International humanitarian law and its implementation by the Court

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Book Chapter

Reference

International humanitarian law and its implementation by the Court

KOLB, Robert

KOLB, Robert. International humanitarian law and its implementation by the Court. In: Doria, José, Gasser Hans-Peter & Bassiouni, M. Cherif. The legal regime of the International Criminal Court : Essays in honour of Professor Igor Blishchenko . Leiden : M. Nijhoff, 2009. p. 1015-1038

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http://archive-ouverte.unige.ch/unige:45014

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Chapter44

International Humanitarian Law and Its Implementation by the Court

Robert Kolb

I. Introduction

1he Statute of the ICC entered in force too recently to enable us to provide any stock taking of any Court's action in the field of international humanitarian law.

Th us, after a short review of the Court's powcrs ratione materiae in that field, under Article 8 of the Statu te, it may be appropria te to focus on the acquis the two ad hoc tribunals leave to theiCC.The jurisprudence of the ICTY and the ICTR are indeed very rich, and on sorne points impressively progressive, or even revolutionary, as far as international humanitarian law is concerned. The main contribution of the two tribunals was to reaffirm and strengthen the obligations of that branch of law.1hus, the tribunals often set out the law by referring to the Hague Conventions, the Geneva Conventions or the Additional Protocols of I97J, thereby confirming their controlling nature and often also their customary status. That already is a contribution of sorne importance, especially in fields such as the attacks on civilian populations,' where the rules of Protocol I (r977) are actually put un der strain, or in the definition of proper treatment of detained persons,' an are a equally facing attack. However, there are sorne are as where the ad hoc tribunals wen t further.They progressively developed the law, as any jurisprudence is called to do. The importance of jurisprudence in the development of the law need hardly be stressed. It has a constitutive role in areas such as international criminallaw where the law is uncertain on many points and where previous decisions were rendered on the basis of differing legislation and legal systems.

Looked at closely, the jurisprudence has made four important contributions to the development of humanitarian law. Sorne of these developments are true "constitutional" developments of the law. First, there is the progressive merger between the law of international and non-international armed conflicts (of which Article 8 of the ICC Statu te is an offspring). Second, there is the definition of internationalized armed conflicts through sorne form of foreign control. Third, the definition of protected civilians under Article 4 of the fourth Geneva Convention (r949) must be mentioned. Fourth, a most elabora te doctrine of reprisais, especially against civilians, has been pïesentcd, laying an ahnost total ban on them. _A __ s to sm aller contributions,

Sec c.g. the Galié case (2oo3), ICTY, § r3ff.

See e.g. the Dela lié ( éelebiéi) case (1998), ICTY, § 245ff, 267ff; or the Kordié case (2001), ICTY, § 237ff, 273ff.

joJé Doria et al. (ed.r.}, 1he Legal Regime of the !CC: Essays in Honour of Prof !.P. Blishchenko

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out of the innumerable, two examples shall be discussed. First, the elaboration on the principles governing fm·ced labor of detained persans. Second, the question of the existence (or not) of a gap between Geneva Conventions III and IV: if a person is not protectcd under Conventions I to III, does he automatically fall under the protection of Convention IV? These examples are taken as a sort of pars pro toto; many other contributions cannot be discussed here for reas ons of space.

IL International Criminal Court and War Crimes:

Article 8 of the ICC Statu tel

The provisions on war crimes are based on a negative definition. They are legally not more than the other sidc of the coin of the law of armed conflict; they are secondary or derived rulcs.⁴Indeed, since the XIXth century, a war crime is defined as a violation of the laws and customs of war.⁵1here is th us no completely autonomous definition of war crimes in international law: one has rather to look to the rules as they exist in the law of armed conflict, i.e. to the positive side of the coin. The serions breach of any substantive rule of that law (having a certain importance) gives rise to the qualification as war crime. Article 8 of the ICC Statu te con tains a list of such war crimes.

This is not the place to review in detail Article 8 off the Statu te. That is a huge provision indeed, on which the present commentator spent one year of work at the ICRC. Sorne general remarks must suffi ce; for the rest, a renvoi to the commcntaries and the literature indicated there seems appropriate.

A. Exhaustiveness of the War Crimes Listed

r. Article 8 of the ICC Statu te, under the title of "war crimes", is the most elabora te and comprehensive provision ever drafted as an attempt to capture in a list the most variegated types of violations of the laws of customs of war. It comprises 50 headings, in which conduct contrary to the law of warfare is listed, for international and non- international conflicts. The types of acts prohibited can be grouped in certain categories: (r) violence against !ife and limb of protected persans (e.g. Article 8, § z, letter a, i- iii); (z) violation of protections and immunities accorded under the Geneva Law (e.g. Article 8, § 2, letter a, v-vi); (3) unlawful methods and means of warfare un der Sec generally: M. Bothe, "War Crimes, Commentary to Article 8 of the ICC Statu te", in: A, Cassese 1 P. Gaeta 1 J. R.Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, vol. I, Oxford, 2002, p. 379ff; O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, Baden-Baden, 1999, p. r73ff. On the elements of crimes, see also K. Diirmann (with the collaboration of L. Doswald-Beek and R. Kolb), Elements of War Crimes und er the Rome Statute of the International Criminal Court, Cambridge, 2003 (it deals specificaily with the war crimes provision).

4 That branch of the law is today generally called international humanitarian law, not always propcrly. On these terminological questions, sec R. Kolb, lus in bello, Précis de droit des conflits armés, Basle/Brussels, 2003, p. 9ff. On the dialectic between international humanitarian law and the war crimes law, sec also Bothe, op. cit., p. 38r.

1hat is no more than an umbrella term, since it is not possible to list all the possible violations of the law of armed conflict in a sufficiently short compass. The Hague Conference of 1899 coined the tcrm: its fourth Convention bore the title 'Convention respccting the Laws and Customs ofWar'.

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International Humanitarian Law and its Implementation by the Court ror7 the Hague Law in general (e.g. Article 8, § 2, letter b, i ff); as a particular category of the Hague law, prohibition of the use of unlawful weapons (e.g. Article 8, § 2, letter b,xvii ff).

However elabora te, the list is not exhaustive. This lack of completeness has two sides, one being static, the second being dynamic. From the static point of view, i.e.

from the de lege lata perspective, the Conference made mu ch efforts to be as compr·e- hensive as possible when it laid down its list. Howcver, it could not reach absolute completeness more than any human endeavor can reach perfection. 1hus, certain min or criminal infractions were forgotten: an exarnple is the scuttling of ships that have surrendered; such a scuttling has given rise to convictions in the post-Word War II casc-law.⁶

Moreover, th cre is the dynamic, or de lege ferenda perspective. As war crimes do not constitute anything more than the negative side (or the secondary rules) of the law of armed conflict, the evolution of the last must also entai! sorne difference in the first :th en, either the category of war crimes is extended, new crimes being added; or it is restricted, sorne crimes being deleted. This evolution cannot be foreseen at the moment of the drafting of a treaty. Consequent! y, the list drawn up cannat lay any daim of completeness as to the future.

2. Thus, the list of Article 8 is not to be - and cannat be - regarded as a legally exhaustive enumeration of war crimes. However, the list is exhaustive as far as the jurisdiction of the ICC is concerned since the ICC has jurisdiction only over the listed crimes. In orcier to extend its jurisdiction to other war crimes, they have to be added to the list of Article 8 by a revision of the treaty. Outside this jurisdictional aspect, the controlling factor in determining war crimes is still mainly customary international law:7 if a conduct cornes to be prohibited under general customary law of armed conflict, this will give rise to a war crime under international law. And if it is added to the list of Article 8, the ICC may assume jurisdiction over it. The ICC Statu te is th us characterized by a public orcier approach in attempting to limit strictly the jurisdic- 6 See the Scuttled U-Boats Case, in: United Nations War Crimes Commission,Law Reports

ofTrials ofWar Criminals, vol. I, London, 1947, p. ssff.

7 As to a specifie context, treaty law suffices to overcome the hurdle of the nullum crimen principle. The nullum crimen requirement is satisfied as soon as the criminal prohibition applied at the time of commission of the offence(s) and at the place where such offence(s) were committed. To that cxtent, a treaty applicable on the State on whose terri tory the acts wcrc committed is sufficient to trigger criminal responsibility, if it was in force at the relevant time and if it was properly inserted within the municipal legal order. Th us, the ratification by Yugoslavia of the two Additional Protocols of 1977 to the Geneva Conventions of 1949, and the Agreement concluded among the warring parties of the Bosnian War under the auspices of the ICRC (by which a series of obligations under the law of armed conflicts were accepted), are instruments sufficient to found a criminalliability as far as the nullum crimen requirement is concerned. See R. Kolb, "The Jurisprudence of the Yugoslav and Rwandan Criminal Tribunals on 1l1eir Jurisdiction and on International Crimes", BYIL, vol. JI, zooo, p. 26off. Contrary to the ad hoc tribu- nais, however, the ICC has a universal scope of action. It is therefore normal that customary law is of great er importance for it th an for a tribunal with localjurisdiction. ]his do cs not mean, howcvcr, that in face of a specifie case, which is necessarily locally limited, special sources may not suffice: they may overcome the nul!um crimen hurdle, but not ncces- sarily found the jurisdiction of the court. Jurisdiction and nullum cri men requircments are linked, but they are at the same timc quite distinct.

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ti on of the court to a set of listed crimes. It is centered upon the idea of a "code" of criminallaw. It is fundamental to understand that the nullum crimen sine lege l.praevia) principle did not campel su ch an approach. rihe nullum crimen principle would have been satisfied if the crimes to be punished were part of customary international law or of treaties applicable to the terri tory of the parties involved. Such is the position of the ad hoc tribunals, as is confirmed by their jurisprudence. The Statute thus aimed at more than simply to satisf)ring the nullum crimen principle. It added toit the idea of a codification of criminal international law, whence the idea ofjurisdictional exhaustiveness. Conversely, the evolution of criminallaw may now be heavily influenced by that

"code", which can prove highly uscful in the process of municipal law legislation.

B. Ular Crimes in International and in Interna! Armed Conflicts

r. If one compares the list of war crimes applicable in international and in non-international armed conflicts, one finds that a distinction is maintained between the two types of conflict and that the crimes committed in the context of interna! conflicts are quite significantly more limited: only r6 counts out of 50 refer to internai armed conflicts. As we shall see, one of the major contributions of the ICTY bas been the progressive interrelation of the two categories of armed conflicts from the point of view of criminallaw (this course retro-acting evidently on the substantive humanitarian law). The ICTY held since its very beginnings that war crimes could be committed also in internai armed conflicts;' and that was a revolutionary novelty. Moreover, it held that the war crimes applicable in interna! armed conflicts should as much as possible be the same as those applicable in international armed conflict.9 The reason behind that statement is one of humanitarian nature: "what is inhumane and consequently proscribed in international wars, cannot but be inhumane and inadmissible in civil strife". w In one word: uhi eadem ratio, idem ius. However, th at is precis ely wh at States had up to the r99o's resisted strenuously to do, when maintaining inflexibly the distinction between the law ofinternational and of non-international armed conflicts.

The determination of the ICTY is th us a creative piece of jurisprudence.

2. Where does the ICC Statute stand from that point of view? It is easy to respond that it stands somewhere in between the old law and the new law. The old law plainly limited war crimes to international armed conflicts. But it contained at

!east sorne substantive rules on interna! armed conflicts in the Second Additional Protocol of r977, whereupon sorne criminal responsibility could be engrafted following the Nuremberg logic on 'men and abstract entities'." The new law, still de lege ftrenda, seems largely to attempt a progressive merger of the rules of conduct under See T. Meron, "International Criminalization of Interna! Atrocities", A]IL, vol. 89, 1995, p. 554ff.

9 With the exception of sorne rules which by their very nature cannat apply to pure! y interna! armed conflicts: c.g. the provisions on occupied territory. However, in mixed internai and international armcd conflicts, even such rulcs could apply.

ro See Tadié (Jurisdiction, 1995), § n9.

rr See the celebrated passage of the IMT-judgment: "[C]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced" (see A]IL, vol.

41,1947, p. 220).

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International Humanitarian Law and its Implementation by the Court IOI9 the two branches of the law, the law of international armed confiicts and the law on non-international armed confiicts, except for certain areas, such as prisoners of war (combatant status) or belligerent occupation. As already stated the ICC Statu te takes a middle ground position.

3· The provisions on non-international armed confiicts in the Statute min·or those contained under the heading of international armed conflicts. As to the other provisions, i.e. the provisions to be found only under the heading of international armed confiicts, their absence in the law ofinternal armed confiicts is to be explained either by the fact that they can apply by their very content only to international armed conflicts;" or, convers ely, on a legislative timidity, preferring to exclude a criminalization which has not as yet reached a sufficient level of political acceptance.'³The greatest loophole left in the law of non-international armed conflicts is the one on prohibited weapons: there, the States of the Rome Conference did not fee! the cour- age to operate the transfer from international to interna! armed conflicts.

4· There is one further difference as far as the provisions of Additional Protocol II of I977 arc concerned.The Protocollimits its substantive obligations to the dealings between the governmental armed forces and the rebels. It does not caver the relations between different groups of re bels, even if they fight each other." Article 8 of the ICC Statu te, in § 2, letter f, disposes different! y of that matter by the words

"protracted armed confiict between governmental authorities and organized groups or between such groups" (emphasis added).Thus, a major and unreasonable restriction of Protocol II has been overcome, at least as far as criminal law is concerned. The reach of the law has been broadened to the dealings among re bel groups.

It may be appropria te at this place to enter into the major developments in the field of international humanitarian law of these last years, as catalyzed by the ad hoc tri- bunals, and especially by the ICTY. At the very first place, wc must return on the question of progressive interrelation of the two main branches of the law, that of international armed confiicts and that of non-international armed conflicts, since the point is of capital importance.

III.The Progressive Interrelation of the Law oflnternational Armed Conflict and ofNon-International Armed Conflict's

r. The traditional law of warfare, as it existed for centuries in the era of so-called classical international law, was a law relating to armed confiicts between States. It

12 See e.g. Article 8, § 2, letter b, viii, rcferring to occupied terri tory and the transfcr of pop- ulation across the international boundary; or ibid., no. xiv, dealing with the rig·ht to fair trial of the nationals of the hostile party.

13 See especially the provisions on prohibitcd weapons: Article 8, § 2, letter b, nos. xvii ff.

Sec contra: Tadié (Jurisdiction, 1995), § 124, referring to chemical weapons.

14 See Article 1(1) of Additional Protocol II.

15 On this question, see e.g. L. Moir, Ihe Law oflntemal Armed Conftict, Cambridge, 2002, p. ¹33ff.

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was devoted only to international arrned conflicts with their aspects ofland and sca warfare. The law was for a long tirnc centcred on the powers and duties of the bel- ligerents. A huge part of it were the rules of sea warfare and ncutrality, sin ce the sca traffic was at those times essential for the wealth and strength of nations. In any event, the law was State-centered; it was functional to distributing rationally the respective powers betwcen the parties to the confiict, including their relations with the non-parties (neutrals). The hurnanitarian idea was larg-ely absent in it, albeit it was not cornpletely unknown. As is known, it is only in the XIX th century, through the Red Cross Movement of Henry Dunant that the hurnanitarian bedrock was brought back into the law.'⁶Thenceforward, it shared the place with the functional view of war, both being the constitutive foundations of the law of warfare. However, as the hurnanitarian principle ernerged and strengthened itself, the pull to give sorne international regulation also to internai armed confiicts was inescapable.

The basic mornenturn for this pull is the simple idea that if the law of warfare is designed (at !east also) to relieve hurnan suffering, how then could there be a total discrimination according to the nature of the conflict? Do human beings not suffer cqually in confiicts which take place within the borders of aState? And hcnce, must there not be sorne regulation to alleviate this suffering? One understands that sorne effort was made in said direction. Thus, when the Arnerican Civil War broke out, Professor Francis Lieber drafted instructions for the Governrnent of Arrnies of the United States in the Field; these rules were eventually prornulgated as General Orders nurnber roo by President Lincoln on 24 April r863. '7 They regulated the conduct of the federal arrny in the field. Their content was heavily drawing on the law of international armcd confiict. The need to extend rules of warfare to internai conflicts intensified in the XXth century in episodes such as the Russian Civil War, the Spanish Civil War and the innurnerous civil wars with external intervention taking place during the cold war era.

2. The extension of principles from international arrned confiicts to internai arrned confiicts, however, proved difficult and burdensorne. The reason is that the States, who are the ultimate guardians of the state of the law, were unwilling to allow such extension and were but little rnoved by the lofty considerations of hurnan- ity. States were ready to accept that rules must exist for international confiicts. The matter of such international confiicts is delicate, truc, since the pointis often fighting for survival ; but the phenomenon of war is undoubtedly international and therefore it is na tura! that there must be sorne rules, which are at the advantage of any belligerent and whose breach in any event always rernains a factual option. As for internai confiicts things present themselves very differently. For the territorial State where arrned struggle breaks out between its regular forces and rebels, the rebels rernain its own citizens breaking its constitutional and criminallaw order; they are seen as nothing more that bandits or law-breakers, whatever their political designs. In such a context, the State is ali too ready to shield the matter by clairning strict respect of the principle prohibiting intervention in internai affairs. It will shy away most strongly r6 Sec P. Baissier, Histoire du Comité interantional de la Croix-Rouge, De Solférino à Tsoushima,

Genève, 1978, p. 7ff.

r7 See D. Schindlcr 1]. Toman, 1!Je Law

of

Armed Con.fiicts, 4th ed., Leiden 1 Boston, 2004, p. Jff.

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International J-Iumanitarian Law and its Implementation by the Court rozr

from any international regulation and droit de regard, which can only strengthcn the cause of the re bels by giving them sorne international political status and allowing their political friends from the outside to put pressure on the government.

One therefore understands that the Russian civil war gave rise only to agreed and sporadic (but important) action undertaken by the ICRC.'⁸1he Spanish Civil war saw a vast action by the ICRC,'⁹being again wholly based on special agreements, since there were no conventional rights on which to draw. After the Second World War, in recollection of the horrendous Spanish Civil War, Article 3, common to the four Geneva Conventions, was introduced in order to safeguard a minimum of humanity in any type of armed conflict, and particularly in non-international armed conflicts.1hat was the essential breakthrough of the humanitarian principle. Albeit modcst in its proportions, Common Article 3 was a basis for innumerable actions in the field of non-international armed conflicts which have become so frequent in the years following the war.The door had been opened; the point was now to unfold the scope of application of the principle of humanity, as enshrined in Common Article 3, and as derived, ultimately, from the Martens clause.

3· During the cold war period, there were few international armed conflicts and a myriad of non-international armed conflicts in which foreign powers, especially the two superpowers, intervened in one way or another (wars by proxy). Thus, the concept of purely interna! wars progressively disappeared from the practice. In effect, al! conflicts became in sorne way mixed, interna! and international. The law there- fore proved somewhat unsatisfactory and artificial when it drew its summa divisio between international and non-international armed conflicts. In order to bring it better in tune with the realities, the concepts of internationalized (or mixed) armed conflict was created. It was considered that a series of deviees could legally make out of an interna! armed conflict an international armed conflict, either in whole, or at

!east in part. Such deviees were: (r) civil wars with recognition ofbelligerence;w (z) civil wars with a succeeded secession; (3) and civil wars with sorne foreign intervention, especially by troops of a foreign power fighting on the spot." The third category was by large the most important one. It brought about terrible complications in determining the proper scope of application of the two branches of the law. In an interna! armed conflict where there was external implication, the law required a splitting-up perspective, taking into consideration the forces involved in a particular act of fighting for determining the law applicable to them." Therefore, for example, different sets of law are a pp lied, in the same conflict, between:

r8 See F. Bugnion, Le Comité international de la Croix-Rouge et la protection des victimes de la guerre, Geneva, r986, p. 284ff, with further references. See also A. Durand, Histoire du Comité international de !a Croix-Rouge) De Sarajevo à 1-liroshima, Geneva, 1978, p. 78ss, r6off.

19 Bugnion, op. cit., p. 307ff; Durand, op. cit., p. 264ff.

20 However, this deviee fel! into obsolescence in the XX th century, where it was hardly used any more.

zr Or if forces of an international organization intervene, as did the United Nations Forces in the Congo conflict (r96o-2). On the wholc question, sec e.g. R. Kolb, Jus in bello, P1·écis de droit des conflits armés, Basle/Brussels, 2003, p.

ssff

22 See e.g. the autbority of tbe ICJ, case (r986), § 2r9.

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the Government and the rebels: Law of non-international armed conflicts;

an intervening foreign State and another intervening foreign State, fighting for the other side: Law of international armed conflicts;

the Government and an intervening foreign State (fighting on the side of the re bels): Law of international armed conflicts;

an intervening State (for the Government) and the re bels: Law of non-international armed conflict;

if an international organization intervenes, the law to be applied to its dealings with the rebels is controversial; if there is fight with the government, the Law of international armed conflict would apply.

if more than one rebel group fights each other, the Law of non-international armed conflict applies (but not Additional protocol II of 1977), unless one or both of these groups are under the overall control of a foreign power;

if there is an internationally non-recognized boundary, or a de facto boundary, the situation is further complicated. See e.g. the situation in Vietnam.'l if there are special agreements among sorne parties, the law is modified among them along the !ines of the agreements, unless these agreements are derogatory of rights held under the Geneva Conventions;

if the different parties to an armed conflict have not ratified the same conventions, there is further complication. The matter of customary law then cornes to the fore, but one k:nows how complex its specifie determination in the law of armed conflicts has been;

to the extent the conflict merges into a big and wholly interrelated fighting, it is claimed that foreign intervention may internationalize it en bloc; but the exact threshold of such internationalization is not explained generally, as it is extremely circumstantial.

Such a picture may suflice to grasp the complexities of the matter. Moreover, one sees how unsatisfactory it may be to apply one set of the law to sorne fighters while at the same time denying it to others, according to their respective formal status.

This situation gave rise to such conundrums and rendered so diflicult the application of international humanitarian law (one may just quote the Vietnam prec- edent) that since the 197o's daims to abandon the distinction between the two branches of the law and to merge them into a single who le were voiced. Such voices came not only from legal writings; they came also from States. Thus, the ICRC, but also Norway, during the Conference leading to the adoption of the two Additional Protocols of 1977, proposed a merger of the law of international and non-international armed conflicts.'⁴However, these proposals were rejected.

4· It was only in the 199o's that the tendency to merge the rules obtained new lymph. The practical guide to that achievement were thenceforward the two essential arguments (i) of achieving a simplification of the law and of the threshold of its application, and (ii) of obtaining a further humanization ofinternal conflicts without 23 See e.g. R. A. Falk (ed.), 7he International Law of Civil War, Baltimore 1 London, rg7r, p.

348ff.

24 See D. Schindler, "The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols", RCADI, vol. r63, 1979-II, p. rso-r, 153ff.

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International Humanitarian Law and its Implementation by the Court roz3 any improper discriminations according to forma! status.

a) The Security Council of the United Nations faced the whole crisis in the former Yugoslavia inspired by this new approach.The said approach was then endorsed by the ICTY.The question was: in order to secure prosecution by the Tribunal, must the conflict be an international armed conflict, oris it sufficient, subject to express exceptions, that there is an armed conflict, be it international or interna!? The Cham ber held that the Statu te of the Tribunal referred indistinct! y to international and to interna! armed conflicts (and th us a fortiori to mixed armed conflicts), with the only exception of Article 2, the grave breaches régime, which according to Additional Protocol I and customary law applies only to interna- tional armed conflicts.'51his opened the way for war crimes equally applicable in international and in internai armed conf!icts.1hcre are a series of rules on war- fare that apply to both types of conflict, and their number is increasing (perhaps there is even sorne presumption of'community').

b) The finding of the Tribunal is based mainly on a teleological and an implied powers argument. The purpose of the Security Council to prosecute al! the persons responsible for serious violations of international humanitarian law could not be served otherwise than by extending the jurisdiction of the Tribunal to the entirety of the conflict, in its international and in its interna! aspects.That aim commands an extensive interpretation. Moreover, as the Security Council knew that the conflict was of a mixed international and interna! character, it must by necessary implication have granted the Tribunal jurisdiction also for the interna!

part of the conflict. Otherwise, on! y a part of the persans responsible for serious violations of international humanitarian law could have been prosecuted. This was precisely what the Security Council wanted to avoid: it would have been absurd to treat differently horrifie cruelties according to the fortuitous fact of having been committed before or after a specifie date, by one persan or another, or at one place rather thau another on the terri tory of the former Yugoslavia.

This non-discrimination argument is rooted directly in humanitarian considerations; and it was essential in the reasoning.

For the purposes of this new customary law on the obligations of partici- pants in any armed conflict, the Cham ber set out the single yardstick on which it measures the existence of an armed conflict. It thus gave the following definition of armed conflict: "[An armed conflict exists] whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State".'⁶For the purposes of this new customary law, the reference is thus a single concept of armed conflict and not directly the traditional distinction between the international and internai armed conflicts.

c) Now, it may be contended that the whole point was superfluous as the conflict in former Yugoslavia was at al! the material times an international armed conflict (a position that recommends itself). But if one starts from the assump- tions accepted by the Chamber, i.e. that the conflict was a mixed armed conflict, one may grasp the extent of international legislation attributed to the Security 25 Tadié(Jurisdiction, 1995), § 71ff, 81-3.

z6 Tadié (1995), § 70.

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Council by the Chamber in Tadié. Under the influence of criminallaw, a strong tendency to merge the law relating to international and interna! armcd conflicts was inaugurated.'7 And this course could not but retroact decisively on the substantive law of armed conflicts: in this case, to some extcnt, .it is the criminal branch which has been the positive side of the coin, or the primary rule, and international humanitarian law its negative, or secondary rule.

5· It is obvious that this exposé of the law remains to some extent sim ply seminal or de lege jèrenda. We have already se en how the I CC Statu te reflects it only in part, e.g. as to the non-inclusion of war crimes related to prohibited weapons in interna! armed conflicts. Howevcr, the path is set and the movement is put into motion. Some con- crete results have already made themselves felt. Thus, recent instruments criminal- ize alike offences committed both in international and interna! armed conflict. One example is the Additional Protocol on Cultural Property of 1999 (to the Hague Convention of 1954);'' or the revised additional Protocol II to the Conventional Weapons Convention of 1980 (1996).'91he situation can be analyzed as a progressive breakthrough of the humanitarian princip le with respect to the State-centered princip le of distribution of war powers and limitations on these powers.1his is one aspect of what has been called the "humanization'' of the law of armed conflict,JO of which we shall sec further examples.

The merger-evolution opens a new era of the law of armed conflicts and of international humanitarian law in particular.

IV. The "Widening" of the Scope oflnternational Armed Conflict through the Overall Control Test

r. ln some areas of the law the merger-tendency could not completely succeed.

Th us, in the field of the 'grave breaches' régime, the Geneva Conventions themselves require the existence of an international armed conflict. The ICTY decided to follow this condition, albeit sorne of its members dissentedY But even in this arca, the Tribunal contributed to a considerable evolution of the applicable law.

2. a) The question if the armed conflict was international for the purposes of Article

2 of the Statu te (grave breaches régime) first arose, albeit indirectly, in the Tadié (1997) judgment of the Trial Chamber. The Chambcr focused on the second 27 There is no evidence that the Security Co un cil itsclf intended to extend the scope of

existing substantive law.

28 See V. Mainetti, "De nouvelles perspectives pour la protection des biens culturels en cas de conflit armé: l'entrée en vigueur du Deuxième Protocole relatif à la Convention de La Haye de 1954", International Review

of

the Red Cross, vol. 86, 2004, p. 358f[

29 See T Meron," International Law in the Age ofHuman Rights", RCADI, vol. 301,2003, p. rssff.

JO Ibid., p. 24ff.

3' Judge G. Abi-Saab, in his Separate Opinion to the 7àdié case (1995), was prcpared to

apply the grave breaches régime cqually in interna! armed conflicts. His argument is rooted in the growing practice moving in th at direction. Iherc is in his view a subsequent practice, modificatory of the conventional provisions on this aspect, and having also the strength of a new rule of customary international law.

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International Humanitarian Law and its Implementation by the Court ro25 condition necessary to the application of Article ^2,i.e. the status of the victims as protected persons. 'il1e reasoning of the Cham ber is the following. According to Article 4 of Geneva Convention IV of 1949, a civilian is a protected person (and th us the grave breaches régime is applicable) if he is in the hands of a party to the conflict of which he is not national. After the withdrawal of the JNA"

from Bosnia on 19 May 1992, the Bosnian-Serb armed forces were a legal entity distinct from the FRY. 'The adverse civilians it took in custody could only be considered in the hands of a party who sc nationality they did not possess if the acts of the Bosnian-Serb armed forces could be imputed to the FRY. Othcrwise, (Muslim) Bosnian civilians would have bcen held by (Serb) Bosnian military forces: under that perspective, no difference of nationality exists. According to the Chamber, the acts of the Bosnian-Serb army (VRS) could be imputed to the FRY only if they acted as de .facto organs of th at State. As has been held by the International Court of Justice in the Nicaragua (Merits, r986) case,³³under customary law a person or entity can be considered a de .facto organ of a Statc if there is an effective control by the State over that pers on or entity. 'Ihcre must thus be a great dependency on the one side, power of control on the other;

there must be a specifie agency, a possibility to give orders which are followed.

The relationship between the JNA and the VRS after the 19 May r992 did not involve, however, more than a general leve! of coordination of the activities. This was consonant with the respective position of the parties as allied forces in the Serbian war effort. The FRY or the JNA did not direct the military operations of the VRS, even if there was support by equipping, maintaining and staffing.

Thcrefore, no effective control can be found; in other words, no attribution of the acts of the VRS to the FRY was possible.11ms the victims were not in the hands of a foreign power and could not be regarded as protccted persons. 'The Cham ber con eludes that Art. 2 of the Statute was inapplicablc.³⁴

b) This decision and its reasoning were quashed on appeal, in the Tadié (1999) judgment. The Appeals Cham ber now considered the question of the attribution of the acts of the VRS to the FRY under the requirement that there must exist an international armed conflict. This difference in approach is not really explained but is one of considerable relevance. According to the Appeals Chamber, the question turns on the issue whether the VRS could be considered a de iure or de facto organ of the FRY. For answering this question, one must refer to the legal criteria for the imputability to a State of acts performed by individuals not having the status of State officiais. This legal mechanism of imputability is the same under the law of international responsibility and for the purposes of criminal international law because it is a general legal technique. However, the effective-control-test propounded by the International Court of Justice in the lvicaragua case was held robe at variance with general international law because it was too narrow. Contrary to the holding of the ICJ, the ICTY explains, international law docs not know an exclusive and all-embracing test of attribution for de facto organs.

32 CTI1e army of the FRY.

33 ICJ, Reports, r986, p. 64-5, § ns.

34 Tadié(r997), § 584ff. Contra, Sep. and Diss.Op. McDonald, § z68ff.

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The degree of control required varies in relation to different types of situations. Severa! reportcd cases³⁵show that in the context of military or paramili- tary groups acting in the interest of a State an avera!! control over the group is sufficient for the purposes of attribution. I t has not to be shown th at each activ- ity was specifically requested or directed by the State, or that there was any form of direct control on the actions. It is sufficient to show that the State equipped and financed the group, or coordinated and helped in the general planning of the military activityY' The Appeals Cham ber found that in the present case the FRY exercised the requisite measure of overall control over the VRS.J7 Hence, even after the r9 May 1992 the armed conflict in Bosnia was international in charactcr. As the Appeals Cham ber found that the victims wcre also protected persons,³⁸it concludcd that the grave breaches régime was applicable to the case at hand.J9

c) 'TI1enceforward, the criterion of 'overall control' has been constantly applied by the jurisprudence of the ICTY: one may quo te the B!askié (2ooo), ⁴⁰the Dela!ié (Appeal) (zoor),^{4 '}Kardié(2oor)^{4 '}and the Brotanin (2004)41 cases.

3· It may be asked whether this construction, going through the constraints of the concept of attribution as it was developed in the law of international responsibility, was really useful for determining the existence of an international armed conflict.

This merger of criteria proper to the law of State responsibility and the determination of the international character of an armed conflict does not necessarily seem warranted. Attribution and control are necessary if an entity is legally sought to respond for acts peiformed by third pers ons as

if

it were its own. But th at is not required for establishing the existence of an objective state of things, i.e. the existence of an international armed conflict. Here it must only be shown that there is, in fact, a sub- stantial implication of foreign powers. The question is precisely not if these foreign 35 As the Stephens case, the Yaeger case, the Loizidou case or the]orgié case. See Tàdié(r999),

§ rzs-9.

36 Tadié (r999), § r22-3, r3r, 137: "The control required by international law may be deemed to exist when aState ( ... ) has a role in organizing, coordinating or planning the military actions of the military group ... ".For individuals not organized into military structures the threshold for attribution is higher : there must be specifie instructions or ex post approval; the Chamber here quotes the Tehemn Hostages case (ICJ, Reports r98o, p. 29- 30 ), ibid., § 132.

37 Ibid., § r46ff. The Cham ber mentions the transfcr of JNA officers to the VRS and the payment of the salaries of the members of the VRS by the FRY; the fact that military operations of the VRS were supervised by organs of the FRY; the fact that members of the FRY's armed forces took part in combats in Bosnia; the fact that the military goals were still fortnulated by the FRY. 1he political settings of the Dayton }:~..greement also confinned the control of the FRY ovcr the Republica Srpska.

38 Tadié (I999), ibid.,§ r63ff.

39 Tadié (I999), ibid.,§ r7r.

40 Bla!.kié(zooo), at§ 73ff.

41 De!alié (Appeal) (2oor), at§ r4ff.

42 Kordié (2oor), at§ 36ff.

43 Brotanin (2004), at§ rzrff.

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International Humanitarian Law and its Implementation by the Court ro27 powers have to respond for the acts of the local armies as if they were thcir own; the question is if their involvement is of sufficient intensity to broaden the scope of the confiict into an international armed confiict. It may be appreciated that the two situations are not at all identical. The threshold must be higher for the first than for the second. To th at very extent, it is understandable that the ICTY lowered the standard from effective control to overall control; but if the overall control is now rctro-pro- jected into the body of the law of responsibility, the standard of attribution could well become too large. These aspects were correctly felt by Judgc Shahabuddeen who points out that the question was wh ether the FRY was using force in Bos nia, not the distinct one whether the FRY was responsible for any brcachcs of humanitarian law committed by the VRS.⁴⁴

Be that as it may, it is apparent that the circlc of international armcd confiicts was raised to all mixed confiicts where there is sorne form of external involvement by way of flexible overall control criteria. That is an important cornerstone of the law.

4· The concept of ovcrall control is not necessarily limited to that of qualif)ring a confiict as international. It can extend to many other branches of the law. An exam- ple of such a potential extension can be found with respect to belligerenl occupation.

In the Blafkié case (zooo ), the ICTY Cham ber bad held that the extensive destruc- tion of Muslim property by Bosno-Croat troops could viola te Article 53 of Geneva Convention IV, which applies only to occupied terri tories, sin ce Croatia could le gall y be considered an occupying power. This unexpected result was reached by apply- ing the overall control test to the issue of occupation: if Croatia controlled the local Bosno-Croat militias, then it could be held that it exercised belligerent occupation by virtue of that control.⁴⁵The Cham ber th us moved a wholly new standard in inter- national law, namely the concept of belligerent occupation longa manu or 'construc- tive belligerent occupation', not by effective authority over the terri tory, but by overall control over those who effective! y control the territory.1here is here a sort of dilution of the chain of effective control: indirect control is equated to direct control.

This reasoning was neatly rejected in the Naletilié case (zoo3). The first point made by the Naletilié Chamber is that if one followed the Blafkié-approach this would lead to a multiplication of the notion of occupation: there would be one concept of occupation under the Hague Regulations of r9o7, namely under Article 42, which requires effective authority of the invading army; and there would be a different concept of occupation under Geneva Convention IV, in particular Article 6, which would not require such effective authority but could satisf)r itself with constructive occupations.⁴⁶Then the Chamber moves to the essence: it states that the

44 Sep. Op. Shahabuddecn, Tadié(r999), § IJ.

45 B!afkié (zooo), § I49·

46 Ihis reasoning is not necessarily compclling.lt is based on the text of the two mentioned provisions, and in particular on the fact that the text of the Hague Regulations seems ta cxclude any type of indirect control. However, the tcxt is not sacrosanct in the sense that it could not be read in a more contextual or updated way. 'Thus, for example, the ICTY has hcld that the protected persans under Article 4 of Geneva Convention IV do not need to mcet the nationality-critcrion mentioned therein; it stated that allegiance is enough in the context of internationalized armed conflicts like that taking place on the terri tory of Bosnia (sec below, in the text). This holding was a piecc of teleological and dynarnic interpretation, which could be followed- if it was wished- also in the context

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overall control-criterion is not applicable to the determination of the existence of an occupationY Occupation necessitates a direct and effective degree of control, since it imposes on the occupying power also a series of onerous duties.⁴⁸Moreover, the Geneva Convention IV is a supplement to the Hague Regulation; in the absence of an autonomous definition of occupation it must be held to refcr back to the Hague Regulations and to end orse its definition of occupied terri tory. ⁴⁹

]hus, it is the old criterion of effective and direct control which applies;so or, in the words of article 42 of the Regulations of 1907, to be occupied, the terri tory must be "actually placed un der the authority of the hostile army."1be occupation must not extcnd to the whole territory: it may apply only to the geographically limited areas whcre it is effectively displayed.The Chamber added: "1bere is no requirement that an en tire territory be occupied, provided th at the isolated areas in which the authority of the occupied power is still functioning 'are effectivcly eut off from the rest of the occupied territory."'⁵^'This last finding is ofinterest if one thinks of the situations as prevailed in Afghanistan, and to sorne extent also in Iraq, notwithstanding the interventions of the Security Council under Chapter VII of the Charter.

As to the general point raised by the Bla.fkié and Naletilié Chambers, it appears that the concept of 'constructive occupation' was somewhat bold and would have had a potentially enormous series of consequences, the effect of which was not sufficiently reflected as yetY It might easily have overstepped the boundaries of rea- sonable responsibility, since most rights and duties in the area are legally predicated upon the idea that there is effective control. If there is no such direct control, the construction of imputability is quickly overburdened; overall control is in such situ-

of occupation. In ordcr to a void the multiplication of occupations concepts, it would th en have been necessary to affirm that the occupation by indirect control has becomc customary law in the contcxt of internationalized armed conflicts like that of Bosnia, and that in consequence the Hague Regulations of 1907 have to be read in such a modified way. The question if such in effcct is the state of customary law, or if such a holding would have been wise, is another point.

47 Na!etilié (zoo3), § 214.

48 Naletilié (zooJ), ibid.

49 Naletilié (zooJ), ibid., § zr

s.

50 Naletilié (zoo3), ibid.,§ 218.

51 Na!etilié (zooJ), ibid.,§ zr8.

52 This is the case even if one limits the reach of constructive occupation to internationalized armed conflicts only. It must not be forgotten that the overall control criterion (relaxing the effective control critcrion of Nicaragua) was adopted to be able to qualif)r an armed conflict as being international in nature. 'Ihat is a purely objective qualification, which does not entai! that any party bears international responsibility for the acts of another entitywith which it has sorne degœe of relations. Büt the lavv of occupation is not concerned with the objective qualification of a situation for the purposes of criminal law: it means imputability of acts to one party notwithstanding these acts being committed by another entity. One understands that the ratio and the reach of the first situation are not at all the ratio and reach of the second, and that therefore one must be slow to slide from the first to the second. If, moreover, the concept is not limited to internationalized armed conflicts, but imported into other situations of"occupation" (asto the many types of occupation and the fringing borders of the concept: A. Roberts, "What Is A Military Occupation ?", BYIL, vol. 55, 1984, p. 249ft·), the problems are all the more conspicuous.

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International.Humanitarian Law and its Implementation by the Court ro29

ations often too wide a circle for responsibility; possibly, only effective control of the intermcdiary entity, as envisaged in the Nicaragua case, would then suffice to make constructive occupation acceptable, if at al!. 53 It seems therefore that the more conservativc approach in Na!etiliéwas warranted.1his is the more so, since the acts incriminatcd, even if they cannot be indicted as grave breaches, will be still prosecut- able as war crimes. Consequently, there does not seem to be any real contcmpt to justice by choosing the more cautions approach.

One may cxpect with sorne curiosity to sec to what extent the overall control criterion can make further real or putative contributions to the development of the law of armed confl.icts.

V.1he "Widening" of the Scope ofGeneva Convention IV throngh a Broad Definition of the Protected Persans

r. The Geneva Conventions of 1949 define precise! y what pers ons are protected und er their régime. Article 4(1) of the Geneva Convention IV on the protection of civilians in times of war covers all persons in the hands of a party to the conflict or occupying power of which they are not nationals. One will appreciate the difference with the hum an rights approach: the Convention does not purport to protect all civilians whatsoever; it protects only those civilians which are held to need the protection because, being essentially civilians of the adverse party, there is a strong tendency of the other power to consider them as being dangerous to its cause and to take restric- tive measures against them.

The Geneva Convention is thus not based on a general human rights logic, but aims more specifically at protecting those civilians that are considered to be "enemy civilians", i.e. civilians in their dealings with the hostile power. Consequently, for example, Article 4(z) of Geneva Convention IV excludes from the circle of protected persans all the nationals of co-belligerent States having each one normal diplomatie relations with the other. It was considered that only these civilians were in jeopardy of seeing the ir rights infringed because of the obvions confl.ict of interest. In the case of co-belligerent States, it was anticipated that the nationals of allied parties would not need any conventional protection. ⁵⁴

z. In the Tadié (1999) judgment, the Appeals Chamber adopted a teleological approach to the definition of protected persans. It started by reminding us that the forma! bond of nationality has never been crucial under Article 4 (Geneva Convention IV): the intention of the drafters, as revealed by the travaux prépara- toires, was to cover also refugees or stateless persans, i.e. al! persans who could not enjoy the diplomatie protection of a third State.

In modern wars, which are lcgally almost in all cases mixed armed conflicts,

53 Thus, if any type of constructive occupation is ever envisioned, it must be founded on the criterion of effective control of an entity, sin ce then there is according to Nicaragua standards - the possibility to attribute the acts of that entity to a foreign power as being its own.

54 1be condition of a regular diplomatie representation was apparently added for such cases as th at ofitaly during the second world war, wherc co-belligercncy did not correspond at any time with diplomatie relations, a fact which puts into danger the protection even of co-belligerent nationals.

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such an approach departing from formal nationality is indeed warranted. In a conflict which remains essentially interna! in its concretc reality, the persons fighting each other have in most cases the same nationality.1hus, for example, Muslim Bosnians may fight Serb Bosnians, or Croat Bosnians; nationality, as a forma! bond, is here the same (Bosnian). In the conflicts of the type described, ethnicity or other criteria become controlling at the place of nationality. Taking into consideration the foregoing, it becomes apparent that it would frustra te the abject and purpose of the Convention if nationalitywere kept as the only criterion. Rather, the paramount aim of effectiveness of protection suggests real al!egiance as the essential criterion.ss

111e same linc of argument was adopted by the Trial Chamber in the De!alié case (r998).s⁶The Cham ber stressed that the aim of Article 4 (Gcneva Convention IV) is the protection of persons in real combat situations; it would pervert the law to make out of forma! requircments of nationality according to municipal law the bedrock oflegal protcction.11le broader approach is said to be also better consonant with human rights law. As in the case under consideration the persans were arrested on the basis of their Serb identity, they must be considered protected persons un der a teleological interpretation of the law.s1 This course was followed also in the la ter case-law. 58

3· The strongly teleological approach adopted in the Tadié (r999) Appeal judgment and in the following cases is to be welcomed. Nationality is a means and not an end; it has to be interpreted accordingly. The Conventions of 1949 were drafted under the paradigm ofinter-State wars. In such a context the criterion of nationality had its proper and obvious place. It was the adequate legal vehicle for protection - which is the ultimate aim- under such factual assumptions. During the fifties and sixties this assumption proved insufficient in the light of the outbreak of endemie civil wars and wars by proxy. The legal system adapted its requirements and inter a!ia broadened the scope of the concept of international armed conflict by extending it to civil wars with external interventions. Unfortunately the letter of the Geneva Conventions was not i tself updated to meet the se novelties. In any event, nationality for the purposes of Article 4, Geneva Convention IV, is still a workable criterion for traditional armed conflicts, but not for those which are structurally interna!, becoming international only by legal qualification (internationalized or mixed armed conflicts).

In such structurally interna!, but now legal! y international conflicts, the nationality criterion leads to an almost complete ineffectiveness of the law, opening up disastrous gaps in protection. As the protection was always the cardinal criterion

55 Tadié (1999 ), § r63ff.

56 Dela!ié(I998), § 24Jff.

57 The Cham ber also considered the question if the victims were prisoners of war in the sense of Article 4 of Geneva Convention III and thus protccted persons undcr that Convention. Article 4 of Gencva Convention III was drafted narrowly according to the conception of war currcnt in 1949.1he conditions of Article 4(A)(z) or (6) of Geneva Convention III are hard! y fulfilled in the present casc.1be victims were neither carrying arms openly, nor was there an invading force. "!bus the victims were only civilians in the scuse of Geneva Convention IV. They were all covered by Geneva Convention IV since there is no gap between the Conventions number III and IV (ibid.,§ z67ff.). On this last point, see below.

sS See B!a.ikié (zooo), § I24ff. Kordié (zoor), § I47ff. B!afkié (Appeal, 2004), § r6Jff.

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International Humanitarian Law and its Implementation hy the Court IOJI

and the nationality-requirement on! y a technical means to that end, it must be considered that the legal internationalization of structurally interna! armcd conflicts led to an implicit modification the nationality-requirement. This operation is ren- dered unavoidable by elementary considerations of effet utile, and of practicability.

"Nationality" must be read in certain situations as meaning "allcgiance", lest the law be large! y frustrated. Th us, in internationalized confticts, a civilian is protected if he is in the hands of the "adverse party."

4· The openly legislative effect of such a re-reading of Article 4, Geneva Convention IV is great in its practical effect, but quite limited in the leap which had to be overcomc by the judgc: that interpretation is indecd compelled if the protection is not to become useless. In such cases, the inference (even if legislative in nature) is ordinarily granted to courts of justice. The step to be taken is small and assured enough through the technique of effet utile to be conceded without necessi- tating a fresh consideration by the legislator.59 That means in practice that the grave breaches régime could find general application to the crimes perpetrated on the terri tory ofBosnia-Herzegovina, and to any similar conftict in future. The broadcning of the scope of humanitarian law and the progressive humanization of the law are here again the essential hallmarks of the jurisprudential hermeneutics.

VI. The Permissibility of Armed Reprisais against Civilians

r. On this old vexata quaestio, the Kuprefkié case (zooo) brought most notable devel- opments. It sets the pa th of the ICTY's doctrine on reprisais, which is marked by an almost total outlawry of this deviee. This is th us a further high-water place for the absoluteness of obligations under humanitarian law, for their non-reciprocity and ius co gens character, in one word for the progressive "humanization'' of the law of armed confticts. The Chamber starts by stating in peremptory terms that there is no place for reciprocity or reprisais in the field of contemporary international humanitarian law. Its protective obligations are absolu te orres: "[One must stress] the irrelevance of reciprocity, particularly in relation to obligations found within international humanitarian law which have absolu te and non-derogable character. It th us follows that the tu quoque defence has no place in contemporary international humanitarian law".⁶o

Moreover, there is an absolu te character of the prohibition of reprisais against civilian populations.⁶' The Chamber recalls that the tu quoque argument has in this context been rejected in the post World War II jurisprudence.⁶' According to the Chamber, it is a ftawed principle, since it envisions international humanitarian law as being based on a bilateral exchange of rights and obligations, whereas it in real-

59 i'\Jternatively, if one vvishes to avoid such a course, the findjng of a de facto organship (overall control) between the VRS and FRY can acquire its importance. It provides an autonomous basis for concluding that the victims were protected persons, since it means that being held in the hands of the VRS may legal! y be equated to bcing in the hands of the FRY.

6o Kuprefkié(zooo), §sn.

6r Ibid.,§ 513.

6z On that point see also: La1u Reports

if

Trials

if

War Crimina!s, United Nations War Crimes Commission, vol. XV, London, 1949, p. r77-r8z.

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ity lays dawn absolute obligations, unconditional and not based on any reciprocity.⁶'

To

that effect, common Article r of the Geneva Conventions was also quoted. The Cham ber itself stressed the idea of progressive humanization of the law of armed confiict: it refl.ects the fact that humanitarian law norms are seen as designcd to benefit individuals as human bcings and not simply States intcrests.⁶⁴11ms, there is herc a translation of a Kantian categorical imperative into the law. As a further consequence, the obligations at stake are due to the international community as a whole (erga omnes).⁶⁵These norms of international humanitarian law are also ius cogens norms, non-derogable and overriding.⁶⁶

2. These principles are then more specifically applied to the question of repris- ais against civi!ians.⁶7 The reasoning of the Chamber may be summarized as follows (§ 2) before wc come to an evaluation of it (§ 3). 111e Chamber recalls that Geneva Convention IV prohibits such reprisais for al! civilians in the hand of the adverse party. For civilians in combat zones, Article sr(6) of Additional Protocol I is applicable. Does that provision refl.ect customary international law? This is an arca where customary law is shaped more heavily by opinio iuris than by usus, i.e. mainly by demands of humanity and dicta tes of public conscience, even if practice is seant (Martens Clause).⁶⁸Reprisais against civilians are an inherently barbarous means of warfare. They are contrary to fundamental human rights, which heavily contributed to shape modern humanitarian law.⁶⁹Moreover, reprisais are not any more justi- fied, as in the past, as sole effective means of ensuring compliance of the law by the enemy: there is now national and international prosecutions of crimes committed.7o Where is the opinio iuris of such prohibition of reprisais to be found? One has to refer to: (r) military manuals, which limit reprisais to enemy armed forces and thus a contrario exclude them for civilians; (2) United Nations General Assembly Resolutions, especially Resolution 2675 (r970) on Basic Principles for the Protection of Civilian Populations in Armed Confl.icts; (3) the absence of daims for such reprisais in State practice (except Iraq and the UK); (4) the work of the ILC on State responsibility in the field of admissibility of counter-measures, which prohibits counter-measures contrary to fundamental human rights; (s) Article 3 common of the Ge neva Conventions, applicable a fortiori in international armed confl.icts. ^7' Even ifheld to be admissible (quod non), reprisais would be limited, according to the Chamber, by severa! principles: (i) last resort (ultima ratio); (ii) special precaution, e.g.

the decision-making would have to talee place at the highest political and military leve!; (iii) proportionality; (iv) elementary considerations of humanity.7' It may be added that the Kunarac Appeals Cham ber (2002) founded itself on the same reason- 63 Ibid.,§ 5'7·

64 Ibid.,§ 518.

65 Ibid.,§ 519.

66 Ibid.,§ 520.

67 Ibid.,§ 527ff.

68 Ibid.,§ 527·

69 Ibid.,§ 529.

70 Ibid.,§ 530.

7' Ibid., § SJiff.

72 Ibid.,§ 535·