Wolff Heintschel von Heinegg

a virtual impossibility. It would seem, therefore, that the rules in the Declaration
on blockade in time of war are now mainly of historical interest. 58

Some consider the British practice a contribution to the progressive devel-
opment of the international law on blockades. Still others stress the fact that
the United Kingdom had justified its practice by reference to reprisals. Hence,
they maintain, the London Declaration has not been substantively derogated
by that practice. They merely concede that the requirement of effectiveness to-
day has to be interpreted in the light of the development of weapons technolo-
gies, such that the blockading forces may be deployed at some distance from
enemy coasts and ports.6?

In fact, the limitations of the traditional blockade law have, to a consider-
able extent, been observed in the practice of States since 1945. Of course, the
principle of effectiveness as well as the requirement of maintaining and enforc-
ing a blockade by solely surface warships have been modified. Moreover, it
seems that today aircraft may also be subjected to blockade measures. Still, the
law as laid down in the 1909 London Declaration has not become obsolete.

The closure of the areas and ports under the control of communist China
declared by the national Chinese government on June 26, 1949, although not
justified as blockade, widely conformed with the traditional rules. Both the
measures to be taken and the geographical limits were declared and notified in
advance. The national Chinese armed forces were able to effectively enforce
the closure/blockade because, by deploying reconnaissance aircraft, they were
fully and constantly aware of all movements within the Chinese territorial
sea.6l

During the Korean War the U.S./UN naval armed forces, because of their
superiority, were able to maintain and enforce the blockade declared on July 4,
1950, in nearly full accordance with the provisions of the London Declara-
tion.62 Warships—except of the North Korean navy—were excluded, as was
the port of Rashin that served as a naval base of the former Soviet navy.3

During its 1971 conflict, the Indian navy closed the entire coast of Bangla-
desh. The superior Indian navy was supported by military aircraft deployed on
the carrier Vikrant. Thus, all vessels were successfully prevented from entering
or leaving the blockaded area. Altogether, six merchant ships and numerous
small boats were captured. Those small boats that did not comply with the or-
ders given by the warships’ commanders were attacked and sunk.§+

The blockade of Haiphong in May 1972 also widely corresponded with the
requirements of a classical blockade, although, again, the notion “blockade”
was not used. Prior to the closure becoming effective, it was publicly

211


W. Hays Parks

description of its effects in horrific terms may play well with the media and
cause some to succumb to emotional calls to ban that weapon. But war remains
a violent confrontation between nations, and people suffer from the lawful use
of lawful weapons. As evidenced by the efforts to prohibit the submarine, seek-
ing a political solution in response to emotional rhetoric often results in a fa-
tally flawed product.

8. A difficult issue seldom becomes easier to resolve with time. The refusal of the
United States and Great Britain to address the distinctions with regard to
“merchant ships” merely postponed the inevitable. Using ambiguities to gain
consensus did not resolve issues raised early in World War I that re-surfaced in
World War II, prompting each submarine power to abrogate its obligations.

Notes

1. May 18, 1977, 31 U.S.T. 333, 1108 U.N.T.S. 152, T.LA.S. 9614. Republished in D.
Schindler and J. Toman eds., DROIT DES CONFLICTS ARMES (4th ed., 1996), at 173. Iraqi
intentional release of oil into the Persian Gulf and destruction of the Al-Burqan and
Ar-Rumaylah oil fields in Kuwait during its 1990-1991 occupation of Kuwait prompted calls
for further international legislation to protect the environment. See R. Grunawalt, J. King
and R. McClain, eds., U.S. Naval War College International Law Studies, Vol. 69, PROTECTION
OF THE ENVIRONMENT DURING ARMED CONFLICT (1997); and J. Austin and C. Bruch,
The Greening of Warfare, THE ENVIRONMENTAL FORUM 15, 6 (November/December 1998), at
32.

2. 26 LL.M. 561, Schindler & Toman, supra note 1, at 755. The United States signed
Additional Protocol Ion December 12, 1977, with declarations. On January 28, 1987, President
Ronald Reagan informed the United States Senate that Additional Protocol I would not be
submitted for Senate advice and consent to ratification. Message of the President of the United
States Transmitting the Protocol II Additional to the Geneva Conventions of August 12, 1949,
and Relating to the Protection of Victims of Noninternational Armed Conflicts, Concluded at
Geneva on June 10, 1977, 100* Congress, 1st Session (1987). However, the United States has
agreed that certain of its provisions constitute a codification of customary international law; see
U.S. DEPARTMENT OF STATE, CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW, 1981-1988, at 3434-3435.

3. Schindler & Toman, supra note 1, at 829. Signed by the United States on December 12,
1977. Forwarded by President Ronald Reagan to the United States Senate for its advice and
consent to ratification on January 29, 1987, where it awaits action; see Message of the President,.
supra note 2.

4. The popular name is United Nations Conventional Weapons Convention. It is referred
to by the acronym UNCCW (for United Nations Convention on Certain Conventional
Weapons) to avoid confusing it with the 1993 Chemical Weapons Convention, whose acronym
is CWC.

5. 1342 U.N.T.S. 137, U.S. Treaty Doc. No. 103-25, 19 LL.M. 1523; Schindler & Toman,
supra note 1, at 195. Protocol I prohibits weapons the primary effect of which is to injure by
fragments which in the human body escape detection by x-ray; Protocol II regulates the use of
land mines, booby traps and other devices; Protocol III regulates the use of incendiary weapons.

367


Paul C. Szasz

56. UN Doc. A/46/185 of 23 May 1991, para 28. It should be noted that in recent agreements
the word “spirit” in the second and last lines of the quoted text has been replaced by “rules.”

57. These agreements are to be distinguished from the Contribution Agreements between
the United Nations and States Contributing Resources to United Nations Peace-keeping
Operations—a model of which is set out in UN Doc. A/50/995 (1996), Annex—which are
routinely concluded.

58. A/C.4/53/SR. 13, para. 21, and Press Release SG/SM/6777 - PKO/79 of 29 October 1998.
The General Assembly's Special Committee on Peacekeeping Operations later complained that
it had not been consulted as to this new policy (A/54/87 of 23 June 1999, para. 56).

59, S/RES/1261 (1999) of 25 August, 1999, para. 19. This requirement for training echoes
the undertaking in Section 3 of the SGB (supra note 1)that the UN is to “ensure that members of
the military personnel of [UN forces] are fully acquainted with the principles and rules of the
[general conventions applicable to the conduct of military personnel].”

60. UN Doc. A/50/230 of 22 June 1995, para. 73.

61. Report by the ICRC on the first Meeting of Experts on the Applicability of Intemational
Humanitarian Law to United Nations Forces, Geneva, 6-8 March 1995 (July 1995).

62. 1868 St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive
Projectiles Under 400 grammes Weight, 138 CTS 297 (Fr.); 1 AJIL Supplement 95 (1907),
reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 42, at 53 (Third Edition).

63. Most recently the Committee did so in its report on its meetings during 1999, A/54/87 of
23 June 1999, para. 82.

64. See supra note 1.

65. See infra note 81.

66. See supra, text following note 55.

67. See supra, text by note 17.

68. UN CHARTER, Article 97.

69. See supra note 60.

70. See supra note 63. The lack of consultations was deplored by numerous delegations in the
debate on peacekeeping operations in the Fourth Committee at the 54th session of the General
Assembly during October 1999 (A/C.4/54/SR.10-13), though only the Canadian representative
faulted the Bulletin substantively, as containing “an unacceptable level of imprecision and
ambiguity” (id.,/SR.11, para 2). Itshould be noted that the resolution that the General Assembly
adopted consequent on this debate (A/RES/54/181 of 6 December 1999) does not refer to the
Bulletin atall, thus neither criticizing the insufficient consultations nor endorsing the substance.
The Special Committee is likely to add its own complaint on this score at its spring 2000
sessions—see supra note 58.

71. This would appear to follow from Article 98 of the UN Charter, and from the fact that,
even if the Secretary-General’s position as de facto Commander-in-Chief is not specified in the
Charter, it follows from the circumstance that in establishing each military operation, the
Council or the Assembly has specifically designated him as the one to implement it.

72. Introductory paragraph of the SGB, supra note 1.

73. Indeed, in a letter that the Secretary-General addressed to the President of the Security
Council on 29 November 1992, in connection with a proposal to authorize an enforcement
operation in Somalia to be undertaken by a group of member States, he suggested that one way
by which the Council might exercise control over such a force would be to stipulate in the
authorizing resolution that the “operation be conducted with full respect for the applicable rules
of humanitarian law” (UN Doc. $/24868, at 5). However, the Council in authorizing the

531


M. Cherif Bassiouni

(1997); Margareta Sollenberg & Peter Wallesteen, Major Armed Conflicts in 1995, in SIPRI
YEARBOOK 1996 (1996). There were two studies reported in the PIOOM Newsletter and
Progress Report in 1994 and 1995: AJ. Jongman & A.P. Schmid, Contemporary Conflicts: A
Global Survey of High and Lower Intensity Conflicts and Serious Disputes, 7 PIOOM NEWSLETTER
AND PROGRESS REPORT 14 (Winter, 1995) and Study, 6 PIOOM NEWSLETTER AND PROGRESS
REPORT 17 (1994). See also Alex P. Schmid, Early Waming of Violent Conflicts: Causal
Approaches, in VIOLENT CRIME & CONFLICTS 47 (ISPAC 1997); “PIOOM World Conflict and
Human Rights Map 1998” at (last visited Oct. 30, 1998) <http:/Avww.fsw.leiden.univ.nl>.

15. BASSIOUNI, CRIMES AGAINST HUMANITY, supra note 4.

16. Convention Respecting the Laws and Customs of War on Land [Second Hague, IV], Oct.
18, 1907, 36 Stat. 2277, 1 Bevans 631 (entered into force Jan. 26, 1910) (entered into force with
respect to the United States Jan. 26, 1910) [hereinafter 1907 Hague Convention], reprinted in 2
Weston, supra note 2, at II.B.1.

17. Id., Preamble.

18. Commission on the Responsibility of the Authors of the War and on Enforcement of
Penalties, Report Presented to the Preliminary Peace Conference, March 29, 1919, 14 AM.J. INT'LL.
95 (1920).

19. VAHAKN N. DADRIAN, THE HISTORY OF THE ARMENIAN GENOCIDE: ETHNIC
CONFLICT FROM THE BALKANS TO ANATOLIA TO THE CAUCASUS (1985).

20. See Memorandum of Reservations Presented by the Representatives of the United States to the
Report of the Commission on Responsibilities, Annex II, April 4, 1919, reprinted in 14 AM. J. INT'L
L. 127, 144-51 (1920); Reservation by the Japanese Delegation, Annex III, April 4, 1919, reprinted
in 14 AM. J. INTLL. 151 (1920).

21. Treaty of Peace Between the Allied Powers and Turkey, Aug. 10, 1920 (Treaty of Sevres),
reprinted in 15 AM. J. INT'LL. 179 (Supp. 1921).

22. Treaty with Turkey and Other Instruments Signed at Lausanne July 24, 1923, Final Act,
reprinted in 18 AM. J. INT'L L. 1 (Supp. 1925).

23. JAMES F. WILLIS, PROLOGUE TO NUREMBERG: THE POLITICS AND DIPLOMACY OF
PUNISHING WAR CRIMINALS OF THE FIRST WORLD WAR (1982).

24. THE PUNISHMENT OF WAR CRIMINALS: RECOMMENDATIONS OF THE LONDON
INTERNATIONAL ASSEMBLY (Report of Commission I) (1944).

25. Agreement by the Government of the United Kingdom of Great Britain and Northern
Treland, the Government of the United States of America, the Provisional Government of the
French Republic, and the Government of the Union of the Soviet Socialist Republics for the
Prosecution and Punishment of the Major War Criminals of the European Axis and the Charter
of the International Military Tribunal, Aug. 8, 1945, 59 Stat. 1544, 1546, 82 U.N.T.S. 279, 3
Bevans 1238, entered into force Aug. 8, 1945 [hereinafter London Charter], reprinted in 2
Weston, supra note 2, at II-E.1. See also Special Prosecution Establishing an International
Military Tribunal for the Far East and Charter of the International Military Tribunal for the Far
East, Jan. 19, 1946, T.IA.S. No. 1589, at 3, 4 Bevans 20 [hereinafter IMTFE], reprinted in 2
Weston, supra note 2, at II-E.2. Article 5(c) is similar to Article 6(c) of the London Charter, as is
Axticle II(c) of Control Council Law No. 10, though it removes the war connecting requirement.

26. Lucy S. DAWIDOWICZ, THE WAR AGAINST THE JEWS: 1933-1945 (1975).

27. See Principles of International Law Recognized in the Charter of the Nuremberg Tribunal
and in the Judgment of the Tribunal, 5 U.N. GAOR Supp. (No. 12) at 11, U.N. Doc. A/1316
(1950), 44 AM. J. INTLL. 126, [hereinafter 1950 ILC Report], reprinted in 2 Weston, supra note
2, at ILE.4.

41


Dispute Settlement under the 1997 Watercourses Convention

have been used on an ad hoc basis by various international organizations. The
League of Nations set up its own commissions of inquiry in seven cases, includ-
ing the Aland Islands dispute between Finland and Sweden in 1921, and the
Mosul dispute between Britain and Turkey in 1925. The United Nations has
similarly resorted to inquiry. For instance, in 1982 the Security Council estab-
lished a fact-finding commission to investigate an attempted coup led by for-
eign mercenaries in the Seychelles, and in 1984 Secretary General Perez de
Cuellar sent a commission of neutral experts to investigate whether chemical
weapons had been used in the Iran-Iraq war. Moreover, the UN General As-
sembly has expressly recommended the resort to fact-finding as a means to set-
tle disputes. ?3

Also well known are the International Labor Organization’s commissions of
fact-finding, which investigate complaints related to labor conventions.
Among the commissions established by the International Civil Aviation Orga-
nization, the most famous is the one established in 1983 to investigate the
KAL 007 incident, which involved the shooting down of a South Korean
jumbo jet over Soviet territory.”+

A permanent international fact-finding commission was established by the
parties to the 1977 Geneva Protocol I Additional to the Geneva Conventions
of 1949 Relating to the Protection of Victims of International Armed Con-
flicts.?5 The provision on fact-finding became operative in 1990 after 20 States
had expressed consent to the jurisdiction of the commission.’ The commission
Is to

(i) enquire into any facts alleged to be a grave breach as defined in the
Conventions and this Protocol or other serious violation of the Conventions
or of this Protocol;

(ii) facilitate, through its good offices, the restoration of an attitude of respect for
the Conventions and this Protocol.

Although the text of the Protocol does not say so expressly, according to the
Commentary prepared by the International Committee of the Red Cross the
commission is authorized to enquire only into the facts and not to decide mat-
ters of law or pass judgment.’8

So far we have seen that by definition the mechanism of inquiry or
fact-finding is limited to the establishment of the facts. However, under the
1997 Watercourses Convention as quoted above, the commission is also to in-
clude in its report “recommendations as it deems appropriate for an equitable
solution of the dispute.””? Is this still in the realm of fact-finding? It seems that

240


The Rome Statute on the International Criminal Court

(1947), 15 LR-T.W.C. 44. Note also the application of the principle for grave breaches of the
four 1949 Geneva Conventions: Art. 49, Geneva Convention (I) for the Amelioration of the
Condition of Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31; Art. 50, Geneva
Convention (II) for the Amelioration of the Wounded, Sick and Shipwrecked Armed Forces at
Sea, 75 U.N.T.S. 85; Art. 129, Geneva Convention (III) Relative to the Treatment of Prisoners
of War, 75 U.N.T.S. 135 and Art. 146, Geneva Convention (IV) Relative to the Protection of
Civilian Persons in Time of War 75 U.N.T.S. 287; Additional Protocol I of 1977, 1991 Canada
Treaty Series No. 2 and Article 28 of the 1954 Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict, 249 U.N.T.S. 240. There is also national legislation to
support universal jurisdiction as detailed in International Committee of the Red Cross, Universal
Jurisdiction vs. State Consent, Doc. ICRC/NYC/, October 12, 1997, 2: see, e.g., the Geneva
Conventions Act of Australia (1957 as am. 1991); the Geneva Conventions Act of Canada
1965; the Geneva Conventions Act of India 1960; the Belgian Loi du 16 juin 1993 relative a la
répression des infractions’graves aux Conventions de Geneve du 12 aoitt 1949 et aux Protocoles | et II
du 8 juin 1977. As well, States have adopted more general legislation referring to war crimes and
universal jurisdiction without reference to the Geneva Conventions. See, e.g., s. 7 (3.71) (b) of
the Canadian Criminal Code, and BRITISH LAW OF WAR ON LAND (BEING PART III OF THE
MANUAL OF MILITARY LAW) (1958), Ch. XIV, para. 637, 180. Domestic prosecutions also
evidence the use of universal jurisdiction: see Polyukhovich v. Commonwealth of Australia (1991),
172 C.L.R. 501, 562-3, 565 (Aust. H.C.). Note also in a civil claim context the discussion of
universal jurisdiction in Kadic v. Karadzic, 70 F. 3d 232, 243 (2nd. cir. 1995).

47. As with war crimes, the IMT had jurisdiction over crimes against humanity. However,
because of the grammatical construction of Article 6(c) of the Charter, the IMT restricted its
jurisdiction to crimes against humanity connected to the conduct of the war: (1947), 1 TRIALOF
‘THE MAJOR WAR CRIMINALS 17; Secretary General of the United Nations, Memorandum, THE
CHARTER AND JUDGMENT OF THE NUREMBERG TRIBUNAL (1949), 66. Prosecutions by the
Allied Military Tribunals acting under Control Council Order No. 10 were not so restricted. See
Alstoetter et al., “The Justices Trial” (1947), VI L.R.T.W.C. 1, 45-46. Domestic consideration
includes Attomey-General of Israel v. Eichmann (1961-1962), 36 INT'L LAW REP. 26; Demjanjuk
v. Petrovky, 776 F. 2d 571, 582 (6th Cir., 1985); Fédération nationale des déportés et internés
résistants et patriotes et al. v. Barbie, (1983), 78 I-L-R. 125, 130 (Cass. Crim.); and R. v. Finta,
(1994), 1 S.C.R. 701. Note also Article IV of the Apartheid Convention, G.A. Res. 3068
(XXVII), 28 U.N. GAOR, Supp. (No. 30), 75, U.N. Doc. A/9030 (1973); Article 5 (2) of the
Torture Convention, 1987 Can. T.S. No. 36. Ina civil case in the United States, Filartiga v.
Pefia Irala, 630 F. 2d 876 (2nd Cir., 1980), it was stated that those who commit torture are akin.
to pirates and enemies of all mankind.

48. The Genocide Convention, 78 U.N.T-S. 277, does not provide for universal jurisdiction
per se, but for jurisdiction by the State where the offence was committed or by an international
penal tribunal (article VI). However, the Convention does not prohibit States from using other
bases of jurisdiction, and it has been argued that universal jurisdiction may be exercised on the
basis of customary international law. As to what is not prohibited is permitted, see the SS Lotus
case (France v. Turkey), supra note 44. Concerning genocide as a crime under customary
international law, see Reservations to the Convention on Genocide (Ad. Op.) [1951] C.J. Rep. 23;
Barcelona Traction, Light and Power Company Case (Prelim. Obj.) (Belgium v. Spain), [1970]
LCJ. Rep. 32; U.N.G.A. Res. 96 I; Attorney-General of Israel v. Eichmann (1961), 36 LL.R. 18, 39
(Dist. Ct); (1962), 36 LL.R. 277, 304 (Supreme Ct.); and AMERICAN LAW INSTITUTE,
RESTATEMENT OF THE LAW (THIRD) FOREIGN RELATIONS LAW OF THE UNITED STATES
(1987), Reporter’s Note on § 404, 256. Note L.R. Beres, Genocide and Genocide-Like Crimes, in

560


Alfred P. Rubin

17. See United States v. Coolidge, 14 U.S. (1 Wheaton) 415 (1816); in the United Kingdom,
common law crimes still exist in theory, but scholarly lawyers normally cite MATTHEW HALE,
PLEAS OF THE CROWN (1678), for the definitions of crimes not defined by Parliament in
legislation. In civil law countries, the issue does not exist any longer. In the ICC Statute, Articles
22 and 23, the well-known aphorisms are cited as if beyond dispute and without attribution:
Nullum crimen sine lege and nulla poena sine lege. There is no discussion as to precisely what is
meant by “lege”—whether it includes common law or is confined to statutory law. Ifit is intended
to reduce the “crimes” to those already defined by judges, these articles seem inconsistent with
the authority given to the tribunal elsewhere, notably Article 21(1)(b) of the Statute, which
authorizes the tribunal to find its law in otherwise undefined “principles and rules of
international law,” among other sources.

18. See U.N. CHARTER arts. 2(1) (“The Organization is based on the principle of the
sovereign equality of all its Members”) and 2(7) (“Nothing contained in the present Charter
shall authorize the United Nations to intervene in matters which are essentially within the
domestic jurisdiction of any state or shall require the Members to submit such matters to
settlement under the present Charter. |. Many, if not most, if not all, the Members of the
United Nations owe their current authority-structure to a violent revolutionary change
somewhere in their history.

19. I suppose it is possible to conceive of a society that includes revolutionary struggle against
its authority-structure as a lawful part of its authority-structure, but I know of no such society in
reality.

20. For example, in Russia, where the status of Chechnya has been the subject of horrible
fighting, and in the Democratic Republic of the Congo, where a civil war seems to have broken
out in the Eastern areas and has reached the point at which it is acknowledged by the central
government. There are, distressingly, many such situations.

21. See ICC Statute, art. 72(6): “Once all reasonable steps have been taken to resolve the
matter through cooperative means, and if the State considers that there are no means or
conditions under which the information or documents could be provided or disclosed without
prejudice to its national security interests, it shall notify the Prosecutor or the Court of the
specific reasons for its decision, unless a specific description of the reasons would itself result in
such prejudice to the State’s national security interests.” There are several other pertinent
provisions of the ICC Statute, none of which would help the Court significantly in the situation
posed. And if the ICC could legally demand the information, it would nonetheless be refused
because its exposure would be at the expense of the national security of the State involved as that
State sees matters. It is difficult to imagine any State submitting itself to an outside evaluation of
its own national security interests, certainly not exposing the information to outsiders before an
internally binding internal evaluation.

22, W.T. MALLISON, SUBMARINES IN GENERAL AND LIMITED WARS, esp. app. B at
192-195 (Interrogation of Fleet Admiral Chester W. Nimitz on May 11, 1946, taken from 40
INTERNATIONAL MILITARY TRIBUNAL 109-111). Mallison’s book is Volume 58 (1966) of the
Naval War College “Blue Book” series of International Law Studies.

23. The rule, reputedly first formulated by William of Occam in the first half of the fourteenth
century, says, “Essentia non sunt multiplicanda praeter necessitatem [assumptions should not be
made unless necessary].” The language involves the neo-Platonic notion of “essences,” which is
now usually considered unnecessary by application of the rule itself. See the article by T.M.
Lindsay at 19 ENCYCLOPEDIA BRITANNICA 965 (11th ed. 1911).

437


Bin Cheng

relatively little to the restriction on their freedom of action in outer space,
especially that of the superpowers. All that Article IV(1) provides is that no
“nuclear weapons or any other kinds of weapons of mass destruction” may be
stationed in any manner anywhere in outer space, including the moon and
other celestial bodies.

In other words, insofar as the immense void space in between the innumera-
ble celestial bodies (the outer void space) is concerned, apart from the limita-
tion on the stationing of weapons of mass destruction, the 1967 Treaty as a
whole, including its Article IV(1), leaves the contracting States entirely free to
use outer void space in any way they wish, including using it for military pur-
poses, particularly in self-defence in accordance with the rules of international
law and Article 51 of the United Nations Charter,”! subject only to applicable
tules of general international law, the United Nations Charter, in particular its
Article 2(4), and any other treaty obligations States may have. In brief, outer
void space has NOT been reserved for use exclusively for peaceful (non-military)
purposes, contrary to a very prevalent view.?2

From this point of view, Article 3(3) of the Moon Treaty adds nothing to
Article IV (1) of the Space Treaty, which already prohibits not only the installa-
tion of nuclear weapons and other weapons of mass destruction “on celestial
bodies,” but also stationing them “in outer space in any other manner.” The
Moon Treaty has remedied the omission of a specific reference to the “moon”
in the second sentence of Article [V(1), but as we have already pointed out,
this omission is of no significance.”3 The only addition made by Article 3(3) of
the Moon Treaty, if addition it really be, is the prohibition of placing of any
space object carrying nuclear weapons or any other kinds of weapons of mass
destruction in a “trajectory to or around the moon,” again in the sense the word
moon is used in the Moon Treaty. The essential condition of outer void space
has not been affected.

Thus, insofar as Article IV of the 1967 Space Treaty is concerned, as well as,
for that matter, the Treaty itself and the 1979 Moon Treaty, the contracting
States remain free to deploy INOUTER VOID SPACE any type of military sat-
elite, including reconnaissance; communications, early warning, navigational,
meteorological, geodetic and other satellites; construct manned or unmanned
military space stations; carry out military exercises and manceuvres; station or use
any non-nuclear or non-mass destruction weapon there, including anti-satellite
weapons (ASAT) and ballistic missile defence systems (BMD); and last but not
least, though this enumeration is by no means exhaustive, send through or into
outer void space any weapon, whether or not nuclear’ or of mass destruction,
against any target on earth or in outer space?>—of course, always subject to

105


Antecedents of the Rome Statute of the ICC Revisited

the General Assembly. In Resolution 1181 (XII), November 29, 1957, the
General Assembly noted that 22 additional States had recently joined the
United Nations. It requested the Secretary-General to take the view of the new
Member States and to place the question of defining aggression on the provi-
sional agenda of the General Assembly not earlier than its 14th session (1959),
after another special committee had advised him that it considered the time
appropriate. That resolution was adopted on a roll-call vote, something rare on
draft resolutions coming from the Sixth Committee, of 42:24:15 with one State
absent. The negative votes were cast by the Soviet Bloc together with some
Latin American, Arab, and other States, and the abstentions were similarly
scattered. That vote shows the impact of the Cold War and the changing com-
position of the General Assembly on what was nothing more than a procedural
decision, in effect deferring consideration of the matter for another two years at
least. However, no recommendation to renew discussion of the definition of
aggression was ever made.

Meanwhile, as the Cold War continued, the decolonization process pro-
duced an enormous increase in the membership of the United Nations, com-
pletely changing all voting patterns in the General Assembly and in diplomatic
conferences and enhancing the role of “consensus” in decision making as op-
posed to a majority vote. On top of that, the Six Days War (1967) led to a ma-
jor international crisis. That was to generate a new phase in the development of
each of these three interlocked items. To widespread surprise, the Soviet Un-
ion took the initiative. Before the exercise was completed, the Soviet Union,
and with it the Soviet Bloc in the United Nations, had also collapsed, leading
to further profound changes in the composition and character of the United
Nations overall, and the General Assembly in particular.

This first United Nations phase had brought out two aspects in particular:
(i) the close connection that exists between the establishment of an Interna-
tional Criminal Court and the law to be applied, quite apart from any question
arising out of the Genocide Convention; and (ii) the question of the relation-
ship to exist between the criminal court and the United Nations, and in partic-
ular the Security Council. It also showed that on the political level the question
of the law to be applied contained at least two separate elements, namely the
definition of aggression and the code of offenses against the peace and security
of mankind, that item itself being more directly the offshoot of the Niirnberg
Judgment. Further developments regarding the court would therefore depend
on the progress in those two other matters.

398


M. Cherif Bassiouni

a “civilian population,” they are necessarily the product of State action or pol-
icy carried out by State actors or the product of policy of non-State actors.
These specific crimes are:

(a) murder; . . . (e) imprisonment or other severe deprivation of physical liberty
in violation of fundamental rules of international law; (f) torture; (g) rape, sexual
slavery, enforced prostitution, forced pregnancy, enforced sterilization,
or any other form of sexual violence of comparable gravity; (i) enforced
disappearance of persons; . . . (k) other inhumane acts of a similar character
intentionally causing great suffering, or serious injury to body or to mental or
physical health.52

Thus, the element of State policy for State actors and that of policy for
non-State actors is dominant throughout this latest definition of “crimes
against humanity.”

The element of State action or policy is not the only distinguishing interna-
tional jurisdictional characteristic of crimes against humanity;* it carries with
it also certain implications concerning the criminal responsibility of a State’s
agents who contribute to the overall execution of the State’s plan or policy.
Thus, if it is established that a State has developed a policy, or carried out a
plan, or engaged in acts whose outcomes include the crimes contained in the
definition of crimes against humanity, then those persons in the bureaucratic
apparatus who brought about, or contributed to, that result could be charged
with complicity to commit crimes against humanity. Further those who in-
tended to carry out the policy could be charged with the commission of that
crime, or at least, with complicity to commit that crime.54 The responsibility of
State agents arises in this case irrespective of whether their conduct was lawful
under national law. However, it is important to note that the policy element,
whether developed or carried out by State actors or non-State actors, is the ju-
tisdictional element that makes “crimes against humanity” a category of inter-
national crimes and that distinguishes it from other forms of mass victimization
which otherwise are within national criminal jurisdiction. On June 30, 2000,
the Preparatory Commission adopted the Elements of Crimes* for the three
ICC crimes.°6

Between the Nuremberg formulation of Article 6(c) in 1945 and the ICTR’s
formulation of Article 3 in 1994, “crimes against humanity” have shifted from a
category of crimes applicable only to situations involving State policy or action
to situations involving non-State actors. This shift has been evidenced in the
ICTR and ICC Statutes which provide the requirements of “widespread or sys-
tematic” and “attack against any civilian population.” The combination of the

7


Appendix

The Legal Regulation of the Seas and the Continental Shelf. In Report of Inter-
national Academy of Comparative Law, Fifth Congress, Brussels, 1958,
242-53.

The Territorial Sea and the Anglo-Icelandic Fisheries Dispute. 14 The World
Today, 1958.

Conflicto armado, guerra y defensa propia. 3 Annuario de Derecho (Panama),
1958, 75-87.

The Geneva Conventions and the Freedom of the Seas. 12 Current Legal Prob-
lems, 1959, 224-46.

The Standards of International Economic Law. 3 Vélkerrecht und Weltwirlschaft
(Bibliotheca Grotiana), 1959, 102-9.

Gentlemen’s Agreements and the Security Council. 13 Current Legal Problems,
1960, 255-75.

The Territorial Sea and the Anglo-Icelandic Dispute. 9 Journal of Public Law
(Emory), 1960, 53-72.

Legal Aspects of the Indo-Chinese Border Dispute. 1 The China Quarterly,
1960, 42-58.

The Eichmann Case. 23 Modern Law Review, 1960, 507-15.

The Position of the Individual in International Law. (Barou Memorial Lec-
ture), London, 1960, 20 pp.

New Approaches to International Criminal Law. 28 The Solicitor, 1961, 106,
108, 113.

The Right of Asylum in International Law. (Inaugural Lecture), 3 University of
Malaya Law Review, 1961, 223-42.

The Status of Rebel Armies. 3 Ibid., 1961, 25-45.

Reg. v. Madan: Diplomatic Immunity in a Criminal Cause. 28 The Solicitor,
1961, 170, 175-6.

State Practice and the Law of the Sea. 28 The Solicitor, 1961, 331-2.

The Individual and his Status in International Law. 1 Indian Journal of Interna-
tional Law, 1961, 415-28.

Religion and the Schools. 3 University of Malaya Law Review, 1961, 300-5.

The Santa Maria: Rebels or Pirates. 37 British Yearbook of International Law,
1961, 495-505.

The Nature of International Law. 14 University of Toronto Law Joumal, 1962,
176-93.

Chamber’s Encyclopedia (Revised Edition): (a) Japanese Law; (b) Military
Law; (c) Mutiny; (d) Nationality.

Political Offences, War Crimes and Extradition. 11 International & Compara-
tive Law Quarterly, 1962, 329-54.

568


Antecedents of the Rome Statute of the ICC Revisited

major substantive and administrative issues arising out of the draft prepared by
the International Law Commission. The report of that Ad hoc Committee came
before the next session of the General Assembly.‘6 In Resolution 50/46, De-
cember 11, 1995, the General Assembly decided to establish a Preparatory
Committee to continue preparing a widely acceptable consolidated text of a
convention on an international criminal court as a next step towards consider-
ation by a conference of plenipotentiaries. It also decided to include the item in
the provisional agenda of the 52nd session in order to study the report of the
Preparatory Committee “and, in the light of that report, to decide on the con-
vening of a conference of plenipotentiaries to finalize and adopt a convention
on the establishment of an international criminal court, including on the tim-
ing and duration of the Conference.” Composition of the Committee was
slightly adjusted and included States members of the International Atomic En-
ergy Agency, a technical modification. Some 90 States took part in the work of
the Preparatory Committee at one stage or another. Comprising approximately
one-half of the total membership of the organized international community,
the Preparatory Committee was broadly representative of all trends that had to
be taken into consideration.

That Preparatory Committee was in session throughout 1996 and 1997, It
reported to the 51st session of the General Assembly. In Resolution 51/207,
December 17, 1996, the General Assembly noted that major substantive and
administrative issues remained to be resolved. These included, apart from the
definition of different crimes, such issues as the relationship between the inter-
national court and national jurisdictions (the problem of complementarity),
the so-called trigger mechanism, and the relationship of the court to the
United Nations, to mention but a few. At the same time it noted that despite
this, the Preparatory Committee considered that it was realistic to regard the
holding of a diplomatic conference of plenipotentiaries in 1998 as feasible. The
General Assembly accordingly decided that the Preparatory Committee should
continue its work, that the diplomatic conference should be held in 1998, and
postponed to the next session decisions on “the necessary arrangements made
for the diplomatic conference . . . to be held in 1998, unless the General Assem-
bly decides otherwise in view of relevant circumstances.”4?7 In Resolution
52/160, December 15, 1997, the General Assembly again authorized the Prepa-
ratory Committee to continue its work early in 1998 and to transmit the text of
its final report directly to the Conference.‘ It also decided to hold the Confer-
ence in Rome between June 15 and July 17, 1998, and adopted relevant ancil-
lary decisions.

402


Legal Implications of NATO’s Armed Intervention in Kosovo

Rambouillet to impose an international force, more or less as an occupying
force in Yugoslavia, to keep the peace in Kosovo was surely unacceptable to the
Serbs.

And finally, the NATO operation miserably failed to accomplish its twin
missions—one, to protect Kosovar Albanians from the excessive use of force by
Serbs, and two, to prevent destabilization of the Balkan region. Instead,
Milosevic intensified the ethnic cleansing being waged against the Kosovars.
The outcome was that villages were burned, homes destroyed, and thousands
of Kosovar Albanians murdered. Over 800,000 ethnic Albanians fled Kosovo
into Albania, Macedonia, Montenegro, and abroad, and hundreds of thou-
sands were displaced within Kosovo. And the region was troubled—Macedo-
nia and Albania bursting with refugees and other neighboring countries feeling
the economic pain caused by the devastation of Yugoslavia. Thus, political and
economic stability was a further casualty of the operation.

NATO’s Actions in Kosovo Required UN Authorization. Article 2, paragraph
4 of the UN Charter explicitly prohibits the use of force in international
telations.!2° The only exceptions are: action taken by the Security Council
under Chapter VII, regional actions under Chapter VII, 3! and unilateral or
collective self-defense measures under Article 51.152 A regional body may
legitimately use force only pursuant to prior authorization by the Security
Council.!33 Even if NATO, a regional security organization, could have
justified its offensive on moral grounds, that is, in response to the gross
violation of Kosovar Albanians’ human rights, it did not seek prior
authorization because of the certainty of the Russian and Chinese vetoes, for
these two permanent members of the Council had openly opposed NATO
bombings of Yugoslavia.

The bypassing of the United Nations has not set a healthy precedent. As
Secretary General Kofi Annan, in his address to the General Assembly on Sep-
tember 20, 1999, said, “While the genocide in Rwanda will define for our gen-
eration the consequences of inaction in the face of mass murder, the more
recent conflict in Kosovo has prompted important questions about the conse-
quences of action in the absence of complete unity on the part of the interna-
tional community.”!34

Annan presented the dilemma faced by the international community in the
Kosovo situation, that is, its inability to reconcile the question of legitimacy of
intervention by a regional organization without the Council’s authorization on
the one hand, and the effective halting of gross and systematic violations of hu-
man rights—a universally accepted imperative—on the other.!55 This, he said,

328


UN Forces and International Humanitarian Law

practical terms restricted by their small size and feeble armaments, which are
usually quite limited in Chapter VI’ and even in Chapter VII operations. The
conditions under which a given force may be allowed to use force in situations
other than strict self-defense, that is, in defense of other persons, may be cov-
ered in its rules of engagement; currently, consideration is being given to draft-
ing a set of model rules of engagement for UN peace-keeping operations in
which instructions on this point might be included. The sentiment has been
expressed that UN forces should be given mandates, and presumably appropri-
ate arms, to prevent violations of IHL of which they become aware.8+

Finally it should be noted that whenever the United Nations is in de facto, and
especially if in de jure, control of any territory, then it may have a legal as well as a
moral obligation to prevent, as far as it is able, violations of IHL in such territory.

Cooperation with International Tribunals

With the establishment by the Security Council of the two ad hoc War
Crimes Tribunals, the International Criminal Tribunal for the Former Yugosla-
via® and the International Criminal Tribunal for Rwanda,®6 and the possible
creation of additional ones at least before the entry into force of the Statute of
the International Criminal Court, another set of problems has arisen for certain
UN forces and for related UN civilian operations—to what extent are these
forces and operations obliged to cooperate with tribunals, in particular by mak-
ing available knowledgeable persons as witnesses, as well as relevant
documentation?

Liminally, it is possible to take two conceptually different approaches to
these questions. When a question arises as to cooperation between a Security
Council-established UN force and a Council-established tribunal, it could be
held that it is one that ultimately the Council must determine. Thus, if the Sec-
retary-General, in his capacity as the Commander-in-Chief of a UN force, de-
termines that certain cooperation demanded by a tribunal would be inimical to
some aspect of the operation of the force, he or the tribunal would refer this
conflict to the Council and secure its determination whether in a given in-
stance (or a class of instances) one or the other of these subsidiary organs of the
Council should prevail.

Alternatjvely—and this is the approach that has actually been
adopted—the Secretary-General can, in light of the complete judicial inde-
pendence of the tribunals, treat them essentially at arms length and apply by
analogy the relevant provisions of the Convention on the Privileges and

522


The Initiation, Suspension, and Termination of War

their discretion—may choose to employ language indicating that the termina-
tion of the war has either occurred already in the past, is happening at the pres-
ent moment, or will take place in the future. The Israeli practice illustrates all
three options. In the Treaty of Peace with Egypt, Article I(1) resorts to future
language:

The state of war between the Parties will be terminated and peace will be
established between them upon the exchange of instruments of ratification of
this Treaty.>°

That is to say, the state of war between Israel and Egypt continued even after
the signature of the Treaty of Peace (in March 1979), and its termination
occurred only upon the subsequent exchange of the instruments of ratification
(the following month). .

A different legal technique characterized the peace process between Israel
and Jordan. Article 1 of the Treaty of Peace between the two countries (signed
at the Arava in October 1994) proclaims:

Peace is hereby established between the State of Israel and the Hashemite
Kingdom of Jordan (the “Parties”) effective from the exchange of the
instruments of ratification of this Treaty.»

But as for the state of war, the Preamble of the Treaty reads:

Bearing in mind that in their Washington Declaration of 25" July, 1994,
they [Israel and Jordan] declared the termination of the state of belligerency
between them.4

The Washington Declaration of July 1994 incorporates the following clause:

The long conflict between the two states is now coming to an end. In this spirit,
the state of belligerency between Israel and Jordan has been terminated.*!

The upshot is that, whereas peace between Israel and Jordan was established
only upon the ratification of the Arava Treaty of October 194, the state of war
between the two countries had ended already in July of that year (the date of
the Washington Declaration, which was not subject to ratification).

Unlike the future tense (used in the Treaty of Peace with Egypt) and the
present tense (employed in the Washington Declaration with Jordan), there is
also recourse to the past tense in the Israeli practice. This occurred in the abor-
tive Treaty of Peace between Israel and Lebanon,* which was signed in May

136


Vv

The Initiation, Suspension, and
Termination of War

Yoram Dinstein.

| HIS ESSAY WILL DEAL WITH THE PROGRESSION OF HOSTILITIES in an
inter-State war.! More specifically, the various modes for the initia-
tion, suspension and termination of hostilities will be addressed.

I. The Initiation of War

(a) War in the Technical Sense

War in the technical sense starts with a declaration of war. A declaration of
war is a unilateral and formal announcement, issued by the constitutionally
competent authority of a State, setting the exact point at which war begins
with a designated enemy (or enemies). Notwithstanding its unilateral charac-
ter, a declaration of war “brings about a state of war irrespective of the attitude
of the state to which it is addressed.”?

According to Article 1 of Hague Convention (III) of 1907 Relative to the
Commencement of Hostilities,

The contracting Powers recognize that hostilities between themselves must not
commence without previous and explicit warning, in the form either of a


Printed in the United States of America

This volume is printed on acid-free paper
by William S. Hein & Co., Inc.

Library of Congress Cataloging-in-Publication Data

International law across the spectrum of conflict : essays in honour of Professor L.C.
Green on the occasion of his eightieth birthday / Michael N. Schmitt, editor.
p. cm. -- (International law studies ; v. 75)
Includes bibliographical references and index.
ISBN 1-884733-17-4
1. War (International law) 2. Humanitarian law. 3. International criminal courts.

4. Pacific settlement of international disputes. I. Schmitt, Michael N. II. Green, L.C.
(Leslie C.), 1920- Ill. Series.

JX1295.U4 vol. 75
[[KZ6385]]
341 s--de21
[341.6]
2001018730


Bin Cheng

the moon and other celestial bodies shall be used exclusively for non-aggressive
purposes?

The provision of the Vienna Convention that is applicable in this case is,
therefore, neither Article 31(3) on subsequent practice, nor Article 32 on pre-
paratory work, but Article 1(1), which provides as follows:

A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of
its object and purpose.61

Insum, the conclusion is inevitable that “peaceful” in the Space Treaty as a
whole and in Article IV (2) in particular, means, has always meant and contin-
ues to mean “non-military,” and not “non-aggressive,” notwithstanding United
States attempts to maintain otherwise.

Sentence Two of Article IV(2). If, as we have just shown, “peaceful” in the first
sentence of Article IV(2) means “non-military,” then it becomes obvious that
the second sentence of Article IV(2), as in Article I of the Antarctic Treaty, is
purely exemplificative. No activity whatsoever of a military nature is permitted
on the moon and the other celestial bodies. As for the fact that only celestial
bodies, but not the moon, are mentioned in the second sentence—this cannot
possibly have any significance, since throughout the Treaty the moon has al-
ways been treated as one of the celestial bodies. Besides, the first sentence hav-
ing explicitly referred to the moon and other celestial bodies, it would have been
purely repetitive, in the next sentence intended to give examples of what may
not be done on all celestial bodies, to again add an express reference to the
moon.

The Last Two Sentences of Article IV(2). The same applies to the omission of
any qualification before “equipment and facility” in the last sentence. The last
two sentences, following the example of the Antarctic Treaty, set out two
permitted, or seeming, exceptions to the principle laid down in the first
sentence. They are both of a similar character. Provided that the research or
exploration is for peaceful purposes, what might otherwise be thought prohibited
is expressly allowed, namely military personnel and equipment or facility. The
omission of the qualification “military” insofar as equipment and facility are
concerned is purely elliptical. Furthermore, the fact that, apart from the mention
of weapon testing being forbidden, which falls clearly under the heading of a
military activity, every item in the second and third sentences of Article IV(2) is

101


Robbie Sabel

this issue. In the same second session of the Conference, Israel again proposed
the rule that:

Upon reaching the ground, such person shall be given a reasonable
opportunity to surrender.’

The issue was transferred to a Working Group, which suggested the follow-
ing text:

Upon reaching the ground in territory controlled by an adverse party, a
person who has parachuted from an aircraft in distress shall be given an
opportunity to surrender before being made the object of attack, unless it is
apparent that he is engaged in a hostile act.83

The Rapporteur’s comment on the text was that

The Committee decided not to try to define what constituted a hostile act,
but there was considerable support for the view that an airman who was
aware of the presence of enemy armed forces and tried to escape was
engaging in a hostile act. On the other hand, merely moving in the direction
of his own lines would not, by itself, mean that that he should not be given an
opportunity to surrender, for he might not know in which direction he was
going or that he was visible to enemy armed forces.5¢

This text, which was similar to the 1972 U.S. proposal, was subsequently
adopted by Committee III and the Plenary without any further substantial
debate. It would be a reasonable surmise that the relative lack of controversy
over this rule was due to its less than absolute nature. Introducing phrases such
as the reference to who controls the territory of the landing and not
committing “a hostile act” presumably made the rule more acceptable to some
States. This contrasts with the controversy over the rule as to protection during
descent, one which was made absolute and not subject to such limitations.

Conclusion.

The atmosphere at the Humanitarian Law Conference, which took place
between 1973 and 1977, was strongly affected by anti-American and
anti-Western sentiment resulting from the war in Vietnam. There was vocal
Third World support for National Liberation Movements and Arab and Third
World support for the Palestinian cause. These elements combined to tilt the

449


The Normative Framework of International Humanitarian Law

CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL (1949) (commonly known as
the “Blue Series”). For the subsequent proceedings of the IMT, see TRIALS OF WAR CRIMINALS.
BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10
(1949) (commonly known as the “Green Series”).

122. See Special Proclamation Establishing an International Military Tribunal for the Far
East and Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, T.LA.S.
No. 1589, at 3, 4 Bevans 20 (IMTFE Proclamation), reprinted in 2 Weston, supra note 2, at
ILE.2. On the same day General MacArthur issued his proclamation, the Charter for the IMTFE
was adopted. Pursuant to a policy decision by the Far Eastern Commission, the Charter was later
amended by General Order No. 20, issued by MacArthur. See Charter for the International
Military Tribunal for the Far East, Apr. 29, 1946, T.I-A.S. No. 1589, at 11, (IMTFE Charter),
reprinted in 2 Weston, supra note 2, at II-E.2. See generally THE TOKYO WAR CRIMES TRIAL:
THE COMPLETE TRANSCRIPTS OF THE PROCEEDINGS OF THE INTERNATIONAL MILITARY
TRIBUNAL FOR THE FAR EAST IN TWENTY-TWO VOLUMES (R. John Pritchard & Sonia
Magbanua Zaide eds., 1981); THE TOKYO WAR CRIMES TRIAL: COMPREHENSIVE INDEX AND
GUIDE TO THE PROCEEDINGS OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR
EAST IN FIVE VOLUMES (R. John Pritchard & Sonia Magbanua Zaide eds., 1981); YUKI
‘TANAKA, HIDDEN HORRORS: JAPANESE WAR CRIMES IN WORLD WAR II (1996).

123. See BASSIOUNI, supra note 8.

124. See PrepCom Committee, supra note 114.

125. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court,
U.N. GAOR, 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995).

126. See PrepCom Committee, supra note 114.

127. Id.

128. Non-paper circulated at the December 1997 session of the Preparatory Committee for
the Establishment of an International Coutt, entitled Synopsis on War Crimes Relating to the
Informal Working Paper on War Crimes (A/AC.249/1997/WG.1/CRP.7), Dec. 3, 1997.

129. ICC Statute, supra note 13, at art. 8, para. 2(a).

130. Id., para. 2(b).

131. Id., para 2(c).

132. Id.

133. Id., para 2(d).

134. The United States did not ratify either Protocol and wanted to avoid any references to
these Protocols, insisting that whatever norms were derived therefrom should be drafted as part
of customary law. In a sense, the United States’ position is defensible because the Protocols
essentially embody customary law and that too evidences the overlap between the two sources of
applicable law.

135. See von Hebel & Robinson, supra note 52.

136. That approach comes from the analogy to the use ofa shotgun in hunting which spreads
pellets across a certain range and is thus more capable of having some of the pellets hit the target
than if the weapon was a rifle with a single bullet following a single projectory.

137. It is beyond the scope of this paper to go into detail as to the different doctrines on what
constitutes a single or multiple criminal transactions or how sentences shall be meted out. See,
e.g., JOHN DECKER, 1 ILLINOIS CRIMINAL LAW: A SURVEY OF CRIMES AND DEFENSES § 1.19
(3rd ed. 2000).

138. Report of the Preparatory Commission of the International Criminal Court, Finalized Draft of
the Elements of Crimes, U.N. Doc. PCNICC/2000/INF/3/Add.2 (30 June 2000) [hereinafter
Elements of Crimes].

50


Making Law of War Treaties

Italy. On July 11, 1940, Italy entered the war as an ally of Germany, adding its
105 submarines to Germany’s strength. Italian Atlantic submarine operations
commenced the following month. When operating in the Atlantic under the
operational control of the German U-boat command, Italian submarines
followed German rules of engagement.!?°

Great Britain. British progression toward abandonment of the submarine rules
it worked so hard to achieve was slow but steady. Always the Cinderella of the
Royal Navy, British thinking with respect to submarine employment suffered.
Royal Navy submarines were so hindered by legal, moral and political
restrictions, and bureaucratic impediments, especially poor training, that their
first and only success in 1939 was not realized until December 12, 1939, when
HMS Salmon sank U-36.!26 This was to change with the German invasion of
Norway on April 9, 1940. Forced by the enemy aircraft threat to attempt to
identify vessels through the submarine’s periscope, many German troopships
made their way to their destinations unscathed. The very neat rules of the 1936
Procés-Verbal had run head on into the realities of war, and been found
wanting. On April 9, 1940, the British Cabinet authorized the sinking on sight
of all German ships, combatant vessel or merchant ship, in the Heligoland
Bight, the Skagerrat and the Kattegat. The zone for executing such attacks was
extended up the coast of Norway as far as Bergen three days later.!2? On
February 5, 1941, British submarines were authorized to attack on sight,
without warning, all ships met south of 35° 46’ north on the assumption that
they were German.!?8 In the Mediterranean, on July 15, 1940, British
submarines were authorized to attack all vessels operating within thirty miles of
the Italian coast. Two days later, this authority was extended to any vessel
operating between Italy and Libya or within thirty miles of the Libyan coast.
Subsequently, the Mediterranean “sink at sight” operational areas were
extended as required.!2° While the Royal Navy continued to place priority on
attack of German Navy combatants, and British operational zones for
unrestricted submarine warfare may not have been as extensive as Germany’s,
British practice was a renunciation of the-1936 Procés-Verbal requirements. !3°
The British decision was taken for operational reasons rather than in response
to German U-boat operations.

Japan. Japanese abrogation of the 1936 Procés-Verbal was immediate,
coinciding with its December 7, 1941, attack on Pearl Harbor. The I-26 sank
the merchant ship Cynthia Olsen several hundred miles west of Honolulu at
0800, as the Japanese attack on Pearl Harbor was underway.!?! This was

360


Naval Blockade

question is a matter of dispute in the legal literature.!!4 There are good reasons
to maintain that the doctrine of continuous voyage may not be applied to
blockades. First, neutrals have only in rare cases been willing to tolerate inter-
ference with their merchant shipping in areas distant from blockaded coasts or
ports.!15 Second, the doctrine has not played a significant role in the practice of
States since 1945. It has only been recognized in the military manuals of some
Anglo-American States. Most continental European authors have always re-
jected the doctrine’s applicability to blockade.!!6 The arguments put forward
do not have to be repeated. If blockade law is perceived as part of an order of
necessity that, by its nature, has to be interpreted restrictively and that merely
modifies but does not abrogate the peacetime rules of international law appli-
cable between belligerents and neutrals, an obligation of States not participat-
ing in an international armed conflict to tolerate belligerent measures can be
justified only under strict conditions. In the context of blockade, one of these
conditions is the principle of effectiveness. That principle would be rendered
meaningless if belligerents were entitled to enforce a blockade at a far distance
from the area in question. As long as neutral merchant vessels are situated out-
side the range of operations of the forces maintaining the blockade, and as long
as they do not carry contraband or act in a way that makes them liable to at-
tack, the freedoms of navigation and overflight supersede the belligerents’ in-
terest in a comprehensive prohibition of imports to their respective enemies.
Of course, the practical consequences of this position are of a solely secondary
nature. If a neutral merchant vessel is captured outside the range of operation
of the blockade forces because it—in fact or presumably—was destined to a
blockaded port, that violation of the law of neutrality results in a duty to return
the vessel and its cargo and to compensate any damage.

Relief for the Civilian Population and the Wounded and Sick. A blockade
preventing all ingress to or egress from the blockaded area by vessels and
aircraft, in general, negatively affects the civilian population’s supply of food
and other objects essential for survival. For that reason it was—at least to a
certain extent—justified to characterize the British long-distance blockades as
“hunger blockades.”!!7 Still, that notion should not be used too easily. In
World War II, the United Kingdom maintained that naval blockades did not
differ from sieges in land warfare in which the responsible commander was
under no duty to allow food and other goods to pass into the town.!18

Today, according to Article 54, paragraph 1, Additional Protocol I, “starva-
tion of civilians as a method of warfare is prohibited.” Contrary to an assertion
by the Australian delegation to the Geneva Diplomatic Conference, !!9 as well

216


The Initiation, Suspension, and Termination of War

(b) War in the Material Sense

War in the material sense unfolds irrespective of any formal steps. Its occur-
rence is contingent only on the actual outbreak of comprehensive hostilities
between two or more States. Hence, war in the material sense commences with
an invasion or another mode of an armed attack. In the past, an air raid (4 la
Pearl Harbor) or an artillery bombardment would be emblematic. In the future,
a devastating computer network attack (with massive lethal consequences) is
equally likely to occur.!9 Actual hostilities may begin (i) without a declaration
of war ever being made; (ii) prior to a declaration of war, which follows after-
wards; (iii) simultaneously with a declaration of war; or (iv) subsequent to a
declaration of war. Moreover, war in the material sense (viz active hostilities)
may not commence at all, notwithstanding a declaration of war. This is what
transpired between a number of Latin American countries and Germany dur-
ing World War I1.20

When the outbreak of comprehensive hostilities does not coincide with a
declaration of war (especially when the declaration lags behind the inception of
the actual fighting and, more particularly, when it is issued by the State under
attack), there is likely to be some doubt as to whether war was triggered by the
action or by the declaration.! In such a setting, it is quite possible that different
dates for the outbreak of the war will be used for disparate purposes, such as the
status of enemy nationals and the application of neutrality laws.?2

Article 2 of Hague Convention (III)?3 stipulates that the existence of a state
of war must be notified to neutral States without delay, and it shall not take ef-
fect in regard to them as long as the notification has not been received. All the
same, the article lays down that, ifa neutral country is in fact aware of the state
of war, it cannot rely on the absence of notification. Under modern conditions,
since a state of war habitually gets wide coverage in the news media, any special
notification to neutrals may well be redundant. Still, should there be any doubt
whether the hostilities qualify as an all-out war or are short of war, the commu-
nication to neutral countries (or the absence thereof) is of practical importance
even in the present day.

Il. The Termination of War
(a) Treaties of Peace
i. The Significance of a Treaty of Peace
The classical and ideal method for the termination of inter-State war is the

conclusion of a treaty of peace between the belligerents. Traditionally, treaties

134


Ove Bring

Hedley Bull would put it.2! Nevertheless, this “solidarist” theme is more pro-
nounced in the provisions of the Westphalian Peace regime.

The Treaty of Miinster contains three articles of relevance in this context.
First, Article I stated:

That there shall be a Christian and Universal Peace, and a perpetual, true, and
sincere Amity, between his Sacred Imperial Majesty, and his most Christian
Majesty; as also, between all and each of the Allies, .. . That this Peace and
Amity be observed and cultivated with such a Sincerity and Zeal, that each Party
shall endeavour to procure the Benefit, Honour and Advantage of the other; etc.
2 22

That this general pronouncement on maintenance of peace also amounted
to an international obligation to solve existing disputes by peaceful means was
made clear by the 123rd Article of the Treaty. Even if violations of the Treaty
should occur

«++ The Offended shall before all things exhort the Offender not to come to any
Hostility, submitting the Cause to a friendly Composition, or the ordinary
Proceedings of Justice.23

These provisions were, in a sense, forerunners to Articles 12, 13 and 15 of:
the Covenant of the League of Nations (on certain procedures for crisis man-
agement) and Articles 2(3) and 33 of the UN Charter (on obligatory peaceful
settlement of disputes).

In fact, the Peace of Westphalia contained an embryo of what later would be
called collective security. The Article quoted above also obliged the parties
(individually) “to defend and protect all and every Article of this Peace against
any one, without distinction of Religion.” This obligation was supplemented by
a tule on collective sanctions in the following (124th) Article:

[I]f for the space of three years the Difference cannot be terminated by any one of
those [peaceful] means, all and every one of those concerned in this Transaction
shall be obliged to join the injured Party, and assist him with Counsel and Force
to repel the Injury . . . and the Contravener shall be regarded as an Infringer of
the Peace.24

Thus, there was an obligation to identify the aggressor and join forces to repel
the aggression. This Westphalian formula on a mutual guarantee of security to
be triggered after the failure of peaceful settlement efforts would influence later

61


The History and Status of the International Criminal Court

During the course of World War II (1939-1945), the Allied Powers repeat-
edly stated that at the conclusion of hostilities (which they obviously assumed
would be in their favor) there would be retribution for the violations of the law
of war being committed by the Nazis in all occupied territories. Thus, in re-
sponse to a statement of condemnation made by President Roosevelt on Octo-
ber 25, 1941, while the United States was still neutral, Winston Churchill,
Prime Minister of Great Britain said: “Retribution for these crimes must hence-
forward take its place among the major purposes of the war.”!2 The Declaration
of St. James (January 13, 1942), to which many of the Allied Powers were
Parties, provided:

‘Whereas Germany, since the beginning of the present conflict which arose
out of her policy of aggression, has instituted in the occupied countries a regime
of terror characterised amongst other things by imprisonment, massed
expulsions, the execution of hostages and massacres...

(3) place among their principal war aims, the punishment, through the channel
of organised justice, of those guilty of or responsible for those crimes, whether
they have ordered them, perpetrated them or participated in them,

(4) resolve to see to it in a spirit of international solidarity, that (a) those guilty or
responsible, whatever their nationality, are sought out, handed over to justice
and judged, (b) that the sentences pronounced are carried out.13

In November 1941, an unofficial body known as the Cambridge Commis-
sion on Penal Reconstruction and Development engaged in the task of collect-
ing information on the subject of war crimes. This body was of the opinion that

wherever possible, municipal law should be the system of law applicable to the
trial of war criminals, but where this was not possible, it was suggested that the
general principles of international law should be applied . . . It was evident that
there would be a residue of cases outside the scope of the municipal courts and to
deal with these cases some members recommended the formation of an
international criminal court; others, however, did not think the time was ripe for
the creation of such a court.!4

Another unofficial body, the London International Assembly, created to
make recommendations to the Allied Commission, established a commission

250


William J. Fenrick

commence what I hoped would be a cogent and inspiring argument to the ef-
fect that the conflict in Bosnia must be classified as international, counsel for
the defence quoted a passage from page 299 of Professor Green’s The Contem-
porary Law of Armed Conflict, which appeared to indicate that I had earlier held
the position that, at the time in question, the conflict was internal.

A substantial amount of Professor Green’s best work has focused on the law
of war, in particular his books on Superior Orders in National and International
Law, Essays on the Modern Law of War (the second edition of which has just
been published), and The Contemporary Law of Armed Conflict. All of Leslie’s
articles and books are written in an extremely lucid style, rooted in history, and
sensitive to current military and political realities as well as to trends in schol-
arly writing and decided cases. He has a tendency to throw buckets of cold wa-
ter on overheated and overly progressive legal arguments.

Although he may criticize impractical suggestions for development of the
law, Leslie continues to favour pragmatic progressive development to address
practical problems. Indeed, in one of his recent articles, he put forward quite a
radical suggestion:

«it is time to dispense with the differentiation between genocide, grave
breaches and war crimes. All of these are but examples of the more generically
termed “crimes against humanity,” in respect of which there is no longer any
doubt as to their amenability to universal jurisdiction. Issues relating to
classification of a conflict, the significance of the law of war to that conflict, or
the jurisdiction of a tribunal over an alleged act of genocide would all fade into
insignificance if they were brought within the rubric of crimes against humanity.2

Professor Green does, of course, go on to concede that under current interna-
tional law, crimes against humanity have not yet supplanted war crimes. He
suggests that perhaps the International Committee of the Red Cross should
support the idea of merging the two concepts and, simultaneously, add depth to
the concept by, for example, specifying precisely which acts constitute crimes
against humanity.

The underlying reason for Leslie’s suggestion is that reliance on the concept
of crimes against humanity would provide a common list of crimes which could
be prosecuted on the basis of the universality principle without requiring a
prosecutor to establish facts such as the existence of an international conflict
which would be difficult to prove but irrelevant to moral fault. It is probable
that a catalyst for this suggestion is the experience of the ICTY, which is com-
pelled to grapple with the conflict classification issue on a daily basis because of
the complexity of the recent conflict(s) in the territory of the former

xvii


Naval Blockade

announced and all States presumably affected were informed.®> However, it
was not maintained and enforced by surface units but by mines laid by aircraft.
Those mines became automatically armed after a predetermined period of time
had elapsed.66

The Egyptian blockades of Eilat and of the Gulf of Aqaba in 1967 and of the
Bab el-Mandeb in 1973 were similar to the British blockades of World War II
insofar as the forces entrusted with their enforcement were deployed at a con-
siderable distance from the areas in question. Still, the Egyptian measures were
effective because no vessel could enter or leave the areas without running the
tisk of being attacked.

At the beginning of the Iran-Iraq conflict (1980-1988), Iran, on September
22, 1980, declared the transport of all goods and cargoes to Iraq prohibited.6*
The Iranian naval forces were in a position to enforce that prohibition, as well
as the closure of the Shat-al-Arab, which was declared on October 1, 1980,®?
during the course of the entire armed conflict. Altogether 71 neutral merchant
ships were affected by the closure of the Shat-al-Arab. Iran offered to allow
them to leave the area under the condition that they flew the UN flag. How-
ever, Iraq required those ships to fly the Iraqi flag as long as they were within
the Shat-al-Arab.?0

In most of these cases, neutral States, in view of the lack of protests, obvi-
ously accepted the blockades.?! If at all, they merely doubted their legality un-
der the jus ad bellum not the jus in bello. For example, the British government
protested against the blockade of the Shat-al-Arab?? because, in its view, the
right of self-defense did not allow its establishment. However, the British gov-
ernment did not consider the Iranian measures illegal under the maritime jus in
bello.

The customary character of the principles of the 1909 London Declaration
is also widely acknowledged in the military manuals of the U.S. Navy,”3 and of
the Canadian’4 and German?> armed forces. According to those manuals,
blockades must be restricted to ports or coastal areas belonging to, occupied by,
or under the control of the enemy. They must not bar access to or departure
from neutral ports and coasts.’6 The declaration, either by the government or
by the commander of the blockading force, must include the details laid down
in Article 9 of the London Declaration and must be notified to affected neutral
States and to the local authorities.”? Because knowledge of the existence of a
blockade is an essential element of the offenses of breach and attempted breach
of blockade, neutral vessels are always entitled to notification.”8 Moreover, ac-
cording to the three manuals, a blockade, in order to be valid, must be effective.
That means that it must be maintained by a force or other mechanism’? that is

212


Robbie Sabel

themselves voting against the Article as a whole. Stating that the amendment
adopted was such “as to change existing law,” the UK delegation found it “hard
to accept.”48 The delegate of the Federal Republic of Germany explained that
his delegation had objected to the amendment because “the mere possibility
that he might resume combat activities did not deprive a person of the protec-
tion to which he was entitled,”4? and the Canadian delegate expressed hope
that those delegations that had supported the amendment “would withdraw
their proposal.”5° The Israeli delegation labeled the amendment “in contradic-
tion with existing law,”>! while the U.S. delegate declared that the amendment

would be incompatible with the other provisions of humanitarian law ... which
provided that persons that had fallen into the power of an adverse Party under
unusual conditions of combat, which prevented their evacuation, must be
released. Those prisoners, too, could resume combat, but it was inadmissible that
they should all be shot. By the same token, it was inadmissible that a parachutist
hors de combat could be shot down, on the pretext that he might resume his
military activities.52

At the final session of the Conference, the Working Group decided to re-
open the issue, its Rapporteur reporting:

The Working Group proposes amending the text of this paragraph to prohibit
attacks against airmen descending by parachute, regardless of which Party
controls the territory into which they are descending. It was felt that an airman
in this situation is temporarily hors de combat as effectively as if he were
unconscious and that it would be inappropriate for a Protocol designed to
expand humanitarian protections to authorize making him a legitimate object of
attack while in that helpless position.53

In an unusual move, Committee III decided to reconsider the Article and to
adopt it without the phrase in square brackets.5+

A proposal by Sixteen Arab and other States proposing reintroduction of
the qualification as to the territory where the airman would land was later sub-
mitted to the Plenary of the Conference.*> In introducing the Sixteen State
proposal, the Syrian delegate explained that there was no cause to give privi-
leged treatment to “a person descending by parachute who was obviously trying
to escape to a territory controlled by his country, or by a friendly country.”>6
Traq’s representative stated that it “was not possible to remain a mere spectator
in the midst of ruins and see the dead, and to watch the descent of airmen ready
to start again at the first opportunity.”5? Similarly, Libya’s delegate argued that
it was not “human to give a chance to pilots ordered to destroy countries,”>8

445


Howard S. Levie

The Diplomatic Conference met in Rome from June 15 to July 17, 1998, and
after a month of heated arguments, disputes, and disagreements, drafted the
Rome Convention for the Establishment of an International Criminal Court.>?
Understandably, the question of the extent of the jurisdiction to be exercised
by the Court constituted one of the major problems to confront the Confer-
ence.40 However, there were also other problems which caused considerable
controversy and the solution of which will probably mean that a number of
States, including the United States, will not become Parties to this Statute. All
in all, the Statute of the Court includes 128 articles covering well over 100
pages!4!

Perhaps basic to the entire matter is Article 1, which states:

An International Criminal Court (“the Court”) is hereby established. It shall
be a permanent institution and shall have the power to exercise its jurisdiction
over persons for the most serious crimes of international concem, as referred to
in this Statute, and shall be complementary to national criminal jurisdiction.
The jurisdiction and functioning of the Court shall be governed by the provisions
of this Statute.

Article 2 provides that the relationship of the International Criminal Court
to the United Nations will be based on an agreement between the Assembly of
States Parties to the Statute‘? and the United Nations.*3 Article 3 provides
that The Hague shall be the seat of the Court but that it may sit elsewhere as
provided in the Statute.44

Part 2 (Articles 5-21) is the core of the Statute. It is entitled Jurisdiction,
Admissibility and Applicable Law. In successive articles, the Statute enumer-
ates and amplifies the crimes which are within the jurisdiction of the Court. Ar-
ticle 5 lists those crimes as (a) genocide; (b) crimes against humanity; (c) war
crimes; and (d) the crime of aggression.45 By becoming a Party to the Statute, a
State accepts the jurisdiction of the Court with respect to the crimes enumer-
ated. For the Court to exercise jurisdiction, an alleged crime must (a) be re-
ferred to the Prosecutor by a State Party, or (b) by the Security Council, or (c)
must result from an investigation initiated by the Prosecutor.*6 With respect to
(a) and (c), the Court only has jurisdiction if the conduct in question was com-
mitted on the territory of a State Party, or on board a vessel or aircraft regis-
tered in a State Party; or, the accused is a national of a State Party.4?

Part Three of the Statute (Articles 22-33) is entitled “General Principles of
Criminal Law.” It includes such long-standing and non-controversial provi-
sions as nullum crimen sine lege (Article 22), nulla poena sine lege (Article 23),

255


Antecedents of the Rome Statute of the ICC Revisited

itself (an aspect now regulated by Article 3 of the Hague Convention No. IV of
1907 with respect to the laws and customs of war on land).!° The proposal
bears traces showing that it could have been inspired by a combination of fac-
tors. These include the general attack on international law as “law” without
regular enforcement machinery through standing courts; the influence of the
Alabama arbitration taking place in Moynier’s hometown and the seat of the
Red Cross, Geneva; dismay in Red Cross circles at the relative weakness of the
Geneva Convention brought out during the Franco-Prussian war; and perhaps
to some extent the experience of the Central Commission of the Rhine that
was exercising some civil and criminal jurisdiction, even if of limited and local-
ized scope.

However, the proposal was ahead of its time. No international experience
had been acquired of any permanent international judicial instance of univer-
sal competence. The absence of an agreed international code on the law of war
and on the conduct of warfare, and setting forth what acts, when committed by
an individual, could be considered criminal, detracted from the feasibility of
any kind of international criminal tribunal at that period. Furthermore, the
concept of extradition formalized in national legislation and in international
treaties was relatively undeveloped and there was—and still is—well-marked
reticence on the part of many influential States to allow the extradition of their
nationals, save perhaps in the most exceptional circumstances. The existence
of factors such as these was not propitious for the fundamental innovation in
international law and practice that the creation of an international judicial in-
stance exercising jurisdiction over an individual acting as agent of the State
would entail, even on so limited a scale as Moynier envisaged.

In this connection, it is interesting to observe that after the failure of
Moynier’s initiative in 1872, the International Committee of the Red Cross did
not return to the idea of establishing an international criminal court to try indi-
viduals accused of violations of the Geneva Conventions. Instead, it focused its
attention more on securing national legislation criminalizing individuals for
such violations. The issue of an international penal jurisdiction does not seem
to have been ‘raised in the Geneva Red Cross Conferences of 1929, 1949, and
1974-1977. The most that occurred was in connection with the 1949 confer-
ence, where the International Committee suggested including in all the Con-
ventions to be adopted at that Conference a provision regarding grave
breaches. According to that suggestion, grave breaches were to be punished as
crimes against the law of nations by the tribunals of any of the parties to the
Convention “or by any international jurisdiction.” This proposal, however, was
not pursued, !1

390


Charter of the United Nations as a World Constitution

with the principles laid down in the Charter (Article 2.6). This paragraph,
which will be examined more closely below, is particularly relevant for purposes
of ascertaining the constitutional value of the Charter.

The principle of the sovereign equality of the member States of the United
Nations, affirmed in Article 2.1, is as old as international law. From the time of
Grotius to the present day, jurists have declared that all independent States are
equal in the eyes of the law. This theory was first developed at the end of the
Middle Ages, sanctioned by the Peace of Westphalia, and strongly supported
by developing States from 1945 onwards. General Assembly declarations and a
number of treaties refer to the principle of sovereign equality as one of the bases
for the right to development, the right to freely dispose of natural resources,
and for the general condemnation of neo-colonialism in any form.

The fundamental duty to settle international disputes by peaceful means is
proclaimed as one of the purposes of the organization in Article 1.1, but is
stated as a general principle in Article 2.3. Article 33 provides an illustrative,
non-exhaustive list of dispute settlement modes, adding that States may resort
to other modalities as long as they are peaceful. The validity of this principle
was reinforced by the Manila Declaration on the Peaceful Settlement of Inter-
national Disputes, and a number of General Assembly resolutions. The funda-
mental importance of the principle of peaceful settlement is evidenced by the
traditional emphasis on it in the great regional arrangements, such as the trea-
ties establishing the Organization of American States and the Organization of
African States, the many treaties on the protection of human rights and on
arms control, the Disputes Settlement Understanding of the World Trade Or-
ganization, and, remarkably, the comprehensive provisions of Part XV of the
1982 Law of the Sea Convention.

Articles Revealing Substantial Constitutional Characteristics. Article 10
defines the functions and powers of the General Assembly as consultative and
declaratory. Although the Assembly was not designed as a legislative organ,
Article 10 empowers it to discuss any matter within the scope of the Charter.
Furthermore, Article 13.1 confers on the General Assembly an unrestricted
power to initiate studies and make recommendations for the purpose of
promoting international co-operation in the political field and encouraging the
progressive development of international law and its codification. Despite the
fact that the United States, the most powerful member of the organization,
abandoned its early liberal view of the quasi-legislative value of certain acts of
the General Assembly when the United States lost its majority within the
General Assembly,'° the Assembly has increasingly and successfully used the

268


Contributors

holder of Brazil’s Santos Dumont Merit Medal; a Fellow of University College
London; and recipient of the International Astronomical Federation’s Interna-
tional Institute of Space Law Lifetime Achievement Book Award “in recogni-
tion of his extraordinary, authoritative, and lasting contributions to the
progressive development of international law, air and space law”; and of the In-
ternational Air Transport Association’s Certificate of Appreciation “for his
outstanding contribution to the progressive development of international air
law,” and he has been Dean and Chairman of the Board of Studies of London
University’s Faculty of Laws; Chairman of the Air Law Committee of the Inter-
national Law Association; Hon. Secretary of the British Branch of the Interna-
tional Law Association. Professor Cheng is the author of GENERAL PRINCIPLES
OF LAW AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS (London
1953; Grotius Classic Reprints Series No. II, Cambridge, 1987), THE LAW OF
INTERNATIONAL AIR TRANSPORT (London and New York, 1962), STUDIES
IN INTERNATIONAL SPACE LAW (Oxford, 1997), and some 250 articles on in-
ternational law, air law and space law, as well as the contributing editor of IN-
TERNATIONAL LAW: TEACHING AND PRACTICE (London, 1982) and joint
contributing editor with E.D. Brown of CONTEMPORARY PROBLEMS OF IN-
TERNATIONAL LAW: ESSAYS IN HONOUR OF GEORG SCHWARZENBERGER
ON HIS EIGHTIETH BIRTHDAY (London, 1988).

Professor Anthony D’Amato is the Judd and Mary Morris Leighton Profes-
sor of Law at Northwestern University School of Law, a position he has held
since 1990. An active litigator in international human rights, he was the first
American lawyer to argue (and win) a case before the European Court of Hu-
man Rights in Strasbourg. Professor D'Amato also litigated the only court of
appeals victory against the government in a military service case during the
Vietnam era. He is the author of over 20 books and over 110 articles, includ-
ing ANALYTIC JURISPRUDENCE ANTHOLOGY and INTRODUCTION TO LAW
AND LEGAL THINKING.

Dr. Yoram Dinstein is Pro-President and Professor of International Law at
Tel Aviv University, Israel. He is a member of the Institut de Droit Interna-
tional and the author of many books, as well as over 100 articles. Dr. Dinstein is
the editor of the ISRAEL YEARBOOK OF HUMAN RIGHTS and has been a visit-
ing professor at New York University and the University of Toronto. He has
also served as Consul of Israel in New York and occupied the Charles H.
Stockton Chair of International Law at the U.S. Naval War College.

Mr. William J. Fenrick is the Senior Legal Advisor and Head of the Legal
Advisory Section in the Office of the Prosecutor for the International Criminal
Tribunal for the former Yugoslavia. As such, he is responsible for advising the

582


Vill

International Law and the Conduct of
Military Operations
Stocktaking at the Start of a New Millennium

Christopher Greenwood

Ik: IS ALWAYS A PRIVILEGE to be asked to contribute a chapter to a collec-
tion of essays in honour ofa colleague, but in this case it is also a great plea-
sure. The present writer is one of many who have benefited over the years from
Leslie Green’s writings, teaching, friendship, and encouragement. Leslie’s con-
tributions to the literature on the laws of war have always combined rigorous
scholarship with a determination that the subject is a practical one to be ap-
proached in a practical way. It is in that spirit that he has grappled with every
challenge to that body of law, from the Indian National Army trials in which he
took part at the end of the Second World War to the Kosovo crisis. It therefore
seems fitting to take the opportunity of this collection of essays to examine the
impact of the law on military operations and to take stock of where we are going
at the start of a new millennium.

The idea of laws of war is not, of course, a new one. Laws on the conduct of
hostilities can be traced back several centuries, while rules of international law
restricting the right to resort to force have existed for most of the present cen-
tury. It is one of the paradoxes of international law that it thus has one body of
law designed to prevent war, by restricting the circumstances in which it is


Charter of the United Nations as a World Constitution

consistent external policy and the development of a common foreign and se-
curity policy, as well as the further development of the monetary union and
the social policy.

The main bodies of the Union involved in the decision-making process are
listed in Article 4.1 of the Treaty of Rome: the European Parliament, the
Council, the Commission, and the European Court of Justice.

The European Parliament is the only EU institution whose members are di-
rectly elected by national constituencies instead of being nominated by na-
tional governments; it thus represents European citizens.?! Its role in the
Community decision-making system has developed from mainly advisory and
consultative to a more active and effective one. According to Article 149, as
amended by the Single European Act of 1987, Parliament exercises pressure on
the work of the Council by refusing to accept or by amending provisions set in
the Council “Common Position” by absolute majority. Since Maastricht, it has
the right of co-decision in various areas of the Union’s sphere of action, such as
the common market and the protection of the environment.

The Council of Ministers is the EU legislative body. It is the only institution
that can issue measures binding on all member States. As Parliament repre-
sents the peoples of Europe, the Council represents the governments; it is
formed by the ministers of the members in charge of the subject under discus-
sion. As arule, the Council votes with a qualified majority,”2 except in the case
of the vote on a second reading of Parliament, or if the subject is considered of
vital importance for one of the member States, in which cases it must decide by
unanimity. Only the Council can adopt acts that are immediately enforceable
in member countries.

The European Commission is the operative body of the Communities. Com-
prising 20 commissioners nominated by the member States, it operates inde-
pendently from them.?3 The Commission is the body responsible for the
management of the Community’s policies and for the monitoring and enforce-
ment of the implementation of those policies by member States and by their cit-
izens. The main tasks of the Commission, as listed in Article 155 of the Treaty
of Rome, are: to ensure that the provisions of the treaties and of European legis-
lation are respected, by States and by individuals or organizations; to initiate
the Community's actions by preparing proposals for Regulations to be adopted
by the Council; to formulate recommendations or deliver opinions on subjects
considered in the Treaty whenever asked or where it feels necessary to do so; to
operate the Community's policies and manage the Community’s structural
funds; and to represent the European Union in its relations with third States
and international organizations.

288


Outer Void Space Not Reserved for Exclusively Peaceful Use

deliberate and continuing misinterpretation of “peaceful” in the Space Treaty
to mean “non-aggressive” and not “non-military” appears to be wholly without
purpose and behind the times, while gratuitously ruining a most useful and de-
sirable word, and at the same time opening the door to possible mischief. It
should be dropped forthwith.

Figure 4: The Military Use of Outer Space
Under the 1967 Space Treaty

OUTER
SPACE

GENERAL RESTRICTIONS
GOVERNING USE

1. International law and UN Charter
applicable (Article III), which prohibit
aggression and the use or threat of
force (Charter, Article 2(4));

CELESTIAL BODIES

TO BE USED EXCLUSIVELY FOR
PEACEFUL, LE., NON-MILITARY,
PURPOSES (ARTICLE IV(2))

NO SIMILAR RESTRICTION

QUIER VOD ACE

2. No stationing of “nuclear weapons
or any other kinds of weapons of mass
destruction” anywhere in outer space
in any manner (Article IV(1)).

19. The world’s fervent hope is not only that Article IV of the Space Treaty
has by now acquired a sufficient opinio generalis juris generalis to qualify as a rule
of general international law,8! but also that States would, especially in the wake
of the official celebration in 1997 of the end of the Cold War,8? make rapid
progress not merely in further limiting the military use of outer void space, but
also in using outer space for the purpose of assisting limitations of armament or
even general disarmament everywhere by providing an effective means of veri-
fication. In order to do so, one has first to be clear as to the meaning and scope
of Article IV of the Space Treaty, which is the obvious starting point, and the
precise meaning of the word “peaceful.” There is definitely the need to ensure
that real Peace prevails on earth, as well as in space. The political climate is
propitious. All that is needed to satisfy the three indispensable conditions for
successful international lawmaking to achieve this end is the political will of
the leading nations of the world.

110


Ronald St. J. Macdonald

Definition of Aggression condemn all forms of intervention, not just armed ag-
gression, perpetrated directly or indirectly in the internal or external affairs of a
State. The use of force in reprisal is also considered as illegal when not con-
ducted by the Security Council or for self-defense.

To the principles outlined in the Charter of the United Nations, the Decla-
ration adds two principles already considered in Resolution 2131 of 1965: the
duty to refrain from the use of force to deprive peoples of their national iden-
tity, which is seen as a violation of their inalienable rights as well as a violation
of the principle of non-intervention; and the duty to refrain from interference
of any sort in the inalienable right of States to choose their own political, eco-
nomic, social, and cultural systems without interference of any form.

(d) The duty to cooperate is again drawn from the Charter. Interestingly,
economic cooperation is envisaged as a duty under both the Charter and the
Declaration, while in subsequent resolutions, such as Resolution 3281 (XXIX)
of 1974, it is seen as a right to economic cooperation.4?

(e) Self-determination was originally intended by the drafters of the Charter
to refer to nationalities, not to peoples under colonial domination.*8 With the
passage of time, the beneficiaries of the right to self-determination became peo-
ples subjected to colonial, racist, or other forms of alien domination. Those
people, when struggling against alien domination, enjoy the jus ad bellum to
fight against a subject of international law, and are themselves granted the sta-
tus of a quasi-subject of international law. They are entitled to seek and receive
support in accordance with the purposes and principles of the United Nations
Charter.

(f) The principle of sovereign equality restates in a more extensive manner
the principle laid down in Article 2.1 of the Charter. It provides that all States
are juridically and legally equal regardless of economic, social or political
capacity.

(g) The duty of good faith in fulfilling Charter obligations is restated so as to
emphasize the more effective application of those obligations within the inter-
national community.

As already mentioned, almost all these principles are recognized as part of
international law. The General Assembly, as the principal legal forum of the in-
ternational community, provided the framework within which the principles
governing friendly relations among States were codified.4? Important for pres-
ent purposes is the inextricable linkage of the principles of peaceful coexistence
to the Charter, into whose provisions they may or may not come to be imper-
ceptibly merged. What I wish to underline, however, is that whether

279


Sharon A. Williams

M.C. Bassiouni (ed.) INTERNATIONAL CRIMINAL LAW: CRIMES, vol. 1 (1986), 271, 275. It is
submitted that the interest in and the prevention of genocide is an erga omnes obligation. See
Barcelona Traction, ibid., and C.C. Joyner, supra, note 42, 168.

49. Amicus curiae brief presented on behalf of the Government of the United States of
America, July 25, 1995, in The Prosecutor of the Tribunal v. Dusan Tadic Case, No. IT-94-I-T, 20,
as quoted in International Commission of Jurists, supra note 38, 5.

50. Tribunal for Former Yugoslavia, Case No. 17-95-17/1-T (1998), para. 153.

51. March 24, 1999, House of Lords (1999), 38 I.L.M. 581, 589.

52. The Rome Treaty Conference Monitor, July 10, 1998, 1-2.

53. E.g., International Committee of the Red Cross, International Commission of Jurists,
Lawyers Committee for Human Rights, Amnesty International and Human Rights Watch.

54. Note that Germany also called this “the German version of automatic jurisdiction.” See
Statement by Hans-Peter Kaul, Acting Head of the German Delegation in the CW, July 9, 1998,
1. Thus, Germany used “inherent” and “automatic” in the same way to mean that the ICC was
vested with universal jurisdiction upon ratification by States. This must be contrasted with the
term “automatic” as used in the Korean Proposal, the United Kingdom Proposal, the Bureau
Proposal, and in the final text of the Statute, where although acceptance of the Court’s
jurisdiction is automatic, there are preconditions. However, they did not require a second State
consent as did the “opt-in” and State consent regimes.

55. Statement by Hans-Peter Kaul, Acting Head of the German Delegation, Rome
Conference, June 19, 1998.

56. See Article 13 (b).

57. ].F. Bertram - Nothnagel, Report to the Union Internationale Des Avocats, August 12,
1998, 10.

58. Contrast the Statutes of the Ad Hoc Tribunals for the Former Yugoslavia and Rwanda, set
up by U.N. Security Council Resolutions 827 of May 25, 1993, and 955 of November 8, 1994,
acting under Chapter VII of the Charter, which obligate all States to cooperate.

59. U.N. Doc. A/CONF. 183/C.1/L.6, June 18, 1998. A similar proposal had been made
earlier by Sweden: IC] BRIEF, supra note 38, 4.

60. Terra Viva, Seoul Floats a Compromise on Jurisdiction, 22 June 1998, No. 6, 7. See also The
International Criminal Court Monitor, July 10, 1998, 1, where it states that 79 percent of the
States supported the Korean Proposal.

61. Ibid.

62. U.N. Doc. A/Ac. 249/WG.3/DP.1.

63. See e.g., Lawyers Committee for Human Rights, Exercise of ICC Jurisdiction: The Case for
Universal Jurisdiction (May 1998), 1 (8) INTERNATIONAL CRIMINAL COURT BRIEFING SERIES 5.

64. U.N. Doc. A/CONF.183/C.1/L.70, July 14, 1998.

65. See testimony of Ambassador David Scheffer, Head of the United States Delegation in
Rome, before Senate Foreign Relations Committee, July 23, 1998.

66. 1969, 1155 U.N.T.S. 331.

67. Scheffer, supra note 65.

68. J. Podgers, War Crimes Courts Under Fire (September, 1998), AMERICAN BAR ASSOCIATION
JOURNAL 64, 67.

69. Lawyers Committee for Human Rights, Exercise of ICC Jurisdiction: The Case for Universal
Jurisdiction (1998), 1(8) INTERNATIONAL CRIMINAL COURT BRIEFING SERIES, 3.

70. Human Rights Watch, JUSTICE IN THE BALANCE: RECOMMENDATIONS FOR AN
EFFECTIVE INTERNATIONAL CRIMINAL COURT (1998), 46.

71. U.N. Doc. A/CONF. 183/C.1/L.53, July 6, 1998, 11-13.

561


UN Forces and International Humanitarian Law

instances not only the letter but the spirit of international humanitarian law is
being scrupulously observed. Even in the sorry business of war, the United Na-
tions should establish the highest legal standard and set the best example.

Notes

1. Secretary-General’s Bulletin on “Observance by United Nations forces of international
humanitarian law” (ST/SGB/1999/13 of 6 August 1999) [hereinafter Secretary-General’s
Bulletin or SGB], 38 ILM 1656 (1999). The text is set out in Appendix I hereto.

2. The (First) United Nations Emergency Force (UNEF I) (1956-1967). This was not,
however, the first of what is now known as the “Blue-Helmet” operations, as it was preceded by
two observation groups: the UN Truce Supervision Organization (UNTSO), established in 1948
and still operating in the Middle East, and the UN Military Observer Group in India and
Pakistan (UNMOGIP), established in 1949 and also still in operation. For a description ofall the
41 operations established before June 1996, see THE BLUE HELMETS: A REVIEW OF UNITED
NATIONS PEACE-KEEPING (UN/DPI, Third Edition, 1996): for UNEF I, Chapter 3; for UNTSO,
Chapter 2; for UNMOGIP, Chapter 8.

3. United Nations Operation in the Congo (ONUC) (1960-1964), see id. Chapter 10.

4. United Nations Transition Assistance Group (UNTAG) (1989-1990), see id. Chapter 11.

5. This question has been extensively explored in the literature. See, in particular: FINN
SEYERSTED, UNITED NATIONS FORCES IN THE LAW OF PEACE AND WAR (1966); Rudolf
Bindschedler, Les conditions d’application des lois de la guerre aux opérations militaires des Nations
Unies, in 54:1] ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL (1971); Yves Sandoz,
Lapplication du droit humanitaire par les forces armées de Vorganisation des Nations Unies, in 60
REVUE INTERNATIONAL DE LA CROIX-ROUGE 274 (1978); Dietrich Schindler, United Nations
Forces and International Humanitarian Law, in STUDIES AND ESSAYS ON INTERNATIONAL
HUMANITARIAN LAW AND RED CROSS PRINCIPLES IN HONOUR OF JEAN PICTET (Ed.
Christopher Swinarski, ICRC, 1984); HORST RISSE, DER EINSATZ MILITARISCHER KRAFTE
DURCH DIE VEREINTEN NATIONEN UND DAS KRIEGSVOLKERRECHT (1988); Daphna Shraga
& Ralph Zacklin, The Applicability of International Humanitarian Law to United Nations
Peace-keeping Operations: Conceptual, Legal and Practical Issues, in SYMPOSIUM ON
HUMANITARIAN ACTION AND PEACE-KEEPING OPERATIONS 39 (Ed. Umesh Palwankar,
1994); Luigi Condorelli, Le statut des forces de 'ONU et le droit international humanitaire, 1995
RIVISTA DE DIRITTO INTERNAZIONALE 881; Hilaire McCoubrey & Nigel D. White, The Laws of
Armed Conflict and UN Forces, Chapter 8 of their THE BLUE HELMETS: LEGAL REGULATION OF
UNITED NATIONS MILITARY OPERATIONS (Dartmouth, 1996); Daphna Shraga, The United
Nations as an Actor Bound by Intemational Humanitarian Law, in 5:2 INTERNATIONAL
PEACEKEEPING 64 (summer 1998) (which constitutes a revision of a paper with the same title
included in the Condorelli Colloque (next sentence infra)). An especially important set of
discussions on The United Nations involvement in armed conflicts and international humanitarian law
by, inter alia, Zacklin, Sandoz, Shraga, Jean de Courton, Claude Emanuelli, Francoise Hampton,
Theodor Meron and Condorelli, is included in THE UNITED NATIONS AND INTERNATIONAL
HUMANITARIAN LAW (Actes du Colloque International a l’occasion du cinquantitme
anniversaire de l'ONU, sous la direction de Luigi Condorelli (Geneva 19-21 October 1995,
Editions Pedone) [herein “Condorelli Colloque”]. See also the brief discussion in which this
author participated during the ASIL panel “From Keeping the Peace to Making It: The
Changing Role of UN Security Forces,” in 88 ASIL PROCEEDINGS 328, at 349-350 (1994). The

526


Robbie Sabel

51. Id., para. 71.

52. Id., para. 79.

53. CDDH/III/391 Report to Committee III on the work of the Working Group, Submitted
by the Rapporteur.

54. 52 votes to 12 with 14 abstentions. CDDH/II/SR.59, para 8.

55. CDDH/414. Egypt was not among the co-sponsoring States.

56. CDDH/SR.39, para. 72.

57. Id., para. 96.

58. Id., para. 103

59. Id., annexed written explanations of vote, at 117.

60. Id., paras. 88-90. .

61. The representative of Canada, Mr. Green “endorsed on all points” the statement of the
ICRC representative. CDDH/SR.39, para.102.

62. Forty-seven votes to 23, with 26 abstentions. CDDH/SR.39, para. 110.

63. ICRC Report to 1969 Conference, supra note 16.

64. Article 36, ICRC Basic Texts submitted to the 1972 Conference, supra note 20.

65. CE/COM III/C 31, Proposal submitted by the experts of the Philippines, International
Committee of the Red Cross, Conference of Government Experts on the Reaffirmation and
Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 3
May-3 June 1972 (second session) II, Report of the Work of the Conference, Vol. II (Annexes)
(1972).

66. CE/COM III/C 12, CE/COM III/C 25, Proposals submitted by the experts of the U.S. and
GDR respectively, International Committee of the Red Cross, Conference of Government
Experts on the Reaffirmation and Development of International Humanitarian Law Applicable
in Armed Conflicts, Geneva, 3 May-3 June 1972, (second session) II Report of the Work of the
Conference, Vol. II (Annexes) (1972).

67. CDDH/II/69.

68. CDDHAII/244.

69. CDDH/III/SR.30, paras. 2-27, CDDH/I/338.

70. CDDH/AII/338.

71. CDDH/413.

72. CDDH/SR.39, para. 77.

73. Id., para. 75.

14. Id., para. 76.

15. Id., para. 81.

76. Twenty-nine votes in favour, 27 against and 34 abstentions. CDDH/SR.39, para. 85.

77. Jean De Preux, supra note 32, at 498.

78. Israel proposal to 1971 Conference, supra note 18.

79. Col. Z. Hadar, supra note 19, at 26.

80. Proposal submitted by the experts of the United States of America, CE/COM III/C 11,
International Committee of the Red Cross, Conference of Government Experts on the
Reaffirmation and Development of International Humanitarian Law Applicable in Armed
Conflicts, Geneva, 3 May-3 June 1972 (second session) II, Report of the Work of the
Conference, Vol. II (Annexes) (1972).

81. CDDHAII/SR.30, para. 2.

82. CDDH/II/69.

83. CDDH/236/Rev/1.Annex.

84. CDDH/236/Rev.1, para. 30.

453


Outer Void Space Not Reserved for Exclusively Peaceful Use

OF LAW AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS, Cambridge: Grotius
(1987), Ch. 2, s. B: Self-Defence, pp. 77-97.

72. Cf., among numerous others, Menter and Finch, loc. cit. in note 50 above, and Jasani loc.
cit. in note 23 above, at p. 244.

73. Cf. contra Jasentuliyana, loc. cit. in note 64 above, at p. 130, who believes that Article 3(3)
of the Moon Treaty has added “vast new areas that were not specifically covered by the outer
space treaty,” seemingly referring to the applicability of the moon treaty to all the celestial bodies
within the solar system under its Article 1(2). However, this is difficult to understand because
Article IV(1) of the Space Treaty applies to all celestial bodies in the whole universe, which
would include all celestial bodies in the solar system. The prohibition of the “use” of weapons of
mass destruction “on or in the moon” mentioned in Article 3(3) of the Moon Treaty and not in
Article IV(1) of the Space Treaty is covered by Article IV(2) of the Space Treaty, first sentence.
See also notes 62 above and 75 below.

74. On the use of nuclear weapons, see the rather hesitant tone of the International Court of
Justice’s Advisory Opinion in Legality of the Use of Nuclear Weapons, ICJ Rep. 1996, p. 66.

75. Insofar as outer void space is concerned, for parties which are parties to the Partial Test
Ban Treaty (see note 26 above and text thereto), the Treaty may be applicable. It may, however,
possibly be argued that the Treaty applies only to the test of nuclear weapons and devices, but not
to their use. The Treaty may further arguably be said to apply to not only outer void space, but
also celestial bodies, even though, as previously mentioned, the usage at the time was to speak of
outer space and celestial bodies. However, Article IV(2) of the Space Treaty and Article 3 of the
Moon Treaty are obviously applicable. Article 3(3) of the Moon Treaty, by forbidding the
placing of space objects carrying nuclear weapons or any other kinds of weapons of mass
destruction in a “trajectory to . . . the moon,” may possibly prevent the use of such weapons
against targets on the moon in the sense the word moon is used in the Moon Treaty. Moreover,
the prohibition of “any threat or use of force” on the moon may also prevent the use of any
weapon on the moon, even though the specific prohibition of “the testing of any type of weapon”
in Article 3(4) of the Moon Treaty, and Article IV(2) of the Space Treaty may give rise to the
same argumentas that just mentioned regarding the Partial Test Ban Treaty, that they apply only
to testing, but not actual use. Finally, the question remains as to whether the reservation of
celestial bodies for use for exclusively peaceful purposes in both treaties means that no weapon
whatsoever may be used against any target on celestial bodies from either the earth or outer void
space, however evil, illegal, and even criminal the target may be, although in such a case it can be
argued that the assault would not constitute a “use” of the celestial body, whilst the target most
probably would. However, under neither treaty may such an assault be mounted from another
celestial body other than the earth. See further CHENG, op. cit. in note 6 above, Ch. 20: The
Military Use of Outer Space and International Law, s. III-B(viii), at pp. 529-532. See also, e.g.,
Jasani, loc. cit. in note 23 above, at pp. 222-244, and I. V. Vlasic, Space Law and the Military
Applications of Space Technology, loc. cit. in note 4 above, on some of the current military uses of
outer void space. As mentioned by Professor Vlasic, the United States in the 1991 Gulf War had
at its disposal seven imaging satellites, making an average of 12 passes over the theatre of
operations each day, between 15 and 20 signals intelligence satellites, intercepting radio
communications of the Iraqis, three defence weather satellites, at least four military
communications satellites and up to 16 “Navstar” Global Positioning System (GPS) satellites,
assisted by images acquired by the French SPOT and U.S. Landsat civilian remote sensing
satellites which were used to update maps for the operational forces (at p. 388).

76. Opinions of Commissioners, October 1930 to July 1931, p. 207, at pp. 265-266.

116




Dispute Settlement under the 1997 Watercourses Convention

development projects on the watercourse that may have “a significant adverse
effect” upon other riparians, shall provide those States with timely notification
thereof. The notification has to be accompanied by available technical data, in-
cluding, most importantly, the results of any environmental impact assess-
ment.” The potentially affected States are given six months—a period that
may be extended an additional six months if it is difficult to evaluate the possi-
ble effects of the planned measures—to respond.?8 If the relevant States do not
respond, the State that planned the new measures may go ahead, but still has to
comply with the principles laid down by the convention.29

On the other hand, if the other watercourse States communicate their ob-
jection, the parties “shall enter into consultations and, if necessary, negotia-
tions with a view to arriving at an equitable resolution of the situation.”3°
Another provision deals with the situation in which there is disagreement on
whether other riparian States have to be notified of certain plans.3! Only in
cases of “the utmost urgency in order to protect public health, public safety or
other equally important interests” may a State proceed with planned measures
before the necessary notifications and consultations have taken place.5?

To conclude, the convention lays down a considerable set of rules on infor-
mation, notification, communication, consultation and negotiations intended
to prevent conflicts. Conflicting interests are to be adjusted by cooperative
means. While each State has to take into consideration the needs and interests
of the others, no right of veto has been granted to any riparian.

The process of dispute prevention can take twelve months or even longer. If
the matter is not resolved to the satisfaction of all the watercourse States, the
dispute settlement procedures would have to be employed.

Dispute Settlement

While all the dispute prevention measures are obligatory, in the field of dis-
pute settlement only two mechanisms are compulsory—negotiations and sub-
mission to a fact-finding commission. All others are optional.

The relevant provisions were hotly debated at the last sessions prior to adop-
tion of the convention, namely, in the meetings of the plenary ad hoc working
group of the whole, which met in October 1996 and in March-April 1997.
Some delegations favored compulsory resort to a diplomatic mechanism—im-
partial fact-finding, or mediation or conciliation. Should that procedure fail,
they argued for an obligation to resort to arbitration and adjudication before
the International Court of Justice or another competent court.33 At the other
extreme were States that opposed any compulsory procedures.*4 Between these

234


Dieter Fleck

must be ensured. This applies specifically to EU law dealing with the exemption
of foreign armed forces and their members from taxes and other duties.28

Command and Control

Given legal constraints as well as policy concerns which for most of the par-
ticipating States would exclude transfer of full command to an officer of allied
forces, it is essential to clearly define command and control issues for multina-
tional units.

Within NATO, rules and procedures for integrated assignment are well es-
tablished.2? They denote the relationship between a soldier assigned to a
NATO headquarters or agency and the person heading that headquarters or
agency. Generally speaking, this relationship involves all matters concerning
the soldier, with the exception of personal (in particular disciplinary) matters
and personnel service support (which in principle remains a national
responsibility).

The established terms of command relationship between NATO command-
ers and the national units apply both in peacetime and in wartime. NATO
commanders exercise authority pursuant to the Resolution Implementing Sec-
tion IV of the Final Act of the London Conference of 23 October 1954.3? This
authority is amplified in the Terms of Reference of the Major NATO Com-
manders and further agreements. In these documents, the different levels of
command and control—Tactical Control (TACON),?! Tactical Command
(TACOM),?2 Operational Control (OPCON)3 up to Operational Command
(OPCOM)34—are well established. As specified for each particular case, they
may be exercised either permanently or on an ad hoc basis. Although extensive
Coordinating Authority3> is vested in the NATO commander, Full Com-
mand,36 remains under national authority. It follows that the term “com-
mand,” as used internationally, implies a lesser degree of authority than in a
purely national sense. No NATO commander has full command over the
forces assigned to him. Instead, nations, when assigning forces to NATO, dele-
gate only operational command or operational control. In multinational opera-
tions, each participating nation will normally be represented by a national
commander responsible for ensuring that full command can be exercised and
that respective national law and policies are observed. Given this situation, an
appropriate means for facilitating close cooperation at the international level
are common rules of engagement; they are critical for effective command and
control of an operation.

171




Sharon A. Williams

surrender a person of that State to the Court, unless the Court can first obtain
the cooperation of the sending State for the giving of consent for the surrender.

The United States proposal would require a footnote to the Rule of Proce-
dure to Article 98. The currently informal proposal reads:

The Court shall proceed with a request for surrender or an acceptance of a
person into the custody of the Court only in a manner consistent with its
obligations under the relevant international instrument.

This would then relate to a future proposal by the United States for the
supplemental document to be included in the Relationship Agreement
Between the United Nations and the ICC which would utilize the possibility
presented in the above proposed footnote to the Rule of Procedure. This
proposal reads:

The United Nations and the International Criminal Court agree that the Court
may seek the surrender or accept custody of a national who acts within the
sovereign direction of a U.N. Member State, and such directing State has so
acknowledged, only in the event (a) the directing State is a State Party to the
Statute or the Court obtains the consent of the directing State, or (b) measures
have been authorized pursuant to Chapter VII of the U.N. Charter against the
directing State in relation to the situation or actions giving rise to the alleged crime
or crimes, provided that in connection with such authorization the Security
Council has determined that this subsection shall apply.

This is acutely controversial. Obviously, the best case scenario is for the
United States to become a State Party. Nevertheless, although many States
want to keep the United States positively engaged in the process of bringing the
ICC into operation, among the Like Minded States and others there are defi-
nite concerns, notably not wanting the delicate balance achieved in Rome to
be circumvented by the back door through an oblique Rule of Procedure to be
followed at some later stage by the Relationship Agreement Article. The end
result in reality would be that the ICC would only have jurisdiction with the
consent of the State of nationality of the accused or the United Nations Secu-
rity Council. The United States proposal appears to remove or at least restrict
the jurisdictional provision concerning the State where the offence was com-
mitted. As was discussed earlier, Article 12 is in fact much narrower than what
most States wanted in Rome and this new “informal” proposal to produce a “pro-
cedural fix” to enable the United States to cooperate with the ICC, at a mini-
mum as a “good neighbour”! creates more concerns about further restrictions.

555


The Rome Statute on the International Criminal Court

crime, whether a domestic common crime or an international crime, on the
territory of another State, a prosecution in the latter State is not dependent on
the State of nationality of the accused being a Party to the pertinent treaty or
otherwise consenting.?! It is not a case of a non-State Party being bound, but
rather of the individual being amenable to the jurisdiction of the ICC because of
alleged crimes committed in the territory of a State Party. There is no rule of in-
ternational law prohibiting the territorial State from voluntarily delegating to the
ICCits sovereign ability to prosecute, by becoming a State Party of the Statute.92

State of nationality of the accused. The active nationality basis of jurisdiction over
the offence is well-entrenched in the domestic law of the majority of States. By
virtue of such State practice and opinio juris, it is a permissive rule derived from
international custom that establishes extraterritorial jurisdiction.” Civil law juris-
dictions provide for its use extensively and relate it to common crimes of a dom-
estic nature, as well as to international crimes against the common interests of
States. It is a corollary to the rule concerning the non-extradition of nationals
applied by these States. Common law States, on the other hand, use the nation-
ality basis for the most part only with regard to international crimes, stricto
sensu, such as are prescribed by international law as envisaged in Article 5 of the
Rome Statute and international treaty crimes, like those contained in the inter-
national terrorism conventions.” In this context it is universally accepted.

Non-States Parties. In the case of non-State Parties, Article 12(3) follows the
ILC Draft, the PrepCom Draft Statute, and the Bureau Discussion Paper,”®
and Proposal.”” It provides that if such a State’s acceptance is required under
the preceding paragraph, it may declare ad hoc its acceptance with respect to
the crime in question. Such a State is then obligated to cooperate with the ICC.
in accordance with Part 9 of the Statute. Thus, the Statute does not infringe
upon the sovereignty of non-Party States. It is in compliance with the
customary and conventional rules on the law of treaties. It is, therefore, a
misconception that the Statute binds non-Parties. They are not obligated to
cooperate with the ICC.

tticle 12 is a product of compromise supported by the overwhelming
majority of States. It endeavours to satisfy the many interests that
were in evidence at the Rome Conference and before. Although far from per-
fect, it was all that was possible at the time. That the acceptance of the Statute

552


Georg Schwarzenberger

light of the then recent Boxer expedition, and suggested a clear definition of
war.58 In the words of a contemporary writer, “no one replied to these embar-
rassing questions. Governments are not loath to have the definition of what
constitutes war shrouded in mystery; for in the greater number of States pos-
sessing a parliamentary form of government, the decision to make war is
hedged about with formalities and special constitutional requirements, and
governments have in the past and are likely in the future to find it convenient
for reasons of doméstic and foreign policy to resort to measures of war while
maintaining that no war exists.°? Thus, again, the term “hostilities,” which is
used in this convention, really means acts of armed force carried out with the
intent of war, and the door is kept wide open for undeclared war developing out
of measures taken within the purview or under the cover of the status mixtus.6°

Equally instructive are the attempts made in the post-1919 period to distin-
guish between legal and illegal wars. In the Covenant of the League of Nations,
terms such as war, threat of war, resort to war and acts of war are freely used.
This question has received so much attention®! that it only seems necessary to
emphasize the aspects particularly relevant to our discussion.

President Wilson’s drafts make it obvious that he was fully aware of the dan-
gers threatening his scheme if the status mixtus should be allowed to survive.
Article VII of his various drafts runs as follows:

If any Power shall declare war or begin hostilities, or take any hostile step
short of war, against another Power before submitting the dispute involved to
arbitrators as herein provided, or shall declare war or begin hostilities, or take
any hostile step short of war, in regard to any dispute which has been decided
adversely to it by arbitrators chosen and empowered as herein provided, the
contracting parties hereby bind themselves not only to cease all commerce
and intercourse with that Power but also to unite in blockading and closing
the frontiers of that Power to commerce or intercourse with any part of the
world and to use any force that may be necessary to accomplish that object.

Yet, in the course of the drafting, Wilson’s attempt seriously to curb power
politics was quietly undone and his formulations were replaced in a
matter-of-course way by the traditional terminology—“minor changes . . . ofan
entirely trivial character.”62

Further support to the view that war in the meaning of the Covenant was
limited to war in the technical sense, was given by the equivocal treatment of
the Corfu incident in League quarters and, particularly, by the sibylline report
of the Committee of Jurists on this matter.6

497


Chivalry in the Air?

Humanitarian Law Conference. One of the justifications raised was the idea of
chivalry. The delegate from Belgium declared that “there was a tradition
among fighter pilots that a pilot who had been shot down should be considered
to be ina similar situation to that of a rider unhorsed in battle” and that it was a
“tule of chivalry.”23 The Canadian representative categorically stated that
shooting at an airman in distress “would run counter to the entire tradition of
chivalry, for the very idea of shooting in cold blood at a human being descend-
ing by parachute in distress and probably already wounded, was monstrous.”2+
The delegate of the Netherlands limited himself in this respect to hoping that
“all States would carry chivalry beyond the limits imposed by the legal rule as
now adopted.”25 By contrast, Egypt’s delegate, although accepting the rule in
principle, objected to the introduction of the justification of chivalry and
pointed out that

one could look at the situation from the standpoint of chivalry but that would be
rather strained and exaggerated. Because chivalry presupposed equality of
opportunity in fighting, it implied giving the adversary the opportunity to fight
for his life, to kill or be killed. To adopt that concem for chivalry in the situation
under discussion would be pushing it too far, because infantrymen were by no
means equal in armament to a pilot. If they were ordered to let him go, he would
return and fight them, not with a simple rifle—the same weapon that they
had—but with a fighter aircraft equipped with all the means of destruction which
the human mind had been able to devise and put into use . . . considerable
military interests must not be sacrificed to mere considerations of chivalry.26

Mr. de Preux, of the ICRC, referred to the fact that although airmen in dis-
tress are covered by the general rule as to hors de combat, “the importance of
aviation in modern conflicts warranted the adoption of a special provision to
ensure the normal functioning of air operations and the protection of air-
men.”2? During the plenary discussions of the Conference, Mr. Pictet, on be-
half of the ICRC, explained that “the serviceman who, to save his life, para-
chuted from an aircraft in distress was a victim, shipwrecked as it were in the air
and that was the idea which should have precedence.”28 The representative of
Israel stressed that such an airman was hors de combat and should not be at-
tacked for that reason,?? while the delegate from the Federal Republic of Ger-
many forcefully declared that “a person parachuting from an aircraft in distress
was reduced to helplessness in the true sense of the word during his descent and
an attack on him would be tantamount to an execution.”30 Possibly summaris-
ing the essence of the justification for the rule, the Portugese delegate stated
that in such circumstances the airman, “could neither defend himself nor attack

442




Alfred P. Rubin

international legal order. It takes time, effort, and somebody's taxpayers’
money to prosecute anybody for anything. The difficulties are regarded as mi-
nor when a municipal society, a State, is the beneficiary of its own expenses.
But whose children are to be sent to die to perform the arrest or evi-
dence-gathering when a foreigner is to be investigated or arraigned for an act
against other foreigners outside the territory of the State purporting to be con-
cerned? Whose legislators determine the procedures to be followed and the ex-
ceptions to those procedures when circumstances get complicated? Whose
legal order governs when it appears that the enforcers have themselves violated
the law of the State in whose territory they are acting, or commit atrocities in
the course of acting?

Let us look closely at a particular problem: To whom does a person wrongly
arrested appeal, and who pays his expenses? Article 85 of the Statute of the
ICC actually foresees this last situation and provides that in the case of a “mis-
carriage of justice, the person who has suffered punishment as a result of such
conviction shall be compensated according to law.” But it does not say whose
law or what law, implying that there is an international legal standard for such
compensation (which is probably not the case except in the minds of advocates
wishing to raise some precedents, but not others, to the level of customary law)
and that the new Court will elaborate on it. That presumably means leaving
both determinations to the very tribunal that was involved in the miscarriage
to begin with. And out of whose pocket is the compensation to come? Presum-
ably, the tribunal pays it out of the regular budget of the tribunal which draws
from the fund established under Article 115 of the ICC Statute and voluntary
contributions. Whether the parties will long consent to have their taxpayers
amerced for errors committed by a tribunal they do not control, a tribunal that
defines and administers its own law and does not itself respond to legislators for
its errors, is a question better answered by faith than by experience.

But perhaps these problems are too theoretical. Perhaps the notion is that
the tribunal can resolve these problems and that States parties to the Statute of
the ICC will have such an interest in the success of the tribunal that they will
be content to have their taxpayers pay for it in its formative years. Let us turn
instead to some more immediate problems.

First, consider an apparently obscure problem with large implications: Arti-
cle 90 of the ICC Statute deals with extradition of an accused to a requesting
State under an extradition treaty, or surrender to the Court under the ICC
Statute. I could find no mention in the Statute of the “hand over” obligation of
the 1949 Geneva Conventions on the laws of war.8 The phrase “hand over”
was deliberately chosen in that context to avoid the complications of municipal

423


UN Forces and International Humanitarian Law

Appendix Il

SOURCES OF THE PROVISIONS OF THE SECRETARY-GENERAL'S BULLETIN IN
IHL CONVENTIONS

Bulletin Paragraph PHL Convention Provisions

5.1
5.2
53
5.4
5.5
5.6
6.1
6.2

63
6.4
6.5
6.6

6.7
6.8
6.9
a
12
13
14
8 (a)
8 (b)

P-l: A 48, (51)

P-EA513

P-I: A57.2 (a) (ii)

P-I: A58(b), (0)

P-I: A514 (end), .5(b), 57.2 (iii)
P+: A516, 52.1

P-I: A35.1; (H-IVR: A 22)

(1868 St. Petersb. Decl.; 1899 Hague Deecls. 2, 3; 1925 Geneva
Protocol; Inhumane Weapons Conv., Protocols I-III; Chemical
Weapons Conv.; Oslo/Ottawa Landmines Conv.)

P-I: A 35.2, 3 (55)
P-I: A 35.2; (1968 St. Petersb. Decl.; H-IVR:A 23 (e))
P-I: A 40; P-II: A 4.1 (H-IVR: A 23 (d))

(H-IVR: A 27; H-IX A. 5; 1954 Hague Conv. Cult. Prop. P-I: A
53 (a); PII: A 16)

P-I: A 54.2

P-I: A 56.1

P-I: A 53 (c), 54.4, 56.4

G-I/lV: A 3(1); P-I: A 75.1; (P-Il: A 4.1)
G-IAV: A 3(1); PI: A 75.2; (PAI: A 4.2)
P-I: A 76.1; G-IV: A 27

P-I: A77.1

(G-III: A 69, 70)

(G-IIl: A 22, 19)

536




Dispute Settlement under the 1997 Watercourses Convention

and its resolution. It would be beyond the scope of this article to analyze various
mechanisms of negotiation. One should, however, bear in mind that negotia-
tions can be successful only if all the participants wish to reach an agreement
and are ready to compromise. Especially in water-related issues, there is usually
a great need for compromise.

Compulsory Means. If the parties cannot solve their dispute by a means of their
choice or by negotiations, it shall be submitted, at the request of any of the
parties to the dispute, to impartial fact-finding.*' When the exhaustion of
negotiations is a prerequisite for resorting to another means of dispute
settlement, it is not easy to establish when and whether the possibilities for a
negotiated settlement have been exhausted. The 1997 Watercourses
Convention has established an objective criterion related to time: “[I]f after six
months from the time of the request for negotiations ... the Parties concerned
have not been able to settle their dispute through negotiations or any other
means ... the dispute shall be submitted, at the request of any of the parties to
the dispute, to impartial fact-finding.”TM I assume the same applies if a party
refuses to negotiate, despite its obligation. Interestingly, the six months are
counted from the date of the “request for negotiations” and not from the time
the negotiations have actually started.

The text lays down a certain number of rules for the fact-finding mecha-
nism: the commission is to be composed of one member appointed by each of
the parties to the dispute, and a third person chosen by the two members nomi-
nated by the parties. The third member may not have the nationality of either
party and he will serve as chairman.® In order to prevent frustration of the pro-
cess by failure to agree on a chairman, the text provides that if within three
months of the request for the establishment of the commission the chairman
has not been chosen, the Secretary-General of the United Nations will appoint
him. Moreover, the convention even foresees the possibility that a party may
refuse to appoint its own member—a situation that has happened in the past
when a party wished to avoid an arbitration to which it was committed.6 In
that case, under the Watercourses Convention, the Secretary-General of the
UN will appoint a person who does not have the nationality of the parties to
the dispute nor of any riparian State of the watercourse concerned, and this
person will constitute “a single-member commission.”®

However constituted, the commission shall determine its own procedure.66
The parties have to provide the commission with information that it may re-
quire, and permit it to visit their respective territories to inspect relevant struc-
tures and equipment as well as natural features.6?

238


Theodor Meron

who allows rape is not punished by God, he will have to render an account to
other sovereigns.

Henry V’s ordinances of war prohibited rape and imposed capital punish-
ment on offenders. Enforcing compliance was a major problem, however. In his
famous speech at the walls of Harfleur, Shakespeare’s Henry enumerates the
dreadful abuses—including rape, denying quarter, killing non-combatants,
children and women—that his troops will commit in the city if it refuses to sur-
render. How could these dire threats be reconciled with the existing and
emerging norms protecting women from the ravages of war? The distinction in
medieval law between the treatment of both combatants and civilians in cap-
tured territory or on the battlefield, on the one hand, and their treatment in a
besieged city or fortress that was taken by assault, on the other, suggests an ex-
planation. Unmitigated brutality was reserved for the population of a city that
refused to surrender.

Henry, the commander, tells Harfleur that he will no longer be able to con-
trol his forces if it does not surrender, and that the leaders of Harfleur will bear
the responsibility for the resulting brutality. Of course, Shakespeare emphasizes
tape and its sheer horror. But in a speech which attracted feminist censure, his
Henry clearly places the responsibility on Harfleur should it resist his ultima-
tum. In terms of realpolitik, Henry tells Harfleur: “If you do not deal now with
me, your one protector able only for a time to maintain discipline among this
terrifying force, the force will run amok according to base human nature and I
cannot be responsible for the consequences.” But such arguments by their very
nature are likely to incite illegal conduct by the troops, and these claims of the
inevitable breakdown of discipline are thus both an evasion of the moral re-
sponsibility that should continue even into battle, and affirmative encourage-
ment to unrestrained war.

In modern international law, despite the prohibition of rape in the Lieber
Code, the protection of women’s rights to physical and mental integrity does
not appear to have been a priority. The Hague Regulations provide only indi-
rect protection against rape. The 1929 Geneva POW Convention contained a
general provision too vague to afford effective protection to women prisoners.
During the Second World War, rape was tolerated and even utilized in some
instances as an instrument of policy. In occupied Europe and in the occupied
Far East, tens of thousands of women were subjected to rape and forced to en-
ter brothels for Nazi and Japanese troops. Rape was not prosecuted in
Nuremberg, though it was in the Far East. Only in the Fourth Geneva Conven-
tion of 1949 was an unequivocal prohibition of rape established. Even so, viola-
tion of this prohibition was not listed among the grave breaches of the

307


Robbie Sabel

OF WAR 244 (1987); FREDERIC DE MULINEN, HANDBOOK ON THE LAW OF WAR FOR ARMED.
FORCES 113, International Committee of the Red Cross Geneva (1987); FRIEDRICH AUGUST
FREIHERR VON DER HEYDTE, AIR WARFARE, ENCYCLOPEDIA OF INTERNATIONAL LAW, Vol.
I, 82 Rudolf Berharde ed., (1992); L-C. GREEN, THE CONTEMPORARY LAW OF ARMED
CONFLICT 143 (1993); THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 295,
Dieter Fleck ed., (1995).

5. Rules of Air Warfare drafted by a Commission of Jurists at the Hague, December
1922-February 1923. Text taken from 32 AJIL (Part 1) (Official Documents) 21 (1938). The
text was never officially adopted as a treaty.

6. Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare,
General Report, 32 AJIL (Part I) 1, 21 (1938).

7. See report of debate in LA GUERRE AERIENNE, REVISION DES LOIS DE LA GUERRE, LA.
HAYE 1922-1923, PARIS, LA DOCUMENTATIONS INTERNATIONALE 193 (1930); William L.
Rodgers, The Laws of War Concerning Aviation and Radio, 17 AJIL (Part Il) 629 (1923).

8. Conference of Government Experts on the Reaffirmation and Development of
International Humanitarian Law Applicable in Armed Conflicts, IV, Rules Relative to
Behaviour of Combatants, Submitted by the International Committee of the Red Cross, 8
(1971).

9, NEW RULES FOR VICTIMS OF ARMED CONFLICTS, COMMENTARY ON THE TWO 1977
PROTOCOLS ADDITIONAL TO THE GENEVA CONVENTIONS OF 1949, 230, Michael Bothe, Karl
Josef Partsch, Waldemar A. Solf eds., (1982).

10. Hamilton DeSaussure, Recent Developments in the Laws of Air Warfare, ANNALS OF AIR
AND SPACE LAW, Vol. I-1976, at 33, 43. (Emphasis added).

11. Diplomatic Conference on the Reaffirmation and Development of International
Humanitarian Law Applicable in Armed Conflicts (Geneva 1974-1977).

12. 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949.

13, J.M.SPAIGHT, C.B., C.B.E., AIR POWER AND WAR RIGHTS 110 (3d ed., 1947).

14. Id. at 163. The 1976 US Air Force Manual states the same justification. See note 4 supra,
footnote 14. .

15, Alternatively, the more politically correct term “International Humanitarian Law
Applicable in Armed Conflict.”

16. Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflict,
Report Submitted by the International Committee of the Red Cross to the XXIst International
Conference of the Red Cross, 77 (1969).

17. Conference of Government Experts on the Reaffirmation and Development of
International Humanitarian Law Applicable in Armed Conflicts, IV, Rules Relative to
Behaviour of Combatants, Submitted by the International Committee of the Red Cross, 9
(1971).

18, CE/Com.III/C.3 appears in Annexes to Part Four of the Report of Commission III, at 105,
International Committee of the Red Cross, Conference of Government Experts on the
Reaffirmation and Development of International Humanitarian Law Applicable in Armed
Conflicts, Report on the Work of the Conference (1971).

19. Col. Z. Hadar, Main Statements of the Delegation of Israel, Conference of Government
Experts on the Reaffirmation and Development of International Humanitarian Law Applicable
in Armed Conflicts, Geneva, 24 May-12 June 1971, Israel Ministry of Justice, 25 (1971).

20. Article 36, International Committee of the Red Cross, Conference of Government
Experts on the Reaffirmation and Development of International Humanitarian Law Applicable

451


Making Law of War Treaties

further agreement with respect to submarines. On November 15, 1932, Ger-
man authorities approved a plan for rebuilding the German Navy, to include
construction of sixteen U-boats. Franklin Delano Roosevelt’s assumption of
the White House in January 1933 was followed almost immediately by the Na-
tional Socialists assuming power in Germany. On January 16, 1933, the U.S.
Congress passed the National Industrial Recovery Act, authorizing the Presi-
dent to use its funds to bring the Navy up to London Naval Treaty limits. Funds
were appropriated for thirty-two ships, including four submarines. On October
13, 1933, the German leadership approved a new naval construction plan, au-
thorizing larger U-boats while increasing construction of small U-boats to six
per month. The following day, having been allowed to return to the community
of nations, it withdrew from the World Disarmament Conference in Geneva.
Japan’s 1933 withdrawal from the League of Nations was followed by its formal
notice in December 29, 1934, ofits intention to withdraw from the 1922 Wash-
ington and 1930 London naval treaties, effective December 31, 1936. On
March 27, 1934, Congress passed the Vinson-Trammel Act, authorizing the
President to construct auxiliary naval tonnage adequate to bring the U.S.
Navy, by 1942, up to the limits established by the Washington and London na-

. val treaties. The twenty-eight submarines authorized were to be of the “maxi-
mum effective tonnage . . . that accords with Treaty provisions.”!08 On March
16, 1935, German Fithrer Adolph Hitler renounced the disarmament clauses
of the Treaty of Versailles. In April 1935 Germany publicly disclosed its inten-
tion to begin construction of submarines. Two months later Great Britain and
Germany signed a naval agreement permitting Germany to possess a total ton-
nage in combatant vessels, equal to thirty-five percent of the aggregate tonnage
of the British Commonwealth. Germany also was entitled to construct for its
use submarine tonnage equal to the total tonnage of the British Common-
wealth, with the agreement that it would not exceed 45 percent of the Royal
Navy’s submarine tonnage. Noting British acquiescence to Germany’s de-
mands in the Anglo-German Naval Agreement, on October 3, 1935, Italian
dictator Benito Mussolini invaded Abyssinia in open defiance of the League of
Nations.! This was the environment in which the second London Naval
Conference convened on November 9, 1935.

Second London Naval Conference. Preparation for the anticipated follow-on
London Naval Conference began one week after the end of the failed Geneva
disarmament conference. The United States and Great Britain began meetings
on June 18, 1934, that continued intermittently through December. Meetings
in London with Japan began on October 16, 1934. On October 24, Japan

356


Legal Implications of NATO’s Armed Intervention in Kosovo

May 6, as further elaborated in the international proposal accepted by
Milosevic and the Yugoslav Parliament on June 3, would form the basis of a po-
litical solution to the Kosovo crisis.

The Council demanded a “complete verifiable phased withdrawal from
Kosovo of all military, police and paramilitary forces according to a rapid time-
table, with which the deployment of the international security presence in
Kosovo will be synchronized.”TM It also requested the Secretary General to ap-
point “a Special Representative to control the implementation of the interna-
tional civil presence,” and for the Special Representative to “coordinate closely
with the international security presence to ensure that both presences operate
towards the same goals and in a mutually supportive manner.”95

The Council enumerated the responsibilities of the international security
presence which would include demilitarization of the Kosovo Liberation Army
and establishment of a secure environment in Kosovo, “in which refugees and
displaced persons [could] return home in safety, the international civil pres-
ence [could] operate, a transitional administration [could] be established, and
humanitarian aid [could] be delivered.”°6

The Council authorized the Secretary General

to establish an international civil presence in Kosovo in order to provide an
interim administration [there] under which the people of Kosovo can enjoy
substantial autonomy within the Federal Republic of Yugoslavia and which
[would] provide transitional administration while establishing and overseeing
the development of provisional democratic self-governing institutions to ensure
conditions for a peaceful and normal life for all inhabitants of Kosovo.97

This, indeed, was a tall order, and the Council detailed the main responsibil-
ities of the international civil presence. These would include the promotion of
the establishment of substantial autonomy and self-government in Kosovo,
performance of the basic civilian administrative functions for as long as re-
quired, the organization and overseeing of the development of provisional in-
stitutions for democratic and autonomous self-government and facilitation of a
political process designed to determine Kosovo’s future status. Also included
were the support of the reconstruction of key infrastructure and other eco-
nomic reconstruction, protection and promotion of human rights, and mainte-
nance of civil law and order, including establishing police forces.°8

After a slow start, the functions contemplated in the Council resolution are
being performed by the various actors. For example, the civilian and security
presences are in place, refugees have returned, and, although belatedly, the KLA
demilitarization is finally taking place.9? However, the dreams of establishing

324


Paul C. Szasz

ICRC pressed the organization to become a party to the 1949 Geneva Conven-
tions, especially to Convention IV Relative to the Protection of Civilian Per-
sons in Time of War,28 the United Nations raised two basic objections:?° (i)
although intergovernmental organizations can become parties to treaties with
States,30 including multilateral ones, the 1949 Geneva Conventions were only
designed, as appears from their final clauses, for participation by States; and (ii)
numerous provisions, especially of Convention IV, could only apply to States,
which can exercise full governmental functions, such as the arrest, prosecu-
tion, trial and imprisonment of offenders against the Convention—which the
United Nations is not equipped to do.3! Moreover, it was considered somewhat
unseemly to suggest that the United Nations might be “a party” to a military
conflict. Finally, the United Nations has pointed out that all the States that
contribute military units to a UN operation are in any event bound by the prin-
cipal IHL treaties, as well as by customary IHL, and the obligations of these
units thereunder are not diminished by the fact that they are in UN service.

Using similar arguments, the United Nations also resisted making any gen-
eral declaration of acceptance of any or all such treaties. When it was suggested
that the organization might in such a declaration indicate that its acceptance
does not apply to parts of the treaties that are inapplicable to anyone except a
sovereign State, the UN objected that such a selective acceptance might actu-
ally endanger or weaken the integrity of the instruments in question. Instead, it
had (as recalled below) in many instances undertaken to observe the “princi-
ples and spirit,” or more lately the “principles and rules,” of these conven-
tions.32 Outside observers considered this formulation inadequate, preferring
instead an undertaking to apply the instruments “mutatis mutandis.” The orga-
nization was unwilling to go that far.33

There have been a few instances in which the United Nations has, in effect,
acted as at least a temporary territorial sovereign, but fortunately in these in-
stances no combat of any sort took place that would have raised obligations un-
der IHL. The first of these situations arose when the organization facilitated
the transfer of West New Guinea from The Netherlands to Indonesia (October
1962 to April 1963), for which purpose it established the United Nations Secu-
rity Force in West New Guinea (West Irian) (UNSF).34 In the case of Namibia,
although the General Assembly had invalidated South Africa’s League of Na-
tions mandate over South-West Africa (Namibia), the actual arrangements by
the Security Council for the establishment of the United Nations Transition
Assistance Group (UNTAG)?° were such that the Council accepted the con-
tinuation of de facto South African control over the territory, to be exercised
under UNTAG supervision until the attainment of independence—thus no

511


The Normative Framework of International Humanitarian Law

Cognate provisions! further provide that certain fundamental protections
be observed: (1) humane treatment for detained persons, such as protection
from violence, torture, and collective punishment; (2) protection from inten-
tional attack, hostage-taking, and acts of terrorism of persons who take no part
in hostilities; (3) special protection for children to provide for their safety and
education and to preclude their participation in hostilities; (4) fundamental
due process for persons against whom sentences are to be passed or penalties
executed; (5) protection and appropriate care for the sick and wounded, and
medical units which assist them; and (6) protection of the civilian population
from military attack, acts of terror, deliberate starvation, and attacks against
installations containing dangerous forces. However, Article 4(2) of Protocol II
is narrow in scope: (1) it applies only to internal conflicts in which dissident armed
groups are under responsible command and exercise control over such a part of
the national territory as to carry out sustained and concerted military opera-
tions; (2) it has the effect of excluding many internal conflicts in which dissi-
dent armed groups occupy no significant territory but conduct sporadic guerrilla
operations over a wide area; (3) it does not guarantee all the protections of the
Conventions for international armed conflicts, e.g., prisoner-of-war treatment for
captured combatants; and (4) it does not contain provisions to punish offend-
ers—non-international conflicts are not covered by the definition of “grave
breaches” contained in the 1949 Geneva Conventions and its Protocol I.

The essential differences between the explicit obligations arising from the
two normative regimes deemed “grave breaches” and “violations” arise with re-
spect to the duties and rights associated with their enforcement. For “grave
breaches” the duties are: (1) to investigate; (2) to prosecute; (3) to extradite; and
(4) to assist through judicial cooperation of investigations; and the rights in-
clude (1) the right for any State to rely on universal jurisdiction to investigate,
prosecute and punish; (2) the non-applicability in national or international
processes of statutes of limitations;!©° (3) the non-applicability of the defense of
“obedience to superior orders;” 10? and (4) the non-applicability of immunities
including that of Head of State.!08 The same duties and rights are not explicit
relative to “violations” of common Article 3, and thus a normative gap exists
with respect to the enforcement consequences that arise out of transgressions
of these two regimes.!©9 There is, however, a notable trend among legal experts
to consider such formalism as historically dépassé and to consider the same en-
forcement consequences applicable to both legal regimes.

The formal distinctions discussed above, and the gaps that exist in their
scope, application, protection, and enforcement, are no longer tenable. The
“writings of the most distinguished publicists” !!° agree that there should be no

4


Shabtai Rosenne

individuals who allegedly violated the provisions of the Convention.6 He was
able to persuade his colleagues of what became known as the International
Committee of the Red Cross to circulate his proposal to the national commit-
tees, for consideration at a future Red Cross Conference.”

The gist of Moynier’s proposal was that as soon as war had been declared,
the President of the Swiss Confederation was to choose by lot three Powers
party to the Geneva Convention, excluding belligerents. The three govern-
ments, together with those of the belligerents, were to be invited to nominate

in “adjudicator” [arbitre]. Those five persons would constitute a tribunal. That
tribunal, however, would deal only with breaches of the Convention that had
been the subject of complaints addressed to it by interested governments. The
tribunal was to subject the facts to an adversarial inquiry and then present its
decision, for each individual case, as a verdict of guilty or not guilty. If guilt was
established, the tribunal was to pronounce a penalty, in accordance with provi-
sions of international law. The latter were to be the “subject of a treaty which is
complementary” to the proposed convention on the international judicial
body. The tribunal was to notify its judgments to interested governments.
These, for their part, were to impose on those found guilty the penalties that
had been pronounced against them. Another interesting provision was to the
effect that where a complaint was accompanied by a request for damages and
interest, the tribunal would be competent to rule on that claim and to fix the
amount of the compensation. “The government of the offender will be respon-
sible for implementing the decision.” In this scheme, what was permanent was
not the tribunal itself but the mechanism for the establishment of a tribunal in
time of war.

This proposal did not receive a warm welcome. A longish note by Moynier’s
friend and colleague, the Belgian jurist G. Rolin-Jaequemyns, gives the text
of replies received from several eminent internationalists of that epoch.
These included F. Lieber of the United States of America, A. Morin of France,
F. de Holtzendorff of Germany, John Westlake of Great Britain, and the
Asamblea espafiola de la Asociacion internacional para el secorso de los
heridos en campajia of Madrid—apparently the only national society to reply
to the circular.

Moynier’s proposal attacked several of the centrai problems that the idea of
a permanent international criminal court raises. Among these are the selection
of the judges, the law to be applied, jurisdiction both ratione personae and
tatione materiae and its scope ratione temporis, the enforcement of the decision,
and the relation between the criminal responsibility of an individual even
though the agent of the State and the international responsibility of the State

389


Chivalry in the Air?

where the airmen might land.4! The question, however, was raised during the
1972 Conference by one expert who

stressed that a flyer in distress could sometimes guide his parachute so as to
reach the territory controlled by his own forces and that, in this case, by
virtue of international law, he could be attacked like an enemy who was not
really hors de combat and who attempted to elude capture.4?

The text proposed by the ICRC in 1973 to the Humanitarian Law Confer-
ence reaffirmed the principle of protection of occupants of an aircraft in dis-
tress “when they are obviously hors de combat,” but omitted any explicit
reference to protection during descent.43 However, basing itself on military
manuals, the ICRC Commentary to the 1973 Draft stated that it was irrelevant
whether the aircraft occupants were due to land on territory controlled by
friendly or hostile forces.44 At the first session of the Humanitarian Law Con-
ference, the Israeli delegation proposed an amendment to the basic ICRC text,
which included the phrase that an airman in distress “would be considered hors
de combat during the course of his descent.”45

At the third session of the Humanitarian Law Conference, the Third Com-
mittee formed a working group to discuss the article dealing with airmen in dis-
tress. The Rapporteur, George Aldrich, reported that

A number of delegations stated that immunity from attack during descent would
be unrealistic in a case where it were clear that the airman would return to his
armed forces by landing in territory controlled by them or by an ally. Many other
delegations argued, on the contrary, that an airman descending by parachute
should be considered temporarily hors de combat for humanitarian reasons until
he reaches the ground.46

He consequently submitted the following proposal, with the disputed phrase
in square brackets:

1. No person parachuting from an aircraft in distress shall be made the object of
attack during his descent [unless it is apparent that he will land in territory
controlled by the party to which he belongs or by an ally of that party.]

The Egyptian delegation, which had proposed the phrase in square brackets,
decided to withdraw its proposal. Notwithstanding the Egyptian withdrawal, it
was put to vote at the insistence of Iraq and adopted by the Third Committee.4?
A number of delegations, including those of the United Kingdom, Federal Re-
public of Germany, Canada, Israel, and Belgium, consequently found

444


Naval Blockade

subject to capture not only during a breach of blockade and subsequent pursuit,
but also until they reached their port of destination.

Despite Danish and Swedish resistance that was in part successful in the last
decade of the 17th century, England and Holland did not give up their practice
of “fictitious blockades.”2! Moreover, England, especially in the 18th century,
maintained that the French and Spanish ports were blockaded by the mere
geographical situation of the English islands.?2 That practice, as well as the
stern application of the law of contraband, resulted in grave restrictions on
neutral merchant shipping. Therefore, affected States reacted by means of the
first armed neutrality.?3 In her famous declaration of February 28, 1780,24 the
Russian Czarina Katharine II claimed that blockades, in order to be legal,
needed to be effective:

Que pour déterminer ce qui caractérise un port bloqué, on n’accorde cette
dénomination qu’a celui oi il y a, par la disposition de la puissance qui l’attaque
avec des vaisseaux arrétés et suffisamment proches, un danger évident d’entrer.

While a considerable number of European States acknowledged the princi-
ple of effectiveness in their treaties,?> England continued its practice of ficti-
tious blockades.?6 After neutral merchant shipping had again been severely
affected by Anglo-French hostilities, some European powers reacted by a sec-
ond armed neutrality.2” Russia, Denmark, Sweden and Prussia, in their treaties
of December 14 and 16, 1800, confirmed the principles of the first armed neu-
trality, especially the requirement that a blockade needed to be effective.’8
This requires a blockade, in order to be binding, to be maintained by a force suf-
ficient actually to prevent access to the coast of the enemy. The blockading
power, according to those treaties, was obliged to inform neutral shipping of
the blockade.

The principle of effectiveness was later expressly confirmed in Article III,
paragraph 4, of the Anglo-Russian Treaty of June 17, 1801, to which Denmark
(October 23, 1801) and Sweden (March 30, 1802) acceded.?9 Still, the block-
ade of England effected by the Decree of Berlin of November 21, 1806,30 and by
the Decree of Milan of December 17, 1807,3! as well as the blockade of France
and its allies by Orders-in-Council of January 7 and November 11, 1807,32were
hardly in conformity with that principle, for neutral trade was interfered with
by all means at hand. The time of the continental blockade has, therefore, cor-
rectly been characterized as a decisive step backwards in the development of
international law governing the belligerent rights in naval warfare.>3

Despite the aspirations of some south-American States,*4 it was not until
the Crimean War (1854-1856) that the English and continental European

206


Appendix

The Spanish Dilemma. 12 World Affairs, 1946, 241-50.

Recent Issues at Lake Success. 1 World Affairs (new series), 1947, 340-56.

The Indian National Army Trials. 11 Modern Law Review, 1948, 47-69; 1 In-
dian Law Review, 1947, 290-313.

The Jurisdiction of the International Court. 11 Modern Law Review, 1948,
483-85.

Article 4 of the Charter. 11 Ibid., 1948, 485-87.

European Recovery: Constitutional and Legal Problems. 2 World Affairs (new
series), 1948, 373-86.

Law and Administration in Present-Day Japan. 1 Current Legal Problems, 1948,
188-205.

The Security Council in Action. 2 Year Book of World Affairs, 1948, 125-61.

Berlin and the United Nations. 3 World Affairs (new series), 1949, 23-42.

A New Departure in the Teaching of International Relations. 3 Ibid., 1949,
310-20.

The New Regime in Western Germany. 3 Ibid., 1949, 368-77.

The “Little Assembly.” 3 Year Book of World Affairs, 1949, 169-87.

Membership in the United Nations. 2 Current Legal Problems, 1949, 258-82.

Some Recent Developments in the Doctrine of International Law. 16 The So-
licitor, 1949, 15-7, 34, 39.

Selected Bibliography on International Law as Applied by International Courts
and Tribunals. Appendix 6 to Schwarzenberger’s International Law (2nd
ed.), Vol. 1, 1949, 631-67.

The Corfu Channel Case. 12 Modern Law Review, 1949, 505-8.

Reparation for Injuries. 12 Ibid., 1949, 508-11.

Purported Exercise of Belligerent Rights. 12 Modern Law Review, 1949,
108-10.

Human Rights and the Colour Problem. 3 Current Legal Problems, 1950,
236-62.

Human Rights and Colour Discrimination. 3 Intemational Law Quarterly, 1950,
422-6.

Recognition of Communist China. 3 Ibid., 1950, 418-22.

The Legality of “Jim Crow” Regulations. 3 Ibid., 1950, 590-6; 5 Indian Law Re-
view, 1951, 46-55.

The Trials of Some Minor War Criminals. 4 Indian Law Review, 1950, 249-75.

The Preventive Detention Act. 4 Ibid., 1950, 304-10.

Korea and the United Nations. 4 World Affairs (new series), 1950, 414-37.

The European Convention on Human Rights. 5 Ibid., 1951, 432-44.

The Universal Declaration of Human Rights. 24 Adult Education, 1951, 44-50.

566


Bin Cheng

Figure 3: Need to Introduce the Term “Outer Void Space”

OUTER
<OSPACE

OUTER VOID SPACE

The Meaning of “Peaceful”: A Legal Trompe-L’Oeil

In 1604, Sir Henry Wotton, one of King James I’s ambassadors, while on his
way from England to Venice to take up his post, wrote in the album of his friend
Christopher Fleckamore at Augsburg:

“Legatus est vir bonus peregre missus ad mentiendum reipublicae causa.”
Translated into English, it means:
“An ambassador is an honest man, sent to lie abroad for the good of his country.”

One sometimes wonders whether, especially since power politics in disguise
took over from open power politics after World War II,? some international
lawyers, spurred on perhaps at one time by the Cold War, when advising or as-
sisting their diplomatic colleagues in international discussions or negotiations, or
even in their own approach to the subject, have not consciously or uncon-
sciously allowed their calling to be abused in order to help create an illusion;
presumably for our benefit, that we are now all living in some brave and cozy
New World Order, free from all the restraints of the past.

Nowhere is this more clearly shown than the attempt to transfigure “peace-
ful” from meaning “non-military” to meaning “non-aggressive,” which appears
to have started with international space law.!0 We need to go back no further

85


M. Cherif Bassiouni

person concerned nor carried out in his interest, and which cause death to or
seriously endanger the health of such person or persons;

(xii) destroying or seizing the property of an adversary unless such
destruction or seizure be imperatively demanded by the necessities of the
conflict;

() Paragraph 2(e) applies to armed conflicts not of an international character
and thus does not apply to situations of internal disturbances and tensions, such
as riots, isolated and sporadic acts of violence or other acts of a similar nature. It
applies to armed conflicts that take place in a territory of a State when there is
protracted armed conflict between governmental authorities and organized
armed groups or between such groups.

The structure of the foregoing formulation of “war crimes” is thus divided
into four parts, reflecting the different sources of applicable law, conventional
and customary, and the two relevant contexts, of international and
non-international conflicts. Regrettably, these distinctions were maintained
even though the overlaps are glaringly evident. Suffice it to compare subpara-
graphs 2(b) and 2(e) which incorporate what the drafters believed to be cus-
tomary law, even though it also clearly reflects existing conventional law, to
wit, Protocol II.!34 The ICC missed the opportunity to eliminate these distinc-
tions and to focus on the protected persons and protected targets irrespective
of the conflicts’ context. But, then, the ICC was an exercise in political feasibil-
ity, not progressive codification. From this perspective, it must be said that the
definition of “war crimes” is as good as can be achieved at the present time, tak-
ing into account the diversity of concerns and interests. 135

Overlapping Prohibitions: Genocide, Crimes Against Humanity
and War Crimes

The crimes of genocide, crimes against humanity, and war crimes are con-
tained in the Statute of the ICTY, ICTR and ICC. As discussed above, the def-
inition and elements of these crimes differ slightly in the three statutes.

It is important to understand that in the common law’s approach, an ac-
cused’s conduct can be the basis of multiple criminal charges, all of which may’
be presented to the court and, of course, to the jury, simultaneously, even
though some of the charges may have different legal elements. The reason is
that the trier of fact, expected to be the jury, is free to determine whether the
facts, as presented and proven, satisfy the elements of any or all of the crimes
charged on the basis of the judges instructions on the law. This approach

21


Dispute Settlement under the 1997 Watercourses Convention

Provisions on the prevention and settlement of disputes are of particular im-
portance in the sphere of international water agreements for at least two rea-
sons. First, the use of water by several riparian States has to be based on a
certain compromise between the interests of the different parties, in particular
in areas that suffer from water scarcity. It is a case of distributive justice. In the
past, when watercourses served mainly or perhaps exclusively for navigation,
the danger of conflict was minimal since the use of the river by one ship did not
seriously hamper another vessel from sailing in its wake. Even fishing with tra-
ditional techniques failed to hinder fishing activities by another riparian. But
today, with the new and expanded non-navigational uses of watercourses on
the one hand, and the danger of pollution on the other hand, disputes among
neighbors that share an aquifer or a drainage basin system are almost
unavoidable.

Second, some conventions and other texts in this field (including the one
here under review) prescribe only general, rather flexible, principles, such as
“equitable and reasonable utilization and participation.” The implementation
of these general notions can easily lead to disagreement and conflict of inter-
ests—hence the need for conflict prevention, management, and settlement
mechanisms. In fact, a great number of conventions and other texts dealing
with international streams include provisions for those purposes.?

When studying dispute resolution in the context of international water law,
one has to bear in mind certain characteristics of this field.6 The questions and
problems are of a rather technical nature. Moreover, there is not only a need to
reconcile the interests of different States but also to find the right balance be-
tween different categories of uses.” In addition, the uses have to be adapted to
the requirement of protection of the environment.8 These characteristics, and
the fact that we are dealing with a joint watercourse, imply that every solution
has to be based on cooperation between the parties.” These features have led a
great number of experts to conclude that the management of international
river systems should be entrusted to permanent joint international commis-
sions, which would also deal with the settlement of disputes.!°

Before proceeding to study in detail the relevant provisions in the 1997 Wa-
tercourses Convention, it may be helpful to highlight its main rules: conflict
prevention by the exchange of information, !! consultation on equitable utiliza-
tion,!? notification concerning planned measures,!3 communication in reply,!+
and consultation.'5 If, nevertheless, a conflict occurs, it should be solved by ne-
gotiations upon the request of one of the parties.!6 If negotiations fail, the par-
ties “may jointly seek the good offices of, or request mediation or conciliation
by, a third party, or make use, as appropriate, of any joint watercourse

232


Ronald St. J. Macdonald

multilateral diplomacy, and the moral as well as legal strength of the Charter as
the only comprehensive covenant common to the universality of States, is un-
doubted. In my opinion, the Charter is not only the most important document
of the twentieth century, it is indeed one of the most important texts in the his-
tory of humankind; it stands as a steady light at the apex of the international le-
gal system giving guidance and inspiration to the life of “the great community,
the universal commonwealth of the world.”96

What then are the implications of the constitutional perspective of the
Charter of the United Nations and its extensions? The truth is that we have
only begun to examine them. While this vast terrain cannot be explored in this
paper, it needs to be emphasized, in conclusion, that even a brief overview of
the provisions of the Charter and its extensions indicates that the
constitutionalization of the principles of the Charter is in line with the
inclusionary ideals embodied in democratic constitutions and that legal supra-
nationalism can be understood as a complementary common feature of na-
tional constitutional traditions. Supranational constitutionalism is therefore to
be understood as a fundamentally democratic concept. It is a partial alterna-
tive, an addition, to the model of the constitutional nation-State; which re-
spects the State’s constitutional legitimacy, but at the same time clarifies and
sanctions the commitments arising from its interdependence.?”

In this essay I have tried to demonstrate that the constitutionalization of the
principles of the Charter of the United Nations is well under way and that the
process has important implications for the reconceptualization of our subject. I
hope colleagues will react to the challenge presented by the emergence of inter-
national constitutionalism in a non-statal world, and contribute to the explora-
tion of this topic in the future.98

Notes

1. See especially HERMANN MOSLER, THE INTERNATIONAL SOCIETY AS A LEGAL
COMMUNITY (The Hague: Sijthoff & Noordhoff, 1980). On the Europeanization of domestic
legal systems in Europe, see Christain Joerges, European Challenges to Private Law: On False
Dichotomies, True Conflicts and the Need for Constitutional Perspective, 18 LEGAL STUDIES 146
(1998).

2. Benedetto Conforti rightly observes: “One might say that the Charter was born in a
certain sense as a constitution granted (octroyée) [by the Great Powers]. The basic outline
sketched at Dumbarton Oaks was presented as unchangeable. Although the Conference could
decide by majority (two-thirds) on the wording of the individual articles, the participants knew
that any substantial change in the Dumbarton Oaks proposals would have resulted in the
rejection by the Great Powers, or by some of them, of the new Organization.” BENEDETTO

293


Naval Blockade

116. See the references in H. Wehberg, Seekriegsrecht, supra note 10, p. 156 ff; F. BERBER,
supra note 94, p. 190 f; F.D. v.Hansemann, Die Lehre von der einheitlichen Reise im Rechte der
Blockade und Kriegskonterbande, ZEITSCHRIFT FUR VOLKERRECHT UND BUNDESSTAATSRECHT,
Beiheft zum IV. Bande, Breslau 1910, p. 6 ff.

117. That expression was used in a German bulletin of September 13, 1939, printed in:
OBERKOMMANDO DER KRIEGSMARINE, supra note 57, No. 40. See also P.A. MARTINI,
BLOCKADE, supra note 97, p. 94 ff; A.C. BELL, DIE ENGLISCHE HUNGERBLOCKADE IM
WELTKRIEG 1914-15, Essen 1943, passim.

118. In his statement of September 26, 1939, the British Prime Minister said:

There have been many proposals founded in the highest motives that food should be
allowed to pass the blockade for the relief of these populations. I regret that we must refuse
these requests. Many of these valuable foods are essential to the manufacture of vital war
materials. Fats are used to make explosives. Potatoes make the alcohol for motor spi
The plastic materials now so largely used in the construction of aircraft are made of milk.
If the Germans use these commodities to help them to bomb our women and children
rather than to feed the populations who produce them, we may be sure imported foods
would go the same way, directly or indirectly, or be employed to relieve the enemy of the
responsibilities he has so wantonly assumed;

Parl. Deb. House of Commons Bd. 351, 1237, cited in: W.N. MEDLICOTT, THE ECONOMIC
BLOCKADE, Vol. I, London 1952, p. 666. See also P.A. MARTINI, BLOCKADE, supra note 97, p.
115.

119. The Australian delegate stated that “Article 48 [= Art. 54] does not prevent military
operations intended to control and regulate the production and distribution of foodstuffs to the
civilian population, and that it does not affect existing legal rules concerning the right of military
forces to requisition foodstuffs. Moreover, in the view of my delegation, nothing in Article 48
directly or indirectly affects existing rules concerning naval blockade.” CDDH Off. Rec. VI, 220.
The same position was taken by the Third Committee in its 1975 Report, CDDH Off. Rec. XV,
279.

120. H. Meyrowitz, Le protocole additionel I aux conventions de Genéve de 1949 et le droit de la
guerre maritime, REVUE GENERALE DE DROIT INTERNATIONAL PUBLIC 89 (1985), pp. 243-298,
270 ff., 276 ff; GJ.F. van Hegelsom, Introductory Report, supra note 89, p. 46. It is unclear
whether Levie shares that view. H.S. Levie, Means and Methods of Combat at Sea, SYRACUSE
JOURNAL OF INTERNATIONAL LAW AND COMMERCE 14 (1988), pp. 727 ff, 732. See also C.
Pilloud/). Pictet, in: ICRC, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977
TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, GENEVA 1987, no. 2092. These authors,
while rejecting the applicability of Article 54 to naval blockades, apply Article 70 on relief
actions. There is, however, some contradiction, if these authors also hold (ibid., no. 2095) that “it
should be emphasized that the object of a blockade is to deprive the adversary of supplies needed
to conduct hostilities, and not to starve civilians.” Obviously, they were eager to avoid any
contradiction to the Report of the Third Committee.

121. M. Bothe, Commentary on the 1977 Geneva Protocol I, in: N. Ronzitti, supra note 47, p.
764; E. RAUCH, PROTOCOL ADDITIONAL, supra note 54, p. 93 f. A more cautious approach is
taken by W.A. Solf, in: M. BOTHE/K.J. PARTSCH/W.A. SOLF, NEW RULES FOR VICTIMS OF
ARMED CONFLICTS, The Hague et al., 1982, p. 338: “The Committee III report disclaims any
intention to change the law of naval blockade, citing the provisions of Art. 49(3), although,

228


The Initiation, Suspension, and Termination of War

The phenomenon of debellatio has been recognized in many instances in
the past.!!7 Some commentators contend that a debellatio of Germany oc-
curred at the end of World War II,!!8 following the unconditional surrender
of the Nazi armed forces.!!9 However, the legal status of Germany in the im-
mediate post-War period was exceedingly complicated.!20 The position was
so intricate that, in the same Allied country (the United Kingdom), different
dates were used for different legal purposes to mark the termination of the war
with Germany.!2!

iii. Unilateral Declaration

Just as war can—and, under Hague Convention (III), must—begin with a
unilateral declaration of war, it can also end with a unilateral declaration. !22 In
this way the United States proclaimed, in 1951, the termination of the state of
war with Germany.!23

The technique of a unilateral declaration can be looked upon not as an inde-
pendent mode for bringing war to a close, but as an offshoot of one of the two
preceding methods. State A can impose war on State B by a unilateral declara-
tion or act. Just as State B is unable to prevent State A from submerging them
both in war, State B cannot effectively terminate the war when State A is bent
oncontinuing it. A unilateral declaration by State B ending the war is an inane
gesture, if State A is able and willing to go on fighting. “For war can be started
by one party, but its ending presupposes the consent of both parties, if the en-
emy state survives as a sovereign state.”!24 A unilateral declaration by State B
promulgating that the war is over has a valid effect only if State A is either com-
pletely defeated (undergoing debellatio) or is willing to abide by the declara-
tion.!25 If both State A and State B exist at the end of the war, both must agree
to finish it. Yet, such an agreement may consist of a formal declaration by State
Band the tacit consent of State A (or vice versa).!26

IM. The Suspension of Hostilities

(a) Different Types of Suspension of Hostilities

A suspension of hostilities may evolve de facto when no military operations
take place. A respite of this nature may endure for a long period of time. But
since neither belligerent is legally committed to refrain from resuming hostili-
ties, the fighting can break out again at any moment without warning. 27

More importantly, belligerents may assume an obligation de jure to abstain
from combat in the course of a war (which goes on). A number of terms are
used to depict a legal undertaking to suspend hostilities: (i) truce, (ii)

146


Ved Nanda

81. Id., para. 5.

82. Security Council Calls for Access for UN and Other Humanitarian Personnel Operating in
Kosovo and Other Parts of Federal Republic of Yugoslavia, U.N. Press Release SC/6677, May 14,
1999, at 5.

83. Id.

84. Id. at 6.

85. See U.N. Doc. $/1999/523, May 7, 1999, for the text of the letter.

86. China, at Security Council Meeting, Registers Strongest Possible Protest Over Attack Against
Its Embassy in Belgrade, U.N. Press Release SC/6674, May 8, 1999, at 2.

87. Id. at 3.

88. Id.

89. See id.

90. See id. at 3-8.

91. Supra note 4.

92. Id., para. 5.

93. Id., para. 1 & annexes 1, 2. See also supra notes 63, 64, 66, 67.

94. Id, para. 3.

95. Id., para. 6.

96. Id., para. 9.

97. Id., para. 10.

98. Id., para. 11.

99. See, e.g., Carlotta Gall, Kosovo Rebel Leader Basking in Warmth of Deal’s Reception, N.Y.
TIMES, Sept. 22, 1999, at A8, col. 1; Carlotta Gall, Kosovo Liberation Army Yields, Agreeing to Ci-
vilian Role, N.Y. TIMES, Sept. 21, 1999, at A8, col. 3; KLA Signs Weapons Pact, Online Network,
BBC News, Sept. 20, 1999, <http://news2.thls.bbc.co.uk/hi/english/world/europe/newsid
452000/452915.stm>.

100. ICJ, Case Concerning Legality of Use of Force (Yugoslavia v. Belgium); Request for the
Indication of Provisional Measures, General List No. 105, June 2, 1999, reprinted at 38 LL.M.
950, 950 (1999) [hereinafter Yugoslavia v. Belgium].

101. ICJ, Legality of Use of Force (Yugoslavia v. Canada), reprinted at id. at 1037 (1999).

102. IC), Legality of Use of Force (Yugoslavia v. France), reprinted at id. at 1059.

103. IC), Legality of Use of Force (Yugoslavia v. Germany), reprinted at id. at 1075.

104. IC], Legality of Use of Force (Yugoslavia v. Italy), reprinted at id. at 1088.

105. IC], Legality of Use of Force (Yugoslavia v. Netherlands), reprinted at id. at 1101.

106. ICJ, Legality of Use of Force (Yugoslavia v. Portugal), reprinted at id. at 1126.

107. ICJ, Legality of Use of Force (Yugoslavia v. Spain), reprinted at id. at 1149.

108. ICJ, Legality of Use of Force (Yugoslavia v. United Kingdom), reprinted at id. at 1167.

109. ICJ, Legality of Use of Force (Yugoslavia v. United States), reprinted at id. at 1188.

110. See id. at 951, para. 3.

111. Id. at 953, para. 7.

112. See id. at 954.

113. Id. at 955-956, paras. 16-19.

114. Id. at 956, para. 21.

115. ICJ Statute, art. 36, para. 2.

116. Yugoslavia v. Belgium, supra note 100, at 957, para. 28. See also id., paras. 24-27.

117. Id, at 957-958, para. 29.

118. Id. at 961-962, para. 51(1).

119. Id. at 958-960, paras. 34-41.

335


Ronald St. J. Macdonald

and commitment to, one single contemporary international law system appli-
cable to all countries of the world based on the purposes and principles of the
Charter as well as the Five Principles themselves. In 1984, Deng Xiaoping de-
clared the Five Principles “the best means for handling relations between na-
tions. Other forms, such as the ‘big family,’ ‘group politics’ and ‘spheres of
influence’ would bring about contradictions and increase international tension.”

Declaration 1803 (XVII) of 1962 on Permanent Sovereignty over Natural
Resources. Resolutions and declarations are also used by the General
Assembly to state principles that are not necessarily included in the Charter,
although they may be derived from it, and are not yet established opinio juris. In
this way, the General Assembly may successfully initiate a process of creating
new norms. That was the case with the turbulent debates of the 1960s and 70s
on permanent sovereignty over natural resources, which concerned the
still-unresolved question of distributive justice in the world community.

Declaration 2749 (XXV) of 1970 on the Principle Applicable to the
Seabed and the Ocean Floor, and the Subsoil thereof, Beyond the Limits of
National Jurisdiction. This document represents a perfect example of the
double effect of a resolution of the General Assembly in the law-creating
process. Declaration 2749 declared the ocean seabed the common heritage of
mankind and Resolution 2750 convened an international conference to codify
a new regime for the ocean seabed. The area of concern for the conference was
soon extended to cover virtually all marine related norms. Almost nine years
after the conference began, the United Nations Convention on the Law of the
Sea was adopted on December 10, 1982. By then, several of the norms laid
down in the convention, such as the creation of the exclusive economic zone
and the relative economic rights of coastal States, had already become
principles of international customary law.

The system created by the Law of the Sea Convention and subsequent in-
struments is notoriously complex; it includes rules of procedure of a constitu-
tional nature, such as the creation of a High Authority and a tribunal for the
settlement of disputes. Further, one of the subsequent instruments, the Agree-
ment for the Implementation of the Provisions of the United Nations Conven-
tion on the Law of the Sea of 10 December 1982 Relating to the Conservation
and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks
of 28 July 1994, expressly creates precise obligations erga omnes, binding also on
non-members of the Convention.*? I will return briefly to this vast topic under
the heading “other constitutional orders,” below.

281


Jus Pacis ac Belli?

and to mobilize opinion in neutral countries. What could better serve this pur-
pose than a foolproof case regarding the justice of one’s own cause? In the field
of intellectual warfare, which is not a twentieth century invention, the author-
ity of a Victoria, Gentili or Grotius is worth a good many cannons and battal-
ions, and, as has been shown, it was futile to attempt to apply their doctrines in
accordance with the requirements of power politics. The implications of these
theories, however, were still more far-reaching. The naturalists conveniently
lent their authority to the thesis that some rather disconcerting passages in the
Gospel on war were not to be taken too literally, and that war, provided that it
was just, was authorized both by divine and natural law.?? Thus, seemingly, the
naturalists consider war as an exceptional remedy. They do so, however, in a
manner which does not actually hamper the actual supremacy of force in the in-
ternational society, and they provide Statesmen with an ideological cover, highly
appreciated in ages characterized by glaring gaps between the religious and ethi-
cal standards of individual morality and the requirements of power politics.?3

The conclusions reached so far may be summarized as follows: The natural-
ists derive their conceptions of peace and war from their vistas of the structure
of international society either by abstractions from reality or by wishful specula-
tions on human nature. For the “realistic” school of naturalists, war is the
over-riding phenomenon, and peace can be defined only negatively by refer-
ence to war. The object of the “idealistic” school of naturalists to limit war to an
exceptional remedy is frustrated by their own casuistry. It deprives the doctrine
of the bellum justum of objective criteria between just and unjust wars and in-
vites subjectivism and abuse by State practice. Thus, their doctrine degener-
ates into a mere ideology of power politics. The insistence of naturalist writers
on the element of bellum publicum in their definitions of war corresponds to the
interests of rising absolutism, as does their postulation for a declaration of war.
Therefore, during the period of early absolutism this part of their doctrine
meets with the full approval of State practice.

Peace and War in the Modern Doctrine
and Practice of International Law

The modern approach to the problem of peace and war is a medley of doc-
trines and assumptions. They may be discussed under three headings: The doc-
trine of the normality of peace, the doctrine of the alternative character of
peace and war, and the doctrine of war as a status and objective phenomenon.

488


The Normative Framework of International Humanitarian Law

71. It is also believed that in the Yugoslav conflict the U.S. had satellite and other
air-reconnaissance pictures and probably recorded air-waves and telephone communications
that would establish certain facts constituting any one of the three major crimes mentioned, but
for political reasons had elected not to make them available to the ICTY Prosecutor.

72. See sources cited supra note 60, particularly ABRAMS & RATNER.

73. In the Arabian Gulf, the U.S. has amassed substantial documentation of war crimes
committed by the Iraqi regime against Kuwaitis, Iraqi Kurds and Shia, and Iranians, but the
documentation has not yet been made public. See Indictment and Prosecution of Saddam Hussein,
S. Con. Res. 78, 105th Cong. (March 13, 1998). See also 144 CONG. REC. NOS. 12-13 (daily ed.
Feb. 23, 1998) (Senate Resolution 179, Relating to the Indictment and Prosecution of Saddam
Hussein for War Crimes and Other Crimes Against Humanity). See also War Crimes: Hearing
before the Subcommittee on Intemational Law, Immigration, and Refugees of the Committee on the
Judiciary, House of Representatives, 102d Cong., Ist Sess. (Mar. 13, 1991); International Criminal
Court, SENATE REP. NO. 103-71 (1993); Senate J. Res. 93, 103d Cong. (1993); Senate J. Res.
32, 103d Cong. (1993).

74. See Final Report of the Commission of Experts Established Pursuant to Security Council
Resolution 780 (1992), U.N. SCOR, 49th Sess., Annex, U.N. Doc. A/1994/674 (1994); Annexes
to the Final Report, U.N. SCOR, 49th Sess., U.N. Doc. $/1994/674/Add.2 (1994); Bassiouni,
supra note 69.

75. Craig R. Whitney, Vichy Official Found Guilty of Helping Deport Jews, N.Y. TIMES, Apr. 2,
1998, at A8.

76. See generally Jacques Francillon, Crimes de guerre, Crimes contre lhumanité,
JURIS-CLASSEUR, DROIT INT'L, FASCICULE 410 (1993); Leila Sadat Wexler, National
Prosecutions for International Crimes: The French Experience, in 3 INTERNATIONAL CRIMINAL
LAW (M. Cherif Bassiouni ed., 2d rev. ed. 1999) [hereinafter BASSIOUNI, ICL]; Leila Sadat
Wexler, Prosecutions for Crimes Against Humanity in French Municipal Law: International
Inplications, in ASIL PROCEEDINGS 270-76 (1997).

71. See, e.g., Mark J. Osiel, Ever Again: Legal Remembrance of Administrative Massacre, 144 U.
PA. L. REV. 463 (1995).

78. See Final Report, supra note 74.

79. Id.

80. Id. See also M. Cherif Bassiouni, Investigating Serious Violations of International
Humanitarian Law in the Former Yugoslavia (DePaul University, Occasional paper); Meron, supra
note 6. See also the indictment of Karadzié and Mladié, in which the judge referred to “ethnic
cleansing” as a form of genocide, (IT-95-18-1).

81. See The Convention on the Prevention and Punishment of the Crime of Genocide, supra note 5.

82. See Genocide Convention, supra note 58, art. II.

83. See ICTY Statute, supra note 33, art. 4.

84. See ICTR Statute, supra note 35, art. 2.

85. ICC Statute, supra note 13, art. 2.

86. See Genocide Convention, supra note 58.

87. See von Hebel & Robinson, supra note 52.

88. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, Aug. 12 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31, 4 Bevans 853 (entered
into force Oct. 21, 1950), (entered into force with respect to the United States Feb. 2, 1956),
reprinted in 2 Weston, supra note 2, at II.B.11; Geneva Convention for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949,
6 UST. 3217, 75 U.N.T.S. 85 (entered into force Oct. 21, 1950) (entered into force with

46


The History and Status of the International Criminal Court

At none of these conferences was there even a suggestion made that an inter-
national criminal court be established.

In 1919, the Preliminary Peace Conference of Paris created a Commission
on the Responsibilities for the War, a sub-commission of which made a list of
thirty-two specific war crimes.? However, when ultimately drafted, the provi-
sions of Article 14 of the Treaty of Versailles? with respect to the future estab-
lishment of a Permanent Court of International Justice did not contemplate
that the Court would enjoy any criminal jurisdiction.t Paragraph 25 of the
Annex to Article 50 of the Treaty of Versailles, dealing with the Saar Basin,
provided for the establishment by the Governing Commission of a “civil and
criminal court” which was to hear appeals from the decisions of the then exist-
ing courts of the Saar Basin. The Governing Commission was responsible “for
settling the organisation and jurisdiction of the said court” and “Justice was to
be rendered in the name of the Governing Commission.”> Whether this can be
called an “international criminal court” is doubtful.

What is sometimes considered to be the first ad hoc international criminal
court of modern times was the court created by Article 227 of the Treaty of
Versailles.® It provided as follows:

The Allied and Associated Powers publicly arraign William II of
Hohenzollern, formerly German Emperor, for a supreme offence against
international morality and the sanctity of treaties.

A special tribunal will be constituted to try the accused, thereby assuring him
the guarantees essential to the right of defence. It will be composed of five judges,
one appointed by each of the following Powers: namely, the United States of
America, Great Britain, France, Italy and Japan.

In its decision the tribunal will be guided by the highest motives of
international policy, with a view to vindicating the solemn obligations of
international undertakings and the validity of international morality. It will be its
duty to fix the punishment which it considers should be imposed.

The Allied and Associated Powers will address a request to the Government
of the Netherlands for the surrender to them of the ex-Emperor in order that he
may be put on trial.

As the Netherlands had earlier granted the ex-Kaiser asylum and refused
the demands for his extradition made by France and Great Britain, he was
never tried.”

248




Sharon A. Williams

judicare, that is, to extradite or to submit the case toa State’s own authorities for the purposes of
prosecution.

88. See, e.g., Article 6(1) (a) of the Convention for the Suppression of Unlawful Acts Against
the Safety of Maritime Navigation (1988), 27 I.L.M. 672. Note L. Sadat Wexler (ed.), Model
Draft Statute for the Intemational Criminal Court, (1998), 13 NOUVELLES ETUDES PENALES 25,
includes also the State of registration of spacecraft or space stations.

89. Once the preconditions of Article 12(2) have been met, other States Parties are obliged
to cooperate with the ICC.

90. 1969, 1155 U.N.T.S. 331.

91. Note United States v. Fawaz Yunis, 924 F.2d 1086 (D.C. Cir., 1991). Here the United
States prosecuted Yunis on the basis of the passive personality principle for hijacking and hostage
taking. Lebanon, the State of nationality of the accused was not a State Party of either the
International Convention Against the Taking of Hostages, supra note 23, or the Hague
Convention for the Suppression of Unlawful Seizure of Aircraft, supra note 23.

92. The argument that such delegation is either illegal or unprecedented has been put
forward recently by D. Scheffer, International Criminal Court: the Challenge of Jurisdiction, supra
note 1.

93. SS Lotus (France v. Turkey) (1927), P-C.LJ. Ser. No. 10.

94. See, e.g., the 1973 Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons, Including Diplomatic Agents, 1977 Can. T.S. No. 43, Article
3 (1) (b).

95. See Article 7[4], Article 9, option 1, para. 3, option 2, para. 4, and further option para. [2].

96. Article 7 ter.

97. Article 7 ter.

98. Lawyers Committee for Human Rights, The Rome Treaty for an ICC: A Brief Summary of
the Main Issues, ICC BRIEFING SERIES, vol. 2 (1).

99. T. Meron, The Court We Want, WASHINGTON POST, October 13, 1998, reprinted in
A.S.ILL. NEWSLETTER, Nov.—Dec. 1998, 9, and D. Scheffer, America’s Stake in Peace, Security
and Justice, A.S.1.L. NEWSLETTER, Sept.—Oct. 1998, 1, where he states that the ICC “could not
‘on its own prosecute Saddam for massacring his own people.”

100. Senegal, Trinidad and Tobago, San Marino, Italy, Fiji, Ghana, Norway, Belize,
Takjikistan and Iceland.

101. R. Wedgewood, The International Criminal Court: An American View (1999), 10
EUROPEAN JOURNAL OF INTERNATIONAL LAW 97, 102.

102. Ibid.

103. G. Hafner, K. Boon, A. Rubesame and J. Huston, A Response to the American View as
Presented by Ruth Wedgewood (1999), 10 EUROPEAN JOURNAL OF INTERNATIONAL LAW 108,
119.

104. Statement by Secretary of State Madeleine Albright, as reported in The Deseret News
(Salt Lake City), May 6, 2000, p. A4.

105. Article 121.

106. Statement of Ambassador David Scheffer, as reported in The Deseret News (Salt Lake
City), May 6, 2000, p. A4.

563


Appendix

War Crimes, Extradition and Command Responsibility. 14 Israel Yearbook on
Human Rights, 1984, 17-53.

Reflections upon the Kahan Commission Report. 7 Middle East Focus, 1984,
No. 1, 7-10, 20.

The Law of Armed Conflict and the Enforcement of International Criminal
Law. 22 Canadian Yearbook of International Law, 1984, 3-25.

Terrorism and its Responses. 8 Terrorism, 1985, 33-77.

What is Life: What is Human? 9 The Alberta Doctors’ Digest, 1984, 4-8; 10/11
Legal Medical Quarterly 1986/87, 1-4.

The Rule of Law and the Use of Force—Falklands and Grenada, Canadian.
Council on International Law, 1984 The Peaceful Settlement of Disputes,
253-280; 24 Archiv des Vélkerrechts, 1986, 173-195.

Recent Literature on Soviet Law, 26 Canadian Slavonic Papers, 1984, 351-5.

International Law and Peace: An Analysis of Specific Issues (in Ko-
rean—Kukjapop Kwa Punghwa Sasun), 5 Hyundai Sahoe (Modern Society,
Pub. Modern Sociological Institute, Seoul), 1985, 26-40.

Is There a Universal International Law Today? 23 Canadian Yearbook of Inter-
national Law, 1985, 3-33.

La guerre et ie droit. 16 Revue de Droit, de Universite de Sherbrooke, 1985,
479-93.

World Citizenship and International Law. In Choue, Textbook on World Citi-
zenship, 1986, 195-258.

Kokusai Kaiko Jinken (in Japanese—Int’l Criminal Law and Human Rights).
19 Waseda University Comparative Law Review, 1986, No. 2, 111-23.
Lawful and Unlawful Weapons and Activities. In Chang, Kankoku Kokusai
Hogaku Shomondai (Korea and International Law: Festschrift for Lee

Han-Key), 1986, 457-86.

International Legal Issues Involved with the Republic of Korea, 1965-85. 27
Korea Law Journal, 1986, 158-87.

International Court of Justice. 1 World Encyclopedia of Peace, 1986, 469-71.

International Criminal Law. Ibid., 471-4.

International Judicial Settlement. Ibid., 476-9.

International Law. Ibid., 479-82.

Pacific Settlement of international Disputes. 2 Ibid., 147-9.

World Politics and International Law (review article). 22 Columbia Journal of
Transnational Law, 1986, 199-212.

Chemical Weapon Verification and International Law. In O’Manique, Multi-
lateral Approaches to Verification, 1986, 17-22.

575


Sharon A. Williams

where the situation was referred by a State Party to the Court or where the
Prosecutor initiated a prosecution proprio motu was that both the custodial
State and the State where the crime occurred consented to the jurisdiction of
the ICC by being States Parties. Concern had been expressed that to get the
cumulative consents would be difficult. On June 19, 1998, the proposal was
amended to delete the custodial State.

The United States Proposal. In cases where a situation had been referred to the
ICC by a State Party or where the Prosecutor had initiated an investigation, the
United States supported® as fundamental the consent of the territorial State
and the State of nationality of the accused person, or at a minimum only the
consent of the State of nationality.© The United States insisted that the ICC
have no jurisdiction over the nationals of States that had not become a Party to
the Statute. It was argued that to do so would violate Article 34 of the 1969
Vienna Convention on the Law of Treaties, as treaties cannot be binding on
non-Party third States. The position was that it would not be acceptable for
United States citizens to be accountable in a court not accepted by the United
States. The United States made it clear that it could not adhere to a text that
allowed for United States forces operating abroad to be brought even
conceivably before the ICC, where the United States had not become a Party
to the Statute. The United States position was that this would derogate from
the ability of the United States to act as a major player in multinational
humanitarian and peacekeeping operations. Protection against frivolous and
arbitrary charges and other forms of inappropriate investigations and
prosecution was called for. It is worth observing, however, that the passive
personality basis of jurisdiction included in the Korean proposal would have
been a protective deterrent for such forces in giving jurisdictional acceptance
to the State of nationality of victims.

Ofcourse, the United States position still left open referral of a situation by
the UN Security Council acting under Chapter VII of the Charter as pro-
vided for in Article 13(b) of the Statute, subject of course to the veto of one of
the P5. This, in the United States’ view, was the only way “to impose the
court’s jurisdiction on a non-Party State.”6? The proposal would have resulted
in an ICC controlled by the Security Council, a type of permanent ad hoc
criminal tribunal.® -

The United States position on the indispensable requirement of the accep-
tance of the State of nationality of the accused was not acceptable to the over-
whelming majority of States as it was seen as causing a probable paralysis of the ICC.
The U.S. concerns were not assuaged by the provisions on complementarity

547


Christopher Greenwood

recent years. In contrast to those cases, such as the Entebbe raid, in which
States have intervened by force in the territory of other States in order to pro-
tect their own citizens, humanitarian intervention entails intervention in order
to protect the nationals of the target State from their own government or, in
some cases, from events occurring in the target State which the government of
that State (if one still exists) is unwilling or unable to control. The use of force
for this purpose cannot be accommodated, even within the elastic limits of the
right of self-defence. If humanitarian intervention is to be considered lawful,
therefore, it must be because of the existence of a legal basis for using force sep-
arate from the right of self-defence.

It now appears to be widely accepted that the Security Council has the
power to authorize intervention on humanitarian grounds. Since 1990, the Se-
curity Council has done so in relation to Somalia and Haiti, as well as giving
subsequent approval to the ECOWAS operation in Liberia, while humanitar-
ian intervention was one of the features of the United Nations operations in
the former Yugoslavia between 1991 and 1995. Such actions have required the
Security Council to take a broader view of what constitutes a threat to interna-
tional peace and security,!8 extending it from situations involving the use of
force between States to conflicts within a State. That was an easy step to take
where the conflict within a State affected a neighbouring country or threat-
ened to spill over an international boundary (as happened in Liberia).

In both the Somalia and Haiti cases, however, the Council acted at a time
when the threat to other States was minimal, and it seems that it was the situa-
tion within those two States which was considered to be the threat to interna-
tional peace. In the Somalia case, the Council effectively admitted as much
when it determined, in the Preamble to Resolution 794 (1992), that “the mag-
nitude of the human tragedy” within Somalia posed a threat to international
peace and security. No mention was made of any effect upon neighbouring
States and, in fact, at the time that that resolution was adopted, the effect upon
neighbouring States was minimal since the fighting was contained within So-
malia and few Somalis were able to flee the country. In the case of Haiti, the
flow of refugees to neighbouring States was undeniably a political problem, but
it could not be said to have threatened the peace of the region or the security of
any other State.

A more difficult question is whether there are any circumstances in which it
is lawful for a State, or group of States, to intervene by force on humanitarian
grounds without the authorization of the Security Council. This question has,
of course, received much attention as a result of the NATO operations over
Kosovo which began in March 1999.

185


Alfred P. Rubin

This raises problems of an even deeper and more serious type: Exactly what
is the scope of authority given to the institutions created by the ICC Statute? Is
the world really willing to give that authority to those bodies?

First is the Prosecutor. His authority is to initiate investigations when there
is “a reasonable basis to believe that a crime [sic] within the jurisdiction of the
Court has been or is being committed; . . . [unless] (c) there are nonetheless
substantial reasons to believe that an investigation would not serve the inter-
ests of justice.”? The word “justice” is used in other provisions of the Statute.
But nowhere does it appear that the word “justice” is conceived in its normal
sense as essentially a word in the moral order, in which it has many different
meanings. Aristotle addresses the concept of “justice” in his Nicomachean Eth-
ics!0 and isolates several different meanings, such as “commutative justice,”
“distributive justice” and “rectificatory justice.” Each overlaps the others in
part but not completely. To Aristotle, “law” was not necessarily related to “jus-
tice.” “Natural law” was not related to morality and was self-enforcing, like the
law of gravity.!! As to the positive legal order, it seemed obvious to Aristotle
and seems obvious today that various tribunals have different conceptions of
“justice” and apply them differently with no clear uniformity.!2 And each party
before any of these tribunals seeks “justice” defined in ways different from the
“justice” sought by other parties under their own definitions. For example, ifa
child is killed by some “national liberation” group, there will be parents who in-
sist that “justice” is not done unless all those involved in the group are, to do
“distributive justice,” condemned to death; others will be satisfied that “com-
mutative” justice has been done if only the direct perpetrator(s) be con-
demned. Still others will argue that “commutative justice” can be done only ifa
child of the perpetrator is killed by the State; others that “death” is a commuta-
tive remedy that is “unjust” because it cannot serve to rectify the injury, which
is not rectifiable but perhaps compensable, which is as close as reality can come
to “rectificatory justice” in the circumstances. Aristotle himself proposes math-
ematical ratios to measure rectificatory and commutative “justice” (which at
least one of his translators calls “reciprocity justice”). The examples can be
multiplied ad infinitum. What this all means is that the Prosecutor is given the
authority to determine very important things, like “justice,” that are not capa-
ble of determination to universal satisfaction. It explains in part why Thomas
Jefferson once commented, “I tremble for my country when I reflect that God is
just.”13

The argument that lawyers are trained to grapple with such dilemmas and
are more trustworthy than politicians to come to generally acceptable answers
has many flaws. First, lawyers are people like everybody else and disagree over

425


Charter of the United Nations as a World Constitution

understanding among themselves, feel not really restrained in their deci-
sion-making by provisions of the Charter or by rules of international law if it
suits their combined interests, and they are apparently able to persuade other
Council members to fall into line.”

Other Constitutional Orders

Thave already referred to regional arrangements or agencies and the inviting
possibilities for decentralization, including the delegation of inter-governmental
powers, that are inherent in the overall concept of order envisaged in the Char-
ter of the United Nations. To complete the delineation of the legal landscape it is
now necessary to say something about autonomous subsidiary legal orders. In this
respect, I am unable at the present time to take even a cursory glance at the
World Trade Organization, which is creating an economic constitution for the
world. However, I will briefly refer to the United Nations Convention on the
Law of the Sea, which represents a Constitution for the Ocean, and the Euro-
pean Union, which constitutes a novel juridical order of international legal char-
acter. Both must be taken into account in any portrayal of the nature and scope
of the Charter.

Ocean Regimes. The Law of the Sea Convention, a milestone in the history of
international relations, clarified or replaced much of the old law of the sea and
introduced new concepts in international law.5!

The Convention was adopted at the Third United Nations Conference on
the Law of the Sea (1973—-1982)in Montego Bay, Jamaica, on December 10,
1982, after nine years of negotiations. There were 130 votes for and 4 against
the Convention, with 17 abstentions. The final act of the Conference was
signed by some 150 States and entities, including the European Union. The
convention entered into force on November 16, 1994.

Consisting of 17 Parts in 320 Articles, plus 9 Technical Annexes, the Con-
vention is organized into three major divisions. The first, comprising Parts I-X,
is territorial in character. It creates three new types of ocean space: the exclu-
sive economic zone, the archipelagic State with its archipelagic water, and the
international seabed area. “The Area” lies beyond the limits of national juris-
diction and is governed by “the Authority” on the basis of the principles of the
Common Heritage of Mankind.

Part XI defines this regime with its combination of functional and territorial
characteristics. It is “territorial” in that the Area is a territoriality to be delin-
eated by boundaries, by the year 2004, ten years after the entry into force of the

284


The Law of Armed Conflict as Soft Power

occupation.2° In both cases, the law acts to permit military forces to operate
without undue constraints.

Thus, strategic choice, even for matters involving the law of armed conflict,
requires clarity of goals. It is only after this has been achieved that support for
or opposition to a particular normative regime can possibly make sense, for it is
insensible to ignore threats to interests or oppose those proposals which ad-
vance one’s ultimate interests.

Step 4: Value the Objectives. Once objectives that support the respective
national interests are identified, they must be valued. In most genres of
strategic choice, this process takes the form of ordering, that is, developing a
hierarchy of need as to a State’s various objectives. At the risk of gross
oversimplification, such ordering is often mandated because the resources
available to pursue objectives are finite; the issue, then, is the allocation of
scarce resources.>! A State may be forced, for instance, to choose between
buying fighter (re firepower) or transport (re mobility) aircraft. Mobility and
firepower are not inherently contradictory (arguably they are complementary),
but given limited resources, strategic choice must occur to determine which
option best effectuates the State’s individualized national interests. Ordering
facilitates identifying the “best buy.”

In the law of armed conflict context, however, ordering is necessitated by
the fact that the objectives often operate at cross-purposes. Resource alloca-
tion may surface as an issue (if weapon A is illegal, what must the State obtain
to compensate for the loss of capability?), but it generally is not heavily impli-
cated in the process of choice. This is because normative regimes do not di-
rectly consume resources; their cost is political and human, not fiscal. Instead,
objectives relevant to law, as noted earlier, may well clash. For instance, nu-
clear weapons pose enormious risk to the global community, but their use in
certain circumstances might actually deter acts of greater harm by malevolent
international actors. Indeed, the principle of reprisal (which is the subject of
much controversy) implicitly recognizes this conflict by allowing the resort to
proportional illegal acts to convince an opponent to desist from its own illegal
course of action. Because the dynamic is one of contradiction vice competition,
assessment of objectives is best thought of in terms of net valuation instead of
vertical ordering. The process will often compel strategic choice involving bal-
ancing designed to identify net gain, rather than simply plotting “value” alonga
continuum.

In any event, many variables affect the value attributed to an objective. Fur-
ther, the importance ascribed to each will be determined in part by one’s

464


On Genocide

11. I omit here the critical issue of whether Dr. Kovacevic was part of the authority and
command structure of the town such that any genocidal acts could be attributed to him; i.e., did
he give any such commands, or did he fail to stop any genocidal acts when he was ina position to
do so? Because Dr. Kovacevic died while in detention at The Hague, this factual issue did not go
beyond a preliminary exploration.

12. Of course, the reader should discount any bias in this argument due to my position as Dr.
Kovacevic’s lawyer. I’ve disclosed that relationship and trust that my arguments will be read on
their merits if any.

130


M. Cherif Bassiouni

those rules of international humanitarian law that govern armed conflicts of an
international character.

This decision led several government experts at the ICC Diplomatic Con-
ference to express their fear that, unless the war crimes provision of Article 8
was clearly and unambiguously drafted, judges may, in the future, interpret Ar-
ticle 8 in a confusing or expansive manner, and thus create new law by judicial
fiat. Such concern for strict judicial interpretation did not however produce
the desired lack of ambiguity. On the contrary, it gave, in my opinion, more op-
portunities for non-strict interpretative approaches.

Thus, in these two judgments, which are the first of an international juris-
diction since the close of World War II and the subsequent proceedings at
Nuremburg!! and in the Far East,!22 we find more confusion than clarity re-
garding the following issues:

A. Generally

1. What norms of conventional law of armed conflicts have become
part of customary law, and how is that evidenced?

2. What norms of customary law have been codified in conventional
law, and how is that evidenced?

B. Specifically

1. Does customary law include all the “grave breaches” of the 1949
Geneva Conventions?

2. Does customary law include all or some of the “grave breaches” of
Protocol I, and, if so, which ones?

3. Does customary law include common Article 3 of the 1949 Geneva
Conventions?

4. Does customary law include all or some of the provisions of Protocol
II, and, if so, which ones?

5. What other treaties on the regulation of armed conflicts,
particularly those concerning the prohibition and use of certain weapons,
have become part of customary law,!?3and on what basis?

C. Legal Standards

1. Are the standards applicable to State responsibility applicable also
to the determination of whether a conflict is of an international or
non-international character; and, if applicable, is it exclusively applicable
or simply applicable as one of several legal standards?

17


M. Cherif Bassiouni

removed the defense of immunity from heads of state. See 1950 ILC Report, supra note 27, at
Principle III. The defense was also removed in the statutes for the ICTY and the ICTR. See ICTY
Statute, supra note 33, at art. 7; ICTR Statute supra note 35, at art. 6.

109. Compare Common Article 3, supra note 88, with “grave breaches” of the Third and
Fourth Conventions, respectively Articles 130 and 147.

110. One of the sources of international law as stated in Article 38 of the Statute of the
International Court of Justice. See Statute of the International Court of Justice, June 26, 1945,
59 Stat. 1055, U.N.T.S. No. 993, art. 38.

11L. See generally Meron, supra note 6.

112. See Bassiouni, supra note 14. See also, eg., sources cited supra note 14.

113. See Balint, supra note 14. See generally sources cited supra note 14 and accompanying
text.

114. These difficulties were evident in the work of the General Assembly’s Preparatory
Committee for the Establishment of an International Criminal Court on the Definition of War
Crimes. See Report of the Preparatory Committee on the Establishment of an Intemational Criminal
Court, U.N. GAOR, 51st Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996); Report of the Inter-Sessional
Meeting From 19 to 30 Jan. 1998 in Zutphen, The Netherlands, U.N. Doc. A/AC.249/1998/L.13,
(1998); Report of the Preparatory Committee on the Establishment of an International Criminal Court,
U.N. Doc. A/CONF.183/2/Add.1 (1998) [hereinafter PrepCom Committee]. See also the
Commentaries of Jordan Paust in 13 NOUVELLES ETUDES PENALES (M. Cherif Bassiouni ed.
1997) and 13bis NOUVELLES ETUDES PENALES (M. Cherif Bassiouni ed. 1998).

115. Prosecutor v. Du3ko Tadié, (IT-94-I-T), reprinted in 36 I.L.M. 908. For a critical
appraisal, see George H. Aldrich, Jurisdiction of the International Criminal Tribunal for the Former
Yugoslavia, 90 AM. J. INT'L L. 64 (1996).

116. Meron, supra note 7, at 238.

117. Id.

118. Prosecutor v. Dusko Tadic, (IT-94-I-T), reprinted in 36 I.L.M. 908 (1997). See also, e.g.,
SCHARF, supra note 43.

119. 1986 ICJ Rep. 14.

120. Meron, supra note 7, at 237. Professor Dinstein agrees that intervention by a foreign
State on behalf of the insurgents turns a civil war into an interstate war. Specifically, with regard
to Yugoslavia Meron writes:

The Tadié trial chamber has already accepted that, before the announced withdrawal
of JNA forces from the territory of Bosnia-Herzegovina, the conflict was an international
armed conflict. The facts of the situation and the rules of international humanitarian law
should determine whether the JNA continued to be involved after that date and during
the period pertinent to the indictments; if so, the international character of the conflict
would have remained unchanged. The provisions of the Fourth Geneva Convention on
termination of the application of the Convention, including Article 6, are relevant, not
the legal tests of imputability and state responsibility. Finally, the appeals chamber would
also be well-advised to abandon its adherence to the literal requirements of the definition
of protected persons and help adapt it to the principal challenges of contemporary
conflicts.

Meron, supra note 7, at 242.
121. See London Charter, supra note 25. For the proceedings before the IMT, see
International Military Tribunal sitting at Nuremberg, reported in TRIAL OF THE MAJOR WAR

49


Legal Issues of Multinational Military Units

Likewise, the relationship between a national unit and the competent
NATO commander has to be considered. An elaborate system of NATO Ear-
marked Forces,3?7 NATO Assigned Forces?’ and NATO Command Forces}?
allows for reasonable planning security. It should, however, also be borne in
mind that any Transfer of Authority (ToA) remains subject to national deci-
sion in accordance with national procedures of the country concerned. Addi-
tionally, national forces so earmarked, assigned, or even placed under
operational command or control may be withdrawn by national decision.

Of particular import for Germany is the question of the scope of command
which the Federal Minister of Defense has over German military personnel in
accordance with Article 65a of the German Constitution.4° Despite the article,
German subordinates may be ordered by their national superiors to obey the in-
structions of a foreign directing authority. Disobedience of the foreign supe-
tior’s instructions would be a disciplinary offence against the duty to serve
loyally.4! The practical consequence of this legal construction is that German
soldiers have to fully comply with directives issued by an allied commander as if
these directives were military orders strictu sensu. Non-compliance may be
sanctioned by the competent national commander under the Military Disci-
plinary Code.4? However, penal sanctions are not allowed because, pursuant to
the Milicary Penal Code,* disobedience requires a military order strictu sensu.

In the case of the guard duties in the German-Netherlands Corps, these con-
siderations led to an express provision in the Corps Convention stating that
binationally used facilities may be guarded by binational guards, if sending
State guard personnel are vested with the same authority as guard personnel of
the receiving State. For the execution of their duties, binational guards are ex-
clusively subordinated to the competent superior guard authorities of the re-
ceiving State.44 The German national guard provisions have been amended
accordingly to include allied soldiers in German military guards.*> For bina-
tional guard duties outside the territory of the Contracting Parties, specific ar-
rangements will be necessary.

Unless otherwise provided, the command relationship between NATO
commanders and national units also applies to the relationship between com-
manders of multinational units and their national contingents. In the case of
the German-Netherlands Corps, a first step towards deepening command and
control integration was the agreement on Integrated Directing and Control
Authority under Article 6 of the Corps Convention.‘6 As understood by the
Contracting Parties, the Commander of the Corps’ authority with regard to the
execution of tasks given to the Corps goes beyond Operational Command. Pur-
suant to Article 7 paragraph 4 of the detailed Corps Agreement,‘? Integrated

172


Charter of the United Nations as a World Constitution

independently or as elements of the Charter, those principles stand as promi-
nent parts of the written constitution of the world.

In that the idea of peaceful coexistence is deeply rooted in the political and
legal culture of the Peoples’ Republic of China, a major actor on the interna-
tional stage, one should not be too hasty in thinking that the idea of peaceful
coexistence has lost independent validity and been folded into the Charter
since the end of the Cold War. Given China’s influence on the development of
the international legal system, it behooves us to briefly consider the concept of
peaceful coexistence in the context of world constitutionalism.

The first point to recall is that the basic constitutional document, the “Com-
mon Programme,” made public at the time of the founding of the People’s
Republic of China, mentioned explicitly the principles of equality, mutual ben-
efit, and mutual respect for each other’s territorial sovereignty. Then, in 1954,
the famous Pancha Shila Treaty between China and India referred to Five
Principles essential for peaceful coexistence, including mutual non-aggression,
mutual non-interference in each other’s internal affairs, and equality and mu-
tual benefits. The following year, at the Bandung Conference of Asian and Af-
rican Countries, the participants formulated ten principles based on the
essence of the Five Principles of Peaceful Coexistence which for China had
come to express the basis for mutual friendly relations and peaceful
coexistence.

Although the Five Principles of Peaceful Coexistence may not be totally
novel if seen separately, in China’s view their proposition as a whole set of rules
guiding international relations has been unprecedented for the development of
international law since the end of the Second World War. For China, they not
only summarize concisely the purposes and principles of the Charter of the
United Nations but also further develop them; they proclaim the principle of
“equality and mutual benefit” as the code of conduct in relationships between
States. The Charter speaks of “the promotion of the economic and social ad-
vancement of all peoples” without, of course, indicating what principles and
methods ate to be used to realize that objective. “Equality and mutual benefit”
envisage economic and technological cooperation beneficial for both parties
carried out among all States on the basis of sovereign equality, irrespective of
size, power, or national income.

Since the Five Principles represent a basic national policy for handling
China’s relations with the outside world and a cornerstone of China’s foreign
policy, they are not regarded as a temporary expedient but, rather, as long-term
policy reinforcing and slightly extending the provisions of the Charter of the
United Nations. For present purposes, they reaffirm China’s recognition of,

280


Index

GENEVA CONVENTIONS (1949), 10-15, 18-19, 34, 36, 37, 191, 204, 240, 253-54, 256,
304, 306, 308, 325, 339-41, 390, 391, 400-01, 423-24, 427, 429, 431, 439, 455, 473, 511,
513, 520, 530
Additional Protocols (1977), 11, 12, 391, 400, 516

Protocol 1, 12, 14, 17-19, 37, 197, 216-17, 240, 254, 256, 325, 340, 400, 440, 450,
455-56, 459, 473, 517-20
Airmen in Distress, 440
Blockades, 216-17
War Crimes, 12
Protocol II, 12-15, 18-21, 34, 37, 191, 400
Grave Breaches (War Crimes), 10, 12, 15-16, 240, 253, 307, 390, 400
Women, Protection of (against Rape), 307

GENEVA GAS PROTOCOL (1925), 474
See also CHEMICAL WEAPONS CONVENTION (1993); WEAPONS, Chemical

GENOCIDE, 1-3, 8-10, 21-24, 31-37, 119-29, 253-55, 325-30, 394, 403, 431-32, 540-50
Cambodia, 8
Definition, 21, 120
Exclusion of Political Groups, 122
Genocide Convention (1948), 1, 8-10, 122-23, 129, 325-26, 396, 398, 404, 407, 408, 431
Jus Cogens, 1, 2, 11
Protected Group, 8-9
Rwanda, 314, 328
Specific Intent Required, 8-9, 124

GENOCIDE CONVENTION (1948), see under GENOCIDE

GERMANY, FEDERAL REPUBLIC OF, 36, 62, 73-74, 125, 132, 134, 135, 141, 146, 162-64,
166-69, 172, 239, 249-51, 315, 325, 342-43, 345, 347, 351, 353, 355-59, 360, 362, 364-36,
389, 393-94, 442, 444-45, 447, 498, 544-46
Convention on the Presence of Foreign Troops, 163
Germany-Netherlands Corps, 163
International Criminal Court Statute, 54446
Kosovo, 320
North Atlantic Treaty Organization, 162, 164, 166
Submarine Warfare, 358
Unification, 135, 167
War Crimes, Prosecution of, 36
Yugoslavia v. Germany (ICJ), 325

GERMANY-NETHERLANDS CORPS, see under MULTINATIONAL MILITARY UNITS

GRAVE BREACHES
See under GENEVA CONVENTIONS (1949)

See also WAR CRIMES

GREAT BRITAIN, see UNITED KINGDOM

GREEN, LESLIE C., xi-xiv, xv-xx, 57, 119, 161, 179, 198, 203, 204, 263, 387, 421, 434, 539,
566-79

GREENWOOD, CHRISTOPHER, 179, 583

GROTIUS, 58-62, 64, 68, 205, 268, 304, 410, 412, 484, 486, 488, 490
Blockades, 205
De Jure Belli Ac Pacis, 59, 484

594


Shabtai Rosenne

The Definition of Aggression, the Code of Crimes
and the Geneva Red Cross Conference (1967-1991)

On September 22, 1967, the USSR requested the inclusion in the agenda of
the 22nd session of the General Assembly of a tendentiously worded additional
item entitled: “Need to expedite the drafting of a definition of aggression in the
light of the present international situation.” The item was taken on the agenda
after a bitter procedural debate. In an unusual procedure it was allocated to
plenary meetings for a general debate, and then, in light of that debate and the
results achieved, to the Sixth Committee. The General Assembly decided in
Resolution 2330 (XXII), December 18, 1967, to establish a Special Committee
on the Question of Defining Aggression to consider all aspects of the question
and to report back to the General Assembly. Retracing the subsequent devel-
opments is not necessary here. It is sufficient to say that in Resolution 3314
(XXIX), December 14, 1974, the General Assembly, without a vote, adopted a
definition of aggression.38 That definition does not, however, deal with “the
crime of aggression” as a matter of the criminal responsibility of an individual.
Article 5 of the Rome Statute includes “the crime of aggression” among the
crimes over which the new International Criminal Court will have jurisdiction.
As it is, it does not explain what that means for individual criminal responsibil-
ity. In Resolution F annexed to its Final Act, the Conference requested the
Preparatory Commission established by that resolution inter alia to prepare pro-
posals for a provision on aggression for submission to the Assembly of States
Parties at a Review Conference.3? Although the Niirnberg and Tokyo Tribu-
nals had little difficulty in dealing with charges of crimes against peace by the
planning, preparation, initiation, and waging of wars of aggression against the
accused before them—all senior officers of the State—the problem today is
complicated because of the existence of the Security Council with primary re-
sponsibility for the maintenance of international peace and security. The issue
to be faced is whether the International Criminal Court can have jurisdiction.
over a case of aggression regardless of whether the Security Council has for-
mally determined that an act of aggression has taken place (Charter, Article
39).

In 1968 the Special Committee on the Definition of Aggression drew the
General Assembly's attention to the question of the Draft Code of Offenses
against the Peace and Security of Mankind, but no action was taken then.
When the General Assembly adopted the definition of aggression, it again took
note of observations by the Secretary-General regarding the Draft Code and
the international criminal court, without adopting then any operative

399


Legal Issues of Multinational Military Units

46. Supra note 1. Article 6 reads:

Integrated Directing and Control Authority (1) The Commander of the Corps
shall be vested with integrated directing and control authority with regard to the
execution of the tasks given to the Corps. This authority includes the right to give
instructions to soldiers and civilian members of the Corps under his integrated
command. It encompasses planning, preparation and execution of the Corps’ tasks
and missions, including training exercises as well as logistic competencies. (2)
National rights and obligations of personnel, in particular with regard to
disciplinary matters and complaints, do not fall within the scope of the integrated
directing and control authority. (3) Details shall be agreed between the
Contracting Parties. (4) The responsibilities and powers of the competent
NATO/WEU Commander shall remain unaffected.

47. Agreement between the Government of the Federal Republic of Germany and the
Government of the Kingdom of the Netherlands on the Organization and the Activities of the 1
(German-Netherlands) Corps and the Air Operations Coordination Center of 6 October 1997
(BT-Drucksache 13/10117, p. 79).

48. Ferdinand Kirchhof, Deutsche Verfasssungsvorgaben zur Befehlsgewalt und Wehrverwaltung
in multinationalen Verbiinden, in: NEUE ZEITSCHRIFT FUR WEHRRECHT 4, 1998, pp. 152-163.

49. Joachim Wieland, Die Beteiligung der Bundeswehr an gemischtnationalen Einheiten.
Rechtsfragen ofener Staatlichkeit auf militdrischem Gebiet, in: Grawert/Schlink/Wahl/Wieland
(eds.), OFFENE STAATLICHKEIT. FESTSCHRIFT FOR ERNST-\WOLFGANG BOCKENFORDE ZUM.
65. Geburtstag, Berlin 1995, pp. 219-236.

50. Model Agreement between the United Nations and Member States Contributing
Personnel and Equipment to United Nations Peace-Keeping Operations UN-Document:
A/46/185 (23 May 1991). Part V (Authority) reads as follows:

(7) During the period of their assignment [to the United Nations peace-keeping
operation], the personnel made available [by the Participating State] shall remain
in their national service but shall be under the command of the United Nations,
vested in the Secretary-General, under the authority of the Security Council.
Accordingly, the Secretary-General of the United Nations shall have full
authority over the deployment, organization, conduct and direction [of the
United Nations peace-keeping operation], including the personnel made available
[by the Participating State]. In the field, such authority shall be exercised by the
Head of Mission, who shall be responsible to the Secretary-General. The Head of
Mission shall regulate the further delegation of authority. (8) The Head of Mission.
shall have general responsibility for the good order and discipline [of the United
Nations peace-keeping operation]. Responsibility for disciplinary action with
respect to military personnel made available (by the Participating State] shall rest
with the officer designated by the Government [of the Participating State] for that

purpose.

178


Charter of the United Nations as a World Constitution

principle of subsidiarity, only and insofar as the objectives of the proposed ac-
tion cannot be sufficiently achieved by the Member States, and can therefore,
by reason of the scale or effects of the proposed action, be better achieved by
the Community.”

The 1992 Treaty of Maastricht is the first legislative instrument to refer ex-
plicitly to the much talked about “principle of subsidiarity.” Until then, the
Community did legislate in areas not explicitly covered by the treaty when it
deemed it functional to the achievement of the objectives of the Community.”6
The Court of Justice, the supreme interpreter of the rule of law in the Commu-
nity,”? ruled on several occasions that the Community had power to legislate
stemming from the need to accomplish the objectives of the Treaty.’8 Accord-
ing to Article 3b, member States retain sovereign rights in every area not ex-
plicitly covered by the treaties unless it is proved that a certain action can
better be carried on at the European level.?? However, the boundary between
the competencies of the States and the Community is not well specified in the
treaty and, since 1992, few road blocks have been placed in the way of the
Community in areas not covered by the treaty, but “functional” to its objec-
tives. This demonstrates once again that member States are willing to accept a
larger role for the Community if that proves to be of advantage for their na-
tional interests as well.89 It is one of the most relevant features of the European
Community that the competencies of the organization can be modified by the
mere practice of its organ, and legitimized by the ruling of its court, without
having to amend the founding treaties.

The treaty of Maastricht also formalizes the doctrine of the acquis
communautaire, by which the corpus of Community law is considered as estab-
lished at the Community and national level. The European Communities
Treaties and the European Union Treaty have been most appropriately called
“a complementary constitution for each of the Member states, which, like their
national constitution, structure their legal order.”8! Externally, the major con-
sequence of the existence of an acquis communautaire is that any State aspiring
to accede to the benefits of the European Union must also agree to yield to the
existing rules and change its national legislation in accordance with them. This
increases the capacity of the Union to influence the national policies of third
States which, in their wish to enter the Community, must accept the political
and economic conditions it poses and demonstrate that they have undergone
significant changes in several areas in order to qualify for admission.

The European Union is recognized as the representative of member States in
international relations in several areas under its internal competence. Its
achievements in the economic field have made it a point of reference for

290




Outer Void Space Not Reserved for Exclusively Peaceful Use

than the fifties to find the original meaning of the word, when Atoms for Peace
was then the world’s most fashionable preoccupation. International agree-
ments for assistance and co-operation in the peaceful uses of nuclear energy
proliferated.!! Peace then definitely meant non-military. Imagine someone, at
that time or even now, trying to justify the diversion of nuclear fuel and tech-
nology supplied under such agreements to making what one would like to de-
scribe as a peaceful and non-aggressive nuclear bomb to be used only when
threatened! Even in 1959, the Antarctic Treaty in its Article I made it crystal
clear that “peaceful” meant “non-military.”!2

Yet, only three years and two days after the signing of the Antarctic Treaty
on December 1, 1959, which was, after all, done in Washington, Senator Al-
bert Gore, Sr., representing the United States, stated on December 3, 1962, be-
fore the First Committee of the United Nations in New York that:

It is the view of the United States that outer space should be used only for
peaceful—that is, non-aggressive and beneficial—purposes. The question of
military activities in space cannot be divorced from the question of military
activities on earth. To banish these activities in both environments we must
continue our efforts for general and complete disarmament with adequate
safeguards. Until this is achieved, the test of any space activities must not be
whether it is military or non-military, but whether or not it is consistent with the
United Nations Charter and other obligations of law.!3

It is clear that the United States was at this point trying hard to attribute an
entirely new meaning to the word “peaceful.” This piece of semantic and legal
acrobatics was obviously a bold attempt to bypass and circumvent the then still
prevalent attitude that all military activities should be banned from outer
space, while seemingly accepting it, thus reaping the benefit, as the saying goes,
of having the cake and eating it too. Apart from the two General Assembly res-
olutions quoted at the beginning of this chapter, another example of this com-
mon attitude at the time was a statement by the Indian delegate to COPUOS
earlier the same year, when he declaimed:

My delegation cannot contemplate any prospect other than that outer space
should be a kind of warless world, where all military concepts of this earth should
be totally inapplicable... . There should be only one governing concept, that of
humanity and the sovereignty of mankind.1¢

However, this highly emotive, understandable and popular desire was unre-
alistic for at least two reasons. First, the motive and incentive of the space

86


Georg Schwarzenberger

recognizes a state of peace and a state of war, but . . . it knows nothing of an in-
termediate state which is neither the one thing nor the other—neither peace or
war.”37 This statement, however, must be read in its context which indicates
the reason for the rigid adherence of English courts to the doctrine of the com-
plementary character of peace and war. It follows from the general attitude
taken by English courts regarding vital issues of foreign affairs affecting this
country. These matters are within the prerogative of the Crown, and “it must
be for the supreme power, whatever it is, to determine the policy of the commu-
nity in regard to peace and war. . . . If and so long as the Government of the
State abstains from declaring or making war or accepting a hostile challenge
there is peace—peace with all attendant consequences—for all its subjects.”38
This practice is not derived from the scrutiny of positive international law, but
is based on a division of functions between the judiciary and the executive,
considered desirable from the point of view of English law, and it gives expres-
sion to the legitimate concern of courts for the certainty of their municipal law.
It is, therefore, impossible to derive from this practice any conclusions regard-
ing the validity of the doctrine of the alternative character of peace and war as
a doctrine of international law.

As in the case of the doctrine of the normality of peace, this doctrine could
derive its only justification from State practice. The foreign relations of all great
Powers contain frequent instances of resort to armed force short of war or, as
they are sometimes called, of “pre-belligerent acts.”39 Military interventions
and reprisals, material guarantees and pacific blockades have become such
household terms of power diplomacy and modern treatises on international
law‘? that it suffices merely to refer to them in order to indicate the problematic
character of the alternative between peace and war. It cannot be doubted that
these measures are “tinged with a hostile character”; it is admitted that they are
“often but the train which awaits only a spark to be kindled into the full blaze of
open war.” Yet it is still asserted that they are “not in themselves inconsistent
with the maintenance of peace.”4! Arguments to the effect that such measures
merely constitute an abuse of force and amount to war in disguise may be suc-
cessful in some instances.‘? They do not, however, offer a satisfactory explana-
tion of all or even the greater majority of these cases. It is hard to see how the
limited application of force can amount to war if not only third States but also
the State against which these measures are taken insists on the continuation of
peaceful relations with the State resorting to a limited use of armed force. The
current explanation that, by customary international law, these measures have
been incorporated into the law of peace, is correct if it means that resort to
armed force short of war may be lawful in certain circumstances. Yet how can.

491


Yoram Dinstein

they fail to reach an agreement, the Council may be driven in time to ordain a
cease-fire. In the Iran-Iraq War, the Security Council issued a call for a cease-fire
in 1982,!43 demanding it only in 1987.!44 The text and the circumstances clearly
imply that “the change in the wording from calling for a cease-fire to demanding
one” conveyed a shift from a recommendation to a binding decision.!45

The most peremptory and far-reaching cease-fire terms ever resorted to by
the Security Council were imposed on Iraq in Resolution 687 (1991),!46 after
the defeat of that country by an American-led coalition (with the direct bless-
ing of the Council) in the Gulf War. Resolution 687 “is unparalleled in the ex-
tent to which the Security Council” was prepared to go in dictating cease-fire
conditions (especially where disarmament is concerned).!47 Nevertheless, as
the text of the Resolution explicitly elucidates, it brings into effect no more
than “a formal cease-fire.”!48 A labelling of Resolution 687 as a “permanent
cease-fire”!49 is a contradiction in terms: a cease-fire, by definition, is a transi-
tion-period arrangement. The suggestion that “despite the terminology used in
Resolution 687, it is clearly more than a mere suspension of hostilities’ for
the substance “is that of a peace treaty” !5°is not only completely inconsistent
with the plain text of the resolution, it is also counterfactual, given subsequent
history. At various points since 1991, and almost on a routine basis after De-
cember 1998, coalition (mostly U.S. and UK) warplanes have struck Iraqi mili-
tary targets (especially in so-called “no-fly zones”). The air campaign must be
seen as a resumption of military operations in the face of Iraqi violations of the
cease-fire terms.!5! These are continued hostilities in a war, which commenced
when Iraq invaded Kuwait in August 1990.

The General Assembly, too, may call upon belligerents to effect an immedi-
ate cease-fire. This is what the General Assembly did in December 1971,!5? af-
ter the outbreak of war between India and Pakistan (ultimately culminating in
the creation of the independent State of Bangladesh). When such a resolution
is passed by the General Assembly, it can only be issued as a recommendation
and can never be binding. As a non-mandatory exhortation, the resolution may
be ignored with impunity, just as India disregarded the resolution in question.!53

In recent years, most cease-fires have come in the wake of Security Council
resolutions. Either the parties carry out a mandatory decision of the Council or
they arrive at an agreementat the behest of the Council. Even during the “Cold
War,” as long as the Council was not in disarray owing to the exercise or the
threat of a veto, a cease-fire resolution became almost a conditioned reflex in
response to the outbreak of hostilities. Generally speaking, the Council has
tended to act as a fire brigade, viewing its paramount task as an attempt to ex-
tinguish the blaze rather than dealing with all the surrounding circumstances.

149


Outer Void Space Not Reserved for Exclusively Peaceful Use

8. It is unwarranted to conclude from the fact that the United States has
persistently interpreted the word “peaceful” in Article IV(2) as meaning
“non-aggressive” and not “non-military,” and that there has been “no protest”
from other States, that the United States interpretation has consequently
been confirmed by subsequent practice in accordance with Article 31(3) of the
1969 Vienna Convention on the Law of Treaties. The reason is simply that
there has up to now not been any known occasion when the United States
tried to implement its interpretation in regard to Article IV(2), by carrying on
“non-aggressive” military activities on the moon or other celestial bodies. The
result is that there has been no violation of Article IV(2) and, therefore, no
need for any other State to protest.

9. The fact that the United States has long qualified its military activities in
outer void space as peaceful without evoking any protest proves even less, inas-
much as such activities are, insofar as the Treaty is concerned, governed by its
Article IV(1) and lawful under it. There is no reason or ground for other con-
tracting States to protest simply because the United States wishes to give such
activities a whimsical description.

10. Norcan one invoke the history of the Treaty to justify the United States
interpretation under Article 32 of the Vienna Convention, inasmuch as not
only has there been no express reservation on the part of the United States in
this regard, but there has also been no recorded pronouncement on the part of
the United States accompanying the presentation or adoption of this Article or of
the Treaty to this effect that has been accepted by the other negotiating parties.

11. The applicable provision of the Vienna Convention is Article 31(1),
which provides that the terms of a treaty are to be interpreted in good faith and
given their “ordinary meaning.” The ordinary meaning of “peaceful” is, of
course, “non-military.”

12. The first sentence of Article IV(2) being categoric, the second sentence
is purely exemplificative.

13. The omission in the second sentence of Article IV(2) ofa specific refer-
ence to the moon when dealing with celestial bodies is without significance, in-
asmuch as the previous sentence has already mentioned “the moon and other
celestial bodies,” thus clearly indicating that the moon is one of the celestial
bodies. The omission is purely elliptical.

14. Similarly, the omission of any qualification as to the nature of the equip-
ment and facility in the last sentence of Article [V(2) must be understood to
mean military equipment and facility, in view of the reference to military per-
sonnel in the previous sentence. Such ellipses are perfectly normal.

108


Ruth Lapidoth

institutions that may have been established by them, or agree to submit the dis-
pute to arbitration, or to the International Court of Justice.”!7 All these mecha-
nisms, except for negotiations, require the consent of both parties. If the
dispute is not solved by one of these methods, there is an obligation, upon one
party’s request, to submit it to a Fact-finding Commission.!8 The parties have
to consider the latter’s report “in good faith,” but it is not binding. States may
also agree in advance to submit disputes to the International Court of Justice or
to binding arbitration (“opt-in” procedure). Finally, the text includes a provi-
sion on private claims.19

Dispute Prevention

The first means of preventing disputes is the exchanging of information.
“Watercourse states shall on a regular basis exchange readily available
data ...”20“If a watercourse state is requested ... to provide data ... that is not
readily available, it shall employ its best efforts to comply with the request.”2! It
thus seems that supplying readily available data is compulsory, while transmit-
ting information which is not readily available is a relative obligation and may
be subject to the payment of reasonable costs.

Moreover, in emergency situations there is an unconditional obligation to
notify other potentially affected States without delay.22 An emergency situa-
tion has been defined as “a situation that causes, or poses an imminent threat of
causing, serious harm to watercourse states ... and that results suddenly from
natural causes ... or from human conduct....”23 The idea is that early knowl-
edge of an emergency can help potentially affected States to prevent or reduce
the damage. For instance, the Chernobyl nuclear disaster amply demonstrated
the harm caused by holding back information. However, States are not obli-
gated to provide data or information vital to their national defense and secu-
rity.24

In the search for “equitable and reasonable utilization” of the watercourse,
the parties have, “when the need arises,” to “enter into consultation.”2> Simi-
larly, if “significant harm” is caused to a State by another watercourse State, the
latter has to take all appropriate measures, in consultation with the affected
state, to eliminate or mitigate the harm.26

The obligation to prevent conflict is even more developed in case of
“planned measures” of exploitation or development projects by one State. For
such situations, the convention establishes a series of procedures—exchange of
information, notification, communication, consultation and, where necessary,
negotiations; a State contemplating a new use, a change in an existing use, or

233


M. Cherif Bassiouni

in armed conflict, the difference between the values protected by
Article 3 and Article 5 would seem to be inconsequential.

704. As explained above, the validity of the criterion based on the
difference in values protected is disputable if it is not also supported by
reciprocal speciality between the two offences. It follows that, given
also the marginal difference in values protected, the Trial Chamber
may convict the Accused in violating the prohibition of murder as a
crime against humanity only if it finds that the requirements of murder
under both Article 3 and under Article 5 are proved.

2. Relationship Between “Persecution” under Article 5(h)
(Crimes Against Humanity) and “Murder” under Article 5(a)
(Crimes Against Humanity)

705. On the grounds set out above, the Trial Chamber agrees with the
Prosecutor that “persecution” may comprise not only murder carried
out with a discriminatory intent but also crimes other than murder.
Count 1 of the indictment, which charges persecution, refers not only
to killing, but also to “the comprehensive destruction of Bosnian
Muslim homes and property” (para. 21(b)) and “the organised
detention and expulsion of the Bosnian Muslims from Ahmi¢i-Danti¢i
and its environs” (para. 21(c)); in short, what in non-legal terms is
commonly referred to as “ethnic cleansing”. There are clearly
additional elements here beyond murder.

706. As for the relations between murder as a crime against humanity
and persecution as a crime against humanity, it should be noted that
persecution requires a discriminatory element which murder, albeit as a
crime against humanity, does not. The Trial Chamber is of the view
therefore that there is reciprocal speciality between these crimes;
indeed, both may have unique elements. An accused may be guilty of
persecution for destroying the homes of persons belonging to another
ethnic group and expelling the occupants, without however being
found guilty of any acts of killing. The destruction of homes and the
expulsion of persons, if carried out with a discriminatory intent, may in
and of themselves be sufficient to constitute persecution. Equally, an
accused may commit a non-discriminatory murder as part of a
widespread attack on a civilian population which, because it is
non-discriminatory, fails to satisfy the definition of persecution. These,
then, are two separate offences, which may be equally charged.

27


Ove Bring

It can be shown that this idea of federalism should eventually include all nations
and thus lead to perpetual peace. For if good fortune should so dispose matters
that a powerful and enlightened people should form a republic (which by its
nature must be inclined to seek perpetual peace), it will provide a focal point fora
federal association among other nations that will join in order to guarantee a
state of peace. . .,and through several associations of this sort such a federation
can extend further and further.49

As indicated above, Kant did not (in Zum ewigen Frieden) support a collec-
tive security system based on enforcement or sanctions. In an essay published
two years earlier, he had written:

But it will be said that nations will never subject themselves to such coercive
laws; and the proposal for a universal cosmopolitan nation, to whose power all
individual nations should voluntarily submit, and whose laws they should obey,
may sound ever so nice in the theory of the Abbé St. Pierre or of a Rousseau, yet
it is of no practical use. For this proposal has always been ridiculed by great
statesmen, and even more by leaders of nations, as a pedantically childish
academic idea.50

A modern reading of Kant would confirm key-words/concepts like national
sovereignty, international agreement, constitutional basis, peaceful settlement
of disputes, non-use of force, non-intervention, the right to self-defence, and
national self-determination (Kant opposed colonization).5! All in all, his jus
contra bellum approach was reasonably modern.

The Westphalian tradition would include concepts like peaceful coexis-
tence, equality of sovereign States, peaceful settlement of disputes, non-use of
force, balance of power, mutual security guarantees, and collective sanctions.
One or more of these concepts have on and off appeared in the State practice
or doctrine touched upon so far.

When, during the Napoleonic Wars, the Austrian statesman Friedrich von
Gentz published Fragmente aus den neuesten Geschichte des Politischen
Gleichgewichts in Europa (1806), he singled out some of these Westphalian con-
cepts: balance of power, equality of States, peaceful coexistence, and joint ac-
tion against peace breakers. He was, of course, heavily influenced by
Napoleon’s upheaval of the traditional European balance and wanted to see
the feature of national self-determination reestablished on the European conti-
nent. Asa consequence, von Gentz supported normative development towards
a prohibition of first use of force in the relations between States, but, in light of
his later association with Metternich and the post-1815 doctrine of armed

69


conducting peace operations, and leading troops in combat. Some have already
achieved flag rank. There is not one doubt that Leslie Green profoundly shaped
the way in which they approach such tasks—no officer left the War College
during his watch unaware of the normative and humanitarian aspects of their
chosen profession.

During his time in Newport (and indeed since then), Professor Green also
dedicated himself to mentoring the College’s law faculty. I know I speak for all
of the beneficiaries of his guidance when I say his influence on our attitude to-
wards, and understanding of, the law of armed conflict was profound. If Jack
Grunawalt was the “Father” of the Oceans Law and Policy Department ex-
tended family, Leslie Green was surely our “Grandfather.” For my part, his en-
couragement and support, as well as the many doors he opened, made possible
my transition to civilian academia, a dream long held. Not unexpectedly, his
mentorship continues today, a gift that I and the rest of the Oceans Law and
Policy family cherish deeply.

Given the extraordinary scope and nature of his contributions to the Naval
War College and, more generally, to furthering the role of law in limiting the vi-
olence that international conflict so tragically and far too frequently visits on
the global citizenry, the then Dean of the Naval War College’s Center for Na-
val Warfare Studies, Dr. Bob Wood, enthusiastically supported the proposal to
honor Professor Green with a collection of essays in the Blue Book series. This
volume is the product of that effort, and it is my great honor to have played a
part in its realization.

The first quandary the project organizers had to resolve was how to frame it.
Our goal was a liber amicorum that held together as an integrated whole, but
one with subject matter wide enough to avoid excluding any “significant oth-
ers” who wished to contribute. We finally settled on international conflict in
the context of normative systems and structures. Though many of the pieces
address armed conflict, others take up “peaceful” conflict and resolution mech-
anisms therefor. This common thread of conflict writ large characterizes Pro-
fessor Green’s own contributions to the field of international law, not only as a
scholar but also as a government legal adviser, diplomat, and soldier.

We then turned to the easy task—finding contributors. Indeed, the dilemma
at this point was not a paucity of contributors but rather the extraordinary
teach of Professor Green’s influence on international law and its practition-
ers/thinkers. In the end, the offers to contribute were made somewhat arbi-
trarily, based upon individuals whom I had heard him speak highly of in our all
too short time together. Surely, many of those whom he regards with special af-
fection and respect were not given an opportunity to contribute. I offer them

x


Theodor Meron

Wars fought by large groups using long-range artillery were not conducive to
the pursuit and taking of prisoners or the once customary grant of quarter in ex-
change for ransom. And the emergence of Protestantism triggered an increas-
ing dehumanization of members of an adversary branch of Christianity, and
thus a fertile environment for the destruction of those regarded as subhuman.
Remember the massacre of Saint Bartholomew’s Day or the outright killing by
the English of Spanish Armada sailors shipwrecked in Western Ireland.

By the mid-19th Century, the technology which precipitated the demise of
chivalry ultimately generated the need for international rules of war to human-
ize the conduct of hostilities, limit the killing and maiming, and ensure the hu-
mane care of prisoners, the sick and the wounded. The very scale of casualties
and of suffering required that this need be recognized. The American Civil
War generated the Lieber Code promulgated in 1863. The Lieber Code ulti-
mately spawned that branch of international humanitarian law commonly
known as the Hague law, which governs the conduct of hostilities. The Battle
of Solferino, along with Henry Dunant’s moving portrayal of the suffering and
bloodshed at the battle in A Memory of Solferino (1862) inspired the conclusion
of the First Geneva Convention (1864) as well as Geneva law more generally,
the other branch of IHL which emphasizes the protection of victims of war, the
sick, the wounded, prisoners, and civilians. Since the mid-19th Century, we
have been engaged in a period of intensive multilateral treaty making.

Both prongs of IHL—Hague and Geneva—drew their guiding principles
from chivalry. The obligations to use fairness and restraint, mercy and compas-
sion, in both offensive and defensive situations, have their origin in chivalric
honour.

In matters pertinent to military necessity, progress was nevertheless slow.
Those of us who consider Henry’s order in Agincourt to be medieval and bar-
baric, should note that even the essentially humanitarian Lieber Code allowed
the denial of quarter to the enemy, that is, Confederate prisoners, on grounds
of necessity: “A commander is permitted to direct his troops to give no quarter
. .. When his own salvation makes it impossible to cumber himself with prison-
ers.” This rule, which was law for the United States Army as recently as
mid-19th Century, appears almost designed to legitimate the massacre Henry
V ordered at Agincourt.

Compare the modern U.S. Army Field Manual of 1956. It unequivocally
prohibits killing prisoners on grounds of self-preservation, in whatever
circumstances.

However, certain related questions of international humanitarian law are
less clear, especially whether in all circumstances there is a duty on a military

305


Antecedents of the Rome Statute of the ICC Revisited

Appendix
French Translation of Letter of F. Lieber to
General G. H. Dufour, New York, April 10, 1872 (See note 8)

Monsieur,

Jai regu il y a quelques jours votre honorée lettre du 1 février . . . Je
m’empresse de vous donner mon opinion, malgré la divergence qui peut
exister entre nos vues concernant I’application des principes sur lesquels
nous sommes complétement d’accord.

Je suis un des juristes qui se sont déclarés, de la maniére la plus claire et la
plus expresse, en faveur de l’expansion et de la multiplication constante de
Varbitrage et de la conciliation entre nations.

J'ai méme fortement recommandé de retourner a la coutume de
moyen-ge, et de prendre pour arbitres internationaux les facultés de droit
des universités en renom; mais je me suis prononcé déja dans mes Political
Ethics contre l’idée d’une Haute-Cour internationale, par laquelle tous les
différends entre nations seraient décidés. J’ai cru que la réalisation de cette
idée, quand méme elle serait possible, ne serait ni souhaitable ni efficace. Je
n’ai pas changé d’opinion.

Qui serait le sheriff (l'exécuteur des décisions) d’une haute Cour des na-
tions? Et quel est méme le tribunal ordinaire dont les jugements feraient
quelque impression, si l’on ne savait que ses arréts seront appliqués par le
pouvoir public? Il est vrai que Hugo Grotius fut cité comme autorité au
Congrés des nations Européennes 4 Vienne. Mais s'il fut cité ainsi
au-dessus des monarques, des ministres et des nations, c’est précisément
parce qu’il n’était qu’un simple particulier, absent de la lutte et ayant écrit
son ouvrage sur la paix et la guerre, sous la dictée de la raison et de la jus-
tice, sans se préoccuper aucunement des cas en question, qui appelaient les
lumiéres de la raison et de la justice.

Des nations libres seraient toujours dans une position désavantageuse
devant un pareil tribunal: car les gouvernements plus ou moins
despotiques sont toujours mieux placés que les nations libres pour cabaler
et intriguer, et les nations libres ont spécialement besoin d’autonomie. Ce
besoin, sans équivaloir a l’isolement, croitra avec les progrés de la liberté et
le développement du self-government. Je suis parfaitement certain que peu
des citoyens américains consentiraient a confier une affaire litigieuse dans
laquelle leur république serait intéressée, 4 une Haute-Cour internationale
permanente, quelque favorable qu’il puisse étre 4 des tribunaux d’arbitrage

410


Contents

Foreword 60.0... e cece cece cece cece e nce t eee teen ete eeeteees vii
Preface .... cece cece cece cece cee ete e eee e teen een en tena tees ix

Introduction by William J. Fenrick

II

Il

IV

VI

VII

VIII

Leslie Claude Green: International Law Teacher ............++5 xiii

The Normative Framework of International Humanitarian Law:
Overlaps, Gaps and Ambiguities
M. Cherif Bassiouni «0.2.6... 600 cece eee eect eee tern ences 1

The Westphalian Peace Tradition in International Law: From Jus ad
Bellum to Jus contra Bellum

Ove Bring «57

Properly Speaking, Only Celestial Bodies Have Been Reserved for Use
Exclusively for Peaceful (Non-Military) Purposes, but Not Outer Void
Space

Bin Cheng. ..... 00.0 c cece eee c cece cece cece eee ee een enenes 81
On Genocide
Anthony D’Amato ....... 00. e cece cece cece e eee eee e eens 119

The Initiation, Suspension, and Termination of War
Yoram Dinstein.............066 Lecce cece cece cence eens 131

Legal Issues of Multinational Military Units: Tasks and Missions,
Stationing Law, Command and Control
Dieter Fleck «0.00.6... cee cee cece cece eect teen tee eees 161

International Law and the Conduct of Military Operations:
Stocktaking at the Start of a New Millennium
Christopher Greenwood... 0... scece eee ce cece ence evens 179

Naval Blockade
Wolff Heintschel von Heinegg.......0...0+ceceeeeceeeeeeee 203


Paul C. Szasz

(a) Their capture and detention shall be notified
without delay to the party on which they depend and
to the Central Tracing Agency of the International
Committee of the Red Cross (ICRC), in particular in
order to inform their familics;

(b) They shall be held in sccure and safe pre-
mises which provide all possible safeguards of hy-
gicne and health, and shall not be detained in arcas
exposed to the dangers of the combat zone;

(c) They shall be entitled to reccive food and
clothing, hygiene and medical attention;

(d) They shall under no circumstances be sub-
jected to any form of torture or ill-treatment;

(©) Women whose liberty has been restricted
shall be held in quarters separated from men’s quar-
ters, and shall be under the immediate supervision of
women;

(f) In cases where children who have not attained
the age of sixteen years take a direct part in hostilities
and are arrested, detained or interned by the United
Nations force, they shall continue to benefit from
special protection. In particular, they shall be held in
quarters scparatc from the quarters of adults, except
when accommodated with their familics;

(g) ICRC’s right to visit prisoners and detained
persons shall be respected and guaranteed.

Section 9
Protection of the wounded, the sick, and med-
ical and relief personnel
9.1 Members of the armed forces and other per-

sons in the power of the United Nations force who
are wounded or sick shalll be respected and protected
in all circumstances. They shall be treated humanely
and reccive the medical care and attention required
by their condition, without adverse distinction. Only
urgent medical reasons will authorize priority in the
order of treatment to be administered.

9.2 Whenever circumstances permit, a suspen-
sion of fire shall be arranged, or other local arrange-
ments made, to permit the search for and
identification of the wounded, the sick and the dead
left on the battlefield and allow for their collection,
removal, exchange and transport. :

9.3 The United Nations force shall not attack
medical establishments or mobile medical units.

‘These shall at all times be respected and protected,
unless they arc uscd, outside their humanitarian
functions, to attack or othcrwise commit harmful
acts against the United Nations force.

9.4 The United Nations force shall in all circum-
stances respect and protect medical personnel exclu-
sively engaged in the scarch for, transport or
treatment of the wounded or sick, as well as religious
personnel.

9.5 The United Nations force shall respect and
protect transports of wounded and sick or medical
equipment in the same way as mobile medical units.

9.6 The United Nations force shall not engage in
reprisals against the wounded, the sick or the person-
nel, establishments and cquipment protected under
this section.

9.7 The United Nations force shall in all circum-
stances respect the Red Cross and Red Crescent em-
blems. These emblems may not be employed except
to indicate or to protect medical units and medical
establishments, personnel and material. Any misuse
of the Red Cross or Red Crescent emblems is
prohibited.

9.8 The United Nations force shall respect the
right of the families to know about the fate of their
sick, wounded and deceased relatives. To this end,
the force shall facilitate the work of the ICRC Cen-
tral Tracing Agency.

9.9 The United Nations force shall facilitate the
work of relief operations which are humanitarian
and impartial in character and conducted without
any adverse distinction, and shall respect personnel,
vehicles and premiscs involved in such operations.

Section 10
Entry into force
The present bulletin shall enter into force on 12
August 1999.

(Signed) Kofi A. Annan
Sceretary-General

535


Dispute Settlement under the 1997 Watercourses Convention

HANDLING OF INTERNATIONAL DISPUTES BY MEANS OF INQUIRY, Oxford University Press,
1974.

71. PERMANENT COURT OF ARBITRATION, BASIC DOCUMENTS: CONVENTIONS, RULES,
MODEL CLAUSES AND GUIDELINES, The Hague, 1998, p. 175.

72. N. BAR-YAACOV, supra note 70, p. 156; J.G. MERRILLS, supra note 60, p. 49.

73. UNGA Resolution 2329 (XXII), December 18, 1967. See also UNITED NATIONS,
HANDBOOK ON THE PEACEFUL SETTLEMENT OF DISPUTES BETWEEN STATES, New York,
1992, chapter 2B.

74. For these examples, see J.G. MERRILLS, supra note 60 at pp. 59-60 and references.

75. Article 90. See J. Ashley Roach, The International Fact-Finding Commission, 31
INTERNATIONAL REVIEW OF THE RED CROSS (1991), p. 167; Francoise Krill, The International
Fact-Finding Commission: The ICRC’s Role, ibid., p. 190.

76. Article 90(1) (b) of the Protocol I; J.A. Roach, supra note 75, at 168.

77. Article 90(2)(c).

78. CLAUDE PILLOUD, JEAN DE PREUX, YVES SANDOZ, BRUNO ZIMMERMANN, PHILIPPE
EBERLIN, HANS-PETER GASSER, CLAUDE F. WENGER, COMMENTARY ON THE ADDITIONAL
PROTOCOL I OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, Geneva,
International Committee of the Red Cross, Martinus Nijhoff, 1987, paragraph 3620.

79. Article 33(8).

80. See J.G. MERRILLS, supra note 60, at pp. 47, 49, 54, 58; Thomas M. Franck and H. Scott
Fairley, Procedural Due Process in Human Rights Fact-Finding by Intemational Agencies, 74
AMERICAN JOURNAL OF INTERNATIONAL LAW (1980), p. 308. N. Bar-Yaacov makes a
distinction between what he calls “enlarged inquiry,” namely, a commission that is to investigate
and report on all aspects of the dispute, and conciliation where the commission is empowered to
recommend to the parties a scheme for the settlement of the dispute. Supra note 70, p. 109.

81. Thomas M. Franck and HLS. Fairley, supra note 80, at pp. 344-345. See also the
guidelines included in a Working Paper submitted to the Special Committee on the Charter of
the United Nations and on the Strengthening of the Role of the Organization, UN Doc.
A/AC.182/L.66, reproduced in the Report of the Special Committee on its 1990 session (UNGA.
OR, 45t Session, Supplement no. 33; A/45/33); UNITED NATIONS, HANDBOOK ON THE
PEACEFUL SETTLEMENT OF DISPUTES BETWEEN STATES, New York, 1992; Permanent Court of
Arbitration, Optional Rules for Fact-Finding Commissions of Inquiry, supra note 71.

82. See B.R. CHAUHAN, supra note 5, at p. 143. David H. Getches, Sectoral Conflicts over
Water: Resolving Tensions among Agricultural, Municipal and Industrial, and Ecological Demands, in
Sanchez, Woled and Tilly, eds., supra note 6, pp. 35-48. The 1997 Watercourses Convention
has given preference to “the requirements of vital human needs”—Article 10(2).

83. On the protection of the environment, see Articles 20-23 of the Convention. On the
protection of the rights of future generations, see Preamble, 5‘ paragraph, and Edith Brown
Weiss, International Faimess for Fresh Water Resources, 25 ENVIRONMENTAL POLICY AND LAW
(1995), p. 231.

84. Articles 5-6 versus Article 7.

85. E.g., with regard to the Ganges and the Jordan.

246


The Initiation, Suspension, and Termination of War

declaration of war, giving reasons, or of an ultimatum with a conditional
declaration of war.3

Article 1 explicitly mentions that reasons for a declaration of war must be
given. But the causes of wars cannot be seriously established on the basis of a
self-serving unilateral declaration. The main value of a declaration of war is
derived from the fact that it pinpoints the precise time when a state of war
enters into force.

An ultimatum may take one of two forms: (i) a threat that, if certain de-
mands are not complied with, hostilities will be initiated; or (ii) a warning that,
unless specific conditions are fulfilled by a designated deadline, war will com-
mence ipso facto.4 Article 1 requires an ultimatum of the second type, incorpo-
rating a conditional declaration of war. Britain and France dispatched such
ultimatums to Germany in September 1939.An ultimatum of the first category
is not deemed sufficient by itself under Article 1, and it must be followed by a
formal declaration of war. Only the subsequent declaration, rather than the
preliminary threat, would be in conformity with Hague Convention (III).6

An ultimatum, almost by definition, entails a lapse of time (brief as it may
be) providing an opportunity for compliance with the demands made. Hostil-
ities are not supposed to begin unless that period has expired and the response
is considered unsatisfactory.

Insofar as an outright declaration of war is concerned, Hague Convention
(III) does not insist on any meaningful interval before combat starts.” Article 1
does prescribe that the declaration must be made “previous” to the commence-
ment of hostilities, and even refers to it (on a par with an ultimatum) as a warn-
ing. However, it is significant that a proposed amendment of the Article, to the
effect that 24 hours must pass between the issuance of the declaration and the
outbreak of hostilities, was defeated in the course of the Hague Conference.8
The upshot is that fire may be opened almost immediately after the announce-
ment has been made. A declaration of war under the Convention constitutes
merely a formal measure, and it does not necessarily deny the advantage of sur-
prise to the attacking State.

Hague Convention (III) cannot be considered a reflection of customary in-
ternational law.!° Before the Convention, most wars were precipitated without
a prelude in the form of a declaration of war.!! The practice of States has not
changed substantially since the conclusion of the Convention. Some hostilities
are preceded by declarations of war, but this is the exception rather than the
tule. There are many reasons for the contemporary reluctance to engage ina
declaration of war. Some of these reasons are pragmatic, stemming, for

132


Ronald St. J. Macdonald

In the result, the area covered by Article 39, in which the Security Council
can determine the existence of any threat to the peace, breach of the peace or
act of aggression and recommend or decide on measures to be taken by member
States to maintain or restore international peace and security has been signifi-
cantly extended by the need for humanitarian protection.!© This has reduced
the reach of Article 2.7, except of course in the case of the involvement of one
of the Permanent Members of the Security Council under Article 39, as hap-
pened in the 1982 Falkland/Malvinas war. As Ferrari Bravo puts it, if the prac-
tice of the Security Council continues along the lines followed in the last few
years, humanitarian interventions may come to represent a decisive blow to the
international system based on the classical concept of the sovereignty of
States,

Article 2.7 was considered at the time of the creation of the United Nations
to be a sacred, if not the highest principle of international law. However, the
rise of other principles of international law has brought about a shrinkage in the
traditional scope of domestic jurisdiction. This is strikingly evident when, for
example, the protection of human rights is invoked. By recognizing the supe-
tior value of the protection of human rights, some old distinctions between in-
ternal and international war have been blurred. The cases of Somalia and
Liberia are emblematic of this new development in the practice of the United
Nations. In both, the existence of a civil war, which in traditional theory falls
within the reach of Article 2.7, was defined by the Security Council as a situa-
tion capable of threatening international peace and security and therefore sub-
ject to resolutions under Chapter VII.!2 China, which has always considered the
principle laid down in Article 2.7 as inviolable, supported the resolutions, con-
sidering the situation at hand a “unique situation” not constituting a prece-
dent.!3 Another remarkable example of this trend is Security Council Resolution
688 of April 15, 1991, which served as the basis for the intervention of member
States in the domestic affairs of Iraq in order to terminate the violation of human
rights perpetrated by the Iraqi government against the Kurdish population.!4

Almost all the principles listed in Article 2 have achieved the status of jus
cogens. After restating the sovereign equality of all members (Article 2.1), this
article proclaims the duty of member States to fulfill in good faith the Charter’s
obligations (2.2), requires States to use peaceful means to settle international
disputes (2.3), enjoins the threat or use of force against the territorial integrity
or political independence of any State (2.4), and imposes on States the duty to
give the United Nations every assistance in any action it takes in accordance
with the Charter (2.5). Article 2 also imposes on the organization a duty to en-
sure that States that are not members of the United Nations act in accordance

267


The Normative Framework of International Humanitarian Law

genocide and crimes against humanity are three legal elements:!4! (a) the pro-
hibited conduct occurred in the context of an armed conflict whether interna-
tional or non-international; (b) by a combatant; and (c) against another
combatant, a member of the civilian population, a protected person, or against
a protected target. Both customary and convention law of armed conflict de-
fine the legal context, the persons to whom the prohibitions apply and the per-
sons and circumstances under which the protections apply. That body of law
also provides for factual and legal defenses.

The overlap in legal norms also extends beyond these three crimes. It in-
cludes, for example, the commission of torture and the placing of persons under
slavery and slave-related conditions. Torture!4? and slavery and slave-related
practices!#3 are the subject of specialized international criminal law conven-
tions, but their underlying conduct is also included in the three crimes which
are within the jurisdiction. Torture may indeed be a classic example where
commission of torture can be the basis of a criminal charge for: (1) the viola-
tion of the Torture Convention;!44 (2) a war crime, if conducted by a combat-
ant in time of conflict against, for example, a prisoner of war; (3) a crime
against humanity, if torture is used in a widespread and systematic way by State
agents; and (4) genocide, if torture is used as an international means of destroy-
ing a given group in whole or in part.

Regrettably, the ICC Statute did not take into consideration the problems
of overlap between the three crimes contained in Articles 6, 7, and 8 and... for
the Elements of Crimes.!45 For the ICC however, the problem extends beyond
what the Prosecutor should charge and what judges should find as the appro-
priate crime committed when the provisions of the law are overlapping or when
the facts appear to be sufficient to satisfy the elements of more than one of
these crimes. The ICC Statute also failed to take the problems discussed above
into account with respect to the penalties.!4¢ The Preparatory Commission
also failed to take the opportunity in working on rules of procedure and evi-
dence to deal with the questions of concurrent and consecutive sentencing.
Furthermore, the ICC Statute contains a provision in Article 20 on ne bis in
idem.147 Thus the problem of overlap will also reach the Court not only by
means of what is an appropriate charge and what the judges should appropri-
ately convict on, and what penalty to mete out, but also on how the Court, and
for that matter how the Prosecutor, will determine whether a given criminal
conviction by a national court will be deemed a bar to another prosecution be-
fore the ICC and whether a given conviction by the ICC will bar prosecution
before the ICC or before national courts for another crime which may be based
on substantially the same facts.

24


W. Hays Parks

130. British submarine officers were critical of the decision to place priority on attack of
combatants; Gilbert, supra note 123, at 75, 77.

131. BOYD AND AKIHIKO, supra note 52, at 59; ROHWER, supra note 121, at 278.

132. I-10 sank the 4,473-ton Panamanian Donerail on December 10; I-4 sank the 4,858-ton
Norwegian Hedgh Merchant on December 15. The campaign off the U.S. west coast began on
December 21, when I-17 sank the U.S. Emidio. BOYD AND AKIHIKO, supra note 52, at 59,
65-67; CARPENTER AND POLMAR, supra note 93, at 17; ROHWER, supra note 121, at 278.

133. C. Goldingham, Japanese Submarines in the Second World War, J.R-U.S.I. (February
1951), at 93-94, 95; MOCHITSURA HASHIMOTO, SUNK: THE STORY OF THE JAPANESE
SUBMARINE FLEET 1942-1945 (1954), at 33, 179; M. ITO, THE END OF THE IMPERIAL
JAPANESE NAVY (1956), at 22-23, 25, 82-83, 108, 183, 198; Kennosuke Torisu, Japanese
Submarine Tactics and the Kaiten, in D. Evans, ed., THE JAPANESE NAVY IN WORLD WAR II (2"4
ed., 1986), at 440-441; BOYD AND AKIHIKO, supra note 52, at xi, 49-50, 116.

134. C. BLAIR, SILENT VICTORY (1975), at 106; MALLISON, supra note 20, at 87.

135. For example, the late Professor D. P. O'Connell stated that “The [U.S.] policy of
untestricted warfare against Japan . . . [was] justified as a reprisal for Japanese breach of the law.”
‘THE INFLUENCE OF LAW ON SEA POWER (1975), at 44. Similarly, see S. MORISON, HISTORY OF
UNITED STATES NAVAL OPERATIONS IN WORLD WAR II, vol. IV, CORAL SEA, MIDWAY AND.
SUBMARINE OPERATIONS (1949), at 190. Clay Blair, supra note 38, at 106, refers to the U.S.
action as a renunciation. In his Naval War College treatise, Professor Mallison is more
circumspect, suggesting possible operational reasons in support of Admiral Nimitz’s statement
(MALLISON, supra note 20, at 89, 90) apparently in agreement with the semi-official U.S.
submarine history, which states that the decision “was not reprisal so muchas military imperative
that caused Washington to reverse its opinion on the already abrogated naval laws.” T. ROSCOE,
UNITED STATES SUBMARINE OPERATIONS IN WORLD WAR II (1949), at 19. Professor Leslie
C. Green, whom this essay and volume honors, is more cynical: “. . .{MJilitary necessity prevailed
over respect for human tights.” L. Green, Human Rights and the Law of Armed Conflict, in ESSAYS
ON THE MODERN LAW OF WAR (1985), at 91.

136. 40 .M.T. 111; MALLISON, supra note 20.

137. At the time of the attack on Pearl Harbor, the U.S. Navy was operating under its
TENTATIVE INSTRUCTIONS FOR THE NAVY OF THE UNITED STATES GOVERNING MARITIME
AND AERIAL WARFARE (May 1941). That document does not use or define reprisal. However,
the U.S. Army Field Manual 27-10, RULES OF LAND WARFARE (1 October 1940), which was in
effect at the time, defines and discusses reprisal in the following terms (pp. 89-90):

a. Defi _—Reprisals are acts of retaliation resorted to by one belligerent against the
enemy ... for illegal acts of warfare committed by the other belligerent, for the purpose of
enforcing future compliance with the recognized rules of civilized warfare.

b. When and how employed.—Reprisals are never adopted merely for revenge, but only as an
unavoidable last resort to induce the enemy to desist from illegitimate practices. . . .

c. Form of reprisal—The acts resorted to by way of reprisal need not conform to those
complained of by the injured party, but should not be excessive or exceed the degree of violence
committed by the enemy. . . . [Emphasis supplied]

As the attack on Pearl Harbor had concluded and would not be repeated, the U.S. decision to
resort to unrestricted submarine warfare against Japan could not have been taken to induce
Japan to “desist from its illegitimate practices.” Had the United States government intended this
to be a reprisal for that purpose, it would have been necessary to communicate this to the
Japanese government, either through diplomatic communication or public announcement. It
did neither. Indeed, the December 7, 1941, order by the Chief of Naval Operations to commence

383


XV

Antecedents of the Rome Statute of the
International Criminal Court Revisited

Shabtai Rosenne

Or» JULY 17, 1998 the United Nations Conference of Plenipotentiaries
on the Establishment of an International Criminal Court adopted the
Rome Statute of the International Criminal Court (hereafter Rome Statute or
Statute).! This was the culmination of the hopes and dreams of many genera-
tions of international lawyers and others who aimed at seeing international
law placed on a sounder basis than the voluntarist conceptions so character-
istic of it.

One hundred and sixty States took part in the Conference, held in Rome be-
tween June 15 and July 17, 1998. Thirty-one official organizations and other
entities were represented at the Conference by observers. In addition, observ-
ers from 134 non-governmental organizations participated. The Rome Statute
was adopted on a non-recorded vote of 120 in favor, seven against, and 21 ab-
stentions, the remaining States not taking part in the vote. The purpose of this
article is to retrace briefly the developments that led to the Rome Statute, to-
gether with some afterthoughts.

It is a pleasure to dedicate this article to my friend of about fifty years standing, Leslie
Green. The author wishes to acknowledge the assistance of Hans-Peter Gasser,
Editor-in-Chief of the International Review of the Red Cross, in preparing this article.


Shabtai Rosenne

Three other major events occurred in this period of the prehistory of the es-
tablishment of the International Criminal Court. On February 22, 1993, the
Security Council adopted Resolution 808 (1993). In that resolution it decided
that an international tribunal should be established for the prosecution of per-
sons responsible for serious violations of international humanitarian law com-
mitted in the territory of the former Yugoslavia since 1991. It requested the
Secretary-General to submit for consideration by the Council, at the earliest
possible date, and if possible no later than 60 days after the adoption of the res-
olution, a report on all the aspects of this matter, including specific proposals
and where appropriate options for the effective and expeditious implementa-
tion of the decision, taking into account suggestions put forward by Member
States.

On May 3, the Secretary-General submitted his report.4? It is a lengthy doc-
ument, and it draws on the 1953 Report on International Criminal Jurisdiction
(see note 35 above) as one of the sources consulted. On May 23 the Security
Council adopted Resolution 827 (1993). In that resolution, acting under
Chapter VII of the Charter, it approved the Secretary-General’s report and de-
cided to establish an international tribunal “for the sole purpose of prosecuting
persons responsible for serious violations of international humanitarian law
committed in the territory of the former Yugoslavia between 1 January 1991
and a date to be determined by the Security Council upon the restoration of
peace and to this end to adopt the Statute of the International Tribunal an-
nexed to the above-mentioned report.” The Tribunal (ICTY) was formed in
November 1993 and is still in operation.

This was followed in 1994 by the adoption of Resolution 955 (1994) on No-
vember 8, 1994. Here, again acting under Chapter VII of the Charter, the Se-
curity Council adopted the Statute for the International Tribunal for Rwanda
(ICTR). The Government of Rwanda asked for this tribunal to be established
for the sole purpose of prosecuting persons responsible for genocide and other
serious violations of international humanitarian law committed in the territory
of Rwanda and Rwandan citizens responsible for genocide and other such vio-
lations committed in the territory of neighboring States between January 1,
1994 and December 31, 1994. Subject to that major difference over jurisdic-
tion, the Statute of the ICTR follows closely the Statute of the ICTY, anda sin-
gle Appeals Chamber acts for both tribunals. Unfortunately, little is known
about the activities of ICTR. Nevertheless, it is the first international tribunal
to have convicted and sentenced persons accused of the crime of genocide.5°

The third major event was the completion in 1996 by the International Law
Commission of the Draft Code of Crimes against the Peace and Security of

403


Yoram Dinstein

demarcation lines can be regarded as equivalent to international frontiers, with
all the consequences which that entails.”°8 When a line of demarcation be-
tween States is sanctioned in such a way that it can be revised only by mutual
consent (and not by force), it becomes a political or territorial border.9? The
line may not be deemed “final,” but the frontiers of no country in the world are
impressed with a stamp of finality. All international frontiers can be altered by
mutual consent, and history shows that many of them undergo kaleidoscopic
modifications through agreements. !00

It is noteworthy that when the United Nations Security Council, in 1951,
had to deal with an Israeli complaint concerning restrictions imposed by Egypt
on the passage of ships through the Suez Canal, the Council adopted Resolu-
tion 95 pronouncing that the armistice between the two countries “is of a per-
manent character” and that, accordingly, “neither party can reasonably assert
that it is actively a belligerent,”!©! It emerges from the text of the Resolution, and
the thorough discussion preceding it, that the Council totally rejected an Egyptian
contention that a state of war continued to exist with Israel after the Armistice.!0

The Israeli Armistice Agreements carry in their titles the adjective “Gen-
eral.” This was done against the backdrop of Article 37 of the Hague Regula-
tions,!©3 which sets side by side a general and a local armistice (meaning
suspension of hostilities (see infra, section III)). The Panmunjom Armistice
Agreement already omits the adjective. The omission is consistent with the
modern meaning of an armistice agreement as an end to war, for a local termi-
nation of war is an oxymoronic figure of speech. An authentic termination of
war must be general in its scope.

No doubt, an armistice agreement is never the equivalent of a treaty of
peace. When it brings war to a close, an armistice is like the first category of
preliminaries of peace (supra, section II (a) ii). Whereas a treaty of peace is
multi-dimensional (both negating war and providing for amicable relations),
an armistice agreement is restricted to the negative aspect of the demise of war.
To the extent that a distinction is drawn between associative and dissociative
peace (the latter amounting to “the absence of war, a peace defined nega-
tively”), !°4 an armistice has to be marked as a dissociative peace.

Comparatively speaking, the negation of war is of greater import than the in-
troduction or restoration of, say, trade or cultural relations. Still, when such re-
lations are non-existent, a meaningful ingredient is missing from the fabric of
peace. That is why the mere conclusion of an armistice agreement does not im-
ply recognition of a new State. Furthermore, notwithstanding an armistice,
diplomatic relations need not be established or reestablished. The frontiers
(the Armistice Demarcation Lines) may remain closed, and, in general,

143


M. Cherif Bassiouni

182. To paraphrase the classic and profoundly insightful characterization of George Orwell,
“Who controls the past, controls the future; who controls the present, controls the past.”
GEORGE ORWELL, 1984 (2d ed. 1977). Thus, to record the truth, educate the public, preserve
the memory, and try the accused, it is possible to prevent abuses in the future. See Stanley
Cohen, State Crimes of Previous Regimes: Knowledge, Accountability and the Policy of the Past, 20 L.
& SOC. INQUIRY 7, 49 (1995).

183. JOHN DONNE, DEVOTIONS UPON EMERGENT OCCASIONS XVII (1624).

The views expressed herein are solely those of the author.

55


Westphalian Peace Tradition

embryonic element of jus contra bellum was not revived; the doctrine of jus ad
bellum prevailed.

In 1699 Denmark, Poland and Russia formed an aggressive alliance against
Sweden, their plan being to launch simultaneous attacks the following year. As
a consequence, the Great Northern War (1700-1721) was unleashed, during
which Charles XII of Sweden rejected several peace offers. During the war, the
1712 edition of Grotius’ De Jure Belli ac Pacis was translated into Russian, and
inspired the Russian diplomat P.P. Shafirov to defend Peter the Great’s
first-use-of-force against Sweden. In 1717 Shafirov published A Discourse Con-
cerning the Just Causes of War Between Sweden and Russia (as it was called in the
later English version).3° Voltaire, who did not believe that Grotius had influ-
enced anything regarding the restraint of war, ironically rejected (in his book
on Charles XII) the just causes advanced by Russian diplomacy during the
Northern War.3! Under the Peace of Nystad (1721), Sweden lost her Baltic
provinces and Russia emerged as a major coastal State in the region and as a
new Great Power. The northern balance had shifted to a new equilibrium.

In the discourse of international lawyers there have been different views on
the matter of balance of power as it relates to the law on war and peace. Some
have (since the 18 century) seen the balancing system as a precondition of in-
ternational law, others have viewed it as a peace-oriented policy of preserving
the status quo, a few may have understood its preservation as amounting to a
legal obligation on the part of States, and many have considered it a formula
giving rise to legal rights of intervention and resort to force.3? The legal
consequences of the 18" century political realities amounted inter alia to an ex-
tensive interpretation of the law of individual and collective self-defence, al-
though Grotius had not included preventive war among his categories of bellum
justum. Christian Wolff, writing in 1749, thought that the balance of power was
“useful to protect the common security.” He did not believe that “the preserva-
tion of equilibrium” was in itself a just cause of war, but he nevertheless found
that nations under threat of subjugation had the right to resort to force.33

Wolffs disciple, Emmerich de Vattel, rejected conquest, property claims,
and religious differences as just causes of war, but admitted that in order to pro-
tect their interests, States had a right to resort to war in response to what they
regarded as injuries. As a consequence of this “realist” approach, Vattel’s book,
Le Droit des gens (first edition 1758) became very popular in government chan-
celleries and diplomatic circles. Vattel did not, however, completely accept the
so-called probabilist doctrine (embraced by Wolff and others before him) that
war could be just on both sides since “probable reasons” for legality could be of-
fered in the concrete case. Vattel maintained that it was impossible that two

64


INTERNATIONAL LAW STUDIES

Volume 75



Outer Void Space Not Reserved for Exclusively Peaceful Use

obligation undertaken in Article IV(1) of the Treaty has already been the sub-
ject of a General Assembly resolution exhorting all States to do likewise.

In law, it is well established that preambles to treaties do not normally con-
tain provisions with binding obligations. They may at best serve as an aid in in-
terpreting the substantive provisions of the Treaty. As the last paragraph of this
Preamble notes, what the contracting States have “agreed on” is to be found
only in the “following” articles.

In sum, contrary to a fairly prevalent misconception, there is nothing in the
Preamble which says or even suggests that outer space can only be used for

_ peaceful purposes.

Article I(1). The same can be said of Article I(1) of the Treaty, which provides:

The exploration and use of outer space, including the moon and other celestial
bodies, shall be carried out for the benefit and in the interests of all countries,
irrespective of their degree of economic or scientific developments, and shall be
the province of all mankind.

Although framed in apparently obligatory language with the imperative
“shall,” the article is extremely general and unspecific, so much so that during
the negotiations some delegates actually suggested that it should be transferred
to the Preamble.3° After all, what constitutes the benefit and interests of all
countries is highly subjective. This provision, as a legally binding command,
can easily lead to various kinds of legal sophism. Thus at the height of the Cold
War in the fifties, the United States, under the first incarnation of its Open
Skies policy3! (a term which currently is used to mean various other things),
justified its U-2 programme of overflying other countries as legitimate surveil-
lance in defence of the free world.32 Atmospheric nuclear tests at the time in
the Pacific were also justified on the same basis. No doubt the Soviet Union
would consider the defence and advance of Socialism or Communism as good
for the soul of the world. So, of course, did the Inquisition about the work of the
Inquisitor-General! Article I(1) as such can, therefore, hardly justify the view
that it obliges the contracting Parties to the Space Treaty to use outer space
solely for peaceful purposes, or solely for non-military purposes.3 Moreover,
the Declaration on International Co-operation in the Exploration and Use of
Outer Space for the Benefit and in the Interest of All States, Taking into Par-
ticular Account the Needs of Developing Countries, adopted by the General
Assembly of the United Nations on December 13, 1996, in Resolution 51/122,
has now made it quite clear that the exploration and use of outer space for pur-
poses such as those enumerated in Article I of the Space Treaty are matters of

90


Legal Issues of Multinational Military Units

establish the legal personality of the headquarters and describe the mission of
the Corps. This agreement will be subject to approval by the parliaments of the
participating States.

For other multinational Units, stationing issues are of less significance. The
LANDJUT Corps had been based in the area of Jutland/Schleswig-Holstein
since 1962, with the existing NATO headquarters of the Allied Land Forces
Schleswig-Holstein and Jutland (HQ LANDJUT) in Rendsburg being used for
command and control. HQ LANDJUT was supported by one headquarters
company and one Danish and one German signal battalion. It exercises opera-
tional command over German and Danish units which remain national units
deployed in their home countries, but which cooperate closely during exer-
cises. HQ LANDJUT was disbanded in Spring 1999 following introduction of
the new NATO command structure. However, close Danish-German army co-
operation will continue together with a new ally, Poland, in the Multinational
Corps Northeast. This formation was activated in September 1999, after Po-
land’s accession to the North Atlantic Treaty. To this end, the Ministers of De-
fense of Denmark, Germany and Poland signed a Declaration of Intent and an
agreement on initial preparations for the establishment of the trinational head-
quarters in Szczecin in March 1998. The Danish Division and the 14th (GE)
Mechanized Infantry Division (Neubrandenburg) will continue to cooperate as
they did in the LANDJUT Corps and be reinforced by the 12t (PL) Division as
anew and equal partner. Permanent deployment in foreign countries will be re-
stricted to the Danish and German elements of the Corps Headquarters based
in Szczecin. As requested by the Parties involved, Danish-German-Polish ne-
gotiations on the Corps have been conducted under German chairmanship.
The experience gained in Muenster and Strasbourg could thus be utilized for
the new trilateral corps. On September 5, 1998, the Corps Convention? was
signed in Szczecin following parliamentary approval in Denmark, Germany,
and Poland. It entered into force in October 1999.

Possible tasks and missions of multinational units were considered in Ger-
many against the backdrop of the constitutional discussion on Bundeswehr
participation in out-of-area operations, which led to the Federal Constitutional
Court’s decision of 1994.6 It is obvious that the armed forces are not only possi-
ble tools of collective defense in accordance with Article 5 of the North Atlan-
tic Treaty and Article V of the Western European Union (WEU) Treaty, but
must also be designated for multinational crisis management tasks under the
auspices of the United Nations, NATO, or WEU or on the basis of regional
agreements in accordance with Chapter VIII of the UN Charter. In addition,
they serve to plan, prepare and execute humanitarian aid activities and rescue

164


Shabtai Rosenne

In such circumstances, the human rights law, many elements of which are
regarded as possessing the quality of jus cogens, should have priority over the
law of State responsibility.

It has been seen how in the intermediate stage of this history, the General
Assembly found a close connection to exist between three separate topics on
a shared agenda with the International Law Commission: the definition of
aggression, the Draft Code of Crimes, and the international criminal court.
For a certain period the General Assembly attempted to keep them in step. To
that triad there has also to be added the codification of the law of State respon-
sibility, which the International Law Commission is planning to complete by
the year 2001. Events, however, have unraveled the initial triad, which never,
until now, has considered the law of State responsibility to belong to this
complex.

Under a series of resolutions annexed to the Final Act of the Rome Confer-
ence (note 42 above), unfinished business of the Conference to be considered
in due course by the Review Conference envisaged in Article 123 of the Statute
includes an acceptable definition of terrorism and drug trafficking and their in-
clusion in the list of crimes within the Court’s jurisdiction. In addition, the Pre-
paratory Commission is required to prepare draft texts for what is termed
“Elements of Crimes” addressed in Articles 9 and 21 of the Statute, this to be
done before the year 2000. It is also to prepare proposals for a provision on ag-
gression, including the definition and elements of crimes of aggression and the
conditions under which the International Criminal Court shall exercise its ju-
tisdiction with regard to that crime.

This wide remit to the Preparatory Commission, far beyond what is usual
for a preparatory commission, coinciding in time with the second reading of
the draft articles on State responsibility in the International Law Commission,
and during the process of the final decision on the draft Code of Crimes, pro-
vides the opportunity to put together a complete and properly co-ordinated
set of black letter texts embracing the whole law of international responsibil-
ity, including the “civil responsibility” of States, international organizations,
and other actors on the international scene capable of sustaining a claim of
international responsibility, and the international criminal responsibility of
individuals charged with breaching the basic rules of international humani-
tarian law and other rules of international law laying down international
crimes.

409


Contributors

The Honorable Shabtai Rosenne is Ambassador of Israel (retired); Legal
Advisor, Israel Foreign Ministry, 1948-1967; Deputy Permanent Representative
of Israel to the United Nations (New York), 1967-1971; and Permanent Rep-
resentative to the International Organizations in Geneva, 1971-1974; Ambas-
sador-at-Large, 1974-1983; member of the International Law Commission,
1962-1971; member of the U.S. Delegation to the International Court of Jus-
tice in the ELSI case (1989); Honorary member, American Society of Interna-
tional Law and recipient of its Certificate of Merit; Member of the Institute of
International Law and 3rd Vice-President (1997-1999); Honorary President,
Israel Branch of the International Law Association; Visiting Professor at Bar
Ilan, Cambridge (England), Utrecht and Amsterdam Universities, and Visiting
Scholar, and Faculty Adjunct, University of Virginia School of Law. Ambassa-
dor Rosenne was awarded the Manley O. Hudson medal in 1999.

Professor Alfred P. Rubin is Distinguished Professor of International Law
at The Fletcher School of Law & Diplomacy, Tufts University. He served in
1981-1982 as the Charles H. Stockton Professor of International Law at the
Naval War College and is currently President of the International Law Associ-
ation’s American Branch. His Naval War College “Blue Book,” THE LAW OF
PIRACY is now in its second edition. His latest book, ETHICS AND AUTHORITY
IN INTERNATIONAL LAW, was published by the University of Cambridge Press
in 1997.

Ambassador Dr. Robbie Sabel is a Visiting Professor at the Faculty of Law
and at the Department of International Relations of the Hebrew University, Je-
tusalem. He served for eight years as the Legal Adviser to the Israeli Ministry of
Foreign Affairs and later as Deputy Director General for Arms Control and
Disarmament of the Ministry. He was a member of Israel’s delegation to the
Geneva Humanitarian Law Conference. Ambassador Sabel is the author of the
book PROCEDURE AT INTERNATIONAL CONFERENCES, published by Cam-
bridge University Press, which received the 1997 annual award for merit from
the American Society of International Law. He is Vice President of the Israel
branch of the International Law Association.

Professor Michael Schmitt is Professor of International Law, George C.
Marshall European Center for Security Studies in Garmisch-Partenkirchen,
Germany. He has previously served on the faculties of the United States Air
Force Academy and United States Naval War College, and currently is an ad-
junct faculty member of both the NATO (SHAPE) School at Oberammergau,
Germany, and the International Institute of Humanitarian Law in San Remo,
Italy. Professor Schmitt is a retired Air Force judge advocate and former
Visiting Scholar at Yale Law School. He is the contributing editor of numerous

586


Bin Cheng

25. Cf. bilateral agreement reached on 8 June 1962 between the Academy of Sciences of the
USSR and the National Aeronautics and Space Administration (NASA) of the US on
co-operation in satellite meteorology, world geomagnetic survey and satellite telecommunications,
following an exchange of views between Khrushchev and Kennedy, and subsequently communicated
by the two governments to the United Nations, UN Doe: A/C.1/880 (5.12.62); reprinted 2 ILM
(1963) 195, with a note on its having been confirmed by both governments, and its coming into
effect. C. W. JENKS, SPACE LAW, London: Stevens (1965), prints the First Memorandum of
Understanding to implement the above agreement among its appendices, at p. 382.

26. 480 UNTS 43; 14 UST 1313; TIAS No. 5433; 2 ILM (1963) 883.

27. Art. 1, emphasis added.

28. It may be worthwhile pointing out that the Declaration of Legal Principles Governing the
Activities of States in the Exploration and Use of Outer Space [GA Res. 1962 (XVIII)] of 13
December 1963, the year before, which represents an earlier agreement between the
superpowers and which is the forerunner of the 1967 Treaty, does not include a principle similar
to Article IV of the Treaty.

29. Emphasis added.

30. Italy, UN Doc. A/AC.105/C.2/SR.64 (21.7.66), p. 4-5; France, ibid., p. 6.

31. Cf. op. cit. in note 6 above, Ch. 2: International Law and High Altitude Flights, note 11,
at p. 17, and text thereto; Ch. 6: The United Nations and Outer Space, notes 75 and 89, at pp.
103 and 106, and text thereto; V. S. Vereshchetin, ‘Open Skies’: The Metamorphosis of a Concept,
in T. L. Masson-Zwaan and P. M. J. Mendes de Leon (eds.), AIR AND SPACE LAW: DE LEGE
FERENDA (Liber Amicorum Henri A. Wassenbergh), Dordrecht: Martinus Nijhoff (1992), pp.
283-290. Itshould be added that the term is now also used in air law to describe a liberal policy in
international air transport of opening a country’s airspace to foreign airlines. See H.
Wassenbergh, ‘Open Skies’/ ‘Open Markets’: The Limits to Competition, in Chia-Jui Cheng (ed.),
THE USE OF AIRSPACE AND OUTER SPACE FOR ALL MANKIND IN THE 21ST CENTURY, The
Hague: Kluwer (1995), pp.195-204.

32. N. M. Matte in Military Uses of Outer Space and the 1967 Outer Space Treaty, in Storm van
s Gravesande and van der Veen Vonk (eds.), op. cit. in note 13 above, pp. 117-134, using a more
recent example, likewise points out that, while reconnaissance satellites may be good for their
owner-States, they are not necessarily good for the benefit and in the interests of all countries (at
p. 125).

33. See, e.g., in agreement, D. Goedhuis, Legal Implications of the Present and Projected Military
Uses of Outer Space, in Jasentuliyana (ed.), op. cit. in note 23 above, pp. 253-269, at pp. 260-261;
contra, Matte, loc. cit. in note 32 above, at p. 128. On Art. J of the Space Treaty, see further
CHENG, op. cit. in note 6 above, Ch. 9: The 1967 Space Treaty, s.V.E.: Exploration and Use for
the Benefit of All Countries, at pp. 234-236.

34. Eisenhower's speech as put out by U.S. Information Service in London, Official Text
(22.9.60), pp. 5-6. Text differs slightly from the Official Records of the General Assembly,
GA(XV) A/PV.868 (22.9.60), p. 45, at p. 48, which was based ona transcript of the recording of
the speech. In reply to an inquiry from the writer, the State Department confirmed the accuracy
of the text quoted above. See further CHENG, op. cit. in note 6 above, Ch. 6: The United Nations
and Outer Space, note 142 and text thereto, at p. 123.

35. See CHENG, op. cit. in note 6 above, Ch. 6, s. V.A.: Penetrative Reconnaissance, at pp.
104-107.

36. See C. S. Sheldon Il and B. M. DeVoe, United Nations Registry of Space Vehicles, 13 SPACE
LAW COLLOQUIUM (1970), pp. 127-141.

3


Yoram Dinstein

with Germany—discloses that, although concluded at the outset for a duration
of only 36 days? (a period later extended several times”), its far-reaching pro-
visions (obligating the German armed forces, inter alia, to surrender their arms,
to withdraw from occupied territories as well as from certain areas within Ger-
many itself, etc.) barred the possibility of resumption of hostilities by the van-
quished side. Only the victorious allies reserved to themselves the option of
resorting to force again in case of breach of the Armistice’s conditions by Ger-
many. This reading of the text is reinvigorated by the formulation of the last ex-
tension of the Armistice (without an expiry date) in February 1919.74

The innovative trend of terminating war by armistice continued, and be-
came clearer, in the armistices of World War II, which resemble peace prelimi-
naries (of the first category).”5 Significantly, in the Armistices with Romania
(1944) and Hungary (1945), these two countries declared that they had “with-
drawn from the war” against the Allied Powers.’ Romania specifically an-
nounced that it “has entered the war and will wage war on the side of the Allied
Powers against Germany and Hungary,””7 and Hungary agreed to the condi-
tion that it “has declared war on Germany.”?8 Likewise, Italy—which con-
cluded an armistice with the Allies in September 194379—declared war against
Germany in October of that year. The Preamble to the 1947 Paris Treaty of
Peace with Italy directs attention to the fact that (as a result of the declaration
of war) Italy “thereby became a co-belligerent against Germany.”8° For a tradi-
tionalist, adhering to the notion of an armistice as a mere suspension of hostili-
ties, “Italy’s co-belligerency created a highly anomalous situation juridically,
and one which to some extent defies legal analysis and classification.”8! After
all, if the war between the Allied Powers and Italy did not end until the Treaty
of Peace of 1947, Italy—the armed forces of which were fighting, after 1943,
alongside Allied formations against a common foe (Germany)8*—was the
co-belligerent of its enemies! Yet, once it is perceived that an armistice signifies
the termination of war, there is no anomaly in the status of Italy during World
War II. Earlier, Italy was a co-belligerent with Germany against the Allies. Fol-
lowing the termination of its war with the Allies—by virtue of the 1943 Armi-
stice—nothing prevented Italy from declaring war against Germany and
becoming a co-belligerent with the Allies. The same is true of Romania and
Hungary.

The evolution in the perception of armistice reached its zenith at a later stage,
with a series of General Armistice Agreements signed in 1949 between Israel, on
the one hand, and Egypt, Lebanon, Jordan, and Syria, on the other,83 followed by
the 1953 Panmunjom Agreement Concerning a Military Armistice in Korea.5+
These Armistice Agreements terminated the Israeli War of Independence and

141




Dieter Fleck

Directing and Control Authority enables the Corps Commander to take full re-
sponsibility for the implementation of all Corps directives. Accordingly, he may
issue and prioritize directives to the binational and national elements of the
Corps when necessary, with the exception of national territorial tasks. The
commander may delegate this authority to the extent required to subordinate
commanders. Unanimity of all Parties is essential for this solution; a majority
decision will not suffice. Moreover, it must be ensured that national contin-
gents (and single soldiers) are recallable at any time through national orders.
National rights and private duties, specifically with regard to disciplinary mat-
ters and complaints, are still exempt. Further steps towards full command and
control will, thus, remain subject to continued consideration.

A reevaluation of the relevant German legal doctrine*® has led to an influ-
ential academic opinion that, without prejudice to the power of command of
the Minister of Defense under Article 65a of the Basic Law, foreign command-
ers in multinational military units may be included in the chain of command
under German military law as long as unanimity exists between all ministers of
defense concerned. This opinion is based on the understanding that directives
issued at the multinational level in fact represent national directives tied up in
joint responsibility. Hence, so long as directives issued by a multinational min-
isterial committee to the commander of a multinational unit are executed by
the latter with respect to the national contingents, these directives represent
national directives to the respective national contingent. There are, however,
contrary opinions which question the compatibility between the political and
military interest in full power of command of the integrated commander and
existing German legal requirements.*? To date, no legislative solution to this
controversy has been reached.

Outside the Alliance, NATO terms and definitions do not apply unless spe-
cifically agreed. Nevertheless, the legal issues discussed here in the context of
multinational military units resurface when national contingents of various
States are tasked to cooperate in joint missions. Clear provisions should, there-
fore, be negotiated and enacted well in advance of such operations.

For peacekeeping operations under United Nations command and control,
standardized rules should be possible. Unfortunately, existing UN practice ap-
pears to be less than precise in this respect. A general provision was prepared in
the 1991 Model Agreement on troop contribution.>° Yet, the term “command”
is not clearly defined in this document. Interpretations of the term “full author-
ity over the deployment, organization, conduct and direction,” which, accord-
ing to this Model Agreement, shall be exercised exclusively by the
Secretary-General, may also differ. So far, the Model Agreement has not been

173


Appendix

British Commonwealth. 1 Encyclopedia of Public International Law, 1993,
495-499.

Universality and Modern International Law. 21 Ciencia Politica Comparada Y
Derecho Y Economia en Las Relaciones Internacionales, 1993, 6763-6792
(Vails I Taberner Festschrift).

Japan’s Wartime “Comfort” Women. The Times (London), 17 August 1993.

Comments on Arts. 11—13. In Bassiouni, Commentaries on the International Law
Commission’s 1991 Draft Code of Crimes Against The Peace and Security of
Mankind, 1993, 191-198.

Comments on “Penalties for Prior Political Association.” 87 Proceedings of the
American Society of International Law, 1993, 185-186.

Comments on Post-1945 Naval Warfare Targeting. In Grunawalt, The Law of
Naval Warfare: Targeting Enemy Merchant Shipping, 1993, 223-9.

Crimes under the I.L.C. 1991 Draft Code. 24 Israel Yearbook on Human Rights,
1994, 19-39.

Comments on Maritime Neutrality Today. Intemational Law and Armed Con-
flict, 1994, 111-118.

What Is—Why Is There—the Law of War? 5 Finnish Yearbook of Intemational
Law, 1994, 99-148; Schmitt/Green, The Law of Armed Conflict into the
Next Millennium, 1998, 101-54.

UN’s Contribution to International Peace and Security 1945-95: Legal As-
pects. Canadian Council on International Law, International Peace and Se-
curity, 1994, 6-26.

Enforcement of the Law in International and Non-International Conflicts. 24
Denver Journal of International Law and Policy, 1996, 285-320.

State Responsibility and Civil Reparation for Environmental Damage. In
Grunawalt, Protection of the Environment in Armed Conflict, 1997, 416-39.

Command Responsibility in International Humanitarian Law, 5 Transnational
Law & Contemporary Problems, 1997, 319-72.

War Crimes, Crimes Against Humanity and Command Responsibility. 50 Na-
val War College Review, 1997, 26-68.

Drazwn Erdemovié: The International Criminal Tribunal for the Former Yugo-
slavia in Action. 10 Leiden Journal of International Law, 1997, 363-81.
Lessons from the Past: Prospects for the Future. Canadian Council on Interna-

tional Law, Lessons from the Past—Blueprints for the Future, 1997, 31-43.

Erdemovié-Tadié-Dokmanovié: Jurisdiction and Early Practice of the Yugoslav
War Crimes Tribunal. 27 Israel Yearbook on Human Rights, 1997, 313-64.

The Azad Hind Fauj: The Indian National Army. In Green, Essays on the Mod-
ern Law of War, 2d ed., 1998, 411-34.

578


Christopher Greenwood

the law. That much appears to be taken for granted in the provisions of the re-
cently adopted Convention on the Safety of United Nations and Associated
Personnel, 1994. The Convention makes attacks on United Nations personnel
an offence, but Article 2(2) provides that:

This Convention shall not apply to a United Nations operation authorised by the
Security Council as an enforcement action under Chapter VII of the Charter of
the United Nations in which any of the personnel are engaged as combatants
against organized armed forces and to which the law of international armed conflict
applies. (Emphasis added.)

The problem is that there is no agreement as to when the line identified in this
provision is crossed. The scale of the fighting in which UNPROFOR and
supporting forces became involved in Bosnia would unquestionably be
sufficient to cross the very low threshold of armed conflict identified earlier in
this paper,?8 but it appears that the 1994 Convention was drafted on the
assumption that the additional protection which it affords to United Nations
personnel would have been applicable in Yugoslavia. This problem is one
which is likely to recur and to cause real difficulty in the future, since the
threshold for the application of the laws of war has now also become the ceiling
for the application of the 1994 Convention.

Moreover, even ifa particular United Nations operation is not subject to the
laws of war, it does not take place in a legal vacuum. The United Nations, no
less than its Member States, is a subject of international law and is bound by
customary international law. Concern about the behaviour of what was admit-
tedly a very small minority of United Nations troops in Somalia and certain
other operations has led to calls for a clearer identification of the legal stan-
dards with which members of United Nations forces must comply. That has led
the United Nations, after consultations with the International Committee of
the Red Cross, to draw up a set of Draft Directives for the conduct of peace-
keepers, drawn from the laws of war. It is arguable that at least some of the pro-
visions of human rights law are also applicable to United Nations
peacekeepers, either because of the adherence of Member States to human
tights treaties or because those provisions have become part of customary in-
ternational law.

The problem is that there remains far too great a degree of uncertainty on
this subject. To be effective in a military context, the law must be clear and
must not be so complex that it is incapable of practical application. The law on
United Nations operations does not yet meet those requirements, and its

193


Shabtai Rosenne

those provisions of the Treaty of Versailles were not satisfactory.!? Their im-
portance is more conceptual.

Thus, the modern process had begun.

The next step was taken a year later, in 1920. The Committee of Jurists ap-
pointed under Article 14 of the Covenant of the League of Nations to prepare
the statute of the Permanent Court of International Justice adopted a resolu-
tion for the establishment of a High Court of International Justice, to try crimes
constituting a breach of international public order or against the universal law
of nations referred to it by the League Assembly or Council. This Court would
have the power to define the nature of the crime, fix the penalty, and decide
the appropriate means of carrying out the sentence. The resolution came be-
fore the first session of the League Assembly (1920) which, however, did not
adopt it, and the matter was accordingly dropped.!8

At this point, nongovernmental organizations began to show interest in the
matter. Drafts were prepared by the Inter-Parliamentary Union, the Interna-
tional Law Association, the International Congress of Penal Law and the Inter-
national Association of Penal Law (this latter adopting a proposal by V.V. Pella,
who was to play an important role after the Second World War).!9 At that stage
there was a widespread feeling—not shared in political circles—that in one way
or another appropriate competence should be conferred on the Permanent
Court of International Justice, then a new and untried international institution.

On the diplomatic front, the Special International Conference on Repres-
sion of Terrorism was in session from 1 to 16 November 1937. It adopted a
Convention for the Prevention and Punishment of Terrorism and a Conven-
tion for the Creation of an International Criminal Court, neither of which,
however, entered into force.?0 That Court’s jurisdiction was limited to the of-
fenses set out in the Convention for the Prevention and Punishment of Terror-
ism. The judges were to be nominated by States parties, and chosen by the
Permanent Court of International Justice. The Convention was quite detailed,
with 56 articles in all (including the final clauses). Considering the general de-
terioration of the international situation by 1937, it is quite remarkable that
this Conference, attended by 31 States—including the Soviet Union, but not
Germany, Italy or Japan—could reach agreement on such complex texts,
something that really was to elude the United Nations until 1998.

Restart in the United Nations (1945-1967)

The Declaration on the Defeat of Germany and the Assumption of Supreme
Authority with Respect to Germany, signed at Berlin on June 5, 1945, was the

393


Making Law of War Treaties

The signatory powers invite the adherence
of all other civilized powers to the foregoing
statement of established law to the end that
there may be clear public understanding
throughout the world of the standards of con-
duct by which the public opinion of the world
is to pass judgment upon future belligerents.

IL. The signatory powers recognize the prac-
tical impossibility of using submarines as com-
merce destroyers without violating the
requirements universally accepted by civilized
nations for the protection of the lives of neu-
trals and noncombatants, and to the end that
the prohibition of such use shall be univer-
sally accepted as a part of the law of nations,
they declare their assent to such prohibition
and invite all other nations to adhere thereto.

Atticle IL

The signatory powers invite all other civi-
lized powers to express their assent to the
foregoing statement of established law so that
there may be a clear public understanding
throughout the world of the standards of con-
duct by which the world public opinion is to
pass judgment upon future belligerents.

Article IV

The signatory powers recognize the practi-
cal impossibility of using submarines as com-
merce destroyers without violating, as they
were violated in the recent war of 1914-18,
the requirements universally accepted by civi-
lized nations for the the protection of the
lives of neutrals and noncombatants, and to
that end the prohibition of the use of subma-
tines as commerce destroyers shall be univer-
sally accepted as a part of the law of nations,
they now accept that prohibition as hence-
forth binding as between themselves and they
invite all other nations to adhere thereto.

IIL. The signatory powers, desiring to insure
the enforcement of the humane rules de-
clared by them with respect to the prohibition
of the use of submarines in warfare, further
declare that any person in the service of any
of the powers adopting these rules who shall
violate any of the rules thus adopted, whether
or not such person is under orders of a gov-
ernment superior, shall be liable to trial and
punishment as if for an act of piracy, and may
be brought to trial before the civil or military
authorities of any such powers within the ju-
risdiction of which he may be found.

Article III

The signatory powers, desiring to insure the
enforcement of the humane rules of existing
law declared by them with respect to attacks
upon and the seizure and destruction of mer-
chant ships, further declare that any person in
the service of any power who shall violate any
of those rules, whether or not such person is
under the orders of a government superior,
shall be deemed to have violated the laws of
war and shall be liable to trial before the civil
or military authorities of any power within the
jurisdiction of which he may be found.

In its re-worded form, the Root Resolution was adopted by the conference
with an express stipulation demanded by Root that a forthcoming commission
of jurists would not have authority to examine it.68 Its survival was at risk from
the outset.% Its intent was to accomplish through ambiguous regulation what
could not be achieved through express prohibition.”? It did not resolve issues
raised in the recent war. The well-established legal distinction between com-
merce raiding and blockade, blurred by both sides during that conflict, was not

350


The Law of Armed Conflict as Soft Power

apparent. Analogous subtlety exists when considering prospective normative
regimes. The ICC Statute brouhaha offers multiple examples. Unconsented to
jurisdiction over U.S. ‘personnel, an obvious consequence, is central to U.S.
hostility. But there are other somewhat more abstruse consequences. For in-
stance, by refusing to participate in the regime (as it now exists), and by align-
ing itself, however intentionally, with the global miscreants that populate the
opposition camp, the United States sets itself apart from virtually all of its key
partners. In doing so, it risks forfeiting some degree of normative stewardship
that it would otherwise exercise as the sole superpower. Indeed, opting out of a
regime as normatively axial as the Court could potentially tarnish the general
perception of the United States as committed to the rule of law (might criticism
of NATO—aka U.S.—bombing during Operation Allied Force portend future
skepticism towards U.S. compliance with the law of armed conflict?). Opting
out also forgoes an opportunity to aggressively lead the Court in directions that
advance U.S. interests.

On the other hand, by the terms of the Statute the Court is empowered to
exercise jurisdiction even over nationals of States that are not Party to it.45 Of
course, many of the crimes enumerated admit.of universal jurisdiction, but ar-
guably the Statute goes beyond the present scope of such jurisdiction. That be-
ing so, it bears on the nature of the international law-making process,
particularly its consent-based predilection, and on the normative valence of
widely ascribed-to agreements. Thus, opposition to the jurisdictional provi-
sions may be justified by far broader concerns than the unlikely prospect that a
USS. soldier may.one day be unjustly hauled before the Court; the subtler con-
sequences are perhaps the more insidious.

As should be apparent, it is absolutely essential that decision-makers ap-
praise strategies at every level of contact. What may seem appealing at one
level might prove disastrous at another. Further, the subtlety of
consequentiality is profound in the legal arena. Any urge to focus on the imme-
diately apparent consequences must be resisted lest a far more determinative
one be missed. The goal is not simply a strategy that fosters objectives (and
thereby interests) or deters threats thereto, but rather one that represents a net
advance of interests. To accurately calculate such advances requires robust
analysis.

The U.S. Environment

Although this essay is about the process of choice, not any particular U.S.
policy decision regarding the law of armed conflict, it may be useful to

472


Bin Cheng

free and voluntary co-operation between States “on an equitable and mutually
acceptable basis.” The pursuit of those purposes is, therefore, not a condition
governing the contracting States’ space activities.

Articles IX and XI. Articles IX and XI are the only articles, other than Article
IV, where the word peaceful is found. They are worded as follows:

Article IX: In the exploration and use of outer space, including the moon and
other celestial bodies, States Parties to the Treaty shall be guided by the
principles of co-operation and mutual assistance and shall conduct all their
activities in outer space, including the moon and other celestial bodies, with due
regard to the corresponding interests of all other States Parties to the Treaty.
States Parties to the Treaty shall pursue studies of outer space, including the
moon and other celestial bodies, and conduct exploration of them so as to avoid
their harmful contamination and adverse changes in the environment of the
Earth resulting from the introduction of extraterrestrial matter and, where
necessary, shall adopt appropriate measures for this purpose. If a State Party to
the Treaty has reason to believe that an activity or experiment planned by it or its
nationals in outer space, including the moon and other celestial bodies, would
cause potential harmful interference with activities of other States Parties in the
peaceful exploration and use of outer space, including the moon and other
celestial bodies, it shall undertake appropriate international consultations before
proceeding with any such activity or experiment. A State Party to the Treaty
which has reason to believe that an activity or experiment planned by another
State Party in outer space, including the moon and other celestial bodies, would
cause potentially harmful interference with activities in the peaceful exploration
and use of outer space, including the moon and other celestial bodies, may
request consultation concerning the activity or experiment.

Article XI: In order to promote international co-operation in the peaceful
exploration and use of outer space, States Parties to the Treaty conducting
activities in outer space, including the moon and other celestial bodies, agree to
inform the Secretary-General of the United Nations as well as the public and
international scientific community, to the greatest extent feasible and
practicable, of the nature, conduct, location and results of such activities. On
receiving the said information, the Secretary-General of the United Nations
should be prepared to disseminate it immediately and effectively.

Both provisions make it abundantly clear that they are merely promoting in-
ternational co-operation in the “peaceful exploration and use of outer space.”
Like the Preamble and Article I, they carry no suggestion that outer space can
be used only for peaceful or non-military purposes. The reference to “peaceful”

91


Michael N. Schmitt

objectives within concentrations of civilians.38 Such a strategy comes at signifi-
cant cost, for incendiaries are particularly useful against certain targets, such as
bunkered, biological, or chemical facilities3° Thus, adoption of the prohibition
costs the military commander a useful tool to achieve other valid objectives in
pursuit of national interests. Or consider nuclear weapons. There is little ques-
tion but that such weapons are extraordinarily destructive, so much so that the
International Court of Justice has opined that their use in situations other than
self-defense where the survival of the State is at stake (and perhaps even then)
violates the law of armed conflict.“ Yet, as illustrated during the Gulf War, nu-
clear weapons may well be valuable in deterring the use of other weapons of
mass destruction, particularly those unavailable to the nuclear power as a result
of other normative strictures, such as the prohibitions on chemical and biologi-
cal weapons.*! Their unavailability to deter (or respond and compel an oppo-
nent to desist from further use) is an opportunity cost that must be considered
in appraising whether the State in question should support a normative strat-
egy opposing their possession or use.

Reverberating Effects: Related to opportunity costs is the reverberating ef-
fects variable. Whereas opportunity cost calculations are characterized by di-
tect tradeoffs among the objectives pursued, reverberating effect is the indirect
fallout from a particular strategy choice. Opportunity costs deny a warfighter
the opportunity to pursue a course of action that would advance an objective;
reverberating effects are the incidental costs associated with a particular strat-
egy choice.

Return to the incendiary example. A reverberating effect of the prohibition
thereon would be that warfighters might have to resort to weapons that would
actually cause greater collateral damage or incidental injury than would be the
case with incendiaries. Thus, while the opportunity cost is an inability or di-
minished capability to attack a target, the reverberating effect is unintended
harm to civilians and civilian property. As this case illustrates, a reverberating
effect may paradoxically bear on the very objective (protection of civilians and
civilian objects) that the prescriptive norm seeks to advance in the first place.
The prohibition on permanently blinding lasers found in the Conventional
Weapons Convention presents a similar example.*? As a result of the prohibi-
tion, commanders who would have otherwise employed blinding lasers to foif
an attack on their perimeter will be forced to resort to traditional weapons such
as mortars, mines (barring an Ottawa Treaty prohibition), and machine guns.
This is an opportunity cost. The reverberating cost is the increased collateral
damage and incidental injury that might result in certain circumstances from
the use of kinetic means of defense.

469


Appendix

The Asylum Case. 4 International Law Quarterly, 1951, 229-39.

Lauterpacht’s International Law and Human Rights. 4 Ibid., 1951, 126-9 (re-
view article).

The Nature of the “War” in Korea. 4 International Law Quarterly, 1951, 462-8.

The Continental Shelf. 4 Current Legal Problems, 1951, 54-80.

Legal Aspects of the Schuman Plan. 5 Current Legal Problems, 1952, 274-94.

The Anglo-Norwegian Fisheries Case. 15 Modern Law Review, 1952, 373-7.

Report on Sociological Aspects of World Affairs. 6 Year Book of World Affairs,
1952, 276-96.

Making Peace with Japan. 6 Ibid., 1952, 1-35.

The Status of Pakistan. 6 Indian Law Review. 1952, 65-77.

Recent Practice in the Law of Extradition. 6 Current Legal Problems, 1953,
274-96.

With J. Frankel, Report on Sociological Aspects of World Affairs. 7 Year Book
of World Affairs, 1953, 308-27.

The Security Council in Retreat. 8 Ibid., 1954, 95-117.

The Status of the International Civil Service. 7 Current Legal Problems, 1954,
192-211.

With B. Cheng, Memorandum on Technical and Minor Amendments to the
Charter. Appendix 5 to Schwarzenberger’s Report to the Edinburgh Con-
ference of the International Law Association on Review of the Charter of the
ULN., 1954.

The Right to Learn. 3 Indian Year Book of Intemational Affairs, 1954, 268-89.

The International Legal Conference—New Delhi. 3 International and Compar-
ative Law Quarterly, 1954, 484-9.

The International Civil Servant, His Employer and His State. 40 Grotius Soci-
ety Transactions, 1954, 147-74.

Territorial Waters and the Onassis Case. 11 The World Today, 1955, 1-3.

Human Rights and the General Principles of Law. 8 Current Legal Problems,
1955, 162-84.

Priroda madunarodnog praca (La nature de droit international). 2
Jucroslovenska Revija za Medunarodno Pravo, 1956, 268-70.

The Double Standard of the United Nations. 11 Year Book of World Affairs,
1957, 104-37.

Armed Conflict, War and Self-Defence. 6 Archiv des Vélkerrechts, 1957,
387-438.

McNair’s International Law Opinions. 20 Modem Law Review, 1957, 675-8.

The International Labour Organization Under Pressure. 10 Current Legal Prob-
lems, 1957, 57-84.

567


The Normative Framework of International Humanitarian Law

Asa result, there is an overlap in the binding legal effect of these conventions
since they are first binding on their signatories, then also binding on the same sig-
atories and on all other States because they are part of customary law. But some
governments, like the United States, argue that only portions of Protocols I and II,
which the United States has not yet ratified, have risen to the level of a gen-
eral custom. Selecting what is and what is not part of custom is not only a chal-
lenging legal exercise, but one that is fraught with political considerations. !00

As earlier noted, the “Law of Geneva” is divided into two categories: (1)
“conflicts of an international character” where violations (war crimes) are re-
ferred to as “grave breaches”!01—well defined, but applicable only to armed
conflicts taking place between States; and (2) “conflicts of a non-international
character” where violations are not referred to as “grave breaches”—involving
a foreign element, according to some, but applicable mainly to armed conflicts
between a State and a belligerent or insurgent group within that State. There
are, therefore, two regimes applicable to war crimes within the “Law of
Geneva:” the “grave breaches” regime of the four Geneva Conventions of 1949
and Protocol I, in addition to the “violations” regime of common Article 3 of
the four Geneva Conventions of 1949 and Protocol II. Within the first “grave
breaches” regime, war crimes are not limited to “grave breaches” but extend to
other transgressions of norms contained in these codifications which also in-
corporate customary law. Within the second “violations” regime there is linger-
ing reluctance to consider all the transgressions of norms contained in Protocol
IL as war crimes. In that regime, “violations” of common Article 3 are deemed
war crimes and require no foreign element to make common Article 3 applica-
ble; but, Protocol II, which applies to this regime, precludes the application of
common Article 3 to conflicts between dissident groups within a given State.
Thus, the two regimes of the “Law of Geneva” exclude most of those conflicts
that may be deemed purely internal conflicts, including tyrannical regime vic-
timization, even though these types of conflicts have caused most of the world’s
wartime victimization since World War II.

As noted, conflicts of a “non-international character” are regulated in the
1949 Geneva Conventions by a single article, common to all four conven-
tions—common Article 3.12 Protocol II expands upon common Article 310
relative to what that article deems to be “violations” and not “grave breaches.”
But, common Article 3 and Protocol II are limited in scope and do not have the
specificity or detail contained in the articles defining “grave breaches.” The
“grave breaches” contained in common Articles 50, 51, 130, and 147 of the
1949 Geneva Conventions embrace nine categories of war crimes:

12


Christopher Greenwood

civilian population and possibly to cause great damage and even loss of life
amongst that population. As such, it should be subject to the same principles of
distinction and proportionality considered above and there is no compelling
reason why its legality cannot be assessed by reference to these principles, not-
withstanding that the principles were devised in the context of attacks carried
out with weapons of a wholly different kind.

Part IL

The Impact of the Law on Decision-Making

hat impact, then, do these rules of international law have upon deci-

sions regarding the use of force? To the “realist” school of interna-
tional relations, the answer is “none.” For them, international law is no more
than “the advocate’s mantle artfully draped across the shoulders of arbitrary
power.” Theirs, however, is a “realism” far removed from the reality of the way
in which most governments conduct international relations. Governments do
not, for the most part, employ legal advisers merely to provide an apologia for
decisions already taken on policy grounds, but because legal considerations are
one of the factors which have to be taken into account in the process of deci-
sion, particularly where the question for decision is whether, or how, to use
force in order to achieve a particular goal. While it would be naive to imagine
that legal considerations are invariably the controlling factor, it is equally unre-
alistic to assume that they have no influence at all.

Indeed, even if the cynical view were correct, and the role of the lawyer is no
more than to drape a mantle over the projection of power, law would retain a
degree of significance. Such a mantle is employed only because most States are
concerned at least to appear to be acting within the law. It is, therefore, of some
importance to States that the mantle is not threadbare—as it was with at least
some of the arguments advanced by the United States to justify its 1989 inter-
vention in Panama—still less manifestly illusory, as was the case with the
USSR’s attempts to justify its intervention in Afghanistan a decade earlier or
the British Government’s arguments over the Suez intervention in 1956.

That is particularly so when the use of force has any kind of multilateral
character and especially where the decision to use, or at least to authorise the
use of, force is taken within the United Nations or another international orga-
nization. To obtain the authorization of the Security Council for military oper-
ations, a State must be able to deploy a plausible case that there is a threat to

195


Ove Bring

On making the statement, Lord Castlereagh noted that he desired a treaty
which would “reestablish a general and comprehensive system of Public Law in
Europe.” It was jus contra bellum, but primarily in the collective security sense.
First use of force mandated by the Powers was not excluded.

The balance of power was monitored through consultations at international
conferences: Vienna 1815; Aix-la-Chapelle (Aachen) 1818; Troppau (Opava)
1820; Laibach (Ljublana) 1821; and Verona 1822. The conference majority in
Troppau agreed upon a legitimization of intervention in the affairs of other
States (where the current political order was threatened), although British di-
plomacy had resisted and done its best to prevent this development. When
Austria under Metternich intervened against the revolutionaries in Naples in
1820, Britain objected. Three years later, when France intervened against the
liberal insurgents in Spain, Britain objected again.

Conference diplomacy took a more constructive turn in 1830 when the risk
that France and Prussia would intervene on either side of the Belgian uprising
against the Dutch supremacy surfaced. In order to maintain European peace
and security, a diplomatic conference was convened in London. Under the
leadership of Lord Palmerston, a process of crisis management was initiated,
one which yielded concrete results; Belgian independence was recognized in
1830 and Belgian neutrality in 1831. When the Netherlands attempted to
undo the results of the conference through armed force, Britain and France in-
tervened militarily and secured the conference solution.

It is often said that the Congress system and the European Concert broke
down after a relatively short time, but in the mind of many political participants
during the latter part of the century (e.g., William Gladstone) the European
Concert retained its relevance as an ideological project. The important thing,
from a historical point of view, is the observation that conference diplomacy as
a phenomenon was there to stay. The fact that this diplomacy, if not preven-
tive, at least was crisis management oriented, is of relevance for the history of
the law of collective security. However, it is of limited importance for our
theme of jus contra bellum developments.

The Ministerial Congresses and the Diplomatic Conferences of the time
were reactive, not proactive, as regards interstate use of force. With the excep-
tion of treaties on neutralization of small areas, international negotiations were
not concerned with normative blueprints in order to forestall aggression and
other uses of force; rather, they were concerned with crisis management after
the outbreak of war. This is true for the 1841 Turkish Straits Agreement (con-
cluded between the five Great Powers and Turkey), the 1850 London Peace
Agreement after the first Schleswig-Holstein War (between Prussia and

71


Making Law of War Treaties

basis for attempting to offset the threat. Nor was it a suitable way to balance the
national budget.

3. The likelihood that an effective, lawful weapon can be banned is limited. The
history of the law of war is replete with unsuccessful efforts to ban weapons that
have legitimate military value. The attempt to ban the submarine is one exam-
ple. A respected expert of that era observed that no effective weapon has ever
been banned.!64 The failure of the negotiators to acknowledge this did not au-
gur well for their efforts.

4. If it is to succeed, a law of war provision must be balanced. It cannot favor the
operational capabilities of a party to the conflict over another. The 1922 Submarine
Treaty and its successors placed the submarine at an unreasonable disadvan-
tage, assuring failure of the rules, once conflict occurred.

5. Beware those who proffer “humanitarian” arguments. No one party in law of
war negotiations generally has a monopoly on humanitarian concerns. The
“humanitarian card” was played against the submarine, because other argu-
ments against its use were unpersuasive. Concern for human life includes the
lives of military personnel, not just civilians.

6. The likelihood of success for a law of war treaty is in direct proportion to who
participated in the negotiations and became a party to it, and why. The nation with
the greatest experience with submarines, Germany, was excluded from each
conference that considered prohibiting or regulating submarines. It is possible
that more realistic rules might have been produced had Germany been in-
cluded. However, participation by every nation in law of war negotiations, in
today’s practice, does not necessarily increase the likelihood for success. The
ability to understand an issue generally is in direct proportion to the time that
has elapsed since a nation’s military forces have been in combat. A nation may
be willing to accept unrealistic rules if they are perceived as irrelevant to the
nation’s interests or to foreseeable threats to its security. Similarly, the recent
practice of adopting new rules by majority vote, rather than consensus, mili-
tates against the likelihood of their long-term success. Likewise, the fact that
there are a certain number of States Party to treaty xis of little relevance. A na-
tion may agree to the most benevolent rules in peacetime. The test is whether
that nation is likely to follow those rules when it is involved in conflict, when its
national security is directly threatened and its men and women are dying on
the battlefield.

7. Treaties based primarily upon emotional appeal may offer short-term political
gain, but have less chance of long-term respect. The 1922 Submarine Treaty and
its 1930 and 1936 successors were constructed in part in response to emotional
thetoric rather through dispassionate deliberation. Singling a weapon out for

366


The Law of Armed Conflict as Soft Power

43. The Hague Tribunal is handling violations of the law of armed conflict and other offenses
occurring in the former Yugoslavia, whereas the Arusha Tribunal is doing the same for events in
Rwanda. International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991, U.N. Doc. $/25704, annex (1993), reprinted in 32 INTERNATIONAL
LEGAL MATERIALS 1192 (1993); International Tribunal for the Prosecution of Persons
Responsible for Genocide and Other Serious Violations of International Humanitarian Law
Committed in the Territory of Rwanda and Rwandan Citizens, S.C. Res 955, annex, reprinted in
33 INTERNATIONAL LEGAL MATERIALS 1602 (1994).

44. For example, by releasing oil into the Persian Gulf and setting over 500 oil wells ablaze.
While the actual motivation remains a mystery, it is theoretically possible that he took the
former action to foil any amphibious landing and the latter to complicate Coalition aerial
operations.

45. This is because, by Article 12, jurisdiction extends to nationals of States that are Party to
the Statute or to crimes committed on the territory of a Party. Interestingly, in certain
circumstances jurisdiction does not extend to nationals of States which are Party to the Statute.
For instance, Article 11 provides that it does not have jurisdiction over offenses committed by
nationals of a Party State when the offenses were committed before ratification, and jurisdiction
is based on Party status.

46. For speculation on how warfare in the future might affect the normative (and moral)
architecture intended to govern it, see Charles J. Dunlap, Jr., Technology and the 21st Century
Battlefield: Recomplicating Moral Life for the Statesman and Soldier (Strategic Studies Institute
Monograph, Army War College, Jan. 15, 1999); Michael Schmitt, Bellum Americanum: The U.S.
View of Twenty-first Century War and Its Possible Implications for the Law of Armed Conflict, 19
MICHIGAN JOURNAL OF INTERNATIONAL LAW 1051 (1998); Michael N. Schmitt, Future War
and the Principle of Discrimination, 28 ISRAEL YEARBOOK ON HUMAN RIGHTS 51 (1999).

47. Cultural Property Convention, supra note 5.

48. When it ratified the Protocol in 1975, the U.S. reserved the right to use chemical weapons
if the other side did so first. The U.S. also maintained the position that the agreement did not
extend to riot control agents or herbicides, but by an executive order established a policy
requiring Presidential approval in most cases of first use. Executive Order 11850, 40 Fed. Reg.
16187 (1975). To a more limited extent, this has remained an issue with the 1993 Chemical
Weapons Convention, which was ratified by the United States and came into force in April
1997. For a discussion of the topic, see OPERATIONAL LAW HANDBOOK, supra note 39, at 5-13 -
5-14.

49. Advantage was taken of the change as early as the Gulf War. Recall the President's
decision on November 8, 1990, to reinforce deployed Desert Shield forces by approximately
200,000 personnel. To fulfill this requirement, the Army turned to VII Corps, based in Europe.
Among the reasons cited for selection of VII Corps was the fact that “the military threat was
significantly lower in Europe and would safely permit removal of one Corps.” CONDUCT OF THE
PERSIAN GULF WAR, supra note 12, at E-27.

50. The United States was an early supporter of the International Criminal Court, and, thus,
was arguably doing so.

51. On Engagement, see NSS, supra note 24, at 1-3.

482


Christopher Greenwood

All members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any State, or in
any other manner inconsistent with the Purposes of the United Nations.

Since the principal purpose of the United Nations is the maintenance of
international peace and security,> this provision has generally been interpreted
as stating a ban on any threat or use of force in international relations unless
that use or threat of force is justified by a specific exception to the general rule.
The Charter itself expressly provides for only two exceptions: the right of
individual or collective self-defence in the event of an armed attack, which is
preserved by Article 51 of the Charter,+ and the use of force under the
authority of the Security Council when the Council takes enforcement action
under Chapter VII of the Charter. Although States and writers have from time
to time suggested that other justifications for the use of force exist under
customary international law and are not affected by Article 2(4) of the
Charter—for example, a right of humanitarian intervention, of reprisals, of
intervention to promote democracy, and intervention to protect a State’s
nationals outside its territory—all of these are disputed. Even the right of
humanitarian intervention, which has assumed such importance in the last few
years, still arouses considerable controversy? (although this writer will argue
that this right forms part of the corpus of modern international law).

Since enforcement action by the Security Council was virtually unknown
before 1990,6 until that date the law on resort to force was in practice defined
by the limits which international law placed on the right of self-defence. Article
51 of the Charter gives only a partial indication of those limits:

Nothing in the present Charter shall impair the inherent right of individual
or collective self-defence if an armed attack occurs against a member of the
United Nations, until the Security Council has taken measures necessary to
maintain international peace and security. Measures taken by members in the
exercise of this right of self-defence shall be immediately reported to the Security
Council and shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such action as
it deems necessary in order to maintain or restore international peace and
security.

Thus, although self-defence is intended to protect the State, no indication is
given of what “the State” means for these purposes. Clearly, an act such as
Traq’s invasion of Kuwait was an armed attack upon the State of Kuwait, but
the concept of a State includes more than just territory; it also encompasses

181


Sharon A. Williams

victims must consent. The origins of the principle of universal jurisdiction can
arguably be traced to international piracy,*4 the slave trade45 and more latterly
to war crimes,‘ crimes against humanity,4” and genocide.*8 Most recently, the
prosecutions before the Ad Hoc International Criminal Tribunals for the For-
mer Yugoslavia (ICTFY) and Rwanda (ICTR) illustrate this fundamental prin-
ciple. For example, as explained in the amicus curiae brief presented by the
United States in the Tadic case, “The relevant law and precedents for the of
fences in question here—genocide, war crimes and crimes against human-
ity—clearly contemplate international as well as national action against the
individuals responsible. Proscription of these crimes has long since acquired
the status of customary international law, binding on all States, and such
crimes have already been the subject of international prosecutions by the
Nuremberg and Tokyo Tribunals.”49

More recently, in Prosecutor v. Furundzija, the ICTFY stated that the prohi-
bition against torture has “evolved into a peremptory norm or jus cogens. . .
Clearly, the jus cogens nature of the prohibition against torture articulates the no-
tion that the prohibition has now become one of the most fundamental standards
of the international community.”°° As well, Lord Browne Wilkinson, speaking
with the majority in the House of Lords in Regina v. Bartle et al., ex parte
Pinochet, held that “the jus cogens nature of the international crime of torture
justifies States in taking universal jurisdiction over torture wherever committed.”5!

The German proposal attracted strong support from some delegations** and
from many of the NGOs.*3 The view central to this proposal was that to limit
the potential of the ICC by requiring some form of State consent beyond ratifi-
cation would detract from the effectiveness of the Court and even its rationale
and philosophical underpinnings. Thus, the impact of the German proposal
would have been to give the ICC universal jurisdiction54 over the listed crimes
with no need for a separate consent of interested States. As Germany indicated
in Rome, the universal principle’s application would have eliminated loop-
holes. For example, if consent of at least the territorial State was necessary and
if genocide was committed in State X against nationals of State X, and X is not
a Party to the Statute and the United Nations Security Council does not refer
the matter to the ICC acting under Chapter VII of the United Nations Char
ter,°6 the crime would not be cognizable by the Court. Similarly, it is true that
in the case of internal armed coriflicts, the territorial State and State of nation-
ality will often be one and the same. The ICC would only have jurisdiction if
that State had become a State Party before the conflict, agreed ad hoc due to
domestic political procedures, or if the Security Council acted under Chapter
VIL.57 As well, the restrictions of State consent would mean that even where

545


Jus Pacis ac Belli?

Do ut des, to consider the application of this principle to his own affairs as fair
and just, and to come to an understanding with his fellowmen on the standards
by which the quid pro quo is to be determined. In exceptional circumstances,
man is prepared to give more than he takes. This may be due to inferiority of
power or to mistake and fraud. Then, reciprocity is achieved merely in a formal
sense. In the first case, the lacking equivalent is made up by the awareness of
the hypothetical situation in case agreement had not been achieved or the law
of power had not been obeyed. In the second case, reciprocity is assumed but
does not exist in reality. These two examples represent typical social constella-
tions. The willingness to forego actual reciprocity may, however, also be due to
a voluntary self-limitation and self-denial, when reciprocity in a spiritual sense
is achieved by the consciousness of such sacrifice and its acknowledgment by
the community. Thus, power, reciprocity and coordination seem to be the
three constant elements of law, and the preponderance of one or the other ap-
pears to depend on the type of the group in which law fulfills its specific
functions.

International law is a typical social law and a type of social law which does
not condition, but is conditioned, by the rule of force.?5 Therefore, it is hard to
conceive a more unrealistic assumption than the one which is the basis of the
modern doctrine of international law: the normality of peace. The state of
peace, as it exists between major wars, is nothing but the interval between the
dynamic periods in which previous systems of power politics undergo a process
of confirmation or transformation. The peace treaties of Westphalia, Vienna
and Paris are the Magnae Cartae in which the hierarchy of power achieved dur-
ing the wars preceding them has been continuously redefined. As peace is the
result of force, it requires force to uphold the statics of any peace interval. This
means that the same Power which has won the war must maintain the peace af-
ter the war. Therefore, within a system of power politics, there cannot exist any
intrinsic difference between peace and war.

This explains why the law of peace contains so many rules directly related to
the maintenance and justification of power politics in general and of specific
systems of power politics established as the result of major wars. The functions
of such rules are primarily those of an ideology. Norms such as title by conquest
for the acquisition of territory, or the exclusion of duress as a ground for invali-
dating a peace treaty, are ina different category, as compared with those on the
three-mile limit or on diplomatic immunity. They are still more different from
those which govern the work of the International Commission for Air Naviga-
tion or the organization for the International Anti-Drug Campaign. The first
category is representative of the law of power, congenial to an international

500


Westphalian Peace Tradition

and Turkey) as a peace maintenance mechanism. Saint-Pierre advocated a fed-
eration of European/Christian States based on the post-Utrecht status quo. He
saw the proposed federal structure as a way to prevent international and inter-
nal armed conflict. Disputes would be resolved by peaceful means, i.e., by arbi-
tration or judicial process within the framework of a permanent assembly of
State representatives. The Assembly (or Senate) would function under the
leadership of the existing major powers. These States would possess more votes
than others under the decision-making procedure. Common decisions on en-
forcement measures could be taken to uphold the status quo or implement the
desired order. War as a means of coercion, on the part of the Federation, was
envisaged as the ultimate sanction against recalcitrant States.3? In this respect,
Saint-Pierre’s thinking was part of a Westphalian heritage of collective secu-
rity. His peace project included an important element of jus contra bellum, not
in the strict and direct UN Charter “Article 2(4) sense,” but in the broader and
more general perspective that will always be intertwined with any peace plan
for common or collective security.

Saint-Pierre’s ideas became well known in Europe and they were com-
mented upon by Frederick the Great, Voltaire, Rousseau and others—al-
though often in a sceptical or even ironic fashion. Rousseau abridged and
reviewed his project in an essay—Extrait du projet de paix perpétuelle d. M. l’Abbi
de St. Pierre (1760)—and has, therefore (at times), been perceived as a strong
supporter of Saint Pierre and his peace plan. In fact, Rousseau thought it naive,
but applauded Saint-Pierre’s aspirations.

Montesquieu, in De l’Esprit des lois (1748), came close to embracing the
stricter jus contra bellum approach when he rejected the right of conquest (ex-
cept as a matter of self-defence) and advocated the principles that “nations,
without prejudicing their true interests, in time of peace ought to do one an-
other all good they can, and in time of war, as little injury as possible.”38 The
former proposition would today include the peaceful settlement obligation of
Articles 2(3) and 33 of the UN Charter, while the latter would refer to the prin-
ciples underlying the international humanitarian law of armed conflict. Mon-
tesquieu’s views on natural law in this respect supplements this proposition. In
arguing against Thomas Hobbes’ thesis of men by nature being in a state of war,
he claimed that “peace would be the first law of nature.”39

In the 1780's, Jeremy Bentham crafted a peace project—‘Plan for a Univer-
sal and Perpetual Peace”—but it was not published until after his death in the
volume Principles of Intemational Law (1843) and thus could not exert any in-
fluence during the period under consideration. In it, Bentham criticized Vattel
and other naturalists. He aimed at a codification of international law that

66


UN Forces and International Humanitarian Law

would seem that it should apply at least by analogy. This, however, would prob-
ably not be true of any principles of IHL that are jus cogens,4#as many commen-
tators have asserted in general or with reference to particular rules. The
difficulty is that, in the absence of any authoritative determination of what, if
any, IHL principles have attained that unassailable status,45 any limits on the
powers of the Security Council in this regard are vague.

It should be noted that this discussion is entirely theoretical, for, so far, the
Security Council has in no instance given any instruction to a UN operation, or
authorization to a franchised one, that explicitly or implicitly contravened any
THL principle.4¢

The Practice of the United Nations Relating
to the Applicability of IHL to Its Military Forces

Past and Recent Practice

Particular Regulations. The Regulations issued by the Secretary-General
for the conduct of the early peace-keeping operations of the United Nations,
ite., UNEF I,4?7 ONUC,#8 and UNFICYP,?? contained the following provision:

The Force shall observe the principles and spirit of the general international
Conventions applicable to the conduct of military personnel. (Emphasis added.)

In a February 21, 1966, exchange of letters between the Secretary-General
and the Canadian Permanent Representative to the United Nations, the for-
mer clarified this provision of the UNFICYP Regulations as follows:

11. The international Conventions referred to in this Regulation include, inter
alia, the Geneva (Red Cross) Conventions of 12 August 1949 [United Nations,
Treaty Series, Vol. 75, pp. 31, 85, 135, and 287]50 to which your Government is a
party and the UNESCO Convention on the Protection of Cultural Property in
the Event of Armed Conflict, signed at the Hague on 14 May 1954 [United
Nations, Treaty Series, Vol. 249, p. 215].5! In this connexion, and particularly
with respect to the humanitarian provisions of these Conventions, it is requested
that the Governments of the participating States ensure that the members of
their contingents serving with the Force be fully acquainted with the obligations
arising under these Conventions and that appropriate steps be taken to ensure
their enforcement.”52 (The original footnotes are reproduced within the
brackets.)

514


Introduction

Leslie was born in London, England, on November 6, 1920. He graduated
from the University of London in 1941 with an LLB with first-class honours. As
the Second World War began while he was studying, international law became
one of his fields of specialization. On graduation, he joined the British Army,
King’s Royal Rifle Corps, and was then sent to the School of Oriental and Afri-
can Studies where he was taught to read and translate Japanese. In 1943 he was
commissioned as a lieutenant in the Intelligence Corps and posted to GHQ
(India) as a translator. He was stationed in India from 1943 to 1946. In the later
stages of his time there, he was made available to the Adjutant-General’s De-
partment, first to defend and later to prosecute members of the (British) Indian
Army who had joined the Japanese-sponsored Indian National Army; they had
been charged with waging war against the King and with war crimes. Many
years later, Leslie wrote an article in which he recounted his experiences as a
defending officer and as a prosecutor, including the fact that his first two clients
were hung.! In 1946, he was discharged from the army in the rank of major.

Although his wartime experience heightened his interest in international
law, Leslie and his many friends would unanimously agree that his most impor-
tant wartime experience was meeting and, on September 1, 1945, marrying 2nd
Officer Lilian Meyer of the Women’s Royal Indian Naval Service. Leslie and
Lilian have now been married for over fifty years and, as befits any happy and
loving marriage, their lives are centred around each other. It is not possible to
picture them apart, and their lives together have kept them young. Lilian’s
grace, sense of style, and intelligence have contributed immeasurably to
Leslie’s success. Their marriage has been blessed with one daughter, Anne, an
authority on Canadian theater.

Leslie commenced his teaching career in 1946 and from 1946-1960 he was
Lecturer in International Law at University College, London. While in Lon-
don, he published the first two editions of Intemational Law Through the Cases.
This casebook, now in its fourth edition, is widely used in law schools through-
out the British Commonwealth. Under the rigorous mentorship of Georg
Schwartzenberger, Leslie also began his prolific writing career. In all of his
work, Schwartzenberger focused on what States actually do. Thus, for in-
stance, in international relations, he emphasized power politics. In interna-
tional law, he belonged to the inductive school, focusing rigorously on State
documents, treaties and judicial decisions to determine the law’s content.
Leslie was deeply influenced by Schwartzenberger’s approach to international
law and to international relations, and also by his insistence on high scholarly
standards as well as high productivity. Schwartzenberger insisted that at least

xiv


Christopher Greenwood

life. In this writer’s opinion, a right of humanitarian intervention is part of con-
temporary customary international law, and the rejection in the Security
Council—by the substantial majority of twelve votes to three—of a Russian
draft resolution which would have condemned the NATO action tends to re-
inforce that conclusion.

Another change of considerable importance is illustrated by the earlier
United Nations involvement in the fighting in the former Yugoslavia. For most
of its history, the United Nations has distinguished between enforcement ac-
tion, where the Security Council either established a United Nations force to
fight an aggressor or authorized States to conduct a war against the aggressor
on behalf of the United Nations, and peacekeeping operations, in which the
United Nations established a force to police a cease-fire or perform other tasks
of an essentially neutral character. While a peacekeeping force might become
involved in fighting, especially if it were itself attacked, it was not intended that
such a force should become a party to a conflict. The distinction between the
two types of operation was rightly considered to be of the utmost importance
(although, in practice, almost all United Nations operations were of the peace-
keeping kind).

The revitalization of the Security Council in the 1990s, however, has led to
the United Nations attempting to mount operations which had some of the at-
tributes of both peacekeeping and enforcement action. In Bosnia-Herzegovina,
for example, UNPROFOR was originally established with a role which was pri-
marily one of peacekeeping,”4 at least in the sense that UNPROFOR was
charged with a humanitarian mandate, to be discharged on an impartial basis,
and was neither intended nor equipped to fight a war. Over time, however, this
basic mandate changed as the Security Council used its enforcement powers
under Chapter VII of the United Nations Charter to give UNPROFOR new
tasks, such as monitoring (and, perhaps, protecting) the safe areas established
by the Security Council, while NATO air forces, operating outside the United
Nations chain of command, were authorized by the Council to use air power in
support of specific UNPROFOR objectives.

As the conflict progressed, some States which were major contributors to
UNPROFOR became increasingly concerned about the safety of their contin-
gents in Bosnia-Herzegovina and deployed forces, under national not United
Nations control, to the region to assist in protecting UNPROFOR and, if nec-
essary, in evacuating their UNPROFOR contingents. Had such an evacuation
been attempted in, for example, the winter of 1994 against armed opposition,
the legal authority to use force against those attacking UNPROFOR units or
attempting to prevent their redeployment would have been derived from a

187


The Normative Framework of International Humanitarian Law

One would have hoped that the Statute and the Elements would have re-
solved these issues. Instead, they have simply avoided them entirely.

ot only are there overlaps in some applications of the sources of law

relevant to war crimes, crimes against humanity, and genocide, there
also are gaps and ambiguities in their content and scope. So far, however, there
is no political will to close the gaps and eliminate the ambiguities. Thus, it is
necessary to examine these sources of law separately in order to establish which
source applies to which context and then to determine whether the legal ele-
ments contained in the applicable sources apply to the facts.!62

Some 188 States have so far embodied “war crimes” in their military codes.
This is a requirement of the Geneva Conventions and therefore every State
party must domesticate their provisions and criminalize “grave breaches” viola-
tions. However, prosecutions for “war crimes” or “grave breaches” or an equiv-
alent term (such as violations of the military code) have, with the exception of
the prosecutions arising out of World War II,!© been few and far between.
Since 1949, Germany has prosecuted an estimated 60,000 cases mostly in the
categories of genocide and war crimes, but the United States, in relation to the
Vietnam War, prosecuted only two cases for war crimes—the Calley!64 and
Medina!6 cases. It is noteworthy, too, that the only case brought against one of
the World War II Allies for war crimes, by Japanese citizens for the use by the
United States of atomic weapons against Japan, which killed and injured an es-
timated 225,000 innocent civilians, !66 was dismissed by the Supreme Court of
Japan on technical jurisdictional grounds.16?

With respect to “crimes against humanity,” Canada, France, and Israel have
been the only countries to have carried out prosecutions. In Israel, the
Eichmann!68 and Demjanjuk!®© cases were carried out, both for crimes not com-
mitted in the territory of the prosecuting State. Demjanjuk was acquitted be-
cause he turned out to be the wrong person. In France, prosecutions have
occurred for Barbie,!7° Touvier,!7! and Papon.!72 In 1989, Canada prosecuted
the first case under a 1987 statute that permits retrospective application of in-
ternational law.!73 This writer served as Canada’s chief legal expert in testify-
ing on what constituted “crimes against humanity” before 1945. Regina
resulted in the acquittal of Hungarian Gendarmerie Captain Finta on the facts
but the judgment recognized the existence of “crimes against humanity” under
international law before 1945. Prosecutions before the ICTY and ICTR have
included “war crimes,” “crimes against humanity,” and “genocide,” but when

36


International Humanitarian Law from Agincourt to Rome

national laws to be enforced under the principle of universality of jurisdiction.
They will thus have great influence on practice and doctrine even before the
Statute enters into effect.

Regarding the crime of genocide, the Statute tracks the 1948 Convention.
The article defining crimes against humanity is the first multilateral treaty defi-
nition of crimes against humanity. It is independent of any nexus with war.

There are many additions to the Nuremberg list of crimes against humanity.
Crimes added or developed include rape, sexual slavery, enforced prostitution,
forced pregnancy, enforced sterilization, or any form of sexual violence of com-
parable gravity. Rape and other sexual offences against women have been in-
cluded in all of the sections of war crimes.

For non-international armed conflicts, the Statute declares criminal serious
violations of common Article 3 and also contains a significant list of
Hague-type war crimes. This recognition of war crimes under customary law as
pertinent to non-international armed conflicts represents a significant
advance.

The definitions of crimes are now in place. It is up to the States to make
them effective, to punish violators and to deter future crimes. Recent atrocities
in Kosovo should make us realize that adoption of treaties and statutes is not
enough; without effective enforcement, prospects of deterrence will continue
to be poor.

Let me conclude with a broad reflection. We now have a system of Geneva
Conventions that have obtained the formal assent of virtually all States. The
Conventions give us exact language, and clarity, at least for the initiated. We
have created a complicated and technical system of humanitarian law that only
experts can master. It is true that this system has not prevented the continuing
growth of customary tules, to add, to modify, and to fill in the interstices of con-
ventions. The jurisprudence of the Hague tribunal for the former Yugoslavia
provides a salutary example of this process. Although the teleological aspects of
humanitarian law facilitate the continuing creation of customary law through
emphasis on opinio juris, nonetheless, international humanitarian law is primar-
ily conventional.

A normative system, like chivalry, based largely on custom and a few rules of
relative generality, would not suffice in the face of the frequent disintegration
of States, the multiplicity of powerful actors on the domestic and international
scene, and the modern weapons and technology. However, through this pro-
cess-of treaty-making, of codification, vital and necessary as it is, we may have
lost the sense that rules arise naturally out of societies. We may have lost the
flexibility that came from rules of essentially customary character. And finally,

310


Yoram Dinstein

international lawyers sharply disagree with one another about the interpreta-
tion of international instruments, and the consequences of actions taken by
belligerents, when expressions such as declarations of war, truces, cease-fires
and armistices are employed. To some extent, the lack of consensus is due to
the linguistic evolution of modern international law since its inception some
350 years ago. The passage of time has brought about alterations in interna-
tional legal terms of art.

The purpose of the present essay is to shed some light on the correct mean-
ing of the contemporary vocabulary of war. This vocabulary is bound to de-
velop further in the years ahead. However, at the end of the second
millennium, its definitional range can be fairly settled against the background
of the recent practice of States. Terminological exactitude is not merely a mat-
ter of fastidiousness. It gives rise to a better understanding of the implications
and ramifications of what States do in the world of reality.

This essay is a revised and updated version of Chapter 2 of the author's
WAR, AGGRESSION AND SELF-DEFENCE 31-58 (2"4 ed.,1994).

Notes

1. Fora definition of war, see Y. DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE, 15-16
(2nd. ed., 1994).

2. M. GREENSPAN, THE MODERN LAW OF LAND WARFARE 38 (1959).

3. Hague Convention (III) Relative to the Opening of Hostilities, 1907, THE LAWS OF
ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER
DOCUMENTS 57, 57-58 (D. Schindler & J. Toman eds., 34 ed., 1988).

4. See N. Hill, Was There an Ultimatum before Pearl Harbor? 42 AMERICAN JOURNAL OF
INTERNATIONAL LAW 355, 357-358 (1948).

5. See ibid., 358.

6.See ibid, 358-359. Security Council Resolution 678 of November 1990 [45
RESOLUTIONS AND DECISIONS OF THE SECURITY COUNCIL 27 (1990)] is referred to by some
commentators as an ultimatum to Iraq. M. Voelckel, Faut-il Encore Déclarer la Guerre? 37
ANNUAIRE FRANCAIS DE DROIT INTERNATIONAL 7, 21 (1991). But this is not the case,
inasmuch as the Gulf War had already been in progress since the Iraqi invasion of Kuwait in
August 1990.

7. See E.C. Stowell, Convention Relative to the Opening of Hostilities, 2 AMERICAN JOURNAL
OF INTERNATIONAL LAW 50, 53-54 (1908).

8. See A.P. HIGGINS, THE HAGUE PEACE CONFERENCES 204 (1909).

9. See T.J. LAWRENCE, THE PRINCIPLES OF INTERNATIONAL LAW 326 (7th ed., by P.H.
Winfield, 1923).

10. See G. SCHWARZENBERGER, THE LAW OF ARMED CONFLICT 65-67 (1968).
11. See P.M. Brown, Undeclared Wars, 33 AMERICAN JOURNAL OF INTERNATIONAL LAW
538, 539 (1939).

153


Michael N. Schmitt

comment briefly on the strategic environment in which the U.S. will practice
normative choice, and to offer several thoughts on its ramifications. After all,
context is key, as has been repeatedly asserted.46

The pivotal event influencing the exercise of normative strategic choice is
the demise of Cold War bipolarity and the emergence of the United States as
the sole economic and military superpower. During the Cold War, the norma-
tive context was characterized by competition between two peer competitors.
Significantly, the competition was generally viewed as zero-sum. Both States
were powerful militarily and boasted a stable of client States with which they
maintained mutual defense pacts and which comprised a distinct economic
bloc. Although the United States would become involved in a number of
“lesser” conflicts, Vietnam being the most noteworthy, most were seen in terms
of their relationship to superpower rivalry. Moreover, in the national security
context, the conflict that mattered most was the one that never occurred, the
cold war turned hot. Reduced to basics, and somewhat oversimplified, issues
and events were viewed through the prism of U.S.-USSR competition. Since
the Soviets, particularly its military, were “equals,” great vigilance was neces-
sary to ensure they did not slip ahead. For example, recall the anxiety that was
generated when Sputnik was launched in October 1957 (particularly over its
implications for the delivery of nuclear weapons against the U.S. homeland)
and the intense U.S. effort to “catch back up.”

By the 1960s, a relative strategic stalemate had emerged, thereby exacerbat-
ing fear of any Soviet advantage. Because neither side dared let the other
achieve an edge, even small advances by an opponent loomed large. This atti-
tude, justified or not, inevitably led to difficulties in fashioning improvements
to the law of armed conflict and caused those that were proffered to be evalu-
ated microscopically. Given the strategic stalemate, minor issues took on great
significance.

In fact, the Cold War produced very little in the way of laws of armed con-
flict. In 1954, the Cultural Property Convention was completed under the aus-
pices of the United Nations Educational, Scientific and Cultural Organization,
but it is only very recently that the prospect of U.S. ratification appears likely.47
The two Additional Protocols to the Geneva Conventions were adopted in
1977, but the U.S. opposes the most significant of them, that governing inter-
national armed conflict, and has not yet ratified the other. Although the
United States objected strongly to certain of the Protocol’s provisions at the
time, in retrospect one might query whether two decades of opposition to Ad-
ditional Protocol I have safeguarded U.S. interests in any discernable way. Af-
ter all, when have U.S. forces engaged in activities since 1977 that they would

473


Georg Schwarzenberger

created. If, however, the belligerents fail to do so, third States are free to inter-
pret at their own discretion the legal significance of “a contention of States
through their armed forces.”

This failure of modern doctrine is not the fault of individual writers. It is due
to the impossibility of achieving what modern theorists attempt to do. In a sys-
tem of international law which admits the limited use of force to its law of
peace, or in which there are more than two states of legal relationships as
pointed out in this article, it is impossible to find an objective criterion which
distinguishes the status of war both from the status of peace and from the status
mixtus.

In these circumstances, all that can be said is thi

Declared war creates the status of war between the States directly con-
cerned and with regard to third States.

Measures taken within the purview of the status mixtus and of undeclared
war automatically create a state of war between the States directly concerned,
and of neutrality with regard to third States, only if the State against which
these measures are taken, or undeclared war is waged, chooses to consider such
action as amounting to war. In the absence of an unequivocal declaration to
this effect, third States are free to decide for themselves whether they wish to
regulate their relations with the contending States in accordance with the law
of peace or the law of war.

Thus it appears that, when faced with the concrete task of defining war,
modern doctrine has to disregard its own assumptions of peace as the normal
state and of the alternative character of peace and war. The current definition
of war is incomplete and only seemingly objective. The express or implied in-
clusion in this definition of the animus belligerendi either amounts to the im-
plicit admission of the status mixtus which is determined by intentions rather
than acts, or to the unavoidable acceptance of a continuum between peace and
war which reduces peace to a merely negative status. If the laws of neutrality
are applied in a state which the “belligerents” consider to be peace, or those of
warfare in a state which third States regard as peace, this means that there is no
intrinsic difference between the states of peace and war. The application of the
laws of peace and war becomes a question of consensus amongst the States di-
rectly and indirectly concerned.>? Doctrine based on State practice does not
and cannot provide objective tests regarding the circumstances in which the
different sets of rules are to be applied, and the practice of power diplomacy is
not a promising field in which to look for the initiative in the precise separation
of measures where the choice is mainly a question of expediency.

495


Robbie Sabel

nor escape.”3! De Preux, in the ICRC Commentary on Article 42, refers to past
“cameraderie” between airmen but observes, I believe correctly, that as regards
the delegates at the Humanitarian Law Conference, “the majority considered
that airmen in distress are comparable to the shipwrecked persons protected by
the Second Convention.”32

It may be regrettable that chivalry is no longer with us, but I believe it is
healthier for the development of humanitarian law to base the norm on the ac-
cepted definition of a combatant who is hors de combat rather than dwell on
analogies to battling knights.

Does the Rule Apply to Aircrews About to Land in Their
Own Territory or in Friendly Territory?

The 1923 Hague Air Rules do not distinguish between an airman parachut-
ing over hostile territory and one parachuting over friendly territory. Spaight
appears, however, to leave the rule as to protection of airmen parachuting over
their own territory open to question. He writes that “when the descent is over
ground held by the forces hostile to those to which the parachutist belongs, to
shoot him is at once inhumane and a waste of ammunition. He must be cap-
tured in any case, if he succeeds in landing.”33 If the justification for protection
is, as Spaight seems to suggest, only the certainty of capture, then there is no
justification for granting protection if the airmen parachute over friendly terri-
tory. If, however, the justification is, as I believe it is, humanitarian and analo-
gous to the protection of those shipwrecked at sea, then the question of where
an airman is about to land is irrelevant.

The 1969 ICRC Report enumerates “the nationality of the territory on
which they are to land” as one of the factors some experts thought should be
considered.» In its report to the 1971 Experts Conference, the ICRC com-
mented that “such a view is incompatible with humanitarian principles” and
set out the rule without any mention as to territory.3> The draft rule proposed
by Israel in 1971,36 and by the ICRC in 1972,37 contained no reference to
whether aircrews in distress were about to land in friendly territory or in terti-
tory controlled by the enemy. The proposed rule was unequivocal as to the pro-
tection to be granted while the airmen were descending by parachute.>8 The
1971 Israeli proposal stated that “airmen in distress shall not be attacked in the
course of their descent,”39 and the 1972 ICRC text proposed that the occu-
pants of aircraft in distress “shall not be attacked during their descent.”4° The
commentary by the ICRC to the 1972 Conference did not refer to the issue of

443


Charter of the United Nations as a World Constitution

general reorganization of the structures of representation within which mem-
ber States operate.?!

The famous Chapter VII refers to action with respect to threats to the peace,
breaches of the peace, and acts of aggression. This is the chapter where the
constitutional nature of the Charter comes clearly into view, as it gives the
United Nations, through the Security Council, the lead role in carrying out op-
erations that may involve the use of force. States are deprived of the right to use
force unless authorized to do so by the Council itself. The only exception to this
tule is contained in Article 51, which allows the use of force in case of individ-
ual or collective self-defense.?2

Article 39 grants the Security Council authority to make the requisite deter-
mination about the existence of any threat to the peace and to “decide” what
measures shall be taken to maintain or restore international peace and security.
Article 41 lists a series of measures not involving the use of armed force that the
Council may call on the members to apply in order to give effect to its decisions.
Article 42 refers to measures involving the use of force that may be necessary to
maintain or restore international peace and security. Until recently, however,
no action was ever taken in line with the full procedures of Chapter VII, nor
has the Military Staff Committee been able to work according to its mandate
under Article 47.23 When military operations were authorized, the armed
forces involved were not placed under the control of the Security Council
through an agreement between the State or States concerned and the United
Nations under Article 43; such forces were controlled by the States which the
Security Council requested to intervene.

The only two occasions in which Chapter VII was invoked to legitimize war-
fare actions by member States were the wars in Korea (1950-1952) and in Iraq
(1990-). On both occasions, Chapter VII was used to “provide cover for
geopolitical undertakings led by the United States.”*+ While the operation in
North Korea was conducted under the United Nations flag, although managed
by the United States and its allies, the operations in Iraq, once the authoriza-
tion was granted, were conducted without space for the United Nations to
monitor the intervention.2> The success of the action in Iraq led to a resur-
gence of hope for an increase in the legitimate activity of the Security Council,
but the circumstances of the Iraqi war were exceptional in comparison to the
warfare situations with which the United Nations is usually involved—the
Traqi war was the exact kind of conflict envisioned by the drafters of the Char-
ter. As Evans states, “the United Nations Charter was written retrospectively
to avert another World War II, and in Saddam Hussein, the United Nations
found a 1930s type aggressor.”26

270


Westphalian Peace Tradition

Notes

the International Congress (PEACE ~ Reconstruction of a European Vision) on the
Occasion of the Anniversary of the Conclusion of the Peace Treaties of Miinster and Osnabriick,
held by the University of Osnabriick, October 25-31, 1998, and the Asia-Pacific Regional
Conference in Commemoration of the Centenary of the 1899 Hague Peace Conference, held by
the University of Melbourne, February 19, 1999. At the 300-year anniversary of the Westphalian
peace settlement, Leo Gross wrote a commemorative article in the American Journal of
International Law, The Peace of Westphalia, 1648-1948, 42 AJIL 1948, pp. 20-41.

2. Cf. BOUTROS BOUTROS-GHALI, AN AGENDA FOR PEACE, UN Doc A/47/277 (1992),
and SUPPLEMENT TO AN AGENDA FOR PEACE, UN Doc. A/50/60 (1995); GARETH EVANS,
COOPERATING FOR PEACE: THE GLOBAL AGENDA FOR THE 1990S AND BEYOND (1993); and
The Report of the Commission on Global Governance (Co-Chairmen: Ingvar Carlsson and
Shridath Ramphal), OUR GLOBAL NEIGHBOURHOOD (1995).

3. England, Russia, Denmark and Turkey were not represented in Osnabriick or Miinster.

4. De Jure Belli ac Pacis was first published in 1625 and new editions appeared in 1631,
1632, 1642 and 1646.

5. DE JURE BELLI AC PACIS, Book I, Chapter 3, Paragraph 7, English translation by A.C.
Campbell, The Universal Classics (1901) and in James Brown Scott (Ed.), CLASSICS OF
INTERNATIONAL LAW, Vol. 2 (1925).

6. Benedict Kingsbury, A Grotian Tradition of Theory and Practice? Grotius, Law and Moral
Skepticism in the Thought of Hedley Bull, 17 QLR (Quinnipiac Law Review) 1997, p. 15.

1. See Peter Haggenmacher, Grotius and Gentili: A Reassessment of Thomas Holland's
Inaugural Lecture, in Hedley Bull et al. (Eds.), HUGO GROTIUS AND INTERNATIONAL
RELATIONS (1990), p. 172.

8. Hersch Lauterpacht, The “Grotian Tradition” in International Law, BYBIL 1946, pp. 43-45.

9. HEDLEY BULL, THE ANARCHICAL SOCIETY: A STUDY OF ORDER IN WORLD POLITICS
(1977), pp. 148-49, 156-58.

10. Benedict Kingsbury, supra note 6, pp. 24-25.

11. Ibid., p. 25.

12. Peter Haggenmacher, supra note 7, pp. 173-74.

13. DE JURE BELLI AC PACIS, Prolegomena, Paragraph 25.

14. Bert Réling, Jus ad bellum and the Grotian Heritage in T.M.C. Asser Institute (Ed.),
INTERNATIONAL LAW AND THE GROTIAN HERITAGE (1985), p. 115.

15. DE JURE BELLI AC PACIS, Book II, Chapter 22, Paragraph 5.1.

16. Ibid., Book II, Chapter 20, Paragraph 40.3.

17. Cf. the listing made by Haggenmacher and Draper in HUGO GROTIUS AND
INTERNATIONAL RELATIONS, supra note 7, pp. 165 and 195.

18. Book HII, Chapter 17, Paragraph 3.1. Cf. Article 2(5) of the UN Charter: “All Members
shall give the United Nations every assistance in any action it takes in accordance with the
present Charter, and shall refrain from giving assistance to any state against which the United
Nations is taking preventive or enforcement action.”

19. DE JURE BELLI AC PACIS, Book Il, Chapter 2, Paragraphs 13.1 and 13.4.

20. WOLFGANG FRIEDMANN, THE CHANGING STRUCTURE OF INTERNATIONAL LAW
(1964), pp. 60-63.

21. See Benedict Kingsbury and Adam Roberts, Introduction: Grotian Thought in International
Relations, in HUGO GROTIUS IN INTERNATIONAL RELATIONS, supra note 7, pp. 15-16,

8


Charter of the United Nations as a World Constitution

(b) The principle that States shall settle their international disputes by peaceful
means in such a manner that international peace and security and justice are
not endangered;

(c) The duty not to intervene in matters within the domestic jurisdiction of any
State, in accordance with the Charter;

(d) The duty of States to cooperate with one another in accordance with the
Charter;

(e) The principle of equal rights and self-determination of peoples;
(f) The principle of sovereign equality of States; and

(g) The principle that States shall fulfill in good faith the obligations assumed by
them in accordance with the Charter, so as to secure their more effective
application within the international community and promote the realization
of the purposes of the United Nations.

(a) The first principle is already included in Article 2.4 of the Charter. The
main problem posed by the formulation of the principle was the definition of
the use of force. The intention of the non-aligned States was to include eco-
nomic and political coercion in the prohibition of the use of force. This view
was opposed by western States and no definition of aggression was included in
the Declaration. After much effort, the gap was filled by Resolution 3314
(XXIX) of 1974 on the Definition of Aggression, Article 1 of which defines ag-
gression as the “use of armed force by a State against the sovereignty, territorial
integrity or political independence of another State, or in any other manner in-
consistent with the Charter of the United Nations.” The Resolution then de-
fines an aggressor as the first State to use armed force. Article 3 lists acts
qualifying as aggression. The list is not considered exhaustive, and the Security
Council may decide whether other acts constitute an act of aggression.

(b) The principle of peaceful settlement of international disputes is drawn
from Article 2.3 of the Charter. The Declaration on Friendly Relations might
possibly clarify the principle, but seemingly without adding anything new. As
affirmed by Daoudi, it “contains no new statement on this matter [the role and
power of the organs of the United Nations in the settlement of international
disputes] but it synthesizes the present state of development of the principle in
international law.” Further refinements of the subject were achieved in the
Manila Declaration on Peaceful Settlement of Disputes.46

(c) Both the Declaration on Friendly Relations and the Resolution on the

278


Dieter Fleck

As far as additional allied armed forces temporarily stationed in Germany
within the framework of multinational units for the purpose of combined exer-
cises, the legal situation is rather complex. While there is no doubt that even
temporary presence requires special consent of the Federal Government, the
question of whether and to what extent such consent has to be based on parlia-
mentary approval has been a matter of discussion. Some experts demanded
such approval without clearly defining the scope of the Government’s execu-
tive powers, which are of special importance with regard to forces of a foreign
power on German territory. The German Visiting Forces Act of 19951! ended
this debate by requiring the conclusion of agreements with sending States.
Such agreements may be put into force in Germany by executive order under
the Visiting Forces Act; specific parliamentary approval is not required. Note
that formal agreements are required on the entry into and temporary stay in the
Federal Republic of Germany of foreign armed forces “for the purpose of exer-
cises, transit by land or training of units”. Below this threshold, manifold forms of
military cooperation are possible and are, indeed, daily routine today, but they
do not require the conclusion of formal agreements.

German unification necessitated specific provisions concerning the station-
ing of foreign troops, for the territorial application of the 1954 Convention is
restricted to Western Germany. Specifically, according to Article 11 (in con-
junction with Chapter 1 Section I of Annex I) of the Treaty on German
Unity,!? neither the 1954 Convention or the NATO SOFA and Supplemen-
tary Agreement apply to Berlin or the former German Democratic Republic. In
order to permit allied forces that are permanently stationed in Germany!3 to
temporarily visit the Eastern part of the country, it was agreed in a 25 Septem-
ber 1990 Exchange of Notes!4 that any official activity requires consent of the
Federal Government in compliance with the provisions of Article 5 paragraph
3 of the Two-plus-Four Treaty.!5

An agreement regarding temporary visits by other allied forces was con-
cluded by an Exchange of Notes on April 29, 1998.16 It creates a legal situation
with the six permanent sending States comparable to the above-mentioned Ex-
change of Notes of September 25, 1990. New NATO member States may also
be invited to accede to it. It will be submitted for approval to the newly elected
14th German Bundestag. Approval by the other participating States is being
pursued according to their national requirements.

Before long, bilateral agreements will be concluded with the Polish and
Czech governments covering reciprocal arrangements for the mutual presence
of forces of the Bundeswehr and Polish and Czech forces in each of the partici-
pating States. They can be put into force in Germany by statutory order in

167


Ruth Lapidoth

facilitate the work of the tribunal.5? Both the parties and the arbitrators are un-
der an obligation to protect the confidentiality of any information they receive
in confidence during the proceedings.5> Usually, the expenses of the tribunal
shall be borne by the parties in equal shares.>+

Other parties to the convention that have an interest of a legal nature in the
subject matter may intervene in the proceedings with the consent of the tribu-
nal.5> This provision is remarkable, since it is usually not possible for a third
party to intervene in an arbitration.

When dealing with a case, the tribunal may also hear counterclaims that
arise directly out of the subject matter of the dispute.%6 If a party does not par-
ticipate in the proceedings, the tribunal may nevertheless go ahead with the
case.>?

The tribunal should render its award within five months, but it may extend
that period for another five months. The award should include the reasons on
which it is based, and members may add separate as well as dissenting opinions.
There lies no appeal against the award unless the parties have agreed in ad-
vance to an appellate procedure. Either party may apply to the tribunal ifa con-
troversy arises with regard to the interpretation or manner of implementation
of the award.58

The convention leaves the choice among the optional mechanisms to the
parties without recommending a particular procedure for certain kinds of dis-
putes. What are, then, the circumstances to be considered when deciding
which procedure should be preferred? One should ascertain the nature of the
dispute—whether it is a political or a legal one, namely, whether the parties are
at odds over their existing rights or over changes to be introduced in those
tights. Second, do the parties disagree on questions of fact, or of law, or both?
Third, is the dispute mainly of a technical nature? Fourth, the general relations
between the parties have to be taken into consideration. Fifth, does the dispute
involve vital interests of a State? Indeed, most States would be reluctant to sub-
mit such a dispute to binding third party adjudication. Sixth, should one try to
solve the dispute by an ad hoc mechanism, or is it preferable to establish a per-
manent institution that can from time to time adjust the rights of the parties to
accord with changing circumstances?°9

Examining the conflict in accordance with the above criteria will help the
parties to choose the best suited mechanism. If, however, the disagreement is
not settled by one of the optional methods, the obligatory measures remain: ne-
gotiation and a fact-finding commission.

Negotiation is the most natural and commonly used way to settle a dispute.
It is a process which allows the parties to fully retain control over the dispute

237


Dispute Settlement under the 1997 Watercourses Convention

Commission by Professor Stephen Schwebel, Special Rapporteur, (YEARBOOK OF THE ILC,
1982 (II) (Part One), p. 175), and by Professor Jens Evensen, Special Rapporteur, (YEARBOOK
OF THE ILC, 1983 (If) (Part One), p. 178, and 1984 (II) (Part One), p. 116). See also the
judgement of the International Coutt of Justice in Gabcikovo-Nagymaros case, supra note 3, at
para. 147.

IL. Article 9.

12. Article 6(2).

13. Article 12. Notification is also obligatory with respect to emergency situations—Article
28.

14. Article 15.

15. Article 17. The commitment for consultation for various purposes has been included in
several articles.

16. Article 33(2).

17. Ibid.

18. Ibid.

19. Article 33(10).

20. Article 9(1).

21. Article 9(2).

22. Article 28.

23. Article 28(1).

24. Article 31.

25. Article 6(2).

26. Article 6(2).

27. Article 12. On notification, see also J. PRUHACS, THE LAW OF NON-NAVIGATIONAL
USES OF INTERNATIONAL WATERCOURSES, Dordrecht, Nijhoff, 1993, p. 172.

28. Article 13.

29. Article 16.

30. Articles 15 and 17. See also J. PRUHACS, supra note 27, at p. 176; C.B. Bourne, Procedure
in the Development of International Drainage Basins: The Duty to Consult and Negotiate, 10
CANADIAN YEARBOOK OF INTERNATIONAL LAW (1972), p. 212.

31. Article 18.

32. Article 19.

33. See, e.g., Proposal for Article 33 by the Syrian Arab Republic and Switzerland, UN Doc.
A/C.6/51/NUW/DC/CRP.10, of March 24, 1997; proposal by Hungary, June 25, 1996, in Report
of the Secretary-General, UN Doc. A/51/275, of August 6, 1996, p. 68; Greece, ibid., p. 24;
Finland, proposal of October 14, 1996, UN Doc. A/C.6/51/NUW/WG/CRP.45.

34. E.g., China, Turkey and Israel. Report of the Secretary General, UN Doc. A/51/275, of
August 6, 1996, p. 68 (Turkey); UN Doc. A/C.6/51/NUW/AWG/CRP.82, of March 27, 1997
(China); oral statement by Israel on May 14, 1997. See also verbatim record, 99* plenary
meeting, UN General Assembly, May 21, 1997, UN Doc. A/51/PV.99, at p. 7 (China), p. 9
(india), p. 8 (France), p. 11 (Israel), p. 12 (Rwanda).

35. E.g., proposal by Finland, Greece, and Italy submitted on October 24, 1996 to the
Working Group; Proposals submitted by Guatemala, A/C.6/51/NUW/WG/CRP.62, of October
18 and 22, 1996.

36. Supra note 1.

37. A/C.6/51/NUW/WG/CRP.83, of March 27, 1997.

38. E.g., proposal by Finland, Greece, and Italy, supra note 35.

244


The Initiation, Suspension, and Termination of War

cease-fire unilaterally. Hence, it is not legitimate for a belligerent (relying on
Article 36) to flout the cease-fire shortly after its conclusion. Only when a rea-
sonable period has elapsed does the continued operation of the agreement de-
pend on the good will of both parties, and the cease-fire can be unilaterally
denounced at will.

Article 36 contains an obligation to give advance notice to the adversary
when denunciation of a cease-fire agreement occurs. But the specifics depend
on what the cease-fire agreement prescribes. It appears that when the agree-
mentis silent on this issue, hostilities may be “recommenced at once after noti-
fication.”!65 If fire can be opened at once, the practical value of notification
becomes inconsequential.!66

Cease-fire (originally, “armistice”) violations are the theme of Articles 40
and 41 of the Hague Regulations. Article 41 pronounces that, should the viola-
tions be committed by private individuals acting on their own initiative, the in-
jured party would be entitled to demand their punishment or compensation for
any losses sustained.167 Under Article 40, a serious violation of the cease-fire by
one of the parties empowers the other side to denounce it and, in cases of ur-
gency, to resume hostilities immediately.168

Articles 40 and 41 posit, in effect, a three-pronged classification of cease-fire
violations: (i) ordinary violations, not justifying denunciation of the cease-fire
(assuming that denunciation is not otherwise permissible under Article 36);
(ii) serious violations, permitting the victim to denounce the cease-fire, but re-
quiring advance notice before the recommencement of hostilities; and (iii) se-
tious violations pregnant with urgency, enabling the victim to denounce the
cease-fire and reopen hostilities immediately (without advance notice).169

The three categories of cease-fire violations are not easily applicable in real-
ity. The question of whether a breach of the cease-fire is serious, or whether any
urgency is involved, seldom lends itself to objective verification. It must not be
overlooked that a violation considered a minor infraction by one party may as-
sume grave proportions in the eyes of the antagonist.!7° At the same time, the
emphasis placed by Article 40 on serious cease-fire violations is consistent with
the reference to a “material breach” appearing in Article 60(1) of the 1969 Vi-
enna Convention on the Law of Treaties (in the general context of termination
of bilateral treaties) 17!

IV. Conclusion

The three separate stages in the course of war—its initiation, suspension
and termination—are easy to tell apart in the abstract. Yet, frequently,

152


W. Hays Parks

94. The French argument is offered in R. Castex, The Weapon of the Weak, J.R.U.S.I. LXXVII
(November 1932), at 739-743, in response to an article by British Admiral Sir Herbert W.
Richmond of the same title, J.R-U.S.I. LXXVII (August 1932), at 497-503.

95. Douglas, supra note 52, at 191-192.

96. Id. The position reversal was based in large measure upon the Hoover Administration’s
fiscal and disarmament policies, not on any change of heart by the U.S. Navy with respect to the
value of the submarine. It also was based upon the belief that the American public would not
tolerate U.S. resort to unrestricted submarine warfare and that the Japanese Navy stood to gain
more by their retention than did the United States. As shown in footnote 82, Japan had vastly
out-built the United States in submarines in the period prior to the Hoover administration. That
administration authorized only two submarines for construction—V-7 (USS Dolphin) in FY
1930 and V-8 (USS Cuttlefish) in FY 1932. ALDEN, supra note 29, at 36-39; DAVIS, supra note
38, at 354-355; WHEELER, supra note 60, at 294-295; KAUFMAN, supra note 54, at 124, 126,
138, 139.

97. In deference to the French Surcouf (note 87), which as defined in the London Treaty
displaced 2,880 tons.

98. Douglas, supra note 52, at 198-200. By late 1930, Japan’s large submarine construction
program provided it with twenty-two first-class submarines (34,788 tons total) and forty-five
second-class submarines (36,185 tons total). The program was adjusted downward briefly
following the London Naval Conference to comply with the tonnage limitations of that treaty.
CARPENTER AND POLMAR, supra note 93, at 2-4.

99. ROSKILL, supra note 82, at 44, 47, 60.

100. One historian states that Article 14 of the 1930 London Naval Treaty prohibited the
arming of merchant ships; S. PELZ, supra note 57, at 146. Article 14 provides that “The naval
combatant vessels of the United States, the British Commonwealth of Nations and Japan, other
than capital ships, aircraft carriers and all vessels exempt from limitation under Article 8, shall be
limited during the term of the present Treaty as provided in this Part II, and, in the case of
special vessels, as provided in Article 12.” Reading Articles 8 and 12 indicates that while these
provisions may have had an effect on the number of vessels that could be armed commissioned
vessels in the navy, or that would be counted for the purposes of the arms control provisions of
the Treaty, Article 14 does not prohibit the arming of private merchant vessels for the historic
purpose of self defense. This distinction is set forth in D. Knox, The London Naval Treaty and
American Naval Policy, U.S. NAV. INST. PROC. (August 1931), at 1079, 1084. He notes “the size
and characteristics of the British merchant marine, representing an auxiliary to purely naval
strength,” as being of immense importance. The unresolved issue was the arming of merchant
vessels for defensive purposes, with a directive that a belligerent’s merchant ships would (a)
report all enemy submarine sightings, (b) resist visit and search, (c) endeavor to ram surfaced
submarines attempting to carry out visit and search in accordance with Article 22, and (d) use its
weapons for offensive purposes. Knox (p. 1985) acknowledges the advantage Great Britain
gained in preventing full consideration of the issue, stating that “The value of armed merchant
ships as a substitute for cruisers in blockade and trade protection operations was amply
demonstrated during the World War. While a single merchant ship may not be a match for one
regular cruiser carrying the same armament, it is necessary to consider the question from the
viewpoint of multiple numbers. Then it becomes evident that to equal the fighting power of a
given force of merchant auxiliaries at least 50 per cent of their total number is required in regular
cruisers.”

101. ROSKILL, supra note 82, at 60 [emphasis in original]. That day would come sooner than
anticipated. One British submariner commented that “Successive British governments persisted

379


Wolff Heintschel von Heinegg

53. H. Wehberg, Seekriegsrecht, supra note 10, p. 166; H.W. Malkin, supra note 40, BYIL IIL
(1922-23), p. 93; RW. TUCKER, supra note 10, p. 285.

54. The British long-distance blockade, even though the notion “blockade” was not used, was
proclaimed by Order-in-Council of March 11, 1915 (printed in: REICHS-MARINE-AMT,
SEEKRIEGSRECHT IM WELTKRIEGE, SAMMLUNG DIPLOMATISCHER NOTEN UND ANDERER
URKUNDEN, Berlin 1916, No. 150). In its note to the American Ambassador (ibid., No. 155), the
British government expressly stated that the blockade had been established “to prevent vessels
from carrying goods for or coming from Germany.” For the practice of blockade during the First
World War, see J.W. GARNER, PRIZE LAW DURING THE WORLD WAR, New York 1927, p. 621
ff; L. GUICHARD, THE NAVAL BLOCKADE, 1914-1918, New York 1930, passim; OPPENHEIM,
supra note 4, p. 791 ff.; R.W. TUCKER, supra note 10, p. 305 ff.; CH. ROUSSEAU, LE DROIT DES
CONFLITS ARMES, Paris 1983, p. 272 ff.; E. RAUCH, THE PROTOCOL ADDITIONAL TO THE
GENEVA CONVENTIONS FOR THE PROTECTION OF VICTIMS OF INTERNATIONAL ARMED
CONFLICTS AND THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA:
REPERCUSSIONS ON THE LAW OF NAVAL WARFARE, Berlin 1984, p. 83 ff.

55. Such exclusion zones have to be distinguished from blockades. See W.J. Fenrick, The
Exclusion Zone Device in the Law of Naval Warfare, CANADIAN YEARBOOK OF INTERNATIONAL
LAW XXIV (1986), p. 91 ff. See also the references in M.M. WHITEMAN, DIGEST 10, supra note
5, p. 872 ff.; L-F.E. Goldie, Maritime War Zones & Exclusion Zones, in: H.B. Robertson, Jr. (ed.),
THE LAW OF NAVAL OPERATIONS, Newport 1991, p. 156 ff; J. SCHMITT, DIE ZULASSIGKEIT
VON SPERRGEBIETEN IM SEEKRIEG, Hamburg 1966, passim.

56. OPPENHEIM, supra note 4, p. 795 ff; RAW. TUCKER, supra note 10, p. 312 ff; S.W.D.
Rowson, Prize Law During the Second World War, BRITISH YEARBOOK OF INTERNATIONAL LAW
XXIV (1947), pp. 160-215, 193 ff.; E. RAUCH, PROTOCOL ADDITIONAL, supra note 54, p. 87 ff.
For reflections within the German Navy during World War Il, see the references in: W.
Heintschel v. Heinegg, Exclusion Zones, Mines, Abuse of Neutral Flags and Insignia, Booty in Naval
Warfare, in: D. Fleck (ed.), THE GLADISCH COMMITTEE ON THE LAW OF NAVAL WARFARE,
Bochum 1990, p. 39 ff.

57. Stat. Rules and Orders 1939, No. 1709; printed in: OBERKOMMANDO DER
KRIEGSMARINE, URKUNDEN ZUM SEEKRIEGSRECHT, Berlin 1941, No. 398.

58. F. KALSHOVEN, COMMENTARY, supra note 47, p. 274.

59. Especially J. STONE, LEGAL CONTROLS OF INTERNATIONAL CONFLICT. A TREATISE
ON THE DYNAMICS OF DISPUTES - AND WAR — LAW, New York 1959, p. 508: “The realities of
the present century require the British long distance blockade to be viewed as a long term
transformation of the traditional law of blockade, rather than as mere reprisals, or mere breach of
the traditional law.” See also H.W. Malkin, supra note 40, BYIL HI (1922-23), p. 87 f5
OPPENHEIM, supra note 4, p. 796 f.; C.J. COLOMBOS, supra note 4, $§ 839 ff.

60. That view is taken by RW. TUCKER, supra note 10, p. 285 f; and E. CASTREN, THE
PRESENT LAW OF WAR AND NEUTRALITY, Helsinki 1954, p. 314 ff.

61. LH. Woolsey, Closure of Ports by the Chinese Nationalist Government, AM. J. INT'L L. 44
(1950), pp. 350-356; R. OTTMULLER, DIE ANWENDUNG VON SEEKRIEGSRECHT IN
MILITARISCHEN KONFLIKTEN SEIT 1945, Hamburg 1978, p. 74 f£; E. BECKERT/G. BREUER,
OFFENTLICHES SEERECHT, Berlin/New York 1991, no. 1126 ff.

62. S.V. Mallison/W.T. Mallison Jr., supra note 39, U.S. Naval Institute PROCEEDINGS 102
(Feb. 1976), p. 49; R. OTTMULLER, ANWENDUNG VON SEEKRIEGSRECHT, supra note 61, p. 106
£4).G. Verplaetse, The lus in Bello and Military Operations in Korea 1950-1953, ZEITSCHRIFT FUR
AUSLANDISCHES OFFENTLICHES RECHT UND VOLKERRECHT 23 (1963), pp. 679-738, 698 ff.

223


Contributors

Court of Arbitration in The Hague. Professor Lapidoth has taught and done re-
search at various institutions in Europe and the United States, including the
Universities of Paris, Geneva, Oxford, New York University, Duke, and
Georgetown, the Woodrow Wilson Center, and the United States Institute of
Peace. She has represented Israel in various international conferences, was the
Legal Adviser to Israel’s Ministry of Foreign Affairs (1979-1981), and served as
a member of the arbitration panel that settled the Taba dispute between Egypt
and Israel. Professor Lapidoth is the author of eight books and more than sev-
enty articles dealing with questions of international law, the law of the sea, hu-
man rights, the Arab-Israel conflict and its resolution, autonomy, and
Jerusalem.

Professor Howard S. Levie graduated from Cornell University with his
AB. in 1928; J.D., Cornell Law School, 1930; and LL.M., George Washington.
University Law School, 1957. He is a Colonel (retired) in The Judge Advocate
General’s Corps, U.S. Army; Distinguished Member of The Judge Advocate
General’s Corps Regiment, 1995; Professor of Law, Saint Louis University Law
School, 1963-1977; Professor Emeritus of Law, Saint Louis University Law
School since 1977; Charles H. Stockton Chair of International Law, U.S. Na-
val War College, 1971-1972; Lecturer, Salve Regina University, 1984-1988;
and Adjunct Professor of International Law, U.S. Naval War College since
1991. Honored by the establishment of the Howard S. Levie Military Chair of
Operational Law at the Naval War College in 1994 and by the publication in
1998 of Levie on the Law of War as Volume 70 of the U.S. Naval War College’s
International Law Studies series.

Professor Ronald St. J. Macdonald is Professor of International Law, Uni-
versity of Toronto. Between 1980 and 1998 he served as a judge at the Euro-
pean Court of Human Rights in Strasbourg. He is an Honorary Professor in the
Law Department of Peking University, an Honorary Member of the American.
Society of International Law and a Membre de d’Institut de droit international.

Professor Theodor Meron received his legal education at the University of
Jerusalem, Harvard University and Cambridge. Since 1978 he has been Profes-
sor of International Law at NewYork University School of Law, specializing in
human rights, humanitarian law, international criminal law, and law and liter-
ature. Between 1991 and 1995 he was also Professor of International Law at the
Graduate Institute of International Studies in Geneva. In 1994 he was named
to the Charles L. Denison Chair at the NYU Law School. He was Editor-
in-Chief of the American Journal of International Law (1993-1998) and is
a member of the Board of Editors. Professor Meron is also a member of the
Council on Foreign Relations, of the American and French Societies of

584


International Criminal Court

celebrated with joy the Kellogg-Briand Pact that was supposed to end recourse
to war as an instrument of national policy in 1928. It was followed by two de-
cades of bloodshed and misery. The current United Nations Charter requires
international disputes to be settled by peaceful means and forbids the threat or
use of force in international relations.?8 It is only when these provisions of the
positive law are violated or evaded? that atrocities can occur that cross inter-
national boundaries. But today, the greater number and extent of atrocities,
like genocide, occur wholly within the boundaries of a single State, like Bosnia
or Rwanda. The real question is whether international law as such is capable of
addressing these situations.

The traditional answer would be “No.” The situation of internal atrocities is
analogous to the situation of child abuse within a municipal legal order—ev-
erybody condemns it and would like to do something about it, but the conflict-
ing social values involved in some institutional oversight over family life, and
the difficulties of finding people whom society could trust to make decisions in
the best interest of society, make the resolution of child abuse issues too diffi-
cult to be satisfactorily resolved in Western society. Now, it appears as if the
magic solution would be to have the international equivalent of child abuse,
genocide, policed by the very system that has failed so obviously in municipal
societies: the Courts.

Let me make a radical suggestion. Some problems are not capable of being
resolved by the application of positive law. Some social problems are moral
problems and better resolved through the application of remedies provided in
the moral order, not the legal order. The obvious remedy in the moral order for
genocide is exposure and opening borders to grant at least temporary haven to
the victims. In some cases, the moral remedy might indeed involve revolution
or even an international armed conflict. That appears to have been the case
when Idi Amin was accused of presiding over the butchering of a significant
part of the population of Uganda. In that case, the moral imperatives appear to
have overcome the legal imperatives forbidding recourse to force in interna-
tional affairs. And nobody but Idi Amin and his supporters would complain.
Similarly, the complaints about North Viet Nam’s occupation of Cambodia to
end the unspeakable regime of Pol Pot were muted by the thought that nothing
and nobody else would do the job. Morality turns out to be a counter-weight to
the positive law, and the dominant system in some cases. Perhaps it is what
Cicero had in mind when he wrote of the “true law [vera lex]” that should be
obeyed even if inconsistent with the positive law, the decrees of the Roman
Senate.20

432


International Humanitarian Law from Agincourt to Rome

unit to accept surrender and thus, in effect, grant quarter. In the abstract and
as a general principle, the obligation for a Party to a conflict to accept the sur-
render of enemy personnel and thereafter to treat them in accordance with the
Hague and the Geneva Conventions is categorical. In reality, problems con-
tinue to arise. A recent study states that the opinio juris of the United States is
that quarter may not be refused to an enemy who communicates an offer to sur-
render under circumstances permitting that offer to be understood and acted
upon by U.S. forces. A combatant who appears merely incapable or unwilling
to fight because he has lost his weapons or is retreating, but who has not com-
municated an offer to surrender is still subject to attack. And the 1992 U.S.
DOD teport to Congress on the Conduct of the Persian Gulf War states:

There is a gap in the law of war in defining precisely when surrender takes effect
or how it may be accomplished in practical terms. Surrender involves an offer by
the surrendering party and an ability to accept on the part of his opponent. The
latter may not refuse an offer of surrender when communicated, but that
communication must be made at a time when it can be received and properly
acted upon—an attempt at surrender in the midst of a hard-fought battle is
neither easily communicated nor received. The issue is one of reasonableness.

The problem is thus not so much with the concept itself but with the nitty
gritty of the situational ability of the attacking force to accept surrender. What-
ever the black letter of the law, soldiers will not want to risk their own lives in
granting quarter. Hopefully, the ICRC study of customary rules of humanitar-
ian law will be able to advance the proposition that quarter must be given even
when the safety of the captor is endangered by the presence of the captured
combatants. But this is an area where a return to a culture of values, and espe-
cially honour, is necessary if we want better compliance with the rules. Only
when it is realized that killing a surrendering enemy is shameful will we see
progress.

Protection of Women

I turn to my second theme, protection of women. License to rape was con-
sidered a major incentive for the soldier involved in medieval siege warfare.
While urging generals to forbid and prevent rape during the sacking of a city,
Vitoria reluctantly admitted the lawfulness of allowing soldiers to sack a city if
the “necessities of war” required it or “as a spur to the courage of troops,” even
when this involved rape. These cruel rules were, however, rejected by Gentili.
Anticipating international criminal tribunals, Gentili wrote that if the enemy

306


The Rome Statute on the International Criminal Court

the custodial State was a Party to the Rome Statute and wanted to surrender
the accused to the ICC, the Court would not be able to exercise jurisdiction
without the consent of the other involved States.

If the German proposal had been marketable in Rome, the end result would
have been the deletion of Article 12 [Article 7 in the Draft Statute] on precon-
ditions. Related to this issue, it must be emphasized, is the safeguard contained
in Article 17 on complementarity. The ICC would have only exercised such
universal jurisdiction where a national system was unwilling or unable to inves-
tigate and/or prosecute effectively. Therefore, the universal principle would
not have divested national criminal courts of their primary role in prosecutions
of listed crimes.

Clearly, the universal principle would have given jurisdiction to the ICC if
the core crimes were committed in the territory of any State, Party or non-Party
to the Statute. However, non-States Parties would have been under no inter-
national legal obligation to cooperate with the Court. Therefore, the second
prong of the German proposal contained in Article 9 (2) further option was
that non-States Parties may accept the obligation to cooperate on an ad hoc ba-
sis with respect to any listed crime.58

The Korean Proposal. Sensing opposition to the German concept of universal
jurisdiction, the Republic of Korea’s proposal®® appeared two days into the
Conference on June 17, 1998. It provided for so-called automatic jurisdiction.
The Korean view was that by becoming a Party a State would be considered to
have accepted the jurisdiction of the ICC. The jurisdictional nexus was that
any one or more of four involved States Parties have consented to the Court
exercising jurisdiction over a case: either the territorial State, State of
nationality of the accused, State of nationality of the victim, or custodial State.
This proposal differed from those that follow in that it allowed for the selective
consent by ratification of one of the four States, including the custodial State.
In real terms, there was no difference in philosophy between the German and
Korean proposals, as the universal principle is based solely upon the alleged
perpetrator being in the custody of the prosecuting State. The Korean proposal
enjoyed wide support, but was not acceptable to many States who wanted a
second layer of State consent.5!

The United Kingdom Proposal. The United Kingdom,” in further option for
Article 7 (1), provided for jurisdiction by States Parties of the ICC for crimes
listed in Article 5, with necessarily the same built-in safeguard of comple-
mentarity discussed above. However, in Article 7 (2), a further requirement

546


I

The Westphalian Peace Tradition in
International Law

From Jus ad Bellum to Jus contra Bellum

Ove Bring

] URING THE COURSE OF 1998, the 350th Anniversary of the Peace of

Westphalia was celebrated in different European countries, and
throughout 1999 the Centennial of the First Hague Peace Conference repeat-
edly received solemn attention.! This article, written in honour of Professor
Leslie C. Green, will use the years of 1648 and 1899 as assessment points in re-
lation to developments in international law regarding the use of force by States.
As concerns the emerging law of collective security, the account will probe
somewhat beyond the year of 1899, but not beyond the establishment of the
League of Nations in 1920. The chosen topic is thus one of legal history, which
is not inappropriate when one takes into account the achievements of Leslie
Green; he himself became part of legal history through participation in war
treason trials in India after World War II, and he has written on international
humanitarian law and the UN Charter law on the use of force from both a his-
torical and contemporary perspective. The historical approach of this contri-
bution may be timely—at a juncture in international relations when the world
community is at a crossroads (as before in history) between multilateralism and
unilateralism, between global and regional decision making, and between the



Wolff Heintschel von Heinegg

Notes

1. L. Doswald-Beck (ed.), SAN REMO MANUAL ON INTERNATIONAL LAW APPLICABLE TO
ARMED CONFLICTS AT SEA, Cambridge 1995.

2. DEPARTMENT OF THE NAVY (Office of the Chief of Naval Operations), ae
COMMANDER'S HANDBOOK ON THE LAW OF NAVAL OPERATIONS, NWP 1-14M, para. .

3. Ibid.

4, For a discussion of the differences and similarities between economic (commercial) and
strategic blockades, see C.J. COLOMBOS, INTERNATIONAL LAW OF THE SEA, 6th rev. ed.,
London 1967, § 818; L. OPPENHEIM, INTERNATIONAL LAW (ed. by H. Lauterpacht), Vol. II,
7th ed., London 1963, p. 769 f.

5. In textbooks, the law of blockade is dealt with in the context of the law of neutrality
because a blockade always implies interference with neutral trade. The authors acknowledge,
however, that blockade is a “means of warfare against the enemy” (e.g., Oppenheim, supra note
4, p. 768). Blockades are not directly aimed against neutral shipping. If neutral shipping is
affected by a blockade, this is an indirect consequence resulting from the very nature of this
concept. Accordingly, the law of blockade is not an integral part of the law of neutrality. It is
being dealt with in that context for practical reasons only. For a characterization of blockades as
acts of war, see the references in M.M. WHITEMAN, DIGEST OF INTERNATIONAL LAW, Vol. 10,
Washington D.C. 1968, p. 868 ff.

6. For a distinction, see M.N. SCHMITT, BLOCKADE LAW: RESEARCH DESIGN and
SOURCES, Legal Research Guides, Vol. 12, Buffalo 1991, p. 3 ff.

1. “Pacific blockades” were established quite often. Still, in view of the lack of a (formal) state
of war, their legality was disputed. See W. SCHUMANN, DIE FRIEDENSBLOCKADE, Hamburg
1974, passim; A.H. Washburn, The Legality of the Pacific Blockade, COLUMBIA LAW REVIEW
1921, pp. 55-69, 227-241, 442-459; Institut de Droit International, Droit de blocus en temps de
paix, AIDI 9 (1887-88), pp. 275-301. See also the references in M.M. WHITEMAN, DIGEST 10,
supra note 5, p. 870 f. For early State practice, see the references in HJ.W. VERZIL/W.P.
HEERE/).P.S. OFFERHAUS, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE, Part IX-C,
Dordrecht 1992, p. 419 ff.

8. In his commentary on a report presented during the Round Table in Bergen (Norway),
Leslie Green stated:

It should be pointed out at the very beginning that my own view is based on the
premise that the Charter is an instrument concerned with peace and only becomes
involved in questions relating to armed conflict when the Security Council decides in
accordance with Chapter VII to take action directed to the prevention or termination of
hostilities. It is essentially an instrument concerned with the preservation of peace and
there is no article therein to suggest that its provisions operate once a conflict has
commenced, other than as indicated above. L.C. Green, Comment No. 5 on Mr.
Greenwood’s Report, in: W. Heintschel v. Heinegg (ed.), VISIT, SEARCH, DIVERSION
AND CAPTURE/THE EFFECT OF THE UNITED NATIONS CHARTER ON THE LAW OF
NAVAL WARFARE, Bochum 1995, p. 191.

9. See, inter alia, Ch. Greenwood, The Effects of the United Nations Charter on the Law of Naval
Warfare, ibid., p. 133 ff; and the commentaries on that report, ibid., p. 177 ff. (by A.W. Dahl); p.
181 ff. (by L. Doswald-Beck); p. 185 f. (by WJ. Fenrick/K.S. Carter); p. 187 ff. (by D. Fleck); p.
201 ff. (by J.A. Roach); p. 205 f. (by H.B. Robertson, Jr.).

219


International Law and the Conduct of Military Operations

20. For discussion, see S. MURPHY, HUMANITARIAN INTERVENTION (1996); F. TESON,
HUMANITARIAN INTERVENTION (2nd ed., 1997); Greenwood, loc. cit., note 19, supra.

21. See Security Council Resolution 788 (1992).

22. Security Council Resolutions 1160 (1998), 1199 (1998) and 1203 (1999).

23. See, in particular, B. Simma, NATO, the United Nations and the Use of Force: Legal
Aspects, 10 EJIL (1999), p. 1. A. Cassese, Are We Moving towards International Legitimation of
Forcible Humanitarian Countermeasures in the World Community?, loc. cit., p. 23, thinks that the
law is changing but accepts that the action is unlawful under the present law.

24. There was, in fact, no peace to keep, so the main activities of UNPROFOR differed from
those of a classic peacekeeping operation. Moreover, since the force was intended to be impartial
and not to become a party to the conflict, at least initially, it was not equipped fora combat role.

25. See, e.g., paragraph 4 of the Preamble to Additional Protocol I, 1977, to the Geneva
Conventions.

26. Defined in Article 52(1) of Additional Protocol I as “those objects which, by their nature,
location, purpose or use make an effective contribution to military action and whose total or
partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a
definite military advantage.”

27. Additional Protocol I, Article 51(5)(b).

28. A few landmarks should, however, be noted. Since 1990, the two 1977 Additional
Protocols to the Geneva Conventions have at last attracted a broad measure of acceptance,
although the United States has not become a party to either and France has so far declined to
become a party to Additional Protocol I. New treaties have been adopted outlawing chemical
weapons (the Chemical Weapons Convention, 1993) and anti-personnel land mines (the Land
Mines Convention, 1997) and establishing a permanent International Criminal Court (the
Statute of the International Criminal Court, 1998). In addition, the Security Council has
established tribunals with jurisdiction to try suspected war criminals in the former Yugoslavia
and Rwanda.

29. C.J. Greenwood, The Concept of War in Modem International Law, 36 ICLQ (1987), p.
283.

30. See, e.g., common Article 2 of the Geneva Conventions, 1949.

31. DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-1988, volume
III, p. 3456.

32. In its decision in Prosecutor v. Tadic (Jurisdiction) in 1995, the International Criminal
Tribunal held that the laws of war applied “whenever there is a resort to armed force between
States,” 105 ILR 419 at p. 453, para. 70. The view of the ICRC is stated in J.S. Pictet (ed.),
COMMENTARY ON GENEVA CONVENTION III (Geneva, ICRC, 1960), p. 23.

33. That was the view taken from the outset by the ICRC (see Public Statement of April 23,
1999, available at http:/Avww.icrc.org) and accepted by NATO and the relevant governments.

34. Prosecutor v. Tadic (Jurisdiction), Decision of the Appeals Chamber 1995, 105 ILR 419 at
pp. 504-520; Prosecutor v. Martic (Rule 61), Decision of the Trial Chamber, 1996, 108 ILR 39.
For a review of this jurisprudence, see C. J. Greenwood, The Development of International
Humanitarian Law by the Intemational Criminal Tribunal for the Former Yugoslavia, 2 YEAR BOOK
OF UNITED NATIONS LAW (1998), p. 97.

35. See Tadic, loc. cit., note 34, supra, and the decision of the Trial Chamber in Tadic (Merits),
112 ILR 1 (1997). At the time of writing, the decision of the Appeals Chamber in Tadic’s appeal
from the 1997 decision had not yet been delivered.

36. On this subject, see ICRC, SYMPOSIUM ON HUMANITARIAN ACTION AND
PEACE-KEEPING OPERATIONS (Geneva, ICRC, 1994); L. Condorelli and others, eds., THE

200


Jus Pacis ac Belli?

It appears, therefore, that none of the assertions of the modern doctrine on
peace and war can be upheld.

The doctrine of the normality of peace is merely a survival of naturalist
thought, but is incompatible with the real functions of war in modern interna-
tional society.

The doctrine of the alternative character of peace and war, of the same nat-
uralist origin, minimizes or ignores the reality of State practice which has cre-
ated rules pertaining neither to those of peace or war, but constituting a status
mixtus.

The doctrine of war as a status and objective phenomenon breaks down over
the reality of the status mixtus. This status is not separated from those of peace
and war by any objective tests. States contend by power in peace and war. In
the state of peace, they are limited to the use of economic and political power.
In the status mixtus, they supplement these forms of power by the use of military
power. In the state of war, they use all available forms of power. It betrays an
over-estimation of the difference between political and economic power as
compared with military power, to imagine that, within a system of power poli-
tics, there is any qualitative difference between the states of peace and war.

The traditional division of international law into the law of peace and the
law of war may be expedient for didactic purposes. The necessary subjectivity,
however, of the available criteria of distinction between the two, or better
three, states of typical legal relations between States deprives this classification
of any claim to scientific sacrosanctity.

The Distinction between Peace and War in International Conventions

To round out the picture, it seems worthwhile to examine whether the con-
clusions reached so far are affected by relevant international conventions. If
States had desired to create a clear borderline between peace and war, they
could have achieved this object only at the price of renouncing their claim to
the use of force in time of “peace.” Then war and the use of armed force would
have become identical, and clearly discernible criterion of war would have be-
come available. This truly objective test was used in the Second Hague Con-
vention of 1907 regarding the Limitation of the Employment of Force for the
Recovery of Contract Debts. Nevertheless, the Powers represented at the Sec-
ond Hague Peace Conference were not prepared to abolish the status mixtus as
such. This became embarrassingly evident in the discussions of the second
sub-committee of the Second Commission when the Chinese military delegate
analyzed the proposed Convention on Compulsory Declaration of War in the

496


The Normative Framework of International Humanitarian Law

2. Is the determination of the nature of a given armed conflict based
on one or more standards deemed part of customary law, and, if so, to
what extent does customary law rely on legal standards that derive
from:

(a) Common Article 3 of the 1949 Conventions; and

(b) Protocol II.

These and other questions still loom large in the law of armed conflicts; and, as
stated above, they were reflected in the range of governmental positions on the
definition of war crimes in the draft statute of the ICC.!24

In 1995, the United Nations General Assembly established an Ad Hoc Com-
mittee for the Establishment of an International Criminal Court.!25 In 1996, it
established a Preparatory Committee for an International Criminal Court.126
Subsequently, during three-and-a-half-years of deliberations, the question
of defining war crimes became the subject of detailed discussions. Questions
were raised, in particular, about whether all of the contents of Protocols I and
II have risen to the level of customary law, about the specific contents of
customary law, and still more particularly, about the rules governing conflicts
of a non-international character and the prohibitions of the use of certain
weapons in all categories of conflicts. While there was no dispute that
the “grave breaches” provisions of the 1949 Geneva Conventions are appli-
cable, and substantial agreement that most of the “grave breaches” in Protocol
I are included, there was less agreement that some of the Protocol II prohi-
bitions can be deemed part of custom. In fact, the texts proposed, and the one
adopted reflect, a partial regression from the norms contained in Protocol I
and a substantial regression from the norms contained in Protocol II. The draft
provision submitted to the diplomatic conference evidences these diver-
gent views.!27 The chart was developed and circulated at the Preparatory
Committee for the Establishment of an International Criminal Court!?8 and, in
setting forth the various sources for the provisions, highlights the overlaps and
gaps.

The ICC adopted a similar text but the distinction between conflicts of an
international and non-international character is reflected in the distinction be-
tween “grave breaches” and other violations of common Article 3 in this in-
stance. Protocols I and II are neither specifically nor entirely applied, but norms
are taken selectively therefrom and are listed under what can be termed “war
crimes” under customary law. Subparagraph 2 (a) of Article 8 refers specifically
to the “Grave Breaches of the Geneva Conventions of 12 August 1949...” and
lists eight such under this heading:

18


Dieter Fleck

integration. The German-Netherlands Corps and the European Corps have pro-
vided an opportunity to further develop and deepen the integration model.

The German-Netherlands Corps, with its headquarters in Muenster,
Westphalia, is the first example of a multinational unit with forces of each par-
ticipating State stationed on the territory of the partner State. This Corps com-
prises German main defense forces (Ist Armored Division/Military District
Command II in Hanover) and the major part of the Netherlands Army, i.e., the
Ist (NL) Division “7 December,” the 41st Light Brigade which has been sta-
tioned in Seedorf (Lower Saxony) for decades. The binational Command Sup-
port Group (CSG), which includes more than 1,400 German military and
civilian personnel, is stationed in Eibergen (Netherlands). In a joint declara-
tion dated October 6, 1997, the respective Ministers of Defense designated the
Corps Headquarters in Muenster as a Force Answerable to Western European
Union (FAWEU). Moreover, the Convention on the German-Netherlands
Corps, signed on October 6, 1997,! has been submitted to parliaments in Ger-
many and in the Netherlands for approval. The Headquarters has been given
legal authority to contract, hire civilian personnel, and pay claims, all from a
multinational Corps budget and on behalf of the two participating States. Prop-
erty acquired with common funds is to be considered as owned in common by
the Federal Republic of Germany and the Kingdom of the Netherlands. Em-
ployment contracts of civilians hired to work at the Headquarters in Muenster
are governed by German labor and social law.

The European Corps (Eurocorps), headquartered in Strasbourg, France,
consists of personnel from five nations (Belgium, France, Germany, Luxem-
bourg and Spain). It attained operational readiness on November 30, 1995.
One of its core elements is the Franco-German Brigade, which has existed
since 1988 and which, in part, is integrated down to the company level. Belgian
and French military elements? of the Eurocorps are stationed in Germany; their
status is determined by the NATO SOFA? and the Supplementary Agreement
to the NATO SOFA with respect to foreign forces stationed in Germany.* A
January 21, 1993 agreement with Supreme Allied Commander, Europe
(SACEUR Agreement) defines the special terms of the employment of the
Corps within the framework of the North Atlantic Alliance. By it, the Corps
will serve as part of the main defense and reaction forces on the basis of opera-
tion plans prepared under the auspices of SACEUR. In any case, the participat-
ing nations will remain responsible for deciding on the employment of the
Corps. The status of the headquarters in Strasbourg and of the formations op-
erating jointly on the territories of each participating State are yet to be de-
fined. To this end, a “Strasbourg Convention” is currently being negotiated to

163




Index

International Humanitarian Law, 507, 510-19
Kosovo, Role in, 321-24
Military Operations, 192-94, 508-10
See also SECURITY COUNCIL, Enforcement Actions; UNITED NATIONS CHARTER, En-
forcement Actions
North Atlantic Treaty Organization (NATO), 171-79, 321
Peacekeeping Operations, 20, 174, 187-88, 192, 329, 508-09, 516-19, 521
UNPROFOR (Bosnia), 183, 187-88, 193, 196
See also PEACEKEEPING OPERATIONS
Status-of-Forces Agreements, 515
Transition Assistance Group (UNTAG) (Namibia), 511
United Nations Security Council, see SECURITY COUNCIL
UNITED NATIONS CHARTER, 86, 106, 109, 251, 259, 270, 330
Blockades, 217
Enforcement Actions, 183, 196, 533, 540
Erga Omnes, 265
Force, Use of, 57, 97, 103, 105, 184, 188, 321-22, 432
Jus Cogens, 265-68
Somalia, 512
World Constitution?, 263
UNITED NATIONS CONVENTIONAL WEAPONS CONVENTION (1980), 339, 340,
468, 474
See also WEAPONS, Conventional
Land Mines and Booby Traps Protocol (1980), 340, 520
UNITED STATES
Geneva Convention, Additional Protocol I, 367, 369, 455, 456, 459
International Criminal Court Statute, 455, 456, 475, 478, 547-48, 551, 553-56
Kosovo, 316, 321
South Korea, 463
Submarine Warfare, 361
Yugoslavia v. United States (1C}), 325
UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1, 275-76, 391
See also HUMAN RIGHTS
USE OF FORCE, see FORCE, USE OF

VATTEL, EMMERICH DE
Le Droit Des Gens, 64
VIENNA CONVENTION ON THE LAW OF TREATIES, 97-101, 108, 168, 547, 551
Coerced Agreements Void, 138-40
VIETNAM, 36, 186, 449, 459, 473
VIETNAM WAR, 36, 459
See also under WAR CRIMES
VISIT AND SEARCH, 194, 213, 343-45, 348-49, 358-59, 362, 365
See also BLOCKADE, LAW OF; NEUTRAL MERCHANT SHIPS; SHIPS AND SHIPPING

605


The Normative Framework of International Humanitarian Law

The penalty imposed by the Trial Chamber shall be limited to
imprisonment. In determining the term of imprisonment, the Trial
Chamber shall have recourse to the general practice regarding
prison sentences in the courts of the former Yugoslavia.

714. Pursuant to Article 48 of the former SFRY Criminal Code, which
is still applied in the successor States of the SFRY, if the accused has
committed several criminal offences by one action, the court shall first
assess the punishment for each criminal offence and then proceed with
the determination of the principal punishment. In the case of
imprisonment, the court shall impose one punishment consisting of an
aggravation of the most severe punishment assessed, but the aggravated
punishment may not be as high as the total of all incurred punishments
[footnote 959].!°°

715. The 1997 Criminal Code of the Republic of Croatia contains
similar rules on sentencing in the case of multiple offences committed
by one action [footnote 960].'5! Outside the former Yugoslavia, the
Italian Criminal Code includes a similar rule [footnote 961).152

716. As was held by the Trial Chamber in the Tadié case, “[t]he
practice of courts in the former Yugoslavia does not delimit the sources
upon which the Trial Chamber may rely in reaching its determination.
of the appropriate sentence for a convicted person” [footnote 962].!9>
In numerous legal systems, the penalty imposed in case of multiple
convictions for offences committed by one action is limited to the
punishment provided for the most serious offence. An instance of this
approach is represented by Article 52(2) of the German Penal Code
[footnote 963].!54

718. The following proposition commends itself as sound. If under the
principles set out above a Trial Chamber finds that by a single act or
omission the accused has perpetrated two offences under two distinct
provisions of the Statute, and that the offences contain elements
uniquely required by each provision, the Trial Chamber shall find the
accused guilty on two separate counts. In that case the sentences
consequent upon the convictions for the same act shall be served
concurrently, but the Trial Chamber may [increase] the sentence for
the more serious offence if it considers that the less serious offence
committed by the same conduct significantly adds to the heinous
nature of the prevailing offence, for instance because the less serious
offence is-characterised by distinct, highly reprehensible elements of its

30


Bin Cheng

Space Treaty, or any State at all, has done so or tried to do so. Outer void space
has not been reserved for exclusively peaceful purposes, or, as for that matter,
for any specific purposes, and all the military activities cited by Professor Vlasic as
taking place there are perfectly legal under the Space Treaty.>? Consequently, up
to now, there has been neither reason nor ground for protest. One can, there-
fore, hardly base a case of subsequent practice in relation to the word “peace-
ful” in Article IV(2) on what has been going on in outer void space, to which
the restriction to peaceful uses does not apply.

On the question of either practice or subsequent practice, as both the Tem-
ple of Preah Vihear Case58 and the Anglo-Norwegian Fisheries Case*® show, a
State’s legal rights can be adversely affected by the conduct of others only if it
can be proved to have accepted, or to have over a period of time failed to pro-
test when it had cause to protest against, a situation which actually impinged
on its rights or interests. In our case, the fact that the contracting States to the
Space Treaty have not protested the practice of one or two of them choosing to
misuse the term peaceful to describe their perfectly lawful military activities in
outer void space certainly cannot amount to what Article 31 (3) (b) of the Vi-
enna Convention on the Law of Treaties calls “agreement of the parties” re-
garding such a use of the term in relation to the treaty. Indeed, if every time
some foreign State official commits a legal malapropism, one were required to
protest, whether or not one’s rights are affected, government offices would
hardly have time to do anything else!

4. Preparatory Work. As a matter of fact, nor can one invoke Article 32 of the
Vienna Convention, which allows the preparatory work of the Treaty to be
used as a “supplementary means of interpretation,” even though the United
States negotiators of the Treaty appeared to have spent much effort in the cor-
tidors propagating the notion that “peaceful” meant “non-aggressive” and not
“non-military.” In the first place, this novel and bizarre use of a familiar word
was never, as far as known, recorded officially as a reservation in any of the pre-
paratory work concerned with the Treaty itself, and still less is there any record
of the other negotiators acquiescing in such an extraordinary interpretation.
There has been only hearsay, which certainly does not count. It is true that
treaties can use any term in any meaning they wish to assign to it. The Moon
Treaty,® for example, more or less proclaims in Article 1 that insofar as the
treaty is concerned, when it says moon, it means all the celestial bodies within.
the solar system other than the earth. But there is no such provision in the 1967
Space Treaty. With a use of the term as upside down as the United States is
propagating, the only way that it can be acceptable without ambiguity would be

99


The Rome Statute on the International Criminal Court

(b) The State of which the person accused of the crime is a national.

3. If the acceptance of a State which is not a Party to this Statute is required
under paragraph 2, that State may, by declaration lodged with the Registrar,
accept the exercise of jurisdiction by the Court with respect to the crime in
question. The accepting State shall cooperate with the Court without any
delay or exception in accordance with Part 9.

This Article combines State acceptance of jurisdiction with preconditions
for the exercise of jurisdiction by the ICC. It disjunctively allows for the accep-
tance by being States Parties of one or more of the territorial State or the State
of nationality of the accused. The transitional provision contained in Article
124 was also part of the compromise to gain the agreement of France to the
Statute.7¢ It provides that States Parties may opt out of the ICC’s war crimes ju-
risdiction for a period of seven years when the alleged crimes were committed
on its territory or by its nationals. States that had lobbied for the “opt-in” ac-
ceptance and the preconditional conjunctive approach or solely the State of
nationality of the accused remained opposed. From the outset, issues of juris-
diction had been a key concern for the United States.”? For the United States it
was the four words “one or more of ” in Article 12(2) that caused the ultimate
dissent. It was on this issue that the United States proposed an amendment
during the last hours of the Conference in the CW.78 It read:

With respect to States not party to the Statute the Court shall have jurisdiction
over acts committed in the territory of a State not party, or committed by officials
or agents of a State not party in the course of official duties and acknowledged by
the State as such, only if the State has accepted jurisdiction in accordance with
this Article.

The amendment was resoundingly defeated by a no-action motion,”? adopted
by 113 in favour to 17 against, with 25 abstentions. In the plenary that
followed, the United States requested an unrecorded vote. The result was 120
in favour with 7 against and 21 abstentions. Those voting against included
China, Israel and the United States.

Article 12—An Interpretation
By becoming parties to the Statute, States accept the jurisdiction of the ICC for

the crimes of genocide, crimes against humanity, war crimes and aggression,
when the latter has been defined and adopted in accordance with Article 5 (2).8°

550


M. Cherif Bassiouni

The ICC

The Statute did not take into account the various issues raised by the over-
lap between these three crimes. This is evident in the absence of any reference
to that question in connection to the definition of crimes as well as in connec-
tion with the Elements developed by the Preparatory Commission.!5? The
problem of overlap has been particularly aggravated by the elements of crime
which seem, in so many cases, to be identical particularly with respect to the
material conduct of the perpetrator (such as that of killing or torturing). It
should be noted that the Statute does not contain a provision on the material
element of the crime which is a significant omission. This was due to the fact
that the delegates did not seem to be able to agree on the distinctions between
commission and omission./58 A distinguishing feature as to these three crimes,
particularly when the material conduct is identical, is the mental element. Ar-
ticle 30 on the mental element in the Statute lacks sufficient clarity to allow for
the subtle distinctions that would be required. It appears that the Elements
sought to partially remedy the situation by adding throughout the different de-
scriptive elements such words as “intended,” “aware of,” and “knew or should
have known of the conduct.”!59 In the opinion of this writer, the drafting of the
Elements produces further confusion with respect to the problem of overlap
(not to speak of other problems they are likely to create when the Court will
seek to apply them).

Articles 77 to 79 deal with penalties, but these articles do not address the is-
sues that arise out of a conviction for multiple crimes arising out of the same
conduct.!69 Thus the problem of overlap which could have been resolved in
the sentencing was not addressed in the Statute. Thus it is theoretically possi-
ble not only to have the same conduct give rise to a conviction for more than
one crime, but for this conviction to give rise to multiple penalties. One can as-
sume that the judges will have the good sense of at least having the sentences
run concurrently as opposed to consecutively, but it would have surely been
better if the Statute would have provided for it.

Lastly, these overlaps raise a series of questions with respect to ne bis in
idem.!61 If a given conduct can be the basis of multiple convictions because of
overlap of three crimes, what legal criteria should be relied upon by the ICC to
determine whether a conviction in a national legal system falls within, the
meaning of ne bis in idem. The converse is also true with respect to States parties
who are required to recognize ICC judgements and not to prosecute the same
person for the crime for which that person was previously prosecuted before

the ICC.
35


International Law and the Conduct of Military Operations

Prior to 1990, the legality of humanitarian intervention in the absence of
United Nations authorization was widely questioned. Nevertheless, there were
occasions when States invoked a right of humanitarian intervention. When In-
dia intervened in Bangladesh in 1971, and when Vietnam invaded Cambodia
and Tanzania Uganda in 1979, they claimed to be acting in exercise of such a
tight, although they did so only as a secondary justification and their claims met
with considerable resistance.!9

Since 1990, however, there has been a more substantial body of State prac-
tice sustaining a right of intervention in a case of extreme humanitarian
need.20 The Economic Community of West African States (ECOWAS) inter-
vention in Liberia in 1990 could only have been justified as an exercise of a
tight of humanitarian intervention, yet not only did it meet with no condemna-
tion from the international community, it eventually received the express en-
dorsement of the Security Council some two years later.?! The interventions by
United States, British, and other forces in northern Iraq in 1991 and southern
Traq the following year are an even more striking assertion of the right of hu-
manitarian intervention. Although the intervention was preceded by the adop-
tion of Security Council Resolution 688 (1991), which condemned Iraq’s
attacks upon its civilian population, that resolution was not adopted under
Chapter VII of the Charter and did not authorize military action. The justifica-
tion for the operation rested, therefore, on the assertion of a right of humani-
tarian intervention under general international law. While Iraq protested at
these incursions into its territory, they again met with almost no opposition in
the rest of the international community.

In asserting a right of humanitarian intervention in Yugoslavia, the NATO
States were not, therefore, writing on an empty page. As was the case in Iraq,
military action was not authorized by the Security Council but the Security
Council had condemned the Federal Republic of Yugoslavia’s treatment of the
population of Kosovo as a threat to international peace and security.22 More-
over, the Security Council had expressly recognized that there was overwhelm-
ing evidence of widespread violations of human rights and consequent loss of
life in Kosovo (much of the evidence for which came from the United Nations
High Commissioner for Refugees and other impeccable sources) before NATO
action commenced. These factors have led a number of writers to conclude
that the NATO action was necessary and morally justified, but that it was nev-
ertheless unlawful.?3 If true, that is a damning condemnation of international
law. The present writer, however, does not accept that it is true. International
law is not static and modern international law can no longer be regarded as giv-
ing the protection of State sovereignty absolute primacy over the protection of

186


On Genocide

Professor Green has served with distinction as the Stockton Professor of Inter-
national Law at the Naval War College and has continued to contribute to the
development of the law of war as a leading scholar in that field. I feel lucky to
have helped steer his (scholar)ship in the right direction at the right time.

I am contributing some thoughts about genocide to this collection of essays
in honor of my dear friend Leslie Green, precisely because genocide is not a
topic that appears among his many essays on the law of war. If it did, I would
feel preempted. Of course, Professor Green has talked about genocide in his
discussions of the laws of war, including crimes against humanity (it would
have been astounding if he had not done so). There is nothing he has said
about the topic that I could criticize even if] were bold enough to do so. But be-
cause he has not contributed a specific essay on the topic, I submit the follow-
ing essay as a compliment (complement) to his works. Of course, in a way it is
too soon to write about genocide. The law on that subject is developing rapidly
as the result of the work of the two ad hoc International Criminal Tribunals for
the Former Yugoslavia and for Rwanda. In addition, various national courts
have recently had occasion to consider charges of genocide. If I were to attempt
here an essay that dealt with all the judicial glosses to date on the crime of
genocide, it would be outdated the minute it is published. Thus, I will confine
myself to considerations of a greater generality. I hope these can help illumi-
nate two major underlying factors in the recent and unique international crime
of genocide, factors that will undoubtedly persist as a theme in the many judi-
cial developments in the near future that will elaborate upon, specify, and fur-
ther explicate the crime of genocide as applied to particular cases.

The Need for a Coherent Definition

The term “genocide” is popular with journalists because it seems to give an
immediate and sensational dimension to their reports. Its overuse extends to
academics who see no need to be careful about the terms they use. For exam-
ple, the well-known political scientist Rudolph Rummel cited as instances of
“genocide” (1) “the denial of ethnic Hawaiian culture by the American-run
public school system in Hawaii”; (2) “government policies letting one race
adopt the children of another race”; (3) “South African Apartheid”; and (4)
“the Jewish Holocaust.”! As early as 1951, Paul Robeson and William
Patterson submitted a petition to the United Nations charging “genocidal
crimes of federal, state, and municipal governments in the United States
against 15,000,000 African-Americans.”? Clearly, the term “genocide” can be
stretched so far as to lose any distinctive or coherent meaning.

120


Charter of the United Nations as a World Constitution

CONFORTI, THE LAW AND PRACTICE OF THE UNITED NATIONS (The Hague: Kluwer Law
International, 1996), pp. 4-5.

3. KARL ZEMANEK, THE LEGAL FOUNDATIONS OF THE INTERNATIONAL SYSTEM (The
Hague: Martinus Nijhoff, 1997), p. 47. See also MARIO GIULIANO, TULLIO SCOVAZZI, TULLIO
TREVES, DIRITTO INTERNAZIONALE (Milano: Giuffré, 1991), p. 238; R. St. J. Macdonald, The
Charter of the United Nations and the Development of Fundamental Principles of Intemational Law, in
CONTEMPORARY PROBLEMS OF INTERNATIONAL LAW: ESSAYS IN HONOUR OF GEORG
SCHWARZENBERGER ON HIS 80TH BIRTHDAY (London: Stevens, 1988), p. 196.

4. Quizhi He, The Crucial Role of the United Nations in Maintaining International Peace and
Security, in Christian Tomuschat (ed.), THE UNITED NATIONS AT AGE FIFTY, A LEGAL
PERSPECTIVE (The Hague: Kluwer Law International, 1995), p. 80.

5. This origin, clearly recalled by the rapporteur of the First Committee of the First
Commission on June 13, 1945, is also reported in JEAN-PIERRE COT ET ALAIN PELLET, LA.
CHARTE DES NATIONS UNIES, COMMENTAIRE ARTICLE PAR ARTICLE (Paris: Economica
Bruylant, 1985), p. 18. See also, Raymond Ranjeva, Peoples and National Liberation Movements, in
Mohammed Bedjaoui (ed.), INTERNATIONAL LAW: ACHIEVEMENTS AND PROSPECTS,
(Dordrecht: Martinus Nijhoff, 1991), pp. 101-112.

6. Jean-Pierre Cot and Alain Pellet, Préambule, in COT ET PELLET, note 5, p. 15.

7. See in particular RUTH B. RUSSELL, A HISTORY OF THE UNITED NATIONS CHARTER:
‘THE ROLE OF THE UNITED STATES 1940-1945 (Washington D.C.: The Brookings Institution,
1958), p. 910 (explaining the reasons for the ambiguities in the Preamble); HANS KELSEN, THE
LAW OF THE UNITED NATIONS, (London: Stevens, 1950), pp. 3-11; Christof Heyns, The
Preamble of the United Nations Charter: The Contribution of Jan Smuts, 7 AFRICAN JOURNAL OF
INTERNATIONAL AND COMPARATIVE LAW 329 (1995); BENGT BROMS, THE UNITED
NATIONS (Helsinki: Suomalainen Tiedeakamic, 1990), pp. 49-51; Bruno Simma (ed.), THE
CHARTER OF THE UNITED NATIONS (Oxford: Oxford University Press, 1994), p. 45. Hans
Georg Gadamer reminds us that “Every age has to understand a transmitted text in its own way.”
The text lacks meaning until it is interpreted; and it makes a difference who the interpreter is.
HANS GEORG GADAMER, TRUTH AND METHOD (G. Barden and J. Cumming trans., 2nd ed.,
1975), p. 263.

8. Richard Falk, Explaining the UN’s Unhappy Fiftieth Anniversary: Towards Reclaiming the
Next Half-Century, in Ron Wheeler and Howard McConnell (eds.), SWORDS AND
PLOWSHARES: THE UNITED NATIONS IN TRANSITION (Toronto: Canadian Scholar's Press,
1997), p. 22.

9. Ibid., p. 22.

10. Giuseppe Cataldi, Il Consiglio di Sicurezza nel nuovo scenario intemazionale: prospettive di
riforma nella struttura e nelle procedure, 48 COMUNITA INTERNAZIONALE 683-700 (1993).

11. Luigi Ferrari Bravo, Prospettive del Diritto Internazionale alla fine del secolo XX, 74 RIVISTA
DI DIRITTO INTERNAZIONALE 528 (1991).

12. CONFORTI, note 2, chapter 3, sec. II.

13. See, on the behaviour of China during recent developments in the Security Council, Ron
Wheeler, China, the UN and National Sovereignty. Drawing the Line on Supranationalism? in Ron
Wheeler and Howard McConnell (eds.), note 8, pp. 33-49.

14. Girolamo Strozzi, I “principi” dell’ordinamento intemazionale, in 47 COMUNITA
INTERNAZIONALE, p. 184ff (1992); Michael N. Schmitt, Clipped Wings: Effective and Legal No-fly
Zone Rules of Engagement, 20 LOYOLA OF LOS ANGELES INTERNATIONAL AND COMPARATIVE
LAW JOURNAL 727 (useful discussion emphasizing that Resolution 688 neither mentioned
Chapter VII nor specifically authorized establishment of no-fly zones). These zones “more closely

294


M. Cherif Bassiouni

own (e.g. the use of poisonous weapons in conjunction with the more
serious crime of genocide).

719. On the other hand, ifa Trial Chamber finds under the principles
set out above that by a single act or omission the accused has not
perpetrated two offences under two distinct provisions of the Statute
but only one offence, then the Trial Chamber will have to decide on the
appropriate conviction for that offence only. For example, if the more
specialised offence, e.g. genocide in the form of murder, is made out on
the evidence beyond a reasonable doubt, then a conviction should be
recorded for that offence and not for the offence of murder as a war
crime. In that case only one conviction will be recorded and only one
sentence will be imposed.

The ICTR

The ICTR also faced that question in Prosecutor v. Akeyusu.!55 In that
case, the trial chamber took a different approach from that of the ICTY trial
chamber in the KupreSkié case referred to above. Thus the difference may
well be due to the fact that the ICTR Trial Chamber was more influenced by
French Civilist legal concepts while the ICTY took another approach, which
happened to be akin to a common law pragmatic approach. In the Kupreskié
case, the ICTY relied on the Yugoslavian criminal law, while in the Akeyusu
case, the ICTR relied on the criminal law of Rwanda, which originally derived
from Belgian law, influenced by French law. Yugoslavian criminal law is also
influenced by French law, though as well by certain so-called socialist con-
ceptions of criminal law which had developed during the prior regime. The
Akeyusu case posed the problem in terms of what French criminal law doc-
trine refers to as concours idéal d’infractions.'56 The issue was addressed as
follows:

196. 6. THE LAW: 6.1 Cumulative Charges

199. The question which arises at this stage is whether, if the Chamber
is convinced beyond a reasonable doubt that a given factual allegation
set out in the Indictment has been established, it may find the accused
guilty of all of the crimes charged in relation to those facts or only one.
The reason for posing this question is that it might be argued that the
accumulation of criminal charges offends against the principle of

31


Making Law of War Treaties

unrestricted air and submarine warfare against Japan remained classified until March 29, 1961;
MALLISON, supra note 20, at 89, fn. 152. It would be difficult to conclude that engagement in
unrestricted submarine warfare for the duration of the Pacific war was proportionate to the
Japanese attack on Pearl Harbor. Finally, operational rationale such as those offered by Professor
Mallison (id. at 138) would not be necessary if the action taken was a reprisal.

138. S. Bemis, Submarine Warfare in the Strategy of American Defense and Diplomacy,
1915-1945, unpublished manuscript of lecture by Professor Samuel Flagg Bemis at the U.S.
Naval War College, December 15, 1961, at 36.

139. Id., and Bemis, Submarine Warfare, unpublished seminar and panel discussion, Naval
War College, December 16, 1961.

140. J. Talbott, Weapons Development, War Planning and Policy: The US Navy and the
Submarine, 1917-1941, NAV. WAR COLL. REV. 37 (May-June 1984), at 53.

141. R. SPECTOR, EAGLE AGAINST THE SUN: THE AMERICAN WAR WITH JAPAN (1985), at
478-480; J. MANSON, DIPLOMATIC RAMIFICATIONS OF UNRESTRICTED SUBMARINE
WARFARE, 1939-1941 (1990), at 127-160.

142. The General Board was created by the Secretary of the Navy on March 13, 1900, for
advisory purposes only. E. Potter, ed., SEA POWER: A NAVAL HISTORY (2"4 ed., 1981); K.
HAGAN, THIS PEOPLE'S NAVY: THE MAKING OF AMERICAN SEA POWER (1991), p. 2325
MILLER, supra note 53, at 15-18. By 1921, “its functions were clearly delineated. By executive
order, the Board concerned itself with war plans, naval policy, fleet organization and
reorganization, naval construction planning, and ship (also aircraft) design characteristics.”
WHEELER, supra note 60, at 174.

143. Bemis, supra note 138, at 18-19.

144. See sources at note 115.

145. Id. at 19-21; TENTATIVE INSTRUCTIONS, supra note 137, at iii, 14, 17, 20-21.

146. MILLER, supra note.53, at 319.

147. Talbott, supra note 140, at 62.

148. MANSON, supra note 141, at 150.

149. Bemis, supra note 138, at 22-26.

150. Id. at 26.

151. Director, War Plans Division to Director, Central Division (May 21, 1941), Records of
the Secretary of the Navy, File A16-3(26), as cited in Bemis, supra note 138, at 27.

152. Talbott, supra note 140, at 62, 63.

153. Bemis, supra note 138, citing H. STIMSON AND M. BUNDY, ON ACTIVE SERVICE IN
WAR AND PEACE (1947), at 389, and C. HULL, MEMOIRS OF CORDELL HULL (1948), at
1068-1082. Japanese ambassador to the United States, Kichisaburo Nomura, Secretary of State
Hull, and Japanese special envoy Saburo Kurusu previously met at the White House on
November 17 for a “final attempt at peace.” G. PRANGE, AT DAWN WE SLEPT (1981), at 358.
The Japanese presented their latest plan to Secretary of State Hull on November 20, who viewed
itas only the latest in a series of Japanese duplicity; BARNHART, supra note 53, at 259, 260-261.

154. Bemis, supra note 138, at 31.

155. Id., at 32-34, citing R. SHERWOOD, ROOSEVELT AND HOPKINS (1948), at 431. Bemis
(at 33) confirmed Admiral Stark’s conversation with President Roosevelt in a lunch meeting at
the Army-Navy Club in Washington on May 31, 1961, where Stark confirmed that President
Roosevelt knew clearly that the “agreed orders” included unrestricted submarine warfare. The
semi-official U.S. history indicates that, among other things, the order was one for which the
USS. submarine community was totally unprepared, having devoted all pre-war training and
planning to compliance with the rules contained in Article 22 of the 1930 London Naval Treaty

384


Christopher Greenwood

(which was discussed in Part II) also has an effect upon the freedom of action ofa
force affecting for example, such questions as the degree of force which may be
used and the area within which it is legitimate to take military action. For exam-
ple, insofar as there are grounds for questioning the legality of the British action
in sinking the General Belgrano during the Falklands Conflict in 1982, that is
not because the sinking occurred outside the exclusion zone which the United
Kingdom had proclaimed around the Islands,*2 but because it can be argued
that the sinking of the cruiser was not a necessary step in retaking the Islands.#3

The laws of war also have a significant impact on command decisions, again
through the medium of rules of engagement, if these are properly drawn. While
much of the laws of war relates to matters taking place behind the combat
zone—e.g., the treatment of prisoners of war—the need to comply with these
tules has implications for the conduct of the commander, as the problems in
handling the large numbers of prisoners taken in the Falklands and the Kuwait
conflict demonstrate. In the case of the rules prohibiting attacks on civilians
and requiring commanders to observe the principle of proportionality, the im-
pact is even more apparent. For example, Article 57 of Additional Protocol I
requires those who plan or decide upon an attack to take all practicable steps to
ensure:

(a) that the target to be attacked is a legitimate military objective;

(b) that it can be attacked without causing collateral civilian losses or damage to
civilian objects which is excessive in relation to the concrete and direct
military advantage anticipated from the attack;

(c) that the methods and means of attack are selected with a view to minimising
the collateral losses and damage; and

(d) that the attack is called off if it becomes clear that these tests will not in fact
be met.

Properly drafted rules of engagement will take account of all these legal con-
straints, although it has to be remembered that they are by no means the only
constraints which will feature in ROE, which will also restrict the commander’s
freedom of action in response to military and political factors. The impact of
the law should also be enhanced by its role in military education and training.
Moreover, the recent decision to establish an International Criminal Court is
likely to increase awareness of the laws of war and to lead to greater press and
public scrutiny of military operations.

197


Ronald St. J. Macdonald

Violation of International Humanitarian Law Committed in the Territory of
the Former Yugoslavia in Resolutions 808 (1993) and 827 (1993), and an In-
ternational Tribunal for Rwanda in Resolution 955 (1994). The possibility of
grounding these actions in Article 29 of the Charter does not seem to be avail-
able since it is not possible to consider the tribunals in question as mere subsid-
iary organs necessary for the performance of the Council’s functions. The
Council has neither a judicial or law-making function nor competence against
individuals. However, no member of the United Nations has so far objected to
this extension of the Council’s activities. Only Brazil and China expressed con-
cerns for the legality of the Council’s action in establishing the tribunals but
neither voted against the resolutions. China voted in favour of the establish-
ment of the Tribunal for the Former Yugoslavia and abstained in the case of
Rwanda.°6

The consolidation of this United Nations attitude regarding intervention in
cases of human rights breaches is growing, along with another more problem-
atic trend, the delegation of the use of force against a State to an individual
State or group of States in the execution of Security Council decisions under
Article 42. Since the end of the Cold War, delegations of power to member
States have multiplied, and have been used to foster the multi-national inter-
vention in the civil war in Somalia, the use of NATO forces in Bosnia-
Herzegovina, and the U.S.-led intervention in Iraq. The legal validity of these
actions has been questioned by scholars.5? For some, the newly established
trend seems to signify a shift in the role of the Council from the executive and
operational role provided for it in Article 42 to a more directive role.>8

The lack of explicit dissent, according to the maxim qui tacet consentire
videtur, seems to embrace the possibility of the formation of a new norm of in-
ternational customary law, springing from the failure of the Chapter VII norms.
However, despite the lack of formal dissent in the actual proceedings, one
needs to note increasing concern on the part of less powerful States regarding
the expanding sphere of action of the Security Council. As Bedjaoui notes,
“The small and medium nations are again gripped by the fear which some of
them had already expressed at San Francisco in 1945 when they saw danger in
the sweeping powers that the Conference was ready to confer on the Security
Council in the Charter then on the brink of adoption.”59

Bedjaoui goes on to argue that a major weakness in the United Nations sys-
tem lies in the fact that no instrument to control the legality of the actions of its
organs is available to member States. Zemanek underlines the same point as re-
gards recent activities of the Security Council: “Since the Council started
working properly after 1989, its permanent members, once they come to an

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Christopher Greenwood

States concerned, irrespective of the term which may have been used to
describe such operations.

Thus, there is no doubt that the recent air operations by the NATO States
against the Federal Republic of Yugoslavia over the latter’s atrocities in Kosovo
constituted an international armed conflict between the NATO States and the
Federal Republic of Yugoslavia. The fact that the NATO States’ motives were
humanitarian and the operation was conducted for strictly limited goals does
not alter the fact that there was an armed conflict to which the Geneva Con-
ventions and the whole corpus of the laws of armed conflict applied.53

Non-International Armed Conflicts. Although the laws of war never wholly
ignored conflicts within a State, their rules were primarily designed for
international conflicts. Not until 1949 did the international community adopt
a treaty provision specifically concerning internal armed conflicts. Common
Article 3 of the Geneva Conventions was undeniably a major step, but it did
little more than require the parties (government and insurgent) to a conflict to
observe a few minimum humanitarian standards in their treatment of the
wounded, prisoners, and civilians who took no part in hostilities. In 1977,
Additional Protocol II added considerably to the law on this subject but only in
the case of conflicts in which the insurgents actually controlled part of the
territory of the State. Even then, the provisions of the Protocol were far less
extensive, particularly in relation to the actual conduct of military operations,
than were the comparable provisions of the law on international conflicts.

In the last few years, however, there has been a dramatic change in the law.
Most of the recent treaties on weapons—the Chemical Weapons Convention,
1993, the Land Mines Convention, 1997, and the amended Land Mines and
Booby Traps Protocol to the United Nations Conventional Weapons Conven-
tion—are applicable to internal as well as international conflicts. Even more
important are the developments in customary law. The International Criminal
Tribunal for the Former Yugoslavia has held that the customary law applicable
to the conduct of armed conflicts within a State is far more extensive than had
generally been thought. In relation to such matters as the targeting of civil-
ians and the precautionary measures which should be taken to protect them, it
is clear that the Tribunal, whose decisions are likely to have considerable influ-
ence, considers that the customary law on internal conflicts is now essentially
the same as that for international conflicts. It has also held that violations of
the law applicable in internal conflicts constitute war crimes. The Tribunal’s
ruling on this point has now been partially reflected in the list of war crimes in-
cluded in Article 8 of the Statute of the International Criminal Court, adopted

191


Ved Nanda

assessment that the Federal Republic of Yugoslavia was not in substantial
compliance with Security Council Resolution 1199 (1998) . . . [and had] also
decided to continue the present air activities as part of the phased air campaign.3!

The relatively optimistic picture presented by the UN Secretary General,
however, did not live up to its promise. Asa result of mutual provocations and
increasingly excessive force being used by the Serbian military and Special Po-
lice against the Kosovar Albanians at the beginning of 1999, the situation was
worsening. Hence, the contact group met on January 29 and agreed that the
parties must come together for negotiations under international mediation.2?
The urgency of the mandate was underlined by NATO's commitment to strike if
required.33 The result was the first round of negotiations in Rambouillet, outside
Paris, from February 6 to 23, and a second round in Paris from March 15 to 18.

Under the proposed Rambouillet Accords,*4 the basic principles of the
framework were the maintenance of territorial integrity of the Federal Republic
of Yugoslavia and political autonomy for Kosovo.3> However, the term which
Yugoslav President Milosevic was unwilling to accept was the implementation
plan contemplating the establishment of a multinational military implementa-
tion force with NATO at its core.36 Another major difficulty was the provision
that after three years the mechanism for a final settlement for Kosovo would be
determined by the convening of an international meeting primarily “on the ba-
sis of the will of the people”3? of Kosovo. This meant that ethnic Albanians,
constituting a 90 percent majority, would hold the key to Kosovo’s future sta-
tus. Ultimately, the Kosovar Albanian delegation signed the proposed peace
agreement but the Serbs did not.38

The Serbian offensive against the ethnic Albanian Kosovars was immedi-
ately intensified with the Serbs defying their October agreement by moving
greater force into Kosovo. On March 20, its effectiveness having been blocked
by the Serbs, the OSCE verification mission withdrew, a last minute effort by
USS. envoy Richard Holbrooke to persuade Milosevic to sign the accords failed,
and on March 23 NATO's air campaign—“Operation Allied Force”—was
launched.39

Air Strikes Continue for Eleven Weeks. NATO Secretary General Javier
Solana stated the reason for ordering the strikes:

All efforts to achieve a negotiated political solution to the Kosovo crisis have
failed and no alternative is open but to take action. We are taking action
following the Federal Republic of Yugoslavia government's refusal of international
community demands: the acceptance of the interim political settlement, which

317


International Law and the Conduct of Military Operations

[: ONE TAKES STOCK OF THE PART which international law has played in
military operations and the influence which it has today, the picture which
emerges is distinctly mixed. Much of the century which is just ending has been
a catalogue of violations with a total disregard for the law. Yet the century has
also seen unprecedented development of the law itself, with the adoption of an
extensive body of treaty law and the development of important rules of custom-
ary law. At least in the democracies, that law is taken a great deal more seri-
ously by governments and the military than were the far less detailed rules
which existed at the start of the century.

There is an enormous temptation to assume that where the law is not work-
ing today, the answer is that we need more and better law. International law on
military operations will, of course, continue to develop; however, the priority
should be not to legislate but to ensure greater respect for the law that already
exists. In the military context, that means more than the prosecution of offend-
ers—it requires the development of a culture of compliance with the law. That
in turn requires that the practical effects of the law on military operations be
properly understood. It is for that goal that Leslie Green has worked so tirelessly
for more than fifty years and which makes the publication of this volume in his
honour so appropriate.

Notes

1. For example, the law which determines disputes about title to territory and the
efficacy—or otherwise—of the international machinery for the peaceful settlement of disputes
can have a bearing on whether a State decides to resort to force or agree to end a conflict. The
boundary case between Cameroun and Nigeria, currently before the International Court of
Justice, and the similar dispute between Yemen and Eritrea, currently the subject of
international arbitration, have both involved the use of force.

2. Some indication of the extent of what has been achieved in this area of international law
can be seen in S. KORMAN, THE RIGHT OF CONQUEST (Oxford, 1996).

3. United Nations Charter, Article 1(1).

4. It is not, however, created by the Charter but by customary international law; see the
decision of the International Court of Justice in Nicaragua v. United States of America, ICJ
REPORTS, 1986, p. 3.

5. See, e.g. the submissions of Professor I. Brownlie, QC, to the International Court of
Justice in May 1999 in the Cases concerning the Legality of the Use of Force brought by the Federal
Republic of Yugoslavia against the United Kingdom, the United States, and eight other NATO
Member States (CR/99/14, available on the Court’s website at http:/Avww.icj-cij.org). The
decisions of the Court, rejecting the Federal Republic’s requests for provisional measures of
protection, given on June 2, 1999, do not rule on this question.

198


Antecedents of the Rome Statute of the ICC Revisited

53. Article IX of the Convention provides that disputes between the contracting parties
relating to the interpretation, application or fulfilment of the Convention, including those
relating to the responsibility of a State for genocide or any of the other acts enumerated in Article
III (see text to note 25 above), shall be submitted to the International Court of Justice at the
request of any of the parties to the dispute. Interpreting that provision in the Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (preliminary
objections) case, the International Court said that the reference in Article IX to the
responsibility of a State for genocide or for the other acts enumerated in Article III does not
exclude any form of State responsibility. INTERNATIONAL COURT OF JUSTICE REPORTS, 1996,
pp. 595, 616 (para. 32). The drafting history of that provision, and indeed its own terms,
indicates that this refers to what is sometimes loosely called “civil responsibility” as opposed to
criminal responsibility. For my account and interpretation of the drafting history of that
provision, see Sh. Rosenne, War Crimes and State Responsibility, in WAR CRIMES IN
INTERNATIONAL LAW pp. 65, 74 (Tel Aviv University, Y. Dinstein and M. Tabory eds., 1996).

54. Rules of Procedure for the United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court, doc. A/CONF.183/6, June 23, 1998, Rule 29.

55. Cf. R. Sabel, PROCEDURE AT INTERNATIONAL CONFERENCES: A STUDY OF THE RULES
OF PROCEDURE OF CONFERENCES AND ASSEMBLIES OF INTERNATIONAL INTER-
GOVERNMENTAL ORGANIZATIONS p.149 (1997).

56. That provision did not appear in the original draft statute prepared by the International Law
Commission (see note 45 above). The Preparatory Committee reported that an essential question
which should be addressed was whether some kind of safeguard provision was needed to ensure that
individual criminal responsibility did not absolve the State of any of its responsibility in a given case,
and it suggested texts to meet this problem (A/51/22, para. 192, and vol. Il, Part 3 bis, article B,
Proposal 1, paragraph 3; Proposal 2, paragraph 3; A/CONF.183/2/Add.1, Article 23, paragraph 4).

57. Report of the International Law Commission on the Work of its 48th session, note 41
above at p. 30.

58. For my criticism of Article 19, see Sh. Rosenne, State Responsibility and International
Crimes: Further Reflections on Article 19 of the Draft Articles on State Responsibility, 30 NEW YORK
UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLITICS p. 145 (1998). In 1998 the new
special rapporteur of the International Law Commission, Professor James Crawford,
recommended deleting Article 19 as such and related provisions. J. Crawford, First Report on the
Law of State Responsibility (A/CN.4/490/Add.3), para. 100. This gave rise to a difficult but
inconclusive discussion at the Commission’s 50th session. See Report of the International Law
Commission on the work of its 50th Session, GAOR, 53rd session, Supplement 10 (A/53/10),
Chapter VII, paras. 241~331. And see Topical Summary of the Debate held in the Sixth
Committee of the General Assembly during its 53rd session, prepared by the Secretariat paras.
110-115 (A/CN.4/496 mimeographed 1999).

59. Report cited in previous note, paras. 275-277. Issues of the relationship between the law of
State responsibility and international criminal law have arisen in ICTY in the opinion and judgment
of the Trial Chamber in Prosecutor v. Dutko Tadic case. Case No. IT-94-1-T 112 ILR 1; and on
appeal, judgement of July 15, 1999 and judgement in sentencing appeals of January 26, 2000.

60. The Celebici case, Prosecutor v. Delalic, Mucic, Delic and Landzo, judgment of
November 16, 1998, Case No. IT-96-21-T, para. 230.

61. International Court of Justice, Application of the Convention for the Prevention and
Punishment of the Crime of Genocide case, Counter-claims (Bosn. & Herz. v. Yugo.)
International Court of Justice Reports 1997, 243.

62. 999 UNTS 171; 1057 ibid. 407; 1137 ibid. 396 (rectification).

420


Westphalian Peace Tradition

When Grotius listed the legitimate reasons for resorting to use of force, he
deduced them from a citizen’s reasons for commencing a law suit.!4 Any denial
of existing rights would justify a victimized State’s reaction with military force.
For example, force could be used for the recovery of lost property or the repair
of economic damage. This position meant that Grotius’ jus ad bellum doctrine
(like other jus ad bellum doctrines) included first use of force as a natural ele-
ment. It also included second use reactions to other States’ use of force.
Grotius’ view on self-defence in fact foreshadows the Caroline case. He only ad-
mitted preventive action if it was “necessary” and in response to an immediate
threat where one was “certain” about the intentions of the opponent. Arguing
somewhat loosely, he asserted that “the degree of certainty required is that
which is accepted in morals.”!5

Morality also played a role in Grotius’ view on punitive actions. Punishment
was a just cause in response to injustice done to oneself or third States. There
was a general right of participation in a just war. Moreover, Grotius recognized
the justness of a war “against men who act like beasts,”!6 and thus came close to
what today is called humanitarian intervention. He based his “just causes” on
natural law and the voluntary or positive law of nations (agreements and
practice).

The just causes of Grotian doctrine can be summarized as follows:

* recovery of what is legally due to an aggrieved State;

* territorial defence against an attack, actual or threatening, but not

against a potential threat;

* economic defence to protect one’s property; and

* the infliction of punishment upon a wrongdoing State.!7

Wars waged without any cause were “unjust,” a categorization that entailed
certain practical consequences. One was to assume relevance for later legal de-
velopments, namely Grotius’ doctrine on qualified neutrality. Absolute impar-
tiality was impossible in relation to the aggressor and his opponent. In Book III
of De Jure Belli ac Pacis, Grotius wrote that neutrals should do nothing to sup-
port the “wicked case” or hamper “him who wages a just war.”!8 There was no
suggestion of a duty to assist actively the “just side,” but Grotius asserted that
the right of passage ought to be granted to the party fighting for a just cause and
denied to one motivated by an unjust cause.!9 However, Grotius did not envis-
age collective action on the part of the international society. His doctrines ex-
pressed a “law of coexistence,” not a “law of co-operation” (to use Wolfgang
Friedmann’s terminology).° This does not exclude perceptions of “the Grotian
image of war as a fight for the common good,” as Michael Donelan would ar-
gue, or fighting for a just cause “on behalf of the community as a whole,” as

60


Legal Implications of NATO’s Armed Intervention in Kosovo

120. Supra notes 101-109.

121. Supra note 109, at 38 I.L.M. 1193-1194, paras. 21~25.

122. Supra note 107, at 38 I.L.M. 1157, paras. 23-33.

123. Supra note 108, at 38 I.L.M. 1175, paras. 23-25.

124. Yugoslavia v. Belgium, supra note 101, at 961, para. 46.

125. Id., paras. 47, 49.

126. Id., para. 48.

127. For a report suggesting that President Clinton was too distracted by impeachment
hearings to pay adequate attention to the Kosovo crisis, see Elaine Sciolino & Ethan Bronner,
How a President, Distracted by Scandals, Entered Balkan War, N.Y. TIMES, April 18, 1999, sec. 1,
at 1, col. 2.

128. See, e.g., Ved Nanda, supra note 62; Steven Erlanger, Fruit of Miscalculation, N.Y.
TIMES, June 4, 1999, at Al, col. 3.

129. Article 2, paragraph 4, enumerates as one of the Charter principles: “All Members shall
refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.”

130. U.N. CHARTER arts. 39-51.

131. U.N. CHARTER arts. 52-54.

132. Article 51 reads:

Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence ifan armed attack occurs against a Member of the United Nations,
until the Security Council has taken measures necessary to maintain international peace
and security. Measures taken by Members in the exercise of this right of self-defence shall
be immediately reported to the Security Council and shall not in any way affect the
authority and responsibility of the Security Council under the present Charter to take at
any time such action as it deems necessary in order to maintain or restore international
peace and security.

133. Article 53(1) reads in part: “The Security Council shall, where appropriate, utilize such
regional arrangements or agencies for enforcement action under its authority. But no
enforcement action shall be taken under regional arrangements or by regional agencies without
the authorization of the Security Council. . . .”

134. Implications of International Response to Events in Rwanda, Kosovo Examined by
Secretary-General in Address to General Assembly, U.N. Press Release GA/9595, Sept. 20, 1999, at
3 {hereinafter Secretary-General’s Address].

135. Id.

136. Id.

137. Secretary General Kofi Annan, Address to the General Assembly, Sept. 20, 1999,
quoted in Barbara Crossette, U.N. Chief Wants Faster Action to Avoid Slaughter in Civil Wars,
N.Y. TIMES, Sept. 21, 1999, at Al, col. 3.

138. Bulletin Broadfaxing Network, Inc., Clinton Outlines International Vision in Major Address,
Calls for Large UN Role in World Affairs, White House Bulletin, Sept. 21, 1999.

139. Id.

140. Id.

141. See notes 129-133 and accompanying text for other exceptions on the legitimate use of
force.

336


Charter of the United Nations as a World Constitution

and the Annexes is the most comprehensive and binding system of its kind ever
accepted by the international community.

On August 4, 1995, after three years of negotiation, the representatives of
96 countries at the United Nations conference on straddling fish stocks and
highly migratory fish stocks concluded an Agreement for implementing the
provisions of the Law of the Sea Convention of 1982 relating to their conserva-
tion and management. The reason for this further development of the Conven-
tion was that the division of duties between coastal States and flag States in the
management of fish stocks moving between exclusive economic zones and the
high seas was unclear in that it was subject to conflicting interpretations.

The 1995 Agreement stresses the duty of States to manage and protect fish
stocks straddling between the high seas and areas under national jurisdiction in
their entirety, not simply according to existing maritime boundaries. The
agreement places major emphasis on the utilization of regional organizations to
achieve cooperation between coastal States and distant water fishing nations.
Article 8.4 states that only States that are party to such organizations and those
that agree to submit to the decisions of the organization should be allowed to
fish in the area covered by the organization. This represents a significant excep-
tion to the regime of high seas fisheries, since it implies that even outside na-
tional jurisdictions, distant water-fishing nations are not permitted to operate
without the consent of other States.

A further and even more significant breach of classical concepts on high seas
fisheries regimes is found in Article 21 of the Agreement. Article 21 strength-
ens the role of regional organizations by giving States that are members of one
of such organizations the right to enforce its rules even on those States not
party to the organization but party to the 1995 Agreement. In this case, a dis-
tant-water-fishing-nation loses its right to fish in the high seas “because of its
commitment at the global level.”65

In summary, we can see that developments in the law of the sea over the last
seventy years have followed the qualitative procedural change evolved in the
twentieth century for its codification and progressive development through in-
ternational consultations, negotiations, and agreements rather than through
traditional unilateral means based on discovery, effective occupation, and na-
tional claims supported by political strength. Virtually all those developments,
encouragingly positive and comprehensive, have taken place under the aus-
pices of the United Nations and in light of the principles of the Charter and the
Law of the Sea Convention of 1982. Just as the Charter of the United Nations
stands as the mother constitution to the Law of the Sea Convention, the latter
now stands as a constitution in its own right to the structure and process of

286


Westphalian Peace Tradition

intervention against revolutionary movements in other States, his commit-
ment to a genuine jus contra bellum approach can be doubted.

The Concert of Europe and European Peace Diplomacy 1815-1897

Revolutionary France, in spite of its “peace-loving” constitution, hurled it-
self into an armed conflict with the rest of continental Europe in 1792. Follow-
ing Napoleon’s ascendancy to power a few years later, the European balance
was threatened anew. In 1804, Alexander I of Russia presented a peace plan for
a European order after the expected fall of Napoleon. As with the Peace of
Westphalia, the new peace was to be guaranteed by articulation of rules for the
behaviour of and relations between States laid down in treaty form. Every State
would pledge not to start a war without first having exhausted all available
means for a peaceful solution of the dispute. Acceptance of mediation would be
the rule. A State that violated these norms risked facing the joint armed forces
of the European powers. This initiative from St. Petersburg was, however, not
politically credible and was soon eroded by the capriciousness of the Czar.

A more promising initiative of a less ambitious nature was taken by the Brit-
ish foreign minister, Lord Castlereagh, at the Congress of Vienna in 1815,
when he proposed a Final Declaration of the Congress in which States would
oblige themselves to strengthen and maintain the dearly-bought peace. The re-
sult was a Proclamation, adopted on March 13, 1815, consisting of a pledge by
the eight peace-concluding parties to protect the peace, in particular against
revolutionary upheavals. It seemed that political status quo was more important
than protection of the peace as such.

The decade following the Congress of Vienna was characterized by Great
Power initiatives for management of international affairs. First, Czar Alexan-
der initiated the Holy Alliance with its religious overtones, and thereafter Fiirst
Metternich started to orchestrate a European military preparedness to preserve
the “legitimate” position of existing governments. The Concert of Europe
brought with it a form of political cooperation that was unprecedented in the
history of the continent. The emphasis was on common security, rather than
on non-use of force. Lord Castlereagh had said in Parliament in May 1815, ap-
ropos of the need for reassurances against a revitalized France, that

..-in order to render this security as complete as possible, it seems necessary, at
the point of a general Pacification, to form a Treaty to which all the principal
Powers of Europe should be Parties, fixed and recognized, and they should all
bind themselves mutually to protect and support each other, against any attempt
to infringe them.52

70


M. Cherif Bassiouni

It is therefore expected that the ICTY, ICTR, and ICC will have to struggle
with these problems and hopefully arrive at a conclusion which will provide
certainty of the law and predictability of outcomes.

The ICTY

The ICTY confronted that issue in the case of Prosecutor v. Kupreskié, et
al.148 In that judgment, the trial chamber posited the problem as follows:

(ii) Relationship between the various Offences Charged in the Indictment

696. Having set out the general principles of criminal law governing
multiple offences in international law, the Trial Chamber will now
apply these principles to the relations between the various substantive
provisions of the Statute relied upon by the patties in the instant case.

697. Unlike provisions of national criminal codes or, in common-law
countries, rules of criminal law crystallised in the relevant case-law or
found in statutory enactments, each Article of the Statute does not
confine itself to indicating a single category of well-defined acts such as
murder, voluntary or involuntary manslaughter, theft, etc. Instead the
Articles embrace broad clusters of offences sharing certain general legal
ingredients. It follows that, for instance, a crime against humanity may
consist of such diverse acts as the systematic extermination of civilians
with poison gas or the widespread persecution of a group on racial
grounds. Similarly, a war crime may for instance consist in the summary
execution of a prisoner of war or the carpet bombing of a town.

698. In addition, under the Statute of the International Tribunal,
some provisions have such a broad scope that they may overlap. True,
some acts may only be characterised as war crimes (Article 3): e.g., the
use of prohibited weapons against enemy combatants, attacking
undefended towns, etc. Other acts or transactions may only be defined
as crimes against humanity (Article 5): e.g., persecution of civilians,
whatever their nationality, on racial, religious or political grounds.
However, other acts, depending upon certain circumstances, may
either be characterised as war crimes or both as war crimes and crimes
against humanity. For instance, murder, torture or rape of enemy
civilians normally constitute war crimes; however, if these acts are part
of a widespread or systematic practice, they may also be defined as
crimes against humanity. Plainly, Articles 3 and 5 have a different
scope, which, however, may sometimes coincide or overlap.

25


Bin Cheng

Notes

1, 402 UNTS 71; 12 UST 794; TIAS No. 4780. Signed at Washington on 1 December
1959; entered into force on 23 June 1961.

2. 14 November 1957.

3. Resolution 1348 (XII).

4. According to Professor Vlasic, one of the earliest uses of the term “peaceful” as an
antonym for “aggressive” appeared in a 1959 report of the American Bar Association Committee
on the Law of Outer Space [Proceedings of the American Bar Association, Section of
International and Comparative Law, 1959, pp. 215-233, reproduced in Senate Committee on
Aeronautical and Space Science, Legal Problems of Space Exploration: A Symposium, S. Doc.
No. 26, 87th Cong., Ist Sess. (1961), pp. 571-594, at p. 576, citing M. MCDOUGAL, H.
LASSWELL & I. VLASIC, LAW AND PUBLIC ORDER IN SPACE (1963), at p. 397]. I. A. Vlasic,
Space Law and the Military Application of Space Technology, in N. Jasentuliyana (ed.),
PERSPECTIVES ON INTERNATIONAL LAW, London: Kluwer Law International (1995), pp.
385-410, at p. 391. It may be added that the learned authors of LAW AND PUBLIC ORDER IN
‘SPACE not only endorsed this approach in their book, but also vigorously elaborated on the same
theme (pp. 394-401), and their powerful voice must have greatly contributed to forming the
official U.S. view on the subject. It may be of interest to mention that Professor McDougal was a
member of the ABA Space Law Committee, whilst at the same time Professor J. C. Cooper,
another Committee member, declined to sign the report. Inter alia, he expressed doubts, in a
separate statement, about the report's invocation of the UN Charter (Senate 1961 Symposium, p.
592), which was used by the Committee to justify its line of argument on this topic (ibid., pp.
574-577). Andrew Haley, another Committee member, while voting for the report, added a
Comment endorsing John Cobb Cooper's statement and stating that he did “not believe that this
is an appropriate document in which to discuss such philosophical and political concepts as
‘non-aggressive military uses’ of outer space” (ibid., p. 593). Such concepts are, however,
perfectly consonant with Professor McDougal’s legal philosophy as exemplified, for instance, in
his well-known article The Hydrogen Bomb Tests and the Intemational Law of the Sea, 49
AMERICAN JOURNAL OF INTERNATIONAL LAW (1955), pp. 356-361. The end justifies all! But
the dilemma faced by the ABA Committee of having to choose between on the one hand
reserving outer space for use for exclusively peaceful purposes and on the other hand the needs of
the United States and its allies to defend themselves could no doubt have been resolved by
simply acknowledging openly that it was just not realistic in the circumstances to reserve the
whole of outer space for use for exclusively peaceful purposes.

5. Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial Bodies, 610 UNTS 205; 18 UST 2410;
TIAS No. 6347. Opened for signature at London, Moscow, and Washington on 27 January
1967; entered into force on 10 October 1967.

6. For an analysis of the 1967 Space Treaty, see B. CHENG, STUDIES IN INTERNATIONAL
SPACE LAW, Oxford: Clarendon Press (1997), Ch. 9, pp. 215-264.

7. Resolution 1962 (XVIII).

8. See B. Cheng, The 1967 Space Treaty: Thirty Years On, keynote address at the
International Institute of Space Law's special dinner to celebrate the 30th anniversary of the
Space Treaty, 40 SPACE LAW COLLOQUIUM (1997), pp. XVII-XXIX, s. III-1: Filing in Lacunae,
e.g. “Outer Void Space,” at p. XIX. See further B. Cheng, Outer Void Space: The Reasons for This
Neologism in Space Law, AUSTRALIAN INTERNATIONAL LAW JOURNAL (1999), pp. 1-8.

ll




Bin Cheng

solely to the moon and other celestial bodies, and definitely not to the space in
between the celestial bodies, which we call the outer void space.

Article IV (2)

The Meaning of Peaceful in Sentence One. Insofar as Article IV(2) is con-
cerned, there is little doubt that the word “peaceful” means “non-military” and
not “non-aggressive.” Article IV(2) provides:

The moon and other celestial bodies shall be used by all States Parties to the
Treaty exclusively for peaceful purposes. The establishment of military bases,
installations and fortifications, the testing of any type of weapons and the
conduct of military manceuvres on celestial bodies shall be forbidden. The use of
military personnel for scientific research or for any other peaceful purposes shall
not be prohibited. The use of any equipment or facility necessary for peaceful
exploration of the moon and other celestial bodies shall also not be prohibited.

1. Textual and Semantic Prestidigitation. A comparison of Article 1V(2) with
item 2 of the Eisenhower proposal may provide an additional clue as to the rea-
son behind the switch in the meaning of the word “peaceful.” It will be seen
that the Eisenhower proposal, which was presumably the fruit of some inter-
agency consultation in the Administration, intended merely to ban “warlike
activities on these bodies,” i.e., hostile or aggressive activities, but not necessar-
ily all military activities. At that initial stage of space exploration, it is not in-
conceivable that one might perhaps have thought of a military telecom-
munications centre on the moon, or using it for the training of troops for space
combat, or some other non-aggressive military activities. In the sixties, it was
probably premature to rule out such possibilities and in the negotiations of the
Space Treaty that could well have been the brief of the United States negotia-
tors. It should further be remembered that at first the United States had pro-
posed a treaty limited to celestial bodies. It was only after the negotiations had
started that it agreed to extend the scope of the treaty to include also the outer
void space. As to outer void space, there was no question of accepting complete
demilitarisation.

They were then faced with a problem. There was the precedent set by Arti-
cle I of the 1959 Antarctic Treaty which had been mentioned by President Ei-
senhower himself when introducing the United States proposal before the
General Assembly, and which was fresh in everyone’s mind. The negotiators
might well have thought that to apply the Antarctic precedent 100 percent to
all celestial bodies, including the moon, which would preclude any military

95


Howard S. Levie

and the Secretary-General was directed to submit a specific proposal for the es-
tablishment of such a Tribunal.2° He did so,2! and his proposal was adopted by
the Security Council.22 Article 1 of the Statute of the International Tribunal
for the Former Yugoslavia provides:

The International Tribunal shall have the power to prosecute persons
responsible for serious violations of international humanitarian law committed
in the territory of the former Yugoslavia since 1991 in accordance with the
provisions of the present Statute.

This Tribunal was given jurisdiction over violations of the grave breaches pro-
visions of the 1949 Geneva Conventions (Article 2), violations of the laws and
customs of war (Article 3), genocide (Article 4), and crimes against humanity
(Article 5). Unlike the Statute of the International Court of Justice, this Tribu-
nal was specifically given “jurisdiction over natural persons.”23 Although at
this point we still do not have a true permanent International Criminal Court,
it is apparent that we are moving towards that goal.

While the International Law Commission (ILC) had early decided that to
include the law of war on its original agenda would indicate a belief in the
weakness of the United Nations, it had no such qualms with respect to drafting
aconvention establishing an international criminal court which would have ju-
tisdiction, among others, to try war crimes. However, this item was apparently
very low on its agenda and for years the ILC did little more than designate rap-
porteurs or working groups whose products rarely received deep consideration.
Finally, the report of its forty-fourth session (1992) included what was desig-
nated as a “Draft Code of Crimes against the Peace and Security of Mankind.”
The General Assembly of the United Nations then adopted a resolution invit-
ing States to submit to the Secretary-General comments on the ILC’s draft re-
port on the subject of international criminal jurisdiction, and requested the
ILC to elaborate a draft statute for an international criminal court as a matter
of priority.24 In accordance with that mandate of the General Assembly, at its
next (forty-fifth) session the ILC reconvened a working group for a draft stat-
ute on an international criminal tribunal. The ILC’s report on its forty-fifth ses-
sion (1993) included a “Draft Statute for an International Criminal
Tribunal.”25 For the first time, offenses other than war crimes were included
within the jurisdiction of an International Criminal Tribunal; and the Tribunal
was limited neither in duration, nor by the nationality of the accused, or the lo-
cation at which the alleged crime occurred.

The ILC’s- Draft Statute provided for a permanent Tribunal of 18 judges to
be elected by the Parties to the Statute (no two of whom could be from the

253


Outer Void Space Not Reserved for Exclusively Peaceful Use

lawful justification, the only real addition consists in the prohibition of “the
threat or use of... other hostile act.” The nature of these hostile acts remains, how-
ever, unclear, unless they refer to acts of individuals to which in principle in-
ternational law is not applicable. But since, under both Article VI of the
Space Treaty and Article 14(1) of the Moon Treaty, contracting States bear
“international responsibility” for national activities in space carried on whether
by themselves or by non-governmental entities, including individuals, and
for assuring that they are carried out in conformity with the respective trea-
ties, both of which provide for compliance with international law and the
Charter of the United Nations, they would already have the responsibility of
ensuring that the acts of such individuals comply with the States’ interna-
tional obligations.

Article IV(1)

Article IV(1) of the Space Treaty provides:

States Parties to the Treaty undertake not to place in orbit around the earth any
objects carrying nuclear weapons or any other kinds of weapons of mass
destruction, install such weapons on celestial bodies, or station such weapons in
outer space in any other manner.

As we have seen, this provision in the Space Treaty is directly inspired by item
3 of the Eisenhower Proposal, except for the omission of the condition of verifi-
cation. In addition, Article IV(1) also specifies that outer space includes celes-
tial bodies.

In that connection, the omission of a specific mention of the moon, like the
similar omission in the second sentence of Article IV(2), is again of no signifi-
cance.” It will also readily be seen that Article IV(1) reproduces almost verba-
tim the relevant paragraph of General Assembly Resolution 1884 (XVIII) of 17
October 1963, when the long-winded formula of “outer space, including the
moon and other celestial bodies” had not yet been developed, and as we have
seen in the case of Resolution 1962 of the same year, the usage then was always
to refer to “outer space and celestial bodies,” without any specific mention of
the moon. In any event, the moon is obviously a celestial body.

Resolution 1884 was, of course, itself based on a mutual understanding be-
tween the Soviet Union and the United States. From this point of view, the
1967 Treaty merely put into a multilateral treaty a mutual undertaking which
the superpowers had reached between themselves, and to which the United
Nations had already called on all States to subscribe. Consequently, it added

104


International Law and the Conduct of Military Operations

in 1998, which confers upon the Court jurisdiction in respect of certain crimes
committed in non-international armed conflicts.

Nevertheless, it remains important to determine the borderline between in-
ternal and international conflicts and, in particular, to know at what point the
involvement of outside forces has the effect of internationalizing a conflict and
subjecting it to the full body of the laws of war. Unfortunately, international
law gives no clear answer to that question. As a matter of law, the laws of war
apply only where the armed forces of one State meet those of another. Accord-
ingly, if outside forces intervene in a civil war to assist the government of a
State against rebel forces, the resulting conflict continues to be a civil war and
to be subject only to the smaller body of law applicable to such conflicts. This
principle has been strictly applied by the International Criminal Tribunal for
the Former Yugoslavia.3> There is something deeply unsatisfactory about this
uncertainty. At the very least, where the forces of State A become involved in
fighting in State B, they should be subject to the laws of war in their entirety,
even if their local allies are not.

United Nations Operations. The growth in the number and variety of United
Nations military operations since 1990 has already been discussed in Part I.
This development has highlighted the fact that there exists considerable
uncertainty regarding the applicability of the laws of war to the operations of
United Nations forces.*® This is not a problem when a United Nations force, or
a force authorized by the United Nations, is sent out to fight a war, since it is
agreed that the laws of war would apply in full to hostilities between such a
force and the forces of a State. Nor should it be a problem where a United
Nations force operates in a traditional peacekeeping mode, since such a force
would remain impartial and not become a party to an armed conflict of any
kind. As shown in Part I, however, some recent United Nations operations
have had both peacekeeping and enforcement elements. Moreover, in a
number of cases, forces with a pure peacekeeping mandate have been drawn
into fighting (usually by attacks upon their personnel which have caused them
to exercise their right of self-defence).>” In such cases, it is far from clear
whether the laws of war are applicable to the activities of the United Nations
forces concerned.

The United Nations has accepted that, as a minimum, its forces are obliged
to comply with the “principles and spirit” of the laws of armed conflict. As a
matter of principle, however, in cases where a United Nations force becomes
involved in fighting to such an extent that it is a party to an armed conflict, it
should comply not merely with the principles and spirit, but with the entirety of

192


Bin Cheng

15. The express authorisation of the use of military personnel, equipment
and facilities for peaceful purposes, far from showing that the word “peaceful”
in the first sentence does not mean “non-military,” on the contrary conclu-
sively demonstrates that it does mean “non-military,” for sentences three and
four in Article IV (2) constitute clear and express exemptions from the prohibi-
tion laid down in the first sentence. Otherwise, they would not be thought to be
necessary, even if only out of an abundance of caution, since the exemptions
are perfectly compatible with the spirit of the first sentence.

16. Article 3 of the Moon Treaty basically repeats Article IV of the Space
Treaty insofar as the latter concerns the moon in the sense the word is used in
the Moon Treaty, namely the moon and all the celestial bodies within the solar
system other than the earth.

17. Insofar as the whole of outer void space in between the celestial bodies
is concerned, the only provision in the Space Treaty concerning military use is
to be found in its Article IV (1), in which the contracting States “undertake not
to place in orbit around the earth any objects carrying nuclear weapons or any
other kinds of weapons of mass destruction, . . . or station such weapons in outer
space in any other manner.” It follows that, subject to the observance of appli-
cable rules of international law and of the United Nations Charter, as well as
relevant treaty obligations, contracting States may otherwise use outer void
space for military purposes in any manner they wish, particularly in legitimate
self-defence in accordance with the applicable rules of international law. Arti-
cle IV(1) has definitely not excluded all military uses of outer void space.

18. In sum, the 1967 Space Treaty has by no means reserved the whole of
outer space for exclusively peaceful exploration or use. Its Article IV(1) merely
prohibits the stationing of weapons of mass destruction in the whole of outer
space, a measure which the United States and the Soviet Union had agreed to
between them even before the Treaty. Whether “peaceful” means “non-mili-
tary” or “non-aggressive” consequently has no effect whatsoever on the con-
tracting States’ freedom to use the outer void space for military purposes in
accordance with international law. Only Article IV(2) of the Treaty has com-
pletely demilitarised celestial bodies by saying that they shall be used solely for
peaceful purposes. The legal position of the military use of outer space under
the Space Treaty is summed up in Figure 4.

It results that only if the United States intends to use any of the celestial
bodies for military purposes does it make sense to distort the meaning of
“peaceful” from “non-military” to “non-aggressive.” Since it is not believed
that the United States has any such intention, and since the world has now be-
come far more realistic regarding the use of outer space, the United States’

109


The Law of Armed Conflict as Soft Power

it attempts international self-actualization and will usually attribute
preeminence to its own interests over those of others. Obviously, in any
individual case, the intensity of interests may vary from this scheme, the
avoidance of civilian casualties just cited being one illustration. Nevertheless,
and regardless of whether one personally agrees with the “ranking,” the reality
is that States do tend to broadly order interests along these lines.

The U.S. case serves as an example of the process. In A National Security
Strategy for a New Century, the White House has articulated U.S. national se-
curity interests. Three are core: enhancing security (obviously, a security inter-
est), bolstering America’s economic prosperity (a well-being interest), and
promoting democracy abroad (a value interest).?4 Of course, each is interre-
lated. Enhancing security safeguards economic wherewithal; economic pros-
perity makes security expenditures possible; democracy abroad diminishes
potential security threats and fosters trade, and so forth. Other States may har-
bor differing interests, or at least harbor them to a differing degree. For in-
stance, Luxembourg is probably less concerned about security interests than a
superpower such as the United States, whereas States such as North Korea,
Iraq, or Libya may well see the expansion of the democratic community as a
negative trend.

The United States values its interests by grouping them into three catego-
ties: “vital,” “important,” and “humanitarian and other.” Vital interests in-
clude “physical security of our territory and that of our allies, the safety of our
citizens, our economic well-being and the protection of our critical infrastruc-
tures.”25 Important national interests do not affect national survival, but do af-
fect U.S. national well-being and the character of the world. An example of
efforts to support important interests includes NATO operations in Bosnia-
Hercegovina. Finally, humanitarian and other interests are those which the
U.S. must safeguard because its “values demand it.”26 Responding to disasters
or violations of human rights, supporting democratization and civil control of
the military, and fostering sustainable development are all examples. Irrespec-
tive of the national interests themselves, the point is that strategic choice, in-
cluding normative strategic choice, should be exercised so as to advance the
overriding national interests, and that cannot be accomplished until the inter-
ests have been valued.

Step 3: Develop Objectives Advancing the Interests. The process of identifying
advantage continues with the development. of objectives for the national
interests. Conceptually, national interests imbue strategic choice with
direction, but they are too broad to be of practical utility themselves.

462


Wolff Heintschel von Heinegg

the maritime jus in bello.!°! In view of the overall importance of aerial recon-
naissance and of the legitimate incorporation of the airspace into the regime of
blockades,!©2 a blockade may be maintained by military aircraft, submarines or
even by naval mines.!°3 However, a blockade may not be maintained and en-
forced by naval mines alone. This prohibition does not follow from Article 2 of
Hague Convention VIII of 1907, for it is nearly impossible to prove that the
mines have been laid “for the sole purpose of intercepting commercial naviga-
tion.”!04 Rather, it has to be observed in this context that certain categories of
vessels and aircraft may not be denied ingress or egress. Hence, generally, it is
necessary that manned units (or “at least one man-o-war”)!0 are present in the
vicinity of the blockaded area in order to make sure that such vehicles remain
unharmed.!06 The mining of Haiphong is merely a single incident that fails to
establish the contrary, even though only the former USSR raised protests
against it.!07 Despite the obvious perils submarines and missiles pose to surface
warships, in most cases the presence of at least one surface unit, for humanitar-
ian reasons, remains an indispensable requirement for the legality of a naval
blockade. And it makes no difference whether the blockade serves strictly mili-
tary or economic purposes.!08 Only if controlled mines are laid may their sole
use for maintaining and enforcing a blockade be legitimate. Of course, apart
from naval mines, other obstacles, such as wrecks, can be used to close a port or
a part of the enemy’s coast. !09

Consequences of Breach and Attempted Breach of Blockade. It is generally
acknowledged that vessels (and aircraft) breaking or attempting to break
blockade are liable to capture.!!° If, after prior warning, they clearly resist
capture, they may be attacked.!!! However, it remains unclear which behavior
may be characterized as attempted (inward! !*) breach of blockade. While the
German Manual is silent on this issue, the U.S. Manual! defines attempted
breach of blockade as follows:

Attempted breach of blockade occurs from the time a vessel or aircraft leaves a
port or airfield with the intention of evading the blockade, and for vessels exiting
the blockaded area, continues until the voyage is completed. [. . .] It is immaterial
that the vessel or aircraft is at the time of interception bound for neutral territory,
if its ultimate destination is the blockaded area. There is a presumption of
attempted breach of blockade where vessels or aircraft are bound for a neutral
port or airfield serving as a point of transit to the blockaded area.

This implies that the doctrine of continuous voyage may be applied to the le-
gal regime of naval blockades. As in the beginning of the 20th century, this

215


Michael N. Schmitt

33. In particular, a potent Pre-trial Chamber has significant power to preclude the possibility
of politically motivated prosecutions.

34. An interesting approach is a multi-dimensional hierarchy of foreign policy objectives in
which time (immediacy) and priority are related. The resultant scheme is a division into core
objectives (middle and high priority), middle-range goals and long-range goals (distant and
low-priority). Objectives in each of the categories are placed along a continuum ranging from
concrete to abstract values. T.J. HOLSTI, INTERNATIONAL POLITICS: A FRAMEWORK FOR
ANALYSIS (1988), at 118-130.

35. The terms “Chapter VI” and “Chapter VII” refer to chapters of the UN Charter. The
former, often know as peacekeeping operations, is a response to any dispute which is “likely to
endanger the maintenance of international peace and security.” It generally does not involve the
use of force except in self-defense and occurs with the consent of the States in which the
peacekeepers are stationed. Chapter VII operations, also known as peace enforcement, may be
non-consensual. They are responses by the UN Security Council, including the use of force (e.g.,
Desert Storm), that respond to “threats to the peace, breaches of the peace, and acts of
aggression.”

36. “Joint” operations include forces of more than one service. “Combined” operations
include forces of more than one State.

37. See Schmitt, Identifying National Objectives, supra note 9, at 29-31.

38. Conventional Weapons Convention, Protocol III, supra note 5.

39. The United States has not ratified Protocol III, although it is considering doing so with a
reservation that incendiaries can be used in areas with concentrations of civilians when doing so
will result in fewer incidental injuries than would be the case with other types of weapons. The
Army's Operational Law Handbook cites the example of a chemical munitions factory in a city.
The use of conventional weapons might well disperse the chemical, whereas an incendiary
weapon would destroy them through burning. THE JUDGE ADVOCATE GENERAL'S SCHOOL,
OPERATIONAL LAW HANDBOOK (2000), at 5-13.

40. Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. (Advisory Opinion),
(General List 95), dispositif, 35 INTERNATIONAL LEGAL MATERIALS 809 & 1343. On the case,
see VED P. NANDA & DAVID KRIEGER, NUCLEAR WEAPONS AND THE WORLD COURT
(1998); Peter H.F. Bekker, Legality of the Threat or Use of Nuclear Weapons, 91 AMERICAN
JOURNAL OF INTERNATIONAL LAW 126 (1997); Richard A. Falk, Nuclear Weapons,
International Law and the World Court: A Historic Encounter, 91 AMERICAN JOURNAL OF
INTERNATIONAL LAW 64 (1997); John H. McNeill and Ronald D. Neubauer, The International
Court of Justice Advisory Opinion in the Nuclear Weapons Cases (8 July 1996): A First Appraisal,
INTERNATIONAL REVIEW OF THE RED CROSS, No. 316, Jan—Feb. 1997, at 103; Michael N.
Schmitt, The Intemational Court of Justice and the Use of Nuclear Weapons, NAVAL WAR
COLLEGE REVIEW, Spring 1998, at 91.

41. Convention on the Prohibition of the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on Their Destruction, April 10, 1972, 26
U.S.T. 583, 11 INTERNATIONAL LEGAL MATERIALS 310 ; Convention on the Prohibition of
the Development, Production, Stockpiling and Use of Chemical Weapons and on Their
Destruction, Jan. 13, 1993, 32 INTERNATIONAL LEGAL MATERIALS 800.

42. Additional Protocol on Blinding Laser Weapons (Protocol IV) to the Convention on
Prohibitions and Restrictions on the Use of Certain Conventional Weapons Which May be
Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 12, 1995, U.N. Doc.
CCW/CONF.1/7 (1995), 35 INTERNATIONAL LEGAL MATERIALS 1218.

481


Naval Blockade

establishing a blockade is “to deny the enemy the use of enemy and neutral ves-
sels or aircraft to transport personnel and goods to or from enemy territory.”3 If
solely aimed against the enemy’s economy, the legality of a blockade has to be
judged in the light of the law of economic warfare and of the law of neutrality.
However, in contrast to the practice of the 19th century and of the two World
Wars, in modern State practice such economic blockades have been the excep-
tion. Today the establishment of a blockade is very often an integral part of a
military operation that is not directed against the enemy’s economy but against
its armed forces. For example, a blockade may be declared and enforced in
preparation of a landing operation. It may also help in surrounding enemy
armed forces or in cutting off their lines of supply. But even if an economic
blockade in the strict sense were established, there would always be a strategic
element: cutting off the enemy’s trade links and weakening its economy will
also weaken its military power of resistance. No matter which purpose is pur-
sued by the establishment of a blockade, it always involves the use of military
force directed against the enemy’s coastline or ports. Accordingly, a blockade is
a method of naval warfare to which the general principles and rules of the law
of naval warfare—the maritime jus in bello—also apply.

While naval blockades still have to be distinguished from other, although re-
lated, concepts (e.g., operations designed to interdict contraband, unilateral
embargoes, defensive measure zones, and exclusion zones),® there is no longer
any need to deal separately with so-called “pacific blockades.”” Since the estab-
lishment of a “pacific blockade” involves the use of military force by one State
against another State, there is an international armed conflict in the sense of
common Article 2 of the 1949 Geneva Conventions. The (maritime) jus in bello
applies to all belligerent measures taken in such conflicts. The existence of a
state of war is not a precondition for the legality of certain methods and means
of warfare anymore. If they are taken, they have to be in accordance with the
applicable jus in bello. Hence, the same rules will apply in either case.

Whether and to what extent the jus ad bellum also serves as a legal yardstick
for naval blockades is a highly disputed issue. Leslie Green has always taken the
position that the jus in bello and the jus ad bellum are distinct from one another?
and it has always been an ambitious task to take the opposing view. However,
this is not the proper place to reenter that discussion and to repeat arguments
put forward elsewhere.? An interesting issue that is also far from settled, but
that does need to be addressed here is the question of whether and to what ex-
tent the rules governing naval blockades also apply to blockades established in
accordance with Article 42 of the UN Charter.

204


XIX

Jus Pacis ac Belli?

Prolegomena to a Sociology of International Law

Georg Schwarzenberger

| HE TRADITIONAL SYSTEM OF INTERNATIONAL LAW is based on the

distinction between the law of peace and the law of war. In the forma-
tive period of international law, thinkers were fully aware of the problem hidden
behind this classification. Positivist writers took over these conceptions, framed
against the background of a philosophical vista of society. Yet in their hands these
terms lost their original significance. It is the purpose of this investigation to throw
light on this process and to consider the relevance of this dichotomy into peace
and war for the positivist and sociological approaches to international law.

The Naturalist Basis of the Dichotomy

Conceptions such as peace and war are intimately linked up with ideas on
the structure of the international society and the motive powers behind it. Nat-
uralist writers indicate their attitude towards these problems in their abstrac-.
tions from political reality, and, as in our own time, the is and ought are not
always neatly separated from each other. Reality and utopia often are

Reproduced with permission from 37 AJIL 460 (1943), © The American Society of
International Law.


The Rome Statute on the International
Criminal Court—Universal Jurisdiction
or State Consent—To Make or
Break the Package Deal

Sharon A. Williams

HE 1998 ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
il adopted by the United Nations Diplomatic Conference of Plenipoten-
tiaries on the Establishment of an International Criminal Court,! is a massive
document containing one hundred and twenty-eight Articles. The Interna-
tional Criminal Court (ICC) will have under its mandate some of the most seri-
ous international crimes known to humankind. It is intended to serve the triple
function of deterrence, prosecution of alleged perpetrators, and justice for vic-
tims. By individualizing guilt, the ICC will have the potential effect of search-
ing for truth and assisting in peace and reconciliation. It is hoped that the
providing of accountability will end the cycle of impunity, protect the funda-
mentals of human dignity, and work for peace. Deciding where my focus should
be for this contribution to honour my colleague, friend, and mentor in many
ways in the international criminal law field, Professor L.C. Green, was a diffi-
cult choice. I decided to pick what turned out to be one of the most, if not the
most, controversial Article at the end of the Conference—Arrticle 12.


Yoram Dinstein

instance, from a desire to avert the automatic application of the (international
no less than domestic) laws of neutrality activated during war. The paucity of
declarations of war at the present juncture is also linked, paradoxically, to the
illegality and criminality of wars of aggression. The contemporary injunction
against war has not yet eliminated its incidence. Nevertheless, the prohibition
has definitely created a psychological environment in which belligerents prefer
using a different terminology, such as “international armed conflict.”!2 Since
States are indisposed to employ the expression “war,” they naturally eschew
declarations of “war.”

Even when a declaration of war is issued, in many instances this is done after
the first strike, so that the act constitutes no more than an acknowledgement of
a state of war already in progress; occasionally, the declaration is articulated by
the State under attack, and it merely records that the enemy has launched
war.13 Of course, a post-attack declaration of war (by either party) is not in ac-
cordance with Hague Convention (III).

When enunciated, a declaration of war does not require “any particular
form,” although it must be authorized by a competent organ of the State.!4 Lack
of prescribed form should not be confused with rhetorical flourish. It must be
appreciated that not every bellicose turn of phrase in a harangue delivered by a
Head of State before a public gathering can be deemed a declaration of war. In
the Dalmia Cement International Chamber of Commerce arbitration of 1976,
P. Lalive held that a broadcast aired by the President of Pakistan in 1965—in
which a statement was made that Pakistan and India were “at war”—did not
amount to a declaration of war pursuant to international law, inasmuch as it
“in no way was, or purported to be, a ‘communication’ to India.”!5 The insis-
tence on the transmittal of an official communication to the antagonist may be
exaggerated, but surely a declaration of war—in whatever form—must (at the
very least) be publicly announced in an explicit and lucid manner. One cannot
accept the assertion by a United States Federal District Court in 1958, in the
Ulysses case, that Egypt had declared war (consonant with international law)
against Britain and France, in November 1956, in a public speech made by
President Nasser before a large crowd in Cairo.!6 The Court admitted that the
speech had been misunderstood or disregarded at the time, but it relied on the
fact that a subsequent official Egyptian statement confirmed that it had been
intended as a declaration of war.!? However, the very misunderstanding of the
purport of the speech at the point of delivery weakens the Court’s position.
President Nasser’s speech was simply “neither definite nor unequivocal”
enough as a declaration of war.!8 If it is to have any value at all, a declaration of
war must impart an unambiguous signal to all concerned.

133


Yoram Dinstein

1983 (at Qiryat Shemona and Khaldeh) but never entered into force since Leb-
anon declined to ratify it.43 The instrument is significant only because it sets
forth in Article 1(2) that

The Parties confirm that the state of war between Israel and Lebanon has been
terminated and no longer exists.44

It is clear that at Khaldeh and Qiryat Shemona, Lebanon and Israel did not
terminate the war between them at the moment of signature (using the present
tense) or undertake to end it upon ratification (in the future): they confirmed
that the state of war had already ended at some indeterminate stage (in the
past), and that it therefore no longer existed. In contradistinction to the
termination of war in the present or in the future—which, in both instances, is
a constitutive step—the notation that the war has already ended in the past is
merely a declaratory measure.

The second temporal matter is that the dual cardinal aspects of the estab-
lishment of peace—the termination of war and the normalization of rela-
tions—need not be synchronized. Thus, under Article I of the Egyptian-Israeli
Treaty of Peace, while the state of war between the parties is to be terminated
(as shown) upon ratification, “normal and friendly relations” are to be effected
only after a further interim period of three years.45 The gradual time-table is a
marginal matter. The decisive element is that a treaty of peace is not just a neg-
ative instrument (in the sense of the negation of war); it is also a positive docu-
ment (regulating the normalization of friendly relations between the former
belligerents).4° Normalization produces repercussions in diverse areas, ranging
from diplomatic to cultural exchanges, from navigation to aviation, and from
trade to scientific cooperation. The quintessence of a treaty of peace is writing
finis not only to the armed phase of the conflict between the parties, but to the
conflict as a whole. Hence, in appropriate circumstances, the conclusion of a
treaty of peace constitutes an implied recognition of a contracting party as a
State.4?

Patently, a treaty of peace is no guarantee of lasting peace. If the root causes
of the war are not eradicated, another armed conflict may erupt in time. In ad-
dition, the same treaty of peace which closes one war can lay the foundation for
the next one: the Treaty of Versailles is a prime example of this deplorable state
of affairs. But notwithstanding any factual nexus linking the two periods of hos-
tilities, the interjection of a treaty of peace signifies that legally they must be
viewed as separate wars. Of course, new bones of contention, not foreseen at
the point of signature of a treaty of peace, may also become catalysts to another

137


Appendix

The Status of Berlin. University of Sydney, 1962, 30 pp.

Le Statut des Forces rebelles en droit international. Revue Generale de Droit In-
ternational Public, 1962, 5-33.

Eichmann: Legal Aspects. Britannica Book of the Year, 1962 and 1963.

Civilian War Dead & Reparations Against an Enemy: The Problem of the Sin-
gapore War Dead. 28 Malayan Law Journal, 1962; 1 Philippine International
Law Journal, 1963, 384-405.

Review Article—“Communist China and Asia” by A. Doak Barnett. 2 Journal
of Southeast Asian History, 1962, 160-6.

Representation in the Security Council—A Survey. 11 Indian Year Book of In-
ternational Affairs, 1962, 48-75.

The Legal Status of Berlin, 1962. 10 Nederlands Tidschrift voor International
Recht, 1963, 113-38.

The Maxim Nullum Crimen Sine Lege and the Eichmann Trial. 38 British Year-
book of International Law, 1962, 457-71.

Filling Lacunae in the Law. 29 Malayan Law Journal, 1963, 14 pp.

Sterilization and the Law. 5 Malaya Law Review, 1963, 105-31.

Legal Issues of the Eichmann Trial. 37 Tulane Law Review, 1963, 641-84.

Medico-Legal Aspects of Sterilization. 4 Singapore Medical Joumal, 1963,
98-112.

Aspects Juridiquese du Procés Eichmann. 9 Annuaire Frangais de Droit Interna-
tional, 1963, 150-90.

The Nature of Political Offences. 3 The Solicitor Quarterly, 1964, 213-38; 7
Journal of the Indian Law Institute, 1965, 1-26.

Report of International Law Association Committee on Legal Aspects of Asy-
lum. 1964, 66, 68, 70.

Indonesia, The United Nations and Malaysia. 6 Journal of South-East Asian His-
tory, 1965, 71-86.

Recruitment and Salary of Teachers. In Regional Conference on Legal Education,
Singapore, 1962 (published by International Commission of Jurists, 1965).

Rhodesian Oil: Bootleggers or Pirates? 21 International Journal, 1966, 350-3.

Is International Law Law? 1 International Journal of Legal Research, 1966, 23-50.

The Lighter Side of the Law. 31 Saskatchewan Bar Review, 1966, 162-75.

An International Lawyer Looks at Comparative Law. 1 Israel Law Review,
1966, 580-92.

Malaya/Singapore/Malaysia: Comments on State Competence, Succession
and Continuity. 4 Canadian Yearbook of International Law, 1966, 3-42.

South West Africa and the World Court. 22 International Journal, 1967, 39-67.

569


Legal Implications of NATO’s Armed Intervention in Kosovo

has been negotiated at Rambouillet; full observance of limits on the Serb Army
and the special police forces, agreed on 25 October; an end to the excessive and
disproportionate use of force in Kosovo.40

In Solana’s words, the objective of the air strikes was “to prevent more hu-
man suffering, more repression, more violence against the civilian population
of Kosovo . . . [and] to prevent instability spreading in the region.”4!

NATO bombed Yugoslavia for eleven weeks. From the beginning, the at-
tacks consisted of missiles and smart bombs. Satellite-guided cruise missiles
were launched from ships and B-52s to knock out Yugoslavia’s air defense sys-
tems, and smart bombs were dropped from aircraft, including F-15s, F-16s and
the B-2 Stealth bomber.4?

As the strikes began, President Bill Clinton justified the action in the follow-
ing terms:

Today we and our 18 NATO allies agreed to do what we said we would do, what
we must do to restore the peace. Our mission is clear: to demonstrate the
seriousness of NATO's purpose so that the Serbian leaders understand the
imperative of reversing course; to deter an even bloodier offensive against
innocent civilians in Kosovo; and, if necessary, to seriously damage the Serbian
military’s capacity to harm the people of Kosovo. In short, if President Milosevic
will not make peace, we will limit his ability to make war.43

UN Secretary General Kofi Annan was concerned that NATO had acted
without Security Council authorization. However, he blamed Yugoslavia’s in-
transigence in repeatedly rejecting a diplomatic resolution of the conflict for
the air strikes. In his words,

I deeply regret that, in spite of all the efforts made by the international
community, the Yugoslav authorities have persisted in their rejection of a
political settlement, which would have halted the bloodshed in Kosovo and
secured an equitable peace for the population there. It is indeed tragic that
diplomacy has failed, but there are times when the use of force may be legitimate
in the pursuit of peace.44

Three weeks into the air campaign, on April 13, General Clark summed up
the campaign’s intent: “attack, disrupt, degrade, deter further Serb actions and
keep it going and further degrade Serb military potential. .. .”45 He elaborated:

We are operating on what I would call two axes of attack, or two lines of
operations: we are going after the forces inside Kosovo and around Kosovo to

318


Alfred P. Rubin

society.!? It is very distressing to many Americans to see the “common law
crimes” approach resurrected under other names and rationales by those who
fancy themselves the governors, or at least the political beneficiaries, of the
“new” system.

There is a much deeper problem that seems to have received only polemical
attention: Is the object of the ICC to do “justice” or to help attain and preserve
“peace”? To many, “justice” as they perceive it is a prerequisite to “peace.” To
others, “peace” as they conceive it is a prerequisite to “justice.” I would suggest
that assertions on both sides are simplistic and distort the complex relation-
ships they hint at.

“Peace” is not the result of “justice,” it is the result of implied consent to a so-
cial structure (possibly, in some cases, analogizeable to a “social contract”) un-
der which the alternatives to peace are believed worse than the “injustice” that
might be unavoidable under any current conception of a human social order.
No doubt, in both municipal and international legal orders “peace” can be at-
tained by a draconian criminal law system, “just” or “unjust,” depending on the
value judgment of each evaluator, under which dissent is immediately pun-
ished. Such a peace is unacceptable politically to Americans and many others
whose value systems include a great weight to be given open political speech,
true or not, disruptive of stability or not.

The international legal order, as currently conceived, considers attempts to
alter municipal legal orders. by force to be beyond the legal control of interna-
tional society as long as international peace and security are not threatened; !8
civil wars are not illegal as a matter of international law; they are always, possi-
bly by definition, illegal under the municipal law of the society whose author-
ity-structure is under attack.!9 While the variations in reality might be
limitless, it is clear that such “revolutions” as have recently occurred in the for-
mer Soviet Union are now occurring in many States?0 and are considered to lie
beyond the authority of the international community.

The Statute of the ICC would seek to make criminal, as a matter of interna-
tional law, violations of the limits of a soldier’s privilege in armed conflicts not
ofan international character agreed by Common Article 3 of the 1949 Geneva
Conventions. Under the Geneva Conventions, no State had the “standing”
necessary to support diplomatic correspondence or intervention in any such
cases; the provisions were acceptable to existing States’ authority-holders be-
cause they could not, as a matter of law, be applied except polemically by out-
siders or as “moral” imperatives now agreed by the apparently defaulting States
and brought to their attention by non-governmental organizations, like Am-
nesty International or the International Committee of the Red Cross and their

427


Georg Schwarzenberger

67. Cf. Borchard, loc. cit., p. 116, and Eagleton, ibid., p. 284 et seq.

68. Text of the note of June 23, 1928, in AMERICAN JOURNAL OF INTERNATIONAL LAW,
Supp., Vol. 22 (1928), p. 109.

69. Part VIII, Sec. I, Annex II, § 18, AMERICAN JOURNAL OF INTERNATIONAL LAW, Supp.,
Vol. 13 (1919), p. 264.

10. Cf. A. D. McNair, B-Y.LL., 1924, p. 182, and on The Legality of the Occupation of the Ruhr,
ibid., p. 17 et seq.

71. Exchange of declarations between the Government of Germany and the Belgian, British,
French, Italian, and Japanese Governments of Jan. 20, 1930 (British and Foreign State Papers,
1930, Pt. I, p. 42); AMERICAN JOURNAL OF INTERNATIONAL LAW, Supp., Vol. 24 (1930), p.
271.

72. Preamble of the Nyon Agreement regarding submarines, par. 2: “Whereas these attacks
are violations of the rules of international law referred to in Part IV of the Treaty of London of
April 22, 1930, with regard to the sinking of merchant ships and constitute acts contrary to the
most elementary dictates of humanity which should justly be treated as acts of piracy.” (B-Y.LL.,
1938, p. 205). See also the additional agreement concerning surface vessels and aircraft (ibid., p.
206). The agreements also are printed in AMERICAN JOURNAL OF INTERNATIONAL LAW,
Supp., Vol. 31 (1937), pp. 179, 182.

73. For a mote detailed discussion, see the writer’s POWER POLITICS, supra, p. 33 et seq., and
The Three Types of Law, ETHICS, 1943, p. 89 et seq.

14. This latter type of law has been well described by G. NIEMEYER, LAW WITHOUT FORCE
(Princeton, 1941).

75. For a more detailed discussion, see the writer’s POWER POLITICS, supra, p. 138 et seq.

505


INTERNATIONAL LAW STUDIES

Volume 75

International Law Across the Spectrum of Conflict:

Essays in Honour of Professor L.C. Green
On the Occasion of His Eightieth Birthday

Michael N. Schmitt
Editor

Naval War College
Newport, Rhode Island
2000


xX

Dispute Settlement under the 1997
Convention on the Law of the
Non-Navigational Uses of
International Watercourses

Ruth Lapidoth

S INCE 1971, the law on non-navigational uses of international water-
courses has been on the agenda of the International Law Commission. It
took thirteen reports, five special rapporteurs, and 26 years before the work led
to the UN General Assembly’s adoption, on May 21, 1997, of the Convention
on the Law of Non-Navigational Uses of International Watercourses! (1997
Watercourses Convention). It is a “framework convention,” intended to “en-
sure the utilization, development, conservation, management, and protection
of international watercourses, and the promotion of the optimal and sustain-
able utilization thereof for present and future generations.”

The convention will enter into force after at least 35 States become parties
to it. Since it was adopted by a relatively small majority—103 in favor, 3
against, and 27 abstentions—the prospects for such a number of participants
are not certain. The convention is nevertheless of considerable interest, not
least because some of its principles may constitute a codification of customary
tules.3


Ruth Lapidoth

two poles were various intermediate opinions. For example, one group advo-
cated an “opt-in” procedure, i.e., at the time of depositing the instrument of
ratification, éach party would state whether it would be bound to compulsory
arbitration and/or compulsory adjudication before the International Court of
Justice.35 By contrast, the International Law Commission had recommended
compulsory fact-finding,3° whereas Drafting Group Chairman Professor
Lammers had favored compulsory fact-finding plus an “opt-in” procedure.3?
Some supported compulsory fact-finding plus an “opt-in” procedure plus com-
pulsory conciliation.38 These examples show the extent to which opinions on
the subject differed.

The reasoning against compulsory binding third-party involvement is obvi-
ous. Binding settlement of disputes is considered inappropriate for a framework
convention like the 1997 Watercourses Convention, since such a convention
only provides guidelines. In addition, one can argue that international water-
course law is not sufficiently developed and that the existing case law is not rich
enough to serve as the basis for adjudication by a judge or an arbitrator. More-
over, States might balk at binding solutions because they feel such procedures
undermine their sovereignty.>? The opinion has also been expressed that States
should be free to choose the appropriate means of dispute settlement according
to the nature of the dispute and the circumstances-#9

On the other hand, there are many considerations in favor of an obligatory
binding third party mechanism. Although the text is a framework convention,
it nevertheless contains specific obligations. If every State had the power to in-
terpret or apply the provisions of the convention as it saw fit, the convention
would be of little value. If disputes are not to drag on endlessly, and if might is
not to prevail over law, settlement procedures that yield binding solutions must
be provided for. Given the ambiguity or general nature of some of the concepts
that are included in the convention, such as the terms “equitable,” “reason-
able,” “significant,” and the difficulty in determining how much weight should
be given to each of the factors to be taken into consideration when establishing
the equitable and reasonable utilization, the presence of a neutral third party
with power to adopt binding decisions would be particularly valuable.4! More-
over, the very existence of a compulsory and binding mechanism can induce
States to compromise.

With so many different opinions and considerations, it is little wonder that
the relevant article—Article 33 was adopted in the Working Group by only a
small majority: 33 in favor, 5 against, and 22 abstentions. In the discussion that
follows, optional mechanisms whose activation under the 1997 Watercourses

235


The History and Status of the International Criminal Court

Tt appears obvious that the General Assembly was far more interested in the establishment of an
international criminal court than was the International Law Commission!

25.General Assembly, Official Records, Forty-eighth Session, Supplement No. 10 (A/48/10),
paragraphs 75 et seq; 33 LL.M. 253 (1994).

26.78 U. . 277; 151 B.F.S.P. 683; THE LAWS OF ARMED CONFLICT 231 (Dietrich
Schindler & Jifi Toman, eds., 3rd ed. 1988).

27.6 US.T. 3114-3695; T.LA.S., 3362-4465; 75 U.N.T.S., 31-468; Schindler and Toman,
supra note 26, at 373-594.

28.72 AM. J. INT'L L. 457-509 (1980); Schindler & Toman, supra note 26, at 621-718.

29.860 U.N.T.S. 105; 10 ILM. 133 (1971).

30.974 U.N.T-S., 177; 10 I.L.M., 1151 (1971). For some strange reason, the supplement to
this Convention, the 1988 Protocol for the Suppression of Violence at Airports Serving Civil
Aviation 27 1.L.M. 627 (1988), was not included.

31.UNGA/RES 3068 (XXVIII); 13 LL.M., 51-57 (1973).

32. UNGA/RES 3166 (XXVIII); 13 I.L.M., 41-49 (1974).

33. UNGA/RES 34/146 (XXXIV); 18 I.L.M., p. 1456 (1979).

34.27 LL.M., 672 (1988);

35.27 LL.M., 685 (1988).

36. It will be noted that neither crimes against humanity nor crimes against peace (nor crimes
involving the environment or cultural objects) were included within the jurisdiction of the
Tribunal. However, Article 27 provided that a person could be tried for an act of aggression if the
Security Council “has first determined that the State concerned has committed the act of
aggression which is the subject of the charge.”

37. A/CONF.183/2/Add. 1, April 14, 1998.

38. Parenthetical provisions indicate the possibility of including: crimes of terrorism; crimes
against United Nations and associated personnel; and crimes involving the illicit traffic in
narcotic drugs and psychotropic substances.

39. A/CONF.183/9, July 17, 1998. The vote on the final Draft Convention was 120 for and 7
against, the latter including Algeria, China, Iraq, Israel, Libya, Qatar and the United States—a
strange grouping!

40.One problem that arises is whether the International Criminal Court will have
jurisdiction over all international crimes listed to the exclusion ofall other such courts, including
those already in existence (such as the courts already established with respect to Yugoslavia and
Rwanda) or will ad hoc international criminal courts continue to be established for specific
matters. See Christopher Staker, Will There be a Role for Other Intemational Criminal Courts after
the Establishment of an ICC? INTERNATIONAL LAW FORUM 16 (Zero Issue, 1998).

41.The Statute will be found in A/CONF/183/9, July 17, 1998. (It can also be found at:
httpAvww.un.org/icc part 1.htm (through part 13.htm).

42.The composition and activities of the Assembly of States Parties to the Statute are set
forth in Article 112 of the Statute.

43. This is a far cry from the conclusions reached at a symposium conducted by the United
States Institute of Peace in 1996 and which caused the present author to write a letter to the
symposium director that included the following paragraph:

. +L heard nothing but proposals which would, in effect, make the International
Criminal Court a pawn of the Security Council. The Security Council would determine
who should be tried; the Security Council would indict; the Security Council would
instruct the International Criminal Court how to proceed; the Security Council would

260


Anthony D’Amato

Rather, my entire defense would consist of the specific innocence of my client
to the charge of genocide.

This brings me to my client’s speeches and television interviews which, I was
sure, would have a highly negative emotional impact upon the judges of the
Tribunal when they were read out in court or shown on the courtroom televi-
sion monitors. They suggested that Dr. Kovacevic was something of a firebrand
and idealogue, one who could be held guilty of contributing to a negative atmo-
sphere in Prijedor that made the subsequent attack by the Serbian army and
paramilitaries all the more effective and brutal. I was certain that the prosecu-
tor would provide the requisite rhetorical underpinning to the speeches and in-
terviews, leaving me with an uphill battle to explain why those speeches and
interviews did not constitute evidence of a specific motive of genocide.

I believed that there was a completely different way to interpret my client’s
speeches and television interviews. He was doing his best to exhort the Muslim
population of Prijedor to leave town before it was too late. Although the Mus-
lim and Serb population in the town was at that time practically equal (at close
to 43 percent each), Dr. Kovacevic knew from his position as deputy mayor
that the strategic importance of the Prijedor corridor from the Serbian military
point of view made inevitable a military takeover by the Serbian army. And in-
deed that is what happened in April 1992, followed by forced evacuations of
Muslims and internment in detention centers, often under brutal conditions.
Some Muslims were tortured and killed in those camps.

I go into this level of detail to show that two diametrically opposite interpre-
tations are possible of the same speeches by a public official such as Dr.
Kovacevic. He could either have been contributing to an atmosphere of hatred
or doing his best to protect people whom he knew would inevitably be victims
of a forcible military takeover. How this would have played out at trial we’ll
never know; Dr. Kovacevic died of an aneurism in the detention center at The
Hague after two weeks of his trial. How indeed would the prosecutor have
proved specific intent? To be sure, Dr. Kovacevic never said to the Muslims in
his audience that they would be better off getting out of town. The prosecutor
would have underlined this omission. Yet a public official is not free to say any-
thing he desires in public. If he had put the matter so plainly to the citizens of
Prijedor, he would have been accused of not doing his job properly as deputy
mayor. He would have been criticized for trying to get rid of half the population
of the city instead of working with them and establishing conditions of peace
and mutual trust. Thus, knowing what he knew about Serbian military plans,
he could only speak in a kind of code. He said things such as “The Serbs and
Muslims can never live in peace together even in a hundred years.” Coming

127


Outer Void Space Not Reserved for Exclusively Peaceful Use

resorted to such methods on occasions, to sustain such a course on a long-term
basis would have been difficult. Here is where its diplomats, advised no doubt
by their ingenious legal colleagues, started, as we have seen, to re-invent the
word “peaceful,” turning its meaning from “non-military” to “non-aggressive”
so that all its military space missions, not being aggressive, would also be for
peaceful purposes. In so doing, an illusion was created by both space Powers
that outer space has in fact been kept exclusively for peaceful uses. Mission im-
possible was accomplished.

Our task here is primarily to re-examine the effects of the 1967 Space
Treaty,?3 in particular Article IV, on the military use of outer space as well as the
impact, if any, which this masterpiece of legal trompe-l’oeil has had on the Treaty.24

Background to Article IV of the 1967 Space Treaty

The 1967 Treaty represents a compromise reached by the then two super-
powers during a thaw in their relations after Nikita Khrushchev came to power
in the Soviet Union, and especially following the inauguration of John Ken-
nedy as President of the United States;?5 the thaw continued during the presi-
dency of Lyndon Johnson. The first real breakthrough on the disarmament
front was the signing of the Partial Test Ban Treaty on August 5, 1963.26 It will
be recalled that the contracting States “undertake to prohibit, to prevent, and
not to carry out any nuclear weapon test explosion, or any other nuclear explo-
sion .. . in the atmosphere; beyond its limits, including outer space.”27 The Treaty
was not only the first multilateral agreement with a specific reference to outer
space, it also related to disarmament. This move was accompanied by an-
nouncements from both the U.S. and the USSR the same year that they would
not station any objects carrying nuclear weapons or other weapons of mass de-
struction in outer space. These superpower expressions of intentions were wel-
comed by the UN General Assembly, which adopted Resolution 1884 (XVIII)
on October 17, 1963, calling on all States:

to refrain from placing in orbit around the earth any objects carrying nuclear
weapons or any other kinds of weapons of mass destruction, installing such
weapons on celestial bodies, or stationing such weapons in outer space in any
other manner. .

Article IV(1) of the 1967 Space Treaty adopted the wording from Resolu-
tion 1884 almost verbatim. In other words, by then, agreements had already
been reached between the Soviet Union and the United States on the sub-
ject.28 Article IV(1) provides:

88


Sharon A. Williams

The Bureau Compromise

The Bureau discussion paper’! “had narrowed the range of options but had
deliberately taken a cautious approach.””2 The Proposal?3 had likewise re-
tained several options. Both of these had dropped the German Proposal.’4 The
Bureau Proposal in Article 7(1) adopted the Korean Proposal for genocide
alone. For war crimes and crimes against humanity, three options were pre-
sented in Article 7(2): (1) the Korean Proposal, (2) the acceptance by the terri-
torial and custodial States, and (3) the acceptance by the State of nationality of
the accused alone. Some States voiced strong objections against the Korean
Proposal stating that it was quasi-universal jurisdiction. It gave the ability to
four States, including the custodial State as a State Party, to give the Court ju-
tisdiction standing alone. However, other States pointed out that it would
have been in keeping with the ability at international law of the custodial State
to prosecute itself for international crimes, stricto sensu. They viewed the other
options as too restrictive, in particular option 3 based on the State of national-
ity of the accused. As well, Article 7 bis on acceptance of jurisdiction, in both
the discussion paper for treaty crimes, and possibly for one or more of the core
crimes, and in option 2 of the Proposal for crimes against humanity and war
crimes, was controversial as it replicated the “opt-in” regime. Article 7 bis op-
tion 1 reproduced the automatic jurisdiction over all core crimes by States
Parties. Thus, as late as July 10, 1998, with only one week left, there was no
consensus. The United States and other States emphasized that “universal ju-
tisdiction or any variant of it” was unacceptable.’5-

The result was the introduction on July 17, 1998, into the final package by
the Bureau of a new Article on preconditions, the present Article 12 in the
Statute. It provides:

1. A State which becomes a Party to this Statute thereby accepts the
jurisdiction of the Court with respect to the crimes referred to in Article 5.

2. In the case of Article 13, paragraph (a) or (c), [referral of a situation to the
ICC by a State Party or an investigation by the Prosecutor proprio motu] the
Court may exercise its jurisdiction if one or more of the following States are
Parties to this Statute or have accepted the jurisdiction of the Court in
accordance with paragraph 3:

(a) The State on the territory of which the conduct in question occurred or,
if the crime was committed on board a vessel or aircraft, the State of

registration of that vessel or aircraft;

549


W. Hays Parks

Bulgaria—favored a prohibition, but with reservations. Ten nations, including
the United States, France, Austro-Hungary, Denmark, Spain, Sweden, Nor-
way, the Netherlands, and Turkey, strongly resisted the proposal, while Serbia,
Switzerland and, ironically, Russia, abstained. Lacking unanimity, it failed.?8 Of
note is the fact that the proposal was introduced as an arms control rather than
a law of war issue. Although “humanitarian” arguments were made in subse-
quent conferences, the issue of controlling submarines remained primarily one
of arms limitation, not the law of war. By 1907, more nations—including Rus-
sia and Germany—had acquired submarines.29 As a consequence, neither the
original Russian proposal nor any new proposal to regulate or prohibit subma-
tines was offered at the Second Hague Peace Conference in 1907. Nor was the
submarine the subject of special consideration in the subsequent London con-
ference of major naval powers that produced the Declaration Concerning the
Laws of Naval War.30

This should not be surprising. In the pre-World War I era, the submarine
was a relatively unknown but emerging capability. Nations were unwilling to
surrender it unilaterally or prohibit it without universal agreement; most un-
doubtedly preferred to take a wait-and-see attitude. By 1912, the world’s major
navies were building a substantial number of submarines.?! Its anticipated role
was seen primarily as scouting and support for the battle fleet.>2 Limitations on
employment of submarines in a visit and search role were recognized by
then-First Lord of the Admiralty Winston Churchill who, in June 1913, ac-
knowledged that the submarine “cannot capture the merchant ship; she has no
spare hands to put a prize crew on board . . . she cannot convoy her into har-
bor. . . . There is nothing else the submarine can do except sink her cap-
ture... .”33 The potential for use of submarines for attacks on commerce had
been forecast. Six months prior to the beginning of World War I, Admiral of
the Fleet Sir John Fisher advised the Prime Minister that Germany would likely
employ her submarines for that purpose. As his biographer notes:

The [Royal] Navy recognized the danger; and the only doubt was whether
Germany, owing to the impossibility of differentiating between belligerent and
neutral, would risk bringing neutrals into the war. Germany did what Fisher had
forecasted; and in consequence, what others had foreseen also happened,
namely, that the United States was drawn into the war.34

British anticipation of probable German use of submarines was not met with
a commensurate degree of preparation for antisubmarine warfare. Subsequent
British conduct makes it probable, however, that having recognized the likely

343


W. Hays Parks

them. Other Russian proposals to limit fleets, naval gun sizes, and naval armor plate meta similar
fate. SCOTT, supra note 26, at 320-322, 371-373.

29. Initial acquisition of submarines in France and Great Britain began in 1899; the United
States followed in 1900. Russia’s first submarines were German-built, and Germany ordered its
first in 1904. J. ALDEN, THE FLEET SUBMARINE IN THE U.S. NAVY (1979), at 2; H. HERWIG,
“LUXURY” FLEET: THE IMPERIAL GERMAN NAVY 1888-1918 (1980), at 86-87; ROPP, supra note
27, at 347-352; E. ROSSLER, THE U-BOAT: THE EVOLUTION AND TECHNICAL HISTORY OF
GERMAN SUBMARINES, (1989), at 15-19; G. WEIR, BUILDING THE KAISER’S NAVY (1992), at
51-52.

30. J. Scott, ed., THE DECLARATION OF LONDON (1919); Schindler & Toman, supra note 1,
at 843. The conference, attended by representatives of Austria-Hungary, France, Germany,
Great Britain, Italy, Japan, Netherlands, Russia, Spain and the United States, met from
December 4, 1908, to February 26, 1909. Although the declaration was signed by each
delegation, it was ratified by none.

31. ALDEN, supra note 29, at 3.

32. C. Nimitz, Military Value and Tactics of Modem Submarines, U.S. NAV. INST. PROC. 38,4
(December 1912), at 1193; MASSIE, supra note 27, at 453. The ability of the submarine to attack
combatant surface vessels was not viewed seriously; see MARDER, supra note 27, at 339.

33. J. TERRAINE, THE U-BOAT WARS, 1916-1945 (1989), at 4-5, 7-8. Churchill adopted
the words of Sir John Fisher, who so advised Churchill in a memorandum. A. MARDER, FROM
THE DREADNOUGHT TO SCAPA FLOW, Vol. I, THE ROADTO WAR 1904-1914 (1961), at 363.

34. R. BACON, THE LIFE OF LORD FISHER OF KILVERSTONE (1929), Vol. I, at 123.

35. For example, Article 20 of U.S. Army General Orders No. 100 of April 24, 1863, declares
that “Public war is a state of armed hostility between sovereign nations or governments. It is a
law and requisite of civilized existence that men live in political, continuous societies, forming
organized units, called states or nations, whose constituents bear, enjoy, suffer, advance and
retrograde together, in peace and in war.” Schindler & Toman, supra note 1, at 6. The effect of
this approach is described in E. HAGERMAN, THE AMERICAN CIVIL WAR AND THE ORIGINS OF
MODERN WARFARE (1988), 282, 283, 285, and, generally, J. MCDONOUGH AND J. JONES,
WAR SO TERRIBLE: SHERMAN AND ATLANTA (1987). A U.S. State Department proposal at
the First Hague Peace Conference that the U.S. support the traditional American view of
neutral rights was strongly opposed by Mahan. He argued that the traditional view benefited the
neutral to the loss of the stronger belligerent. With U.S. ascendancy as a naval power during the
previous decade, approaching parity with the Royal Navy, Mahan believed an international
agreement in support of its traditional position would be inconsistent with America’s new
strategic interest in command of the seas. Hawkins, supra note 27, at 84-85.

36, MARDER, supra note 33, at 328-339; MASSIE, supra note 27, at 453.

37. See A. MARDER, FROM THE DREADNOUGHT TO SCAPA FLOW, Vol. II, THE WAR
YEARS: TO THE EVE OF JUTLAND, 1914-1916 (1965), at 342-348; R. HOUGH, THE GREAT
WAR AT SEA, 1914-1918 (1983), at 169-177; V. TARRANT, THE U-BOAT OFFENSIVE
1914-1945 (1989), at 7-76; TERRAINE, supra note 33, at 3-150, and, for an overall history, R,
GIBSON AND M. PRENDERGAST, THE GERMAN SUBMARINE WAR 1914-1918 (1931). °

38. G. DAVIS, A NAVY SECOND TO NONE (1940), at 233; and see generally P. RYAN, THE
LUSITANIA DISASTER (1975), for an account of the sinking and its consequences. See also C.
BLAIR, HITLER'S U-BOAT WAR, vol. I, THE HUNTERS, 1939-1942 (1996), at 11.

39. J. WILLIS, PROLOGUE TO NUREMBERG: THE POLITICS AND DIPLOMACY OF PUNISHING
WAR CRIMINALS OF THE FIRST WORLD WAR (1982), at 17-21. First Lord of the Admiralty
Winston Churchill, believing unrestricted submarine warfare illegal, ordered the captured crews

371


Charter of the United Nations as a World Constitution

A further feature of the Charter that points in the direction of its constitu-
tional vocation is the absence of any provision regarding the possibility of with-
drawal from the organization. Although the question of withdrawal was
discussed at San Francisco, where it was tacitly agreed that any State could vol-
untarily withdraw,>3 the only existing precedent on the subject seems to dem-
onstrate the practical unlikelihood of such an action for any significant period
of time.

In 1965, Indonesia declared its intention to withdraw from the United Na-
tions and its delegation accordingly vacated its seat in the General Assembly.
However, the following year the Indonesian government sent a note to the
Secretary General informing him of its intention to recommence co-operation
with the United Nations. In the result, Indénesia was readmitted to the Gen-
eral Assembly without being obliged to pass through the admission procedures.
The President of the General Assembly declared in front of the Assembly that,
in his understanding, the Indonesian action had been a withdrawal from the
cooperative duties of the members but not a withdrawal from the United Na-
tions tout court. He concluded that the Indonesian “bond of membership” had
been maintained during the period of absence.34 As no objection to the Presi-
dent’s statement was made, the Indonesian delegation simply reoccupied its
seat. It seems, therefore, that the General Assembly did not consider a tempo-
rary unilateral withdrawal from the organization to be the kind of serious with-
drawal contemplated by the Charter.

Acts of the General Assembly

As mentioned above, most basic principles of international law are included
in the provisions of the Charter. Many of these principles were of necessity gen-
erally defined, with room left for interpretation. The General Assembly, almost
from the outset, assumed the task of clarifying and interpreting these princi-
ples, sometimes elaborating on principles not yet established as international
customary law, in an attempt to develop the law and harmonize State practice
in the matter at hand.> Resolutions and declarations adopted by the General
Assembly are not binding on States. However, the influence of the General As-
sembly has a long-term effect. Repeated discussion of principles of interna-
tional law may gradually influence the opinio juris and consequently the actions
of member States.36

General Assembly actions have relevance in developing the formation of
principles of general customary law by adding the significant weight of an inter-
pretation shared by the vast majority of States.37 When a resolution restates

274


W. Hays Parks

Other factors contributed to the U.S. decision. The practical arguments
against submarine visit and search expressed by Winston Churchill
twenty-eight years earlier undoubtedly were weighed, along with questions as
to whether Japanese merchant ships would comply with a demand for visit and
search by an enemy submarine. In his directives to his U-boat forces, Hitler’s
desire for compliance with the rules contained in the 1936 Procés-Verbal was
not altruistic. He was concerned about damage to neutral shipping, including
that of the United States, that might widen the war. The political risk for the
United States was not as great as it had been for Germany. U.S. submarine
forces would operate in an area virtually devoid of neutral shipping, and neutral
entry into the war on the side of the Axis was unlikely.!6! The U.S. decision
was not based on reprisal or retaliation, but was a conscious, deliberate decision
made at the highest levels of the government to abandon flawed rules the gov-
ernment had a hand in drafting eleven years earlier.

kL: a war that saw each and every major submarine power consciously aban-
don the rules in the 1936 Procés-Verbal, it is an understatement to say that
the treaty did not measure up to the harsh reality of war. Its postwar status has
been debated, !®? as has the legality of exclusion zones by whatever euphemism
they may be called.!63 Even the most ardent defenders of the Procés-Verbal pro-
vide numerous clarifications and conditions identified by submarine officers
before World War II but persistently ignored or dismissed by diplomats, negoti-
ators, naval leaders and international lawyers of that era.

History offers lessons. While the negotiation experience of one era may not
transfer entirely to another, the reader is invited to consider analogies between
the lessons from events described in these pages and recent negotiation efforts.

1. Law of war treaties stringently regulating the use of a weapon system cannot be
used as a substitute for an arms control agreement. Efforts to rigorously regulate
submarine use as a substitute for its outright abolition, something which Great
Britain sought but could not obtain, immediately jeopardized the future of the
tules in Article 22 of the 1930 London Naval Treaty (repeated in the 1936
Procés-Verbal), while undermining the purposes of the law of war.

2. The law of war may not be used to “cancel out” a threat to another nation’s
strengths, or for other purposes. The submarine presented a clear threat to British
maritime superiority and, by the time of the 1930 London Naval Conference,
to the United States in the Pacific. A law of war treaty was not an appropriate

365


Ronald St. J. Macdonald

means at its disposal to foster new developments in international law by
convening international conferences and promoting the creation of new law
instruments through resolutions.

Article 12 states a division of labour, and indeed a superiority, between the
two main organs of the United Nations: while the Security Council is exercis-
ing its functions under the Charter in respect of a dispute or situation, the Gen-
eral Assembly must, in most cases, refrain from making any recommendation
with regard to that dispute or situation unless the Security Council so requests.

Article 24 sets out the functions and powers of the Security Council. By con-
ferring on the Security Council primary responsibility for the maintenance of
international peace and security, the members made the Council the corner-
stone of the system of international security established by the Charter.!6 Vir-
tually no limit is placed on the powers of the Security Council as long as, very
importantly, the Council acts in accordance with international law including
the provisions of the Charter itself. The Council exercises other specific powers
with regard to the maintenance of international peace and security. However,
as stated by the International Court of Justice in the Namibia case, the mention
of specific powers does not exclude the general powers the Council enjoys in
order to carry out its duties in accordance with the Charter.!7

Under Article 25, member States agree to accept and carry out decisions of
the Security Council, whether its decisions stem from specific or general pow-
ers, provided, in my opinion, the decisions of the Security Council in question
are “in accordance with the present Charter.”!8As will be referred to later, the
extensive powers conferred on the Security Council raised worries on the part
of the smaller States at the San Francisco Conference, but the virtual
non-functioning of the Council during the Cold War period alleviated those
particular concerns.!9 They reappeared, understandably, with the extraordi-
nary reactivation of the Security Council after 1989. The worries regarding the
existence of an overpowering Council were well summarized by the statement
of the representative of Zimbabwe on the sanctions against Libya: “Any ap-
proach that assumes that international law is created by majority vote in the
Security Council is bound to have far-reaching ramifications which could
cause irreparable harm to the credibility and prestige of the Organization, with
dire consequences for a stable and peaceful world order.”20

Article 25 has even more constitutional relevance than Article 24. We see
here that sovereign States have agreed to accept general policy decisions they
may not have voted for, considering that only 15 of the 185 members of the
United Nations sit on the Council. This problem has lately caused a renewal of
demands for an enlargement of the membership of the Security Council and a

269


The Normative Framework of International Humanitarian Law

1954, 249 U.N.T.S. 240 (entered into force 7 Aug. 1956), reprinted in 2 Weston, supra note 2, at
ILB.15.

97. For example, the U.S. takes the position that incendiary and laser weapons and land
mines are not included in that category.

98. See 3 INTERNATIONAL CRIMINAL LAW, supra note 76; Jordan Paust, Customary
International Law: Its Nature, Sources and Status as Law of the United States, 12 MICH. J. INT'LL. 59
(1990). See also, e.g., Meron, supra note 6; Theodor Meron, The Continuing Role of Custom in the
Formation of International Law, 90 AM. J. INT'L L. 238 (1996).

99. See Geneva Conventions of 12 August 1949 and Additional Protocols of June 1977:
ratifications, accessions and successions (Oct. 5, 1998), <http:/Avww.icre.org/unicc/icrnews>.
See also BASSIOUNI, ICL CONVENTIONS, supra note 8, at, respectively, pp. 416~17, 426-27,
434-35, 440-41, 457-60 and 486-87. This position is bolstered by the number of ratifications for
these conventions. They are:

The First Geneva Convention of 1949: 188

The Second Geneva Convention of 1949: 188

The Third Geneva Convention of 1949: 188

The Fourth Geneva Convention of 1949: 188

Protocol I of 1977: 152

Protocol II of 1977: 144
See supra note 88 for the full citation to the first four Geneva Conventions. See supra note 89 for
the citations to Protocol I and Protocol II.

100. This was obvious in the 1997 Preparatory Committee for an International Criminal
Court at its second and third sessions.

101. See Geneva Conventions supra note 88, arts. 50 and 51 of the First and Second
Convention, reprinted in 2 Weston, supra note 2, at II.B.11-12 and arts. 130 and 147 of the
Third and Fourth Conventions, respectively, reprinted in 2 Weston, supra note 2, at II.B.13-14;
1977 Protocol I, supra note 89.

102. See Common Article 3, supra note 88.

103. See Protocol Il, supra note 89.

104. See generally LEVIE, supra note 3; Meron, supra note 6.

105. See Conventions cited supra note 88, arts. 5 and 6.

106. Convention on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes Against Humanity, opened for signature Nov. 26, 1968, 754 U.N.T.S. 73 (entered into
force Nov. 11, 1970), reprinted in 8 I.L.M. 68, and 2 Weston, supra note 2, at II.E.16; European
Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and
War Crimes (Inter-European), Jan., 25, 1974, Europ. T.S. No. 82, reprinted in 13 LL.M. 540
(not yet in force). See also Christine van den Wyngaert, War Crimes, Crimes Against Humanity
and Statutory Limitations, in BASSIOUNI, ICL, supra note 76, at 227-239.

107. Article 8 of the London Charter removed the defense of “obedience to superior orders.”
See London Charter, supra note 25, art. 8. Further, Article 7 of the ICTY and Article 6 of the
ICTR both removed the defense of “obedience to superior orders” as well. See ICTY Statute,
supra note 33, art. 7; ICTR Statute supra note 35, art. 6. For a historical evolution of the defense,
see Leslie C. Green, Superior Orders and Command Responsibility, 27 CAN. Y.B. INT'L L. 167
(1989); Major William H. Parks, Command Responsibility for War Crimes, 62 MIL. L. REV. 1
(1973). See also Leslie C. Green, The Defence of Superior Orders in the Modern Law of Armed
Conflict, 31 ALBERTA L. REV. 320 (1993).

108. Article 7 of the London Charter removed the defense of immunity for “head of state.”
See London Charter, supra note 25, art. 7. Further, Principle III of the “Nuremberg Principles”

48


Antecedents of the Rome Statute of the ICC Revisited

8. Letter of April 10, 1872. The English original of this letter has not been found. The
French translation given in the article by Rolin-Jaecquemyns (see next note) is reproduced in
the Appendix to this article. Many of Lieber’s remarks presage the position adopted by the
American delegation regarding the Rome Statute in 1998. For the American position on the
Rome Statute, see the statement of Ambassador D. Scheffer at the 9th meeting of the Sixth
Committee in the 53rd session of the General Assembly on October 21, 1998; and his The United
States and the International Criminal Court, 93 AM. J. INT'L L. 12 (1999).

9. G. Rolin-Jaecquemyns, Note sur le projet de M. Moynier, relatif & Vétablissement d'une
institution judiciaire internationale, protectrice de la Convention [de Genéve], 4 REVUE DE DROIT
INTERNATIONAL ET DE LEGISLATION COMPAREE, p. 325 (1872).

10. 1 Bevans 631; 203 CTS 227; Schindler and Toman, p. 63.

11. ICRC, Revised and New Draft Conventions for the Protection of War Victims: Remarks
and Proposals submitted by the International Committee of the Red Cross, Article 40 (1949).
H-P. Gasser to the author, November 16, 1998. Common Article 49/50/129/148, dealing with
penal sanctions in general, obliges a party to bring persons accused of grave breaches before
its own courts or, if it prefers, and in accordance with the provisions of its own legislation, to
hand such persons over for trial to another party concerned. As far as is known, there has
been no experience of that provision in practice. At the Rome Conference, the ICRC
changed its position and strongly supported the establishment of the International Criminal
Court. See the statements of the President of the ICRC, C. Sommaruga, and of its chief Legal
Adviser, Y. Sandoz, at the commencement of the Conference. It also submitted important
comments on the jurisdiction of the Court. See docs in A/CONF. 183/SR. 4, para. 68, and SR. 9,
para. 113. A check of the records of the Hague Conferences of 1899 and 1907 likewise discloses
that the idea of an international criminal jurisdiction was not raised on either occasion when
those Conferences were discussing rules for the conduct of warfare. The position of the Institute
of International Law was similar. Cf. its resolution of 1895 on penal sanction for breaches of the
Geneva Convention, op. cit. in the next note at p. 69.

12. INSTITUT DE DROIT INTERNATIONAL, TABLEAU GENERAL DES RESOLUTIONS
(1873-1956), pp. 180, 231 (H. Wehberg ed., 1957); Schindler and Toman, pp. 35 and 57.

13. See B. FERENCZ, I AN INTERNATIONAL CRIMINAL COURT: A STEP TOWARD WORLD
PEACE, p. 5 (1980) (hereafter: FERENCZ).

14. Legality of the Threat or Use of Nuclear Weapons, advisory opinion, International Court
of Justice Reports, 1996, pp. 226, 259 (para. 86). A partial explanation of the term is given in that
advisory opinion at p. 257 (para. 78). According to the Court, there are two cardinal principles in
humanitarian law: “The first is aimed at the protection of the civilian population and civilian
objects and establishes the distinction between combatants and non-combatants . . . According
to the second principle, it is prohibited to cause unnecessary suffering to combatants.” The term
probably originated in the International Committee of the Red Cross through the works of Jean
Pictet. See G. Abi-Saab, The Specifities of Humanitarian Law, STUDIES AND ESSAYS ON
INTERNATIONAL HUMANITARIAN LAW AND RED CROSS PRINCIPLES IN HONOUR OF JEAN
PICTET, p. 265 (Ch. Swinarski ed., 1984). For a recent assertion of the close tie between the
Universal Declaration of Human Rights and the international criminal court, see the letter of
the President of the International Tribunal for the former Yugoslavia, Judge Gabrielle
McDonald, to the personnel of ICTY distributed on the 50th anniversary of the Universal
Declaration, obtained from the ICTY website visited January 18, 1999, <www.un.org/icty/news/
Humanrights/unidechu.htm>.

15. 225 CTS 188. And see Department of State, The Treaty of Versailles and After:
Annotations of the Text of the Treaty (Publication 2724, Conference Series 92, 1947).

414


The Law of Armed Conflict as Soft Power

customized to the unique nature of law, but normative decisions are nonethe-
less classic examples of strategic choice.

The Process of Strategic Choice

The term “strategic choice” in the legal context implies decision making at
either the highest levels of government (as in the decision of whether to opt
into a treaty regime), or at a subordinate level when the decision results in na-
tional level fallout (as in determining whether to strike targets that may raise
questions of legality during a sensitive, and visible, conflict like Operation
Allied Force). Because law shapes, it is a strategic tool of national policy which,
as with any other tool, must be vectored. Strategic choice is the process by
which that vectoring occurs. It may take the form of opposing, supporting, or
suggesting changes toa draft treaty, deciding to employ force or use the military
in other coercive ways (or refraining therefrom), or conducting operations in a
way that raises law of armed conflict issues. Ultimately, the objective is to de-
termine how best to shape the international environment, including armed
conflict, to one’s own advantage.

Step 1: Identify the Interests. Determining one’s advantage begins by
identifying “national interests,” a term of art used to refer to a State’s highest
tier goals and concerns.!® In the vast majority of cases, they may be grouped
into one of three categories—security, well-being or value. Security interests
are those involving physical security, territorial integrity, sovereignty, and the
maintenance of a society’s core values, such as those expressed in the
Constitution. These interests are certainly implicated in the law of armed
conflict context, for to the extent law can shape war, it affects a State’s ability
to defend itself and its allies. The use of anti-personnel mines on the Korean
peninsula serves as apt illustration. North Korean numerical superiority poses a
quandary for those planning defense of South Korea. Mines, particularly in
light of the Korean geography and topography, can be used to channelize
invading forces such that the defenders can concentrate firepower upon them.
To agree to remove anti-personnel mines from the U.S.-South Korean
inventory altogether, as mandated by the Ottawa Treaty, would bé to deny this
option to those responsible for the defense of the country.

National interests based in well-being enhance quality of life. They often are
economic in nature (jobs, income, availability of goods, and so forth), but may
also extend to health care, educational opportunity, environmental quality,
leisure activities, convenience, and the like. Again, certain aspects of the law of

460


Antecedents of the Rome Statute of the ICC Revisited

a paragraph drawing the attention of the General Assembly to the fact that the implementation
of the principles of the Niiberg Tribunal and its judgment, as well as the punishment of other
international crimes which may be recognized as such by international multipartite conventions
may render desirable the existence of an international judicial authority to exercise jurisdiction
over such crimes. United Nations, General Assembly, Official Records (hereafter: GAOR),
second session, Sixth Committee (doc. A/332). And see Historical Survey, p.15. It is unusual, to
say the least, that the Final Act of the Rome Conference ignores completely this earlier action of
the General Assembly and its Committees, and that of the International Law Commission. Doc.
A/CONF. 183/10, July 17, 1998.

27. YEARBOOK OF THE INTERNATIONAL LAW COMMISSION, 1949, pp. 219, 238 (hereafter:
YBILC). And see its Report to the General Assembly, GAOR, fourth session, Supplement 10
(A/925), paras. 32-34, ibid., p. 283. At the same time, and indeed somewhat inconsequentially,
the Commission noted that the punishment of war crimes would necessitate a clear statement of
those crimes and consequently the establishment of rules which would provide for the case
where armed force was used in a criminal manner. The majority of the Commission was opposed
to the study of the problem at that stage. “It was considered that if the Commission, at the very
beginning of its work, were to undertake this study, public opinion might interpret its action as
showing lack of confidence in the efficiency of the means at the disposal of the United Nations
for maintaining peace.” Ibid., para. 18.

28. Question of International Criminal Jurisdiction, Report by Ricardo J. Alfaro, special
rapporteur (A/CN.4/13), YBILC, 1950-II, p. 1. Reproduced in II FERENCZ, p. 241. Article 34 of
the Statute of the International Court of Justice provides that only States may be parties in cases
before the Court.

29. Report, doc. A/CN.4/20, YBILC, ibid., p. 131. Reproduced in II FERENCZ, p. 259.

30. Report of the commission on the work of its second session, GAOR, fifth session,
Supplement 12 (A/1316), YBILC, 1950-II, at p. 378. Reproduced in II FERENCZ, p. 265. The
formal reference is to Article 34 of the Statute of the International Court of Justice. But in fact
more is required than that. Compare the qualifications required of a member of the International
Court of Justice as set out in Articles 2 and 9 of its Statute with those required of a member of the
International Criminal Court as set out in Article 36, paragraph 3, of the Rome Statute.

31. That resolution is reproduced in II FERENCZ, p. 312. The 17 Members of that Committee
were Australia, Brazil, China (ROC), Cuba, Denmark, Egypt, France, India, Iran, Israel, the
Netherlands, Pakistan, Peru, Syria, United Kingdom, United States of America and Uruguay.

32. Committee on International Criminal Jurisdiction, Report to the General Assembly,
GAOR, seventh session, Supplement 11 (A/2136). Reproduced in II FERENCZ, p. 337.

33. For the comments of governments, see doc. A/2186 and Add.1, GAOR, seventh session,
Annexes, Agenda item 52. Reproduced in II FERENCZ, p. 365. For the debate in the Sixth
Committee, see GAOR, seventh session, Sixth Committee, 321st to 328th meetings.
Reproduced in II FERENCZ, p. 382. That debate is summarized in the report of the Sixth
Committee on that agenda item (A/2275).

34. This resolution is reproduced in para. 3 of the report of the 1953 Committee. See next
note.

35. Report of the 1953 Committee on International Criminal Jurisdiction, GAOR, ninth
session, Supplement 12 (A/2645) (1954). Reproduced in I FERENCZ, p. 429. This Committee
was composed of Australia, Brazil, China (ROC), Cuba, Denmark, Egypt, France, India, Iran,
Israel, the Netherlands, Pakistan, Peru, Syria, United Kingdom, United States and
Uruguay—the same States that had participated in the previous Committee.

416


The Normative Framework of International Humanitarian Law

offence charges liability as a principal, e.g. genocide and complicity in
genocide.

[paragraph omitted]

213. Having regard to its Statute, the Chamber believes that the
offences under the Statute—genocide, crimes against humanity, and
violations of article 3 common to the Geneva Conventions and of
Additional Protocol II—have different elements and, moreover, are
intended to protect different interests. The crime of genocide exists to
protect certain groups from extermination or attempted extermination.
The concept of crimes against humanity exists to protect civilian
populations from persecution. The idea of violations of article 3
common to the Geneva Conventions and of Additional Protocol II is to
protect non-combatants from war crimes in civil war. These crimes in
relation to the same set purposes and are, therefore, never co-extensive.
Thus it is legitimate to charge these crimes in relation to the same set of
facts. It may, additionally, depending on the case, be necessary to
record a conviction for more than one of these offences in order to
reflect what crimes an accused committed. If, for example, a general
ordered that all prisoners of war belonging to a particular ethnic group
should be killed, with the intent thereby to eliminate the group, this
would be both genocide and a violation of common article 3, although
not necessarily a crime agairist humanity. Convictions for genocide and
violations of common article 3 would accurately reflect the accused
general’s course of conduct.

{paragraph omitted]

215. Conversely, the Chamber does not consider that any of the
genocide, crimes against humanity, and violations of article 3 common
to the Geneva Conventions and of Additional Protocol II are lesser
included forms of each other. The ICTR Statute does not establish a
hierarchy of norms, but rather all three offenses are presented on an
equal footing. While genocide may be considered the gravest crime,
there is no justification in the Statute for finding that crimes against
humanity or violations of common article 3 and Additional Protocol II
are in all circumstances alternative charges to genocide and thus lesser
include offences. As stated, and it is a related point, these offences have
different constituent elements. Again, this consideration renders
multiple convictions for these offences in relation to the same set of
facts permissible.

34


Paul C. Szasz

paraphtases of the indicated provisions of Protocol I, and those in Section 9 of
Geneva Convention I, generally merely substituting “The United Nations
force” for “The Parties to the conflict” or for the impersonal passive mode. On
the other hand, the sub-paragraphs in Section 8 rely more indirectly on Geneva
Convention III.

Potential Questions. The Secretary-General issued his Bulletin on his own
authority, deriving from his positions as “chief administrative officer” of the
United Nations®8and de facto Commander-in-Chief of UN Blue Helmet
operations. In doing so, he was also responding to the 1995 call of the General
Assembly’s Special Committee on Peacekeeping Operations®°—though not to
its recent request that it be consulted in the process.”

Incidentally, even though the Special Committee in this pronouncement re-
ferred to “guidelines,” which suggests a non-binding set of norms, its 1995 re-
port had referred to a “code of conduct” and the actual Bulletin is drafted in
that sense. It should be noted that the operative verbs in Sections 5-9 are all
“shall,” “shall not,” “is prohibited,” and similar expressions, thereby indicating
binding obligations or prohibitions. There is no doubt that as Com-
mander-in-Chief, the Secretary-General is authorized to express such com-
mands and that if any troop-contributing State should object to such rules, it
may not cause its troops to defy or disregard the Bulletin but can only withdraw
them from UN operations.

Although the Secretary-General had implicit authority to promulgate the
Bulletin, this is not the only way in which it could have been issued and given
legal force. Either the General Assembly or the Security Council could have
promulgated such a code and, indeed, if either should now do so, such code
would, at least as far as it specified, supersede that of the Secretary-General.
Equally, it would be possible for either the Assembly or the Council to nullify
the new Bulletin,?! but the Secretary-General must have calculated both that
this is most unlikely to happen and that the likelihood of either of those bodies
reaching an early agreement on any code of their own as also being minimal.

It is also clear that by its terms the Bulletin only applies to “United Nations
forces conducting operations under United Nations command and control.”72
It thus does not purport to apply to operations merely authorized by the Secu-
tity Council (such as those described earlier). Nor could the Secretary-General
have issued any code or even guidelines in respect of such operations, which
are not under his command; at most he can suggest to the Council that some
such rules be issued.?3 Only the Security Council could, as a condition for au-
thorizing any military operation to be carried out by States or by regional orga-
nizations, whether under Charter Article 42, 51, or 53, make it a condition that

519


Chivalry in the Air?

balance against classical law of war. I believe that Protocol I has done a disser-
vice to international law by weakening the all-important distinction between
combatants and non-combatants and by indirectly introducing ideas of just
and unjust wars into jus in bellum.

Concerning protection of airmen in distress, Protocol I has, however, clearly
enunciated and elucidated an important principle of customary international
law. The reason for the surprising clear headedness of the Conference on this
subject may well be the conservative nature of military legal advisers. While
fighting wars of “National Liberation” may seem to military men an esoteric
manifestation of UN political jargon, protection of aircrews is real life. At-
tending the Conference one felt that, on the issue of aircrews, it was lawyers
from JAG departments and military officers who set the tone. It is interesting in
this context to note that Egypt, at the later stages of the Conference, departed
ranks from the other Arab States and participated in the drafting of the provi-
sion. The close contact between the U.S. delegation and the Egyptian delega-
tion at the Conference may well have been a herald of the future Egyptian
association with the United States and the subsequent Egyptian-Israeli Peace
Treaty.

Notes

1. For example, the Basic Rules of International Humanitarian Law in Armed Conflict in BASIC
RULES OF THE GENEVA CONVENTIONS AND THEIR ADDITIONAL PROTOCOLS 7, International
Committee of the Red Cross (1983), (Reprint 1987).

2. Article 3 common to the four 1949 Geneva Conventions.

3. The term “airmen” is used to include “airwomen.” A term “airperson” is not in current
usage.

4. See, for example, BRITISH MANUAL OF MILITARY LAW, Part III 44, art. 119 [“It is lawful
to fire on airborne troops. . . Itis, on the other hand, unlawful to fire at other persons descending
by parachute from disabled aircraft.”]; INTERNATIONAL LAW—THE CONDUCT OF ARMED
CONFLICT AND AIR OPERATIONS, (US) DEPARTMENT OF THE AIR FORCE, para. 4-2 (e),
(1976) {“When an aircraft is disabled and the occupants escape by parachutes, they should not
be attacked in their descent.”); The LAW OF LAND WARFARE 17, (US) DEPARTMENT OF THE
ARMY FIELD MANUAL FM 27-10 (1956); ANNOTATED SUPPLEMENT TO THE COMMANDER'S.
HANDBOOK ON THE LAW OF NAVAL OPERATIONS, NWP 9 (REV.A)/FMFM 1-10 (1989);
HUMANITARIAN LAW IN ARMED CONFLICTS—MANUAL 442, at 44; (Federal Ministry of
Defence of the Federal Republic of Germany VR II 3 ed., 1992); OPERATIONS LAW FOR ROYAL
AUSTRALIAN AIR FORCE COMMANDERS 8-26, DI (AF) AAP 1003 (1994); LAW OF WAR
WORKSHOP 7-12, INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE
JUDGE-ADVOCATE GENERAL'S SCHOOL, UNITED STATES ARMY (1998); OPPENHEIM’S
INTERNATIONAL LAW 521, VOL. II, 7TM ed., (H. Lauterpacht ed., 1952); MORRIS GREENSPAN,
THE MODERN LAW OF LAND WARFARE 318 (1959); HOWARD S. LEVIE, THE CODE OF
INTERNATIONAL ARMED CONFLICT, VOL. I, 222 (1986); INGRID DETTER DE LUPIS, THE LAW

450


International Criminal Court

There is no provision in any of the Conventions for dealing with persons accused of a grave
breach with regard to whom the detaining State has no way of holding a fair trial (subpoenaing
foreign witnesses or documents, for example) and no High Contracting Party concerned has
bothered to make out a prima facie case. There have been no known actions under these
provisions for about fifty years now and it is not clear that they bear any relationship to reality.
The apparent failure of the ICC to step into the gap, if there is a gap, seems unaccountable and I
hope I misread the Statute.

9. ICC Statute, art. 53(1) (a) and (c). See also art. 53(2)(c).

10. ARISTOTLE, NICOMACHEAN ETHICS, in INTRODUCTION TO ARISTOTLE pp. 402-411
(1131-1134a) (Richard McKeon ed., Modern Library, 1947). There are, of course, other
definitions of parts of what some analysts consider “justice.”

11. ARISTOTLE, NICOMACHEAN ETHICS 295(H. Rackham trans., Loeb Classical Library,
1939). The point is rather obscurely made and it is necessary to read much more of Aristotle’s
ETHICS and POLITICS to understand it. See RUBIN, ETHICS AND AUTHORITY IN
INTERNATIONAL LAW, supra note 3, at 6-8, for a start, with footnotes.

12. “Some hold that the whole of justice is of this [natural] character. What exists by nature
(they feel) is immutable, and has everywere the same force: fire burns both in Greece and in
Persia; but conceptions of justice shift and change.” ARISTOTLE, NICOMACHEAN ETHICS, supra
note 11, at 294 (Greek)/295 (English). Aristotle goes on to imply that perhaps to the gods there is
an identity between natural law and justice, but human conceptions of justice, being mutable,
and human (positive) law being uttered at the will of the legislator, who is human and therefore
fallible, is not capable of such precision. The subject is worth deeper study than this essay will
allow.

13. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA (1781-1785), Query 18, as
quoted in BARTLETT'S FAMILIAR QUOTATIONS (14th ed. 1968), at 471a.

14. See KARL POPPER, THE OPEN SOCIETY AND ITS ENEMIES (1950). The major theme of
this magisterial work is that Plato’s ideal “Republic” rests on a fixed social and political hierarchy
tun by guardians, while the non-fascist ideals of our time dictate a “republic” responsive to its
ever-changing constituencies and their value systems. Stability is not the highest value in our
time. Plato’s ideal notion was obviously inconsistent with the legal orders of the “States” of his
own time, where legal power was, as it is today, frequently the result of the interplay of many
other normative orders than positive law and morality. In PLUTARCH, LIFE OF DION, and
PLATO, LETTER VIL, it is possible to see the clash between Plato’s notion of a government based
on the “natural law” of inborn talent and education on the one side, and the realities of
government based on “divine law” theories of inheritance and the “positive law” of amoral
constitutions and “comity”-based divisions of authority. Dionysius II purported to apply Plato’s
theories of governance to his own realm in Sicily, and failed as the realities of court intrigue
(“comity”2), divine law, his very human yearning for absolute control (“natural law”?), and other
normative orders imposed themselves on his decisions.

15. PLATO, THE REPUBLIC, Book I, 346e-347, in PLATO, THE REPUBLIC 88-89 (Desmond
Lee trans., 2nd rev'd ed., Penguin, 1974).

16. I say this harshly because of the notable application of political polemics to the discussions
by some advocates of the ICC. See, for example, the comments by Jerome Shestack and David
Stoelting, respectively President of the American Bar Association and Chairman of its
Coordinating Committee on the ICC, dismissing as “myth” the bases for various objections to the
ICC. 1 ON THE RECORD 21, July 16, 1998. In my opinion, Shestack and Stoelting misrepresent
for polemical purposes the objections they mention and dismiss even those few as if they were all
and without serious examination.

436


Jus Pacis ac Belli?

The evasive attitude taken by the members of the League towards the war
between Bolivia and Paraguay, and still more so towards the “war in dis-
guise”65 in Manchukuo, led to a situation in which illegal war under the Cove-
nant was limited to cases in which the members of the League were prepared to
say so0.66

Similarly, the use of the term “war” in the Kellogg Pact enables States to ex-
ercise their full discretion in deciding whether the use of armed force by a State
or even contentions of States through their armed forces are to be considered
as wars within the meaning of the pact.6? Furthermore, the United States Sec-
retary of State himself thought it necessary to affirm in the correspondence pre-
ceding the conclusion of the pact that each signatory alone would be
“competent to decide whether circumstances require recourse to war in
self-defense.”68 Thus, again, illegal war was limited to armed contentions be-
tween States which the signatories cared to consider as such.

State practice went still further in its obliteration of the few distinguishing
marks that were left between peace, the status mixtus and war. If, in the case ofa
measure taken within the status mixtus, a State is free to consider such a step as
an act of war, it can in advance sign away its discretion to exchange the status
mixtus for that of war. Thus, it is stipulated in the Treaty of Versailles that
measures which may include military reprisals’? should not be regarded by Ger-
many as acts of war. A similar clause is contained in the Hague Agreements of
1930.7! In the declarations exchanged January 20, 1930, Germany acknowl-
edges that, in case of an intentional default, “it is legitimate that, in order to en-
sure the fulfillment of the obligations of the debtor Power resulting from the
New Plan, the creditor Power or Powers should resume their full liberty of
action.”

Yet even this use of the freedom of contract was surpassed by the
self-contradictions of the appeasement period. On the one hand, the Powers
assembled at Nyon upheld the fiction that the Spanish War was not an interna-
tional war and most of those States refused to grant recognition as belligerents
to the insurgents. On the other hand, they did not base the Nyon Agreement
on the obvious inadmissibility of sinking foreign merchantmen in time of peace.
In order to enable the totalitarian aggressors to save their faces, they assimi-
lated these acts of illegal intervention to piratical acts by submarines and air-
craft of unknown Powers and arraigned the “pirates” for their violations of Part
IV of the Treaty of London of 1930, i.e., rules applicable in time of war between
sovereign States.?2

It cannot, therefore, be maintained that the multilateral agreements con-
cluded in pre-1914 days and during the era of “power politics in disguise” have

498


Howard S. Levie

4.This Article appears in the portion of the Treaty concerned with the Covenant of the
League of Nations.
5.2 Bevans, supra note 3, at 73; Il Israel, supra note 3, at 1306.
6.2 Bevans, supra note 3, at 136-137; II Israel, supra note 3, at 1389.
7. JAMES F. WILLIS, PROLOGUE TO NUREMBERG 98-112 (1982).
8.2 Bevans, supra note 3, at 48; IV Israel, supra note 3, at 1274.
9.1 MANLEY O. HUDSON, INTERNATIONAL LEGISLATION 530 (1931).
10.2 Bevans, supra note 3, at 732; IV Israel, supra note 3, at 2393.
11.Nazi Conspiracy and Aggression: Opinion and Judgment 48 (GPO, 1947); Report of
Robert H. Jackson, United States Representative to the International Conference of Military
Trials, Doc. LX, at 422, 423 (1949) {hereinafter Jackson]; 1 The Tokyo Judgment 46 (B.V.A.
Roling & C.P.Ruter eds., 1977). However, it did not prevent a series of wars such as that between.
Bolivia and Paraguay (the Chaco War); the Italo-Abyssinian War; etc.
12. WAR CRIMES COMMISSION, supra note 2, at 88. See, for example, the Moscow
Declaration of 1945, op. cit., at 107.
13. WAR CRIMES COMMISSION, supra note 2, at 89-90.
14. WAR CRIMES COMMISSION, supra note 2, at 95.
15. WAR CRIMES COMMISSION, supra note 2, at 102-103.
16.3 Bevans, supra note 2, at 1153.
17. Ibid. at 1179, 1186.
18.59 Stat. 1544; Jackson, supra note 11, at 420 and 422 (1949); 3 Bevans, supra note 2, at
1238 and 1240.
19.The Charter of the International Military Tribunal for the Far East, established by
proclamation issued on January 19, 1946, by General Douglas MacArthur as Supreme
Commander for the Allied Powers (SCAP), while differing in wording, provided for a similar
jurisdiction. See Article 5, Charter of the International Military Tribunal for the Far East,
Department of State, Publication 2613, Trial of Japanese War Criminals 39, 40 (1946); 4
Bevans, supra note 1, at 20.
‘Once again persons who were charged with having conimitted ordinary war crimes were
to be and were tried by national courts both in Europe and in Asia.
20. S/RES 808 (1993), Feb. 22, 1993.
21.S/25704, May 3, 1993; 32 LL.M. 1163 (1993).
22.S/RES 827 (1993), May 25,1993; 32 I.L.M. 1203 (1993).
23.32 LL.M. 1194, (S/RES 955 (1994), Nov. 8, 1994. S/RES/955, Nov. 8, 1954, 33 LL.M.
1600 (1994), created a somewhat similar Tribunal for Rwanda.)
24.UNGA/RES 47/33 Nov. 25, 1992. The draft Final Act of the Rome Conference
(A/CONF.183/2/Add.1, at 168) contained the following summary of the actions of the General
Assembly in this regard:

3. Previously, the General Assembly, in its resolution of 44/39 of 4 December 1989,
had requested the International Law Commission to address the question of establishing
an international criminal court; in resolutions 45/41 of 28 November 1990 and 46/54 of 9
December 1991,.invited the Commission to consider further and analyse the issues
concerning the question of an international criminal jurisdiction, including the question
of establishing an international criminal court; and in resolutions 47/33 of 25 November
1992 and 45/31 of 9 December 1993, requested the Commission to elaborate the draft
statute for such a court as a matter of priority.

259




Yoram Dinstein

40. Ibid., 46.

41. Washington Declaration, July 25, 1994, 54 FACTS ON FILE YEARBOOK 526, id. (1994).

42. The text is published in 7 MIDDLE EAST CONTEMPORARY SURVEY 690 (1982-1983).

43. The requirement of ratification of the instrument—as a condition precedent to its entry
into force—appears in Article 10(1), ibid., 692.

44. Ibid., 691. See also 43 FACTS ON FILE YEARBOOK 353, id. (1983).

45. Egypt-Israel, Treaty of Peace, supra note 36, at 363. See also ibid., 364 [Article III(3)], 367
(Annex I, Article 1).

46. On the distinction between positive and negative peace, see H. Rumpf, The Concepts of
Peace and War in International Law, 27 GERMAN YEARBOOK OF INTERNATIONAL LAW 429,
431-433 (1984).

47. Express recognition is specifically agreed upon in Article III of the Egyptian-Israeli Treaty
of Peace, supra note 36, at 363-364. But there is every reason to believe that recognition would
have been implied from the treaty in any event. Cf. H. LAUTERPACHT, RECOGNITION IN
INTERNATIONAL LAW 378 (1947).

48. See L. OPPENHEIM, 2 INTERNATIONAL LAW 607 (7th ed., by H. Lauterpacht, 1952).

49. W.G. Grewe, Peace Treaties, 4 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 102,
105 (R. Bernhardt ed., 1982).

50. Egypt-Israel, Camp David Agreements, 1978: A Framework for Peace in the Middle East,
17 INTERNATIONAL LEGAL MATERIALS 1466 (1978); Framework for the Conclusion of a Peace
Treaty between Egypt and Israel, ibid., 1470.

51. See LORD MCNAIR, THE LAW OF TREATIES 207, 209 (1961).

52. See H. LAUTERPACHT, 1 INTERNATIONAL LAW 354 (E. Lauterpacht ed., 1979).

53. Vienna Convention on the Law of Treaties, 1969, [1969] UNITED NATIONS JURIDICAL
YEARBOOK 140, 153.

54. Fisheries Jurisdiction Case (Jurisdiction of the Court), [1973] I.C.J. REPORTS 3, 14.

55. Report of the International Law Commission, 18th Session, [1966] II YEARBOOK OF THE
INTERNATIONAL LAW COMMISSION 172, 247.

56. Ibid., id.

57. I. SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 180 (2"4 ed., 1984).

58. Vienna Convention, supra note 53, at 159.

59. P. REUTER, INTRODUCTION TO THE LAW OF TREATIES 140 (J. Mico & P.
Haggenmacher trans., 1989).

60. See L. OPPENHEIM, 1(2) INTERNATIONAL LAW 1292 (9th ed., by R. Jennings & A.
Watts., 1992).

61. H. Waldock, Second Report on the Law of Treaties, [1963] Il YEARBOOK OF THE
INTERNATIONAL LAW COMMISSION 36, 52.

62. H.G. de Jong, Coercion in the Conclusion of Treaties, 15 NETHERLANDS YEARBOOK OF
INTERNATIONAL LAW 209, 227 (1984).

63. Vienna Convention, supra note 53, at 152.

64. Ibid., id.

65. Ibid., 158.

66. See SINCLAIR, supra note 57, at 160-161.

67. Vienna Convention, supra note 53, at 157.

68. See C.L. Rozakis, The Law on Invalidity of Treaties, 16 ARCHIV DES VOLKERRECHTS 150,
168-169 (1973-1975).

69. See E. Jiménez de Aréchaga, International Law in the Past Third of a Century, 159 RECUEIL
DES COURS 1, 68 (1978).

155


Making Law of War Treaties

the Chief of Naval Operations, Commandant of the Marine Corps, President of the Naval War
College, and other senior Navy officials) to the House of Representatives stated in part that “The
board is of the opinion that submarines are an essential part of our national defense...” It
defined the object of the Navy to be “first, to destroy or blockade the enemy fleet in order;
second, to protect our commerce; third, to destroy the enemy’s commerce in order; fourth, to
bring economic pressure on him...” W. Anderson, Submarines and the Disarmament Conference,
U.S. NAV. INST. PROC. (January 1927), at 54.

58. Its purposes can be summarized in the principal treaties concluded: (I) Treaty for the
Limitation of Armament (2 Bevans 351), a five-power (U.S., France, Great Britain, Italy, Japan)
treaty of ten-year duration which addressed capital ship (battleships and aircraft carriers)
strength; (II) Treaty Relating to the Use of Submarines and Noxious Gases in Warfare
(“Submarine Treaty,” III Malloy 3116, Schindler & Toman, supra note 1, at 1195), which (as
summarized in this article) endeavored to regulate submarines while prohibiting the use of
chemical weapons; (Ill) Treaty Relating to Insular Possessions and Insular Dominions in the
Pacific Ocean (2 Bevans 332), a treaty of ten-year duration between the British Empire, France,
Japan and the United States for amicable relations with respect to their respective Pacific
territories; (IV) Treaty Relating to Principles and Policies to be Followed in Matters Concerning
China (2 Bevans 375), a treaty between the United States, Belgium, British Empire, China,
France, Italy, Japan, the Netherlands and Portugal, relating to the “Open Door” permitting trade
with China; and (V) Treaty Between the Nine Powers Relating to Chinese Customs Tariff (2
Bevans 381). The only treaty that failed to enter into force was the Submarine Treaty.

59. The precise tonnage ratio for capital ships was 525,000 tons each for the United States
and Great Britain and 315,000 tons for Japan, with the Japanese authorized to substitute the
older battleship Settsu, commissioned in 1912 as one of Japan’s first dreadnoughts, for the newer
Mutsu, completed nine days after the opening of the Washington Naval Conference; Douglas,
supra note 52, at 115; H. JENTSCHURA, D. JUNG AND P. MICKEL, WARSHIPS OF THE IMPERIAL.
JAPANESE NAVY, 1869-1945 (1977), at 24-25, 28. An ironic but fortuitous result of the
Washington Conference was that the agreement to scrap capital ships permitted conversion
from battle cruiser to aircraft carrier of USS Lexington (CV-2) and USS Saratoga (CV-3),
providing a significant boost to U.S. naval aviation, which, with the submarine, was a primary
force in the subsequent victory over Japan in the Pacific. A. TURNBULL AND C. LORD,
HIsTORY OF UNITED STATES NAVAL AVIATION (1949), at 209-211; R. STERN, THE
LEXINGTON CLASS CARRIERS (1993), at 27. C. MELHORN, TWO-BLOCK FOX: THE RISE OF
THE AIRCRAFT CARRIER, 1911-1929 (1974), concludes (p. 85) that “In terms of attitudes and
concessions on the part of the Contracting Powers, naval aviation emerged from the
[Washington] conference with something close to a blank check.” The United States was not
the only beneficiary. For the same reason, the Japanese battleship Kaga and battle cruiser Akagi
were completed as aircraft carriers; JENTSCHURA, et al., supra, at 42-45, while Great Britain
converted the cruisers Courageous and Glorious into carriers; R. CHESNEAU, AIRCRAFT
CARRIERS OF THE WORLD (1984), at 98.

60. G. WHEELER, ADMIRAL WILLIAM VEAZIE PRATT, U.S. NAVY (1974), at 177, 179, 181}
Douglas, supra note 52, at 92-93, 113-115; DAVIS, supra note 38, at 292-293; PELZ, supra note
57, at 1; SPROUT AND SPROUT, supra note 56, at xi-xii.

61.U.S., Great Britain, Japan, France, and Italy, respectively. Italy's only demand was parity
with France. Douglas, supra note 52, at 115-117.

62. ROSKILL, supra note 53, at 324; Douglas, supra note 52, at 108-109, 130, 194-195; L.
Douglas, The Submarine at the Washington Conference of 1921, NAV. WAR COLL. REV. XXVI, 5
(March-April 1974), at 86, 87. “In an assumed war against the world,” wrote Assistant Secretary

374


Bin Cheng

and in particular its Article IV, in order to clarify their impact on the military
use of outer space.

Clarification of the Terms “Outer Space” and “Outer Void Space”

First of all, it may be necessary to clarify the meaning of the term “outer
space” and to introduce the term “outer void space.” Up to and including the
Declaration of Legal Principles Governing the Activities of States in the Explo-
ration and Use of Outer Space in General Assembly Resolution 1962, adopted
on December 13, 1963,’ the United Nations, including its Committee on the
Peaceful Uses of Outer Space (COPUOS), where international space law was
constantly being discussed with a view to its progressive development, always
referred to outer space separately from celestial bodies. For instance, Article 3
of the Declaration provides:

“Outer space and celestial bodies are not subject to national appropriation. . . .”
(emphasis added).

According to this terminology, extraterrestrial space consists, therefore, of
“outer space” and “celestial bodies.” Celestial bodies are thus treated as a cate-
gory apart from outer space as such, as illustrated in figure 1. However, since
the 1967 Space Treaty, which in other respects follows the 1963 Declaration
closely in form and in substance, the United Nations always speaks of “outer

Figure 1: Meaning of “Outer Space” Up to the 1963 Resolution

QUIERSACE =} | CELESTALBODES

83


Ruth Lapidoth

although the commission envisaged by the convention is a fact-finding one, it
also has some ingredients of conciliation (a formal impartial commission to in-
vestigate a dispute and to suggest possible ways to settle it). Moreover, a study
of the various precedents shows that in certain other instances fact-finding
commissions have submitted reports that actually included conclusions that
went beyond mere fact-finding.8°

Like all other diplomatic means for the settlement of disputes, fact-finding
does not lead to a binding decision. However, under the 1997 Watercourses
Convention, the parties have an obligation to consider the report in good faith.
That is probably a general obligation which applies even in cases in which it is
not expressly mentioned.

The text includes only a few guidelines as to how the commission should
proceed, and authorizes it to determine its own procedure. There are certain
rules which may be helpful for any fact-finding organ:

A fact-finding mission should not begin its quest without clearly defined terms of
reference that circumscribe the precise area in which it is to operate. These terms
of reference should be neutrally stated in the form of questions of fact. The
mission should insist that within this area it be free to apply the best available
tools of perceptive objectivity, insulated from socio-political passions and
assumptions. Ordinarily, the members should be distinguished individuals not
beholden to governments—certainly not to governments with a direct stake in
the issues. Appointment to a fact-finding panel should be irrevocable until the
completion of the mission. Evidence should be taken in such a way as to facilitate
informed cross-examination and rebuttal, and at the same time to protect
witnesses against reprisal. The panel should have its own staff capable of
researching issues as well as preparing agendas and itineraries independently.
The fact-finders’ on-site freedom of movement and access should be assured ab
initio. Draft findings should be circulated to the parties for comment. The final
product should accurately reflect the result, whether it is a consensus, a majority,
or a wide diversity of views as to the facts. Members should be free to write
separate or dissenting reports.81

Private Remedies

So far we have dealt with the prevention and solution of inter-state con-
flicts. The 1997 Watercourses Convention also deals to some extent with pri-
vate remedies. Under Article 32, entitled, “Non-discrimination,” natural as
well as juridical persons who have suffered or may suffer significant
transboundary harm as a result of activities related to an international water-
course, should be granted equal access to, and non-discriminatory treatment

241


The Normative Framework of International Humanitarian Law

two requirements makes the crime applicable to both State and non-State ac-
tors; and also applicable in time of peace and war, without any connecting link
to the initiation or conduct of war or to war crimes.

Other than these two formulations, “crimes against humanity” never have
been the subject of a specialized international convention, thus leaving some
doubt as to some of the specific contents of that category of international
crimes and as to their applicability to non-State actors.5? This is evident in the
eleven international instruments that have been elaborated between 1907 and
1998 and that define, in different though similar ways, “crimes against human-
ity.” Thus, “crimes against humanity” remain part of customary law, with a
mixed baggage of certainty as to some of its elements, and uncertainty as to
others and to their applicability to non-State actors.

A textual comparison of these formulations evidences the differences be-
tween them. It also evidences the overlap that exists between genocide and war
crimes relative to the protected targets and prohibited conduct.

Genocide

In defining protected groups the Convention on the Prevention and Punish-
ment of the Crime of Genocide, specifies only three, namely: national, ethnic,
and religious groups. This enumeration excludes political and social groups,38
an omission that was no accident. The Convention was elaborated in 1948,
and at that time the USSR was not desirous of having political and social
groups included in those being given protection because Stalin and his regime
already had begun their purges which targeted these very groups.>? As a conse-
quence of this omission, the killing of an estimated one million persons in Cam-
bodia by the Khmer Rouge between 1975 and 1985, almost forty percent of the
population, can be argued to have not constituted genocide because the perpe-
trators and victims were of the same ethnic group and because the targeted vic-
tim group was a political group which is not covered by the Convention.

This gap in the Genocide Convention is well-known, but at no time since
1948 has there been any effort to fill it. In fact, three opportunities were never
seized. The Statutes of the ICTY®! in 1993 and the ICTR® in 1994 were
adopted with the same formulation as Article II of the Genocide Convention.
Later, in connection with the elaboration of the Statute of the International
Criminal Court, the Preparatory Committee failed to support any changes to
Article II of the Genocide Convention.®

As stated, the Genocide Convention protects three groups, national, ethnic,
and religious. It also specifies that there must be a specific “intent to destroy

8


Naval Blockade

1939, may be required to discharge in a British or Allied port any goods on board
laden in such enemy port.

2. Every merchant vessel which sailed from a port other than an enemy port after
the 4th day of December, 1939, having on board goods which are of enemy origin
or are enemy property may be required to discharge such goods in a British or
Allied port.

3. Goods discharged in a British port under either of the preceding Articles shall
be placed in the custody of the Marshal of the Prize Court, and, unless the Court
orders them to be requisitioned for the use of His Majesty, shall be detained or
sold under the direction of the Court. The proceeds of goods so sold shall be paid
into the Court.

On the conclusion of peace such proceeds and any goods detained but not
sold shall be dealt with in such manner as the Court may in the circumstances
deem just, provided that nothing herein shall prevent the payment out of
Court of any such proceeds or the release of any goods at any time (a) ifit be
shown to the satisfaction of the Court that the goods had become neutral
property before the date of this Order, or (b) with the consent of the proper
officer of the Crown.

4. The law and practice in Prize shall, so far as applicable, be followed in all cases
arising under this Order.

5. Nothing in this Order shall affect the liability of any vessel or goods to seizure
or condemnation independently of this Order.

6. For the purposes of this Order. the words “goods which are of enemy origin”
shall include goods having their origin in any territory under enemy occupation
or control, and the words “goods which [. . .] are enemy property” shall include
goods belonging to any person in any such territory.

7. Proceeding under this Order may be taken in any Prize Court having
jurisdiction to which the Prize Court Rules, 1939, apply.

8. For the purposes of this Order the words “British port” mean any port within
the jurisdiction of any Prize Court to which the Prize Court Rules, 1939, apply.57

In view of that practice, Frits Kalshoven has concluded that

[...] developments in the techniques of naval and aerial warfare have turned the
establishment and maintenance of a naval blockade in the traditional sense into

210


Naval Blockade

blockade ordered by the Security Council will, of course, have to be declared.
The respective resolution will at least contain all the elements that are pre-
scribed for a belligerent blockade (geographical limits, duration). The practice
of the Security Council also demonstrates that, for humanitarian reasons, cer-
tain goods essential for the survival of the civilian population may be trans-
ported to a blockaded area.!29 If feasible and if not counterproductive to the
aim pursued (restoration of international peace and security), the Security
Council will also ensure that access to ports and coasts of third States is not
barred. However, an important exception applies. Despite allegations to the
contrary, 13° in the case of enforcement measures under Chapter VII, there is
no room for neutrality. Therefore, third States may well be affected by a block-
ade ordered pursuant to Article 42. Affected States, according to Article 50,
have the right to “consult the Security Council with regard to a solution of
those (= economic) problems.” A second exception concerns the applicability
of the doctrine of continuous voyage. Situations are conceivable in which the
Security Council is forced to order the capture of vessels (and aircraft) at great
distance from the blockade area if international peace and security cannot oth-
erwise be restored. Finally, in view of the binding force of the decisions taken
under Chapter VII and of the ultimate goal of maintaining international peace
and security, a blockade pursuant to Article 42 will not have to fully comply
with the principle of effectiveness. !31

It must, however, be realized that, in view of the lack of UN armed forces
proper, a blockade ordered by the Security Council will always be maintained
and enforced by the members of the United Nations and their (national) armed
forces. Those forces are bound by the rules and principles of the maritime jus in
bello that, according to the position taken here, has to be considered an “order
of necessity.” That legal order has to be conceived of as primarily formulating
duties which, as a minimum, have to be observed if States resort to the use of
armed force.!32 In other words, the restrictions contained in the rules of war
are, in principle, the most that international law is ready to accept when States
are unwilling or unable to refrain from the use of armed force. This means that,
when ordered to maintain and enforce a blockade pursuant to Article 42, they
may only deviate from the rules of blockade law described above if there is an
express decision by the Security Council to that effect. Whether and to what
extent the Security Council is entitled to exempt member States from the re-
strictions of the maritime jus in bello will depend on the circumstances of each
case. In that regard, the Security Councils discretion is wide but—especially
with regard to the elementary considerations of humanity—not unlimited.

218


The Normative Framework of International Humanitarian Law

Until a more complete code of laws of war has been issued, the High Contracting
Parties deem it expedient to declare that, in cases not included in the
Regulations adopted by them, the inhabitants and the belligerents remain under
the protection and the rule of the principles of the law of nations, as they result
from the usages established among civilized peoples, from the laws of humanity,
and from the dictates of the public conscience.!?

After the war, in 1919, the Allies established a Commission to investigate
war crimes!8 which thereafter found that the killing of Armenians by the Turks
around 1915!9 constituted “crimes against the laws of humanity.” The United
States and Japan strongly objected to the concept and insisted on having their
dissenting positions reflected in the Report.?0 In 1923, after the failure of ratifi-
cation of the 1919 Treaty of Sévres,?! which required that the Turkish govern-
ment turn over to the Allies those responsible for such crimes, the Treaty of
Lausanne”? excluded such a provision and a protocol was attached, giving am-
nesty to the Turks who had committed the crime irrespective of whether they
acted as State actors or non-State actors.?3 By 1942, the Allies realized that
they would have to revisit that crime,?# and in 1945 the London Charter pro-
vided, in Article 6(c), for the prosecution of those who committed “crimes
against humanity:”

Crimes against humanity: namely, murder, extermination, enslavement,
deportation, and other inhumane acts committed against any civilian
populations, before or during the war; or persecutions on political, racial or
religious grounds in execution of or in connection with any crime within the
jurisdiction of the Tribunal, whether or not in violation of the domestic law of
the country where perpetrated.25

But that article linked Article 6(c) crimes to “crimes against peace” (the initia-
tion and conduct of war) as defined in Article 6(a) and to “war crimes” as de-
fined in Article 6(b). This meant that all “crimes against humanity” committed
before the initiation of the war, between 1932 and 1939, were not
prosecutable.26

The war-connecting link was removed in a 1950 Report of the International
Law Commission (ILC).2? The question that remained, however, was the le-
gally binding effect of such a report.?8 On its face, a report of the ILC has no
binding effect, unless it is deemed to be the embodiment of customary interna-
tional law, in which case the ILC report can be seen as the progressive codifica-
tion of customary international law and therefore binding as to its content.
However, the practice of States remains an important element in addition to

4


Bin Cheng

Powers in pouring astronomical amounts of money into the space programmes
were first and foremost military, and from that point of view their expectations
were amply vindicated in no time.!5 Thus, although the launching of Sputnik I in
1957 was part of the scientific International Geophysical Year programme, !6
there is little doubt as to the effect Sputnik I was perceived to have on the world’s
balance of military power. Whilst, until Sputnik I, the Soviet delegate sat alone
with delegates of four Western Powers in the five-Power Disarmament Sub-
Committee of the Conference of Foreign Ministers, two years after Sputnik I it
was decided to replace this Sub-Committee with a ten-Power Disarmament
Committee consisting of five NATO States and five Warsaw Pact States—in
other words, parity instead of being outnumbered one to four!!? After all, if a
State can put several tons of hardware into earth orbit, it is demonstrably capable
of sending missiles with nuclear warheads practically anywhere in the world, with-
out the need of foreign military bases or an extensive navy. To expect the space
Powers or near-space Powers, after acquiring or about to acquire space capability,
to abandon the use of outer space for military purposes was wholly unrealistic.

Secondly, as Senator Gore quite rightly pointed out, disarmament in outer
space cannot take place in isolation from the problem of disarmament on earth.
The Soviet Union took the same line, and for a long time declined to discuss the
control of the military use of outer space in COPUOS, maintaining that it fell within
the jurisdiction of the Disarmament Commission.!8 Thus in the negotiations of the
1967 Space Treaty, attempts by some delegations to bring about a complete de-
militarisation of outer space were clearly rejected by both superpowers.!?

The problem for the superpowers was how, from the standpoint of public
relations, not merely to not appear to flatly reject the emotive demand that
was sweeping the world for an outer space devoted exclusively to peaceful uses,
but also to appear as if to endorse it, while, from the legal point of view, fully
maintaining their rights to use outer space for military purposes. As mentioned
before, the two superpowers each developed their own way of accomplishing
the seemingly impossible. For the Soviet Union, with its closed society, totali-
tarian regime, and strict control over the media, the solution was relatively sim-
ple.?° It had in fact jumped on the peace bandwagon. It even submitted a
proposal in the United Nations to prohibit the use of outer space for military
purposes.?! All it had to do, as it was wont to, was pretend that all its military
space missions were for scientific, and therefore solely peaceful, purposes, while
of course resisting all suggestions of verification. Thus, in the beginning, it pre-
tended that it did not use satellites for military reconnaissance and maintained
that it was illegal to “spy” from outer space, while of course it was doing so all
the time.?2 For the United States, while one cannot rule out that it might have

87


Ved Nanda

142. Michael F. Glennon, The New Interventionism—The Search for a Just International Law,
FOREIGN AFFAIRS, May/June 1999, at 2.

143. See generally Ved Nanda, et al., Tragedies in Somalia, Yugoslavia, Haiti, Rwanda and
Liberia—Revisiting the Validity of Humanitarian Intervention Under Intemational Law—Pt. II, 26
DENV. J. INTL L. & POL'Y 827 (1998).

144. See supra notes 91-98 and accompanying text.

145, Supra note 134.

146. Secretary General's Address, supra note 134, at 4.

147. 1d.

148. Id.

149. See Ved Nanda, et al., supra note 143, at 827.

150. See Exodus From Kosovo Underway—U.N. Reports 195,000 Serbs Have Fled the Province
(According to a UNHCR Report), ABCNews.com, Aug. 25, 1999, <htep://abcnews.go.com/sec-
tions/world/DailyNews/Kosovo Serbs Flee 990825.htmI>.

337


Shabtai Rosenne

session and decided to appoint a rapporteur to report to that next session. At its
33rd meeting it appointed two rapporteurs, R.J. Alfaro (Panama) and Judge
A.EF. Sandstrém (Sweden), to prepare working papers on the topic.2”? The
two working papers were duly presented. Each examined the two aspects men-
tioned specifically in the General Assembly’s resolution, namely the general
question, and the particular aspect of the employing of the International Court
of Justice for this purpose.

Alfaro?8 dealt mainly with the evolution of the idea of an international crim-
inal jurisdiction, without adding much to the Secretariat’s Historical Survey.
He was unhesitatingly of the opinion that instituting an international criminal
jurisdiction was both desirable and feasible “for the prevention and punish-
ment of international crimes.”

Tf the rule of law is to govern the community of States and protect it against the
violations of the International public order, it can only be satisfactorily established
by the promulgation of an international penal code and by the permanent
functioning of an international criminal jurisdiction (para. 136).

Regarding the International Court of Justice, he pointed out that an
amendment to Article 34 of the Statute would be required to establish a
chamber of the Court with power to try States and individuals. With that
proviso, he would answer the question in the affirmative (para. 134).

Sandstrém29 concentrated more on the possibility of establishing an inter-
national criminal judicial organ, carefully weighing the pros and cons. His con-
clusions were negative:

39. In my opinion the cons outweigh by far the pros. A permanent judicial
criminal organ established in the actual organization of the international
community would be impaired by very serious defects and would do more
harm than good. The time cannot as yet be considered ripe for the
establishment of such an organ.

40. If such a judicial organ is to be established, it is submitted that, in view of the
defects with which it would be impaired, it would be preferable to provide for
the possibility of establishing a Criminal Chamber of the International Court
of Justice in case of need. The defects would then be less noticeable, and
such a possibility could perhaps in a given case meet the criticism voiced
against the Niimberg trial.

The Commission dealt with the matter at its 41st to 44th meetings during its
second session (1950). After votes, the Commission decided that the

395


Index

J

JAPAN, 4, 36, 75, 135, 248, 342, 346-48, 352-57, 360-64
Submarine Warfare, 360-61
JEFFERSON, PRESIDENT THOMAS, 425
JORDAN, 184, 447
Israel, 135-36, 141-42, 145, 151
JURISDICTION
See also STATUS-OF-FORCES AGREEMENTS (SOFAs)
International Crime, 395, 545, 552
International Criminal Court, 247
International Criminal Tribunal for the Former Yugoslavia (ICTY), 15, 408
Nationality of the Accused, 552
Territorial, 551
Universal, 14, 310, 422, 472, 539-53
See also INTERNATIONAL CRIME
JUS AD BELLUM, 57, 60, 62, 65, 68, 72, 204, 212, 279, 461, 463
JUS COGENS, 1-2, 11, 265-68, 273, 275-77, 291, 409, 514, 545
See also under AGGRESSION; CRIMES AGAINST HUMANITY; CRIMES AGAINST PEACE;
GENOCIDE; PIRACY; SLAVERY; TORTURE; WAR CRIMES
Ambiguities and Gaps, 2
United Nations Charter, 264, 265-68
JUS CONTRA BELLUM, 57, 62-66, 70-73, 76-77

K

KELLOGG-BRIAND PACT (Treaty of Paris) (1928), 249, 432, 498
KOREA, NORTH (Democratic People’s Republic of Korea), 211, 270, 460-65
KOREA, SOUTH (Republic of Korea), 240, 460-68, 544-53
KOREAN WAR, 142, 211, 508

Armistice, 142

Blockade, 211
KOSOVO, 179, 185, 186, 189, 191, 271, 310, 313-25, 327-31, 461, 466, 470, 512
KUWAIT, see GULF WAR

L

LAND MINES AND BOOBY TRAPS AMENDED PROTOCOL (1996), 191, 339
LAND MINES CONVENTION (1997), 191, 340
See also WEAPONS, Conventional
LAPIDOTH, RUTH, 231, 583
LAW OF ARMED CONFLICT, 15, 19, 24, 66, 74-75, 176, 185, 203, 455-76, 513, 521
See also ARMISTICE; BLOCKADE, LAW OF; GENEVA CONVENTIONS (1949); HAGUE
CONVENTIONS; HUMAN RIGHTS; INTERNATIONAL HUMANITARIAN LAW; PRISONERS
OF WAR; SUBMARINE WARFARE; TARGETS; WAR CRIMES
Airmen in Distress, 439-41
Cease-Fire, 140-52, 187, 471, 510

598


The Rome Statute on the International Criminal Court

suggestion that a declarative statement could be made whereby third party ju-
risdiction would be suspended in the case where the State of nationality of the
alleged offender is both able and willing to assume responsibility for criminal
conduct which amounted to an official act.!02 This would, it has been argued,
simply “move the problem from the level of individual responsibility to that of
exclusive state responsibility” and consequently involve “a total change of the
parameters of responsibility”!©3 that were envisaged in Rome. The United
States would appear to have realized that to seek an amendment of the Rome
Statute to abrogate the perceived problem that it has with Article 12 is unreal-
istic and would not meet with support. However, most recently before the
March 2000 PrepCom, the United States made a démarche to other States in
their capitals in which it recalled that it had identified in its mind a number of
flaws in the Statute, but it was of the view that they could be dealt with in the
Rules of Evidence and Procedure and Elements of Crimes. It reiterated its fun-
damental difficulty with Article 12 and how it would make it nearly impossible
for the United States to give the ICC any measure of support if the Statute re-
mains as it is. It focussed its concerns again on the official decisions of a sover-
eign non-State Party being subjected to the jurisdiction of the Court in cases
where States that oppose United States’ actions abroad make unfounded accu-
sations. However, it was also the position of the United States that it shared the
concern of other States that any provision dealing with the consent of such a
non-State Party should not act as a vehicle for the alleged perpetrators of grave
atrocities to escape justice before the new Court. This concern is indeed valid,
but it is difficult to envisage how distinctions can be drawn between non-State
Parties, so-called “rogue” States or otherwise. All non-Party States could utilize
the United States perspective. It would seem that what the United States is
promoting is a clarification of the preconditions issue in a supplemental docu-
ment to the Rome Statute and in a Rule of Procedure. It seems that the sup-
plemental document envisaged is the Relationship Agreement Between the
United Nations and the ICC. This Relationship Agreement does not have to be
completed by June 30, 2000. However, the Rule of Procedure would have to be.
To date nothing has formally been put on the table. The proposal for the proce-
dural rule relates to Article 98(2) of the Statute dealing with cooperation and
consent to surrender to the ICC. Article 98(2) reads:

The Court may not proceed with a request for surrender which would require the
requested State to act inconsistently with its obligations under international
agreements pursuant to which the consent of a sending State is required to

554


Antecedents of the Rome Statute of the ICC Revisited

donc pas vous conseiller d’arréter brusquement tous vos efforts pour
donner une efficacité de plus en plus grande a la Convention de Genéve.
Poursuivez-les avec zéle et ne regardez les contrariétés que comme au stim-
ulant a des nouvelles tentatives. Car votre cause est sacrée.

Comme remarque générale, je me permets de répéter & cette occasion
qu’une des choses les plus efficaces et les plus utiles que I’on puisse faire, en
cette matiére, pour améliorer les rapports entre nations dans la paix ou
dans la guerre (et il y a des rapports mutuels [intercourse] dans 1a guerre,
attendu que l’homme ne peut se rencontrer avec l’homme sans qu'il en
résulte un échange de rapports),—une des choses dont il y aurait le plus &
attendre dans l’intérét de l’internationalisme, serait la réunion des plus
éminents jurisconsultes du droit des gens que posséde notre race
cis-caucasienne,—un de chaque pays,—en leur capacité individuelle et
non en vertu de quelque mandat public, pour régler entre eux certaines
grandes questions du droit des nations, qui sont encore indécises,—telles
que la neutralité, l’emploi de troupes barbares comme auxiliaires, la durée
des droits ou des obligations fondées sur la qualité de citoyen. J’entends
régler comme Grotius réglait ce dont il s’occupait, par le grand argument de
la justice. Ce qui émanerait d’un pareil corps, code ou proclamation, serait
certain d’acquérir bient6t une autorité supérieure au livre du plus grand
juriste isolé. J’espére qu’une pareille réunion pourra avoir lieu en 1873 ou
1874.

Avec la plus haute considération, etc.

412


The Initiation, Suspension, and Termination of War

relations between the former belligerents will probably be strained. After all,
the armed phase of the conflict is over, but the conflict itself may continue
unabated.

Asa result, even after an armistice agreement, the conclusion of a treaty of
peace remains a high priority item on the agenda. The armistice ends the war,
but the consummation of a fully-fledged peace requires a lot more. When the
advent of a treaty of peace in the post-armistice period is delayed, as has been
the case both in the Arab-Israeli conflict and in Korea, the chances of another
conflagration always loom large on the political horizon. Nevertheless, should
any of the former belligerents plunge again into hostilities, this would be con-
sidered the unleashing of a new war and not the resumption of fighting in an
on-going armed conflict.

There is entrenched resistance in the legal literature to any reappraisal of
the role assigned to armistice in the vocabulary of war.!9 Pace this doctrinal
conservatism, the terminology has to be adjusted to fit the modern practice of
States.106 Scholars must open their eyes to the metamorphosis that has oc-
curred over the years in the legal status of armistice.

(c) Other Modes of Terminating War
A war may be brought to its conclusion not only in a treaty of peace or in an
armistice agreement. It may also come to an end in one of the following ways:

i. Implied Mutual Consent

When belligerents enter into a treaty of peace or an armistice agreement,
war is terminated by mutual consent expressed in the instrument. It is not req-
uisite, however, that the mutual consent to end a war be verbalized by the par-
ties. Such consent can also be inferred by implication from their behavior: a
state of war may come to a close thanks to a mere termination of hostilities on
both sides.!07

An examination of the legal consequences of the absence of warfare must be
conducted prudently. The fact that all is quiet along the front line is not ines-
capably indicative of a tacit consent to put paid to hostilities. A lull in the fight-
ing, or a formal cease-fire, may account for the military inactivity. War cannot
be regarded as over unless some supplemental evidence is discernible that nei-
ther party proposes to resume the hostilities.!°8 The evidence may be distilled
from the establishment or resumption of diplomatic relations.!©?

To give tangible form to the scenario of a state of war continuing despite a
lengthy hiatus in the fighting, one can take the case of Israel and Iraq. Iraq is
one of the Arab countries that invaded Israel in 1948. Unlike its co-belligerents

144


Contributors

International Law, and of the Bar of the State of New York. He served as a
member of the United States Delegation to the Rome conference on the estab-
lishment of an International Criminal Court. He has lectured extensively
around the world, and published widely, including seven books and numerous
articles. Professor Meron is an acknowledged expert on the law of war in the
Elizabethan age.

Professor Ved Nanda is the Thompson B. Marsh Professor of Law and Di-
rector of the International Legal Studies Program at the University of Denver
College of Law. Since 1992 he has served as the John Evans University Profes-
sor, and since 1994, as Vice Provost for Internationalization. Currently he is
President of the World Jurist Association, honorary vice president of the
American Society of International Law, and a member of the advisory council
of the United States Institute of Human Rights. He is the United States Dele-
gate to the World Federation of the United Nations Associations, Geneva,
where he is Vice Chair and Member of the Executive Committee. In Beijing,
China, he was presented with the “World Legal Scholar” Award by the World
Jurist Association, and an honorary doctorate has been conferred upon him by
Soka University in Tokyo. He is widely published in law journals and national
magazines, has authored or co-authored 16 books in the various fields of inter-
national law, and has been a Distinguished Visiting Professor/Scholar at a
number of universities.

Mr. W. Hays Parks, Colonel, United States Marine Corps Reserve (Re-
tired), is Special Assistant to The Judge Advocate General of the United States
Army for Law of War Matters. He has also occupied the Naval War College’s
Charles H. Stockton Chair of International Law and is Adjunct Professor at
both George Washington University School of Law and American University
School of Law. The legal adviser for the 1986 air strike against terrorist-related
targets in Libya, Mr. Parks also had primary responsibility for the investigation
of Iraqi war crimes during its 1990-1991 occupation of Kuwait. He has served
as a United States representative for law of war negotiations in New York,
Geneva, The Hague, and Vienna. A frequent lecturer on the law of military op-
erations at the National, Army, Air Force and Naval War Colleges, the service
staff colleges, and other service schools such as the Navy Fighter Weapons
School (“Top Gun”), Mr. Parks is widely published in military and legal jour-
nals. In 1990 he was the United States Naval Institute’s Author of the Year.
Mr. Parks served in the Republic of Vietnam and earned Navy-Marine Corps
wings, Canadian and British parachutist wings, U.S. Army Master Parachutist
wings, and 82nd Airborne Centurion wings during his military career.

585


Ronald St. J. Macdonald

international agreements, such as NAFTA, and an irresistible pole of attrac-
tion for other States of Europe and the neighboring regions. Its development as
an economic unity is already having effects in the international arena.

The member States and the Union have sought through the years to take a
single common position in areas covered by the treaties, presenting the Com-
munity, represented by the Commission, as a credible actor in important inter-
national economic venues such as GATT and the WTO.*® The Union’s role in
other international institutions is often less marked; although it enjoys full
membership in the FAO,®3 the Community occupies observer status in the ma-
jority of the other UN bodies. Despite the reforms indicated in the Amsterdam
Treaty, the Union still lacks a strong common foreign policy; indeed, member
States still retain most of their sovereign powers in this area. However, the
trend seems to indicate stronger integration in various fields, such as the Single
European Currency and the harmonization of national legislation. The impact
of the Union both internally and in the international arena is unprecedented,
and its supranational character effectively and undoubtedly established.8+

Concluding Remarks

In light of the foregoing—the structure and architecture of the organization,
the fundamental principles of the Charter and their development by the great
foundation texts of the last fifty years, the interpretations of the International
Court of Justice, the practice of States and international organizations, the
opinions of qualified commentators, the attitudes of the publics of the world to
the United Nations as part of a flow of policy-making activity, and, not to be
underestimated, the longue durée of the historical processes at work since the
middle of the 19th century—we can now return to the question posed at the
outset: is the Charter of the United Nations a world constitution, de facto if not
de iure, or perhaps in fieri?

Not surprisingly, the interpretative community of the international legal
profession answers this question in different ways.

While most scholars acknowledge the prominence of the Charter above
other conventional instruments and recognize that it contains several norms of
jus cogens, many do not believe that it has more significance than that of a
treaty, even though it is more far-reaching than any other treaty. While the
United Nations is generally considered “the most important international or-
ganization for the maintenance of peace and security which has been estab-
lished in modern history,”8> many scholars remain reluctant to recognize the
Charter as other than a historic instrument founding a permanent system of

291


W. Hays Parks

proposed abandonment of the Washington Treaty’s ratio, and defended
submarines as a defensive weapon. An impasse between the Japanese and
Anglo-American positions was clear and, as previously noted, on January 29,
1934—-even before the London Naval Conference convened—Japan
announced its intention to rescind its obligations under the Washington and
London naval treaties, effective December 31, 1936.!!°

Japan’s announcement made the actual conference an anticlimax. Japan in-
sisted upon full parity with Great Britain and the United States, which each re-
fused on January 16, 1936. In reaction, Japan announced its withdrawal from
the London Naval Conference, leaving the conferees with nothing more than
an Article 22 of the 1930 naval treaty once that treaty’s other arms control pro-
visions expired on December 31, 1936.1!!! Article 22 was adopted as the
Procés-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV
of the London Naval Treaty of 1930.112

Post-London, 1936-1939

The downward slide to World War II continued. The Sino-Japanese War
began on July 7, 1937, with combat between Chinese and Japanese forces in
North China. Two months later, the Imperial Japanese Navy commenced a to-
tal blockade of China. Japanese attack on December 18, 1937, of the gunboat
USS Panay on the Yangtze River prompted President Roosevelt to expand the
Navy’s strength. On March 31, 1938, in light of reports of Japanese naval con-
struction beyond treaty limits, the United States, Great Britain, and France
agreed to employ the escalator clauses of the 1936 London agreement. On De-
cember 12, 1938, Germany announced that it intended to increase its subma-
rine tonnage to parity with Great Britain. Four months later, it abrogated the
entire Anglo-German Naval Agreement.!13

There would be one more effort at regulating submarines. The Spanish Civil
War began in July 1936. On August 13, 1937, Italian submarines supporting
the Nationalist forces of Spanish dictator Francisco Franco began unrestricted
submarine attacks of merchant shipping, prompting British antisubmarine re-
sponses and a call for a conference to establish rules for submarine employ-
ment. At the request of Great Britain and France, nations with Mediterranean
frontiers, less Spain, along with Germany, Russia, and Great Britain, met in
Nyon, Switzerland, between September 6¢ and 13. Their meeting produced
an agreement of the same name that refers to the rules contained in the 1936
London Procés-Verbal, without any substantive modification or improvement.
Their efforts were for naught, however, as the British were aware from their

357


Yoram Dinstein

cease-fire, and, in the past, (iii) armistice. As noted above, the last term—
armistice—has undergone a drastic change in recent years and now principally
conveys a termination, rather than a suspension, of hostilities. The current us-
age of the term “cease-fire,” in lieu of “armistice,” must be recalled when one
examines the aforementioned Articles 36 to 41 of the Hague Regulations.128
These clauses do not employ the phrase “cease-fire.” Instead, they refer to “ar-
mistice,” commensurately with the vocabulary prevalent at the turn of the cen-
tury. However, since their avowed aim is to govern the suspension of hostilities,
they must be deemed applicable to present-day cease-fires (as opposed to mod-
ern armistices).

The expression “truce” is embedded in tradition and history. It acquired par-
ticular resonance in the Middle Ages, in the form of the Truce of God (Treuga
Dei). This was an ecclesiastical measure by which the Catholic Church sus-
pended warfare in Christendom on certain days of the week, as well as during
Lent and church festivals.!29 The phrase “cease-fire” has been introduced into
international legal parlance in the present (post-World War II) era. Although
some scholars ascribe to truce and cease-fire divergent implications, the pres-
ent practice of States—for the most part—treats them as synonymous.!30 As
examples for an indiscriminate use of the two terms, it is possible to adduce suc-
cessive resolutions adopted by the Security Council during Israel’s War of In-
dependence in 1948.13!

A cease-fire (or truce) may be partial or total in scope. Article 37 of the
Hague Regulations differentiates between a general cease-fire (originally,
“armistice”) suspending all military operations everywhere, and a local
cease-fire suspending such operations only between certain units at particular
locations. !32

i. Local Cease-Fire Agreement

A cease-fire (or truce) may apply to a limited sector of the front, without im-
pinging on the continuation of combat elsewhere. The object of such a local
suspension of hostilities is to enable the belligerents to evacuate the wounded,
bury the dead, conduct negotiations, and so forth. A local cease-fire may be
agreed upon on the spot by military commanders (who can be relatively junior
in rank), without the involvement of their respective Governments. The agree-
ment would then be informal, and it does not have to be in writing.133

Article 15 of Geneva Convention (I) of 1949 for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field stipulates
that, whenever circumstances permit, a suspension of hostilities is to be ar-
ranged (generally or locally) so as to facilitate the removal, exchange, and

147


Yoram Dinstein

silent, the opposing sides will rearm and regroup. If no peace is attained, the
belligerent most interested in a return to the status quo ante will look for a favor-
able moment (militarily as well as politically) to mount an offensive, in order to
dislodge the enemy from the positions acquired on the eve of the cease-fire. A
cease-fire in and of itself is, consequently, no harbinger of peace. All that a
cease-fire can accomplish is set the stage for negotiations or any other mode of
amicable settlement of disputes. If the parties contrive to hammer out peace
terms, success will be due more to the exercise of diplomatic and political skills
than to the cease-fire as such.

The Arab-Israeli conflict is a classical illustration of a whole host of
cease-fires, either by consensual arrangement between the parties or by fiat of
the Security Council, halting hostilities without bringing them to an end. Thus,
if we take as an example the mislabelled “Six Days War” (sparked in June 1967
and proceeding through several cycles of hostilities), the Council insisted on
immediate cease-fire, e.g., in June 196716 and in October 1973.16 Israel and
Egypt negotiated a cease-fire agreement, e.g., in November 1973.!® Israel and
Syria agreed on a cease-fire, e.g., in May 1974.163 In none of these cases did the
cease-fire, whether initiated by the parties or by the Council, terminate the
war. In the relations between Israel, on the one hand, and Egypt and Jordan, on
the other, the “Six Days War” ended only upon (or on the eve of) the conclu-
sion of Treaties of Peace in 1979 and 1994 respectively (see supra, section II (a)
i). In the relations between Israel and Syria, the “Six Days War” is not over yet,
after more than three decades, since the bilateral peace process has not yet
been crowned with success. A number of rounds of hostilities between Israel
and Egypt or Syria (most conspicuously, the so-called “Yom Kippur War” of
October 1973) are incorrectly adverted to as “wars.” Far from qualifying as sepa-
rate wars, these were merely non-consecutive time-frames of combat, punctu-
ated by extended cease-fires, in the course of a single on-going war which had
commenced in June 1967.

(c) Denunciation and Breach of Cease-Fire

Under Article 36 of the Hague Regulations, if the duration of a suspension
of hostilities is not defined, each belligerent may resume military operations at
any time, provided that an appropriate warning is given in accordance with the
terms of the cease-fire (originally, “armistice”).!6¢ The language of Article 36
seems to this writer to be imprecise. It is submitted that a general cease-fire, if
concluded without specifying a finite date of expiry, ought to be read in good
faith as if it were undertaken for a reasonable period. Within that (admittedly
flexible) stretch of time, none of the parties can be allowed to denounce the

151


Antecedents of the Rome Statute of the ICC Revisited

political and social and economic order in States. The Conference regretted that no generally
acceptable definition of drug crimes could be agreed upon for inclusion within the jurisdiction of
the Court and recommended that a Review Conference (see note 39 above) consider drug
crimes with a view to arriving at an acceptable definition and its inclusion in the list of crimes
within the jurisdiction of the Court. This may well put the question off ad calendas Graecas. For
that Final Act, see note 26 above.

43. See Official Records of the Diplomatic Conference on the Reaffirmation and
Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva,
1974-1977, 17 volumes (1978). The major commentaries on those instruments are:
INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON THE ADDITIONAL
PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF AUGUST 12, 1949 (Y. Sandoz
etal. eds., 1987); M. BOTHE ET AL., NEW RULES FOR VICTIMS OF ARMED CONFLICTS (1982).
For the text of Protocol I, see 1125 UNTS 3, and for that of Protocol II, see ibid., p. 609. They are
reproduced in Schindler and Toman, pp. 621, 689. In 1999 the International Committee of the
Red Cross submitted to the Preparatory Commission of the International Criminal Court a
detailed analysis of the war crimes as set out in Article 8 of the Rome Statute. This consists of an
exhaustive research of the relevant case law, a review of cases from the Leipzig Trials, from
post-Second World War trials, as well as national case law and decisions from the ICTY and ICTR.
See docs. PCNICC/1999/(WGEC/INF.1, February 19, 1999, PCNICC/1999/WGEC/INF.2 plus
Adds 1-4, July 14, July 30, August 4, November 24 and December 15, 1999. This analysis was
submitted under covering letter from Belgium, Finland, Hungary, the Republic of Korea, and the
Permanent Observer Mission of Switzerland.

44. Report of the International Law Commission on the work of its 44th session, GAOR, 47th
session, Supplement 10 (A/48/10), YBILC, 1993-II/2, Annex. For the written comments of
governments, see YBILC, 1993-II/1 (A/CN.4/452 and Add.1). See also Topical summary of the
discussion held in the Sixth Committee of the General Assembly during its 47th session,
prepared by the Secretariat (A/CN.4/446, mimeographed, 1993), paras. 17-134.

45. Report of the International Law Commission on the work of its 46th session, GAOR, 49th
session, Supplement 10 (A/49/10), Chapter Il, paras. 30-91, YBILC, 1994-II/2, p. 19. The
Working Group was composed of J. Crawford (Chairman), H. Al-Bahatna, A. Al-Khasawneh,
G. Arangio-Ruiz, M. Bennouna, D. Bowett, C. Rodriguez, J. de Saram, G. Eiriksson, S. Fomba,
M. Giiney, Q. He, K. Idris, P.S. Rao, E. Razafindralambo, P.L. Robinson, R. Rosenstock, Ch.
Tomuschat, V. Vereschchetin, F.V. Kramer, and A. Yankov. In addition, Doudou Thiam as
special rapporteur on the Draft Code and P. Kabatsi as rapporteur of the Commission took part
in the work of the Group, which was open to every member of the Commission who wished to
participate. And see Topical Summary of the discussion held in the Sixth Committee of the
General Assembly during its 48th session, prepared by the Secretariat (A/CN.4/457,
mimeographed, 1994), paras. 8-206; Topical Summary of the discussion held in the Sixth
Committee of the General Assembly during its 49th session, prepared by the Secretariat
(A/CN.4/464/Add.1, mimeographed, 1995), paras. 1-188. And see the statement of Professor
Crawford at the Conference, representing the International Law Commission, in
A/CONF.183/SR.2, para. 102.

46. Report of the Ad hoc Committee on the Establishment of an International Criminal
Court, GAOR, 50th session, Supplement 22 (A/50/22) (1995). The Chairman of this
Committee was Adriaan Bos (the Netherlands).

47. Report of the Preparatory Committee on the Establishment of an International Criminal
Court, vols. I and II, GAOR, 51st session, Supplements 22 and 22A (A/51/22) (1996). The
Chairman of this Committee was Adriaan Bos. Sickness prevented him from being Chairman of

418


The Normative Framework of International Humanitarian Law

mandate, but some commentators also criticize the resort to such heavy artillery
against evil, but relatively minor, actors. Disregarding considerations of judicial
economy, the appeals chamber has therefore enabled the creation of a crazy quilt
of norms that would be applicable in the same conflict, depending on whether it
is characterized as international or noninternational. No less, the potential for
unequal and inconsistent treatment of the accused is great. Fortunately, until
Tadié, the decisions of the trial chambers on indictments pursuant to Article 61
of the Tribunal’s Rules of Procedure and Evidence found that the situations
involved international armed conflicts and that the grave breaches provisions
were therefore applicable, avoiding potential chaos.116

Meron then further notes that the decision was not inevitable, as the proposi-
tion that the fighting was part of an international armed conflict—a proposi-
tion advanced by the Commission of Experts, the U.S. Government, and many
scholars—was a position known to the majority of the appeals chamber though
one they chose not to adopt. Further, Meron notes, Judge Georges Abi-Saab
proposed terming the fighting as part of non-international armed conflicts, but
including “grave breaches” within the applicable customary law.!!7

The fact remains, however, that the ICTY eschewed this reasoning. Worse,
the subsequent Tadié judgment on the merits erroneously applied another in-
ternational law standard to the issue presented.!!8 In that decision, the Tadié
majority erroneously applied the international law standard of State responsi-
bility to determine whether a conflict is or is not of an international character.
In so doing, the Tribunal relied on the opinion of the International Court of
Justice in Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. U.S.).119 The Court, however, failed to appreciate that the agency relation-
ship needed to establish State responsibility, essentially for the purposes of civil
damages, is distinguishable from the legal standard required to establish
whether a given conflict is of an international or non-international character.
Meron, aptly commenting on this confusion, writes:!20

[The Tadié case] was not an issue of (state) responsibility at all. Identifying the
foreign intervenor was relevant to characterizing the conflict. . .. Conceptually
«++ [the Nicaragua test] cannot determine whether a conflict is international or
internal. In practice, applying the Nicaragua test to the question in Tadié
produces artificial and incongruous conclusions.

Indeed, even a quick perusal of international law literature would establish that
imputability is not a test commonly used in judging whether a foreign interven-
tion leads to the internationalization of the conflict and the applicability of

16


Michael N. Schmitt

the oft subtle nature of their consequences. The consequences of normative
strategic choice lie at multiple levels of analysis. Such choices clearly affect the
tactical (battle) and operational (theatre) levels, for it is there that the armed
conflict is actually conducted. To the extent the overall course of the conflict
shifts, an impact is also felt at the strategic (national) level. What is perhaps
counterintuitive, however, is that strategies may not operate in parallel at the
various levels of analysis; strategies may have disparate hierarchical impact,
that is, they may generate benefits at one level and harm at another.

Usually, States are fairly adept at identifying immediate tactical and opera-
tional level consequences of normative proposals, for warfighters who would be
deprived of weapons, targets, or tactics by the laws of armed conflict can rather
reliably estimate how a particular stricture will affect them. States are also
skilled at identifying strategic level impact on the war effort. After all, legal pre-
scriptions allow or disallow a course of action that one wishes to take or that
another is threatening. The very fact of the desire to act or apprehension of an
opponent’s action suggests that some rational calculation of advantage or harm
has occurred.

Not surprisingly, the subtler consequences of normative strategy are often over-
looked. Several examples may help illustrate. During the Falklands/Malvinas con-
flict, both the United Kingdom and Argentina made a strategic decision to
carefully comply with the law of armed conflict. Asa result, both war termination
and the return to normalcy of relations between the two States were facilitated,
thereby advancing national interests other than those directly implicated in
the decision to employ force to settle their differences. A sense that Coalition
forces would abide by the laws of armed conflict regarding the treatment of
prisoners likewise contributed in no small measure to the unprecedented will-
ingness of many thousands of Iraqi soldiers to surrender as early as possible dur-
ing the Gulf War. Contrast those experiences with the Iraqi decision to
generally disregard the law of armed conflict during the war and in the months
immediately following the cease-fire. Repeated violations led to near universal
distrust of the Iraqi regime, which in turn contributed to the longevity of the
post-conflict monitoring, sanctions, and enforcement regimes. Regardless of
any tactical or operational objectives Saddam Hussein may have hoped to ad-
vance by violating the law of armed conflict,4# he badly miscalculated the stra-
tegic consequences of his malfeasance. Similar disregard for the laws of armed
conflict (as well as human rights law) has severely complicated efforts to return
the Balkans to stability.

Ineach of these cases, decisions as to whether or not to comply with the laws
of armed conflict had.implications beyond what might have been immediately

471


Yoram Dinstein

98. ROSENNE, supra note 94, at 48.

99. A distinction between armistice demarcation lines and other international boundaries is
made in the Declaration on Principles of International Law Concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United Nations. General
Assembly Resolution 2625 (XXV), 25 RESOLUTIONS ADOPTED BY THE GENERAL ASSEMBLY
121, 122 (1970). It is submitted that this distinction is no longer valid in most cases.

100. See J.H.W. VERZIJL, 6 INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE 459-553
(1973).

101. Security Council Resolution 95, 6 RESOLUTIONS AND DECISIONS OF THE SECURITY
COUNCIL 10, 11 (1951).

102. See N. FEINBERG, STUDIES IN INTERNATIONAL LAW 87-92 (1979).

103. Hague Regulations, supra note 70, at 87.

104. B.V.A. Réling, Intemational Law and the Maintenance of Peace, 4 NETHERLANDS
YEARBOOK OF INTERNATIONAL LAW 1, 7 (1973).

105. See, e.g., H.S. Levie, The Nature and Scope of the Armistice Agreement, 50 AMERICAN
JOURNAL OF INTERNATIONAL LAW 880, 881-886 (1956). Cf. Italian-United States
Conciliation Commission, Mergé Case (1955), 11 REPORTS OF INTERNATIONAL ARBITRAL
AWARDS 236, 241.

106. See STONE, supra note 20, at 641-642, 644. Cf. M.W. Graham, Armistices-1944 Style,
39 AMERICAN JOURNAL OF INTERNATIONAL LAW 286, 287 (1945).

107. See C.C. Tansill, Termination of War by Mere Cessation of Hostilities, 38 LAW
QUARTERLY REVIEW 26-37 (1922).

108. See J.M. Mathews, The Termination of War, 19 MICHIGAN LAW REVIEW 819, 828
(1920-1921).

109. See L. KOTZSCH, THE CONCEPT OF WAR IN CONTEMPORARY HISTORY AND
INTERNATIONAL LAW 251 (1956).

110. See U. Shoham, The Israeli Aerial Raid upon the Iraqi Nuclear Reactor and the Right of
Self-Defense, 109 MILITARY LAW REVIEW 191, 206 n. 67 (1985).

111. See ibid., 191, 207-210.

112. Protocol I, supra note 12, at 114 [Article 51(4)-(5)). Cf. P. Bretton, Remarques sur le Jus
in Bello dans la Guerre du Golfe (1991), 37 ANNUAIRE FRANCAIS DE DROIT INTERNATIONAL
139, 149 (1991).

113. See L.R. Beres, After the Gulf War: Israel, Pre-Emption, and Anticipatory Self-Defense, 13
HOUSTON JOURNAL OF INTERNATIONAL LAW 259, id. (1990-1991).

114. See J. CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 418-420
(1979).

115. C. PHILLIPSON, TERMINATION OF WAR AND TREATIES OF PEACE 9 (1916).

116, See GREENSPAN, supra note 2, at 600-603.

117. See J.H.W. VERZIL, 3 INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE 361-362
(1970).

118. See SCHWARZENBERGER, supra note 10, at 467, 730. Cf. H. Kelsen, The Legal Status of
Germany according to the Declaration of Berlin, 39 AMERICAN JOURNAL OF INTERNATIONAL
LAW 518-526 (1945).

119. Act of Military Surrender of Germany, 1945, 9 INTERNATIONAL LEGISLATION 312
(M.O. Hudson ed., 1950).

120. See OPPENHEIM, supra note 60, at 699-700.

121. See F.A. MANN, FOREIGN AFFAIRS IN ENGLISH COURTS 33 (1986).

157




The History and Status of the International Criminal Court

this regard contained in the Statute for the Yugoslav Court. Article 103 pro-
vides that States may indicate their willingness to accept convicted persons for
incarceration and the conditions under which this will be accomplished.

Part 11 (Article 112) establishes the Assembly of States Parties and enumer-
ates the functions of this body. They are, of course, solely administrative in na-
ture as are the provisions of Part 12 (Articles 113-118), which are concerned
with financing. However, the Assembly of States Parties is the body which will
be responsible for the external matters relating to the Court. It is the body
which, pursuant to Article 121, will convene in seven years to consider amend-
ments to the Statute. Only States Parties will have a vote at that conference.

Part 13 (Articles 119-128) are, for the most part, the usual administrative
details with respect to international agreements. It is here that we find one of
the provisions of the Statute to which the United States takes exception, and
one of the several reasons why it will, in all probability, not ratify the Statute.
This provision is contained in Article 120, which provides that “No reserva-
tions may be made to this Statute.” Such a provision has caused the United
States to withhold ratification of several other conventions and will undoubt-
edly play a major role in its failure to ratify the Statute of the International
Criminal Court.

It is obvious that there are good provisions and provisions of dubious value
in the 1998 Statute of the International Criminal Court. It is the opinion of the
present author that the good far outweigh the bad and that the Court should be
permitted to function for a period during which improper provisions and neces-
sary but missing provisions will be identified and the Assembly of States Parties
will then be in a position to evolve what a two-thirds majority thereof considers
to be a more perfect Statute.

Notes

1. II GEORG SCHWARZENBERGER, INTERNATIONAL COURTS, ARMED CONFLICT 462-466
(1968). Although the trial took place before the outbreak of war between the Archduke of
Austria and his Allies against the Duke of Burgundy, the case had all the characteristics of an ad
hoc international war crimes court, with the accused fruitlessly asserting the now famous defense
of “superior orders.”

2.HISTORY OF THE UNITED NATIONS WAR CRIMES COMMISSION AND THE
DEVELOPMENT OF THE LAWS OF WAR 34-35 (1948) (hereinafter cited as War Crimes
Commission).

3.Treaty of Versailles, 2 TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF THE
UNITED STATES OF AMERICA, 1776-1949 at 43, 52 (Charles I. Bevans ed., 1969); II MAJOR
PEACE TREATIES OF MODERN HISTORY, 1648-1967, at 1265, 1279 (Fred L. Israel ed., 1967).

258


Making Law of War Treaties

The motives which impelled the United States ... to resort to unrestricted
submarine warfare ... were the same which had activated Germany to the same
tactic. They were coolly, studiously strategic: to cut off the enemy's vital overseas
trade and thereby weaken his capacity to fight and win a long war. Submarines
were the only American naval instrument which could reach across the Pacific at
the beginning of the conflict, and they were promptly put to this prearranged
task.138

Revelation of the basis for the U.S. decision was protracted. Samuel Flagg
Bemis, professor emeritus of diplomatic history at Yale University, pieced to-
gether the story and offered a classified presentation to the faculty of the Naval
War College on November 1, 1961. He returned to offer the presentation to
Naval War College faculty and students on December 15 and discuss his paper
further in a seminar the following day. Each was classified.139 Declassified in
1978, the story emerged in 1984.140 Other pieces of the story were added by
other historians. !4!

The pre-World War II change in U.S. policy emerged rapidly. Following the
1930 London Naval Conference, a new draft of the U.S. Navy’s Instructions for
the Navy of the United States Governing Maritime Warfare was received by
the General Board of the Navy!42 on June 30, 1933. Incorporating the rules
contained in Article 22 of the 1930 London treaty, it was shelved by the Gen-
eral Board without adoption.!43 When war began in 1939, the Navy’s War
Plans Division prepared a revision. It was referred to the Judge Advocate Gen-
eral of the Navy in April 1940 for comment and concurrence. The newest draft
repeated the provisions of Article 22—now the 1936 Procés-Verbal—without
elaboration as to what constituted a “merchant ship,” or possible bases (other
than resistance to visit and search) for loss of protection. The questions raised
publicly by U.S. Navy submarine officers!44 went unanswered. This document
subsequently was adopted, published, and distributed to the fleet, but with the
proviso that “In the event of emergency these instructions may be supple-
mented by additional instructions made necessary by circumstances then exist-
ing.TM145

The U.S. plan for war against Japan, War Plan Orange, long had recognized
that Japan could be defeated through blockade.146As war clouds approached,
the role of the submarine in accomplishing this mission received fresh atten-
tion. In October 1940, Admiral J. O. Richardson, Commander of the U.S.
Fleet, proposed long-range interdiction of Japanese commerce, recommending
that were war to begin, U.S. submarines should “make an initial sweep of Japa-
nese merchantmen .. . in the Pacific.!47On January 18, 1941, the commander
of the U.S. Asiatic Fleet, Admiral Thomas Hart, advised that “the possibilities

362


Making Law of War Treaties

Geneva Naval Conference. Submarines remained a secondary issue in the
years following the Washington Naval Conference. The major topic of
international debate was cruiser strength, which was not resolved at
Washington. Upon conclusion of that conference, Japan, Great Britain and the
United States embarked on new cruiser construction programs.*! Britain and
the United States, experiencing tension in naval matters with one another that
began following World War I, did not keep apace with Japanese auxiliary
construction.®” Under congressional pressure to stave off an arms race in
auxiliaries (cruisers, destroyers, and submarines), on February 10, 1927,
President Calvin Coolidge invited the leading naval powers to a new
conference to seek resolution of that which could not be attained in
Washington five years earlier.5? France and Italy declined, sending observers
only, but Great Britain and Japan agreed to meet with the United States in
Geneva. As early as 1923 the Japanese had anticipated that the United States
would call for a second naval conference, and that its purpose would be to bring
auxiliary vessels under the Washington treaty ratio. It viewed this with great
disfavor and opposed it tenaciously.®*

Subsequently described as “one of the most dramatically unsuccessful inter-
national gatherings of the twentieth century,”®> the conference was in trouble
from the start. The United States believed that Great Britain sought superiority
rather than parity with respect to auxiliary vessels. Agreement among the par-
ties could not be reached for formulas as to numbers of cruisers, tonnage, or gun
caliber (six-inch or eight-inch) due to fundamental differences with respect to
national requirements. The Japanese refused to extend the 5:5:3 capital ship
ratio to auxiliary vessels, reverting to insisting upon the 10:10:7 ratio it unsuc-
cessfully sought for capital ships at Washington.8¢

While the conference ultimately faltered over cruiser strength issues, sub-
marine disarmament was considered. In preparation for the Geneva Confer-
ence, a U.S. Navy study reported that while submarines would be of an
advantage in the event of war with Japan, the U.S. Navy was at a point of nu-
merical inferiority in submarines vis-a-vis Japan. The report concluded that
submarines were “a vital element in any well-balanced fleet,” and recom-
mended that the United States oppose the abolition of the submarine unless
there was universal agreement. Agreement on means for controlling the sub-
marine race, such as displacement, maximum deck gun caliber,8? or total sub-
marine tonnage, could not be gained.88 No consideration was given to
improvement of the unadopted 1922 Submarine Treaty or to other possible
regulation of submarine use, perhaps due in part to France’s refusal to partici-
pate fully in the conference.8?

352


Wolff Heintschel von Heinegg

sufficient to render ingress or egress of the blockaded area dangerous. The tem-
porary absence of the blockading force is without prejudice to the blockade’s
effectiveness, if such absence is due to stress of weather or to some other reason
connected with the blockade.8° The blockade need not be restricted to vessels;
it may also be applied and enforced against aircraft.8! In any event, a blockade
must be applied impartially to the vessels of all States, including merchant ships
flying the flag of the blockading power.82 However, although neutral warships
and military aircraft enjoy no positive right of access to blockaded areas, the
belligerent imposing the blockade may authorize their entry and exit.83 Neutral
vessels in distress should not be prevented from entering and subsequently
leaving a blockaded area.84 According to the U.S. and the German manuals, a
further exception applies to neutral vessels (and aircraft) engaged in the car-
tiage of qualifying relief supplies for the civilian population and the sick and
wounded. Those vessels should be authorized to pass through the blockade
cordon (safe passage).85 The German manual and Canadian draft manual con-
tain provisions according to which starvation of the civilian population as a
method of warfare is prohibited.86 Neutral vessels and aircraft that, in knowl-
edge of a notified and effective blockade, breach or attempt to breach a block-
ade are subject to capture.8? If they resist an attempt to establish identity,
including visit and search, they may be attacked.88

The Contemporary Law of Blockade

As already mentioned, some authors consider traditional blockades to have
become obsolete because, in their view, developments in weapons technologies
have made it impossible for belligerents to comply with the strict requirements
of blockade law.8? The short overview of modern State practice has shown,
however, that States will continue to make use of this method of naval warfare
at least in cases in which they possess superior naval forces and aerial recon-
naissance capabilities. Blockade remains an especially efficient method for sub-
duing the enemy in limited armed conflicts.9° Moreover, it is the only way by
which a belligerent is entitled to prevent the enemy from not only the import
but also the export of goods that would otherwise enable it to continue the
armed conflict. Neutral commercial sea and air traffic can be subjected to
far-reaching restrictions, even if they carry goods that do not qualify as contra-
band.?! Hence, as in the beginning of the 20th century, identifying the legal re-
strictions that apply if a belligerent decides to establish and enforce a naval
blockade is indispensable. It may be added that according to the position taken
here, a special theoretical justification?” is no longer necessary because the

213


Michael N. Schmitt

Second, it deserves mention that normative decisional processes do not op-
erate in strategic vacuums. Nor is international law a strategic panacea. A
State has multiple tools at its disposal to achieve objectives and foster its inter-
ests; law is but one. Therefore, even if law is an appropriate and sensible way to
advance an objective, it may not be the best one. The classic debate regarding
how best to effect human rights is illustrative. How should States respond to
abuses thereto? Normatively? Militarily? Economically? Through engagement
or isolation? A combination thereof? This essay only addressed normative anal-
ysis; further examination, particularly of alternatives to normative strategies,
remains to be accomplished before wise strategic choices can be made.

Third, the essay recommends no policy choices. While it does advocate nor-
mative engagement, engagement alone is a void which is meaningless without
substantive goals.

Fourth, there has been no argument for decision making based only on a
State’s individual selfish interests. Instead, the process suggested merely recog-
nizes that the reality of State-centrism dictates, at least for the foreseeable fu-
ture, how States make strategic choices. Ultimately, it is their auto-
interpretation of national interests that matters when they decide how the
global normative architecture should best be constructed. Some States will end
up making moral choices, others immoral ones. Hopefully, most will conclude
that the former comports most closely with their national interests.

Finally, and most important, the essay begs the question of the precise nor-
mative strategies the United States should pursue to advance its national inter-
ests. Whatever the right answer may be, U.S. strategy must be infused with a
recognition that U.S. national interests have always been, and must remain,
heavily value laden. Indeed, superpower status involves both rights and duties.
As the next millennium approaches, those duties clearly include benevolent
custodianship of global human dignity and well-being.

Notes

1. Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of
International Armed Conflicts, June 8, 1977, U.N. Doc. A/32/144, 16 I.L.M. 1391 (hereinafter
Additional Protocol I). Although Additional Protocol I was not ratified by certain States, many
of its provisions (but not the environmental provisions) are considered declaratory of customary
international law. For a non-official, but generally considered authoritative, delineation of those
considered declaratory, see Michael J. Matheson, Session One: The United States Position on the
Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva
Conventions, 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419
(1987). See also INTERNATIONAL & OPERATIONAL LAW DIVISION, OFFICE OF THE JUDGE
ADVOCATE GENERAL, DEPT OF THE AIR FORCE, OPERATIONS LAW DEPLOYMENT

471


Paul C. Szasz

effects of minefields, mines and booby-traps,” deals in paragraph 1 with “a
United Nations force or mission [that] performs functions of a peacekeeping,
observation or similar function” and in paragraph 2 with “a United Nations
fact-finding mission.” This Protocol was considerably expanded and strength-
ened, also in respect of the above-mentioned provisions, by an amendment
adopted on May 3, 1996, at a Review Conference for the Convention.£°

On December 9, 1994, the General Assembly, in response to ever more fre-
quent attacks on United Nations peace-keeping and similar forces and opera-
tions and the significant toll these were taking in deaths and injuries, adopted
the Convention on the Safety of United Nations and Auxiliary Personnel.8! As
already pointed out, Article 2 of the Convention excludes its application to
Chapter VII operations. Paragraph 1.2 of the new Bulletin explicitly provides
that its promulgation does not “affect the protected status of members of peace-
keeping operations” under the Convention, “as long as they are entitled to the
protection given to civilians under the international law of armed conflict.”

Finally, the Rome Statute of the International Criminal Court®? includes in
the definition of “war crimes” that are to fall within the jurisdiction of the Court:

Intentionally directing attacks against personnel, installations, material, units or
vehicles involved in a humanitarian assistance or peacekeeping mission in
accordance with the Charter of the United Nations, as long as they are entitled
to the protection given to civilians or civilian objects under the international law
of armed conflict;

whether these take place in an “international armed conflict” or in an “armed
conflict not of an international character.”83 Here again, UN forces engaged in
actual combat operations would seem to be excluded—though it is not clear to
what extent this depends on their establishment under Charter Chapter VI
or VIL.

Positive Obligations of UN Forces

In connection with some UN operations, especially those with very limited
mandates, the question has arisen to what extent their personnel are required
or even allowed to intervene in violations of IHL that they can actually observe
or of which they are otherwise reliably informed.

UN forces are generally restricted to operating within their mandates; this is
especially true when these mandates, as in all Chapter VI situations, depend
on the consent of all parties to a conflict. Furthermore, the forces are in

521


UN Forces and International Humanitarian Law

of defense counsel for Jean-Paul Akayesu. Later, the Secretary-General autho-
tized him to testify before the Rwanda Tribunal on matters relevant to the
charges against Akayesu, but not on matters internal to the United Nations or
UNOMUR. In giving his testimony, the General was accompanied by a mem-
ber of the UN Office of Legal Affairs, who advised the Tribunal as to the mean-
ing of the restriction in the waiver.

Similar considerations apply to making available documents and files to the
tribunals, their prosecutor, and defense counsel. An additional consideration
in respect of requests for documents is that these must be reasonable in terms of
the quantity of files involved, especially if a request evidently amounts to a
“fishing expedition.”

As to the arrest of persons indicted by a UN tribunal, any obligation of a UN
force to do so would depend in the first instance on its mandate (established by
the Security Council) and in practice on the realistic possibility of accomplish-
ing the task in light of, inter alia, the actual military resources available.

In due course, arrangements will have to be made with the International
Criminal Court for the provision of information and documents and for dealing
with requests for the release of information made available in confidence by the
United Nations to a State and then requested from the latter by the Court.8?
Presumably such arrangements will reflect the UN’s experience in respect of its
own tribunals.

Reflections and Proposals

The promulgation by the Secretary-General of his Bulletin on the obser-
vance by United Nations forces of international humanitarian law would seem
to lay to rest any possible doubts as to both the obligation and the readiness of
these forces to comply with IHL in all appropriate situations, that is, when such
forces are actually engaged in combat.

The long reluctance of the organization to state so generally and unequivo-
cally, and any lingering national objections now that it has done so, probably re-
flect the still prevailing ambivalence about the deployment of such forces. This
ambivalence, in turn, reflects several considerations: concern for State sover-
eignty threatened by ever-increasing encroachments of international organiza-
tions; an essentially pacifist inclination that even in the face of major
provocations and great evils, the United Nations should perform its tasks
through diplomacy rather than military force; the somewhat mixed record of the
many operations hastily mounted in the early 1990s after the end of the Cold
War and the resulting doubts about the ability of international organizations to

524


Jus Pacis ac Belli?

If modern writers were consistent, they would have to remember in their
definitions of war their own assumptions of peace as the normal state and of the
alternative character of peace and war. Such consideration for their own doc-
trines would necessarily lead them to a definition of war by reference to peace.
Yet this would be too much to expect. The best of which modern doctrine
seems capable in relating war to peace is contained, albeit only on the index, in
a leading textbook: “Peace: see Termination of War.”5+

Commonly, war is defined as a contention of States through their armed
forces for the purpose of overpowering each other.>> At first sight, the element
of the definition, contention of States through their armed forces, appears to offer
an objective criterion of distinction between the states of peace and war. Even
if this could be granted, this definition could not be regarded as adequate, as it
does not cover two types of war. States, geographically widely separated, may
declare war against each other and apply the laws of warfare (confiscation of
property belonging to the enemy State, internment of enemy aliens, etc.) in
their mutual relations without being able to bring about a contention between
their armed forces. Or, a State which is at war may deem it prudent to withdraw
its armed forces in such a way that, again, there is no opportunity for the re-
quired contention between the armed forces to occur. Instances of the first
class are provided by the relations between South and Central American States
and the Central Powers in the First World War and by corresponding situa-
tions in the present world war. An example of the second type is offered by the
Bulgarian withdrawal before the Rumanian troops in the Second Balkan War.

Yet a still more serious flaw of this definition consists in its inability objec-
tively to indicate the borderline between war and the status mixtus. States may
contend through their armed forces, but, as in the case of the extensive battles
between Russian and Japanese troops on the frontier between the U.S.S.R. and
Manchukuo, may be unwilling to consider such acts as a state of war. Thus, this
definition either amounts to the assertion that States are at war with each
other against their own will, or these cases have to be distinguished from war by
the introduction into the definition of a subjective element, the animus
belligerendi.°6 Modern doctrine usually chooses this latter alternative as the mi-
nor evil. This, however, means that not much is left of the so highly coveted as-
sumption of the alternative character of peace and war and of the apparently
objective criterion of the contention of States through their armed forces. The
acceptance of the animus belligerendi reduces the current definition of war to
the truism that States contending with each other through their armed forces
are at war with each other if they want to be at war with each other. If one of
the contending States unmistakably expresses its will, the status of war is

494


Alfred P. Rubin

How can the enforcement tools of morality be brought into play in cases of
military atrocity? Exposure is the obvious first step. Criminal trials might be a
State’s response in its own interest; not trials of foreigners for committing
atrocities on other foreigners abroad, but trials of people subject to its own ju-
tisdiction for committing atrocities against anybody whom that jurisdiction, al-
lowing reciprocal authority to other municipal orders under current
conceptions of the equality of all sovereigns before the law, considers within
the range of its protection. That solution does not involve international tribu-
nals; it involves the same national tribunals that the normal laws of war pre-
scribe—national tribunals, possibly military courts-martial but not necessarily
so. The application of municipal law in those circumstances is undertaken not
because international law compels it, but because national interest makes it the
best solution. An example is the United States Civil War of 1861-1865, during
which the Union never declared or acknowledged the legal capacity of the
Confederacy to engage in “war,” but nonetheless issued the first great modern
codification of the laws of war, the Lieber Code.3! The United States Supreme
Court in 1877 gave its opinion that those laws were applied as a “concession. . .
made in the interests of humanity, to prevent the cruelties which would inevi-
tably follow mutual reprisals and retaliations.”32 There are many other reasons
that could be added to those, but this is not the place for further elaboration.

Yet another response, although hardly a “solution,” might be the most diffi-
cult of all: do nothing. That is the Waldheim response. Kurt Waldheim was
Secretary-General of the United Nations for two full terms and then President
of Austria. He is now believed to have known about atrocities committed by
the Nazi army in the Balkans during the Second World War and to have de-
nied involvement or even knowledge of them. He has never been brought to
trial and it is now highly unlikely that he ever will be. But he cannot easily leave
Austria. Nor is he likely to get the prizes and adulation that his record at the
United Nations and in Austria would otherwise seem to have earned him.
“Successful” leaders who cannot explain the inconsistencies that political lead-
ers always have thrown at them by their political opponents and journalists risk
ostracism. Those who lead their countries into positions that outsiders find
morally abhorrent, like the apartheid leaders of South Africa before Nelson.
Mandela’s rise to power, find the foreigners reacting to them in ways they did
not expect. Nobody in the current world wants to deal with a bigot, so the
United States enforced its “Sullivan Rules”; it limited American investment in
South Africa to that which could stand moral scrutiny.

Steps like these, isolation of morally dubious individuals and adjustment of
legal relations with morally dubious legal orders, do not “fix” the perceived

433


Bin Cheng

Space Treaty with that of Article 1 of the Antarctic Treaty shows that it is the
obvious intent of Article IV(2) of the Space Treaty to lay down basically the
same kind of obligation in regard to celestial bodies as Article I of the Antarctic
Treaty in respect of Antarctica, with the same kind of provisos, and with
“peaceful” meaning definitely “non-military”. The few departures here and
there in the actual wording in no way detract from it. It is hoped that this paper
will succeed in demonstrating that nothing in Article [V(2) or anywhere else in
the Space Treaty even faintly suggests that “peaceful” means anything else,
least of all “non-aggressive.” Only the reverse is true. It is submitted that no
amount of efforts on the part of the United States during the negotiations of
the Space Treaty and ever since to attribute to the word “peaceful” in it the
novel meaning of “non-aggressive” can be of any avail. The reason is simple.
The United States having accepted the wording of Article IV(2) as it stands,
must accept what it actually provides, whatever its own mental reservations.

Notwithstanding some doctrinal support of the United States’ position,5°
one has only to consider the implications of the expression “peaceful” meaning
“non-aggressive” and not “non-military.” In the words of Professor Ivan Vlasic,
“If ‘peaceful’ means ‘non-aggressive,’ then it follows logically—and absurdly—
that all nuclear and chemical weapons are also ‘peaceful,’ as long as they are
not used for aggressive purposes.”>! Further, if “non-aggressive” is truly the ~
meaning of “peaceful,” then does the specific provision in Article [V(2) that
the moon and other celestial bodies shall be used by all States Parties “exclu-
sively for non-aggressive purposes” mean that elsewhere, especially in outer
void space, the contracting Parties are contrariwise not so restricted and may
engage in activities which are partly or wholly for aggressive purposes? Would it
be possible, for instance, to deliberately ram someone else’s satellites in orbit,
geostationary or otherwise, or fire on them? Since the Space Treaty cannot be
interpreted to yield such absurd results, and since acts “for aggressive or aggres-
sion purposes” are under international law and the United Nations Charter, es-
pecially Article 2(4), permitted nowhere in the universe, the specific provision
as found in the first sentence of Article IV(2) must consequently mean some-
thing different: it must mean that the moon and other celestial bodies shall be
used exclusively for non-military purposes. Otherwise, there would be no point
in having that first sentence. “Peaceful” in that first sentence means “non-mili-
tary,” whatever mental reservation the most powerful contracting Party to the
Treaty might have had on the subject.

3. Subsequent Practice. However, Professor Vlasic, in reliance on Article 31(3)
of the 1969 Vienna Convention on the Law of Treaties*? on interpretation

97


Making Law of War Treaties

interception of Italian signals that its submarine operations had been sus-
pended two days before the conference began.!!4

The state of play on the eve of World War II was less than perfect. The
vague, unadopted submarine rules of the 1922 Washington Conference formed
the basis for the improved but equally vague Article 22 of the 1930 London Na-
val Treaty and the 1936 Procés-Verbal. Although the latter ultimately was
adopted by all of the major users of submarines in World War II, its ambiguity
did not lend itself to a likelihood of success. It failed to distinguish between
public and private belligerent vessels, or armed belligerent ships and neutral
merchant ships. Other issues needed to be addressed, clarified and resolved, ei-
ther through a multilateral, bilateral or unilateral process. U.S. Navy officers,
writing in the pages of the prestigious Naval Institute Proceedings, dissected the
1922 Washington submarine treaty, Article 22 of the 1930 London Naval
Agreement, and the 1936 London Procés-Verbal, and highlighted their short-
comings.!15 The parties to the negotiations between the wars chose purposeful
ambiguity to reach agreement, however flawed; they drafted ambiguous rules
as an alternative for a prohibition they sought but could not achieve.

World War I: The Bloom Comes Off the Rose

World War II began on September 1, 1939, with Germany’s invasion of Po-
land. Two days later, Great Britain and France declared war on Germany.!16
Each major submarine user took different roads at a different pace to abandon-
ment of the rules contained in the 1936 London Procés-Verbal.

Germany. Initial orders to German U-boats were that they were to strictly
observe the 1936 Procés-Verbal’s rules for visit and search, with three
exceptions: enemy troopships, that is, vessels known from intelligence or
actually observed to be carrying troops or war materiel; vessels in convoy, or
any vessel escorted by warships or aircraft; or vessels taking a direct part in
enemy actions, or acting in direct support of enemy operations, including
intelligence gathering. Although France had declared war on Germany,
U-boat commanders were ordered to take no hostile action against French
ships, including combatants, other than in self defense.!!7

History repeated itself early. Germany stumbled badly in World War I with
the sinking of the Lusitania on May 7, 1915, the ocean liner Arabic on August
19, and the liner Hesperian on September 9. As previously indicated, the sink-
ing of the Lusitania and neutral vessels was a key factor in the U.S. decision to
enter into the war against Germany.!18 Aware of this risk, Hitler for political

358


International Criminal Court

“extradition” law and procedures, while “surrender” was apparently chosen asa
word of art in the ICC Statute for the same reason by people who were certainly
familiar with the 1949 Geneva Conventions and their use of that different
phrase, “hand over.” Since Article 8(2) (a) of the ICC Statute, defining “war
crimes,” and Article 8(2)(c), defining various acts as criminal if performed in
an armed conflict not of international character, both specifically refer to the
1949 Geneva Conventions, and the first provision mentions “grave breaches”
of the Conventions to which the “hand over” provisions apply, this omission is
incomprehensible. It appears as if the parties to the ICC Statute are not obliged
to arrest and transfer to the custody of the ICC persons accused of the very
“grave breaches” to which this article says it applies, leaving their trials and
punishment to the never-used procedures already set out in the 1949 Conven-
tions. But if that is so, it is hard to understand just what the scope of the ICC’s
authority is intended to be. Perhaps there were intended to be two inconsistent
obligations—to “hand over” the accused to another Party to the 1949 Geneva
Convention and to “surrender” the same person to the ICC—and disputes
were to be resolved by the lawyers after the event actually arose. Since the 1949
Geneva Conventions lie at the root of international obligations on each State
party to search out those who are suspected of having committed a “grave
breach” and to try them or hand them over for trial to another party concerned,
it is difficult to understand what the legal obligation of States now is with re-
gard to persons accused of the most abominable breaches of the supposed inter-
national laws of war. It cannot have been to supplement the provisions of the
1949 Geneva Conventions because it creates a clash of obligations, not alter-
natives; or, if construed to create alternative obligations, does not specify how
or by whom the inconsistencies should be resolved. It seems as if the function of
these provisions of the ICC Statute is to supersede the 1949 Conventions, but
not to provide for the cooperation of States parties that are intended to give
real effect to those provisions. I cannot believe that that is what was intended,
but the actual intent then seems hidden in inconsistent provisions now ac-
cepted as binding by parties to the 1949 Geneva Conventions who are also to
be parties to the ICC Statute.

There are many questions of similar technical character in the new draft.
But the intelligence and competence of those involved in the drafting is so far
beyond dispute that one is left merely to wonder at their intentions and suppose
that serious disagreements will surface as real problems begin to arise in prac-
tice. Apparently, the tribunal itself and its associated organs are expected to re-
solve those disputes.

424


XX

UN Forces and International
Humanitarian Law

Paul C. Szasz

M&M: LONG LAST, the United Nations has promulgated a set of principles
and rules concerning the applicability of International Humanitarian
Law (IHL) to military forces under its command and control.!

From the time that the first United Nations force was put into the
field—that is, into the Sinai?—and especially the first one that was required to
engage in active military operations—in the Congo3—the question has been
raised to what extent are or should such operations be subjected to IHL. This
question became more urgent as the number and extent of UN military opera-
tions suddenly increased in the 1990s—following the uniquely successful oper-
ation in Namibia.‘ As described below, the answer to what would seem to be a
relatively simple question with an obvious answer (they should be!) has not
been easy to arrive at. The present study is not intended as a contribution to
the academic debate,> but rather catalogues the practical arrangements that
have been made, or neglected, in this regard. Meanwhile, other essentially neg-
ative developments such as the increasingly frequent assaults on UN forces and
the brutality of many recent conflicts, have raised some related problems. The
protection of UN forces, their responsibilities when faced with major violations
of THL, and their interaction with the international criminal tribunals estab-
lished in the past several years will also be discussed briefly herein.


Appendix

Institutional Protection of Human Rights, 16 Israel Yearbook on Human Rights,
1986, 69-102; 28 Les Cahiers de Droit, 1987, 547-74.

Refugees and Refugee Status—Causes and Treatment in Historico-Legal Per-
spective. 13 Thesaurus Acroasium (Thessaloniki) 1987, 537-614.

Social Norms of Behaviour—The Role of International Law. Centre for Re-
construction of Human Society, Global Human Family Looking at the 21st
Century, 1987, 167-204.

Is World Citizenship a Legal Practicality? 25 Canadian Yearbook of International
Law, 1987, 151-86.

The Role of Law in Establishing Norms of International Behaviour, 17 Israel
Yearbook on Human Rights, 1987, 149-183.

Implications and Lessons of Entebbe, 10 Middle East Focus, 1987/8, No. 1,
19-21.

International Criminal Law and the Protection of Human Rights. In Cheng
and Brown, eds., Contemporary Problems of International Law, 1988,
116-137 (Georg Schwarzenberger Festschrift).

Nuclear Weapons: The Position in War Law. In Cohen and Gouin, Lawyers
and the Nuclear Debate, 1988, 97-104.

Canadian Law, War Crimes and Crimes Against Humanity, 59 British Yearbook
of International Law, 1988, 217-35.

The British Commonwealth, 10 Encyclopedia of International Law, 1988, 32-35.

Terrorism, Extradition and the Political Offence Defence. 31 German Yearbook
of International Law, 1988, 337-71.

The Jurisprudence of International Law (review article). 26 Canadian Yearbook
of International Law, 1988, 279-306.

Tourism versus Terrorism. In D ‘Amore and Jafari, Tourism—A Vital Force for
Peace, 1988, 251-4.

Abortion, the Foetus and the Supreme Court. Transactions of the Royal Society,
1988 (5th Series, Vol. 3), 123-30.

Nuclear Weapons and the Law of Armed Conflict (The McDougal Lecture).
17 Denver Journal of International Law and Policy, Fall 1988, 1-27.

Terrorism and the Law of the Sea. In Dinstein, Intemational Law at a Time of
Perplexity, 1989, 249-73 (Shabtai Rosenne Festschrift).

A Wartime Military Lawyer Reminisces, 3 Canadian Forces JAG Journal, 1989,
1-16; 7 USAF Academy, Journal of Legal Studies, 1996/1997.

Terrorism and Armed Conflict: The Plea and the Verdict, 19 Israel Yearbook on
Human Rights, 1989, 131-66.

The Problems of a Wartime International Lawyer. 2 Pace Yearbook of Interna-
tional Law, 1989, 93-127.

576


xX

The History and Status of the
International Criminal Court

Howard S. Levie

| NTIL FAIRLY RECENTLY, INTERNATIONAL CRIMINAL COURTS have
been established entirely on an ad hoc basis. Probably one of the earli-
est and most famous such court was that which convened to try Peter von
Hagenbach in the town of Breisach in 1474. He was acting as governor of the
city on behalf of the Duke of Burgundy to whom it had been pledged by the
Archduke of Austria as security for a loan. In that capacity, von Hagenbach
was personally responsible for innumerable acts of murder, rape, illegal taxa-
tion, and illegal confiscation of property. The victims included merchants from
Swiss towns passing through the pledged area while travelling to and from
Frankfurt. Finally, his German mercenaries revolted and joined the citizens of
Breisach in seizing von Hagenbach and putting him on trial. He was tried by a
court of twenty-eight judges, eight from Breisach and two from each of the
other towns, German and Swiss, with respect to which von Hagenbach had ex-
ercised his powers over their inhabitants. Despite his plea that he had only
obeyed the orders of his master, the Duke, he was found guilty, deprived of his
knighthood, and executed.!
International conferences on the law of war were convened in Brussels in

1874, in The Hague in 1899 and 1907, and in Geneva in 1929, 1945 and 1974.


Appendix

Aerial Considerations in the Law of Armed Conflict. 5 Annals of Air & Space
Law, 1980, 89-118.

Human Rights and the Law of Armed Conflict. 10 Israel Yearbook on Human
Rights, 1980, 9-37.

Le Role du Canada dans Devéloppement du Droit en Conflict Armé. 11 Etudes
Internationales. 1980, 489-508.

International Crimes and the Legal Process. 29 International and Comparative
Law Quarterly, 1980, 567-84.

Canada’s Role in the Development of the Law of Armed Conflict. 18 Canadian
Yearbook of International Law, 1980, 91-112.

Canadian Law and the Punishment of War Crime$. 28 Chitty’s Law Joumal,
1980, 249-54.

Terrorism and International Law, Research Report, Institute of Jewish Affairs,
Nos. 13 and 14, 1981, 17 pp.

Terrorism and the Courts. 11 Manitoba Law Journal, 1981, 333-58.

Aspects of Terrorism. 5 Terrorism, 1981-2, 373-400.

New Trends in International Criminal Law. 11 Israel Yearbook on Human
Rights, 1981, 9-40.

Trends in the Law Concerning Diplomats. 19 Canadian Yearbook of Interna-
tional Law, 1981, 132-57.

The Entrenchment of a Bill of Rights. 19 Alberta Law Review, 1981, 384-7.

The Contemporary Law of Armed Conflict and the Protection of Human
Rights. In Gall, Studies in Civil Liberties, 1982, 166-90.

Terrorism and the Law. 30 Chitty’s Law Journal, 1982, 107-12.

Aboriginal Peoples, International Law and the Canadian Charter of Rights and
Freedoms. 61 Canadian Bar Review, 1983, 339-53.

The Nature of International Criminal Law. Law World, 1973.

The Canadian Charter of Rights and International Law. 20 Canadian Yearbook
of International Law, 1982, 3-23.

International Law and the Control of Terrorism. 7 Dalhousie Law Journal, 1983,
236-56.

Human Rights and Medical Experimentation. 13 Israel Yearbook on Human
Rights, 1983, 252-76.

Is There An International Criminal Law? 21 Alberta Law Review, 1983, 251-61.

Trends and Developments in International Law. 8 Resource News, 1983, 17-19.

The Falklands, The Law and The War. 38 Yearbook of World Affairs, 1984,
89-119.

International Law. 17 Canadian Encyclopedic Digest, Title 81, 1984, 350 pp.

574


Legal Issues of Multinational Military Units

13. Forces of Belgium, Canada (which were, however, largely withdrawn from Germany in
1994), France, Netherlands, United Kingdom, and United States.

14. Supra note 9.

15. Treaty on the Final Settlement with respect to Germany of 12 September 1990 (BGBI
1990 II 1317).

16. Exchange of Notes between the Governments of the Federal Republic of Germany, the
Kingdom of Denmark, the Hellenic Republic, the Italian Republic, the Grand Duchy of
Luxembourg, the Kingdom of Norway, the Portuguese Republic, the Kingdom of Spain, and the
Republic of Turkey concerning the status of their forces during temporary stays in the Federal
Republic of Germany, of 29 April 1998 (Exchange of Notes concerning temporary stays in
Germany).

17. Supra note U1.

18. Gesetz zu dem Ubereinkommen vom 19. Juni 1995 zwischen den Vertragsstaaten des
Nordatlantikvertrags und den anderen an der Partnerschaft fiir den Frieden teilnehmenden
Staaten iiber die Rechtsstellung ihrer Truppen sowie dem Zusatzprotokoll (Gesetz zum
PfP-Truppenstatut) vom 9. Juli 1998 (BGBI 1998 II 1338).

19. Vienna Convention on the Law of Treaties of 23 May 1969 (UNTS 1155, 331).

20. Zusatzabkommen zu dem Abkommen vom 19. Juni 1951 zwischen den Parteien des
Nordatlantikvertrags tiber die Rechtsstellung ihrer Truppen hinsichtlich der im K6nigreich
der Niederlande stationierten deutschen Truppen vom 6. Oktober 1997 (BGBI 1998 II
2407).

21. Supra note 4.

22. Protocol on the Status of International Military Headquarters set up pursuant to the
North Atlantic Treaty (Paris Protocol) of 28 August 1952 (340 UNTS 200).

23. Agreement between the Federal Republic of Germany and the Supreme Headquarters
Allied Powers Europe on the special conditions applicable to the establishment and operation of
International Military Headquarters in the Federal Republic of Germany (Supplementing
Agreement to the Paris Protocol) of 13 March 1967 (BGBI 1969 II 2009).

24. Supra note 5.

25. Founding Act on Mutual Relations, Cooperation and Security Between the North
Atlantic Treaty Organization and the Russian Federation, signed in Paris on 27 May
1997.

26. Cf. the definition of mutatis mutandis taken from BLACK'S LAW DICTIONARY: “With the
necessary changes in points of detail, meaning that matters or things are generally the same, but
to be altered when necessary, as to names, offices and the like.”

27. Grundgesetz fiir die Bundesrepublik Deutschland (Basic Law for the Federal Republic of
Germany) of 23 May 1949 as amended. Article 87b, paragraph 1, reads: “(1) The administration
of the Federal Defense Forces shall be conducted as a Federal administration with its own
administrative substructure. Its function shall be to administer matters pertaining to personnel
and to the immediate supply of the material requirements of the Armed Forces. Tasks connected
with benefits to invalids or construction work shall not be assigned to the administration of the
Federal Defense Forces except by Federal legislation which shall require the consent of the
Bundesrat. Such consent shall also be required for any legislative provisions empowering the
administration of the Federal Defense Forces to interfere with rights of third Parties: this shall,
however, not apply in the case of laws concerning personnel.”

28. Article 93 (ex-article 99) of the EC Treaty and Article 15.10 of the Sixth Directive of the
European Union regarding the Value Added Tax.

29. Cf. MC 57/3 Overall Organization of the Integrated NATO Forces.

176


Michael N. Schmitt

9. For a description of several, see Michael N. Schmitt, Identifying National Objectives and
Developing Strategy: A Process Oriented Approach, STRATEGIC REVIEW, Winter 1997, at 24,
24-26.

10. CARL VON CLAUSEWITZ, ON WAR, ch. I, para. 2 (1832) (Anatol Rapoport ed., 1968).
Or consider the view of General von Molke, the Prussian Chief of Staff, in an 1880 letter
protesting the Declaration of St. Petersburg (one of the earliest formal law of war efforts): “The
greatest kindness in war is to bring it to a speedy conclusion. It should be allowable, with that
view, to employ all means save those that are absolutely objectionable.” The letter was to J.C.
Bluntschli, an international legal scholar. MOLKE IN SEINEN BRIEFEN (Berlin, 1902), at 253,
cited in MICHAEL WALZER, JUST AND UNJUST WARS: A MORAL ARGUMENT WITH
HISTORICAL ILLUSTRATIONS (2d ed., 1992), at 47.

11. HENRI DUNANT, SOUVENIR DE SOLFERINO (1862). The International Committee of the
Red Cross was established not long after Dunant’s account of the bloody Battle of Solferino
during the Italian War of Unification was published in the book.

12. For instance, the 1990-1991 Gulf War. The legal aspects of the war are described in
DEPARTMENT OF DEFENSE, FINAL REPORT TO CONGRESS: CONDUCT OF THE PERSIAN GULF
WAR (1992), at appendix O.

13. The Statute of the International Court of Justice defines custom as “a general practice
accepted by law.” Statute of the International Court of Justice, June 26, 1977, art. 38(1) (b), 59
Stat. 1031, T.S. No. 933, 3 Bevans 1153, 1976 YEARBOOK OF THE UNITED NATIONS 1052. The
Restatement notes that custom “results from a general and consistent practice of states followed
by them from a sense of legal obligation.” RESTATEMENT (THIRD), FOREIGN RELATIONS LAW
OFTHE UNITED STATES, § 102(2) (1987). See also North Sea Continental Shelf Cases, 1969 IC]
3, 44 (“Not only must the acts concerned amount to settled practice, but they must also be such,
or be carried out in such a way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule requiring it.”); The Paquete Habana, 175 U.S. 677, 20 S.Ct.
290, 44 L.Ed 320 (1900); The Case of the S.S. Lotus (Fr. v. Turk.), 1927 P.C.IJ. (ser. A) No.
10(1927); Asylum Case (Col. v. Peru), 1950 I.C.J. 266; Case Concerning Right of Passage over
Indian Territory (Port. v. India), 1960 I.CJ. 6.

14. The view that customary law applies only to States that have participated in the custom is
illustrated in the classic case of S.S. Lotus (Fr. V. Turkey), 1927 P.C.LJ. (ser. A) No. 10, at 21.
For a contrary view, see the RESTATEMENT, supra note 13, at $ 201.

15. Therefore, progress may be either reactive or proactive. The Geneva Convention of 1906
and the Hague Conventions of 1907 followed closely on the heels of the 1905 Russo-Japanese
War. World War I, in great part, served as the impetus for the 1925 Gas Protocol and the 1929
Geneva Convention. The enormous devastation of the Second World War led to the 1949
Geneva Conventions and 1954 Cultural Property Convention. In the aftermath of World War
Il, bipolarity and wars of national liberation dominated inter-State conflict, while new
technologies and sensibilities led to heightened concerns over the methods and means of
warfare. The Additional Protocols to the Geneva Conventions, Environmental Modification
Convention, Biological Weapons Convention, Conventional Weapons Convention, and
Landmines Convention resulted. So too did numerous arms control treaties designed to limit the
testing, possession, and spread of nuclear weapons, the unprecedented power of which had been.
so dramatically illustrated at Nagasaki and Hiroshima. Proactive efforts seek to head off negative
consequences before they occur. For instance, Protocol IV of the Conventional Weapons
Convention prohibited the use of permanently blinding lasers before they were fielded by any
armed force.

16. Additional Protocol I, supra note 1, art. 56.

479


Legal Implications of NATO’s Armed Intervention in Kosovo

States condemned them as a unilateral use of force, while others justified them
on the ground that the action would prevent a humanitarian catastrophe in
Kosovo likely to result from Serbian attacks on Kosovar Albanians.”! The Rus-
sian representative said that the Security Council “alone should decide the
means to maintain or restore international security,” and that NATO’s action
would set a dangerous precedent.?2 He further warned that “the virus of a uni-
lateral approach could spread,” and that those who had initiated the military
venture “bore complete responsibility for its consequences.”73

China’s representative said that the NATO action “amounted to a blatant
violation of the United Nations Charter as well as the accepted norms in inter-
national law,” and that the Chinese government strongly opposed the NATO
action.”4 He added that the Kosovo question should be solved by the people in
Kosovo, as it was an internal matter of the Federal Republic of Yugoslavia, that
China “was opposed to the use of or the threat of use of force in international
affairs, or power politics of the ‘strong bullying the weak,’ ” and that only the
Security Council could take such action, for it alone shouldered the primary re-
sponsibility for maintaining peace and security.”5

The NATO action: was strongly supported by the representatives of the
United States,” United Kingdom,”” and Canada,’8 among others. On March
26, the Security Council rejected a demand for the immediate cessation of the
use of force against Yugoslavia and the urgent resumption of negotiations, as
proposed in a draft resolution submitted by Belarus, Russian Federation, and
India. Only three countries—China, Namibia, and Russia—voted in favor,
while twelve voted against, with no abstentions.’9

Subsequently, on May 14, 1999, the Security Council adopted a resolution
inviting the United Nations High Commissioner for Refugees (UNHCR) and
other international humanitarian relief organizations to extend relief assis-
tance to the internally displaced persons in all parts of Yugoslavia, as well as to
other civilians being affected by the continuing crisis.8° The Council also em-
phasized that the humanitarian situation would “continue to deteriorate in the
absence of a political solution to the crisis consistent with the principles”
adopted by the Foreign Ministers of the Group of Eight on May 6, and urged all
concerned to work towards that aim.8!

The vote to adopt the resolution was 13 in favor, with China and Russia ab-
staining. In explaining his country’s abstention, the Chinese representative ex-
pressed his concern that the U.S.-led NATO had launched military attacks
without the Security Council’s authorization and, by bypassing the United Na-
tions, had created “the largest humanitarian disaster since the Second World
War.”82 He also said that

322


Ruth Lapidoth

39. See, e.g., Note on the need to amend Article 33 of the draft convention on the law of the
non-navigational uses of international watercourses, prepared by the Syrian Arab Republic and
Switzerland, supra note 33, at p. 5; Statement by the Chairman of the Drafting Committee,
Professor Lammers, Introducing the Report of the Drafting Committee, March 31, 1997, at p. 6.

40. Professor Lammers, ibid.

41. Note by Syria and Switzerland, supra note 39, at p. 5; Professor Lammers, supra note 39.

42. Article 33(2). See also C.B. Bourne, Mediation, Conciliation and Adjudication in the
Settlement of International Drainage Disputes, 9 CANADIAN YEARBOOK OF INTERNATIONAL
LAW (1971), p. 114.

43. Article 33(10).

44, Annex to the Convention.

45. Annex, Article 2.

46. Thus, in the Beagle Channel Arbitration between Argentina and Chile (1977), when the
parties could not reach an agreement on the formulation of the question to be submitted for
arbitration, each party formulated its own version, and the tribunal determined the subject
matter. 17 INTERNATIONAL LEGAL MATERIALS (1978), p. 634.

47. Annex, Articles 3 and 4.

48. Annex, Article 5.

49. Articles 5-6 of the Convention.

50. Annex, Article 6.

51. Annex, Article 7.

52. Annex, Article 8(1).

53. Annex, Article 8(2).

54. Annex, Article 9.

55. Annex, Article 10.

56. Annex, Article 11.

57. Annex, Article 13.

58. Annex, Article 14.

59. Supra note 10.

60. On negotiations, see, e.g., J.G. MERRILLS, INTERNATIONAL DISPUTE SETTLEMENT,
third edition, Cambridge University Press, 1998, p. 3; Daniel Druckman, Negotiating in the
International Context, in I. William Zartmann and J. Lewis Rasmussen, eds., PEACEKEEPING IN
INTERNATIONAL CONFLICT: METHODS AND TECHNIQUES, Washington: United States
Institute of Peace Press, 1997, p. 81, and bibliography on p. 115.

61. Article 33(3).

62. Ibid.

63. Article 33 (4).

64. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory
Opinion, First Phase (1950), International Court of Justice, Reports, 1950, p. 65; Second Phase,
ibid, p. 221.

65. Article 33 (5).

66. Article 33(6).

67. Article 33(7).

68. Article 33(8).

69. Ibid. This obligation does not appear in the draft of the International Law Commission,
supra note 1.

70. Articles 9-14 of the 1899 Convention and Articles 9-35 of the 1907 Convention; Clive
Parry, 205 CONSOLIDATED TREATY SERIES (1907), p. 234; NISSIM BAR-YAACOV, THE

245


Ruth Lapidoth

The commission shall adopt its report by a majority vote, unless it is a sin-
gle-member commission, and submit it to the parties. The report should set
forth “its findings and the reasons therefore and such recommendations as it
deems appropriate for an equitable solution of the dispute.”68 Probably, the
“equitable solution” does not necessarily have to be in accordance with the le-
gal situation. The parties do not have to adopt the report and implement it, but
they must consider it “in good faith.”6?

In order to better understand and evaluate the procedure established as
obligatory by the convention, it may be worthwhile to examine the notion of
fact-finding in international law. The forerunner of fact-finding was the insti-
tution of inquiry, established by the 1899 and 1907 Convention on the Peace-
ful Settlement of International Disputes.?° The great affinity between these
two concepts has also been recognized by the International Bureau of the Per-
manent Court of Arbitration: the revised rules on the subject established by the
International Bureau, which entered into force in 1997, are called “Optional
Rules for Fact-Finding Commissions of Inquiry.” According to the introduc-
tion to the text, “the denomination ‘Fact-finding Commission of Inquiry’ satis-
fies the need for modernization....”7!

Most international disputes include, inter alia, disagreement over facts. A
disinterested third party that tries to solve the dispute, whether it is a concilia-
tion commission, arbitral tribunal, court of justice, or United Nations organ,
has to resolve the issue of fact by an inquiry. A commission of inquiry or
fact-finding panel, on the other hand, is an institutional arrangement intended
to clarify only a specific point of fact. This mechanism is based on the assump-
tion that if the factual disagreement is solved by an authoritative impartial
third party, the solution of the dispute is self-evident.

The case of the Tiger, a Norwegian ship sunk in 1917 by a German subma-
rine off the coast of Spain, serves as an example. Both Norway and Spain were
neutral in that war, but the Norwegian vessel allegedly carried contraband.
The crucial question was the vessel’s location; Spain claimed that the attack
had taken place in her waters (and hence was illegal), while Germany main-
tained that it had taken place on the high seas (and hence was lawful). The
commission of inquiry had difficulties in ascertaining where the attack had ac-
tually taken place, but in the end concluded that it had happened in Spanish
waters.?2 The obvious conclusion was that the act was unlawful; however, the
commission did not have to deal with the issue of legality, but only with the fac-
tual question.

The specific procedure established by the Hague Convention has been fol-
lowed in only very few cases (about six), but other fact-finding mechanisms

239


The History and Status of the International Criminal Court

same State) and to sit in a place to be determined. Its jurisdiction included:
genocide and the related crimes set forth in Articles II and III of the 1948 Con-
vention on the Prevention and Punishment of the Crime of Genocide;?6 grave
breaches of the four 1949 Geneva Conventions?’ and the 1977 Protocol I Ad-
ditional to those Conventions;?8 violations of the 1970 Convention for the
Suppression of the Unlawful Seizure of Aircraft;? the crimes set forth in Arti-
cle 1 of the 1971 Convention for the Suppression of Unlawful Acts Against the
Safety of Civil Aviation;?° apartheid and the related crimes set forth in Article
2 of the 1973 International Convention on the Prevention and Suppression of
the Crime of Apartheid;?! the crimes set forth in Article 2 of the 1973 Conven-
tion on the Prevention and Punishment of Crimes Against Internationally Pro-
tected Persons, including Diplomatic Agents;3? hostage-taking and related
crimes as set forth in the 1979 International Convention Against the Taking of
Hostages;33 and the crimes set forth in Article 3 of the 1988 Convention for the
Suppression of Unlawful Acts Against the Safety of Maritime Navigation34 and
in Article 3 of the 1988 Protocol for the Suppression of Unlawful Acts Against
the Safety of Fixed Platforms Located on the Continental Shelf.35 The Tribu-
nal would also have jurisdiction over cases referred to it by the Security Council
of the United Nations (Article 25) and in cases where the affected State or the
State in which the accused is found agrees to the exercise of such jurisdiction
(Article 26) 36

The ILC draft pursued its way through the agencies of the United Nations,
receiving the comments of various States, and concluding with the Report of
the Preparatory Committee on the Establishment of an International Criminal
Court that became the Working Paper for a Conference of Plenipotentiaries on
the Establishment of an International Criminal Court which was to meet in
Rome in June 1998.37 Article 5 of that Report is entitled Crimes within the ju-
risdiction of the Court. It listed various options for the crimes of genocide, ag-
gression, war crimes, crimes against humanity, and a blank fifth offense.38
There is an N.B. which states that “once a decision is made as to which crimes
should be included in the draft Statute, the paragraphs of this introductory arti-
cle should be adjusted and the subsequent provisions placed in separate articles
and numbered accordingly.” The draftsmen then proceeded to do just that,
providing in many cases numerous alternative draft provisions for the listed of-
fenses. A discussion of these lengthy provisions has not been included herein
because the provisions selected by the Diplomatic Conference have adopted,
rejected, superseded, or replaced the offenses specified in the Preparatory
Committee’s Report.

254


Wolff Heintschel von Heinegg

positions on the law of blockade could be reconciled. In view of the Anglo-
French alliance against Russia, it had become imperative to adjust the rules for
the respective naval forces. This explains why France, England, Austria, Prus-
sia, Russia, Sardinia and Turkey were able to agree in the Paris Declaration of
April 16, 1856,35 upon the principle, among others, of effectiveness:

Blockades, in order to be binding, must be effective, that is to say, maintained by
a force sufficient really to prevent access to the coast of the enemy.

Thus, fictitious or paper blockades had become illegal. It must be stressed,
however, that the Paris Declaration fell behind the rules agreed upon during
the armed neutralities. In particular, it lacks a clear definition of what is to be
understood by “effective.” On the other hand, an obligation similar to that of
the armed neutralities according to which the blockading warships must be
“arrétés et suffisamment proches,” in view of the introduction of torpedo boats
and the improvement of coastal artilleries, would not have been feasible
anyway.36 Altogether, the requirement of effectiveness was not interpreted
restrictively. It was not necessary for the blockading warships to be stationed at
visual range from the coast. There existed no clear rule on the number of
warships necessary.3? Rather, the effectiveness of a blockade was to be judged
in the light of the circumstances of each single case.38 Hence, even blockades
whose effectiveness could only be ascertained after a lapse of time were
generally accepted as binding.2? The application of the doctrine of continuous
voyage to blockades led toa further erosion of the principle of effectiveness.4°

The Second Peace Conference at the Hague (1907) did not succeed in
reaching agreement upon the international law governing naval blockades. At
the beginning of the conference Great Britain had proposed the following
article:

L’emploi de mines sous-marines automatiques de contact pour établir ou
maintenir un blocus de commerce est interdit.4!

In the course of the conference, that proposal was not discussed further in
the Third Commission.‘? In its report and draft convention, the Comité

d’examen merely included the following paragraph 3 in Article 4:

Tlest interdit de placer des mines automatiques de contact devant les cétes et les
ports de l’adversaire dans le seul but d’intercepter la navigation de commerce.43

With regard to that rule the Comité d’examen held that

207


The Law of Armed Conflict as Soft Power

States has opposed or only incrementally moved towards ratification of any
number of additional treaties governing the conduct of warfare.>

Despite the oft visceral condemnation of the U.S. position on these and
other issues involving the international law of armed conflict—criticism which
great powers with great power interests inevitably attract—in the vast majority
of cases the United States has articulated sound objections to the legal regime
concerned. For instance, it objects, inter alia, to provisions in Protocol I that
might act to legitimize malevolent national liberation movements® and be-
lieves that the Ottawa Treaty as drafted would frustrate defense of the Korean
Peninsula.’ As to the ICC Statute, the United States fears an expansive juris-
diction that could theoretically extend to members of the U.S. armed forces
over the objections of the United States government.8 One may question the
degree of risk posed by each of these possibilities, or even their relative likeli-
hood, but the fact of risk is difficult to dispute.

The dilemma is that sound objections do not necessarily render rejectionist
policy decisions wise. A State choosing not to participate in any partially objec-
tionable treaty regime would quickly find itself isolated in the global commu-
nity, for few legal instruments are innocuous in their entirety, and those that
are tend to lack substance. Instead, a “flaw” in a treaty may or may not merit re-
fusal to opt into a particular regime.

In arriving at sound decisions regarding what course to pursue, the key lies in
the process of decision making. Of course, in some situations a matter is so
clear-cut that process is peripheral. For instance, a treaty proposing to outlaw
aerial warfare would hardly merit serious attention; there is little risk that faulty
decision making processes would lead to a bad decision on whether to ratify
such an instrument. As this extreme example exemplifies, the simpler the is-
sue, the more the decision-maker can rely on “informed intuition,” the art of
drawing conclusions in the absence of absolutely dispositive data. Experience
and training allow him to intuitively perform those analytical steps necessary to
come to the right conclusion. However, as issues become more complex, it is
increasingly valuable to consciously and deliberately work through the decision
making process, one that may not be intuitively grasped. Lest such pro-
cess-orientation be deemed form over substance, it is important to grasp that
the motivation for such endeavors is substance through form.

In the field of national security there is no shortage of approaches to decision
making.? This essay proffers one methodology for making national security de-
cisions in the legal arena. It is an approach that is likely pursued, either intu-
itively or consciously, in many of the world’s capitals. Indeed, it risks restating
the obvious. Nevertheless, much as there is value in process itself, there is

456




Michael N. Schmitt

simply define their national interests in a way that incorporates a moral
dimension.

The concept of shaping is a seminal one. Warfare and the law of armed con-
flict enjoy a close symbiotic relationship. Since evolution in the conduct of war-
fare affects the individuals and objects which law seeks to shelter, it is not
surprising that progress in the law of armed conflict has tended to track major
conflicts and major technological advances with great regularity.15 When it
does, it shapes future conflict. This dynamic is becoming increasingly conse-
quential. As an example, the direct targeting of civilian population centers, a
tragically regular occurrence during the Second World War, was unusual in
late twentieth century aerial attacks. When it does occur, as in Iraqi SCUD
missile attacks against Israeli cities during the 1990-1991 Gulf War, the global
reaction is one of outrage. The outrage is not only the product of moral con-
demnation, but also results from a sense that the rules of the game—the laws of
armed conflict—have been breached.

Law can even shape war for those not party to a particular normative stan-
dard. For instance, Additional Protocol I, which the United States has not rati-
fied, prohibits most attacks on dams, dikes, and nuclear electrical generating
stations.!6 Despite U.S. opposition to this particular provision, there have been
no U.S. attacks on any of these target sets since the Vietnam War; should it
conduct such an attack it would be condemned, for many will miss the fine dis-
tinction between a customary norm of international law, which binds all States,
and a treaty norm, which obligates only parties to comply.!7 Apprehension
over condemnation certainly influences the policy choice of whether to engage
in such strikes. This de facto effect of law on non-Party State actions can only
expand as military operations become increasingly multilateral in composition,
thereby frequently allying States with disparate legal obligations. In most such.
cases, the greatest common normative denominator will apply. For instance, it
would be hard to imagine, e.g., U.S. forces in a coalition intentionally conduct-
ing an operation that would violate Protocol I, but no other legal regime, if any
significant coalition partners were parties to the treaty. The realties of coali-
tion-building and maintenance would simply not allow it.

So law and policy are closely related, in many cases overlapping, concepts.
Law is a form of soft power that can profoundly shape conflict in ways that may
or may not advance a particular State’s interests. That being so, it is only logical
that States approach policy decisions concerning legal regimes in ways that
track processes of strategic choice regarding security affairs, the global econ-
omy, the environment, and so forth. Of course, the process of choice must be

459


Yoram Dinstein

147. D.M. Morriss, From War to Peace: A Study of Cease-Fire Agreements and the Evolving Role
of the United Nations, 36 VIRGINIA JOURNAL OF INTERNATIONAL LAW 801, 891-892
(1995-1996).

148. Security Council Resolution 687, supra note 146, at 854 (Section I).

149. J. Lobel & M. Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use
Force, Cease-Fires and the Iraqi Inspection Regime, 93 AMERICAN JOURNAL OF INTERNATIONAL
LAW 124, 148 (1999).

150. C. Gray, After the Cease-Fire: Iraq, the Security Council and the Use of Force, 65 BRITISH
YEAR BOOK OF INTERNATIONAL LAW 135, 144 (1994).

151, See R. Wedgwood, The Enforcement of Security Council Resolution 687: The Threat of
Force against Iraq's Weapons of Mass Destruction, 92 AMERICAN JOURNAL OF INTERNATIONAL
LAW 724, 726 (1998).

152. General Assembly Resolution 2793 (XXVI), 26 RESOLUTIONS ADOPTED BY THE
GENERAL ASSEMBLY 3, id. (1971).

153. See P. Bretton, De Quelques Problémes du Droit de la Guerre dans le Conflit
Indo-Pakistanais, 18 ANNUAIRE FRANCAIS DE DROIT INTERNATIONAL 201, 211 (1972).

154. Security Council Resolution 50, supra note 131, at 20.

155. For an illustration of such confusion, see V-A. Ary, Concluding Hostilities: Humanitarian
Provisions in Cease-Fire Agreements, 148 MILITARY LAW REVIEW 186, 187-192 (1995).

156. Vindication of the air campaign against Iraq is sometimes sought by invoking the right of
self-defense. See, e.g., S.M. Condron, Justification for Unilateral Action in Response to the Iraqi
Threat: A Critical Analysis of Operation Desert Fox, 161 MILITARY LAW REVIEW 115-180 (1999).
But the legitimacy of self-defense (in response to an armed attack) was fixed already in August
1990.

157. S.D. Bailey, Cease-Fires, Truces, and Armistices in the Practice of the UN Security Council,
71 AMERICAN JOURNAL OF INTERNATIONAL LAW 461, 469 (1977).

158. See C. ROUSSEAU, LE DROIT DES CONFLITS ARMES 202 (1983).

159. Morriss, supra note 147, at 815.

160. Security Council Resolutions 233-235, supra notes 141-142, at 2-3.

161. Security Council Resolution 338, 28 RESOLUTIONS AND DECISIONS OF THE SECURITY
COUNCIL 10 (1973).

162. Egypt-Israel, Cease-Fire Agreement, 1973, 12 INTERNATIONAL LEGAL MATERIALS
1312 (1973).

163. Syria-Israel, Agreement on Disengagement between Forces, 1974, 13 INTERNATIONAL
LEGAL MATERIALS 880 (1974).

164, Hague Regulations, supra note 70, at 87.

165. OPPENHEIM, supra note 48, at 556.

166. The lex specialis of Article 36 of the Hague Regulations apparently overrides the lex
generalis of Article 56(2) of the Vienna Convention on the Law of Treaties (supra note 53, at
154), which requires a twelve months minimum notice of the intention to denounce a treaty.

167. Hague Regulations, supra note 70, at 88.

168. Ibid., 87.

169. See OPPENHEIM, supra note 48, at 556.

170. See R. Monaco, Les Conventions entre Belligérants, 75 RECUEIL DES COURS 277, 337-338
(1949),

171. Vienna Convention, supra note 53, at 155. Cf. Baxter, supra note 135, at 386.

159


Sharon A. Williams

The Route to Rome

The Early Years. The establishment of an international criminal court has
been on the agenda of the international community since at least the time of
the League of Nations. Although there are examples of war crimes and crimes
against peace prosecutions stemming from the thirteenth century in Europe,®
the contemporary impetus to establish an international criminal court may be
said to have originated from the century old 1899 first Hague Convention for
the Pacific Settlement of International Disputes.” However, it was the 1919
Treaty of Versailles! that saw for the first time an attempt at the prosecution of
war crimes. Attempt is the operative word, as Kaiser Wilhelm II remained in
the Netherlands where he had sought asylum, and the other prosecutions were
eventually with the agreement of the allies. brought before the German
Supreme Court in Leipzig.!!

In 1937 the League of Nations attempted to bring into operation a multilat-
eral Convention for the Prevention and Punishment of Terrorism and an an-
nexed Protocol on the Establishment of an International Criminal Court to
deal with such offences.!2 Neither came into force.!3 However, in 1945, the al-
lied powers adopted the London Charter!+ and set up the International Mili-
tary Tribunal which sat at Nuremberg. It provided a forum for the trials of the
major axis war criminals whose crimes had no precise geographical location. A
tribunal was set up on similar lines in Tokyo for the far east theatre of war.!5
These two tribunals were ad hoc with a determined time frame—the war period
that had just ended. They were not truly “international” in character, with the
judges and prosecutors being drawn only from France, the United Kingdom,
the United States, and the former U.S.S.R. Nevertheless, the Nuremberg
Charter, Judgment and the Principles extrapolated therefrom by the Interna-
tional Law Commission and accepted by the United Nations General
Assembly'6 are an extremely pertinent precedent. This was the first task given
the ILC, which had been created by the General Assembly in 1947. It was also
mandated to formulate a Draft Code of Offences Against the Peace and Secu-
rity of Mankind and “to study the desirability and possibility of establishing an
international judicial organ for the trial of persons charged with genocide and
other crimes.”!7

The conclusion of the ILC was that such a body was desirable and possible.
In 1950 the General Assembly established a Committee on International
Criminal Jurisdiction to prepare a concrete proposal. A draft statute was sub-
mitted in 1951, and amended in 1953, but was not accepted, ostensibly because
of a failure to agree on an acceptable definition of the crime of aggression.!8

541


Ronald St. J. Macdonald

The only other significant precedent regarding the authorization of the use
of force by one member State against another member State, not including
complete warfare operations, was the request to the United Kingdom to en-
force a naval blockade outside the port of Beira in Mozambique during the riots
in South Rhodesia in 1966.27 Article 43 obliges members to make available to
the Security Council whatever assistance (armed forces, assistance, and facili-
ties) the Council requires for purposes of maintaining international peace and
security. This was to have been done by special agreements or agreements ne-
gotiated on the initiative of the Security Council. Interestingly, in view of the
legal limbo NATO found itself occupying during the Kosovo crisis of 1999, and
the present need to redefine NATO, which is a military alliance not a tradi-
tional regional arrangement, those agreements can be concluded between the
Security Council and “groups of Members.”

Some authors find that several articles in Chapter VII give the Security
Council a certain law-making capacity. For example, Kirgis affirms that “from
the outset, the Security Council has had quasi-legislative authority . . . Articles
41 and 42, buttressed by Articles 25 and 48, clearly authorize the Security
Council to take legislative action.”?8 This was also the opinion of distinguished
participants at the San Francisco Conference, one of whom observed that the
“Security Council is not a body that merely enforces law. It is law unto itself.”29

Under-appreciated and under-utilized, until recently, have been the possi-
bilities, inherent in Chapter VIII, which govern the functioning of regional ar-
rangements or agencies under the Charter. Article 52 states that nothing in the
Charter precludes the existence of regional arrangements or agencies for deal-
ing with such matters relating to the maintenance of international peace and
security as are appropriate for regional actions. Under Article 53, no enforce-
ment action can be taken under regional arrangements or by regional agencies
without the authorisation of the Security Council.3°

While Chapter VIII is frequently associated with the military activities of
the United States in Guatemala in 1954, the Dominican Republic in 1960, and
Cuba in 1960 and 1962, Secretary-General Boutros Ghali rightly pointed to
wider possibilities when he underlined the “useful flexibility” of the system as a
whole. In his 1992 report to the Security Council, An Agenda for Peace, he
pointed out that “decentralization, delegation and co-operation with UN ef-
forts could not only lighten the burden of the Council, but also contribute to a
deeper sense of participation, consensus and democratization in international
affairs.”3!

In my opinion, Chapter VIII, although focused on collective security, in no
way tules out regional cooperation in the economic, cultural, and social fields.

271


Ved Nanda

Security Council; the safe and free return of all refugees and displaced persons
and unimpeded access by humanitarian aid organizations to Kosovo; a political
process toward the establishment of an interim political framework agreement
providing for a substantial self-government for Kosovo based on the principles
of sovereignty and territorial integrity of Yugoslavia, and the demilitarization of
the Kosovo Liberation Army; and a comprehensive approach to the economic
development and stabilization of the region.5+ Left vague were terms covering
the composition and the command of the peacekeeping force envisaged by the
Group of Eight.

Eventually, after protracted diplomatic negotiations, led primarily by Rus-
sian envoy and former Prime Minister, Victor Chernomyrdin (who traveled to
Belgrade five times to talk with Milosevic) and NATO envoy President Martti
Ahtisaari of Finland, with the assistance of U.S. Deputy Secretary of State
Strobe Talbott,®5 a deal was struck between President Milosevic and NATO to
end the bombing. The Yugoslav Parliament accepted the peace document.6

The prior principles announced by the Group of Eight formed the core of the
international proposal to end the Kosovo conflict, which was accepted by
Milosevic on June 3.6? The major difference from the prior set of principles was
that now the international security presence to be deployed was to be “with
substantial NATO participation . . . under unified command and control.”68 A
military-technical agreement was to be “rapidly concluded that would, among
other things, specify additional modalities including the roles and function of
Yugoslav/Serb personnel in Kosovo.”©? Subsequently, after the foreign minis-
ters of the Group of Eight agreed on a draft Security Council resolution to end
the conflict, the Security Council resolved that the political solution to the
Kosovo crisis would be based on the General Principles earlier adopted by the
Group of Eight foreign ministers.?0

NATO's Bypassing the United Nations and the UN Role after the
Bombing is Halted

The reason that the United States and NATO bypassed the United Nations
by not seeking authorization from the UN Security Council to use force was ob-
viously their fear and the near certainty that Russia and China would use their
veto power in the Council to block the action; both these permanent members
of the Security Council had strongly opposed the use of air strikes against
Yugoslavia.

As NATO's strikes began, the Security Council held an urgent meeting.
Calling the strikes a blatant violation of the United Nations Charter, some

321


Making Law of War Treaties

At the outset of World War II, forty-nine nations were States Parties.22 Yet
the rules quickly proved a failure in that conflict. Each of the major naval pow-
ers—Germany, Italy, Japan, United Kingdom, and the United States—will-
ingly and systematically violated its provisions. While Germany, Italy, and the
United Kingdom moved steadily away from compliance, the departure of Japan
and the United States from compliance was instant and unhesitating. As will
be shown, recent scholarship revealed that the U.S. decision was premeditated.

Upon conclusion of that conflict, Germany’s naval leadership” was charged
by the International Military Tribunal at Nuremberg with waging unrestricted
submarine warfare contrary to the London Naval Protocol. That tribunal ac-
quitted each accused of the charge for Germany’s attack of British armed mer-
chant ships, but found each guilty of violation of the protocol with respect to
the attack of neutral merchant vessels by German U-boats and its rescue provi-
sions. However, in light of evidence offered of similar conduct by British and
U.S. submarines, the court awarded no punishment for these infractions.?+

This summary provides the framework for the analysis that follows: the re-
jection by all principal State Parties of a treaty devised in the years immediately
preceding the conflict, by (at least in theory) persons fully seized with the issue
and the experience of a previous conflict to assist them in their negotiation
efforts.

Initial Regulation Efforts, 1899-1914

Consideration of the possibility of regulation or prohibition of submarines
began at the turn of the century. On August 24, 1898, acting on behalf of Tsar
Nicholas II, Russian Foreign Minister Mikhail Muraviev proposed the conven-
ing of an international disarmament conference to address issues relating to
disarmament, the proscription or regulation of certain modern weapons of war,
and establishment of a mechanism for arbitration of international disputes.?>
Although other governments were suspicious of Russian motives, none felt
that they could afford not to attend, and the First Peace Conference was con-
vened in The Hague on May 18, 1899. Among its proposals, the Russian gov-
ernment offered to abstain from submarine construction provided all other
governments agreed.?6 As was true of its rationale for calling the conference,
Russia’s motivation for its proposal was primarily economic; with a dread-
nought construction race on, abolishing the new, unknown submarine would
reduce naval acquisition costs.?? Great Britain, Germany, Italy, Japan, and Ro-
mania expressed a willingness to accept the Russian proposal if it were adopted
by consensus. Other nations—Belgium, Greece, Persia, Siam, and

342


The Normative Framework of International Humanitarian Law

International humanitarian law applies from the initiation of such armed conflicts and
extends beyond the cessation of hostilities until a general conclusion of peace is reached;
or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment,
international humanitarian law continues in the whole territory of the warring States or,
in the case of internal conflicts, the whole territory under the control of a party, whether
or not actual combat takes place there.

Prosecutor v. Dusko Tadié, (IT-94-1-T), May 7, 1997, reprinted in 36 I.L.M. 908, 939-940 (1997)
(citations and footnotes omitted). See also Theodor Meron, Classification of Armed Conflict in the
Former Yugoslavia: Nicaragua's Fallout, 92 AM. J. INT'L L. 236 (1998).

8. See M. CHERIF BASSIOUNI, INTERNATIONAL CRIMINAL LAW CONVENTIONS AND
THEIR PENAL PROVISIONS 21-31 (1997), [hereinafter BASSIOUNI, ICL CONVENTIONS].

9. This is evidenced by the position of different governments in the Preparatory Committee
on the Establishment of an International Criminal Court. See Report of the Preparatory Committee
on the Establishment of an International Criminal Court, U.N. Doc. A/CONF.183/2/Add.1 (1998).

10. One reason will be the fact that international crimes involving State action or policy
potentially reach all the way to the top of the military and civilian hierarchy. See M. Cherif
Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent
International Criminal Court, 10 HARV. HUM. RTS. J. 11 (1997), [hereinafter Bassiouni, From
Versailles to Rwanda}, describing the history of international criminal investigatory bodies and
international criminal tribunals. With respect to the limits of command responsibility, see
INTERNATIONAL CRIMINAL LAW, supra note 5, at 21-74.

11. The regulation of armed conflicts benefits from the fact that regular armies are usually
‘well disciplined and have a tight command structure that controls discipline and the observance
of the laws of armed conflicts. Furthermore, regular armies have a shared interest in the
observance of the laws of armed conflicts because violations by one side toa conflict can result in
actions by the other side, even though reprisals are limited. See FRITS KALSHOVEN,
BELLIGERENT REPRISALS (1971). Conversely, however, when genocide or crimes against
humanity occur, the same constraints that exist in armies arising out of the considerations stated
above, are not usually present in the course of genocide and crimes against humanity.

12. Genocide and crimes against humanity, as discussed below, are, however, also applicable
to non-State actors. The problem of non-State actors, acting by themselves or in concert with
State actors nevertheless remains, as the definitions of genocide and crimes against humanity do
not specifically contemplate non-State actors, particularly when there is no concert of action
with State actors. By implication, however, it should be clear that genocide and crimes against
humanity apply to non-State actors as well.

13. The most recent example of such governmental reluctance to remove ambiguities and fill
gaps is that of the ICC Diplomatic Conference in Rome, June 15—July 17, 1998, whose statute
has not removed the overlaps, gaps, and ambiguities with respect to genocide, crimes against
humanity, and war crimes. See Rome Statute of the Intemational Criminal Court, U.N. Doc.
A/Conf.183/9 (1998), reprinted in THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT
(M. Cherif Bassiouni ed., 1998) [hereinafter ICC Statute].

14. This estimate is by some accounts for all conflicts since World War I, and by others for all
victimization since World War Il. See Jennifer L. Balint, An Empirical Study of Conflict, Conflict
Victimization and Legal Redress, 14 NOUVELLES ETUDES PENALES 101 (Christopher C. Joyner,
Special Ed. & M. Cherif Bassiouni, General Ed., 1998); M. Cherif Bassiouni, Searching for Peace
and Achieving Justice: The Need for Accountability, 59 LAW & CONTEMP. PROBS. 9 (1996). See,
eg. RJ. RUMMEL, STATISTICS OF DEMOCIDE, GENOCIDE AND MASS MURDER SINCE 1900

40


UN Forces and International Humanitarian Law

these be carried out in compliance with general or specific provisions of IHL,
such as those set out in the Bulletin, applied mutatis mutandis.

It should be noted that even though paragraph 1.2 of the Bulletin refers to
the 1994 “Safety” Convention, and that treaty refers to the applicability of IHL
to certain UN operations,” these two instruments do not fit together
seamlessly. The Convention excludes from its coverage Chapter VII operations
“in which any of the personnel are engaged as combatants against organized
armed forces,” while the Bulletin applies to all situations (that is, not only
Chapter VII operations or those in which the opponents are organized armed
forces) of armed conflict when UN forces are engaged therein as active com-
batants. Thus, there may be situations in which both the Bulletin and the Con-
vention would seem to apply (e.g., self-defensive combat in Chapter VI2
operations, or Chapter VII ones against unorganized militias) —but there is no
reason to fear that this would lead to any practical difficulties.

As to the substantive provisions of the Bulletin, it might be remarked that in
a few respects these do not reflect the most recent developments—presumably
because they were based on a draft prepared by ICRC experts in 1995. One of
these is the failure to refer, in the recitation in the last sentence of paragraph
6.2, which is evidently based on the original three protocols to the 1980 Inhu-
mane Weapons Convention,’ to the blinding laser weapons prohibited by the
1995 Protocol IV to the Convention.’6 Of course, it should not be difficult to
correct any oversights or to make other desired changes in the Bulletin, as the
Secretary-General can issue addenda, amendments or revisions at any time.

Special Protection of UN Forces

In considering the applicability of IHL to UN forces, account should also be
taken of several recent treaties by which the States parties are to accord special
protection to these forces, as well as to other related UN operations and per-
sonnel and to those of other intergovernmental and even non-governmental
organizations. In this connection, it should be noted that the principal IHL
treaties, in particular 1949 Geneva Convention IV and 1977 Protocol I, do
contain provisions protecting humanitarian activities carried out by organiza-
tions of anon-military character,’? which might apply to UN operations such as
those of UNHCR, UNICEF and the World Food Programme, but not to any
Blue Helmet force.

The first protective provision referring directly to UN forces appeared in the
1980 Mines Protocol’8 to the 1980 Inhumane Weapons Convention,” in
which Article 8, “Protection of United Nations forces and missions from the

520


Paul C. Szasz

conduct military operations effectively; and finally, the mixed reactions some
States may have about any given operation, arising from historical alliances and
prejudices or genuinely different interests. In spite of this ambivalence, it should
be recognized that as the world community is at present constituted, there will be
occasions, whether many or few, when the use of collective military force will be
necessary—just as was foreseen half a century ago by the founders of the United
Nations. What is important is that such use of force always reflect the collective
will of the world community, and at present such collective will can be expressed
only through the competent organs of the United Nations.

What is equally important is that when military force is used by the world com-
munity, it should invariably be subject to the civilizing restraints of interna-
tional humanitarian law, as expressed in relevant customary international law
and especially as set out in numerous universal treaty instruments—including
those that were negotiated and adopted only recently by great majorities in in-
ternational fora, even if these have not yet been formally ratified by all States.
In other words, if and when the United Nations—always reluctantly—sallies
forth to do battle, it should only do so subject to all restraints that reflect the
most advanced humanitarian principles on which a large measure of—but not
necessarily universal—agreement has been reached. The Secretary-General’s
Bulletin is well designed to help to ensure that this be so.

Although there can be no doubt that the Secretary-General had the author-
ity to promulgate the Bulletin, it would certainly acquire greater gravitas and
receive more respect from States and even from unofficial armed forces if it
were explicitly endorsed by the competent political organs, ideally by the Gen-
eral Assembly acting on a recommendation of the Security Council. Further-
more, the Council could and should provide that the fundamental principles
and rules set out in the Bulletin—or at least a general statement about the need
to observe IHL—should also apply to all military operations authorized by the
Council, whether as a delegated or franchised military operation under Charter
Article 42, or in self-defense under Article 51, or carried out by a regional orga-
nization under Article 53.1

Now that the extensive spadework to articulate a set of IHL principles and
tules has been accomplished, it is important to see to their full implementation.
In particular, the undertaking set out in Section 3 of the Bulletin, that the
members of all UN forces will be made fully acquainted with the principles and
tules of the general conventions applicable to the conduct of military person-
nel, should be carried out—which will evidently require the cooperation of ac-
tual and potential troop-contributing States. The result should be to raise the
standards by which these forces operate so as to leave no doubt that in all

525


Outer Void Space Not Reserved for Exclusively Peaceful Use

The objective of verifying all launchings has obviously not been achieved.
A rather similar idea was that proposed by France in 1978. This was for an in-
ternational satellite monitoring agency (ISMA) to verify arms control treaties,
as well as to monitor crisis areas.>° Even more ambiguous proposals were subse-
quently made by, among others, Italy,4° Australia and Canada,*! and in due
course, in a complete volte-face, probably not uninfluenced by the United
States Strategic Defense Initiative, by the Soviet Union itself, which in 1988
put forward the idea of a international body of inspectors to carry out on-site
inspections to ensure that no object carrying weapons would be launched into
space.*2 However, such ideas appear to be some distance away from fruition,#3
although, as things turn out, remote sensing satellites have become one of the most
useful tools in the verification of arms limitation and disarmament agreements.*+

But, returning to the Space Treaty, it can be seen that, for the rest, the basic
ideas of the 1960 Eisenhower proposal have been largely agreed to by the Soviet
Union and the other States and translated into binding obligations in the 1967
Space Treaty. Although, following item 1 of the Eisenhower proposal, the initial
United States draft of a treaty put forward by the Johnson administration was lim-
ited to celestial bodies,*5 the United States was quick to agree with the overwhelm-
ing desire in COPUOS, including that of the Soviet Union, to enlarge the scope of
the Treaty to the whole of outer space.4° Item 1 thus finds expression in Article II
of the Space Treaty. Article IV of the Treaty is clearly inspired by items 2 and 3.

As regards item 4, this is, of course, what the rest of the Space Treaty is all
about: a programme of international co-operation for “constructive peaceful
uses of outer space under the United Nations.” Thus the phrase “international
co-operation” or “co-operation” is expressly referred to in at least five of the
thirteen substantive articles of the Treaty, including, as mentioned before, Ar-
ticles I, IX and XI, whilst several of the remaining articles are concerned with
mutual assistance in the event of accident, distress or emergency, such as Arti-
cles V and VIII.47 In order further to drive home the point that “peaceful” can
only mean “non-military” and not “non-aggressive” in the context of outer
space, one merely has to reflect whether President Eisenhower, especially as he
was harking back to the Antarctic Treaty and the Atoms for Peace Plan, could
really and realistically have suggested that States should establish a programme
under the United Nations for international co-operation in the non-aggressive
uses of outer space, including military uses. At the same time, it may also be
useful to recall that up to this point, we have come across no hint from the su-
perpowers or the actual drafts to the Treaty that the whole of outer space
should be reserved in law exclusively for peaceful purposes. The only provision
on use exclusively for peaceful purposes is in Article IV(2), and this applies

94


Shabtai Rosenne

crimes and international delicts.” It is, however, a confused article, not differ-
entiating clearly between acts of State of particular gravity and acts of the indi-
vidual that are themselves violations of rules of international law to which an
individual is subjected, such as genocide.58

It is interesting to note that throughout the prehistory of the Rome Statute,
in which the applicable law was a central issue, little thought appears to have
been given to the relationship of the general law of State responsibility and the
international criminal law to be applied by the International Criminal Court.
So far, the International Law Commission does not appear to have faced the
matter until 1998, when it was raised for the first time.°? This issue was appar-
ent during the drafting of the Genocide Convention, as appears from the com-
bination of Articles VI and IX of that Convention, discussed earlier. Article 19
was introduced into the draft articles on State responsibility in 1976, and there-
fore has been present throughout the greater part of the renewed discussions
on the establishment of an international criminal court. This interrelationship
is a matter to which further thought should be given, especially in connection
with the provisions in the articles on State responsibility regarding the dis-
charge of the international responsibility, and in regard to the settlement of dis-
putes. Trial and punishment of the individual responsible for the crime coming
within the jurisdiction of the International Criminal Court, and that in fact in-
cludes all the crimes listed in Article 19 as it now stands that can be committed
by an individual, may well be included as an element of satisfaction for the di-
rectly injured State. For this reason, the question arises whether the completed
codification of the law of State responsibility should not contain a parallel pro-
vision, to the effect that nothing in that codification affects any question of
criminal responsibility coming within the jurisdiction of the International
Criminal Court.

When the Rome Statute enters into force, the international community will
have three standing international tribunals at its disposal—the International
Court of Justice (ICJ), the International Tribunal for the Law of the Sea
(ITLOS), and the International Criminal Court (ICC). There is very little
overlap between them as to jurisdiction, and the risk of the fragmentation of
the law is slight. The case law of the two ad hoc criminal tribunals. ICTY and
ICTR, established by the Security Council, shows a marked tendency to seek
guidance from the jurisprudence of the International Court. The limited expe-
rience to date of ITLOS shows a similar inclination, and one must presume that

407


Westphalian Peace Tradition

idealism of ambitious blueprints for the future? and laissez-faire oriented real-
ism.

The Peace of Westphalia and the Grotian Legacy

In October 1648, after 30 years of war and almost four years of negotiations,
two peace treaties were signed in the Westphalian cities of Osnabriick and
Miinster. Most of the international actors of 17*-century Europe were repre-
sented at the peace congress: the Holy Roman Empire; nation-States like
France, Sweden, Spain, and Portugal; an emerging State, the Netherlands
(then called the United Provinces); the Holy See; i.e., the Swiss Confedera-
tion; Italian units such as Venice, Tuscany, and Savoy; and various German
principalities and bishoprics, etc.3 It was the first general peace congress in the
history of Europe. Among its immediate results were the introduction of a prin-
ciple of religious tolerance, the breakdown of medieval imperial and clerical
universalism, and the downgrading of the papacy to the status of a second-class
international actor. Moreover, in a longer term perspective, the peace contrib-
uted to the emergence of the modern international system of territorial and
sovereign States, a system where actors were (and are) maximizing their own
State interests, while at the same time striving for a balance of power.

From a legal point of view, the principle of national sovereignty was now in
the foreground, while at the same time restrictions in sovereign rights were rec-
ognized as a consequence of, inter alia, the Westphalian Peace Treaties.
Against a backdrop of natural law perceptions, nation-States, city-States, and
principalities alike perceived themselves as being part of a European collective
bound together by an emerging law of nations (jus inter gentes). The traditional
Roman concept of jus gentium survived, but took on a more State-oriented
meaning. International law, as we know it today, started to develop through
new (more efficient) forms of diplomacy, relying to a greater extent on perma-
nent missions and an increased registration of State practice.

Hugo Grotius died in 1645, but left behind* a conception of an international
society which, at least in part, seemed to materialize after the Peace of
Westphalia. To some extent, this conception was realist in the sense that he
was aware of the importance of sovereignty, stressing that a sovereign State is a
power “whose actions are not subject to the legal control of another.” More-
over, Grotius did not promote a doctrine of equality of States but rather recog-
nized power differences and legal relationships based on non-equality.® Yet the
conception was idealistic in the sense that, consistent with stoic doctrine, a so-
ciety of mankind, not one of States alone, was envisaged.’ In this society, the

58


Ronald St. J. Macdonald

n intervention mounted by multinational forces in response to a threat to
international stability” (p. 736).

15. See on this subject, among others, Johan Kaufmann, Developments in Decision-Making in
the United Nations, in Richard A. Falk, Samuel L. Kim, Saul H. Mendlovitz (eds.), THE UNITED
NATIONS AND A JUST WORLD ORDER (Boulder: Westview Press, 1991), p. 130ff.

16. Rene Degni-Sagui, Article 24, paragraphes 1 et 2, in COT ET PELLET, note 5, p. 451 ff.

17. ICJ REPORTS, 1971, p. 54ff.

18. For a discussion of the case itself see, among others, Benedetto Conforti, note 2, p. 4, p.
253ff., Degni-Segui, note 16, p. 452f.

19. MOHAMMED BEDJAOUI, THE NEW WORLD ORDER AND THE SECURITY COUNCIL.
‘TESTING THE LEGALITY OF ITS ACTS (Dordrecht: Martinus Nijhoff, 1994), p. 5.

20. UN Doc. S/PV.3063, at pp. 54-55.

21. Frederic L. Kirgis, Jr., The Security Council’s First Fifty Years, 89 AMERICAN JOURNAL OF
INTERNATIONAL LAW 517ff. (1995).

22. ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE
USE IT (Oxford: Clarendon Press, 1994), chapters 14 and 15.

23. Benedetto Conforti, In tema di azioni del Consiglio di Sicurezza a tutela della pace e della
sicurezza, 48 COMUNITA INTERNAZIONALE 701 (1993); Falk, note 8, p. 23.

24. Falk, note 8, p. 23.

25. Pemmaraju Sreenivasa Rao, The United Nations and International Peace and Security—An
Indian Perspective, in Tomuschat (ed.), note 4, p. 161.

26. In that the aggression was provoked, it trespassed recognized international borders and
was carried on by the army of a member State invading another member State, in a region
involving vital interests of the main powers. Gareth Evans, The New World Order and the United
Nations, in Mara R. Bustelo and Philip Alston (eds.) WHOSE NEW WORLD ORDER? WHAT
ROLE FOR THE UNITED NATIONS? Centre for International Public Law, (Sidney: Federation
Press, 1991), p. 5ff.

27. Conforti, note 23, p. 704.

28. Kirgis, note 21, p. 520. Kirgis considers as legislative actions those being unilateral in
form, creating or modifying part of a legal norm of general nature. Actions such as economic
sanctions are unilateral because they are adopted by the Security Council instead of the
generality of States, are binding, and not directed to a particular State but general in nature.

29. JOHN FOSTER DULLES, WAR OR PEACE (New York: MacMillan, 1950), p. 194.

30. Simma, note 7, p. 679; Joachim Wolf, Regional Arrangements and the UN Charter, in
Rudolf Bernhardt (ed.), ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW, Installment 6
(1983), p. 289; Sergio Gonzalez Galvez, The Future of Regionalization in an Asymmetrical
International Society, in Ronald St. J. Macdonald and Douglas Johnson (eds.), THE STRUCTURE
AND PROCESS OF INTERNATIONAL LAW (The Hague: Martinus Nijhoff, 1986), p. 661; Ronald
St. J. Macdonald, The Developing Relationship between Superior and Subordinate Political Bodies of
the United Nations and the Organization of American States, 2 CANADIAN YEARBOOK OF
INTERNATIONAL LAW 21 (1964). This essay ends with the statement (p. 54) that “there is a
certain inevitability about the articulation and acceptance of effective standards on review and
supervision, and one can’t avoid thinking that, had Chapter 8 not appeared in the Charter, the
Organization’s practice would have created it nevertheless.” I believe that as firmly in 2000 as I
did in 1964; see also Russel, note 7, p. 693ff.

31. As quoted by Neri Sybesma-Knol, The Continuing Relevance of the Participation of
Observers in the Work of the United Nations, in Karel Wellens (ed.), INTERNATIONAL LAW:

295


The Normative Framework of International Humanitarian Law

the group that inhabits a certain area, or a given town, or a segment of that
group such as the intellectuals or the women in that group? That was the issue
that faced the Commission of Experts?’ in determining whether “ethnic
cleansing”’? could be deemed a form of genocide. Similarly, the issue arose with re-
spect to the policy of systematic rape of the women ofa certain identifiable group.8°

The Genocide Convention leaves these questions unanswered, but it would
be valid to consider the Convention as susceptible of progressive interpretation
in light of the new techniques that nefarious planners devise to achieve their
evil goals. The Genocide Convention justifies an evolving interpretation that
fulfills its goals and purposes.8!

Since 1948, “genocide,” as defined in the Genocide Convention, ®? has been
embodied in three international instruments, to wit, the statutes of the
ICTY,83 ICTR,®4 and the Statute of the International Criminal Court,85 and
the incorporation of Article II of the Genocide Convention into these three in-
struments has been without change.®6 Accordingly, none of the problems evi-
dent since 1948 have been addressed to date.

The ICC Statute, Article 6, basically adopted the Genocide Convention’s
formulation with almost no change,87 except that of combining in one article
the provisions contained in Articles 2 and 3 of the Genocide Convention.

War Crimes

The regulation of armed conflicts has two sources: (1) conventional law,
also referred to as the “Law of Geneva,” consisting of the four Geneva conven-
tions of 194988 plus two additional protocols of 19778? relating to “conflicts of
an international character” and to “conflicts of a non-international character;”
and (2) customary law, also referred to as the “Law of The Hague,” which refers
to the customary practices of States.%?

As stated above, however, the “Law of The Hague” is not exclusively cus-
tomary law because it is in part treaty law and the “Law of Geneva” is also not
exclusively treaty law because it incorporates customary law. Thus, the tradi-
tional distinction between conventional and customary law is substantially
eroded. Additionally, the treaty law that applies to weapons derives from both
customary and conventional law, and that body of treaty law, as well as some of
its specific norms, has become part of customary law. Customary law, however,
is binding only on the States that share in the custom and that express their will
to be bound by it unless it becomes a general custom that is binding on all
States. Consequently, States that do not follow the custom, unless it is a general
custom, are not bound by it as a legal obligation. Nevertheless, a custom can

10


Ved Nanda

NATO had brazenly attacked the Chinese Embassy in Belgrade with five missiles.
Three people in the Embassy had been killed and more than 20 injured. The
Embassy building had been severely damaged. Such a criminal act was a flagrant
encroachment on China’s sovereignty and a serious violation of international
law and the norms governing international relations. As a victim, China had
every reason, on both moral and legal grounds, to demand that NATO stop
bombing the Federal Republic of Yugoslavia immediately and unconditionally.83

In explaining why his country could not support the text of the resolution,
the Russian representative said that “Russia had repeatedly warned against the
dire consequences created by NATO’s illegal military actions. It was contin-
ued bombing that could lead to an escalation of the humanitarian tragedy—a
fact that was not reflected in the resolution. Narrow national interests had pre-
vailed over Charter obligations in the case of some Member States.”84

Earlier, on May 8, the Security Council had met at the request of the govern-
ment of China, after the Chinese Embassy in Belgrade was accidentally
bombed by NATO the preceding day.85 The Chinese representative read a
statement from his government that said:

Flagrant bombing by NATO, Ied by the United States, had already caused
enormous casualties and now it had gone so far as to bomb the Chinese Embassy.
That was a violation of the sovereignty of China, and of the basic norms of
international relations. China expressed the utmost indignation and severe
condemnation of this barbaric activity. It made the strongest protest. NATO,
headed by the United States, must assume the responsibility. China reserved the
right to take further measures.86

He added: “The frenzied bombardment by NATO, led by the United States,
of Yugoslavia over the last 45 days had resulted in civilian casualties. It had
now violated a mission. This was shocking. NATO should stop the air strikes
immediately and unconditionally.”8? He was joined by the representative of
Russia expressing outrage “over the barbaric action,” and calling for an imme-
diate halt to the strikes.88 The United States representative expressed his gov-
ernment’s regrets and offered condolences to the Chinese Ambassador,8? and
was joined by several other representatives expressing their sympathy to China
and condolences to families of victims.9°

Finally, after lengthy negotiations, the UN Security Council adopted a reso-
lution on June 10, 1999,%! under which the United Nations was called upon to
provide “international civil and security presences” in Kosovo.°2 The Council
decided that the General Principles adopted by the G-8 Foreign Ministers on

323


Westphalian Peace Tradition

Asphyxiating Gases and Expanding (“dum-dum”) Bullets].5” But ultimately
the work of the Conference centred on the third Committee and the proposal
for a permanent court of arbitration.

The initial objective was to make arbitration compulsory in disputes of a less
important nature, namely those which did not affect “vital national interests.”
In the end, after German recalcitrance, the idea of compulsory arbitration was
completely abandoned, although a permanent body (the Permanent Court of
Arbitration) was established through the agreed-upon Convention for the Pa-
cific Settlement of International Disputes. Article 1 of the Convention, signed
on July 29, 1899, stipulates:

With a view to obviating, as far as possible, recourse to force in the relations
between States, the Signatory Powers agree to use their best efforts to ensure the
pacific settlement of international differences.58

This non-obligatory wording leaves it to the parties of a dispute to find ways
and means of solving their differences. There is no binding renunciation of the
use of force, merely a declared intention to avoid resorting to force “as far as
possible.”

Article 2 deals with good offices and mediation. Here the contracting parties
agree, “before [they chose] an appeal to arms,” to have recourse to such proce-
dures, but only “as far as circumstances permit.”

Articles 15-57 lay down the system for international arbitration and Articles
20-29 concern “the Permanent Court” (consisting of an International Bureau,
which serves as a record office, and a list of Arbitrators/Members of the Court).
Atbitral procedure is set forth in Articles 30-57 and Article 56 makes clear that
an award “is only binding on the parties who concluded the [specially regu-
lated] ‘Compromis’.” Despite all the deferences to national sovereignty and
State consent, the Convention represented considerable progress at its adop-
tion. Since Westphalia, it was the first step taken in international law to place
legal restrictions upon the right of States to resort to war as an instrument of
national policy. It was a jus contra bellum in a limited sense. A permanent insti-
tution had been established and the rules of procedure facilitated arbitration
considerably, since such rules no longer had to be agreed upon in each case.

It has been said that

The importance of the First Hague Peace Conference lay not so much in what it
actually accomplished as in the fact that it accomplished something and that it set
a precedent for future meetings. . . . Earlier opinions of the work done were not
very enthusiastic, and it was only later, when the second Conference met in

16


Legal Implications of NATO’s Armed Intervention in Kosovo

10. S.C. Res. 1160, U.N. SCOR, 53rd Sess., 3868th mtg., U.N. Doc. S/RES/1160 (1998),
para. 8.

11. Id., para. 5.

12. Id., Preamble.

13. Id., para. 19.

14. Pursuant to art. 2, para. 7, of the U.N. Charter.

15. S.C. Res. 1199, U.N. SCOR, 53rd Sess., 3930th mtg., U.N. Doc. S/RES/1199 (1998).

16. Id., para. 3.

17. Id., para. 4(b).

18. Id., para. 4(c).

19. NATO's Role, supra note 6.

20. See the NATO Secretary-General’s Press Statement of October 13, 1998, <http://
www.nato.int/docu/speech/1998/s981013a.htm>.

21. See U.N. Doc. $/1998/978, Oct. 16, 1998.

22. See U.N. Doc. $/1998/991, annex, Oct. 15, 1998.

23. See U.N. Doc. $/1998/953, annex, Oct. 13, 1998.

24. See id.

25. Id., at 3.

26. S.C. Res. 1203.

27. Id., paras. 3,4.

28. Report of the Secretary-General Prepared Pursuant to Resolutions 1160 (1998), 1199
(1998) and 1203 (1998) of the Security Council, U.N. Doc. S/1998/1068, Nov. 12, 1998, at 2
[hereinafter Nov. 1998 SG Rep].

29. Id., para. 45.

30. Id., annex I, para. 30. See id., paras. 30-31.

31. Id., annex II.

32. See NATO's Role, supra note 6, at 3.

33. Id.

34. Interim Agreement for Peace and Self-Government in Kosovo, February 23, 1999,
<http://vww.suc.org.kosovo-crisis/documents/kia 0223.html>.

35. Id., Framework and ch. 1, Constitution.

36. Id., ch. 7.

37. Id., ch. 8, art. 1(3).

38. See NATO's Role, supra note 6, at 3.

39. Id.; The Rationale for Air Strikes, Editorial, N.Y. TIMES, March 24, 1999, at A26, col. 1;
Jane Perlez, NATO Authorizes Bomb Strikes; Primakov, in Air, Skips U.S. Visit, March 24, 1999,
N.Y. TIMES, at Al, col. 6.

40. Javier Solana, Statement by NATO Secretary-General on Air Strikes, March 23, 1999,
<http://more.abcnews.go.com/sections/world/ DailyNews/solana transcript.html>.

41. Id.

42. Steven Lee Myers, Early Attacks Focus on Web of Air Defense, N.Y. TIMES, March 25,
1999, at Al, col. 1.

43.N.Y. TIMES, March 25, 1999, at A15, col. 2. In the President’s words: “We act to prevent
a wider war.” Id.

44. Quoted in Judith Miller, The Secretary General Offers Implicit Endorsement of Raids, N.Y.
TIMES, March 25, 1999, at A13, col. 1.

45. NATO HQ, Brussels, Press Conference by Jamie Shea and General Wesley Clark, April
13, 1999, at 4, <http://Avww.nato.int/docu/speech/1999-/s990413a. htm>.

332


my apologies, but ask that they forgive the oversight if only on the basis that an
all-inclusive collection would have run many volumes and taken years to
complete.

As to those that have honored Professor Green with a chapter, a quick
glance at the table of contents will immediately illustrate the high regard in
which the international legal community holds him. Contributors come from
Canada, Germany, Israel, Sweden, the United States, and the United King-
dom. They include professors, diplomats, a university president, civil servants,
military officers, human rights experts, and practitioners before international tri-
bunals. Each is an extraordinary individual in his or her own right, with a repu-
tation that is international in scope. That every one of them took on the not
insignificant task of writing to honor their friend is a true testament. Of perhaps
particular note is the contribution by Georg Schwarzenberger, the great Uni-
versity of London international law scholar. As many may know, Professor
Schwarzenberger was the young Leslie Green’s first true mentor. Indeed,
Professor Green once confided in me that even after he had developed an in-
ternational reputation, he still sent a copy of every publication to Professor
Schwarzenberger—and waited on pins and needles for the always-frank ver-
dict. The particular article that has been included, reprinted here with the kind
permission of the American Society of International Law, is, in Professor
Green’s estimation, Schwarzenberger’s finest work of article length.

All books are the products of many hands; this one more than most. First, I
would like to thank each of the contributors. As they know, publication of the
book encountered a number of unforeseeable obstacles. Their patience in the
face of delays was much appreciated. This volume of the International Law
Studies series also marks the reunion of the Oceans Law and Policy Depart-
ment and the Naval War College Press. The Editor-in-Chief of the Press, Profes-
sor Tom Grassey, has always been a champion of international law, and his
support and personal friendship is warmly appreciated. The Press editor of this
volume, Ms. Pat Goodrich, deserves particular commendation. Few can under-
stand the difficulties she encountered—and overcame—in pulling together a
project that involved an editor based in Germany, authors on three continents,
and a new word-processing department which had never before done a Naval
War College publication. But for her selfless efforts, this book would simply not
exist. It would also have remained a mere aspiration without the financial and
personal support of the College’s then Dean of the Center for Naval Warfare
Studies, Dr. Bob Wood. That his successor, Dr. Alberto Coll, himself a former
Blue Book editor, continues to back the College’s cutting edge work in interna-
tional law is a tribute to his vision. Of course, primary responsibility for

xi


Ove Bring

individual possessed fundamental rights and freedoms and was not merely an
object.8 It is possible to deduce from his thinking, as Hedley Bull has done, the
interpretation that Grotius was alluding to an international society of a more
advanced nature—an international community—which implied a vision of
“solidarism” and consensus in international relations.?

As Bull himself and others have pointed out, Grotius said little or nothing
about crisis management, balance of power, great power responsibilities, inter-
national institutions, multilateral conferences, or collective suppression of ag-
gression!©_in other words, nothing about collective security. Benedict
Kingsbury and Adam Roberts have noted that certain “solidarist” principles
are nevertheless discernible in his writings. They are, however, difficult to
concretize, a point made by Kingsbury.

Grotius’ positions on such solidarist themes as the consequences of the justice or
injustice of a war... and the enforcement of law by third parties generally, are all
complex and often difficult to reduce to rules of decision.!!

In these areas, the treaties of Osnabriick and Miinster did, as we shall see,
carry things somewhat further and with greater clarity than the doctrines of
Grotius. His view of the law was “registrative” and backward-looking. He
wanted to remind his contemporaries of the nature of the existing legal system,
that it was almost as old as humanity itself and was “supposed to be as valid in
his time as it had been in Roman times.”!2 As a consequence, Grotius’ thinking
was not in full harmony with the Westphalian Peace regime, which was future-
oriented and designed to expound a new legal order relating to the use of force
in Europe.

In De Jure Belli ac Pacis, Grotius picked up the medieval and theological Just
War Doctrine and elaborated his own version of it. Although he circumscribed
the right to wage war to a number of instances in order to curb wars of con-
quest, his immediate legacy tended to be counterproductive to that purpose.
His basic bellum justum principle is reasonably clear: “war ought not to be un-
dertaken except for the enforcement of rights.”!3 Since Grotius wrote this at a
time when acts of violence for the enforcement of rights occurred between ac-
tors other than States, such as families, cities, and corporations, and since he
was not ready to exclude such bellum privatum from the legal sphere, but rather
draw analogies from it with regard to inter-State relations, his position could be
described as admissive vis-d-vis the use of force generally. However, at the
same time he tried to introduce, de lege ferenda, a State monopoly on the use of
force, for he perceived it to be conducive to law and order.

59


Ove Bring

contrary claims were simultaneously true, although both parties to a conflict
could act bona fide and accusations of unjustness should be avoided in such sit-
uations. Nevertheless, he rejected all suggestions that the end justifies the
means and that might is right. He recognized the need for collective action
against aggressors that upset the balance of power. The common safety of the
society of nations would permit joint action to restrain and punish rogue
States.34 .

While Wolff and Vattel were busy authoring their volumes on “the law of
nations,” the international scene around them was characterized by power pol-
itics. In 1740 Frederick the Great of Prussia embarked upon the Austrian War
of Succession, from which Prussia emerged in 1748 as a new Great Power.
Again the balance of power had shifted. Other wars followed: the Seven Year
War (1756-63) and the Bavarian War of Succession (1778-79). Although dur-
ing this era an unprovoked attack was regarded as immoral behaviour, a war of
aggression was not necessarily looked upon as illegal under the public law of
Europe or the law of nations. The Articles of the Treaty of Miinster, indicating
the contrary, had yielded to what Schwarzenberger has called the Grotian
“elasticity of just causes of resort to war.”39 In retrospect it could be argued that
Grotius’ jus ad bellum doctrine had served to license war rather than to restrict
it. One of Grotius’ purposes was to curb wars of conquest. Sharon Korman has
made the point in a recent thesis that Prussia’s conquest of Silesia (1740) and
the three partitions of Poland (1772, 1793, 1795) were accepted by the Euro-
pean States and thereby confirmed the existence of a right of conquest.36 At
the time, balance of power arguments were used to legitimize both the con-
quest of Silesia and the enforced partitions of Poland. The Westphalian Peace
concept (where the balance of power ideology was linked to the non-use of
force) had vanished from State practice, but it survived in different variants in
political and philosophical literature.

Elements of Jus contra Bellum in Political Philosophy 1713-1806

During the negotiations leading up to the Peace of Utrecht, the French
Abbé de Saint-Pierre served as a secretary to the French delegation and, in his
spare time, elaborated a peace plan for Europe. It first appeared in 1712 as
Projet de la Paix Universelle. The following year a more extended version under
the less ambitious title Projet pour rendre la Paix perpituelle en Europe was pub-
lished. Saint-Pierre may have been influenced by the Quaker William Penn’s
booklet, Essays Towards the Present and Future Peace of Europe (1693), in which
Penn put forward the idea of a federation of European States (including Russia

65


Wolff Heintschel von Heinegg

the local authorities, or if no period of grace has been provided, neutral vessels
must be allowed to leave the blockaded area (Article 16, paragraph 2). Vessels
that in actual or presumptive knowledge of the blockade*° attempt to leave or
enter the closed port may be captured as long as they are being pursued by a
warship of the blockading force and are subject to condemnation (Articles 14,
17, 20, and 21). The limitation of the right of capture to the area of operation of
the warships detailed to render the blockade effective is the result of a compro-
mise between the English and the continental European position. In any event,
according to Articles 17, 19, and 20, neither the doctrine of continuous voyage
nor the “droit de suite” that had been practiced excessively during the 18th
century survived.>! In case of a vessel approaching a blockaded port, without
(actual or presumptive) knowledge of the blockade, notification must be made
to the vessel itself (Article 16 paragraph 1). Finally, a blockade must be con-
fined to ports and coasts belonging to or occupied by the enemy (Article 1) and
may not bar access to neutral ports or coasts (Article 18).

Although the 1909 London Declaration never entered into force because of
resistance by the House of Lords to ratification, its provisions on blockade were
observed during the Balkan Wars and were included in a number of national
prize regulations.52 Apart from the applicability of the doctrine of continuous
voyage, at the beginning of the First World War they were generally regarded as
customary in character.53 However, in view of the rapid development of weap-
ons technologies (long distance artillery, submarines, military aircraft) and the
necessary modification of naval strategies and tactics it soon became impossible
to observe Articles 1 ff. of the London Declaration. The traditional blockade
was replaced by the long-distance blockade that—by a simultaneous excessive
application of the doctrine of continuous voyage—in fact led to the barring of
neutral ports and coasts.>4 Neutral trade was subjected to far-reaching control
measures, some even taken in their respective home ports. For instance, mer-
chant vessels that did not possess a navicert were either diverted or captured,
even if they had not approached blockaded coasts or ports. Moreover, the
belligerents established huge minefields and exclusion zones (“Sperrgebiete”)
within which all vessels, regardless of the flag they were flying, were attacked
without prior warning.55 During the Second World War that practice was re-
peated and led to even further restrictions of neutral trade.56 To give but one
example of the excessive use of the right of blockade, it suffices to quote the
British Order-in-Council of November 27, 1939:

1. Every merchant vessel which sailed from any enemy port, including any port in
territory under enemy occupation or control, after the 4th day of December,

209


Legal Implications of NATO’s Armed Intervention in Kosovo

jurisdiction of the Court might be established.”!!4 The Court noted that Yugo-
slavia’s Declaration recognizing the compulsory jurisdiction of the Court “in all
disputes arising or which may arise” after the signing date,!!5 was deposited
with the Secretary General on April 26. Yugoslavia’s contention was that, un-
der its Declaration, the Court should consider all disputes effectively arising af-
ter April 25. Specifically, it referred to bombing attacks that NATO had waged
on April 28, May 1, May 7, and May 8.

The Court, however, determined that, since the bombings in question had
begun on March 24 and had continued beyond April 25, the legal dispute be-
tween Yugoslavia and NATO member States arose “well before 25 April 1999
concerning the legality of those bombings as such, taken as a whole.”!16 It
added, “The fact that the bombings have continued after 25 April 1999 and
that the dispute concerning them has persisted since that date is not such as to
alter the date on which the dispute arose,” and that “each individual air attack
could not have given rise to a separate subsequent dispute. . ., [and] at this
stage of the proceedings, Yugoslavia has not established that new disputes, dis-
tinct from the initial one, have arisen between the Parties since 25 April 1999
in respect of subsequent situations or facts attributable to Belgium.”!!7 Thus,
the Court concluded that it could not base its jurisdiction upon Yugoslavia’s
Declaration and, by a vote of 12 to 4, rejected Yugoslavia’s request for the indi-
cation of provisional measures.118

Also, the Court did not consider the provisions of the Genocide Convention
to be applicable since, under the Convention’s definition of genocide at Article
II, the essential characteristic of the crime is the intended destruction of a na-
tional, ethnic, racial, or religious group, and, in the Court’s opinion, NATO
bombings did not entail the element of intent towards a group as such.!19

With minor variations, the Court also rejected Yugoslavia’s claims against
other NATO members.!20 The determination was made on technical grounds
in some cases, such as that the United States had made reservations to Article
IX of the Genocide Convention, under which any dispute pertaining to the
Convention could be brought before the Court,!#! and declarations of Spain!22
and the United Kingdom, 23 under which no State accepting the ICJ’s compul-
sory jurisdiction could institute proceedings within twelve months after the fil-
ing of the Declaration.

Although the Court did not indicate any provisional measures requested by
Yugoslavia, it did state that its findings “in no way prejudge the question of the
jurisdiction of the Court to deal with the merits of the case or any questions re-
lating to the admissibility of the Application, or relating to the merits them-
selves.”!24 The Court also asked the parties to “take care not to aggravate or

326


UN Forces and International Humanitarian Law

operation [by Resolution 794 (1992) of 3 December 1992} did not include such a provision. See
Chapter 14.B-C of THE BLUE HELMETS, supra note 2.

74. Article 20(a) of the Convention, infra note 81; see also Article 2.2 relating to the scope of
coverage of the Convention.

75. See infra note 79.

76. UN Doc. CCW/CONF.1/16 (Part I), 35 ILM 1218 (1996).

71. See, e.g., Article 63 of Geneva Convention IV, supra note 28.

78. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other
Devices (Protocol II) to the Inhumane Weapons Convention, infra note 79, 1342 UNTS 168, 19
ILM 1529 (1980).

79. Convention on Prohibitions and Restrictions on the Use of Certain Conventional
Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects,
1342 UNTS 137, 19 ILM 1523 (1980). It should be noted that the denunciation clause of the
Convention (Article 9.2) contains a provision preventing the denunciation of a protocol from
taking effect while a UN force protected by that protocol is continuing to perform its functions in
the denouncing State.

80. UN Doc. CCW/CONF.1/16 (Part I), 35 ILM 1206 (1996).

81. General Assembly Resolution 49/59 of 9 December 1994, Annex, UNTS Reg. No.
1-35457, 34 ILM 482 (1995). The Convention entered into force on 15 January 1999.

82. UN Doc. A/CONF.183/9 (1998), 37 ILM 998 (1998); a version of the Statute including
the numerous corrections that had been circulated by the depositary on a non-objection basis
has been issued by the ICC Preparatory Commission as document PCNICC/1999/INF.3. The
Statute is not yet in force.

83. Id., respectively Articles 8.2(b) (iii) and 8.2(e) (iii).

84. See, e.g., Meron in the Condorelli Colloque (supra note 5) at 444.

85. UN Doc. $/25704 of 3 May 1993, Annex, 32 ILM 1163 (1993), approved by Security
Council Resolution 827 (1993) of 25 May 1993, 32 ILM 1203 (1993).

86. Security Council Resolution 955 (1994) of 8 November 1994, Annex, 33 ILM 1600
(1994).

87. 1 UNTS 15, 21 UST 1418, TIAS 6900, Section 20 in respect of “officials” and Section 23
in respect of “experts on mission for the United Nations.”

88. See Article 29 of the Statute of the Yugoslav Tribunal (ICTY) (supra note 85) and Article
28 of the Statute of the Rwanda Tribunal (ICTR) (supra note 86).

89. See respectively Articles 87.6 and 73 of the ICC Statute, supra note 82.

532


UN Forces and International Humanitarian Law

14. It is possible to characterize the ECOWAS/ECOMOG operations in Liberia [indirectly
endorsed by SC Presidential Statements of 22 July 1991 (S/22133) and 7 May 1992 (S/23886), et
seq.] and later in Sierra Leone [indirectly endorsed by SC Presidential Statements of 11 July and
6 August 1997 (S/PRST/1997/36 and 42), et seq.] as falling under this rubric.

15. In effect, all it has required are occasional reports; see for Korea, Security Council
Resolution 84 (1950) of 7 July 1950, para. 6; and, for Iraq, Security Council Resolution 678
(1990) of 29 November 1990, para. 4. See also paragraph 18 of SC Resolution 794 (1992) in
connection with the Somalia operation referred to infra note 36.

16. By virtue of Charter Article 100.1-2. However, Force Commanders seconded from major
powers have perhaps not always maintained the required distance from their national
authorities.

17. This principle is reaffirmed, in respect of violations of IHL, by Section 4 of the SGB, supra
note 1.

18. As mentioned above, Charter Articles 43 and 45, under which member States are to hold
available and in case of need provide to the United Nations specially designated military units,
have never yet been implemented. Consequently, each national unit supplied to a UN force is
provided on an ad hoc basis, usually under a standard agreement between the UN and the
government concerned, and can be withdrawn by the governmentat any time (though normally
this is done only at the end of a prescribed rotation period, usually six months).

19. This is in effect reaffirmed by Section 2 of the SGB, supra note 1.

20. Actually, there is one minor exception: The force that protects the distribution of food to
civilians (mostly Kurds) in northern Iraq consists, for complex political reasons, of UN “Guards,”
i.e., of persons who normally either serve as UN-employed guards at some UN headquarters or
other office, but for the most part of persons specially and directly recruited by the UN for this
assignment; these are therefore UN staff.

21. Charter Article 101, which deals with the employment and organization of UN staff, is
not necessarily limited to civilians, though most likely only such type of staff was foreseen by the
drafters of the Charter. See also supra note 20.

22. See infra note 42 and the related text.

23. These distinctions and terms were largely established by Secretary-General Boutros
Boutros-Ghali’s report on An Agenda for Peace, UN Doc. A/47/277-S/24111 (1992), paras. 20 et
seq., reproduced in AN AGENDA FOR PEACE 1995, UN Publication Sales No.E.95.1.15 (2nd
edition, 1995), at 45 et seq.

24. Thus, for example, the UN Protection Force (UNPROFOR) in the former Yugoslavia,
was ly established as a Chapter VI'A peace-keeping force, principally to demilitarize and
protect the Serb-occupied areas of Croatia (thus creating the UN Protected Areas, or UNPAs);
soon thereafter it was directed to demilitarize and operate the Sarajevo airport in
Bosnia-Herzegovina and later also to escort humanitarian convoys (principally those of
UNHCR) in Bosnia, to occupy the Prevlaka peninsula in Croatia opposite the FRY naval base of
Kotor, and to deploy a small preventive force in Macedonia. Early in 1992, after Croatian attacks
against an UNPA, the Security Council, in extending the period of the UNPROFOR mandate,
did so under Chapter VII for the entire operation (though it later withdrew that designation from
the preventive force in Macedonia); other resolutions mandating expansions in respect of Bosnia
followed (such as the establishment of “safe areas”), and early in 1995 UNPROFOR was, at the
demand of Croatia, divided into three separate operations for the three countries in which it had
been functioning. See Chapter 24 of THE BLUE HELMETS, supra note 2.

25. See, however, the distinction as to Chapter VII operations referred to below.

528


Charter of the United Nations as a World Constitution

89. CONFORTI, note 2, p. 10.

90. Crawford, note 32, p. 15. Crawford indicates a number of constitutional characteristics
met by the Charter, such as virtual universality, broad scope of activities and success in certain
fields, and lack of any rival organization. He, however, also points out the weaknesses of the
United Nations, such as the lack of a clear distribution of powers and, most dangerous of all, lack
of institutional means for protecting the State from unlawful or unjust acts of UN organs.

91. Paolo Picone, Nazioni Unite e obblighi ‘erga omnes’, in 48 COMUNITA INTERNAZIONALE
717 (1993).

92. Pierre-Marie Dupuy, The Constitutional Dimension of the Charter Revisited, in 1 MAX
PLANCK YEARBOOK OF UNITED NATIONS LAW 31 (1997).

93. Ibid., p. 33.

94. MOSLER, note 1, p. 5.

95. Christian Tomuschat, in Tomuschat (ed.), note 4, p. ix.

96. C. WILFRID JENKS, THE PROPER LAW OF INTERNATIONAL ORGANIZATIONS (London:
Stevens, 1962), p. 257, citing PHILLIMORE’S COMMENTARIES, vol. 2, 1879.

97. Christian Joerges, note 1.

98. On the whole subject see the remarkable study by PHILIP ALLOT, EUNOMIA: NEW
ORDER FOR A NEW WORLD (Oxford: Oxford University Press, 1990), and my review of this
book in 70 CANADIAN BAR REVIEW 822 (1991). A modified version of this paper will appear,
with acknowledgements, in a forthcoming issue of the Australian Yearbook of International
Law.

300


Sharon A. Williams

by the custodial State does not act as a precondition for the exercise of jurisdic-
tion by the ICC is a serious gap. It is this provision that would have ensured
that atrocities will not go unpunished if the territorial State or State of nation-
ality are not Parties or do not consent ad hoc and there is no UN Security Coun-
cil referral. In all probability it may be assumed that the States likely to be the
locus delicti of such crimes or whose nationals are suspect will not be among the
first to ratify or otherwise agree to be bound by the Statute, if ever. Initially, at
least once the ICC is operative after the 60 ratifications have been deposited,
reliance will have to be placed on the Security Council in such cases. It is ironic
to hear the argument following the adoption of the Statute that Article 12 as it
stands, in effect without universal jurisdiction (the German Proposal) or auto-
matic jurisdiction including the acceptance as a State Party by the custodial
State (the Korean Proposal), “effectively lets off future Saddam Husseins or Pol
Pots, who kill their own people on their own territory,”®? from States that pro-
moted in the Conference even stricter criteria for preconditions to the exercise
of jurisdiction and were adamantly against universal jurisdiction or any variant
thereof. As a result of not adopting the German or Korean Proposals, the ICC
does, indeed, have less jurisdiction than domestic courts of any State would
have.

It is safe to say that the ICC will come into operation within the next two
years or so. As of May 2000 there are ninety-eight States that have signed and
ten that have ratified.!°° Once the Rules of Evidence and Procedure and Ele-
ments of Crimes have been completed by June 30, 2000, it seems certain that
many more States will ratify. As well, apart from awaiting the conclusion of the
Preparatory Commission established since Rome on these issues, many States
are in the process of enacting domestic legislation, or as a preliminary step de-
bating what is in substance involved in order to be able to fulfill their obliga-
tions to cooperate with the ICC in good faith. This process necessarily takes
time. In some States it requires not ordinary domestic legislation but constitu-
tional change. Among the contentious issues are the surrender to the ICC of
nationals by those States that ordinarily do not extradite such persons, the ne-
gation of immunity of Heads of State, other high ranking government officials
and even members of parliament, and the acceptance of life imprisonment as a
penalty.

During the PrepCom sessions during 1999 and March 2000, the United
States, together with other participating States, has been working actively and
constructively. Suggestions made after Rome that the preconditions to juris-
diction could be changed by the States Parties in a “binding interpretative
statement”!0l have not been pressed. This has been the case also with the

553


Foreword

he International Studies “Blue Book” series was initiated by the Naval

War College in 1901 to publish essays, treatises and articles that con-
tribute to the broader understanding of international law. With this, the sev-
enty-fifth volume of the historic series, we honor and recognize Professor Leslie
C. Green for his many decades of outstanding scholarship and contributions to
the study and practice of the law of war.

We also express our appreciation to Professor Green for his service to the
Naval War College during the two years from 1996-1998 that he held the
Charles H. Stockton Chair of International Law, as the first non-United States
scholar to fill the College’s most prestigious and respected Chair. It was a won-
derful opportunity and privilege for our faculty and students to learn from him.

Icis fitting that this volume is published on the occasion of Professor Green’s
eightieth birthday, for his mentor, Professor Georg Schwarzenberger, another
international legal thinker of great renown, was also honored on his eightieth
birthday through the publication of a treatise dedicated to him. Just as that vol-
ume contained articles authored by eminent scholars, Professor Green and the
Naval War College are honored and complimented that so many of the world’s
most highly respected international law scholars would contribute to this work.
While the opinions expressed herein are those of the individual authors, and
not necessarily those of the United States Navy or the Naval War College, they
make a valuable contribution to the study of the varied areas of international
law that are addressed.

On behalf of the Secretary of the Navy, the Chief of Naval Operations and
the Commandant of the Marine Corps, I extend to Professor Green, the con-
tributing authors, and to the editor, Professor Michael N. Schmitt, our grati-
tude and thanks.

A. K. CEBROWSKI
Vice Admiral, U.S. Navy
President, Naval War College


Michael N. Schmitt

Objectives, by contrast, are states of being that realize a national interest; they
are much narrower than interests. For example, whereas the defense of vital
US. allies is a U.S. national interest, the defense of South Korea from North
Korean attack is an objective. Care must also be taken not to confuse
objectives with strategies; an objective is “what” needs to be accomplished,
strategy the “how.” Strategies are the methods by which objectives that
advance national interests are achieved.

Thinking in terms of opportunities and threats facilitates identifying objec-
tives.2? The process relies on the fact that all States seek both to exploit oppor-
tunities that advance national interests and counter threats to them. Thus,
objectives are always responsive to threats and opportunities (and aspirations).
The U.S. case exemplifies this approach. It has explicitly identified a number of
threats to its national interest in security at home and abroad—regional or
State centered threats (e.g., Iran, Iraq, North Korea), transnational threats
(terrorism, international crime, drug trafficking, illicit arms trafficking, uncon-
trolled refugee migration, and environmental damage), the spread of danger-
ous technologies (especially weapons of mass destruction), foreign intelligence
collection, and failed States.?8 This being so, its strategic objectives necessarily
include countering these threats. Similarly, U.S. superpower status, including
financial and military predominance, allows for greater influence (opportuni-
ties) in international security matters than any other State. The U.S. has lever-
aged this power, e.g., to assist in the emergence of democratic institutions
throughout Eastern and Central Europe and, albeit somewhat controversially,
(and working through NATO) to arrest Serbian suppression of the Kosovars.
Other representative opportunities include such varied advantages as techno-
logical dependence on the United States by other countries and the excellence
of U.S. higher education. It should come as little surprise that U.S. strategic ob-
jectives include exploiting these opportunities.

For the law of armed conflict to have any meaning, it must either act to fore-
stall threat-based objectives or exploit opportunity-based ones. Most often, the
objective of law is to respond, to a threat to a national interest. Examples in-
clude ensuring the broad security of the State (the jus ad bellum), protecting ci-
vilians, maintaining the civilian infrastructure, and continuing civil society
during occupation. However, the law of armed conflict also contains elements
of opportunity-based objectives. The principle of proportionality, for instance,
allows a commander to prosecute an operation despite collateral damage and
incidental injury so long as the quantum and quality of military advantage that
ensues is sufficient to outweigh the civilian consequences.?9 Similarly, when
justified by security concerns, civilians may be interned during an

463


Sharon A. Williams

37.U.N. Doc. A/Conf. 183/2/Add. 1, Articles 6 (b), 7, 9 (further option), and further option
for Article 7.

38. For a useful background paper, see International Commission of Jurists, Exercise of
Jurisdiction and Complementarity, 1.C.J. BRIEF No. 2, June 1998.

39. P. Kirsch and J.T. Holmes, supra note 3, 9.

40. Customary international law is based on consistent State practice coupled with opinio
juris, meaning that States view the matter as a legal obligation. See Article 38 (1) (b), Statute of
the International Court of Justice, and the I.CJ.’s judgments in the North Sea Continental Shelf
cases, [1969] I.CJ. Rep. 3; The Asylum Case, [1950] I.CJ. Rep. 266. Note also A. D'AMATO,
‘THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW (1971).

41. The term “convention” is synonymous with “treaty.”

42. C.C. Joyner, Arresting Impunity: The Case for Universal Jurisdiction in Bringing War
Criminals to Accountability (1996), 59 LAW AND CONTEMPORARY PROBLEMS 153, 167; K.C.
Randall, Universal Jurisdiction Under International Law (1988), TEXAS LAW REV. 785 AND
AMERICAN LAW INSTITUTE, RESTATEMENT (THIRD) FOREIGN RELATIONS LAW OF THE
UNITED STATES (1987), sec. 404.

43. See H. Lauterpacht, The Law of Nations and the Punishment of War Crimes (1944), 21
BRITISH YEARBOOK OF INTERNATIONAL LAW 58, 61.

44, Buc note that these piratical acts were committed on the high seas beyond the territorial
jurisdiction ofany State. Piracy jure gentium is to be distinguished from piracy at domestic law. As
to the right of every State to seize a pirate ship or aircraft on the high seas or otherwise outside
the jurisdiction of any State and arrest the persons on board, see Article 19, United Nations
Convention on the Law of the Sea, 1982, U.N. GAOR, vol. XVII, 139, (1982), 21 LL.M. 1245;
The SS Lotus case (1927), P.C.IJ. Series A, No. 10, 70, per Justice Moore; and In re Piracy Jure
Gentium, [1924] A.C. 586 (Sp. Ref. J.C.P.C.). Universality was necessary to fill the jurisdictional
gap left by the other bases. But see Cowles, Universality of Jurisdiction over War Crimes, (1945)
CALIFORNIA LAW REVIEW 177, who bases jurisdiction over war criminals by referring to piracy,
and Schick, International Criminal Facts and Illusions, 1948 MODERN LAW REVIEW 290, who
argues to the contrary. See also H. ARENDT, EICHMANN IN JERUSALEM: A REPORT ON THE
BANALITY OF EVIL (1977), 261-262.

45. See L.C. GREEN, INTERNATIONAL LAW (1984), 179. The assimilation of the slave-trader
to the pirate probably stems from the fact that slave trading was declared by an Imperial Statute
of the British Parliament to be piracy. (1824), 5 Geo. IV, c. 113, ss. 9-10. See R. v. Zulueta, 1 Cat.
&K. 215, 1 Cox C.C. 20 and Le Louis (1817), 2 Dods. 210. There is no indication that the 1926
Slavery Convention, 60 L.N.T.S. 253, as amended by the Protocol of 1953, 182 U.N.T.S. 51, or
the Supplementary Convention of 1956, Can. T.S. No. 7, subjected alleged perpetrators to
universal jurisdiction. But for rights of visit on the high seas of suspected slave-trading ships, see
Article 110 (1) (b) of the United Nations Convention on the Law of the Sea 1982, ibid. Note M.C.
Bassiouni & V. Nanda, Slavery and the Slave Trade: Steps Towards its Eradication, (1972), 12
SANTA CLARA L. REV. 424.

46. The International Military Tribunal (IMT) at Nuremberg was established based on
universal jurisdiction under the London Charter of August 8, 1945, 82 U.N.T.S. 279. The IMT
stated in its judgment that the allied powers in signing the Charter had “done together what any
one of them might have done singly; for it is not to be doubted that any nation has the right thus
to set up special courts to administer law.” (1948) 22 TRIALS OF THE MAJOR WAR CRIMINALS
461. See Article 6 (b) of the Charter. See also, e.g., under Control Council Order No. 10, Trial of
Otto Sandrock and Three Others (“The Almelo Trial”), (1945), 1 LAW REPORTS OF TRIALS OF
WAR CRIMINALS 35, 42; the “Hostages Case” (1947), 8 Case No. 47, 43; and the Remmele Trial

559


Robbie Sabel

Four of the issues of principle concerning airmen in distress that were raised
during the Conference were:

What is the justification for granting special protection to airmen?
Does the rule apply to airmen in distress parachuting onto friendly territory?
‘What behaviour by the airmen during descent, if any, negates the protection?

‘What protection is to be granted to airmen in distress once they have landed?
Justification for the Protection Granted to Airmen in Distress

The practice of not shooting at an airman in distress appears to have been
part of the mutual chivalry of airmen in the Ist World War. Spaight, the lead-
ing authority on this issue, wrote, some fifty years ago, that “the effect of the use
of aircraft in war was at first to restore to warfare something of the spirit which
went out with the Middle Ages. After 600 years, chivalry re-emerged in strange
company.”!3 Spaight also adds a very practical argument that there is a military
advantage to encouraging enemy airmen to abandon their aircraft since “if air-
men know that, if they escape by parachute, they will become an easy target
during their descent, it will incline them to harden their hearts and to remain at
their post.”!4

As part of preparations for reviewing the laws of war,!5 in 1969 the ICRC
convened a conference of experts. Among the issues raised was that of airmen
in distress, with the Report of the Conference focusing on the comparison be-
tween airmen in distress and “a shipwrecked individual.” !6 However, the Con-
ference did not propose specific language. The ICRC position paper presented
to the subsequent 1971 Conference of Experts did propose a specific provision
on airmen in distress, explaining it in terms of “presumption of harmlessness”
and “giving the individual the benefit of the doubt.”!” The Israeli delegation,
which submitted a proposal of its own at the Conference, 18 explained that an
airman “having parachuted from his aircraft, is in a state of helplessness and
military ineffectiveness, and (should) be considered hors de combat.”!9 At the
second session of the Conference, in 1972, the ICRC presented a revised
text.20 The commentary thereto submitted by the ICRC again referred to the
“shipwrecked” analogy.?! The report of the second session of the Conference
did not include a discussion of the justification of the need for such an article.22

The issue of the justification, if any, for granting special protection to airmen
beyond that granted to other combatants was debated during the

441


Chivalry in the Air?

supported the Philippines’ amendment, stating that there could be cases where
a parachutist might use his weapon. The proposal failed to obtain the required
two-thirds majority and was consequently not adopted.76

What Protection is to be Granted to Airmen in Distress
after They Have Parachuted to the Ground?

An airman parachuting in distress who, on landing, is rendered hors de com-
bat on account of wounds he incurred or by virtue of being unconscious is
clearly entitled to the same protection as any other combatant in that situa-
tion. A question arises, however, of whether the airman should be entitled to
any special protection beyond that granted to all combatants. The justification
for such extra protection is set out by de Preux, who writes that “The intent to
surrender is assumed to exist in an airman whose aircraft has been brought
down, and any attack should be suspended until the person concerned has had
an opportunity of making this intention known.””7

The 1969 Conference of Experts did not specifically address this issue, but at
the subsequent 1971 Conference of Experts, the Israeli expert proposed a rule
stating:

Airmen in distress shall be given, upon reaching the ground, a reasonable
opportunity to lay down their arms and surrender.

He explained his proposal by stating that “the situation of an airman on the
ground, after having bailed out involuntarily from his aircraft is similar to per-
sons in distress at sea.””? The text proposed by the ICRC for the 1972 Confer-
ence of Experts refrained from adopting the proposal. However, the U.S.
experts proposed a similar rule:

They (airmen parachuting in distress) shall, if they have landed in territory
controlled by their enemy, and are not in a hostile attitude, be afforded a
reasonable opportunity to surrender.

The ICRC again refrained from incorporating such a rule in the text that it
proposed in 1973 to the Humanitarian Law Conference. In introducing the
text in the second session of the Conference, the ICRC representative stated
that “once they had reached the ground, all airmen should be afforded the
same safeguards as during their descent by parachute.”$! This would seem to
have been an excessively far-reaching protection, as during their descent the
rule is an absolute prohibition of attack. No delegation appears to have raised

448


Michael N. Schmitt

experience, education, ideological bent, and cognitive approach—in other
words by “informed intuition.” Despite the complexity (and imprecision) of
valuation, several variables pervade the process.

Intensity: Among the most influential is the intensity with which the actor
holds the national interest in question. For instance, the United States views
the security of U.S. territory and that of its allies as a vital interest, whereas hu-
manitarian concerns such as human rights are tertiary. This is consistent with
the general propensity for security to outweigh value interests. Intensity mea-
surements render it theoretically reasonable to reject a proposed legal norm
that poses a moderate threat to security interests even though it might greatly
advance a value interest such as human rights.

The dispute over the nature of the legal regime that should be applied to in-
formation operations during armed conflict exemplifies the phenomenon.
Some argue that targeting instruments of communication which spread propa-
ganda should be forbidden, emphasizing the contention that ideas must be de-
feated by the force of competing ideas, not the force of arms. Others counter
that such felicity to the idea of free speech (value interest) is naive, for propa-
ganda can endanger the security of their forces and hinder mission accomplish-
ment. They would, resultantly, oppose any limits on striking communications
targets, even though in the vast majority of scenarios the military benefits (se-
curity interest) of doing so are moderate at best.32 The point is that while the
interest being advanced is seldom dispositive, it certainly matters.

Likelihood: Objectives should also be valued in terms of likelihood. This
variable recognizes that the intensity of an interest must be qualified by the
likelihood that the opportunity in question will present itself or the threat will
become a reality. The Korean case is an excellent example. It is not enough to
say that the intensity of the security interest in defending South Korea out-
weighs the U.S. value-based interest in alleviating civilian suffering—in this
case that caused by anti-personnel mines. Rather, it is necessary to weigh the
very certain human suffering that anti-personnel mines will cause against the
likelihood of a North Korean invasion. Similarly, consider U.S. concerns over
the International Criminal Court Statute. There, the competing interests are
human rights and well-being versus security (for U.S. forces). The objective
which advances the former is punishment/deterrence of war criminals (in the
sense understood by laymen), while that which fosters the latter is avoidance of
placing U.S. forces at risk of politicized prosecution. Clearly, the prospect of
U.S. personnel facing prosecution by a politicized court merits attribution of
significant intensity value. That said, the multiple safeguards built into the ICC

465


Xi

International Humanitarian Law from
Agincourt to Rome

Theodor Meron.

O VER THE PAST HALF-MILLENNIUM, the relationship between war and
law has been the subject of much change. Two issues have remained
central, even in modern international humanitarian law (IHL): the first is
“quarter,” that is, the obligation to spare the life of a combatant who has laid
down his arms and surrendered, and, second, the protection of women from the
ravages of war and, especially, rape. Both issues arose during Henry V’s
Agincourt campaign, a phase of the Hundred Years’ War that started in 1415
with the landing of Henry’s Army near Harfleur, the siege and capture of
Harfleur, and its victory in Agincourt, and ended in 1420 with the conclusion
of the Treaty of Troyes, which pronounced Henry the heir to the French
throne. At Agincourt, the terrain, the tactics, and the longbow helped the
lightly armed and mobile English prevail over the several times larger, heavily
armoured mounted French knights. The Treaty marked the ascendancy of
England until Joan of Arc’s rallying of the French in 1429 sparked a turning
point that eventually led to the defeat of England by Charles VII of France.

This article is based on an inaugural lecture delivered on November 7, 1998, at the
Graduate Institute of International Studies in Geneva.


Bin Cheng

1. We agree that celestial bodies are not subject to national appropriation by any
claims of sovereignty.

2. We agree that the nations of the world shall not engage in warlike activities
on these bodies.

3. We agree, subject to appropriate verification, that no nation will put into
orbit or station in outer space weapons of mass destruction. All launchings of
space craft should be verified in advance by the United Nations.

4. We press forward with a programme of international co-operation for
constructive peaceful uses of outer space under the United Nations. . . 34

Although the Paris Summit meeting between Eisenhower and Khrushchev
planned for late May 1960 collapsed owing to the U-2 incident on the first of
that month,°® it is apparent how closely the 1967 Space Treaty was patterned
on the Eisenhower proposal. The exception is, of course, on advance monitor-
ing of all launchings of spacecraft. This was obviously due to Soviet opposition.
All that the United Nations was at first able to do on this score was to adopt
General Assembly Resolution 1721 (XVI) the following year on December 20,
1961, calling upon States launching objects into orbit or beyond to inform
promptly the United Nations of such launchings, and asking the Secre-
tary-General to establish a public register to record them. But such reporting
was voluntary and the register very incomplete.3¢ It was not until the conclu-
sion of the 1975 Registration Convention?” that a “mandatory’—to use the
word in its Preamble—system of registering of objects launched into space was
established by the contracting States. However, owing to Soviet opposition,
the system is far from watertight. The Soviet Union persistently objected to
having to make available advance information about launching. Thus, under
the Convention, the duty to register a space object on the national register
arises in reality only when an object has been launched (Article II), and noth-
ing is said as to how soon after launching the registration should take place.
Moreover, the duty is to notify the United Nations of such launchings “as soon
as practicable” (Article IV), which can mean, and in some cases does mean, at
no time. Finally, the Registration Convention, in addition to some general de-
tails and the basic orbital parameters to be provided to the United Nations,
only requires the launching State to indicate the “general function of the space
object” (Article IV). It is believed that many of the Soviet satellites described
as scientific in notifications to the United Nations were in fact military.38

93


The Rome Statute on the International Criminal Court

contained in Article 17 of the Statute or on judicial cooperation in Article
98(2), which requires consent of the sending State as a precondition for the
surrender to the ICC by the “host” State of persons present in that State pursu-
ant to international agreements. This would have meant that U.S. forces on,
for example, peace-keeping or other missions abroad under Status of Forces
Agreements would not have been susceptible to prosecution before the ICC
unless the United States consented.

State “opt-in” and Case-by-Case Proposals. The State “opt-in” proposal in
Article 6(2), Article 7, option 1, and Article 9, option 1, of the Draft Statute
was markedly different from the previous proposals as it required an actual
second consent other than being a Party to the Statute. This declaration of
consent over specified crimes could have been placed at the time of ratification
or at a later stage. The thrust of the proposal was that before the ICC could
assume jurisdiction, as many as five States potentially would have had to have
consented to the exercise of jurisdiction by the Court over the crime in
question: the custodial State; the territorial State; the State that had requested
extradition of the person from the custodial State, unless the request was
rejected; the State of nationality of the accused; and the State of nationality of
the victim. The ICC would have been less competent under this proposal than
States currently are under conventional and customary international law to
prosecute domestically, where the consent of other involved States is not
necessary.

The case-by-case approach contained in Article 7, option 2 of the Draft
Statute would have needed the specific consent of the States outlined above in
the “opt-in” proposal. Ratification would, therefore, have had little meaning in
practical reality and States would have been able to make any individual im-
mune from consideration of the Court when it seemed politically desirable.
This proposal would have rendered the ICC ineffective in many cases.

In effect, both the “opt-in” and case-by-case proposals based on a second
State consent would have been jurisdiction “a la carte.” They would have re-
sulted in practical terms in a significantly weakened Court, with the ICC most
often only having jurisdiction when the UN Security Council referred a situa-
tion to it, with the built-in Charter problem of the veto power of the P5. This
would have been particularly so should both proposals have been adopted and
States had preferred to follow the case-by-case approach. States, as a result,
could have ratified with no intention of ever allowing cases to go before the
Court. This would have resulted in an ineffectual Court and as well have “fo-
ment[ed] selectivity and arbitrariness.”7°

548


Ved Nanda

democratic institutions in Kosovo and building a multiethnic, multicultural so-
ciety there are far from realization.

Yugoslavia’s Request to the International Court of Justice
for Provisional Measures

On April 29, 1999, Yugoslavia instituted proceedings before the Interna-
tional Court of Justice against Belgium “for violation of the obligation not to
use force.”!00 Similar claims were brought against nine other main NATO.
countries: Canada,!0! France,!02 Germany,!® Italy,!0* the Netherlands,!05
Portugal, !°6 Spain,!0? the United Kingdom, 8 and the United States.199 Yugo-
slavia based its claim on the UN Charter and several international legal con-
ventions, including the 1949 Geneva Convention and 1977 Additional
Protocol I, and the Genocide Convention.!!° It requested the Court to indi-
cate the following provisional measure: “The Kingdom of Belgium shall cease
immediately its acts of use of force and shall refrain from any act of threat or use
of force against the Federal Republic of Yugoslavia.”!!!

After holding public hearings between May 10 and 12, 1999, at which the
parties made oral presentations,!!? the Court issued an Opinion on June 2 in
which it reflected, in its preambular paragraphs, on the use of force in Kosovo:

... Whereas the Court is deeply concerned with the human tragedy, the loss of
life, and the enormous suffering in Kosovo which form the background of the
present dispute, and with the continuing loss of life and human suffering in all
parts of Yugoslavia;

. . . Whereas the Court is profoundly concerned with the use of force in
Yugoslavia; whereas under the present circumstances such use raises very serious
issues of international law;

. .. Whereas the Court is mindful of the purposes and principles of the United
Nations Charter and of its own responsibilities in the maintenance of peace and
security under the Charter and the Statute of the Court; [and]

..» Whereas the Court deems it necessary to emphasize that all parties appearing
before it must act in conformity with their obligations under the United Nations
Charter and other rules of international law, including humanitarian law. . . 113

The Court indicated that, while it does not have to “finally satisfy itself that
it has jurisdiction on the merits of the case,” it must ensure that “the provisions
invoked by the applicant appear, prima facie, to afford a basis on which the

325


Michael N. Schmitt

corresponding value in regularly contemplating process so as to perfect and
internalize it. Hopefully, the approach suggested here will help refocus atten-
tion on the art and science of process, thereby allowing decision-makers to ex-
ercise choice regarding the law of armed conflict in a way that optimizes
congruency with national interests. This will foster enhanced control over, and
an ability to shape, the international environment.

Before commencing, one caveat is in order. While discussion will include
comment on changes in the international environment that affect the dynam-
ics of the law of armed conflict, this essay is not meant to criticize or support
any particular policy decision that has been, or is likely to be, made. Rather, the
intent is to explore in a general way the how, not the what, of decision making
in the field. Additionally, although the essay is somewhat U.S.-centric in terms
of illustration and analysis, no criticism of specific decision making is in-
tended—the process described should be applicable to normative decision
making by any State.

The Nature of the Law of Armed Conflict

To understand process, it is first necessary to comprehend the medium in
which it will operate, in this case, the law of armed conflict. For many, law and
war ate opposing constructs. War is the breakdown of law. Indeed, Carl von
Clausewitz dispenses with international law quickly in the opening paragraphs
of his classic, On War:

War therefore is . . .an act of violence intended to compel our opponent to fulfill
our will. . . . Self imposed restrictions, almost imperceptible and hardly worth
mentioning, termed usages of International Law, accompany it without
essentially impairing its power. .. .10

Clausewitz’s skepticism, writing as he was in the nineteenth century, is per-
haps understandable, for, by his time, advances in weaponry and the advent
of conflict involving whole societies, which really began with Napoleon’s use
of citizen soldiers in the French Army of the 1790s, had caused war to become
a particularly brutal activity. It remained largely unregulated by any com-
prehensive or systematic normative framework throughout the century. Only
with Henri Dunant’s publication of A Memory of Solferino in 1862 did the no-
tion of limiting the scale and scope of violence during armed conflict begin to
gain momentum.!!

457


The Law of Armed Conflict as Soft Power

system, in great part in response to U.S. concerns, should serve to render the
likelihood of such an occurrence very low.33

Immediacy: A third recurring variable is immediacy, the extent to which
opportunity or threat objectives are near or long term.*4 Near-term threat and
opportunity objectives should be accorded somewhat greater weight than
long-term ones. Of course, it could be argued that an immediacy criterion ob-
fuscates the process by sacrificing long-term objectives for immediate gratifica-
tion. However, it must be remembered that immediacy is but one of any
number of variables used to calculate value. More to the point, immediacy is
relevant because the further one projects into the future, the more speculative
that projection and the less certain any attempt to fashion the future as one de-
sires. The risk lies in forgoing an immediate opportunity only to find that future
opportunity is foreclosed for reasons that could not possibly have been fore-
seen. Along the same lines, deferring reaction to an immediate threat and
thereby suffering the consequences thereof in order to avoid a future threat,
may in retrospect prove ill-advised.

Again, consider anti-personnel mines. The U.S. desire to continue using
them in South Kotea is a sensible military decision. However, this opportunity
objective must be viewed in light of the threat objective of precluding their use
against U.S. forces. In the last decade, U.S. forces and their allies have increas-
ingly been involved in peace operations, either Chapter VI or Chapter VII in
nature,35 where mines pose a particularly nasty threat. As this essay is being
written, they are currently hindering operations in Kosovo and the only casual-
ties KFOR forces have suffered have resulted from mines. Complicating mat-
ters is the fact that the likelihood of U.S. forces using mines themselves during
a peace operation is de minimus because most such operations are combined3¢
in nature, and most forces operating with the U.S. will be prohibited from using
them. Their use by U.S. forces would create such a row in coalition partner
countries that for reasons of political expediency they are generally inutile. The
bottom line is that in the types of conflicts the U.S. is currently engaged in (and
the type it is likely to be engaged in any time in the near future), anti-personnel
mines are causing immediate dreadful civilian suffering and are an immediate
threat to U.S. forces. By contrast, their use in conventional large scale conflict,
such as that envisaged for the Korean peninsula, is, regardless of likelihood (a
different question altogether), temporally more remote.

Degree of Advancement/Harm: A fourth variable is the extent to which
exploitation of opportunity objectives may advance, or ignoring threat objec-
tives may harm, the interest in question. This differs from intensity, which sim-
ply asks how strongly held the interest is; here the query is the extent to which

466


Making Law of War Treaties

“sink at sight” result. It proposed rules to prohibit the arming of merchant ships and their use of
false flags, in vain. The delegates of Italy and Japan expressed doubts as to whether an armed
belligerent merchantman could continue to be regarded as a “noncombatant.”

72. Senator Root made it clear that the Submarine Treaty was not regarded as a codification
of customary international law, that is, the application of customary law for surface vessels to
submarines, but as a proposal to change the law. Anderson, supra. n. 57, at 59. By its terms
(article VI), it was binding only upon ratification by each of the parties to the negotiations — the
US., the British Empire, France, Italy and Japan.

73. Rickover, supra note 66, at 1213, 1220.

74. Id. at 1220.

75. P. FRITZSCHE, A NATION OF FLIERS: GERMAN AVIATION AND THE POPULAR
IMAGINATION (1992), at 103-219.

76. M. HADLEY, COUNT NOT THE DEAD: THE POPULAR IMAGE OF THE GERMAN
SUBMARINE (1995), at 48-78.

77. Germany was permitted aircraft for civil aviation; Treaty of Versailles, supra note 40, Part
V, Military, Naval and Air Clauses, Section III, Air Clauses, Articles 198, 202. Submarines were
prohibited for any purpose, including commercial. Treaty of Versailles, Article 191.

78. See, e.g., RADM Spindler, The Value of the Submarine in Naval Warfare: Based on the
German Experience in the War, U.S. NAV. INST. PROC. (May 1926), at 835, who commented (at
837) that “the present state of treaties does not preclude the unrestricted employment of the
submarine in the future. So long as the situation remains as it is, this method of the employment
of submarines cannot be dismissed from military consideration.”

79. E. HOMZE, ARMING THE LUFTWAFFE: THE REICH AIR MINISTRY AND THE GERMAN
AIRCRAFT INDUSTRY, 1919-1939 (1976) 3; and B. WHALEY, COVERT GERMAN
REARMAMENT, 1919-1939 (1984).

80. As previously indicated (note 52), trade in submarine technology and expertise between.
Germany and Japan commenced even before conclusion of the Versailles Treaty. In addition to
its transfer of six U-boats, Germany sold U-boat blueprints to Japan in 1920. The following year
the Argentine Navy invited the former head of the Flanders U-boat flotilla and two former
German naval architects to assist in the establishment of an Argentine submarine capability.
Similar work by'German submarine engineers was undertaken in Sweden and Italy. Over the
1921/1922 winter Germany conducted research on the question of “Which of our U-boat types
that we used in the war are most appropriate for future development?” In April 1922, German
shipbuilding yards, with the approval of the German Navy, established in The Hague a German
Submarine Construction Office under the cover of the Dutch firm NV Ingenieurskaantor voor
Scheepsbuow (IvS). A dummy Berlin company, “Mentor Bilanz,” provided the conduit between
the German Admiralty and IvS. ROSSLER, supra note 29, at 88-90; TARRANT, supra note 37, at
71.

81. WATTS AND GORDON supra note 63, at xii; LACROIX AND WELLS, supra note 57, at
155-157; DAVIS, supra note 38, at 315-317; 322-324, 330-331, 335; ROSKILL, supra note 53, at
508-516; N. FRIEDMAN, U.S. CRUISERS (1984), at 163-164. A Japanese defense policy
approved on February 23, 1923, listed its potential enemies, in order of probability, as (1) the
United States, (2) Great Britain, (3) Russia, and (4) China. Its naval construction program was
designed to meet those threats. LACROIX AND WELLS, supra, at 51.

82. DAVIS, supra note 38, at 314, citing Representative Carl Vinson, Congressional Record,
69% Cong., 24 Sess., pp. 1095-1096, January 4, 1927, offered the following contrast in naval
shipbuilding between the Washington Naval Conference and President Coolidge’s call fora new
naval disarmament conference:

376


Index

YUGOSLAVIA, FORMER

Sce also INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (ICTY)
Genocide, 9

Humanitarian Intervention, 187

Rape, 308

Z

ZONES
See also EXCLUSIVE ECONOMIC ZONE (EEZ)
Exclusion Zones, 197, 204, 209, 365
Falklands Conflict, 197
No-Fly Zones, 149
War Zones, 363

607


Ove Bring

that could curb aggressive tendencies in balance-threatening situations. More-
over, a form of collective self-defence materialized in 1663 and 1683 when
Turkish troops threatened Vienna (and the Habsburg Empire), but were re-
pelled through the collective efforts of countries (France and others) that came
to Austria’s assistance. The perception of a threat posed by a strong Islamic
presence in central Europe was enough to cause various powers to join forces
(in all probability, irrespective of the Minster Treaty).

When the European balance of power system was threatened again in 1688,
a coalition against the peace-breaker was forged soon enough. This time the
expansionist policy of Louis XIV had manifested itself in a French invasion of
the Palatinate (Pfalz). In this and similar cases, most States wanted to preserve
some basic status quo as a way to prevent other States from gaining a position of
dominance. Balance of power diplomacy was thus directed more towards limit-
ing the political/territorial consequences of war than towards abolishing war as
such. The (anti-French) coalition war ended with the Peace of Rijswijk in
1697, where Louis XIV had to give up most of the conquered territories and ac-
cept arbitration on numerous territorial claims. The jus contra bellum element
of the Westphalian heritage had been diluted beyond recognition in actual
practice, but traces of it remained in peace treaties for years to come.

Louis XIV threatened the balance of power once again in 1700 when he ad-
vanced a claim on the Spanish throne on behalf of his grandson. This led to a
new anti-French coalition being formed the following year?” and to the out-
break of the War of the Spanish Succession (1701-1714), which ended in
French defeat. The balance of power was upheld through the peace treaties of
Utrecht (1713) and Rastatt (1714). The Peace of Utrecht consisted of a num-
ber of bilateral agreements which explicitly confirmed what in Westphalia had
been a general understanding—that peace had to be built on a just geopolitical
equilibrium (justum potentiae equilibrium).?8 In this sense the treaties of Utrecht
reconfirmed a Westphalian tradition. However, since France was successful in
“bilateralizing” the peace conditions in relation to its different adversaries, the
Peace of Utrecht did not mark the existence of an international society or com-
munity in the same way as the Peace of Westphalia had done. The West-
phalian embryo of collective security was not taken up further. Although
Europe had raised a coalition of the willing against the peace-breaker, no obli-
gations as to collective action or sanctions were envisaged for the future. Louis
XIV had been forced to respect the European balance, but the powers uphold-
ing it could neither impose an efficient status quo nor secure peaceful change in
the relations of States.29 Utrecht did not reconfirm the Westphalian principle
of European public law requiring peaceful settlement of disputes. The

63


Index

OUTER SPACE, 81-118, 275, 282
Definition, 83-84
Outer Void Space, 84
Space Treaty (1967), 82
History, 87, 88, 92

P

PAKISTAN, 133, 149
PANMUNJOM AGREEMENT, see KOREAN WAR, Armistice, 141-42
PARKS, W. HAYS, 339, 585
PEACE OF NYSTAD (1721), 64
PEACE OF WESTPHALIA, 57, 58, 61, 63, 70, 268
PEACE TREATIES, 57, 63, 77, 138-40, 392, 500
See also ARMISTICE; TREATIES, LAW OF
Egypt-Israel (1978), 136, 138
Kosovo Peace Accords (1999), 320-21
Peace of Westphalia (Treaty of Miinster) (1648), 57, 61, 63, 65, 135, 268
Collective Security, 61
Treaty of Lausanne (1923), 4
Treaty of Peace between Israel and Jordan (1994), 136
Treaty of Rastatt (1714), 63
Treaty of Troyes (1420), 301
Treaty of Utrecht (1713), 63, 65
Treaty of Versailles (1919), 351, 392-393
PEACEKEEPING OPERATIONS
Kosovo, 321, 323-24, 512
United Nations, 174, 187, 192, 329, 508, 509, 510, 516-19, 521, 522
UNPROFOR (Bosnia), 183, 187-88, 193, 196
United States, 547
Western European Union (WEU), 165
PEACEMAKING, 329, 516
PEOPLE’S REPUBLIC OF CHINA, see CHINA, PEOPLE'S REPUBLIC OF
PERSIAN GULE, 306
See also GULF WAR
PIRACY, 11, 422
Jus Cogens, 11
Universal Jurisdiction, 422, 545
PORTUGAL, 165
Yugoslavia v. Portugal (IC}), 325
PRISONERS OF WAR, 34, 189-90, 252, 303-04, 458
See also GENEVA CONVENTIONS (1949); INTERNATIONAL HUMANITARIAN LAW; LAW OF
“ARMED CONFLICT; WAR CRIMES
Middle Ages, 304

601


Legal Issues of Multinational Military Units

exclusive responsibility of the Parties under the Convention. These adapta-
tions go far beyond what is normally considered as an application mutatis mu-
tandis.26 Hence, no precedent was established by the Paris Protocol. As far as
relevant, however, experience and common practice deriving from the applica-
tion of certain Paris Protocol provisions may be useful for interpretation
purposes.

Unlike NATO headquarters that do not act on behalf of specific States but
on behalf of the North Atlantic Treaty Organization, the headquarters of mul-
tinational units generally do not require a legal personality of their own, for par-
ticipating States remain the subjects of all rights and duties. The States own all
real property and equipment, either individually or jointly. The fact that mili-
tary and civilian personnel remain under national command does not, how-
ever, preclude combined headquarters from concluding certain support
services contracts payable from the joint budget. Doing so requires an agree-
ment on contractual competence because the contracts are concluded on be-
half of the participating States.

Article 8 of the Convention on the German-Netherlands Corps provides for
this solution. According to the German constitution, the authority to conclude
contracts and perform other administrative functions is exercised by agencies
of the defense administration, not the armed forces.’ A strict separation of the
armed forces and the defense administration may, however, cause friction in
multinational units, especially if the partners provide for differing distribution
of responsibilities, as might be the case if budget commissioner functions are
performed by a division of the Corps headquarters headed by a foreign officer.

It is of particular importance for the Eurocorps that development of a WEU
Status of Forces Agreement has been included in the effort to produce a
NATO/WEU framework document. The necessity and urgency of such an
agreement on the status of troops and personnel placed under WEU command
remains unsettled. Among others, the following factors bear on this issue:
deepening relations between the WEU and NATO, with priority being given
to the implementation of the pertinent resolutions passed during summit con-
ferences and ministerial meetings; increased integration of Associated Part-
ners, specifically in military cooperation within the WEU; and the common
aim to strengthen the WEU’s capabilities, particularly with regard to the role
and efficiency of the WEU’s military bodies. To foster uniformity during com-
bined operations, the status of the troops and personnel placed under WEU
command should largely be patterned on the provisions of the NATO SOFA.
Moreover, the compatibility of new solutions with European Union (EU) law

170


Shabtai Rosenne

36. Report of the Commission on the work of its sixth session, GAOR, tenth session,
Supplement 9 (doc. A/2693), YBILC, 1954-II, pp. 140, 149. Reproduced in II FERENCZ, p. 460.

37. Report of the Committee on the Definition of Aggression, GAOR 12th session,
Supplement 16 (A/3574). Reproduced in B. FERENCZ, I DEFINING INTERNATIONAL
AGGRESSION: THE SEARCH FOR WORLD PEACE—A DOCUMENTARY HISTORY AND
ANALYSIS, p. 215 (1975).

38. All the documentation relative to this phase is contained in B. FERENCZ, op. cit. in
previous note, from page 272. The International Court of Justice seems to have regarded that
definition as addressing the “civil” responsibility of a State. Military and Paramilitary Activities
in and against Nicaragua (Merits) case (Nicar. v. U.S., June 27, 1986), INTERNATIONAL COURT
OF JUSTICE REPORTS, 1986, pp. 14, 103 (para. 195).

39. Article 112 of the Statute regulates the Assembly of States Parties. Article 123 deals with
the Review Conference, which the Secretary-General is obliged to convene seven years after the
entry into force of the Statute. By Article 126, the Statute will enter into force on the first day of
the month after the 60th day following the date of deposit of the 60th instrument of ratification,
acceptance, approval or accession with the Secretary-General of the United Nations. In
Resolution 53/105, December 8, 1998, the General Assembly authorized the Secretary-General
to convene the Preparatory Commission in 1999 and to provide it with the necessary services.
For a consolidated report on the activities of the Preparatory Commission in 1999, see doc.
PCNICC/1999/L.5/Rev.1 and Adds. 1, 2, December 22, 1999.

40. FERENCZ, op. cit. in note 37, p. 599.

41. For that final text, see Report of the International Law Commission on the work of its
48th session, GAOR, 51st session, Supplement 10 (A/51/10), Chapter II. At the same time, the
Commission adopted on first reading its draft articles on State Responsibility. Ibid., Chapter Ill.
The change in the title of this item from Draft Code of Offenses to Draft Code of Crimes was
suggested by the Commission and accepted by the General Assembly in Resolution 42/151,
December 7, 1987. We shall return to that topic later in this article. See text to note 52 below.
Outside the framework of the Sixth Committee, in 1981 a working group submitted to the
Commission on Human Rights a draft convention on the establishment of an international
criminal panel for the suppression and punishment of the crime of apartheid and other
international crimes. See Study on the ways and means of ensuring the implementation of
international instruments such as the International Convention on the Suppression and
Punishment of the Crime of Apartheid including the establishment of an international
jurisdiction envisaged in the Convention. Doc. E/CN.4/1926 (1981). For the Convention of 30
November 1973, see 1015 UNTS 243. .

42. Report of the International Law Commission on the work of its 42nd session, GAOR,
45th session, Supplement 10 (A/45/10), YBILC, 1992-II/2, Chapter Il, paras. 93-157. This was
prepared by a Working Group composed of Doudou Thiam as chairman (he was special
rapporteur for the topic of the Draft Code), H. Al-Baharna, J.A. Beesley, M. Benouna, L.D.
Gonzilez, B. Graefrath, J. Illueca, A.G. Koroma, S. Pawlak, P.S. Rao and E. Racounas, with G.
Eiriksson, Rapporteur of the Commission, ex officio. See also Topical summary of the discussion
held in the Sixth Committee of the General Assembly during its 45th session, prepared by the
Secretariat (A/CN.4/L.456, mimeographed, 1991); D. Thiam, Tenth Report on the Draft Code
of Crimes against the Peace and Security of Mankind, YBILC, 1992-II/1 (A/CN.4/442). Given
this historical background, it is ironic that the Rome Statute does not include drug trafficking
amongst the crimes over which the new International Criminal Court at present has jurisdiction.
The Rome Conference annexed to the Final Act Resolution E which, inter alia, recognized that
international trafficking of illicit drugs is a very serious crime, sometimes destabilizing the

417


Bin Cheng

States Parties to the Treaty undertake not to place in orbit around the earth any
objects carrying nuclear weapons or any other kinds of weapons of mass
destruction, install such weapons on celestial bodies, or station such weapons in
outer space in any other manner.

Before proceeding further to examine the meaning and effect of Article IV, let
us examine those of the remaining provisions in the 1967 Space Treaty which
might have an effect on the military use of outer space.

Provisions Other Than Article IV

The Preamble. If we consider the 1967 Treaty carefully, and exclude Article
IV, we find that only the Preamble contains references to both peaceful pur-
poses and weapons. The Preamble has often been cited as evidence that outer
space can only be used for “peaceful purposes.” However, if we look at the Pre-
amble with care, we find this view difficult to sustain.

The Preamble begins with the opening paragraph: “The States Parties to this
Treaty,” and ends with the paragraph: “Have agreed on the following.” The rel-
evant passages in the Preamble relating to peaceful use are the third, fifth, and
eighth paragraphs. They are respectively as follows:

Recognising the common interest of all mankind in the progress of the
exploration and use of outer space for peaceful purposes,

Desiring to contribute to broad international co-operation in the scientific as
well as the legal aspects of the exploration and use of outer space for peaceful

purposes,

Recalling Resolution 1884 (XVIII), calling upon States to refrain from placing in
orbit around the earth any objects carrying nuclear weapons or any other kinds of
weapons of mass destruction or from installing such weapons on celestial bodies,
which was adopted unanimously by the United Nations General Assembly on 17

October 1963,
oe 2D

A close look at paragraphs 3 and 5 of the Preamble will show that the con-
tracting Parties “recognise” that mankind is interested in the “progress of the
exploration and use of outer space for peaceful purposes,” and “desire” to con-
tribute to broad international co-operation in such exploration and use. Para-
graph 8 merely recalls a resolution of the General Assembly, which in itself has
no legally binding force. All that paragraph 8 does is to remind one that the

89


Westphalian Peace Tradition

international mediation, and thereafter put under international administrative
control not only for reasons of economic necessity but also in order to secure
the payment of war compensation to Turkey under the peace agreement. The
principles of non-aggression and pacta sunt servanda were important for reasons
of balance of power.

The turn of the century was close. Although nothing indicated any substan-
tial legal developments in the near future, in fact, the road of diplomacy had
been paved for a new turn in the area of international law and organization.

The Hague Peace Conference of 1899 and Beyond

When the heads of the various diplomatic missions in St. Petersburg at-
tended the weekly reception of the Russian foreign minister, Count
Mouravieff, on August 24, 1898, they were in for a surprise. Mouravieff pre-
sented a manifesto of the Czar amounting to an invitation to an International
Peace Conference to discuss the most effective means of assuring a lasting
peace and a reduction of excessive armaments. The diplomats realized that no
government could express anything else than sympathy for such a proposal, but
they also realized that no major States could be expected to agree on any disar-
mament proposals, since preservation of freedom of action was considered vital
in this context. A circular was sent out to the different capitals and replies were
requested. At a later stage, Mouravieff travelled around in Europe and assured
chancelleries that the conference should not discuss disarmament proper—that
would be utopian—but try to find limits for the arms race (arms control). The
treason behind the initiative, many believed, was Russia’s financial situation.
The finance minister, Count Witte, was said to refuse to assign the funds nec-
essary for the introduction of new weapons (Russia needed to match the
rapid-firing field artillery of Germany) and Witte was perceived as the driving
force behind the idea of an international agreement on limitation of arma-
ments in order to save costs.

Reactions to the invitation included suggestions on the need for adoption of
tules for settlement of international disputes by arbitration. A new circular of
January 11, 1899, enumerated eight items which could usefully be discussed at
the Conference. In the terminology of today, items 1-4 concerned arms con-
trol, items 5—7 international humanitarian law of armed conflict, and item 8 ar-
bitration. Representatives of the peace movement disliked many of the first
seven items, since “war should be abolished, not alleviated.” Already at this
preparatory stage, there was a shift of emphasis from the issue of modern weap-
ons developments to the Westphalian concepts of peaceful settlement of

4


Legal Issues of Multinational Military Units

further develop mutual understanding of the daily interests and requirements
of the Allies.

Multinational military units are characterized by military-to-military coordi-
nation between States. They are not entities with a corporate, political element
of their own, nor do they enjoy an independent status distinct from the contrib-
uting States. Nevertheless, they tend to mark the beginning of a trend in the
larger context of overall European security.

The present study begins by describing existing agreements concerning mul-
tinational military units. It then turns to the right of presence of military con-
tingents in a foreign host State, provisions relating to the status of the military
and civilian personnel involved, and issues of command and control. Finally,
some conclusions will be drawn on the relevance of the concept of multina-
tional military units for further activities within the Alliance and beyond.

Present Agreements on Multinational Units

The concept of multinationality manifests itself especially clearly in the Ger-
man Bundeswehr. For several decades, the German Air Force has increasingly
developed multinational cooperation, a fact reflected in its daily training pro-
grams, doctrine, and Alliance integration. Much of the Air Force (fighter
wings, surface-to-air missile units, and air combat operations centers) is already
subordinate to NATO commanders in peacetime, receiving operation orders
from the integrated NATO structure on the basis of NATO operation plans.
The German Navy permanently contributes two destroyers or frigates, as well
as a mine countermeasutes unit, to NATO’s Standing Naval Forces. The high-
est degree of multinationalization has been reached in the German Army.
With only one exception (IV Corps, with headquarters in Potsdam), all of its
major formations are multinational today.

In the German case, three different models of multinational units have been
developed simultaneously. First, two German/U.S. corps follow the so-called
lead nation model, with the U.S. and Germany taking turns performing com-
mand functions and occupying key positions. The second, or framework model,
is illustrated by the Allied Command Europe (ACE) Rapid Reaction Corps, in
which the British Forces provide the framework, i.e., command, control, ad-
ministration, and logistic support of the headquarters, and define procedures.
By contrast, the framework is provided by the Bundeswehr for the Reaction
Force Air Staff based in Kalkar. The Danish-German Corps LANDJUT was
the first formation to be organized according to the third model, deepening

162


Dieter Fleck

operations, including disaster relief. It is in this context that the appropriate au-
thorities of each participating State have to decide on missions within the
scope of their national constitutions and in accordance with the provisions of
the Charter of the United Nations.

The Eurocorps is fully available for each of the three basic mission types. In
peacetime, only main defense forces are assigned to the German-Netherlands
Corps on the German side. This, however, does not preclude crisis reaction
forces of the Bundeswehr from being assigned also to the Corps for specific mis-
sions. The fact that the Corps Headquarters has been designated FAWEU un-
derlines the interest that both sides have in the capability to jointly accomplish
this part of the spectrum of tasks as well. Similar arrangements are being con-
sidered for the Multinational Corps Northeast, even though the 14% (GE)
Mechanized Infantry Division forms part of the German Army’s main defense
forces.

Other multinational units in Europe (to which the Bundeswehr does not
contribute) also demonstrate the attractiveness of the integration model far be-
yond the German borders. For many years, the United Kingdom/Netherlands
Amphibious Force has developed close and effective cooperation in accor-
dance with NATO plans and national commitments. The European Rapid Op-
erational Force (EUROFOR), with its headquarters in Verona, Italy, comprises
personnel from France, Italy, Portugal, and Spain, although an agreement on
the formation remains to be concluded. The same Parties also created a
non-standing naval force, EUROMARFOR, which has no permanent head-
quarters of its own. EUROFOR and EUROMARFOR are designed to operate
in missions laid down in the Petersberg Declaration of the Ministerial Meeting
of the Western European Union of 19 June 1992,” namely humanitarian mis-
sions or evacuation of nationals, peacekeeping missions, and combat force mis-
sions for crisis management, including peace-enforcement missions. They will
support the European Security and Defence Identity (ESDI) and are open for
participation by other European forces. Under UN auspices, the Standby High
Readiness Brigade (SHIRBRIG) has been established with headquarters in
Birkeréd, Denmark. Multinational Land Forces (MLF) in brigade strength are
planned by Italy, Hungary, and Slovenia, with Italy taking a lead. The Central
European Nations Cooperation in Peace Support (CENCOOP) is being devel-
oped by five partner States (Austria, Hungary, Romania, Slovak Republic, and
Slovenia) and two observers (Czech Republic and Switzerland). A Letter of In-
tent was signed by the five participating ministers of defence on March 19,
1998. The tasks and mission of CENCOOP are to improve peacekeeping capa-
bilities and achieve a higher profile through regional cooperation based on

165


The Normative Framework of International Humanitarian Law

28. Hans-Heintich Jescheck, Development and Future Prospects, in INTERNATIONAL
CRIMINAL LAW 83 (M. Cherif Bassiouni ed., 1986).

29. See Michael Akehurst, Custom as a Source of International Law, 47 BRIT. Y.B. INT'L L. 1
(1974-75); ANTHONY A. D'AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW
(1971).

30. The States that have done so are Canada, France, and Israel.

31. See BASSIOUNI, CRIMES AGAINST HUMANITY, supra note 4.

32. BASSIOUNI, ICL CONVENTIONS, supra note 8.

33. See Statute of the International Tribunal (for the Prosecution of Persons Responsible for
Serious Violations of Humanitarian Law Committed in the Territory of the Former Yugoslavia)
May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/827
(1993); [hereinafter ICTY Statute], reprinted in 32 I.L.M. 1159, and 2 Weston, supra note 2, at
ILE.10.

34. Prosecutor v. Dusko Tadié, (IT-94-I-T), reprinted in 36 I.L.M. 908 (1997). See also ICTY
Statute, supra note 33. Concerning the war-connecting link, the Tadié decision stated:

Article 5 of the Statute, addressing crimes against humanity, grants the International
Tribunal jurisdiction over the enumerated acts “when committed in armed conflict.” The
requitement of an armed conflict is similar to that of Article 6(c) of the Niirnberg Charter
which limited the Niirnberg Tribunal’s jurisdiction to crimes against humanity committed
“before or during the war,” although in the case of the Niirnberg Tribunal jurisdiction was
further limited by requiring that crimes against humanity be committed “in execution of
or in connection with” war crimes or crimes against peace. Despite this precedent, the
inclusion of the requirement of an armed conflict deviates from the development of the
doctrine after the Niimnberg Charter, beginning with Control Council Law No. 10, which
no longer links the concept of crimes against humanity with an armed conflict. As the
Secretary-General stated: “Crimes against humanity are aimed at any civilian population
and are prohibited regardless of whether they are committed in an armed conflict,
international or internal in character.” In the Statute of the International Tribunal for
Rwanda the requirement of an armed conflict is omitted, requiring only that acts be
committed as part of an attack against a civilian population. The Appeals Chamber has
stated that, by incorporating the requirement of an armed conflict, “the Security Council
may have defined the crime in Article 5 more narrowly than necessary under customary
international law,” having stated earlier that “{s]ince customary international law no
longer requires any nexus between crimes against humanity and armed conflict... . Article
5 was intended to reintroduce this nexus for the purposes of this Tribunal.” Accordingly,
its existence must be proved, as well as the link between the act or omission charged and
the armed conflict.

The Appeals Chamber, as discussed in greater detail in Section VI.A of this Opinion
and Judgment, stated that “an armed conflict exists whenever there is resort to armed
force between States or protracted armed violence between governmental authorities and
organized armed groups or between such groups within a State.” Consequently, this is the
test which the Trial Chamber has applied and it has concluded that the evidence
establishes the existence of an armed conflict.

The next issue which must be addressed is the required nexus between the act or
omission and the armed conflict. The Prosecution argues that to establish the nexus for a

42


The Normative Framework of International Humanitarian Law

avoided for lack of political will by many governments, including the major
powers.

The road ahead is arduous and the same hurdles that have long existed con-
tinue to bar the way for the effective protection of the victims of these three
major crimes. The voices of millions of victims since World War I continue to
cry out, unheard by the politicians of this world, and the sway of conscience
represented by civil society is insufficient to overcome the steadfastness of real-
politik. To recall the words of a popular ballad of the sixties: “When will they
ever learn.”

Impunity for international crimes, and systematic and widespread violations
of fundamental human rights, is a betrayal of our human solidarity with the vic-
tims of conflicts to whom we owe a duty of justice, remembrance, and redress.
To remember and to bring perpetrators to justice is a duty we owe also to our
own humanity and to the prevention of future victimization.!82 To paraphrase
George Santayana, if we cannot learn from the lessons of the past and stop the
practice of impunity, we are condemned to repeat the same mistakes and to suf-
fer their consequences. The reason for our commitment to this goal can be
found in the eloquent words of John Donne:

No man is an island, entire of itself;

every man is a piece of the continent, a part of the main...

Any man’s death diminishes me because I am involved in mankind, and
therefore never send to know for whom the bell tolls;

it tolls for thee . . . 183

Notes

1.G.A. Res. 217A, U.N. GAOR, 3d Sess., pt. 1, at 71, U.N. Doc. A/810 (1948), reprinted in
3 INTERNATIONAL LAW & WORLD ORDER: BASIC DOCUMENTSIII.A.1 (Burns H. Weston ed.,
5 vols., 1994).

2. Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951) (entered into force with
respect to the United States Nov. 25, 1989) [hereinafter Genocide Convention], reprinted in 28
LL.M. 763, and 2 INTERNATIONAL LAW & WORLD ORDER: BASIC DOCUMENTS ILE.3 (Burns
H. Weston ed., 5 vols., 1994) [hereinafter 2 Weston].

3. See generally THE LAW OF WAR : A DOCUMENTARY HISTORY (Leon Friedman ed., 2
vols. 1972); THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS,
RESOLUTIONS AND OTHER DOCUMENTS (Dietrich Schindler & Jiri Toman eds., 1988);
HOWARDS. LEVIE, TERRORISM IN WAR: THE LAW OF WAR CRIMES (1993); and HOWARD S.
LEVIE, THE CODE OF INTERNATIONAL ARMED CONFLICT (2 vols., 1986).

4. See generally M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL
CRIMINAL LAW (1992) (2d rev. ed. in print 1998) [hereinafter BASSIOUNI, CRIMES AGAINST
HUMANITY].

38


Professor L.C. Green


Wolff Heintschel von Heinegg

as some authors, !2° the position of that provision in Part IV of the Additional
Protocol I does not prevent its application to naval blockades. Blockade is, in
the sense of Article 49, paragraph 3, Additional Protocol I, a method of “sea
warfare which may affect the civilian population [. . .] on land.” Therefore,
States parties to Additional Protocol I may not establish and maintain a block-
ade that serves the specific purpose of denying them essential foodstuffs,
“whatever the motive, whether in order to starve out civilians, to cause them to
move away, or for any other motive.”!2! As part of customary international law,
the prohibition of starving the civilian population by the establishment of a na-
val blockade is also binding on States not party to Additional Protocol I, since
it follows from the generally accepted principles of humanity and proportional-
ity.!22 Methods and means of naval warfare are illegal “if the damage to the ci-
vilian population is, or may be expected to be, excessive in relation to the
concrete and direct military advantage anticipated.”!23 In that context, it
makes no difference whether the blockade serves genuine military or economic
purposes. Moreover, even States not bound by Additional Protocol I recognize
that belligerents are under an obligation not to prohibit relief consignments in
case of a naval blockade.!24 That obligation, which is also recognized in the lit-
erature,!25 would be meaningless absent prohibition of a so-called “hunger
blockade.” The military and strategic interests involved are met by the fact that
relief consignments must be granted free passage subject to
* the right to prescribe the technical arrangements, including search,
under which such passage is permitted; and
* the condition that the distribution of such supplies shall be made under

the local supervision of a Protecting Power or a humanitarian

organization which offers guarantees of impartiality, such as the

International Committee of the Red Cross.126

Blockades under Chapter VII of the UN Charter

The final question that remains is whether the rules just described also apply
if a blockade is ordered by the Security Council pursuant to Article 42 of the
UN Charter.!27 In an annotation to paragraph 7.7.2.1, NWP1-14M, the au-
thors hold that “it is not possible to say whether, or to what extent, a UN block-
ade would be governed by the traditional rules.”!28 This statement is certainly
correct insofar as the Security Council, when taking action under Chapter VII,
has a wide range of discretion and that it—as an organ of the UN—is not di-
rectly bound by rules of international law that are primarily designed to regu-
late the conduct of States in situations of armed conflict. On the other hand, a

217


M. Cherif Bassiouni

3. Relationship Between “Inhumane Acts” under Article 5(i)
(Crimes Against Humanity) and “Cruel Treatment” under
Article 3 (War Crimes)

711. These two crimes are clearly presented as alternatives in the
Indictment and should be considered as such. Except for the element
of widespread or systematic practice required for crimes against
humanity, each of them does not require proof of elements not required
by the other. In other words, it is clear that every time an inhumane act
under Article 5(i) is committed, ipso facto cruel treatment under Article
3 is inflicted. The reverse is however not true: cruel treatment under
Article 3 may not be covered by Article 5(i) if the element of
widespread or systematic practice is missing. Thus if the evidence
proves the commission of the facts in question, a conviction should only
be recorded for one of these two offences: inhumane acts, if the
background conditions for crimes against humanity are satisfied, and if
they are not, cruel treatment as a war crime. Given this, it is not strictly
necessary to consider the “different values test”, since the Blockburger
test is ultimately dispositive of the issue.

4. Relationship Between the Charges for Inhumane Acts (or
Cruel Treatment) and the Charges for Murder

712. A brief word here should be said about the relationship between
charges for inhumane acts/cruel treatment and murder. In Counts 2-9,
for example, the accused are charged with the murder of the Ahmiéi
family, and in Counts 10-11 for inhumane acts/cruel treatment of
Witness KL by murdering his family before his eyes. These are clearly
separate offences. Not only are the elements different, but the victims
are even different. Witness KL’s family are the victims of the murder
counts, while KL himself is the victim of the inhumane acts/cruel
treatment counts.

(iii) The Sentence to be Imposed in the Event of More Than One
Conviction for A Single Action

713. The question remains as to how a double conviction for a single
action shall be reflected in sentencing. Both parties seem to agree that
a defendant should not suffer two distinct penalties, to be served
consecutively, for the same transaction. However, the Trial Chamber
is under a duty to apply the provisions of the Statute and customary
international law. Article 24(1) of the Statute provides that:

29


Howard S. Levie

to study the question of the institution of an international criminal court. After
lengthy discussion, the Assembly concluded that ~

the jurisdiction of an international court should be defined in the widest possible
manner and should cover crimes hitherto unlisted as war crimes, such as the
crime of aggression, but there were some categories of crimes which could
definitely be considered to be within its jurisdiction, namely:

(1) crimes in respect of which no national court had jurisdiction (e.g. crimes
committed against Jews and stateless persons and possibly against Allied
nationals in Germany); this category was meant to include offences subsequently
described as “crimes against humanity.”

(2) crimes in respect of which a national court of any of the United Nations
has jurisdiction, but which the State concerned elects, for political or other
Teasons, not to try in its own courts.

(3) crimes which have been committed or taken effect in several countries, or
against the nationals of different countries.

(4) crimes committed by heads of State.!5

In June 1945, when the war in Europe had, for all practical purposes, come
to an end, the Allied nations drafted the United Nations Charter.!6 The only
international court that was established by that Charter was the International
Court of Justice. Article 34(1) of the Statute of that Court limits its jurisdiction
to States.!7

As early as January 1945, France, Great Britain, the Soviet Union, and the
United States began negotiations which would lead to the trial of those Nazis
designated as major war criminals. These negotiations culminated in an Agree-
ment in London on August 8, 1945, to which was attached a Charter of the In-
ternational Military Tribunal.!8 Of particular interest insofar as this study is
concerned is the resolution of the jurisdiction of the Tribunal. Article 6 of the
Charter states:

The Tribunal established by the Agreement referred to in Article 1 hereof for
the trial and punishment of the major war criminals of the European Axis
countries shall have the power to try and punish persons who, acting in the
interests of the European Axis countries, whether as individuals or as members of
organizations, committed any of the following crimes.

251


Jus Pacis ac Belli?

amalgamated in the picture of the state of nature drawn by these thinkers.
Whether the “natural condition of mankind” is depicted in darker or brighter
colors depends on the pessimistic or optimistic, or, if preferred, on the “realis-
tic” or “idealistic” outlook of each individual philosopher. Correspondingly,
the emphasis changes from war as the natural state of relations between States
to peace as “a state most highly agreeable to human nature.”!

Hobbes and Pufendorf are typical representatives of the two schools of
thought. In Hobbes’ Elements of Law is a passage which gives the quintessence
of his view:

Seeing then to the offensiveness of man’s nature one to another, there is
added a right of every man to everything, whereby one man invadeth with
tight, and another with right resisteth; and men live thereby in perpetual
diffidence, and study how to preoccupate each other; the estate of men in
this natural liberty is the estate of war. For war is nothing else but that time
wherein the will and intention of contending by force is either by words or
actions sufficiently declared; and the time which is not war, is peace.’

The opposite thesis finds equally firm upholders and may be illustrated by a
quotation from Pufendorfs De Jure Naturae et Gentium Libri Octo:

Now it is one of the first principles of natural law that no one unjustly do
another hurt or damage, as well as that men should perform for each other
the duties of humanity, and show especial zeal to fulfil the matters upon
which they have entered into particular agreements. When men observe
these duties in their relations one with another, it is called peace, which is a
state most highly agreeable to human nature and fitted to preserve it, the
creation and preservation of which constitutes one of the chief reasons for
the law of nature being placed in the hearts of men.

It does not seem accidental that the earlier naturalists were more impressed
by the reality of the bellum omnium contra omnes than by the utopia of the civitas
maxima. In the early period of absolutism, the Leviathans found themselves in-
volved in a continuous struggle for survival both on the internal and external
fronts. The absolutist States were not yet strong enough for the grand strategy
which required the compact units of greater Powers, backed by a mercantilist
system of economics and taxation as well as by standing armies of considerable
size. They were not yet too weak to rely on big and decisive strokes. The unde-
fined medley of war in peace provided the congenial atmosphere for the young
absolutist State in its fight for survival and preponderance.‘ It, therefore, was
only logical that Grotius entitled his main work De Jure Belli ac Pacis Libri Tres;

484


Ronald St. J. Macdonald

right to do it, even if the Community has yet to exercise its internal powers. See, for instance,
Opinion 2/91 Re Convention No. 170 of the International Labour Convention.

79. Carolyn Rhodes, Introduction: The Identity of the European Union in Intemational Affairs, in
Carolyn Rhodes (ed.), THE EUROPEAN UNION IN THE WORLD COMMUNITY (Boulder: Lyenne
Rienner Publishers, 1998), pp. 1-17.

80. Moshe Mahor, Towards Political Union: Assessing Two Strategies of EPU, in Stavridis (ed.),
note 76, pp. 43-66.

81. PHELAN, note 77, p. 145, quoting Bruno de Witte.

82. The European Commission has represented the member States in the GATT since at
least the 1960s, as they realized immediately that their relative weight in negotiation would be
greatly increased by creating a united front. The European Union also greatly contributed to the
formulation of the WTO agenda. Fraser Cameron, The European Union as a Global Actor: Far
from Pushing Its Political Weight Around, in Rhodes (ed.), note 79, pp. 19-43.

83. The Community has thus been since the early stages mainly responsible for the
agricultural policy of its members. The FAO constitution had to be changed to allow the
Community to join. Interestingly enough, Article II.4 (revised) now provides for admission of
“regional organization constituted by sovereign states . . . to which its Member States have
transferred competencies,” thus making possible for other regional organizations with similar
competencies to be admitted.

84. Koen Lenaerts and Eddy De Smiter, The United Nations and the European Union: Living
Apart Together, in Wellens (ed.), note 31, p. 439.

85. Qizhi He, note 4, p. 77.

86. Rao, note 25, p. 182.

87. CONFORTI, note 2, p. 13 ff.; Crawford, note 32, p. 8ff.; Rao, note 25.

88. In the article, Arangio-Ruiz focuses on the recent activities of the UN organs, and the
Security Council in particular, in order to defy the analogy between a federal system and the
system established by the Charter, an analogy that has been extensively used to justify (under the
doctrine of implied powers) the unchecked expansion of the range of activities of the Security
Council. Arangio-Ruiz considers this analogy marginally justified with regard to peace-keeping
operations, which are “carried out by the organization under the Jegal cover not so much of the
Charter, but of more or less special agreements with the state(s) whose territory or people are to
be affected.” Otherwise, the federal analogy is, in his opinion, “undemonstrated and
implausible.” Although he recognizes that the United Nations has had a significant impact on
the rules of inter-State relations among members, he finds several pitfalls in the conception of
the Charter as a constitution. The United Nations as created by the Charter has no direct power
on the peoples of the Member States, and the peoples themselves had no role in the foundation
of the United Nations and still have no voice in the procedures of the organization. Moreover,
the international system gives no room for a change in the distribution of powers among the
States, being the differences of political economic and military powers among members
tendencially permanent, and the organs of the United Nations are composed of delegates of
States, and are therefore not independent in their decisions. The author looks with alarm at the
increasing tendency of certain States to operate uti universi on behalf of the United Nations and
the entire international community, without control. He considers the application of the
doctrine of implied powers to the actions of the Security Council as a dangerous trend that could
be used by certain States to use the United Nations as an instrument of their own foreign policy,
with the risk of undermining the future of the organization. Gaetano Arangio-Ruiz, The Federal
Analogy and UN Charter Interpretation: A Crucial Issue, 8 EUROPEAN JOURNAL OF
INTERNATIONAL LAW 1-18 (1997).

299


Appendix

“Grave Breaches” or Crimes Against Humanity? USAFA Journal of Legal
Studies, 1997/8, 19-34; Gotz et al., Liber Amicorum Ginther Jaenicke, 1998,
113-48.

Cicero and Clausewitz or Quincy Wright: The Impact of Law on War. USAFA

Journal of Legal Studies (1998/9), 59-98; 47 Chitty’s Law Journal, 1999,
Parts 3 & 4, 37-57.

The Law of War in Historical Perspective. In Schmitt, The Law of Military Op-
erations, 1998, 39-78.

International Regulations of Armed Conflicts. In Bassiouni, International Crim-
inal Law, 2nd ed., Vol. 1, Crimes, 1999, 355-80.

Weapons Control and the Law. Ibid., 459-94.

The International Judicial Processs and the Law of Armed Conflict. 47 Chitty’s
Law Journal, 1999, Parts 3 & 4, 1-36.

Crimes Against Humanity and the Law. In Bhatia et al., Peace, Justice and Free-
dom, 2000, 137-56.

The Rule of Law and Human Rights in the Balkans. Forthcoming in Canadian
Yearbook of International Law.

579


M. Cherif Bassiouni

[paragraph omitted]

209. The Chamber notes that in Civil Law systems, including that of
Rwanda, there exists a principle known as concours ideal d’infractions
which permits multiple convictions for the same act under ceratin
circumstances. Rwandan law allows multiple convictions in the
following circumstances:

210. Code pénal du Rwanda: Chapitre VI—Du concours
d'infractions:

Article 92.- Il ya concours d’infractions lorsque plusieurs infractions
ont été commises par le méme auteur sans qu’une condamnation soit
intervenue entre ces infractions.

Article 93.- Il y concours idéal:

1° lorsque le fait unique au point de vue matériel est susceptible de
plusieurs qualifications;

2° lorsque V’action comprend des faits qui, constituant des
infractions distinctes, sont unis entre eux comme procédant d’une
intention délictueuse unique ou comme étant les uns des
circonstances aggravantes des autres.

Seront seules prononcées dans le premier cas les peines déterminées
par la qualification la plus sévére, dans le second cas les peines
prévues pour la répression de l’infraction la plus grave, mais dont le
maximum pourra étre alors élevé de moitié.

211. On the basis of national and international law and jurisprudence,
the Chamber concludes that it is acceptable to convict the accused of
two offences in relation to the same set of facts in the following
circumstances: (1) where the offences have different elements; or
(2) where the provisions creating the offences protect different
interests; or (3) where it is necessary to record a conviction for both
offences in order fully to describe what the accused did. However,
the Chamber finds that it is not justifiable to convict an accused of
two offences in relation to the same set of facts where (a) one offence
is a lesser included offence of the other, for example, murder and
grievous bodily harm, robbery and theft, or rape and indecent assault;
or (b) where one offence charges accomplice liability and the other

33


Shabtai Rosenne

law as a self-standing branch of the law, not dependent on the existence of a
formal state of war. In that way they bring the Geneva law into line with the
fundamental rule of Article 2, paragraph 4, of the UN Charter, prohibiting the
use of force against the territorial integrity or political independence of any
State or in any manner inconsistent with the Purposes of the United Nations. It
is to be noted that the detailing of war crimes in Article 8 of the Rome Statute
does not always follow exactly the language of the Geneva Conventions and
the Additional Protocols as regards breaches and grave beaches. This is a possi-
ble cause of difficulty for the new court. The Rome Conference may have ex-
ceeded its formal mandate when it made those changes.#3

To Rome (1992-1998)

In Resolution 47/33, November 25, 1992, the General Assembly requested
the Secretary-General to seek written comments of States on that section of
the report of the International Law Commission in which the Commission, as
requested, addressed the issue of the proposed criminal court. At the same
time, in a marked change from its attitude in the 1950s, it invited the Commis-
sion to continue its work on the question by undertaking to prepare a draft stat-
ute for the proposed court as a matter of priority. Accordingly, in 1993 the
Commission reconvened the Working Group, which prepared what it termed a
preliminary version of the draft statute for an international criminal tribunal
and commentaries thereto.‘ In Resolution 48/31, December 4, 1993, the Gen-
eral Assembly requested the Commission to continue its work as a matter of
priority, and if possible to submit a draft statute in 1994. This the Commission
did. It reestablished a new Working Group and went on to draw up a complete
Statute in 60 articles with commentaries, together with an Annex and three
Appendices. The Commission recommended to the General Assembly to con-
vene an international conference of plenipotentiaries to study the draft statute
and to conclude a convention on the establishment of an international crimi-
nal court.45

In that condition the question reverted to the political organs for the final
decisions to be taken. The discussion in the General Assembly soon showed
that the International Law Commission’s draft was not widely accepted and
could not, as it stood, form the basic text for an international plenipotentiary
conference. Accordingly, the first step of the General Assembly was to estab-
lish an Ad hoc Committee open to all States members of the United Nations or
of specialized agencies. In Resolution 49/53, December 9, 1994, the General
Assembly set out the function of this new Committee requiring it to review the

401


Ruth Lapidoth

Notes

1. The Convention is annexed to UNGA Res. 51/229, May 21, 1997. It was also published in
36 INTERNATIONAL LEGAL MATERIALS (1997), p. 700. See also Lucius Caflisch, Regulation of
the Uses of International Watercourses, in Salman M.A. Salman and Laurence Boisson de
Chazournes, eds., INTERNATIONAL WATERCOURSES: ENHANCING COOPERATION AND
MANAGING CONFLICT, World Bank Technical Paper No. 414 (1998), pp. 3-16; Stephen
McCaffrey, The UN Convention on the Law of the Non-Navigational Uses of Intemational
Watercourses: Prospects and Pitfalls, ibid., pp. 17-28. The Convention was negotiated in a
Committee of the Whole of the Sixth (Legal) Committee of the UN General Assembly on the
basis of draft articles adopted by the International Law Commission. See Report of the
International Law Commission on the Work of its Forty-sixth Session, UNGA OR, 49" Session,
Supp. No. 10, p. 197, UN Doc. A/49/10 (1994).

2. Preamble, 5** paragraph.

3. Stephen McCaffrey, supra note 1, at p. 26. On the impact the Convention may have on
the development of general customary law, see Attila Tanzi, The UN Convention on International
Watercourses as a Framework for the Avoidance and Settlement of Waterlaw Disputes, 11 LEIDEN
JOURNAL OF INTERNATIONAL LAW (1998), pp. 441-472, at pp. 442-443. The International
Court of Justice has already referred to the Convention. See the Gabcikovo-Nagymaros case
(Hungary/Slovakia), Judgment of September 25, 1997, 1997 ICJ. Reports and 37
INTERNATIONAL LEGAL MATERIALS (1998) at p. 162.

4. Article 5.

5. See, e.g., B.R. Chauhan, Settlement of International Water Law Disputes in International
Drainage Basins, \WASSERRECHT UND WASSERWIRTSCHAFT, vol. 19, Berlin: Erich Schmidt
Verlag 1981. See also the overview by Professor Stephen C. McCaffrey, Special Rapporteur, in
his Sixth Report to the International Law Commission, UN Doc. A/CN.4/427 and Add. 1, of
February 23 and June 7, 1990, YEARBOOK OF THE INTERNATIONAL LAW COMMISSION, 1990
(Il), p. 41, at pp. 66-75; Resolutions adopted by the Institute of International Law at its Session.
at Salzburg September 4-13, 1961, Utilization of Non-maritime International Waters (except
for navigation), ANNUAIRE DE I' INSTITUT DE DROIT INTERNATIONAL, 1961, at p. 381, Articles
6-9; The Helsinki Rules, adopted by the International Law Association in 1966, Report of the
Fifty-Second Conference, held at Helsinki, August 14-20, 1966, p. 484, Articles XXVI-XXXVII
and Annex; Dominique Alheritiere, Settlement of Public Intemational Disputes on Shared
Resources: Elements of a Comparative Study of Intemational Instruments, 25 NATURAL RESOURCES
JOURNAL (1985), p. 7.

6. See also Ruth Lapidoth, Some Reflections on Peaceful Means for the Settlement of Interstate
Disputes with Special Reference to the 1997 Convention on the Law of the Non-navigational Uses of
International Watercourses, in Robin Sanchez, Jeff Woled, and Darle Tilly, eds., Proceedings of
the First Biennial Rosenberg International Forum on Water Policy, Water Resources Report No.
93, University of California Centers for Water and Wildland Resources, 1998, pp. 59-74, at p.
71.

7. Article 10 of the 1997 Watercourses Convention.
8. Articles 20-23. See also Gretta Goldenman, Adapting to Climate Change: A Study of
International Rivers and Their Legal Arrangements, 17 ECOLOGY LAW QUARTERLY (1990), p. 741.
9. McCaffrey, supra note 1, p. 22.
10, McCaffrey, supra note 5, pp. 42-48; Eyal Benvenisti, Collective Action in the Utilization of
Shared Freshwater: The Challenges of International Water Resources Law, 90 AMERICAN JOURNAL
OF INTERNATIONAL LAW (1996), p. 384. See also the reports to the International Law

243


Westphalian Peace Tradition

State practice and can today be compared with Articles 10 and 16 of the
League Covenant and Chapters VI and VII of the UN Charter.

Grotius’ jus ad bellum doctrine was not reflected in the Peace provisions. The
more ambitious approach of jus contra bellum was introduced in State (treaty)
practice for the first time (although in a loose manner). It would not prevail in
actual practice during the following centuries, but after 1648 it was once and
for all ideologically implanted in political thinking on law and diplomacy.

Itis definitely an overstatement to say, as Hedley Bull has done, that Grotius
“may be considered the intellectual father of this first general peace settlement
of modern times.”25 Grotius did not recommend a general conference of Euro-
pean. powers and did not envisage that a comprehensive peace settlement
would have the potential of providing the international society with an institu-
tional foundation. However, Grotius’ conception of international society is
bound to have influenced the negotiators in Osnabriick and Miinster to some
extent. Hedley Bull may be correct in his assessment that “in their impact on
the course of international history the theory of Grotius and the practice of
Westphalia marched together.”26

The Westphalian Balance of Power System 1648-1789

In the immediate aftermath of 1648, it seemed that the old international sys-
tem had been transformed into an international society, if not into an interna-
tional community guided by common values, common policy prescriptions,
and common legal rules of coexistence. Nevertheless, the weakness of the
Westphalian peace and security system soon became apparent. In modern par-
lance, it had no institutional backing and contained no mechanism for imple-
menting crisis management procedures. Moreover, there was more often than
nota lack of political will in the ensuing era of absolutism. Non-peaceful settle-
ment of disputes seemed to be the rule. The first trade war between the Nether-
lands and Britain was fought between 1652-54. During the same decade,
Spanish troops recaptured Barcelona from French occupation, Sweden inter-
vened in the Polish-Russian war, Denmark attacked Sweden’s territories in
northern Germany, Britain and France jointly attacked Spain, etc. However,
the area of main concern to the Westphalian Peace negotiators, central Eu-
rope, was still peaceful.

Westphalia left a legacy of balance of power diplomacy that in many respects
was conducive to peace. Although the treaties of Osnabriick and Miinster con-
tained no explicit wording on balance of power, the concept was inherent in
the treaties. The rule on collective sanctions implied a potential of deterrence

62


Ronald St. J. Macdonald

Convention. It is “functional” insofar as the Authority exercises limited func-
tions through exclusive rights, controlling and managing the exploration and
exploitation of the natural resources of the Area and related activities, that co-
exist with shared jurisdictions (scientific research) and with the rights of States
in the Area (prospecting).

The third major division of the Convention comprises Parts XII through
XV. It deals with the marine environment as a whole, with marine scientific re-
search and technology development transfer, and with the peaceful settlement
of disputes.

The Convention put an end to the old controversy regarding the width of
the territorial sea—the limit of 12 nautical miles was accepted—and intro-
duced a number of new features, such as the exclusive economic zone, the
archipelagic zone, and the regime of transit through straits used for interna-
tional navigation. It provided for the establishment of an International Tribu-
nal for the Law of the Sea and defined the Area of seabed and subsoil beyond
national jurisdiction.

The Area, considered under Part XI (Articles 136-191) and Annexes
IV-IX of the Convention, is defined as the common heritage of mankind. Arti-
cle 311.6 further underlines the importance of the Area by declaring that no
State can be party to an agreement in derogation of Article 136. This article is
not subject to amendment. Article 160 sets up an Assembly, comprising repre-
sentatives of all members, for the management of the Area. An executive or-
gan, a Council comprising 36 members, 18 coming from special interest States
(the coastal States) and 18 chosen according to a geographic criteria, is pro-
vided for in Article 162. The Authority has a Secretariat for administrative
matters and an Enterprise, its business arm,®? which deals with States in the
granting of exploitation concessions. Jurisdictional authority for disputes
among States or between States and the Authority regarding the Area rests
with the 11-member Seabed Dispute Chamber of the 21-judge International
Tribunal for the Law of the Sea.

As far as dispute settlement is concerned, States have been given the option
to select their forum by written declaration. They may choose between the In-
ternational Tribunal, the International Court of Justice, arbitration or special
interpretation, failing which, or in the case of conflicting declarations, arbitra-
tion under Annex VII. Between 1984 and 1994 some 15 disputes on the law of
the sea were referred to the International Court of Justice, arbitration, or an-
other forum, such as a conciliation commission. As is well known, but bears re-
peating, the system for the peaceful settlement of disputes designed in Part XV

285


Georg Schwarzenberger

The doctrine of the normality of peace and the functions of war. In the leading
treatises on international law, the order of things, as it appeared to the
naturalists, is reversed. Jus Belli ac Pacis is boldly transformed into Jus Pacis ac
Belli. It is mostly taken for granted that peace is the normal state in
international relations. Only exceptionally a writer condescends to state in so
many words this “self-evident” assumption. Phillimore, in his Commentaries
upon International Law, does so with commendable clarity: “We have hitherto
considered States in their normal, that is, their pacific relations to each
... other.We have now to consider the abnormal state of things which ensues
upon a disturbance of these normal relations, when these rights have been
invaded and these obligations not fulfilled.”**

Actually, such an assertion implies views and judgments on the nature and
functions of war which are far from being self-explanatory. As has been shown
before, the naturalists found their solutions of these problems by means of ab-
stractions from reality or deductions from human nature. Modern writers who
enjoyed the deceptive security of a stable balance of power system as it existed
between 1815 and 1914, might have held with some justice that they, too, had
drawn the obvious conclusions from their era of peace. For a generation which
has witnessed two World Wars in its lifetime, the assumption of peace as the
normal state of international relations is much more problematical. In a system.
of power politics, war is not an unhappy incident or an incalculable catastro-
phe, but the culminating point in a rising scale of pressure, the last resort of
power politics when diplomacy fails to achieve its objects by the threat of force
or the application of less drastic forms of pressure.?> Thus, this doctrine is
founded on a complete misinterpretation of the functions of war in modern in-
ternational society.

A good many writers have tried to avoid the real issue by remarkable feats of
escapism. Over and over its has been repeated that war is an event,26 a question
of fact,2? or “an international fact in the first degree.”28 If this meant that war is
legally irrelevant, it would prove rather too much; for it would imply that inter-
national law is not capable of dealing with legal problems arising out of war.
Rightly, this conclusion is not drawn by international lawyers. This classifica-
tion of war may mean, too, that war entails legal consequences, but is not capa-
ble of legal control.?9 To prove this is the avowed or implied object of those
who interpret war as akin to revolution or as an emergency agency of change.
How could a legal system attempt to control revolution or effect far-reaching
changes without elaborate legislative organs in which clearly international law
is so utterly lacking? As, however, the need for revolution or sweeping changes
is only apparent in exceptional circumstances, peace may still be considered to

489


Charter of the United Nations as a World Constitution

of intervention and the more complex matters included in the Treaty of Rome, encompassing
economic and social concerns, States were less ready to renounce their sovereign powers in
favour of a supranational authority working too independently from them.

68. The Member States, “anxious to strengthen the unity of their economies and to ensure
their harmonious development by reducing the differences existing between the various regions
.. establish among themselves a European Economic Community ... to promote ...a harmonious
development of economic activities.” Treaty of Rome, 1957, Preamble and arts. 1-2. The Treaty
on the European Union (1992) “marks a new stage in the process of creating an ever closer union
among the people of Europe” (art. A). :

69. Treaty establishing the European Economic Community (The Treaty of Rome), Rome,
March 25, 1957, in TREATIES ESTABLISHING THE EUROPEAN COMMUNITIES AS AMENDED BY
SUBSEQUENT TREATIES (London: HMSO, 1988), art. 2.

70. Treaty on the European Union, TREATY OF ROME CONSOLIDATED AND THE TREATY OF
MAASTRICHT, (Sweet and Maxwell, 1992), art. B. The European Union is “founded on the
European Communities, supplemented by the policies and forms of co-operation established by
... [the] Treaty” (art. A); it is not therefore replacing the European Community, which is
maintained as the official denomination for what the common policies and the common market
are concerned.

71. “The representatives in the Assembly of the peoples of the States brought together in the
Community shall be elected by direct universal suffrage.” Council Decision and Act of
September 20, 1976, art. 1.

72. See Treaty of Rome, Art. 43 ff. Up to 1994, only 14 percent of the entire body of
legislative acts of the Council have been voted by qualified majority, while in the great majority
of the cases, the Council prefers to adopt these measures at unanimity, according to the so-called
“Luxembourg compromise” of 1966.

73. “The member of the Commission shall, in the general interest of the Communities, be
completely independent in the performance of their duties . . . In the performance of these duties,
they shall neither seek nor take instructions from any government.” Single European Act, art.
10.

74. Clive Archer and Fiona Butler (eds.), THE EUROPEAN COMMUNITY: STRUCTURE AND
PROCESS (New York: St. Martin’s Press, 1996), p. 44ff.

75. The States often do not promptly adopt such laws, thus causing several delays in the
implementation of the Community’s Policies. Some States have adopted legislative measures to
avoid excessive delays in the implementation of European directives. The Italian Parliament, for
instance, decided to provide for an annual European Law, which automatically allows all the
directives that have not been converted in the previous year, to be made effective at the local
level of administration.

76. Paul Taylor, Prospects for the European Union, in Stelios Stavridis (ed.), NEW
CHALLENGES TO THE EUROPEAN UNION: POLICIES AND POLICY-MAKING (Brookfield:
Aldershot, 1997), pp. 13-41.

77. DIARMUID ROASSA PHELAN, REVOLT OR REVOLUTION: THE CONSTITUTIONAL
BOUNDARIES OF THE EUROPEAN COMMUNITY, (Dublin: Round Hall Sweet & Maxwell, 1997),
p- 27, quoting W.G. van der Meers.

78. The most evident effect of this doctrine is in the recognition of the capacity of the
Community to enter into international treaties on behalf of member States. According to the
Court, wherever the European Community has internal power to legislate, it also has the
corresponding external power to enter into treaties, while the Member States have no longer the

298


On Genocide

person is a member of a group that the perpetrator hates. Although the under-
lying crime is of course punishable under the criminal law, the penalty for the
crime is enhanced if it constitutes a hate crime. In a recent shocking case in the
United States, a black teenager was walking along on the sidewalk of a white
Northern suburb, minding his own business, when he was suddenly attacked
and killed by a white teenage gang. The gang had simply determined to kill the
next black person who walked by. Although the murder itself was punishable
by life imprisonment, the fact that it was motivated by a hatred of the group to
which the victim belonged led the sentencing judge to deny the possibility of
parole.

Many criminologists and lay observers have lobbied against the enactment
of hate crimes on the deceptively simple ground that “a crime is a crime, re-
gardless of motive.” To the contrary, I think it is a civilizational improvement
to deter especially the crimes and harms committed against people just because
of their status as involuntary members of a group. To be sure, this kind of “dis-
crimination” has been around since Biblical times, and in the past few centuries
the Jews in many countries have been the special target of such discriminatory
maltreatment. The Third Reich brought this discrimination to a legislative fo-
cus, and if any “good” can be said to have come of the Holocaust, it can only be
an enduring legacy that genocide under international law and “hate crimes”
under domestic law are a coherent category all their own—a crime more hei-
nous than the underlying criminal act itself.

Specific Intent

There is no doubt that, from a prosecutor’s point of view, genocide is a
harder crime to prove than most international violations of humanitarian law.
It is difficult for the prosecutor to discharge the burden of proving a specific in-
tent to commit genocide. Contrary to popular belief, this difficulty is not due to
the fact that genocide is a more serious crime with more serious consequences.
Rather, it relates to the fact that motive is a specific intent of the crime itself.
Thus, in its opening clause, the 1948 Convention uses the word “intent,” and
each of the enumerated actions begins with the language of intent—“killing,”
“causing,” “deliberately inflicting,” “imposing measures intended to,” and
“forcibly transferring.”

Defense attorneys will typically argue that in order to prove genocidal in-
tent, the prosecutor must present evidence of a “plan” of genocide. This might
consist of transcripts of a conspiratorial meeting, or a military directive, or some
other evidence of a prearranged policy to destroy a national, ethnical, religious,

124


Bin Cheng

77. 55 DEPT. OF STATE BULL. (1966), p. 952; statement released on 8 December 1966, when.
agreement was actually reached between the major space Powers.

78. Cf, e.g, V. Kopal, Concems Expressed in the United Nations over the Military Uses of Outer
Space, in Jasentuliyana, (ed.), op. cit. in note 23 above, p. 59, and several other papers in the same
volume. See also José Monserrat Filho, Total Militarization of Space and Space Law: The Future of
the Article IV of the’67 Outer Space Treaty, 40 SPACE LAW COLLOQUIUM (1997), pp. 356-369.

79. See CHENG, op. cit. in note 6 above, Epilogue, s. 1V: Conditions Governing International
Rule-Making, pp. 671-697.

80. UN Publ. Sales No. E.83.V.5.

81. On the formation of rules of general international law, see B. Cheng, Custom: The Future
of General State Practice In a Divided World, in R. St. J. MacDonald and D. M. Johnston (eds.),
THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW, The Hague: Martinus Nijhoff
(1983), pp. 513-554. N.B.: pp. 545 and 546 are in the wrong order and have been wrongly
paginated.

82. See THE TIMES LONDON (28 May 1997), p. 1, col. 1: Russia and NATO Bury the Cold
War, reporting the signing by NATO and Russia at Paris on 27 May 1997 of the Founding Acton.
Mutual Relations, Co-operation and Security, and the surprise promise by President Yeltsin
afterwards that Russian warheads would not be targeted at the signatories to the Founding Act.
For text of the Founding Act, see 36 ILM (1997) 1006.

17


William J. Fenrick

one scholarly article be produced per quarter. Leslie published sixty articles be-
tween 1946 and 1960.

In 1960, he moved to the University of Singapore, where he was Professor of
International Law from 1960-1965 and also Dean of the Law Faculty in
1964-1965. He published another twenty-seven articles during this period.

In 1965, Leslie moved to the University of Alberta in Edmonton, where he
was a Professor of Political Science from 1965-1969, and then a University
Professor affiliated with the Department of Political Science until he became
Professor Emeritus in 1992. During his time at Alberta, he produced numerous
articles, two more editions of his casebook, and several other books: Law and
Society (1975), Superior Orders in National and International Law (1976), Inter-
national Law—A Canadian Perspective (1984, 2nd ed. 1988), Essays on the Mod-
ern Law of War (1985, 2nd ed. 1999), and The Law of Nations and the New
World (1989) (with O.P. Dickason).

Following his retirement from the University of Alberta in 1997, Leslie con-
tinued to teach on a full-time basis. He was a Distinguished Visiting Professor
at the College of Law, University of Denver, in 1995-1996. The culmination of
his teaching career, to date, consists of two one-year appointments to the U.S.
Naval War College as Charles H. Stockton Professor of International Law from
1996-1998. He continues to write numerous articles and has just completed
the 2nd edition to his most recent book, The Contemporary Law of Armed Con-
flict (1993).

Although most of his professional life has been spent in an academic en-
vironment, Leslie has devoted a substantial part of his professional career to
advising government officials. In particular: during 1972-1975, he was a con-
sultant to the Judge Advocate General of the Canadian Forces on the superior
orders issue; during 1974-1975, he was Academic in Residence to the Legal
Bureau of the Canadian Department of External Affairs; during 1975-1977, he
was a member of the Canadian delegation participating in the negotiation of
the Additional Protocols of 1977; and during 1979-1980, he was a resident
consultant to the Judge Advocate General of the Canadian Forces and wrote
the first draft of the Canadian Forces Manual on the Law of Armed Conflict.
Today, in 2000, he is updating the Canadian Forces Manual.

Professor Leslie Green has received many awards for his outstanding service
to international law and to Canada. In 1976 he was awarded an LLD by the
University of London for his contribution to international law and sociology of
law. He became a Fellow of the Royal Society of Canada in 1980 and a member
of the Order of Canada in 1993. In 1994 he received an honorary LLD from the
University of Alberta. His Canadian colleagues honoured him for his

xv


Contributors

Office of the Prosecutor on all law of armed conflict matters. Previously, he was
a member of the Commission of Experts appointed under Security Council
Resolution 780 to investigate allegations of serious violations of international
humanitarian law and served as rapporteur for legal issues and for on-site inves-
tigations. Mr. Fenrick retired from the Canadian military in 1994. During his
military career, he specialised in and published several articles on the law of
armed conflict.

Doctor Dieter Fleck is the Director, International Agreements and Policy,
Federal Ministry of Defence, Germany. Dr. Fleck’s previous positions were as
Director, International Legal Affairs, Federal Ministry of Defense; Assistant
Head of Section in the Federal Chancellor’s Office; and Legal Advisor in the
Federal Armed Forces. He is a member of the Council, International Institute
of Humanitarian Law, San Remo; Vice President, International Society of Mil-
itary Law and the Law of War, Brussels; and Rapporteur, Committee of Arms
Control and Disarmament Law of the International Law Association. He has
written and edited numerous publications including THE HANDBOOK OF
HUMANITARIAN LAW IN ARMED CONFLICTS.

Professor Christopher Greenwood is Professor of International Law at the
London School of Economics and Political Science. He is a Barrister, practic-
ing from Essex Court Chambers in London, and has represented the United
Kingdom before the International Court of Justice in the Nuclear Weapons and
Lockerbie cases, as well as appearing regularly in the English courts. Professor
Greenwood was formerly a Fellow and Lecturer at Magdalene College, Cam-
bridge, and has been a visiting professor at universities in the United States and
Germany. He is a regular lecturer at military colleges, has published a number
of articles on international law, and is the author of a forthcoming book on the
law of armed conflict.

Doctor Wolff Heintschel von Heinegg is Professor of Law at the University
of Augsburg, Germany. The Rapporteur of the International Law Association
Committee on Maritime Neutrality and the Vice-President of the German So-
ciety of Military Law and the Law of War, Dr. Heintschel von Heinegg was
among a group of international lawyers and naval experts who produced the
SAN REMO MANUAL ON INTERNATIONAL LAW APPLICABLE TO ARMED
CONFLICTS AT SEA. He is a widely published author of articles and books on
the law of the sea and naval warfare.

Professor Ruth Lapidoth is Professor of International Law at the Faculty of
Law and at the Department of International Relations, as well as chairperson of
the Academic Committee of the Institute for European Studies, at the Hebrew
University of Jerusalem. Since 1989 she has been a member of the Permanent

583


The History and Status of the International Criminal Court

51.See Howard S. Levie, The Rise and Fall of an Intemationally Codified Denial of the Defense of
Superior Orders, 30 REVUE DE DROIT MILITAIRE ET DE DROIT DE LA GUERRE 183 (1991);
reprinted in LEVIE ON THE LAW OF WAR 269 (Vol. 70, International Law Studies, 1998).

52.1t has probably always been held that a person is legally obligated to obey the orders of his
government or a superior unless the order was manifestly illegal. See, e.g., The Dover Castle
Case in MULLINS, THE LEIPZIG TRIALS 107 (1921).

53.See note 52, supra. Paragraph 2 of Article 33 specifically states that “orders to commit
genocide or crimes against humanity are manifestly illegal.”

54. There is a procedure in Article 36(2) for increasing this number.

55.One rather unusual rule which is included in Article 50 of the Statute itself is that while
the official languages of the Court are Arabic, Chinese, English, French, Russian and Spanish,
the working languages of the Court are English and French.

56.Under certain circumstances, the Pre-Trial Chamber may review the Prosecutor's
decision on its own initiative. See Article 53(3) (b).

57.Article 67 sets forth a number of additional rights of the accused. A rather unusual
provision for an international criminal court is to be found in Article 72, “Protection of national
security information.”

58. However, paragraph 2 of that article does authorize the Court to remove an accused from
the courtroom if he disrupts the proceedings. Even then, he must be allowed to view the trial
from outside and to communicate with his counsel.

59.1t should be noted that Article 101 makes the rule of specialty applicable to cases of the
surrender of an individual to the Court for trial.

262


Making Law of War Treaties

in their efforts to hamstring the submarine and, in the London Naval Treaty of 1930, achieved
success. By 1940, they wished they hadn’t!” MARS, supra note 87, at 20. Despite its opening
language (“The following are accepted as established rules of International Law”), the concluding
sentence (“The High Contracting Parties invite all other Powers to express their assent to the
above rules”) indicates that the delegations regarded Article 22 to be contractual rather than a
codification of customary international law.

102. Id. at 44, 49; and KAUFMAN, supra note 54, at 137-138.

103. LNTS, Vol. 112, at 65-69; 2 Bevans, at 1055-1075. The ambiguities of the Treaty's
submarine warfare regulations regarding merchant ships were immediately identified in the
Naval War College’s INTERNATIONAL LAW SITUATIONS 1930 (1931), at 1-56.

104. In the period preceding the London conference, Japan had taken advantage of the 1922
Washington Treaty*s lack of cruiser regulation to build a new fleet of heavy cruisers and
submarines that provided it superiority over the U.S. fleet in the Western Pacific. The London
agreement would sacrifice that superiority. The Japanese Cabinet, led by Prime Minister
Hamaguchi Osachi, overrode the Navy's objections, precipitating a constitutional crisis. In
November 1930, Prime Minister Hamaguchi was shot by a right-wing fanatic; he died the
following summer. KAUFMAN, supra note 54, at 141; PELZ, supra note 57, at 14; LACROIX AND
WELLS, supra note 57, at 51, 53,

105. ROSSLER, supra note 29, at 93-97; TARRANT, supra note 37, at 78.

106. CHAPUT, supra note 28, at 211; WATTS AND GORDON, supra note 63, at xii;
BARNHART, supra note 53, at 56. The first session of the League of Nations Preparatory
Commission for the 1932 World Disarmament Conference took place in May 1926. ROSKILL,
supra note 53, at 498.

107. J. Thompson, Great Britain and the World Disarmament Conference, 1932-1934,
Ph.D. diss., U. N.C. (1961), at 350.

108. Douglas, supra note 52, at 233-234.

109. ROSSLER, supra note 29, at 97-99; TARRANT, supra note 37, at 78; KAUFMAN, supra
note 54, at 175; PELZ, supra note 57, at 41, 75; S. ROSKILL, THE WAR AT SEA, Vol. I (1954), at
52; W. SHIRER, THE RISE AND FALL OF THE THIRD REICH (1960), at 187, 210, 289; Douglas,
supra note 52, at 233, 234; MARDER, supra note 53, at 9.

110. Douglas, supra note 52, at 237, 241; ROSKILL, supra note 82, at 284-299; MARDER,
supra note 53, at 9; PELZ, supra note 57, at 134-151; and HIROYUKI AGAWA, THE RELUCTANT
ADMIRAL: YAMAMOTO AND THE IMPERIAL NAVY, J. Bestor, tr. (1979), at 46-48.

111. Douglas, id., at 248; MARDER, supra note 53, at 11; PELZ, supra note 57, at 164.

112. See note 21. The Treaty was signed on November 6, 1936, by Australia, Canada,
France, United Kingdom, India, Ireland, Italy, Japan, New Zealand, South Africa, and the
United States. As the signatory States were parties to the 1930 London Naval Treaty,
ratification of the Procés-Verbal was unnecessary. Thirty-nine other nations, including Germany
(November 23, 1936), subsequently became States Parties.

113. TARRANT, supra note 37, at 79; Douglas, supra note 52, at 235, 251; PELZ, supra note 57,
at 193, 203; WATTS AND GORDON, supra note 63, at xii, xiiii; ROSKILL, supra note 109, at 52;
SHIRER, supra note 109, at 471. As part of the 1936 London meeting, France, Great Britain and
the United States agreed to restrictions on the individual size of the different types of combatants
and the gun caliber on each vessel type, with escalator clauses if the provisions were exceeded by
a nonsignatory, with Germany and Japan clearly in mind. Douglas, supra note 52, at 250-251.

114. H. THOMAS, THE SPANISH CIVIL WAR (Rev. ed., 1977), at 739-742; ROSKILL, supra
note 82, at 370, 383, 385. The complete text of the Nyon Agreement is in Schindler & Toman,

380


IV

On Genocide

Anthony D’Amato

[e LIKE TO BE MENTIONED, AT LEAST IN A FOOTNOTE, in the biography
someone will write someday about that great gentleman and scholar, Leslie
C. Green. A number of years ago, when Professor Green was not well known in the
United States, he submitted some of his essays on international law to Transna-
tional Publishers, Inc. As a member of that board, the publisher, Heike Fenton,
called me up and asked for my appraisal of a book containing these essays. She let
me know that it would probably be a losing proposition, since essay collections (at
that time at least) hardly ever repaid their cost of publication. I had an idea that
could suit her and Professor Green at the same time. I suggested to Heike that she
might want to consider going back to Professor Green and saying that although
she would not be able to publish the particular essays he had submitted to her,
she would be very interested if he would submit all the essays he had written on
the law of war. Of course, I was familiar with these essays, and I thought that
their collection in a single volume might work from a publisher’s standpoint.

The rest is history. Leslie Green graciously complied by submitting a number
of his essays on the law of war, resulting in the book Essays on the Modern Law of
War. Its fame and fortune grew, and it is now in its second edition. It has often
been used as a text in military academies and undoubtedly influenced the Na-
val War College to extend to Professor Green an invitation to become a holder
of the Stockton Chair—unusual for a scholar who is not an American citizen


M. Cherif Bassiouni

the opportunity arose to prosecute Pol Pot for such crimes in Cambodia, it was
not seized.!74

Many of the specific acts deemed criminal are contained within the defini-
tions of “war crimes,” “crimes against humanity,” and “genocide.” That is
where the overlap exists. Thus, legal questions arise as to when the same acts
constitute one or the other of these three crimes. At this point, a jurist must ex-
amine the other legal elements required in the sources of law applicable to
these three categories of crime. The “grave breaches” of the 1949 Geneva con-
ventions!?5 and Protocol I!” are the clearest enunciation of what the elements
of “war crimes” are, but that is because they apply to the context of conflicts of
an international character. This is not quite the case with respect to common
Article 3 of the 1949 Geneva conventions!’ and Protocol II,!78 which apply to
conflicts of a non-international character, but with the exclusion in Protocol II
of conflicts between internal dissident groups. Still, the gap between normative
proscriptions applicable to the two contexts of conflicts exists, as does the over-
lap between these violations. The overlaps essentially are aimed at individual
deviant conduct, the same type of criminal conduct that falls also within the
scope of crimes against humanity and genocide, since the latter two crimes ap-
ply to all contexts of armed conflicts as well as to other non-armed conflicts
contexts and to tyrannical regime victimization. Clearly, such a situation need
not exist since it would be easy to articulate the elements of each of these three
categories of crimes clearly, in a way that prevents these unnecessary overlaps
and gaps. So far, however, the political will to do so is nonexistent.

Because there is a connection between the rigors of evidentiary require-
ments to prove “war crimes,” “crimes against humanity,” and “genocide,” and
access to that evidence, the major governments who have the capacity to ob-
tain such evidence remain in control of its use, and thereby in control of any
eventual prosecution. This leaves such governments with the option to barter
the pursuit of justice in exchange for political settlements.!79 An examination
of what happened in all types of post-World War II conflicts clearly indicates
that the pursuit of justice has been almost always bartered away for the pursuit
of political settlements. !89 Consequently, the pursuit of justice has become part
of the toolbox of political settlement negotiations.!8! This is true for all three
major crimes, essentially because they are committed by armies, police, and
paramilitary groups which act pursuant to orders from the State’s highest au-
thorities. The need for an integrated codification of these three categories of
crimes is self-evident. But when that opportunity arose in connection with the
establishment of a permanent international criminal court, it was carefully

37


IX __ Dispute Settlement under the 1997 Convention on the Law of the
Non-Navigational Uses of International Watercourses

Ruth Lapidoth ©2202... 60. c eee cece ce cee cnet e teen eee 231
xX The History and Status of the International Criminal Court

Howard S. Levie. 0... cee e cece crete eee eee e cence 247
XI The Charter of the United Nations as a World Constitution

Ronald St. J. Macdonald ........ 0c: eee e cece cece eee eeee 263
XII International Humanitarian Law from Agincourt to Rome

Theodor Meron ........ cece cece cece eee eet e ence eee ee eee 301
XIIL_ Legal Implications of NATO’s Armed Intervention in Kosovo

Ved P. Nanda... ... ce cece eee eee eet eect eet e eee eeee 313
XIV Making Law of War Treaties: Lessons from Submarine Warfare

Regulation

W. Hays Parks 2.2.0... 0c cece eee cece eee eee e eee eeeeeee 339
XV__ Antecedents of the Rome Statute of the International Criminal Court

Revisited

Shabtai Rosenne.... 02.6. eee c eee cece eee cnet ete e eee 387
XVI The International Criminal Court: A Skeptical Analysis

Alfred P. Rubin. 20.6... cece cece cece cece ee ee eee cnet 421
XVII Chivalry in the Air? Article 42 of the 1977 Protocol I to the Geneva

Conventions

Robbie Sabel «439
XVII The Law of Armed Conflict as Soft Power: Optimizing Strategic

Choice

Michael N. Schmitt ......6.. 6.6 csc cee cece cence eee eee e eee 455

XIX Jus Pacis ac Belli? Prolegomena to a Sociology of International Law
Georg Schwarzenberger .. 06.0206 ce cece cece tere eee eee eeeee 483


W. Hays Parks

Ships Built and Building 1922-1927

United States Great Britian japan
Battleships 2
Aircraft carriers* 2 2 2
Cruisers 2 ll 12
Destroyers 2 35
Submarines 3** 4 30

*As noted (note 59), aircraft carrier construction was a direct result of conversion rather
than scrapping of existing bateleships/battle cruisers under the terms of the Washington Treaty.

France built eight Washington Treaty cruisers and four smaller cruisers, and fifty
submarines—more than Great Britain, Japan and the United States possessed—combined—in
the 1920s. S. ROSKILL, NAVAL POLICY BETWEEN THE WARS (1976), Vol. II, THE PERIOD OF
RELUCTANT REARMAMENT, 1930-1939, at 27.

** U.S. submarine construction had been inhibited in part by a Navy General Board
decision in May 1921 giving priority to aviation development over submarines. ALDEN, supra
note 29, at 14.

83. DAVIS, supra note 38, at 316-319.

84. Asada, supra note 53, at 91-92; Sadao, From Washington to London: The Imperial Japanese
Navy and the Politics of Naval Limitation, 1921-1930, in E. Goldstein and J. Maurer, eds., THE
WASHINGTON CONFERENCE, 1921-22 (1994), at 147, 159.

85. D. Carlton, Great Britain and the Coolidge Disarmament Conference of 1927, POL. SC.
QTLY. LXXXIII (December 1968), at 573.

86. ROSKILL, supra note 53, at 505, 514-515; Douglas, supra note 52, at 168-169.
Conference failure produced one of the ironies of history. Resolving to achieve parity with Great
Britain, the Coolidge Administration on April 5, 1927, authorized the construction of the six
remaining cruisers of the Northampton class and in December 1927 introduced legislation
calling for a major increase in U.S. naval shipbuilding. The cruiser construction bill, the largest
naval construction bill since 1916, became law on February 13, 1929. It authorized and
instructed the President to undertake the construction of fifteen 10,000-ton cruisers, five in FY
1929, 1930, and 1931, and one aircraft carrier in FY 1930. On August 6, 1928, a Japanese report
responded by (a) identifying its potential enemies as (in order of priority) the United States and
Great Britain, and (b) recommending an increase in cruiser construction and parity between
Japan, the United States and Great Britain in battleships and cruisers. Douglas, supra, at 173,
179; DAVIS, supra note 38, at 330-331; LACROIX AND WELLS, supra note 57, at 155-157;
KAUFMAN, supra note 54, at 108-111.

87. In the post-Washington Naval Conference period, the United States, Great Britain,
France, and Japan embarked on construction programs for exploiting the potential of the
submarine. These included the possibility of long-range cruiser submarines, carrying heavy deck
guns for commerce raiding, patterned along the lines of the World War I U-139. The most
celebrated was the French Surcouf, displacing 4,318 tons submerged, with 8-inch guns. Other
examples are the British X-1, displacing 3,600 tons submerged, with 5.25-inch guns in twin
turrets, and the U.S. V-4 design (4,135 tons submerged, 6-inch guns). ALDEN, supra note 29, at
13-14; ROSSLER, supra note 29, at 71-75; and A. MARS, BRITISH SUBMARINES AT WAR
1939-1945 (1971), at 17-18; J. RUSBRIDGER, WHO SANK SURCOUF? (1991), at 16-19.

377


The Law of Armed Conflict as Soft Power

Today, by contrast, the role of the law of armed conflict clearly controverts
Clausewitz’s characterization as “imperceptible” and “hardly worth mention-
ing.” Aside from a very extensive collection of treaties, the law has proven
quite effective (although not infallible) in a number of twentieth century con-
flicts.12 It limits targeting decisions, restricts the use of various weapons, man-
dates treatment of prisoners of war and other detainees, protects
non-combatants, and sets forth the nature of occupation. The law of armed
conflict also articulates standards for the resort to force as an instrument of na-
tional policy, safeguards the rights of neutrals, and increasingly extends into
conflicts that are purely internal. Related bodies of law address such issues as
arms and weapons technology transfers, disarmament, emplacement of weap-
ons, and mechanisms for enforcement. The extensive debate over both the
NATO decision to bomb Serbia and the legality of striking the targets selected
during Operation Allied Force illustrates the degree to which legal issues have
come to pervade assessments of war and warfare. By the end of the twentieth
century, little doubt remains that law has the ability to shape conflict—that it is
a very potent form of soft power available to States and other international
actors.

Given its capacity to influence the actions of States, the law of armed con-
flict is essentially national policy expressed. After all, States are generally
bound only by those prescriptive norms to which they consent. Consent can be
signaled either by becoming a Party to a treaty or by participating in a practice
that eventually matures into customary law. Customary norms, like the prohi-
bition on directly targeting civilians or civilian objects, are those evidenced by
both consistent and widespread State practice and opinio juris, a conviction
that the practice is legally obligatory.!3 Although there is some debate over its
effect on either States that do not participate in the practice or newly emergent
ones,! for all other States the requisite practice represents a form of policy
choice.

Characterization of law as policy choice is not meant to deny its moral com-
ponent; much law is clearly underpinned by rectitude. Yet to the extent a State
embraces the law of armed conflict out of adherence to moral principles, it has
implicitly made a policy choice based on what it deems to be in its national in-
terests. Many States view a moralistic quality to their national policy as benefi-
cial, either tangibly or intangibly, directly or indirectly. That does not detract
from the fact that the exercise of choice as to whether to participate in a legal
regime is nothing less than a policy decision driven by a State’s desire to shape
armed conflict consistent with its particular national interests. Such States

458


The Initiation, Suspension, and Termination of War

70. Regulations Respecting the Laws and Customs of War on Land (Annexed to Hague
Conventions (II) of 1899 and (IV) of 1907), THE LAWS OF ARMED CONFLICTS, supra note 3, at
2, 69, 87-88.

71. The texts of all the armistices of World War I are reproduced in 1 A HISTORY OF THE
PEACE CONFERENCE OF PARIS, Appendix V (H.W.V. Temperley ed., 1920).

72. Conditions of an Armistice with Germany, 1918, ibid., 459, 469 (Article XXXIV).

73. See ibid., 476-481.

74. Ibid., 480.

75. See A. Klafkowski, Les Formes de Cessation de I'Etat de Guerre en Droit International, 149
RECUEIL DES COURS 217, 248-250 (1976).

76. Armistice Agreement with Rumania, 1944, 9 INTERNATIONAL LEGISLATION 139, 140
(M.O. Hudson ed., 1950) (Article 1); Armistice Agreement with Hungary, 1945, ibid., 276, 277
[Article I(a)].

71. Ibid., 140 (Article 1).

78. Ibid., 277 [Article 1(a)}.

79. Conditions of an Armistice with Italy, 1943, ibid., 50.

80. Paris Treaty of Peace with Italy, supra note 30, at 127.

81.G.G. Fitzmaurice, The Juridical Clauses of the Peace Treaties, 73 RECUEIL DES COURS 259,
272 (1948).

82. See Department of State, Commentary on the Additional Conditions of the Armistice with
Italy, 1945, 40 AMERICAN JOURNAL OF INTERNATIONAL LAW, Supp., 18, id. (1946).

83. Israel-Egypt, General Armistice Agreement, 1949, 42 UNITED NATIONS TREATY SERIES
251; Israel-Lebanon, General Armistice Agreement, 1949, ibid., 287; Israel-Jordan, General
Armistice Agreement, 1949, ibid., 303; Israel-Syria, General Armistice Agreement, 1949, ibid.,
327.

84. Panmunjom Agreement Concerning a Military Armistice in Korea, 1953, 47 AMERICAN
JOURNAL OF INTERNATIONAL LAW, Supp., 186 (1953).

85. Ibid., 186-187 (Preamble).

86. G. VON GLAHN, LAW AMONG NATIONS 727 (6th ed., 1992).

87. General Armistice Agreements, supra note 83, at 252254 (Egypt), 288-290 (Lebanon),
304-306 (Jordan), 328-330 (Syria).

88. Ibid., 254 (Egypt, Article II), 290 (Lebanon, Article III), 306 (Jordan, Article III), 330
(Syria, Article II).

89. For the origin of this formula, cf, Article 40 of the UN Charter (regarding provisional
measures taken by the Security Council). Charter of the United Nations, 1945, 9
INTERNATIONAL LEGISLATION 327, 343 (M.O. Hudson ed., 1950).

90. General Armistice Agreements, supra note 83, at 268 (Egypt, Article XI), 290 (Lebanon,
Article II), 306 (Jordan, Article II), 330 (Syria, Article II).

91. Ibid., 268 (Egypt, Article XII), 296-298 (Lebanon, Article VIII), 318 (Jordan, Article
XID), 340 (Syria, Article VIII).

92. Ibid., 270 [Egypt, Article XII(5)].

93. Ibid., 268 (Egypt, Article XII), 296-298 (Lebanon, Article VIII), 318 (Jordan, Article
XII), 340 (Syria, Article VIII).

94. See S. ROSENNE, ISRAEL'S ARMISTICE AGREEMENTS WITH THE ARAB STATES 82
(1951).

95. General Armistice Agreements, supra note 83, at 256 (Egypt).

96. Ibid., 312 Jordan).

97. Ibid., 332 (Syria).

156


Sharon A. Williams

Article 12(1) follows option 1 of the Bureau Proposal in Article 7 bis. It, there-
fore, assumes the position of automatic jurisdiction over the listed crimes.

In cases where, pursuant to Article 13 (a) or (c), a situation is referred to the
Prosecutor by a State Party®! or where the Prosecutor has initiated an investi-
gation proprio motu,®? State acceptance is necessary. As discussed above, this
complex and controversial issue resulted at the end of the day in a compromise
put to the CW in the final package. It was an attempt by the Bureau to find a
middle ground between the opposite positions of States—between, on the one
hand, those who had for the most part a preference for universal jurisdiction or
a list of alternative States (territorial State, State of nationality of the accused
or the victim, and custodial State), where it was sufficient that one had ac-
cepted the Court’s jurisdiction by ratifying, and, on the other, those who in-
sisted on either State Party acceptance of the State of nationality of the
accused or even the stricter requirement that there be acceptance conjunc-
tively from a list of States as had been proposed in the ILC Draft.83 Article 12 as
adopted by the Conference is the accommodation that was struck. It reduced
the preconditions. The jurisdictional nexus is that either the territorial State or
the State of nationality of the accused are States Parties. These are the two pri-
mary bases of jurisdiction over the offence accepted by States in international
criminal law and are universally accepted.8+

State with territorial jurisdiction. Territorial jurisdiction is a manifestation of
State sovereignty.®5 A State has plenary jurisdiction over persons, property,
and conduct occurring in its territory, subject only to obligations or limitations
imposed by international law.®° This is the universally accepted working rule in
international criminal law and is found in bilateral extradition treaties and
multilateral conventions.®” The territory of a State includes its land mass,
internal waters, twelve-nautical-mile maximum territorial sea, and the airspace
above all of the former. Jurisdiction is recognized in customary and
conventional international law as also extending to conduct committed on
board maritime vessels and aircraft registered in a State.®8 Thus, if a listed
crime is committed in State A, a State Party to the ICC Statute, by a national of
State B, whether or not State B is a State Party, State A will have enabled the
ICC to take jurisdiction. This is so regardless of whether the alleged offender is
present in State A or in another custodial State Party.®?

The ICC is not, as has been argued by the United States, therefore poten-
tially taking jurisdiction over non-States Parties. It is not violating Article 34 of
the Vienna Convention on the Law of Treaties,9° which provides that treaties
cannot bind third parties without their consent. When an alien commits a

551


Paul C. Szasz

26. It should be noted that in some of its judgements the International Criminal Tribunal for
the former Yugoslavia (ICTY), after hearing months of testimony, was unable to come to a
unanimous verdict as to whether various phases of the conflict in Bosnia and Herzegovina were
civil or international. See Prosecutor v. Dusko Tadié a/k/a “Dule” (ICTY case No. IT-94-1-A),
Part. VLB of the 7 May 1997 Judgment of the ICTY Trial Chamber dismissing those counts of
the indictment that related to war crimes on the ground that the Bosnian conflict was not an
international one, and the Dissent on that point by the Presiding Judge (later President)
Gabrielle Kirk McDonald [36 ILM 908 (1997), respectively at 924 and at 970]; reversed by the
15 July 1999 Judgment of the Appeals Chamber [38 ILM 1518 (1999)], paras. 146-162).

27. This, in effect, is the criterion that had been specified by Article 2 of the Institute for
International Law’s Zagreb Resolution, quoted infra, text by note 42, and, more importantly, is
the criterion now set out in para. 1.1 of the SGB, supra note 1.

28. 75 UNTS 287, 6 UST 3516, TIAS 3365, 50 AJIL 724 (1956).

29. See Legal Opinion issued by the UN Office of Legal Affairs to the Under-Secretary- General
for Special Political Affairs on 15 June 1972, 1972 UN JURIDICAL YEARBOOK 153. That opinion
cites the position taken by the United Nations at the second (1972) session of the
ICRC-convened Conference of Government Experts on the Reaffirmation and Development of
International Humanitarian Law Applicable in Armed Conflict (a survey of the Conference
appears in UN Doc. A/8781, and para. 218 refers to this issue)—a precursor to the 1974-1977
Diplomatic Conference at which the two 1977 Protocols were negotiated.

30. See in particular the 1986 Vienna Convention on the Law of Treaties between States and
International Organizations and between International Organizations, UN Doc. A/CONF.129/15
(not yet in force), which not only codifies the law concerning the participation of IGOs in
international treaties but also foresees, in its final clauses, the participation of the United
Nations and of certain other organizations in that Convention.

31. It might be pointed out that with the establishment of its two war crimes tribunals and the
Provisions therein for the imprisonment, in the custody of volunteer member States, of those
convicted by these courts, the United Nations has recently in effect demonstrated that it has
ways of overcoming some of these obstacles.

32. See infra text by notes 49, 55 and 56.

33. See, in particular, the discussions by Shraga, Meron and Condorelli in the Condorelli
Colloque, supra note 5.

34. See Chapter 29 of THE BLUE HELMETS, supra note 2.

35. Id., Chapter 11.

36. Id., Chapter 14.

37. Id., Chapter 25.B.

38. S/RES/1244 (1999) of 10 June 1999, especially paras. 9 and 10.

39. S/RES/1272 (1999) of 25 October 1999, para. 1.

40. Resolution adopted in Vienna in 1965 and reproduced in HANDBOOK OF THE
INTERNATIONAL RED CROSS AND RED CRESCENT MOVEMENT (13th ed., 1994) 748.

41. See Report of the Fifty-Second [ILA] Conference held at Helsinki (14-20 August 1966),
Resolution IV (ii) on “International Medical Law: Application of the Geneva and certain other
Conventions, etc.,” at xiv-xv.

42. 54:11 ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL 449 (authentic French),
465 (English translation); 66 AJIL 465 (1972); with commentary, in DOCUMENTS ON THE
LAWS OF WAR 371 (Eds. Adam Roberts & Richard Guelff, 1982) (a volume that contains the
texts of almost all the IHL texts cited in this study; this text has, however, been omitted from the
Third Edition (2000).).

529


Jus Pacis ac Belli?

the Law of Nations.” See also Earl Russell’s dispatch to Lord Lyons (Washington), Oct. 3, 1861,
Fontes Juris Gentium, loc. cit., No. 2431. As Smith himself holds, “the true doctrine is that the
recognition of the insurgent governmentis the necessary and logical consequence of recognizing
the fact of war.” (Some Problems of the Spanish Civil War, B.Y.LL., 1937, p. 18.)

49. See G. G. Wilson, Insurgency and International Maritime Law, AMERICAN JOURNAL OF
INTERNATIONAL LAW, Vol. 1 (1907), p. 46 et seq.; HALL-HIGGINS, op. cit., pp. 46-47; A. D.
McNair, The Law relating to the Civil War in Spain, L.Q.R., 1937, p. 484 et seq. (particularly on the
quasi-blockades established by insurgents); H. Lauterpacht, Recognition of Insurgents as a de facto
Government, M.L.R., 1939, p. 4.

50. Cf. HALL-HIGGINS, op. pp. 36-37.

51. Op. cit., Bk. I, Ch. I, S. 2, I: “Status per vim certantium qua tales sunt.” See J. WESTLAKE,
INTERNATIONAL LAW, Vol. II (Cambridge, 1913), p. I, and A. D. McNair, loc. cit., p. 33.

52. WESTLAKE, ibid., p. 8. This form of declaration of war was used for the last time in 1657
when Sweden declared war against Denmark by a herald-at-arms sent to Copenhagen (SIR
TRAVERS TWISS, op. cit., p. 62).

53. T. J. LAWRENCE, WAR AND NEUTRALITY IN THE FAREAST (London, 1904), p. 26 et seq.

54. HALL-HIGGINS, op. cit., p. 941.

55. Cf. WESTLAKE, op. cit., p. 1, OPPENHEIM’S INTERNATIONAL LAW, ibid., p. 168; and C.
Eagleton, The Attempt to Define War, INTERNATIONAL CONCILIATION, 1933, p. 259 et seq.

56. Cf. WESTLAKE, ibid., pp. 1-2; McNair, loc. cit., p. 45; OPPENHEIM, ibid., p. 241. See also
the pertinent comment of Sir Wilfrid Greene, M.R., in Kawasaki Kisen Kabushiki of Kobe v.
Bantham S. S. Co., Ltd.: “What animus belligerendi meant was again a matter of obscurity, and to
define war by relation to it came near to define war by itself” (A-C. 55, T.L-R. 503, at p. 505) and
the observations of Sir John Fischer Williams, The Covenant of the League of Nations and War,
CAMBRIDGE LAW JOURNAL, 1933, p. 8 et seq.

57. Thus, States may slip as informally from war into peace as from peace into war. Cf. HYDE,
op. cit., pp. 820-821; C. C. Transill, Termination of War by Mere Cessation of Hostilities, LQ.R.,
1922, p. 26 et seq.; W. E. Beckett, The Right to Trade and the Right to Sue, ibid., 1923, p. 89 et seq.

58. CARNEGIE ENDOWMENT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES
(New York, 1921), Vol. III, p. 169. In the view of the German Supreme Court, “although the
Chinese expedition of 1900-1901 did not conducta war in the sense of international law, and no
declaration of war was made on China, it found itself nevertheless in a situation similar to that of
war” (R.G.Z. 58, p. 328).

59. E. C. Stowell, Convention Relative to the Opening of Hostilities, AMERICAN JOURNAL OF
INTERNATIONAL LAW, Vol. 2 (1908), p. 55.

60. See WESTLAKE, COLLECTED PAPERS, supra, pp. 591-592.

61. Cf. Eagleton, Attempt to Define War, loc. cit., pp. 250, 259 et seq.

62. D. H. MILLER, THE DRAFTING OF THE COVENANT (New York, 1928), Vol. I, pp. 59,
213, 214 and 222, and Vol. II, pp. 12, 81-84, 101, 138 and 149.

63. See McNair, loc. cit., pp. 226-227, and the writer's POWER POLITICS, supra.

64. Cf. R. M. COOPER, AMERICAN CONSULTATION IN WORLD AFFAIRS, New York, 1934,
p. 114 et seq.

65. Lytton Report, p. 138.

66. Cf. J. L. Brierly, Sanctions, GROTIUS SOCIETY, XVII, p. 79: “It seems clear that the action
of Japan has not constituted a ‘resort to war’ in breach of her obligations under the Covenant”;
Q. Wright, When Does War Exist? AMERICAN JOURNAL OF INTERNATIONAL LAW, Vol. 26
(1932), p. 367; H. Lauterpacht, “Resort to War” and the Interpretation of the Covenant during the
Manchurian Dispute, ibid., Vol. 28 (1934), pp. 48 and 52. See, however, Eagleton, ibid., p. 250.

504


International Law and the Conduct of Military Operations

lawful for States to resort to force, and another designed to regulate the con-
duct of war if the first is disregarded. While other areas of international law may
have a bearing on government decisions regarding the use of force,! it is these
two bodies of law on which this paper will accordingly focus.

While the law on resort to force and the laws of war are separate bodies of
law with different objectives and very different histories, the relationship be-
tween them is obviously a close one. If the use of force by a State in its interna-
tional relations is to be lawful, it must comply with both bodies of law. While
the law on resort to force is more directly the concern of decision makers at
government level than of military commanders in the field, the latter are af-
fected, through the medium of rules of engagement, by that law as well as by the
law on the conduct of hostilities (the “law of war” or “law of armed conflict,”
properly so-called).

In the last decade, both bodies of law have assumed a more prominent role
in discussion of international affairs, and their impact on government decision
making and on the whole military chain of command has become more impor-
tant. The purpose of this paper is to explore that impact in the context of the
changing nature of war and changes in the relevant rules of international law at
the start of the new millennium. To that end, Part I of the paper will consider
developments in the law on resort to force, such as the increased reliance on
United Nations mandates as the justification for resort to force and the ques-
tion of whether there is a right of humanitarian intervention. Part II will make a
similar survey of developments in the law on the conduct of hostilities, particu-
larly in the areas of United Nations operations, internal armed conflicts and
the use of new technology in warfare. Finally, Part III will examine the impact
of the law upon decision making, both at the governmental level and by mili-
tary commanders.

Part I

The Legal Basis for Using Force

tior to 1919, international law recognized a right of States to resort to

war in furtherance of national policy. The most important change in in-
ternational law during the twentieth century has been the replacement of that
right by a general rule that prohibits recourse to force in international relations,
qualified by a small group of exceptions.” Thus, Article 2(4) of the United Na-
tions Charter provides that:

180


VI

Naval Blockade

Wolff Heintschel von Heinegg

| HE VARIETY AND QUANTITY of Professor Leslie Green’s work on the

law of armed conflict make it nearly impossible to choose a subject that
has not already been covered by him. This also holds true for the law of naval
warfare. Suffice it to mention that Professor Green was one of the most impor-
tant members of the Round Table of Experts that drafted the San Remo Man-
ual on International Law applicable to Armed Conflicts at Sea.! It was on that
occasion that the author first met Professor Green and since then he has con-
tinuously profited from Professor Green’s deep knowledge of the law and of the
practical issues involved. The discussions with him, especially on controversial
questions, have always been a delight. The present contribution on the law of
naval blockade is therefore but a modest expression of the author’s gratitude to
a practitioner, teacher and academician who will certainly continue to influ-
ence strongly the progressive development of the law of armed conflict.

Introduction

According to a widely accepted definition, blockade is “a belligerent opera-
tion to prevent vessels and/or aircraft of all nations, enemy as well as neutral,
from entering or exiting specified ports, airfields, or coastal areas belonging to,
occupied by, or under the control of an enemy nation.”? The purpose of


Index

Geneva Convention, Additional Protocols, 11
Humanitarian Intervention, 187

International Humanitarian Law, 2, 4, 309
Universal Jurisdiction over Crimes, 544

Vienna Convention on the Law of Treaties, 138-39

D

D’AMATO, ANTHONY, 119, 582
DEFENSE AND SECURITY ARRANGEMENTS, 161
See also MULTINATIONAL MILITARY UNITS; SECURITY COUNCIL, Enforcement Actions;
STATUS-OF-FORCES AGREEMENTS (SOFAS); UNITED NATIONS CHARTER, Enforcement
Actions
Collective Security, 57-80
Peace of Westphalia (Treaty of Minster) (1648), 61
Collective Self-Defense, 63-64
Bosnia, 196, 328
United Nations Charter, 181, 271
North Atlantic Treaty Organization, 162, 313
DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA, see KOREA, NORTH
DINSTEIN, YORAM, 131, 582
DISPUTE SETTLEMENT
See also INTERNATIONAL CHAMBER OF COMMERCE; INTERNATIONAL COURT OF JUSTICE
(ic)
Convention on Non-Navigational Uses of International Watercourses (1997), 231-46
DOUBLE JEOPARDY, 32
See also NON BIS IN IDEM

EGYPT
Airmen in Distress, 447
Blockades (1967), 212
Israel, 135-38, 141-43, 151
Jordan, 151
EISENHOWER, PRESIDENT DWIGHT D., 92-95, 104, 107
Outer Space, Celestial Bodies Not Subject to National Appropriation, 94
ENVIRONMENT, 91, 320, 339, 463, 467
Marine, 285
EUROMARFOR, see under MULTINATIONAL MILITARY UNITS
EUROPEAN COMMUNITY (Ec), 289
EUROPEAN CORPS (EUROCORPS), see under MULTINATIONAL MILITARY UNITS
EUROPEAN RAPID OPERATIONAL FORCE (EUROFOR), see under MULTINATIONAL
MILITARY UNITS
EUROPEAN UNION (EU), 170-71, 284, 287-91
EXCLUSION ZONES, 204, 209, 365
See also ZONES

592


Yoram Dinstein

(Egypt, Lebanon, Jordan, and Syria), Iraq took advantage of the fact that it has
no common border with Israel and refused to sign an armistice agreement (sim-
ply pulling its troops out of the combat zone). After prolonged periods of avoid-
ing a military confrontation, Iraqi and Israeli armed forces clashed again in
June 1967 and in October 1973.!!9 In 1981, Israeli aircraft destroyed an Iraqi
nuclear reactor (under construction), which apparently had the capacity of
manufacturing nuclear weapons.!!! In this writer’s opinion, the only plausible
legal justification for the bombing of the reactor is that the act represented an-
other round of hostilities in an on-going armed conflict. In 1991—in the course
of the Gulf War—Iraq launched dozens of Scud missiles against Israeli objec-
tives (mostly, centers of population), despite the fact that Israel was not amem-
ber of the American-led coalition which had engaged in combat to restore the
sovereignty of Kuwait. The indiscriminate bombardment of civilians, by mis-
siles or otherwise, is unlawful under the jus in bello.!!2 While the jus is the same
in every bellum, it is useful to single out the relevant framework of hostilities.
The Iraqi missile offensive against Israel must be observed in the legal context
not of the Gulf War but of the war between Iraq and Israel which started in
1948 yet continues to this very day.!!3 That war is still in progress, unhindered
by its inordinate prolongation since 1948, for hostilities flare up intermittently.

ii. Debellatio

Debellatio is a situation in which one of the belligerents is utterly defeated, to
the point of its total disintegration as a sovereign nation. Since the war is no
longer inter-State in character, it is terminated by itself. Even though the ex-
tinction of an existing State as a result of war is not to be lightly assumed, there
comes a time when it can no longer be denied.!14

Debellatio necessarily involves effective military occupation of the local terri-
tory by the enemy, but it goes beyond that: all organized resistance has to disap-
pear, and the occupied State must be “reduced to impotence.”!!5 The three
basic parameters of debellatio are as follows: (i) the territory of the former bellig-
erent is occupied in its entirety, no remnant being left for the exercise of sover-
eignty; (ii) the armed forces of the erstwhile belligerent are no longer in the
field (usually there is an unconditional surrender), and no allied forces carry on
fighting by proxy; and (iii) the Government of the former belligerent has passed
out of existence, and no other Government (not even a Government in exile)
continues to offer effective opposition.!!6 Kuwait was saved from debellatio in
the Gulf War, notwithstanding its total occupation by the Iraqi armed forces,
because its Government went into exile and a large coalition soon came to its
aid militarily.

145


The Normative Framework of International Humanitarian Law

172. The Papon case:

Papon was indicted on September 18, 1996; the indictment was confirmed on January
23, 1997; Judgment of Sept. 18, 1996, Chambre d’accusation de la cour d’appel de
Bordeaux (unpublished), affirmed Judgment of Jan. 23, 1997, Cass. Crim., 1997 J.C.P. II
G, No. 22,812. In April 1998 Maurice Papon was convicted for “crimes against humanity”
and sentenced to 10 years imprisonment. See Craig R. Whitney, Ex-Vichy Aide Is
Convicted and Reaction Ranges Wide, N. Y. TIMES, Apr. 3, 1998, at Al; Craig R. Whitney,
Vichy Official Found Guilty of Helping Deport Jews, N.Y. TIMES, Apr. 2, 1998, at A8; and
Charles Trueheart, Verdict Nears in Trial of Vichy Official, W/ ASH. POST, Apr. 1, 1998, at
All.

For information on the Papon case, see generally Laurent Greilsamer, Maurice Papon, la vie
masquée, LE MONDE, Dec. 19, 1995, available in LEXIS, Nexis Library, Monde File; Barry James,
The Final Trial for Vichy? A Model French Bureaucrat Accused, INT'L HERALD TRIB., Jan. 6-7,
1996, at 2.

For additional information on these cases and French prosecution of war criminals in
general, see generally Leila Sadat Wexler, National Prosecutions for International Crimes: The
French Experience, in 3 INTERNATIONAL CRIMINAL LAW, supra note 76; Leila Sadat Wexler,
Prosecutions for Crimes Against Humanity in French Municipal Law: Intemational Implications, in
ASIL PROCEEDINGS 270-76 (1997); Leila Sadat Wexler, The Interpretation of the Nuremberg
Principles by the French Court of Cassation: From Touvier to Barbie and Back Again, 32 COLUM. J.
TRANSNATL L. 289 (1994); Leila Sadat Wexler, Reflections on the Trial of Vichy Collaborator
Paul Touvier for Crimes Against Humanity in France, 20 J. L. & SOC. INQUIRY 191 (1995); Leila
Sadat Wexler, Prosecutions for Crimes Against Humanity in French Municipal Law: International
Implications (Working Paper No. 97-4-3, Washington University School of Law, 1997). See also
CHALANDON & NIVELLE, supra note 54; Jacques Francillon, Crimes de guerre, Crimes contra
P’humanité, JURIS-CLASSEUR, DROIT INT'L, FASCICULE 410 (1993).

173. Regina v. Finta, [1994] 1 S.C.R. 701. See Irwin Cotler, Bringing Nazi War Criminals in
Canada to Justice: A Case Study, in ASIL PROCEEDINGS 262-69 (1997); Leslie C. Green,
Canadian Law, War Crimes and Crimes Against Humanity, 59 BRIT. Y.B. INT'L L. 217 (1988);
Michéle Jacquart, La notion de crime contre l’Humanité en droit international contemporain et en droit
Canadien, 21 REVUE GENERALE DE DROIT 607 (1990). See also Barry H. Dubner, The Law of
International Sea Piracy, 11 N.Y.U. J. INTLL. & POLITICS 471 (1979); Report of the Commission of
Inquiry on War Criminals (Jules Deschénes ed. 1986); Sharon A. Williams, Laudable Principles
Lacking Application: The Prosecution of War Criminals in Canada, in THE LAW OF WAR CRIMES
151 (Timothy L-H. McCormack & Gerry J. Simpson eds., 1997).

174. See sources cited supra note 60. See also Seth Mydans, Death of Pol Pot: Pol Pot, Brutal
Dictator Who Forced Cambodians to Killing Fields, Dies at 73, N.Y. TIMES, Apr. 17, 1998, atA14.

175. See Conventions cited supra note 88.

176. See 1977 Protocol I, supra note 89.

177. See Conventions cited supra note 88.

178. See 1977 Protocol II, supra note 89.

179. See Bassiouni, supra note 14.

180. See id. See also Bassiouni, From Versailles to Rwanda, supra note 10; TRANSNATIONAL
JUSTICE (3 vols., Neil Kritz ed., 1995).

181. W. Michael Reisman, Institutions and Practices for Restoring and Maintaining Public Order,
6 DUKE J. COMP. & INT'L L. 175 (1995).

54


M. Cherif Bassiouni

[the protected group] in whole or in part.” This requirement makes it appear
that the criminal responsibility befalls essentially those who plan, initiate, or
carry out the policy that is specifically intended to produce the result of de-
stroying the protected group “in whole or in part,” and leaves open the ques-
tions of the responsibility of those in the lower echelons of the execution of
sucha policy and the legal standards required to prove it.65 The requirement of
specific intent in the criminal laws of most legal systems is more difficult to
prove than that of general intent. General intent can be proven inferentially by
the legal standard of what the ordinary reasonable person would have known
under existing circumstances.® This difficulty is especially true of lower eche-
lons of executors where typically there exists no “paper trail.” But to prove spe-
cific intent by higher echelons may also be arduous if there is no paper trail.
The reason is that the Genocide Convention was drafted with the Nazi experi-
ence in mind; the Germans, who were meticulous in everything, left behind a
detailed paper trail.68 But this situation never has been repeated. In the Yugo-
slav®? and Rwandan” conflicts, for example, a paper trail, if it exists, has yet to
be found, and it may never be made public by those who have the information.”
The same is true of other conflicts such as Cambodia.”2 There are, moreover,
conflicts where a paper trail exists but has not been made public.73

In addition to the issue of specific genocidal intent, which is fraught with ev-
identiary difficulties, there is the question of whether the protected group can
be identified differently. For example, can it be based on gender, or limited to a
group in a given area? The Commission of Experts Established Pursuant to Se-
curity Council Resolution 780 (1992), which investigated violations of inter-
national humanitarian law in the former Yugoslavia, concluded that these two
questions can be answered in the positive.”4 In the French trial of Papon who
was convicted on April 2, 1998 of complicity for “crimes against humanity” as
defined in French criminal law,’> the central issue, where “genocide” was fre-
quently referred to though the charge was only “crimes against humanity,” was
how to prove complicity in these types of crimes by agents of the State. When a
person charged is a bureaucrat operating in a large bureauctacy,”¢ it is so far un-
clear how individual criminal responsibility can be established for such a person
where no specific criminal act is accomplished, but whose administrative func-
tion aids in the ultimate conduct.’? These questions remain unanswered by the
norms applicable both to “genocide” and to “crimes against humanity.”

Lastly, a question arises as to “genocide,” and that is the nature and size of
the “group” targeted for elimination “in whole or in part.” Is it the entire group
as it exists in the world, or a smaller portion of that group which is identified
and targeted by the perpetrators? Could it be, for example, that portion of ,

9


The Normative Framework of International Humanitarian Law

(1) If, by one or more acts, the perpetrator has committed more than one
criminal offence for which he is being tried simultaneously, the court shall first determine
the sentences for each offence and then impose a single sentence for all the offences.

(2) The single sentence shall be imposed according to the following rules:

i) if the death penalty was determined for one of the concurrent
criminal offences, only that sentence shall be imposed;

ii) ifa sentence of twenty years imprisonment was determined for one
of the concurrent criminal offences, only that sentence shall be
imposed;

iii) if a sentence of up to three years imprisonment were determined
for all concurrent criminal offences, the single sentence may not
exceed eight years of imprisonment.

151. [Footnote 960 in original] See Art. 60 of the Croatian Penal Code of 1997.
152. [Footnote 961 in original] Art. 81 of the Codice Penale reads:

(1) Anyone who, by a single act or omission, violates different provisions of law or
commits more than one violation of the same provision of law, shall be punished with the
punishment which would be imposed for the most serious violation, increased up to no
more than three times that sentence. [. . .]

153. [Footnote 962 in original] Tadié, Sentencing Judgement, 14 July 1997, at para. 9.
154. [Footnote 963 in original] Art. 52 reads:
(1) If the same act violates several criminal statutes or violates the same
statute more than once, only one punishment may be imposed.
(2) If several criminal statutes have been violated, the punishment shall be
determined by the statute which provides the most severe kind of punishment. It may not
be any less severe than the other applicable statutes permit.
155. The Prosecutor v. Jean-Paul Akayesu (ICTR-96-4-T) (judgement), reprinted in 37 LL.M.
1399 (1998); see also www.ictr.org/english/judgements/akeysu-html
156. That same concept exists in all Romanist/Civilist/Germanic-influenced legal systems.
157. See Elements of Crimes, supra note 138; The Diplomatic Conference provided in
Resolution F that a Preparatory Commission be established to inter alia develop the Elements of
‘Crimes in accordance with Article 9 of the ICC Statute. The Elements for war crimes contain
significant overlaps with those for genocide and crimes against humanity.
158. See M. Cherif Bassiouni, Negotiating the Treaty of Rome on the Establishment of an
International Criminal Court, 32 CORNELL INT'L LJ. 443, at 454:

The Statute’s omission of the material elements of crimes, or actus reus, creates
another problem area. During the Conference, an article defining actus reus was dropped
from the Statute because some delegations could not agree on its content. However, until
the last moment, the Drafting Committee expected to receive such a provision. Lacking a
provision on the elements of crimes, the Court will have to determine what constitutes an
act or omission by analogy to national legal systems. However, Article 22(2) specifically
excludes interpretation by analogy. Furthermore, Article 22(2)’s prohibition on
interpretation by analogy also conflicts with Article 31(3), which allows the Court to
develop other grounds for exclusion from criminal responsibility.

159. Id.

52


On Genocide

from a Serb, this kind of talk could signal to the Muslims in his audience, “get
out of town while you can.” But the opposite interpretation is also possible: that
Dr. Kovacevic was contributing to an atmosphere of hatred. Surely if he had
himself acted overtly—such as signing an order for the destruction or harm or
even incarceration of Muslim citizens, or himself participating in any acts of
torture or murder—then his public speeches would have been sufficient, in my
opinion, to satisfy the prosecution’s burden to prove genocide. But without any
overt act, with only the attribution of genocide to Dr. Kovacevic by virtue of
his position as deputy mayor of the town, then the interpretation of his
speeches as amounting to a specific genocidal motive would not appear to me
to satisfy the prosecution’s burden of proof. !2

The foregoing dilemma of interpretation is, I suggest, often applicable to of-
ficials accused of participating in genocide. An individual official may have
been doing his or her best to mitigate the evil, to spare as many lives as possible.
Tt is easy after the fact for us to say that such an official should simply have re-
signed. But in a situation where the official is bucking a pervasive tide, resigna-
tion would simply lead to his or her replacement by a less principled person.
The argument is a logical one: if a person of principle is morally required to re-
sign rather than participate in a genocidal plan (a plan that she would do her
best to frustrate if she stayed in office), then if she is replaced by another person
of equal or higher principles, the same logic would compel the latter to resign as
well. Hence, resignation out of moral scruples will tend to lead to replacement
by persons who have no moral scruples. Accordingly, courts should be alert to
these individual moral dilemmas and not be too ready to condemn any official
“associated” with a genocidal plan (or other violations of humanitarian war) as
legally complicitous with the crime. To do so would be to swing too far in a
counterproductive direction. The requirement of specific intent in the defini-
tion of genocide should be proven by convincing evidence even if it may result
ina protracted trial, due to the danger (of which the Kovacevic case may be an
example) not only of convicting an innocent person but of convicting a moral
hero.

Conclusion: Coherence and Distinctiveness

The crime of genocide is the newest international crime. It must be kept as a
separate, distinct, and coherent concept. It is the first truly subjective crime; all
other crime, though requiring mens tea, requires only that the defendant con-
sciously committed the criminal acts. In the case of genocide, however, the un-
derlying criminal acts are no different from the acts required to prove ordinary

128


The Law of Armed Conflict as Soft Power

DESKBOOK, tab 12, and comments by the then State Department Legal Advisor Abraham D.
Sofaer in Agora: The U.S. Decision Not to Ratify Protocol I to the Geneva Conventions on the
Protection of War Victims, 82 AMERICAN JOURNAL OF INTERNATIONAL LAW 784 (1988).

2. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on their Destruction, Sept. 18, 1997, 36 INTERNATIONAL LEGAL
MATERIALS 1507, reprinted in INTERNATIONAL REVIEW OF THE RED CROSS, Sept.—Oct. 1997,
at 563. On the convention generally, see Stuart Maslen and Peter Herby, An Intemational Ban on
Anti-Personnel Mines: History and Negotiation of the “Ottawa Treaty,” INTERNATIONAL REVIEW
OF THE RED CROSS, Dec. 1998, at 693. A survey of the land-mine issue, with emphasis on
operational concerns, is contained in Andrew C.S. Efaw, The United States Refusal to Ban
Landmines: The Intersection Between Tactics, Strategy, Policy, and International Law, 159 MILITARY
LAW REVIEW 87 (1999).

3. Rome Statute for the International Criminal Court, U.N. Doc. A/Conf. 183/9, July 17,
1998, at Annex II, reprinted in 37 INTERNATIONAL LEGAL MATERIALS 999 (1998) and M.
CHERIF BASSIOUNI, THE STATUTE OF THE INTERNATIONAL COURT: A DOCUMENTARY
HISTORY 39 (1999), and available on-line at http:/Avww.un.org/law/icc/texts/romefra-htm. For
a discussion of the Statute, see Michael N. Schmitt and Peter J. Richards, Into Uncharted Waters:
The International Criminal Court, NAVAL WAR COLLEGE REVIEW (Winter 2000), at 93 and the
series of articles collected in Volume 93:1 of the AMERICAN JOURNAL OF INTERNATIONAL,
Law (1999).

4. Michael P. Scharf, Results of the Rome Conference for an International Criminal Court, ASIL
INSIGHT, Aug. 1999, available on-line at http:/Avww.asil.org/insight23.htm. Note that there are
differing lists as to which countries voted against the Statute, since the vote was taken without
polling. This article adopts that list published by the American Society of International Law.
Other countries mentioned as possible no-votes (which would replace one of those above)
include Algeria, India, and Sri Lanka.

5. E.g., Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other
Gases,. and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 14
INTERNATIONAL LEGAL MATERIALS 49 (1975); Hague Convention for the Protection of
Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 216, reprinted in
THE LAWS OF ARMED CONFLICTS (Dietrich Schindler & Jiri Toman eds., 1988), at 745;
Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the
Protection of Victims of Non-international Armed Conflicts, June 8, 1977, U.N. Doc. A/32/144,
Annex II (1977), 16 INTERNATIONAL LEGAL MATERIALS 1442 (1977); Additional Protocol [to
the Conventional Weapons Convention] on Prohibitions or Restrictions on the Use of
Incendiary Weapons (Protocol Ill), Oct. 10, 1980, reprinted in THE LAWS OF ARMED
CONFLICTS, supra, at 190.

6. Broad U.S. objections are outlined in Letter of Transmittal from President Ronald
Reagan, Protocol II Additional to the 1949 Geneva Conventions and Relating to the Protection
of Victims of Non-International Armed Conflicts, S. Treaty Doc. No. 2, 100th Cong., Ist Sess.
III (1987), reprinted in Agora: The U.S. Decision Not to Ratify Protocol I to the Geneva Conventions
onthe Protection of War Victims, 81 AMERICAN JOURNAL OF INTERNATIONAL LAW 910 (1987).

7. For the USS. perspective, see The White House, Office of the Press Secretary, Fact Sheet:
U.S. Efforts to Address the Problem of Anti-Personnel Landmines, http:/Avww.pub.whitehouse.
gov/white-house-publications/1997/09/1997-09- 17-landmine-fact-sheets.text.

8. For a description of the U.S. position by the Ambassador that represented the United
States at Rome, see David J. Scheffer, The United States and the International Criminal Court, 93
AMERICAN JOURNAL OF INTERNATIONAL LAW 12 (1999).

478


Sharon A. Williams

Jurisdiction, PROC. ANN. MTG. A.S.I.L. (1999) (forthcoming). See also, S.A Williams, “Article
12” in O. Triffter (ed.) COMMENTARY ON THE ROME STATUTE (1999), 329.

3. P. Kirsch & J.T. Holmes, The Rome Conference on an International Criminal Court: The
Negotiating Process (1999), 93 AMERICAN JOURNAL OF INTERNATIONAL LAW 2.

4. Report of the International Law Commission on the work of its forty-sixth session, U.N.
GAOR, 49th Sess., Supp. No. 10, 29, U.N. Doc. A/49/10 (1994).

5. U.N. Doc. A/Conf. 183/2/ Add. 1, April 3, 1998.

6. See Bureau Discussion Paper, U.N. Doc. A/Conf. 183/C.1/L.53, July 6, 1998, 11-12 (then
Article 7] and Bureau Proposal, U.N. Doc. A/Conf. 183/C.1/L. 59, July 10, 1998, 10-12 [then
Articles 7 bis and 7 ter.]

7. See Article 13 (b).

8. Note the trial and execution of Conradin von Hohenstaufen in Naples in 1262 for
initiating an unjust war, and the trial of Peter of Hagenbach at Breisach for “tramp[ling] under
foot the laws of God and man.” See G. SCHWARZENBERGER, INTERNATIONAL LAW AS APPLIED
BY INTERNATIONAL COURTS AND TRIBUNALS (1968), 23-59; M. KEEN, THE LAWS OF WAR.
IN THE LATE MIDDLE AGES (1965); M.C. Bassiouni & C. Blakesley, The Need for an Intemational
Criminal Court in the New International World Order (1992), 25 VAND. J. TRANS. L. 151; and
LOC. Green, Group Rights, War Crimes and Crimes Against Humanity (1993), 1 INTL GROUP
RIGHTS 107.

9. July 19, 1899, 26 MARTENS NOUVEAU RECUEIL (2d) 720. .

10. June 28, 1919, 11 MARTENS NOUVEAU RECUEIL (3d) 323. See Articles 227-229. It
should be observed that in 1919 a Special Commission was set up by the allied powers to address,
inter alia, crimes against humanity. This was of special significance due to the alleged
annihilation of 1,000,000 Armenians by Turkey. Interestingly, the opposition of the United
States to the inclusion of crimes against humanity resulted in their omission from a list of
offences that an international tribunal would be given to prosecute. Interestingly, although the
Treaty of Sévres, between the Allied Powers and Turkey, August 10, 1920, (1921), 15 AJ.LL.
Supp. 179, provided for the surrender of such persons, the subsequent Treaty of Lausanne
between the same parties on July 24, 1923, 28 L.N.T.S. 11, gave them amnesty.

11. C. MULLINS, THE LEIPZIG TRIALS (1921), and M.C. Bassiouni, Draft Statute International
Tribunal (1993), NOUVELLES ETUDES PENALES 7.

12. HUDSON, 7 INTERNATIONAL LEGISLATION 862.

13. The only State to ratify was India.

14. 82 U.N.T.S. 279. See also the earlier 1943 Moscow Declaration, 1943 DEPT. OF STATE
BULL. 311.

15. 1948 15 ANN. DIG. 356.

16. U.N. GAOR V Supp. (A/1316), 11-14.

17. U.N.G.A. Res. 174(II), U.N. GAOR, 2nd Sess., U.N. A/519, 105 — 110 (1947).

18, M. Scharf, “The Politics Behind U.S. Opposition to the International Criminal Court,” a
paper presented at a conference on La Conference de Rome et la Creation de la Cour Pénale
Internationale, Mission Interministerielle pour les Droit de l’Homme, Strasbourg, November
20-21, 1998, at 1, suggests that the 1953 Draft Statute was “extremely ambitious in the powers it
conferred on the court.” It “had the paradoxical effect of setting back the effort to create such a
court,” in that “the debate shifted from whether to establish an international criminal court to
whether to adopt the 1953 Statute.”

19. U.N.G.A. Res. 3314 (XXIX), 29 U.N. GAOR Supp. 31, at 142; U.N. Doc. A/9631
(1974).

557


M. Cherif Bassiouni

53. For example, genocide requires a specific “intent to eliminate in whole or in part,” while
war crimes, no matter how widespread or systematic or both, do not require any element of State
action or policy in connection with the commission of these crimes.

54. This was the case with the Touvier and Papon cases in France. See generally sources cited
infra notes 167, 168, and 169. See also SOR} CHALANDON & PASCALE NIVELLE, CRIMES
CONTRA L'HUMANITE: BARBIE, TOUVIER, BOUSQUET, PAPON (1998).

55. See ICC Statute, supra note 13, art. 9; Finalized Draft of Elements of Crime, U.N. Doc.
PCNICC/2000/INF/3/Add.2 (6 July 2000).

56. See ICC Statute, supra note 13, art. 6-8. The chapeau for crimes against humanity
(Article 7) states: “For the purposes of this statute, “crimes against humanity” means any of the
following acts when committed as part of a widespread or systematic attack directed against any
civilian poulation, with knowledge of the attack.”

57. See generally M. Cherif Bassiouni, “Crimes Against Humanity”: The Need for a Specialized
Convention, 31 COLUM. J. TRANSNAT'L L. 457 (1994). See also BASSIOUNI, CRIMES AGAINST
HUMANITY, supra note 4, at Ch. 7.

58. See generally Convention on the Prevention and Punishment of the Crime of Genocide,
Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951) (entered into force with respect
to the United States Nov. 25, 1989) [hereinafter Genocide Convention], reprinted in 28 I.L.M.
763, and 2 Weston, supra note 2, at IIE.3. See also The Convention on the Prevention and
Punishment of the Crime of Genocide, supra note 5.

59. See, e.g., ROBERT CONQUEST, THE GREAT TERROR: STALIN'S PURGE OF THE THIRTIES
(1973). See also CHALANDON & NIVELLE, supra note 54.

60. See generally, JASON S. ABRAMS & STEVE R. RATNER, STRIVING FOR JUSTICE:
ACCOUNTABILITY AND THE CRIMES OF THE KHMER ROUGE (1995); DAVID P. CHANDLER ET
AL., POL POT PLANS THE FUTURE: CONFIDENTIAL LEADERSHIP DOCUMENTS FROM
DEMOCRATIC KAMPUCHEA (1988); GENOCIDE AND DEMOCRACY IN CAMBODIA (Ben
Kiernan ed. 1993). See also CENTURY OF GENOCIDE: EYEWITNESS ACCOUNTS AND CRITICAL.
VIEWS (Samuel Totten et al. eds., 1997).

61. See ICTY Statute, supra note 33, art. 4.

62. See ICTR Statute, supra note 35, art. 2.

63. See ICC Statute, supra note 13, art. 6.

64. See Genocide Convention, supra note 58, art. II.

65. Id.

66. See generally BASSIOUNI, CRIMES AGAINST HUMANITY, supra note 4, at Ch. 8
“Elements of Criminal Responsibility.”

67. That standard exists in the criminal laws in those legal systems influenced by the
Romanist/Civilist/Germanic legal traditions, as well as those legal systems influenced by the
Common Law tradition.

68. See TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS 57 (1992).

69. See M. Cherif Bassiouni, The Commission of Experts Established Pursuant to Security
Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former
Yugoslavia, 5 CRIM. L.F. 279-340 (1994). See also Final Report of the Commission of Experts
Established Pursuant to Security Council Resolution 780 (1992), U.N. SCOR, 49th Sess., Annex,
U.N. Doc. $/1994/674 (1994).

70. See generally GERARD PRUNIER, THE RWANDA CRISIS: HISTORY OF GENOCIDE (1995).
See also MORRIS & SCHARF, supra note 40; Madeline H. Morris, The Trials of Concurrent
Jurisdiction: The Case of Rwanda, 7 DUKE J. COMP. & INTL L. 349 (1997).

45


Jus Pacis ac Belli?

different from the wars waged between sovereign princes and was, in Bacon’s
words, “like the heat of a fever.”? The intellectual support thus rendered to the
cause of absolutism could only recommend the doctrine of the bellum publicum
to the rulers of absolutist States. In this light, the insistence of naturalist writers
on the need fora declaration of war receives a new meaning. Sovereigns did not
so much consider this prerequisite of a just war as a burdensome limitation of
their freedom of action, but as a golden opportunity of transforming their de
facto monopoly of physical force into a de jure monopoly. The duty of the prince
to guard the community against the danger of illegal war was bound to
strengthen his claim to undisputed and exclusive authority in matters of peace
and war. Duty implies competence, and competence has a tendency towards
exclusiveness. This aspect of the matter is strongly stressed by Victoria: “Such a
State, then, or the prince thereof, has authority to declare war, and no one
else.”8 Once the absolute State was firmly established, other considerations in-
duced sovereigns to forget only too soon this solemn obligation for a declara-
tion of war and the requirement fell into general disuse. Thus, State practice
could accept without reservation the plea of the naturalist for the outlawry of
private war. They were, however, supposed to consult “the good and the
wise”!° on the prerequisites of bellum justum. What advice had the fathers of in-
ternational law to offer? It is proposed to limit this examination to Gentili, for,
with insignificant exceptions, his catalogue of causae justae is typical of the natu-
ralist approach to this problem.!! It seems only fair to select this distinguished
Oxford professor of Italian extraction as modern jurists claim for him that he was
the first to place the subject of war on a non-theological basis!? and that his grasp
of the doctrine of the bellum justum was even firmer than that of Grotius.!3
According to Gentili, the first group of just wars is provided by defensive
wars. They include what he charitably terms wars waged for reasons of expedi-
ent defence: “A defence is just which anticipates dangers that are already medi-
tated and prepared, and also those which are not meditated, but are probable
and possible.”!4 It seems as if this all-embracing formula were enough to satisfy
the most extreme adherent of the reason of State. Yet, obligingly, Gentili does
not stop at this point. He proceeds to elaborate the grounds which justify even
offensive wars, and he classifies them under the headings of honor, necessity
and expediency.!5 In the case of an alliance, a prince is justified in coming to
the assistance of his ally as long as he is convinced of the justice of his ally’s
cause. If treaty obligations should prove to be incompatible with each other
and both cases happened to be equally just, “preference should be given to the
one who has priority.”!6 Should his disciples still feel any qualms of conscience
as to the “justice” of their contemplated war, Gentili provides further

486


Legal Implications of NATO’s Armed Intervention in Kosovo

the constraints of the UN Charter, for it did not seek prior authorization of the
Security Council to use force. Although the UN eventually assumed an impor-
tant role in shaping the future of Kosovo, it was invited to perform that task
only after the end of the conflict.+

I concede that it is too early to write a definitive commentary on the legal
implications of this intervention. Some tentative conclusions can, however, be
reached even at this time, which is a couple of months after Slobodan
Milosevic’s acceptance of NATO's terms to end its air operations against Yu-
goslavia. These conclusions form the subject of this paper. In the next section, I
relate pertinent aspects of the armed conflict in Kosovo to provide the context
for the discussion that follows on the role of the United Nations in the conflict.

It is undoubtedly a laudable goal that the world community should effec-
tively respond to heinous crimes such as genocide in Rwanda and ethnic
cleansing, forced expulsions, and egregious violations of human rights in
Bosnia and Kosovo. But after NATO’s intervention in Kosovo, the nature of
the response to such deprivations and the kind of precedent it sets are valid
questions because of their implications.

Air Operations by NATO and the Kosovo Peace Accord

Context. Arguably, the roots of the ethnic conflict in Kosovo go back hundreds
of years.> Although as a province of the Ottoman Empire Kosovo was ceded to
Serbia after Turkey’s defeat in the Balkan Wars of 1912-1913, the area is
regarded by Serbs as the cradle of their civilization, their cultural birthplace. It
was at the Battle of Kosovo in 1389 that the Serbs were defeated and ever since
they have painfully remembered the date. Also, many of their monasteries,
churches, and sacred places are in Kosovo.

The discussion here will, however, be confined to more recent events. A de-
cade ago, in 1988-1989, Yugoslavia and Serbia made constitutional changes
under which the special autonomy enjoyed by the Autonomous Province of
Kosovo under the 1974 constitution was revoked. That was the beginning of
Milosevic’s repressive policies in Kosovo which eventually led to the current
crisis.

During 1998, violence spread with intensified attacks by ethnic Albanian re-
bels on Serbian military and police forces and a crackdown by these forces, “re-
sult[ing] in the deaths of over 1,500 Kosovar Albanians and forc[ing] 400,000
people from their homes.” Consequently, the concern grew that the violence
might spread into neighboring Macedonia and also draw Albania into the con-
flict, destabilizing the region. In May-June 1998, the North Atlantic Council

314


UN Forces and International Humanitarian Law

43. See infra note 81, Article 2.2.

44. See the brief discussion of this point by Thiébaut Flory, in section III of his study of
Charter Article 103 in LA CHARTE DES NATIONS UNIES: COMMENTAIRE ARTICLE PAR
ARTICLE 1387-1388 (Eds. Pierre Cot & Alain Pellet, 1985). This question is examined with
special reference to IHL by Christian Dominice in the Condorelli Colloque (supra note 5) at 175,
who concludes that even the Security Council could not overrule jus cogens principles of IHL.

45. Under Article 66(a) of the 1969 Vienna Convention on the Law of Treaties (1155 UNTS
331), such a determination should normally be made by the International Court of Justice; the
Court has never yet had occasion to do so, with respect to IHL or any other provision of
international law.

46. The question has, however, been raised in connection with economic sanctions imposed
by the Security Council under Charter Article 41, especially in respect of Iraq. See this author's
discussion of this question in The Law of Economic Sanctions, in THE LAW OF ARMED CONFLICT:
INTOTHE NEXT MILLENNIUM, 71 International Law Studies 473-474 (Eds. Michael Schmitt &
Leslie Green, Naval War College, 1998). This point was also briefly mentioned by Dominice at
the end of the study referred to in note 44 supra.

47. UN Doc. ST/SGB/UNEF/I of 20 February 1957, Article 44.

48. UN Doc. ST/SGB/ONUC/I of 15 July 1963, Article 43.

49. UN Doc. ST/SGB/UNFICYP/1 of 25 April 1964, Article 40, reproduced in 492 UNTS
57, at 148.

50. It should be noted that neither here, nor in any of the other regulations and agreements
referred to in this section of the present study, does the UN explicitly refer to any of the 1907
Hague Conventions, such as Convention IV respecting the Laws and Customs of War on Land
[205 CTS 227, 1 Bevans 631, TS 539, 2 AJIL 90 (1908)], even though the ICRC appears to
consider that the 1949 Geneva Convention IV is merely supplementary to the earlier treaties;
see both the Preface and the Foreword to INDEX OF INTERNATIONAL HUMANITARIAN LAW
(Eds. Waldemar A. Solf & J. Ashley Roach, ICRC, 1987). On the other hand, as appears from
Appendix II hereto, the Regulations annexed to Hague Convention IV appear to be sources for
at least some of the provisions of the SGB, supra note 1.

51. The reference to the 1954 UNESCO Convention presumably responds to a resolution
adopted by the 1954 Hague Intergovernmental Conference recommending that the UN ensure
the application of the Convention by UN forces involved in military actions; see DOCUMENTS
ON THE LAWS OF WAR, supra note 42, at 722 (Third Edition). Although no reference is made to
the contemporaneously adopted [First] Protocol to the Convention, it might be considered as
included in the UN's undertakings, as the citation to the UN TREATY SERIES is to the cover page
that refers to the Final Act of the Hague Conference, as well as to both the Convention and the
Protocol; evidently, no thought could then be given to the Second Protocol, adopted on 26
March 1999 [38 ILM 769 (1999)].

52. 555 UNTS 119, at 126, para. 11.

53. See supra note 1.

54. UN Doc. A/45/594 of 9 October 1990.

55. See, e.g., the Agreement between the United Nations and the Government of the
Republic of Rwanda on the Status of the United Nations Assistance Mission for Rwanda
(UNAMIR) of 5 November 1993 (1748 UNTS, Reg. No. I-30482), and the Agreement between
the United Nations and the Government of the Republic of Croatia on the Status of the United
Nations Confidence Restoration Operation in Croatia (UNCRO—the successor, in Croatia, of
UNPROFOR) of 15 May 1995 (1864 UNTS, Reg. No. I-31771).

530


The Normative Framework of International Humanitarian Law

to escape accountability for their international crimes and widespread viola-
tions of fundamental human rights.

International humanitarian law is that body of norms that protects certain
categories of persons and property and prohibits attacks against them during
the course of armed conflicts be they of an international or non-international
character.» These norms derive from conventional and customary interna-
tional law which are respectively referred to as the “Law of Geneva” (for the
conventional law of armed conflicts) and the “Law of The Hague” (for the cus-
tomary law of armed conflicts). The “Law of The Hague” is not, however, ex-
clusively customary law because it is in part treaty law and the “Law of Geneva”
is also not exclusively treaty law because it includes customary law. Thus, the
traditional distinction between conventional and customary law is substan-
tially eroded. Additionally, the treaty law that applies to weapons derives from
customary as well as conventional law, and some of its specific norms have be-
come part of customary law. In sum, in the last one hundred years, the evolu-
tion of the dual sources of international humanitarian law, namely
conventional and customary law, have become so intertwined and so overlap-
ping that they can be said to be two sides of the same coin. The nomenclature
the “Law of Geneva” and the “Law of The Hague” is therefore only a useful
shorthand label. _

In addition to this historic dual-track evolution of the law of armed conflicts,
two additional developments have expanded the general scope of the term
“international humanitarian law,” namely, the ‘proscriptions against crimes
against humanity‘and genocide.> The first originated as an outgrowth of
war crimes even though it subsequently evolved into a distinct category of in-
ternational crimes; the second, though originally intended to encompass
crimes against humanity, also evolved int a distinct and separate category of
international crimes. The norms contained in these three major international
crimes—war crimes, crimes against humanity, and genocide—have become
part of jus cogens.® Deriving from multiple legal sources, they overlap relative to
their context, content, purpose, scope, application, perpetrators, and protected
interests.”

These norms also contain certain ambiguities and gaps, the existence of
which is due essentially to two factors. The first is the haphazard evolution of
international criminal law.8 The second is that governments, which control the
international legislative processes, are not, for a variety of reasons, though
mostly for political reasons, desirous of eliminating the overlaps, closing the
gaps, and removing the ambiguities’—not a surprising fact given that two of
the three categories of crimes, crimes against humanity and genocide, occur

2


Making Law of War Treaties

of U-8 and U-12 treated as war criminals. While charged with no offense, the thirty-nine men
were detained as common criminals rather than as prisoners of war. In reprisal, Germany
incarcerated a matching number of British prisoners of war from distinguished British families
under like conditions until the British relented. Id., at 17-21.

40. Under articles 228, 229 and 230 (Part VII, Penalties) of the Versailles Treaty (225 C.T.S.,
2 Bevans 43, at 137), Germany was obligated to turn over to the Allies and Associated Powers all
persons accused by them of war crimes for trial before military tribunals. Rather than acquiesce
to surrender of the accused, Germany convened war crimes trials at Leipzig in May 1921. The
British demand for the prosecution of Lieutenant Karl Neumann, commander of U-67, for the
May 26, 1917, intentional sinking of the British hospital ship Dover Castle, was nol-prossed on
June 4. With the cooperation of the British, evidence was collected by Germany against Captain
‘Wilhelm Werner who, as commander of the U-55, allegedly sank the hospital ship Torrington on
April 8, 1917, and murdered thirty-four survivors. But Werner “escaped” and was not brought to
trial. The Germans prosecuted Lieutenants Ludwig Dithmar and John Boldt of U-86 for the June
27, 1918, intentional sinking of the British hospital ship Llandovery Castle, and the murder of
survivors. (U-86's commander was beyond the Leipzig court's jurisdiction.) Acquitted of any
crimes in the attack on the hospital ship (the defense argued successfully that the Llandovery
Castle was carrying Allied combatants, and was a lawful target), the court convicted the accused
of manslaughter for the murder of the survivors. Each was sentenced to four years imprisonment.
With strong domestic sympathy and outside assistance, both escaped after brief incarceration.
In 1928 the Reichsgericht annulled the sentences of each and declared the men innocent.
WILLIS, supra note 39, at 126, 131, 137-141, 146; J. PLUMRIDGE, HOSPITAL SHIPS AND.
AMBULANCE TRAINS (1975), at 45, 46.

41. H. Robertson, Submarine Warfare, THE JAG JOURNAL (November 1956), at 3.

42. Arming merchant vessels for defensive purposes was historic practice. But the controversy
of doing so was raised before and throughout World War I. See G. Hackworth, ed., DIGEST OF
INTERNATIONAL LAW (1943), Vol. VI, at 449-453, 489-503. In the aftermath of the Lusitania
sinking, U.S. Secretary of State Robert Lansing, writing to the British Ambassador on January
18, 1916, noted that historic visit and search procedures were premised on an armed merchant
ship’s acquiescence to the demand by a surface man of war with superior armament. The arming,
of merchant ships with a gun superior to that carried by a submarine, and its use for offensive
purposes against the submarine, was inconsistent with the historic rule. He urged the
disarmament of belligerent merchant ships. Lansing’s New Code of Warfare for Sea, N.Y. TIMES
(February 12, 1916), at 1; C. HYDE, INTERNATIONAL LAW CHIEFLY AS INTERPRETED BY THE
UNITED STATES (1951), Vol. Hl, at 1994-1995.

43. One British merchant captain, captured by the Germans, was known to have endeavored
to ram a U-boat the year before his capture. Charged with being a franc-tireur, he was
court-martialed, convicted, and executed; WILLIS, supra note 39, at 30.

44. E. CHATTERTON, Q-SHIPS AND THEIR STORY (1972); R. Smith, The Q-Ship — Cause and
Effect, U.S. NAV. INST. PROC. (May 1953), at 533. British decoy ships were named “Q-ships” as
they were based in a British port known as Queenstown during World War I. K. BEYER, Q-SHIPS
VERSUS U-BOATS (1999), at xix. The author is indebted to Colin Babb of the U.S. Naval
Institute Press and Mr. Beyer for permitting the author to see the page proofs of this book prior to
its publication for preparation of this article.

45. Flying false flags, that is, flying the national insignia of a nation other than one’s true
identity, is an ancient naval tradition, as is arming a merchant ship for its self-defense. By the
twentieth century, however, the distinction between warship and merchant ship was clear. Had
the distinction between the noncombatant merchant vessel and the combatant warship been

372


M. Cherif Bassiouni

(i) Wilful killing;

(ii) Torture or inhuman treatment, including biological experiments;

(iii) Wilfully causing great suffering, or serious injury to body or health;

(iv) Extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly;

(v) Compelling a prisoner of war or other protected person to serve in the forces
of a hostile Power;

(vi) Wilfully depriving a prisoner of war or other protected person of the rights
of fair and regular trial;

(vii) Unlawful deportation or transfer or unlawful confinement;

(viii) Taking of hostages.129

Subparagraph 2(b) of Article 8 refers to “Other serious violations of the laws
and customs applicable in international armed conflict . . . .”!3°It incorporates
the customary law of armed conflict and some of the provisions of Protocol I.

In subparagraphs 2(c) and 2(d) of Article 8, the ICC Statute then focuses on
the distinction between conflicts of an international character and those of a
non-international character. In so doing, it invokes the domain of common
Article 3 of the four 1949 Geneva Conventions. Subparagraph 2(c), focusing
on “the case of armed conflict not of an international character,” refers to the
serious violations of Article 3 common to the four Geneva Conventions of Au-
gust 12, 1949,”131 thus adding the limitation of “serious” to the “violations” of
common Article 3 for the exclusive purposes of the ICC’s statute. Subpara-
graph 2(c), like subparagraph 2(a), embodies the contents of the 1949 Geneva
Conventions, the former relative to “grave breaches” and the latter relative to
the prohibitions contained in common Article 3. The latter prohibits the fol-
lowing acts:

(i) violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture; (ii) committing outrages upon personal dignity, in
particular humiliating and degrading treatment; (iii) taking of hostages; (iv) the
passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all judicial
guarantees which are generally recognized as indispensable.132

Subparagraph 2(d) of Article 8 emphasizes, like Protocol II, that subpara-
graph 2(c) “does not apply to situations of internal disturbances and tensions,
such as riots, isolated and specific acts of violence or other acts of a similar na-
ture.”!33 The specificity contained herein by far exceeds what Protocol II con-
tains and it is therefore specific to this statute.

19


Yoram Dinstein.

Article 52 reflects customary international law as it stands today. In 1973,
the International Court of Justice held, in a dispute between the United King-
dom and Iceland, in the Fisheries Jurisdiction case:

There can be little doubt, as is implied in the Charter of the United Nations and
recognized in Article 52 of the Vienna Convention on the Law of Treaties, that
under contemporary international law an agreement concluded under the threat
or use of force is void.54

The International Law Commission, in its commentary on the draft of Arti-
cle 52, explained that the clause does not operate retroactively by invalidating
treaties of peace procured by coercion prior to the development of the modern
law banning the use of force by States.>> The Commission expressed the opin-
ion that the provision is applicable to all treaties concluded at least since 1945
(the entry into force of the Charter of the United Nations).5¢

Article 52 does not affect equally all treaties of peace. The text makes it
plain that “only the unlawful use of force . . . can bring about the nullity of a
treaty.”57 It follows that Article 52 invalidates solely those treaties of peace
which are imposed by an aggressor State on the victim of aggression. As regards
the reverse situation, Article 75 of the Convention proclaims:

The provisions of the present Convention are without prejudice to any
obligation in relation to a treaty which may arise for an aggressor State in
consequence of measures taken in conformity with the Charter of the United
Nations with reference to that State’s aggression.58

The invalidity of a treaty of peace concluded under duress does not result
from “vitiated consent”: it is a sanction against an internationally unlawful and
even a criminal act.59 Hence, there is nothing legally wrong in a treaty of peace
leaning in favor of a State which was the target of aggression (assuming that it
has prevailed militarily). In the words of Sir Humphrey Waldock, “[{c]learly,
there is all the difference in the world between coercion used by an aggressor to
consolidate the fruits of his aggression in a treaty and coercion used to impose a
peace settlement upon an aggressor.”6! Only “unlawful coercion” invalidates a
treaty.62

Article 44(5) of the Vienna Convention does not permit any separation of
the provisions of a treaty falling under Article 52. This means that a treaty
procured by coercion is void in its entirety: none of its parts may be severed
from the remainder of the instrument, with a view to being saved from abro-
gation. The general rule would apply, inter alia, to a treaty of peace accepted

139


Naval Blockade

94. R.W. TUCKER, supra note 10, pp. 287 f., 291; CH. ROUSSEAU, supra note 54, p. 267 £5;
OPPENHEIM, supra note 4, p. 775 f.; C.J. COLOMBOS, supra note 4, §$ 822, 824, 826; E.
CASTREN, supra note 60, p. 296 ff.; Y. Dinstein, The Laws of War at Sea, ISR. YBHR 10 (1980),

“pp. 38 ff, 50 f£, and Sea Warfare, in: R. Bernhardt (ed.), ENCYCLOPEDIA OF PUBLIC
INTERNATIONAL LAW, Installment 4, North Holland 1981 ff, pp. 201-212, 205 f.; F. BERBER,
LEHRBUCH DES VOLKERRECHTS, Vol. II, 2nd ed., Munich 1969, p. 189. See also the SAN REMO
MANUAL, paras. 93 ff., 99; and Articles 74, 77-79 of the 1939 Harvard Draft. According to the
ILA Helsinki Principles (5.2.10), “in order to be valid, the blockade must be declared, notified to
belligerent and neutral States, effective and applied impartially to ships of all States.”

95. E. CASTREN, supra note 60, p. 297; C.J. COLOMBOS, supra note 4, § 825; OPPENHEIM,
supra note 4, p. 777; R.W. TUCKER, supra note 10, p. 287; Article 78 para. 1 lie. (c) of the 1939
Harvard Draft.

96. For example, the Iranian declaration of October 1, 1980, was made known to
international shipping within a few hours.

97. OPPENHEIM, supra note 4, p. 778 ff.; C.J. COLOMBOS, supra note 4, §§ 819 f.; 840 f; J.
STONE, supra note 59, p. 493; CH. ROUSSEAU, supra note 54, p. 263 ff; RW. TUCKER, supra
note 10, p. 288 f; E. CASTREN, supra note 60, p. 299 ff.; L. Weber, Blockade, in: EPIL 3, supra
note 94, p. 48 ff.; E. RAUCH, PROTOCOL ADDITIONAL, supra note 54, p. 81; D.P. O'CONNELL,
‘THE INTERNATIONAL LAW OF THE SEA (ed. by I.A. Shearer), Vol. II, Oxford 1984, p. 1151 ff;
Y. Dinstein, supra note 94, ISR. YBHR 10 (1980), p. 49 f; P.A. MARTINI, BLOCKADE IM
WELTKRIEG, Berlin/Bonn 1932, p. 84 ff. According to the commentary on Principle 5.2.10 of the
Helsinki Principles “the force maintaining the blockade may be stationed at a distance
determined by military requirements.” For a position according to which a close cordon remains
necessary, see F. BERBER, supra note 94, p. 190.

98. In that context, R.W. Tucker (supra note 10, p. 289) explains: “The element of danger
associated with an effective blockade is therefore to be understood in terms of liability to seizure
and eventual condemnation, though not in terms ofa liability to destruction upon entrance into
the forbidden area.” See also the foregoing references and para. 96 of the SAN REMO MANUAL
(“The force maintaining the blockade may be stationed at a distance determined by military
requirements.).

99. In addition to the foregoing references, see para. 95 of the SAN REMO MANUAL; Article
72 of the 1939 Harvard Draft.

100. For the general area of naval warfare (“regions of operations”), see paras. 10 ff., 14 ff. of
the SAN REMO MANUAL. For the legal status of international straits in naval warfare, see W.
Heintschel v. Heinegg, Straits and the Law of Naval Warfare, in: L.C. Green/M.N. Schmitt (eds.),
THE LAW OF ARMED CONFLICT: INTO THE NEXT MILLENIUM, U.S. Naval War College,
International Law Studies Vol. 71, Newport, 1998, p. 263 ff.

101. The same position is taken in the commentary on Helsinki Principle 5.2.10 and, inter
alia, in NWP 1-14M, para. 7.7.2.3.

102. For an in-depth analysis of the legality of aerial blockades, see M.N. Schmitt, Aerial
Blockades in Historical, Legal, and Practical Perspective, USAFA JOURNAL OF LEGAL STUDIES,
Vol. 2 (1991), pp. 21-86. See also OPPENHEIM, supra note 4, p. 781; E. CASTREN, supra note 60,
p. 301. R.W. TUCKER, supra note 10, p. 283, footnote 1, maintains: “The extension of blockades
to include the air space over the high seas remains a development for the future. It is next to
impossible to declare with any degree of assurance what procedures may govern blockade by air.
Certainly, there are grave difficulties in assuming that the practices of naval blockade can be
applied readily, by analogy, to aerial blockade.” Still, he does not doubt the principal legality of
the incorporation of the airspace. Of course, in view of the dangers involved, belligerents are

226


M. Cherif Bassiouni

5. See, e.g., PIETER N. DROST, THE CRIME OF STATE (2 vols., 1959); Matthew Lippman,
The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 3
BU. INT'L LJ. 1 (1984); and Matthew Lippman, The Convention on the Prevention and
Punishment of the Crime of Genocide, in 1 INTERNATIONAL CRIMINAL LAW (M. Cherif Bassiouni
ed., 2d ed., 1998).

6. See M. Cherif Bassiouni, Intemational Crimes: Jus Cogens and Obligatio Erga Omnes, 59
LAW & CONTEMP. PROBS. 63 (1996). The Tadié majority opinion dealt with several aspects of
international humanitarian law in an overlapping manner when it held:

‘The second aspect, determining which individuals of the targeted population qualify
as civilians for purposes of crimes against humanity, is not, however, quite as clear.
Common Article 3, the language of which reflects “elementary considerations of
humanity” which are “applicable under customary international law to any armed
conflict,” provides that in an armed conflict “not of an international character”
Contracting States are obliged “as a minimum” to comply with the following: “Persons
taking no active part in the hostilities, including members of armed forces who have laid
down their arms and those placed hors de combat by sickness, wounds, detention, or any
other cause, shall in all circumstances be treated humanely. . . .” Protocol Additional to
the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims in
International Armed Conflicts (Protocol I) defines civilians by the exclusion of prisoners
of war and armed forces, considering a person a civilian in case of doubt. However, this
definition of civilians contained in Common Article 3 is not immediately applicable to
crimes against humanity because it is a part of the laws or customs of war and can only be
applied by analogy. The same applies to the definition contained in Protocol I and the
Commentary, Geneva Convention IV, on the treatment of civilians, both of which
advocate a broad interpretation of the term “civilian.” They, and particularly Common.
Article 3, do, however, provide guidance in answering the most difficult question:
specifically, whether acts taken against an individual who cannot be considered a
traditional “non-combatant” because he is actively involved in the conduct of hostilities
by membership in some form of resistance group can nevertheless constitute crimes
against humanity if they are committed in the furtherance or as part of an attack directed
against a civilian population.

Prosecutor v. Dusko Tadié, (IT-94-I-T), reprinted in 36 I.L.M. 908 at 939-940 (1997) (citations
and footnotes omitted). It is unclear, in the understanding of the majority, what are the legal
boundaries between the customary law of armed conflicts applicable to conflicts of a
non-international character and, respectively, Common Article 3 of the 1949 Geneva
Conventions. See also Protocol II, infra note 89, reprinted in 2 II.B.11 Weston, supra note 2. See
also Theodor Meron, International Criminalization of Intemal Atrocities, 89 AM. J. INT'L L. 554
(1995).

7. For example, the International Criminal Tribunal for the Former Yugoslavia, in the Tadié
majority opinion, erroneously applied the standards of “State responsibility” reflected in the
LLCJ.’s Nicaragua v. U.S. to the determination of whether a conflict is of an international or
non-international character. See Case Concerning Military and Paramilitary Activities in and
Against Nicaragua (Nicaragua v. U.S.), 1986 LC}. 14, 331-47 (une 27). The majority also did
not contribute to clarity when it very broadly concluded that:

39


Wolff Heintschel von Heinegg

82. NWP 1-14M, para. 7.7. Canadian Draft, para. 722 (6).

83. NWP 1-14M, para. 7.7.3; Canadian Draft, para. 722 (10).

84. NWP 1-14M, para. 7.7.3; Canadian Draft, para. 722 (11).

85. NWP 1-14M, para. 7.7.3; GERMAN MANUAL, para. 1051 (2).

86. GERMAN MANUAL, para. 1051. However, in an annotation to paragraph 722 (1) of the
Canadian Draft, a more cautious approach is taken:

Inso far as the purpose of a blockade is to deprive the enemy population of foodstuffs,
80 as to starve them in the hope that they would apply pressure to their government to
seek peace, it would now appear to be illegal in accordance with AP I Art. 54 (1), which
prohibits starvation of civilians as a method of warfare and which, as part of Section II
concerning the general protection of the civilian population against the effects of
hostilities, applies to all attacks from the sea against objectives on land Art. 49 (3) (..-]-

87. NWP 1-14M, para. 7.10; Canadian Draft, para. 722 (9).

88. NWP 1-14M, para. 7.5.2, according to which in those cases they acquire the character of
an enemy merchant vessel or civil aircraft and may be treated in accordance with paragraph
8.2.2.

89. F. KALSHOVEN, COMMENTARY, supra note 47, p. 272; GJ.F. van Hegelsom, Introductory
Report, in: W. Heintschel v. Heinegg (ed.), METHODS AND MEANS OF COMBAT IN NAVAL
WARFARE, Bochum 1992, pp. 1 ff, 46; R.W. TUCKER, supra note 10, p. 285; CH. ROUSSEAU,
supra note 54, p. 272.

90. A similar position is taken in NWP 1-14M, para. 7.7.5: “Notwithstanding this trend in
belligerent practices (during general war) away from the establishment of blockades that
conform to the traditional rules, blockade continues to be a useful means to regulate the
competing interests of belligerents and neutrals in more limited armed conflict.”

91. According to the well-established principles of prize law, capture and seizure of neutral
goods are allowed only if they qualify as contraband, i.e., if they are destined to the enemy armed
forces. Goods being exported from enemy ports may therefore not be considered contraband.
The same position is taken by the ILA. According to the Helsinki Principles (5.2.3), “contraband
are goods ultimately destined to the enemy ofa belligerent which are designed for the use of war
fighting and other goods useful for the war effort of the enemy.” In the commentary it is made
clear that, since the goods in question must be destined to the enemy, “the doctrine of
contraband is not applicable to exports from enemy territory.”

92. For the different theoretical approaches to blockade, see H. Wehberg, Seekriegsrecht,
supra note 10, p. 138 ff.; G. SCHRAMM, PRISENRECHT, supra note 40, p. 163 ff.

93. Hence, the applicability of the legal limitations merely depends on the establishment of a
blockade. According to Oppenheim (supra note 4, p. 774), a special justification is not necessary
for the following reasons:

The fact is that the detrimental consequences of blockade to neutrals stand in the
same category as the many other detrimental consequences of war to neutrals. [. . .] A
blockade interferes indeed with the recognised principle of the freedom of the sea, and,
further, with the recognised freedom of neutral commerce. But all three have developed
together, and when the freedom of the sea in time of peace and war, and, further, the
freedom of neutral commerce, became generally recognised, the exceptional restrictions
of blockade became at the same time recognised as legitimate.

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M. Cherif Bassiouni

the element of opino juris to establish customary international law,?9 and this
practice seems to be somewhat wanting because there are few States that have
prosecuted persons for such crimes.3° Moreover, no convention on crimes
against humanity has been developed since 1945,3! even though many other
conventions on various international crimes have been adopted since that
time.2? There is no rational explanation for this gap other than the lack of po-
litical will by governments.

The next opportunity to reaffirm the London Charter’s “crimes against hu-
manity” arose in 1993 when the Security Council adopted the Statute of the
International Criminal Tribunal for the former Yugoslavia (ICTY).>3 In this
statute, however, the connection to an armed conflict was preserved*+ with
Article 5 requiring that “crimes against humanity” take place in the context of
“an armed conflict” of an international or internal character. The difference
between the war-connecting link of the London Charter’s Article 6(c) and the
ICTY’s Article 5 is the addition in Article 5 of a conflict of an internal
character.

In 1994, however, when the same Security Council adopted the Statute for
the International Criminal Tribunal for Rwanda (ICTR),°° it did not include
any war-connection whatsoever2° Why the change? One explanation is that
the ICTY’s formulators sought to preserve the London Charter’s requirement,
though expanding it to internal conflicts, to offset arguments that Article 5 of
the ICTY departed from existing customary law.37 Since there was no conven-
tion on crimes against humanity, that category of crimes had to be deemed as
falling within customary law.°8 But with respect to the ICTR, the Government
of Rwanda was not expected to challenge the absence of such a requirement?
To have included such a war-connecting requirement in the ICTR statute
would have meant that prosecutions for such crimes would have been impossi-
ble because that conflict was purely internal.4°

An examination of the contents of crimes against humanity as defined in
Article 6(c) of the Nuremberg Charter reveals that it covers the following acts:
“murder, extermination, enslavement, imprisonment, deportation or other in-
humane acts,” and “persecution”.4! The ICTY and ICTR added “rape” for
specificity.42 However, the ICTR also added the restrictive requirement not
present in the ICTY; that the acts constituting the crime must be the result of
“widespread or systematic” practices.43 Furthermore, some of the terms used in
the London Charter’s Article 6(c), the ICTY’s Article 5, and the ICTR’s Arti-
cle 3 may be deemed to lack sufficient specificity to satisfy the “principles of le-
gality” required in the world’s major legal systems.44 For example, “other
inhumane acts” can be deemed vague, “murder” overlaps with “extermination,”

5


On Genocide

months prior to the civil war that raged through Prijedor, resulting in a take-
over by the Serbs and the killing, raping, and forcible evacuation of most of the
Muslim population. Dr. Kovacevic was charged with genocide—the first Serb
to be so charged by the Tribunal. The question was whether his public speeches
constituted evidence of genocidal intent sufficient to satisfy the requisites of
the crime.!!

As the lead counsel of Dr. Kovacevic’s defense team, I met alone with Prose-
cutor Keegan to discuss plea-bargaining possibilities. He seemed quite con-
vinced that my client’s public speeches and television appearances constituted
proof of the specific intent to commit genocide. The indictment against Dr.
Kovacevic did not charge him with any genocidal decisions or acts; it simply
pointed to the existence of the speeches and television tapes and linked them
to Dr. Kovacevic’s political position as deputy mayor of the town of Prijedor. I
asked Mr. Keegan whether the prosecution had any evidence of any directive
signed by my client that ordered the commission of any harm toward any per-
sons in Prijedor, and Mr. Keegan said he had no such evidence. In fact, there
was no evidence that my client did anything except the making of public
speeches and the signing of routine municipal orders (such as the hour for turn-
ing off street lights, decisions as to water supply, and the like).

As a plea bargain, Mr. Keegan would consider a reduced sentence, but was
not willing to discuss changing the charge of genocide to a lesser war crimes
charge. I argued that my client, as the director of the Prijedor general hospital,
was a man of healing and not a man of killing. In addition, Dr. Kovacevic in-
variably treated Serbian and Muslim patients equally, and he invited to join his
staff at the hospital a number of Muslim doctors who had been the victims of
prejudice in other Serbian towns. But Mr. Keegan replied with the image of the
Nazi “death doctor” who may have been a man of healing but who did not hesi-
tate to carry out inhuman and deadly experiments on Jewish victims. Our
meeting was a standstill; we were too far apart for any plea bargain.

I decided that Mr. Keegan’s point was well taken. If he could demonstrate a
genocidal intent from the inflammatory speeches that Dr. Kovacevic made, it
would be very difficult for me to rebut that intent by testimonials as to Dr.
Kovacevic’s character as a man of healing. Yet I was convinced from the volu-
minous evidence and interviews with his family and friends that Dr. Kovacevic
would never intentionally harm anyone. Whether I was right or wrong about
this was not something I could know for sure, but I was sufficiently convinced
of it to throw all my energies into a vigorous defense of this man. I would never
argue to the Tribunal that heinous crimes did not occur, or that the Serbs were
justified because of historical brutalities against them to commit such crimes.

126


Westphalian Peace Tradition

Denmark), the 1856 Peace Conference of Paris after the Crimean War, the
1878 Congress of Berlin after the Russian-Turkish War, and the 1897 Great
Power mediation after the Greek-Turkish War.

It should be noted, however, that the 1856 peace settlement of Paris in-
cluded one element of jus contra bellum. The specially adopted Declaration of
Maritime Law prohibited States from licensing piracy through the following
text: “Privateering is, and remains, abolished.” The prohibition was applicable
in armed conflict, and—one would presume—in peacetime as well.

One of the frequent London Conferences was not a reaction to an outbreak
of war, but an attempt to avert such an outbreak. During the crisis of 1867 over
Luxemburg (which Bismarck was not prepared to let Napoleon III purchase
from the Netherlands), British diplomacy engineered the solution of an inde-
pendent and neutralized principality of Luxemburg. A war between Prussia and
France may have been prevented in the process.

Still, a number of wars of aggression occurred during this period, indicating
the prevalence of Clausewitz’s thinking that war is an extension of national
policy. The concept of jus ad bellum did not seem to imply any restrictions on
the sovereign decision-making power of nations. Troops of the German Con-
federation invaded parts of Denmark in 1848, Prussian-Austrian troops re-
peated this in 1864 (and conquered Schleswig-Holstein), and Prussia
embarked upon a war with its former ally Austria in 1866.

In July 1870, Bismarck had managed to provoke France into declaring war
on Prussia. “The German nation . . . is the victim of aggression” declared a repre-
sentative of the German Social Democratic Workers Party.°> Karl Marx saw
the war on the German side as one of self-defence. But in September 1870, the
war of territorial self-defence was over and German troops were fighting for ter-
titorial expansion in Alsace-Lorraine. Karl Marx, in his Second Address of the
International, described the war after Sedan “as an act of aggression” against the
territorial integrity of France and against the people of Alsace-Lorraine. Marx
was hovering between the poles of justifiability (self-defence) and
non-justifiability (aggression), between perceived legality and illegality. As Mi-
chael Walzer has pointed out, he was “working within the terms set by the the-
ory of aggression.”54

At about this time, public opinion was in tune with an emerging opinio juris
(within rather than between States) that aggression was a crime under interna-
tional law. Public opinion also greeted the news of the Alabama Claims arbitra-
tion in 1872. A serious dispute between two major powers had been settled
through peaceful means, an occurrence which thereby indicated an alternative

72


Contributors

Professor M. Cherif Bassiouni is a Professor of Law, De Paul University
College of Law. He has also served as President, International Human Rights
Law Institute, De Paul University College of Law; President, International
Association of Penal Law; President, International Institute of Higher Studies
in Criminal Sciences; Former Chairman, Commission of Experts Established
Pursuant to Security Council Resolution 780 (1992) to Investigate Violations
of International Humanitarian Law in Former Yugoslavia; Vice-Chairman,
Ad Hoc Committee on the Establishment of an International Criminal Court;
Vice-Chairman, Preparatory Committee for the Establishment of an Interna-

, tional Criminal Court; Chairman, Drafting Committee, Diplomatic Confer-
ence of Plenipotentiaries for the Establishment of an International Criminal
Court.

Professor Ove Bring is Professor of International Law at Stockholm Uni-
versity and at the National Defence College, Stockholm. He is Chairman of the
Swedish Branch of the International Law Association and has served as Special
Legal Adviser at the Ministry for Foreign Affairs. He participated in the
Thomson/Blackwell humanitarian mission to Former Yugoslavia, reporting to
the Committee of Senior Officials of the Conference on Security and Coopera-
tion in Europe (CSCE) (1992-1993). In 1994 he headed a Swedish human.
tights mission to China and Tibet, reporting to the Swedish Ministry for For-
eign Affairs. In February 1995 he was appointed Swedish Conciliator under the
European Convention on Conciliation and Arbitration within the CSCE, now
The Organization for Security and Cooperation in Europe (OSCE). In May
1998, he was appointed a Swedish Member of the Permanent Court of Arbitra-
tion in The Hague.

Professor Bin Cheng, Licencié-en-droit, Ph.D., LL.D., Hon. LL.D., Fellow
of the Royal Aeronautical Society, is Emeritus Professor of Air and Space Law
at the University of London, and Visiting Professor of Law at the University of
Detroit Mercy. He is an Officier of France’s Ordre des Palmes Académiques;


The Law of Armed Conflict as Soft Power

imposes a pluralistic predicament—for the proposed regime will often contain
both positive and negative elements—and does so as to myriad objectives. The
question is not so much the cost of the strategy as it is the harm its adoption will
generate. This being so, strategic choice may be depicted as follows:

(value of objective advanced) x (degree to which proposed legal strategy
advances that objective) minus (value of objective harmed) x (degree to which
proposed legal strategy harms that objective).

It must be emphasized that the “formula” is not intended to be objectively
quantifiable, but is only a way to order thoughts when making strategic choice.

The Korean scenario and its implications for anti-personnel mines may be
used, in a somewhat artificially simplistic and one-dimensional way, to demon-
strate the process. A properly sequential decision making calculation would
first determine how important the defense of South Korea (and other uses for
mines such as perimeter defense) is by considering, inter alia, the factors out-
lined above. It would also consider the degree to which availability of
anti-personnel mines contributes to that objective. Next, an assessment of the
importance of the objectives anti-personnel mines harm, like the well-being of
non-combatants and the safety of one’s own forces from mines, and an estimate
of the extent to which the failure to adopt a ban sets them back, would be re-
quired. The alternative strategies involved are opposing and supporting a ban
respectively. Harm would then be subtracted from the benefit to suggest the
desirability of the strategy. Thus, in this process, net value is calculated by con-
sidering normative strategy holistically. Of course, the process, albeit easily ex-
plained, is extremely complicated. Multiple objectives may be involved,
intangible factors must be identified and valued, and dissimilar phenomenon
must be balanced against each other. Nevertheless, the process does help order
analysis.

The last step, then, is to evaluate strategies. As with each of the steps, a mea-
sure of “informed intuition” is necessary; ultimately, the determination is sub-
jective. That said, it should be cognitively robust. Robustness demands, at a
minimum, considering four variables—opportunity costs, reverberating effects,
strategic multipliers/constraints, and hierarchical consequentiality.

Opportunity Costs: An opportunity cost is a measurement of those options
which are foreclosed should a particular strategy be chosen. For instance, in an
effort to scale down the nature and scope of violence on the battlefield (an ob-
jective), a protocol to the Conventional Weapons Convention (a normative
strategy) prohibits use of air-delivered incendiaries against valid military

468


International Humanitarian Law from Agincourt to Rome

This campaign was immortalized in Shakespeare’s epic play, on which I shall
draw. I draw on Shakespeare because his anatomy of war is a close reflection of
the sixteenth century chronicles, Raphael Holinshed and Edward Hall, and
thus an excellent vehicle to illustrate the law’s evolution. This apt point of de-
parture in assessing the current state of humanitarian law evidences an ap-
proach to the issue that may well prove instructive in implementing present
day IHL. Therefore, it is at Agincourt that the journey to Rome begins.

Medieval Law of War

I will start by describing briefly the law of war as it existed during the
Agincourt campaign. In the Middle Ages, chivalry was the principal normative
system providing a code of behaviour for knights, nobility, and the entire war-
ting class in the endemic wars in which they were involved. The humane and
noble ideals of chivalry included justice, loyalty, courage, honour, and mercy,
obligations of not killing or otherwise taking advantage of a vanquished enemy,
and keeping one’s word, and duties of protecting the weak, especially women,
and helping people in distress. Seldom if ever realized in full, chivalry was a mix
of reality, poetry, and legend. Despite humanizing warfare, chivalry also con-
tributed to the legitimization of war and, through ransom and pillage, provided
economic incentives for resorting to war.

The rules of chivalry were customary. However, various royal ordinances,
including Henry V’s famous ordinances of war, codified some of these rules, in-
cluding those protecting women from rape and persons belonging to the
Church from capture and robbery. In addition, writers on chivalry compiled
treatises and manuals explaining the rules of chivalry, such as the duties to
grant quarter on the battlefield in exchange for ransom and to treat prisoners
humanely.

Chivalry’s norms were fully applicable, regardless of nationality, between
knights and nobility but did not protect commoners and peasants and were not
applicable to non-Christians. Gentlemen were careful to avoid surrendering to
commoners and commoners to gentlemen. Rules were international but were
not class or religion neutral. They were enforced by courts of chivalry and mili-
tary courts, but—in contrast to our own modern system of detailed Hague and
Geneva conventions—honour and shame played a critical role in enforce-
ment; the sanction of dishonour for the knight who violated his knightly duties
was quite effective. Although our generation has lost the sense of shame—con-
sider the slaughter and rape in Algeria—at least we have gained in universality:

302


Ronald St. J. Macdonald

Articles Stating Principles Erga Omnes and of Jus Cogens. As Zemanek puts
it, almost all the fundamental principles of international law can be found in
the Charter.? The Charter has consolidated previously existing rules and
developed new principles of international conduct, giving both categories “a
distinct legal status [obtained] by having been formally incorporated into a
multilateral treaty of historic importance.”*

The Preamble summarizes the objectives and the purposes of the United
Nations. To some extent, it duplicates the provisions of Articles 1 and 2. How-
ever, the first lines of the Preamble seem to give the Charter a forward-looking
constitutional flavor. The “Peoples of the United Nations” are said to enjoy
tights and obligations under the document. In fact, the Preamble, which re-
flects the language of the Constitution of the United States, represents the first
time the concept of “Peoples” appears in international law as a legal category.>
Human rights, including, importantly, social and economic rights, are stated at
the very beginning of the Preamble (lines 2 and 4). As Cote and Pellet rightly
observe, “il est trés remarquable a cet égard que, tout au long de la Charte, comme
c'est le cas du préambule, tout disposition qui évoque les droits de ’homme traite aussi
des problémes économiques et sociaux.”®

Despite this remarkable beginning, in which the draftsmen courageously
sought to reach out to all of humankind, the focus returns to States in the clos-
ing sentence of the Preamble and governments are indicated as the subjects in
charge of the rights and obligations of the Charter. Peoples are again referred to
in Articles 1.2 and 55, in relation to the right of self-determination, but all
other preambular provisions refer to States and governments. Perhaps, then,
the Charter does begin with an overstatement, because governments remained
the authors of the Charter and States the principal actors in the creation and
implementation of United Nations law. Nevertheless, the Preamble is a
charged text whose time has yet to come: it awaits the interpreter’s attention.”

Article 1.1, empowering the organization to take effective collective mea-
sures for the prevention and removal of threats to the peace, and for the sup-
pression of acts of aggression, states the main objective of the United Nations
as the maintenance of international peace and security.

Article 1.2 calls for the development of friendly relations among nations
based on respect for the principle of equal rights and self-determination of peo-
ples. As evidenced by the number of independent States born from colonial re-
gimes under the auspices of the organization, this has been one of the most
productive areas of action of the United Nations. With the passage of time,
however, and the action of new member States, the general principle of
self-determination became a principle of jus cogens, stating the right to

265




Shabtai Rosenne

établis par des traités spéciaux. Le pouvoir de ces deriers tribunaux et
Vautorité de leurs décisions sont diis précisément & la raison qu’ils sont
constitués par consentement mutuel, et pour l'occasion spéciale dont il
s'agit. Ce n’est-pas une jalousie puérile, mais le besoin de l’autonomie qui
empécherait une nation libre de quelqu’importance de se rallier 4 une
Haute-Cour internationale permanente.

Toutes ces raisons s’appliquent avec beaucoup plus grande force au tribu-
nal international que vous proposez pour juger les infractions 4 la conven-
tion de Genéve en cas de guerre. Vous dites, art. 6 ; les jugements du tribunal
seront notifiés par lui aux gouvernements intéressés et ceux ci seront tenus
diinfliger aux coupables les peines prononcées contre eux.

Tenus? Par qui les gouvernements respectifs seront-ils tenus de punir ceux
qui ont violé les régles de la Convention de Genéve, si les belligérants ne le
font par leur propre volonté? Les temps récents nous ont fourni deux ex-
amples de peuples,—l’un en Europe, l’autre en Amérique,—succombant
Pun et l’autre parce qu’ils étaient énervés par la vanité. Les infractions aux
principes protecteurs de la Convention de Genéve ont été fréquentes;
peut-on imaginer la soumission aux jugements du tribunal international de
la part de ceux qui fréquemment ont méconnu les lois les plus élémentaires
de la guerre? Et quand je parle de la Convention de Genéve ne vous
méprenez pas, je vous prie, sur mes sentiments & son égard. Rien n’est plus
sacré & mes yeux que ce spectacle de la charité se mettant au pas du tam-
bour et marchant en avant, non pour se battre, mais pour relever les blessés
or pour succomber elle-méme dans l’accomplissement de cette tache. Mais
je m’occupe seulement ici de ce qu'il y a de praticable ou de désirable dans
Vexécution de votre plan.

Sila Confédération suisse doit étre 4 perpétuité la gardienne de ce tribunal
international, qu’arrivera-t-il au cas ot la Suisse elle-méme serait
enveloppée dans une guerre? Elle I’a été, pourquoi ne le serait-elle pas de
nouveau? II ya des moments oi les nations ne peuvent s’empécher de faire
ce que Solon exigeait de chaque citoyen en temps de discorde civile.

Vous voyez par ce que j’ai dit que, quant & moi, je ne suis pas partisan de
Vétablissement permanent de tribunaux chargés de statuer entre bel-
ligérants. Cependant j’applaudis & tout ce qui, & quelque degré que ce soit,
tend faire planner la raison, la justice et la charité, comme une nuée
bienfaisante, sur la plus ardente chaleur du combat. C’est ce que savent
tous ceux qui ont connaissance du Code des lois de la guerre sur terre, que
j'ai congu et écrit, et que le Président Lincoln a publié comme ordre
général pour la conduite des armées américaines, en 1863. Je ne voudrais

411


Antecedents of the Rome Statute of the ICC Revisited

the new International Criminal Court will act similarly if it is to gain general
confidence. However, the existence of the ICJ and ITLOS alongside the ICC is
likely to give rise to an unsuspected conflict, not of jurisdiction but of propriety,
of whether one or other of these “civil” tribunals, the ICJ and ITLOS, can de-
termine a case before it without causing detriment to the criminal tribunal.
The difference has been pithily explained by the Trial Chamber of ICTY in the
Celebici case: “The International Tribunal [ICTY] is a criminal judicial body,
established to prosecute and punish crimes for violations of international hu-
manitarian law, and not to determine State responsibility for acts of aggression
or unlawful intervention.”

The potential conflict is demonstrated by the Application of the Genocide
Convention case in the International Court of Justice between Bosnia and
Herzegovina on the one side, and Yugoslavia on the other. In that case the ap-
plicant’s claims have been met by the respondent's counterclaims.®! Both par-
ties are alleging violations of the Genocide Convention by the other. The crime
of genocide, when committed by an individual, comes within the jurisdiction of
ICTY, and in due course of that of the International Criminal Court also (but
that aspect can be ignored for present purposes). The Rwanda Tribunal has, as
mentioned, already tried two cases of individuals accused of the crime of geno-
cide (see note 50 above). The dispute between States over the interpretation,
application or fulfillment of the Genocide Convention comes within the exclu-
sive jurisdiction of the International Court of Justice. Although it is clear that
the International Court itself is dealing with the “civil” responsibility of the
patties, in the pleadings, the allegations and the defenses rest upon the actions
of individuals. Should those individuals be called to testify in the International
Court, they may be forced either not to reply to questions or to incriminate
themselves. In that way the question arises how to reconcile the claims of
States parties to reparation for alleged violations of the Genocide Convention
as a matter of State responsibility, with the claims of the international commu-
nity for criminal trials before a competent international tribunal of those indi-
viduals accused of committing acts of genocide. The matter can be put the
other way round. How, in such circumstances, can the right of an individual,
accused of genocide, to a fair trial, required by Article 14 of the International
Covenant on Civil and Political Rights of December 16, 1966,°? with the possi-
bility of an acquittal, be reconciled with the right of the States parties to the liti-
gation in the International Court to have their claims decided by the principal
judicial organ of the United Nations?

408


The Rome Statute on the International Criminal Court

Article 12 of the 1998 Statute of the International Criminal Court, dealing
with the preconditions for the actual exercise of criminal jurisdiction, is fun-
damental to an effective International Criminal Court. The views of States
on this issue were wide-ranging. Until the proverbial eleventh hour on July 17,
1998, in Rome, where, under the Rules of Procedure of the Conference, the
text had to be adopted by midnight, Article 12 was still a make or break provi-
sion. Even subsequent to the adoption of the Statute, it retains its notoriety.?

Article 12 is intimately related to Article 5 on crimes within the jurisdiction
of the ICC, Article 13 on exercise of jurisdiction, Article 17 on
complementarity, and Article 124 on the transitional provision. In effect, these
provisions dealing with the intertwined aspects of jurisdiction “were the most
complex and most sensitive, and for that reason remained subject to many op-
tions as long as possible.” They were, beyond doubt, indicative of the necessity
to adopt a package-deal. The approach taken is firstly that the offence ratione
materiae is found in the list of core crimes contained in Article 5 and defined in
Articles 6, 7 and 8. Secondly, the preconditions for the ICC exercising jurisdic-
tion in the specific case must be met. Thirdly, the case must be initiated in ac-
cordance with the provisions of Article 13.

From the Draft Statute of the International Law Commission (ILC)‘, to the
Draft Statute prepared by the Preparatory Committee? (PrepCom), and finally
to the negotiations at the United Nations Diplomatic Conference of Plenipo-
tentiaries on the Establishment of an International Criminal Court in Rome
from June 15—July 17, 1998,¢ a fundamental issue during all stages of the debate
was whether in cases other than where the situation was referred to the Prose-
cutor by the United Nations Security Council, acting under Chapter VII of the
United Nations Charter,’ the ICC would have vested in it inherent jurisdiction
to prosecute the core crimes of genocide, war crimes, crimes against humanity
and aggression, listed in Article 5, on account of ratification or acceptance of
the Statute. Alternatively, would State consent be a precondition, and, if so,
for which crimes, on what basis, and by which State or States?

The aim of this short Article is to analyse Article 12, which sets forth pre-
conditions to the exercise of jurisdiction by the ICC, by considering the various
options that were put on the table, beginning with the work of the Interna-
tional Law Commission, followed by the Ad Hoc Committee and the Prepara-
tory Committee (PrepCom) set up by the United Nations General Assembly,
and culminating in the negotiations during the Rome Diplomatic Conference.
It is only through this chronological progression that one can see the divergent
perspectives of States and the ultimate compromise that was struck to save the
Statute in the final stages of the Rome Conference.

540


Shabtai Rosenne

the Committee of the Whole at the Rome Conference, where his place was taken by Philippe
Kirsch (Canada).

48. For the Preparatory Committee's final report, see doc. ASCONF.183/2 and Add. 1 (1998),
the latter constituting the basic proposal before the Conference. Available on the UN Internet site
hetp:/Avww.un.orgyicc. For accounts of its progress, see C. Hall, On the Successive Sessions of the
Committee, in AM. J. INTL L., vol. 91 (1997), p.177, vol. 92 (1998), pp. 124, 391, 548.

49. S/25704. Reproduced in INTERNATIONAL TRIBUNAL FOR THE PROSECUTION OF
PERSONS RESPONSIBLE FOR SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW
COMMITTED IN THE TERRITORY OF THE FORMER YUGOSLAVIA SINCE 1991 (hereafter: ICTY),
BASIC DOCUMENTS, p.155 (1995). See also on Intemet site http:/Avww.un.org/icty. For the
Statute of ICTY and other relevant constituent documents, see that publication and Internet
site. The question of the legality of the Security Council’s action in establishing that tribunal was
raised by the defence in the Tadic case, and upheld in the Appeals Chamber. 105
INTERNATIONAL LAW REPORTS, p. 427 (Trial Chamber, 1995), p. 453 (Appeals Chamber).

50. Prosecutor v. Akayesu, Judgment of September 2, 1998 (hetp://www.un. org/ictr/
english/judgments/akayesu-html, visited September 15, 1998) (the accused pleaded not guilty);
Prosecutor v. Kambanda, judgment of September 4, 1998, (http:/Avww.un.org.ictr/english/
judgments/kambanda.hmul, visited September 15, 1998) (the accused pleaded guilty). Relevant
materials are available on Internet site http://www.ictr.org or http://www.un.org/ictr. Those
judgements are excerpted in 37 ILM 1399 and 1411 (1998).

51. See note 41 above.

52. In the discussion in the International Law Commission on the law to be applied in the
proposed court, some members considered that the problem could be resolved by completing the
draft Code of Crimes. The other view was that the Court should apply existing law, but that the
Statute should be drafted in such a way as not to foreclose the future application of the Code.
Report for 1994, note 45 above, para. 56. To some extent Article 10 of the Rome Statute, to the
effect that nothing in Part 2 should be interpreted as limiting or prejudicing existing or
developing rules of international law for purposes other than the Statute, may reflect that point
of view. When the International Law Commission adopted the Draft Code of Crimes, one of its
recommendations was that the Code could be incorporated in the Statute of the International
Criminal Court. The General Assembly took no direct action on that recommendation. See the
Commission’s Report for 1996 (note 41 above). The Report of the Ad hoc Committee (note 46
above) at para. 57 indicates reservations at using the Draft Code as a basis for defining the
crimes, and the Report of the Preparatory Committee (note 47 above) confirms that there was
little support for using the Draft Code, the general preference being to define each crime
separately, as is done in Articles 6 to 8 of the Statute. In Prosecutor v. Furundzija, the Trial
Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) considered
the Draft Code as an authoritative international instrument which, depending on the specific
question at issue, may (i) constitute evidence of customary law, or (ii) shed light on customary
tules which are of uncertain content or are in process of formation, or, at the very least, (iii) be
indicative of legal views of eminently qualified publicists representing the major legal systems of
the world. Judgement of December 10, 1998, para. 227. The Trial Chamber also made use of the
Commission’s commentary.on the Draft Code. Later the Trial Chamber used the Draft Code in
examining the accused’s mens rea (para. 242). Case No. IT-95-17/1-T 10, Judgement of
December 10, 1998 excerpted in 38 ILM 317 (1999). In using the work of the International Law
Commission in this way the Trial Chamber has followed the usage of the International Court of
Justice in the Gabctkovo-Nagymaros Project case (Hung./Slovak.), INTERNATIONAL COURT OF
JUSTICE REPORTS 1997, 7.54 (para. 79).

419


The Initiation, Suspension, and Termination of War

12. The coinage “international armed conflict,” rather than war, is currently fashionable also
in international legal instruments. A prime example is Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of Victims of International
Armed Conflicts (Protocol I), 1977, [1977] UNITED NATIONS JURIDICAL YEARBOOK 95.

13. See C. Eagleton, The Form and Function of the Declaration of War, 32 AMERICAN
JOURNAL OF INTERNATIONAL LAW 19, 32-33 (1938).

14. E. CASTREN, THE PRESENT LAW OF WAR AND NEUTRALITY 98 (1954).

15. Dalmia Cement Ltd. v. National Bank of Pakistan (1976), 67 INTERNATIONAL LAW
REPORTS 611, 616.

16. Navios Corporation v. The Ulysses II et al. (1958), 161 F. Supp. 932, 942-943. The
Judgment, and the reasons given therein, were affirmed by the U.S. Court of Appeals (4th
Circuit) (260 F. 2d 959).

17. Ibid., id.

18. G.O. Fuller, Note, 57 MICHIGAN LAW REVIEW 610, 612 (1958-1959).

19. On this subject, see Y. Dinstein, Computer Network Attacks and Self-Defense, in
COMPUTER NETWORK ATTACK AND INTERNATIONAL LAW (M. Schmitt & J. Pottorff eds.,
forthcoming 2001).

20. See J. STONE, LEGAL CONTROLS OF INTERNATIONAL CONFLICT 306 (1954).

21. Cf. E. Borchard, When Did the War Begin? 47 COLUMBIA LAW REVIEW 742-748 (1947);
C. Eagleton, Acts of War, 35 AMERICAN JOURNAL OF INTERNATIONAL LAW 321, 325 (1941).

22. See M.O. Hudson, The Duration of the War between the United States and Germany, 39
HARVARD LAW REVIEW 1020, 1021 (1925-1926).

23. Hague Convention (III), supra note 3, at 58.

24. Covenant of the League of Nations, 1919, 1 INTERNATIONAL LEGISLATION 1, id. (M.O.
Hudson ed., 1931).

25. See G. Schwarzenberger, Peace Treaties before International Courts and Tribunals, 8
INDIAN JOURNAL OF INTERNATIONAL LAW 1, id. (1968).

26. Treaty on the Final Settlement with Respect to Germany, 1990, 29 INTERNATIONAL
LEGAL MATERIALS 1186, 1187 (1990).

21. Ibid., id.

28. Ibid., 1186-1189.

29. See J.A. Frowein, The Reunification of Germany, 86 AMERICAN JOURNAL OF
INTERNATIONAL LAW 152, 157 (1992).

30. Paris Treaty of Peace with Bulgaria, 1947, 41 UNITED NATIONS TREATY SERIES 21; Paris
Treaty of Peace with Hungary, 1947, ibid., 135; Paris Treaty of Peace with Romania, 1947, 42
ibid., 3; Paris Treaty of Peace with Finland, 1947, 48 ibid., 203; Paris Treaty of Peace with Italy,
1947, 49 ibid., 3.

31. San Francisco Treaty of Peace with Japan, 1951, 136 UNITED NATIONS TREATY SERIES

45.
32. USSR-Japan, Joint Declaration, 1956, 263 UNITED NATIONS TREATY SERIES 112, id.
(Article 1).

33. Ibid., 116 (Article 9).

34. Ibid., 112 (Article 1).

35. Ibid., 114 (Article 2).

36. Egypt-Israel, Treaty of Peace, 1979, 18 INTERNATIONAL LEGAL MATERIALS 362 (1979).

37. Jordan-Israel, Treaty of Peace, 1994, 34 INTERNATIONAL LEGAL MATERIALS 43 (1995).

38. Egypt-Israel, Treaty of Peace, supra note 36, at 363.

39. Jordan-Israel, Treaty of Peace, supra note 37, at 46.

154


The Normative Framework of International Humanitarian Law

699. In order to apply the principles on cumulation of offences set out
above specific offences rather than diverse sets of crimes must be
considered. The Trial Chamber will therefore analyse the relationship
between the single offences with which the accused are charged, such
as murder as a war crime, murder as a crime against humanity, etc.

1. Relationship Between “Murder” under Article 3 (War
Crimes) and “Murder” under Article 5(a) (Crimes Against
Humanity)

700. Following the principles set out above, the relevant question here
is whether murder as a war crime requires proof of facts which murder as
a crime against humanity does not require, and vice versa (the
Blockburger test). Another relevant question is whether the prohibition
of murder as a war crime protects different values from those
safeguarded by the prohibition of murder as a crime against humanity.

701. With regard to the former question, while murder as a crime
against humanity requires proof of elements that murder as a war crime
does not require (the offence must be part of a systematic or widespread
attack on the civilian population), this is not reciprocated. As a result,
the Blockburger test is not fulfilled, or in other words the two offences
are not in a relationship of reciprocal speciality. The prohibition of
murder as a crime against humanity is lex specialis in relation to the
prohibition of murder as a war crime [footnote 958}.!49

702. In addressing the latter question, it can generally be said that the
substantive provisions of the Statute pursue the same general objective
(deterring serious breaches of humanitarian law and, if these breaches
are committed, punishing those responsible for them). In addition,
they protect the same general values in that they are designed to ensure
respect for human dignity. Admittedly, within this common general
framework, Articles 3 and 5 may pursue some specific aims and protect
certain specific values. Thus, for instance, the prohibition of war crimes
aims at ensuring a minimum of humanitarian concern between
belligerents as well as maintaining a distinction between combatants’
behaviour toward enemy combatants and persons not participating in
hostilities. The prohibition of crimes against humanity, on the other
hand, is more focused on discouraging attacks on the civilian
population and the persecution of identifiable groups of civilians.

703. However, as under Article 5 of the Statute crimes against
humanity fall within the Tribunal’s jurisdiction only when committed

26


Index

T

TARGETS
See also GENEVA CONVENTIONS (1949); HUMAN RIGHTS; INTERNATIONAL HUMANITARIAN
LAW; LAW OF ARMED CONFLICT; NEUTRAL MERCHANT SHIPS; SHIPS AND SHIPPING
Airborne Troops, 440, 446
Airmen in Distress, see under LAW OF ARMED CONFLICT
Civilians, 319, 533
Cultural Property, 11, 340, 473, 514-16, 534
Hors de combat, 440
Protected Persons and Places, 14, 533-34
United Nations Forces, 520
TERRITORIAL SEA, 551
See also ARCHIPELAGIC STATES; EXCLUSIVE ECONOMIC ZONE; FISHERIES; HIGH SEAS;
INTERNAL WATERS; LAW OF THE SEA
TORTURE, 7, 11, 13-14, 19, 24-25, 127-28, 276, 545
Jus Cogens, 11, 545
TREATIES, LAW OF, 97, 99, 108, 135, 138-39, 152, 303, 547, 551-52
Coerced Treaties, 139-40
Pacta Sunt Servanda, 74, 273
Peace Treaties, 134~40
Preparatory Work, 99-100
Vienna Convention on the Law of Treaties, 97-101, 108, 137-40, 168, 547, 551
TREATY ON PRINCIPLES GOVERNING THE ACTIVITIES OF STATES IN THE
EXPLORATION AND USE OF OUTER SPACE, INCLUDING THE MOON AND
OTHER CELESTIAL BODIES, see SPACE TREATY (1967)
TREATY ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL
COURT, 1, 255, 402
See also INTERNATIONAL CRIMINAL COURT
TRUCE, see CEASE-FIRE
TURKEY, 66, 71, 73-75, 207, 240, 343, 455

U

UNION OF SOVIET SOCIALIST REPUBLICS, 8, 82, 87-88, 90, 92-94, 98, 104, 109, 123,
135, 215, 251-52, 266-77, 393, 398, 399, 427, 473, 494, 541
UNITED KINGDOM, 135, 146, 165, 184, 211, 216, 271, 315, 326, 342, 444, 541
Falklands/Malvinas Conflict (1982), 183, 471
International Criminal Court Statute, 543, 546
Kosovo, 322
Submarine Warfare, 360
Yugoslavia v. United Kingdom (IC}), 325
UNITED NATIONS (UN)
Educational, Scientific and Cultural Organization (UNESCO), 473, 514-16
Force, Use of, 524
General Assembly, see GENERAL ASSEMBLY
Geneva Conventions (1949), 511, 513-15, 536-37

604


Ove Bring

would rule out war and colonization and rely on public opinion as a’sanction for
peace.

The French Revolution conveyed an ideology which had important implica-
tions for the development of certain international legal concepts. Internal free-
dom (civil and political rights) was seen as a condition for peace and the
competence to wage war ought to, in accord with this perception, be placed un-
der the authority of the representatives of the people. The idea was advanced
that “all unjust aggression” was contrary to natural law. War should only be
used to repress a grave injustice and conquest should be forbidden. A constitu-
tional proposal by Mirabeau provided that if the legislative assembly found a
minister or other executive agent guilty of international aggression, he would
be punished for criminal acts against the State.40 The ensuing Dectee of the
National Assembly of May 22, 1790, was not that far-reaching, but did contain
a rejection of wars of conquest, and its text was later incorporated in the Revo-
lutionary Constitution. The 1791 Constitution included the following formula:

The French Nation renounces the undertaking of any war with a view to
making conquests and will never use its forces against the liberty of any
people.41

A follow-up Decree of April 13, 1793, pronounced the principle of
non-intervention in the affairs of other States. These revolutionary concep-
tions also found expression in the Déclaration du droit des gens, which in 1795
was submitted to the French Convention by one of its members, Abbé
Grégoire. It was intended as a corollary to the Déclaration des droits de Thomme
of 1789, a parallelism inspired by 18 century natural law thinking. The new
(draft) declaration contained a number of lofty principles, including the propo-
sition that an armed attack by one nation upon the liberty of another would be
an offense against all nations, and the principle that the interests of individual
nations should be subordinated to the “general interests of the human race.”42
The Declaration was not adopted.

Edmund Burke’s well-known condemnation of the French Revolution: was
linked to his concern about the future of the balance of power in Europe. With
the outbreak of the Revolution, Westphalia had become “an antiquated fable,”
he wrote in 1791.43 Any attempt to upset the European balance of power sys-
tem was for Burke a just cause of war. There was a duty to intervene in the in-
ternal affairs of France in order to protect “the public laws of Europe.”

When Thomas Paine published Part II of his Rights of Man, Being an Answer
to Mr Burke’s Attack on the French Revolution in 1792, he also opposed Burke’s

67


UN Forces and International Humanitarian Law

the view that it itself be consulted thereon,® the Secretary-General ultimately
held no formal consultations with the Committee or with any other intergov-
ernmental body, but rather informally circulated a draft of the Bulletin to mem-
bers of the Committee and took into account certain of their suggestions. The
Bulletin,6* whose substantive provisions apparently depart only slightly from
the 1995 ICRC experts’ draft, was promulgated by the Secretary-General on
August 6, 1999, on his own authority.

Provisions. The Secretary-General’s Bulletin consists of an introductory
paragraph followed by ten Sections, many divided into several paragraphs. Sec-
tions 1-4 and 10 deal with essentially formal matters, while Sections 5-9 set
out the substantive provisions.

Section 1, on “Field of application,” specifies in paragraph 1.1 that the Bulle-
tin applies to those situations when UN forces are engaged in armed conflict,
whether in enforcement actions or as peace-keepers authorized to use force in
self-defence; paragraph 1.2 states that the promulgation of the Bulletin does
not affect the protection afforded to members of UN peacekeeping operations
by the 1994 Convention.® Section 2, “Application of national law,” merely
states that the provisions of the Bulletin are not intended to constitute an
exhaustive catalogue of IHL and that they are not intended to prejudice the
full application of IHL, as well as of applicable national laws, to national
contingents. The provisions of Section 3, “Status-of-forces agreement,” were
discussed above.® Section 4, “Violations of international humanitarian law,” re-
affirms that such violations are to be prosecuted in national courts6’—though,
presumably, this would not exclude the jurisdiction of the nascent Inter-
national Criminal Court or of either of the existing War Crimes Tribunals
(ICTY and ICTR) in applicable cases. Section 10, “Entry into force,” estab-
lishes that date as August 12, 1999, the 50th anniversary of the Geneva
Conventions.

The provisions of Section 5, “Protection of the civilian population,” Section
6, “Means and methods of combat,” Section 7, “Treatment of civilians and per-
sons hors de combat,” Section 8, “Treatment of detained persons,” and Section
9, “Protection of the wounded, the sick, and medical and relief personnel,” are
evidently adapted largely from the 1907 Hague Conventions, the 1949 Geneva
Conventions, and especially from the 1977 Protocol I thereto. As the specific
sources are not indicated in the Bulletin, an attempt to do so has been made in
Appendix II, which indicates what the apparent principal source of each provi-
sion of the Bulletin is and what other parts of the codified IHL, and even some
other provisions of international law, appear relevant. From that table it ap-
pears that for the most part the paragraphs of Sections 5, 6 and 7 are precise

518


Dispute Settlement under the 1997 Watercourses Convention

Convention requires the consent of both parties will be addressed first. Discus-
sion will then turn to the compulsory means that can be activated unilaterally.

Optional Mechanisms. The list of optional procedures is quite impressive: good
offices, mediation, conciliation, use of any joint watercourse institution,
arbitration, submission to the International Court of Justice.*? This list does
not include one of the mechanisms mentioned in Article 33 of the UN Charter,
namely, inquiry—probably because fact-finding is a compulsory means under
the convention. On the other hand, the convention does include good offices,
a procedure absent from the UN text. Instead of resort to regional agencies or
arrangements mentioned in the Charter, the convention refers to the use of
any joint watercourse institution.

The convention has also adopted the “opt-in” procedure: when becoming a
party to the convention or thereafter, a State may declare that in respect of any
dispute not resolved by the above optional mechanisms, it accepts the compul-
sory jurisdiction of the International Court of Justice or of an arbitration
panel.43 For such an arbitration, the convention has also laid down optional
tules of procedure.‘* It is interesting that the reference to arbitration and adju-
dication has not been limited to conflicts of a legal nature.

Under the optional rules on arbitration, a party may unilaterally submit a
dispute to arbitration: “If the parties do not agree on the subject matter of the
dispute, the arbitral tribunal shall determine the subject matter.”45 The “sub-
ject matter” is probably equivalent to the question submitted for arbitration.46
The tribunal shall consist of three members. Each of the parties shall appoint
one member, and the chairman shall be designated by common agreement. He
may not be a national or a habitual resident of any of the parties or the other
tiparians. Vacancies shall be filled in the same manner. If either a national
member or the chairman is not appointed within a certain time, the President
of the International Court of Justice shall designate him at the request of a
party.47

The rules to be applied by the arbitrators have been defined as “...[T]he
provisions of this convention and international law.”48 Although this provision
does not expressly mention equity, the tribunal will have to refer to it, since the
convention itself to a large extent provides for “equitable and reasonable utili-
zation and participation.”49

Unless the parties to the dispute otherwise agree, the arbitral tribunal shall
determine its own rules of procedure.>° It may also, at the request of one of the
parties, recommend essential interim measures of protection.>! The term “rec-
ommend” implies that these measures are optional. The parties have to

236


Theodor Meron

all men and women, of whatever class, religion or colour, are entitled to the full
protection of international humanitarian law.

Let me situate briefly chivalry in the medieval law of nations. Chivalry was
the jus armorum, or the law of arms, the special law of the knightly class paral-
leling such special laws as the law merchant or the law of the sea. It was a part of
the law of nations, or jus gentium, although the law of nations addressed also ad-
ditional subjects such as the privileges of ambassadors and the law of treaties.

Agincourt

From history, literature, and the films of Laurence Olivier and Kenneth
Branagh, most know the story of Agincourt, one of the rare great medieval bat-
tles during a period when wars were won or lost mostly by besieging fortresses
and cities. The massacre of the French prisoners of war in Agincourt, the flower
of French nobility and chivalry, is comprehensible only if we consider how out-
numbered the English forces were and how great their fear must have been. As
the battle wore on, the outnumbered English appeared to have the upper hand.
The fear that another French charge was about to begin, the presence on the
battlefield of a very large number of French prisoners who, though disarmed,
could have risen against their English captors, and the French attack on the
English rear camp possibly involving loss of life among the young boys guarding
the camp, all combined to trigger an unexpected order by the King. Shake-
speare’s Henry cries out:

But hark, what new alarm is this same?
The French have reinforced their scattered men.
Then every soldier kill his prisoners.

But Shakespeare’s Gower then responds to Fluellen’s comment that it was
against the law of arms to kill the boys and explains the King’s order as gener-
ated by the pillage of his treasures from the rear camp. He sarcastically adds
that the King ordered cutting the throat of prisoners, “O’tis a gallant king.”
Shakespeare thus explains Henry’s cruel order on two grounds: necessity, as
the French appeared to be regrouping to attack; and reprisal for the unlawful
attack on the servants guarding the rear camp and for its plunder.

The defence of reprisal was doubtful even at the time. The rear camp consti-
tuted a lawful military objective. It is far from certain that the pages guarding
the camp were entitled to the immunity of children. At least some medieval ju-
tists regarded non-combatant servants of an army, even when not involved in

303


Charter of the United Nations as a World Constitution

independence of people subjected to foreign domination. No provision in
the Charter deals extensively with colonial regimes. The document provides
only for an international regime of trusteeship in Chapters XII and XIII. The
principle of self-determination was recognized as a general principle, intended
to protect nationalities from foreign aggression or domination

The purposes and principles stated in Article 1.3, to cooperate to achieve
higher standards in the social, economic, and cultural domains and to encour-
age respect for human rights, have from the outset occupied a prominent place
in the Charter, in contrast to the Covenant of the League of Nations, and have
been reaffirmed in countless resolutions and declarations. This provision is in-
terpreted as binding on all States. The obligation to promote and encourage re-
spect for human rights and fundamental freedoms for all without distinctions
appears to have reached the status of jus cogens, and the recent activity extra
vires of the Security Council in situations where human rights were at stake
seems to point in the same direction.

In the economic field, the United Nations has not achieved the success it
has realized in the field of human rights. Following the failure of the Havana
Convention of 1947, the most impressive results were achieved by interna-
tional organizations not fully related to the United Nations, such as the Gen-
eral Agreement on Tariffs and Trade (GATT) and the World Trade
Organization (WTO). In Falk’s opinion, the “logic [of the international eco-
nomic organizations] is embedded in the well-being of capital rather than peo-
ple.” For too long, the United Nations was, he believes, “deliberately kept
away from this global economic domain to ensure that normative claims about
rectifying poverty and unemployment are not given any serious hearing on the
global policy stage.”?

Following on, for example, from the mandate in Article 55(c)—the obliga-
tion to promote universal respect for human rights—States developed a dis-
tinct branch of international law, international humanitarian law, that is
increasingly invoked to require and justify intervention by the United Nations
in cases of widespread violations. Actions by the United Nations in the humani-
tarian field were for long limited by another fundamental principle of the Char-
ter, the principle of non-intervention in matters which are essentially within the
domestic jurisdiction of any State (Article 2.7). Lately, however, especially after
the fall of the Soviet Union and the socialist regimes (among the strongest sup-
porters of the principle of non-intervention), and the rise of public awareness, re-
spect for human rights is increasingly perceived as taking precedence over the
protection of domestic jurisdiction in situations of extreme crisis.

266


International Criminal Court

major moral issues like everybody else. They are not trained in morals as much
as they are trained in rhetoric, and it is not clear that even appeals to morality
will resolve problems that have baffled thinkers of the power of Aristotle for
over 2,000 years.

Second, the notion that lawyers or judges form an elite to which we can refer
the most complex social dilemmas is deeply inconsistent with fundamental
tules of democratic governance. It is a throwback to Plato’s notion of rule by
“guardians” who are by nature superior to those of us who must live by their
rules. The inconsistency of this approach with the notion of an “Open Soci-
ety”!4 does not necessarily mean it is a foolish notion, but it is not a framework
for governance that should be adopted without much thought. For example, it
is frequently forgotten that to Plato nobody was fit to be a guardian who would
want the role.!5 But I know of no supporter of the ICC who does not think that
s/he would do well as the Prosecutor or a judge in it. The point is too deep for
mockery; we are dealing with a real statute setting up what its supporters ex-
pect to be a real tribunal with real authority.!6 This is not to say that Plato was
right, but neither was he clearly wrong. He raised an argument based on insight
and character worth considering deeply. In a sense, he was posing a “natural
law” argument based on the inborn “nature” of people—a “natural law” like
the law of gravity or the laws of economics that has nothing to do with the
“moral law” frequently referred to as if “natural” in disregard of several thou-
sand years of unmistakable evidence.

Third, there seems to be a fundamental notion that armed conflict, whether
international or not, is governed by rules that can be overseen by an umpire or
referee. But when people are willing to die for a cause, or see their own children
killed, the matter is too serious for a games approach.

Fourth, the idea that judges or lawyers can “fill in the gaps” of an incom-
pletely expressed bit of legislation might serve well in areas, such as economic
regulation, where a mistake can be digested within the system as long as the
rules are made clear—or even during an interim period when the rules are not
yet clear and some bankruptcies occur which a later appreciation of the rules
within the system grappling with the problem would have avoided. But where
life or death is involved, or personal freedom, the return to “common law
crimes,” i.e., “crimes” defined by judges after the event, is deeply disturbing. In
the United States, “common law crimes” dropped out of consideration in 1816
when the Executive Branch of the American government refused to bring a
prosecution against an individual whom some judges (particularly Joseph
Story) thought might be convicted on the basis of non-legislated rules adopted
by judges, with knowledge of those rules attributed by judges to all members of

426


The Initiation, Suspension, and Termination of War

122. See Anonymous, Judicial Determination of the End of the War, 47 COLUMBIA LAW
REVIEW 255, 258 (1947).

123. This was done in a Proclamation by President Truman pursuant to a joint resolution by
Congress. Termination of the State of War with Germany, 1951, 46 AMERICAN JOURNAL OF
INTERNATIONAL LAW, Supp., 12 (1952).

124. J.L. Kunz, Ending the War with Germany, 46 AMERICAN JOURNAL OF INTERNATIONAL
Law 114, 115 (1952).

125. See D. Ottensooser, Termination of War by Unilateral Declaration, 29 BRITISH YEAR
BOOK OF INTERNATIONAL LAW 435, 442 (1952).

126. See F.C. Balling, Unconditional Surrender and a Unilateral Declaration of Peace, 39
AMERICAN POLITICAL SCIENCE REVIEW 474, 476 (1945).

127. See M. Sibert, L'Armistice, 40 REVUE GENERALE DE DROIT INTERNATIONAL PUBLIC
657, 660 (1933).

128. Hague Regulations, supra note 70.

129. See God, Truce of, 5 THE NEW ENCYCLOPAEDIA BRITANNICA 319, id. (15th ed., 1998).

130. See P. Mohn, Problems of Truce Supervision, 478 INTERNATIONAL CONCILIATION 51,
53-57 (1952).

131. Security Council Resolutions 49, 50, 53, 54, 56, 59, 61 and 62 (all of 1948), 3
RESOLUTIONS AND DECISIONS OF THE SECURITY COUNCIL 19-30 (1948).

132. Hague Regulations, supra note 70, at 87.

133. See L. OPPENHEIM, supra note 48, at 550.

134. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field, 75 UNITED NATIONS TREATY SERIES 31, 40-42.

135. See R.R. Baxter, Armistices and Other Forms of Suspension of Hostilities, 149 RECUEIL DES
COURS 353, 371-372 (1976). The author did not differentiate between the terms “cease-fire”
and “armistice”.

136. See S. Bastid, The Cease-Fire, 6(1) RECUEILS DE LA SOCIETE INTERNATIONALE DE
DROIT MILITAIRE ET DE DROIT DE LA GUERRE 31, 37 (1973).

137. Charter of the United Nations, supra note 89, at 343-346.

138. Security Council Resolution 54, supra note 131, at 22.

139. Charter of the United Nations, supra note 89, at 339. See also Article 48(1) of the
Charter, ibid., 345-346.

140. Security Council Resolution 505, 37 RESOLUTIONS AND DECISIONS OF THE SECURITY
COUNCIL 17, id. (1982).

141. See, e.g., Security Council Resolution 233, 22 RESOLUTIONS AND DECISIONS OF THE
SECURITY COUNCIL 2, id. (1967).

142. See, e.g., Security Council Resolutions 234 and 235, 22 RESOLUTIONS AND DECISIONS
OF THE SECURITY COUNCIL 3, id. (1967).

143. Security Council Resolution 514, 37 RESOLUTIONS AND DECISIONS OF THE SECURITY
COUNCIL 19, id. (1982).

144. Security Council Resolution 598, 42 RESOLUTIONS AND DECISIONS OF THE SECURITY
COUNCIL 5, 6 (1987).

145. M. Weller, Comments: The Use of Force and Collective Security, THE GULF WAR OF
1980-1988, 71, 85 (IF. Dekker & H.H.G. Post eds., 1992).

146. Security Council Resolution 687, 30 INTERNATIONAL LEGAL MATERIALS 847-854
(1991).

158


International Law and the Conduct of Military Operations

clarification and, perhaps, reform, ought to be treated as a far more urgent pri-
ority than it has been so far.

The Laws of War and New Technology. Much of the law of war can be traced
back to the beginning of the twentieth century (even further in the case of the
law of naval warfare). Can such law be applied to the very different technology
of warfare which exists today and which was so dramatically demonstrated in
the Kuwait conflict? Some parts of the law are clearly ill-suited to modern
conditions. The law of naval warfare still emphasises the right of visit and
search at sea despite the fact that this practice is almost impossible to conduct
in an age of comparatively small surface fleets and containerised shipping
(which cannot be searched at sea, since it is usually impossible to gain access to
the containers). This is an area of the law which would benefit at the very least
from clarification of what is a legitimate target-—the Iran-Iraq War having
demonstrated the very considerable differences of opinion which existed on
that subject even between the United States and other NATO countries.*? At
present, however, it seems unlikely that there is sufficient political support for
any such move.

In other areas, the picture is better. The Kuwait conflict showed that the
principles of customary international law regarding the distinction between ci-
vilian objects and military targets and the principle of proportionality—i.e.,
that even a military target should not be attacked if to do so would cause civil-
ian casualties which would be excessive in relation to the concrete and direct
military advantage anticipated—remain capable of application, although the
proportionality principle requires a measure of fresh thought, given that the
collateral casualties in Iraq tended to come not from the direct effects of the
bombing but rather the damage to infrastructure such as the power system
which in turn led to a breakdown of sanitation and medical facilities with con-
sequent severe effects on the civilian population.

The principles of the law in relation to the conduct of hostilities can gener-
ally be adapted to new methods of waging war, precisely because those princi-
ples are so general in character. The International Court of Justice had no
difficulty in holding them applicable to the possible use of nuclear weapons in
its recent opinion.4° Suppose that it became possible for a State to cause havoc
to an enemy through the application of electronic measures or the selective
planting of computer viruses which brought to a standstill whole computer sys-
tems and the infrastructure which depended upon them. Such a method of
warfare would appear to be wholly outside the scope of the existing law. Yet
that is not really so. The application of those measures is still likely to affect the

194


UN Forces and International Humanitarian Law

peacekeeping operations, as such, shall not be con-
sidered military objectives.

5.5 The United Nations force is prohibited from
launching operations of a nature likely to strike mili-
tary objectives and civilians in an indiscriminate
manner, as well as operations that may be expected
to cause incidental loss of life among the civilian
population or damage to civilian objects that would
be excessive in relation to the concrete and direct
military advantage anticipated.

5.6 The United Nations force shall not engage in
reprisals against civilians or civilian objects.

Section 6

Means and methods of combat

6.1 The right of the United Nations force to
choose methods and means of combat is not
unlimited,

6.2 The United Nations force shall respect the
rules prohibiting or restricting the usc of certain
weapons and methods of combat under the relevant
instruments of international humanitarian law.
These include, in particular, the prohibition on the
use of asphyxiating, poisonous or other gascs and bi-
ological methods of warfare; bullets which explode,
expand or flatten casily in the human body; and cer-
tain explosive projectiles. The usc of certain conven-
tional weapons, such as non-detectable fragments,
anti-personnel mines, booby traps and incendiary
weapons, is prohibited.

6.3 The United Nations force is prohibited from
employing methods of warfare which may cause su-
perfluous injury or unnecessary suffering, or which
are intended, or may be expected to cause, wide-
spread, long-term and severe damage to the natural
environment.

6.4 The United Nations force is prohibited from
using weapons or methods of combat of a nature to
cause unnecessary suffering.

6.5 It is forbidden to order that there shall be no
survivors

6.6 The United Nations force is prohibited from
attacking monuments of art, architecture or history,
archacological sites, works of art, places of worship
and museums and libraries which constitute the cul-
tural or spiritual heritage of peoples. In its arca of op-
cration, the United Nations force shall not usc such
cultural property or their immediate surroundings
for purposes which might expose them to destruction
or damage. Thef, pillage, misappropriation and any
act of vandalism directed against cultural property is
strictly prohibited.

6.7 The United Nations force is prohibited from
attacking, destroying, removing or rendcring uscless

objects indispensable to the survival of the civilian
population, such as foodstuff, crops, livestock and
drinking-water installations and supplies.

6.8 The United Nations force shall not make in-
stallations containing dangerous forces, namely
dams, dikes and nuclear clectrical generating sta-
tions, the object of military operations if such opera-
tions may cause the release of dangerous forces and
consequent severe losscs among the civilian
population.

6.9 The United Nations force shall not engage in
reprisals against objects and installations protected
under this section.

Section 7

Treatment of civilians and persons hors de

combat

7.1 Persons not, or no longer, taking part in mili-
tary operations, including civilians, members of
armed forces who have laid down their weapons and
persons placed hors de combat by reason of sick-
ness, wounds or detention, shall, in all circum-
stances, be treated humanely and without any
adverse distinction based on race, scx, religious con-
victions or any other ground. They shall be accorded
full respect for their person, honour and religious
and other convictions.

7.2 The following acts against any of the persons
mentioned in section 7.1 are prohibited at any time
and in any place: violence to life or physical integ-
tity; murder as well as cruel treatment such as tor-
ture, mutilation or any form of corporal punishment;
reprisals; the taking of hostages; rape; enforced pros-
titution; any form of scxual assault and humiliation
and degrading treatment; enslavement; and pillage.

7.3 Women shall be especially protected against
any attack, in particular against rape, enforced pros-
titution or any other form of indecent assault.

7.4 Children shall be the object of special respect
and shall be protected against any form of indecent
assault.

Section 8

‘Treatment of detained persons

The United Nations force shall treat with human-
ity and respect for their dignity detained members of
the armed forces and other persons who no longer
take part in military operations by reason of deten-
tion. Without prejudice to their legal status, they
shall be treated in accordance with the relevant pro-
visions of the Third Geneva Convention of 1949, as
may be applicable to them mutatis mutandis. In
particular:

534


Making Law of War Treaties

outcome if a merchant ship carrying contraband was stopped by a German sub-
marine, the decision was taken that British merchant ships would actively re-
sist visit and search if attempted by a German submarine.

German use of submarines in World War I would change naval warfare, but
changes already were occurring in warfare that led to Germany’s actions. The
nation-State system had produced an environment in which a nation went to
war with an enemy nation as a whole, rather than merely waging war against
the enemy’s military forces.>> Attacking a nation’s ability to wage war included
denying it seaborne commerce. The advent of the naval mine, submarine, and
shore-based aircraft made close blockade difficult.26 Distant blockade became
an alternative, and the submarine a viable force option notwithstanding recog-
nized limitations on its use in that role.

The story of Germany’s use of its submarines in World War I is well known.37
Its employment of its submarines as commerce raiders virtually brought Great
Britain to its knees. But its resort to unrestricted submarine warfare, which re-
sulted in the sinking of the British passenger ship Lusitania by U-20 on May 7,
1915, with the loss of 1,198 passengers (twenty-eight Americans), and neutral
vessels, was a major step in bringing the United States into the war on the side of
the British and its allies.38 The end of World War I began an effort to prohibit or
regulate submarine warfare that would continue for almost two decades.

International Regulation Efforts, 1919-1936

The conclusion of World War I raised two initial issues with respect to sub-
marine warfare: prosecution of German U-boat personnel for engagement in
unrestricted submarine warfare, and disposition of the German U-boat fleet.
With respect to the former, whether unrestricted submarine warfare was a
crime for which U-boat commanders and crews could be held criminally re-
sponsible was debated during the war.*9 Allied demands at the end of the war
for prosecution of Germans accused of war crimes, including U-boat personnel,
proved only marginally successful.4°

The conduct of nations in World War I raised a legal issue in clear terms. Al-
though enemy and neutral merchant vessels historically have been regarded as
noncombatants,*! the status of the former had been challenged by the new the-
ory of nation-State wars, and further complicated by distinctions made in dip-
lomatic correspondence during that conflict between public and private vessels
of a belligerent, and the status of either when armed:*? in some cases manning
their guns with military personnel; commissioning their captains as members of
the Royal Naval Voluntary Reserve; directing them to report any sighting of a

344


Index

Ww

WAR, see under LAW OF ARMED CONFLICT
WAR CRIMES, 10
Calley Case, 36
Categories, 12
Customary International Law, 10
Definition and Elements, 21, 424
Geneva Convention, Additional Protocol II, 12
Jus Cogens, 11
Medina Case, 36
National Law, 36
Nuclear Weapons, 36
Vietnam War, 36
WAR CRIMES COMMISSION
World War I, 4, 248
WATERCOURSES CONVENTION
Convention on the Law of the Non-Navigational Uses of International Watercourses (1997),
231
Dispute Settlement, 231-42
WEAPONS
See also INTERNATIONAL HUMANITARIAN LAW; LAW OF ARMED CONFLICT; TARGETS;
WAR CRIMES
Biological, 469, 479, 481
Chemical, 97, 187, 191, 196, 339, 367, 374, 474, 481-82
See also CHEMICAL WEAPONS CONVENTION (1993); GENEVA GAS PROTOCOL (1925)
Conventional, see also MINES, 191, 340, 468, 474 *
Nuclear Weapons, 36, 86, 88-89, 104-05, 109, 145, 194, 469, 473, 475
Prohibited, 11 .
WESTERN EUROPEAN UNION (WEU), 164-65, 170
WILLIAMS, SHARON A.., 539, 587
WOMEN, PROTECTION OF, 302, 306-07, 310
See also under GENEVA CONVENTIONS (1949); INTERNATIONAL CRIMINAL COURT
STATUTE; LAW OF ARMED CONFLICT
Prisoners of War, 307
WORLD WAR I, 3, 38, 135, 214, 343-46, 358, 367
See also ARMISTICE; PEACE TREATIES
Termination, 135 ,
WORLD WAR J, 3, 11~12, 15-17, 36-37, 57, 85, 141, 146-47, 212, 216, 249-56, 270, 304,
342, 351-67
See also ARMISTICE; PEACE TREATIES
Initiation, 134
Termination, 135

YOM KIPPUR “WAR?” (1973)
Cease-Fires, 151

606


International Law and the Conduct of Military Operations

The importance of that authorization was evident at both the political and
legal levels. At the political level it helped to cement the coalition and to en-
hance its credibility, especially in the Arab world. At the legal level, Resolution
678 was not essential, in the sense that the coalition States could have justified
recourse to force by reference to the right of collective self-defence in the face
of what was undoubtedly an armed attack upon Kuwait. However, Resolution.
678 had important legal (as well as political) effects, for it provided an entirely
new justification for using force, one derived from the Security Council autho-
tization. Moreover, that justification entitled the coalition States, in principle,
to go beyond what the same States would have been entitled to do by way of
collective self-defence.!5 Self-defence would have justified only what was nec-
essary for the liberation of Kuwait. Resolution 678, on the other hand, justified
the use of force to restore peace and security. It is by no means clear, for exam-
ple, that the right of self-defence would have justified what was in effect a
blockade of Aqaba in “neutral” Jordan, or the attacks upon Iraq’s longer term
military potential. The peace terms imposed upon Iraq in Resolution 687
(1991) also went far beyond anything which could lawfully have been required
by States relying upon their own rights of self-defence.

The lesson is clear. By obtaining the backing of the Security Council for
their use of force against Iraq, the principal coalition States not only secured a
far firmer political base and, in particular, reinforced their support in the Arab
world, they also obtained the authority to go beyond what even an expansive
interpretation of the right of self-defence would have permitted in that they
were authorized to use force to achieve objectives which would not have fallen
within the concept of self-defence. The price was the political complication of
having to secure the necessary support in the United Nations Security Council.
In practice, however, that price was a small one. Having secured enough votes
to pass Resolution 678,!¢ the coalition was not then subject to any practical
control by the Security Council (although it reported to the Council on the ac-
tions which it took) because the mandate conferred by Resolution 678 was very
broad and could not have been altered without a further resolution which the
United States, United Kingdom, and France could have vetoed even if there
had otherwise been a majority for its adoption. While the Security Council pro-
vided the authority to use force and defined the limits of that authorization,
command and control in the ensuing operation rested entirely in the hands of
the States which contributed the forces.!7

The power of the Security Council to authorize States to use force has been
particularly important in a number of cases of humanitarian intervention, a
ground for the use of force which has emerged into particular prominence in

184


Making Law of War Treaties

to U.S. lines of communications. The U.S. counter was that “our submarine
bases on the Philippines and Guam would be within striking distance of her
coasts and would be a great threat to the commerce on which her existence de-
pends....”4%Having recognized the military potential of the submarine as an ef-
fective commerce raider, the memorandum took an ironic twist, recommend-
ing the abolition of the submarine not for humanitarian reasons but because
“our public opinion would never permit their use in the same manner as that of
our adversaries.”5°

The memorandum was forwarded to Washington with an unfavorable en-
dorsement by Admiral William S. Sims, Force Commander of American Naval
Forces operating in European Waters, who stated that “The Force Commander
does not consider that the arguments put forward by the Planning Section in
this paper are logical, nor that they support the conclusions reached. The paper
is therefore forwarded without approval for consideration by the Department
[of the Navy].”5! Although the memorandum’s recommendations were for
naught, its value lies in its recognition of the potential and likely employment
of the submarine in future conflicts.

The issue would not be resolved at the Paris Peace Conference, as it was re-
garded as beyond the scope of that conference and more in the purview of the
League of Nations. The conferees ultimately distributed former German
U-boats to France (ten), Japan (seven), and the United States (six). The re-
maining U-boats were broken up.>2

The Paris Peace Conference exacerbated a growing naval rivalry between
Japan, Great Britain, and the United States. Although allies during World War
I, Japan and the United States previously had identified each other as potential
foes in any future Pacific naval war; Great Britain joined in the assumption of
war with Japan following World War I.53 Japan’s receipt of the former German
Pacific mandates (Marianas, Caroline, and Marshall groups, without providing
a verification mechanism to ensure it kept its pledge not to fortify the islands)
in the Paris Peace settlement, in part as a reward for its alliance against Ger-
many, increased the concern of British-American naval leaders.** It also was to
be a factor in the American decision to resort to unrestricted submarine war-
fare more than two decades later.

In 1919, however, nations were engaged in the inevitable postwar retrench-
ment of military forces. Great Britain’s national debt had soared during the five
years of World War I. Major cuts in government spending were paramount,
and no costs were more apparent than naval shipbuilding. The issue was
framed all the more by the belief by many that the pre-World War I naval arms
race was a major cause of that war. Against these beliefs was the genuine desire

346


The Normative Framework of International Humanitarian Law

If customary international law is determinative of what type of conflict is required in
order to constitute a crime against humanity, the prohibition against crimes against
humanity is necessarily part of customary international law. As such, the commission of
crimes against humanity violates customary international law, of which Article 5 of the
Statute is, for the most part, reflective. As stated by the Appeals Chamber: “There is no
question . . . that the definition of crimes against humanity adopted by the Security
Council in Article 5 comports with the principle of nullum crimen sine lege.”

Id. at 937. The Appeals Chamber in the Nikolié case noted that a crime against humanity must be
shown to have been committed in the course of an armed conflict. Nikolié Rule 61 Hearing,
(IT-95-2-R61).

38. See, e.g., Bassiouni, supra note 6.

39. See Bassiouni, From Versailles to Rwanda, supra note 10, at 46-49.

40. For an insight into the establishment of the ICTR, see VIRGINIA MORRIS & MICHAEL P.
SCHARF, THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (2 vols. 1998).

41. See London Charter, supra note 25, art. 6(c).

42. See ICTY Statute art. 5(g), supra note 33; ICTR Statute art. 3(g), supra note 35.

43. See ICTR Statute supra note 35, art. 3. It is interesting to note that Article 5 of the ICTY
does not refer to the words “widespread or systematic” contained in Article 3 of the ICTR. Yet, in
the Tadié opinion the Trial Chamber referred to the words “widespread or systematic” using the
disjunctive. See generally MICHAEL P. SCHARF, BALKAN JUSTICE (1997).

44. See BASSIOUNI, CRIMES AGAINST HUMANITY, supra note 4, at Ch. 4 “The Principles of
Legality.”

45. See id., Ch. 5.

46. See id. See also Roger S. Clark, Crimes Against Humanity at Nuremberg, in THE
NUREMBERG TRIAL AND INTERNATIONAL LAW 177 (George Ginsburgs & Vladimir N.
Kudriavtsev eds., 1990); Egon Schwelb, Crimes Against Humanity, 23 BRIT. Y.B. INT'L L. 178
(1946).

47. ICTR Statute, supra note 35, art. 3 (emphasis added).

48. For sure, the terms “widespread or systematic” as used in Article 3 of the ICTR cannot be
interpreted as a characteristic of the specific crimes listed in the definition because, for example,
there can be no particular crime called “widespread extermination.”

49. ICC Statute, supra note 13, art. 7 (emphasis added).

50. Article 7 states:

Persecution against any identifiable group or collectivity on political, social, national,
ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are
universally recognized as impermissible under international law, in connection with any
act referred to in this paragraph or any crime within the jurisdiction of the Court. . . .

Id.

51. Id.

52. Id. For a commentary, see generally Herman von Hebel & Daryl Robinson, Crimes within
the Jurisdiction of the Court, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE
ROME STATUTE, ISSUES, NEGOTIATIONS, RESULTS 79-126, (Roy S. Lee ed., 1999); Margaret
McAuliffe deGuzman, The Road from Rome: The Developing Law of Crimes Against Humanity, 22
HUM. RTS. Q. (2000).

44


Howard S. Levie

investigates; he determines whether there is evidence warranting prosecution;
if he determines that there is not such evidence, he notifies the Pre-Trial
Chamber and the State which referred the case; the State which referred the
case (or the Security Council if it was the complainant) may request a review of
the Prosecutor’s decision by the Pre-Trial Chamber.°6

The Statute contains a number of provisions for the protection of individu-
als. Thus, Article 55 has provisions protecting persons during the investigation
ofan alleged offense; and Article 66 specifies that “Everyone shall be presumed
innocent until proved guilty before the Court in accordance with the applica-
ble law.” As Article 63 provides that “The accused shall be present during the
trial,” there are to be no trials in absentia.58

Part 6 (Articles 62-76) is concerned with the trial proper. It is here that we
find provisions concerning the presence of the accused at the trial, the pre-
sumption of innocence, the rights of the accused, the protection of victims and
witnesses, rules of evidence, etc.

Part 7 (Articles 77-80) deals with penalties. Paragraphs 1 (a) and (b) of Arti-
cle 77 are rather peculiar. Paragraph 1 (a) provides that the Court may impose
“Imprisonment for a specified number of years, which may not exceed a maxi-
mum of 30 years.” However, paragraph 1(b) provides that the Court may im-
pose “A term of life imprisonment when justified by the extreme gravity of the
crime”! That article also contains provisions for fines and for the “forfeiture of
proceeds, property and assets derived from the crime.”

Part 8 (Articles (81-85) is concerned with appeals. Article 81(1)(a) empow-
ers the Prosecutor to appeal, apparently even from an acquittal, on the ground
of procedural error, of error of fact, or of error of law. Paragraph (1) (b) of that
Article authorizes the convicted person “or the Prosecutor on that person’s be-
half” to appeal not only on those same grounds but also on “Any other ground
that affects the fairness or reliability of the proceedings or decision.” Article 82
refers to appeals against a number of other types of decisions which may be
made during the course of the proceedings. -

Part 9 (Articles 86-102) of the Statute is entitled “International Coopera-
tion and Judicial Assistance.” It can be anticipated that this is an area where
difficulties and controversies will arise. Thus, Article 89 requires States Parties
to “comply with requests for arrest and surrender.” As this requirement is
stated to be subject to the procedure under the requested State’s national law,
past experience has demonstrated the numerous problems to be encountered
in this area even where an extradition treaty is the basis for the request.5?

Part 10 (Articles 103-111) is concerned with the problem of the enforce-
ment of sentences. These provisions are somewhat similar to the provisions in

257


Michael N. Schmitt

the objective advances the interest. It also differs from strategy, which is de-
signed to advance objectives. Recall that one U.S. national interest is security at
home, and that drug trafficking, illicit arms trafficking, environmental damage,
certain rogue States, failed States, and so forth are defined as threats thereto.
Countering each is a differing objective fostering the same interest. As between.
these objectives, intensity is a constant. Yet, the degree to which successfully
achieving them advances the interest in security varies widely. Winning the
war on drugs is a very much different thing in terms of advancing national secu-
tity than winning the war against environmental degradation.

A similar phenomenon applies in the legal setting. For instance, operations
conducted in response to the failure of a State will not have the same valence in
terms of advancing national security interests as those executed in a
State-on-State context. This bears directly on the normative environment that
a State might seek because the shaping effect of law depends on the milieu in
which it operates. Resolution of issues such as detention of civilians, combatant
status, “occupation” activities, use of force, and neutrality may well depend on
whether the operations are conducted as part of an internal disturbance, inter-
nal armed conflict, international armed conflict, or some variant of peace
operation.

Finally, it must be grasped that valuation is not a mathematical calculation.
On the contrary, it is merely a process for helping decision-makers think
through what it is they should accomplish.

Step 5: Choose a Normative Strategy. To this point, no strategy decision has
been made, i.e., no actions have been proposed or refrained from. As noted,
strategies are game plans for how to accomplish the objective (the what) that
was identified and evaluated during the previous step. The process of strategic
choice writ large now turns to the identification and development of strategies
designed to effectuate the objectives just valued. This process, which has been
described in greater depth elsewhere,*” involves determining which of one’s
objectives are “obligatory” (e.g., nuclear deterrence), and then appraising
others to determine how best to fashion an overall strategic plan that
maximizes opportunity and minimizes risk given finite resources.

Legal strategies must be assessed somewhat uniquely, if only because they
are less directly resource dependent than are most other national security strat-
egies. Of course, all strategic choice poses costs and benefits and requires
trade-offs. However, as alluded to earlier, non-legal choice is more often an ei-
ther-or proposition than is the case with legal choice. Strategies for the former
frequently come only at the expense of one another. Law, however, often

467


Index

Falklands/Malvinas Conflict, 197
EXCLUSIVE ECONOMIC ZONE (EEZ), 281, 285
EXTRADITION, 248, 257, 308, 390-94, 423-24, 548, 551-52
International Criminal Court Statute, 423

F

FALKLANDS/MALVINAS CONFLICT (1982) (Argentina-U.K.), 183, 267, 471
Exclusion Zone, 197
Self-Defense, 183
FENRICK, WILLIAM J., xi, xv, 582
FISHERIES, 286
See also HIGH SEAS; LAW OF THE SEA
FLECK, DIETER, 161, 583
FORCE, USE OF, 138-39, 179-96, 270-71, 313-28, 461, 490-96
See also AGGRESSION; BLOCKADE, LAW OF; SANCTIONS; SECURITY COUNCIL,
Enforcement Actions; SELF-DEFENSE; UNITED NATIONS CHARTER, Enforcement
Actions
History, 57-77, 180, 480-88
North Atlantic Treaty Organization, 313-320
United Nations Charter, 57, 97, 103, 105, 184, 188, 313-14, 321-22, 328, 432
FRANCE, 58, 63, 70-74, 132, 133, 135, 165, 184, 206-07, 248, 301, 343, 346, 348, 351,
352-54, 357-59, 389, 455, 541, 550
Barbie Case, 36
Crimes Against Humanity, 36
European Corps (EUROCORPS), 163
French Revolution, 67
Kosovo, 315
North Atlantic Treaty Organization, 325
Papon Case, 36
Satellites, 94
Touvier Case, 36
War Crimes, 251
Yugoslavia v. France (IC}), 325

G

GAS PROTOCOL, see GENEVA GAS PROTOCOL (1925)

GENERAL ASSEMBLY (UN), 18, 81-83, 86, 88-90, 92-93, 95, 104, 121, 149, 253, 268,
273-71, 279, 281, 282, 328-30, 394, 396-402, 404-05, 409, 508-09, 513, 515-16, 519, 521,
540-43
See also UNITED NATIONS
Nuclear Weapons, 89
Outer Space Declaration (1963), 83
Outer Space Declaration (1996), 90
Resolutions, 270

593


Westphalian Peace Tradition

view on war. Instead of finding a “public law of Europe,” Paine noted the
“uncivilized state of European governments” and the fact that those govern-
ments were “almost continually at war.”44 He denounced war as such as harm-
ful to the “principles of commerce and its universal operation” and made the
point that commercial development is dependant on the maintenance of
peace. Thus, it was in everyone’s interest to avoid war.4> Paine was here to
some extent foreshadowing the plans of Robert Schumann and Jean Monnet
for a European Community. He did not, however, draw any legal conclusions
from this reasoning, other than that he implicitly denied a jus ad bellum based
on an alleged public law of Europe.

When Immanuel Kant published his famous essay Zum ewigen Frieden in
1795, he argued, like Paine, that “the spirit of trade cannot coexist with war, and
sooner or later this spirit dominates every people. For among all those powers
(or means) that belong to a nation, financial power may be the most reliable in
forcing nations to pursue the noble cause of peace.”46

Kant was critical of Grotius, Vattel, and other naturalists and their preten-
sion of stating a valid legal prohibition against certain uses of force. Thus, he
denied any lex lata on the subject (although he did not put it in these terms). He
noted, however, a “dormant moral aptitude to master the evil principle in him-
self” and claimed that “from the throne of its moral legislative power, reason
[emphasis added] absolutely condemns war as a means of determining the right
and makes seeking the state of peace a matter of unmitigated duty.”47 He
thereafter embarked upon an idealistic reasoning de lege ferenda:

But without a contract among nations peace can be neither inaugurated nor
guaranteed. A league of a special sort must therefore be established, one that we
can call a league of peace (foedus pacificum), which will be distinguished from a
treaty of peace (pactum pacis) because the latter seeks merely to stop one war,
while the former seeks to end all wars forever. This league does not seek any
power of the sort possessed by nations, but only the maintenance and security of
each nation’s freedom, as well as that of the other nations leagued with ir, ...”48

Although accepting the decentralized Westphalian State system of equal
nations, Kant wanted to improve upon it through agreement. His proposal
amounted to a loose federation of free nations, without any supranational
mechanisms for collective sanctions (not to erode national sovereignty), but
kept together by the moral force of leading States. He was not aiming for a uni-
versal world State but a universal moral order. This could be achieved by one or
two States inspiring others to join in a federation:

68


Charter of the United Nations as a World Constitution

The recognition of regional arrangements and agencies within the UN system,
and the implicit need to work out compromises between universalism and re-
gionalism, is a striking example of the major constitutional features of the
Charter of the United Nations, in this case a feature fully familiar to citizens of
federal and confederal states.

Chapter XIV deals with the International Court of Justice, the principal ju-
dicial organ of the United Nations. Its statute is an integral part of the Charter
itself. The precise mandate of the Court, which we should not overlook, is to
decide in accordance with international law such cases as are submitted to it.

According to Articles 93 and 94, all member States of the United Nations
are ipso facto parties to the Statute of the Court and must comply with the
Court’s decisions in any case to which they are party. However, the constitu-
tional reach of these provisions is limited jurisdictionally; the Court is available
only to States. Organs of the United Nations or of any other international orga-
nization cannot stand as a party. This leaves little if any room for jurisdictional
control over acts of the organization, particularly over those of the Security
Council. As Crawford observes, “there is in the Charter, an almost total lack of
institutional means for implementing the principle of the rule of law on the part
of individual Member States.”32

Two articles, Article 2.6 and Article 103, have particular relevance for pur-
poses of revealing the constitutional significance of the Charter. Under Article
2.6, the organization “shall ensure that States which are not Members of the
United Nations” act in accordance with the principles of the Charter as far as
may be necessary for the maintenance of international peace and security. Ar-
ticle 103 provides for the superiority of Charter obligations over the obligations
of members under other international agreements.

Article 2.6, together with Article 103, represents the strongest suggestion
that the Charter of the United Nations may be seen as a constitutional charter,
or at least as proof of the universal vocation of the organization itself. The acts
of the organs of the United Nations reinforce this view by addressing “all
states,” not simply member States. On the other hand, the relevance of the uni-
versal vocation of the Charter is now perhaps academic, since almost every
State in the world has joined the United Nations. The only relevant exceptions
to universal membership are, for obviously different reasons, Switzerland and
Taiwan, plus a limited number of microstates, such as the Holy See. Nowadays,
the United Nations is virtually a universal organization and its Charter is the
basic written rule of the international community.

Some also consider the formulation of Article 2.6 a further indication that
other principles of that article are to be considered international customary law

272


Chivalry in the Air?

parachuting from an aircraft in distress are to be considered hors de combat dur-
ing their descent and should be treated as such.4

The first attempt to draft the rule in codified form was in the 1923 Hague
Rules of Air Warfare, which stated:

Article 20

When an aircraft has been disabled, the occupants, when endeavouring to
escape by means of parachute, must not be attacked in the course of their
descent.5

The Commission of Jurists who drew up this rule did not claim at the time
that they were codifying customary law but only that it “seemed desirable to
prohibit” such forms of “injuring the enemy.”® The rule, however, appears to
have been viewed as uncontroversial and was accepted without debate.’ State
practice and judicial opinion since then point to the development of the rule
into international custom. The International Committee of the Red Cross
(ICRC) referred to it in 1971 as “a common-law tule,”8 and Bothe, Partsch, and
Solf write, “withholding attack against airmen descending from a disabled air-
craft had certainly hardened into customary international law.”? DeSaussure
states that “while descending air crewmen were occasionally attacked in World
War II in areas where their capture was not probable, the practice in Korea,
Indochina, and the Mideast points to a developing custom which unconditionally
exempts any occupant leaving a disabled aircraft from being attacked either
from the air or from the ground.”!0

The issue of protection of airmen in distress was extensively debated during
the Humanitarian Law Conference.!! The rule, as finally adopted in Article 42
of Protocol I,!? states:

Article 42

1. No person parachuting from an aircraft in distress shall be made the object of
attack during his descent.

2. Upon reaching the ground in territory controlled by an adverse Party, a person
who has parachuted from an aircraft in distress shall be given an opportunity to
surrender before made the object of attack, unless it is apparent that he is
engaging in a hostile act.

3. Airborne troops are not protected by this Article.

440


International Humanitarian Law from Agincourt to Rome

any fighting, as legitimate military objectives. What made the massacre even
more reprehensible, was that it was directed against prisoners. Yet some great
Renaissance jurists, such as Gentili, still justified reprisals against a collectivity.
Grotius dissented, “nature does not sanction retaliation except against those
who have done wrong. It is not sufficient that by a sort of fiction the enemy may
be conceived as forming a single body.”

Tf the massacre of the prisoners was not justified as a reprisal, could it have
been justified on grounds of necessity? It may well be that the heavily outnum-
bered English would have had difficulty repelling another attack while guard-
ing their numerous prisoners. But this explanation is undercut by the fact that
the King decided to spare the highest ranking prisoners, whose ransom would
belong to him. Indeed, captors who were knights refused to carry out the order
and the King had to use 200 of his archers to carry out the gruesome task of
throat cutting.

Nevertheless, the eminent medieval jurist Giovanni da Legnano recognized
the captor’s right to kill prisoners where there was fear of disturbance of the
peace; even the Renaissance scholar Vitoria prohibited killing of prisoners only
after victory had been won and all danger was over. Gentili, however, harshly
criticized the killing. Notwithstanding Gentili’s condemnation, it cannot be
concluded that Henry clearly violated contemporary standards. Killing prison-
ers in an emergency was not unprecedented. While quarter was normally
granted in Anglo-French wars, the virtual absence of contemporary criticism of
Henry’s action suggests that cruel as it was, his order did not violate the ac-
cepted norms of behaviour.

Even before the treaty of Rome, certainly under the jurisprudence of
Nuremberg, killing of prisoners of war, whether in the guise of reprisals or on
grounds of military necessity would be an absolute war crime. Yet, as recently as
during World War II, reprisal killing of innocent civilians in occupied territo-
ries was, in some circumstances, lawful. The Nuremberg tribunals ruled that
killing of civilian hostages in reprisal for hostile acts against the occupying
power was not a war crime provided that certain conditions were complied
with. Today, it would be a war crime under the Geneva Conventions and Pro-
tocols, and certainly under the Treaty of Rome with its explicit criminalization
of refusal to grant quarter.

But what about the killing of prisoners of war on grounds of necessity in
modern humanitarian law? Medieval chivalry, medieval ordinances of war and
humanist writings of Renaissance writers were followed by about two lean cen-
turies of humanitarian law. Two major challenges, one military, the other reli-
gious, forced a decline of chivalry without providing an effective substitute.

304


Making Law of War Treaties

and partial prohibition (rather than total prohibition) of antipersonnel land
mines, nongovernment organizations (NGOs) and the Government of Canada
rushed through a conference that resulted in the Convention on the Prohibi-
tion of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines
and on Their Destruction of September 18, 1997.8 On July 17, 1998, the
United Nations Diplomatic Conference on the Establishment of an Interna-
tional Criminal Court produced the Rome Statute of the International Crimi-
nal Court.? A diplomatic conference was held in The Hague from March 15 to
26, 1999 to promulgate a second protocol to the Hague Convention for the
Protection of Cultural Property in the Event of Armed Conflict of May 14,
1954.10 Planning already is underway for the second UNCCW review confer-
ence, to be held not later than 2001, to consider the possibility of regulating or
prohibiting other conventional weapons.!1

The list of recent and possible future law of war legislation reflects a prodi-
gious effort on the part of the international community. Equally impressive on.
its face is the number of States Parties to these and other law of war treaties.
Whereas there are only thirty-four States Parties to the Hague Convention
(IV) Respecting the Laws and Customs of War on Land of October 18, 1907,!2
and the Annex Thereto,}3 there are 188 States Parties to the Geneva Conven-
tions for the Protections of War Victims of August 12, 1949,!4 and 156 States
Parties to the 1977 Additional Protocol I.

But the value of the law of war depends less on codification and ratification
or accession of treaties than on effective implementation and observance. The
urgency to create the International Tribunal for the Prosecution of Persons Re-
sponsible for Serious Violations of International Humanitarian Law Com-
mitted in the Territory of the Former Yugoslavia Since 1991,15 the
International Criminal Tribunal for Rwanda,!6 and, subsequently, the Interna-
tional Criminal Court, is clear evidence that codification and ratification or ac-
cession mean little without effective implementation. Evidence of any
implementation, much less effective implementation, by States Parties to Ad-
ditional Protocols I and II, or the 1980 Conventional Weapons Convention
and its protocols, or even the older 1949 Geneva Conventions, is lacking and,
for many States Parties, nonexistent. Although the Diplomatic Conference
that promulgated Additional Protocol I concluded its work twenty-two years
ago, there is little evidence of implementation of its obligations by States
Parties,!? and the treaty has yet to be tested by the harsh realities of combat.!8

In 1999, some governments and the International Committee of the Red
Cross (ICRC) were engaged in a futile headlong rush to create more law of war leg-
islation in celebration of the centennial of the First Hague Peace Conference,

340


Bin Cheng

This is not to deny that there are activities and uses which can serve both
military and civilian purposes. From the standpoint of maintaining interna-
tional peace and security, this is a serious problem which causes much con-
cern,®© but insofar as the law is concerned, Article IV(2) is quite explicit. The
moon and other celestial bodies may only be used by the contracting States to
the Treaty “exclusively for peaceful purposes”; in other words, no admixture of
any military purpose. From this point of view, the law can only look at the pres-
ent and actual purpose, whether overt or covert, but not speculative ulterior
motives.

After all, as we have seen before, the whole space programme has tremen-
dous military and strategical significance. To be realistic, the total demilitarisa-
tion of the moon and other celestial bodies is possible largely because they are,
at least as things stand at the moment, militarily and strategically of no, or lit-
tle, significance. As far as one is aware, none of the space Powers is contemplat-
ing using the moon or any other celestial bodies for military purposes. This
tenacity of holding on to a misleading interpretation of the word “peaceful” in
relation to the Space Treaty is difficult to understand, especially since the ban-
ning of military activities in the Treaty does not apply to outer void space, as a
careful examination of Article IV(1) will show.

In any event, the last two sentences of Article IV(2) of the Space Treaty, far
from modifying the ordinary meaning of the word “peaceful” in the article’s first
sentence, serve only to confirm that it means “non-military.”

The 1979 Moon Treaty. Insofar as the demilitarisation of the moon and the
other celestial bodies is concerned, Article 3 of the Moon Treaty basically re-
peats Article IV of the Space Treaty, especially Article IV(2), except that the
scope of the Moon Treaty is limited to the moon and only the celestial bodies
within the solar system other than the earth, and, therefore, does not extend to
celestial bodies outside the solar system. The specific mention of the moon in
Article 3(4), which was omitted in the second sentence of Article IV(2) of the
Space Treaty, for reasons which have been given above, in fact does not add
anything of significance to the latter. Apart from the express prohibition of
placing weapons of mass destruction in a “trajectory to” the moon, the only dif-
ference lies in the Moon Treaty’s Article 3(2), which specifically prohibits the
threat or use of force or other hostile act. Since Article 2 of the Moon Treaty al-
ready binds the contracting States to observe international law and the Charter
of the United Nations, and since Article 2(4) of the United Nations Charter al-
ready prohibits the threat or use of force, and no doubt also the launching of
any weapon of mass destruction against any place in the universe without

103


Dieter Fleck

30. C-M (54)85(Final), 25 October 1954, Department of State Publication 5659, p. 32.

31. Tactical Control (TACON) is the detailed and, usually, local direction and control of
movements or manoeuvres necessary to accomplish missions or tasks assigned.

32. Tactical Command (TACOM) is the authority delegated to a commander to assign
tasks to forces under his command for the accomplishment of the mission assigned by higher
authority.

33. Operational Control (OPCON) is the authority delegated to a commander to direct
forces assigned so that the commander may accomplish specific missions or tasks which are
usually limited by function, time or location, to deploy units concerned and to retain or assign
tactical control of those’ units. It does not include authority to assign separate employment of
components of the units concerned. Neither does it, of itself, include administrative or logistic
control.

34. Operational Command (OPCOM) is the authority granted to a commander to assign
missions or tasks to subordinate commanders, to deploy units, to reassign forces, and to retain or
delegate operational control and/or tactical control. OPCOM does not of itself include
responsibility for administration or logistics.

35. Coordinating Authority is the authority granted to a commander or individual assigned
responsibility for coordinating specific functions or activities involving forces of two or more
countries or commands, or two or more services or two or more forces of the same service. It
includes the authority to require consultation between the agencies involved or their
representatives, but does not have the authority to compel agreement. In case of disagreement
between the agencies involved, the commander should attempt to obtain essential agreement by
discussion. In the event he is unable to obtain essential agreement, he shall refer the matter to
the appropriate authority.

36. Full Command is the military authority and responsibility of a superior officer to issue
orders to subordinates and covers every aspect of military operations and administration. It exists
only within national services.

37. NATO Earmarked Forces are forces which nations agree to place under the operational
command or operational control of a NATO commander at some future time.

38. NATO Assigned Forces are forces which nations agree to place under the operational
command or operational control of a NATO commander at a specified stage, state or measure
prescribed in the NATO Alert System or in special agreements.

39. NATO Command Forces are forces which nations have placed under the operational

* command or operational control of a NATO commander (e.g., NATO Airborne Early Warning
and Control Force - NAEW - a NATO Force under the operational command of all three Major
NATO Commanders, for whom SACEUR acts as Executive Agent).

40. Article 65a reads: “Power of command in respect of the Armed Forces shall be vested In
the Federal Minister of Defense.”

41. Duties under § 7 of the Soldatengesetz (Soldiers Act), § 54 of the Bundesbeamtengesetz
(Federal Act on Civil Servants).

42. Wehrdisziplinarordnung (Military Disciplinary Code) in der Fassung vom 4. September
1972 (BGBI 1972 I 1665) with later amendments.

43. §§ 19, 20 Wehrstrafgesetz (Military Penal Code) in der Fassung vom 24. Mai 1974 (BGBI
19741 1213) with later amendments.

44. Supra note 1, Article 10.

45. Article 2 of the law of 11 September 1998 (BGBI 1998 II 2405), by which the Corps
Convention (supra note 1) and the Supplementary Agreement for German Forces in the
Netherlands (supra note 20) were enacted.

177


W. Hays Parks

maintained, the history of submarine warfare might have taken a different turn, no matter how
difficult it might have been for the submarine to engage in visit-and-search activities. Certainly
the moral and legal arguments for agreed rules would have been stronger.

46. TARRANT, supra note 37, at 77; Versailles Treaty, Part V, Military, Naval and Air
Clauses, Section II, Naval Clauses, Articles 181, 188, 189, 191.

47. Dept. of the Navy, THE AMERICAN NAVAL PLANNING SECTION LONDON (1923),
Paper No. 68, Submarine Warfare, at 466, 467 [emphasis supplied].

48. Id. at 470.

49. Id. at 472.

50. Id. at 472-473.

51. Id. at 475.

52. Great Britain and Italy received no U-boats. The U-boats received by Japan and the
United States were to be retained temporarily for experimental reasons before being broken up.
L. Douglas, Submarine Disarmament, 1919-1936, Ph.D. diss., Syracuse (1970), at 86-87, 90.
Japan retained its U-boats for an extended period of time and employed former U-boat design
and construction engineers in the development of its submarine fleet even before the issue of
U-boat distribution had been resolved at Versailles. On October 9, 1919, almost two months
before the Versailles participants reached a decision, the U.S. naval attaché in Tokyo reported
that Japanese officials were in Berlin “for the purpose of studying submarine construction from
German naval designers. . . . Captain Godo expects to obtain German patents and designs for
submarines, and also expects to bring German naval mechanics back to Japan.” A subsequent
US. Navy intelligence report advised that by 1920 over 800 German U-boat specialists were
working in Japan. C. BOYD AND AKIHIKO YOSHIDA, THE JAPANESE SUBMARINE FORCE AND
WORLD WAR II (1995), at 13-14.

53. E. MILLER, WAR PLAN ORANGE: THE U.S. STRATEGY TO DEFEAT JAPAN, 1897-1945
(1991), at 19-30, 313-314; M. BARNHART, JAPAN PREPARES FOR TOTAL WAR (1987), at 50;
S. ROSKILL, NAVAL POLICY BETWEEN THE WARS, Vol. I, THE PERIOD OF ANGLO-AMERICAN
ANTAGONISM (1968), at 278-279; A. MARDER, OLD FRIENDS, NEW ENEMIES: THE ROYAL
NAVY AND THE IMPERIAL JAPANESE NAVY (1981), at 6; TERRAINE, supra note 33, at 156-157;
Sadao Asada, The Revolt Against the Washington Treaty: The Imperial Japanese Navy and Naval
Limitation, 1921-1927, NAV. WAR COLL. REV. XLVI, 3 (Summer 1993), at 83.

54. ROSKILL, supra note 53, at 87; R. KAUFMAN, ARMS CONTROL DURING THE
PRE-NUCLEAR ERA: THE UNITED STATES AND NAVAL LIMITATION BETWEEN THE TWO.
WARS (1990), at 14; H. SPROUT AND M. SPROUT, TOWARD A NEW ORDER OF SEA POWER
(1940), at 88-90. Japan also received the former mandates as a quid pro quo for termination of the
1902 Anglo-Japanese Alliance, which was due for renewal but opposed by the United States;
ROSKILL, supra note 53, at 315-317.

55. TERRAINE, supra note 33, at 154-155; Douglas, supra note 52, at 72; SPROUT AND
SPROUT, supra note 54, at 190; and A. CLAYTON, THE BRITISH EMPIRE AS A SUPERPOWER
1919-1939 (1986), at 17-18, 20-21.

56. K. Hagan and C. Campbell, in H. SPROUT AND M. SPROUT, THE RISE OF AMERICAN
NAVAL POWER 1776-1918 (1966 ed.), at ix.

57. S. PELZ, RACE TO PEARL HARBOR (1974), at 27, 88, 89; SPROUT AND SPROUT, supra
note 56, at vii, xiii-xiv, xxii, xxvii; BLAIR, supra note 38, at 16; E. LACROIX AND L. WELLS,
JAPANESE CRUISERS OF THE PACIFIC WAR (1997), at 114-116. It should be noted that neither
Great Britain, the United States nor Japan asserted that guerre de course was illegal, but merely
that it was not the first course of action. For example, a February 25, 1925, U.S. Navy report of
the Special Board to Consider the Upkeep of the Navy and Its Various Branches (consisting of

373


Michael N.-Schmitt

armed conflict respond to such interests. For instance, the laws of neutrality
balance the “interests” of belligerents in effectively prosecuting a conflict with
those that neutrals have in continuing to engage in commerce.

Value interests are much more pervasive in the laws of armed conflict. They
comprise those externally focused interests that lie beyond our borders—de-
mocracy, justice, human rights, human dignity, and so forth.!9 Obviously, the
bulk of the law of armed conflict addressing how armed conflict may be con-
ducted, the jus in bello, falls within this category; in fact, increasing use of the
term “humanitarian law” in lieu of either the “law of armed conflict” or the
“law of war” is indicative of a growing commitment to the value aspects of this
corpus of law. So too is the recent involvement of U.S. and other forces in hu-
manitarian operations involving the use of force (e.g., Northern Iraq, Somalia,
Kosovo), operations which must be justified by that component of interna-
tional law governing the resort by States to force, the jus ad bellum. To the ex-
tent international law permits intervention for humanitarian purposes, value
interests are at play.

In fact, the two foundational objectives of the jus in bello—separating out
those who are involved in the fight from those who are not and limiting the
scope and nature of the violence that occurs during combat—are both
grounded in value interests. They acknowledge armed conflict as a fact of in-
ternational (and increasingly internal) activity, but seek to limit its impact on
the human condition. Thus, for example, civilians may not be directly tar-
geted,20 medical facilities?! and cultural objects receive special protection,22
and weapons that would needlessly exacerbate human suffering are forbid-
den.?3 Such strictures represent a recognition that the destruction and hard-
ship war creates are, as a general matter, contrary to human values. To the ex-
tent States embrace these values, they represent a national interest that may be
fostered through strategic policy choices resulting in international law.

Step 2: Value the Interests. In assessing whether a particular strategic choice
regarding matters of law advances national interests, it is iraportant to
understand that all national interests do not enjoy equal valence. Thus, they
must be valued. This is so because, as noted earlier, realization of most interests
comes at the expense of certain other ones. Avoiding civilian damage or injury
(a value interest), as an example, may require a mission to be executed ina less
than optimal way (a security interest). Additionally, the process is not a level
one, for a very rough hierarchy of interests exists. As a general matter, security,
well-being and value interests are ranked from high to low respectively. This a
priori ordering reflects the fact that a State will ordinarily seek to survive before

461


Outer Void Space Not Reserved for Exclusively Peaceful Use

applicable rules of international law and specific treaty obligations, including
the United Nations Charter, particularly Articles 2(4) and 51.

With this immense freedom that the contracting States have in outer void
space, it is hard to understand how, first, one can fail to see the difference be-
tween Article IV(1) and Article IV(2) of the Space Treaty, and maintain that
“peaceful” in Article IV(2) is intended to mean no more than “non-aggres-
sive,” and second, how one can possibly claim or think that the whole of outer
space is limited to use for peaceful purposes only, without reducing the word
“peaceful” to meaninglessness.

The American arbitrator F. K. Nielsen, in his 1923 U.S.-Mexican General
Claims Commission dissenting opinion in the International Fisheries Co. Case
(1931), rightly pointed out:

An inaccurate use of terminology may sometimes be of but little importance, and
discussion of it may be merely a quibble. But accuracy of expression becomes
important when it appears that inaccuracy is due to a confusion of thought in the
understanding or application of proper rules or principles of law.76

Irrespective of whether or not Article IV of the Space Treaty has now be-
come a matter of general international law, there is no doubt that the 1967
Space Treaty, as President Johnson said of it at the time, was “the most impor-
tant arms control development since the limited test ban treaty of 1963.”7” Itis
consequently extremely important that there should be a clear understanding
of what it means. The world has cause to be deeply concerned about the mili-
tary use of space.” However, arms limitation and control in space cannot be di-
vorced from the much wider political problems and extremely complex
relations that exist between nations. Yet to begin with, one must be clear as to
what one has at the moment, namely, Article IV of the Space Treaty, which is
the obvious starting point. For the rest, the three indispensable conditions of
successful international lawmaking are: 1) perceived need; 2) propitious politi-
cal climate; and 3) due representation and consequential support of the domi-
nant section of international society, including what the International Court of
Justice calls the States “specially affected.””9 However, those who seek to se-
cure the whole of outer space exclusively for peaceful exploration and use need
first of all to ensure that the word “peaceful” is correctly interpreted. Otherwise,
they could score an entirely empty victory and fall into the kind of meaningless
self-deception typified by Article 88 of the United Nations Law of the Sea Conven-
tion (1982),8° which tells us that the “high seas shall be reserved for peaceful

purposes”!

106


W. Hays Parks

followed by other attacks on merchant ships in the western Pacific, and a brief
campaign along the U.S. west coast.!32 While other merchant ship attacks
followed, including extended campaigns in the Indian Ocean, the Imperial
Japanese Navy’s deployment of its submarines for the balance of the war did
not serve it well. Former Japanese submarine officers and historians have been
unanimous in their criticism of the failure of Japan to give priority to the attack
of merchant shipping.3 The evidence is clear, however, that prioritization of
missions was an operational rather than a legal decision, and that Japan did not
adhere to the rules set forth in the 1936 Procés-Verbal in its submarine
operations.

United States. On December 7, 1941, upon notification of the Japanese attack
on Pearl Harbor, Admiral Harold R. Stark, U.S. Chief of Naval Operations,
issued the following order: “Execute against Japan unrestricted air and
submarine warfare.” 54

Historians and international lawyers long held that the United States’ ac-
tion was a reprisal for the Japanese attack on Pearl Harbor,!35 apparently based
upon the statement by Admiral Chester A. Nimitz, USN, in response to inter-
rogatories from the International Military Tribunal on behalf of Admiral Karl
Dénitz. After acknowledging that the Chief of Naval Operations had ordered
unrestricted submarine warfare against Japan on December 7, 1941, Admiral
Nimitz was asked if that decision was based upon reprisal. Admiral Nimitz
responded:

The unrestricted submarine and air warfare ordered on 7 December 1941
resulted from recognition of Japanese tactics revealed on that date. No further
U.S. orders to submarines concerning tactics toward Japanese merchantmen
throughout the war were based on reprisal .. . .

The unrestricted submarine and air warfare ordered by the Chief of Naval
Operations on 7 December 1941 was justified by the Japanese attacks on that
date on U.S. bases, and on both armed and unarmed ships and nationals, without
warning or declaration of war.!36

These responses are postwar legal justifications for operational and political
decisions taken before the Japanese attack on Pearl Harbor. They also are le-
gally inaccurate as a basis for reprisal.137

The decision of the United States to abandon its obligations under the 1936
Procés-Verbal was premeditated, and not based upon reprisal. The historian
who discovered the actual basis for the decision is quite specific:

361


Making Law of War Treaties

PROC. (March 1950), at 257; R. Speer, Let Pass Safely the Awa Manu, U.S. NAV. INST. PROC.
(April 1974), at 69; R. DINGMAN, GHOST OF WAR: THE SINKING OF THE AWA MARU AND
JAPANESE-AMERICAN RELATIONS, 1945-1995 (1997).

120. BLAIR, supra note 38, at 144.

121. The British returned to their World War I practice of decoy ships quickly. Between
October 1939 and March 1940, eight decoy ships were constructed in “utmost secrecy,”
according to the official history; ROSKILL, supra note 109, at 136. On the evening of May 31/June
1, 1941, U-107 attacked the British freighter Alfred Jones. Surfacing to aid its “survivors,” who
were “abandoning ship,” the U-107 was attacked by the vessel, which was a decoy ship. BLAIR,
supra note 38, at 297; K. WYNN, U-BOAT OPERATIONS OF THE SECOND WORLD WAR, Vol. I
(1997), at 89; J. ROHWER, AXIS SUBMARINE SUCCESSES OF WORLD WAR TWO (Rev. ed.,
1999), at 54. The latter argues that Alfred Jones was not a Q-ship, but an armed merchantman.
From the perspective of the U-boat commander endeavoring to comply with the visit and search
requirements of the 1936 Procés-Verbal, whether or not Alfred Jones was a decoy ship or an armed
merchantmen is moot. Less successful than they had been in World War I, the British Q-ships
were withdrawn from service. Roskill, supra, at 137; Rohwer, supra, at 54. The U.S. Navy's
Q-ship effort was equally brief; BEYER, supra note 44.

122. BLAIR, supra note 38, at 66, 68-69, 95-96, 111; ROSKILL, supra note 109 at 103, 104.

123. BLAIR, supra note 38, at 115, 117-118. British steps complicated the legal questions. On
August 26, 1939, before war began, the British Admiralty had assumed control of all British
merchant shipping; pre-war plans for utilizing decoy ships (Q-ships) brought the first deployment
in December 1939 (see note 121). Merchant ship guns were manned by trained seamen or
marines from the Admiralty’s Defensively Equipped Merchant Ship organization; TERRAINE,
supra note 33, at 244; ROSKILL, supra note 109, at 136-137, 363. In somewhat of an irony, a
British submarine officer, writing of the British submarine efforts of World War II, concluded
that the submarine “cannot observe international law when waging war against an enemy who
disregards it.” N. Gilbert, British Submarine Operations in World War II, U.S. NAV. INST. PROC.
(March 1963), at 74, 81.

124. Listing of further steps in the evolution must be limited due to space limitations.
Commencing May 24, 1940, U-boats were authorized to attack any ship, belligerent or neutral,
in British or French waters; Hitler extended the authority for unrestricted attack to 20° west
longitude on August 17, 1940; other steps came throughout the war. Restrictions on attack of
neutral combatant vessels in announced zones of operations, and merchant vessels outside zones
of operations, continued through much of the war. BLAIR, supra note 38, at 104, 115, 117-118,
161, 179, 308-309. A collateral issue is the requirement in the 1936 Procés-Verbal with regard to
rescue and safeguard of crew and passengers of vessels sunk. Regrettably, space limitations also
preclude discussion in this article. For the same reason, neither is it possible to discuss the
ancillary issue of murder of shipwreck survivors by submarine crews, as occurred during some
Japanese and German submarine operations during World War II.

125. TERRAINE, supra note 33, at 278; A. COCCHIA, THE HUNTERS AND THE HUNTED
(1958), at 3, 5, 7, 9, 13, 24.

126. MARS, supra note 87, at 28, 30, 33-34; WYNN, supra note 121, at 25.

127. MARS, supra note 87, at 70, 71, 73; Gilbert, supra note 123, at 74. This authorization
was cited by the International Military Tribunal in its acquittal of Admirals Raeder and Dénitz;
see text at note 24.

128. ROSKILL, supra note 109, at 439.

129. Gilbert, supra note 123, at 77; MARS, supra note 87, at 124.

382


M. Cherif Bassiouni

1, _ wilful killing (I-IV Conventions);

2. torture or inhuman treatment, including biological experiments (I-IV
Conventions);

3. wilfully causing great suffering or serious injury to body or health (I-IV
Conventions);

4. extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly (I, II, and IV
Conventions);

5. compelling a prisoner of war or a protected person to serve in the forces of
the hostile Power (III and IV Conventions);

6. _ wilfully depriving a prisoner of war or a protected person of the rights of fair
and regular trial prescribed in the Convention (III and IV Conventions);

7. unlawful deportation or transfer of a protected person (IV Convention);
8. unlawful confinement of a protected person (IV Convention); and

9. taking of hostages (IV Convention).

To be considered a “grave breach,” each of the categories listed above must be
committed against persons or property protected by the relevant conventions.

Common Article 3 of the four Geneva Conventions does not categorically
establish that “violations” of that provision are war crimes, but scholars have
interpreted common Article 3 violations as constituting war crimes.!4 Article
4(2) of Protocol II, expanding on Article 3 of the four Geneva Conventions,
provides:

Without prejudice to the generality of the foregoing, the following acts against
the persons referred to in paragraph | are and shall remain prohibited at any time
and in any place whatsoever:

(a) violence to the life, health and physical or mental well-being of persons, in
particular murder as well as cruel treatment such as torture, mutilation or any
form of corporal punishment;

(b) collective punishments;

(c) taking of hostages;

(d) acts of terrorism;

(e) outrages upon personal dignity, in particular humiliating and degrading
treatment, rape, enforced prostitution and any form of indecent assault;

(6) slavery and the slave trade in all their forms;

(g) pillage; and

(h) threats to commit any of the foregoing acts.

13


Making Law of War Treaties

If formal war eventuates between the United States and Japan, “Instructions for
the Navy of the United States Governing Maritime and Aerial Warfare, May
1941,” will be placed in effect but will be supplemented by additional
instructions, including authority to . . . [Commander-in-Chef, Asiatic Fleet] to
conduct unrestricted submarine and aerial warfare against Axis shipping within
that part of the Far East area lying south and west of a line joining Latitude 30
North Longitude 122 East, and Latitude 7 North 140 East, which you will
declare a strategical area. . . .154

The following day, a general war alert was sent to all naval commanders.
When Japan attacked Pearl Harbor on December 7, Admiral Stark spoke by
telephone with President Roosevelt at 2:28 p.m. Washington time. Roosevelt
directed Admiral Stark to execute the “agreed orders” to the Army and Navy
for the event of an outbreak of war in the Pacific. Stark issued his order at 5:52
p.m., Washington time, on December 7.155 The order to conduct unrestricted
submarine warfare against Japan was not amended to include German and Ital-
ian naval shipping when Germany and Italy declared war against the United
States four days later.!5° The first Japanese loss—merchant ship or combat-
ant—to a U.S. submarine was the 8,663-ton Atsutusan Maru, sunk by USS
Swordfish (SS-193), on December 16, 1941.!57 Japan merchant ship losses to
U.S. submarines in the following years would reach 1,150.5 ships for a total of
4,859,634 tons, more than were sunk by naval aviation, U.S. and Allied air
forces, mines, and surface ship actions combined. 158

There were various reasons for the U.S. decision. By the end of the 1930s,
the United States was constructing and deploying fleet submarines with the
range to reach Japan. This capability did not exist at the time of the Washing-
ton Naval Conference or London Naval Conference.!59 As indicated, attack of
Japanese lines of communications was a long-standing part of U.S. war plans.
To paraphrase an adage, the prospect of war wonderfully concentrates the
mind. Issues raised by U.S. submarine officers in open source, professional mili-
tary journals during the 1920s and 1930s about the ambiguities of the 1922
Root Resolution and Article 22 of the 1930 London Naval Treaty had to be
faced by naval planners. As the semi-official U.S. submarine history concluded:

[Rlealistic thinking demanded recognition . . . that a nation’s economic forces
and its fighting forces bear the inseparable relationship of Siamese twins. Any
reduction of a nation’s economic resources weakens its war potential. Sever the
commercial arteries of a maritime nation and its industrial heart must fail, while
the war effort expires with it. ... Armed or not .. . merchantmen were in effect
combatant ships. . . .160

364


The Rome Statute on the International Criminal Court

“the United States Proposal,” and the “opt-in” and “case-by case” consent re-
gimes.38 These proposals ranged from universal jurisdiction for the ICC pro-
posed by Germany and automatic jurisdiction using broad bases of jurisdiction
by South Korea at one end of the spectrum to the restrictive mandatory con-
sent of all interested States preferred by certain other delegations. The Bureau
discussion paper tried to narrow the options, as did its subsequent proposal,
while still retaining alternatives.29 The final package struck a compromise.
Nevertheless, the then entrenched positions of some delegations proved to be
irreconcilable. The result was that the consensus approach to adoption was
thwarted and an unrecorded vote in plenary was called for late on July 17,
1998. The Statute was adopted by 120 in favour to 7 against with 21 abstentions.
Article 12 as adopted is not as restrictive as it could have been. Yet it still re-
quires, where the prosecutor acts proprio motu or where States, rather than the UN
Security Council acting under Chapter VII of the Charter, refer a situation,
that either the territorial State where the crime was committed or the State of
nationality of the accused be Parties. If non-State Parties are involved, they
may accept the exercise of jurisdiction by the ICC for the crime in question.

The German Proposal. The German proposal was based on the rationale that
States individually have a legitimate basis at international law to prosecute the
core crimes listed in Article 5 on account of universal jurisdiction. It was
submitted that the ICC should have the same capacity as contracting States.
This would have been appropriate for a permanent International Criminal
Court being founded for the good of the international community of States as a
whole. The proposal was contained in Article 9 (1), further option, of the Draft
Statute before the CW.

It is a well-established rule of customary‘ and conventional*! international
law that certain criminal conduct is against the universal interest, offends uni-
versal conceptions of public policy, and is universally condemned. Thus, the
perpetrators are hostis humanis generis, enemies of humankind. Any State ob-
taining custody over them has a legitimate ground to prosecute in the interest
of all States on account of the universal basis of jurisdiction over the offence.
States have “the legal competence and jurisdictional competence to define and
punish particular offences, regardless of whether that State had any direct con-
nection with the specific offences at issue.”4? It appears to merge jurisdiction
over the person with jurisdiction over the offence. In this way, such serious
and heinous crimes will not escape justice by falling into a jurisdictional vac-
uum. There is no requirement that any other State or States involved in some
way through territorial location of the crime or nationality of the accused or

544


Legal Implications of NATO’s Armed Intervention in Kosovo

phased air campaign in Yugoslavia” unless the parties agreed to implement the
terms of Security Council Resolution 1199 of September 23. However, within
the next three days successful diplomatic efforts resulted in Yugoslavia’s agree-
ment with the OSCE for the establishment of a verification mission in
Kosovo?! and another agreement between Yugoslavia and NATO providing
for the establishment of an air verification mission over Kosovo to complement
the OSCE verification mission.22. The United States also succeeded in diplo-
matic negotiations under which Yugoslavia agreed on a framework for a politi-
cal settlement of the conflict.23

Because of these developments and visits to Belgrade by NATO Secretary
General Javier Solana, U.S. envoys Richard Holbrooke and Christopher Hill,
and NATO Generals Claus Naumann and Wesley Clark, NATO called off the
air strikes.24 Yugoslavia also agreed on limits on the number of Serbian forces
in Kosovo and on the scope of their operations.?>

Acting again under Chapter VII, on October 24 the Security Council
adopted another resolution?¢ reiterating the terms of the two earlier resolu-
tions, endorsing and supporting the verification agreements signed between
Yugoslavia and the OSCE and NATO, respectively, and demanding, inter alia,
that both the government of Yugoslavia and the Kosovo Albanians “comply
fully and swiftly” with the terms of those resolutions and “cooperate fully” with
the OSCE and NATO verification missions.2? A special NATO military task
force was established to assist with emergency evacuation of Kosovo forces if
they were put at risk by renewed conflict; it was situated in Macedonia.

Subsequently, on November 12, the Secretary General reported to the Se-
curity Council that the October agreements had “contributed towards defusing
the immediate crisis situation in Kosovo and [had] created more favourable
conditions for a political settlement.”?8 In his report, the Secretary General ad-
dressed the military, security, humanitarian and human rights situation in
Kosovo, and envisaged that the UN’s role in Kosovo, “will focus on humanitar-
ian and human rights issues.”2?

Also through the Secretary General, the OSCE reported that its verification
mission would be composed of up to 2,000 unarmed verifiers and among the
mission’s tasks would be “to supervise elections in Kosovo in order to ensure
their openness and fairness.”3° Similarly, the Secretary General of NATO
noted in his October 27 letter to the UN Secretary General that the North At-
lantic Council had

decided to maintain the activation order for the limited air response on the
understanding that execution would be subject to a further Council decision and

316


Paul C. Szasz

Immunities of the United Nations, which in respect of the courts and other au-
thorities of States parties (but not of international tribunals) provides that:

Privileges and immunities are granted to [officials] [experts] in the interests of
the United Nations and not for the personal benefit of the individuals
themselves. The Secretary-General shall have the right and the duty to waive
the immunity of any [official] [expert] in any case where, in his opinion, the
immunity would impede the course of justice and can be waived without
prejudice to the interests of the United Nations.87

Applying this principle to the military members of UN forces and to civilian
members of these and other UN operations, such persons are to be made avail-
able to a UN tribunal when this can be done without prejudice to the interests
of these forces and operations. In addition, the Secretary-General has decided
that it is also his duty to act equitably as between the tribunals’ prosecutor and
the defendants, so that assistance rendered to one side (e.g., in interviewing
potential witnesses) must equally be rendered to the other. That is, the Secre-
tary-General will, in appropriate cases, waive any conceptual immunity, and
both authorize and direct cooperation. Presumably, should a tribunal not be
satisfied with the Secretary-General’s cooperation, it could complain to the Se-
curity Council.

In the case of a military member of a force contingent provided by a UN mem-
ber State, the latter must evidently give its consent, whether or not the soldier is
one still in active service with the United Nations or has returned to his home
country. These States are under an obligation to cooperate with the tribunals
pursuant to their respective Statutes, which are binding on member States under
Charter Articles 25 and 48.1.88 Nevertheless, to the extent that a UN tribunal
requires information or testimony from such personnel that was acquired while
in UN service, the Secretary-General’s authorization is also required.

Possible objections to full cooperation with a tribunal’s demands can derive
from several considerations: safety of the potential witness (e.g., if s/he continues
to serve in an area controlled by associates of an accused); security and effective-
ness of the mission; and the confidentiality of the internal affairs of the United
Nations (e.g., the process by which an operational decision was reached).

In practice, the United Nations has allowed military and civilian personnel
to be interviewed by the prosecutor and/or by defense counsel and to testify be-
fore the tribunals. For example, General Dallaire, Commander of the UN Ob-
server Mission Uganda-Rwanda (UNOMUR), who was a Canadian officer
seconded to the United Nations and thus served as a UN staff member, was
first permitted to be interviewed by representatives of both the prosecutor and

523


The Initiation, Suspension, and Termination of War

war. When a treaty of peace is acclaimed as a “final” settlement, and statesmen.
indulge in high-sounding prognostications as to its power of endurance, it is ad-
visable to recall that most wars commence between parties that have earlier en-
gaged themselves in treaties of peace. The life expectancy of an average treaty
of peace does not necessarily exceed the span of a generation or two. Each gen-
eration must work out for itself a fresh formula for peaceful coexistence.

ii. Peace Preliminaries

Prior to the entry into force of a definitive treaty of peace, the parties may
agree on preliminaries of peace. Such a procedure generates the following results:

a. In the past, the peace preliminaries themselves might have brought hostil-
ities to an end,48 whereas the ultimate treaty of peace would focus on the pro-
cess of normalizing relations between the former belligerents. Nowadays, the
function of peace preliminaries of this type will usually be served by an armi-
stice agreement (see infra, (b)).

b. At the present time, peace preliminaries generally represent a mere
“pactum de contrahendo on the outline of a prospective peace treaty.”49 Unless
and until the projected treaty of peace actually materializes, the final curtain is
not drawn on the war. As an illustration, one can draw attention to the two
Camp David Framework Agreements of 1978 for Peace in the Middle East and
for the Conclusion of a Peace Treaty between Egypt and Israel.5° Here the par-
ties agreed on certain principles and some specifics, designed to serve as guide-
lines for a peace settlement. However, as mentioned, the war between Egypt
and Israel was terminated only by dint of the Treaty of Peace (concluded, after
further negotiations, in 1979).

iii. The Legal Validity of a Treaty of Peace

As long as war was regarded as a lawful course of action in international af-
fairs, a treaty of peace was considered perfectly valid, even when imposed on
the defeated party by the victor as an outcome of the use of force.>! As soon as
the use of inter-State force was forbidden by international law, some scholars
began to argue that a treaty of peace dictated by an aggressor ought to be viti-
ated by duress.52 This doctrinal approach has been endorsed in Article 52 of
the 1969 Vienna Convention on the Law of Treaties:

A treaty is void if its conclusion has been procured by the threat or use of force in
violation of the principles of international law embodied in the Charter of the
United Nations.°3

138


W. Hays Parks

Gone were the piracy provisions. But in avoiding the differing British and
American views, which in turn failed to consider issues such as the definition of
merchant ship, the status of armed merchant ships,!° and the flying of false
flags, the participants had not resolved the overall problem. The rules had
been revised with the hope that French objections to ratification of the 1922
Submarine Treaty could be overcome. But concern was expressed by British
First Sea Lord Sir Charles E. Madden who, upon reading the revised rules,
commented that “I am strongly in favor of supporting the French view [op-
posing the rules]. We will certainly wish one day to use submarines in a legiti-
mate way against commerce.”!°! The official British naval historian was less
charitable, concluding that “As it was plainly impossible for submarines and
aircraft to conform to the Hague Conventions applicable to surface warships
this now appears to be an example of legalistic considerations obscuring prac-
tical realities.”102

The London Conference concluded on April 22, 1930, with a treaty of lim-
ited parties (only Great Britain, Japan and the United States) and of limited du-
ration (it expired December 31, 1936, except for its rules regulating submarine
warfare, which were without time restriction). The repetition in its submarine
warfare rules of the failure of the Washington submarine treaty to clarify the
ambiguities with respect to “merchant ship” doomed any chance of their suc-
cess.!03 Agreement as to many of the London Naval Treaty’s key provisions
came at what ultimately proved a very high price. Although Japan gained many
of its demands, the agreement was roundly condemned by the Command Fac-
tion of the Imperial Navy, and was a factor in Japan’s movement down the slip-
pery slope to World War II.!0+

Germany, uninvited to the London Naval Conference, continued its prog-
ress in clandestine U-boat development. !95

World Disarmament Conference. On February 2, 1932, after many years of
preparatory sessions, the World Disarmament Conference convened in
Geneva. The war clouds of World War II already were forming on the distant
horizon. On September 18, 1931, Japanese and Chinese troops engaged in
combat at Mukden. On January 28, 1932, only days before the Geneva
disarmament conference, Japanese atrocities in its attack on Shanghai received
worldwide media coverage.!° Its many issues are beyond the scope of this
paper. It adjourned sine die on June 11, 1934, without alteration of the status
quo with regard to submarines!

The failure of the World Disarmament Conference coincided with, or was
immediately followed by, a number of events that reduced the likelihood of.

355


VI

Legal Issues of Multinational Military Units
Tasks and Missions, Stationing Law, Command and Control

Dieter Fleck

ev HIS LONG-STANDING LEGAL CAREER, Professor Leslie C. Green has al-
ways shown a very personal interest in new topics and developments, in
particular with regard to European affairs. The following considerations on cur-
rent legal issues surrounding multinational military units are, therefore, con-
tributed to this volume, published in his honor. Multinational military units
may lend a new quality to the European unification process by helping make it
irreversible in the fields of security and defense. This process may contribute to
the continuity and predictability of international relations. It will-promote a
common security and defense identity which in a very distinct way may in-
crease the security of the nations involved. Although such trends are still
unique, even in Europe today, they might well prove significant beyond the
North Atlantic Alliance in the years to come.

Multinational military units can facilitate modernization despite dwindling
resources. Due to force and budget reductions in certain participating coun-
tries, there have already been several cases of major formations no longer being
sustainable on a national scale. Multinationality ensures the States concerned
continue participating in military operations at corps level. What matters
more, however, is a new chance to deepen cooperation within the Alliance and


Preface

God grant that men of principle shall be our principal men.

Thomas Jefferson

S ome years ago, I was fortunate to be posted as the Air Force judge advo-
cate on the faculty of the United States Naval War College. It was fasci-
nating and fulfilling work in a truly joint environment, and I was blessed with a
dynamic group of colleagues in the Oceans Law and Policy Department, then
led by a living legend in the field of operational law, Professor Jack Grunawalt.
The year of my arrival also marked Professor Leslie Green’s appointment to the
first of his two terms as holder of the Stockton Chair of International Law. Al-
though I knew his work, for it would be difficult to participate seriously in the
law of war field and not be familiar with his voluminous writings, I had never
met Professor Green. As we awaited his arrival at the College, advance billing
portrayed him as a brilliant and rigorous scholar of international repute, one
charged with irrepressible vitality and unafraid of controversy. We were not to
be disappointed.

I will leave it to Bill Fenrick’s introductory contribution to recount Leslie
Green’s impact on the study and application of international law over the de-
cades. Few know him as well as Bill, who has benefited from the Professor’s
mentorship over the years. However, I would be remiss if—as both a student
and faculty alumnus of the Naval War College—I failed to highlight the extent
to which he contributed to the revitalization of international law at this institu-
tion long renowned for its study of the subject. He co-edited two volumes of the
acclaimed International Law Studies (Blue Book) series, completed the second
editions of his Essays on the Modern Law of War and The Contemporary Law of
Armed Conflict, and represented the War College at conferences spanning the
globe. Perhaps most importantly, he shared his great wisdom on the legal as-
pects of conflict with the many hundreds of senior military officers that at-
tended the College during his tenure. Those officers have since gone on to such
momentous duties as commanding major surface combatants and air wings,


International Criminal Court

24. The morality and political utility of abortion and the death penalty are only two of many
examples of such disagreement in “enlightened” countries concerning matters that many would
regard as aspects of “human rights.”

25. Convention on the Prevention and Punishment of the Crime of Genocide, art. V, 78
UN.TS. 277.

26. Id., art. VI.

27. For a fuller analysis of this and many other oddities of the arrangements under which a
tribunal was established at The Hague to try people involved in atrocities in the former
Yugoslavia, see Rubin, Dayton and the Limits of Law, supra note 7. The weaknesses of the
tribunal’s system were apparent from the moment of its creation. See Rubin, An International
Criminal Tribunal for Former Yugoslavia, supra note 7.

28. U.N. CHARTER arts. 2(3) and 2(4). The Charter is a treaty, and these provisions are
normally considered binding as a matter of international customary law. See Military and
Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility,
Judgment, 1984 LCJ. 392, 425, (para. 76); Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 1986 I.CJ. 14.38; and
decisions 3, 4, 5, 6, and 8 in the latter case, holding American violations of “customary
international law” to exist in various acts which also violated Articles 2(3) and 2(4) of the U.N.
Charter.

29. A common evasion is when authority over territory is involved and both sides regard the
dispute as internal to themselves. An example is the Falklands/ Malvinas war between Argentina
and the United Kingdom. See Rubin, Historical and Legal Background of the Falkland/Malvinas
Dispute, in THE FALKLANDS WAR 9-12 (Alberto Coll & Anthony Arend eds., 1985). That is
probably the reason why Iraq categorized Kuwait as legally part of Iraq before the invasion of
1990 that led to the Gulf War of 1991.

30. CICERO, DE RE PUBLICA AND DE LEGIBUS (C.W. Keyes, trans., Loeb Classical Library,
1928, 1977), at 210 (Latin)/211 (English).

31. General Orders No. 100 promulgating the Instructions for the Government of Armies of
the United States in the Field, in Schindler & Toman, supra note 8, at 3.

32. Williams v. Bruffy, 96 U.S. 176, 186, 24 L-Ed. 716, 718 (1877). To those reasons can be
added the importance of maintaining a sense of moral superiority among the fighters’
constituents and the constituents of allies, maintaining discipline among the troops themselves,
together with many other advantages.

438


Paul C. Szasz

The humanitarian rules of law of armed conflict apply to the United Nations as of
tight, and they must be complied with in all circumstances by United Nations
Forces which are engaged in hostilities.

The rules referred to in the preceding paragraph include in particular:

(a) the rules pertaining to the conduct of hostilities in general and especially
those prohibiting the use or some uses of certain weapons, those concerning
the means of injuring the other party, and those relating to the distinction
between military and non-military objectives;

(b) the rules contained in the Geneva Conventions of August 12, 1949;
(c) the rules which aim at protecting civilian personnel and property.

It might also be noted that the 1994 Convention on the Safety of United
Nations and Associated Personnel, which was adopted by the General Assem-
bly, explicitly excludes from its coverage “a United Nations operation autho-
tized by the Security Council as an enforcement action under Chapter VII of
the Charter of the United Nations . . . to which the law of international armed
conflict applies.”43 This implies that the Assembly appeared to consider that
THL applies to at least some Chapter VII operations.

Powers of the Security Council

The question might be asked whether the General Assembly or the Security
Council could exempt the United Nations and its forces from any of the provi-
sions of IHL.

As to the General Assembly, the answer would appear to be negative, for all
it may do under Charter Articles 10 and 11 is make recommendations to mem-
ber States. The Security Council can, of course, make decisions that are bind-
ing on members by Charter Article 25 and, for decisions made by the Council
under Chapter VII, also by Article 48.1. This, then, brings Charter Article 103
into play, under which in case of conflict between the obligations of a member
under the Charter and their obligations under any other international agree-
ment, the former—and these certainly include binding decisions of the Coun-
cil—prevail. Thus, it would seem that the Council could supersede merely
treaty-based THL obligations.

Whether and to what extent Article 103 also applies to international cus-
tomary law is not clear from the wording of that provision, though in general it

513


Antecedents of the Rome Statute of the ICC Revisited

next major advance.?! Article 11 of that instrument required the German au-
thorities to apprehend and surrender to the Allies all persons from time to time
named or designated by rank, office or employment by the Allies as having
been suspected of having committed, ordered or abetted war crimes or analo-
gous offenses. This was followed by the Agreement for the Prosecution and
Punishment of Major War Criminals of the European Axis, signed at London
on August 8, 1945.22 The precedent of the Treaty of Versailles was not being
followed, and the prohibition of German law on the extradition or surrender of
German nationals leading to their trial in a foreign court was made inoperative.
The unconditional surrender of Germany made this possible.

It is unnecessary here to go over the story of the London Agreement and the
Charter of the International Military Tribunal for the Far East, Tokyo, January
19, 1946,23 and of the Niimnberg and Tokyo Tribunals. They set in motion pow-
erful trends for the establishment of a permanent international criminal tribu-
nal to avoid the creation of ad hoc tribunals in the future. The first major move
in that direction accompanied the drafting of the Convention on the Preven-
tion and Punishment of the Crime of Genocide of December 9, 1948.24 Article
VI of that Convention provides:

Persons charged with genocide or any of the other acts enumerated in article III
[conspiracy, incitement, attempt or complicity regarding genocide] shall be tried
by a competent tribunal in the State in the territory of which the act was
committed, or by such international penal tribunal as may have jurisdiction with
respect to those Contracting Parties which shall have accepted its jurisdiction.25

When the General Assembly adopted that Convention and opened it for
signature, it also adopted Resolution 230 (II) B. Here it invited the newly
formed International Law Commission to study the desirability and possibility
of establishing an international judicial organ for the trial of persons charged
with genocide or other crimes over which jurisdiction will be conferred upon
that organ by other international agreements. It requested the International
Law Commission to pay attention to the possibility of establishing a Criminal
Chamber of the International Court of Justice. That resolution must be
regarded as the starting point of the process that led to the Rome Statute of
1998. Its point of departure was the work accomplished during the period of the
League of Nations and the 1945 activities of the victorious Allies, but future
developments were unrestricted.?6

Atits first session in 1949, the International Law Commission held a prelim-
inary discussion. It rejected proposals to postpone the matter to the following

394


W. Hays Parks

U-boat; and ordering them not to subject their ships to visit and search, but in-
stead to ram and sink the challenging U-boat.*3 Some belligerent merchant
vessels were converted into heavily armed decoy ships, displaying false flags,
known as “Q-ships.” The decoy ship posed as a neutral merchant vessel until
the unsuspecting U-boat approached, having ordered the merchant ship to
stop to be searched. At the submarine’s most vulnerable time, the Q-ship crew,
members of the Royal Navy dressed in civilian clothing to disguise their true
identity, would open fire with heavy guns from previously concealed posi-
tions.44 The issues had been identified, viz., (a) when does an enemy merchant
ship forfeit its noncombatant status, and (b) what rules should apply to subma-
tines in light of the changes brought about by (a)?45 Failure to address these
critical issues in the post-World War I series of multilateral negotiations was a
primary cause for the subsequent failure of the 1936 Procés-Verbal regulating
submarine warfare.

The second issue was U-boat disposition. Germany surrendered its High
Seas Fleet, including 176 U-boats. Another seven foundered en route to Great
Britain. Ten older, unseaworthy U-boats and 149 boats under construction
were broken up, and German submarine salvage vessels and docks were turned
over to the Allied and Associated Powers.4® Their disposition could decide the
future of submarine warfare.

Paris Peace Conference. In anticipation of the Paris Peace negotiations, the
American Naval Planning Section London considered the potential use of
submarines. In a memorandum completed only days before the end of the war,
its authors reached several conclusions with regard to the issues at hand and
future use of submarines. The submarine, the authors asserted, “has an
undoubted right to attack without warning an enemy man-of-war or any vessel
engaged in military operations and not entitled to immunity as a hospital ship,
cartel ship, etc.”#” After recognizing the limitations of submarines in visit and
search, and the “inherent right” of merchant ships to be armed, the authors
stated that “Submarine operations in the present war may be considered to be
typical of what may be expected in future wars, when success is dependent on
the result of commerce. . . . It is interesting to note the several phases of
submarine operations in the present war as illustrating the tendency to develop
maximum efficiency regardless of legal restrictions.”*®

Continuing, the memorandum noted the success of German U-boat opera-
tions ‘against Great Britain, “the greatest naval power as well as the greatest
mercantile power in the world.” It considered the value of submarines in a fu-
ture conflict to other naval powers, noting Japan’s potential submarine threat

345


International Law and the Conduct of Military Operations

complex mix of the various United Nations mandates and the right of self-de-
fence of the various contributor States. Given the military and political com-
plexity of such an operation, this additional level of legal complication would
have been far from helpful.

Although enthusiasm in the United States for United Nations involvement
in armed conflicts has diminished since the Somalia conflict, and the number
of United Nations peacekeepers is unlikely to climb back to its peak of
1994-1995 in the near future, it is also unlikely that the United Nations will re-
turn to its comparatively passive role of the 1970s and 1980s. The position of
the Security Council in the international legal system as a body which can au-
thorize States to use force in circumstances where they could not otherwise
lawfully do so makes it too useful for that. The other options—disregarding the
law or attempting to develop new customary law rules permitting the use of
force—are problematic. The first course entails abandoning the advantages
which legitimacy bestows; the second would encounter serious opposition and
would be very much a mixed blessing, since rules developed for the benefit of
one State or group of States are, of course, equally available to others.

One further development requires comment. A majority of modern conflicts
occur within a State, or, at least, have their origins in an internal conflict, even
if they subsequently involve other States. The law on resort to force tradition-
ally had nothing to say about internal conflicts. Rebellion did not violate inter-
national law but nor was it the exercise of a right under international law,
except where force was used to vindicate a right to self-determination, some-
thing which until recently was assumed to be confined to colonial and
quasi-colonial cases. Similarly, international law left the incumbent govern-
ment free to employ force against any challenge to its authority. Article 2(4) of
the United Nations Charter prohibited the use of force by States only in their
international relations, not in their dealings with their own peoples. Interna-
tional law did prohibit assistance to rebels and, once the situation in a State
reached the level of civil war, to governments. In practice, however, the latter
part of that rule was almost entirely disregarded and States continued to pro-
vide military assistance to governments even after those governments had lost
control of most of the territory and population of their States.

There has been no formal change in the law. There are, however, signs of a
change in practice in the way that the law is interpreted and applied. First, the
Security Council has been willing to treat the use of force within a State as giv-
ing rise to a threat to international peace and security and to take action in re-
spect of it. For example, in the early stages of the conflict in what was then still
treated as a single Yugoslavia, the Council imposed an arms embargo in

188


Appendix

Force and Law in the International Community (review article). 27 Columbia
Journal of Transnational Law, 1989, 483-504.

Les Dimensions Internationales de Droit Humanitaire (review article). 19 Re-
vue de Droit de l'Université de Sherbrooke, 1989, 1-7.

Superior Orders and Command Responsibility. 27 Canadian Yearbook of Inter-
national Law, 1989, 167-202.

The Judaic Contribution to Human Rights. 28 Ibid., 1990, 3-28.

The Intersection of Human Rights and International Criminal Law. 2 Finnish
Yearbook of Infemational Law 1991, 153-96; Cotier and Eliadis, Intema-
tional Human Rights Law: Theory and Practice, 1993, 231-276.

What One May Do in Conflict—Then and Now. In Delissen and Tanja, Inter-
national Humanitarian Law: Challenges for the Next Ten Years, 1991,
269-95.

Acts and Weapons Forbidden In Bello, In Lex Jus Libertas, 1990, 355-389
(Constantopoulos Festschrift).

Traq, the UN and the Law. 29 Alberta Law Review, 1991, 560-83.

Canadian Perspectives. In National Implementation of International Humanitar-
ian Law. M. Bothe et al., eds., 1990, pp. 21-4, 53-5, 89-96, 107-8, 128-30,
159-60, 171-2, 209-11.

The Gulf “War,” the UN and the Law of Armed Conflict. 28 Archiv des
Vélkerrechts, 1991, 369-405.

No Distant Millenium (review article). 36 McGill Law Journal, 1991, 244-256.

Soviet Constitutional Developments. 1 Constitutional Forum, 1990, 57.

International Law 1990-1991: Reunification of Germany; the Gulf and the
Law. 85 Proceedings of the American Society of International Law, 1991
563-565, 579-580

Die Bundesrepublik Deutschland und die Ausiibung der Strafsgerichtsbarkeit.
5 Humanitdres Vélkerrecht-Informationschriften, 1992, No.1, 32-36.

The Environment and the Law of Conventional Warfare. 29 Canadian Year-
book of Intemational Law, 1991, 222-237.

The German Federal Republic and the Exercise of Criminal Jurisdiction, 43
University of Toronto Law Journal, 1993, 207-215.

The Defence of Superior Orders in the Modern Law of Armed Conflict. 31 Al-
berta Law Review, 1993, 320-333.

Group Rights, War Crimes and Crimes against Humanity. 1 International Jour-
nal of Group Rights, 1993, 107-136.

Superior Orders and the Geneva Conventions and Protocols. In Fox and
Meyer, 2 Armed Conflict and the New Law: Effecting Compliance, 1993,
195-202.

577


Anthony D’Amato

Coherence is a virtue not just in legal definitions, but in enabling us to think
about the relation of any given term to all nearby terms. Ken Kress writes:

An idea or theory is coherent if it hangs or fits together. If its parts are mutually
supportive, if it is intelligible, if ic flows from or expresses a single, unified
viewpoint. An idea or theory is incoherent if it is unintelligible, inconsistent, ad
hoc, fragmented, disjointed, or contains thoughts that are unrelated to and do
not support one another.3

Coherence is important because it relates to the core responsibility of the
judicial enterprise.t Ronald Dworkin has argued forcefully for the overarching
imperative of “law as integrity,”> which

requires our judges, so far as this is possible, to treat our present system of public
standards as expressing and respecting a coherent set of principles, and, to that
end, to interpret these standards to find implicit standards between and beneath
the explicit ones.6

Professor Dworkin’s reference in this quotation to a “coherent set of principles”
is later expanded:

Integrity demands that the public standards of the community be both made and
seen, so far as this is possible, to express a single, coherent scheme of justice and
fairness in the right relation.?

These general propositions take on special significance when applied to the
judicial definition of genocide, the world’s most heinous crime. Genocide is an-
cient in fact and new in definition. In Biblical times there were acts of deliber-
ate destruction of national, ethnical, racial, or religious groups as such. The
Turkish slaughter of Armenians in 1915 is now widely regarded as genocide.
But the precise term was coined by Raphael Lemkin in 1944.8 Lemkin used the
new word loosely, including within its scope attacks on political and social in-
stitutions, attacks on culture and language, and even attacks on national feel-
ings. His use of the word was so broad that it did not necessarily include the
killing or harming of persons.

However, when the horrors of the Holocaust gradually became known to the
public at the end of the Second World War, the General Assembly of the United
Nations passed a resolution affirming genocide to be a crime under international
law. Included in the 1946 resolution were acts of destruction against groups on
“religious, racial, political, or any other grounds.”? Although the UN’s definition.
was narrower than Lemkin’s, the inclusion of “political” and “or any other”

121


Antecedents of the Rome Statute of the ICC Revisited

Mankind.>! The General Assembly, in Resolution 51/160, December 15, 1996,
drew the attention of States participating in the preparatory committee on the
establishment of the International Criminal Court to the relevance of the Code
to their work. However, although the Preparatory Committee had the draft
Code before it, it made no relevant recommendation and there is no reference
to the Code as such in the Rome Statute.>?

That is the background against which the United Nations Diplomatic Con-
ference of Plenipotentiaries on the Establishment of an International Criminal
Court worked.

Some Afterthoughts

This historical recital of the complicated events leading up to the Rome
Conference goes a long way in explaining the difficulties encountered by that
Conference, its unfinished business, and the defects, both of form (lack of con-
cordance in the language versions and many presumed typographical errors in
the “authentic” text) and of substance.

In the 1950s, the General Assembly, correctly, requested the International
Law Commission for its opinion on the feasibility and advisability of establish-
ing a permanent international criminal court. Equally correctly, it entrusted
the work of preparing the statute of such a court to ad hoc intersessional com-
mittees composed of the representatives of States. The work of those ad hoc
committees formed the basis for the report of the Secretary-General leading to
the establishment by the Security Council of the Yugoslav Tribunal, and indi-
rectly also to that of the Rwanda Tribunal. Preparing the constituent instru-
ment of an international organization is neither progressive development of the
law nor its progressive codification. It is a highly political act, requiring, of
course, both political and legal inputs. In the case of an international criminal
court, at least three branches of law are relevant—international law, criminal
law, and military law, this latter both from the aspect of the internal discipline
of the armed forces (chain of command) and from the point of view of military
criminal law as such. The application of a rule of criminal law by a court-martial
can be very different from the application of that same rule by a civil criminal
court.

In 1948 the General Assembly also correctly linked the Convention on the
Prevention and Punishment of the Crime of Genocide with the eventual estab-
lishment of an international criminal court, without prejudice to the general
international responsibility of a State in the event of breach by the State of its
obligations under that Convention, and without prejudice to the obligation

404


W. Hays Parks

As was the case at the Washington Naval Conference, Germany was not in-
vited to participate in the Geneva Naval Conference. It remained busily en-
gaged in clandestine rearmament, including submarine development.

London Naval Conference. Several events occurred between the 1927 Geneva
Disarmament Conference and the 1930 London Naval Conference that would
color the approach to the latter. On March 4, 1929, Herbert Hoover succeeded
Calvin Coolidge as President. A Quaker, Hoover vowed to stop the naval arms
race. Three months later the Labor Party took office in Great Britain. There
followed informal discussions between the two new governments. On June 24,
1929, British Prime Minister Ramsay MacDonald announced acceptance of
naval parity with the United States, canceling work on two 10,000-ton cruisers
and three submarines. In subsequent Anglo-American talks, the United States
agreed to parity with the British with regard to submarines, provided
agreement could be reached with regard to cruisers. On October 7, 1929, the
British extended invitations to France, Italy, Japan and the United States to
participate in a conference on naval disarmament in London to address
categories of ships not covered by the Washington Treaty. The invitation was
accepted, though not entirely as the British had hoped, and the conference
convened on January 21, 1930.9!

In many respects the parties were back to square one. The Washington
Treaty’s ten-year capital ship building holiday would expire at the end of 1931,
and Great Britain, Japan, and the United States each were considering new
battleship construction. The period was one of intense naval rivalry between
France and Italy, while the former also was taking a number of steps to secure
itself against the threat posed by the resurrection of Germany.2 The Ameri-
cans and British, having begun the process of settling the differences that were
the hallmark of their naval rivalry during the 1920s, proceeded with a mutual
interest in continuing the provisions of the Washington Naval Treaty for a pe-
tiod of five years, and extending its tonnage ratio to cruisers. As was true in
Washington, delegation debates were heated, with Great Britain and the
United States siding against Japan.9>

On February 11, 1930, the First Lord of the Admiralty offered British argu-
ments for abolition of the submarine, which included “the general interests of
humanity”; the fact that the submarine was primarily an offensive rather than
defensive weapon (to counter a long-standing French argument to the con-
trary);°4 the contribution such a move would make towards disarmament and
world peace; the financial relief that would be possible through its prohibition;
and the arduous conditions under which submarine crews had to serve.°> He

353


Ronald St. J. Macdonald

and clarifies existing principles of the Charter or existing principles of interna-
tional customary law, it means the majority of States consider the resolution’s
interpretation to be representative of the current opinio juris on the subject.>8
Furthermore, through the activity of the General Assembly, developing coun-
tries, which represent the majority of the members, have been able to introduce
new concepts and create new standards of international law, thereby positively
contributing to its expansion from a European-centered system to a more
widely-based universalist system.39

In the Nicaragua case, the International Court of Justice accepted the value
of General Assembly resolutions: “This opinio juris [regarding principles of in-
ternational customary law] may, though with all due caution, be deduced from
inter alia . .. the attitude of the states towards certain General Assembly resolu-
tions. ... The effect of consent to the text of such resolutions cannot be under-
stood as merely that of ‘reiteration and elucidation’ of the treaty commitments
undertaken in the Charter. On the contrary, it may be understood as an accep-
tance of the validity of the rule or set of rules declared by the resolution by
themselves.”40

General Assembly Resolutions Carrying Erga Omnes Principles. Among the
more important declarations of the General Assembly that have dramatically
developed the principles of the Charter and become rules of jus cogens or erga
omnes, the following must be mentioned: (i) Declaration 217A (III) of 1948
proclaiming the Universal Declaration of Human Rights; (ii) Declaration 1514
(XV) of 1960 regarding the granting of independence to peoples under colonial
domination; (iii) Resolution 2625 (XXV) of 1970, the Declaration on the
Principles of International Law concerning Friendly Relations and Coop-
eration among States; (iv) the related Resolution 3314 (XXIX) of 1974 on the
Definition of Aggression; (v) Declaration 1803 (XVIII) of 1962 on Permanent
Sovereignty over Natural Resources; (vi) Resolution 2749 (XXV) of 1970 on
the Principle Applicable to the Seabed and Subsoil of the Oceans beyond
National Jurisdiction; and (vii) Resolution 1962 (XVIII) of 1963, the
Declaration of Principles Governing the Activities of States in the Exploration
and Use of Outer Space.

In order to further illustrate the dramatic unfolding of the provisions of the
Charter and the process by which extensive areas of contemporary interna-
tional law have been developed and endowed with specificity without, how-
ever, abandoning their Charter-based foundations, I will comment briefly on
the documents and changes referred to.

275


International Criminal Court

injustices or apply foreign “law” to them. They indicate the abhorrence of other
States and ordered trading partners, thus putting political as well as moral pres-
sure on the persons and legal orders whose actions seem questionable. The per-
sons or legal orders that feel victimized by those steps of ostracism or restrictive
trade rules can respond, if they like. It might be that the outsiders are wrong, or
fail to understand the complexities of the actions or system they condemn. In
that case, explanation and openness might result in a relaxation of the con-
demnations. But it might not; politics frequently acts on the basis of
misperceptions more than facts. And it is also possible that the Waldheims or
masters of a racist South Africa feel themselves morally justifiable even though
the facts seem to others to indicate morally dubious behavior or outright big-
otry. But what is the alternative? Invasion that kills people and destroys prop-
erty? Criminal charges in a tribunal that has no positive law to rely on but finds
“law” in the moral indignation of a Prosecutor and a majority of judges who, as
human beings, are also fallible?

I should conclude by wishing that objective “justice” were clear and avail-
able via a tribunal of scholars of the integrity and perception of Leslie Green.
But until cloning becomes the norm, or society in general is prepared to accept
the infallibility of its lawyers, such solutions seem beyond our reach. The con-
clusion is not pessimistic, but realistic. Much can be done, but it is better to do
nothing in the legal order than to confuse it with the moral order and attempt
to enforce our view of morality as if binding on others in a universal criminal
law.

Notes

A partial version of this analysis has been published as Challenging the Conventional Wisdom:
Another View of the International Criminal Court, in 52(2)COLUMBIA JOURNAL OF INTERNA-
TIONAL AFFAIRS 7837-94 (1999), and another partial version as A Critical View of the Proposed
International Criminal Court, 23(2)THE FLETCHER FORUM OF WORLD AFFAIRS 139-150
(1999).

1. A/CONF.183/9, July 17, 1998; http:/Avww.un.org/icc. The vote is reported in
www.un.orgfice as 120 in favor, 7 opposed, with 21 abstentions. Apparently the vote of each
participant was not directly recorded, so the identities of the voting participants must be derived
from their statements in explanation of vote or other sources. For present purposes the totals are
enough.

2. An example might be drug trafficking or aerial hijacking; there are treaties dealing with
them and many other municipally defined “crimes” of international concern.

3. The phrase “jure gentium” itself historically relates to a conception of the international
legal order under which States are bound by “comity” or “right reason” or some such to enact
criminal and other laws in their municipal legal orders that duplicate the equivalent laws of other
States. It rests on a notion of universal human morality that seems self-evident to some but has

434


Jus Pacis ac Belli?

writers who take this line square with their contention the attitude of third
States in those cases in which they insist on the application of the laws of neu-
trality to their own relations with the contending States, while the latter insist
on the continuance of a state of peace between themselves? This view leads
to the paradoxical conception of neutrality in time of peace, nota very pleasant
constellation for the followers of the doctrine of the alternative character of
peace and war. This doctrine and the reality of measures short of war can be
reconciled only at the price of depriving the state of peace of all positive criteria
and of reducing it to a merely negative status.44 To see peace and war in their
proper perspective, it is necessary to analyze these states against the back-
ground of the reality of power politics which is the over-riding phenomenon in
international affairs.*5

Powers are in a state of peace with each other when they are prepared to ap-
ply to their mutual relations the extensive system of legal rules which is charac-
terized, e.g., by respect for territorial sovereignty, the freedom of the high seas
and the exclusion of the use of armed force. In effect, this means that States are
willing to exercise in their relations merely political and economic, but not mil-
itary power.*6

Powers are in a state of war with each other and of neutrality towards third
States, if, subject to customary and treaty limitations, they choose to apply
against each other Power to the utmost, i.e., military as well as political and
economic power.

Modern States in their practice have merely drawn their own conclusions
from the complete breakdown of the doctrine of the bellum justum when they
consider themselves free not only to change over at will from a state of peace to
astate of war, but also entitled to the liberal use of limited force.*? It is charac
teristic of this state that it does not necessarily lead to the comprehensive use of
power, as in case of war. Whether the state of peace continues with the State
against which limited force is applied or not, depends on the latter's decision.
Similarly, it is left to third States to decide for themselves whether, in their rela-
tions with the contending States, they prefer the laws of peace or neutrality.
Even if all States directly and indirectly concerned acquiesced in the limited
use of force, it appears to be a misnomer to call such a pax bellicosa by the name
of peace. It is equally unwarranted to call war a state in which both contending
States insist on the continuation of their peaceful relations, merely because
third States wish to apply the law of neutrality during such a bellum pacificum.
These constellations are incompatible with the states of peace and war; they
constitute a state of their own, a status mixtus.

492




W. Hays Parks

feared its piracy provision would place its own submarine commanders and
crews at risk.6¢ The French, Italian, and Japanese delegations, while agreeing
with the resolution’s aim, raised doubts as to its clarity and legal correctness.
They suggested its referral to a committee of jurists for further study. This effort
received an acid rejoinder from Root, declaring that neither he nor his resolu-
tion would be “buried under a committee of lawyers.”©5 Continuing, he argued
that the while the resolution might be ineffective “if made between diplomats
or foreign offices or governments,” he believed that if its rules “were adopted by
the conference and met with the approval (as would surely be the case) of the
great mass of the people, the power of the public opinion would enforce
them.” Efforts to clarify basic terms, such as “merchant ship,” were firmly re-
fused by the United States and Great Britain. After considerable debate, with
slight modifications, the Root Resolution was adopted as the Submarine
Treaty, as follows:6?

Resolutions proposed by Mr. Root

I. The signatory powers, desiring to make
more effective the rules adopted by civilized
nations for the protection of the lives of neu-
trals and noncombatants at sea in time of
war, declare that among those rules the fol-
lowing are to be deemed an established part
of international law:

The Submarine Treaty, Articles I-IV

Article I

‘The signatory powers declare that among
the rules adopted by civilized nations for the
protection of the lives of neutrals and non-
combatants at sea in time of war, the follow-
ing are to be deemed an established part of
international law:

1. A merchant vessel must be ordered to
stop for visit and search to determine its char-
acter before it can be captured.

(1)A merchant vessel must be ordered to
submit to visit and search to determine its
character before it can be seized.

A merchant vessel must not be attacked
unless it refuses to stop for visit and search af-
ter warning.

A merchant vessel must not be attacked
unless it refuses to submit to visit and search
after warning or to proceed as directed after
A merchant vessel must not be destroyed seizure.
unless the crew and passengers have been first

A merchant vessel must not be de-
placed in safety.

stroyed unless the crew and passengers have
been first placed in safety.

2. Belligerent submarines are not under any
circumstances exempt from the universal
tules above stated; and if a submarine cannot
capture a merchant vessel in conformity with
these rules the existing law of nations requires
that it desist from attack and from capture
and to permit the merchant vessel to proceed
unmolested.

(2) Belligerent submarines are not under
any circumstances exempt from the universal
tules above stated; and if a submarine cannot
capture a merchant vessel in conformity with
these rules the existing law of nations requires
it to desist from attack and from seizure and
to permit the the merchant vessel to proceed
unmolested.

349


Anthony D’Amato

crimes. The difference is one of motive. What is being punished by the crime of
genocide is the selection of victims according to their involuntary membership
in four kinds of groups: national, ethnical, racial, or religious. The distinctive-
ness of this new crime turns on how seriously prosecutors, defense counsel, and
judges in future cases take and examine evidence of a defendant’s motives.

The coherence of the crime of genocide is partly a result of taking specific
motive seriously, but also a result of keeping the four enumerated groups clearly
in mind. To extend the crime of genocide to killings—even mass killings—that
are not based on membership in the four groups is to cheapen the concept and
eventually render it redundant. If genocide, as I have argued, constitutes an ad-
vance in the development of human rights in our civilization, it ought to be in-
terpreted and applied in accordance with a coherent and distinct
interpretation of the remarkable language defining the crime that was brought
into being by the Genocide Convention.

Notes

1, Rudolf). Rummel, The Holocaust in Comparative and Historical Perspective, Conference on
The “Other” Threat: Demonization and Anti-Semitism, Hebrew University of Jerusalem, June
12, 1995.

2. CIVIL RIGHTS CONGRESS, \WE CHARGE GENOCIDE: THE HISTORIC PETITION TO THE
UNITED NATIONS FOR RELIEF FROM A CRIME OF THE UNITED STATES GOVERNMENT
AGAINST THE NEGRO PEOPLE (1951).

3. Ken Kress, Coherence, in Dennis Patterson, ed., A COMPANION TO PHILOSOPHY OF
LAW AND LEGAL THEORY 533 (Blackwell, 1996). He adds: “[C]oherence theories of law have a
special claim on us. The idea that law is a seamless web, that it is holistic, that precedents have a
gravitational force throughout the law, that argument by analogy has an especial significance in
law, and the principle that all are equal under the law, provide strong prima facie support for a
coherence theory of law.” Id. at 536.

4. The responsibility of the judicial enterprise in this regard may be contrasted with the
freedom of legislatures. In the absence of a constitutional imperative requiring legislative
rationality or coherence, a legislature is theoretically free to enact statutes that conflict with or
contradict one another. Even so, a court faced with inconsistent or conflicting legislation will
typically apply various judicial tools of coherence—e.g., a rule that a more recently enacted
statute supersedes a prior statute with which it conflicts.

5. RONALD DWORKIN, LAW'S EMPIRE 167 (Harvard Univ. Press, 1986).

6. Id. at 217.

7M. at 219.

8. RAPHAEL LEMKIN, AXIS RULE IN OCCUPIED EUROPE 79 (1944).

9. GA Res. 96(I), UN Doc. A/64/Add.1 (1946).

10. Convention on the Prevention and Punishment of the Crime of Genocide, UNTS No.
1021 (1951). The term “genocide” had appeared in the indictments of the Nazi defendants at
Nuremberg, but not in the Charter of the International Military Tribunal nor in the opinions of
the Tribunal.

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International Criminal Court

that value system, it undercuts those parallel possibilities by making them seem
poor alternatives that withhold “justice” from the aggrieved by making “jus-
tice” a legal instead of a moral term.

Every normative order has its own enforcement techniques. If the default be
regarded as a matter of positive law, then the enforcement techniques of the
positive law must be used to “right the wrong.” But if the default is viewed as a
moral default, then a “Truth and Reconciliation” Commission might be the
best way to achieve the closure that peace requires, with moral opprobrium and
social ostracism the “sanction.” And if the requisite level of opprobrium does
not flow, if the wicked find haven among their like-thinking fellows, then it is
hard to see how peace and security would flow from the application of positive
law sanctions to the wicked. There are two obvious problems. First, the wicked
constituents might want to defend “their” wicked leader, and military activity
with its attendant atrocities on all sides is the most likely result of attempts to
“arrest” him or her. Second, if “legal justice” in the normal municipal criminal
law sense is to be done in some cases, only chaos would be the likely result. For
example, to do what some demand as “justice” in Rwanda, surely every Hutu
who killed an innocent Tutsi, and every Tutsi who killed an innocent Hutu
should face trial and punishment. Failing that, the hordes of unhappy survivors
would threaten to make peace and reconciliation impossible. How many hun-
dred thousand trials and how many prisons should there be? Or will the “world”
apply its sanctions only to a select few? Who selects the “few”? A prosecutor ap-
plying objective standards? What standards? What is “objective” in these cir-
cumstances that would permit the murderer of a child to go free while the
inciter or political leader who killed nobody goes to prison? And who is the
“world”? Slightly more than one fifth of the population of the world is Chinese
and seems more or less content to live under a government whose conception
of “human rights” seems very different from that of the framers of the ICC Stat-
ute. The same may be said of the slightly less than one-fifth of the world’s popu-
lation that is Hindu; and the same may also be said of about one-fifth of the
world’s population who participate in revealed religious traditions, organiza-
tions, or sects—whose “divine law” perceptions forgive or even encourage the
killing of non-members of their clan or society. Three-fifths is a majority. And
while it might be argued that not all Chinese, Hindus, and adherents to abso-
lutist religions would agree with their elected, born, or appointed spokespeople
in matters relating to “human rights,” it can equally well be argued that not all
Americans and other participants in the European enlightenment agree with
their political leaders about such questions.?4 So let us abandon majority rule

430


Georg Schwarzenberger

arguments which even the most scrupulous or least gifted adept of power poli-
tics could hardly fail to perceive. These considerations are derived from the
conceptions of subjective and relative justice. A sovereign may be engaged in
an unjust war, but he may be wrongly under the impression that his cause is
just. This, Gentili considers enough to exonerate a prince, though the unfortu-
nate consequence of such liberalism may be that “in nearly every kind of dis-
pute neither of the two disputants is unjust.”!7 Finally, a State may have a cause
which, relatively, is less just than that of its opponent. But in this case it must be
remembered that “one man does not cease to be in the right because his oppo-
nent has a juster cause.”!8 Thus, “invincible ignorance,” as Victoria has called
this state of mind,!9 is the best keeper of a king’s conscience, if he wishes to rule
in accordance with the precepts so ably set out by Machiavelli but equally feels
bound to engage exclusively in “just” wars of a “defensive” or “offensive”
character.

In these circumstances, a naturalist may be forgiven for not always bear-
ing in mind his own subtle distinctions and for bluntly stating that “by the
consent of nations a rule has been introduced that all wars, conducted on both
sides by authority of the sovereign power, are to be held just wars.”20

It accordingly seems that there is little substance in the time-honored asser-
tion that the naturalists have subjected war to law, and that rather cynical dis-
regard of these norms by State practice merely amounts to regrettable
violations of clearly defined standards. It very much looks like special pleading
to retort that sovereigns paid their respect at least in form to these rules when
they attempted to justify their wars of interest in terms of doctrine of the bellum
justum. In effect, this did not mean that war was subordinated to natural law,
but that natural law was made subservient to the reason of State. In an interna-
tional society in which the rulers of States are only responsible to their own
conscience, an elastic theory with as many loopholes as the doctrine of the
bellum justum was bound to degenerate into a mere ideology serving the inter-
ests which it was supposed to control. Had the naturalists insisted on more rigid
standards, their teachings would have been ignored or interpreted out of exis-
tence. As, in accordance with their “realistic” outlook, they were prepared to
come to terms with the powers that be, their theories could be turned to useful
purposes. As Machiavelli reflects, “the people will complain of a war made
without reason.”2! Consequently, rulers are well advised not to ignore their
home front, and this is the more necessary the wider awake public opinion and
conscience happen to be. It is equally necessary to break the spirit of the enemy

487


Wolff Heintschel von Heinegg

obliged to observe certain rules of conduct, as, for example, proposed by the ICAO in its Safety
Recommendations, ICAO Doc. C-WP/8803, AM. J. INT'L L.83 (1989), p. 335.

103. OPPENHEIM, supra note 4, p. 780 f.; C.J. COLOMBOS, supra note 4, § 842; E. CASTREN,
supra note 60, p. 300 f.; RD. Powers Jr., International Law and Open-Ocean Mining, JAG
JOURNAL XV (1961), pp. 55-58, 71; M.S. MCDOUGAL/F.P. FELICIANO, MINIMUM WORLD
PUBLIC ORDER, New Haven 1961, p. 495; H. Wehberg, Seekriegsrecht, supra note 10, p. 152; Art.
73 of the 1939 Harvard Draft. See also SAN REMO MANUAL, para. 97: “A blockade may be
enforced and maintained by a combination of legitimate methods and means of warfare provided
this combination does not result in acts inconsistent with the rules set out in this document.”

104. See infra notes 45 f.

105. J. STONE, supra note 59, p. 496.

106. Obviously, the same position is taken by H. Wehberg, Seekriegsrecht, supra note 10, p.
152; E. CASTREN, supra note 60, p. 300 f.; OPPENHEIM, supra note 4, p. 781; Article 73 of the
1939 Harvard Draft (“For the purpose of establishment and maintenance of a blockade, a
belligerent must use surface or submarine vessels or aircraft, and may also used fixed obstacles
and anchored automatic contact mines which become harmless on becoming unanchored.”).
The commentary to paragraph 97 of the San Remo Manual makes clear that “this paragraph .. .
does, however, prohibit the enforcement solely by weapon systems, such as mines, unless they are
employed in such a manner as not to endanger legitimate sea-going commerce.” In an
annotation to paragraph 7.7.2.3, NWP 1-14M, the authors maintain that “the presence of at
least one surface warship is no longer an absolute requirement to make a blockade legally
effective, as long as other sufficient means are employed.”

107. The former USSR opposed the mining of Haiphong by referring to the freedom of
navigation. It did not claim a violation of the maritime jus in bello.

108. The position taken by O'Connell, according to which the mining of Haiphong was a
“strategic blockade” and could, thus, be maintained and enforced solely by mines, is untenable.
The maritime jus in bello does not distinguish between “strategic” and “economic” blockades.
D.P. O'CONNELL, LAW OF THE SEA II, supra note 97, p. 1139.

109. J. STONE, supra note 59, p. 496; E. CASTREN, supra note 60, p. 301; H. Wehberg,
Seekriegsrecht, supra note 10, p. 152; Article 73 of the 1939 Harvard Draft.

110. NWP 1-14M, para. 7.10; Principle 5.2.10 of the Helsinki Principles (“Neutral vessels
believed on reasonable and probable grounds to be breaching a blockade may be stopped and
captured”); SAN REMO MANUAL, para. 98; R.W. TUCKER, supra note 10, p. 292 ff; CJ.
COLOMBOS, supra note 4, § 832; E. CASTREN, supra note 60, p. 304 ff.; D.P. O'CONNELL, LAW
OFTHE SEA II, supra note 97, p. 1156 f.; OPPENHEIM, supra note 4, p. 782 ff.; Articles 81 f. of the
1939 Harvard Draft.

111. Besides the foregoing references, see NWP 1-14M, paras. 7.5.2 and 8.2.2.

112. For the differentiation between inward and outward breach of blockade, see CJ.
COLOMBOS, supra note 4, §§ 829, 831.

113. NWP 1-14M, para. 7.7.4. See also Canadian Draft, para. 722 (8).

114, In favor: C.J. COLOMBOS, supra note 4, § 835; J. STONE, supra note 59, p. 498; E.
CASTREN, supra note 60, p. 306 f.

Against: R.W. TUCKER, supra note 10, pp. 310, 316, footnote 80; H. Wehberg, Seekriegsrecht,
supra note 10, p. 161; P.A. MARTINI, BLOCKADE, supra note 97, p. 72 ff.; CH. ROUSSEAU, supra
note 54, p. 271. See also TH. NIEMEYER, DAS SEEKRIEGSRECHT NACH DER LONDONER
DEKLARATION, Berlin 1910, p. 21.

115. See the protests by neutral States printed in: OBERKOMMANDO DER KRIEGSMARINE,
supra note 57, p. 18 ff., 329 ff.

227


Antecedents of the Rome Statute of the ICC Revisited

In the Beginning (1872-1914)

It is common knowledge that in the Middle Ages knights could be “tried” by
their peers of another people or another fiefdom for violation of the accepted
canons of knightly behavior or for allowing particularly vicious acts to be per-
formed by soldiers under their authority. A well-known example of this is the
so-called Breisach trial of 1447.2 These, however, were hardly war crimes trials
as we understand them today. Rather they were knightly courts of honor decid-
ing on violations, direct or indirect, of knightly codes.

Another attempt at quasi-criminal international proceedings encountered
during the mid-nineteenth century should be noted. As part of its campaign
against the slave trade, Great Britain concluded a series of bilateral agree-
ments. These allowed duly commissioned ships of the Royal Navy to visit and
search on the high seas flag vessels of the other State, and bring vessels sus-
pected of engaging in illegal slave trade operations into port. Here they would
be brought before a mixed commission for adjudication. The mixed commis-
sion would decide, without appeal, whether or not a vessel brought before it
was a slave ship trading illicitly and legally captured, and would accordingly ei-
ther condemn it as lawful prize and liberate the slaves it carried, or acquit it and
restore both the vessels and the slaves to their owners. These mixed commis-
sions had no jurisdiction over the owners, masters or crews of the condemned
vessels. Individuals were to be handed over to their own authorities for trial and
punishment in their own courts and according to their own laws. Mixed com-
missions of this kind sat to the east along the coast from the Cape of Good
Hope to the Cape Verde Islands, and in the west from Rio de Janeiro to New
York, with the court at Freetown, Sierra Leone, being the most important. It is
estimated that over 600 slave vessels were condemned by these commissions
and that some 80,000 slaves were liberated by them. They functioned between
1819 and 1871.3

Credit for the first attempt in modern times to develop a system of an inter-
national criminal tribunal goes to Gustave Moynier of Switzerland. Moynier,
together with Henry Dunant, was one of the founders of the International Red
Cross, through the Geneva Red Cross Conference of 1863,4 followed by the
first Geneva Conference of 1864. That Conference adopted the Convention
for the Amelioration of the Condition of the Wounded in Armies in the Field
of 22 August 1864.5 Dismayed at the failure of the belligerents in the
Franco-Prussian War of 1870-1871 to observe faithfully the provisions of the
Geneva Convention in its first real test, Moynier conceived the idea of an es-
tablished standing international machinery to make it possible to try

388


Appendix

The Dissolution of States and Membership in the United Nations. In
Schwarzenberger, Law, Justice and Equity, 1967, 152-67; 32 Saskatchewan
Law Review, 1967, 93-112.

New States, Regionalism and International Law. 5 Canadian Yearbook of Inter-
national Law, 1967, 118-41.

The United Nations, South West Africa and the World Court. 7 Indian Journal
of International Law, 1967, 491-525.

Humour and the Law. New Trail, December 1967, 37-40.

Forensic Facetiae. 32 Saskatchewan Law Review, 1967, 173-91.

Comparative Law as a “Source” of International Law. 42 Tulane Law Review,
1967, 52-66; Butler, International Law in Comparative Perspective, 1980,
139-51.

The Common Law and Native Systems of Law. In Wilson, International and
Comparative Law of the Commonwealth, 1968, 81-107.

Law, Morality and Civilization. In Wright, Towards a World Civilization, 1968,
43-51.

Rhodesian Independence: Legal or Illegal. 6 Alberta Law Review, 1968, 37-66.

Human Rights and the United Nations. 2 Patterns of Prejudice, 1968, 6-10.

The Impact of the New States on International Law. 4 Israel Law Review, 1969,
27-60.

Human Rights in Public International Law. In Singhvi, Horizons of Freedom,
1969, 59-105.

Southern Rhodesian Independence. 14 Archiv des Volkerrechts, 1969, 155-91.

Canada’s Indians: Federal Policy, International and Constitutional Law. The
Queen’s Printer (Alberta), 1969; 5 Ottawa Law Review, 1970, 101-31.

Protection of Minorities in the League of Nations and the United Nations. In
Gotlieb, Human Rights, Federalism and Intemational Law, 1970, 179-210.

Copyright and the Universities. 5 Canadian Universities and Colleges, 1970,
31-8, 40-3, 52-3.

De I’Influence des Nouveaux Etats sur le Droit International. 74 Revue Gener-
ale de Droit Intemational Public, 1970, 78-106.

Law and Morality in a Changing Society. 22 University of Toronto Law Journal,
1970, 421-47.

Native Law and the Common Law: Conflict or Harmony. 12 Malaya Law Re-
view, 1970, 38-59.

Superior Orders and the Reasonable Man. 8 Canadian Yearbook of International
Law, 1970, 61-103.

Canada and Arctic Sovereignty. 48 Canadian Bar Review, 1970, 740-75.

Ley, Moralidad y Civilizacion. 9 Annuario de Derecho (Panama), 1970-1, 3-8.

570


Shabtai Rosenne

imposed by Article V on all parties to enact appropriate legislation to give ef-
fect to the provisions of the Convention and in particular to provide effective
penalties for persons guilty of genocide.>3 At the same time it placed States un-
der the obligation to enact the necessary legislation to give effect to the provi-
sions of the Convention, and in particular to provide effective penalties for
persons guilty of genocide or other offenses enumerated in the Convention
(Article V). The International Law Commission continued along those lines by
linking its proposed court to the Draft Code of Crimes. Again, in the 1980s, the
General Assembly seems to have invited the International Law Commission to
“address” the question of establishing an international criminal court, an-
swered by the Commission in its report of 1992 (note 41 above). In 1992 the
General Assembly, in a complete reversal of its earlier position, and possibly
without fully considering the implications, requested the Commission to pre-
pare the draft statute, which the Commission did in 1994 (note 45 above). It is
to be observed that the International Law Commission, hurried by the General
Assembly, did not follow its customary practice of giving its text two readings,
the second taking place after an interval of two years on the basis of the obser-
vations, written and oral, of governments on the first draft. The result was that
the Commission’s final.text did not take sufficient account of the political atti-
tudes of the different governments and comment on them in its final report on
the topic. The General Assembly accordingly had to establish two
intersessional committees to study the text in light of political considerations,
and yet the final report of the Preparatory Committee (note 48 above), which
became the basic proposal for consideration by the Conference,>4 contained a
large number of square brackets, footnotes and options, pinpointing the ab-
sence of agreement on major issues. It was not a true basic text as that term is
commonly understood in conference practice.5> What is more, it was com-
pleted and circulated to States only a short while before the opening of the
Conference, allowing Governments little time or opportunity to give it the full
consideration that it deserved and required, or to undertake the usual diplo-
matic consultations with other participants in the Conference. If the Rome
Statute has defects, without doubt one explanation lies in the haste with which
the Conference was convened, without adequate or completed preparatory
work,

Given this slow progress in the preparatory work and its incompleteness, it is
difficult to understand how in Resolution 52/160, December 15, 1997, the
General Assembly decided to convene a diplomatic conference of plenipoten-
tiaries a bare six months later to complete and adopt the convention, and al-
lowed only for five working weeks in all, that is thirty working days for that

405


Charter of the United Nations as a World Constitution

‘THEORY AND PRACTICE. ESSAYS IN HONOUR OF ERIC SUY (The Hague: Martinus Nijhoff,
1998), p. 371 at 385 (with full notes).

32. James Crawford, THE CHARTER OF THE UNITED NATIONS AS A CONSTITUTION, in
Hazel Fox (ed.), The Changing Constitution of the United Nations, (London: British Institute of
International and Comparative Law, 1997), p. 12.

33. Felicetta Leanza Lauria, Il recesso dall’Organizzazione delle Nazioni Unite: il caso
dell'Indonesia, in 20 DIRITTO INTERNAZIONALE 153-174 (1966); Mario Scerni, Aspetti giuridici
del Ritiro delle Nazioni Unite in 20 COMUNITA INTERNAZIONALE, 228 (1965).

34. United Nations Press Release GA/3210 of September 28, 1966.

35. The status of declarations of the General Assembly in the international law system is
debatable and has produced a vast literature. See, among others, ZEMANEK, note 3; CONFORTI,
note 2; GIULIANI-SCOVAZZI-TREVES, note 3; Richard Falk, The quasi-legislative Competence of
the General Assembly, 90 AMERICAN JOURNAL OF INTERNATIONAL LAW 782 (1996).

36. Herny G. Schermers, Intemational Organizations, in Bedjaoui, note 5, p. 79ff.

37. This opinion is shared by the majority of scholars. See, among others, CONFORTI, note 2,
p. 282ff.

38. ZEMANEK, note 3, p. 49ff.

39. Christopher C. Joyner, The United Nations as Intemational Law-Giver, in Oscar Schachter
and Christopher C. Joyner (eds.), THE UNITED NATIONS AND INTERNATIONAL LAW (New
York: Cambridge University Press, 1997), p. 440ff.

40. International Court of Justice, Military and Paramilitary Activities in and Against
Nicaragua (Nicaragua vs. U.S.), in ICJ REPORTS, 1986, pp. 14-150, para. 188. For further
elaboration on the significance of the Court’s judgment with regards to General Assembly
resolutions, see Ronald St. J. Macdonald, Fundamental Norms in Contemporary Intemational Law,
25 CANADIAN YEARBOOK OF INTERNATIONAL LAW 130ff. (1987); ZEMANEK, note 3.

41. CONFORTI, note 2, p. 245.

42. ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL (New
York: Cambridge University Press, 1995), p. 70.

43. IC} REPORTS, 1971, p. 31, para 52.

44. For more extensive discussion of these cases, as well as other disputed areas, such as the
Falkland Islands and Gibraltar, see CASSESE, note 42, chapter 9.

45. See, for instance, Resolution 1815 (XVII) of 1962, and Declaration 2132 of 1965.

46. Resolution 37/10 of 1982.

47. Riad Daoudi, Promotion of Friendly Relations by International Organizations, in Bedjaoui
(ed.), note 5, p. 492.

48. Cassese, Article 1 paragraphe 2, in Cot and Pellet, note 5, p. 42.

49. Daoudi, note 47, p. 496.

50. See on this subject Jost Delbriick, Laws in the Public Interest-—Some Observations on the
Foundations and Identification of erga omnes Noms in International Law, in Volkmar Gotz, Peter
Selmer, Riidiger Wolfrum (Hrsg.), LIBER AMICORUM GUNTER JAENICHE - Zum Beispiel
Gieburtstag (Max Plank Institut, Beitrage zum auslandischen dffentlichen Recht und
Vélkerrecht, Band 135) (Berlin, Springer, 1998), p. 27.

51. The Treaty on Principles Governing the Activities of Space in the Exploration and Use of
Outer Space, Including the Moon and Other Celestial Bodies (Outer Space Treaty) of
December 19, 1966, was adopted by the UN General Assembly in Resolution 2222 (XXI) of
December 19, 1966, UN Doc. A/6316. Among the other several international instruments
developed through the “legislation by resolution” of the General Assembly, the Agreement on
the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into

296


Chivalry in the Air?

in Armed Conflicts, Vol. J, Basic Texts, Documentary Material submitted by the International
Committee of the Red Cross (1972).

21. International Committee of the Red Cross, Conference of Government Experts on the
Reaffirmation and Development of International Humanitarian Law Applicable in Armed
Conflicts, Geneva, 3 May-3 June 1972, (second session) If Commentary, part 1, Documentary
Material submitted by the International Committee of the Red Cross, 70, (1972).

22. International Committee of the Red Cross, Conference of Government Experts on the
Reaffirmation and Development of International Humanitarian Law Applicable in Armed
Conflicts, second session, 3 May-3 June 1972, Report on the Work of the Conference, Vol. I,
Report of Commission III, at 132, (1972).

23. Official Records of the Diplomatic Conference on the Government Experts on the
Reaffirmation and Development of International Humanitarian Law Applicable in Armed
Conflicts (CDDH/II/SR.47, para. 52).

24. Id., para. 69.

25. Id., para. 68.

26. CDDH/AII/SR.48, para. 15.

27. CDDH/II/SR.30, para. 1.

28. CDDH/SR.39, para. 89.

29. The present author, CDDH/MI/SR.30, para. 4.

30. CDDH/MI/SR.47, para. 51.

31. CDDH/I/SR.48, para. 1.

32. Jean De Preux, Article 42-Occupants of aircraft, in COMMENTARY ON THE ADDITIONAL
PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, 494 (Yvez
Sandoz, Christophe Swinarski, Bruno Zimmermann eds., 1987).

33. Spaight, supra note 13, at 155.

34. Report of the ICRC to the 1969 Conference, supra notel6.

35. Rules submitted by the ICRC to the 1971 Conference, supra note 17, at 8.

36. Israel proposal, supra note 18.

37. Article 36, International Committee of the Red Cross, Conference of Government
Experts on the Reaffirmation and Development of International Humanitarian Law Applicable
in Armed Conflicts, Geneva, 3 May-3 June 1972, (second session) II, Basic Texts, Documentary
material submitted by the International Committee of the Red Cross, 14 (1972).

38. The question of hostile intent is dealt with later in this paper.

39. Israel proposal, supra note 18.

40. ICRC Text, supra note 17.

41. ICRC Commentary, supra note 22.

42. Report of the 1972 Conference, supra note 22.

43. Article 39, International Committee of the Red Cross, Draft Additional Protocols to the
Geneva Conventions of August 12, 1949, at 13 (1973).

44. Commentary on Article 39, International Committee of the Red Cross, Draft Additional
Protocols to the Geneva Conventions of August 12, 1949, Commentary (1973).

45. CDDHAII/69.

46. CDDH/AIII/338, Report to Committee III on the work of the Working Group, Submitted
by the Rapporteur.

47. 28 votes to 21, with 21 abstentions. CDDH/II/SR.47, para. 25.

48. CDDH/MI/SR.47, para. 49.

49. Id., para. 51.

50. Id., para. 69.

452


Robbie Sabel

used in the ICRC text. The text presented by the ICRC to the 1973 Humani-
tarian Law Conference did not contain any reference to “hostile attitude,” pre-
sumably since the ICRC had widened the scope of the protection to include
occupants of an aircraft even prior to their abandoning the aircraft.

Israel submitted a proposal to the first session of the Humanitarian Law
Conference which added the following to the ICRC text:

2. A person parachuting from an aircraft in distress and whose attitude in the
course of his descent is not manifestly hostile shall be considered hors de
combat during the course of his descent.”

The Israeli proposal thus combined an explicit reference to persons
parachuting in distress with a restriction as to hostile attitude. At the second
session of the Conference, Egypt and other Arab States proposed replacing the
general protection for the occupants of an aircraft in distress proposed by the
ICRC with a reference to “persons parachuting from aircraft in distress . . .
provided they are obviously hors de combat.”68

During the discussion in Committee III, and in the Working Group on the
subject, there was general support for the idea of restricting the protection to
persons who had abandoned the aircraft. Occupants of an aircraft in distress
would thus not be entitled to protection until they had actually parachuted
from the aircraft. As to “hostile attitude” during descent, there was general
agreement on “explicitly excepting airborne troops from the protection of the
article, even if they were forced to leave their aircraft.”?0 The Working Group
proposed adding the phrase “Airborne troops are not protected by this Article,”
a proposal adopted by Committee III and the Conference as a whole. With the
addition of specific language relating to airborne troops, the Working Group
and, subsequently, Committee III and the Conference as a whole decided that
any other reference to “hostile attitude” during descent was superfluous. Dur-
ing the final session of the Conference, the Philippine delegation proposed add-
ing the phrase “unless he commits a hostile act during such descent.”7!
France’s delegate objected, stating “he knew from personal experience that it
was impossible for a person parachuting from an aircraft to use his weapon dur-
ing the descent, for at that time his sole concern was to prepare for landing.”?2
Along the same lines, Switzerland’s delegate commented that “he failed to see
its practical bearing.”?3 The delegate of the Federal Republic of Germany
thought “it involved some risk, because it might be very widely interpreted,””+
and Iran’s delegate pointed out that “such a provision might lead to abuse, for
once a parachutist had been fired on, it would be easy to find reasons to jus-
tify that action.”?5 Syrian, Jordanian, and Libyan delegates, among others,

447


Making Law of War Treaties

88. For example, a British-American proposal to extend the Washington Conference 5:5:3
capital ship tonnage ratio to submarines was not acceptable to Japan. Douglas, supra note 52, at
154-156, 159; DAVIS, supra note 38, at 159, 162, 167, 168.

89. The following year, on February 20, 1928, the Sixth International Conference of
American States, meeting in La Habana, Cuba, adopted the Convention on Maritime Neutrality
(4 Malloy 4743, 2 Bevans 721; Schindler & Toman, supra note 1, at 1379). Article 1, paragraph
2 of that treaty is similar to Article 1, paragraph 2 of the Washington Submarine Treaty.
Although signed by the twenty-one participants, only Brazil, Colombia, Dominican Republic,
Ecuador, Haiti, Nicaragua, Paraguay and the United States ratified it. It entered into force on
January 12, 1931, but appears to have had limited, if any, effect.

90. On September 1, 1925, a clandestine U-boat department was established in the German
Naval Command Office. The following year IvS began building two submarines for Turkey based
upon its UB-111 design, with the stipulation that IvS had the right to select the crews and
attend all trials of the boats. That same year IvS contracted with Finland to construct a
mine-laying submarine at Abo (now Turku). Its keel was laid in September 1926, and the boat
was completed in 1930. In 1927, the German Admiralty’s secret U-boat technical section was
established in Mentor Bilanz. On October 27, a German Navy memorandum declared that “In
evading the Treaty of Versailles by maintaining submarine development and, if possible, training
a limited number of personnel, it is essential that . . . IvS be given all possible support.” In that
same year agreement was reached with Spain for Mentor Bilanz’s technical section to build a
750-ton U-boat at Cadiz. Subsequently Mentor Bilanz was liquidated and a new dummy
company “Igewit” (Ingenieurbiiro fiir Wirtschaft und Tecknik) was established to hasten
clandestine re-establishment of the German U-boat service. ROSSLER, supra note 29, at 88, 90,
91-92, and 93-97; TARRANT, supra note 37, at 77-78; and PADFIELD, supra note 23, at 111,
where it is noted that “The determination to thwart the drastic provisions of Versailles ran
powerfully through the whole German Officer Corps—Army, airmen, surface Navy and
submariners.”

91. DAVIS, supra note 38, at 333, 334; Douglas, supra note 52, at 184, 187; ROSKILL, supra
note 82, at 38-43. The conference undoubtedly gained greater urgency with the crash of the
US. stock market on October 29, 1929, bringing on the Great Depression. President Hoover
responded to the economic crisis by cutting funds for naval construction in 1931 and eliminating
them entirely in 1932. The conference was preceded by talks between representatives of the
United States and Japan. The Japanese repeated their long-standing preference for a 10:10:7
ratio in auxiliary vessels. It was opposed to abolition of the submarine, and wished to retain its
current tonnage (78,000 tons) rather than reduce its submarine fleet. Douglas, supra, at
188-189. The British and the United States were disappointed that Italy and Japan named
admirals to their respective delegations. Prime Minister MacDonald and President Hoover had
intended to keep the negotiations out of the hands of “naval experts,” an idea that undoubtedly
would have ensured conference success but ultimate treaty failure. Breakdown of the Treaty
ultimately occurred in part because the naval leadership of each participant, including the
United States and Great Britain, was repeatedly cut out of the negotiations by their respective
political leaders and delegations. ROSKILL, supra, at 52, 53; KAUFMAN, supra note 54, at 129.

92. Germany launched the pocket battleship Deutschland in May 1931, signaling its revived
navalism. RUGE, supra note 23, at 26, 28; ROSKILL, supra note 82, at 27.

93. D. CARPENTER AND N. POLMAR, SUBMARINES AND THE IMPERIAL JAPANESE NAVY
(1986), at 3.

378


Index

Prijedor, 126
Somalia, 267, 283
United States, 305, 433
Yugoslavia, Former, 123, 125
CLAIMS AND COMPENSATION, 74, 152, 389
Hague Convention (1907), 11
Just Compensation, 423
Kuwait v. Iraq, 282
COLD WAR, 110, 280, 283, 397, 473-76
United Nations General Assembly, 398
United Nations Security Council, 269
United States, 473
COLLECTIVE SECURITY, see DEFENSE AND SECURITY ARRANGEMENTS
COMMITTEE ON THE PEACEFUL USES OF OUTER SPACE (COPUOS), 83, 86-87,
94
CONVENTION ON THE LAW OF NON-NAVIGATIONAL USES OF
INTERNATIONAL WATERCOURSES (1997), 231, 235, 238, 240-42
See also RIVERS AND WATERWAYS
CONVENTION ON THE PRESENCE OF FOREIGN FORCES (1954) (Germany), 166
CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF
GENOCIDE (1948), see GENOCIDE, Genocide Convention
CONVENTION ON THE PROHIBITION OF THE USE, STOCKPILING,
PRODUCTION AND TRANSFER OF ANTI-PERSONNEL MINES AND ON
‘THEIR DESTRUCTION (1997), 191, 340, 455
See also MINES; WEAPONS, Conventional
CONVENTION ON THE SAFETY OF UNITED NATIONS AND ASSOCIATED
PERSONNEL (1994), 193, 520-21
CRIMES AGAINST HUMANITY, 1-56, 119, 251-55, 308-10, 470, 540-56
See also GENOCIDE; INTERNATIONAL CRIMINAL COURT; INTERNATIONAL HUMANITARIAN
LAW; LAW OF ARMED CONFLICT; RWANDA; WAR CRIMES; YUGOSLAVIA, FORMER,
Armenia-Turkey (1915), 4
Definition and Elements, 7, 21, 252, 310
Individual Responsibility, 7
Jus Cogens, 11
State Action or Policy, 6
Universal Jurisdiction, 545
World War I, 3
CRIMES AGAINST PEACE, 4, 249, 252, 308, 399-400
See also AGGRESSION
CULTURAL PROPERTY CONVENTION, see HAGUE CONVENTION FOR THE
PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT; see also LAW
OF ARMED CONFLICT; TARGETS
CUSTOMARY INTERNATIONAL LAW, 5, 193, 391, 525, 545
See also JUS COGENS
Airmen in Distress, 446
Crimes against Humanity, 4-5
Force, Use of, 181, 491

591


UN Forces and International Humanitarian Law

Background

Blue Helmet operations come in many different shapes, sizes, and complex-
ities, and in particular have various and sometimes varying or evolving man-
dates. Although a few have been established by the UN General Assembly,”
the great bulk were created by the Security Council. In doing so, the Council
acted under two different sources of authority located somewhere in the UN
Charter. The larger number, the so-called peace-keeping operations, are au-
thorized under what Secretary-General Hammarskjold characterized as Chap-
ter VIY, thus indicating that there was no specific Charter authority that could
be cited.8 The remaining operations are authorized, or sometimes continued,?
under Chapter VII, which in its Article 42 does foresee the Council deploying
air, sea or land forces.!0

There are yet other types of UN-authorized deployments of military forces,
which are sometimes confused with the Blue Helmet operations mentioned
above. The exemplars of the first of these types are the coalition forces that
fought the Korean War in the 1950’s and the Gulf War in 1991. Though both
were specifically authorized by the Security Council under Chapter VII, and
therefore considered by the public to be UN operations,!! they in effect con-
sisted of alliances, both of which were organized and led by the United States.
Their status under the Charter was somewhat unclear; on the one hand, they
could be considered as forces the Security Council “deployed” under Article
42, though the Council retained almost no power over the organization of the
forces and their actual operations; they could also be considered as merely col-
lective self-defense operations authorized by the Council under Article 51; fi-
nally, they could be considered as simply falling under Chapter VII in
general—as is the case, for example, with the establishment of the two War
Crimes Tribunals!? under that Chapter without any specific article to rely on.!3
The other type of non-UN operations are those that the Security Council “uti-
lizes” under Article 53.1 of Chapter VIII (“Regional Arrangements”).!4 Both
types can be characterized as examples of the Security Council “franchising”
military operations to an ad hoc coalition or a regional organization. In any
event, in view of the minimal influence the Security Council has so far exercised
over the actual conduct of these types of operations!5—which is not to say that
the Council could not, and perhaps should actually, exercise much stricter direc-
tion and supervision, as these operations could not legally take place without the
Council’s authorization—they will only be considered en passant in this study.

Reverting now to UN Blue Helmet operations, what are their main charac-
teristics? The execution of each of these operations or forces is delegated by the

508


Yoram Dinstein

of peace have had an extraordinary impact on the evolution of international
law, from Westphalia (1648) to Versailles (1919). The series of treaties of
peace signed at the close of the World War I even encompassed, in their first
part (Articles 1-26), the Covenant of the League of Nations”4 (the predecessor
of the United Nations). Despite their unique political standing, treaties of
peace are no different juridically from other types of inter-State agreements,
and they are governed by the general law of treaties.25

After World War II, and as a direct consequence of the “Cold War,” no
treaty of peace could be reached with the principal vanquished country (Ger-
many), which was divided for 45 years. It was only in 1990, following a sea
change in world politics, that a Treaty on the Final Settlement with Respect to
Germany? could be formulated. The Preamble of this instrument records the
fact that the peoples of the contracting parties (the United States, the USSR,
the United Kingdom, France and the two Germanies) “have been living to-
gether in peace since 1945.”2? In Article 1, a united Germany (comprising the
territories of the Federal Republic of Germany, the German Democratic Re-
public and the whole of Berlin) is established, and “the definitive nature” of its
borders—especially with Poland—is confirmed.?8 The 1990 Treaty may be
deemed a final peace settlement for Germany.??

Treaties of Peace with five minor Axis countries—Italy, Bulgaria, Hungary,
Romania, and Finland—were concluded already in 1947 at Paris.3° The West-
ern Allied Powers arrived at a Treaty of Peace with Japan in San Francisco in
1951.5! The USSR was not a contracting party to the latter instrument. In-
stead, a Joint Declaration was adopted by the USSR and Japan, in 1956,
whereby the state of war between the two parties was brought to an end.>? The
Joint Declaration sets forth that negotiations aimed at a treaty of peace will
continue.>3 However, since it proclaims that the state of war is ended, and that
peace, friendship, and good neighborly relations are restored,34 including dip-
lomatic and consular relations,>> the Declaration already attains most of the
objectives of an ordinary treaty of peace.

In the international armed conflicts of the post-World War II era, States
commonly try to avoid not only the term “war” but also its corollary “treaty of
peace.” Two outstanding exceptions are the Treaties of Peace concluded by Is-
rael with Egypt (in 1979),3¢ and with Jordan (in 1994) 37

The hallmark of a treaty of peace is that it both (i) puts an end to a preexist-
ing state of war and (ii) introduces or restores amicable relations between the
parties. Two temporal matters are noteworthy in this context. The first relates
to the fixed point in time in which the conclusion of war is effected (the
terminus ad quem). Upon signing a treaty of peace, the parties—at

135


Alfred P. Rubin

him/herself without revealing information that the United States would feel
should not be revealed on the ground of national security,?! such as informa-
tion received through covert sources or radio intercepts that the civilian bomb
shelter overlay a military installation.

And if the Prosecutor waits until the battle or-war is finished, the situation
would be just as bad. Could a victorious general be surrendered for interna-
tional judgment when s/he is a national hero? It is frequently forgotten that
Admiral Karl Dénitz, the Nazi successor to Hitler, was convicted of declaring
unrestricted submarine warfare in the teeth of a submission by America’s own
Admiral Chester Nimitz that he had done the same thing in the Pacific war on
December 7th, 1941.22 The point is not that Dénitz should have been acquit-
ted of the charge or that Nimitz should have been tried; it is that without a
world government it would have been politically impossible to arraign Nimitz, a
national hero of the victor State, before any tribunal for the very act for which
Dénitz was convicted. It is not difficult to see the equivalent political impossi-
bility of an international trial in analogous situations to arise in the future.

On a more theoretical level, the impossibility of producing “legal” results
when States ignore their apparent obligations under the ICC Statute, and the
demonstrable lack of State action under the 1949 Geneva Conventions’ “grave
breaches” provisions, with a lack of “legal” results flowing from that inaction,
implicates Occam’s Razor, the “law of parsimony.” Under that principle of
philosophic and legal construction, the simplest rule with the fewest excep-
tions must always be taken as the primary rule to account for reality.23 Under
that rule, a commitment without results in the legal order but with results in
the moral or political orders is better categorized as a moral or political rule
than a legal rule. The supposed and much ignored obligation to search out for-
eigners committing a “grave breach” of the 1949 Geneva Conventions and to
“hand such persons over for trial to another High Contracting Party con-
cerned” seems to be obviously a rule of morality and politics, not a rule of law.
Failure to carry out the obligation may result in political tensions and oppro-
brium on the part of those concerned with the morality of giving asylum to per-
sons who have committed atrocities in armed conflict. It has not produced
results in the international legal order.

While this skims the surface of why the ICC Statute is unlikely to help
achieve the results that its advocates expect from it, it ignores alternatives that
have also been ignored by the legal and human rights communities that have
pushed so hard to have their value systems institutionalized in the interna-
tional legal order by means of the positive law. While the ICC does not fore-
close parallel possibilities that might be more successful in actually enforcing

429


Theodor Meron

positive environment for the establishment of the standing international crimi-
nal court.

Rome

One is struck by three aspects of the scope of crimes under international hu-
manitarian law as it has emerged from the work of the diplomatic conference in
Rome. First, most governments appeared ready to accept an expansive concep-
tion of customary international law without much supporting practice. Second
is an increasing readiness to recognize that some rules of IHL once considered
to involve only the responsibility of States may also be a basis for individual
criminal responsibility. There are lessons to be learned here about the impact of
public opinion on the formation of opinio juris and customary law. The ICRC
study of customary rules of IHL, now in progress, will further reinforce these de-
velopments. Third, the inclusion in the ICC Statute of common Article 3 and
crimes against humanity, the latter divorced from a war nexus, connotes a cer-
tain blurring of IHL with human rights law and thus an incremental
criminalization of serious violations of human rights. It goes without saying that
the type of offenses encompassed by common Article 3 and crimes against hu-
manity are virtually indistinguishable from ordinary human rights violations. I
note that we have witnessed a rapid transition of many principles and rules of
THL from the rhetorical to the normative, and from the merely normative to
the effectively criminalized.

These developments could not have taken place without a powerful new co-
alition driving the criminalization of offenses against the IHL. Much like the
earlier coalition that stimulated the development of both a corpus of interna-
tional human rights law and the mechanisms involved in its enforcement, this
new coalition includes scholars who promote and develop legal concepts and
give them theoretical credibility, NGO’s that provide public and political sup-
port and means of pressure, and various governments that spearhead
law-making efforts in the United Nations.

The adoption of the Rome Statute of the ICC on July 17, 1998, is an event of
major historical importance. Although it is still too early to assess the prospects
of the effectiveness of the Court and many aspects of its Statute, this is not the
case with regard to the definition of crimes against international humanitarian
law contained in Articles 6-8. These articles, now part of treaty law, not only
constitute the principal offenses that the ICC will try, but they will take on a
life of their own as an authoritative and largely customary statement of interna-
tional humanitarian and criminal law. As such, they may become a model for

309


W. Hays Parks

12. 36 Stat. 2277, T.S. 539, Schindler & Toman, supra note 1, at 65. Post-World War II war
crimes tribunals concluded that the treaty had reached the level of being customary
international law. United States et al. v. Hermann Wilhelm Goring et al., ILM.T. (1948), at
253-254; U.S. v. Krupp etal., IX T.W.C. (1948), at 1340; U.S. v. Wilhelm von Leeb etal. (“The
High Command Case”), XII.M.T. (1948), at 532-533; and judgment, I.M.T.F.E. (1948), at 28.

13. Regulations Respecting the Laws and Customs of War on Land (36 Stat. 2295, TS 539);
Schindler & Toman, supra note 1, at 75.

14. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field of 12 August 1949, 6 U.S.T. 3114, T.LAS. 3362, 75 U.N.T.S. 31,
Schindler & Toman, id. at 463; Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea of 12 August 1949, 6
U.S.T. 3217, T.LAS. 3363, 75 U.N.T.S. 85, Schindler & Toman, at 491; Geneva Convention
Relative to the Treatment of Prisoners of War of 12 August 1949, 6 U.S.T. 3216, T.LA.S. 3364,
75 U.N.T.S. 135, Schindler & Toman, at 515; and Geneva Convention Relative to the
Protection of Civilian Persons in Time of War of 12 August 1949, 6 U.S.T. 3516, T.LA.S. 3365,
75 ULN.T.S. 287, Schindler & Toman, at 587. The numbers are potentially misleading, as there
were fewer States in 1907. Nonetheless a greater percentage of States are parties to the 1949
Geneva Conventions, etc., than were parties to the 1907 Hague Convention IV during either
World War I or II.

15. United Nations Security Council Res. S/RES/827 (May 25, 1993), Schindler & Toman,
id. at 1335.

16. United Nations Security Council Res. S/RES/955 (November 8, 1994).

17. For example, in 1974 the United States promulgated a Department of Defense directive
requiring a legal review of all new weapons and munitions to ensure their compliance with its law
of war and arms control obligations; the current directive is DoD Dir. 5000.1 (March 15, 1996),
Subj: Defense Acquisition, para. D.2,j. The author performs these legal reviews for weapons and
munitions developed or acquired by the U.S. Army or U.S. Special Operations Command.
Article 36 of Additional Protocol I obligates a State Party to conduct similar reviews of any new
weapon, means or method of warfare in its development, acquisition or adoption of that weapon.
Informal polling by the author of representatives of States Parties indicates that fewer than ten
States Parties have taken any steps to implement this obligation. Similarly, some nations, Party
throughout this century to the Hague Convention II with Respect to the Laws and Customs of
War on Land of July 29, 1899, and its 1907 successor, Hague Convention IV, are just beginning
to prepare a law of war manual for their respective military, despite the obligation to do so
contained in Article 1 of each treaty. Mast States Parties to that treaty have not even taken this
basic step.

18. A US. analysis following the successful 1991 Coalition effort to liberate Kuwait raised
questions as to the practicality of key provisions in Additional Protocol I. See DEPARTMENT OF
DEFENSE, FINAL REPORT TO CONGRESS: CONDUCT OF THE PERSIAN GULF WAR (April 1992),
Appendix O. Fora critical analysis of Additional Protocol I, see the author's Air War and the Law
of War, A.F.L. REV. 32,1 (1990), at 1.

19. A senior official of the ICRC proclaimed, “If we cannot stop war, we will take the toys
away from the boys,” thatis, prohibit as many weaponsas possible and in particular new weapons.
The United States recognizes the responsibility and expertise of the ICRC with respect to the
1949 Geneva Conventions, but, as an NGO of Swiss citizens—a neutral nation without combat
experience in this century—regards the ICRC as possessed of limited expertise with regard to
weapons or warfighting.

369


The Normative Framework of International Humanitarian Law

707. If an accused is found guilty of persecution, inter alia because of
the commission of murders, it seems that he should be found guilty of
persecution only, and not of murder and persecution, because in that
case the Blockburger test is not met: murder is in that case already
encompassed within persecution as a form of aggravated murder, and it
does not possess any elements which the persecutory murders do not.
Hence, in that case, murder may be seen as either falling under lex
generalis or as a lesser included offence, and a conviction should not
ensue when there is already a conviction under lex specialis or for the
more serious office, i.e. persecutory murder.

708. Things however are different when a person is charged both with
murder as a crime against humanity and with persecution (including
murder) as a crime against humanity. In this case the same acts of
murder may be material to both crimes. This is so if it is proved that (i)
murder as a form of persecution meets both the requirement of
discriminatory intent and that of the widespread or systematic practice
of persecution, and (ii) murder as a crime against humanity fulfils the
requirement for the wilful taking of life of innocent civilians and that of
a widespread or systematic practice of murder of civilians. If these
requirements are met, we are clearly faced with a case of reciprocal
speciality or in other words the requirements of the Blockburger test are
fulfilled. Consequently, murder will constitute an offence under both
provisions of the Statute (Article 5(h) and (a)).

709. Let us now consider whether the prohibition of persecution as a
crime against humanity protects different values from those
safeguarded by the prohibition of murder as a crime against humanity.
It is clear that the criminalisation of murder and persecution may serve
different values. The prohibition of murder aims at protecting innocent
civilians from being obliterated on a large scale. More generally, it
intends to safeguard human life in terms of armed conflicts. On the
other hand, the ban on persecution intends to safeguard civilians from
severe forms of discrimination. This ban is designed to reaffirm and
impose respect for the principle of equality between groups and human
beings.

710. This test then bears out and corroborates the result achieved by
using the other test. Under the conditions described above, the test
based on protection of values leads to the conclusion that the same act or
transaction (murder) may infringe two different provisions of Article 5
of the Statute.

28


Appendix

The New Law of Armed Conflict, 15 Canadian Yearbook of International Law.
1977, 3-41.

Rewriting the Laws of War: The Geneva Protocols of 1977. International Per-
spectives, November/December 1977, 36-43.

International Law and the Control of Barbarism. In Macdonald, Johnston and
Morris, The International Law and Policy of Human Welfare, 1978, 239-72.

From Empire through Commonwealth to ... ? 16 Alberta Law Review, 1978,
52-69.

D’Evolution Historique du Commonwealth. In Jacomy-Millette, Francophone
et Commonwealth: Mythe ou Réalité, 1978, 101-16.

Liability to the Unborn. 2 Medical Legal Quarterly, 1978, 82-96.

The Status of Mercenaries in International Law. 8 Israel Yearbook on Human
Rights, 1978, 9-62; 9 Manitoba Law Journal, 1979, 201-46.

Double Standards in the United Nations: The Legalization of Terrorism, 18
Archiv des Vélkerrechts, 1979, 129-48.

Derogation of Human Rights in Emergency Situations. 16 Canadian Yearbook
of International Law, 1978, 92-115.

Scientia Juris and the Soldier. 9 Id Dritt (University of Malta Law Review),
1978, 37-55.

The Legalisation of Terrorism. In Alexander et al., Terrorism: Theory and Prac-
tice, 1979, 177-97.

Human Rights and State Survival. 27 Chitty’s Law Journal, 1979, 121-7.

Jewish Issues on the Human Rights Agenda for the First Half of the 20th Cen-
tury. In Sidorsky, Essays on Human Rights, 1979, 297-308.

War Law and the Medical Profession. 17 Canadian Yearbook of International
Law, 1979, 159-205; 3 Legal Medical Quarterly, 1979, 175-96.

Jurisdictional Issues in International Criminal Law. 27 Chitty’s Law Journal,
1979, 355-60.

The Raw Materials of International Law. 29 International and Comparative Law
Quarterly, 1980, 187-205.

The Man in the Field and the Maxim Ignorantia Juris Non Excusat. 10 Revue de
Droit de l'Université de Sherbrooke, 1980, 135-56; 19 Archiv des Vélkerrechts,
1981, 169-87.

The Tehran Embassy Incident and International Law. 88 Behind the Headlines,
1980, No. 1, 23 pp.

Niceties and Necessities—The Case for Diplomatic Immunity. Intemational
Perspectives, March/April 1980, 19-23.

The Tehran Embassy Incident—Legal Aspects. 19 Archiv des Volkerrechts,
1980, 1-22.

573


Paul C. Szasz

incorporate a section in a general directive concerning the governance of UN
military forces) setting out somewhat more detailed provisions concerning the
observance of IHL, which would supplement the rather anodyne clauses re-
cited above. The General Assembly’s Special Committee on Peacekeeping Op-
erations in April 1995 called on the Secretary-General “to complete the
elaboration of a code of conduct for United Nations peace-keeping personnel,
consistent with applicable international humanitarian law, so as to ensure the
highest standards of performance and conduct.”6°

In June 1994 the ICRC arranged a Symposium on Humanitarian Action
and Peace-keeping Operations, and as a follow-up it convened in March and
October 1995 brief meetings of experts “to draw up a list of rules of inter-
national humanitarian law which were applicable to peace-keeping and peace-
enforcement operations and which should be taught in training programmes
for all troops supplied to the United Nations.”6! The ICRC’s experts designed a
relatively short list of rules excerpted from the basic instruments of IHL, going
back as far as the 1868 St. Petersburg Declaration® but relying most heavily on
the 1977 Protocol I to the 1949 Geneva Conventions.

This draft was conveyed to the Secretary-General and was considered
within the Secretariat for a number of years. This lengthy dwell time resulted
from several factors, including the diminished urgency due to the recent reduc-
tion in the number of UN operations in which military personnel are used for
any except rather modest protective functions. In this context, the extensive
references to combat operations and their consequences, such as the taking of
prisoners and the custody of enemy wounded, and the need to protect civilians
both in combat and in occupied territory, seemed to give a misleading impres-
sion of the scope and nature of UN military operations, especially the current
ones. One can also imagine that at least some of the troop-contributing States
would have expressed unease concerning the use of extracts from carefully ne-
gotiated treaties, in which particular rules are separated from the precisely
worded restrictions and limitations in which they were originally embedded,
and the heavy reliance on Protocol I, which has not yet gained the adherence
of many of the principal troop contributors (though the particular provisions
relied on are presumably not the ones these States find objectionable in the
Protocol). Thus, it could not have been easy to find a middle ground between,
on the one hand, the former general references to the principal conventions
and, on the other, an unconditional acceptance of these instruments, by pick-
ing and choosing as especially binding only the most significant provisions.

Although the General Assembly’s Special Committee on Peacekeeping Op-
erations, while continuing to urge the completion of this project, also expressed

517


Wolff Heintschel von Heinegg

indirectly, it may have had some effect on that law through the provisions dealing with relief
actions.”

122. W.A. SOLF, supra note 121, p. 336. See also SAN REMO MANUAL, para. 102: “The
declaration or establishment of a blockade is prohibited if: (a) it has the sole purpose of starving
the civilian population or to deny it other objects essential for its survival [. . .].” Article 54
Additional Protocol I is to be considered a “new rule” that, as such, is not yet part of customary
international law. In an annotation to NWP 1-14M, para. 8.1.2, the authors state that “Article
54(1) of Additional Protocol I would create a new prohibition on the starvation of civilians as a
method of warfare [. . .] which the United States believes should be observed and in due course
recognized as customary law [. . .]. Starvation of civilians as a method of warfare has potential
implications on the law of blockade [. . .].”

123. SAN REMO MANUAL, para. 102 lit. (b). This is also accepted by those authors who reject
an application of Article 54 of Additional Protocol I to naval blockades. See G.J.F. van
Hegelsom, Introductory Report, supra note 89, p. 46: “[.. .] ifthe sole purpose of the blockade is to
starve the civilian population, the blockade should be deemed illegal on the grounds that itis not
directed at a military objective [. . .]. Termination of the blockade might be prompted if the
collateral damage would be excessive in the light of the military advantage anticipated.”

124. According to Article 23, paragraph 1, of the Fourth Geneva Convention (1949), “each
High Contracting Party shall allow the free passage of all consignments of medical and hospital
stores and objects necessary for religious worship intended only for civilians of another High
Contracting Party, even if the latter is the adversary. It shall likewise permit the free passage of all
consignments of essential foodstuffs, clothing and tonics intended for children under fifteen,
expectant mothers and maternity cases.” Relief consignments for the civilian population are
regulated in Article 70, Additional Protocol I. The customary character of that provision is, inter
alia, recognized in NWP 1~14M, paragraph 7.7.3: “Similarly, neutral vessels and aircraft engaged
in the carriage of qualifying relief supplies for the civilian population and the sick and wounded
should be authorized to pass through the blockade cordon.”

125. M. Bothe, Commentary, supra note 121, p. 763 £; GJ.F. van Hegelsom, Introductory
Report, supra note 89, p. 46 £5 Y. Dinstein, supra note 94, 47 ff; Y. Sandoz, in: ICRC,
COMMENTARY, supra note 120, no. 2805; SAN REMO MANUAL, paras. 103 and 104. According
to Principle 5.3 of the Helsinki Principles, “a blockade may not be used to prevent the passage of
telief consignments which has to be free according to the applicable rules of international
humanitarian law, in particular those contained in Articles 23, 59 and 61 of the Fourth Geneva
Convention or Articles 69 and 70 of Protocol I Additional to the Geneva Conventions.” See also
the commentary thereon: “The provisions of the Geneva Conventions and the Additional
Protocol referred to in this principle constitute an exception to the general rules of blockade. It is
also submitted that these rules are part of customary law. Thus, they also bind those States which
have not ratified the treaties mentioned in this principle.”

126. SAN REMO MANUAL, para. 103. See also Article 23, para. 2, of the Fourth Geneva
Convention and Principle 5.3 of the Helsinki Principles. In the commentary to the latter
provision, the ILA states: “This obligation is, however, subject to the right to prescribe the
technical arrangements, including search, under which such passage is permitted, and the
condition that the distribution of such supplies shall be made under the local supervision of a
Protecting Power or a humanitarian organisation which offers guarantees of impartiality.”

127. Also covered are embargoes ordered by the Security Council pursuant to Article 41 if
the member States are entitled to enforce the respective embargo “by all necessary means”, i.e.,
the use of armed force. For example, by UN Security Council Resolution 217 of November 20,
1965, the United Kingdom was entitled to enforce the oil embargo against Rhodesia. The

229


International Law and the Conduct of Military Operations

and the civilian population of occupied territory—recent years have seen an
increased emphasis on what may be termed “front line law,” that law dealing
with the actual conduct of combat operations. This law requires, inter alia, that
the armed forces distinguish at all times between combatants and civilians, di-
rect attacks only against the military and military objectives 76 and not against
civilians or civilian objects, and refrain from attacking a military objective
when it is likely that to do so would cause collateral civilian loss and damage
which would be excessive in relation to the concrete and direct military advan-
tage anticipated from the attack.2? It is evident that principles of this kind, if
properly observed, have a significant impact on the way in which the military
conduct operations, which is quite different from, e.g., the requirement of hu-
mane treatment of prisoners of war.

This paper cannot review the whole of the laws of war, and even a brief sur-
vey of the treaties and other developments of the last decade would exceed
what is possible here.?8 Instead, this part of the paper will examine certain is-
sues likely to prove particularly important in the wars of the future.

The Scope of Application of the Laws of War. One of the most difficult
questions raised by the laws of war is when those laws apply. Declarations of
war are today almost unknown and the laws of war are no longer confined to
the handful of cases—such as the Arab-Israel conflict—in which a formal state
of war may be said to exist.” It is common ground that the laws of war today
apply to any armed conflict between two or more States, whether or not the
belligerents recognize that they are at war? Moreover, there has been a
tendency to give the concept of armed conflict a very broad definition. The
United States, for example, maintained that when Syrian anti-aircraft batteries
in the Bekaa Valley shot down a United States Navy plane and captured its
pilot, that incident gave rise to an armed conflict and the pilot was accordingly
entitled to be treated as a prisoner of war. The U.S. note to Syria added that the
conflict had ended after only a few hours and Syria was therefore under a duty
to return the pilot?! This interpretation of “armed conflict” is, perhaps,
somewhat elastic, but the International Criminal Tribunal for the Former
Yugoslavia and the International Committee of the Red Cross have both
treated the concept as broad enough to cover any fighting between two or more
States, even if the scale of the fighting is small and the duration brief. In this
respect, the popular use of terms such as “Operations Other Than War” tends
to mislead, since military operations by one State against another become
subject to the laws of war as soon as they result in the use of force between the

190


Naval Blockade

il s’agirait seulement de déterminer, en examinant les mines, comme moyen de
nuire & l’ennemi, si l’on peut s’en servir dans le but de barrer la navigation
commerciale de l’adversaire—question & laquelle, parait-il, on devrait répondre
négativement. Cela établi, on pourrait confier au Comité le soin de bien faire
ressortir cette pensée commune, tout en laissant hors de discussion l’application,
au sujet de l’emploi des mines, des principes de la Déclaration de Paris
concernant l’effectivité du blocus.44

Although the Third Commission did not intend to agree on rules applicable
to blockades, some of the participants drew the conclusion that Article 4, para-
graph 3, prohibited the establishment of a blockade by the laying of mines
only.#5 Be that as it may, the vague formulation in Article 2 of Hague Conven-
tion VIII (which is identical with Article 4, paragraph 3, of the draft) gave—
and still gives—tise to dispute. But even if the provision applied to an enforce-
ment of a blockade by naval mines, it would be quite difficult to establish
whether its sole purpose was, indeed, to intercept commercial navigation.46

Hence, it was left to the 1909 London Conference to codify the law applica-
ble to naval blockades. The 21 articles devoted to that subject in the 1909 Lon-
don Declaration can be summarized as follows:4” A blockade, in order to be
binding, must be effective, that is to say, it must be maintained by a force suffi-
cient really to prevent access to the enemy coastline (Article 2). Whether that
precondition is met is, however, a question of fact (Article 3). The delegates to
the 1909 Conference were unable to agree upon a more specific rule. They ex-
pected that the determination of effectiveness was in any case reserved to the
competent (international or national) prize court.48 According to Article 4, a
blockade is not regarded as raised, and thus remains effective, if the blockading
force is temporarily withdrawn on account of stress of weather. It must be ap-
plied impartially to the ships of all nations (Article 5), and warships (Article 6)
and merchant vessels in distress (Article 7) may be allowed to enter and leave a
blockaded port or place. The declaration and notification are constitutive for a
blockade’s legality (Articles 8, 10, and 11).49 A declaration of blockade is made
either by the blockading power or by the naval authorities acting in its name. It
must specify (1) the date when the blockade begins, (2) the geographical limits
of the coastline under blockade, and (3) the period within which neutral ves-
sels may come out (Article 9). Additionally, it must be notified to both neutral
powers and the local authorities (Article 11). The provisions on declaration
and notification also apply to cases where the limits of a blockade are extended
or where a blockade is re-established after having been raised (Article 12). No-
tice is similarly required upon the voluntary raising or any restriction in the lim-
its of a blockade (Article 13). If no declaration of blockade has been notified to

208


XVU

Chivalry in the Air?
Article 42 of the 1977 Protocol I to the Geneva Conventions

Robbie Sabel

| HE DECISIVE TEST FOR ANY RULE OF HUMANITARIAN LAW is whether,

to the soldier in an active combat situation, it would appear to be an in-
stinctively apparent and reasonable rule. In my experience as a teacher and lec-
turer, I have found that any initial skepticism soldiers may have as to the laws of
war is quickly dispelled when one enumerates the basic norms of humanitarian
law.! No soldier, in my experience, has ever seriously questioned Common Ar-
ticle 32 norms such as respect for civilians, persons hors de combat, and prisoners
of war. From that initial premise, a teacher finds it easier to proceed to the more
involved rules that often require legal training for their effective implementa-
tion.

Ifa rule of humanitarian law fails the instinctive morality test of the combat
soldier, that rule will most probably not be applied in actual combat. Although
the rule may be applied in a forensic post mortem as part of a military disciplinary
court, we will not have achieved our objective, namely that it be applied by sol-
diers in the heat of battle.

Does the rule as to protection of airmen} in distress pass the decisive test?
Would it seem to ground troops to be instinctively wrong and immoral to fire
on a crew parachuting from a military aircraft in distress? There seems to be
near unanimity in the manuals and legal textbooks that, in principle, airmen


Index

B

BASSIOUNI, M. CHERIF, 1, 581
BELLIGERENTS, 4, 26, 131-48, 190, 205, 209-13, 350, 391, 491, 493-99
BLOCKADE, LAW OF, 203-30, 490-91

See also FORCE, USE OF; SHIPS AND SHIPPING

Bab El-Mandeb(1973), 212”

Bangladesh (1971), 211

Breach, Consequences of, 215

Definition, 203

Doctrine of Continuous Voyage, 205, 209, 215-18

Eilat (1967), 212

Freedoms of Navigation and Overflight, 216

Geneva Convention, Additional Protocol I, 217

Grotius, 205

Gulf of Aqaba (1967), 212

Humanitarian Relief Exception, 216

Traq (1980), 212

Korean War, 211

Long-distance Blockade, 209-211, 216

Shat-al-Arab (1980), 212

United Nations Charter, 217

United Nations Security Council, 217-18
BRING, OVE, 57, 581

CAMBODIA, 9, 37, 186, 432
Khmer Rouge, 8
CANADA, 36, 263, 322, 325, 340, 444
Crimes Against Humanity, 36
Yugoslavia v. Canada (IC}), 325
CEASE-FIRE, 146-52, 159, 187, 471, 510
See also LAW OF ARMED CONFLICT; YOM KIPPUR WAR, Cease-Fires
Breach, 151~52 .
Local v. General Agreement, 147-48
CELESTIAL BODIES, 81-109
See also OUTER SPACE
CHEMICAL WEAPONS CONVENTION (1993), 191, 339
See also GENEVA GAS PROTOCOL (1925); WEAPONS, Chemical
CHENG, BIN, 81, 581
CHINA, PEOPLE’S REPUBLIC OF, 75, 211, 267, 280, 283, 321-23, 357, 455, 550
CIVIL AVIATION, see under AVIATION
CIVIL WAR, 188, 192, 485, 493
See also LAW OF ARMED CONFLICT, International v. Non-International
Definition, 267
Genocide (distinguished from), 122

590




The Rome Statute on the International Criminal Court

72. P. Kirsch and J.T. Holmes, supra note 3, 9.

73. U.N. Doc. A/CONF. 183/C.1/L.59, July 10, 1998, 10-12.

74. According to The Rome Treaty Conference Monitor, July 10, 1998, 2, “23 States
displayed their dismay that universal jurisdiction was not reflected.” Note also the reaction of the
German Delegation, as expressed in a statement by Hans-Peter Kaul, Acting Head of
Delegation, in the CW on July 9, 1998, which was also one of dismay and reiterated the belief
that their approach was legally sound “and acknowledged in international legal doctrine as well
as through extensive State practice.”

75. P. Kitsch, The Rome Conference on the International Criminal Court: A Comment A.S.I.L.
NEWSLETTER, Nov—Dec. 1998, 1, 8.

76. The United States had argued earlier for a ten-year transitional period for war crimes and
crimes against humanity. Note that Article 124 is to be reviewed at the review conference to be
convened seven years after the entry into force of the Statute, in accordance with Article 123.
Those States participating in the Assembly of States Parties established in Article 112 will be
eligible to be present.

71. The Rome Treaty Conference Monitor, July 18, 1998, No. 26, 2.

78. U.N. Doc. A/CONF. 183/C.1/L.90.

79. Proposed by Norway. Sweden and Denmark spoke for and China and Qatar against.

80. The new Preparatory Commission (PrepCom) set up by the United Nations General
Assembly had four meetings between February 16-26, 1999, July-August 1999,
November—December 1999, and March 2000. Its mandate includes defining aggression. Such a
definition will then have to be adopted under the provisions dealing with amendments and
review of the Statute, namely Articles 121 and 123. However, this is not subjected to the same
time constraints as the drafting of the Rules of Evidence and Procedure and The Elements of
Crimes which must be accomplished by the end of the June 2000 meeting.

81. In accordance with Article 14.

82. In accordance with Article 15.

83. At the outset of the Conference many delegations, including China, France, India,
Mexico and several non-aligned States, had supported the “State consent” proposal, requiring
consent even from States Parties for each prosecution.

84. The various United Nations Conventions dealing with international terrorism use these
bases of jurisdiction along with passive personality and the presence of the accused (custodial
State) to allow for extradition or prosecution by domestic criminal courts. See, e.g., Article 6 of
the 1979 International Convention Against the Taking of Hostages, 1316 U.N.T.S. 205, and
Article 6 of the 1997 International Convention on the Suppression of Terrorist Bombings, U.N.
Doc. A/RES/52/164.

85. Compania Naviera Vascongado v. Steamship Cristina, [1938] A.C. 485, 496, per Lord
MacMillan. The ambit of the territorial principle has been interpreted in some domestic courts
to allow for criminal prosecution when a significant portion of the elements, if not all, of the
crime occur in the State. It isa real and substantial link test that is applied and it is in accord with
the principle of international comity. See, e.g., the Canadian case of Libman v. The Queen,
[1985] 2 Supreme Court Reports 178.

86. See, e.g., North Atlantic Status of Forces Agreement, 1951, 1953 Can. T. S. No. 13, and
the Agreement Concerning the Jurisdictional Immunities of U.N. Forces Between the United
Nations and Cyprus, 1964, 492 U.N.T.S. 57.

87. Supra note 84. Furthermore, the international terrorism conventions oblige States Parties
to amend their domestic criminal law to provide for wide bases of jurisdiction over the offence,
including the presence of the offender in its territory, and the obligation of aut dedere, aut

562


Index

R

REPRISAL, 241, 279, 303-04, 361, 365, 464, 534
See also FORCE, USE OF; LAW OF ARMED CONFLICT; SANCTIONS; SELF-DEFENSE
Middle Ages, 303
REPUBLIC OF KOREA, see KOREA, SOUTH
RHODESIA, 271
RIVERS AND WATERWAYS
Convention on Non-Navigational Uses of International Watercourses (1997), 231, 235, 238,
240-42
Dispute Settlement, 231-42
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
See INTERNATIONAL CRIMINAL COURT STATUTE
ROSENNE, SHABTAI, 387, 586
RUBIN, ALFRED P., 421, 586
RULES OF ENGAGEMENT, 171, 180, 196-97, 360, 522
United Nations Peacekeeping Operations, 522
RWANDA, 5, 31, 33, 308, 314, 328, 330, 422, 430, 432
See also INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR)
Genocide, 314, 328
Rape, 308

SABEL, ROBBIE, 439, 586
SANCTIONS, 69, 77, 293, 430
See also FORCE, USE OF; REPRISAL; SECURITY COUNCIL, Enforcement Actions; UNITED
NATIONS CHARTER, Enforcement Actions
Arms Embargo, 188-89, 315
Iraq, 471
Libya, 282
Yugoslavia, Federal Republic of, 188-89, 315
SCHMITT, MICHAEL, xiv, 455, 586
SCHWARZENBERGER, GEORG, xiii, xvi, 483, 587
SECURITY COUNCIL (UN)
See also UNITED NATIONS
Blockades, 217-18, 271
Enforcement Actions, 181, 184-88, 193, 195-96, 267, 269-71, 513
Force, Use of, 181, 188, 279, 314
Iraq, 149, 183-84, 186, 267, 270, 508
Israel, 143, 147, 148
Korean War, 270, 508
Kosovo, 321-25, 328-30
Namibia, 511
Rwanda, 5, 308
Somalia, 188, 308 -
Yugoslavia, Former, 5, 186, 253, 308, 315-23, 403-04
SELF-DEFENSE, 66, 69, 72, 105, 109, 150, 181-85, 192, 212, 279, 469, 498, 518, 522, 525

602


International Criminal Court

agents. But the polemics and moral arguments have always been available to
outsiders. And bolstering those arguments by embodying the moral rules in
positive documents in the form of “legal” commitments was accomplished in
1949. The great change now has been the creation of an organ empowered to
oversee the internal affairs of States parties and limit the application of force
used either in revolution or to suppress that revolution.

The ideal commends itself. But it is very difficult to see how this arrange-
ment can work in the current legal and political order. Who should arrest the
generals in command of the forces defending an authority structure, whether
established or revolutionary, already in place—Ariel Sharon, Saddam Hussein,
Yasser Arafat, a Russian general involved in the Chechnya campaign, the
Chechen leaders? And surely the evidence of recent experience in Somalia and
elsewhere makes it clear that even foreign troops sent in as world-police occa-
sionally commit acts which amount to indictable war crimes. In most cases,
these last can be governed well by their own municipal military organizations.
But not in the former cases and not in all of the latter. Can a Prosecutor under
Article 53 of the Statute be placed in position as the referee of revolutions? It
seems to me that even if the positive law placed him or her in that position, the
States agreeing to the Statute would refuse to carry out the obligations that a
diligent and objective Prosecutor would need carried out if s/he were to per-
form his or her statutory functions. Indeed, in Article 54 of the Statute, the au-
thority of the Prosecutor seems to be restricted. S/He is authorized to “request
the presence” of witnesses but not compel it; to “seek the cooperation of any
State” but not to demand it and not to act within a State’s territory without its
permission. I doubt that these provisions can be strengthened to give the Prose-
cutor the necessary authority at the expense of States parties to the Statute. It
is even more doubtful that s/he could assert the necessary authority over revo-
lutionary groups that are not even parties to the Statute, and thus not subject
to its obligations, unless there is a serious move to world governance and to
abolish the legal and political effects of even a successful revolution.

With regard to international armed conflicts, the situation is also untenable.
Suppose, in an international armed conflict like the Gulf War of 1991, a mili-
tary leader in the position of General Norman Schwarzkopf were to be ar-
raigned for ordering the bombing of what later turned out to be a civilian bomb
shelter. Would a State in the position of the United States not argue that its
own legal order was operating and capable of handling the situation? But would
that assertion be believed by the relatives of those civilians who had been
killed? Or anybody else? And if somebody in the position of General
Schwarzkopf were to be surrendered to the ICC for trial, how could s/he defend

428


Naval Blockade

savoir quand et comment un blocus peut étre établi, est du ressort de la Quartitme

Commission, qui aurait & s’occuper de la matitre du blocus de guerre; c’est notamment &

la Quatrigme Commission qu’il devrait appartenir de se prononcer sur toute question

concernant l’effectivité du blocus.
printed in: TH. NIEMEYER, URKUNDENBUCH, supra note 24, p. 772.

43. Printed in: TH. NIEMEYER, URKUNDENBUCH, supra note 24, p. 772.

44. Printed in: TH. NIEMEYER, URKUNDENBUCH, supra note 24, p. 773.

45. For example, Rear Admiral Siegel during the fifth session on September 17, 1907.

46. Hence, Rear Admiral Siegel was right when he stated: “C’est la une clause qui laisse au
belligérant une échappatoire bien dangereuse”; printed in: TH. NIEMEYER, URKUNDENBUCH,
supra note 24, p. 805.

47. For a more detailed discussion, see N. BENTWICH, THE DECLARATION OF LONDON,
London 1911, p. 44 ff.; F. Kalshoven, Commentary on the 1909 London Declaration, in: N. Ronzitti
(ed.), THE LAW OF NAVAL WARFARE, Dordrecht et al. 1988, pp. 257-275; NAVAL WAR
COLLEGE, THE DECLARATION OF LONDON OF FEBRUARY 26, 1909, Washington, D.C. 1910, p.
25 ff.

48. See the Rapport général présenté a la Conférence Navale au nom du Comité de
Rédaction; printed in: TH. NIEMEYER, URKUNDENBUCH, supra note 24, p. 1604 ff., 1608.

49. While, according to the French position, the notification was regarded as constitutive, by
the Anglo-American ‘position knowledge of the establishment of a blockade was considered
sufficient. See C.J. COLOMBOS, supra note 4, §$ 826 ff; H. Wehberg, Seekriegsrecht, supra note
10, p. 164 f.; G. SCHRAMM, PRISENRECHT, supra note 40, p. 202 f. See also the different
proposals submitted to the 1907 Hague and to the 1909 London Conferences and the Rapport
général; printed in: TH. NIEMEYER, URKUNDENBUCH, supra note 24, pp. 1247 ff. and 1610.

50. According to Article 15, knowledge is presumed, failing proof to the contrary, “if the
vessel left a neutral port subsequently to the notification of the blockade to the Power to which
such port belongs, provided that such notification was made in sufficient time.”

51. W.E. HALL, INTERNATIONAL LAW, Oxford 1880, p. 846 ff.; H. Wehberg, Seekriegsrecht,
supra note 10, p. 170. In the Rapport général (printed in: TH. NIEMEYER, URKUNDENBUCH,
supra note 24, p. 1616) it is made clear that:

Le rayon d'action d'une force navale bloquante pourra s’étendre assez loin, mais,
comme il dépend du nombre des batiments concourant a l’effectivité du blocus, et comme
il reste toujours limité par la condition d’effectivité, il n’atteindra jamais des mers
éloignées sur lesquelles naviguent des navires de commerce, peut-étre destinés aux ports
bloqués, mais dont la destination est subordonnée aux modifications que les circonstances
sont susceptibles d’apporter au blocus au cours du voyage. En résumé, l’idée de rayon
action liée A celle d'effectivité telle que nous avons essayé de la définir c’est-d-dire,
comprenant la zone d’opérations des forces bloquantes, permet au belligérant d’exercer
d'une matiére efficace le droit de blocus qui lui est reconnu, et, d’un autre cété, elle évite
aux neutres d’étre exposés a grande distance aux inconvénients du blocus, tout en leur
laissant courir les dangers auxquels ils s’exposent, sciemment en s’approchant des points
dont l’accés est interdit par le belligérant.

52. See the references in G. SCHRAMM, PRISENRECHT, supra note 40, p. 203. Many of those
national prize regulations can be found in: H. HECKER/E. TOMSON, VOLKERRECHT UND.
PRISENRECHT, Frankfurt a.M./Berlin 1965, p. 29 ff.

222


The Normative Framework of International Humanitarian Law

eliminates the need for the Prosecutor to make an outcome-determinative de-
cision at the charging stage of the criminal proceedings as to what crime or
crimes to charge, thus leaving the Prosecutor with some leeway that may at
times permit what is commonly referred to as the “shotgun approach.”!36 The
Romanist/Civilist/Germanic-influenced systems are positivistic systems,
whereby a Prosecutor must charge the crime that the law requires based on the
facts of the case. The Prosecutor does not have the leeway of presenting alter-
native charges that differ as to their elements unless they are what is considered
to be “lesser included crimes.” Even so, the Prosecutor is bound by law to
charge and press for the crime which the law presupposes applies best to the
facts.

The common law’s pragmatic approach which gives the Prosecutor some
leeway in presenting multiple charges for the same conduct, even though they
may differ as to their elements, in effect transfers the problem of specificity of
charges and outcomes to the stage of sentencing. Thus, the issue is no longer a
technical legal issue of deciding specifically on the legally appropriate crime to
charge, as opposed to multiple charges that may apply to the conduct in ques-
tion, but whether the penalty shall be a single penalty, multiple penalties run-
ning concurrently, or multiple penalties running consecutively. 137

The Romanist/Civilist/Germanic systems are more positivistic than the
common law that relies on customary law more than on codified law. Conse-
quently, they are more rigid in their approaches, and they require, in the event
that a given conduct can give rise to different criminal charges, that the Prose-
cutor make such an election at the stage of the formal charges. Therefore, a
person must be charged with a specific crime and not with alternative crimes or
different crimes requiring different elements depending on how, in the case of
the common law, a jury may determine which facts satisfy what crime. Neverthe-
less, the Romanist/Civilist/Germanic-influenced legal systems recognize two
eventualities of overlap. The first is the concours idéal d’infraction, which is
when the legislation promulgates multiple crimes that have the same legal ele-
ments. This is essentially the case with respect to certain aspects of the crimes of
genocide, crimes against humanity, and war crimes, as defined in the ICC’s Ar-
ticles 6, 7, and 8, and as developed in the “elements of crimes” adopted by the
Preparatory Commission at its Fifth Session of June 30, 2000.138 The second
eventuality arises whenever a given criminal conduct is sufficient to satisfy the
elements of more than one crime. That too is the case with respect to the ICC’s
three crimes. The distinction between the two approaches is that the first deals
with an overlap of the law and the second deals with a factual situation that
may satisfy the required legal elements of more than one provision of the law.

22


Appendix

Canada’s Jurisdiction over the Arctic and the Littoral Sea. In Yates and Young,
Limits to National Jurisdiction Over the Sea, 1974, 207-29.

Canada, Pollution Control and the Law. In Dwivedi, Environmental Issues in
Canada, 1974, 139-58, 311-3.

North America’s Indians and the Trusteeship Concept. 4 Anglo-American Law
Review, 1975, 137-62.

Extradition v. Asylum for Aerial Hijackers. 10 Israel Law Review, 1975, 207-24.

The Geneva Humanitarian Law Conference 1975. 13 Canadian Yearbook of In-
ternational Law, 1975, 295-305.

“Civilized” Law and “Primitive” Peoples. 13 Osgoode Hall Law Journal, 1975,
233-49; Rentein & Dundes, Folk Law, 1994, Vol. 2, 753-774.

International Law and the Suppression of Terrorism. In Malaya Law Review Le-
gal Essays, 1975, 129-63.

A Question of Ethics: The Right to Live and Die. Edmonton Journal, 8 Novem-
ber 1975.

Violence and the Law. 23 Chitty’s Law Journal, 1975, 184-8.

An International Criminal Code—NOW? 3 Dalhousie Law Journal, 1976,
560-74.

Canadian Perspectives on Terrorism. In Alexander, International Terrorism:
National, Regional and Global Perspectives, 1976, 3-29.

Sterility, Sexuality, Marriage and the Law. In King-Farlow and Sheu, Values
and the Quality of Life, 1976, 53-73.

Journalists in Battle Areas. The Times, 1 March 1976.

Trusteeship and Canada’s Indians. 3 Dalhousie Law Journal, 1976, 104-35.

Aftermath of Vietnam: War Law and the Soldier. In Falk, 4 The Vietnam War
and Intemational Law, 1976, 147-75.

Humanitarian Intervention—1976 Version. 24 Chitty’s Law Journal, 1976,
217-25.

Humanitarian Law and the Man in the Field. 14 Canadian Yearbook of Interna-
tional Law, 1976, 96-115.

Rescue at Entebbe—Legal Aspects. 6 Israel Yearbook on Human Rights, 1976,
312-29.

Sovereignty, Resources and the Law of the Sea. In Stevenson and Hillmer, A
Foremost Nation, 1977, 126-49.

Law, Sex and the Population Explosion. 1 Medical Legal Quarterly, 1977,
82-106; 19 Malaya Law Review, 1977, 81-117.

The Role of Legal Advisers in the Armed Forces. 7 Israel Yearbook on Human
Rights, 1977, 154-65.

572


International Humanitarian Law from Agincourt to Rome

Convention which require prosecution or extradition. Finally, it took the mass
rape in the former Yugoslavia, so well publicized by the media, followed by
widespread rape in Rwanda, to generate rapid changes.

International humanitarian law does not develop in a rational and gradual
way. It develops spasmodically in response to atrocities. It is a pity that calami-
tous events are needed to shock the public conscience into focusing on ne-
glected areas of the law. The more offensive the occurrence, the greater the
pressure for rapid adjustment. Nazi atrocities, for example, led to the establish-

“ment of the Nuremberg tribunals, the evolution of the concepts of crimes
against peace, crimes against humanity and the crime of genocide, the shaping
of the Fourth Geneva Convention, and the birth of the human rights move-
ment. The starvation of Somali children prompted the Security Council to ap-
ply Chapter VII of the Charter to an essentially internal situation, bringing
about a revolutionary change in our conception of the role of the Security
Council to enforce peace in such situations.

The Hague and Rwanda Tribunals

Instant reporting from the field has resulted in rapid sensitization of public
opinion, greatly reducing the time lapse between the perpetration of such trag-
edies and responses to them. It took the repeated and massive atrocities in the
former Yugoslavia and then in Rwanda to persuade the Security Council to es-
tablish the two ad hoc criminal tribunals and to start the momentum towards
the establishment of a standing international criminal court. The statutes of
the ad hoc tribunals criminalized rape as a crime against humanity. At the same
time, both the ICRC and the United States started interpreting the grave
breaches provisions of the Geneva Conventions as encompassing rape.

The Hague Tribunal has issued several important decisions that clarify and
give judicial imprimatur to some rules of international humanitarian law. It has
made a real contribution to the elucidation of crimes against humanity and to
establishing that customary law war crimes apply also to non-international
armed conflicts. Let us remember that as recently as 1949, the Geneva Con-
ventions contained only one articlk—common Article 3—which addressed
non-international armed conflicts. Until the mid-90’s, its violation was consid-
ered not to involve individual criminal responsibility.

The Rwanda tribunal has issued important decisions on its competence and
on genocide. The work of both tribunals demonstrates that international in-
vestigations and prosecutions of persons responsible for serious violations of in-
ternational humanitarian law are possible. These developments have created a

308


Outer Void Space Not Reserved for Exclusively Peaceful Use

qualified by the adjective “military,” namely, “military bases, installations and
fortifications,” “military manceuvres,” and “military personnel” also confirms that
what is meant in the last sentence is “military equipment or facility.”

The existence of the last two sentences in Article IV(2) permitting the use
of military personnel and equipment or facilities for respectively peaceful pur-
poses and peaceful exploration® shows clearly that Article IV(2) of the Space
Treaty, like Article I of the Antarctic Treaty, must have felt that such explicit
exemptions were necessary, and this could only be because there is a blanket
prohibition of military uses in the first sentence. Otherwise, since the research
and exploration need be only for “non-aggressive purposes” and not “non-mili-
tary,” it goes without saying that any personnel and equipment can be used.

As to these last two sentences, the opinion is sometimes voiced that, since
military personnel and equipment can be used, Article IV(2) cannot possibly
intend to prohibit the use of celestial bodies for military purposes, and “peace-
ful” must mean non-aggressive, or at least something in between.®+ Such views
ignore the precedent of the Antarctic Treaty, and what was so well explained
by Edwin B. Parker, the umpire in the United States-German Mixed Claims
Commission (1922) in Opinion Construing the Phrase “Naval and Military Works
or Materials” as Applied to Hull Losses and Also Dealing with Requisitioned Dutch
Ships (1924), which graphically shows that the test of whether an activity or
equipment is of a military or non-military character can be an essentially func-
tional one and not one of nominal status. He said in that case:

The taxicabs privately owned and operated for profit in Paris during September,
1914, were in no sense military materials, but when these same taxicabs were
requisitioned by the Military Governor of Paris and used to transport French
reserves to meet and repel the oncoming German army, they became military
materials, and so remained until redelivered to their owners. The automobile
belonging to the United States assigned to its President and constitutional
commander-in-chief of its Army for use in Washington is in no sense military
materials. But had the same automobile been transported to the battlefront in
France or Belgium and used by the same President, it would have become a part
of the military equipment of the Army and as such impressed with a military
character.65

Thus, in reverse, the fact that the first person in space was a Soviet military
officer, and two of the three men who first flew to the moon were respectively a
United States Air Force colonel and Air Force lieutenant colonel did not pre-
clude their flights from being explorations of outer space for peaceful purposes.
The essential criterion is the purpose of the activity.

102


International Law and the Conduct of Military Operations

international peace and security within the meaning of Article 39 of the
United Nations Charter, so that the Security Council has the legal power to
act, and that the use of force of the degree and kind proposed is a legitimate
method of addressing that threat. Otherwise, it will not be able to secure the
support needed to obtain a mandate from the Security Council.

The legal basis for resorting to force has an important impact both at the
strategic level of decision making and, through the medium of rules of engage-
ment, at lower levels of command. We have already seen that the existence ofa
Security Council mandate can affect the purpose for which force may be used
and, therefore, the degree of force which may be employed. In the case of the
Kuwait conflict, the existence of a Security Council mandate enlarged the
scope of the Coalition’s right to use force beyond what would have been per-
mitted in self-defence. A mandate which is drawn more narrowly than that in
Resolution 678 may, however, have an important limiting effect. In the opera-
tions in Bosnia-Herzegovina between 1992 and 1995, the mandate given to
UNPROFOR and the secondary mandate conferred upon NATO to use air
power in support of UNPROFOR were limited both as to ends and means. To
take just a few examples:

* The authorization given by the Security Council to NATO to use air

power to enforce the ban on military flights over Bosnia-Herzegovina was
for a long time limited to the air space of Bosnia itself, so that, for a
considerable time, NATO was not authorized to use force against Serb air
bases in the Serb-held parts of Croatia, even though these were being
used for air operations over Bosnia.

* It was unclear to what extent the mandate permitted the use of air power
to protect the “safe areas” in Bosnia, nominated by the Security Council,
although the real problem here lay less in the clarity of the mandate than
in the ill-thought-out nature of the “safe areas” and the lack of willingness
to defend them in 1995.

* When agreements restricting the use of heavy weapons in certain parts of
Bosnia were concluded under the auspices of the UNPROFOR com-
mander in 1994, it is unclear to what extent, if at all, either UNPROFOR
or NATO was empowered to use force in response to violations of those
agreements.

It is clear that these issues had an effect upon the rules of engagement issued
to UNPROFOR and NATO forces and that, in some respects, they were more
restrictive of NATO action than would have been the case had NATO relied
not upon a Security Council mandate but upon collective self-defence.! It
should, however, be realized that the proportionality principle in self-defence

196


The Law of Armed Conflict as Soft Power
Optimizing Strategic Choice

Michael N. Schmitt

Aww THE MAJOR WESTERN MILITARY POWERS, the United States is
distinguished by non-participation in various core legal regimes gov-
erning armed conflict. Perhaps most significant is its continued refusal to ratify
the 1977 Additional Protocol I to the four Geneva Conventions of 1949, an in-
strument that most States consider the linchpin of this body of law.! Today, the
United States is one of only three NATO countries which is not Party to the
Protocol, and of the remaining two, France and Turkey, the former is expected
to ratify the agreement in the near future. The United States also rejected the
1997 Ottawa Treaty, which prohibits the use, stockpiling, production, or trans-
fer of anti-personnel mines.” By March 1999, over 135 States had signed or ac-
ceded to the treaty, including every NATO ally except Turkey. More recently
still, in 1998, the United States refused to sign the Statute of the International
Criminal Court (ICC),3 a constitutive instrument for the first permanent inter-
national tribunal to handle genocide, crimes against humanity, war crimes, and
crimes of aggression. Of the countries represented at the Rome Conference,
where the final drafting of the Statute occurred, only seven voted against the
treaty. Joining the United States in opposition were China, Iraq, Israel, Libya,
Qatar, and Yemen, hardly an admirable grouping of bedfellows.4 Such exam-
ples are illustrative, not exhaustive. Over the past half decade, the United


Jus Pacis ac Belli?

be the state of normality in the inter-State system. By the opposite procedure,
others arrive at the same result. They assert that war is not at all incompatible
with international law, but comparable to legal institutions such as self-help,
the right of action, something like the sanction or law of procedure by means of
which the law of peace is realized.3°

It should not be denied that, in certain circumstances, war is an agency of
self-help and of the violent adaptation of international society to fundamen-
tally changed conditions. Yet it would be highly unrealistic to maintain that
these are the only or even the main functions of international law. The func-
tions of war are as manifold as the objects of power politics.

Thus, it appears that neither the self-denying classification of war as a fact
nor the ad hoc sociology of international lawyers can furnish proof for the thesis
that peace is the normal state in international law and relations. In the idealis-
tic variety of naturalist doctrine, the primacy of peace was logically assured by
the concept of the bellum. If modern doctrine were consistent, it would have to
derive its assertions regarding the normal or exceptional character of peace and
war from the detached observation of the reality of international relations. The
actual fluctuations between periods of peace and war do not seem to justify a
doctrine of the normality of peace.3! This assumption, therefore, is nothing
more than a lingering relic of naturalist philosophy on the nature of man.

The doctrine of the alternative character of peace and war and the reality of
State practice. In the systems of naturalist writers, this doctrine is perfectly
understandable. As they keep reprisals within very narrow limits, and jural war
depends on a causa justa, “War and peace are correlatively opposite, and what
is said affirmatively of the one is said negatively of the other.”>? Thus, Grotius
can quote Cicero with approval: “Inter bellum et pacem nihil est medium.”®? It
should not, however, be forgotten that even amongst naturalists this doctrine
was not upheld with unanimity. In the words of Pufendorf,*# “some states more
expressly denote a relation toward other men than do others, since they signify
distinctly the mode in which men mutually transact their business. The most
outstanding of these are peace and war.”

In view of the fact that modern doctrine does not and can not insist on a just
cause as a condition of legal war, and State practice has made extensive use of
military reprisals, pacific blockades, and similar devices, the proposition of the
alternative character of peace and war as part of modern international law35 re-
quires to be proved to be believed. It may claim to be in accordance with the
practice of English courts.3° Their view may be summarized in the words of
Lord Macnaghten in Janson v. Driefontein Consolidated Mines, Ltd.: “The law

490


International Criminal Court

“grave crimes”; in paragraph five to “such crimes”; in paragraph six to “interna-
tional crimes.” While the reference to “the most serious crimes of concern to
the international community as a whole” in paragraphs four and nine might re-
late to municipal law crimes (i.e., “crimes” so designated by a municipal legal
order, the suppression of which might be of concern to the entire international
community),? paragraph ten speaks of an International Criminal Court to be
“complementary to national criminal jurisdiction,” thus implying the existence
of “crimes” not defined by municipal law but by international law directly.

Yet the international community has no organ capable of legislating crimi-
nal law to its members other than the ICC as newly minted. For example, refer-
ences in conventional wisdom to “piracy” as an “international crime” simply
cannot stand scholarly examination. Despite much dicta referring to piracy
“jure gentium,”> there are no actual cases to support the notion that “piracy” is
anything other than a municipal law “crime” in many countries.‘ All attempts
internationally to codify the essential elements of the supposed “crime,” in-
cluding the “piracy” provisions of the 1982 United Nations Convention on the
Law of the Sea, turn out to be meaningless when read carefully.>

The notion that there is “universal jurisdiction” over the supposed “univer-
sal offense” of “piracy” also fails when the concept of “jurisdiction” is examined
non-polemically. There might be a universal jurisdiction to prescribe (i.e.,
States might tailor their municipal legislation to make criminal, by their respec-
tive municipal laws, the acts of foreign “pirates” against foreigners in foreign
territory or the high seas). But nobody has ever acknowledged a foreign coun-
try’s “universal jurisdiction,” without the permission of the territorial or flag
State, to enforce its municipal prescriptions in foreign territory or on board ves-
sels properly flying a foreign flag, even in an “enforcing” State’s own port. And
even where theie has been a permitted arrest of a foreigner on board a foreign
vessel, the arresting authorities usually seem to lack the “jurisdiction to adjudi-
cate” necessary for a successful prosecution unless there has been some real
link between the offense or the offender and the State attempting to apply its
municipal law to him or her.6

Similarly, the notion that “war crimes” involve universal jurisdiction not
only to prescribe but also to enforce and to adjudicate is far more than the evi-
dence will bear. At best there have been “victors’ tribunals” as at Nuremberg,
or tribunals to which the States concerned have been construed, rightly or
wrongly, to have agreed, such as the tribunals at The Hague and Arusha appli-
cable to events in the Former Yugoslavia and Rwanda.”

The reasons why jurisdiction to adjudicate is limited even in the case of
so-called “universal crimes” are deeply rooted in the structure of the

422


The Normative Framework of
International Humanitarian Law
Overlaps, Gaps and Ambiguities

M. Cherif Bassiouni

HE YEAR 1998 MARKED THE FIFTIETH ANNIVERSARY of the Universal

Declaration of Human Rights! and the Convention on the Prevention
and Punishment of the Crime of Genocide,’ respectively adopted on the tenth
and ninth of December 1948. The year 1998 marked also the birth date of the
Treaty on the Establishment of an International Criminal Court adopted
in Rome on July 17, 1998. On this occasion, it is important to take stock of
international law’s progress, to assess how much its veneer has thickened, and
to determine what needs to be done to make more effective its goals of preven-
tion and control. Since most of the world’s victimization occurs in violation
of international law’s proscriptions against war crimes, crimes against human-
ity, and genocide, this article will deal with the weaknesses of the normative
framework of these three jus cogens crimes. My purpose is to eliminate, or at
least substantially narrow, the legal loopholes through which the perpetrators
of war crimes, crimes against humanity, and genocide are able, with impunity,

‘An earlier version of this article was published in 8 TRANSNATL L & CONT. PROB 199
(1998).


Ved Nanda

extend the dispute,” for it had not passed judgment on the question of “the
compatibility of particular acts with international law,” a question that could
be reached only when the Court addressed the merits after having established
its jurisdiction and heard legal arguments by all parties.!25 The Court added
that, whether States accept or reject its jurisdiction, “they remain in any event
responsible for acts attributable to them that violate international law, includ-
ing humanitarian law,” and that “any disputes relating to the legality of such
acts are required to be resolved by peaceful means, the choice of which . . . is
left to the parties.”126

Thus, although the Court refused to pass judgment on the legality of
NATO's offensive in the absence of an authorizing UN Security Council reso-
lution, it unequivocally expressed its concern about the use of force and the hu-
man suffering and loss of life in Kosovo.

Analysis

NATO’s Flawed Operation. NATO’s operation was flawed from the outset.!27
Costly miscalculations had led the alliance to begin air strikes.!28 The
assumption that NATO's threat of bombing would force Milosevic to back
down, and that, in any event, he would not be able to withstand more than two
to four days of air strikes, was subsequently proven false. After the failure of
Rambouillet, NATO perceived its credibility to be at stake, especially as its
fiftieth anniversary was so close at hand. And as the war dragged on, NATO
intensified its attacks, severely damaging Serbia’s infrastructure, ruining its
economy, and causing numerous civilian casualties.

Also from the outset, the United States and NATO had senta clear signal to
Milosevic that they would not use ground forces. Without the use of ground
forces against Serbia, Milosevic appropriately reasoned that he could withstand
NATO's attacks. Given the importance of Kosovo to the Serbs, it was fool-
hardy for NATO to assume that Milosevic would quit Kosovo without much
resistance, as he had earlier done in Krajina when the Croats cleansed the area
of Serbs, apparently with western complicity.

To go back to the Rambouillet Conference, it was again flawed thinking on
the part of NATO that Milosevic could accept the take-it-or-leave-it proposi-
tion, an integral part of Rambouillet, that the agreement on Kosovo’s constitu-
tion was simply an interim measure, allowing the final status to be determined
in three years when the people of Kosovo would finally decide their future. It
was easy for any observer to understand what the provision meant—independ-
ence for Kosovo in three years, which Milosevic could not accept. Similarly, for

327


Introduction

contribution to the discipline by awarding him the John Read Medal in Inter-
national Law in 1997. .

Hence, while notable for his life’s work, the sum of Leslie Green is much
more, as evidenced in his friendship, valued so highly by so many. Although:
Leslie has performed some tasks at the request of governments, he is an out-
standing example of the independent scholar, reaching his own conclusions
and standing by them, come what may. By intellectual predisposition, he isa
gadfly, not a legal cheerleader. He has acted as a mentor to younger interna- ,
tional lawyers, encouraging them to write and assisting in the development.of '
their careers. As a mentor, however, he did not foster the development of a
Green school in international law. He encouraged those who sat at his feet
many of whom are no longer so young—to develop in their individual ways.

. Thus, disagreement on legal issues has never been a barrier to friendship.

Leslie’s influence on international law developments may at times be inad-
vertent. In the latter half of the 1980s, the Government of Canada was consid-
ering ratification of the Additional Protocols of 1977. An interdepartmental
review was completed and everything was set to go. The then Legal Adviser to
the Department of External Affairs put everything on hold because he under-
stood that Leslie Green had indicated he was opposed to ratification and that
he would go public if implementing legislation was introduced in the House of
Commons. I was somewhat surprised to learn about Leslie’s opposition. I had
spoken to him about the protocols on many occasions, and it was my impres-
sion that he regarded them as more or less acceptable. Some weeks later I met
Leslie at a conference, informed him of the legal advisor’s understanding about
his position onthe protocols, and asked him when and why he had become op-
posed to ratification. Leslie began to laugh when I outlined the situation. He
explained that he had been to a cocktail party some months before, where he
had had a conversation with the legal adviser. They had not spoken about the
Additional Protocols, but Leslie had indicated with characteristic vigour his
opposition to certain war crimes legislation that had been recommended by a
Royal Commission on Nazi War Criminals in Canada. The legal adviser had
confused the two issues. Leslie was delighted to learn that he could hold up the
Government of Canada for some months by expressing his opinion, even if it
was misunderstood. Some time later, Canada did ratify the two Additional
Protocols.

Asan example of both the depth of Professor Green’s research and the width
of his readership, I can recollect a relatively recent incident that occurred dur-
ing the oral argument on a jurisdictional motion before the International Crim-
inal Tribunal for the former Yugoslavia (ICTY). Just as I was about to

xvi


W. Hays Parks

supra note 1, at 1207. The agreement was signed by Bulgaria, Egypt, France, Great Britain,
Greece, Romania, Turkey, the Soviet Union and Yugoslavia.

115. Anderson, supra note 57; Rickover, supra note 66; Knox, supra note 100. In his lengthy
and well-reasoned 1927 article, Captain Walter S. Anderson, USN (at 66) asked the key
question indicated in the main text, listing conditions that might cause a belligerent ship to lose
its noncombatant status, viz.:

(a) Carrying a few soldiers?

(b) Using the radio to help the enemy?

(c) Under the enemy’s orders?

(d) Chartered by the enemy?

(ec) Owned by the enemy but doing strictly merchantman service?
(f) Attempting to avoid visit and search?
(2 Carrying irregular papers or no papers?
(h) Carrying contraband?

(i) Breaking blockade?

() Under enemy convoy?

(k) Armed?

(I) A privateer?

The conundrum therefore is, when is a merchant ship not a merchant ship?

Ina lecture at the U.S. Naval War College on December 22, 1938, Professor Payson S. Wild,
Jr. Professor of International Law at Harvard and Associate Professor for International Law at
the Naval War College, raised similar questions. Noting the degree to which governments,
particularly in totalitarian States, had “obliterated” the distinction between private and public
functions, the traditional law of war distinction between “combatant” and “non-combatant” also
would merit re-examination. “Recent Trends in International Law,” 3810/3210 (4/3/39) Naval
War College Archives, RG 15, Box 8. The author is indebted to Professor John B. Hattendorf of
the Naval War College for this document.

116. SHIRER, supra note 109, at 597; G. WEINBERG, A WORLD AT ARMS (1994), at 48, 65.

117. BLAIR, supra note 38, at 64-66; ROSKILL, supra note 109, at 103. The British began
convoying in October 1939. Blair, supra, at 39. Attack of French warships was authorized on
September 24, 1939; Roskill, supra, at 103.

118. BLAIR, supra note 38, at 11; TARRANT, supra note 37, at 20-22.

119. BLAIR, supra note 38, at 66-69; TERRAINE, supra note 33, at 215-217; SHIRER, supra
note 109, at 622, 636-638. Mistakes did, indeed, occur in submarine attacks during World War
IL. In addition to the Athenia, U-453 attacked by mistake, the British hospital ship Somersetshire
on April 7, 1942. Despite being struck by three torpedoes, Somersetshire survived to limp into
Alexandria, Egypt; Blair, supra, at 645-646. On September 10, 1939, the British submarine
HMS Triton sank the submarine HMS Oxley; MARS, supra note 87, at 30. On October 11, 1942,
the Japanese submarine 1-25 sank the Russian submarine L-16 (at the time a neutral in the
Pacific war) by mistake; BOYD AND AKIHIKO, supra note 52, at 111, and CARPENTER AND
POLMAR, supra note 93, at 21. During the evening of April 1-2, 1945, the USS Queenfish
(SS-393) sank the Japanese Awa Maru, a ship guaranteed safe passage by the United States. In
contrast to the German and Japanese examples, the United States acknowledged its error, and
the commander of the Queenfish, an experienced and highly decorated officer, was charged,
tried, and convicted by general court-martial. R. Voge, Too Much Accuracy, U.S. NAV. INST.

381


XX UN Forces and International Humanitarian Law
Paul C. Szasz... 06. e cece cece cece cece eet e cece een eeeee 507

XXI_ The Rome Statute on the International Criminal Court—Universal
Jurisdiction or State Consent—To Make or Break the Package Deal

Sharon A. Williams ......... 20020 e eee e cee cee cence ence ee 539
Appendix. . 565
Contributors . 581
Index - 589


Index

European Corps (Eurocorps), 163, 165, 170
European Rapid Operational Force (EUROFOR), 165

EUROMARFOR (Maritime EUROFOR), 165
Germany-Denmark Corps (LANDJUT), 162, 164
Germany-Netherlands Corps, 163, 166
Multinational Corps Northeast, 165

N

NAMIBIA, 322, 507, 511
See also INTERNATIONAL COURT OF JUSTICE, Namibia Case
NANDA, VED P., 313, 585
NAVAL WAR COLLEGE, ix, xi, 119, 263, 362-63
NAVAL WARFARE, 194
See also LAW OF ARMED CONFLICT; SUBMARINE WARFARE
Blockade, see also BLOCKADE, LAW OF, 199, 203, 205, 210, 217, 271
NETHERLANDS, THE
Germany-Netherlands Corps, 163, 166
Yugoslavia v. The Netherlands (1C}), 325
NEUTRAL MERCHANT SHIPS
See also SHIPS AND SHIPPING, Merchant Ships; TARGETS; VISIT AND SEARCH
Blockade, see also BLOCKADE, LAW OF, 212, 213
NEUTRAL PORTS, 209, 212, 213
NEUTRALITY, 60, 71, 133-34, 204, 206, 216, 218, 461, 467, 492, 495
NEW WORLD ORDER, 85
NON BIS IN IDEM, 32, 35
See also DOUBLE JEOPARDY
NON-GOVERNMENTAL ORGANIZATIONS, 387, 393, 427, 470
NORTH ATLANTIC TREATY ORGANIZATION (NATO), 87, 455, 458, 463, 512
Bosnia, 196, 283, 462
Headquarters Agreement, 164, 169-71
Kosovo, 185-87, 194, 271, 313-38, 470
Organization for Security and Cooperation in Europe (OSCE), 315, 316-17
Status-of-Forces Agreement (SOFA), 163, 167-74
Temporary Presence of Foreign Forces, 166
United Nations, 314, 321
Yugoslavia, Republic of, 191
NORTH KOREA, see KOREA, NORTH
NUCLEAR WEAPONS
See also under WEAPONS
Outer Space, see also OUTER SPACE, 88-89, 104-05, 109

re)

OPERATION ALLIED FORCE, 458, 472
ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE (OSCE),
315-17, 330

600


The Rome Statute on the International Criminal Court

20. Report of the International Law Commission on the Work of its Forty-sixth Session, Draft
Statute of an International Criminal Court, May 2-July 22, 1994, U.N. GAOR, 49th Sess., Supp.
No. 10, U.N. Doc. A/49/10. Hereinafter “ILC Draft.”

21. The complaint was to be brought under Article 25 (1), ibid., by a State Party which was
also a contracting Party to the Genocide Convention, 78 U.N.T.S. 277, as envisaged by Article
VI

22. It must, however, be recognized that the ILC Draft reduced the conditions for the
exercise of jurisdiction set out in its earlier 1993 Draft. See Report of the International Law
Commission on the Work of its Forty-fifth Session, May 3—July 23, 1993, U.N. GAOR, 48th
Sess., Supp. No. 10 (A/48/10). See J. Crawford, The ILC’s Draft Statute for an International
Criminal Court (1994), 88 AMERICAN JOURNAL OF INTERNATIONAL LAW, 140; C. Warbrick,
International Criminal Courts (1995), 44 INTERNATIONAL AND COMPARATIVE LAW
QUARTERLY 466; and C.L. Blakesley, Jurisdiction, Definition of Crimes and Triggering Mechanism
(1997), 13 NOUVELLES ETUDES PENALES 177, 204.

23. The unlawful seizure of aircraft as defined by Article 1 of the 1970 Hague Convention for
the Suppression of Unlawful Seizure of Aircraft, 1972 Can. T.S. No 23; the crimes defined by
Article 1 of the 1971 Montreal Convention for the Suppression of Unlawful Acts against the
Safety of Civil Aviation, 1973 Can. T.S. No. 23; the crimes defined in Article 2 of the 1973
Convention on the Prevention and Punishment of Crimes against Internationally Protected
Persons, 1977 Can. T.S. No. 43; hostage-taking and related crimes as defined by the 1979
International Convention against the Taking of Hostages, reprinted in (1979), 18 I.L.M. 1456;
the crimes defined in Article 3 of the 1988 Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation and by Article 2 of the 1988 Protocol for the
Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental
Shelf, reprinted in (1988), 27 I-L.M. 672.

24. E/CONF. 82/15, December 19, 1988, reprinted in (1989), 28 I.L.M. 497.

25. Article 21 (2).

26. See ILC Draft, Commentary to Article 22, 82. Note that in its 1993 Draft, the ILC
Working Group had proposed two alternatives to this Article, which were based on “opting out.”
Ibid., 83. Under the “opting out” approach, the Court’s jurisdiction would have been accepted by
all States Parties except for those crimes expressly designated.

27. Ibid., 83.

28. M. Politi, The Establishment of an Intemational Criminal Court at a Crossroads: Issues and
Prospects After the First Session of the Preparatory Committee (1997), 13 NOUVELLES ETUDES
PENALES 115, 149. See Report of the Ad Hoc Committee, U.N. GAOR, 50th Sess., Supp., No.
22 (A/50/22).

29. LS. Wexler, First Committee Report on Jurisdiction, Definition of Crimes and
Complementarity (1997), 13 NOUVELLES ETUDES PENALES 163, 173.

30. Report of the International Law Commission on the work of its forty-sixth session, 2 May —
22 July 1994, UNGAOR 49th Sess. Supp. No. 10 (A/49/10), 31, para. 48.

31. U.N. Doc. A/RES/49/53, December 9, 1994.

32. U.N. Doc. A/RES/50/46.

33. Report of the Preparatory Committee on the Establishment of an International Criminal
Court, U.N. GAOR, 51st Sess., Supp. No. 22 (A/51/22), vol. 1, 29.

34. See Politi, supra note 28, 149-150.

35. U.N. Doc. A/AC. 249/1998/L. 13, February 4,1998.

36. U.N. Doc. A/AC. 249/1997/L.8/Rev. 1, 3, August 4-15, 1997.

558


Outer Void Space Not Reserved for Exclusively Peaceful Use

37. Convention on Registration of Objects Launched into Outer Space, 14 January 1975,
1023 UNTS 15; 28 UST 695; TIAS No. 8480. Opened for signature on 29 March 1972; entered
into force on 1 September 1972.

38. Cf. UN Secretary-General, Report on Application of the Convention on Registration of
Objects Launched into Outer Space. UN Doc. A/AC. 105/382 (2.3.87); A.J. Young, A Decennial
Review of the Registration Convention, 9 ANNALS OF AIR AND SPACE LAW (1986), pp. 287-308.

39. UN Doc. A/S-10.1/7 (May-June 1978).

40. CD Doc. CD/9 (26.3.79); CD/PV.274 (19.7.84), p. 5-8; CD/540, p. 171.

41. CD Doc. CD/OS/WP.25 (25.8.8).

42. CD Doc. CD/817, CD/OSAWP.19 (17.3.88). See I. I. Kuskuvelis, The Importance of
Structures in the Future of the Military Space Regime, in E. J. Palyga (ed.), INTERNATIONAL SPACE
LAW MISCELLANEA (Liber Amicorum Andrzej Gérbiel), Warsaw: Instytut Humanistyczny
(1955), p. 115, at pp. 116-117.

43. Cf. Bhupendra Jasani (ed.), PEACEFUL AND NON-PEACEFUL USES OF SPACE, New York:
Taylor & Francis (1991), pp. 14-16; idem, Outer Space: Militarisation Outpaces Legal Controls, loc.
cit. in note 23 above, at pp. 244-250.

44. Cf. CHENG, op. cit. in note 6 above, Ch. 22: Remote Sensing, s. VII: Capability and Uses,
at pp. 584-589; S. Sur (ed.), VERIFICATION OF CURRENT DISARMAMENT AND ARMS
LIMITATION AGREEMENTS: WAYS, MEANS AND PRACTICES, Aldershot: Dartmouth for
UNIDIR (1991); Y. Hashimoto, Verification Systems from Outer Space—Revival of International
Satellite Monitoring Agency, 37 SPACE LAW COLLOQUIUM (1994), p. 230; W. von Kries, Satellite
Verification and European Arms Control, 33 ibid. (1990), p. 375.

45. UN Doc. A/AC.105/32, and Corr. 1 (16.6.66).

46. See further CHENG, op. cit. in note 6 above, Ch. 9, s. III-B: The 1967 Space Treaty, at pp.
221-223.

41. See ibid., Ch. 9, s. VII: International Co-operation and Mutual Assistance, at pp.
252-261.

48. See Senator Gore’s speech referred to in note 13 above. The point was apparently
hammered home in informal discussions without it being officially recorded in any of the
summary records or procés-verbaux. See, e.g., the Indian representative to the First Committee,
who, when criticising the limited scope of Article IV, went on to say, “the use of military
personnel and any necessary equipment or facility was expressly permitted, and where it was
emphatically asserted that ‘peaceful’ meant not ‘non-military’ but merely ‘non-aggressive.’ ” UN
Doc. A/C.1/SR.1493 (17.12.66), p. 436 (9).

49. Article IV(1) was based largely on Article 9 of the USS. first draft transmitted to the
Chairman of COPUOS on 16 June 1966, UN Doc. A/AC.105/32, and Corr. 1. A comparative text
of Article 1 of the Antarctic Treaty and Article IV (2) of the Space Treaty is to be found below. It
would, however, be only fair to mention that, for reasons which were not fully apparent, the
Soviet Union was also reluctant to follow the example of the Antarctic Treaty, UN Doc.
A/AC.105/C.2/SR.65(22.7.66), p. 11.

50. Cf, eg. E. R. Finch, Outer Space for “Peaceful Purposes,” 54 AMERICAN BAR
ASSOCIATION JOURNAL (1968), p. 365; A. Meyer, Interpretation of the Term “Peaceful” in the
Light of the Space Treaty, 11 SPACE LAW COLLOQUIUM (1968), p. 105; M. Menter, Peaceful Uses
of Outer Space and National Security, 17(3) INTERNATIONAL LAWYER (1983), p. 381; L. Haeck,
Le droit de la guerve spatiale, 16 ANNALS OF AIR AND SPACE LAW (1991), p. 307, at p. 309.

51. The Legal Aspects of Peaceful and Non-Peaceful Uses of Outer Space, in Jasani, op. cit. in
note 43 above, p. 37, at pp. 44-45.

52. 1155 UNTS 331; 8 ILM (1969), 679.

114


Ved Nanda

held meetings on the Kosovo crisis at foreign and defense ministerial levels and
began considering a large number of possible military options.”

Earlier, the so-called “contact group,” composed of France, Germany, Italy,
Russia, the United Kingdom, and the United States, had begun attempts to
find a diplomatic solution to the conflict. In March 1998 the group proposed a
comprehensive arms embargo on the Federal Republic of Yugoslavia, including
Kosovo.8 Also in March 1998, the Organization for Security and Cooperation
in Europe (OSCE) convened a special session of its Permanent Council to
assess the deteriorating situation.”

After considering the reports of the contact group and the OSCE, the UN
Security Council, acting under Chapter VII of the Charter, resolved on March
31 to impose an arms embargo on the Federal Republic of Yugoslavia, including
Kosovo.!© The Council also expressed “its support for an enhanced status for
Kosovo which would include a substantially greater degree of autonomy and
meaningful self-administration,” and accepted the contact group’s proposal
that the Kosovo problem should be solved on the principle of the territorial in-
tegrity of Yugoslavia.!!

Furthermore, the Council condemned “the use of excessive force by Serbian
police forces against civilians‘and peaceful demonstrators in Kosovo, as well as
all acts of terrorism by the Kosovo Liberation Army or any other group or indi-
vidual and all external support for terrorist activity in Kosovo, including fi-
nance, arms and training,” !? and threatened additional measures in case of the
“failure to make constructive progress towards the peaceful resolution of the

* situation in Kosovo.”!3 Yugoslavia, however, was insistent that under the UN
Charter the Kosovo situation was a matter solely within its domestic jurisdic-
tion.!4

Subsequently, on September 23, 1998, the Security Council, again acting
under Chapter VII, adopted another resolution in light of the deteriorating hu-
manitarian situation.!5 It called upon the parties to cease hostilities and “enter
immediately into a meaningful dialogue without preconditions and with inter-
national involvement, and to a clear timetable, leading to an end of the crisis
and to a negotiated political solution to the issue of Kosovo.”!6 It demanded
that Yugoslavia “enable effective and continuous international monitoring in
Kosovo by the European Community Monitoring Mission and diplomatic mis-
sions accredited to the [State]”!? and facilitate “the safe return of refugees and
displaced persons to their homes and allow free and unimpeded access for hu-
manitarian organizations and supplies to Kosovo.”!8

On October 13, the NATO Council authorized Activation Orders for air
strikes!9 to be undertaken by NATO military forces within 96 hours as part ofa

315


Georg Schwarzenberger

Equally scant respect was shown by State practice to the conception of the
bellum publicum. Since the beginning of the 19th century, 48 States have insisted
on their right at their discretion to recognize revolutionaries as belligerents,
and, on less firm ground,*? as insurgents if the insurrection amounted to a civil
war. Thus, again, State practice found it necessary to build a half-way house,
this time between the unreserved application of the principle of non-
intervention in the domestic affairs of other States and the recognition of the
insurgent government as the government of a sovereign State, a measure con-
sidered to be illegal during a civil war. If the government against which the rev-
olutionary movement is directed itself recognizes the belligerency of the
insurgents, third States are usually inclined to accept the position of neutrals in
the contest.>° If, however, that government is unwilling to do so, it is left to
third States to decide for themselves whether they wish to ignore the civil war
or elevate it into war proper by the recognition of the insurgents as belligerents.
Thus, we are confronted with another typical instance of the status mixtus; at
their discretion, States may consider one and the same phenomenon as a do-
mestic affair, compatible with a state of peace, or as war.

The conclusion seems unavoidable that, as in the case of the doctrine of the
normality of peace, the doctrine of the alternative character of peace and war
cannot stand the test when confronted with State practice. It should be dis- -
carded as an uncritically accepted remnant of a now merely historically rele-
vant naturalist approach to the problem of peace and war.

The doctrine of war as a status and objective phenomenon. Attempts at
defining war in modern doctrine are dominated by Grotius’ definition of war as
a status or condition: “War is the condition of those contending by force,
viewed simply as such.”>! The emphasis on the status of war as the alternative
to that of peace is congenial to medieval thinking and there finds its legal
expression in the diffidatio, the message of defiance which severs the tie of faith
between him who sends it and him who receives it.>* This conception of war as
a status equally fits into the naturalist scheme, as naturalist writers consider
peace incompatible with the use of armed force between States. Apart from
special treaty obligations, modern doctrine, however, cannot rely on the
certainty of a declaration of war as an equivalent to the old diffidatio, and, in the
face of contrary State practice,>> cannot assert a customary rule requiring a
declaration of war. Whether, in these circumstances, insistence on war as a
status means anything depends on the capability of modern doctrine to find an
objective criterion defining war as distinct from peace and the status mixtus.

493


The Law of Armed Conflict as Soft Power

Multipliers and Constraints: A third variable against which to measure
proposed normative strategies is the effect of multipliers and constraints. Stra-
tegic multipliers are factors, often contextual in nature, that further a strategy’s
advancement of an objective. Conversely, strategic constraints limit fulfill-
ment. To illustrate, multipliers in a security strategy context might include bur-
den sharing, alliance operations, or even economic interdependency. The key
is to ask what conditions in the existing or future environment might render
success or failure of the strategy (whether it be supporting/opposing a proposed
legal regime or implementing one) likelier. With regard to normative strate-
gies, relevant multipliers or constraints could include such factors as public
support or opposition; intragovernmental dynamics; the attitude of intergov-
ernmental or nongovernmental organizations towards the strategy; the scope,
degree and sources of support it receives from other governments; recent expe-
tiences that might auger for acceptance of the strategy; media attention; the
relative success of analogous legal regimes; and so forth.

Take several recent opportunities for normative strategic choice. As an ex-
ample, some have asserted that the tragic death of the late Princess Diana, a
strident supporter of a ban on anti-personnel land mines, added much needed
impetus to the campaign to outlaw them, and contributed significantly to
adoption of the Ottawa Treaty. Thus, by this line of reasoning, her untimely
death represented a multiplier for mine opponents. Similarly, it should not be
surprising that the ICC Statute was adopted within a decade of the establish-
ment of the Hague and Arusha Tribunals, the first such international bodies
since the Nuremburg and Tokyo trials.*3 By the same token, and perhaps some-
what cynically, one may argue that the Hague Tribunal is the partial result of
warfare (and the ensuing war crimes and crimes against humanity) touching
the face of Europe for the first time since 1945.

The point is not to provide a catalogue of potential multipliers and con-
straints. Rather, it is simply to demonstrate that the strategic environment
matters, and that, therefore, strategic choice is inevitably situational. For ex-
ample, imagine the difficulty of executing U.S. strategy vis-d-vis the Kosovo
crisis had NATO support not been secured. In light of strategic choice’s
situationality, what is a constraint today may be a multiplier tomorrow and vice
versa; some may be neither except in certain circumstances. Despite the uncer-
tainty, the net result of a multiplier/constraint analysis should be a better un-
derstanding of the proposed strategy’s viability and the suggestion or exclusion
of alternatives.

Hierarchical Consequentiality and its Subtlety: Finally, what is often
missed in assessing strategies is an appreciation of their hierarchical nature and

470


Charter of the United Nations as a World Constitution

Resolution 217A (II) of 1948, Universal Declaration of Human Rights.
The General Assembly proclaimed the Universal Declaration on Human
Rights on December 10, 1948 as the “common standard of achievement for all
peoples and all nations.” It is now generally regarded as having achieved the
status of jus cogens. Several other important statements, such as the Declara-
tion on the Rights of the Child (Res. 1386 [XIV] 1959) and the Declaration on
Racial Discrimination (Res. 1904 [XVIII] 1963), were issued by the Assembly
at an early date.

The International Covenant of Civil and Political Rights and the Interna-
tional Covenant on Economic Social and Cultural Rights were adopted by As-
sembly Resolution 2200 (XXI) of December 16, 1966, and both entered into
force in 1976, ten years later. Together with the Universal Declaration of Hu-
man Rights, they represent the most important documents on human rights is-
sued by the United Nations.

The two covenants have been ratified by a large number of countries, not all
of them beyond suspicion of neglecting human rights. This, and the weaknesses
of the control system established by the covenants, suggests that some States
may have ratified the covenants to-enhance their public image more than to
advance human rights.4! Nevertheless, regardless of the reasons behind the
ratifications or the state of application of the covenants in individual countries,
the fact remains they are recognized by the majority of States as delineating the
framework of action for the international community. In fact, their binding
character, especially the jus cogens value of the Universal Declaration of Hu-
man Rights, confirmed by its frequent invocation by Security Council resolu-
tions on, for example, interventions under Chapter VII of the Charter, makes
them the basic standards of behaviour for the international community in the
area of human rights.

The past two decades have witnessed a renewed effort by the General As-
sembly to advance the protection of human rights. Through a series of resolu-
tions, it has contributed significantly to the promulgation of international
treaties aimed at the suppression of apartheid, all forms of racial and sexual dis-
crimination, the elimination of torture and genocide, and related areas. These
major developments in the strengthening of international law since 1945 are
rooted in and inextricably linked to both the Atlantic Charter of August 14,
1941, and the Charter of the United Nations, which, with its extensions, has
established powerful new freedoms for citizens against their national sovereign
States, thereby enhancing their individual autonomy.

276


Sharon A. Williams

detailed the prerequisite that the Security Council first determine that a State
had committed aggression before a complaint of, or directly related to, an act of
aggression could be brought. In conclusion, the consent regime in the ILC
Draft was criticized as being “complicated and cumbersome at best [and likely]
to cripple the proposed Court at worst.””? This being said, it must be realized
that the ILC, based on the past views of States’ expressed in the Sixth
Committee of the General Assembly on its annual Reports, was cognizant of
the fact that the “instrument providing for an international criminal
jurisdiction must take into account current international realities . . . that the
establishment and effectiveness of the court required the broad acceptance of
the statute by States.”2°

The PrepCom Draft. In both the Ad Hoc Committee*! set up by the UN
General Assembly to review the ILC 1994 Draft Statute and in the PrepCom
established in 1996,>2 the same fundamental questions were raised. In the
PrepCom there was widespread, albeit not uniform, agreement that there
should be inherent jurisdiction over genocide.*? However, as in the Ad Hoc
Committee, there were different views on whether war crimes and crimes
against humanity should be so treated. States supporting inherent
jurisdiction for all core crimes underscored the need for it because of the gravity
of the crimes. On the other hand, those States who were opposed stressed the
consensual nature of the Court and the necessity of such to obtain maximum
State support. The maintenance of State sovereignty was key to this position.
In fact, some States argued that the preconditions of State consent set out in
Article 21 (1) (b) of the 1994 ILC Draft should have been more expansive,
including also the mandatory consent of the States of nationality of the
accused and the victim.

In the Draft Report of the Intersessional Meeting in Zuphten,>> which was
produced to facilitate the last PrepCom session, the options on jurisdictional
preconditions were contained in Articles 6 [21] and 7 [21 bis] as produced by
the Working Groups of the PrepCom.>¢ The Articles had square brackets indi-
cating again various alternatives and the diverse views of States.

Rome 1998—The Options

The several options contained in the Draft Statute?” finalized at the last ses-
sion of the PrepCom on April 3, 1998, were put before delegations in the Com-
mittee of the Whole (CW). Broadly speaking, these can be categorized as “the
German Proposal,” “the Korean Proposal,” “the United Kingdom Proposal,”

543


Index

See also ARCHIPELAGIC STATES; EXCLUSIVE ECONOMIC ZONE; FISHERIES; HIGH SEAS;
LAW OF THE SEA; TERRITORIAL SEA
INTERNATIONAL CHAMBER OF COMMERCE
Dalmia Cement Arbitration (1976), 133
INTERNATIONAL COMMITTEE OF THE RED CROSS (ICRC), 190, 306, 308-09,
340-41, 388-90, 440-48, 511, 516-20
Armed Conflict, Definition, 190
History, 388
INTERNATIONAL COURT OF JUSTICE (icj)
Anglo-Norwegian Fisheries Case, 99
Application of the Genocide Convention Case, 408
Criminal Chamber, 394-96
Dispute Settlement, 233-42
Fisheries Jurisdiction Case, 139
Force, Use of, 182
Jurisdiction, 408

Law of the Sea, 285
Namibia Case, 199, 269, 277
Nicaragua v. U.S., 16, 182, 275

Nuclear Weapons, 194, 475
Self-Defense, 182, 469
Temple of Preah Vihear Case, 98
Yugoslavia v. NATO Countries, 325
INTERNATIONAL CRIME
See also AGGRESSION; CRIMES AGAINST HUMANITY; GENOCIDE; INTERNATIONAL
CRIMINAL COURT; INTERNATIONAL CRIMINAL COURT STATUTE; PIRACY; SLAVERY;
TORTURE; WAR CRIMES
Jurisdiction, 395, 545, 552
INTERNATIONAL CRIMINAL COURT (ICC), 6-7, 10, 17-19, 21, 24-25, 35, 37, 122, 125,
191, 197, 247 251-58, 308-09, 387-409, 421-31, 455-56, 465, 470, 472, 475, 521-22,
539-56
See also INTERNATIONAL LAW COMMISSION; TREATY ON THE ESTABLISHMENT OF AN
INTERNATIONAL CRIMINAL COURT
Establishment (Treaty), 1, 255, 402
History, 242, 392-401
Jurisdiction, 247, 539-56
History, 540
Non-States Parties, 552
Prosecutor, 425
Subject Matter Jurisdiction, 255
INTERNATIONAL CRIMINAL COURT STATUTE, 6, 8, 10, 19, 24, 35, 255-58, 309,
387, 423-31, 456, 470, 472, 551
See also INTERNATIONAL LAW COMMISSION; TREATY ON THE ESTABLISHMENT OF AN
INTERNATIONAL CRIMINAL COURT
Enumeration of Crimes, 255, 422
Extradition, 423
Grave Breaches, 424

596


Outer Void Space Not Reserved for Exclusively Peaceful Use

in Article IX is clearly intended to limit the benefit of consultation in case of
potential interference with space activities to solely “the peaceful exploration
and use of outer space.” Similarly, Article XI intends merely to promote
“co-operation in the peaceful exploration and use of outer space.” Further-
more, in so doing, Article XI obviously is using the term “peaceful” to mean
“non-military” and not “non-aggressive.” Otherwise, the contracting Parties
would carry a duty, however attenuated by the escape phrase “to the greatest ex-
tent feasible and practicable,” “to inform the Secretary-General of the United
Nations as well as the public and the international scientific community...of
the nature, conduct, locations and results” of even their military space activi-
ties, in order to promote international co-operation in the “non-aggressive,” in-
cluding military, exploration and use of outer space. One can hardly ascribe to
the extremely sophisticated negotiators such a degree of naivety! And why only
“the public and the international scientific community”? If such co-operation
were to include “non-aggressive” military exploration and use, surely govern-
ment departments and the military community would be acutely interested and
deserve to be expressly included.

In short, neither in the Preamble, nor in any provisions of the Space Treaty
other than Article IV, do we find any restriction of outer space to exploration
or use exclusively for peaceful purposes, or limiting the military use of outer
space. While there is a desire to promote peaceful exploration and use, even
the most extreme form of teleological interpretation cannot ferret out any
shared resolve in these provisions to impose any restriction on the contracting
States to use outer space solely for peaceful purposes, and not to use it for mili-
tary purposes. We are consequently left with only Article IV in the whole
Treaty which deals with the military use of outer space. Furthermore, to the ex-
tent to which the word “peaceful” is used in any of the text we have so far ex-
amined, the word “peaceful” is used to mean, and is clearly intended to mean,
“non-military” and not “non-aggressive.”

The Eisenhower Proposal 1960

Article IV of the Space Treaty can be traced back to a proposal made by
President Dwight Eisenhower before the General Assembly of the United Na-
tions on September 22, 1960. After recalling the recent example of the Antarc-
tic Treaty and the missed opportunity of 1946 when the Soviet Union turned
down the United States’ Atoms for Peace Plan for placing atomic energy under
international control, he proposed:

92


M. Cherif Bassiouni

139. Except in cases where lay jurors sit along with professional judges in certain cases as
established in the applicable code of criminal procedure. The origin of such lay jury participation
in the French legal system is the cour d’Assizes.

140. See eg,, for the Italian system, Alfonso Stile, II Bene Giuridico.

141. It should be noted that these legal elements also include facts. They are therefore a
cumulation of law and facts.

142, See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, U.N. G.A. Res. 39/46,Feb. 4, 1985, reprinted in 23 LL.M. 1027 [Torture
Convention]. See also Daniel H. Derby, Torture, in 1 INTERNATIONAL CRIMINAL LAW, supra
note 5, at 705; HERMAN BURGERS & HANS DANELIUS, THE UNITED NATIONS CONVENTION
AGAINST TORTURE: A HANDBOOK ON THE CONVENTION AGAINST TORTURE AND OTHER
CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT (1988).

143. See M. Cherif Bassiouni, Enslavement, in 1 INTERNATIONAL CRIMINAL LAW, supra
note 5, at 663.

144. Torture Convention, supra note 142. «

145. See Elements of Crimes, supra note 138.

146. See ICC Statute, supra note 13, at Articles 77-80.

147. See id. at Article 20. The principle ne bis in idem prevents persons from being tried before
the Court twice for conduct that formed the basis of crimes for which the person had either been
convicted or acquitted by the Court [Article 20(1)]. Moreover, it prevents a national legal
system ofa State party from prosecuting an individual for the same conduct that formed the basis
ofa crime for which the person had previously been convicted or acquitted by the Court [Article
20(2)]. In addition, an individual, who has been either previously acquitted or convicted by a
national court for conduct that formed the basis of crimes under the Statute, may not be
prosecuted by the Court. [Article 20(3)]. However, a conviction or acquittal by a national
jurisdiction will not bar subsequent prosecution by the ICC if: (a) the purposes of the State
proceedings were to “shield the person concerned from criminal responsibility” [Article
20(3)(a)]; or (b) the domestic proceedings were not conducted independently or impartially
[Article 20(3) (b)].

Thus, ne bis in idem only prevents a second prosecution of an accused in two circumstances:
(1) when the first attempt was either made by the ICC, and the second effort is by either a State
party or the ICC; or (2) when the first attempt was by a national legal system (assuming that the
first prosecution was independent, impartial, and not for the purposes of shielding the accused
from criminal responsibility [Article 20(3) (a)-(b)]) and the second prosecution is by the Court.
The principle is plainly only applicable when the ICC is involved, and, as such, a conviction or
acquittal by one national legal system, while barring a second prosecution by the ICC, seemingly
does not then bar subsequent prosecution in another national jurisdiction.

148. IT-95-16-T Judgement of the Trial Chamber of 14 January 2000.

149, [Footnote 958 in original] This result is borne out by the Appeals Chamber in its
Decision on Jurisdiction: “Article 3 thus confers on the International Tribunal jurisdiction over
{any] serious offence against international humanitarian law not covered by Article 2, 4 or 5.
Article 3 is a fundamental provision laying down that any “serious violation of international
humanitarian law” must be prosecuted by the International Tribunal. In other words, Art. 3
functions as_a residual clause designed to ensure that no serious violation of international
humanitarian law is taken away from the jurisdiction of the International Tribunal (emphasis
added)”. See Tadié, Appeals Chamber Decision on Jurisdi¢tion, 2 Oct. 1995, para. 91.

150, (Footnote 959 in original] The text of Art. 48 reads as follows:

51


Paul C. Szasz

8(c)
8 (d)
8 (e)
8
8 (g)
9.1
9.2
9.3
9.4
9.5
9.6
9.7
9.8
99

G-Ilv
H-IVR

H-IX

ICCPR
PIAL

(G-III: A 26-30)

(G-Il: A 13, 17 (4), 87(3); ICCPR: A 7; Torture Conv.: A 2)
(G-IIl: A 25 (4), 108 (2); G-IV: 76(4), 85(4), 124(3))
(G-IV: A 76 (5); P-I: A 77.3-4)

(G-Ill: A 126(4))

G-I: A 12 (1)-(@)

G-I: A 15 (3)

G-I: A 19 (1): P-I: A 12.1

G-l: A24

GH: A35

G-l: A 46

P-I: A 38.1

P-I: A 32, 33.3 (G-I: A 16(3); G-IIl: A 122 (2); G-IV: A 140 (2))
(P-I: A 81.1-4)

Notations

Article
1949 Geneva Conventions I, II, III or IV.

Regulations annexed to the 1907 Hague Convention IV Respecting
the Laws and Customs of War on Land

1907 Hague Convention IX Concerning Naval Bombardment in
Time of War

International Covenant on Civil and Political Rights
1977 Protocol I or II to the 1949 Geneva Conventions

Ttems in the second column of the table that are not enclosed in parentheses
are ones that are fully or in part paraphrased in at least part of the indicated
paragraph of the Bulletin; items enclosed within parentheses are not directly
paraphrased, and may have merely been sources of inspiration of the indicated
paragraph of the Bulletin.

The texts of the IHL instruments referred to in the above table can be found,
inter alia, in DOCUMENTS ON THE LAWS OF WAR, supra note 42.

537


Christopher Greenwood

Resolution 713 (1991); more recently, in Resolutions 1160 (1998), 1199
(1998) and 1244 (1999), it has first imposed sanctions on the Federal Republic
of Yugoslavia, because of the latter’s military crackdown in Kosovo, and then
authorized the deployment there of a multinational and essentially NATO-
dominated force in the wake of the NATO air operations against the Federal
Republic of Yugoslavia.

Secondly, the speed with which much of the international community rec-
ognized the new States which emerged from the former Yugoslavia and the in-
sistence upon non-recognition of boundary changes resulting from the use of
force suggest that the concept of self-determination may be acquiring a broader
meaning than hitherto.

Thirdly, there are indications that the use of force by an incumbent govern-
ment may, in certain circumstances, be regarded as unlawful, for example if it
involves the use of federal troops against a breakaway province (as in Yugosla-
via in 1991) or against an entity which has carved out some kind of de facto in-
ternational status (such as Taiwan). These are tentative steps. The fighting in
Chechnya and Sri Lanka, for example, has not attracted the same degree of at-
tention. Nevertheless, it seems unlikely that international law in the next cen-
tury will continue to ignore the use of force within a State in the way that it has
for most of the twentieth century.

Part I

Law and the Conduct of Hostilities

\ X ] hile the law on resort to force seeks to prevent, or at least to contain
war, the principal goal of the laws of war today is the preservation of
certain humanitarian values in war, particularly by limiting violence against
those who do not take a direct part in hostilities. This emphasis on humanitar-
ian values helps to explain one of the apparently paradoxical aspects of the laws
of war—the fact that they apply with equal force to both sides in a conflict, irre-
spective of which is the aggressor and which the victim.”°
In contrast to the law on resort to force, which consists almost entirely of
broad principles with considerable flexibility, the laws of war are de-
tailed—more than thirty treaties, running in total to several hundred
pages—and, in most respects, very precise. While the most detailed regimes
concern the treatment of persons who are clearly not participating in hostili-
ties—the wounded, sick, shipwrecked, prisoners of war, and civilian detainees

189


The Normative Framework of International Humanitarian Law

and “imprisonment” and “deportation” can be lawful. Of course, careful judi-
cial interpretation can avoid such vagueness and ambiguity, but that presup-
poses the existence of a judicial process that can develop a clear and precise
jurisprudence, and in that respect much is expected from the ICTY and ICTR.
Another issue concerning “crimes against humanity” is whether it is essen-
tially a category of mass victimization crimes, which is predicated on the exis-
tence of State-action or State-policy, or whether it is but a catch-all category
for mass crimes even when committed by non-State actors.45 The formulation of
Article 6(c) raises that issue relative to whether “persecution” is a required pol-
icy element or simply another genre of the specific crimes listed in Article 6(c),
or indeed, whether it is both a specific type of prohibited act as well as a policy
element applicable to State and non-State actors alike.46 In this writer’s judg-
ment, “crimes against humanity” as set forth in Article 6(c) is no mere catch-all
category for mass victimization, but rather a category of international crimes,
distinguishable from other forms of mass victimization by the jurisdictional pol-
icy element of a “State action or policy.” But when the ICTR’s Article 3 was
made to qualify Article 6(c)’s policy of persecution by the addition of the terms
“widespread or systematic,”4? the drafters, while doubtless seeking to tailor the
definition of “crimes against humanity” to the Rwandan conflict, brought
about a progressive development. This is evidenced in the disjunctive “or” as
opposed to the conjunctive “and.” If the mass victimization can be only “wide-
spread” and not also “systematic,” then it can be the spontaneous consequence
ofa given conflict* and not necessarily a reflection of “State action or policy.”
The statute of the ICC adopted in Rome on July 17, 1998, follows the
ICTR’s precedent in that it states in its Article 7 that “[flor the purpose of this
statute, ‘crimes against humanity’ means any of the following acts when com-
mitted as part of a widespread or systematic attack directed against any civilian
population with knowledge of the attack. . .”49 At the same time, the ICC Stat-
ute’s Article 7(h) makes “persecution” specifically prohibited conduct;>° and
while it is one of the forms of carrying out an “attack directed against any civil-
ian population,” the persecution of a group of persons is by its very nature possi-
ble only as a consequence of State action or policy carried out by State actors or
non-State actors, or the product of policy carried out by non-State actors. In
fact, most of the specific crimes listed within the meaning of this definition can
occur only as a result of State action or policy carried out by State actors or
non-State actors: “(b) extermination; (c) enslavement; (d) deportation or forc-
ible transfer of population; .. . (j) the crime of Apartheid.” >! The other specifi-
cally listed crimes presumably can be committed by individuals without the
existence of State action or policy. But clearly if such crimes are directed against

6


W. Hays Parks

by Great Britain that she retain her naval and mercantile supremacy upon the
high seas, and the recognition that much of its pre-war fleet was reaching block
obsolescence. The Royal Navy’s dilemma was heightened by the changes in na-
val construction made necessary by the submarine threat: hull blisters to pro-
tect against torpedoes, more extensive internal subdivision within the ship into
watertight compartments, higher speeds, and an increased need for antisubma-
rine vessels.55 A call by U.S. Secretary of State Charles Evans Hughes on July 8,
1921, for a conference on the limitation of armament to be held in Washing-
ton, therefore, came as welcome news to Great Britain. A ban on submarines
would eliminate a threat to its naval and mercantile supremacy while reducing
its naval shipbuilding costs. The Washington Naval Conference, convened
four months later, would provide Great Britain its first and best opportunity to
prohibit the submarine as an instrument of war.6 With Germany theoretically
(or at least temporarily) eliminated as a threat, Great Britain’s budgetary and
naval defense planning problems could be eased substantially by prohibition of
one of the greatest threats to its naval and commercial shipping superiority.

The three major naval powers (U.K., U.S. and Japan) shared a belief in the
Mahanian doctrine of guerre d’ excadre, which emphasized command of the seas
through fleet engagements, rejecting the doctrine of guerre de course, or attacks
on commerce.>” This philosophy drove the debate in negotiations between the
wars and, in particular, British efforts to abolish the submarine. Those efforts
failed in part because the belief in guerre d’ excadre erroneously assumed that
each future opponent would play to the opposite’s strong suit, that is, the three
major powers assumed that future enemies would choose to attack their oppo-
nent where he was strongest rather than weakest.

Washington Naval Conference. Submarines were an important issue at the
Washington Conference on the Limitation of Armaments, but not the most
important.>® The meeting's primary purpose was to stop the capital ships arms
race between the three major naval powers. The host nation opted to meet the
issue head-on. In the opening plenary session on November 12, 1921, U.S.
Secretary of State Charles Evan Hughes proposed a tonnage ratio for capital
ships for the three major naval powers that would require the scrapping of a
large number of commissioned vessels and a stop-and-scrap program for new
capital ships under construction. Hughes’ ratio of 5:5:3 (U.S., Great Britain,
and Japan, respectively) met with considerable resistance from Japan, which
favored a 10:10:7 ratio, but ultimately accepted it with conditions.” In return
for Japan’s agreement to this ratio, the United States and Great Britain could
not fortify any of their respective territories within striking distance of Japan.

347


Jus Pacis ac Belli?

14. GENTILI, ibid., Bk. I, Ch. XIV.

15. Ibid., Chs. XV, XVII, and XVIII.

16. Ibid., Bk. II, Ch. XVIII.

17. Ibid., Bk. I, Ch. VI.

18. Ibid.

19. Loc. cit., No. 32.

20. GROTIUS, loc. cit., Bk. II, Ch. 17, S. 19.

21. THOUGHTS OF A STATESMAN, Ch. II.

22. E.g., VICTORIA, loc. cit., introd. Compare with this approach Erasmus’ QUERELA PACIS
(1517).

23. Fora more detailed analysis, see the present writer's POWER POLITICS (London, 1941), p.
153 et seq.

24. Vol. III (London, 1885), p. I. See also C. PHILLIPSON, THE EFFECT OF WAR ON
CONTRACTS (London, 1909), p. 25; Anonymous, The League of Nations and the Laws of War,
B.Y.LL., 1920-1921, p. 109 et seq.; A. P. Higgins, The Law of Peace, ibid., 1923-1924, p. 153 et
seq.; SIR JOHN FISCHER WILLIAMS, CHAPTERS ON CURRENT INTERNATIONAL LAW AND THE
LEAGUE OF NATIONS (London, 1929), p. 73 et seq.

25. Fora more detailed discussion of the functions of war in modern international society, see
the writer's POWER POLITICS, supra, p. 132 et seq.

26. Cf. Q. Wright, Changes in the Conception of War, AMERICAN JOURNAL OF
INTERNATIONAL LAW, Vol. 18 (1924), p. 756.

27. See G. J. WEBBER, EFFECT OF WAR ON CONTRACT (London, 1940), p. I.

28. The Permanent Court of Arbitration in the case of the Russian Indemnities, XI, p. 82.

29. Wright, loc. cit.

30. For a more detailed examination of these and other theories on war, see the writer's
POWER POLITICS, supra, p. 129 et seq.

31. Cf. Q. WRIGHT, THE CAUSES OF WAR AND THE CONDITIONS OF PEACE (London,
1935), p. 21 et seq.

32. GENTILI, loc. cit., Bk. III, Ch. XXIV.

Bk. III, Ch. XXI, I, I, and CICERO, PHILIPPICA, VII.
Bk. I, Ch. I, 8.

35. Cf. A. D. McNair, The Legal Meaning of War, GROTIUS SOCIETY, XI, p. 33, and J. L.
Brierly, International Law and Resort to Armed Force, CAMBRIDGE LAW JOURNAL, 1932, p. 314.

36. On the attitude of American courts which have a similar tendency to leave such
“political” decisions in the hands of the Executive, see Q. WRIGHT, THE CONTROL OF
AMERICAN FOREIGN RELATIONS (New York, 1922), p. 172 et seq., and W. J. Ronan, English and
American Courts and the Definition of War, AMERICAN JOURNAL OF INTERNATIONAL LAW, Vol.
31 (1937), p. 650.

37. A.C. (1902) 484, at p. 497.

38. Ibid., pp. 497-498.

39. F. E. SMITH, INTERNATIONAL LaW (London, 1903), p. 90.

40. Cf. T. E. HOLLAND, op. cit., p. 130 et seq.; A. E. HOGAN, PACIFIC BLOCKADE (Oxford,
1908); J. WESTLAKE, COLLECTED PAPERS (Cambridge, 1914), p. 572 et seq.; E. C. STOWELL,
INTERVENTION IN INTERNATIONAL LAW (Washington, 1921); C. C. HYDE, INTERNATIONAL
LAW (Boston, 1922), Vol. HI, p. 192; P. H. Winfield, The History of Intervention in International
Law, B.Y.LL., 1922-1923, p. 130 et seq.; The Grounds of Intervention in International Law, ibid.,

1924, p. 149 et seq.; S. Maccoby, Reprisals as a Measure of Redress Short of War, CAMBRIDGE LAW
JOURNAL, 1926, p. 60 et seq.; A. E. HINDMARSH, FORCE IN PEACE, Cambridge (Mass.), 1933;

502


Anthony D’Amato

or racial group. Presumably these defense attorneys have a mental image like
that of the Wanassee Conference depicted in a chilling film of that same name.
The movie shows the meeting that took place in a Berlin suburb in January
1942 in which Nazi leaders calmly discussed the complex plans of the “Final
Solution.” The movie, matching in running time the actual conference, was
based on minutes taken at the conference itself and recovered when Germany
surrendered in 1945.

I doubt that any international criminal court will accept a defense request
that the prosecutor prove a “plan” based on actual minutes or documents of
such a meeting as the Wanassee Conference. As a practical matter, it is highly
unlikely that any minutes or records will ever be taken again of a conspiratorial
meeting to commit genocide; the threat to the participants of future prosecu-
tion based on those minutes or documents is sufficient to rule out any such evi-
dentiary compilation in the future. Indeed, a plausible hypothesis based on
evidence coming out of the civil wars in Yugoslavia in the 1990s may be that
some political and military leaders may have deliberately created records, doc-
uments, minutes, and directives that were directly contrary to their verbal in-
structions. It would be contrary to rational self-interest for any political or
military commander these days to expose himself or herself to future prosecu-
tion based on command responsibility. Instead, “plausible denial” might be cre-
ated by giving face-to-face verbal orders that are contrary to the “paper record”
of directives and documents that forbid recourse to violations of international
humanitarian law.

But even apart from sophisticated cover-ups and deniability, the need for a
plan is overstated by my hypothetical defense counsel. Ifa person intends in his
own mind to harm or kill another person based on the victim’s membership in
one of the enumerated groups, that is sufficient for a charge of genocide. Per-
haps if it is a single murder a prosecutor would not prosecute the defendant for
“genocide” but only for murder; however, if it is part of an event where the de-
fendant and others are killing innocent people based on the victims’ group
membership, or if the defendant himself is killing a number of people for that
reason, then the charge of “genocide” is in my view supportable.

Amore nuanced problem concerning the proof of specific motive to commit
genocide came up in the course of the preliminary briefing and truncated trial
of Dr. Milan Kovacevic at the International Criminal Tribunal for the Former
Yugoslavia. The prosecutor, Michael Keegan, cited public speeches and televi-
sion appearances by Dr. Kovacevic in which he urged Muslim citizens of
Prijedor to leave the town and go elsewhere because, as he put it, Serbs and
Muslims cannot live peaceably together. These speeches occurred some

125


Georg Schwarzenberger

contributed to the establishment of more solid criteria of distinction between
peace and war. If anything, they have increased the tendency towards subjec-
tivism and an unscrupulous abuse of terms. This was the unavoidable result of a
“statesmanship” which, while insisting on unlimited sovereignty, felt bound to
make paper concessions to popular demands incompatible with any system of
power politics.

Programme for a Sociology of International Law

It would by far overstep the limits of this article adequately to develop the
tests by which a scientific analysis of international law would have to proceed.
In order, however, not entirely to limit these observations to criticism which, of
necessity, must be destructive, it may be permitted at least to outline the con-
structive task,

The starting point must be the fundamental sociological distinction be-
tween society and community and a realization of the essentially different func-
tions fulfilled by society and community laws.”3 It depends on the degree to
which a society has integrated into a community, whether and to what extent:
(1) law can develop its typical function of providing rational rules for the con-
duct of the members of the group, or this purpose is frustrated by the overriding
power of “over-mighty subjects” within a group; (2) it can and must be authori-
tatively determined by persons appointed for this purpose and can be enforced
against recalcitrant members.

A comparison between typical social laws, such as the laws imposed by con-
querors or colonial Powers in the early stages of imperialism, with the rules gov-
erning relations such as marriage, blood brotherhood or religious communities,
indicates the two extreme poles. Ultimately, the one is a law of power and the
other a law of coordination. In the one, power, and, in the other, the common
task,”4 is the decisive factor. Yet actual life seeks compromises between such
extremes and “pure” types of law. Power must be limited even in the interest of
those who wield it. Men obey better if they obey the rule of law and not the rule
of men. They have an innate vision of justice. What kind of justice will be
meted out to them depends on the character of the group in which they live
and on the scope of the value consciousness of their own time. The constant
trend, however, in any legal system which aims at an approximation to justice
inevitably appears to be toward reciprocity. Ifa certain minimum of reciprocity
is realized, the power behind the law has a tendency to become invisible. This
situation seems to correspond to the typical make-up of human nature. Man is
not predominately altruistic, but is prepared to act on the basis of the principle

499


Wolff Heintschel von Heinegg

24, That declaration can be found in: TH. NIEMEYER, URKUNDENBUCH ZUM
SEEKRIEGSRECHT, Berlin 1913, p. 1 f.

25. See the references in H. WEHBERG, SEEKRIEGSRECHT, supra note 10, p. 33; TH.
NIEMEYER, URKUNDENBUCH, supra note 24, p. 6 ff.

26. H. Wehberg, Seekriegsrecht, supra note 10, p. 34 ff.

27.R. KLEEN, NEUTRALITE I, supra note 11, p. 28 ff; M.C. DE BOECK, LA PROPRIETE PRIVEE
ENNEMIE SOUS PAVILLION ENNEMI, Paris 1882, p. 70 ff.

28. Those treaties are printed in: TH. NIEMEYER, URKUNDENBUCH, supra note 24, p. 13 ff.

29. Printed in: TH. NIEMEYER, URKUNDENBUCH, supra note 24, p. 17 ff.

30. Printed in: TH. NIEMEYER, URKUNDENBUCH, supra note 24, p. 47 f.

31, Printed in: TH. NIEMEYER, URKUNDENBUCH, supra note 24, p. 48 f.

32. Printed in: TH. NIEMEYER, URKUNDENBUCH, supra note 24, p. 39 ff.

33. H. Wehberg, Seekriegsrecht, supra note 10, p. 40. Still, there are some examples of
blockades in the traditional sense; see H.J.W. VERZIJL, supra note 7, p. 421 f.

34, See the references in: H. Wehberg, Seekriegsrecht, supra note 10, p. 41 f

35. Printed in: TH. NIEMEYER, URKUNDENBUCH, supra note 24, p. 53 ff; J. HINZ/E. RAUCH,
KRIEGSVOLKERRECHT, 3rd ed., Cologne 1984, no. 1525

36. CH. DUPUIS, LE DROIT DE LA GUERRE MARITIME D'APRES LES DOCTRINES ANGLAISES
CONTEMPORAINES, Paris 1899, p. 201:

Les manoeuvres navales de l’Angleterre, en 1888, paraissent avoir démontré la
nécessité, pour I’escadre de blocus, de modifier fréquement la position de ses navires, de
les éloigner de temps & autre, pour donner aux équipages un repos indispensable. [. ..] Les
attaques de nuit sont les plus périlleuses; il faut, pour les prévenir ou les déjouer, changer
souvent de place, tromper par la mobilité du but les calculs de l’aggresseur projeter parfois
enun point inattendu la lumiére qui permettra de le surprendre, au besoin disparaitre et le
laisser s’épuiser & son tour des recherches vaines.

See also R. KLEEN, NEUTRALITE I, supra note 11, p. 572; H. Wehberg, Seekriegsrecht, supra
note 10, p. 42 ff

37. Already in the case of the Nancy [(1809) Roscoe HJ, 106 and 108], Lushington had held
that “ifa blockade was effective, the Court must not appreciate the number and the disposition
of the ships of the blockading force,” and that “even a single warship might maintain it.”

38. During the Crimean War it was sufficient for the effective blockade of Riga to station one
warship ata distance of 120 NM because it was indeed able to really prevent access via the only
approach. See CH. DUPUIS, LE DROIT DE LA GUERRE MARITIME, supra note 36, p. 203.

39. S.V. Mallison/W.T. Mallison Jr., A Survey of the International Law of Naval Blockade, U.S.
Naval Institute PROCEEDINGS 102 (Feb. 1976), pp. 43-53, 46.

40. See the judgements of the U.S. Supreme Court in the cases of The Bermuda [3 Wall. 514
(1865)], The Springboek [5 Wall. 1 (1866)] and The Peterhoff [5 Wall. 1 (1866)]. See also H.W.
Malkin, Blockade in Moder Conditions, BRITISH YEARBOOK OF INTERNATIONAL LAW III
(1922-23), pp. 87-98, 92 ff.; H. Wehberg, Seekriegsrecht, supra note 10, p. 158 ff.; G. SCHRAMM,
DAS PRISENRECHT IN SEINER NEUESTEN GESTALT, Berlin 1913, p. 172 ff.

41. Printed in: TH. NIEMEYER, URKUNDENBUCH, supra note 24, p. 736.

42. In its report, the Comité d’examen stated that

‘on dut se demander, si la discussion de la proposition britannique n’outrepassait pas les
limites de la compétence de la Troisitme Commission. On fit observer que la question de

221


XVI

The International Criminal Court
A Skeptical Analysis

Alfred P. Rubin

Prrorssox LESLIE C. GREEN HAS BEEN KNOWN AS AN ACTIVE SKEPTIC
since we first met, too many years ago to count. And nobody now living
dares question his knowledge of international law. We have disagreed from.
time to time, and probably disagree about the utility of an International Crimi-
nal Court (ICC). But argument in the philosophical sense, constructive debate
and discussion, has been our style for too many years to abandon now. So here
is my tribute to Leslie’s skeptical knowledge.

Very little has excited the international legal and human rights community
as much in recent years as the prospect of establishing an international criminal
court. After much political and legal labor, a Statute of such a court was
adopted in Rome on July 17, 1998, by an overwhelming vote.! In my opinion,
the ICC, as outlined in the Statute, cannot possibly work as envisaged. This is
not because technical problems have been carelessly handled, although there
do seem to be some questions, as must be expected in such a work. It is because
the ICC is based on assumptions about the relationship of authority to substan-
tive law and a model of the international legal order that seem unrealistic.

First, a few indications that surfaced in the Statute as what appear to be
merely technical flaws but in fact seem to reflect assumptions that raise the
most serious questions. In the Preamble, paragraph three, there is reference to


W. Hays Parks

addressed. Efforts to clarify the term “merchant ship” with respect to the dis-
tinction between unarmed neutral and armed belligerent merchant ships were
blocked by Senator Root and vehemently opposed by the British delegation.
Despite efforts to clarify this critical question by Italy and Japan—with France
discreetly supporting but hiding behind each—the conferees, “in order to se-
cure an outward appearance of agreement, studiedly evaded the real crux of
the submarine problem; namely, the denial of merchant-ship privileges and im-
munities to armed merchant vessels.”?!

Ultimately, the 1922 Submarine Treaty would fail entry into force owing to
France’s refusal to ratify it.”2 Its problems had deeper roots: ambiguities in its
most important terms and provisions, an imbalance between attacker and de-
fender, a refusal to address the fundamental issue of the armed merchantmen,
and a rush to reach agreement in response to the hysteria of popular demand
rather than being based upon sound thinking.?3 An analysis by a U.S. naval
submarine officer writing before World War II offered these criticisms:

It is difficult to escape the conviction that the delegates were still influenced by
the “spirit of Versailles.” No attempt was made to consider the submarine
problem calmly and realistically. . . . Questions concerning the legality or
practicability of the rules were . . . swept aside. ... [I]t represents a solution of the
submarine problem which is chiefly emotional and far too simple in view of the
complexity of the considerations involved.74

Of the treaties drafted at the Washington Conference, only the Submarine
Treaty failed to gain the necessary support for entry into force.

Another mistake of the Washington Naval Conference was the exclusion of
Germany as a participant. For the moment an international pariah and not a
naval power, Germany's participation nonetheless may have provided an op-
portunity for a fuller, fairer consideration of the submarine issue.

The view of Germany and the German people with regard to the U-boat was
substantially different from that of the British and others who favored abolition
of the submarine. As was the case with the airplane,’5 the U-boat enjoyed pop-
ular support in Germany throughout the years between World Wars I and II’6
notwithstanding the provisions of the Treaty of Versailles prohibiting Germany
from building or possessing either.?? Germany saw the value of the subma-
rine,’ and was prepared to take the necessary steps to maintain its expertise in
submarine design, development and construction. As was the case with mili-
tary aircraft,’”? Germany wasted no time following Versailles in commencing
work to maintain and enhance its submarine expertise.8°

351


Making Law of War Treaties

suggested that if the assembled governments could not agree to abolish the sub-
marine, efforts should be made to limit its size and numbers and to reconsider
the rules set forth in the failed 1922 Submarine Treaty. In a reversal of its previ-
ous, long-standing position, the United States supported the British proposal
for abolition.*® France, Italy, and Japan remained opposed to submarine
abolition.

Progress was made with respect to defining standard displacement, setting a
limit on individual submarine displacement (a maximum of 2,000 tons, with an
allowance for existing submarines above that displacement),%” total tonnage
(52,700 tons each for Great Britain, Japan, and the United States), and maxi-
mum gun caliber (5.1 inch). Japan was successful in its insistence upon parity in
submarines.98

Failing a total submarine prohibition, which the British Admiralty did not
believe possible, it offered for reconsideration in revised form the unadopted
rules of the 1922 Submarine Treaty. One of the most contentious issues, how-
ever, that of belligerent rights at sea in time of war—the British opposite to the
long-standing American principle of freedom of the seas—was kept off the
agenda at the insistence of the British political leadership, even though critical
to resolution of the submarine regulation issue.9 Separate meetings of a com-
mittee of jurists produced abbreviated but complementary rules to those con-
tained in the 1922 Submarine Treaty. Article 22 of the 1930 London Naval
Treaty stated:

The following are accepted as established rules of International Law:

(1) In their action with regard to merchant ships, submarines must conform to the
tules of international law to which surface vessels are subject.

(2) In particular, except in the case of persistent refusal to stop on being
summoned, or of active resistance to visit or search, a warship, whether
surface vessel or submarine, may not sink or render incapable of navigation a
merchant vessel without having first placed passengers, crew and ship’s
papers in a place of safety. For this purpose the ship’s boats are not regarded
as a place of safety unless the safety of the passengers and crew is assured, in
the existing sea and weather conditions, by the proximity of land, or the
presence of another vessel which is in a position to take them on board.

The High Contracting Parties invite all other Powers to express their assent to
the above rules.

354


production of the Blue Books falls on the shoulders of the superb attorneys of
the Oceans Law and Policy Department who operate under the guidance of
Professor Dennis Mandsager. Of this group, Captain Ralph Thomas merits spe-
cial praise. His efforts to keep the project on track, and the many hundreds of
hours he spent in tirelessly proofreading, are evidence of his legendary selfless-
ness. He retired from the Navy earlier this year, thereby leaving a void in opera-
tional law expertise that will not soon be filled. Finally, and as always, I reserve
my warmest thanks for Lorraine and Danielle . . . who cheerfully put up with
the late hours and short tempers that all too often accompany such projects.
It is my singular privilege to have been allowed to edit this small effort to
honor Professor Leslie C. Green—a great scholar and practitioner, my mentor,
and a very dear and cherished friend. May he, with his ever-charming Lilian at
his side, continue to work in the support of humanitarian principles for many
years to come. We are all indeed fortunate that he is one of our principal men.

‘Professor Michael N. Schmitt

George C. Marshall European Center for Security Studies
Garmisch-Patenkirchen, Germany

xii


Anthony D’Amato

1948 Convention even though they had been included in the 1946 resolution?
A sufficient historical reason is that the Soviet Union insisted upon the exclu-
sion of political groups, probably out of a well-founded fear that Josef Stalin
could be accused of genocide when he presided over the largest political
slaughter in history in the 1930s. But there is a much better logical reason for
the exclusion of membership in political groups: such membership is voluntary.
Thus, a person who joins such a group in a sense controls her own destiny. To
be sure, if she is killed because she is a member of a particular political group, it is
still murder. From the international point of view, if civilians are killed because of
their membership in a political group (or any group at all), it is still a crime
against humanity or (if the killing occurs during armed conflict) a war crime.

“Genocide,” to have standing as a separate crime, must be distinguishable
from group destruction. The framers of the Geneva Convention settled on a
definition that appears to have singled out victims of genocide as involuntary
members of a group. There is something universally felt to be particularly hei-
nous in murder based on a group affiliation that the victim could not have
avoided. Thus, of the four groups listed in the Genocide Convention, it is at the
outset clear that membership in “racial” or “ethnic” groups is involuntary; a
child is born into such groups by parentage. The “national” group is for the
most part involuntary, as it is conferred by birth. In a small percentage of cases
people may be able to emigrate and obtain a new nationality, but for the vast
majority of people their nationality effectively remains involuntary. Only “reli-
gion,” of the four categories, is of mixed voluntariness. Most people are born
into a religion, and therefore their religious status is involuntary into their
teenage years. Later, they may “drop out” or affirmatively join a different reli-
gious group. Yet they may be targeted in a genocidal campaign because of the
religion into which they were born. During the Yugoslavian civil wars in the
past decade, where in some provinces Serbs were in the minority and in other
provinces Muslims were the minority group, group membership was identified
in many cases by the victim’s name. Under the Islamic religion, children are
given one of a distinctive list of Muslim names, and in former Yugoslavia at
least, non-Muslim children were not given any of those Muslim names. Hence,
the name itself was enough to identify a person as belonging to the religious mi-
nority or majority in any given town. If a minority person stated that he had
changed his religion, he probably would not have been believed by the
persecutors.

An instructive analogue can be drawn between genocide and the recent leg-
islative phenomenon of “hate crimes” in the domestic law of several countries.
A hate crime is generally defined as a crime against a person because that

123


w. Hays Parks

or the fiftieth anniversary of the 1949 Geneva Conventions. The ICRC and
other NGOs as well as some governments, flushed with their perceived suc-
cesses in Ottawa and Rome, also are casting about to find other areas to legis-
late in their effort to regulate or limit, if not entirely prohibit, the taking up of
arms.!9

The real success of recent efforts in Ottawa and Rome remains to be seen.
As is true with cooking, the proof is in the eating rather than the making. The
lessons of history offer some evidence of the probability of success. Govern-
ments and NGOs would be well advised to examine those lessons heralding re-
cent legislative “successes” or advocating new legislative ventures.

Clear lessons are available from the between-the-wars endeavor by nations
to prohibit or regulate submarine warfare. The product of nearly two decades’
effort involving numerous conferences was a spectacular failure when con-
fronted by the crucible of war. The legal history of the law of submarine warfare
was reported in the late Professor W. T. Mallison’s 1966 volume in the Naval
War College’s International Law Studies.?0 Subsequent scholarship and exam-
ination of the military, political, economic and diplomatic environment in
which these negotiations occurred provides a more complete picture of that
history.

Regulating Submarine Warfare: A Preface

Near-continuous negotiations between 1919 and 1936 produced a single
document regulating submarine warfare. The 1936 Procés-Verbal Relating to
the Rules of Submarine Warfare set forth in Part IV of the Treaty of London of
22 April 19302! declares:

The following are accepted as established rules of International Law:

(1) In their action with regard to merchant ships, submarines must conform to
the rules of international law to which surface vessels are subject.

(2) In particular, except in the case of persistent refusal to stop on being
summoned, or of active resistance to visit or search, a warship, whether
surface vessel or submarine, may not sink or render incapable of navigation a
merchant vessel without having first placed passengers, crew and ship’s
papers in a place of safety. For this purpose the ship’s boats are not regarded
as a place of safety unless the safety of the passengers and crew is assured, in
the existing sea and weather conditions, by the proximity of land, or the
presence of another vessel which is in a position to take them on board.

341


Legal Implications of NATO’s Armed Intervention in Kosovo

35,219 sorties flown, resulting in the destruction of many targets, including 102
aircraft, over 400 artillery pieces, over 200 armored personnel carriers, over
100 tanks and 283 other military vehicles, and 16 command posts.>> Estimates
of civilian casualties ranged from 2,000 to 5,000, and the number of refugees
was 855,000, according to the UN High Commissioner for Refugees, while sev-
eral hundred thousand were displaced.56

Later reports, based on investigations of the physical evidence of the results
of the bombing, showed that NATO’s damage estimates to the Yugoslav army
were exaggerated, for the pilots had hit several clever decoys—dummy and de-
ception targets.57 A UN team, the Inter-Agency Needs Assessment Mission,
sent in May to Yugoslavia by Secretary General Kofi Annan, reported to the
Security Council on June 9 that the air strikes had a “devastating impact” on
the environment, industry, employment, essential service and agriculture.58
The mission team reported:

Damage to oil refineries, fuel dumps and chemical and fertilizer factories, as well
as the toxic smoke from huge fires and the leakage of harmful chemicals into the
soil and the water table have contributed to as yet unassessed environmental
pollution in some urban areas, which may in turn have a negative impact on
health and ecological systems.59

According to subsequent reports, however, the earlier estimates of the mas-
sive pollution caused by the military campaign may have been overstated.§°
Also, a World Bank team assessing reconstruction needs in Kosovo reported,
on July 13, “significantly less damage to homes, power plants and roads than
thought”—at the lower end of the estimates that have ranged from $3 billion to
$5 billion over a three year period.6!

The Kosovo Peace Accords. The failure of the Rambouillet Conference, and
thus of diplomacy, led to NATO’s bombing in Yugoslavia, and despite an
intensified bombing campaign, the war dragged on. Efforts at finding a political
solution, however, continued. On May 6, the foreign ministers of the Group
of Eight, at their meeting in Bonn, Germany, agreed on a set of principles to
move toward a resolution of the Kosovo crisis.’

These principles included an immediate and verifiable end to the violence
and repression in Kosovo; withdrawal from Kosovo of military police, police,
and paramilitary forces; effective international civil and security presences to
be deployed in Kosovo as endorsed and adopted by the United Nations; estab-
lishment of an interim administration for Kosovo to be decided by the UN

320


Ved Nanda

destroy these forces, to isolate them, to interdict them and to prevent a
continuation of their campaign or its intensification; and at the same time we are
going after an array of more strategic target sets that have to do with forces that
are possible to be used to reinforce bases of supply, the integrated air defense
system which protects the entire array of targets around the country, and also
higher level command and control, petroleum and many other factors here that
feed this military and security juggernaut that was assembled.46

In order to prevent hurting innocent civilians, causing so-called “collateral
damage,” Clark added, “this campaign has the highest proportion of precision
weaponry that has ever been used in any air operation anywhere. We are going
after militarily significant targets and we are . . . taking all possible measures to
avoid civilian damage.”47

Civilian casualties continued to occur, however, because of errors as these
smart bombs would miss their targets.48 To illustrate, General Clark went on to
explain how, because of bad weather, a NATO pilot engaged in mounting a re-
motely directed attack on a bridge struck a passing train, killing many passen-
gers.49

Calling the human cost of the war in Kosovo “unacceptably high,” UN Sec-
retary General Kofi Annan issued a press statement on April 28 on the “deteri-
orating humanitarian situation” in Yugoslavia? He said,

The civilian death toll is rising, as is the number of displaced. There is increasing
devastation to the country’s infrastructure, and huge damage to [Yugoslavia’s]
economy. For example, Mr. Sommaruga [the President of the International
Committee of the Red Cross who recently visited there] told me that the
destruction of the three bridges in Novi Sad also cut off the fresh water supply to
half of that city’s population of 90,000 people.5!

According to an independent Serb study reported in the Sunday Times (Lon-
don) after the bombing had been halted, the air campaign had resulted in se-
vere damage to the Yugoslav economy—an estimated loss of $29 billion.52
This figure included $4.1 billion to the country’s infrastructure, $2.77 billion in
damage to factories, oil refineries, and other industrial facilities, $270 million to
power plants, $355 million to the transportation system, and $2.3 billion in
“the human toll caused by deaths, injuries and unemployment.”53 The bulk of
the cost, $23.2 billion, is the estimated loss to Yugoslavia’s gross domestic prod-
uct over the next decade.5+

The cost of the war according to NATO, the United Nations, and other
sources, as reported by the Associated Press at the end of the conflict, was:

319


Ved Nanda

against the Serbs that they could not have been expected to accept its terms,
and there was no opportunity accorded to them for revision of the document.

IL: would have been preferable for the UN to have undertaken armed inter-
vention when it became necessary in Kosovo. However, as NATO began
the air campaign, its action was ill-conceived and poorly planned. On legal
grounds, though, it still did not meet the criteria outlined earlier for unilateral
or regional humanitarian intervention actions.'49 These criteria, as applicable
here, are necessity, proportionality, and maximization of the best outcome.
One can argue that the necessity criterion was met. As to the other factors,
there remains a valid question whether the intense bombing of Serbia, espe-
cially that of the infrastructure and civilian targets, was proportional; it was
perhaps excessive. The most questionable aspect, however, is that the proba-
ble humanitarian impact of the air campaign was never adequately considered.
To reiterate, the use of ground forces was rejected at the outset; Milosevic’s de-
termination was grossly underestimated; and the likely intensification of ethnic
cleansing by the Serbs after the air strikes would begin was practically ignored.
And with the ethnic cleansing having also occurred in reverse after the end of
the bombing and the withdrawal of Serb forces from Kosovo,!59 as most Serbs
have left Kosovo under pressure from the Kosovars, the outcome has not been.
the establishment of a multiethnic society in Kosovo, an express objective of the
campaign. Under any objective criteria, the NATO action is hard to justify.

Notes

1. North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243.

2.1d,, art. 5.

3. U.N. CHARTER arts. 2(4), 24, 103; chs. VII, VIII.

4. See S.C. Res. 1244, UN. SCOR., 54th Sess., 4011th meeting, U.N. Doc. S/RES/1244
(1999), discussed infra.

5. For a historical perspective, see generally JULIE A. MERTUS, Kosovo: HOW MYTHS
AND TRUTHS STARTED A WAR (1999); GREG CAMPBELL, THE ROAD TO KOSOVO: A
BALKAN DIARY (1999); DAVID FROMKIN, KOSOVO CROSSING: AMERICAN IDEALS MEET
REALITY ON THE BALKAN BATTLEFIELDS (1999).

6. NATO's Role in Relation to the Conflict in Kosovo at 2, <http:/Avww.nato.int/
kosovo/history.htm>. (updated 15 July 1999) [hereinafter NATO's Role).

7. See id.

8. U.N. Doc. $/1998/223, Mar. 9, 1998; S/1998/272, Mar. 25, 1998.

9. See U.N. Doc. S/1998/246, Mar. 11, 1998.

331


Legal Issues of Multinational Military Units

complexity, multifunctionality, non-traditional tasks, multinationality within
contingents, interoperability, interlocking components, as well as role special-
ization, readiness, mobility, rapid and flexible reaction and mission tailoring ac-
cording to the mandate. Finally, the Baltic Battalion (BALTBATT) and the
Baltic Naval Squadron (BALTRON) have proven their usefulness for many
different operations, while a Hungarian-Romanian Battery and other multina-
tional military units are planned to assume specific tasks in the near future.

Agreements Concerning the Right of Presence

The permanent or temporary presence of foreign forces (ius ad praesentiam)
is subject to approval by the receiving State in accordance with its national
laws and practice. In Germany, the right to permanently station allied forces is
based on a State treaty, the 1954 Convention on the Presence of Foreign
Forces.’ This right is not restricted to tasks to be accomplished in the context
of collective defense pursuant to Article 5 of the North Atlantic Treaty. In-
stead, the purpose of stationing is defined in more general terms in the Pream-
ble to the 1954 Convention: “In view of the present international situation and the
need to ensure the defense of the free world”. In the past, this was related to defen-
sive action as provided for in Article 5 of the North Atlantic Treaty (commit-
ment to provide assistance “if an armed attack against one or more of the Parties in
Europe or North America occurs”) and in Article V of the Brussels Treaty on the
Western European Union—(“If any of the High Contracting Parties should be the
object of an armed attack in Europe”). However, activities of allied armed forces
in the context of crisis management and humanitarian assistance, as they form
part of the common objectives of multinational units today, are not precluded
by the text of the 1954 Convention. In this regard, note that the Convention
was explicitly confirmed by an Exchange of Notes dated 25 September 1990,9
and that the preambular reference to “the present international situation and the
need to ensure the defense of the free world” was not altered in 1990. Thus, it is
subject to continuous political evaluation. In German State practice, such activi-
ties have always required special consent of the Federal Government.

Similar conventional provisions apply to the German forces stationed in the
Netherlands as part of the German-Netherlands Corps. The new 1997 treaty
on the stationing of German armed forces in the Netherlands, !° which updates
a previous German-Netherlands agreement of 1963 and which takes the 1954
Convention into account, covers all possible purposes of stationing, although
set purposes are subject to mutual agreement between the two governments.

166


Theodor Meron

we may have forgotten the value attaching to honour, chivalry and mercy. In
conflicts around the world, people not only kill and rape, they are proud of their
deeds.

We must revive our ability to feel shame and guilt. We have to create a cul-
ture of individual responsibility. Utopian attempts to revive chivalry would
have little effect. But, to make international humanitarian law truly effective,
we need to reinvigorate chivalry’s culture of values, especially the notion of in-
dividual honour and dishonour as motivating factors for the conduct of both
warriors and citizens. Treaties alone will not ensure respect for fundamental
norms.

311


W. Hays Parks

in raids on Japan sea communications—meaning shipping other than naval
forces—would be great if our submarines were free to wage ‘unrestricted’
war.” 148

Others entered the deliberation process. On March 20, 1941, Admiral E. C.
Kalbfus, President of the Naval War College, advised the Chief of Naval Oper-
ations of the solution by its faculty and students to its annual international law
problem, which assumed war with Japan. The solution acknowledged the law
of war principle of distinction between combatants and noncombatants, but ar-
gued that “new weapons may well call for changes in the technique of applying
fundamental procedures in altering some of the traditional procedures which.
no longer fit current needs.” Noting the use of war zones in the European con-
flict, it proposed similar zones—proclaimed as “strategic areas”—for the pur-
pose of attacking Japanese merchant shipping, inasmuch as “visit and search by
plane, submarine, or surface vessel cannot be readily or safely accom-
plished.”149

Admiral Kalbfus’ letter was referred to the Navy General Board. Responding
on May 15, 1941, the Chairman of the General Board rejected the Naval War
College’s recommendations, declaring “These [war] zones have no justification
in international law, and the United States and other nations have vigorously
protested the establishment of such zones.” The response went on to conclude
that “No change in this policy is considered at this time.”!50 However, a memo-
randum one week later advised that the issue was being addressed “in another
manner.”!51

The “other manner” involved steps being taken by the Chief of Naval Oper-
ations (CNO). On May 26, 1941, the CNO approved Rainbow 5, the U.S. strate-
gic war plan. Ten days earlier, the CNO had advised Admiral Ernest J. King,
Commander in Chief, Atlantic Fleet, of his intention to transfer all long-range
submarines to the Pacific.!52 By November 14, 1941, the CNO had drafted di-
rections to the Commander, U.S. Asiatic Fleet for unrestricted submarine war-
fare against Japan that matched the Naval War College’s recommendations.
Professor Bemis reported that he could find no evidence that the CNO con-
sulted with the Judge Advocate General of the Navy in the preparation of these
instructions. The new instructions were released on November 26, 1941, two
weeks before the Japanese attack on Pearl Harbor, apparently after their dis-
cussion between the CNO and President Franklin Delano Roosevelt. The
CNO’s action coincides with the rejection by Secretary of State Cordell Hull of
the most recent Japanese demands, following which he declared that he “left
the matter to the Army and the Navy.”!53 The CNO’s instructions declared:

363


Alfred P. Rubin

been disputed by others at least since the days of Aristotle. This entire topic is the subject of
ALFRED RUBIN, ETHICS AND AUTHORITY IN INTERNATIONAL LAW (1997).

4. Aside from the American struggle to construe a statute of 1819 that made criminal by
United States municipal law “the crime of piracy, as defined by the law of nations” (the statute
was originally upheld, then dropped out of use), the closest to a case in point is probably In re
Tivnan and Others, 5 BEST & SMITH’s Q.B. REP. 645 (1864), in which a British tribunal refused
to extradite to the Federal Union a Confederate raider during the Civil War on the ground that
Article X of the Webster-Ashburton Treaty of 1842 requiring the mutual extradition of “pirates”
did not apply to “piracy jure gentium” but only to “piracy” as determined by the municipal law of
the requesting State. There is much that is difficult to follow in the three opinions for the
majority, and the British tribunal was itself split, with Chief Justice Cockburn dissenting. It is
likely that the judges involved, the two States parties to the Webster-Ashburton Treaty, and the
legal community in general were deeply split in their conceptions of the structure of the legal
order and the role of extradition in it. It seems likely that the British court believed the
defendants to be “pirates” only under an American polemical definition popular in the Union
during the Civil War of 1861-1865 and in some cases applied to Confederate raiders, but did not
want to insult the United States federal authorities by saying so. See ALFRED RUBIN, THE LAW
OF PIRACY pp. 158-171, 206-208 (2d rev'd ed. 1998).

5. An examination of the uses of the term from earliest records to the present is RUBIN, THE
LAW OF PIRACY, supra note 4. The dissection of the current purported codification is at pages
348-372. All of the normally cited cases and scholarly writings are discussed in the text.

6. There have been several cases of this sort, but to disentangle them seems more than is
necessary in this place. See AMERICAN LAW INSTITUTE, RESTATEMENT 3d OF THE FOREIGN
RELATIONS LAW OF THE UNITED STATES, secs. 421-423 (1987). The interested reader is
referred to RUBIN, ETHICS & AUTHORITY IN INTERNATIONAL LAW, supra note 3, and RUBIN,
THE LAW OF PIRACY, supra note 4, at 388-389.

7. These have involved many legal and practical problems and cannot be used as precedents
for anything more than ad hoc tribunals of doubtful effectiveness. See Alfred Rubin, An
International Criminal Tribunal for Former Yugoslavia? 6 PACE INTERNATIONAL LAW REVIEW 7
(1994), and Alfred Rubin, Dayton and the Limits of Law, 46 THE NATIONAL INTEREST 41
(1997), for a sampling of the problems that seem not to be considered by advocates of the
tribunals and their use as “precedents.”

8. The “hand over” provision is identical in all four of the 1949 Geneva Conventions. The
texts of those Conventions are usefully collected in THE LAWS OF ARMED CONFLICTS (Dietrich
Schindler & Jifi Toman eds., 3d rev'd and completed ed., 1988) 373 sq. (Sick and Wounded in
the Field), 401 sq. (Wounded, Sick and Shipwrecked), 423 sq. (Prisoners of War), and 495 sq.
(Civilians). The parties to those conventions are obliged:

tosearch for persons alleged to have committed, or to have ordered to be committed, such
grave breaches, and shall bring such persons, regardless of their nationality, before its own
courts. It may also, if it prefers, and in accordance with the provisions of its own
legislation, hand such persons over [emphasis added] for trial to another High Contracting
Party concerned, provided such High Contracting Party has made outa prima facie case.

This language appears in Article 49 of the Wounded and Sick Convention, Article 50 of the
Wounded, Sick and Shipwrecked Convention, Article 129 of the Prisoners of War Convention,
and Article 146 of the Civilians Convention.

435


M. Cherif Bassiouni

rise to such a level of general acceptance that it may become binding even on
those States that do not share in the custom or that may express their will not
to be bound by it. This applies to those general customs that rise to a higher
level of acceptance and which reflect a universal sense of opprobrium, namely
jus cogens or a peremptory norm of international law.9! Among the interna-
tional crimes that fall within this category are: aggression, genocide, “crimes
against humanity,” war crimes, slavery and slave-related practices, torture, and
piracy. In time, other international crimes®? may rise to that level and be
deemed jus cogens crimes.

In 1899 and then again in 1907, the customary law of armed conflicts was
“codified” in the Hague Convention Respecting the Laws and Customs of War
on Land.% But that codification was applicable only to States and only when a
conflict was between States—in other words, a “conflict of an international
character,” as that term was developed subsequently in the 1949 Geneva Con-
ventions. Contrary to general belief, the 1907 Hague Convention did not es-
tablish the principle of individual criminal responsibility for the enunciated
violations, but only the principle of compensation, which was incumbent upon
the violating State. It was only in time, starting with the aftermath of World
War I, but more particularly in the aftermath of World War II, that the princi-
ples of individual criminal responsibility, and of command responsibility under
international law, were made part of customary law.°4

In addition to this original customary law of armed conflicts, a number of in-
ternational instruments have been executed. Most of these cover the use or
prohibition of use of certain weapons in time of war, the prohibition of certain
weapons at all times, and the prohibition of emplacement of weapons in certain
places at any time;% as well as the protection from destruction and pillage of
cultural property in the time of war.95 There is a divergence of views among
governments and experts as to which of these treaties rise to the level of a gen-
eral custom and which do not. Nevertheless, a general custom has evolved
from the cumulative effect of these treaties that weapons that “cause unneces-
sary pain and suffering” are prohibited even though what these weapons are is
still the subject of debate.9”

The “Law of Geneva” (four Geneva Conventions of 1949 and portions of
Protocols I and II which embody customary law) are also deemed to have risen
to the level of a general custom.%8 They are therefore binding on all States irre-
spective of whether a given State has or has not ratified one of them.9? But it
should be noted that some States maintain that not all of Protocols I and II cod-
ify customary international law and therefore some of their provisions are still
deemed to be part of conventional law which is applicable only to States parties.

ll


Contributors

Fellow of the Royal Society of Canada. Professor Williams has been an advisor
with the Canadian delegation at the United Nations, in the Sixth Committee
of the General Assembly, and has acted as a consultant to the Canadian De-
partment of Justice on international criminal law matters including extradi-
tion, the establishment of a permanent international criminal court and a draft
code of crimes against the peace and security of humankind, and to the 1985
Deschénes Commission of Inquiry on War Criminals in Canada. She attended
the 1998 United Nations Conference on the Establishment of an International
Criminal Court in Rome and the subsequent Preparatory Commission meet-
ings. Professor Williams has authored, co-authored and contributed to many
books as well as written many journal articles in the fields of public interna-
tional law and international criminal law.

588


The Initiation, Suspension, and Termination of War

transport of the wounded left on the battlefield or within a besieged or encir-
cled area.!34 The article employs the term “armistice,” but what is actually
meant in current terminology is a cease-fire.

ii. General Cease-Fire Agreement

Belligerents may enter into an agreement suspending hostilities everywhere
within the region of war. The duration of a general cease-fire (or truce) may be
predetermined in the agreement or it may be left open.

A general cease-fire agreement is normally made in writing by (or with the
approval of) the Governments concerned. In that case, it has the status of a
treaty under international law.!35 The essence of a general cease-fire is a de-
tailed agreement on the conditions under which hostilities are suspended.
There are two sine qua non specific elements: time (at which the cease-fire is
due to enter into force on all fronts; there can also be different times for differ-
ent geographic sectors) and place (fixing the demarcation line between the op-
posing military formations, with or without a buffer demilitarized zone).136
However, nothing prevents the parties from appending to a general cease-fire
agreement other clauses which transcend the technicalities of the suspension
of hostilities and relate to such mattets as the immediate release of prisoners of
war. Semantically, this is liable to produce a result which may sound strange.
Should the general cease-fire agreement set a date for release of prisoners of
war, and should a belligerent extend their detention beyond that date, the act
would constitute a cease-fire violation although no fire has been opened.

iii. Cease-Fire Ordered by the Security Council

The Security Council, performing its functions under Chapter VII of the
Charter of the United Nations,!3? may order belligerents to cease fire. Un-
equivocal language to that effect is contained, for example, in Resolution 54
(1948),!38 adopted at the time of Israel’s War of Independence. Under Article
25 of the Charter, UN members are legally bound to accept and carry out man-
datory decisions of the Security Council.1389 However, the Council does not
tush to issue direct orders. Ordinarily, it shows a proclivity for milder language.
In the Falkland Islands War of 1982, the Council only requested the Secre-
tary-General “to enter into contact with the parties with a view to negotiating
mutually acceptable terms for cease-fire.”!40 On other occasions, the Council
called upon the parties to cease fire,!4! and less frequently demanded a
cease-fire.!42 As long as the Council is merely calling for a cease-fire, its resolu-
tion has the hallmark of a non-binding recommendation. The parties are then
given an opportunity to craft a cease-fire agreement of their choosing. But if

148


Michael N. Schmitt

remember that objectives are both threat and opportunity-based. The balance
between the two has arguably shifted for the United States. While threat-based
objectives remain critical, they no longer need be all encompassing; it would
only seem logical that the United States should aggressively exploit the occa-
sion to “shape” the prescriptive landscape to its advantage.5°

Doing so requires a migration in strategic perspective not dissimilar from
that which has taken place in other arenas of national security strategy. During
the Cold War, Containment served U.S. national security interests well; some
maintain that it won the Cold War. However, Containment was ill-suited to
the strategic post-Cold War environment. The new context required a strategy
that exploited U.S. dominance, one that recognized the opportunities it pre-
sented—hence, the new U.S. national security strategy of “Engagement.”>!

A strategy of normative engagement could serve to leverage U.S. power in
much the same way. Such an approach would require the U.S. to proactively
lead the international community. A failure to exercise leadership allows po-
tential opponents, who well recognize the shaping import of law, to use it to
compensate for their own weaknesses. Indeed, from their perspective law can
be viewed as an instrument of asymmetrical warfare, for it is equally accessible
to everyone and, therefore, unlike technology (for instance) more widely ex-
ploitable. As an example, and regardless of how one views the substantive met-
its of the case, there is little question but that the United States would have
suffered a serious strategic blow had the International Court of Justice declared
the use of nuclear weapons contrary to international law in all circumstances.
Of course, the opinion was only advisory, but the persuasive import of such a
holding would have been measurable nevertheless and certainly a factor to be
considered in any strategic calculations. It would seem apparent, then, that in-
volvement in the process is the key, for international law is, by definition, a
multilateral process. The decision, for example, of the United States to partici-
pate in the post-Conference Preparatory Committee charged with drafting
tules of procedure, rules of evidence, and elements of the offenses for the ICC,
despite the U.S. vote against the Statute, is an extraordinarily sage one. The al-
ternative is to sit idly by while the rest of the global community crafts a legal re-
gime that will unquestionably affect U.S. military operations and personnel.
Given that there are more U.S. personnel deployed outside its borders than any
other State, to have refused to participate would approach irresponsibility.

Of course, in light of its sole superpower status, it would be tempting for the
United States to simply opt out of those proposed legal regimes that did not
completely meet U.S. desires. Any such approach would be shortsighted, par-
ticularly in ignoring the intangible, but very real, benefits that come with global

475


The History and Status of the International Criminal Court

non-tetroactivity tatione personae (Article 24); grounds for excluding criminal
responsibility (Article 31); etc.

There were two provisions included in the 1945 London Charter‘ which
proved to be of major importance during the war crimes trials conducted after
World War II: Article 7, providing that the official position of the accused was
not a defense; and Article 8, providing that the fact that the accused acted pur-
suant to the orders of a superior was likewise not a defense.‘ The provisions
with respect to the responsibility of the superior were apparently non-contro-
versial and will be found reiterated in Articles 87 and 88 of the 1977 Protocol I
Additional to the 1949 Geneva Conventions.°° Comparable provisions are to
be found in Article 27 of the Statute entitled “Irrelevance of Official Capacity”
and in Article 28 thereof entitled “Responsibility of Commanders and Other
Superiors.” However, perhaps because of fear of its effect on discipline, several
prior attempts to include a provision denying “superior orders” as a defense
were rejected by Diplomatic Conferences.5! Article 33 of the Statute ap-
proaches the subject, but cautiously. After a first paragraph which flatly sets
forth the rule, three subparagraphs place what appear to have been intended as
limitations on that provision: (a) the accused must have been “under a legal
obligation to obey orders of the Government or the superior in question”;>? (b)
the accused did not know that the order was unlawful; and (c) the order was
not manifestly illegal.>3

Strange to relate, the very important provisions concerning the composition
of the Court do not appear until Part 4 of the Statute in Articles 34-52. There
are to be eighteen judges,>+ not more than one from any State, and all having
specified qualifications. With a minor exception, the term of office is nine years
and judges are not eligible for reelection. The organs of the Court include the
Presidency (Article 38); the Chambers (an Appeal Chamber composed of the
President and four other judges, a Trial Division composed of not less than six
judges, and a Pre-Trial Division also composed of not less than six judges) (Ar-
ticle 39); an Office of the Prosecutor (Article 42); and the Registry (Article
43).

Of major importance to any judicial body are its rules of procedure and its
tules of evidence. The Statute does not specify who is to draft these rules, so
presumably that will be a task for the Court. However, Article 51 provides that
such rules enter into force only after they have been approved by a two-thirds
majority of the Assembly of States Parties.>> It can be anticipated that this will
present a major problem.

Part 5 of the Statute (Articles 53-61) is concerned with “Investigation and
Prosecution.” There is little that is novel in this area. The Prosecutor

256


Legal Issues of Multinational Military Units

accordance with the Visiting Forces Act!? and the Act concerning the Part-
nership for Peace (PfP) SOFA.!8 Similar visiting forces agreements are pro-
posed for all new partners to the Alliance.

The Status of Personnel

The status (ius in praesentia) of military and civilian personnel of multina-
tional units is complex because the provisions of international law apply to the
status of foreigners, but not to nationals of the host State. Although the NATO.
SOFA of 1951 extends to all NATO members, and to the new partners of the
Alliance through the PfP SOFA of 1995, it mainly contains rather general reg-
ulations. Indeed, the preamble of the NATO SOFA contemplates the possibil-
ity of separate arrangements between the Parties concerned “in so far as such
conditions are not laid down by the present Agreement.” In many cases there is a
need to supplement the NATO SOFA provisions; varying interests have led to
quite different arrangements during the five decades of close cooperation
within the Alliance.

Article IV of the PfP SOFA provides for the possibility of supplementing or
otherwise modifying it in accordance with international law. For such modifica-
tion, the rules codified in Article 41 of the Vienna Convention on the Law of
Treaties!? are relevant. By application of that article, Parties to the PfP SOFA.
may modify it only as between themselves alone and subject to the following
conditions: the modification in question must not be prohibited by the PfP
SOFA; it must not affect the enjoyment by the other Parties of their rights un-
der the PfP SOFA or the performance of their obligations; it must not relate to
a provision, derogation of which is incompatible with the effective execution of
the object and purpose of the PfP SOFA as a whole; and the Parties in question
shall notify the other Parties of their intention to conclude the agreement and
of the modification to the PfP SOFA for which it provides. Thus, the scope
of possible modifications is clearly limited. Experience gathered so far in the im-
plementation of the PfP program establishes that modifications of PfP SOFA
tules are neither intended nor required under existing supplementing agree-
ments. There is, indeed, a widely shared interest in avoiding modifications
altogether.

Cooperation within multinational units may contribute to increased interest
in the reciprocity of such separate arrangements. In this context, the Nether-
lands deserve special credit because, in 1997, they were the first Ally to con-
clude a Supplementary Agreement with the Federal Republic of Germany,?0
which defines the rights and duties of Bundeswehr personnel stationed in the

168


Legal Implications of NATO’s Armed Intervention in Kosovo

Is it a collision of principles that we are witnessing, and are the UN norms
being replaced with newly emerging norms to meet the needs of the time? Prin-
ciples do often collide, and, as Professor Glennon reflects, the imperative to
halt gross violations of human rights and the doctrines of sovereign equality
and non-interference in internal affairs are seemingly irreconcilable. But that
does not mean that the existing Charter norms are unworkable and are being
replaced by new norms.

As I have earlier argued, by interpreting Article 2(4) broadly and giving due
consideration to the human rights provisions in the Charter and to the impres-
sive array of human rights norms developed in the last half-century, one can
make a strong case that the UN Charter does leave room for armed humanitar-
ian intervention.!43 Thus, my contention has been that when the UN is un-
willing or unable to act, as happened in Rwanda, a regional organization or
even a group of States could have validly intervened to halt the tragedy of
genocide that occurred there. This contention, however, does not signify the
demise of the “antiquated” rules of the United Nations Charter, nor the emer-
gence of new rules. Nor does it endorse unconstrained regional action on the
model of NATO’s bombings in Yugoslavia.

It should, however, be noted that at the end of the bombing campaign,
NATO did appropriately turn to the United Nations, and, as mentioned ear-
lier, Security Council Resolution 1244 explicitly stated that the deployment of
international civil and security presences in Kosovo is to be under UN aus-
pices.!44 To reiterate President Clinton’s words, NATO acted “to give the UN
the opportunity it now has to play the central role in shaping Kosovo's fu-
ture.”145

In his General Assembly address, Secretary General Annan reminded the
Assembly of the Preamble of the UN Charter, which states that “armed force
shall not be used, save in the common interest.”!46 He emphasized that under
the Charter the Security Council is required to be the defender of the “com-
mon interest,”!4? and that UN member States should find a way to find com-
mon ground in upholding the Charter principles and acting in defense of that
common interest. He said that the choice must not be between Council unity
and inaction in the face of genocide, as happened in Rwanda, and Council divi-
sion and regional action, as happened in Kosovo. !48

Tt is indeed lamentable that the Security Council could not find a way
through preventive diplomacy or preventive action, such as sending several
thousand more OSCE monitors into Kosovo, to avert the NATO military ac-
tion. The Rambouillet Accord, as a special example, was so greatly tilted

330


The History and Status of the International Criminal Court

The following acts, or any of them, are crimes coming within the jurisdiction
of the Tribunal for which there shall be individual responsibility:

(a) Crimes Against Peace: namely, planning, preparation, initiation or waging a
war of aggression or a war in violation of international treaties, agreements or
assurances, or participation in a common plan or conspiracy for the
accomplishment of any of the foregoing;

(b) War Crimes: namely, violations of the laws and customs of war. Such
violations shall include, but not be limited to, murder, ill-trearment or
deportation to slave labor or for any other purpose of civilian population of or in
occupied territory, murder or ill-treatment of prisoners of war or persons on the
seas, killing of hostages, plunder of public or private property, wanton
destruction of cities, towns or villages, or devastation not justified by military
necessity;

(c) Crimes Against Humanity: namely, murder, extermination, enslavement,
deportation, and other inhuman acts committed against any civilian population,
before or during the war; or persecution on political, racial or religious grounds in
execution of or in connection with any crime within the jurisdiction of the
Tribunal, whether or not in violation of the domestic law of the country where
perpetrated.

Leaders, organizers, instigators and accomplices participating in the
formulation or execution of a common plan or conspiracy to commit any of the
foregoing crimes are responsible for all acts performed by any person in execution
of such plan.

It will be noted that, although this Agreement and Charter established an
international criminal court, as with prior efforts it was an ad hoc court created
for a specific limited purpose and its jurisdiction was restricted to the trial of in-
dividuals alleged to have committed major crimes connected with World War
TL!

The events following upon the breakup of the Soviet Union once again
brought to the fore the need for an international criminal court. The United
Nations Security Council responded by deciding that

an international tribunal shall be established for the prosecution of persons
responsible for serious violations of international humanitarian law committed
in the territory of the former Yugoslavia since 1991

252


Index

GULF WAR
See also SECURITY COUNCIL, Iraq
Self-Defense, 184
Surrender, 306

H

HAGUE CONVENTION (1899), 11, 140, 541
HAGUE CONVENTIONS (1907), 3-4, 11, 131-34, 146, 215, 239, 340, 355, 369, 496, 518
Force, Use of, 496
War Crimes, 10
HAGUE CONVENTION FOR THE PROTECTION OF CULTURAL PROPERTY IN
THE EVENT OF ARMED CONFLICT (1954), 340, 473, 514-16
von HEINEGG, WOLFF HEINTSCHEL, 203, 583
HIGH SEAS, 239, 286, 347, 388, 422, 492
See also AIRSPACE; ARCHIPELAGIC STATES; EXCLUSIVE ECONOMIC ZONE; FISHERIES;
INTERNAL WATERS; LAW OF THE SEA; TERRITORIAL SEA
HUMAN RIGHTS, 1, 2, 38, 129, 186, 193, 265-68, 276, 283, 308, 309, 314, 324, 328-30, 409,
421, 429, 461-62, 465, 471, 477
See also CRIMES AGAINST HUMANITY; GENOCIDE; HUMANITARIAN INTERVENTION;
INTERNATIONAL CRIMINAL COURT STATUTE; INTERNATIONAL HUMANITARIAN
LAW; LAW OF ARMED CONFLICT; WAR CRIMES
Bosnia, 314
International Humanitarian Law (compared to), 309
Iraq, 471
Kosovo, 186
North Korea, 465
United Nations Charter, 266, 330, 391
Universal Declaration, 1, 275-76, 391
HUMANITARIAN INTERVENTION, 60, 180, 181, 184-87, 267, 331
See also HUMAN RIGHTS; SECURITY COUNCIL, Enforcement Actions; FORCE, USE OF
Customary International Law, 187
Defined, 185
Economic Community of West African States (ECOWAS) Intervention, 186
Yugoslavia-NATO, 186
HUMANITARIAN LAW, see INTERNATIONAL HUMANITARIAN LAW
HUMANITARIAN RELIEF
Exception to Blockade, 216
HUNGARY, 135, 141, 165, 343

INDIA, 133, 149, 186, 280, 322

INDIVIDUAL RESPONSIBILITY, 3, 11, 249, 252, 256, 308, 311, 554
Hague Convention (1907), 11
International Criminal Court, 256

INTERNAL WATERS, 551

595


Shabtai Rosenne

Nevertheless, Moynier’s initiative was not without practical consequences.
His reference to international law that was to be made was followed by a rapid
spurt in the development of the jus in bello, the law governing the conduct of
warfare. That was prompted, of course, by a combination of many diverse at-
tributes. These included, alongside the intellectual and humanitarian activism,
rapid technological advances in that period, both generally and in the weapons
of war. This development ran on two-parallel and interactive lines. One was a
series of intergovernmental treaty-making conferences—at Brussels (1874),
The Hague (1899, 1907) and London (1908-1909). The second was activity de
lege ferenda on a grand scale by the Institute of International Law (of which
Moynier was one of the founders), leading to a series of resolutions on different
aspects. The most important was the Oxford Manual on the laws of war on land
of 1880 and a parallel manual on the laws of naval war governing the relations
between belligerents, also adopted at Oxford (1913).12 Many prominent inter-
national lawyers and diplomats were active on both those tracks. At the same
time, individual scholars were beginning to look into the question.3

The law embodied in the Geneva Conventions, from 1864 up to and includ-
ing the Additional Protocols of 1977, used to be termed “Geneva law,” and the
succession of treaties, declarations, and other instruments governing the con-
duct of warfare was designated as “Hague law.” Geneva law was concerned
with individuals—victims of war (military and civilian) and the perpetrators of
violations of the laws and customs established for their protection, whether
military or civilian personnel. Hague law dealt with the rights and duties of
States in their conduct of warfare. Breach of the applicable treaties could lead
to a case of State responsibility. The black-letter texts were at this stage
couched in the language of rights and duties of States as the subjects of interna-
tional law. They paid little attention to the actions of individuals, whether in a
position of command and authority, or subordinates. They show little signs of
recognition of the importance and relevance of military hierarchy. Both sets of
treaties and the law that they enunciate have become heavily encrusted with
tules and practices of customary international law generated by the black-letter
texts. These largely place responsibility for the application of the rules of law on
individuals (especially members of the armed forces) as the instrumentalities
through which States act or even when an individual is acting sua sponte and
not under orders.

In addition, the development of the concept of human rights on a universal
scale embodied in the Charter of the UN and amplified in the Universal Decla-
ration of Human Rights and other instruments has had a direct impact on this
branch of the law. One consequence has been that the distinction between

391


Howard S. Levie

Articles 228-230 of the Treaty of Versailles provided for the trial before mil-
itary tribunals of the Allied and Associated Powers of persons “accused of hav-
ing committed acts in violation of the laws and customs of war”; for the
handing over by the German Government of persons accused of having com-
mitted such acts; and for the furnishing by the German Government of all ap-
propriate documents and information. These trials were, of course, to be
conducted by national, not international, courts. Because of the political situa-
tion in Germany, the Allies agreed that the German Supreme Court of Leipzig
would try these cases. This proved to be a fiasco and established beyond doubt
that trial by a defeated nation of its own personnel charged with the commis-
sion of war crimes against enemy personnel or property during the hostilities
was not a viable solution to the problem.

Part I of the Treaty of Versailles constitutes the Covenant of the League of
Nations.’ The Council of the League established a Committee of Jurists which
drafted a Statute of the Permanent Court of International Justice. Article 34
of that Statute provided that only “States or Members of the League of Nations
can be patties to cases before the Court.” Obviously, such a limitation pre-
cluded criminal trials.

While it did not provide for the establishment of an international criminal
court, it is not possible to omit reference to the Treaty of Paris (also known as
the Kellogg-Briand Treaty),!° which was executed on August 27, 1928. This
Treaty provided:

Article I

The High Contracting Parties solemnly declare in the names of their
respective peoples that they condemn recourse to war for the solution of
international controversies, and renounce it as an instrument of national policy
in their relations with one another.

Article II

The High Contracting Parties agree that the settlement or solution of all
disputes or conflicts of whatsoever nature or of whatever origin they may be,
which may arise among them, shall never be sought except by pacific means.

As we shall see, this Treaty served as the substantive law basis for findings with
respect to crimes against peace reached by the post-World War II courts at
Nuremberg and Tokyo.!!

249


Westphalian Peace Tradition

41. Titre VI. Quoted by Pompe, supra, p. 149.

42. See NUSSBAUM, supra note 37, p. 119.

43. Edmund Burke, Thoughts on French Affairs, Works of Edmund Burke, Vol. IV, quoted by
BOUCHER, supra note 34, p. 322.

44. THOMAS PAINE, RIGHTS OF MAN (1987 edition), pp. 181 and 179.

45. Ibid., p. 182.

46. IMMANUEL KANT, PERPETUAL PEACE AND OTHER ESSAYS, edited and translated by
Ted Humphrey 1983, p. 125.

». 116.

49. Ibid., p. 117.

50. Immanuel Kant, On the Proverb: That may be true in theory, but is of no practical use (1793),
in PERPETUAL PEACE AND OTHER ESSAYS, supra note 46, p. 89.

51. Kant's Federation of Free States was based on consent and national self-determination.
Sovereignty was important. His philosophical concept of “moral self-determination” should not
be touched upon here.

52. Quoted by RENE ALBRECHT-CARRIE, BRITAIN AND FRANCE: ADAPTATIONS TO A
CHANGING CONTEXT OF POWER (1970), p. 33.

53. Quoted by MICHAEL WALZER, JUST AND UNJUST WARS, A MORAL ARGUMENT WITH
HISTORICAL ILLUSTRATIONS (1977), p. 65.

54. Ibid., p. 66.

55. Sir Charles Eliot, quoted by WILLIAM L. LANGER, THE DIPLOMACY OF IMPERIALISM
1890-1902 (1951), p. 372.

56. See BARBARA W. TUCHMAN, THE PROUD TOWER, A PORTRAIT OF THE WORLD
BEFORE THE WAR: 1890-1914 (1962 and later editions), Chapter 5; and ARTHUR EYFFINGER,
THE 1899 HAGUE PEACE CONFERENCE, ‘THE PARLIAMENT OF MAN, THE PREPARATION OF
THE WORLD’ (1999), passim.

57. See JAMES BROWN SCOTT, THE HAGUE PEACE CONFERENCES OF 1399 AND 1907, Vol.
II, DOCUMENTS (1909).

58. Ibid., p. 83.

59. WILLIAM L. LANGER, supra note 55, p. 591.

60. See Franz Knipping, Hans Von Mangoldt, Volker Rittberger (Eds.), THE UNITED
NATIONS SYSTEM AND ITS PREDECESSORS (1997), Vol. II, p. 204.

80


On Genocide

grounds still made it overly broad. For example, any civil war would automati-
cally constitute genocide because each side would be attempting to destroy the
other in order to take over the government—in short, for political reasons. And
by adding “or any other grounds,” genocide would apply to any war at all.

If in 1944 the concept of genocide was vastly overinclusive, and in 1946
plainly overinclusive, in 1948 the definition was finally pinned down. Not only
did the Convention for the Prevention and Punishment of Genocide!® present an
internationally binding definition, but the words of that definition have been re-
peated verbatim many times in constitutive instruments of ad hoc international
criminal tribunals, the statute of the proposed International Criminal Court, and
in various judicial decisions in national as well as international tribunals:

Genocide means any of the following acts committed with intent to destroy,
in whole or in part, a national, ethnical, racial or religious group as such:

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;

(d) imposing measures intended to prevent births within the group;

(e) forcibly transferring children of the group to another group.

This language formulated in 1948 was well-chosen. Even though many of the
delegates to the drafting of the Genocide Convention had their own agendas to
promote, the result of their deliberations is a definition that is remarkably
coherent in the sense I have been discussing. This is not to say that the
definition is without difficulties; hardly any definition can ever be said to be
perfect. Yet with this definition as a reference point, let us consider some of the
specific issues that have caused some problems in relation to the coherency of
the crime of genocide: “group,” “specific intent,” and the relation to “ethnic
cleansing.” Of course, other issues will arise in cases yet unlitigated, but as of
the time of this writing, these three topics seem most salient.

Restrictions as to Group Membership

The most immediately notable restriction in the 1948 definition of “geno-
cide” is the exclusion of political groups and the concomitant decision not to
make the idea of groups open-ended (in contrast to the 1946 resolution’s inclu-
sion of “or any other grounds”). Why were political groups excluded in the

122


Ronald St. J. Macdonald

and therefore applicable to all States regardless of their membership in the
United Nations. Since the obligations to maintain international peace and se-
curity and to prohibit the use of force have achieved jus cogens status, the provi-
sions of Article 2.6 themselves would not necessarily be required to impose
first-order juridical obligations on third States, but would technically represent
supplementary obligations, and, of course, a political objective for the
organization.

Article 103, even more forcefully, assigns the Charter a quasi-constitutional
relevance by giving it priority over any other treaty obligation that conflicts
with the Charter. This article seriously impacts on the centuries-old rule of
pacta sunt servanda, and affects the res inter alios principle as well. The fact is
that the consequences of the implementation of this provision reverberate on
third States that are also parties to treaties signed by member States. However,
the quasi-universal coverage of the United Nations renders the practical effect
of Article 103 less striking than previously.

A number of articles, such as Articles 32 and 35, deal with non-member
States, whose participation in the work of the General Assembly and the Secu-
rity Council has been encouraged. In line with legitimate concerns for open-
ness, it was recognized early on that it would be detrimental to the success of
the United Nations if significant segments of the world population (non-
member States) were to remain excluded from its activities, and if the organiza-
tion did not provide for participation by non-State actors, which are playing an
increasingly important role in international relations.

The status of non-State participants in the work of the United Nations is dif-
ferent for entities with sovereignty and entities, such as NGOs and individuals,
without sovereignty. Whereas the first category has traditionally been given a
certain recognition by the General Assembly in the form of “observer status,”
the second has been accorded, as provided in Article 91 of the Charter, “con-
sultative status” with ECOSOC. The question of the extent of NGO participa-
tion has not yet been solved.

Access to the Security Council has traditionally been governed by Article 32
of the Charter and Rule 39 of the Provisional Rules of Procedure of the Security
Council. While Article 32 limits access in principle to States, Rule 39 allows
access to the Council for persons whom it considers competent to supply it with
information or otherwise assist in examining matters within its competence. In
recent years the Council has been commendably flexible in encouraging con-
tacts and consultations with non-governmental and inter-governmental
organizations.

273


Ove Bring

to armed conflict. Expectations de lege ferenda pointed towards a future legal re-
gime of obligatory settlement procedures, towards a jus contra bellum.

This was a time when the peace movement was on the move again, after a
period of decline following the nationalistic sentiments of the Crimean War.
The outlawing of war had been on the agenda since the first peace conferences
were held in New York, London, Paris, and Geneva between 1815-1830. The
first international Peace Congress was held in London in 1843, and in 1867
Victor Hugo and Giuseppe Garibaldi founded the first peace-oriented NGO
—Ligue de la Paix et de la Liberté—in Geneva. In the aftermath of the judicial
settlement of the Alabama Claims, international lawyers became active and
founded two peace-oriented organisations of their own in 1873: first, the
Institut de Droit International in Gent; and thereafter the Association for the
Reform and Codification of the Law of Nations (later International Law Asso-
ciation) in Brussels.

In 1888, the Interparliamentary Union was founded in order to unite parlia-
mentarians in a struggle against war, and the following year the first World
Peace Conference was convened with representatives from different national
peace associations. Both events took place in Paris. In 1889 the Austrian bar-
oness Bertha von Suttner published the best-selling novel Down with Arms (Die
Waffen nieder). Her friend, Alfred Nobel, died in 1896 (he had been active in
his way for the cause of peace) and left behind a will that, inter alia, resulted in
the Nobel Peace Prize. All this private activity may have influenced individual
statesmen, politicians and diplomats, but it did not result in any normative pro-
posals sponsored by governments. All the same, a political principle of
non-aggression had emerged in conformity with the opinion of many actors in
national societies.

Emphasis in the international society remained on ad hoc crisis‘ management.
In 1897, when Greece wanted to liberate Crete for reasons of nationalistic ful-
filment (enosis) power rather than international morality, it was warned by the
Great Powers not to attack Turkey. Notwithstanding the warnings, Greece
sent a fleet to Crete and mounted operations in Thrace. It has been said that
the six Great Powers (Britain, France, Germany, Austria, Russia, and Italy)
“laid down the rules of the game—for instance, that the aggressor would not be
allowed to obtain any advantage from the conflict, whatever the result might
be.”55 One gets an impression of an emerging opinio juris corresponding to the
principle ex injuria jus non oritur. But it is probably too much to say that the in-
ternational law on the use of force was developed through State practice at this
instant. Nevertheless, international law thinking seemed to have played a cer-
tain part in the crisis management. Greece started the war, lost it, was saved by

73


UN Forces and International Humanitarian Law

question of the UN exercising sovereign authority arose. Although the estab-
lishment of the United Nations Operation in Somalia (UNOSOM I & II)36 was
on the basis that no effective government existed for the country, the mandates
assigned to UNOSOM did not contemplate it exercising genuine governmen-
tal authority. As part of the resolution of the Croatia/Serbia conflict, the
United Nations Transitional Administration for Eastern Slavonia, Baranja and
Western Sirmium (UNTAES) administered the indicated areas in Croatia
(formerly the Eastern Slavonia UNPA) from 1996 to 1998.37 In 1999 the
United Nations established “an international civil presence in Kosovo,” in ef-
fect in a condominium with NATO, which is charged with establishing an “in-
ternational security presence” there,28 as well as the United Nations
Transitional Administration in East Timor (UNTAET), which is “empowered
to exercise all legislative and executive authority, including the administration
of justice.”39

In spite of the UN’s resistance to accepting the Geneva and other IHL trea-
ties by participation or a general declaration, the organization has, as discussed
below, recognized their binding nature in respect of particular operations, both
by means of the regulations issued for them and by the bilateral agreements
concluded with host States and with troop-contributing States.

International Customary Law

The United Nations has never denied that its military operations are subject
to customary IHL or that the substance of most of the significant IHL treaties has
passed into customary law. Although questions might surface about the custom-
ary law character of those parts of the Protocols I and II to the 1949 Geneva Con-
ventions that had not already had that character before their adoption, such
doubts do not appear to have been raised by the United Nations itself.

In the mid-1960s (evidently in wake of the Congo operation)39 a number of
semi-official suggestions were made for the United Nations to accept explicitly
the applicability of IHL to its forces. These included resolutions adopted at the
20th International Conference of the Red Cross4° and at the 52nd Conference
of the International Law Association (ILA).4! After studying this question
from 1965, the private but highly respected Institute of International Law at its
55th session, held in Zagreb in 1971, adopted a resolution on “Conditions of
the Application of Humanitarian Rules of Armed Conflict to Hostilities in
which United Nations Forces May Be Engaged,”4? of which Article 2 reads as
follows:

512


Ronald St. J. Macdonald

Outer Space (Dec. 19, 1967) in A/RES/2345 (XXII) 1967, the Convention on International
Liability for Damage Caused by Space Objects (Nov. 29, 1971) in A/RES/2777 (XXVI), the
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Dec. 5,
1979) in A/RES/34/68. Regarding the activity of the General Assembly and the Committee on
Outer Space on the subject, see Ralph G. Steinhard, Outer Space, in Oscar Schachter and
Christopher C. Joyner (eds.), UNITED NATIONS LEGAL ORDER (Cambridge: Grotius
Publications, Cambridge University, 1995), vol. 2, pp. 753-787.

52. ZEMANEK, note 3. p. 203.

53. Conforti, note 23, p. 703; Giorgio Gaia, Reflexions sur le role du Conseil de Securité dans le
nouvel ordre mondial. A propos des rapports entre maintin de la paix et crimes internationaux des Etats,
97 REVUE GENERAL DE DROIT INTERNATIONAL PUBLIQUE 297-320 (1993).

54. Giorgio Burci, L’azione del Consiglio di Sicurezza delle Nazioni Unite nella crisi del Golfo, in
46 COMUNITA INTERNAZIONALE 278-315 (1991); Kirgis, note 21, p. 520ff.

55. In Council Resolution 687/1991. The representative of United States, which was the
main supporter State of the resolution, hastened to declare that “certainly the United States
does not seek, nor will it support, a new role for the Security Council as the body that determines
international boundaries.” Quoted in BEDJAOUI, note 19, p. 42.

56. ZEMANEK, note 3, p. 205 (footnote).

57. Among others, BEDJAOUI, note 19.

58. Conforti, note 23, p. 706.

59. BEDJAUOI, note 19, p. 5.

60. ZEMANEK, note 3, pp. 93-94.

61. Satya N. Nandan, Introduction to the Law of the Sea, in Bedjaoui (ed.), note 5, p. 839.

62. ELIZABETH MANN BORGESE, THE OCEANIC CIRCLE: GOVERNING THE SEA AS A
GLOBAL RESOURCE (Tokyo: United Nations University Press, 1998); S.P. Jagota, The Seabed
Outside the Limits of National Jurisdiction, in Bedjaoui (ed.), note 5, p. 931.

63. Agreement for the Conservation and Management of Straddling Fish Stocks and Highly
Migratory Fish Stocks, A/CONF. 164/33, August 3, 1995, are. 7.2

64. “In any high seas area covered by a subregional or regional fisheries management
organization or arrangement, a State Party which is member of, or participant in, such
organization or arrangement, may, through its duly authorised inspectors, board and inspect . . .
fishing vessels flying the flag of another State party to this agreement, whether or not such State
Party is also a member of, or a participant in, the organization or arrangement for the purpose of
ensuring compliance with conservation and management measures for straddling stocks and
highly migratory fish stocks established by that organization or arrangement.” Ibid., art. 21.1.

65. Moritaka Hayashi, The 1995 Agreement of the Conservation and Management of Straddling
and Highly Migratory Fish Stocks: Significance for the Law of the Sea Convention, in 29 OCEAN AND
COASTAL MANAGEMENT 61 (1995).

66.S.P. Jagota, Developments in the Law of the Sea Between 1970 and 1998, 2 JOURNAL OF THE
HISTORY OF INTERNATIONAL LAW (1999), forthcoming; S.P. Jagota, Asia and the Development
of the Law of the Sea: 1983-1992, in Ronald St. J. Macdonald (ed.), ESSAYS IN HONOUR OF
WANG TIEYA (Dordrecht: Martinus Nijhoff, 1994), p. 367.

67. According to Mosler, the term supranational was first used and defined in the
negotiations which followed the Shumann Plan for the establishment of a European Coal and
Steel Community. MOSLER, note 1, p. 188. The supranationalism of the Coal and Steel
Community was more marked than that of the European Economic Community, and the powers
given to the High Authority of the Coal and Steel Community were broader than those later
granted to its EEC correspondent, the European Commission. In consideration of the wider area

297


The Law of Armed Conflict as Soft Power

not otherwise have been allowed to had the U.S. been party to the instrument?
Nevertheless, in the context of the Cold War, concerns about both political is-
sues (e.g., implied recognition of national liberation movements) and
warfighting limits (e.g., certain restrictions on striking dams, dikes, and nuclear
electrical generating stations) took on added importance. Other examples in-
clude U.S. hostility to Protocol III of the Conventional Weapons Convention
(incendiaries) and the U.S. refusal to ratify the 1925 Gas Protocol until 1975
out of fear that the agreement might reach the use of riot control agents and
herbicides or limit the response to a chemical attack to non-chemical means.48

What the United States understood very clearly was that law does have a
shaping effect on the conduct of hostilities; it is an element of strategic control.
With a hostile, heavily armed peer competitor at hand, the U.S. sought to
avoid having law shape the battlefield in any way disadvantageous to it or ad-
vantageous to its adversary.

However, the strategic paradigm has changed.49 Law still shapes, and clearly
can be used to the U.S. disadvantage, but the dynamic involved is very differ-
ent. With no peer competitor on the immediate horizon, particularly in the
military realm, the calculations of strategic choice shift. For instance, the wide
USS. technological advantage over potential adversaries, and the far greater re-
dundancy of U.S. weapon systems, means that an inability to employ a single
type of weapon will often be less consequential to the U.S. than other States,
which may have neither alternatives available nor the technological where-
withal to timely develop one. Similarly, assume a proposed international agree-
ment heightens the requirement for discrimination. The new “brilliant”
weapons being fielded by U.S. forces would allow it to comply more easily with
heightened standards than any other military. Even if the U.S. were to be pre-
cluded from striking a particular target that it would previously have been per-
mitted to attack, its advantage in information systems will enable its forces to
find and destroy alternative targets capable of yielding analogous benefits far
more easily than its opponents.

Most importantly, the issue is no longer whether the unavailability of partic-
ular weapons or tactics will hurt the U.S. sans plus. Instead, the overwhelming
military superiority of its forces gives the U.S. the luxury of risking potential
“negative” security consequences in order to pursue alternative objectives and
interests. With an antagonistic peer competitor just over the horizon, security
loomed so large as an interest that it dwarfed all others. That is no longer the
case. On the contrary, U.S. dominance logically bestows on the United States
greater capacity to shape the international legal environment than it has ever
enjoyed. If the United States is to take advantage of this unique period, it must

414


Christopher Greenwood

UNITED NATIONS AND INTERNATIONAL HUMANITARIAN LAW (Paris, Editions Pedone,
1996); U. Palwankar, Applicability of International Humanitarian Law to United Nations
Peace-keeping Forces, 33 INTERNATIONAL REVIEW OF THE RED CROSS (1993), p. 227; and C. J.
Greenwood, Intemational Humanitarian Law and United Nations Military Operations, 1 YEAR
BOOK OF INTERNATIONAL HUMANITARIAN LAW (1998), p. 3. See also Institut de droit
international, Resolution on the Conditions of Application of Humanitarian Rules of Armed
Conflict to Hostilities in which United Nations Forces may be Engaged, 54 (II) ANNUAIRE DE
LINSTITUT DE DROIT INTERNATIONAL (1971), p. 465, and the Resolution on the Conditions of
Application of Rules other than Humanitarian Rules, of Armed Conflict to Hostilities in which
United Nations Forces may be Engaged, loc. cit., vol. 56 (1975), p. 540.

37. In this context, it should be borne in mind that the United Nations has traditionally
taken, at least in theory, a very broad view of the right of self-defence of United Nations forces.
Thus, in a report on the operations of UNPROFOR in the former Yugoslavia, the
Secretary-General stated:

Iis to be noted that, in this context, self-defence is deemed to include situations in which
armed persons attempt by force to prevent United Nations troops from carrying out their
mandate. (United Nations Doc. $/24540 (1992), para. 9)

38. Part HI (a), supra.

39. See DE GUTTRY AND RONZITTI, THE IRAN-IRAQ WAR AND THE LAW OF NAVAL
WARFARE (1992). Fora recent, unofficial attempt to clarify the law relating to naval warfare, see
the INTERNATIONAL INSTITUTE OF INTERNATIONAL HUMANITARIAN LAW, SAN REMO.
MANUAL OF THE LAW APPLICABLE TO ARMED CONFLICTS AT SEA (1995).

40. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, IC} REPORTS,
1996, p. 225.

41. In addition, throughout the conflict, Resolution 713 (1991) prohibited the supply of
weapons to any party in the former Yugoslavia. It was repeatedly claimed by the Government of
Bosnia-Herzegovina and others sympathetic to it that this resolution unreasonably (and, in the
eyes of some, unlawfully) restricted the exercise by Bosnia-Herzegovina of its right of
self-defence. The challenge to the legality of Resolution 713 is, in the view of this writer, wholly
untenable, but the restriction on the right of self-defence was real.

42. Any limitations derived from that proclamation were entirely self-imposed and were
political, rather than legal, in character. In any event, the proclamation had made clear that it
did not affect che right of the United Kingdom to take action in self-defence outside the zone.

43. The present writer, however, considers that the sinking was legitimate since the
destruction of the cruiser ensured that the Argentine surface fleet was effectively removed from
further participation in the conflict, thus making the task of the British fleet significantly easier.

201


Dieter Fleck

In all aspects of multinational military units, the need for a continuous re-
view is obvious. It is highlighted by the review process agreed to in the treaties,
as well as by the common interest of all negotiating partners in using well-tried
procedures and developing tailor-made solutions.

Notes

1. Convention of 6 October 1997 between the Government of the Federal Republic
of Germany and the Government of the Kingdom of the Netherlands on the General
Conditions for the 1 (German-Netherlands) Corps and Corps-related units and establishments
(Bundesgesetzblatt - BGBI - 1998 II 2438).

2. 17th (B) Brigade, based in Spich, which forms part of the Ist (B) Division; 1st (F)
Armored Division, 42nd Signal Regiment and French element of the Franco-German Brigade.

3. Agreement Between the Parties of the North Atlantic Treaty Regarding the Status of
their Forces (NATO SOFA) of 19 June 1951 (199 UNTS 67; 4 UST 1792; TIAS 2846).

4. Agreement to Supplement the Agreement between the Parties of the North Atlantic
Treaty regarding the Status of their Forces with respect to Foreign Forces Stationed in the
Federal Republic of Germany (Supplementary Agreement to NATO SOFA) of 3 August 1959,
amended by the Agreements of 21 October 1971 and 18 March 1993 (481 UNTS 262; BGBI
1961 IE 1218, 73 II 1022, 94 If 2594).

5. Convention of 5 September 1998 between the Government of the Kingdom of Denmark,
the Government of the Federal Republic of Germany, and the Government of the Republic of
Poland on the Multinational Corps Northeast.

6. International Military Operations (German Participation) Case, Federal Republic of
Germany, Federal Constitutional Court (BVerfG) of 12 July 1994, Case Nos. 2 BvE 3/92, 5/93,
7/93 and 8/93 in: INTERNATIONAL LAW REPORTS, Vol. 106, Cambridge, 1997, pp. 319-352.
These decisions were given occasion to by the Bundeswehr’s participation in operations in the
Adriatic Sea, in the air space over Bosnia-Herzegovina, and in Somalia.

7. Bulletin No. 68 (23 June 1992), pp. 649 ff.

8. Convention on the Presence of Foreign Forces in the Federal Republic of Germany of 23
October 1954 (3 UNTS 334; BGBI 1955 II 253).

9. Exchange of Notes between the Governments of the Federal Republic of Germany, the
Kingdom of Belgium, Canada, the French Republic, the Kingdom of the Netherlands, the
United Kingdom and the United States concerning the status of their forces during temporary
stays in Berlin, Brandenburg, Mecklenburg-Western Pomerania, Saxony, Saxony-Anhalt and
Thuringia, of 25 September 1990, as amended on 12 September 1994 (Exchange of Notes with
six permanent sending States, BGBI 1990 II 3716).

10. Vertrag zwischen der Bundesrepublik Deutschland und dem Kénigreich der Niederlande
tiber die Stationierung von Truppen der Bundesrepublik Deutschland im Kénigreich der
Niederlande vom 6. Oktober 1997 (BT-Drucksache 13/10117, pp. 56-57).

11.Gesetz tiber die Rechtsstellung auslandischer Streitkrafte bei voriibergehenden Auf-
enthalten in der Bundesrepublik Deutschland (Streitkrafteaufenthaltsgesetz) vom 20. Juli 1995
(BGBI 1995 II 554).

12. Vertrag zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen
Republik iiber die Herstellung der Einheit Deutschlands - Einigungsvertrag - (BGBI 1990 II
889).

175


Legal Implications of NATO’s Armed Intervention in Kosovo

Accord is Scalding, N.Y. TIMES, June 5, 1999, at A7, col. 6; Edmund L. Andrews, Russians and
NATO Negotiating Pact Details, id. at A6, col. 1.

68. Kosovo Peace Accord, supra note 67, principle 4.

69. Id., principle 10.

70. S.C. Res. 1244, U.N. SCOR, 54th Session, 4011th meeting, U.N. Doc. A/Res/1244
(1999).

71. See NATO Action Against Serbian Military Targets Prompts Divergent Views as Security
Council Holds Urgent Meeting on Situation in Kosovo, U.N. Press Release SC/6657, March 24,
1999, at 1.

72. Id.

73. Id.

74. Id. at 9.

75. Id. at 9-10.

76. Id. at 3-4.

77. Id. at 8-9.

78. Id. at 4.

79. Security Council Rejects Demand for Cessation of Use of Force Against Federal Republic of
Yugoslavia, U.N. Press Release SC/6659, March 26, 1999, at 1. The Council had met pursuant to
a 24 March letter from Russia to the Council President. The letter asked that an urgent meeting
of the Council be convened to consider “an extremely dangerous situation caused by the
unilateral military action of the North Atlantic Treaty Organization (NATO) against the
Federal Republic of Yugoslavia.” Id. at 2. The text of the draft resolution (U.N. Doc. $/1999/328)
follows:

The Security Council,
Recalling its primary responsibility under the United Nations Charter for the
maintenance of international peace and security,

Deeply concerned that the North Atlantic Treaty Organization (NATO) used military
force against the Federal Republic of Yugoslavia without the authorization by the
Council,

Affirming that such unilateral use of force constitutes a flagrant violation of the United
Nations Charter, in particular Articles 2(4), 24 and 53,

Recognizing that the ban by NATO of civil flights in the airspace of a number of countries
in the region constitutes a flagrant violation of the principle of complete and exclusive
sovereignty of every State over the airspace above its territory in accordance with article 1
of the Chicago Convention on International Civil Aviation,

Reaffirming its commitment to the sovereignty and territorial integrity of the Federal
Republic of Yugoslavia,

Determining that the use of force by NATO against the Federal Republic of Yugoslavia
constitutes a threat to international peace and security,

Acting under Chapters VII and VIII of the Charter,

1. Demands an immediate cessation of the use of force against the Federal Republic of
Yugoslavia and urgent resumption of negotiations;

2. Decides to remain actively seized of the matter.

80. S.C. Res. 1239, U.N. SCOR., 55th Sess., 4003rd meeting, U.N. Doc. S/Res/1239 (1999),
operative para. 2.

334


Paul C. Szasz

Appendix I

United Nations

STiscpn99013

Secretariat

6 August 1999

Secretary-General’s Bulletin
Observance by United Nations forces of international humanitarian law

The Sceretary-General, for the pur-
pose of setting out fundamental principles and rules
of intemational humanitarian law applicable to
United Nations forces conducting operations under
United Nations command and control, promulgates
the following:

Section 1

Field of application

1.1 The fundamental principles and rules of in-
ternational humanitarian law sct out in the present
bulletin arc applicable to United Nations forces
when in situations of armed conflict they arc actively
engaged thercin as combatants, to the extent and for
the duration of thcir engagement. They are accord-
ingly applicable in enforcement actions, or in peace-
keeping operations when the usc of force is
permitted in self-defence.

1.2 The promulgation of this bulletin docs not af-
fect the protected status of members of peacckceping
operations under the 1994 Convention on the Safety
of United Nations and Associated Personnel or their
Status as non-combatants, as long as they are cntitlcd
to the protection given to civilians under the interna-
tional law of armed conflict.

Section 2

Application of national law

The present provisions do not constitute an cx-
haustive list of principles and rules of international
humanitarian law binding upon military personnel,
and do not prejudice the application thercof, nor do
they replace the national laws by which military per-
sonnet remain bound throughout the opcration.

Section 3

Status-of-forces agreement

In the status-of-forces agrecment concluded be-
tween the United Nations and a State in whosc terri-
tory a United Nations force is deployed, the United

‘Nations undertakes to ensure that the force shall con-
duct its opcrations with full respect for the principles
andrules of the general conventions applicable to the
conduct of military personnel. The United Nations
also undertakes to cnsure that members of the mili-
tary personnel of the force are fully acquainted with
the principles and nules of those international instru-
ments. The obligation to respect the said principles
and mules is applicable to United Nations forces even
in the absence of a status-of-forces agreement.

Section 4

Violations of international humanitarian law

In case of violations of international humanitar-
ian law, members of the military personnel of a
United Nations force are subject to prosecution in
their national courts.

Section 5

Protection of the civilian population

5.1 The United Nations force shall make a clear
distinction at all times between civilians and com-
batants and between civilian objects and military ob-
jectives. Military operations shall be directed only
against combatants and military objectives. Attacks
on civilians or civilian objects are prohibited.

5.2 Civilians shall enjoy the protection afforded
by this section, unless and for such time as they take
a dircct part in hostilities.

5.3 The United Nations force shall take all feasi-
ble precautions to avoid, and in any event to mini-
ize, incidental loss of civilian lifc, injury to,
ins or damage to civilian property.

5.4 In its arca of operation, the United Nations
force shall avoid, to the extent feasible, locating mil-
itary objectives within or near denscly populated ar-
cas, and take all necessary precautions to protect the
n population, individual civilians and civilian
objects against the dangers resulting from military
operations. Military installations and equipment of

533


Introduction

Leslie Claude Green
International Law Teacher

William J. Fenrick

ESLIE C. GREEN HAS TAUGHT INTERNATIONAL LAW for over fifty

years, and throughout that period he has influenced international law
significantly through his writings, teaching, conference participation, advising,
and informal exchanges of views. The peer group for international lawyers, at
least for those who reside outside the single superpower, is that of other inter-
national lawyers throughout the world. Describing Leslie Green as the leading
international lawyer in the Canadian province of Alberta, where he has resided
for most of the last thirty years, or as a leading Canadian law of war expert is not
necessarily conferring an effusive compliment. For non-American interna-
tional lawyers, the standard must be that set by the world community of inter-
national lawyers. By that standard, Leslie Green, author of nine books and of
over three hundred articles, and teacher of thousands of students and col-
leagues, is a major figure in contemporary international law, particularly in law
of armed conflict, a field of international law to which he has devoted much of
his finest work.

Comments are made in a personal capacity and necessarily reflect neither the view of
the Office of the Prosecutor nor of the United Nations.


Ove Bring

discussing Hedley Bull’s THE ANARCHICAL SOCIETY, supra note 9, and Michael Donelan’s
article Grotius and the Image of War, 12 MILLENNIUM (1983).

22. Treaty of Westphalia, Minster, October 24, 1648, in Fred Israel (Ed.), MAJOR PEACE
TREATIES OF MODERN HISTORY, 1648-1967, Vol. I (1967), p. 9.

23. Article CXXIII, ibid., p. 46.

24. Article CXXIV, ibid., p. 47.

25. Hedley Bull, The Importance of Grotius in the Study of International Relations, in HUGO
GROTIUS AND INTERNATIONAL RELATIONS, supra note 7, p. 75.

26. Ibid., p. 77.

27. The alliance of 1701 included Austria, Netherlands, Great Britain, Prussia, Hannover
and some German states. Savoy and Portugal joined the alliance in 1703.

28. See MAJOR PEACE TREATIES OF MODERN HISTORY, 1648-1967, supra note 22, Vol. I,
pp. 183, 187, 195, 197 and 200.

29. CHARLES DE VISSCHER, THEORY AND REALITY IN PUBLIC INTERNATIONAL LAW
(1957), p. 23.

30. P.P. SHAFIROV, A DISCOURSE CONCERNING THE JUST CAUSES OF WAR BETWEEN
SWEDEN AND RUSSIA: 1700-1721, reprinted by Oceana Publications (1973).

31. See the Second Book of FRANCOISE DE VOLTAIRE, HISTOIRE DE CHARLES XII - ROI DE
SUEDE, first edition in 1731, last edition updated by Voltaire in 1775. A modern version is
included in LES OEUVRES COMPLETES DE VOLTAIRE, Vol. 4, edition critique par Gunnar von.
Proschwitz, Oxford 1996.

32.See Alfred Vagts and Detlev F. Vagts, The Balance of Power in Intemational Law: A History
of an Idea, 73 AJIL 1979, pp. 555-57.

33. CHRISTIAN WOLFF, JUS GENTIUM METHODO SCIENTIFICA PERTRACTATUM, The Law
of Nations Treated According toa Scientific Method (1934), translated by J.H. Drake, Carnegie
Classics of International Law, pp. 330-35.

34. EMMERICH DE VATTEL, LE DROIT DES GENS; OU PRINCIPES DE LA LOI NATURELLE,
The Law of Nations or the Principles of Natural Law (1916), translated by Charles G. Fenwick,
Carnegie Classics of International Law, Book III, Chapter 3, paragraphs 34 and 49. Cf. DAVID
BOUCHER, POLITICAL THEORIES OF INTERNATIONAL RELATIONS (1998), pp. 265-67.

35. Georg Schwarzenberger, The Grotius Factor in Intemational Law and Relations: A
Functional Approach, in HUGO GROTIUS IN INTERNATIONAL RELATIONS, supra note 7, p. 307.
Cf. the well-known quotation from De Jure Belli ac Pacis that a just war implies “the obtaining of
that which belongs to us or is our due.” Book II, Chapter 1, Paras 1.4 and 2. John Locke used
Grotius’ just war doctrine as the basis of justifying not only wars between States, but also armed
struggle within States against oppression and tyranny. Like Grotius, Locke rejected wars of
conquest and admitted wars of punishment against offenders. Unlike Grotius, he may have come
close to ideas on collective security. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT
(1690), Chapter XVI, paragraphs 11, 176 and 230, modern version edited by C.B. MacPherson
(1980), pp. 11, 91 ff. and 115 ff.

36. SHARON KERMAN, THE RIGHT OF CONQUEST, THE ACQUISITION OF TERRITORY BY
FORCE IN INTERNATIONAL LAW AND PRACTICE (1996), pp. 67-93.

37. ARTHUR NUSSBAUM, A CONCISE HISTORY OF THE LAW OF NATIONS (1958), p. 142;
and BOUCHER, supra note 34, pp. 300-302.

38. Quoted from MONTESQUIEU, SELECTED POLITICAL WRITINGS, edited and translated by
Melvin Richter (1990), p. 113.

39. Ibid., p. 112.

40. See C.A. POMPE, AGGRESSIVE WAR AN INTERNATIONAL CRIME (1953), pp. 148-49.

79


Index

A

AGGRESSION, 60-61, 70-74, 137-38, 251-52, 261, 270, 277-78, 397-99, 408, 540-43
See also ARMED ATTACK; BLOCKADE, LAW OF; CRIMES AGAINST PEACE; DEFENSE AND
SECURITY ARRANGEMENTS; GULF WAR; HUMANITARIAN INTERVENTION; LAW OF
ARMED CONFLICT; SELF-DEFENSE; WORLD WAR I; WORLD WAR II
Definition, 399
Great Northern War (1700-1721), 64
Jus Cogens, 11
Outer Space, see also OUTER SPACE, 111
Treaty of Paris (Kellogg-Briand Pact) (1928), 249, 432, 498
AGREEMENT GOVERNING THE ACTIVITIES OF STATES ON THE MOON AND
OTHER CELESTIAL BODIES (1979) (Moon Treaty), see under MOON
AIRMEN IN DISTRESS, see under CUSTOMARY INTERNATIONAL LAW; INTERNATIONAL
HUMANITARIAN LAW; LAW OF ARMED CONFLICT; see also TARGETS
AIRSPACE, 215, 551
See also JURISDICTION, Territorial; OUTER SPACE; TERRITORIAL SEA
ANTARCTICA, 81, 94-97
See also OUTER SPACE
Antarctica Treaty (1959), 81, 86, 94-97, 100-02
Arms Control and Disarmament, 81
ANTICIPATORY SELF-DEFENSE, see under SELF-DEFENSE
ARAB-ISRAELI CONFLICT, see under ISRAEL
ARBITRATION, see INTERNATIONAL CHAMBER OF COMMERCE,
ARCHIPELAGIC STATES, 284-85
See also LAW OF THE SEA
ARGENTINA, 183, 471
ARMED ATTACK, 67, 134, 150, 166, 181-84, 313, 336
See also AGGRESSION; CRIMES AGAINST PEACE; LAW OF ARMED CONFLICT
ARMED CONFLICT, see also LAW OF ARMED CONFLICT
Definition, 190~91
ARMISTICE, 140-44, 527
See also PEACE TREATIES; WAR, Termination
Definition, 140
Korea (1953), 141-42
World War I (1928), 140
World War Il (1943-45), 140-42
ARMS CONTROL AND DISARMAMENT
See also WEAPONS
Atoms for Peace Plan, 86, 92, 94
Outer Space, see also OUTER SPACE, 81
AVIATION, 137, 254, 334, 364, 374-77, 451, 558
See also LAW OF ARMED CONFLICT, Airmen in Distress
Civil Aviation, 240, 254
International Civil Aviation Organization, 240

589


Making Law of War Treaties

While the original U.S. proposal (5:5:3) considered only the naval arma-
ment of the three principal naval powers, an effort to extend the formula to
France and Italy in the course of the conference had an effect on the submarine
issue. France balked at the formula proposed of 5:5:3:1.67:1.67,6! eventually
accepting a 5:5:3:1.75:1.75 tonnage ratio provided it did not extend to auxil-
iary vessels, such as cruisers, destroyers and submarines. This was the first of
several ploys by the participating powers, and served to enable the submarine
to evade prohibition—which France vehemently opposed—while introducing
the alternative of use regulation.

The British attempt to abolish the submarine, opposed by France, Japan, It-
aly, and the United States, and offered against the advice of the American del-
egation, had an overly optimistic goal and an ulterior motive. If Great Britain
could achieve the abolition of the submarine, the threat would be removed. If it
could not, it would use that fact to insist that the tonnage ratio not extend to
cruisers, which it used not only in antisubmarine operations but also for most of
its peacetime naval missions.®? Failing attainment of a submarine prohibition, a
submarine tonnage ratio was proposed by the U.S. delegation. The British re-
sisted, arguing that if a total prohibition could not be achieved, tonnage ratios
should be substantially lower than those proposed by the United States, and
there should be an express prohibition on ocean-going (as opposed to coastal)
submarines whose primary use would be commerce destruction. This argument
played well in the media and with the American public, which the British fully
exploited. Over the next month the American delegation received over
400,000 letters and telegrams urging abolition or drastic limitation of subma-
tines, with only 4,000 supporting submarine retention. Notwithstanding assur-
ances by the British that its proposals had neither unworthy nor selfish motives,
but that it was acting solely “on the highest of humanitarian principles,” and
domestic pressure on the U.S. delegation to support the British proposals,
agreement as to abolition or to tonnage limitations was not possible. Japan
viewed its ability to build submarines in parity with the United States and
Great Britain as one of its few successes at the Washington Conference.®

It was at this moment that Elihu Root, former United States Senator, former
Secretary of War and Secretary of State, and a member of the U.S. delegation,
introduced the idea of regulating submarines as commerce destroyers. The
Root resolution not only proposed new rules relating to visit and search, but
also stipulated that the members of a submarine crew violating its provisions
would be subject to international prosecution as pirates.

The proposal met with almost as much opposition as the British argument
for total abolition, not the least initially from the British delegation, which

348


Dieter Fleck

Netherlands in provisions which are fully congruent with the Supplementary
Agreement regarding the status of forces permanently stationed in Germany.?!
Special tribute is also to be paid to the Czech and Polish negotiators who de-
manded full reciprocity from the beginning of the negotiations on agreements
in accordance with the German Visiting Forces Act. In doing so, they effec-
tively contributed to uniform standards, for as a national law, the German
Visiting Forces Act had to be limited to the status of foreign forces in
Germany.

In addition to the provisions relating to the status of forces of a sending
State, special rules have to be established on the status of multinational head-
quarters. An exception was the LANDJUT Corps, because it was commanded
by an existing NATO headquarters, the status of which ensued from the Paris
Protocol of 195222 and the 1967 Agreement regarding NATO headquarters in
Germany.?3 By contrast, the Danish-German-Polish Convention of 5 Septem-
ber 1998 on the Multinational Corps Northeast?* provided for specific States
tules due to the fact their application of the Paris Protocol, either mutatis mu-
tandis or under its Article 14, was excluded for political and legal reasons. By
Article 14, the whole or any part of the Paris Protocol may be applied, by deci-
sion of the North Atlantic Council, to any international military headquarters
or organization established pursuant to the North Atlantic Treaty. The Head-
quarters of the Multinational Corps Northeast in Szczecin, however, is not part
of the NATO command structure. Reference to the Paris Protocol on NATO
Headquarters could have resulted in a misunderstanding in this respect which
would not have been without political implications. As confirmed in Part IV of
the NATO-Russia Founding Act,?> in the current and foreseeable security en-
vironment, the Alliance will carry out its collective defense and other missions
by ensuring the necessary interoperability, integration, and capability for rein-
forcement rather than by additional stationing of permanent substantial com-
bat forces. Even if provisions of the Paris Protocol had been used, major
adaptations would have been necessary considering the fact that the Multina-
tional Corps Northeast is subordinated only to the three ministers of defense;
therefore, the rights and responsibilities of NATO as defined in the Paris Pro-
tocol are inapplicable. Consequently, the Multinational Corps Northeast de-
rives no juridical personality from the North Atlantic Treaty Organization as
defined in Article 10 of the Paris Protocol. Its authority is vested exclusively by
the three participating States. Property of the Headquarters of the Multina-
tional Corps Northeast is that of the States and only participating States may
be committed in legal proceedings. Finally, the North Atlantic Council will not
be involved in the settlement of possible disputes, which will remain the

169


Outer Void Space Not Reserved for Exclusively Peaceful Use

space, including the moon and other celestial bodies” in treaties and other in-
struments relating to outer space which it has sponsored. Thus, the 1967 Space
Treaty, in its Article II, which is equivalent to the above-quoted Article 3 of
the 1963 Declaration, provides:

“Outer space, including the moon and other celestial bodies, is not subject to
national appropriation. . . .” (emphasis added).

In other words, henceforth the moon and other celestial bodies were no longer
treated as being separate from outer space as such, but rather as forming part of
it, as shown in figure 2. It follows that whenever reference is made to “outer

Figure 2: Meaning of “Outer Space” since the 1967 Space Treaty,
Which, by Including Celestial Bodies Within It, Deprives the Space Outside
Celestial Bodies, Previously Known as Outer Space, of a Name of Its Own

OUTER
<oOSPACE

THE SPACE BETWEEN
THE CELESTIAL BODIES

NAMELESS

space,” the moon and all the other celestial bodies are automatically included.
One of the consequences of this change in the use of the term outer space is
that the vast space in between all the celestial bodies has lost any specific desig-
nation. It has become nameless, causing a great deal of confusion and misun-
derstanding. What I have done is to name it the “outer void space,” as can be
seen in figure 3, hoping thereby to clarify the nomenclature of the different
parts of outer space before we embark on the meaning of the word “peaceful.”

84


Alfred P. Rubin

and move to rule by the enlightened few—us. But that was Plato’s answer, and
it is inconsistent with open society ideals we also purport to have.

I conclude that openness leading to moral examination of value systems is
probably the closest we can come to “justice” if “peace” is really our aim in this
imperfect world.

Until now, the accommodation of the international legal order to the quest
for enforceable moral standards has been to encourage States in the interna-
tional legal order to agree to general rules, usually masquerading as legal princi-
ples but actually moral principles, and enforce them through their own
interpretation of them in their own municipal legal orders. That is why the
1949 Geneva Conventions contain their uniformly incomplete “hand over”
provisions quoted above. It is also why, in the Genocide Convention of 1948,
the enforcement provision provides that: “The Contracting Parties undertake
to enact, in accordance with their respective Constitutions, the necessary legis-
lation to give effect to the provisions of the present Convention and, in particu-
lar, to provide effective penalties for persons guilty of genocide or any of the
other acts enumerated. . .”25 And “Persons charged with genocide . . . shall be
tried by a competent tribunal of the State in the territory of which the act was
committed, or by such international penal tribunal as may have jurisdiction
with respect to those Contracting Parties which shall have accepted its juris-
diction.”26 Until now, i-e., for about 50 years, no State has accepted the juris-
diction of any international tribunal for such acts although, under severe
political pressure, the Serbian part of the Bosnian State is argued to have au-
thorized the spokesperson of the Republic of Yugoslavia (Slobodan Milosevic)
to accept such an obligation for it. How the other parties to the pertinent inter-
national accords construe themselves into making definitive interpretations of
a document of delegation to which they are not parties is a bit mysterious as a
matter of law, however simple it might seem as a matter of politics.2? Whether
any State accepting the ICC Statute conceives it applying to its own leaders
acting in its own territory remains to be seen. Whether other States parties will
send their young people to be killed and spend their own taxpayers’ money to
enforce the mandate of an international tribunal applied in the territory of a
second State and affecting only the people of that State, also remains to be
seen.

The overarching problem confronting the statesmen and lawyers of the
world is probably not that of creating a tribunal to reduce “war” or political vio-
lence to the point that atrocities can be punished by some outside umpire. War
itself is atrocious; it kills innocent people, hurts others, destroys property, and
in many cases is temporary in its political results. The “civilized” world

431


Wolff Heintschel-von Heinegg

Before entering into that question the present article will first offer an over-
view of the development of the law of naval blockade in State practice and in
international treaties and drafts. An assessment of the current state of the law
of blockade by special reference to the legal literature will follow.

Development of Blockade Law in State Practice
and International Instruments

As blockades were originally restricted to coastal fortifications, they differed
only slightly from sieges in land warfare.!° With the increasing importance of
sea trade at the end of the 16th century, it became necessary to also cut off the
enemy's sea links without taking possession of the respective part of the coast-
line or port.!! Presumably, the first naval blockade was declared by the Dutch
in 1584. The Flemish ports that then were under Spanish control were declared
barred in order to cut off the Spanish troops from supplies.!? In fact, this block-
ade, as well as subsequent blockades, was declared for the sole purpose of en-
abling the Dutch to seize neutral merchant vessels even if they were not
carrying enemy or contraband goods.!3 In the early 17th century, Hugo Grotius
took the view that regardless of their contraband character all goods destined
to a blockaded location were subject to capture and seizure provided their de-
livery jeopardized the success of the closure of the respective enemy port. That,
according to Grotius, was the case if surrender or peace were imminent.!4 State
practice at the close of the 16th and during the 17th centuries, however, fails to
evidence general acceptance of such a restriction. Hence, one hundred years
later, Cornelius van Bynkershoek could easily establish that Grotius’ opinion
was not in accordance with existing treaties and edicts or even reason.15

Although a blockade affected all ships and goods regardless of their enemy
or contraband character,!¢ in those days belligerents were not obliged to main-
tain and enforce a blockade by a sufficient number of warships. Regularly, they
were “fictitious” or, to use the more popular expression, “paper blockades”
(also called “blocus de Cabinet” or “blocus per notificationem”)!? that were not
enforced by capture in case of breach. Rather, as laid down in the Dutch decree
of June 26, 1630,!8 or in the Anglo-Dutch Treaty of Whitehall (1689),!9 ships
could be captured at far distance from the blockaded area if it was established
that they clearly intended to breach the blockade (“droit de prévention”).20
Thus, the basis was laid for the doctrine of “continuous voyage,” according to
which ships destined to a neutral port are subject to capture if their ultimate
destination is a blockaded port. According to the “droit de suite,” ships were

205


Charter of the United Nations as a World Constitution

general security. Rao emphasizes a widely held view when he says that, al-
though the tasks of the organizations are far-reaching and of a global nature,
“the United Nations has not been conceived as a world government, nor could
transform itself into one.”®6 The lack of effective capacity of United Nations or-
gans to impose their decisions on the members and the absence of any mecha-
nism to juridically review their acts are almost universally seen as serious
problems for the constitutional perspective.8?

The distinguished Italian jurist Arangio-Ruiz, now a judge of the United
States-Iran Claims Tribunal in The Hague, answers the question posed rather
negatively. In a recent article, he does not exclude a priori the possibility that
sometime in the future the United Nations may develop into something more
on the lines of a confederation or a federation. For the time being, however, he
sees the United Nations as a mere union of States, subordinate rather than su-
perior to its members.88 On the same line is Conforti, who sees the Charter as a
treaty, not binding on third States, and the United Nations as a voluntary com-
munity.8? James Crawford, Whelwell Professor at Cambridge, although recogniz-
ing the existence of several constitutional traits in the Charter which have the
potential to make it a constitutive act, also notices the constitutional inadequa-
cies of the Charter itself and suggests that it can be considered a starting point to-
wards the development of a constitution for the international community.

Somewhat in the middle is Picone, who sees the United Nations as having a
double nature in the international system. On the one hand, it is a traditional
international organization, with forms and modalities defined by the Charter.
On the other, it acts, in specific cases, as an organ of the international commu-
nity, able to guarantee to the States operating uti universi in the defense of rules
erga omnes, a further layer of legitimization.9!

Other influential commentators have little doubt that the Charter is a world
constitution. For Dupuy, the vocation of the Charter is to serve as “the text of
reference”92 when international law is analyzed, the Charter being “at the same
time the basic covenant of the international community and the world consti-
tution. .. . [it is the] world constitution, already realized and still to come.”93
Others perceive the Charter as a global constitution, in fieri. In a similar vein,
Mosler quite rightly envisions the “trend of history [as going] towards relative
sovereignty.”®4 An even stronger stand is taken by Tomuschat, who affirms
that “the Charter is nothing else than the constitution of the international
community . . . not to be compared to any other international instrument.”9>

However perceived, doctrine agrees that the Charter is a treaty establishing
the most comprehensive framework of cooperation in the history of interna-
tional relations. The importance of the organization as a permanent forum for

292


Charter of the United Nations as a World Constitution

Resolution 1962 (XVIII) of 1963, Declaration of Legal Principles Gov-
erning the Activities of States in the Exploration and Use of Outer Space.
An effect similar to the one obtained by Resolution 2549 regarding the law of
the sea was realized by Resolution 1962 (XVIII) for the regime of outer space.
Indeed, the regime of outer space acquired shape for the most part through the
activity of the General Assembly. The 1966 Outer Space Treaty and nearly all
subsequent international texts on outer space are based on General Assembly
resolutions generated by the Committee on Outer Space.°! Whatever the
particularism or partial autonomy of this field of law, as evidenced by the devel-
opment of its own set of legislative instruments, it remains closely linked to the
Charter of the United Nations which, we need to bear in mind, was made spe-
cifically applicable to space and outer space by the General Assembly. On this
extended view, the constitutional reach of the Charter extends beyond planet
earth to embrace the cosmos itself.

Recent Activities of the Security Council

Almost all recent interventions by the United Nations, and the Security
Council in particular, have been justified by humanitarian concerns. Some of
these interventions were not only against States but also against individual per-
sons. The main critique of the activity of the Security Council in this particular
field is that the acts in question seem to point in the direction of the establish-
ment of new norms of international law despite the fact that nowhere in the
Charter is the Council (or any other organ of the United Nations) endowed
with law-making capacity. As Zemanek affirms, “The word ‘measures’ used in
Articles 39, 41, and 42 of the Charter does not suggest that the Security Coun-
cil may generate rules of general international law by decision.”52 Yet this is ex-
actly what the Council has done on several occasions since 1989.53 The first
legally doubtful act of the Council after the end of the Cold War was the dele-
gation of the use of force in the intervention against Iraq.>4 More significant
from a law-making point of view was the guarantee of the inviolability of the
Kuwait-Iraq boundary*> and the establishment of a Compensation Commis-
sion to solve the Kuwait claims against Iraq. An even more evident deviation
from the usual prerogatives of the Security Council, and an action that can
hardly find a basis in international law, was the request to Libya to surrender
two of its nationals to other States’ tribunals and the subsequent economic
sanctions imposed under Resolutions 731 (1992) and 748 (1992).

The Council again used the instrument of resolution to establish an Interna-
tional Tribunal for the Prosecution of Persons Responsible for Serious

282


Shabtai Rosenne

Notes

1. Originally issued as doc. A/CONF.183/9*. That contained many errors in each one of its
authentic texts and has been replaced by PCNICC/199/INF.3, August 17, 1999, in the
documentation of the Preparatory Commission for the International Criminal Court. Further
corrections to one or the other of the authentic texts are still being circulated by the United
Nations Secretariat, as depositary of the Rome Statute. For an account of the Rome Conference
through the eyes of participants, see Roy S. Lee (ed.), THE INTERNATIONAL CRIMINAL COURT:
THE MAKING OF THE ROME STATUTE, ISSUES, NEGOTIATIONS, RESULTS (1999).

2. Cf. L.C. Green, Law of War in Historical Perspective, International Law Studies Volume
72, THE LAW OF MILITARY OPERATIONS: LIBER AMICORUM PROFESSOR JACK GRUNAWALT,
pp. 39, 48 (M. Schmitt, ed., 1998); Howard S. Levie, War Crimes, ibid., p. 95. And see G.
SCHWARZENBERGER, INTERNATIONAL LAW (THE LAW OF ARMED CONFLICT), p. 462 (1968);
J-H.W. VERZIJL, I INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE, p. 407 (1968); TH.
MERON, HENRY’S WARS AND SHAKESPEARE'S LAWS: PERSPECTIVE ON THE LAW OF WAR IN
THE LATER MIDDLE AGES, pp. 12, 167 (1993). .

3. [am grateful to Mr. Ch. Keith Hall for bringing this to my attention. And see L. Bethell,
The Mixed Commissions for the Suppression of the Transatlantic Slave Trade in the Nineteenth
Century, JOURNAL OF AFRICAN HISTORY, vol. VII (1960), p. 79. For an example of this type
of treaty and the detailed regulations for a mixed commission, see H. LA FONTAINE, PASICRISIE
INTERNATIONALE 1794-1900, HISTOIRE DOCUMENTAIRE DES ARBITRAGES INTERNATIONAUX,
p. 84 (reprint, 1997, with preface by Pierre Michel Eisemann).

4. See COMPTE RENDU DE LA CONFERENCE INTERNATIONALE REUNIE A GENEVE LES, 26,
27,28 ET 29 OCTOBRE 1863 POUR ETUDIER LES MOYENS DE POURVOIR A L'INSUFFISANCE DU
SERVICE SANITAIRE DANS LES ARMEES EN CAMPAGNE (deuxiéme édition 1904).

5. 1 Bevans 7; 129 CONSOLIDATED TREATY SERIES (hereafter: CTS) 361; reproduced in D.
Schindler and J. Toman, THE LAWS OF ARMED CONFLICTS; A COLLECTION OF
CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS (hereafter: Schindler and Toman),
p. 279 (1988), supplemented by the Additional Articles extending the Provisions of the
Convention of August 22, 1864, to Naval Warfare, of October 20, 1868, 138 CTS 189;
Schindler and Toman, p. 285 (never in force), replaced by Hague Convention III of 1899, 187
CTS 443; Schindler and Toman 289.

6. On this see P. BOISSIER, HISTOIRE DU COMITE INTERNATIONAL DE LA CROIX-ROUGE,
DE SOLFERINO A TSOUSHIMA, p. 395 (1978); Ch. Keith Hall, The First Proposal for a Permanent
International Criminal Court, 38 INTERNATIONAL REVIEW OF THE RED CROSS, p. 57 (1998). An.
English translation of Moynier’s proposal appears at p. 72. Curiously, this initiative is not
mentioned in the Historical Survey of the Question of International Criminal Jurisdiction,
Memorandum submitted [to the International Law Commission] by the Secretary-General
(hereafter: Historical Survey), doc. A/CN.4/7/Rev.1 (Sales No. 1948.V.8) (1949).

7. Circular of January 28, 1872, reproduced in BULLETIN INTERNATIONAL DES SOCIETES
DE SECOURS AUX MILITAIRES BLESSES PUBLIE PAR LE COMITE INTERNATIONAL DE LA CROIX
ROUGE, No. 11, p. 121 (1872). This circular was signed by General Dufour in Moynier’s absence.
The ICRC took that initiative very seriously. A note in the ICRC Archives shows that, with
regard to another idea of Moynier’s, the Committee approved it but decided not to insert a
reference to it in the upcoming issue of the Bulletin, for fear it would divert attention from the
proposal for the establishment of an international criminal jurisdiction. E-mail, Hans-Peter
Gasser to the author, January 11, 1999.

413


Christopher Greenwood

This is an important aspect of the right of self-defence and is indicative of one
of the purposes which the international law on resort to force is designed to
serve, namely, that if war cannot be prevented, the law should at least seek to
contain it. It is this requirement, that the exercise of the right of self-defence
should be confined to what is necessary and proportionate, which makes the
limits of self-defence important not only in the decision to resort to force but
also in decisions about how the subsequent hostilities should be conducted.3

While the right of self-defence remains the legal basis for the use of force
which is most frequently invoked, it is no longer the only one. Since 1990, deci-
sions to employ force have increasingly had a United Nations element. The
point can be illustrated by contrasting the Falklands conflict of 1982 with the
Kuwait conflict of 1990-1991. Both conflicts commenced with the invasion by
one State of territory of another and thus with a violation of Article 2(4) of the
Charter. In the case of the Falklands, the British Government justified its resort
to force in response to the Argentine attack entirely on the basis of the right of
self-defence—United Kingdom territory had been the subject of an armed at-
tack and the United Kingdom claimed the right to use the degree of force nec-
essary to repel that attack, which meant, in that case, such force as was
compatible with the laws of war and was necessary to retake and secure the is-
lands. The Security Council was only peripherally involved. The United King-
dom scored an important victory, in political terms, at the outset of the conflict
in obtaining Resolution 502 (1982) which called on Argentina to withdraw
and uttered a thinly veiled condemnation of the invasion. That resolution was
not, however, a necessary part of the United Kingdom’s legal justification for
the military operations on which it then embarked. The legal questions were,
first, was the United Kingdom acting within the scope of the right of self-de-
fence—in particular, were its actions within the proportionality require-
ment—and, secondly, did those actions comply with the laws of war?

By contrast, when Iraq invaded Kuwait in August 1990, the Security Coun-
cil determined that that action was a breach of international peace and then
took enforcement action under Chapter VII of the United Nations Charter.!4
The United Nations could not itself undertake military action, as envisaged in
the Charter, but it used its powers under Chapter VII to authorize military ac-
tion by an ad hoc coalition of States. Thus, Security Council Resolution 678
(1990) authorized “States co-operating with the Government of Kuwait” (a
formula carefully designed to avoid any suggestion that the Council was ap-
proving military action by Israel) to use force in order to ensure Iraqi compli-
ance with the various resolutions on Kuwait and “to restore international
peace and security in the area.”

183


W. Hays Parks

reasons insisted upon strict compliance with the rules for submarine visit and
search. But on September 3, 1939, the first U-boat sinking of World War II oc-
curred when U-30 attacked and sank the British ocean liner Athenia (with a
loss of 118 lives, including 28 Americans) when it was misidentified as a British
auxiliary cruiser. Errors occur in war, but this error was compounded by the
German decision to deny responsibility.!!9

The leading U-boat historian concludes that through the first seven months
of the war, German U-boat commanders carried out their duties “in a fair—and
at times even chivalrous—manner.”!20 Hitler’s decision to comply strictly with
the 1936 London submarine rules added significantly to the risk for U-boat
commanders, while reducing their effectiveness. Within days the ambiguities
in the language of the 1936 Procés-Verbal became apparent, as U-boat com-
manders and the U-boat command sought clarifications or relaxation of Hit-
ler’s directive. The authority to attack belligerent merchant shipping was
complicated by the knowledge that a ship might be using a false flag to conceal
its identity, thereby forcing the U-boat to endeavor to visit and search, or might
be a decoy ship.!2! On September 23, Admiral Karl Dénitz sought a relaxation
of the directive to permit attack of neutral vessels carrying contraband in the
North Sea. Hitler approved changes and clarifications that permitted the at-
tack or capture of any merchant ship that made use of its radio to send the
“SSS” (submarine alarm) on being stopped by a U-boat for visit and search; au-
thorized the attack of French shipping; and British or French passenger ships
carrying 120 passengers or less. Hoping to avoid a repetition of the Athenia
sinking, large passenger vessels were not to be attacked. The following day he
authorized the attack of French warships; one week later the requirement to
comply with the Procés-Verbal in the North Sea was withdrawn. But objections
from Norway, Sweden and Denmark prompted Hitler to rescind that portion of
his September 23" order to the extent that it authorized the attack of neutral
shipping. Two days later Hitler authorized the attack on sight and without
warning of darkened ships (including neutral ships) encountered off the British
and French coasts.!22 On October 4, the requirements for visit and search were
extended to 15° west longitude; on October 17, U-boats were authorized to at-
tack without warning any belligerent merchant ship; on October 19, the au-
thority to attack blacked-out ships was extended to 20° west; and on
November 12, Hitler authorized the attack on sight of any passenger vessel
known or seen to be armed, and any tanker which was “beyond doubt” pro-
ceeding to or from Great Britain or France.!23 By mid—1940, Germany’s move-
ment toward unrestricted submarine warfare was well underway.124

359


Legal Issues of Multinational Military Units

widely used in UN peacekeeping. For the mission in the former Yugoslavia, it
was essential to secure NATO’s support under the Dayton Accords. Thus,
clear terms of command and control could be used and implemented as dis-
cussed above.

s illustrated in this study, multinational military units are of unique

significance for application of the ius ad praesentiam as well as the sta-
tus of forces (ius in praesentia) regime and its further development. In specific
cases, the establishment of such units has revealed the need for certain adjust-
ments to promote the principle of reciprocity.

Command and control issues within multinational units and the relation-
ship between foreign, “multinational” commanders and national authorities of
the participating States need further consideration. New forms of integrated
command and control relations may be required in the process of deepening in-
tegration. The degree to which NATO terms of command and control could be
used as guidance, or even be made applicable to operations outside the Alli-
ance, merits further investigation.

Proposals to harmonize national military laws in support of daily cooperation
in multinational units raise questions regarding possible deviations from exist-
ing national laws. Such questions cannot be properly answered in general
terms, but instead require specific solutions responsive to the respective con-
text. Changes in national legislation may only be executed step by step and as
part of an overall process of development.

Increased integration should not be regarded as an end in itself. It remains
equally important to ensure the exchangeability of personnel between various
units with regard to their participation in multinational units. This sets certain
bounds to military integration between the participating States which must be
taken into account in the interest of a common solution.

The question remains open as to what extent the concept of multinational
units, which is unique in Europe today, will gain importance beyond present
Alliance cooperation. Most current UN peacekeeping operations have long
been multinational in nature. It is sometimes surprising to see that certain gen-
eral rules which have become routine for NATO cooperation, in particular
with respect to command and control, are still absent during UN operations.
The practice of ad hoc arrangements may still be preferable to allow for flexibil-
ity in a specific mission, but clarity, consistency and, last but not least, the prin-
ciple of equality between troop contributing States require a long-term solution
based on accepted general terms and procedures.

174


Outer Void Space Not Reserved for Exclusively Peaceful Use

for this usage to be defined explicitly in the Treaty, as the Moon Treaty has
done with the word “moon.” If there was an equivalent provision in.the 1967
Treaty, then there would be no problem, but there is no such provision.

It is true that Article 32 of the Vienna Convention provides that resort can
be made to the preparatory work of a treaty in interpretation, but the provision
makes it clear that doing so is but a “supplementary means,” one which may be
used only:

in order to confirm the meaning resulting from the application of Article 31, or to
determine the meaning when the interpretation according to Article 31:

(a) leaves the meaning ambiguous or obscure, or

(b) leads to a result which is manifestly absurd or unreasonable.

There is nothing ambiguous, obscure, manifestly absurd or unreasonable in
interpreting “peaceful” to mean “non-military,” which is the ordinary and nor-
mal meaning of the word. There is no need therefore to invoke preparatory
work. On the contrary, to interpret “peaceful” as meaning “non-aggressive” is,
to use the words of Article 32, “manifestly absurd and unreasonable.”

It is unreasonable because such an interpretation renders the first sentence
of Article IV(2) of the Space Treaty totally useless. First, States under current
international law and the Charter of the United Nations are already bound not
to engage in aggressive activities, and parties to the Space Treaty have already
pledged themselves in Article III to abide by international law and the UN
Charter in their exploration and use of outer space. Consequently, under this
interpretation, the first sentence would be redundant and only the second sen-
tence of Article [V(2) would be relevant. Instead of being merely exempli-
ficative, as it should be, if the first sentence is controlling, as in Article I of the
Antarctic Treaty, the second sentence would be the only material provision in
Article IV(2). Its enumeration of the contracting Parties’ obligations would be
exhaustive. Sentences three and four would also become totally redundant; for
there would be nothing in the first sentence even remotely to suggest that either
military personnel or military equipment might not be used for “non-aggressive”
exploration or use. Such an interpretation would be totally unreasonable.

But to interpret “peaceful” in Article IV(2) as “non-aggressive” would in
fact be “manifestly absurd,” for reasons already given by Professor Vlasic. In ad-
dition, if this is the correct interpretation, since Article IV(2) applies only to
celestial bodies and not the outer void space, the absence of such a stipulation
in, say, Article IV(1) or anywhere else in the Treaty immediately gives rise to
the argument, as we have said, that contrariwise aggressive activities are permis-
sible in outer void space! Otherwise, why an express provision providing that

100


M. Cherif Bassiouni

respect to the United States Feb. 2, 1956) reprinted in 2 Weston, supra note 2, at II.B.12; Geneva
Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75
U, 135, 47 AM. J. INT'L L. 119 (1953) (entered into force Oct. 21, 1950) (entered into
force with respect to the United States Feb. 2, 1956), reprinted in 2 Weston, supra note 2, at
11.B.13; 53 Geneva Convention Relative to the Protection of Civilian Persons in Time of War,
Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, 50 AM. J. INTL L. 119 (entered into force Oct.
21, 1950) (entered into force with respect to the United States Feb. 2, 1956), reprinted in 2
Weston, supra note 2, at IL.B.14.

89. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts of 8 June 1977 {hereinafter 1977
Protocol I], opened for signature at Berne, Dec. 12, 1977, U.N. Doc. A/32/144 (1977), Annex I,
(entered into force Dec. 7, 1978), reprinted in 16 LL.M. 1391, and 2 Weston, supra note 2, at
ILB.20; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts (hereinafter 1977 Protocol II],
Dec. 12, 1977, U.N. Doc. A/32/144 (1977) Annex II, (entered into force Dec. 17, 1978),
reprinted in 16 LL.M. 1391, and 2 Weston, supra note 2, at I.B.21.

90. Customary international law consists of the practice of states confirmed by their intention
to be legally bound by the practice. See Akehurst, supra note 29; Hiram E. Chodosh, An
Interpretive Theory of International Law: The Distinction Between Treaty and Customary Law, 28
VAND. J. TRANSNAT'L L. 973 (1995); D'AMATO, supra note 29; Jordan J. Paust, Customary
International Law: Its Nature, Sources and Status as Law of the United States, 12 MICH. J. INT'L L.
59, 61 (1990); JORDAN J. PAUST, INTERNATIONAL LAW AS LAW OF THE UNITED STATES
(1996). But see Curtis A. Bradley & Jack L. Goldsmith, Customary Intemational Law as Federal
Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997).

91. See Bassiouni, supra note 6, and the authorities cited therein.

92. At present there are 25 categories of international crimes. They are: (1) aggression; (2)
genocide; (3) crimes against humanity; (4) war crimes; (5) crimes against United Nations and
associated personnel; (6) unlawful possession or use or emplacement of weapons; (7) theft of
nuclear materials; (8) mercenarism; (9) apartheid; (10) slavery and slave-related practices; (11)
torture and other forms of cruel, inhuman, or degrading treatment; (12) unlawful human
experimentation; (13) piracy; (14) aircraft hijacking and unlawful acts against international air
safety; (15) unlawful acts against the safety of maritime navigation and the safety of platforms on
the high seas; (16) threat and use of force against internationally protected persons; (17) taking
of civilian hostages; (18) unlawful use of the mail; (19) unlawful traffic in drugs and related drug
offenses; (20) destruction and/or theft of national treasures; (21) unlawful acts against certain
internationally protected elements of the environment; (22) international traffic in obscene
materials; (23) falsification and counterfeiting; (24) unlawful interference with submarine
cables; and, (25) bribery of foreign public officials. These crimes are reflected in 323
international instruments elaborated between 1815-1997. See BASSIOUNI, ICL
CONVENTIONS, supra note 8.

93, See Hague Convention, reprinted in 2, Weston, supra note 2, at II.B.1.

94. See Bassiouni, From Versailles to Rwanda, supra note 10.

95. There are 35 treaties on the control of weapons. See BASSIOUNI, ICL CONVENTIONS,
supra note 8.

96, See BASSIOUNI, ICL CONVENTIONS, supra note 8; Hague Convention for the Protection
of Cultural Property in the Event of Armed Conflict and Regulations for the Execution of the
Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May

47


Naval Blockade

63. M.W. CAGLE/F.A. MANSON, THE SEA WAR IN KOREA, Annapolis 1957, p. 281 ff. See
also M.M. WHITEMAN, DIGEST 10, supra note 5, p. 866 f.

64. J. ROHWER, Naval Warfare Since 1945, U.S. Naval Institute PROCEEDINGS 104 (May
1978), p. 66 ff.; J. Rohwer, MARINE-RUNDSCHAU 71 (1974), pp. 7-26, 19; R. OTTMULLER,
AANWENDUNG VON SEEKRIEGSRECHT, supra note 61, pp. 274, 285 £; D.K. PALIT, THE
LIGHTNING CAMPAIGN, Salisbury 1972, p. 145.

65. The speech by President Nixon (“Denying Hanoi the Means to Continue Aggression,”)
was delivered on May 8, 1972, U.S. DEPT. OF STATE BULL., Vol. 66 (May 29, 1972), pp.
741-751. See also D.P. O'CONNELL, THE INFLUENCE OF LAW ON SEAPOWER, Manchester
1975, pp. 64 £., 93 ff; F.B. Swayze, Traditional Principles of Blockade in Modem Practice: United
States Mining of Internal and Territorial Waters of North Vietnam, JAG JOURNAL XXIX (1977), pp.
143-173.

66. S.V. Mallison/W.T. Mallison Jr., supra note 39, U.S. Naval Institute PROCEEDINGS 102
(Feb. 1976), p. 51; R. OTTMULLER, ANWENDUNG VON SEEKRIEGSRECHT, supra note 61, p. 231
ff.

67. D.P. O'CONNELL, INFLUENCE, supra note 65, p. 101 ff; S.V. Mallison/W.T. Mallison Jr.,
supra note 39, p. 51; R. OTTMULLER, ANWENDUNG VON SEEKRIEGSRECHT, supra note 61, pp.
293 £., 301; R-R. Baxter, The Law of War in the Arab-Israeli Conflict: On Water and on Land,
‘TOWSON STATE JOURNAL OF INTERNATIONAL AFFAIRS 5 (1971), pp. 1-17, 8.

68. Notice to Mariners No. 17/59.

69. Notice to Mariners No. 18/59.

70. See the references in: A. Gioia/N. Ronzitti, The Law of Neutrality: Third States’
Commercial Rights and Duties, in: IF. Dekker/H.H.G. Post (eds.), THE GULF WAR OF
1980-1988, Dordrecht et al. 1992, p. 234

71. For the reactions of neutral States in the aforementioned conflicts, see the references in:
R. OTTMOLLER, ANWENDUNG VON SEEKRIEGSRECHT, supra note 61, pp. 71 f., 96 £,, 235 f,, 282,
298.

72. Printed in: BYIL LIX (1988), 581.

73. THE COMMANDER'S HANDBOOK ON THE LAW OF NAVAL OPERATIONS, NWP
1-14M/MCWP 5-2.1/COMDTPUB P5800.1 (hereinafter NWP 1-14M).

74. While NWP 1-14M applies to the Canadian armed forces, there also exists a draft manual
that is not yet completed. Since there are some differences, that draft will be cited in the
following notes.

75. HUMANITARIAN LAW IN ARMED CONFLICTS Manual, edited by the Federal Ministry of
Defence of the Federal Republic of Germany, Bonn, August 1992 (hereinafter GERMAN
MANUAL).

76. NWP 1-14M, paras. 7.7.1 and 7.7.2.5; GERMAN MANUAL, para. 1051; Canadian Draft,
para. 722 (1)(5).

77. NWP 1-14M, paras. 7.7.2.1 and 7.7.2.2; GERMAN MANUAL, para. 1052; Canadian Draft,
para. 722.

78. NWP 1-14M, para. 7.7.2.2; GERMAN MANUAL, para. 1052; Canadian Draft, para. 722
(3).

79. As to the question whether and to what extent a blockade may be maintained only by
naval mines, see the section on Declaration, Notification, Impartiality and Effectiveness infra.

80. NWP 1-14M, para. 7.7.2.3; GERMAN MANUAL, para. 1053; Canadian Draft, para. 722

(4).
81. NWP 1-14M, para. 7.7.1; GERMAN MANUAL, para. 1051 (1); Canadian Draft, para. 722
(1).

224


M. Cherif Bassiouni

160. See ICC Statute, supra note 13, at Articles 77 to 79.

161. See ICC Statute, supra note 13, at Article 20.

162. For a distinction between humanitarian law norms and human rights law norms as
customary law, see THEODOR MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS AS
CUSTOMARY LAW (1989).

163. See Bassiouni, From Versailles to Rwanda, supra note 10.

164. U.S. v. Calley, C.M. 426402, 46 C.M.R. 1131 (1971); 48 C.MLR. 19 (1973); 22 C.M.A.
534 (1973).

165. U.S. v. Medina, C.M.A. 403; 43 C.M.R. 243 (1971).

166. 29 THE NEW ENCYCLOPEDIA BRITANNICA 1022 (1990).

167. Shimoda v. The State, 355 Hanrel Jiho (Supreme Court of Japan 7 December 1963); also
quoted in part in 2 Friedman, supra note 1, at 1688. See also Richard A. Falk, The Shimoda Case:
A Legal Appraisal of the Atomic Attacks Upon Hiroshima and Nagasaki, 59 AM. J. INT'L L. 759
(1965). The claim in that case was against the United States of America for dropping atomic
bombs on Nagasaki and Hiroshima in violation of the laws and customs of war.

168. See Attorney General of Israel v. Eichmann (Israel Dist. Court of Jerusalem, 1961), 36
LL.R. 5 (1962), (Supreme Court of Israel 1962), 36 I.L.R. 277 (1962). See also, e.g., GIDEON
HAUSNER, JUSTICE IN JERUSALEM (1966).

169. See Demjanjuk v. Petrousky, 776 F.2d 571 (6th Cir. 1985), cert. denied, 475 U.S. 1016
(1986).

170, The Barbie judgments:

Matter of Barbie, GAZ. PAL. JUR. 710 (Cass. Crim. Oct. 6, 1983); Judgment of Oct. 6,
1983, Cass. Crim., 1984 D.S. Jur. 113, Gaz. Pal. Nos. 352-54 (Dec. 18-20, 1983), 1983
J.C.P. II G, No. 20,107, J.D.I. 779 (1983); Judgment of Jan. 26, 1984, Cass. Crim., 1984
J.C.P. II G, No. 20,197 (Note Ruzié), J.D.I. 308 (1984); Judgment of Dec. 20, 1985, Cass.
Crim., 1986 J.C.P. II G, No. 20,655, 1986 J.D.I.; Judgment of June 3, 1988, Cass. Crim.,
1988 J.C.P. II G, No. 21,149 (Report of Counselor Angevin).

For information on the Barbie case, see generally LADISLAS DE HOYAS, KLAUS BARBIE
(Nicholas Courtin trans., 1985); BRENDAN MURPHY, THE BUTCHER OF LYON (1983).
171. The Touvier judgments: .

Judgment of Feb. 6, 1975, Cass. Crim., 1975 D.S. Jur. 386, 387 (Report of Counselor
Chapan), 1975 Gaz. Pal. Nos. 124-26 (May 4-6, 1975); Judgment of Oct. 27, 1975
Chambre d’accusation de la cour d’appel de Paris, 1976 D.S. Jur. 260 (Note Coste-Floret),
1976 Gaz. Pal. Nos. 154-55, at 382; Judgment of June 30, 1976, Cass. Crim., 1977 D.S.
Jur. 1, 1976 Gaz. Pal. Nos. 322, 323, 1976 J.C.P. II G, No. 18,435; Judgment of Nov. 27,
1992, Cass. Crim., 1993 J.C.P. II G, No. 21,977; Judgment of Apr. 13, 1992, Cour d’appel
de Paris, Premiére chambre d’accusation, at 133-62, reprinted in part in 1992 Gaz. Pal.
387, 387-417; Judgment of June 2, 1993, Cour d’appel de Versailles, Premiére chambre
d’accusation 31.

For information on the Touvier case, see generally ERIC CONAN & HENRY ROUSSO, VICHY, UN
PASSE QUI NE PASSE PAS (1994); ALAIN JAKUBOWICZ & RENE RAFFIN, TOUVIER HISTOIRE
DU PROCES (1995); ARNO KLARSFELD, TOUVIER UN CRIME FRANCAIS (1994); JACQUES
‘TREMOLET DE VILLERS, L'AFFAIRE TOUVIER, CHRONIQUE D'UN PROCES EN IDEOLOGIE
(1994).

53


International Law and the Conduct of Military Operations

population and government. Is an attack upon a State’s nationals abroad, or
upon ships flying its flag, or upon units of its armed forces (such as the U.S.
forces in Berlin who were attacked by the bombing of the La Belle discotheque
in 1986) an attack upon the State itself? This is a question of considerable
importance to which international law gives only an uncertain answer, but the
practice of those States which can do so has been to invoke the right of
self-defence to protect their nationals and shipping and certainly to protect
their armed forces. This approach is surely correct, for a State consists of its
people as much as its territory, and there would be something very strange, to
say the least, about a law which permitted the use of force to protect territory,
no matter how remote, barren, or uninhabited, but not to protect the lives ofa
State’s people when attacked outside its territory.”

Nor does the Charter give a definition of what is meant by “armed attack”
(or in the French text “aggression armée”). The International Court of Justice
has said that the use of force constitutes an armed attack only when it reaches a
certain level of intensity, so that a minor border incident would probably not
qualify.8 It is clear, however, that the use of force need not be by regular forces
but can include covert operations and terrorist attacks.? In addition, while Ar-
ticle 51 is couched in terms which suggest that the right of self-defence may be
exercised only once an armed attack has actually commenced, the better view,
and one for which there is substantial support in State practice, is that there is a
right of anticipatory self-defence when an armed attack is reasonably believed
to be imminent.!0

One further consideration is that, although Article 51 is silent on this point,
the International Court of Justice has recognized that the right of self-defence
is subject to the limitation that measures taken in self-defence must be propor-
tionate; excessive use of force by a State which has been the victim of an armed
attack is unlawful.!! This requirement is often misunderstood. It does not
mean that a State which has been attacked is confined to the degree of force
used by the attacker:

The requirement of the proportionality of the action taken in self-defence . . .
concerns the relationship between that action and its purpose, namely . . . that of
halting and repelling the attack or even, in so far as preventive self-defence is
recognized, of preventing it from occurring. It would be mistaken, however, to
think that there must be proportionality between the conduct constituting the
armed attack and the opposing conduct. The action needed to halt and repulse
the attack may well have to assume dimensions disproportionate to those of the
attack suffered. 12

182


Contributors

books, including three in the Naval War College’s “Blue Book” series, and has
authored many articles on international law and military operations.

Professor Georg Schwarzenberger joined the faculty of University College
London as a lecturer in International Law in 1938. He went on to serve the
University as Professor, Sub-Dean, Vice-Dean and Dean of Law before being
named Professor Emeritus in 1975. During his distinguished career, Professor
Schwarzenberger held a number of prominent positions, including Director
and Vice-President of the London Institute of World Affairs, the International
Law Association’s Rapporteur for the Committee on the United Nations, and
Member of the Permanent Finnish-Netherlands Conciliation Commission. He
served as the editor of such publications as THE YEAR BOOK OF WORLD
AFFAIRS AND CURRENT LEGAL PROBLEMS, and authored countless articles
and many books. Among his most noteworthy are POWER POLITICS, A
MANUAL OF INTERNATIONAL LAW, and the four-volume collection,
INTERNATIONAL LAW. Professor Schwarzenberger passed away in 1991, hav-
ing mentored a number of scholars who rose to international prominence, in-
cluding Professor Leslie Green.

Professor Paul C. Szasz is currently an Adjunct Professor at the Center for
International Studies, New York University School of Law, and has served as a.
Visiting Professor at the Law Schools of the University of California at Berkeley
and the University of Georgia. Since 1958 he has been a member of the legal of-
fices of the International Atomic Energy Agency (IAEA), the World Bank,
and the United Nations, where he served as Director of the General Legal Divi-
sion and Deputy to the Legal Counsel. After retirement he served as Legal Ad-
viser to the United Nations Transition Assistance Group in Namibia and to the
International Conference on the Former Yugoslavia, and as Acting Director of
the Office of the UN Legal Counsel and again as Deputy to the Legal Counsel.
In his several official assignments he served as Legal Adviser to numerous con-
ferences, including to the 1979-1980 UN Conference on Inhumane Weapons.
Professor Szasz has also been a participant in numerous academic conferences
and symposia, and has authored over 100 studies in the areas of IAEA safe-
guards, peacekeeping operations, the settlement of international disputes, the
protection of the environment, international administrative law, and related
topics.

Professor Sharon A. Williams is Professor of International Law and Inter-
national Criminal Law at Osgoode Hall Law School, York University, Toronto,
where she has taught since 1977. Currently the Immediate Past President of
the Canadian Council on International Law, she was a member of the Perma-
nent Court of Arbitration, The Hague (1991-1997), and since 1993 has been a

587


Index

History, 247-254, 388-91, 391-92, 393-98, 401-04
Jurisdiction, 539
Women, 310
INTERNATIONAL CRIMINAL LAW, 2, 15, 24, 127, 396, 407, 539, 551
INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR), 5-8, 10, 21, 25, 31,
34, 36, 340, 403, 407, 518, 522, 545
See also RWANDA
Prosecutor v. Akeyuste, 31-34
Statute, 5-8, 403
Genocide, 10
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER
YUGOSLAVIA (ICTY), 5-6, 8, 10, 15-16, 21, 25-31, 36, 191, 403, 407-08, 518, 522
See also YUGOSLAVIA, FORMER
Armed Conflict, Definition, 186
Jurisdiction, 15, 408
Prosecutor v. Tadié, 15-16, 30, 32
Prosecutor v. Kupreski, et. al., 25-31
Rape, 310
Statute, 5, 8, 21, 255, 403
Genocide, 10, 255
INTERNATIONAL HUMANITARIAN LAW, 1-56, 66, 74, 266, 301, 303, 305, 308,
310-11, 517-18, 524, 526
See also HUMAN RIGHTS; HUMANITARIAN INTERVENTION; INTERNATIONAL CRIME; LAW
OF ARMED CONFLICT
Definition, 2
History, 301
Lieber Code (1863), 305
INTERNATIONAL LAW
See also CUSTOMARY INTERNATIONAL LAW; TREATIES, LAW OF
Natural Law, 483
INTERNATIONAL LAW COMMISSION, 4, 139, 231, 235, 253-54, 394-96, 397, 400,
401-02, 540-43, 551-52
Draft Code of Crimes Against the Peace and Security of Mankind, 403-04
International Criminal Court Statute, 248, 401, 542-43
Peace Treaties, 139
INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (ITLOS), 407
ISRAEL
Arab-Israeli Conflict, 142, 144, 150
Demanjuk Case, 36
Egypt, 135, 136, 137, 138, 142
Eichmann Case, 36
Traq, 144-45
Jordan, 135, 136
Lebanon, 136-37
ITALY, 73, 94, 135, 141, 165, 248, 315, 342-64, 393
Submarine Warfare, 360
Yugoslavia v. Italy (1C}), 325

597


Ronald St. J. Macdonald

continuing refinements such as those in the 1995 Agreement on straddling and
highly migratory stocks. The 1982 Convention is basically a framework con-
vention: it is to be filled in by literally hundreds of geographically or function-
ally sectoral agreements already in existence or yet to be created. Further
progressive development, adjustment, and crystallisation of all aspects of the
law of the sea and sustainable ocean management will continue under the be-
nign guidance of the overarching constitutional provisions referred to.

The European Union. The European Union, the first supranational
organization in Europe, presents unique features.” Labeled the European
Community until 1993, it differs from other international organizations
because of the magnitude of its objectives and the effectiveness of its organs in
the pursuit of those objectives. Today, the organization consists of three pillars.
The first, the “European Community,” incorporates the three “communities”
established by the founding treaties (the European Coal and Steel Community,
the European Atomic Energy Community, and the European Economic
Community) and sets out the institutional requirements for the European
Economic and Monetary Union. The other two, the “Common Foreign and
Security Policy” and “Justice and Home Affairs,” operate by intergovernmental
cooperation rather than through community institutions.

The Community, which aims at the gradual integration of the economies of
the members, is competent to regulate a wide range of matters relating to eco-
nomic and social development.‘ The objective of the Founder States was to
“promote throughout the Community a harmonious and balanced development
of economic activities . . . sustainable and non-inflationary growth respecting
the environment. . . a high level of employment and of social protection, [and]
the raising of standards of living and quality of life.” To realize these objec-
tives, the six Founder States agreed to delegate sovereign powers to the organs
of the Community. In doing so, they granted the Community power to legis-
late, implement and, importantly, enforce, the regulations promulgated ac-
cording to its competence. In this way, the effectiveness of the European
Community in achieving the objectives of the treaty has been more successful
than in the case of other international organizations.

After the establishment of the Common Market in 1992, two new treaties
extended the range of areas to be covered by the Communities. The Treaty on
the European Union, which was signed in Maastricht in 1992 and came into ef-
fect the following year, added to the list of objectives the strengthening of the
economic and social cohesion and the establishment of an economic and mon-
etary union.” The 1997 Treaty of Amsterdam underlined the need for a

287


W. Hays Parks

of the Navy Theodore Roosevelt, Jr., “the submarine would be of most value ... against the two
island empires—Great Britain and Japan.” He regarded it as imperative that the United States
Navy not “permit our hands to be tied as regards submarines.”

63. A. WATTS AND B. GORDON, THE IMPERIAL JAPANESE NAVY (1971), at xii; Douglas,
supra note 52, at 192-195; Douglas, supra. note 62, at 90-94; Asada, supra note 53, at 82.

64. SPROUT AND SPROUT, supra note 54, at 199; ROSKILL, supra note 53, at 328. Roskill (p.
328) notes that the Root Resolution prompted the British Admiralty to raise with its law officers
the risk of individual criminal liability of its own submarine officers, but could not obtain a
definite ruling. Continuing, “This discussion continued for some years, and in 1926 the
Admiralty took note of the fact that ‘ifin a naval war we were forced to sink merchant ships as a
reprisal we might have to suspend or abrogate this provision...”

65. Douglas, supra note 62, at 95.

66. H. Rickover, International Law and the Submarine, U.S. NAV. INST. PROC. (September
1935), at 1220. The author, Lieutenant Hyman G. Rickover, USN, would continue his naval
career to become the father of the U.S. nuclear navy, retiring forty-seven years later as an
admiral; T. ROCKWELL, THE RICKOVER EFFECT (1982), at 363.

67. Anderson, supra note 57, at 51.

68. Resolution on Commission of Jurists to Consider Laws of War (2 Bevans 346), February
4, 1922. The subsequent Commission of Jurists to Consider and Report upon the Revision of the
Rules of Warfare, which met in The Hague from December 11, 1922, to February 19, 1923, was
expressly guided by this resolution, which read in part: “That it is not the intention of the powers
agreeing to the appointment of a commission to consider and report upon the rules of
international law respecting new agencies of warfare that the commission shall review or report
upon the rules or declarations relating to submarine . . . adopted by the powers in this
conference.” COMMISSION OF JURISTS TO CONSIDER AND REPORT UPON THE REVISION OF
‘THE RULES OF WARFARE (1922), at 7. This conference of jurists proceeded to an equally
unsuccessful effort to regulate aircraft use in war in Articles 22 through 24 of the Hague Rules of
Air Warfare, contained in Schindler and Toman, supra note 1, at 283, 285. The rules were never
adopted. L. Brune, An Effort to Regulate Aerial Bombing: The Hague Commission of Jurists,
1922-1923, AEROSPACE HIST. (September 1982), at 183-185; R. Wyman, The First Air Rules of
Warfare, AIR U. REV. (March-April 1984), at 94-102; and Parks, supra note 18, at 25-36.

69. Although a U.S. proposal, the U.S. Navy opposed the Root Resolution because it placed
“inequitable restrictions upon the use of submarines” and “introduced ambiguities in the rules
governing their use.” The naval architect of the 5:5:3 formula, then-Captain William Veazie
Pratt, was an Anglophile and intensely anti-Japanese. In particular, he believed that in a future
war with Japan, that nation would be vulnerable to attack on its merchant commerce. ROSKILL,
supra note 53, at 328; SPROUT AND SPROUT, supra note 56, at x, xiv, xvii; WHEELER, supra note
60, at 203-204, 248-250, 296.

70. The British delegation turned initial skepticism into a tactical gain. As one analysis
noted, “Once more Great Britain showed the quality of its diplomacy. It had proposed the
abolition of the submarine. In that it was thwarted. Then by a flank movement, but an open and
fair one, it obtained a great deal that its frontal attack had failed to accomplish. It obtained
abolition of the use of submarines in all operations, against merchant ships. . . . This abolition
includes not only illegitimate operations, but those that until the making of the treaty were
admitted by all to be legitimate.” Anderson, supra note 57, at 69.

71. SPROUT AND SPROUT, supra note 54, at 200, 201, 202-204. The Advisory Committee
assisting the U.S. delegation at the Washington conference argued that a merchant ship’s
defensive armament would almost surely be used offensively against a submarine, leading to a

375


Appendix

Principal Publications of Professor L. C Green
Books

Authored

International Law Through the Cases. 1st ed. 1951; 2d ed. 1959; 3rd ed. 1970;
4th ed. 1978.

Law and Society. 1975.

Superior Orders in National and Intemational Law. 1976.

International Law—A Canadian Perspective. Ist ed. 1984; 2d ed. 1988.

Essays on the Modem Law of War. 1st ed. 1985; 2d ed. 1998.

The Law of Nations and the New World, 1989 (with O. P. Dickason).

The Contemporary Law of Armed Conflict. 1st ed. 1993; 2d ed. 2000.

International Law. 1995 (Canadian Encyclopedic Digest) Western 3rd ed., Vol.
20, Title 80; Ontario 3rd ed., Vol. 17, Title 81.

Edited

Chen's International Law of Recognition, 1951.

Conference Reports of the International Law Association, 1952-1960,
1966-1970.

With M. Schmitt, Levie on the Law of War, 1998.

With M. Schmitt, The Law of Armed Conflict into the Next Millennium, 1998,

Articles

A Precedent: The Soviet Tables of the Rights of Man. Union (New Common-
wealth Institute), 1940, 114-20.


XIU

Legal Implications of NATO’s Armed
Intervention in Kosovo

Ved P. Nanda

HE MILITARY INTERVENTION by the nineteen-member North Atlantic

Treaty Organization (NATO) in Kosovo, a province of Serbia in the
Federal Republic of Yugoslavia, was the first of its kind undertaken by the alli-
ance. Under the 1949 North Atlantic Treaty,! NATO was formed as a re-
gional security organization. With its mission to act in a defensive capacity to
protect its members from external aggression, under the treaty the parties spe-
cifically agreed that

an armed attack against one or more of them in Europe or North America shall
be considered an attack against them all and consequently . . . if such an armed
attack occurs, each of them, in exercise of the right of individual or collective
self-defense recognized by Article 51 of the Charter of the United Nations, will
assist the Party or Parties so attacked by taking forthwith, individually and in
concert with the other Parties, such action as it deems necessary, including the use
of armed force, to restore and maintain the security of the North Atlantic area.2

Thus, the intervention was arguably beyond NATO’s intended mission.
Equally important, by unilaterally intervening in Kosovo, NATO bypassed the
United Nations. Its use of force clearly failed the test of strict compliance with


Paul C. Szasz

However, such regulations have not been issued for later UN forces or oper-
ations, and thus, until the just-issued Secretary-General’s Bulletin,>> there
were no explicit instructions to them in respect of IHL. However, as discussed
below, for some time now pertinent provisions have been included in both
SOFAs and the agreements with troop-contributing countries.

Status-of-Forces Agreements. Normally, whenever possible, the Secretary-
General concludes a Status-of-Forces Agreement (SOFA) with each country
in which a UN force is to operate, specifying in considerable detail the respec-
tive rights and obligations of the parties, particularly those regarding privileges
and immunities. Inter alia, SOFAs exempt-the members of the force from the
criminal jurisdiction of the host State, leaving it for their national States to im-
pose any disciplinary or criminal penalties in respect of at least the military
members of the force, while providing for the possibility of the Secretary-
General waiving the immunity of civilian members (e.g., UN staff).

Although no provision relating to IHL appeared in the Model SOFA com-
municated by the Secretary-General to the General Assembly in 1990,5¢ in re-
cent years the following provision has been included in these instruments:

Without prejudice to the mandate of [acronym for the force—hereafter UNX]
and its international status:

(a) the United Nations shall ensure that UNX shall conduct its operations in
[host State] with full respect for the principles and spirit of the general conven-
tions applicable to the conduct of military personnel. These international con-
ventions include the four Geneva Conventions of 12 August 1949 and their
Additional Protocols of 8 June 1977 and the UNESCO Convention of 14 May
1954 on the Protection of Cultural Property in the Event of Armed Conflict.

(b) the Government undertakes to treat at all times the military personnel of UNX
with full respect for the principles and spirit of the general international conven-
tions applicable to the treatment of military personnel. These international con-
ventions include the four Geneva Conventions of 12 August 1949 and their
Additional Protocols of 8 June 1977.

UNX and the Government shall therefore ensure that members of their
respective military personnel are fully acquainted with the principles and spirit of
the above-mentioned international instruments.55

Section 3 of the Secretary-General’s Bulletin provides that in SOFAs the
United Nations will ensure that its forces fully respect “the general conventions
applicable to the conduct of military personnel” and that its forces be fully

515


Introduction

Yugoslavia. Indeed, in some cases, presentation of evidence related to conflict
classification can occupy more time than presentation of evidence related to
the alleged misdeeds of the accused.

One can disagree with Professor Green on this issue, or at least tegard his
proposed solution as premature. I do.3 At the same time, one can but admire
his continuing creativity and love for new ideas. His lifelong and continuing
dedication to international law teaching and to independent scholarship is a
model for others to follow in their individual paths.

Notes

1. Problems of a Wartime International Lawyer, (1990) 2 PACE UNIVERSITY YEARBOOK OF
INTERNATIONAL LAW 93.
2. “Grave Breaches” or Crimes Against Humanity, 8 USAF ACADEMY JOURNAL OF LEGAL

STUDIES (1997-98) 19, at 29.
3. WJ. Fenrick, Should Crimes Against Humanity Replace War Crimes?, 37 COLUMBIA
JOURNAL OF TRANSNATIONAL LAW (1999) at 767-85.

xviii


Shabtai Rosenne

governments, including some that had been represented on the Committee,
and even more serious criticism in the Sixth Committee’s debate that year.33

The General Assembly then adopted Resolution 687 (VII), December 5,
1952.34 Here it decided to appoint another committee of 17 Member States to
be designated by the President of the General Assembly (Lester Pearson of
Canada). Its mandate was more complicated. The new Committee was, in the
light of the comments and suggestions of governments, (i) to explore the impli-
cations and consequences of establishing an international criminal court and of
the various methods by which this might be done; (ii) to study the relationship
between such a court and the United Nations and its organs; and (iii) to reex-
amine the draft statute. This resolution brought out the more general complex-
ities of the subject, something that before had not been clear.

The 1953 Committee was in session between July 27 and August 20, 1953.
In its report, it in effect followed what the earlier Committee had reported, sug-
gesting only some minor changes in the Statute as previously drafted. On the
central issue of the law to be applied, Article 2 merely repeated unchanged Ar-
ticle 2 of the earlier draft.35 In Resolution 898 (IX), December 4, 1954, the
General Assembly did not really accept this. It noted the connection between
the question of defining aggression, the draft Code of Offenses against the
Peace and Security of Mankind, and the question of an international criminal
jurisdiction. It decided to postpone consideration of the international criminal
court until the General Assembly had taken up again the questions of the defi-
nition of aggression and the draft Code of Offenses. This well brings out that at
that time the question of the applicable law continued to be the central issue of
interest on the political level. Simultaneously, in Resolution 895 (IX) of the
same date, the General Assembly established a new special committee to sub-
mit in 1956 a detailed report with a draft definition of aggression. At the same
time the International Law Commission submitted a report on the draft Code of
Offenses Against the Peace and Security of Mankind.3¢ In Resolution 897 (IX),
also of December 4, 1954, the General Assembly, referring to its decision regard-
ing the definition of aggression, decided to postpone further consideration of the
Code until the Committee on the definition of aggression had submitted its re-
port. The three items in that way became bound together, a triad. The decision
to postpone these items sine die was a direct consequence of the Cold War.

The Special Committee on the Definition of Aggression submitted its report
in 1956.37 Meanwhile, the early crisis of the United Nations on the admission
of new members had been resolved and the beginnings of the decolonization
process were taking place. Those two processes produced profound changes in
the composition and institutional character of the United Nations, especially

397


Making Law of War Treaties

20. W. THOMAS MALLISON, International Law Studies, VOLUME LVIII, STUDIES IN THE
LAW OF NAVAL WARFARE: SUBMARINES IN GENERAL AND LIMITED WARS (1966). See also R.
TUCKER, International Law Studies, Volume XLX, THE LAW OF WAR AND NEUTRALITY AT
SEA (1955), at 55-73. The distinction between a legal treatise and a military/diplomatic history
is: the former usually explains what the law is, with minimal reference to history (for example,
“Participants in the x conference decided that a was prohibited, but could not agree on a course
of action with regard to b”). The latter explains why, in the circumstances ruling at the time,
participating nations agreed to restrictions on a but could not agree to a course of action with
regard to b. The international lawyer must know the former, but is a better adviser and
negotiator if he understands the latter.

21. LN.TS. 173, pp. 353-357; 3 Bevans 298-299; Schindler & Toman, supra note 1, at
1203.

22. Schindler & Toman, id. at 884-885.

23. Grand Admiral Erich Raeder, Commander-in-Chief of the German Navy from 1929 to
January 30, 1943, and Grand Admiral Karl Dénitz, Commander-in-Chief of the German Navy’s
U-boats until he succeeded Raeder. On May 1, 1945, Donitz was designated Adolph Hitler's
successor as Fiihrer, the position he held at the time of Germany’s unconditional surrender on
May 8, 1945. See F. RUGE, DER SEEKREIG; THE GERMAN NAVY'S STORY, 1939-1945 (1957), at
31, 57, 58, 277-279; K. DONITZ, MEMOIRS: TEN YEARS AND TWENTY DAYS (1959), at 21,
48-50, 299, 441-460; and P. PADFIELD, DONITZ: THE LAST FUHRER (1984), at 156, 266, 411.

24. Judgment, I.M.T., at 138-140 (Karl Dénitz) and 143 (Erich Raeder). That portion of the
judgment was written by former U.S. Attorney General and I.M.T. judge Francis Biddle, who
favored acquittal of Dénitz and Raeder in light of U.S. and British practice. T. TAYLOR, THE
ANATOMY OF THE NUREMBERG TRIALS (1992), at 592-594.

25. J. Scott, ed., INSTRUCTIONS TO THE AMERICAN DELEGATES TO THE HAGUE PEACE
CONFERENCES AND THEIR OFFICIAL REPORTS (1916), at 1-2.

26. J. SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: THE CONFERENCE
OF 1899 (1920), at 365-367.

27. Muraviev’s call expressly tied to the need to exchange “ideas in furtherance of national
economy and ... the interests of humanity;” SCOTT, supra note 26. See also A. MARDER, THE
ANATOMY OF BRITISH SEA POWER (1964), at 342; B. TUCHMAN, THE PROUD TOWER (1966),
at 251-267; W. Hawkins, Captain Mahan, Admiral Fisher and Arms Control at the Hague, 1899, 39
NAV. WAR COLL. REV. (January-February 1986), at 77, 78; R. MASSIE, DREADNOUGHT
(1991), at 429-432; and, generally, T. ROPP, THE DEVELOPMENT OF A MODERN NAVY:
FRENCH NAVAL POLICY, 1871-1904 (1987), at 347-352.

28. R. CHAPUT, DISARMAMENT IN BRITISH FOREIGN POLICY (1935), at 50; C. DAVIS, THE
UNITED STATES AND THE FIRST HAGUE PEACE CONFERENCE (1962), at 120, reports that “The
«+ [Russian proposal] promised extensive debate. In fact, it was disposed of with little
discussion. The result was entirely negative.” See also MARDER, supra note 27, at 341-352, who
notes that the naval representatives on the United States and British delegations—the
equally-legendary Alfred Thayer Mahan and Admiral of the Fleet Sir John Fisher,
respectively—were “frankly out of sympathy with the main purposes for which the conference
was called” (p. 347). Fisher was an early enthusiast for the submarine; see R. HOUGH, ADMIRAL
OF THE FLEET: THE LIFE OF JOHN FISHER (1969), at 168-172. The various Russian arms
limitations proposals at the First Hague Peace Conference, which included limiting army force
levels and military budgets for five years, and freezing naval budgets for three years, are
noteworthy in their total rejection by the other participants in the subcommittee that considered

370


Georg Schwarzenberger

H. Rumpf, Is a Definition of War Necessary? BOSTON UNIVERSITY LAW REVIEW, 1938, p. 705 et
seq.
41. Sir Robert Phillimore, op cit., Vol. IIf, p. 16.

42. A. G. HEFFTER, LE DROIT INTERNATIONAL DE L’EUROPE (edited by F. H. Geffken),
Paris, 1883, p. 246; TH. BATY, THE CANONS OF INTERNATIONAL LAW (London, 1930), p. 110;
C. Parry, Some Nineteenth Century Pacific Blockades, ZEITSCHRIFT FUR AUSLANDISCHES
OFFENTLICHES RECHT UND VOLKERRECHT, 1938, p. 672 et seq.

43. See on the blockade by France of Formosa (1884), HALL-HIGGINS, A TREATISE ON
INTERNATIONAL LAW (London, 1924), pp. 439-440; on the British-German-ltalian blockade
of Venezuela, J. Basdevant, L’Action Coercitive Anglo-Germano-Italienne contre le Venezuela,
RG.D.LP., 1904, p. 422 et seq., and WESTLAKE, op. cit., p. 585.

44. The inability of modern doctrine, based on the assumption of the alternative of peace and
war, adequately to deal with the use of force in “peace,” may be illustrated by a few examples: H.
WHEATON, HISTORY OF THE LAW OF NATIONS IN EUROPE AND AMERICA (New York, 1845),
p. 759: “It remains . . .an undefined and undefinable exception to the mutual independence of
nations”; Hall-Higgins, op. cit., p. 434: Reprisals are acts of war in fact, though not in intention; E. M.
Borchard, “War” and “Peace,” AMERICAN JOURNAL OF INTERNATIONAL LAW, Vol. 27 (1933),
pp. 115-116: “It must be conceded that de facto war, with or without a full state of war, is one of
the commonest of phenomena, and . . . it cannot be reconciled with a state of peace”;
OPPENHEIM’S INTERNATIONAL LAW (edited by H. Lauterpacht, London, 1940), Vol. II, p. 107:
“Compulsive means are in theory and practice considered peaceable, although not amicable
means of settling international differences”; H. Lauterpacht, “Régles Générales du Droit de la
Paix,” HAGUE RECUEIL, T. 62 (1937), p. 191: “Le droit international congu comme un ensemble de
régles réglant la paix (ou, ce qui revient au méme, interdisant la violence).” See, however, G. W.
Keeton, Legal Guarantees of Peace, CEECHOSLOVAK Y.B.LL., London, 1942, p. 41.

45. Cf. the writer's POWER POLITICS, supra, Pt. I.

46. See, on the different forms of power, B. RUSSELL, POWER (London, 1938).

47. See on the unlimited right to war in modern international law, HALL-HIGGINS, op. cit., p.
82, and on the attitude of British practice, the note of Mr. Christie to the Marquis of Abrantes
(Dec. 30, 1862) and the dispatch of Earl Russell to Mr. Lettsom (Dec. 24, 1864), Fontes Juris
Gentium, Series B., Sec. I, Tomus I, Part II (1856-71), Nos. 2398 and 2375. The measures
applied by France and Great Britain against Holland in order to achieve the separation of
Belgium in 1832-33 (HOGAN, op. cit., p. 80 et seq.) and similar measures of “international police”
(HALL-HIGGINS, op. cit., p. 441) show that State practice interprets liberally the conditions
assumed by doctrine to limit the use of force in “peace.” As Brierly observes, “all these writers
seem conscious of a certain unreality in the profession of the law to regulate reprisals” (loc. cit., p.
309). See also C. Eagleton, The Form and Function of the Declaration of War, AMERICAN
JOURNAL OF INTERNATIONAL LAW, Vol. 32 (1938), p. 19 et seq.

48. A. ROUGIER, LES GUERRES CIVILES ET LE DROIT DES GENS (Paris, 1903); resolution
adopted by the Institut de Droit International, 1900, in CARNEGIE ENDOWMENT, RESOLUTIONS
OF THE INSTITUTE of INTERNATIONAL LAW (New York, 1916), pp. 157-159; H. A. SMITH,
GREAT BRITAIN AND THE LAW OF NATIONS (London, 1932), Vol. I, p. 261 et seq., particularly
also the opinion quoted there of Dr. Lushington (May 29, 1823, p. 293): “To apply the strict
principles of the Law of Nations to a state of things so anomalous, would, I apprehend, tend only
to mislead the parties interested, for these questions are always mixed up with political
considerations, and the prattise will in some degree differ from the theory. Of this we have many
instances in regard to Spanish South America, the British Government having endeavoured to
carry on its intercourse on equitable and beneficial principles, rather than adhere to the letter of

503


The Initiation, Suspension, and Termination of War

the Korean War, respectively, although they did not produce peace in the full
meaning of the term. Typically, the Panmunjom Agreement states as its objec-
tive the establishment of an armistice ensuring “a complete cessation of hostili-
ties and of all acts of armed force in Korea until a final peace settlement is
achieved.”85 The thesis (advanced in 1992) that “the Korean War is still legally
in effect”8¢ is untenable.

A closer look at the Israeli Armistice Agreements may illuminate the special
features and the problematics of armistice as a mechanism for ending wars. The
first article of all four Agreements prescribes that, with a view to promoting the
return to permanent peace in Palestine, the parties affirm a number of princi-
ples, including a prohibition of resort to military force and aggressive action.8?
In keeping with these principles, the parties are forbidden to commit any war-
like or hostile act against one another.88 The Agreements clarify that they are
concluded without prejudice to the “rights, claims and positions”®? of the par-
ties in the ultimate peaceful settlement of the Palestine Question.® The pur-
pose of the armistice is described in terms of a transition from truce to a
permanent peace?! (in the case of Egypt, the Armistice Agreement expressly
supersedes a previous General Cease-Fire Agreement.)9? Above all, the Agree-
ments lay down that they will remain in force until a peaceful settlement be-
tween the parties is achieved.°3

The “without prejudice” formula (so popular among lawyers) was intro-
duced to forestall future claims of estoppel in the course of peace negotiations.
The formula must not obscure the salient point that the parties reserve only
their right to reopen all outstanding issues when they eventually get to negoti-
ate an amicable settlement of the conflict. During the intervening time, the
conflict continues, but it is no longer an armed conflict. The thrust of each
Agreement is that both parties waive in an unqualified manner any legal option
that either of them may have had to resume hostilities and to resolve the con-
flict by force. The Agreements can be considered transitional, inasmuch as
they were intended to be ultimately replaced by definitive peace treaties; yet,
there is nothing temporary about them.

Article V(2) of the Agreement with Egypt avers that the Armistice Demar-
cation Line “is not to be construed in any sense as a political or territorial
boundary” and, again, that the line is drawn “without prejudice.” This clause
is not replicated in the other Agreements, although a more diluted version has
been inserted into Article VI(9) of the Agreement with Jordan® and Article
V() of the Agreement with Syria” (there is no counterpart in the Agreement
with Lebanon). Once more, the disclaimer may be taken as lip-service. An
analysis of the Agreements in all their aspects shows that “the armistice

142


Naval Blockade

maritime jus in bello is appropriately considered a legal order of necessity that
prescribes the minimum standards that have to be observed by States, even if
they are unwilling or unable to refrain from the use of armed force.

Declaration, Notification, Impartiality and Effectiveness. In general, States
are willing to accept the customary character of the principles laid down in the
1909 London Declaration. When it comes to the specification of the rights and
duties, however, no general agreement exists. Of course, it is undisputedTM that

* a blockade must be declared and that the declaration must contain the

details laid down in Article 9 of the London Declaration;

* it must be notified to those affected; and

* impartial application is required.

According to the prevailing position in legal literature, neutral vessels are to be
granted a period of grace to leave the blockaded port or roadstead.9>

The reason for this wide agreement is that these requirements do not pose
any considerable problems. The belligerent establishing a blockade will, of
course, be interested in informing all those possibly affected, since it is the ob-
ject and purpose of a blockade to close certain enemy areas and to cut them off.
In addition, today such information will not take long to reach its addressees.
Rather, it can be disseminated universally within a couple of hours.% Finally,
any discrimination, in view of the practical problems of identification, would
not be practicable.

Problems and disagreement exist, however, with regard to the principle of
effectiveness. The authors only agree that when judging the effectiveness of a
blockade the development of modern weapons systems have to be taken into
consideration—a stipulation that was first raised prior to World War I and
which obviously is generally recognized now.%” Accordingly, it is no longer nec-
essary for the blockading force to be deployed in close vicinity to the coast, it
may also be stationed at some distance seaward as long as ingress or egress con-
tinues to be dangerous.98 Whether that is the case cannot be determined in
abstracto but, as in Article 3 of the London Declaration, remains a question of
fact.°? There exists, however, an ultimate legal limitation with regard to the
area affected. A blockade must be restricted to coastal areas and ports belong-
ing to, occupied by, or under the control of the enemy. It may not be estab-
lished outside the general area of naval warfare. !00

For the purpose of maintaining and enforcing a blockade, belligerents are
not restricted to the use of surface warships. This means that they may choose a
combination of legitimate methods and means of warfare provided this combi-
nation does not result in acts inconsistent with the other rules and principles of

214


Ved Nanda

can only be viewed as a tragedy and is likely to present a “core challenge” to the
Security Council in the next century: how to forge unity behind the principle
that massive, systematic violations of human rights should not be allowed to
happen anywhere. 136

The Secretary General provocatively asked those who hailed the NATO
military action in Kosovo as the heralding of a new era when States and groups
of States can take military action without prior Council authorization, that is,
“outside the established mechanisms for enforcing international law”: “Is there
not a danger of such interventions undermining the imperfect, yet resilient se-
curity system created after the Second World War, and of setting dangerous
precedents for future interventions without a clear criterion to decide who
might invoke these precedents and in what circumstances?”!37

In his address to the General Assembly the day following the Secretary Gen-
eral’s, President Clinton defended NATO’s action in Kosovo, saying it “had
followed a clear consensus expressed in several Security Council resolutions:
that the atrocities committed by Serb forces were unacceptable, that the inter-
national community had a compelling interest in seeing them end.”!38 He said
that had NATO chosen to do nothing in the face of this brutality in Kosovo, it
would not have strengthened the United Nations, but instead, “we would have
risked discrediting everything the United Nations stands for.”!39 He added:

By acting as we did, we helped to vindicate the principles and purposes of the UN
Charter, to give the UN the opportunity it now has to play the central role in
shaping Kosovo's future. In the real world, principles often collide and tough
choices must be made. The outcome in Kosovo is hopeful.140

The norms stated in Article 39 of the UN Charter authorizing the use of
force only when the Security Council determines that there has been a threat
to or breach of the peace or act of aggression!*! were fashioned at the end of the
Second World War and in the era of interstate conflicts. Since most contem-
porary conflicts leading to violence are likely to be intrastate and not interstate,
have these norms become too restrictive and hence outdated? Professor Mi-
chael Glennon has recently suggested that the old UN rules on peacekeeping
and peacemaking, premised on Article 2, paragraph 7’s prohibition against in-
tervention in “domestic” matters, are dead and that their death “should not be
mourned.”!42 Although he decries ad hoc approaches, he says that in Kosovo,
justice and the UN Charter seemed to collide, and that new international rules
are emerging.

329


ua

Properly Speaking, Only Celestial Bodies

Have Been Reserved for Use Exclusively

for Peaceful (Non-Military) Purposes, but
Not Outer Void Space

Bin Cheng

Till Cant cease, nothing else can begin.
—Thomas Carlyle

O: OCTOBER 4, 1957, FOR THE FIRST TIME IN HUMAN HISTORY, man
succeeded in sending an object into outer space. The world was electri-
fied. There was an overwhelming yearning that the whole of outer space, in-
cluding all the celestial bodies, should be reserved for exploration and use for
peaceful purposes only—in other words, completely demilitarised as Antarctica
was being demilitarised in 1959 in the Antarctic Treaty.! Almost immediately,
the General Assembly of the United Nations, in Resolution 1148 (XII),
adopted on the 14th of the following month,? urged all the States concerned,
particularly those in the Sub-Committee of the Disarmament Commission that
were negotiating an agreement on reduction, limitation and open inspection of
armament and armed forces, to give priority to reach a disarmament agreement
which, upon its entry into force, will provide for the following:


M. Cherif Bassiouni

with deliberate State action or policy, and that governments are not particu-
larly inclined to criminalize the conduct of their high officials.!° War crimes
can also be a product of State action or policy, but frequently are committed by
individual combatants acting on their own, which probably explains why there
is less reluctance to criminalize this type of individual criminal conduct.!!

Crimes against humanity and genocide are essentially crimes of State, as are
sometimes war crimes, because they need the substantial involvement of State
organs, including the army, police, paramilitary groups, and the State’s bureau-
cracy.!2 These crimes generate significant victimization and must be strenu-
ously deterred. Nevertheless, governments are reluctant to remove the
ambiguities in the relevant normative provisions applicable to crimes against
humanity and genocide, and to fill the existing gaps in these proscriptions.!3
The individual criminal responsibility of soldiers and others in the lower eche-
lons of State power is much more easily accepted by governments than that of
political leaders and senior government officials and, as well, those in the gov-
ernmental bureaucracy who carry out, execute, and facilitate the policies and
practices of crimes against humanity, genocide, and even war crimes. Indeed,
the articulation’ of relevant international norms effectively shields them from
criminal responsibility; existing international norms of criminal responsibility
relative to crimes against humanity, crimes of genocide, and even war crimes,
are too ambiguous to reach effectively into this category of violators. This ren-
ders their prosecution virtually impossible.

Since World War II, there have been an estimated 250 conflicts of an inter-
national, non-international, and purely internal legal character. The estimates
of the resulting casualties reach as high as 170 million.!4 Most of that victimiza-
tion occurred at the hands of tyrannical regimes and by non-State actors during
internal conflicts. This tragic new dimension in world victimization requires a
reexamination of international humanitarian law to make it unambiguously
applicable to non-State actors, and to reconcile their overlapping application,
fill in their gaps, and clarify their ambiguities so as to render their enforcement
sufficiently effective to prevent, deter, and punish the perpetrators of such
crimes. This article discusses these questions.

Crimes Against Humanity
Crimes against humanity originated after World War [5 in the concept of

“crimes against the laws of humanity,” a term found in the Preamble to the
1907 Hague Convention.!6


The Normative Framework of International Humanitarian Law

double jeopardy or a substantive non bis in idem principle in criminal
law. Thus an accused who is found guilty of both genocide and crimes
against humanity in relation to the same set of facts may argue that he
has been twice judged for the same offence, which is generally
considered impermissible in criminal law.

[paragraph omitted]

201. The Chamber notes that this question has been posed, and
answered, by the Trial Chamber of the ICTY in the first case before that
Tribunal, The Prosecutor v. Dusko Tadié. Trial Chamber II, confronted
with this issue, stated:

202. “In any event, since this is a matter that will only be relevant
insofar as it might affect penalty cannot be made to depend upon
whether offences arising from the same conduct are alleged
cumulatively or in the alternative. What is to be punished by penalty is
proven criminal conduct and that will not depend upon technicalities
of pleading.” (Prosecutor v. Tadié, Decision on Defence Motion on Form
of the Indictment at p. 10 (No. IT-94-1—T, T.Ch.Il, 14 Nov, 1995).

203. In that case, when the matter reached the sentencing stage, the
Trial Chamber dealt with the matter of cumulative criminal charges by
imposing concurrent sentences for each cumulative charge. Thus, for
example, in relation to one particular beating, the accused received 7
years’ imprisonment for the beating as a crime against humanity, and a
6 year concurrent sentence for the same beating as a violation of the
laws or customs of war.

[paragraph omitted]

205. The Chamber takes due note of the practice of the ICTY. This
practice was also followed in the Barbie case, where the French Cour de
Cassation held that a single event could be qualified both as a crime
against humanity and as a war crime.

[paragraph omitted]

207. Itis clear that the practice of concurrent sentencing ensures that
the accused is not twice punished for the same acts. Notwithstanding
this absence of prejudice to the accused, it is still necessary to justify the
prosecutorial practice of accumulating criminal charges.

32


Ove Bring

1907, that the realization gradually spread that in 1899 the first step had been
taken in the direction of international organization.59

The Second Hague Peace Conference of 1907 reaffirmed the modest step
taken to restrict the use of force through the adoption of a new Convention for
the Pacific Settlement of Disputes (which refined the earlier convention) and a
convention which prohibited the use of force to recover public contract debts
unless arbitration had been refused (the so called Porter Convention, named
after a U.S. delegate). That these Conventions (Hague I and II) only amounted
to an extremely incomplete jus contra bellum was made clear through the adop-
tion of Convention III relative to the Opening of Hostilities, which required a
declaration of war or ultimatum before hostilities began.

Still, the first link in a chain towards a more complete non-use of force re-
gime was emerging in 1899 and 1907. The Westphalian Peace treaties had
linked together the concepts of peaceful settlement of disputes, equality of
States, non-use of force, joint action, and collective sanctions (all of which
were in some way included in the 1920 Covenant of the League of Nations and
are now ingredients in the UN system). The principle of sovereign equality of
States was implicit at the Hague Conferences, it became more explicit upon
the creation of the League of Nations (¢f Article 5 of the Covenant) and today
it is enshrined in Article 2 of the UN Charter. The League Covenant marked
one step in the legal development by combining equality of States with non-use
of force. Article 10 of the Covenant contained the following wording:

The Members of the League undertake to respect and preserve as against
external aggression the territorial integrity and existing political independence of
all Members of the League. In case of any such aggression or in case of any threats
or danger of such aggression the Council shall advise upon the means by which
this obligation shall be fulfilled.60

A non-binding arbitration requirement was included in Article 13 of the
Covenant. The imperfection of the Covenant system as regards non-use of
force and collective sanctions is well known and need not be explored here.
The point—at the end of this contribution—is rather, that the development
towards the UN system was underway in 1907 and 1920, and that behind this
development the Westphalian Peace agreements and the 1899 Hague
Conference played their distinctive roles—although not as indispensable
points on a continuum, but as expressions of a recurring theme in legal and
political history, as manifestations of ideas with normative potential that were
bound to have an impact on the development of international law.

71


Antecedents of the Rome Statute of the ICC Revisited

establishment of an international judicial organ for the trial of persons charged
with genocide or other crimes over which jurisdiction will be conferred upon it
by international convention was desirable. It went on to decide that the estab-
lishment of such an international judicial organ was possible. Finally, it reported
that it had paid attention to the possibility of establishing a criminal chamber of
the International Court of Justice and that, though it was possible to do so by
amendment of the Court’s Statute, the Commission did not recommend it.3°
The General Assembly discussed this at its fifth session in 1950. The Cold
War was dominating all activities in the United Nations then, not a promising
moment for dispassionate consideration of so delicate a matter as the establish-
ment of an international criminal court. In Resolution 489 (V), December 12,
1950, the General Assembly showed that a final decision regarding the setting up
of an international penal tribunal could not be taken except on the basis of con-
crete proposals. It accordingly established a Committee composed of 17 Member
States “to prepare one or more preliminary draft conventions and proposals re-
lating to the establishment and the statute of an international criminal court.”3!
The Committee was in session from August 1 to 31, 1951.32 It produced a
draft statute for an international criminal court in 55 articles (excluding the
preamble and the final clauses). It also adopted a veeu in which, referring to the
Genocide Convention, it expressed the wish that along with the instrument es-
tablishing the International Criminal Court, a provision should be drawn up
conferring jurisdiction on that Court in respect of the crime of genocide. The
report is important. It set out the first general outline of the structure of the
proposed tribunal. The draft statute was divided into several chapters, on gen-
eral principles (Articles 1-3), the organization of the Court (Articles 4-24),
the competence of the Court (Articles 25-32), the committing authority and
prosecuting authority, not an organ of the court, the Committee drawing the
attention of the General Assembly to the need to establish special investigatory
and prosecuting machinery (Articles 33-34), procedure (Articles 35-53),
clemency (Article 54) and final provisions (Article 55). That has remained the
basic structure for the international criminal court. Among the deficiencies of
the draft was Article 2, on the law to be applied, except that the Rome Statute
has included the prosecution among the organs of the new Court, a curious
abandonment of any idea of the separation of powers. It was partly similar to
Moynier’s 1872 suggestion, and partly reflected the ICRC’s change of direc-
tion, aiming at incorporating the relevant provisions in national criminal law:
“The Court shall apply international law, including international criminal law,
and where appropriate, national law.” There were other deficiencies. The draft
was subjected to a series of critical written observations by several

396


Index

See also AGGRESSION; DEFENSE AND SECURITY ARRANGEMENTS; FORCE, USE OF; LAW OF
ARMED CONFLICT
Anticipatory Self-Defense, 155, 178, 182, 195
Collective, 60, 63-64, 181, 196, 270, 313, 328, 508
Falklands/Malvinas Conflict (1982), 183
Grotius, 60
Gulf War, 183
Necessary and Proportionate, 178-79, 182-83, 331
SELF-DETERMINATION, 69, 188-89, 265-66, 277-79
SHAKESPEARE
Henry V, 302
SHIPS AND SHIPPING
See also BLOCKADE, LAW OF; NEUTRAL MERCHANT SHIPS; SUBMARINE WARFARE; VISIT
AND SEARCH
Merchant Ships, 211-13, 341, 344-45, 351, 354-55, 358, 361, 365
Warships, 205, 207-09, 211, 213-15, 355, 358-59
SLAVERY, 7, 13, 20, 24, 310
See also HUMAN RIGHTS; INTERNATIONAL HUMANITARIAN LAW; LAW OF ARMED
CONFLICT
Jus Cogens, 11
SOMALIA, 185, 188, 193, 267, 283, 428, 461, 512
SOUTH KOREA, see KOREA, SOUTH
SOVIET UNION, see UNION OF SOVIET SOCIALIST REPUBLICS
SPACE TREATY (1967), see under OUTER SPACE
SPAIN, 58, 62, 71, 163, 165, 239, 325-26, 343, 357
Yugoslavia v. Spain (IC}), 325
STATE RESPONSIBILITY
Code of Crimes Against the Peace and Security of Mankind, 406
STATUS-OF-FORCES AGREEMENTS (SOFAs), 163-70, 515-16
North Atlantic Treaty Organization, 163, 167-74
PPP, 168
United Nations, 533
STATUTE OF THE INTERNATIONAL CRIMINAL COURT, see INTERNATIONAL
CRIMINAL COURT STATUTE
STRAITS, 71, 285
SUBMARINE TREATY (1922) (not entered into force), 349-54, 366
SUBMARINE WARFARE, 209, 215, 339-67
See also LAW OF ARMED CONFLICT; NAVAL WARFARE
History, 343-44, 357, 358-64
SUEZ CANAL, 143
UK Intervention, 195
SURRENDER
See also TARGETS, Surrendering Troops
Definition, 424
SYRIA, 141-42, 145, 151, 190
SZASZ, PAUL C., 507, 587

603


Naval Blockade

10. See H. Wehberg, Das Seekriegsrecht, in: F. Stier-Somlo (ed.), HANDBUCH DES
VOLKERRECHTS V, Berlin 1915, p. 26; R.W. TUCKER, THE LAW OF WARAND NEUTRALITY AT
SEA, Washington D.C. 1957, p. 283. According to PH.C. JESSUP/F. DEAK, NEUTRALITY. ITS
HISTORY, ECONOMICS AND LAW, Vol. I: THE ORIGINS, New York 1935, pp. 105, 112 f,, 114 ff,
naval blockade was distinguished from siege with the Anglo-Swedish Treaty of 1656. For further
references see H.J.W. VERZIJL, supra note 7, p. 415 ff.

11. See also R. KLEEN, LA NEUTRALITE D'APRES LE DROIT INTERNATIONAL
CONVENTIONNEL ET COUTUMIER DES ETATS CIVILISES, Tome I: PRINCIPES FONDAMENTAUX -
DEVOIRS DES NEUTRES, Paris 1898, p. 542 ff., who explains the emergence of naval blockade
with the increase of naval forces.

12. Edict of July 27, 1584. Cp. C. VAN BYNKERSHOEK, QUAESTIONUM JURIS PUBLICI, Liber
I, Cap. XI, p. 89; C.J. COLOMBOS, supra note 4, § 814.

13. In addition to the proclamations of 1586, 1622 and 1694, the Decree of the General
States of June 26, 1630, is especially worth mentioning. See C. VAN BYNKERSHOEK,
QUAESTIONUM JURIS PUBLICI, supra note 12, p. 89; H. Wehberg, Seekriegsrecht, supra note 10,
p. 26 f. For the practice of other States/entities, see PH.C. JESSUP/F. DEAK, NEUTRALITY, supra
note 10, p. 111 ff.

14. HUGO GROTIUS, DE JURE BELLI AC PACIS, Liber II, Cap. I, Para. V.

15. C. VAN BYNKERSHOEK, QUAESTIONUM, supra note 12, p. 87 ff, with references to the
Dutch practice. For the 17th century practice of other States/entities, see PH.C. JESSUP/F.
DEAK, NEUTRALITY, supra note 10, p. 107 ff.; H.J.W. VERZIL, supra note 7, p. 424 ff. See also E.
DE VATTEL, LE DROIT DES GENS OU PRINCIPES DE LA LOI NATURELLE, Book III, § 117, who.
maintains that in case of blockade and siege the respective belligerent is entitled to prevent
anybody from entering the respective area and to consider that person an enemy if he endeavors
to enter the area or to transport something into that area.

16. It should be noted that according to Chapter 276 of the Consolato del Mare only enemy
goods on board neutral merchant vessels were subject to capture. If, however, the captain
refused to transport those goods to an ordered destination, the commander (the “Admiral”) of
the privateer was entitled to use armed force. According to the consolato del mare, as well as
according to the “Breve curiae maris” of Pisa (1298) and the Statutes of Genoa (1316), neutral
goods, in principle, were exempt from capture. See F. JORDA, DAS “CONSULAT DES MEERES”
ALS URSPRUNG UND GRUNDLAGE DES NEUTRALITATSRECHTS IM SEEKRIEGE BIS ZUM JAHRE,
1856, Hamburg 1932, p. 25 f.

17. See HJ.W. VERZIJL, supra note 7, p. 421 f.

18. According to the second clause of that decree, all ships and goods were to be confiscated
even if encountered at a certain distance from the blockaded area if the ship’s documents gave
sufficient proof that they were destined toa Flemish port. An exception was provided for the case
in which the vessel in question, prior to visit or pursuit, deliberately changed course. See C. VAN
BYNKERSHOEK, QUAESTIONUM, supra note 12, p. 87 f.

19. C.J. COLOMBOS, supra note 4, § 816.

20. H. Wehberg, Seekriegsrecht, supra note 10, p. 26 f., with further references.

21. PHC. JESSUP/F. DEAK, NEUTRALITY, supra note 10, p. 117 ff., with further references.

22. H. Wehberg, Seekriegsrecht, supra note 10, p. 30.

23. P. FAUCHILLE, LA DIPLOMATIE FRANCAISE ET LA LIGUE DES NEUTRES DE 1780, Paris
1893, pp. 20, 68 ff; R. KLEEN, NEUTRALITE I, supra note 11, p. 576 ff.; U. Scheuner, Neutralitat,
bewaffnete, in: Strupp/Schlochauer (eds.), WORTERBUCH DES VOLKERRECHTS, Vol. II, pp.
596-597.

220


Georg Schwarzenberger

for war appeared to him as the all-inclusive and over-riding phenomenon:
“There is no controversy which may not give rise to war.”>

Thus, war occupies the central position in the systems of the early natural-
ists. This statement, however, is open to the challenge that it unduly minimizes
the intentions of these writers. As it is commonly held, their aim was to limit
the horrors of war and, as seems to follow from their doctrines on the bellum
justum, to limit the resort to war. The requirement of a causa justa appears to
suggest that the normal state of affairs between States is one of peace, depar-
ture from which is merely permissible in clearly defined cases. Insofar as the in-
tentions of any writer are concerned, it is hard to furnish convincing proof for
any thesis. It might, however, be relevant to bear in mind that most interna-
tional lawyers of that period did not have a merely academic interest in interna-
tional law nor were they the equivalent of modern pacifists. They were “men of
the world,” and a good many of them were actively engaged in diplomacy or
held honorable and honored posts as legal advisors to the very princes whom
they were supposed to subject to the rule of law. Furthermore, all of them alike
were only too anxious to see their legal propositions accepted by State practice.
It, therefore, would presuppose a childlike naiveté or a saintly character on
their part to assume that they either were completely unaware of the power re-
ality surrounding them or of the concessions which had to be made to make
their systems acceptable to the powers that be. Yet such considerations can and
should not do more than to neutralize the current story-book version of the
early history of international law. Quite apart from the laudable or deplorable
intentions of their creators, doctrines must be judged on their own merits and
by the functions which they fulfil in the reality of society. Once they have been
propounded, they live a life of their own, and the uses to which they are put de-
pend on social forces beyond the control of their authors.

The Ideology of the Bellum Justum

The two main problems around which naturalist thinking on war centers are
well brought out in Gentili’s definition of war as publicorum armorum justa
contentio.§ .

The conception of war as a public contest merely put into legal form the ob-
ject of absolutist policy to achieve and to hold the monopoly of legitimate phys-
ical force. The memory of the Middle Ages when vassals waged their private
wars against their overlords, and the central authority merely attempted to
limit these feuds, was still fresh in the early days of the absolute State. It, there-
fore, could not be asserted too often that any form of civil war was essentially

485


M. Cherif Bassiouni

distinctions between “grave breaches” and “violations” of common Article 3
and Protocol II; they agree that both contain equally enforceable prohibitions
carrying the same enforcement consequences.!!! They do so at least in part be-
cause the overwhelming majority of post-World War II conflicts have been ofa
“non-international character,”!!2 and because these conflicts have produced
an overwhelming number of victims. As noted above, there have been, since
World War II, some 250 conflicts and internal tyrannical regime victimizations
that have produced an estimated 170 million casualties.!!3 Thus, to maintain a
distinction between these two legal regimes and their enforcement conse-
quences ignores the purpose of these regimes, which is to protect innocent vic-
tims from harm.

For purposes of war crimes, however, the distinction between types of con-
flicts and the legal regimes applicable to them does not apply with respect to
crimes against humanity and genocide. These two categories of crimes are
deemed applicable in time of peace as well as in time of war. The most signifi-
cant problems arising out of overlaps and gaps in the law of armed conflict are
the legal standards applicable in distinguishing between conflicts of an interna-
tional and non-international character, and in ascertaining the relevant parts
of conventional and customary law of armed conflicts applicable to these con-
texts, considering that the two sets of norms mirror one another.!!4 Another
layer of confusion originates in doctrines of international law from which im-
provident extrapolations are made into the law of armed conflicts; legal inter-
pretation and analysis of these two overlapping areas are thus frequently more
confusing than they are elucidating.

The foregoing observations were evidenced in two related judgments by the
ICTY. The first was in connection with the Tadié jurisdictional appeal case.!15
Commenting on that judgment Professor Meron notes:

The appeals chamber’s expansive interpretation that “laws or customs of war” in

Article 3 of the Tribunal’s Statute reach noninternational armed conflicts largely

avoided the worst possible consequences. However, the chamber refused to use

Article 3 of its Statute (laws and customs of war) as a conduit to bring in as

customary law conduct comprising grave breaches of the Geneva Conventions

(grave breaches are the subject of Article 2 of the Statute; these can be regarded

as customary law whose content parallels the pertinent provisions of these

Conventions). The grave breaches are the principal crimes under the

Conventions. Thus deprived of the core of international criminal law in cases

deemed to be noninternational, the Tribunal can only raise the level of

actionable violations to crimes against humanity and perhaps, in the future,
genocide. Not only does this handicap the Tribunal’s ability to carry out its

15


The Initiation, Suspension, and Termination of War

A cease-fire directive by the Council, like an agreement between the
belligerents, may be limited to a predetermined time frame. A case in point is
Resolution 50 (1948), adopted in the course of Istael’s War of Independence,
which called upon all the parties to cease fire for a period of four weeks.!54
When the prescribed time expired, fighting recommenced. More often, the
Council avoids setting specific terminal dates for cease-fires, preferring to
couch them in an open-ended manner.

(b) The Nature of Cease-Fire

The suspension of hostilities must not be confused with their termina-
tion.155 A termination of hostilities means that the war is over—the parties are
no longer belligerents, and any subsequent hostilities between them would in-
dicate the outbreak of a new war. Conversely, a suspension of hostilities con-
notes that the state of war goes on, but temporarily there is no actual warfare.
Psychologically, a protracted general cease-fire lasting indefinitely is a state of
no-war and no-peace. Legally, this is a clear-cut case of war. The state of war is
not terminated, despite the absence of combat in the interval.

Renewal of hostilities before a cease-fire expires would obviously contravene
its provisions. Nonetheless, it must be grasped that hostilities are only contin-
ued, after an interruption, and no new war is started. For that reason, a
cease-fire violation is irrelevant to the determination of armed attack and
self-defense. That determination is made exclusively on the basis of the begin-
ning of a new armed conflict. The reopening of fire in an on-going war is not
germane to the issue.156

A cease-fire provides “a breathing space for the negotiation of more lasting
agreements.”!57 It gives the belligerents a chance to negotiate peace terms
without being subjected to excessive pressure, and to turn the suspension into a
termination of hostilities. But no indispensable bond ties cease-fire and peace.
On the one hand, a treaty of peace may not be preceded by any cease-fire.!58 On
the other hand, a cease-fire may break down, to be followed by further bloodshed.

The pause in the fighting, brought about by a cease-fire, is no more than a
convenient juncture for peace negotiations. Even a binding cease-fire decree
issued by the Security Council may prove “too brittle to withstand the strains
between the parties” over a protracted period.!59 Should the parties fail to ex-
ploit the opportunity, the period of quiescence is likely to become a springboard
for additional rounds of hostilities (perhaps more intense). This is only to be
anticipated. A cease-fire, in freezing the military state of affairs extant at the
moment when combat is suspended, places in an advantageous position that
party which gained the most ground before the deadline. While the guns are

150


XIV

Making Law of War Treaties

Lessons from Submarine Warfare Regulation

W. Hays Parks

| HE PAST QUARTER CENTURY has seen an outpouring of treaties regu-

lating or prohibiting battlefield conduct. In the early to mid-1970s,
separate multilateral negotiations produced the Convention on the Prohibi-
tion of Military or Any Other Hostile Use of Environmental Modification
Techniques! and Protocols I? and I? Additional to the Geneva Conventions of
August 12, 1949. A subsequent conference produced the United Nations Con-
vention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indis-
criminate Effects (UNCCW*) of October 10, 1980, and its three protocols.> Ne-
gotiation of the Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on Their
Destruction$ was completed in 1992, and the treaty was opened for signature
on January 13, 1993. In 1994 the United Nations began preparatory sessions for
the first review conference of the UNCCW, which concluded on May 6, 1996,
with an amended land mines protocol and a new protocol prohibiting blinding
laser weapons.’ Dissatisfied with the amended land mines protocol’s regulation

The views expressed herein are solely those of the author and may not necessarily represent
policy of the Department of the Army or an agency of the United States.


W. Hays Parks

and, subsequently, the 1936 Procés-Verbal; ROSCOE, supra note 135, at 18. Other reasons are
provided in SPECTOR, supra note 141, at 482-483. Fortunately, the Imperial Japanese Navy's
antisubmarine capabilities were equally unprepared for the change in U.S. submarine tactics. Id.
at 485-486.

156. Bemis, supra note 138, at 36, 41.

157. Id. at 38; ROSCOE, supra note 135, at 34.

158. ROSCOE, supra note 135, at 524; BLAIR, supra note 134, claims 1,314
vessels—combatants and merchant ships—for 5.3 million tons, or 55 percent of all Japanese
ships sunk. In contrast, Germany sank 5,078 merchant ships for about 11 million tons during
World War I, and 2,882 Allied merchant vessels, for 14.4 million tons, plus 175 Allied
combatant vessels in World War II. Id., at 878. He revised these figures subsequently to 5,000
ships (combatant or merchant ship) for about 12 million tons in World War I, and approximately
3,000 ships and 4 million tons in World War Il. Id., at 18, 20, and 771; and BLAIR, HITLER'S
U-BOAT WAR, VOL. II, THE HUNTED, 1942-1945 (1998), at xii, 820, citing TARRANT, supra
note 37, at 148, 149.

159. Construction of what was to become the U.S. fleet submarine began with the Perch class,
commenced in 1936. These were followed by the Salmon (1936), Sargo (1937), Tambor
(1939-40) and Gato (1941) classes; ALDEN, supra note 29, at 60-103.

160. ROSCOE, supra note 135, at 19.

161. In this regard this author respectfully disagrees with the cynicism expressed by Professor
Leslie Green (note 137). “Human rights” is not limited to protection of civilian lives. Nothing in
the law of war places greater value on civilian lives than military, particularly where the
“civilians” in question are traveling on a combatant vessel in a war zone, or otherwise taking an
active part in hostilities. As this essay shows, abrogation of the rules stated in the 1936
Procés-Verbal by all submarine powers in the main lay in their ambiguity and impracticality.

162. C. Eichelberger, The Law and the Submarine, U.S. NAV. INST. PROC. (July 1951), at 691;
H. Robertson, supra note 41, at 3; and W. Miller, A New International Law for the Submarine? U.S.
NAV. INST. PROC. (October 1966), at 97.

163. J. Gilliland, Submarines and Targets: Suggestions for New Codified Rules of Submarine
Warfare, GEORGETOWN L. J. 73, 3 (February 1985), at 975; W. Fenrick, The Exclusion Zone
Device in the Law of Naval Warfare, CAN. Y.B. INTL. LAW XXIV (1986), at 91.

164. M. Royse, AERIAL BOMBARDMENT AND THE INTERNATIONAL REGULATION OF
WARFARE (1928), at 141; and Consultation de M. W. Royse, in International Committee of the
Red Cross, ed., LA PROTECTION DES POPULATION CIVILES CONTRA LES BOMBARDMENTS
(1930), at 77.

385


The Law of Armed Conflict as Soft Power

17. It might also be asserted that the Protocol I prohibition has by now matured into
customary international law, thereby binding the United States regardless of its non-Party status
vis-a-vis the Protocol.

18. For discussions on the process of defining national interests, see Carrol J. Doherty,
Defining the National Interest: A Process of Trial and Error, CONGRESSIONAL QUARTERLY
WEEKLY REPORT, March 26, 1994, at 750; Kim R. Holmes, Defining National Security and
American Interests, in A SAFE AND PROSPEROUS AMERICA (2d ed., 1994), at 5; DONALD E.
NUECHTERLEIN, AMERICA RECOMMITTED: UNITED STATES NATIONAL INTERESTS IN A
RESTRUCTURED WORLD (1991).

19. Some have argued against any substantive force for value interests. For example, Hans
Morgenthau has noted that “The invocation of abstract moral principles was in part hardly more
than an innocuous pastime; embracing everything, it came to grips with nothing. . . . The
intoxication with moral abstractions . . . is indeed one of the great sources of weakness and failure
in American foreign policy.” HANS MORGENTHAU, IN DEFENSE OF THE NATIONAL INTEREST
(1952), at 4.

20. Eg., Additional Protocol I, supra note 1, art. 51.

21. E.g,, id, art. 12.

22. E.g, id., art. 53.

23. E.g, id, art. 35.2.

24. THE WHITE HOUSE, A NATIONAL SECURITY STRATEGY FOR A NEW CENTURY (Oct.
1998), at iii, available on-line at http://www.whitehouse.gov/WH/EOP/NSC/html/ documents
/nssrpref.homl [hereinafter NSS]. The NSS is complemented by the National Military Strategy.
JOINT CHIEFS OF STAFF, NATIONAL MILITARY STRATEGY OF THE UNITED STATES (1997),
available on-line at hetp:/Avww.dtic.mil/jcs/core/nms.html. An additional key document in
identifying U.S. national interests and the objectives/strategies that may foster them is the QDR
Report. SECRETARY OF DEFENSE, REPORT OF THE QUADRENNIAL DEFENSE REVIEW (May
1997), especially Sections II-IV, available on-line at http://www.defenselink.mil/pubs/qdr/.

25. NSS, supra note 24, at 5.

26. Id.

27. A RAND study has also identified the importance of threat and opportunity, though it
employs the concepts primarily as descriptors in discussing four alternative “strategies’—realism,
multilateral security, democratic internationalism, and independence. See generally Norman D.
Levin, ed., PRISMS AND POLICY: U.S. SECURITY AFTER THE COLD WAR (RAND, 1994).

28. NSS, supra note 24, at 7.

29. The principle is reflective of both conventional and customary international law. It
forbids, “an attack which may be expected to cause incidental loss of civilian life,
civilians, damage to civilian objects, or a combination thereof, which would be excessive in
relation to the concrete and direct military advantage anticipated.” Additional Protocol I, supra
note 1, art. 51.5(a). See also art. 57.2(a) (iii).

30. E.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of War,
Aug. 12, 1949, art. 78, 6 UST 3516, 75 U.N.T.S. 287 (Internment that is “necessary, for
imperative reasons of security.”)

31. But certainly not always. For example, consider President Nixon’s “playing of the China
card” or the expansion of NATO.

32. See, eg. William M. Arkin, Changing the Channel in Belgrade, Special to
washingtonpost.com, May 24, 1999, available on-line at http:/Avww.washingtonpost.com/
wp-srv/national/dotmil/arkin052499.htm.

480


Bin Cheng

53. IC} Rep. 1969, p. 3, para. 73.

54. Loc. cit. in note 51 above, p. 45. Original italics.

55. IC] Rep. 1962, p. 6.

56. Emphasis added.

57. See “Article IV(1)” below.

58. ICJ Rep. 1962, p. 6.

59. ICJ Rep. 1951, p. 116.

60. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies,
18 December 1978, New York, 1363 UNTS 3; 18 ILM (1979) 1434. Opened for signature on 18
December 1979; entered into force on 11 July 1984. See CHENG, op. cit. in note 6 above, Ch. 12:
The Moon Treaty, at pp. 357-380.

61. Emphasis added.

62. Cf. contra N. Jasentuliyana, The Moon Treaty, in Jasentuliyana (ed.), op. cit. in note 23
above, pp. 121-139, at p. 130, who seems to believe that the second sentence is not applicable to
the moon, and this omission is only remedied by Article 3(4) of the 1979 Moon Treaty. Such an.
interpretation, if combined with the U.S. interpretation of “peaceful,” would deprive Article
IV(2) of any practical effect for probably many decades to come, if not forever, since the military
use of celestial bodies other than the terrestrial moon is at present, to say the least, somewhat
speculative.

63. There isa rather subtle difference between the third and fourth sentences in that military
personnel can be used for “any . . . peaceful purposes,” military equipment and facilities can only
be used “if necessary for peaceful exploration.” This makes sense inasmuch as military equipment
and facilities, unless “necessary for peaceful exploration,” are likely to be capable of military use.
The military risks presented by military personnel without military equipment or facilities would
be much less.

64. Cf. Gorove, loc. cit. in note above, p. 77, at pp. 81-2; N. Jasentuliyana, The Moon Treaty,
loc. cit. in note 62 above, at pp. 128-129.

65. Decisions and Opinions, p. 75, at p. 97-

66. See, e.g., S. E. DOYLE, CIVIL SPACE SYSTEMS: IMPLICATIONS FOR INTERNATIONAL
SECURITY, Aldershot: Dartmouth for UNIDIR (1994).

67. See CHENG, op. cit. in note 6 above, Ch. 12: The Moon Treaty, at pp. 357-380.

68. See notes 62 above and 75 below with accompanying text. See also Haeck, loc. cit. in note
50 above, by no means the only writer who appears to be rather unclear on the subject (p. 321),
and on the distinction that ought to be made, insofar as Article IV is concerned, between (i)
outer space in the sense used by the Space Treaty, which includes the moon and the other
celestial bodies, (ii) the outer void space, and (iii) celestial bodies (at p. 315).

69. See further CHENG, op. cit. in note 6 above, Ch. 12: The Moon Treaty, s. IV.C:
Non-militarisation, at pp. 367-368, and Ch. 24: International Responsibility and Liability for
National Acti in Outer Space, at pp. 621-640; B. Cheng, Article VI of the 1967 Space Treaty
Revisited: “International Responsibility,” “National Activities,” and “The Appropriate State,” 26
JOURNAL OF SPACE LAW (1998), pp. 7-32.

70. Cf. contra Jasentuliyana, loc. cit. in note 64 above, at p. 130.

71. Some politicians and writers appear to have a mistaken notion of a State’s right of
self-defence, treating it as authorising whatever is desirable in the interest of national security.
The international law right of self-defence is a legal concept derived from or at least comparable
to the canon law notion of defensio legitima, legitimate (self-) defence. It is subject to strict legal
tules and conditions. On the position in international law, see B. CHENG, GENERAL PRINCIPLES

115




The Rome Statute on the International Criminal Court

Even though this was done by the General Assembly in 1974,!9 still the matter
of the ICC remained dormant.

The ILC Draft. The 1994 Draft Statute”° for an international criminal court
produced by the International Law Commission was complicated and geared
towards producing a court that would operate on a restrictive consent basis and
with strict Security Council control under Article 23. Article 21 (1) (a)
provided for inherent jurisdiction in a case of genocide, with no additional
requirement of acceptance.”! However, Article 21 (1) (b) stipulated that the
Court could exercise its jurisdiction for the other crimes referred to in Article
20—namely aggression, war crimes, crimes against humanity, and certain
treaty crimes—where the complaint was brought in accordance with Article 25
(2) and the jurisdiction of the Court over the particular crime was accepted
under Article 22 by the custodial State and by the State on the territory of
which the act or omission in question occurred, a type of “ceded jurisdiction.”””
The term “custodial State” was intended to cover not only the situation where
a State has detained a person or has the person in its control, but also would
extend to a State the armed forces of which are visiting another State. In the
latter case, where a member of the visiting force is suspected of a crime the
State to which the force belongs would be classified as the “custodial State.”
The inclusion of treaty crimes based on the various international terrorism
conventions” and the 1988 United Nations Convention Against Illicit Traffic
in Narcotic Drugs and Psychotropic Substances** rendered it broader than
Article 5 of the Rome Statute as adopted. In a case where the custodial State
had received a request” under an international agreement from another State
to surrender a person for the purposes of prosecution, unless the request was
rejected, acceptance by the requesting State of the Court's jurisdiction was
required. Article 22 of the ILC Draft detailed the modalities of acceptance by
States Parties. It can be classified as an “opting in” system with States specifying
the crimes for which jurisdiction was accepted.2° The Court did not have
inherent jurisdiction, therefore, based on a State ratifying or acceding but,
instead, needed a special declaration issued either at the time of becoming a
Party or later. The ILC was of the view that this best reflected its general
approach to the Court’s jurisdiction,” that it is based on State consent with the
“Court intervening upon the will of the States concerned, rather than
whenever required for protecting the interests of the international
community.”8 Article 23 (1) provided for referral to the Court by the United
Nations Security Council acting under Chapter VII of the UN Charter for
crimes referred to in Article 20. With respect to aggression, Article 23 (2)

542


Ronald St. J. Macdonald

Resolution 1514 (XV) of 1960, Declaration on Granting Independence to
Colonial Countries and Peoples. Resolution 1514 (XV), passed on December
14, 1960, marked the most determined action of the General Assembly on the
subject of self-determination. According to Cassese, the Declaration, “in con-
junction with the Charter, contributed to the gradual transformation of the
‘principle’ of self-determination into a legal right for non-self-governing peo-
ples.”# Several other declarations of the General Assembly, as well as the two
covenants on human rights of 1966, consider the right of self-determination to
be a basic right of peoples. The International Court of Justice expressed the
same opinion in the Namibia case when it said that “the subsequent develop-
ments of international law in regard to non-self-governing territories, as
enshrined in the Charter of the United Nations made the principle of self-
determination applicable to all of them.”#3 Today this principle is regarded as
jus cogens.

The activity of the United Nations in the field of self-determination and
decolonization has been paramount. Almost all peoples under colonial domi-
nation before the establishment of the United Nations have achieved inde-
pendence. The only major exception is Western Sahara, occupied by Morocco
since 1975.44

Resolution 2625 (XXV) of 1970, Declaration on the Principles of Interna-
tional Law concerning Friendly Relations and Cooperation among States,
and Declaration 3201 (S-VI) 1974 on the Definition of Aggression. At the
famous Bandung Conference of 1955, the non-aligned countries adopted the
concept of peaceful coexistence and listed ten principles derived from it. Fol-
lowing fifteen years of discussion, initiated mainly by the Soviet Union and
non-aligned countries, and the adoption of several resolutions regarding peace-
ful coexistence and friendly relations, on October 24, 1970, the General As-
sembly finally adopted, by consensus, a Declaration on the Principles of
International Law concerning Friendly Relations and Cooperation among
States in accordance with the Charter of the United Nations. This Declaration
lists seven principles, most of which are now considered jus cogens. They are:

(a) The principle that States shall refrain in their international relations from
the threat or use of force against the territorial integrity or political
independence of any State, or in any other matter inconsistent with the
purposes of the United Nations;

277


Antecedents of the Rome Statute of the ICC Revisited

Geneva law and Hague law has become increasingly artificial, especially when
the law envisages individual criminal responsibility for violations. The two
branches of the law are now plaited together as international humanitarian
law, which nonetheless maintains the distinction between the international re-
sponsibility of the State and the criminal responsibility of an individual. It is not
clear when the term “international humanitarian law” was first used. The In-
ternational Court of Justice has endorsed it.!4 Established competence “in rele-
vant areas of international law such as international humanitarian law” is one
of the qualifications required for judges of the new Court by Article 36, para-
graph 3(b) (ii), of the Rome Statute.

Intermezzo: The Peace Treaties and the League of Nations (1919-1939)

A major step forward was taken in the Treaty of Versailles of 1919.15 Article
227 envisaged the trial of the Kaiser Wilhelm II by a special tribunal “for a su-
preme offence against international morality and the sanctity of treaties.” The
special tribunal was to be composed of five judges, one appointed by each of the
Principal Allied and Associated Powers, and to be guided by the highest mo-
tives of international policy, with a view to vindicating the solemn obligations
of international undertakings and the validity of international morality. It was
to fix the punishment which it thought should be imposed. The Allied and As-
sociated Powers “will address a request to the Government of the Netherlands
[to which the Kaiser had fled on his abdication as Emperor of Germany] for the
surrender [not “extradition” to them of the ex-Emperor in order that he may
be put on trial.” As is well known, the Dutch Government refused to “surren-
der” the Kaiser, and the matter of his trial was quietly dropped. The signifi-
cance of this provision is its recognition—probably the first instance in modern
times—that the Head of State can be criminally liable for violations of interna-
tional law, not limited to international humanitarian law or what we would to-
day call “war crimes.”!6 In addition, Article 228 provided that the Allied and
Associated Powers could bring before military tribunals persons accused of
having committed acts in violation of the laws and customs of war. Article 229
provided for the trial of persons guilty of criminal acts against the nationals of
one of the Allied and Associated Powers before the military tribunals of that
power. All those provisions, however, came up against the obstacle that Ger-
man law did not permit the extradition of German nationals, and apparently
viewed “surrender” as another word for “extradition.” Some Germans accused
of war crimes were tried by German Courts. However, on the whole, in practice

392


UN Forces and International Humanitarian Law

acquainted with these principles and rules. It is further stated that the same ob-
ligations are to apply even in the absence of a SOFA.

Agreements with Troop-Contributing States. The Model Agreement be-
tween the United Nations and Member States Contributing Personnel and
Equipment to United Nations Peacekeeping Operations contains the following
standard clause:

APPLICABILITY OF INTERNATIONAL CONVENTIONS

28. [The United Nations peace-keeping operation] shall observe and respect the
principles and spirit of the general international conventions applicable to the
conduct of military personnel. The international conventions referred to above
include the four Geneva Conventions of 12 August 1949 and their Additional
Protocols of 8 June 1977 and the UNESCO Convention of 14 May 1954 on the
Protection of Cultural Property in the event of armed conflict. [The Participating
State] shall therefore ensure that the members of its national contingent serving
with the [United Nations peace-keeping operation] be fully acquainted with the
principles and spirit of these Conventions.”56

In practice, however, formal agreements along these lines are only rarely
concluded with troop-contributing States.5? Presumably, were the Organiza-
tion to insist on the conclusion of such agreements, it might find it even more
difficult to secure sufficient contingents for its several operations.

On October 29, 1998, Bernard Miyet, Under-Secretary-General for Peace-
keeping, announced to the Fourth Committee of the General Assembly that
troop-contributing States would be asked not to send civilian police or military
observers younger than 25, and that troops in national contingents should pref-
erably be 21 but no less than 18.58 Aside from promoting thereby the principle
that children under 18 should not participate in military forces, the minimum
ages specified should help ensure that UN forces are constituted of persons ma-
ture enough to observe IHL.

On August 25, 1999, the Security Council adopted a resolution on children in
armed conflict, which inter alia requests the Secretary-General to ensure that the
personnel involved in UN peacemaking, peacekeeping and peace-building activi-
ties “have appropriate training on the protection, rights and welfare of children.”>9

General Regulation

Development. Already many years ago it was suggested, in particular by the
ICRC, that the United Nations should issue a general regulation (or

516


M. Cherif Bassiouni

violation of Article 5 it is sufficient to demonstrate that the crimes were committed at
some point in the course or duration of an armed conflict, even if such crimes were not
committed in direct relation to or as part of the conduct of hostilities, occupation, or other
integral aspects of the armed conflict. In contrast the Defence argues that the act must be
committed “in” armed conflict.

The Statute does not elaborate on the required link between the act and the armed
conflict. Nor, for that matter, does the Appeals Chamber Decision, although it contains
several statements that are relevant in this regard. First is the finding, noted above, that
the Statute is more restrictive than custom in that “customary international law no longer
requires any nexus between crimes against humanity and armed conflict.” Accordingly, it
is necessary to determine the degree of nexus which is imported by the Statute by its
inclusion of the requirement of an armed conflict. This, then, is a question of statutory
interpretation.

The Appeals Chamber Decision is relevant to this question of statutory interpretation.
In addressing Article 3 the Appeals Chamber noted that where interpretative
declarations are made by Security Council members and are not contested by other
delegations “they can be regarded as providing an authoritative interpretation” of the
relevant provisions of the Statute. Importantly, several permanent members of the
Security Council commented that they interpret “when committed in armed conflict” in
Article 5 of the Statute to mean “during a period of armed conflict.” These statements
were not challenged and can thus, in line with the Appeals Chamber Decision, be
considered authoritative interpretations of this portion of Article 5.

The Appeals Chamber, in dismissing the Defense argument that the concept of armed
conflict covers only the precise time and place of actual hostilities, said: “It is sufficient
that the alleged crimes were closely related to the hostilities occurring in other parts of the
territories controlled by the parties to the conflict.” Thus it is not necessary that the acts
occur in the heat of battle.

Prosecutor v. Dusko Tadié, (IT-94-1-T), reprinted in 36 I-L.M. 908, 913 (1997) (citations and
footnotes omitted).

35. See Resolution 955 (1994) Establishing the International Tribunal For Rwanda, Nov. 8,
1994, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., U.N. Doc. S/RES/955 (1994), supra
Appendix I [hereinafter ICTR Statute], reprinted in 33 I.L.M. 1598, and 2 Weston, supra note 2,
acILE.12.

36. See id., art. 3.

37. See, e.g., Ch. 2, “Establishment of the Tribunal and Legislative History” of M. CHERIF
BASSIOUNI, & PETER MANIKAS, THE LAW OF THE INTERNATIONAL TRIBUNAL FOR THE
FORMER YUGOSLAVIA 199-235 (1996). The Appeals Chamber in the Tadié case noted that “it
is by now a settled Rule of customary international law that crimes against humanity do not
require a connection to international armed conflict. Indeed . . . customary international law
may not require a connection between crimes against humanity and any conflict at all.” Decision
in Prosecutor v. Dusko Tadié, (IT-94-1-AR72), reprinted in 35 I.L.M. 32, at 72 (1996). Further,
the Tadié decision stated:

43


Christopher Greenwood

6. The one real instance of enforcement action involving the use of force was the Korean
conflict 1950-1953, although United Nations intervention in the Congo is regarded by some as
an instance of enforcement action.

7. For a defence of this view, see Sir Derek Bowett, The Use of Force for the Protection of
Nationals Abroad in A. Cassese (ed.), THE CURRENT LEGAL REGULATION OF THE USE OF
FORCE (Dordrecht, 1986), pp. 39-56.

8. Nicaragua case, loc. cit., note 4, supra.

9. See, e.g., the preamble to Security Council Resolution 748 (1992), imposing sanctions on
Libya.

10. See the discussion by SIR DEREK BOWETT, SELF-DEFENCE IN INTERNATIONAL LAW
(Manchester, 1957), pp. 188-192, JUDGE R. HIGGINS, PROBLEMS AND PROCESS (Oxford,
1994), p. 242 and O. Schachter, In Defense of International Rules on the Use of Force, 53 UNI. CHI.
LAW REV. (1986), p. 113 at pp. 134-136. The defeat in both the United Nations General
Assembly (United Nations Doc. A/L 521, defeated by 71-22-27) and the Security Council
(United Nations Doc. S/PV 1360) of resolutions which would have condemned Israel’s
anticipatory attack in 1967 and the discussion in the Security Council of the Israeli attack on
Traq’s nuclear reactor (United Nations Doc. S/PV. 2280) all suggest that there is a right of
anticipatory self-defence. For the contrary view, see I. BROWNLIE, INTERNATIONAL LAW AND
‘THE USE OF FORCE BY STATES (Oxford, 1963), p. 275, and J. de Arechaga, International Law in
the Past Third of a Century, 159 RC (1978), pp. 96-97.

11. Nicaragua case, loc. cit., note 4, supra, at p. 94. This matter had been common ground
between the parties. See also the Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons, IC] REPORTS, 1996, p. 225 at paras. 40-41.

12. Judge Ago, Eighth Report on State Responsibility, YEAR BOOK OF THE ILC, 1980, vol. II (i),
at p. 121. See also the dissenting opinion of Judge Higgins in the Nuclear Weapons case, note 11,
supra, at pp. 583-584.

13. See Part III, below.

14. See C.J. Greenwood, New Legal Order or Old? The Invasion of Kuwait and the Rule of Law,
55 MODERN LAW REVIEW (1992), p. 153.

15. See Sir Derek Bowett, Collective Security and Collective Self-Defence: the Errors and Risks in
Identification, in M. Rama-Montaldo (ed.), INTERNATIONAL LAW IN AN EVOLVING WORLD
(Montevideo, 1997). For a rather different perspective, see O. Schachter, United Nations Law in
the Gulf Conflict, 85 AJIL (1991), p. 452, and N. Rostow, ibid., p. 506.

16. Under Article 27 of the United Nations Charter, that required the proponents of the
Resolution to secure the affirmative votes of nine of the fifteen members of the Council and to
ensure that none of the five permanent members voted against. In fact, Resolution 678 obtained
eleven affirmative votes. One permanent member—China—abstained. Despite the wording of
Article 27(3), it has long been established practice that the abstention of a permanent member
does not preventa resolution from being adopted. See the Advisory Opinion of the International
Court of Justice in the Namibia case, IC] REPORTS, 1971, p. 3.

17. This is in marked contrast to the formal position in peace-keeping operations, where
command and control is normally held to reside in the United Nations and is exercised by the
Force Commander and/or the Special Representative of the Secretary-General.

18. Under Article 39 of the Charter, the existence of such a threat, or of a breach of
international peace or an act of aggression, is a prerequisite to Security Council action under
Chapter VII of the Charter.

19. See CJ. Greenwood, Is There a Right of Humanitarian Intervention? WORLD TODAY,
(February 1993), pp. 34-40.

199


Outer Void Space Not Reserved for Exclusively Peaceful Use

9. Cf. G. SCHWARZENBERGER, POWER POLITICS, 3rd ed., London: Stevens (1964), Part II:
Power Politics in Disguise, pp. 249-515.

10. See, e.g., CHENG, op. cit. in note 6 above, Ch. 19: Definitional Issues in Space Law: The
“Peaceful Use” of Outer Space, pp. 513-522. See also note 4 above.

11. See CHENG, op. cit. in note 6 above, Ch. 4: International Co-operation and Control:
From Atoms to Space, pp. 52-69.

12. The text of Art ] is reproduced below.

13. UN Doc. A/C.1/PV.1289 (3.12.62), p. 13.

14. UN Doc. A/AC.105/PV.3 (20.3.62), p. 63.

15. As to the expectations at the time, even before the actual launch of Sputnik I, see
CHENG, op. cit. in note 6 above, Ch. 2: International Law and High Altitude Flights, pp. 14-51,
notes 12 and 13 and text thereto, at p. 17.

16. See ibid., Ch. 1: In the Beginning: The International Geophysical Year, pp. 3-13.

17. See ibid., Ch. 6: The United Nations and Outer Space, pp. 91-124, text to note 134, at p.
121.

18. See ibid., Ch. 6, s. VI: Demilitarisation and Disarmament, at pp. 119-124.

19. Cf. UN Doc. A/AC/105/C.2/SR.65 (22.7.66), pp. 9-10; ibid., /SR.66 (23.7.6), pp. 6-7
(USSR).

20. Cf., e.g. Soviet behaviour in the 1960 RB-47 incident (see CHENG, op. cit. in note 6
above, Ch. 6, s. V.B: Peripheral Reconnaissance, at pp. 107-119), and the 1983 Korean Airlines
incident (see B. Cheng, The Destruction of KAL Flight KEO07 and Article 3bis of the Chicago
Convention, in J. W. E. Storm van s Gravesande and A. van der Veen Vonk (eds.), AIR WORTHY
(Liber Amicorum I. H. Ph. Diederiks-Verschoor), Daventer: Kluwer (1985), p. $7. And see text
to note 38 below.

21. UN Doc. A/C.1/L.219 (16.3.58).

22. See op. cit. in note 6 above, Ch. 6 : The Extraterrestrial Application of International Law,
note 39 and text thereto, at p. 83.

23. A number of other treaties, bilateral or multilateral, concluded or proposed, affect the
military use of outer space, which time and space do not permit us to enter into here. Mention.
may be made of the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere in Outer
Space and Under Water (480 UNTS 43); the 1972 US-USSR agreement on the Limitation of
Anti-Ballistic Missile Systems (ABM Treaty) [11 ILM (1972) 784]; the 1972 US/USSR Interim
Agreement on Certain Measures with Respect to the Limitation of Strategic Offensive Arms
(SALT I Agreement) [11 ILM (1972) 791]; 1977 Convention on the Prohibition of Military or
Any Other Hostile Use of Environmental Modification Techniques [16 ILM (1977) 88]; 1979
US/USSR Treaty on the Limitation of Strategic Offensive Arms (SALT II Treaty) [18 ILM
(1979) 1112]; the 1979 Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies(Moon Treaty) [18 ILM (1979) 1434; 1363 UNTS 3]; the 1981 Soviet proposal
for a Treaty on the Prohibition of the Stationing of Weapons of Any Kind in Outer Space [UN
Doc. A/36/192 (22.8.81)]; the 1983 Soviet proposal for a Treaty on the Prohibition of the Use of
Force in Outer Space and from Space against the Earth [UN Doc. A/38/194 (20.8.83)]. See B.
Jasani, Outer Space: Militarization Outpaces Legal Controls, in N. Jasentuliyana (ed.),
MAINTAINING OUTER SPACE FOR PEACEFUL USES, Japan: The UN University (1984), pp.
221-252, Table 2, at pp. 234-237, where some of the key provisions of these treaties are cited.

24. On various other terms and aspects of the 1967 Space Treaty, particularly from the
standpoint of interpretation and definition, cf. S. Gorove, Article IV of the 1967 Outer Space
Treaty and Some Alternatives for Further Arms Control, in Jasentuliyana (ed.), op. cit. in note 23
above, pp. 77-89.

112


The Law of Armed Conflict as Soft Power

participation and leadership. Anecdotal evidence suggests that the U.S. is in-
creasingly viewed as the boy who took his marbles and went home in the game
of international law. It does what it wants because it can, fashioning ex post
facto legal justifications therefore. Regardless of the accuracy of any such criti-
cism, the mere perception does violence to an overarching national security
strategy based on engagement.

Thus, the current international context offers the United States unprece-
dented, and very welcome, opportunities for normative engagement. In great
part, this is because the end of the Cold War moderated the normative threat
environment. Of course, to properly exploit this opportunity requires the exer-
cise of sagacious strategic choice. Unfortunately, although the new strategic
paradigm expands the scope of choice for the United States, choice has become
far more enigmatic. While the two-dimensionalism of the Cold War tempered
law’s pluralistic character, the current global environment complicates it.

Final Thoughts

This essay has suggested that the law of armed conflict is a powerful form of
soft power capable of shaping the battlefield in consequential ways. As such,
decisions regarding proposed legal regimes or activities with normative import
are in fact serious strategic policy decisions. Unfortunately, informed intuition
is all too often relied upon to make the complex decisions necessary for opti-
mizing normative strategic choice. In response to this reality, the essay proffers
a skeletal decision process to facilitate choice, one designed to identify and as-
sess possible strategies in the context of the various objectives they advance or
harm. Since objectives, and the national interests they foster, do not equally
advance the welfare of a State (or may even operate at cross purposes), they
must be valued before strategic choice is possible. This allows for informed
choice regarding normative schemes that may advance or harm any number of
objectives and interests simultaneously in ways that are dependent on the con-
text in which they operate.

Lest this process be misinterpreted, it is perhaps best to conclude by reem-
phasizing what has not been asserted. First, the process suggested is neither
all-encompassing nor mathematical in nature. It simply represents a way to
think about normative regimes and activities with normative elements. The
goal is orderly thought processes as an alternative to resorting to informed intu-
ition alone in complex situations. There are certainly variables not mentioned
that might affect the process, and it is a subjective process that in the end relies
on the quality of human cognition.

476


Georg Schwarzenberger

society which is founded on the arbitrament of force. The second stands for the
law of reciprocity which governs the relations of States in spheres irrelevant
from the point of view of power politics and in circumstances when threat of
force is no longer effective because States have already resorted to the ultimate
means of pressure. The third gives a timid expression to that law of
coordination which can only find its realization in an international community
proper.

It is suggested that the analytical and descriptive work of past generations
must be supplemented by a sociological analysis of international law as a law of
power, reciprocity and coérdination, and correspondingly as an ideology, real-
ity and utopia.

Notes

1. PUFENDORF, DE JURE NATURAE ET GENTIUM LIBRI OCTO (1688), Bk. VIII, Ch. VI, 2.
(English translation in Carnegie Endowment edition, Oxford, The Clarendon Press, 1934.)

2. Pe. I, Ch. 14, Il; similarly in his LEVIATHAN, Ch. 13. See also PLATO, THE LAWS, Bk. I, 2;
PIERINO BELLI, DE RE MILITARI ET BELLO TRACTATUS (1563), Pt. I, Ch. I, I; SPINOZA,
TRACTATUS POLITICUS (1677), Ch. 2, § 14. and Ch. 3, § 13. This conception lies at the bottom
of the distinction in Muslim law between the “Abode of Islam” and the “Abode of War.” Cf. M.
KHADDURI, THE LAW OF WAR and PEACE IN ISLAM (London, 1940), pp. 20 and 46.

3. Loc. cit.; see also ibid., Bk. II, Ch. II, 7 or his DE OFFICIO HOMINIS ET CIVIS JUXTA LEGEM
NATURALEM LIBRI DUO (1673), Bk. II, Ch. XVI, I (Carnegie Endowment translation, New
York, 1927), and the dictum in Miller v. The Resolution, U.S. Court of Appeals (1781), 2 Dallas
1: “As the state of nature was a state of peace, and nota state of war, the natural state of nations
is a state of peace and society.”

4. Cf. F. Meinecke’s masterly description of the political background of this period in DIE
IDEE DER STAATSRAISON IN DER NEUEREN GESCHICHTE (Munich, 1929), p. 514 et seq.

5. Bk. I, Ch. I, I. (English translation in Carnegie Endowment edition, Oxford, The
Clarendon Press, 1925.)

6, DEJURE BELLI LIBRI TRES (1589), Bk. I, Ch. If (Carnegie Endowment translation, Oxford,
The Clarendon Press, 1933.)

7. In his essay, Of the Greatnesse of Kingdomes and Estates (1597), XXIX.

8. DE INDIS ET DE JURE BELLI RELECTIONES (1541), Relectio Secunda, No. 7 (Carnegie
Institution translation, Washington, 1917). See also GROTIUS, DE JURE BELLI AC PACIS LIBRI
TRES, Bk. III, Ch. 3, II.

9. Cf. SIR TRAVERS TWISS, THE LAW OF NATIONS (Oxford, 1875), Vol. II, p. 65.

10. VICTORIA, quoting from Terence, loc. cit., No. 21.

11. Useful surveys of this doctrine are contained in R. REGOUT, LA DOCTRINE DE LA
GUERRE JUSTE (Paris, 1935), and W. BALLIS, THE LEGAL POSITION OF WAR (The Hague,
1937). See also J. von Elbe, The Evolution of the Concept of the Just War in International Law,
AMERICAN JOURNAL OF INTERNATIONAL LAW, Vol. 33 (1939), p. 665 et seq.

12. T. E. HOLLAND, STUDIES IN INTERNATIONAL LAW (Oxford, 1898), p. 58.

13. C. Phillipson, introduction to GENTILI'S DE JURE BELLI LIBRI TRES (Carnegie
Endowment translation, Oxford, The Clarendon Press, 1933), Vol. II, p. 33a.

501


Outer Void Space Not Reserved for Exclusively Peaceful Use

activities thereon, would already exceed their brief, but to also apply it to the
outer void space would be completely out of the question. However, as men-
tioned earlier, there was immense clamour from all quarters for outer space as a
whole to be reserved exclusively for peaceful use. To reject this demand out-
right would hardly have been politic.

This would explain why the United States negotiators decided to carry their
newly invented semantic prestidigitation*® into the Space Treaty, and at the
same time to omit the clear and unambiguous introductory words in the second
sentence of Article I of the Antarctic Treaty.4? In so doing, they probably
thought they had achieved the seemingly impossible. According to their own
interpretation, while nominally acceding, if not totally, at least partially, to the
popular demand for an outer space reserved exclusively for peaceful purposes,
they would have banned only warlike (i.e., aggressive) activities on the moon
and other celestial bodies in accordance with the original brief, but kept them
completely free for non-warlike (i.e., not aggressive) military activities, save for
a few specific prohibitions enumerated in the second sentence of Article IV(2).
However, it is not believed that they have succeeded in doing so.

2. The Antarctic Analogy and the Plain Meaning of the Word “Peaceful.” In the
first place, it may be of interest to compare the wording of Article I of the Ant-
arctic Treaty with Article IV(2) of the Space Treaty:

1959 Antarctic Treaty 1967 Space Treaty

ARTICLE I. ARTICLE IV(2). The moon and other

celestial bodies shall be used by all States

1. Antarctica shall be used for peaceful
purposes only. There shall be prohibited,
inter alia, any measures of a military na-
ture, such as the establishment of military
bases and fortifications, the carrying out
of military manceuvres, as well as the test-
ing of any type of weapons.

2. The present Treaty shall not pre-
vent the use of military personnel or
equipment for scientific research or for
any other peaceful purposes.

Parties to the Treaty exclusively for peace-
ful purposes. The establishment of military
bases, installations and fortifications, the
testing of any type of weapons and the
conduct of military manoeuvres on celes-
tial bodies shall be forbidden. The use of
military personnel for scientific research
or for any other peaceful purposes shall not
be prohibited. The use of any equipment or
facility necessary for peaceful exploration of
the moon and other celestial bodies shall
also not be prohibited.

That the word “peaceful” in Article 1 of the Antarctic Treaty means
“non-military” is clear. A comparison of the wording of Article IV(2) of the

96


Dispute Settlement under the 1997 Watercourses Convention

at, judicial or other (probably administrative) procedures in the State where
the harmful activity was carried out. No discrimination on the basis of the na-
tionality or residence of the claimant, nor in view of the place where the injury
occurred, is permitted. The watercourse States concerned may, however, agree
to provide otherwise for the interests of the relevant persons.

he 1997 Watercourses Convention has provided for conflict preven-

tion and for dispute resolution. States must endeavor to prevent con-
flicts by the exchange of information, notification, communication,
consultation, and, where necessary, negotiations. These means of prevention
are obligatory.

On the other hand, in the field of dispute settlement, some mechanisms are
optional: good offices, mediation, conciliation, the use of a watercourse institu-
tion, arbitration, or the International Court of Justice. Only two procedures are
obligatory: negotiation and establishment of a fact-finding commission. Even
though resort to the latter two mechanisms is obligatory, the outcome is not
binding.

In dealing with water-related issues, the parties to the dispute as well as
those helping them to solve it should bear in mind some special features of this
area. There may be a conflict not only between the interests of riparians for a
similar use of the water, e.g., the allocation of water for irrigation, but there
may also be a need to reconcile different uses of the water, e.g., agricultural ver-
sus industrial ones.82 Other matters, not directly related to the distribution of
benefits, may have to be envisaged, in particular the protection of the environ-
ment and the interests of future generations.83 Considerations of efficiency may
have to be weighed against the need for equitable solutions, as well as the
search for “equitable and reasonable utilization and participation” against the
“obligation not to cause significant harm.”84 Moreover, one has to remember
that with regard to water, there may exist psychological factors, as well as reli-
gious sensitivities.85

The author wishes to express her thanks to Mr. Gil Limon, who helped her to collect the
material for this article, and to Ms. Morissa Amittai for her patience and meticulous typing.
Thanks are also due to Ambassador Dr. Robbie Sabel and to Mr. David Wolberg.

242


Ved Nanda

46. Id.

47. Id. at 5.

48. See Steven Lee Myers, NATO Raid Hits China Embassy; Beijing Cries “Barbarian Act”;
Allies Admit Striking Hospital, N.Y. TIMES, May 7, 1999, at Al, col. 6 (includes a chart entitled
“As War Continues, Errors Mount,” showing that, from March 24 until May 7 when NATO
accidentally hit the Chinese Embassy, eight errors had occurred, targeting residential areas, a
bus, a train, a hospital, and refugees).

49. Id.

50. Statement by Secretary-General Kofi Annan on Kosovo Crisis, Press Release
SG/SM/6972, April 28, 1999, <http://www.globalpolicy.org/security/issues/kosovo34.htm>.

51. Id.

52. Eve-Ann Prentice, Cost of NATO Damage Estimated at $29 Billion, LONDON SUNDAY
TIMES, Overseas News Section, July 23, 1999. The article describes the Serbian group
conducting the study as being seen by many western diplomats in Belgrade to be a “reliable
source of economic information.” Id.

53. Id.

54. 1d.

55. Destruction, Casualties, Costs and Other Facts in the War Over Kosovo, AP, June 10, 1999,
at 1, <htcp:/Aviw.globalpolicy.org/security/issues/kosovo76.htm>.

56. Id. at 1-2.

57. See, e.g., Steven Lee Myers, The Toll—Damage to Serb Military Less than Expected, N.Y.
TIMES, June 28, 1999, at A1, col. 2; Richard J. Newman, The Bombs That Failed in Kosovo, U.S.
NEWS & WORLD REPORT, Sept. 20, 1999, at 28 (noting that, while NATO reported that Allied
pilots had hit 110 tanks, 210 armored personnel carriers, and 449 towed artillery mortars, NATO.
teams subsequently found only 26 tanks, 12 armored personnel carriers, and 8 pieces of artillery
mortars destroyed in Kosovo).

58. Damage to Yugoslav Environment “Immense,” UN Team Reports, 1, <http://ens.
lycos.com/ens/jun99/1999L-06-29-02.html>.

59. Id. at 2.

60. See Fred Pearce, Atrocity Stories, NEW SCIENTIST, Sept. 11, 1999, at 46.

61. Damage in Kosovo Less than Thought, World Bank Says, AP, July 13, 1999, at 1-2
<http:/Avww.2.star tribune.com/cgi-bin/stONLINE/article?this Slug=KOSO0713>.

62. See Ved Nanda, It’s Time for a Diplomatic Solution, DENVER POST, May 6, 1999, at B7
(calling for an end to the bombing in favor of a diplomatic solution).

63. U.N. Doc. $/1999/516, May 6, 1999. For an excerpt from the statement by the Foreign
Ministers of the Group of Eight, see also AP, Group of Eight’s Kosovo Statement, May 6, 1999, at
Al4, col. 1.

64. Id.

65. For an insightful account of the long process, see Blaine Harden, Crisis in the Balkans:
Doing the Deal—A Special Report; A Long Struggle That Led Serb Leader to Back Down, N.Y.
TIMES, June 6, 1999, sec. 1, at 1, col. 4.

66. See NATO Envoy on Talks with Milosevic, N.Y. TIMES, June 4, 1999, at A23, col. 4.

67. For the text of the proposal, see Kosovo Peace Accord: 10 Steps to a Verifiable End of
Violence, N.Y. TIMES, June 4, 1999, at A20, col. 2 [hereinafter Kosovo Peace Accord}. See also
Steven Erlanger, Milosevic Yields on NATO's Key Terms; 50,000 Allied Troops to Police Kosovo,
N.Y. TIMES, June 4, 1999, at Al, col. 5; Tim Judah, What Do We Do With Serbia Now? id. at29A,
col. 2; Editorial, The Kosovo Peace Plan, id. at 28A, col. 1; Michael Wines, Reception in Moscow for

333


x

The Charter of the United Nations
as a World Constitution

Ronald St. J. Macdonald

Forty-seven years ago I had the privilege of attending the famous Thursday
afternoon seminars on public international law conducted by Georg
Schwarzenberger at the Institute of Advanced Legal Studies in London. Mr. L. C.
Green, a young university lecturer full of erudition, was one of the animating
personalities at those memorable meetings. We became and remained friends and I
watched with admiration as he travelled the world gamering a multitude of richly
deserved prizes, in England, Singapore, Israel, Canada, and the United States.
Now, half a life time later, it is a pleasure to publicly express my respect and good
wishes to him and his lovely wife, Lilian, in this splendid book of essays published
under the distinguished auspices of the United States Naval War College.

| HE PURPOSE OF THIS PAPER IS TO CONSIDER the Charter of the United

Nations and its associated provisions, as represented by resolutions and
declarations of the organization, from a constitutional point of view. More par-
ticularly, I want to reflect on whether the Charter has risen above the status of
amere international treaty to become something of a constitution for the inter-
national community as a whole. This question is increasingly important in view

The writer recognizes with great pleasure and much gratitude the assistance of Dr.
Chiara Della Mea in the preparation of this paper.


Outer Void Space Not Reserved for Exclusively Peaceful Use

based on the parties’ subsequent practice, and the International Court of
Justice’s North Sea Continental Shelf Cases (1969)53 regarding the role of the
States “specially affected” in the formation of rules of general international law,
seemed to have conceded that the United States usage of the word “peaceful”
may now be its accepted meaning. He cited the enormous amount of military
activities of both the United States and the Soviet Union in outer space, and
remarked: “No State has ever formally protested the U.S. interpretation of the
phrase ‘peaceful uses’ in the context of outer space activities.”>4

With respect, such a conclusion is unwarranted. Article 31(3)(b) of the Vi-
enna Convention, which is itself based on the International Court of Justice’s
Temple of Preah Vihear Case (1962),55 provides quite explicitly that interpreta-
tion can take into account “any subsequent practice in the application of the
treaty which establishes the agreement of the parties regarding its interpretation.”56
But here, it does not appear justified to mix what is expressly provided for in
Article 31(3)(b) of the Vienna Convention with what was said in relation to
the formation of general international law by the Court in the North Sea Conti-
nental Shelf Cases concerning parties “specially affected.” In any case, in the
present instance, there cannot be said to have been any subsequent practice re-
garding the interpretation of the phrase “exclusively for peaceful purposes” in
Article IV(2) of the 1967 Space Treaty, and certainly no subsequent practice
which “establishes the agreement of the parties regarding its interpretation.”

As regards the point that there has been no protest, it needs to be pointed
out that all the military activities of the United States and the Soviet Union are
actually in outer void space, not on celestial bodies. Insofar as the moon and
other celestial bodies are concerned, there has been no known or even sus-
pected exploration or use of the moon or other celestial bodies for military pur-
poses. There has, therefore, so far been no reason why any contracting State
which believes in “peaceful” meaning “non-military” and not “non-aggressive”
should lodge a protest. As a result, one can definitely not speak of any subse-
quent practice acquiescing in the United States’ interpretation of the term
“peaceful” based on the absence of any protest insofar as Article IV(2) is con-
cerned, since States are certainly not required to monitor and correct other
States’ mistakes in their understanding of the law or legal malapropisms, as
long as they do not put their misinterpretation into practice.

Insofar as the outer void space is concerned, where Professor Vlasic said all
kinds of military space activities were widely known to be taking place without
protest, there would be even less reason to protest. There would be grounds for
protest only if any contracting State were to orbit or station weapons of mass
destruction in outer space. Up to now, it does not appear that any party to the

98


Chivalry in the Air?

and the Sudanese delegate asserted that “a pilot forced to bail out from a
doomed aircraft should not be considered to be hors de combat if he attempts to
land on territory controlled by his own side or its allies, for his attempt indicates
his intention to land in a safe place and to continue fighting immediately after
he has landed.*? Mr. Pictet, on behalf of the ICRC, vociferously objected to the
Sixteen State proposal, stating that it would

introduce into the Conventions an element that was outside their framework
and contrary to their spirit . .. whether an airman landed in friendly or hostile
territory, whether he rejoined his unit or was taken prisoner, should remain
secondary considerations. A shipwrecked person was a victim of the conflict
and should be protected in all circumstances. The ICRC would be dismayed
to see a provision making it lawful to kill an unarmed enemy, who was not
himself in a position to kill, introduced into law which had hitherto been
purely humanitarian. It would set a dangerous precedent. 61

The Sixteen State amendment was put to the vote and defeated.62

The text, as finally adopted, makes no distinction as regards the territory
where the parachutist is likely to land. The clear rule is that one does not shoot
ata person parachuting from an aircraft in distress. It is, I believe, a reflection of
a tule of customary international law.

Hostile Attitude during Descent?

If an aitcraft carrying paratroopers or other airborne troops is in distress,
clearly the troops who parachute from such an aircraft are not necessarily hors
de combat. Theoretically, even an airman parachuting from an aircraft in dis-
tress who attempts to use a weapon during his descent is not at the time hors de
combat.

The various drafters of the provision providing protection to airmen in dis-
tress attempted to find a way to exclude these two categories from the protec-
tion of persons hors de combat. Participants at the 1969 Experts Conference,
“generally admitted that an airmen in distress, cut off and not employing any
weapon, should be respected.”63 (Emphasis added.) The 1971 Istaeli proposal
contained no reference to hostile behaviour by an airman; however, the text
presented by the ICRC in 1972 conditioned the protection of airmen in distress
by the phrase “unless their attitude is hostile.”6+ At the 1972 Conference, a
question was raised as to the definition of the phrase “hostile attitude,”® but no
expert appears to have objected to the principle of such a restriction. Proposals
submitted by the U.S. and GDR repeated the reference to “hostile attitude”

446


Howard S. Levie

review the acts of the Court, etc., etc. In other words there would be a completely
politicized criminal court dependent entirely on the will and the whims of the Security
Council—which, in effect, means on the will of any single nation exercising the veto
power, or even on the negative votes of any nine members of that body. This is not my idea
of an independent International Criminal Court; and I am sure that States would be
reluctant to release any of their criminal jurisdiction to such a court.

Treceived no answer to that letter.

44. Article 4(2) provides that the Court “may exercise its functions, as provided in this
Statute, on the territory of any State Party and, by special agreement, on the territory of any
other State.”

45. Articles 6 enumerates five acts constituting genocide; Article 7 enumerates eleven acts
constituting crimes against humanity; and Article 8 enumerates eight acts constituting
violations of the grave breaches provisions of the 1949 Geneva Conventions and an additional
twenty-six acts which also constitute war crimes. Extensive attempts to define aggression proved
unsuccessful. Concerning this situation, an “Analysis of the Statute of the International
Criminal Court,” apparently prepared by one of the U.S. representatives at Rome, but not
otherwise identified, listing objectives of the United States which were not achieved, states:

Inclusion of aggression in the statute, with a proviso “activating” the crime once an
acceptable definition has been arrived at and included in the Statute as a result of a
Review Conference under Article 123 and an amendment to the Statute pursuant to
Article 121, is in direct contravention of the consensus clearly demonstrated during the
debates—that aggression should not be included if not adequately defined.

(The present author was unable to identify any such “proviso” in the Statute and assumes that it
was a separate action of the Conference.)

Article 8(c) to (f) relate to crimes committed during armed conflicts not of an
international character.

46.See Articles 12 and 13 of the Statute. Under Article 12(3) a State which is nota Party to
the Statute may accept the jurisdiction of the Court. This is one of the areas to which the United
States strongly objects as it took the position that the Statute should not apply the jurisdiction of
the Court to States not Parties to the Statute on the theory that a treaty does not create either
obligations or rights for a non-Party.

The United States also objected strongly to the provisions of Articles 13 and 15 of the
Statute which permit the Prosecutor to initiate investigations on his own motion. It fears that he
will be subjected to the pressure of human rights organizations to institute proceedings in cases
which do not comprise crimes of concern to the international community.

47. Article 12 of the Statute. Because of the fact that American soldiers are stationed in so
many different areas, and the fear that they would be subjected to politically motivated charges,
the United States sought, unsuccessfully, the right to veto the prosecution of American citizens.
While there was merit to its concern, every nation would have sought entitlement to the same
right and the entire idea of an International Criminal Court would have been nullified.

48.See note 18, supra.

49. These provisions will be found in Principles III and IV, respectively, of the International
Law Commission’s Principles of International Law Recognized in the Charter of the Nuremberg
Tribunal and in the Judgment of the Tribunal. 44 AM. J. INTL L. Supp. 146 (1950).

50.See note 28, supra.

261


Paul C. Szasz

establishing organ, normally the Security Council but sometimes the General
Assembly, to the Secretary-General, who thus acts, in a sense (though the term
is never used), as Commander-in-Chief. To the extent that any aspect of such
operations is not specified by the establishing organ—and typically this is true
of most aspects except for the basic mandate and the force strength—these de-
terminations must be made by the Secretary-General or under his authority.
He himself delegates this authority in several ways: (i) to the Un-
der-Secretary-General of the Department of Peacekeeping Operations
(DPKO); (ii) for séme operations also to a Personal or Special Representative,
who is a high-ranking staff member; (iii) and, for each operation, to a Force
Commander. The latter is a military officer seconded by a member State to the
United Nations and thus employed by the latter as a staff member; he is there-
fore fully under the authority of the Secretary-General, and not under that of
his government.!6 The force, itself, is made up of military personnel supplied
(made available) by member States to the United Nations, normally in the
form of a distinct unit (e.g., a platoon, company, battalion) with its own cadre
of commissioned and non-commissioned officers. They perform their functions
as ordered by the Force Commander, but their internal discipline is maintained
according to their national regulations. In particular, the punishment of any vi-
olations takes place under national authority and not that of the United Na-
tions.!7 These troops keep their national uniforms, but typically wear a blue
helmet (hence their name) or beret and some shoulder insignia indicating that
they constitute part of a UN force. They are also remunerated by and according
to the rules of their country, though the UN provides them with a per diem and
reimburses their governments for its outlays according to a uniform scale estab-
lished by the General Assembly.

Thus, except for the Force Commander, the military component of a UN
force (there may also be police and civilian components) consists of national
contingents (military units or, rarely, individuals) voluntarily provided by
member States, !8 operating under general UN command as to their operations
but still under national authority as to their behavior. This also means that to
the extent such units and persons are required by international and/or national
law to abide by IHL, in whole or in part, these troops continue to operate under
such constraints even while under UN command.!9 Whether these constraints
could be loosened by the competent UN organs should they so direct is ex-
plored briefly below.

Though this has so far been the invariable practice in composing UN
forces,?0 it should be noted that this is not the sole possible model. In principle,
the United Nations could recruit military personnel directly (or by

509


Naval Blockade

economic sanctions imposed on Iraq by UNSC Resolution 661 of August 6, 1990, were,
according to UNSC Resolution 665 of August 25, 1990, enforced by the States cooperating with
Kuwait. In both cases, the Security Council did not decide according to Article 42, but according
to Article 41 UN Charter.

128. ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK ON THE LAW OF
NAVAL OPERATIONS, Newport 1997, para. 7.7.2.1, footnote 131.

129. For example, in UNSC Resolution 661 of August 6, 1990.

130. During the second Gulf War Iran, in particular, tried to assume a neutral status. This
position, however, was rejected by the vast majority of States and international lawyers.

131. In its commentary on Principle 5.2.10 on blockade of the Helsinki Principles on the Law
of Maritime Neutrality, the ILA maintains that “the Security Council, when acting by virtue of
Chapter VII of the Charter, may adopt decisions deviating from this Principle (see Principle
1.2).” Principle 1.2 in part reads as follows:

Nothing in the present Principles shall be construed as implying any limitation upon
the powers of the Security Council under Chapters VII and VIII of the United Nations
Charter. In particular, no State may rely upon the Principles stated herein in order to
evade obligations laid upon it in pursuance of a binding decision of the Security Council.

In the commentary it is made clear that “the provision serves as a reminder that the principles do
not preclude a modification of the rules of neutrality due to the law of the United Nations
Charter ....”

132. W. Heintschel v. Heinegg, The Current State of Intemational Prize Law, in: H.H.G. Post
(ed.), INTERNATIONAL ECONOMIC LAW AND ARMED CONFLICT, Dordrecht et al. 1994, pp. 5
ff, 27.

230


Index

Detained Persons, 534
See also PRISONERS OF WAR.
Force, Use of, see FORCE, USE OF
History, 302, 483
International v. Non-International, 16, 191
Law of Peace, 483
Lieber Code (1863), 433
Natural Law, 483
New Technology, 194
Operations Other than War, 190
Surrender, 306
Suspension, see Cease-Fire
War
Definition, 492, 493-98
Initiation, 131-34 *
Women, Protection of (against Rape), 302, 306
LAW OF THE SEA, 106, 268, 281, 284-87, 303, 422
See also ARCHIPELAGIC STATES; EXCLUSIVE ECONOMIC ZONE; FISHERIES; HIGH SEAS;
INTERNAL WATERS; TERRITORIAL SEA
International Court of Justice, 285
LEAGUE OF NATIONS, 57, 61, 77, 135, 240, 249, 266, 346, 356, 392-94, 497, 541
LEBANON
Israel, 136-37, 141-42, 145
LEVIE, HOWARD S., 247, 584
LIBYA, 269, 282, 360, 455, 462
LIEBER CODE (1863), 305
LINCOLN, PRESIDENT ABRAHAM, 411
LONDON CHARTER, 4
Crimes Against Humanity, 5

M

MACDONALD, RONALD ST. J., 263, 584
MERON, THEODOR, 301, 584
MINES
see also LAND MINES CONVENTION (1997)
Land, 212, 339-40, 455, 460, 465-70, 520-21
Naval, 207-08, 215, 364
MOON
Definition, 100
Demilitarization, 103 .
Moon Treaty (1979), 100, 103-05, 109
MULTINATIONAL MILITARY UNITS, 161
See also DEFENSE AND SECURITY ARRANGEMENTS; PEACEKEEPING OPERATIONS;
SECURITY COUNCIL, Enforcement Actions; UNITED NATIONS CHARTER, Enforcement
Actions
Command and Control, 171-74

599


Appendix

International Law and Canada’s Anti-Pollution Legislation. 50 Oregon Law
Review, 1971, 463-90.

Self-Determination and Settlement of the Arab-Israeli Conflict. 65 American
Journal of International Law, 1971, 40-8.

Hijacking and the Right of Asylum. In McWhinney, Aerial Piracy and Interna-
tional Law, 1971, 124-46.

China and the United Nations. 2 Malaya Law Journal, 1971, xxi-xxix.

Letter on “China, Taiwan and the United Nations.” The Times (London, 12
October 1971).

Piracy of Aircraft and the Law. 10 Alberta Law Review, 1972, 72-88.

Legal Significance of Treaties Affecting Canada’s Indians. 1 Anglo-American
Law Review, 1972, 119-35.

Human Rights and Canada’s Indians. 1 Israel Yearbook on Human Rights, 1971,
156-90.

Representation Versus Membership: The Chinese Precedent in the United
Nations. 10 Canadian Yearbook of International Law, 1972, 102-36.

The UN. at 25: Prospects for the Future. 3 Lawasia, 1972, 471-82.

International Terrorism and its Legal Control. 21 Chitty’s Law Journal, 1973,
289-301.

What is International Terrorism? 29 New Trail, 1973, 6-7.

Membership in the United Nations—China, Taiwan and Bangla Desh. 38
Annales de la Faculté de Droit d’Istanbul, 1972-4, 415-61.

Immigration, Extradition and Asylum in Canadian. Law and Practice. In Mac-
donald, Morris and Johnston, Canadian Perspectives on International Law,
1974, 244-303. .

The Canadian Bill of Rights, Indian Rights and the United Nations. 22 Chitty’s
Law Journal, 1974, 22-28.

Tribal Rights and Equal Rights. Ibid., 1974, 97-101.

Hijacking, Extradition and Asylum. Ibid., 1974, 135-43.

Aboriginal Rights or Vested Rights. Ibid., 1974, 219-23.

Is There a Canadian International Law? Ibid., 1974, 289-91.

The Nature and Control of International Terrorism. University of Alberta, De-
partment of Political Science, Occasional Paper No. 1, 1974, 56 pp.; 4 Israel
Yearbook on Human Rights, 1974, 134-67.

Human Rights. In Recent Laws in Canada, Vol. V, “Manitoba/Alberta, 1972/3,”
1974, 53-7.

Focus on International Law. Intemational Perspectives, September/October
1974, 52-5.

571


Ronald St. J. Macdonald

The European Court of Justice, although not directly involved in the deci-
sion-making process, is important in the development of Union policy. The
Treaty of Rome, in Article 164, mandates the Court to “ensure that in the in-
terpretation and application of [the] Treaty the law is observed.” In discharg-
ing this responsibility, the Court has been functional in developing the law
regarding, for example, the division of powers between the Community and the
States in several areas covered by the treaty, both on the external and internal
level. The Court has jurisdiction over, and can order punitive measures in rela-
tion to, the acts of member States and the Commission with regard to the im-
plementation of Community law. These rulings cannot be challenged, which is
in marked contrast to the judicial powers of other international organizations,
such as the United Nations, which do not have jurisdiction over the actions of
international organs and whose decisions are only compulsory for those States
expressly accepting the jurisdiction in question.

The European Council, formally recognized in the 1970s and first acknowl-
edged in Community law in the Single European Act of 1986, comprises the
Heads of States and Government of the European Union. It provides the Un-
ion with general political guidelines. The Presidency of the Council, assumed
by each member for a period of six months, is in the main responsible for coor-
dinating the work of the Council and managing the Common Foreign and Se-
curity Policy.”4

In the application of their competencies, community institutions have been
provided with a number of legislative and jurisdictional instruments: regula-
tions, issued only by the Council, which are binding and directly enforceable in
the member States; directives, binding but not directly applicable in the mem-
ber State, which must first be included in the national legislation through an
apposite national law before becoming enforceable;?5 and recommendations
and resolutions, which are not binding.

Areas in which the European Community can exercise its competencies are
listed in the Treaty of Rome, as amended by subsequent treaties. However, this
list is not exhaustive. According to Article 235, the Council can legislate in ar-
eas not covered by the letter of the treaty if such action should prove necessary
to attain, in the course of the operation of the common market, one of the ob-
jectives of the Community, and Article 100 empowers it to “issue directives for
the approximation of such provisions laid down . . . in Member States as directly
affect the establishment or functioning of the common market.” The principle
laid down in these articles is clearly stated in Article 3b of the Treaty of
Maastricht, which provides that, “in areas which do not fall within its exclusive
competence, the Community shall take actions, in accordance with the

289


Shabtai Rosenne

16. The treaties which put an end to the Napoleonic Wars contained no provision regarding
Napoleon’s fate. Article XVI of the Treaty of Paris of May 30, 1814, provided that no individual
of whatever rank or condition should be prosecuted, disturbed, or molested, in his person or
property, under any pretext whatsoever, either on account of his conduct or political opinions,
his attachment either to any of the Contracting Parties, or to any Government which has ceased
to exist, or for any other reason except for debts contracted towards individuals, or acts posterior
to the date of the treaty. I MAJOR PEACE TREATIES OF MODERN HISTORY 1648-1967, pp. 501,
509 (F.I. Israel, ed., 1967); 63 CTS 171. With regard to Napoleon himself, on March 13, 1815,
(before the Battle of Waterloo) the Allies issued the Declaration of Vienna to the effect that he
had placed himself beyond the protection of the law. 63 CTS 495. On his later surrender to and
custody by the British authorities, see LORD MCNAIR, INTERNATIONAL LAW OPINIONS, vol. I,
p. 104 (1956). This was unconditional surrender of an individual, not of the State.

17. See the State Department’s annotations in the publication cited in note 15 above. More
in J.H.W. VERZIL, op. cit. in note 2 above, vol. IX, p. 381 (1978). In addition, note Article 226 of
the Treaty of Sévres, the Treaty of Peace with Turkey, apparently intended to enable the
perpetrators of the genocide of the Armenians in World War I to be brought to trial and
punished. That treaty never entered into force. For that Treaty see 15 AM. J. INTL L.
SUPPLEMENT, p. 179 (1920).

18. Permanent Court of International Justice, Advisory Committee of Jurists,
Procés-Verbaux of the Proceedings of the Committee, June 18th—July 24th, 1920, with Annexes,
p. 748 (1920). Reproduced in I FERENCZ, pp. 193, 225, 239. Summarized in Historical Survey at
p. 10. See also M.O. HUDSON, THE PERMANENT COURT OF INTERNATIONAL JUSTICE
1920-1942, p. 85 (1943).

19. FERENCZ, pp. 244, 252; Historical Survey, pp. 12, 14, 15, 61, 70, 74, 75.

20. League of Nations, Proceedings of the International Conference on the Repression of
Terrorism, Geneva, November Ist to 16th, 1937, League of Nations doc. C.94.M.47.1938.V_
(Gales No. 1938.V.3). Reproduced in I FERENCZ, p. 355 and Historical Survey, p. 88. This
Conference was prompted by the terrorist murder of King Alexander of Yugoslavia together with
the French Foreign Minister at Marseilles on September 9, 1934.

21.3 Bevans 1140; 68 UNTS 189.

22.3 Bevans 1238; 82 UNTS 279. Twenty-four States became parties to that Agreement. On
this see Report of Robert H. Jackson, United States Representative to the International
Conference on Military Trials, London 1945 (State Department Publication 3080, 1949).

23. 4 Bevans 20; Department of State, TIAS No. 1589.

24. 78 UNTS 277.

25. For an authoritative account of the drafting of that provision, see N. ROBINSON, THE
GENOCIDE CONVENTION: A COMMENTARY, p. 80 (1960); and see Historical Survey, p. 30. A
similar provision was later included in Article 5 of the International Convention on the
Suppression and Punishment of the Crime of Apartheid, annexed to General Assembly
Resolution 3068 (XXVIII), November 30, 1973, 1015 UNTS 243. By Articles 5, 6 and 7,
paragraph 1(j) of the Rome Statute respectively, genocide and the crime of apartheid are within
the jurisdiction of the International Criminal Court.

26. For the sake of completeness it is recalled that in the Committee on the Question of the
Progressive Development and Codification of International Law (the Committee of Seventeen),
which proposed the establishment of the International Law Commission, the French
representative, Donnedieu de Vabres (who had been the French member of the Niirnberg
Tribunal) raised the question of an international criminal court. In its report on plans for the
formulation of the principles of the Nuremberg Charter and Judgment, the Committee included

415


The Rome Statute on the International Criminal Court

Furthermore, there are indeed very serious implications that the premise that
war crimes and crimes against humanity committed “within the sovereign di-
rection of a U.N. Member State” would not be in accord with the principle of
international law as encapsulated in the Nuremberg Principles, that the “Act
of State” plea is no defence.

The mandate of the PrepCom (1998-2000) is not to revise the Rome Statute
but to elaborate on it and thereby to encourage general support by States. The
Rules of Procedure and Evidence must be consistent with the Statute. Actual
amendments to the Statute can only be done by a Review Conference of the
Assembly of States Parties after the expiry of seven years from the entry into
force of the Statute.!05 Another major fear is that the United States proposal
would encourage certain States not to ratify as it would give them the power to
block the ICC’s jurisdiction. It would also negate a key compromise in Rome
concerning the role of the Security Council in that the ICC would be subject to
the veto of the P5 over prosecutions of non-State Party nationals, which would
undermine the legitimacy of the Court as an impartial and independent judicial
body.

Thus, the major and as yet unresolved problem is how to accommodate the
concerns of the United States without undermining the integrity, credibility
and effectiveness of the ICC. With such a “procedural fix,” the United States
has indicated in recent weeks that its “good neighbour policy” towards the ICC
could “mature over the years into the real possibility of signature and ratifica-
tion.”!06 By June 30, 2000 we shall see, at least, the outcome of this new pro-
posal concerning the Rules of Evidence and Procedure following debate if it is
formally tabled. If this happens it is difficult to know whether States will accept
the proposal to keep the United States on side, knowing that the Relationship
Agreement connection can be negotiated later—or just refuse to agree to this
procedural rule as a matter of principle.

The momentum is building and efforts worldwide are being made to ensure
ratification and thus secure accountability and justice by an independent, im-
partial and effective Court. It would be an affront to humanity, the rule of law
and to the modern struggle since 1947 to have established a permanent Inter-
national Criminal Coutt, if it was to be rendered in real operational terms a nul-
lity by procedural manoeuvres.

Notes
1. UN. Doc. A/CONF.183/9, July 17, 1998.
2. D. Scheffer, The United States and the International Criminal Court (1999), 93 AMERICAN
JOURNAL OF INTERNATIONAL LAW, 12, 17-18; Intemational Criminal Court: The Challenge of

556


Paul C. Szasz

subject is also mentioned in many studies of UN peace-keeping operations, of which a very
complete bibliography was compiled by Michael Bothe, Peace-Keeping, in THE CHARTER OF THE
UNITED NATIONS: A COMMENTARY 565-72 (Ed. Bruno Simma, 1994), as well as in other
sources cited in that study.

6. As explained below, this name derives from the blue headgear that is added to the
uniforms of members of national contingents when these become parts of a UN military force.

7. Notably UNEF I, by A/RES/998 (ES-I) of 4 November 1956, and the continuation of
ONUC after the Security Council became deadlocked, by A/RES/1474 (ES-IV) of 20 September
1960. When the legality of these General Assembly actions was challenged by certain member
States, which as a consequence refused to pay their corresponding assessments (thus throwing
the organization into its first financial crisis), the Assembly queried the World Court, which
responded in the Certain Expenses Advisory Opinion (1962 I.CJ. REPORTS 151) that the
Assembly had the requisite authority.

8. Chapter VI of the Charter is titled “Pacific Settlement of Disputes,” and although
peace-keeping operations would seem to fall under that rubric, none of the specific articles in
that chapter (Articles 33-38) contain any provision that can plainly be held to authorize the
despatch of UN forces. On the other hand, Chapter VII, “Action with Respect to Threats to the
Peace, Breaches of the Peace, and Acts of Aggression,” whose Article 42 does foresee such forces
(but see infra note 9) requires an explicit finding by the Security Council of sucha threat, breach
or act, and findings of this nature are usually not made in connection with peace-keeping
operations. Thus, the absolutely binding nature of Council actions under Article 48.1 of the
Charter does not come into play (though the Article 25 undertaking of all UN members to
accept and carry out decisions of the Council does apply), and peace-keeping operations are
traditionally based on the consent ofall parties to the dispute for the deployment of the force—as
a consequence of which no fighting is expected and these forces are normally only lightly armed;
their normal function is to interpose themselves between hostile forces that are bound by a
cease-fire, armistice or truce to refrain from fighting, so that they can observe and report, or
sometimes carry out or assist in carrying out humanitarian operations.

9. Thus, UNPROFOR in former Yugoslavia was originally established as a Chapter VI
peace-keeping operation, but was a year later explicitly converted into a Chapter VII operation
after a number of French peace-keepers were killed in a Croatian attack on Serb-occupied areas
in the Kraina. See infra note 24.

10. It has, however, been argued that UN peace-making forces are not really established
under Article 42, because in the absence of any Article 43 agreements under which UN members
are to make available forces that can be called upon by the Council, all operations so far have had
to rely on the entirely voluntary contribution of military units by a limited number of members.
This can be countered by pointing out that under Article 48.1 all member States are obliged to
comply with Chapter VII decisions of the Council, presumably including orders to provide
military forces; in this view, Article 43 agreements would only be a convenience in
implementing, but not a prerequisite for Article 42 operations.

11. This was particularly true of the Korean operation, which was authorized to use the UN
flag; Security Council Resolution 84 (1950) of 7 July 1950, para. 5.

12. See infra notes 85 and 86.

13. See this author's somewhat lengthier analysis of this question in ALLOCATION OF LAW
ENFORCEMENT AUTHORITY IN THE INTERNATIONAL SYSTEM: PROCEEDINGS OF AN
INTERNATIONAL SYMPOSIUM OF THE KIEL INSTITUTE OF INTERNATIONAL LAW, March 23 to
25, 1994, 17, at 28-30 (Ed. Jost Delbriick, 1995).

527




Ove Bring

disputes and equality of States, concepts which were strongly supported by
smaller States and the peace movement. It is unlikely that these attitudes were
directly influenced by the European history of political ideas, but they never-
theless belonged to the Westphalian peace tradition.

The new circular of January 1899 also touched upon the venue of the Con-
ference. The Czar was no longer considering St. Petersburg and thought it
better to avoid any of the Great Power capitals. In diplomatic circles this was
seen as damage limitation, a consequence of the less than encouraging reac-
tions of the major powers. Change of venue would minimize disgrace if the
Cazar’s initiative should fail. Preparations soon focused on a “neutral” capital,
with the Hague finally chosen as the site for the Conference.

When the Conference opened on May 18, 1899, representatives of 26 States
were present. Europe dominated with 20 delegations, including Turkey. Other
participating nations were the United States, China, Japan, Persia, Siam, and
Mexico.

Delegations were composed of seasoned diplomats, military and naval men,
and “technical experts.” The latter group included experts in international law,
such as the Russian professor Fjodor de Martens, a proponent of arbitration
and humanitarian law of armed conflict and soon to be famous for the
“Martens’ Clause” (adopted in its first version in 1899). The British delegation
included Sir Julian Pauncefote, the Ambassador in Washington who was well
known for his work in 1897 on an (abortive) arbitration treaty with the United
States. The U.S. delegation included Andrew D. White, Ambassador in Berlin,
who, like Martens and Pauncefote, was a firm believer in the peaceful settle-
ment of disputes. However, most of the military and naval delegates from the
major powers seemed to be of the opinion that “might is right.”

The Conference was also followed by enthusiastic activists of the peace
movement, like the British journalist William T. Stead, the Russian author and
industrialist Ivan Bloch, Bertha von Suttner, and others. The popular demand
for arbitration had to be taken seriously by politicians. The general atmosphere
of Hague 1899, outside the conference rooms in the Royal summer palace, was
filled with optimism and expectations. Delegates, for reasons of self-esteem,
found themselves slowly trying to respond constructively to these expectations.

The arms control proposals were soon shelved, not to be taken up seriously
again, but the second Committee that dealt with the jus in bello under Martens’
chairmanship achieved some useful results [the Convention with Respect to
the Laws and Customs of War on Land, its Annex of Regulations on Land
Warfare, the Convention for the Adaptation to Maritime Warfare of the Prin-
ciples of the 1864 Geneva Convention, and the Declarations concerning

75


UN Forces and International Humanitarian Law

secondment—as is the situation of the Force Commanders) and employ them
as UN staff?! to constitute a standing UN force. Currently, this is precluded by
political and financial considerations, and therefore will not be further consid-
ered in this study. It should, however, be noted that Article 3A of the Institute
of International Law’s Zagreb Resolution”? specifically foresees and deals with
this possibility.

Finally, it should be noted that various UN forces have many different man-
dates. One can distinguish between peace-keeping (the maintenance of a
“peace” or at least an agreed cease-fire), peace-making (the imposition by force
ofa cease-fire on warring entities, whether these be those of different countries
or of governmental and irregular forces within a country), peace-building (the
reconstruction of a peaceful society in place of a previous war-torn one)?3 and,
perhaps, solely humanitarian tasks (those merely assisting other UN opera-
tions, such as UNHCR or UNICEF, or humanitarian NGOs in delivering and
distributing food, medicine, and other humanitarian aid). A force may be cre-
ated with a particular mandate and later have others imposed on it by the es-
tablishing organ. Though normally one distinguishes between Chapter VIA
and Chapter VII mandates, in practice this distinction may turn out to be
rather artificial,24 the important factor being the amount of force that is actu-
ally required by and available to the components of the operation to carry out
their assignment.?5

Thus, it is problematic to try to distinguish the status under IHL of a particu-
lar UN military operation, whether based on its name, its initial or even its cur-
rent mandate, or its establishment under different provisions of the UN
Charter. Similarly, in light of how the conflict in Yugoslavia changed from an
internal one within the SFRY to an international one as various constituent
Republics gained de facto and later recognized de jure independence, and to
some extent the similar developments within Bosnia itself, any conclusions as
to the status or responsibilities of a UN force under IHL depending on whether
a conflict is a civil or an international one is likely to lead to confusion and un-
certainty.26 Probably the only useful criterion is whether or not a force is actu-
ally engaged in combat.27

Application of IHL to UN Forces
Multilateral Treaties

The United Nations is not a party to any of the multilateral treaties in which
the principles and rules of IHL are expressed. Although for some time the

510


The Normative Framework of International Humanitarian Law

Subparagraph 2(e) of Article 8 is the counterpart of subparagraph 2(b) and
it applies customary law to armed conflicts not of an international character.
What follows is an extensive list that includes most of the provisions of Proto-
col II and overlaps in part with common Article 3. It also adds several specifics
that Protocol II does not contain, but which have come to be recognized as part
of customary law. Further, it is progressive when it comes to sexual violence in
(vi) and to the protection of children in (vii). It reads as follows:

(e) Other serious violations of the laws and customs applicable in armed
conflicts not of an international character, within the established framework of
international law, namely, any of the following acts:

(i) intentionally directing attacks against the civilian population as
such or against individual civilians not taking direct part in hostilities;

(ii) intentionally directing attacks against buildings, material,
medical units and transport, and personnel using the distinctive emblems of the
Geneva conventions in conformity with international law;

(iii) intentionally directing attacks against personnel, installations,
material, units or vehicles involved in a humanitarian assistance or peacekeeping
mission in accordance with the Charter of the United Nations, as long as they are
entitled to the protection given to civilians or civilian objects under the law of
armed conflict;

(iv) intentionally directing attacks against buildings dedicated to
religion, education, art, science or charitable purposes, historic monuments,
hospitals and places where the sick and wounded are collected, provided they are
not military objectives;

(v) pillaging a town or place, even when taken by assault;

(vi) committing rape, sexual slavery, enforced prostitution, forced
pregnancy, as defined in Article 7, paragraph 2, enforced sterilization, and any
other form of sexual violence also constituting a serious violation of Article 3
common to the four Geneva Conventions;

(vii) conscripting or enlisting children under the age of fifteen years into
armed forces or groups using them to participate actively in hostilities;

(viii)ordering the displacement of the civilian population for reasons
related to the conflict, unless the security of the civilians involved or imperative
military reasons so demand;

(ix) killing or wounding treacherously a combatant adversary;

(x) declaring that no quarter will be given;

(xi) subjecting persons who are in the power of another party to the
conflict to physical mutilation or to medical or scientific experiments of any kind
which are neither justified by the medical, dental or hospital treatment of the

20


Antecedents of the Rome Statute of the ICC Revisited

Conference to complete its work. This final rush contrasts strangely with the
slow and careful work that had been undertaken before 1992.

It also seems that the organization of the Conference itself was atypical. Rule
48 of the Rules of Procedure required the Conference to establish a Committee
of the Whole. Normal conference practice is for the committee of the whole to
examine the basic text, article by article, and to submit its conclusions to the
plenary conference. It is not clear that this was done in all cases. From some of
the statements made at the concluding session on July 17, 1998, it appears that
delegations had not been given a proper opportunity to express their views on
portions of the text before it was put to the final vote in the Conference. In ad-
dition, the long list of corrigenda submitted by the Secretariat, itself incomplete
as mentioned, confirms that the arrangements for verification of the concor-
dance of the six authentic language versions of the Convention were unsatis-
factory. The extraordinarily large number of typographical corrigenda
suggested by the Secretariat shows that the Drafting Committee (Rules of Pro-
cedure, Article 49) and the Secretariat were not given sufficient time to com-
plete their work properly. This adds up to a sorry story.

a

In 1996 the International Law Commission completed the first reading of its
draft articles on the topic of State responsibility. Article 24, paragraph 5, of the
Rome Statute lays down that no provision in the Statute relating to individual
criminal responsibility shall affect the responsibility of States under interna-
tional law.56 Likewise, Article 4 of the draft Code of Crimes against the Peace
and Security of Mankind also states that the fact that the Code provides for the
responsibility of individuals for crimes against the peace and security of man-
kind is without prejudice to any question of the responsibility of States under
international law. The Commentary to that article suggests that it is possible,
indeed likely, that an individual may commit a crime against the peace and se-
curity of mankind as an “agent of the State,” “on behalf of the State,” “in the
name of the State,” or even in a de facto relationship with the State, without
being invested with legal power. The State may remain responsible and be un-
able to exonerate itself from responsibility by invoking the prosecution or pun-
ishment of the individuals who committed the crime.>? This is pointing the way
to a complicated set of legal relationships between States, and perhaps also be-
tween courts and tribunals.

Article 19 of the draft articles on State responsibility as adopted on first reading
has a direct bearing on this. Article 19 in that form is headed “International

406


Making Law of War Treaties

The United States ratified the Treaty and Protocols I and II on March 24, 1995, with
reservations and understandings. Protocol III was forwarded to the Senate for its advice and
consent to ratification by President William J. Clinton on January 7, 1997. Message from the
President of the United States Transmitting Protocols to the 1980 Convention on Prohibitions
and Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be
Excessively Injurious or to Have Indiscriminate Effects: The Amended Protocol on Prohibitions
or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II or the
Amended Mines Protocol); the Protocol on Prohibitions or Restrictions on the Use of
Incendiary Weapons (Protocol III or the Incendiary Weapons Protocol); and the Protocol IV on
Blinding Laser Weapons (Protocol IV), Treaty Doc. 105-1, 105t Congress, 1** Session (January
7, 1997). Senate action remains pending.

6. 32 LL.M. 800, Treaty Doc. 103-21.

7. 35 I.L.M. 1206, Treaty Doc. 105-1. The amended Mines Protocol (Protocol II) and
Blinding Laser Protocol (Protocol IV) were forwarded to the Senate for its advice and consent to
ratification by President Clinton on January 7, 1997. See Message from the President, supra note
3. As indicated therein, Senate action remains pending.

8. 36 I.L.M. 1507. The Ottawa treaty was a project of the Canadian Ministry of Foreign
Affairs in which the Canadian military was not consulted. Canadian military skepticism with
regard to the Ottawa treaty is expressed in A. Brown, Mines: Soldiers’ Concerns, VANGUARD.
3, 4 (1998), at 14. U.S. antipersonnel land mine policy since Ottawa is summarized in R.
Barfield, Antipersonnel Land Mines Policy Law and Policy, THE ARMY LAWYER (December
1998), at 22.

9. A/Conf.183/9 July 17, 1998).

10. 249 UNTS 240, Schindler & Toman, supra note 1, at 1047. The 1954 Hague Convention
was submitted by President William J. Clinton to the United States Senate for its advice and
consent to ratification on January 6, 1999; Message from the President of the United States
Transmitting the Hague Convention for the Protection of Cultural Property in the Event of
Armed Conflict (the Convention) and, for Accession, the Hague Protocol, Concluded on May
14, 1954, and Entered into Force on August 7, 1956, with Accompanying Report from the
Department of State on the Convention and the Hague Protocol, 100th Congress, 15t Session,
Treaty Doc. 106-1. Senate action is pending. The history of the delayed route to U.S. ratification,
is contained in the author’s Protection of Cultural Property from the Effects of War in M. Phelan,
ed., THE LAW OF CULTURAL PROPERTY AND NATURAL HERITAGE (1998), chapter 3.

11. First Review Conference Final Declaration, CCW/CONF.I/14 (Part I), May 6, 1996, at
33. The Final Declaration (p. 38) states that “The Conference decides ... to convene a further
Conference five years following the entry into force of the amendments adopted at the First
Review Conference, but in any case not later than 2001, with preparatory expert meetings
starting as early as 2000, if necessary.” The Final Declaration notes two potential areas for
consideration at the Second Review Conference: naval mines and small-caliber weapons and
ammunition. The small-caliber weapons and ammunition issue was fully considered during the
original conference that promulgated the UNCCW and its first three protocols (1978-1980),
without resolution. A Swiss proposal during the 1994-1996 First Review Conference was
withdrawn in the face of a general lack of support, and strong opposition by a number of
delegations, including the United States. A Swedish proposal on naval mines was deferred to the
Second Review Conference due to lack of time. Personal knowledge of the author, who was a
member of the U.S. delegation to the original UNCCW conference (1978-1980) and the First
Review Conference (1994-1996), and the U.S. negotiator for small arms issues at each.

368


The Initiation, Suspension, and Termination of War

under duress by the victim of aggression. But one must be mindful of the fact
that such a treaty is not always confined to undertakings advantageous to the
aggressor. Indeed, the most momentous clause in the text will presumably be
the one terminating the war. If the whole juridical slate is swept clean by nul-
lity, the section devoted to ending the war would also be wiped off. Is it to be
understood that the former belligerents are put again on a war footing? The an-
swer, as furnished by Article 43 of the Vienna Convention, is that the invalidity
of a treaty does not impair duties embodied therein if these are independently
binding on the parties by virtue of general international law.®+ All States must
comply with the contemporary prohibition of the use of inter-State force, and
the abrogation of a particular treaty of peace does not alter this basic position.

Article 52 refers to a treaty procured by unlawful use or threat of force as
“void.” The expression is expounded by Article 69(1), which states that the
“provisions of a void treaty have no legal force.”6 The concept underlying Ar-
ticle 52 is one of “absolute nullity.”® It is true that a party invoking a ground for
impeaching the validity of a treaty must take certain steps enumerated in Arti-
cle 65.7 The obligation to observe the procedure set out in Article 65 might
suggest that, should the aggrieved party (for reasons of its own) refrain from
contesting the validity of the treaty, nullification would not take place.8 How-
ever, if that were the case, the instrument would really be voidable rather than
void. If a treaty of peace dictated by an aggressor is genuinely void, it must be
tainted by nullity automatically and ab initio. Therefore, any competent forum
should be authorized to recognize the treaty as void, even if no attempt to in-
voke invalidity has been made by the State directly concerned.®?

(b) Armistice Agreements

Under orthodox international law, an armistice was construed as an inter-
lude in the fighting, interchangeable in substance with a truce or a cease-fire
(see infra, section III). It is characteristic that Articles 36 to 41 of the Hague
Regulations, annexed to Hague Convention (II) of 1899 and (IV) of 1907 Re-
specting the Laws and Customs of War on Land, employ the expression “armi-
stice” when the subject under discussion is the suspension of hostilities.”° By
contrast, in the current practice of States, an armistice chiefly denotes a termi-
nation of hostilities, completely divesting the parties of the right to renew mili-
tary operations under any circumstances whatever. An armistice of this nature
puts an end to the war, and does not merely suspend the combat.

The transformation undergone by “armistice” as a legal term of art had its
origins in the armistices which brought about the termination of World War
1.7! A close look at the most famous armistice—that of November 11, 1918,

140


Bin Cheng

Summary and Conclusions

1. The 1967 Space Treaty remains very close to the United States’ policy on
space first announced by President Eisenhower in 1960.

2. The original United States intention as regards the celestial bodies was
that there should be no “warlike” activities on them, which may not mean that
they should be completely demilitarised.

3. Popular opinion and a number of governments were clamouring for the
whole of outer space, including all the celestial bodies, to be preserved for ex-
clusively peaceful, i.e., non-military, exploration and use.

4. The two superpowers evidently did not wish to be seen as opposing this
wish, while seeking ways of keeping all options open, in view of the obvious im-
portance of outer space for military purposes. The Soviets, well used to con-
cealing the true nature of practically everything they did, simply carried on
with their practice of dissimulating all their military activities in space as
non-military, and thus peaceful. The United States negotiators, instead, propa-
gated the novel idea that “peaceful” meant merely “non-aggressive” and not
“non-military.” Every effort was made not to disturb the popular illusion that
everyone was using outer space, including the moon and the other celestial
bodies, only for peaceful purposes.

5. In the 1967 Space Treaty, the only article that concerns the military use
of the whole of outer space is Article IV. Neither the Preamble nor Articles
1(1), IX or XI of the Treaty affect the contracting States’ freedom to use outer
space for military purposes, though they all intend to promote its peaceful use.
Although the Space Treaty makes much of international co-operation in the
peaceful uses of outer space, there is no provision, contrary to a very prevalent
misconception, anywhere in the entire Treaty which reserves the whole of
outer space exclusively for peaceful use or exploration.

6. Only the moon and the other celestial bodies have been so reserved in
Article IV (2), which does not apply to the void in between—what I have called
“the outer void space.” The first sentence of Article IV(2), in providing that
the “moon and other celestial bodies shall be used . . . exclusively for peaceful
purposes,” has the effect of completely demilitarising all the celestial bodies.

7. Notwithstanding the stance taken by the United States, the word “peace-
ful” in the Treaty as a whole, and in its Article IV(2) in particular, by all the
tules of treaty interpretation, retains its ordinary and well-established meaning
of “non-military.” To argue that it means “non-aggressive” leads to illogical,
unreasonable, and even absurd consequences.

107


Charter of the United Nations as a World Constitution

of the number of States members of the United Nations and the variety of situ-
ations that call for more detailed regulation in the management of interna-
tional affairs. The main object of the essay is to emphasise the extent to which
the complex legal structures of the Charter and the law generated by the orga-
nization are in fact providing constitutional guidance in the normative evalua-
tion of conflicts over interests and values which global integration is bound to
produce and must resolve.

The constitutionalist perspective is about the establishment of important,
albeit limited, supranational competencies and the adjustment of national le-
gal orders to guidance and direction from the organized international commu-
nity. To consider the Charter of the United Nations as the constitution of the
international community tout court marks a significant step towards centraliza-
tion at the expense of classical sovereignty in international society. Consti-
tutionalism is also about democratic governance and respect for individual
tights. I hope to show that the constitutionalization of the principles of the
Charter is fully in line with the inclusionary ideals embodied in democratic
constitutions and can thus be understood as complementary features of na-
tional constitutional traditions.!

What needs to be assessed is the status of the Charter in the system of inter-
national law, that is, whether it is a mere treaty, albeit with universal scope and
near-universal membership, simply restating principles of customary interna-
tional law, or whether this “Charte Octroyée” is recognized as a constitution in-
creasingly influential in the active creation and consolidation of a universal
legal community.? The object of my remarks is to encourage discussion of the
latter perspective and, importantly, its implications.

In order to identify the major principles that ensure the existence of differ-
ent States and the compatibility of the objectives of those States with the obli-
gations they have assumed, I will start with a brief overview of the most
relevant of the Charter’s 111 articles.

The Charter of the United Nations

The Charter is today a combination of different sets of provisions. A number
of them state general principles now largely accepted by States and by doctrine
as principles valid erga omnes, some of which have a jus cogens nature. Other
provisions have a more “technical” value, their task being to shape the consti-
tutional framework of an international organization empowered with the po-
tential to play a major, sometimes overriding, role in the international
community.

264


Outer Void Space Not Reserved for Exclusively Peaceful Use

(f) the joint study of an inspection system designed to ensure that the
sending of objects through outer space shall be exclusively for peaceful and
scientific purposes;

A year later, on December 13, 1958, the General Assembly, in another reso-
lution,} reiterated “the common interest of mankind in outer space and... that
it is the common aim that outer space should be used for peaceful purposes
only.” However, it was clear at the same time that the prime motive and incen-
tive of the “space” Powers in reaching outer space were obviously military.

The diplomats of the Soviet Union and of the United States, at the time the
only countries with space capability, consequently were faced with the seem-
ingly impossible task of how not to appear to defy an almost universal desire for
the exclusively peaceful uses of outer space, while preserving their countries’
need to explore and exploit all the military potentials of outer space. For the
Soviet Union, with its closed society and authoritarian regime, it was relatively
simple. It had only to lie about its military activities, by either denying their ex-
istence or labelling them as scientific (as it in fact did, for example, for a consid-
erable time with its own reconnaissance satellites), while denouncing the U.S.
ones as unlawful. For the United States, there obviously would be practical dif-
ficulties in following such a course. However, its diplomats, assisted, no doubt
ably, by highly effective lawyers, also succeeded in minimal time in squaring the
circle by simply re-inventing the word “peaceful” and changing its meaning
from “non-military,” to “non-aggressive.”4

It thus became possible to create a highly misleading impression that all were
agreed that the whole of outer space was to be used exclusively for peaceful
purposes, while the space Powers carried on with their military ambitions in
outer space. This impression was somehow carried over into the 1967 Space
Treaty, the first and the most important treaty relating to outer space con-
cluded under the auspices of the United Nations, and one intended to establish
the international legal framework for man’s exploration and use of outer
space. Since, by its nature and because of the wide acceptance of most, if not
necessarily all, of the provisions of the Space Treaty as rules of general interna-
tional law by contracting and non-contracting parties to the Treaty alike, the
myth has also grown up that outer space, including the moon and other celes-
tial bodies, has been reserved for exploration and use for exclusively peaceful
purposes only, not only under the Space Treaty but also under general interna-
tional law. The present paper is a re-examination of the 1967 Space Treaty,

82


M. Cherif Bassiouni

To the common law jurist this Romanist/Civilist/Germanic conception of
overlap may appear highly doctrinal. Instead, it is simply the result of a positiv-
ist legal approach which relies on codification and on the strict interpretation
of the law by the judge without the existence of a jury.!39 These legal systems
require that in the case where the same facts can be the basis of a conviction for
more than one crime, or, in the case of the concours idéal d’infraction, that the
conviction be only for that specific crimes which the court ultimately finds
have been committed and where that is factually impossible, then the Court is
to decide whether the more serious or less serious of the crimes is to apply, de-
pending upon the social interest protected. This approach essentially means
that there will be only one sentence for the crime, which can of course be sub-
ject to mitigation or aggravation.

In the three crimes in question, if all else is equal, the distinguishing factor is
the nature of the protected interests, or what is called in the French legal sys-
tem and others in the Romanist/Civilist tradition, le bien social protégé.!4° Thus,
in genocide the protected social interest is the racial, ethnic, religious, or na-
tional group, irrespective of the degree to which the plan was carried out or ac-
complished to “eliminate that group in whole or in part.” Whereas the
protected social interest in crimes against humanity is the combination of a
“widespread or systematic” harm committed against “any civilian population”
in pursuit of a State “policy” or the policy of a non-State-actor. The policy ele-
ment in crimes against humanity is the international jurisdictional element
that distinguishes between large scale crimes which, even though committed
by State agents, remain part of domestic criminal jurisdiction and the category
of an international crime called crimes against humanity. Furthermore, the

_distinguishing legal element between genocide and crimes against humanity is
the requirement of a specific intent in genocide which is the “intent to elimi-
nate in all or in part,” while crimes against humanity do not necessarily require
specific intent as to the ultimate goal pursued, carried out or executed in pursu-
ance of the policy manifested by the “widespread or systematic” commission of
certain described acts against any “civilian population.” Thus, general intent is
sufficient for crimes against humanity.

War crimes do not require a policy, either by a State or non-State-actor; they
also do not necessarily require specific intent. Most war crimes require knowl-
edge as the requisite mental element, while, in some cases, recklessness might
suffice. War crimes is a category of international crimes that prohibit harm
from being perpetrated on certain protected persons and targets against whom
harmful conduct will expose the perpetrator to individual criminal responsibil-
ity. Furthermore, what distinguishes war crimes from the other two crimes of

23


Antecedents of the Rome Statute of the ICC Revisited

decision. In 1977 the International Law Commission raised the question of
renewing consideration of the Draft Code. In Resolution 33/97, December 16,
1978, the General Assembly requested the Secretary-General to ascertain
views of Member States and relevant intergovernmental organizations, a re-
quest that was reiterated in Resolution 35/97, December 4, 1980. In Resolution
36/106, December 10, 1981, the General Assembly invited the International
Law Commission to resume its work on that topic. The International Law
Commission recommenced its work in 1982. In 1996 it adopted what is now
named the Draft Code of Crimes against the Peace and Security of Mankind,
and submitted it to the General Assembly.*!

In Resolution 44/39, December 4, 1989, dealing with trafficking in narcotics
across national frontiers, the General Assembly invited the International Law
Commission, when considering the Draft Code, to address the question of es-
tablishing an international criminal court or other international criminal trial
mechanism with jurisdiction over persons alleged to have committed crimes
that may be covered under such a code, including persons engaged in illicit
trafficking in narcotic drugs across national frontiers. This showed that politi-
cal thinking was beginning to envisage a wider role for the proposed interna-
tional criminal jurisdiction than for the Genocide or Apartheid Conventions or
to enforce the law applicable in times of armed conflict. In 1992 the Commis-
sion included a detailed survey of the question in its examination of the Draft
Code.42

One other major event of this period, formally outside the United Nations,
was the Diplomatic Conference on the Reaffirmation and Development of In-
ternational Humanitarian Law Applicable in Armed Conflicts. That Confer-
ence, in session from 1974 to 1977, was, as is traditional for the Geneva
Conventions, convened and organized by the Swiss Government to examine
and adopt texts based on ‘preparatory work undertaken by the International
Committee of the Red Cross. That Conference completed its work with the
adoption of two instruments, formally entitled Protocols Additional to the
Geneva Conventions of 12 August, 1949. One related to the Protection of Vic-
tims of International Armed Conflicts (Protocol I) and the second to the Pro-
tection of Victims of Non-international Armed Conflicts (Protocol II). Those
two instruments are important additions to and updates of the 1949 Geneva
Conventions. They include very carefully drafted and reasonably comprehen-
sive listings of what those instruments classify as breaches or grave breaches, al-
though some of them are controversial and not universally accepted. Together
with the Geneva Conventions of 1949 on the protection of war victims, they
completed the process of establishing the rules of international humanitarian

400