combatant/POW argument is interspersed with lengthy sections relating law of war history and attacks on established polities that have shaped battlefield law for more than a century. These sections are well-told, often rich in military history, and are the strongest sections of the book. They are accompanied, however, by dense didactic assertions regarding law of war schools of thought, as well as screeds against the British, against Hugo Grotius, and against Francis Lieber—primary framers of modern law of armed conflict (LOAC). Although she doesn't make the connection out loud, they are also leading proponents of the position that insurgents are unlawful combatants not entitled to POW status. It explains much to know that the author, an Oxford lecturer, is a former PLO member and confidant of Yasir Arafat—that is, a member of a prime exemplar group excluded by modern LOAC from POW eligibility. She argues that states should have long ago found a solution to the unlawful combatant/POW issue. But they have. The post–World War II High Command Case (U.S. v. von Leeb) does much to clarify who is and is not a lawful combatant entitled to POW status. Article 4 of Geneva Convention III refines and expands the von Leeb formulation. The author simply does not agree with the POW Convention's solution, although it is ratified by 189 of the world's 191 States. Her case is not strengthened by muddying, for example, what constitutes occupation, who is a lawful combatant (p. 16), what constitutes a lawful reprisal (p. 17), and who may be lawful objects of reprisals (p. 27). She sometimes applies nineteenth-century examples to modern LOAC issues as if there had been no intervening development of LOAC, apparently depending on the reader's lack of LOAC expertise to not discern the tactic. Her lengthy discussion of the eighteenth- and nineteenth-century Republican tradition of war is informative and interesting, but it cannot make the case for twenty-first-century protections for unlawful combatants. Although a fresh view of European martial history, her yeoman effort to fit square pegs into round holes fails, and the book is wanting as law of war scholarship. Gary Solis West Point, New York Copyright © 2006 Society for Military History

Droit de Genève et droit de La Haye

Abstract Present-day international humanitarian law has grown from two main sources: the Law of Geneva, i.e. a body of rules which protect victims of war, and the Law of The Hague, i.e. those provisions which affect the conduct of hostilities. The author examines the different policies which are behind these two branches of international humanitarian law and traces their history up to the 1974-1977 Diplomatic Conference which, by adopting Additional Protocol I, brought about their convergence. While the ICRC undoubtedly gave rise to the Law of Geneva, its contribution to the development and implementation of the Hague Law has been less explicit. The author argues that any involvement in humanitarian law today implies a concern for both domains, which now are inseparable parts of modem international humanitarian law.

Commentary: The Yugoslavia Tribunal and the Common Core of Humanitarian Law Applicable to all Armed Conflicts

This article discusses the contribution made by the jurisprudence of the Yugoslavia Tribunal to the articulation of the body of international humanitarian law that applies to all armed conflicts, regardless of whether they are international or internal. The Tadić Jurisdiction Decision rendered by the Appeals Chamber in 1995 set the stage for a substantial “rapprochement” of the regulatory content of war crimes committed in international and internal armed conflict, using Common Article 3 of the Geneva Conventions as the main vehicle. The first judgements have contributed greatly to the expansion of the body of “Geneva law” applicable to all armed conflicts. More recently, the Tribunal has started to examine cases of armed conflicts per se, in which perpetrators have been charged with violation of the “Hague law”, i.e., the law relating to the conduct of hostilities. The end result of this development will be elaboration of a common core of Geneva law and Hague law applicable to all armed conflicts that have reached the threshold of Common Article 3 of the Geneva Conventions.

Des pages méconnues de l'histoire de la Seconde Guerre mondiale: les prisonniers de guerre soviétiques en Finlande (1941–1944)

Despite abundant literature on the Second World War, not much has been written about the situation of those members of the Soviet armed forces who were held in captivity by Finland between 1941 and 1944. Yet between June and September 1941 close to 65,000 officers and men of the Red Army were taken prisoner, many of whom were wounded. Although the Soviet Union was not a party to the 1929 Prisoner-of- War Convention, Finland treated its prisoners according to the Law of Geneva. Thus ICRC delegates visited the POW camps, and prisoners received food and medical assistance from various Red Cross Societies. In the autumn of 1944 they were repatriated to the Soviet Union. Not much is known about how they fared after their return to their home country. Firsthand accounts by former Soviet POWs close this review of a chapter of recent history unknown to most.

Význam Haagské mírové konference z roku 1899 pro vývoj práva ozbrojených konfliktů

The Hague peace conference in 1899 was one of the landmarks in the development of modem international law. It set an example to subsequent conferences as wen as to procedure and negotiations within international organizations. But at the time it was held it did not as yet succeed in creating legal norms which would guarantee lasting peace.The rules of the peaceful settlement of conflicts, adopted at the Hague peace conference in 1899, was a phase on the road to the solution of conflicts exclusively by peaceful means. But the conditions for the banning of war did not exist at that time. Moreover, the time for disarmament had not yet matured. The fact was that the standard of relations between states, and especially their mutual mistrust, did not provide for disarmament, which did not take place until the late l980s. It is only since then that the legacy of the 1899 Hague peace conference has been translated into reality. The treaties and declarations concerning war rights, adopted by the Hague peace conference in 1899, were a compilation of written statements but were also aimed of the promotion of law of international war. They were a rejection of efforts to humanize wars, and consequently were significant not only in the light of the rules of waging war but also in the light of humanitarian law.The idea of humaneness and its concrete shape were later enshrined in the treaties adopted by the Hague peace conference in 1907 as well as in further treaties concluded under Hague and Geneva law in the period between the two world wars, and explicitly after the second world war. In this connection, the 1899 Hague peace conference was the foundation, opening the process of the codification of international law.Certain rules in the Hague accords of 1899 still constitute valid international law on armed conflicts, mainly because they are a reflection of international practices. The so-called Martens clause contained in the Accord on the laws and practices of territorial wars with the Order of land wars of 1899 remain significant till this day. The Declaration on a ban on toxic gas-carrying missiles is also part of valid international law – as follows from the judgement of the International Court of Justice as regards the legality of the use of nuclear weapons of 1996. The Declaration on the ban of missiles adapted in such a way as to spread in the human body and cause fierce pain (the so called dum dum missiles) also remains in force.

Trends in the application of international humanitarian law by United Nations human rights mechanisms

UN human rights mechanisms continue to proliferate, producing numerous decisions and voluminous reports. This article reviews the ways in which such mechanisms apply international humanitarian law, including the law of Geneva and the law of The Hague. In doing so, it focuses mainly on the practice of the rapporteurs appointed by the UN Commission on Human Rights to investigate the human rights situations in specific countries and on that of the thematic rapporteurs and working groups which the Commission has entrusted with monitoring specific types of serious human rights violations wherever they occur, in particular the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions and the Representative of the Secretary-General on Internally Displaced Persons, whose mandates most often lead them to examine abuses occurring in the context of armed conflicts. Reference is also made to two innovative mechanisms which functioned in El Salvador: the first UN-sponsored “truth commission” and the first human rights monitoring body established as part of a comprehensive mechanism for monitoring compliance with a UN-sponsored peace agreement. Certain observations made by treaty monitoring bodies are also mentioned.

The new law of the sea: Rethinking the implications for sovereign jurisdiction and freedom of action

This article examines the effects of the 1982 UN Convention on the Law of the Sea on sovereign jurisdiction and freedom of action in key sea zones covered under this Convention for coastal, noncoastal, and landlocked states pursuant to the modifications contained in the 1994 Implementation Agreement. In order to determine whether or not the treaty increases, decreases, or has no effect on state sovereign‐jurisdiction and freedom of action in the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf, the archipelagic regime, international straits, the high seas, and the deep seabed, the rights and duties of states set forth in this Convention are compared with those previously recognized in the 1958 Geneva Law of the Sea Conventions, state practice, and other sources of international law.

Fighting by the rules: Instructing the armed forces in humanitarian law

It is commonly accepted that education in human rights may be one of the most effective tools in promoting the observance of those rights. Those whose profession entails the exercise of power over others have an obvious need to know the limits of their power and members of the armed forces represent just such a group. Their acts engage the responsibility of their State under human rights treaties, wherever those acts are committed. Some instruction in human rights law, particularly non-derogable rights, is therefore necessary but the body of rules which imposes the greatest prohibitions and restraints on the conduct of armed forces is humanitarian law. That term is used here as including both “The Hague law”, which imposes limits on the means and methods of warfare, and “Geneva law”, which seeks to protect certain victims of the conflict, such as the wounded and sick in the field, the wounded, sick and shipwrecked at sea, prisoners of war and civilians living under belligerent occupation. The latter body of rules was updated in 1977 by the addition of two Protocols which extended the range of protection by incorporating elements of “The Hague law”. The 1949 Geneva Conventions have been ratified by 166 States and Hague Convention IV, with which we shall principally be dealing, was held by the Nuremberg Tribunal to represent customary international law. To all intents and purposes then, every State is bound by the two bodies of rules. In addition, the 1977 Protocols are binding on those States which have ratified them.

State of Emergency and Humanitarian Law — On Article 75 of Additional Protocol I

In a rich and abundant literature on the subject of international humanitarian law, two trends in the interpretation of the term “humanitarian law” stand out: one takes it in its broad meaning, the other in a narrow sense. According to the definition by Jean S. Pictet, humanitarian law, in the broad interpretation, is constituted by all the international legal provisions, whether written or customary, ensuring respect for the individual and the development of his life. Humanitarian law includes two branches: the law of war and human rights. The law of war, still following Professor Pictet's definition, can be subdivided into two sections, that of The Hague, or the law of war, in the strict sense, and that of Geneva, or humanitarian law, in the narrow sense. It is often difficult to distinguish clearly between these branches of law, and especially between the law of The Hague and the law of Geneva, because of the reciprocal influence each has had on the development of the other, to the extent that some well-known experts considered the traditional difference between them out-of-date and superfluous.

The ICRC, the League and the Report on the re-appraisal of the Role of the Red Cross (III): Protection and assistance in situations not covered by international humanitarian law

Originally, and up to 1949, the law of Geneva protected only victims of wars between States. Article 3, common to the four Conventions of 1949, is applicable to all non-international armed conflicts; the Protocol additional II to these Conventions covers non-international armed conflicts in which hostilities reach a certain degree of intensity; it does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts (Protocol II, art. 1, par. 2).

Africa’s Approach to Human Rights at the United Nations

International concern with the rights of man is not new. During the 1800s the movement to abolish slavery was an emanation of this concern. In the mid-1800s the International Committee of the Red Cross was founded in reaction to the lack of care for wounded soldiers on battlefield. Under its aegis there developed humanitarian law, both the Law of Geneva and the Law of The Hague.In the post World War I period, civil and political rights were given international protection in a series of “minorities treaties.” In addition, economic and social rights received international recognition with the creation of the International Labor Organization (I.L.O.) in 1919. Refugees received assistance with the establishment of a High Commissioner for Refugees. It has, however, only been in the post World War II period that international human rights, and their protection, have received extensive recognition.

Africa’s Approach to Human Rights at the United Nations

International concern with the rights of man is not new. During the 1800s the movement to abolish slavery was an emanation of this concern. In the mid-1800s the International Committee of the Red Cross was founded in reaction to the lack of care for wounded soldiers on battlefield. Under its aegis there developed humanitarian law, both the Law of Geneva and the Law of The Hague.In the post World War I period, civil and political rights were given international protection in a series of “minorities treaties.” In addition, economic and social rights received international recognition with the creation of the International Labor Organization (I.L.O.) in 1919. Refugees received assistance with the establishment of a High Commissioner for Refugees. It has, however, only been in the post World War II period that international human rights, and their protection, have received extensive recognition.

Henry Dunant, promoter of the 1874 Brussels Conference, Pioneer of Diplomatic Protection for Prisoners of War

That is what Henry Dunant wrote in his notebooks, most of which were never published, and we are pleased to publish a study shedding light on Dunant's role as promoter of protection for prisoners of war.In Belgium's capital, ceremonies were recently held to mark the centenary of the Brussels Declaration. At the formal commemorative sitting, Mr. J. Pictet, Vice-President of the ICRC, drew attention to the parallel development of the law of Geneva and the law of The Hague, to which the Brussels Declaration gave a decisive impetus. The study is therefore well-timed. As usual, the, views expressed are those of the authors alone. It may be added that the original is in French and that the English version is a translation by the ICRC.

The Geneva Convention of 1864 and the Brussels Conference of 1874 (II)

Yet, though Gustave Moynier recognized that the rules relative to wounded or sick troops should clearly form a part of a plan for the codification of the most important laws of war—for it was he who had suggested in 1868 to the President of the Swiss Confederation that, because of the very close connection existing between the Law of Geneva and Alexander II's project, the Geneva Conference might be linked to the Conference of Saint Petersburg, to alleviate “as much as possible the calamities of war” — he did not show much enthusiasm, even while declaring his approval of the new Russian proposals, and did not hide his attitude of reserve.

Pseudo-medical experiments

The Neutral Commission appointed by the ICRC to decide on claims made by Polish victims of pseudo-medical experiments carried out in Nazi concentration camps during the Second World War met at ICRC headquarters in Geneva on 17 and 24 June 1972. The Commission comprises Mr. W. Lenoir, Chairman of the Neutral Commission and Judge of the Geneva Law Courts; Dr. S. Mutrux, Assistant Administrator of the Bel-Air Psychiatric Clinic in Geneva, and Dr. P. Magnenat, Dean of the Faculty of Medicine and Assistant at the University Clinic of the Nestlé Hospital in Lausanne.

For Victims of Pseudo-Medical Experiments

The Neutral Commission appointed by the ICRC to decide on claims made by Polish victims of pseudo-medical experiments carried out in Nazi concentration camps during the Second World War, met at ICRC headquarters in Geneva, on 4 and 5 May 1972. It comprised Mr. Lenoir, Chairman of the Commission and Judge at the Geneva Law Courts; Dr. S. Mutrux, Assistant Administrator of the Bel-Air Psychiatric Clinic in Geneva, and Dr. P. Magnenat, Dean of the Faculty of Medicine and Assistant at the University Clinic of the Nestlé Hospital at Lausanne.

For the victims of pseudo-medical experiments

The Neutral Commission appointed by the ICRC to decide on claims made by Polish victims of pseudo-medical experiments carried out in concentration camps during the Second World War, met at ICRC Headquarters in Geneva from 6 to 8 January 1972. It comprised Mr. Lenoir, the Chairman, a Judge of the Geneva Law Courts, Dr. S. Mutrux, Assistant Administrator of the Bel-Air Psychiatric Clinic in Geneva, and Dr. P. Magnenat, Dean of the Faculty of Medicine and Assistant at the University Clinic of the Nestlé Hospital in Lausanne.

Conferences for the Development of Humanitarian Law — Main Subjects

Notwithstanding the volume reached by the Geneva Conventions in 1949, they do not cover the whole field of human misfortunes. It is now more than twenty years since they were drafted. Moreover, although Geneva Law was developed in detail in 1949, The Hague Law, on the contrary, which deals more with the regulation of hostilities and of the utilization of weapons, goes back to 1907, when bomber aircraft had not yet come into existence.