The University of Edinburgh. From the SelectedWorks of Ray Barquero. Ray Barquero, Mr., University of Edinburgh. Fall October, 2012

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1 The University of Edinburgh From the SelectedWorks of Ray Barquero Fall October, 2012 International Humanitarian Law Essay: A concise assessment of the interplay between the various sources of international humanitarian law, and how the main sources influence and relate to each other and contribute to forming an integrated system Ray Barquero, Mr., University of Edinburgh Available at:

2 International Humanitarian Law A concise assessment of the interplay between the various sources of international humanitarian law, and how the main sources influence and relate to each other and contribute to forming an integrated system By Ray Barquero1 1 BA, LLB, LLM International Law

3 The inter-correlated relationship that the different sources of international humanitarian law maintain with each other is fundamental to the systems enduring as an integrated and coherent system of law. This essay will analyze how some of the main sources of international humanitarian law relate to each other and how that relationship contributes to maintaining such a well structured and integrated system. Particularly, the role of treaty law, customary international law, and some of the basic principles of humanitarian law will be assessed respectively. The interplay between custom and treaty law within the international humanitarian legal system will be analyzed from two different perspectives here. The first is where states that are not parties to any particular convention nevertheless behave in a manner consistent with the treaty standards, despite their not being under a treaty obligation to do so. The second emanates from the recognition that an express regulatory provision of any given treaty can develop into customary international law. These two perspectives will be dealt with correspondingly. The mere fact that a state is not a party to an international humanitarian treaty will not in itself preclude that state from acting in conformity with how it would otherwise be bound if it were a signatory to that treaty. This is significant because it highlights the relationship between treaty law and customary law as sources of international humanitarian law and is demonstrative of how these sources interchange with each other in their being applied to a conflict. This also highlights the relative importance of customary international humanitarian law, because treaty law only binds those states which are parties to that treaty. The Kuwait conflict of the early 1990s is an example of a conventional provisionary rule that was applied through custom. There, despite the majority of the more prominent state actors in the conflict not being signatory parties to Additional Protocol I (AP I), those states nevertheless adopted targeting policies that were largely aligned with the provisional standards set out in Articles of the Protocol. An example was the instruction given to target only and specifically military objectives, largely reflective of the targeting constraint imposed by Article 52 of that Protocol.. Another was the instruction to pursue the necessary measures so as to assure avoidance of excessive collateral damage inflicted in the employment of military objectives. This particular instruction finds expression in the wording of Article 57 AP I. These examples suggest not only that many of the 1

4 provisionary requirements expressed in international humanitarian law conventions may be declaratory of customary international law, but that even states that are not bound by treaties during times of war are reluctant to deviate too much from the constraints that would otherwise be imposed upon them by those treaties. In other words, despite a state not formally acceding to an international humanitarian legal standard, it would appear that states may still act in conformity with the overall purpose of an international humanitarian conventional criterion. It should be noted that some conventions go further than others in imposing constraints on states relating to the same subject matter. One example is the Gas Protocol 1925, 2 which imposes a ban on state signatories from usage of chemical and biological weapons. Given the gravity that the very nature of using such a weapon would inevitably entail, and perhaps as a repercussion from its employment during the Iran-Iraq War, attempts to revitalize the proscription on these types of weapons initially culminated in the Paris Conference on the Prohibition of Chemical Weapons These efforts, however, merely resulted in the prohibition on the usage of chemical and biological weapons, not possession of them. This was finally achieved in the Chemical Weapons Convention. 3 Prima facie this would seem like sort of a contradictory concept on the one hand you have states ratifying a treaty that allows for possession of chemical weapons (as these former attempts merely regulated the use of such weapons) and on the other you have the same states acceding to a convention that imposes an obligation to destroy chemical stockpiles. This seemingly inconsistent comportment between states, however, is actually a prime example of how the different sources of international humanitarian law come together to form such an integrated system. It demonstrates how humanitarian law, in any objective it seeks to achieve, from the prohibition of a commission to the destruction of a certain kind of weapon, will not leave the matter merely to one source of law. It seems that 2 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, signed at Geneva, June At the date of writing there are over 130 signatories (United Nations Office of Disarmament Affairs: Status of Multilateral Arms Regulation and Disarmament Agreements: 1925 Geneva Protocol) 3 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, signed at Paris and New York, January As of August states are parties to the Convention-- United Nations Treaty Collection. URL: 2

5 international humanitarian law will always attempt to re-establish a primary rule elsewhere, embedded in another source. 4 5 This overlapping between different humanitarian legal sources is also evident in the relationship between treaty law and customary law. Custom undoubtedly plays a paramount role in international humanitarian law, 6 and any attempt to assess the relationship between the different sources of this last would be rendered futile without its incorporation. Here the interplay between treaty law and custom will be briefly addressed, particularly with regards to conventional provisions that develop into customary law. Many times humanitarian treaty law becomes so universally accepted that its applicability becomes recognized as a customary rule. For example, most of the provisions of the Geneva Conventions 1949 are commonly contended to have reached customary status as 194 states are parties. 7 The Hague Conventions 1907 are further examples of this, where most of their provisions are binding upon non-state parties as they have been recognized as customary law. 8 Furthermore, the application of the Hague Conventions as customary international law has been asserted by the ICJ in the Case Concerning Armed Activities on the Territory of the Congo (DRC v Uganda). The 1868 Declaration of St. Petersburg not only codified pre-existing customary principles, but incorporated provisions that have since reached the status of customary international law. 9 These examples further highlight not only how 4 See examples given by T. Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law, American Journal of International Law, Vol. 90, No. 2 (Apr., 1996), pp where he cites, inter alia, the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (10 October 1980, 1342 UNTS 137), its new Protocol on Binding Laser Weapons, the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, etc. 5 Another example is given in Fleck, Dieter. The Handbook of International Humanitarian Law, Second Edition, Oxford University Press Inc., New York, 2008, para. 127 where he says that the three Protocols Additional to the GCs are designed to reaffirm and develop the rules embodied in the laws of Geneva of 1949 and part of the laws of the Hague of European Union Guidelines on Promoting Compliance with International Humanitarian Law, Official Journal of the European Union, (2005/C 327/04), 23 December 2005, para. 7 particularly stresses the imperativeness of customary law in international humanitarian law 7 Fleck, para Ibid. para See Fleck s example of the state parties to the Declaration agreeing to renounce the use of any projectile of a weight below 400 grammes which was either explosive or charged with fulminating or inflammable substances, Fleck, para

6 international humanitarian law will oftentimes consist of a same rule deviating from distinct sources of law, but also how a rule emanating from a single source can subsequently attain an additional source foundation. In his book, 10 Dieter Fleck entertains his readers with an intriguing contemplation. He contends that there are two primary reasons as to why customary law is still of particular relevance despite its being codified into treaty law (as it would seem that once a custom crystallizes into positive law there is no need for the same rule to be maintained as a customary rule). Foremost he argues it is because it enables international tribunals that lack the jurisdictional competence to apply multilateral treaty provisions to still be able to apply the law as it would stand under custom. Fleck further submits that national courts to which any given international humanitarian law treaty does not apply would also be reluctant to not consider a rule of customary law. These two contentions are significant. For one thing, they highlight the importance of two different sources of international humanitarian law co-existing side by side. In addition, these examples demonstrate how despite that co-existence of sources, some times a rule can only be applied by one source and not another. This argument distinguishes itself from the one in the preceding paragraph. There attention is drawn to the possibility of the same rule being reinforced by two or more sources. Fleck s argument stresses the importance of maintaining two or more sources for the same rule. However, both of these approaches demonstrate an overlapping of different sources pertaining to the same rule that either way contributes to a more coherent international humanitarian legal system. Another main source of the law of armed conflict are the principles upon which the very notion of humanitarian law as a legal regime is based and the impact that these play in influencing the development of humanitarian law should not go unmentioned. It is these very principles that constitute the raison d'être for the other sources of international humanitarian law and dictate the course that this latter will take. This can be most evident in the incorporation of the basic principles of the international humanitarian legal regime into binding law, whether conventional or customary. Following are concise examples of how treaty and customary humanitarian legal 10 Ibid. 4

7 sources have developed from these principles, and how they incorporate them in their employment. The Lieber Code 11 is of fundamental importance here. It was the first express codified law that insisted on humane, ethical treatment of persons within occupied territories. 12 It recognized humanity as a fundamental principle in that there needed to be restrictions aimed at preventing suffering and the worsening of treacherous and abhorrent treatment of people. As such it incorporated basic humanitarian values into its text. It was the first codified law that forbade the giving of no quarter to the enemy. 13 Further it imposed restrictions on torture and the use of poisons against the enemy and dealt with the taking of prisoners of war. 14 The influence of these principles can be identified in the Hague Regulations of 1907, which took much of the Lieber Code and wrote it into its treaty. The Martens Clause is another example worthy of mention. This holds that even if an act of war is not expressly prohibited by international agreements or customary law, this does not necessarily mean that it is actually permissible. 15 It elaborates that even in cases not covered by international agreements, civilians and combatants remain under the protection and authority of the principles on international law derived from established custom, from the principles of humanity and from the dictates of public conscience. 16 This doctrine can be cited as a recap of how international humanitarian law will establish a standard in more than one source. The Martens clause not only 11 Instructions for the Governments of Armies of the United States in the Field, General Order No. 100, April 24, See the Introduction to Hartigan, Richard Shelly, Lieber s Code and the Law of War. Precedent Publishing Inc. Chicago, IL p See Article 60, Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, LL.D., Originally Issued as General Orders No. 100, Adjutant General s Office, The Avalon Project, Documents in Law, History and Diplomacy, Lillian Goldman Law Digital Library, Yale Law School. URL: 14 See in particular Article and of the Code 15 Ticehurst, Rupert. The Martens Clause and the Law of Armed Conflict, 30 April 1997, International Review of the Red Cross, No Article URL: 16 Fleck, para

8 appears to be applicable to the whole of the international humanitarian legal regime but it appears in most of the more modern humanitarian treaties. 17 Another example of the interplay between the various sources of international humanitarian law is demonstrated in how the very principles that lay at the heart of the humanitarian system have become enshrined into its positive law. An example is that of equal protection. This comprises the idea that once hostilities are engaged, the principles of humanitarian law should be afforded to individuals on both sides of the conflict and applied without discrimination, regardless of who started the conflict. 18 This notion can be found in Article 75 AP I and in the preamble to AP I which states: the provisions of the Geneva Conventions must be fully applied in the circumstances to all persons who are protected by those instruments, without any adverse distinction Extending from this, Article 48 AP I explicitly codifies the humanitarian legal principle of distinction: the parties to the conflict shall distinguish between the civilian population and combatants and between civilian objects and military objectives The principle of military necessity or limited warfare 19 is another example. This holds that attacks should only apply the amount and kind of force necessary to defeat the enemy. These can be found in Articles of the Lieber Code or in para. 5.2 of the US Naval Manual (1997). Further, this basic principle has found elaboration in specific instances of limiting force to precisely what is necessary. Article 23, lit. e, HagueReg. prohibits the use of weapons that would cause unnecessary suffering. Article 23, lit. g HagueReg. imposes a prohibition on the unnecessary destruction of property. Article 51, para. 5 lit. b, AP I limits attacks on military objectives if it were to cause unnecessary civilian casualties. These are all examples of how some of the very principles upon which international humanitarian law is based have found themselves incorporated into humanitarian treaty law. Moreover, these treaty provisions lay down rules that also deviate from international customary law as an additional source. 17 See for example, Article 63, para. 4, GC I; Article 62, para. 4 GC II; Article 142, para. 4, GC III; Article 158, para. 4, GC IV and Preamble, para. 5 Weapons Convention 18 This seems to violate the legal doctrine that no one should be able to benefit from their own legal action, expressed in the legal maxim ex injuria non oritur ius 19 See Fleck, para