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Full text of "International law across the spectrum of conflict : essays in honour of Professor L.CGreen on the occasion of his eightieth birthday"

m THE CMXASICJNdF.HIS E!GHtlETH: BIETHDAY ' 



SCHMITT 






V'Q=LUME7S 



International Law Studies 



Volume 75 



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- III. Series. 

JXI295.U4vol. 75 
I[KZ6385]] 
341s--dc21 
I34L6] 

2001018730 



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 



Contents 

Foreword vii 

Preface ix 

Introduction by William J. Fenrick 

Leslie Claude Green: International Law Teacher xiii 

I The Normative Framework of International Humanitarian Law: 
Overlaps, Gaps and Ambiguities 

M. Cherif Bassiouni 1 

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

Ove Bring 57 

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

Bin Cheng 81 

IV On Genocide 

Anthony D'Amato 119 

V The Initiation, Suspension, and Termination of War 

Yoram Dinstein 131 

VI Legal Issues of Multinational Military Units: Tasks and Missions, 
Stationing Law, Command and Control 

Dieter Fleck 161 

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

Christopher Greenwood 179 

VIII Naval Blockade 

Wolff Heintschel von Heinegg 203 



IX Dispute Settlement under the 1997 Convention on the Law of the 
Non-Navigational Uses of International Watercourses 

Ruth Lapidoth 231 

X The History and Status of the International Criminal Court 
Howard S. Levie 247 

XI The Charter of the United Nations as a World Constitution 
Ronald St. J. Macdonald 263 

XII International Humanitarian Law from Agincourt to Rome 
Theodor Meron 301 

XIII Legal Implications of NATO's Armed Intervention in Kosovo 

Ved P. Nanda 313 

XIV Making Law of War Treaties: Lessons from Submarine Warfare 
Regulation 

W. Hays Parks 339 

XV Antecedents of the Rome Statute of the International Criminal Court 
Revisited 

Shabtai Rosenne 387 

XVI The International Criminal Court: A Skeptical Analysis 

Alfred P. Rubin 421 

XVII Chivalry in the Air? Article 42 of the 1977 Protocol I to the Geneva 
Conventions 

Robbie Sabel 439 

XVIII The Law of Armed Conflict as Soft Power: Optimizing Strategic 
Choice 

Michael N. Schmitt 455 

XIX Jus Pacis ac Belli? Prolegomena to a Sociology of International Law 
Georg Schwarzenberger 483 



IV 



XX UN Forces and International Humanitarian Law 

Paul C. Szasz 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 539 

Appendix 565 

Contributors 581 

Index 589 



.r ore^v^oFo. 



I 



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. 

It is 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 



Pref, 



ace 



God grant that men of principle shall he our principal men. 

Thomas Jefferson 




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 Conflicty 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, 



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 
reach 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 



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 



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 



xu 



Imtrod-iicttioii 



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. 



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 LesUe 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 is a 
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 develof3ment pf a 
Green school in international law. He encouraged those who sat at his fee t^— 
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 o{ the Additional Protocols of 1977. An interdepartmental 
review was completed and everything was set to go. The then Legal Adviser to 
the Department o{ 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 on the 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. 

As an 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 



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 Con/Iict, 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 
LaWy 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 



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 regard his 
proposed solution as premature. I do.^ 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 (1997-9,8) 19, at 29. 

3. W.J. Fenrick, Should Crimes Against Humanity Replace War Crimes?, 37 COLUMBIA 

JOURNAL OF Transnational Law (1999) at 767-85. 



xviu 



I 



The Normative Framework of 
International Humanitarian Law 

Overlaps, Gaps and Ambiguities 



nr^ 



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 o{ 
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 TRANSNAT'L L &C0NT. PROB 199 
(1998). 



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 oi 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 into 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 jU5 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.^ 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 



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.^^ 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.^^ 
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. ^"^ 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 P^ in the concept o{ 
"crimes against the laws of humanity," a term found in the Preamble to the 
1907 Hague Convention. ^^ 



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. 17 

After the war, in 1919, the Allies established a Commission to investigate 
war crimes ^^ which thereafter found that the killing of Armenians by the Turks 
around 1915^^ 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. ^'^ In 1923, after the failure of ratifi- 
cation of the 1919 Treaty of Sevres, ^^ 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. ^^ 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).27 The question that remained, however, was the le- 
gally binding effect of such a report. 28 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 



M. Cherif Bassiouni 



the element of opino juris to establish customary international law,^^ and this 
practice seems to be somewhat wanting because there are few States that have 
prosecuted persons for such crimes. ^^ Moreover, no convention on crimes 
against humanity has been developed since 1945,^^ even though many other 
conventions on various international crimes have been adopted since that 
time.^^ 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).^^ 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 whatsoever.^^ 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.^^ Since there was no conven- 
tion on crimes against humanity, that category of crimes had to be deemed as 
falling within customary law.^^ 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. "^^ 

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"."^^ The ICTY and ICTR added "rape" for 
specificity. "^2 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."^^ 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. '^^ For example, "other 
inhumane acts" can be deemed vague, "murder" overlaps with "extermination," 

5 



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."^^ 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. "^^ 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, "^^ 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 
of a 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 "[f|or 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 . . .'"^^ 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 



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. ^"^ 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- 
risdictional 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.^^ 

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 civiUan population." The combination of the 



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. ^^ 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, ^^ 
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^i in 1993 and the ICTR62 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 



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 
such a policy and the legal standards required to prove it.^^ 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. ^^ But this situation never has been repeated. In the Yugo- 
slavs^ 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. ^^ There are, moreover, 
conflicts where a paper trail exists but has not been made public. ^^ 

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. ^^ 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 bureaucracy,^^ 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 



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 of a certain identifiable group.^^ 

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. ^^ 

Since 1948, "genocide," as defined in the Genocide Convention,^^ has been 
embodied in three international instruments, to wit, the statutes of the 
ICTY,^^ ICTR,^4 and the Statute of the International Criminal Court,^^ and 
the incorporation of Article II of the Genocide Convention into these three in- 
struments has been without change. ^^ 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, ^^ 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 1949^^ plus two additional protocols of 1977^^ 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 



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.^^ 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 JMS 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.^"^ 

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.^^ 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.^^ 

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. ^^ They are therefore binding on all States irre- 
spective of whether a given State has or has not ratified one of them.^^ 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. 

11 



The Normative Framework of International Humanitarian Law 

As a 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. ^^^ 

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" ^^^ — 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 
II 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.^^^ Protocol II expands upon common Article 3^^^ 
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 



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. ^'^'^ 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 1 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; 

(0 slavery and the slave trade in all their forms; 

(g) pillage; and 

(h) threats to commit any of the foregoing acts. 

13 



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;" ^^^ and (4) the non-applicability of immunities 
including that of Head of State. ^"^^ 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. ^^^ There is, however, a notable trend among legal experts 
to consider such formalism as historically depasse 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 

14 



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 of a 
"non-international character,"^ ^^ 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. ^^^ 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. ^^^ 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 Tadic jurisdictional appeal case.^^^ 
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 nonintemational 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 nonintemational, 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 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 nonintemational. No less, the potential for 
unequal and inconsistent treatment of the accused is great. Fortunately, until 
Tadic, 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. 1^6 

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.^^^ 

The fact remains, however, that the ICTY eschewed this reasoning. Worse, 
the subsequent Tadic judgment on the merits erroneously applied another in- 
ternational law standard to the issue presented.^ ^^ In that decision, the Tadic 
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.).^^^ 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: ^^^ 

IThe Tadic 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 Tadic 
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 applicabiUty of 

16 



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,^^^ 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,^^^and 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 



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.^^^ 

In 1995, the United Nations General Assembly established an Ad Hoc Com- 
mittee for the Establishment of an International Criminal Court. ^^^ In 1996, it 
established a Preparatory Committee for an International Criminal Court. ^^^ 
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. ^^^ The chart was developed and circulated at the Preparatory 
Committee for the Establishment of an International Criminal Court ^^^ 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 



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. 1 29 

Subparagraph 2(b) of Article 8 refers to "Other serious violations of the laws 
and customs applicable in international armed conflict . . . ."^^^ It incorporates 
the customary law of armed conflict and some of the provisions of Protocol 1. 

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,"^^^ 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. ^ ^2 

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." ^^^ The specificity contained herein by far exceeds what Protocol II con- 
tains and it is therefore specific to this statute. 

19 



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 



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; 

(f) 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 11.^^4 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. ^^^ 

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 



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. "^^^ 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. ^^^ 

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 ideal dHnfraction, 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.^^^ 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 



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 juryJ^^ 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 ideal dHnfr action, 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 hien social protege.^"^^ 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 



The Normative Framework of International Humanitarian haw 

genocide and crimes against humanity are three legal elements: ^"^^ (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 ^'^^ and slavery and slave-related 
practices^"^^ 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; ^"^"^ (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. ^"^^ 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 o{ 
these crimes. The ICC Statute also failed to take the problems discussed above 
into account with respect to the penalties. ^"^^ 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.^"^^ 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 



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. Kupreskic, et 
alA^^ 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 parties 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 genera/ 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 



The Norvnative 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]. 

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 



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 o{ 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 Ahmici-Oantici 
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 



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 



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 Blockhurger 
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 Ahmici 
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 



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]. Outside the former Yugoslavia, the 
Italian Criminal Code includes a similar rule [footnote 961]. 

716. As was held by the Trial Chamber in the Tadic 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]. 

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].^^^ 

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 



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, if a 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.^^^ In that 
case, the trial chamber took a different approach from that of the ICTY trial 
chamber in the Kupreskic 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 Kupreskic 
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 ideal d'infr actions. ^^^ The issue was addressed as 
follows: 

196. 6. THE LAW: 6.1 Cumulative Charges 



1 99. 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 



The Normative Framework of International Humanitarian Law 

double jeopardy or a substantive non his 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 Tadic. 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. Tadicy Decision on Defence Motion on Form 
of the Indictment at p. 10 (No. IT-94'1— T, T.Ch.II, 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. 

Iparagraph omitted] 

207. It is 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 



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 penal du Rwanda: Chapitre VI — Du concours 
d'infractions: 

Article 92.- II y a concours d'infractions lorsque plusieurs infractions 
ont ete commises par le meme auteur sans qu'une condamnation soit 
intervenue entre ces infractions. 

Article 93.- II y concours ideal: 

1° lorsque le fait unique au point de vue materiel est susceptible de 
plusieurs qualifications; 

2° lorsque Taction comprend des faits qui, constituant des 
infractions distinctes, sont unis entre eux comme procedant d'une 
intention delictueuse unique ou comme etant les uns des 
circonstances aggravantes des autres. 

Seront seules prononcees dans le premier cas les peines determinees 
par la qualification la plus severe, dans le second cas les peines 
prevues pour la repression de I'infraction la plus grave, mais dont le 
maximum pourra etre alors eleve de moitie. 

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 



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 o{ 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 o( 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 against humanity. Convictions for genocide and 
violations of common article 3 would accurately reflect the accused 
general's course of conduct. 

Iparagraph 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 



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. ^^^ 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. ^^^ 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. "^^^ 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. ^^^ 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 his in 
idem.^^^ 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 his 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 




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. 



^7^ 

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. ^^^ 

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 11,^^^ 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^^"^ and 
Medina^^^ 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, ^^^ was dismissed by the Supreme Court of 
Japan on technical jurisdictional grounds. ^^^ 

With respect to "crimes against humanity," Canada, France, and Israel have 
been the only countries to have carried out prosecutions. In Israel, the 
Eichmann^^^ 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 y^'^^ Touvierj^^^ and Papon.^^^ In 1989, Canada prosecuted 
the first case under a 1987 statute that permits retrospective application of in- 
ternational law.^^^ 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 



M. Cherif Bassiouni 



the opportunity arose to prosecute Pol Pot for such crimes in Cambodia, it was 
not seized. ^^^ 

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 ^^^ and Protocol P^^ 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 11,^^^ 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. ^^^ 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. ^^^ Consequently, the pursuit of justice has become part 
of the toolbox of political settlement negotiations. ^^^ 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 



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 oireal- 
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. ^^^ 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 o( 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 DOCUMENTS III. A. 1 (Bums 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 
I.L.M. 763, and 2 INTERNATIONAL LAW & WORLD ORDER: BASIC DOCUMENTS II.E.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); 

HOWARD S. 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 



M. Cherif Bassiouni 



5. See, e.g., PlETER 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 
B.U. INT'L L.J. 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., 2ded., 1998). 

6. See M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 
Law & CONTEMP. PROBS. 63 (1996). The Tadic 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 Tadic, (IT-94-LT), 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.l 1 Weston, supra note 2. See 
also Theodor Meron, International Criminalization of Internal Atrocities, 89 AM. J. iNT'L L. 554 
(1995). 

7. For example, the International Criminal Tribunal for the Former Yugoslavia, in the Tadic 
majority opinion, erroneously applied the standards of "State responsibility" reflected in the 
I.C.J.'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 I.C.j. 14, 331-47 (June 27). The majority also did 
not contribute to clarity when it very broadly concluded that: 

39 



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 Tadic, (IT-94'l-T), May 7, 1997, reprinted in 36 1.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), thereinafter 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 Intematiorml Criminal Court, U.N. Doc. A/CON F.183/2/Add.l (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 Rvuanda], 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 to a 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 International 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 II. 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, 
e.g., R.J. RUMMEL, STATISTICS OF DEMOCIDE, GENOCIDE AND MASS MURDER SINCE 1900 

40 



M. C fieri/ Bassiouni 



(1997); Margareta Sollenberg & Peter Wallesteen, Major Armed Conflicts in J 995, in SIPRI 
Yearbook 1996 (1996). There were two studies reported in the PIOOM Newsletter and 
Progress Report in 1994 and 1995: A.J. 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 Warning 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://www.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 Bevans631 (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.l. 

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'L L. 
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. INT'L L. 151 (1920). 

21.TreatyofPeaceBetween the Allied Powers and Turkey, Aug. 10, 1920 (Treaty of Sevres), 
reprinted in 15 AM. J. iNT'L L. 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!) (1944). 

25. Agreement by the Government of the United Kingdom of Great Britain and Northern 
Ireland, 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 lI.E.l. 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.I.A.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 
Article 11(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. INT'L L. 126, [hereinafter 1950 ILC Report], reprinted in 2 Weston, supra note 
2, at II.E.4. 



41 



The Normative Framework of International Humanitarian Law 

28. Hans-Heinrich 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. 1 159, and 2 Weston, supra note 2, at 
lI.E.lO. 

34. Prosecutor v. Dusko Tadic, (IT-94'I-T), reprinted m 36 I.L.M. 908 (1997). See also ICTY 
Statute, supra note 33. Concerning the war-connecting link, the Tadic 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 
requirement 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 Niirjiberg 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 



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 Tadic, (IT-94'l'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 thereinafter ICTR Statute], reprinted in 33 I.L.M. 1598, and 2 Weston, supra note 2, 
atII.E.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 Tadic 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 Tadic, (IT-94-1-AR72), reprinted in 35 I.L.M. 32, at 72 (1996). Further, 
the Tadic decision stated: 

43 



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 oi nullum crimen sine lege." 

Id. at 937. The Appeals Chamber in the Nikolic case noted that a crime against humanity must be 
shown to have been committed in the course of an armed conflict. Nikolic 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 6t 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 Tadic 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.Seeid., Ch. 5. 

46. See id. See also Roger S. Clark, Crimes Agairist 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 



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 SORJ 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, 78U.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 II. E. 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. S/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 Rvuanda, 7 DUKE J. COMP. & INT'L L 349 (1997). 



45 



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: Hearii-ig 
before the Subcommittee on International Law, Immigration, and Refugees of the Committee on the 
Judiciary, House of Representatives, 102d Cong., 1st 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. S/1994/674/Add.2 (1994); Bassiouni, 
supra note 69. 

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

76. See generally Jacques Francillon, Crimes de guerre, Crimes contre I'humanite, 
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 
Implications, in ASIL PROCEEDINGS 270-76 (1997). 

77. 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 Karadzic and Mladic, in which the judge referred to "ethnic 
cleansing" as a form of genocide, (IT-95-18-I). 

8 1 . 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. 31 14, 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. 1 1 ; Geneva Convention for the Amelioration of the 
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 
6 U.S.T. 3217, 75 U.N.T.S. 85 (entered into force Oct. 21, 1950) (entered into force with 

46 



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.N.T.S. 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 
II.B.13; 53 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 
Aug. 12, 1949, 6 U.S.T. 35 16, 75 U.N.T.S. 287, 50 AM. J. iNT'L L. 1 19 (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.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 Ihereinafter 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 I.L.M. 1391, and 2 Weston, supra note 2, at 
II.B.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 I.L.M. 1391, and 2 Weston, supra note 2, at II.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 International 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 offeree 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.l. 
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 



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 
II.B.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'L L. 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://www.icrc.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 anci 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 II, 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 I.L.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 



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. 

111. See generally Meron, supra note 6. 

112. See Bassiouni, supra note 14. See also, e.g., 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 International Criminal 
Court, U.N. GAOR, 51st Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996); Report of the Inter-Sessiond 
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.l (1998) [hereinafter PrepCom Committee]. See also the 
Commentaries of Jordan Paust in 13 NOUVELLES ETUDES PENALES (M. Cherif Bassiouni ed. 
1997) and Ubis NOUVELLES ETUDES PENALES (M. Cherif Bassiouni ed. 1998). 

115. Prosecutor v. Dusko Tadic, (IT-94T-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. 

1 18. 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 Tadic 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 



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.I.A.S. 
No. 1589, at 3, 4 Bevans 20 (IMTFE Proclamation), reprinted in 2 Weston, supra note 2, at 
II.E.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 
MiUtary 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 li (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 1 14- 

127. Id. 

128. Non-paper circulated at the December 1997 session of the Preparatory Committee for 
the Establishment of an International Court, entitled Synopsis on War Crimes Relating to the 
Informal Working Paper on War Crimes (A/AC.249/1997/WG.I/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 
apphcable law. 

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

136. That approach comes from the analogy to the use of a 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) thereinafter 
Elements of Crimes]. 

50 



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 e.g., 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 I.L.M. 1027 ITorture 
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 I Article 20(1)]. Moreover, it prevents a national legal 
system of a State party from prosecuting an individual for the same conduct that formed the basis 
of a crime for which the person had previously been convicted or acquitted by the Court I 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. 1 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 Tadic, Appeals Chamber Decision on Jurisdiction, 2 Oct. 1995, para. 91. 

150. [Footnote 959 in original] The text of Art. 48 reads as follows: 



51 



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) if a 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. IFootnote 960 in original] See Art. 60 of the Croatian Penal Code of 1997. 

152. IFootnote 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. IFootnote 962 in original] Tadic, Sentencing Judgement, 14 July 1997, at para. 9. 

154. IFootnote 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 I.L.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 L.J. 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 v/hat 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 



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. VS. V. Galley, CM. 426402, 46 C.M.R. 1131 (1971); 48 C.M.R. 19 (1973); 22 C.M.A. 
534 (1973). 

165. V.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 Stat&, 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 oj 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 
I.L.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. Petrovsky, 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 Ruzie), 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 Tout^ier 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.R 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, Premiere 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, Premiere chambre 
d'accusation 31. 

For information on the Touvier case, see generally ERIC CON AN & 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 



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, WASH. POST, Apr. 1, 1998, at 
A21. 

For information on the Papon case, see generally Laurent Greilsamer, Maurice Papon, la vie 
masquee, 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: International 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. 
TRANSNAT'L 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 
I'humanite, JURIS-CLASSEUR, DROIT iNT'L, FASCICULE 410 (1993). 

173. Regina v. Finta, 119941 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); 
Michele Jacquart, La notion de crime contre I'Humanite 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. INT'LL. &. POLITICS 471 (1979); Report o/ the Commission o/ 
Inquiry on War Criminals (Jules Deschenes 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, at A14. 

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 



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 



n 



The Westphalian Peace Tradition in 
International Law 

From Jus ad Bellum to Jus contra Bellum 



Ove Bring 



D 



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 



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 IT'^^-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.^ 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 ;us 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 



Ove Bring 

individual possessed fundamental rights and freedoms and was not merely an 
object.^ 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. 1 1 

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." ^^ 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 Dejure Belli ac Pads, 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 helium justum principle is reasonably clear: "war ought not to be un- 
dertaken except for the enforcement of rights." ^^ 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 helium 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-a-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 



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.^"^ 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." ^^ 

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, "^^ 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. ^^ 

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 Pacts, Grotius wrote that neutrals should do nothing to sup- 
port the "wicked case" or hamper "him who wages a just war."^^ 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. ^^ 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 



Ove Bring 

Hedley Bull would put it.^^ 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. 
. . .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 rule on collective sanctions in the following (124th) Article: 

[I]f for the space of three years the Difference cannot be terminated by any one o( 
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 



Westphalian Peace Tradition 



State practice and can today be compared with Articles 10 and 16 of the 
League Covenant and Chapters VI and VII oi the UN Charter. 

Grotius' jus ad bellum doctrine was not reflected in the Peace provisions. The 
more ambitious approach of jus contra helium 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. 

It is 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. "^^ 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. "^^ 

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 
not a 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 

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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 Miinster 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 helium 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 o{ 
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 equilihrium) .^^ 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. ^^ Utrecht did not reconfirm the Westphalian principle 
of European public law requiring peaceful settlement of disputes. The 

63 



Westphalian Peace Tradition 



embryonic element of jus contra bellum was not revived; the doctrine of jus ad 
helium 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' Dejure Belli ac Pads 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). ^^ 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.^^ 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. ^^ 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 helium 
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. ^^ 

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 



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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.^"^ 

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."^^ In retrospect it could be argued that 
Grotius' jus ad helium 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. ^^ 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 
Abbe 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 LJniverselle. 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 



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. ^^ 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 helium, 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 perpetuelle d. M. VAbhi 
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 VEsprit des lots (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. "^^ 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. "^^ 

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 International 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 

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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. ^'-' The ensuing Decree 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 Declaration du droit des genSy which in 1795 
was submitted to the French Convention by one of its members. Abbe 
Gregoire. It was intended as a corollary to the Declaration des droits de rhomme 
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.'"^^ 
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."^^ 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 

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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.""^"^ 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."^^ 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 
1 795, 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. "^^ 

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.""^^ 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 pads) 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 it, . . ."'^S 

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: 

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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 for a 
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 Abbe 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.^O 

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).^^ All in all, his jus 
contra helium 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. Fie 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. As a 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- 18 15 doctrine of armed 

69 



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 o( 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 

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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 helium, 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 oijus contra helium 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 



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 helium. 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- 
ritorial 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. "^"^ 

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 



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to armed conflict. Expectations de legeferenda pointed towards a future legal re- 
gime of obligatory settlement procedures, towards a jus contra helium. 

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 Liherte — 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 
Waff en 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 o( 
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."^^ 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 



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 
reason 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 o{ 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 
rules 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 

74 



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 
Czar'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 jU5 in hello 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 



Westphalian Peace Tradition 



Asphyxiating Gases and Expanding ("dum-dum") Bullets] .^^ 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). 
Arbitral 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 helium 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 

76 



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 helium 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 (c/ 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 
offeree. 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. 

77 



Westphalian Peace Tradition 



Notes 

1. E.g., the International Congress (PEACE - Reconstruction of a European Vision) on the 
Occasion of the Anniversary of the Conclusion of the Peace Treaties of Munster 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/41 /111 (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 Munster. 

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 ofHedley Bull, 17 QLR (Quinnipiac Law Review) 1997, p. 15. 

7. 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 Roling, 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 III, 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 II, 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, 

78 



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, Munster, 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 modem 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 International 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 to a 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 International Law and Relations: A 
Functional Approach, in HUGO GROTIUS IN INTERNATIONAL RELATIONS, supra note 7, p. 307. 
Cf. the well-known quotation from Dejure Belli ac Pads 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 



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. 

47. Ibid., p. 116. 
48.1bid., pp. 116-17. 
49.1bid., 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 J AMES BROWN SCOTT, THE HAGUE PEACE CONFERENCES OF 1899 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 



II 



Properly Speaking, Only Celestial Bodies 

Have Been Reserved for Use Exclusively 

for Peaceful (Non-Military) Purposes, but 

Not Outer Void Space 



Bin Cheng 



o 



Till Cant cease, nothing else can begin. 
— Thomas Carlyle 



N 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: 



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."^ 

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 



Bin CKeng 

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 




83 



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 
<^ SPACE 



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 



Bin Cheng 



Figure 3: Need to Introduce the Term "Outer Void Space" 




OUTER 
<^ SPACE 



The Meaning of "Peaceful": A Legal Trompe-UOeil 

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 11,^ 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.^^ We need to go back no further 

85 



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."^^ 

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. 1^ 

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. 14 

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

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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.^^ Thus, although the launching of Sputnik I in 
1957 was part of the scientific International Geophysical Year programme, ^^ 
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. ^^ 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.'^^ For the United States, while one cannot rule out that it might have 

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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,^^ in particular Article IV, on the military use of outer space as well as the 
impact, if any, which this masterpiece of legal trcnnpe4'oeil has had on the Treaty.'^^ 

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;^^ 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.^^ 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. ''^^ 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. ^^ Article IV(1) provides: 

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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, 
... .29 

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 

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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 1(1). The same can be said of Article 1(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. ^^ 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 policy^ ^ (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. ^^ 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 1(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. ^^ 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 

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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 XL 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" 

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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 oi 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: 

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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. . . M 

Although the Paris Summit meeting between Eisenhower and Khrushchev 
planned for late May 1960 collapsed owing to the U-Z 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 jwas 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. ^^ 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.^^ 

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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, "^^ 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. "^^ However, such ideas appear to be some distance away from fruition, "^^ 
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,'^^ 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."^^ 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. "^^ 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 

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Bin Cfieng 

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 manoeuvres 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 IV (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 

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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. "^^ 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. 

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 manoeuvres, as well as the test- 
ing of any type o{ 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. 



ARTICLE IV (2). The moon and other 
celestial bodies shall be used by all States 
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 



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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 IV (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, ^^ 
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 IV (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 3 1 (3) 
of the 1969 Vienna Convention on the Law of Treaties^^ on interpretation 

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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)^^ 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 tver formally protested the U.S. interpretation of the 
phrase 'peaceful uses' in the context of outer space activities. "^"^ 

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 ofPreah Vihear Case (1962),^^ 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."^^ 
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 



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 Case^^ 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- 
ridors 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 



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 3 1 , 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 IV(2) would be relevant. Instead o{ 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 



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 

In sum, 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 TV (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 

A? 

moon. 

The Last Two Sentences of Article TV(2). The same applies to the omission of 
any qualification before "equipment and faciUty" 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 



Outer Void Space Not Reserved for Exclusively Peaceful Use 

qualified by the adjective "military," namely, ''military bases, installations and 
fortifications," ''military manoeuvres," 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 o{ 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 



Bin Cheng 

This is not to deny that there are activities and uses which can serve both 
miUtary 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 o{ 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 



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 o{ 
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 



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 
rules 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.^^ 

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 IV(1), but as we have already pointed out, 
this omission is of no significance.^^ 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 IN OUTER VOID SPACE any type of military sat- 
ellite j including reconnaissance; communications, early warning, navigational, 
meteorological, geodetic and other satellites; construct manned or unmanned 
military space stations; carry out military exercises and manoeuvres; 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 



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. "^^ It is 
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. 7^ 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. "^^ 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),^^ which tells us that the "high seas shall be reserved for peaceful 
purposes"! 

106 



Bin Cheng 

Summary' and Conclusions 

1. The 1967 Space Treaty remains ver>' close CO the L rated :::a:e5 r^licvon 
space first announced by President Eisenhower in 196C. 

2. The original United States intention as regards the celestial ': : d:t: -vas 
that there should be no "warlike" activities on them, which may not rueari cnat 
they should be completely demilitarised. 

3. Popular opinion and a number of govemmenti were ciamourLT.z ::: :he 
whole of outer space, including all the celestial bodies, to be preserve i ::: ex- 
clusively peaceful, i.e., non-military, exploration and use. 

4. The two superpowers evidently did not wish to be seen as r; . sir ^ ::m 
wish, while seeking ways of keeping all options open, in \iew oi :r.t : : : : . 3 .r;.- 
portance of outer space for military^ purposes. The Soviets, \\t,. j.hzz :: ::"- 
cealing the true nature of practically everything they did, simply carr.ei ;n 
with their practice of dissimulating all their military activities in sraie as 
non-militar>', and thus peaceful. The United States negotiators, instea a ; : : r a- 
gated the novel idea that "peaceful" meant merely "non-aggressive" ar. a r. : : 
"non-militar>'." Every' effort was made not to disturb zr.t r :r ular illusior. :.aa: 
everyone was using outer space, including the moon and the other celestial 
bodies, only for peaceful purposes. 

5. In the 1967 Space Treaty, the orily 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 Treat>' affect the contracting States' freedom to use outer 
space for militarv' purposes, though they all intend to promote its peaceful use. 
Although the Space Treaty makes much oi international co-operation in the 
peaceful uses of outer space, there is no provision, contrary to a very prevalent 
misconception, anwhere in the entire Treat\' which reserves the whole ai 
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) , w^hich does not apply to the void in between — ^what I have called 
"the outer v^oid 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- 
fill" in the Treat>' as a whole, and in its Article IV (2) in particular, by all the 
rules oi treaty interpretation, retains its ordinar>' and well-established meaning 
oi "non-militar>'." To argue that it means "non-aggressive" leads to illogical, 
unreasonable, and even absurd consequences. 

107 



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 3 1 (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. Nor can one invoke the history ofthe 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 ofthe 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) of a 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 ofthe equip- 
ment and facility in the last sentence of Article IV (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 



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 mihtary 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 



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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., 1st 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 International 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.l: 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. 

HI 



Outer Void Space Not Reserved for Exclusively Peaceful Use 

9. Cf. G. SCHWARZENBERGER, POWER POLITICS, 3rd ed., London: Stevens (1964), Part H: 
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. dt. in note 6 above, Ch. 4: International Co-operation and Control: 
From Atoms to Space, pp. 52-69. 

12. The text of Art I 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 (23.7.66), 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 KE007 and Article 3bis of the Chicago 
Convention, in J. W. E. Storm van s Gravesande and A. vander Veen Vonk (eds.), AIRWORTHY 
(Liber Amicorum I. H. Ph. Diederiks-Verschoor), Daventer: Kluwer (1985), p. 47. 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) U 1 ILM (1972) 784]; the 1972 US/USSR Intermi 
Agreement on Certain Measures with Respect to the Limitation o( Strategic Offensive Arms 
(SALT I Agreement) 111 ILM (1972) 791]; 1977 Convention on the Prohibition of Military or 
Any Other Hostile Use of Environmental Modification Techniques 116 ILM (1977) 88]; 1979 
US/USSR Treaty on the Limitation of Strategic Offensive Arms (SALT II Treaty) 118 ILM 
(1979) 1112]; the 1979 Agreement Governing the Activities of States on the Moon and Other 
Celestial Bodies(Moon Treaty)I18 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 lUN 
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 lUN 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 



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 Doc: 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 IGA 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.), AlR AND SPACE LAW: DE LEGE 
FERENDA (Liber Amicorum Henri A. Wassenbergh), Dordrecht: Martinus Nijhoff (1992), pp. 
283-290. It should 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 2 1ST CENTURY, The 
Hague: Kluwer (1995), pp.195-204. 

32. N. M. Matte in Military Uses of Outer Space and the 1 967 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 
Vses 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. I 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 on a 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 II and B. M. DeVoe, United Nations Registry of Space Vehicles, 13 SPACE 
Law COLLOQUIUM (1970), pp. 127-141. 

113 



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. C/. 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 AlR 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 (25.8.88). 

42. CD Doc. CD/817, CD/OS/WP.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 Gorbiel), Warsaw: Instytut Humamstyczny 
(1955), p. 115, at pp. 116-117. 

43. C/. Bhupendrajasani (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. 

47. 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 proces-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 U.S. 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., e.g., 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, 1 1 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 guerre spatiale, 16 ANNALS OF AlR 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 



Bin Cheng 

53. ICJ Rep. 1969, p. 3, para. 73. 

54. Loc. cit. in note 51 above, p. 45. Original italics. 

55. ICJ 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 1 1 July 1984. See CHENG, op. cit. in note 6 above, Ch. 12: 
The Moon Treaty, at pp. 357-380. 

61. Emphasis added. 

62. C/. 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 is a 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. C/. 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 Responsibilit>' and Liability for 
National Activities in Outer Space, at pp. 62 1-640; B. Cheng, Article VI of the 1 967 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 
rules and conditions. On the position in international law, see B. CHENG, GENERAL PRINCIPLES 

115 



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. C/., among numerous others, Menter and Finch, loc. cit. in note 50 above, and Jasani loc. 
cit. in note 23 above, at p. 244- 

73. C/. 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 argument as 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 



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. C/., e.g., V. Kopal, Concerns 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 Jose 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. IV: 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 Act on 
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. 



117 



IV 



On Genocide 



Anthony D'Amato 



I'D 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. 0{ 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 



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 I 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. 

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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 it 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.^ 

Coherence is important because it relates to the core responsibility of the 
judicial enterprise."^ 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 o{ 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. 7 

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.^ 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" 

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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." 0{ 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 

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Anthony D^Aniato 



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 

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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, 

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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. If a 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. 

A more 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 



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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. 

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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 

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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. ^^ 

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. 
It 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 
in a 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 rea, 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 

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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 o{ 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 J. 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, LAWS EMPIRE 167 (Harvard Univ. Press, 1986). 

6. la. at 217. 

7. Id. at 219. 

8. RAPHAEL LEMKIN, AXIS RULE IN OCCUPIED EUROPE 79 (1944). 

9. GA Res. 96(1), UN Doc. A/64/Add.l (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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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 in a 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 



V 



The Initiation, Suspension, and 
Termination of War 



HP" 



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 



The Initiation^ Suspension^ and Termination of War 

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

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 ipsofacto^ 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).^ 

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.^ 
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 
rule. There are many reasons for the contemporary reluctance to engage in a 
declaration of war. Some of these reasons are pragmatic, stemming, for 

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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." ^^ 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.^^ 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. ^"^ 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. "^^ 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. ^^ 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. ^^ If it is to have any value at all, a declaration of 
war must impart an unambiguous signal to all concerned. 



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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 (a 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. ^^ 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 11.20 

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.^^ 

Article 2 of Hague Convention (III)^^ 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, if a 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 

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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^"^ (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. ^^ 

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."^^ 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. ^^ 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. ^^ The West- 
ern Allied Powers arrived at a Treaty of Peace with Japan in San Francisco in 
1951.^^ 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. ^^ However, since it proclaims that the state of war is ended, and that 
peace, friendship, and good neighborly relations are restored, ^^ 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),^^ and with Jordan (in 1994).^^ 

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 quern). Upon signing a treaty of peace, the parties — at 

135 



The Initiation, Suspension, and Termination of War 

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

The state ot war between the Parties will be terminated and peace will be 
established between them upon the exchange ot instruments ot ratification of 
this Treat>-.^^ 

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

A difterent legal technique characterized the peace process between Israel 
and Jordan. Article 1 ot 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") eftective from the exchange ot the 
instruments of ratification of this Treaty.'' 

But as tor the state ot war, the Preamble ot the Treaty reads: 

Bearing in mind that in their Washington Declaration ot 25^ July, 1994, 
they llsrael and Jordan] declared the termination of the state ot belligerency 
between them. 

The Washington Declaration ot 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 1994, the state of war 
betv\'een the two countries had ended already in July oi 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 Eg\'pt) 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 Treat\' of Peace between Israel and Lebanon,"^- which was signed in May 

136 



Yoram Dinstein 



1983 (at Qiryat Shemona and Khaldeh) but never entered into force since Leb- 
anon declined to ratify it."^^ 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) .46 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.47 

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. 0( course, new bones of contention, not foreseen at 
the point of signature of a treaty of peace, may also become catalysts to another 

137 



The Initiatiorif 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. 

a. 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,"^^ 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. "^^ 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. ^^ 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). 

Hi. 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. ^^ 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. 53 

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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). ^^ 

Article 52 does not affect equally all treaties oi peace. The text makes it 
plain that "only the unlawful use of force . . . can bring about the nullity of a 
treaty. "5^ 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.^^ 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. "^^ Only "unlawful coercion" invalidates a 
treaty. ^^ 

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 aliUj to a treaty of peace accepted 

139 



The Initiatioriy Suspensioriy 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. "^^ 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.^^ 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. ^^ 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 ah 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 
I.''^ A close look at the most famous armistice — that of November 11, 1918, 

140 



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 alidy 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.^"^ 

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). ^^ 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, "^^ and Hungary agreed to the condi- 
tion that it "has declared war on Germany. "^^ Likewise, Italy — which con- 
cluded an armistice with the Allies in September 1943^^ — 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. "^^ 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."^^ 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) ^^ — 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,^^ followed by 
the 1953 Panmunjom Agreement Concerning a Military Armistice in Korea. ^"^ 
These Armistice Agreements terminated the Israeli War of Independence and 

141 



The Initiatioriy Suspensioriy 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. "^^ The thesis (advanced in 1992) that "the Korean War is still legally 
in effect"^^ 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. ^^ 
In keeping with these principles, the parties are forbidden to commit any war- 
like or hostile act against one another. ^^ 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.) ^^ Above all, the Agree- 
ments lay down that they will remain in force until a peaceful settlement be- 
tween the parties is achieved. ^^ 

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(l) 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 

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Yoram Dinstein 



demarcation lines can be regarded as equivalent to international frontiers, with 
all the consequences which that entails. "^^ 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. ^^ 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. ^^*^ 

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. ^^^ 

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, ^^^ 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 {supray 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"), ^^^ 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 



The Initiation f 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. 

As a 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. ^'^^ Pace this doctrinal 
conservatism, the terminology has to be adjusted to fit the modern practice of 
States. ^^^ 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. ^^^ 

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. ^^^ 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 

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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.^^^ 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 a mem- 
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 jws in hello .^^^ While the jus is the same 
in every helium^ 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.^^^ That war is still in progress, unhindered 
by its inordinate prolongation since 1948, for hostilities flare up intermittently. 

a. Dehellatio 

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. ^^^ 

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."^ ^^ 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. ^^^ 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 Initiation^ Suspension^ and Termination of War 

The phenomenon of dehellatio has been recognized in many instances in 
the past.^^^ Some commentators contend that a debellado of Germany oc- 
curred at the end of World War 11,^^^ following the unconditional surrender 
of the Nazi armed forces. ^^^ However, the legal status of Germany in the im- 
mediate post- War period was exceedingly complicated. ^^^ 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. ^^^ 

Hi. 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. ^^^ In 
this way the United States proclaimed, in 1951, the termination of the state of 
war with Germany. ^^^ 

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 
on continuing 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." ^^"^ 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. ^^^ 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 
B and the tacit consent of State A (or vice versa). ^^^ 

III. 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. ^^^ 

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 



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. ^^^ 
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. ^^^ 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. ^^^ 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.^^^ 

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. ^^^ 

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. ^^^ 

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 



The Initiatioriy Suspension^ and Termination of War 

transport of the wounded left on the battlefield or within a besieged or encir- 
cled area.^^"^ The article employs the term "armistice," but what is actually 
meant in current terminology is a cease-fire. 

a. 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 oO the Governments concerned. In that case, it has the status of a 
treaty under international law.^^^ 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).^^^ 
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 matters 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 oi 
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. 

Hi. Cease-Fire Ordered by the Security Council 

The Security Council, performing its functions under Chapter VII of the 
Charter of the United Nations, ^^^ may order belligerents to cease fire. Un- 
equivocal language to that effect is contained, for example, in Resolution 54 
(1948),^^^ 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. ^^^ However, the Council does not 
rush 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. "^"^^ On other occasions, the Council 
called upon the parties to cease fire,^'^^ and less frequently demanded a 
cease-fire. ^^^ 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 



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,^4^ demanding it only in 1987.^^"^ 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. ^^^ 

The most peremptory and far-reaching cease-fire terms ever resorted to by 
the Security Council were imposed on Iraq in Resolution 687 (1991),^^^ 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). ^^^ Nevertheless, as 
the text of the Resolution explicitly elucidates, it brings into effect no more 
than "a formal cease-fire." ^"^^ A labelling of Resolution 687 as a "permanent 
cease-fire" ^^^ 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" ^^^ — 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. ^^^ 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,^^^ 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. ^^^ 

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 agreement at the behest of the Council. Even during the "Colcf 
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 



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 Israel's War of Independence, 
which called upon all the parties to cease fire for a period of four weeks. ^^"^ 
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. ^^^ 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. ^^^ 

A cease-fire provides "a breathing space for the negotiation of more lasting 
agreements." ^^^ 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. ^^^ 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. ^^'^ 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 



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 o( 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 1967^^^ and in October 1973.^^^ Israel and 
Eg>'pt negotiated a cease-fire agreement, e.g., in November 1973.^^^ Israel and 
Syria agreed on a cease-fire, e.g., in May 1974.^^^ 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"). ^^"^ 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 



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- 
ment is silent on this issue, hostilities may be "recommenced at once after noti- 
fication. "^^^ If fire can be opened at once, the practical value of notification 
becomes inconsequential. ^^^ 

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. ^^^ 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. ^^^ 

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- 
rious violations pregnant with urgency, enabling the victim to denounce the 
cease-fire and reopen hostilities immediately (without advance notice). ^^^ 

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. ^^^ 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). ^^^ 

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 



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^^ ed.,l994). 

Notes 

1. For a 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., 3"^ 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 Declarer la Guerre? 37 

Annuaire Franqais 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.G. 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 



The Initiatioriy Suspensioriy 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, 11977] UNITEDNATIONS 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 61 1,616. 

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. C/. E. Borchard, When Did the War Begin! 47 COLUMBIA LAW REVIEW 742-748 (1947); 
C. Eagleton, Acts o/War, 35 AMERICANJOURNALOF INTERNATIONAL Law 32 1,325 (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 ofthe League of Nations, 1919, 1 INTERNATIONAL LEGISLATION l,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 Setdement with Respect to Germany, 1990, 29 INTERNATIONAL 

LEGAL Materials 1186, 1187 (1990). 

27. 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, 4 1 UNITED NATIONS TREATY SERIES 2 1 ; 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. 

3 1 . 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 INTERN ATIONAL 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 



Yoram Dinstein 



40. Ibid., 46. 

4 1 . 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 359, id. (1983). 

45. Egypt-Israel, Treaty of Peace, supra note 36, at 363. See Aso ibid., 364 [Article III (3)], 367 
(Annex I, Article I). 

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 LORDMCNAIR, 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. 

57.1. Sinclair, the Vienna Convention on the Law of Treaties 180 (2^^ 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] II 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. Jimenez de Arechaga, International Law in the Past Third of a Century, 159 RECUEIL 
DESCOURSl,68 (1978). 



155 



The Initiation, Suspension, and Termination of War 

10. 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 M., 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 
1 Article 1(a)]. 

n.lbid., 140 (Article 1). 

78. Ibid., 211 1 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 252-254 (Egypt), 288-290 (Lebanon), 
304-306 (Jordan), 328-330 (Syria). 

88. Ibid., 254 (Egypt, Article II), 290 (Lebanon, Article III), 306 Qordan, Article III), 330 
(Syria, Article III). 

89. For the origin of this formula, cf Article 40 of the UN Charter (regarding provisional 
measures taken by the Securit>' 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 
XII), 340 (Syria, Article VIII). 

92. Ibid., 110 [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. Ifcid., 312 (Jordan). 

97. Ibid., 332 (Syria). 

156 



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. Roling, International 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, Merge 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 M., 191,207-210. 

112. Protocol I, supra note 12, at 114 [Article 5 1(4) -(5)]. Cf P. Bretton, Remarques surlejus 
in Bello dans la Guerre du Golfe (1991), 37 ANNUAIRE FRANQAIS DE DROIT INTERNATIONAL 
139, 149 (1991). 

1 13. 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. VERZIJL, 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 Initiation, Suspension, and Termination of War 

111. See Anonymous, Judicial Determiiiatioj^ 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 Urulateral Declaration of Peace, 39 
AMERICAN POLITICAL SCIENCE REVIEW 474, 476 (1945). 

127. See M. Sibert, V Armistice, 40 REVUE GENERALE DE DROIT INTERNATIONAL PUBLIC 
657,660(1933). 

128. Hague Regulations, supra note 70. 

1 29. 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. Securit>' 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 MILITAIREETDE 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 5 14, 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 (I.F. Dekker & H.H.G. Post eds., 1992). 

146. Security Council Resolution 687, 30 INTERNATIONAL LEGAL MATERIALS 847-854 
(1991). 

158 



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 Prohlemes du Droit de la Guerre dans le Conflit 
Indo-Pakistanais, 18 ANNUAIRE FRANQAIS 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 1 15-180 (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 Belligerants, 75 RECUEIL DES COURS 277, 337-338 
(1949). 

171. Vienna Convention, supra note 53, at 155. C/. Baxter, supra note 135, at 386. 



159 



VI 



Legal Issues of Multinational Military Units 

Tasks and Missions, Stationing Law, Command and Control 

Dieter Fleck 



IN 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 



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 bevond. 

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 countermeasures 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 GermanAJ.S. corps follow the so-called 
lead nation modely 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 



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 (1st Armored Division/Military District 
Command II in Hanover) and the major part of the Netherlands Army, i.e., the 
1st (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 o{ 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 



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 foUowmg 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 H'^^ (GE) 
Mechanized Infantry Division (Neubrandenburg) will continue to cooperate as 
they did in the LANDJUT Corps and be reinforced by the 12^^ (PL) Division as 
a new 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 o{ the constitutional discussion on Bundeswehr 
participation in out-of-area operations, which led to the Federal Constitutional 
Court's decision of 1994.^ 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 



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 l^^^ (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 
Birkerod, 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 



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 mihtary 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,^ 
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 



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 1995^^ 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 o{ foreign armed forces 'Jor 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 1 1 (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 ^^ to 
temporarily visit the Eastern part of the country, it was agreed in a 25 Septem- 
ber 1990 Exchange of Notes ^"^ 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. ^^ 

An agreement regarding temporary visits by other allied forces was con- 
cluded by an Exchange of Notes on April 29, 1998.^^ 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 
14^^ 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 



Legal Issues of Multinational Military Units 



accordance with the Visiting Forces Act^^ and the Act concerning the Part- 
nership for Peace (PfP) SOFA.^^ 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 "m 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 
rules 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,^^ 
which defines the rights and duties of Bundeswehr personnel stationed in the 

168 



Dieter Fleck 



Netherlands in provisions which are fully congruent with the Supplementary 
Agreement regarding the status offerees 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 1952^2 and the 1967 Agreement regarding NATO headquarters in 
Germany. ^^ By contrast, the Danish-German-Polish Convention of 5 Septem- 
ber 1998 on the Multinational Corps Northeast^"^ provided for specific States 
rules 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 
Fieadquarters 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 



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- 
tandisJ^ 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 



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. ^^ 

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.^^ 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.^^ 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)^^ up to Operational Command 
(OPCOM)^^ — are well established. As specified for each particular case, they 
may be exercised either permanently or on an ad hoc basis. Although extensive 
Coordinating Authority^^ is vested in the NATO commander, Full Com- 
mand, ^^ 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 



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, ^^ 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."^^ Despite the article, 
German subordinates may be ordered by their national superiors to obey the in- 
structions o( a foreign directing authority. Disobedience of the foreign supe- 
rior's instructions would be a disciplinary offence against the duty to serve 
loyally. ^^ 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."^^ However, penal sanctions are not allowed because, pursuant to 
the Military 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 o( 
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. "^^ 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 o{ the Corps Convention. "^^ 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 



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 65 a 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 o( 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 



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 



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 - BGBl - 1998 II 2438). 

2. 17th (B) Brigade, based in Spich, which forms part of the 1st (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; BGBl 
1961 II 1218, 73 II 1022, 94 II 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-Fierzegovina, 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; BGBl 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, BGBl 1990 II 3716). 

10. Vertrag zwischen der Bundesrepublik Deutschland und dem Konigreich der Niederlande 
iiber die Stationierung von Truppen der Bundesrepublik Deutschland im Konigreich der 
Niederlande vom 6. Oktober 1997 (BT-Drucksache 13/10117, pp. 56-57). 

ll.Gesetz iiber die Rechtsstellung auslandischer Streitkrafte bei voriibergehenden Auf- 
enthalten in der Bundesrepublik Deutschland (Streitkrafteaufenthaltsgesetz) vom 20. Juli 1995 
(BGBl 1995 II 554). 

12. Vertrag zwischen der BundesrepubUk Deutschland und der Deutschen Demokratischen 
Republik (iber die Herstellung der Einheit Deutschlands - Einigungsvertrag - (BGBl 1990 II 
889). 

175 



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 (BGBl 
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 1 1. 

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 ZusatzprotokoU (Gesetz zum 
PfP-Truppenstatut) vom 9. JuU 1998 (BGBl 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 iiber die Rechtsstellung ihrer Truppen hinsichtlich der im Konigreich 
der Niederlande stationierten deutschen Truppen vom 6. Oktober 1997 (BGBl 1998 II 
2407). 

21. Supra note 4. 

22. Protocol on the Status of International Military Headquarters set up pursuant to the 
North Adantic 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 Pans Protocol) of 13 March 1967 (BGBl 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. C/. 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. C/. MC 57/3 Overall Organization of the Integrated NATO Forces. 



176 



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 (BGBl 1972 I 1665) with later amendments. 

43. §§ 19, 20 Wehrstrafgesetz (MiUtary Penal Code) in der Fassung vom 24. Mai 1974 (BGBl 
1974 I 1213) with later amendments. 

44. Supra note 1, Article 10. 

45. Article 2 of the law of 11 September 1998 (BGBl 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 



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 
inmultinationalen Verbanden, in: NEUEZEITSCHRIFTFURWEHRRECHT4, 1998, pp. 152-163. 

49. Joachim Wieland, Die Beteiligung der Bundeswehr an gemischtnationalen Einheiten. 
Rechtsfragen ofener Staatlichkeit auf militdrischem Gebiet, in: Grawert/SchlinkA)^ahlAX^ieland 

(eds.), Offene Staatlichkeit. Festschrift fur 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 lof the Participating State] for that 
purpose. 



178 



VII 



International Law and the Conduct of 
Military Operations 

Stocktaking at the Start of a New Millennium 



Christopher Greenwood 



IT IS ALWAYS A PRIVILEGE to be asked to contribute a chapter to a collec- 
tion of essays in honour of a 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 



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. 

Parti 

The Legal Basis for Using Force 



D 



rior 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: 

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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,^ 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 
5 1 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 
Iraq'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 



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 of a 
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 armee'). 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.^ 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 5 1 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. ^*^ 

One further consideration is that, although Article 5 1 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. ^2 

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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. ^^ 

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. ^^ 
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." 

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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- 
rization. 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.^^ 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. ^^ 

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 



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, ^^ 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 



International Law and the Conduct of M.ilitary 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 
right, although they did so only as a secondary justification and their claims met 
with considerable resistance. ^^ 

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.^*^ The Economic Community of West African States (ECOWAS) inter- 
vention in Liberia in 1990 could only have been justified as an exercise of a 
right 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 
Iraq 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. ^^ 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. ^^ 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 



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,^^ 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 



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 



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 II 
Law and the Conduct of Hostilities 



W: 



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 oi 
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 



International Law and the Conduct of M^ilitary Operations 

and the civilian population of occupied territory — recent years have seen an 
increased emphasis on what may be termed "front Une 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 ^^ 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. ^^ 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.^^ Instead, this part of the paper will examine certain is- 
sues likely to prove particularly important in the wars oi 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 



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. ^^ 

Non-Intemational 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 o{ 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 



International Law and the Conduct of l\/[ilitary 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. ^^ 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 o{ 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 o{ 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 

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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,^^ 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 if a 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 
rights 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 



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 oi 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. '^'^ 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 



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 III 

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 



International Law and the Conduct of M.ilitary 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 of a 
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 o{ 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 



Christopher Greenwood 



(which was discussed in Part II) also has an effect upon the freedom of action of a 
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,^^ but because it can be argued 
that the sinking of the cruiser was not a necessary step in retaking the Islands. "^^ 
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 
rules 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 



International Law and the Conduct of Military Operations 

IF 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://www.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 



Christopher Greenwood 



6. The one real instance of enforcement action involving the use offeree 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 
Iraq'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, ICJ 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 1 1, 
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 prevent a resolution from being adopted. See the Advisory Opinion of the International 
Court of Justice in the Namibia case, ICJ 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 C.J. Greenwood, Is There a Right of Humanitarian Intervention? WORLD TODAY, 
(February 1993), pp. 34-40. 



199 



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 for a 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 acHvantage." 

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 Ourisdiction) 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://www.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 International 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. CondorelU and others, eds., The 

200 



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, International 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 
L'INSTITUT 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: 

It is 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. S/24540 (1992), para. 9) 

38. Part II (a), supra. 

39. See DE GUTTRY AND RONZITTI, THE IRAN-IRAQ WAR AND THE LAW OF NAVAL 
Warfare (1992). For a 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 the 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 



VIII 



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 v/as 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 oi 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 o{ 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 



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."^ 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 modem 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 jU5 in hello — 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 hello 
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 ju5 in hello. Hence, the same rules will apply in either case. 

Whether and to what extent the jus ad helium 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 hello and the jus ad helium 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 



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. ^^ 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. ^"^ State 
practice at the close of the 16th and during the 17 th 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. ^^ 

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, 1630,18 or in the Anglo-Dutch Treaty of Whitehall (1689), ^9 g^ips 
could be captured at far distance from the blockaded area if it was established 
that they clearly intended to breach the blockade ("droit de prevention"). ^^ 
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 

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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."^ ^ 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. ^^ 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 neutraUty.^^ In her famous declaration of February 28, 1780,^"^ the 
Russian Czarina Katharine II claimed that blockades, in order to be legal, 
needed to be effective: 

Que pour determiner ce qui caracterise un port bloque, on n'accorde cette 
denomination qu'a celui ou il y a, par la disposition de la puissance qui I'attaque 
avec des vaisseaux arretes et suffisamment proches, un danger evident 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. ^^ After neutral merchant shipping had again been severely 
affected by Anglo-French hostilities, some European powers reacted by a sec- 
ond armed neutrality. ^^ 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. ^^ 
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.29 Still, the block- 
ade of England effected by the Decree of Berlin of November 2 1 , 1806,^*^ and by 
the Decree of Milan of December 17, 1807,^^ as well as the blockade of France 
and its allies by Orders-in-Council of January 7 and November 1 1 , 1807,^^were 
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. ^^ 

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

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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,^^ 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 
"arretes et suffisamment proches," in view of the introduction of torpedo boats 
and the improvement of coastal artilleries, would not have been feasible 
anyway.^^ 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. ^^ Rather, the effectiveness of a blockade was to be judged 
in the light of the circumstances of each single case.^^ Fience, even blockades 
whose effectiveness could only be ascertained after a lapse of time were 
generally accepted as binding.^^ The application of the doctrine of continuous 
voyage to blockades led to a further erosion of the principle of effectiveness."^^ 

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 etablir ou 
maintenir un blocus de commerce est interdit.^l 

In the course of the conference, that proposal was not discussed further in 
the Third Commission. ^^ jj-^ [^^ report and draft convention, the Comite 
d'examen merely included the following paragraph 3 in Article 4: 

II est interdit de placer des mines automatiques de contact devant les cotes et les 
ports de I'adversaire dans le seul but d'intercepter la navigation de commerce. '^^ 

With regard to that rule the Comite d'examen held that 

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il s'agirait seulement de determiner, en examinant les mines, comme moyen de 
nuire a I'ennemi, si Ton pent s'en servir dans le but de barrer la navigation 
commerciale de I'adversaire — question a laquelle, parait-il, on devrait repondre 
negativement. Cela etabli, on pourrait confier au Comite le soin de bien faire 
ressortir cette pensee commune, tout en laissant hors de discussion I'application, 
au sujet de I'emploi des mines, des principes de la Declaration de Paris 
concemant I'effectivite 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."^^ 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 — rise 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. "^^ 

Hence, it was left to the 1909 London Conference to codify the law applica- 
ble to naval blockades. The 2 1 articles devoted to that subject in the 1909 Lon- 
don Declaration can be summarized as follows:"^^ 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. ^^ 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 1 1) .^^ 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 

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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. ^2 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.^^ 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. ^^ 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.^^ During the Second World War that practice was re- 
peated and led to even further restrictions of neutral trade. ^^ 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, 

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Naval Blockade 



1939, may be required to discharge in a British or AlUed 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) if it 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 [. . -1 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 

[. . .1 developments in the techniques of naval and aerial warfare have turned the 
establishment and maintenance of a naval blockade in the traditional sense into 

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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. ^^ 

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.^^ 

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.^2 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.^^ 

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 

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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. ^^ 

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 
risk 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. ^^ 
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.70 

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 jU5 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,^^ and of 
the Canadian^"^ 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.^^ 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.^^ 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 



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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. ^^ The blockade need not be restricted to vessels; 
it may also be applied and enforced against aircraft.^ ^ 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.^^ 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.^^ Neutral 
vessels in distress should not be prevented from entering and subsequently 
leaving a blockaded area.^^ According to the U.S. and the German manuals, a 
further exception applies to neutral vessels (and aircraft) engaged in the car- 
riage 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) fi^ 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. ^^ 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. ^^ If they resist an attempt to establish identity, 
including visit and search, they may be attacked. ^^ 

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.^^ 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. ^^ 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 



Naval Blockade 



maritime jus in hello 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 undisputed that 

• a blockade must be declared and that the declaration must contain the 
details laid down in Article 9 o{ 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. ^^ 

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. ^^ Whether that is the case cannot be determined in 
ahstracto 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. ^^^ 

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 



Wolff Heintschel von Heinegg 



the maritime jMS in bello.^^^ In view of the overall importance of aerial recon- 
naissance and of the legitimate incorporation of the airspace into the regime oi 
blockades, ^^^ a blockade may be maintained by military aircraft, submarines or 
even by naval mines. ^^^ 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. "^^"^ 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") ^^^ are present in the 
vicinity of the blockaded area in order to make sure that such vehicles remain 
unharmed. ^^^ 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.^^^ 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. ^^^ 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. ^^^ 

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 

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Naval Blockade 



question is a matter of dispute in the legal literature. ^^"^ 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. ^ ^^ 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. ^^^ 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."^ 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. 

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

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Wolff Heintschel von Heinegg 



as some authors, ^^'^ 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."^^^ 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- 
j|-y 122 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." ^^^ 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. ^^"^ That obligation, which is also recognized in the lit- 
erature, ^^^ 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. ^^^ 

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. ^^7 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. "^^^ 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 



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.^^^ 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, ^^^ 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. ^^^ 

It must, however, be realized that, in view o( 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 jU5 in 
hello 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. ^^^ 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 hello 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 



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), THE 

COMMANDER'S HANDBOOK ONTHE Law OF Naval Operations, NWP 1-14M, para. 7.7.1. 

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, 
7thed., 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. 

7. "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 Hocus 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 H.J.W. VERZIJLAV.P. 
HEERE/J.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 CAPTUREATHE 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 {{. (by L. Doswald-Beck); p. 185 f. (by W.J. Fenrick/K.S. Carter); p. 187 {(. (by D. Fleck); p. 
201 a (by J.A. Roach); p. 205 f. (by H.B. Robertson, Jr.). 

219 



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 WAR AND 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, 112f., 114ff., 
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. Ill ff. 

14. HUGO GROTIUS, DE jure BELLI AC PACIS, Liber III, Cap. I, Para. V. 

15. C. VAN BYNKERSHOEK, QUAESTIONUM, supra note 12, p. 87 i(., 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 fU H.J.W. VERZIJL, supra note 7, p. 424 ((. See also E. 

DE Vattel, Le Droit des Gens ou Principes de la loi Naturelle, Book ill, § 1 17, 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 H.J.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 to a 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. PH.C. 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 FRANQAISE ET la LIGUE DES NEUTRES DE 1780, Paris 
1893, pp. 20, 68 ff.; R. KLEEN, NEUTRALITE I, supra note 1 1, p. 576 {{.; U. Scheuner, Neutralitdt, 
hewaffnete, in: Strupp/Schlochauer (eds.), WORTERBUCH DES VOLKERRECHTS, Vol. II, pp. 
596-597. 



220 



Wolff Heintschel von Heinegg 



24. That declaration can be found in: TH. NIEMEYER, URKUNDENBUCH ZUM 
SEEKRIEGSRECHT, Berlin 1913, p. If. 

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 1 1, 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 fi 

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 I'Angleterre, en 1888, paraissent avoir demontre la 
necessite, pour I'escadre de blocus, de modifier frequement la position de ses navires, de 
les eloigner de temps a autre, pour donner aux equipages un repos indispensable. [. . .] Les 
attaques de nuit sont les plus perilleuses; il faut, pour les prevenir ou les dejouer, changer 
souvent de place, tromper par la mobilite du but les calculs de I'aggresseur projeter parfois 
en un point inattendu la lumiere qui permettra de le surprendre, au besoin disparaitre et le 
laisser s'epuiser a 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 1(1809) Roscoe II, 106 and 108], Lushington had held 
that "if a 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 at a 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. MallisonAV.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. 5 14 
(1865)1. The Springboek [5 Wall. 1 (1866)] and The Peterhoff [5 Wall. 1 (1866)]. See also H.W. 
Malkin, Blockade in Modern Conditions, BRITISH YEARBOOK OF INTERNATIONAL LAW III 
(1922-23), pp. 87-98, 92 {i; H. Wehberg,, Seekriegsrecht, supra note 10, p. 158 (t; 0. SCHRAMM. 
DAS PRISENRECHT IN SEINER NEUESTEN GESTALT, Berlin 1913, p. 172 H. 

41. Printed in: TH. NIEMEYER, URKUNDENBUCH, supra note 24, p. 736. 

42. In its report, the Comite d'examen stated that 

on dut se demander, si la discussion de la proposition britannique n'outrepassait pas les 
limites de la competence de la Troisieme Commission. On fit observer que la question de 

221 



Naval Blockade 



savoir quand et comment un blocus peut etre etabli, est du ressort de la Quartieme 
Commission, qui aurait a s'occuper de la matiere du blocus de guerre; c'est notamment a 
la Quatrieme Commission qu'il devrait appartenir de se prononcer sur toute question 
concernant I'effectivite 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 
belligerant une echappatoire 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 191 1, 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, Washmgton, D.C. 19 10, p. 

25 ff. 

48. See the Rapport general presente a la Conference Navale au nom du Comite de 
Redaction; 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 
general; printed in: TH. NiEMEYER, URKUNDENBUCH, supra note 24, pp. 1247 {(. 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 H.\ H. Wehberg, Seekriegsrecht, 
supra note 10, p. 170. In the Rapport general (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'etendre assez loin, mais, 
comme il depend du nombre des batiments concourant a I'effectivite du blocus, et comme 
il teste toujours limite par la condition d'effectivite, il n'atteindra jamais des mers 
eloignees sur lesquelles naviguent des navires de commerce, peut-etre destines aux ports 
bloques, mais dont la destination est subordonnee aux modifications que les circonstances 
sont susceptibles d'apporter au blocus au cours du voyage. En resume, I'idee de rayon 
d'action liee a celle d'effectivite telle que nous avons essaye de la definir c'est-a-dire, 
comprenant la zone d'operations des forces bloquantes, permet au belligerant d'exercer 
d'une matiere efficace le droit de blocus qui lui est reconnu, et, d'un autre cote, elle evite 
aux neutres d'etre exposes a grande distance aux inconvenients du blocus, tout en leur 
laissant courir les dangers auxquels ils s'exposent, sciemment en s'approchant des points 
dont I'acces est interdit par le belligerant. 

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 H. 



Til 



Wolff Heintschel von Heinegg 



53. H. Wehberg, Seekriegsrecht, supra note 10, p. 166; H.W. Malkin, supra note 40, BYIL III 
(1922-23), p. 93; R.W. 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. 62 1 
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.; R.W. 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 II, 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 III (1922-23), p. 87 f.; 
OPPENHEIM, supra note 4, p. 796 f.; C.J. COLOMBOS, supra note 4, §§ 839 ff. 

60. That view is taken by R.W. TUCKER, supra note 10, p. 285 f.; and E. CASTREN, THE 

PRESENT Law OF War and Neutrality, Helsinki 1954, p. 314 ff. 

61. L.H. 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, Bedin/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 
f.; J.G. Verplaetse, The lus in Bello and Military Operations in Korea 1 950-1 953, ZEITSCHRIFT FUR 
AUSLANDISCHES OFFENTLICHES RECHT UND VOLKERRECHT 23 (1963), pp. 679-738, 698 ff. 



223 



Naval Blockade 



63. M.W. CAGLE/F.A. MANSON, THE SEA WAR IN KOREA, Annapolis 1957, p. 281 {(. 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 {{.; J. Rohwer, MaRINE-RUNDSCHAU 71 (1974), pp. 7-26, 19; R. OTTMULLER, 
ANWENDUNG von SEEKRIEGSRECHT, supra note 61, pp. 274, 285 f.; 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. 
747-751. See also D.P. O'CONNELL, THE INFLUENCE OF LAW ON SEAPOWER, Manchester 
1975, pp. 64 f., 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. 1 976) , p. 5 1 ; R. OTTMULLER, ANWENDUNG VON SEEKRIEGSRECHT, supra note 6 1 , p. 23 1 
{i 

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 f., 301; R.R. Baxter, The Law of War in the Arab-Israeli Conflict: On Water and on Land, 
TOWSON STATE JOURNAL OF INTERN ATIONAL 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: I.F. 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. OTTMULLER, ANWENDUNG VON SEEKRIEGSRECHT, supra note 61, pp. 71 f., 96 f., 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/MCWP5-2.1/COMDTPUBP5800.1 (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 M4M, 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 M4M, para. 7.7.1; GERMAN MANUAL, para. 1051 (1); Canadian Draft, para. 722 
(1). 



224 



Wolff Heintschel von Heinegg 



82. NWP M4M, para. 7.7.2.4; Canadian Draft, para. 722 (6). 

83. NWP M4M, para. 7.7.3; Canadian Draft, para. 722 (10). 

84. NWP M4M, para. 7.7.3; Canadian Draft, para. 722 (11). 

85. NWP M4M, 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: 

In so far as the purpose of a blockade is to deprive the enemy population of foodstuffs, 
so 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 
hostihties, applies to all attacks from the sea against objectives on land Art. 49 (3) [...]. 

87. NWP M4M, 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; G.J.F. van Hegelsom, Introductory 
Report, in: W. Heintschel v. Heinegg (ed.), METHODS AND MEANS OF COMBAT IN NAVAL 
Warfare, Bochum 1992, pp. 1 {{., 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 of a 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 ii 

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, b . .] 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. 

225 



Naval Blockade 



94. R.W. TUCKER, supra note 10, pp. 287 f., 291; CH. ROUSSEAU, supra note 54, p. 267 f.; 
OPPENHEIM, supra note 4, p. 775 f.; C.J. COLOMBOS, supra note 4, §§ 822, 824, 826; E. 
CASTREN, supra note 60, p. 296 ii; Y. Dinstein, The Laws of War at Sea, ISR. YBHR 10 (1980), 
pp. 38 ff., 50 ff., and Sea Warfare, in: R. Bernhardt (ed.), ENCYCLOPEDIA OF PUBLIC 
INTERNATIONAL LAW, Installment 4, North Holland 1981 {{., 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 f{., 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 lit. (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 i(.; C.J. COLOMBOS, supra note 4, §§ 819 f.; 840 f.; J. 
STONE, supra note 59, p. 493; CH. ROUSSEAU, supra note 54, p. 263 if.; R.W. 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 LA. 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, Berhn/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 of a 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 M4M, para. 7.7.2.3. 

102. For an in-depth analysis of the legaUty 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. 0( course, in view of the dangers involved, belligerents are 



226 



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.; R.D. 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 hello. 

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. 1 139. 

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 M4M, 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 ((.; C.J. 
COLOMBOS, supra note 4, § 832; E. CASTREN, supra note 60, p. 304 ff.; D.P. O'CONNELL, LAW 
OF THE SEA II, supra note 97, p. 1 156 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 C.J. 
COLOMBOS, supra note 4, §§ 829, 831. 

113. NWP M4M, 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. 3 10, 316, footnote 80; H. Wehberg, Seekriegsrecht, 
supra note 10, p. 161; P.A. MARTINI, BLOCKADE, supra note 97, p. 72 {{.; 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 



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 (U 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 spirit. 
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; 

Pari. 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. 541 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 0{(. 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 Geneve de 1949 et le droit de la 
guerre maritime, REVUE GENERALE DE DROIT INTERNATIONAL PUBLIC 89 (1985), pp. 243-298, 
270 ff., 276 ff.; G.J.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/J. 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. PARTSCHAV.A. SOLF, NEW RULES FOR VICTIMS OF 
Armed Conflicts, The Hague et a/., 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 



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 1. . .]." 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 1- . .]. Starvation of civilians as a method of warfare has potential 
implications on the law of blockade 1 . . .]." 

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: "b . .] if the sole purpose of the blockade is to 
starve the civilian population, the blockade should be deemed illegal on the grounds that it is 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 f.; G.J.F. van Hegelsom, Introductory 
Report, supra note 89, p. 46 f.; 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 
relief 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 



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 International Prize Law, in: H.H.G. Post 
(ed.), INTERNATIONAL ECONOMIC LAW AND ARMED CONFLICT, Dordrecht et al. 1994, pp. 5 
a, 27. 



230 



E 




Dispute Settlement under the 1997 

Convention on the Law of the 

Non-'Navigational Uses of 

International Watercourses 



Ruth Lapidoth 




INCH 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 
rules. ^ 



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. ^ 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.^ 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 o( 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, ^^ communication in reply, ^"^ 
and consultation.^^ If, nevertheless, a conflict occurs, it should be solved by ne- 
gotiations upon the request of one of the parties. ^^ 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 



Ruth Lapidoth 



institutions that may have been estabUshed by them, or agree to submit the dis- 
pute to arbitration, or to the International Court of Justice." ^^ 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. ^^ 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. ^^ 

Dispute Prevention 

The first means of preventing disputes is the exchanging of information. 
"Watercourse states shall on a regular basis exchange readily available 
data . . . "^^ "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. "^^ 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. ^^ 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 "^^ 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."^^ 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.^^ 

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 



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. ^^ 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. ^^ 

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. "^'^ 
Another provision deals with the situation in which there is disagreement on 
whether other riparian States have to be notified of certain plans. ^^ 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. ^^ 

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. ^^ At the other 
extreme were States that opposed any compulsory procedures. ^"^ Between these 

234 



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, each part>' would state whether it would be bound to compulsory 
arbitration and/or compulsory- adjudication before the International Court of 
Justice. ^^ By contrast, the International Law Commission had recommended 
compulsory fact-finding,^^ whereas Drafting Group Chairman Professor 
Lammers had favored compulsorv^ fact-finding plus an "opt-in" procedure.^^ 
Some supported compulsory- fact-finding plus an "opt-in" procedure plus com- 
pulsory- conciliation.^^ These examples show the extent to which opinions on 
the subject differed. 

The reasoning against compulsory- binding third-part\- involvement is ob\-i- 
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 ser\-e 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"^ 

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. It ever\- 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 >-ield 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 difhculry- 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 o{ a neutral third parry- 
with power to adopt binding decisions would be particularly valuable."^ ^ More- 
over, the very existence oi a compulsory- and bindmg 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 



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. "^^ For such an arbitration, the convention has also laid down optional 
rules 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. ""^^ The "sub- 
ject matter" is probably equivalent to the question submitted for arbitration."^^ 
The tribunal shall consist o( 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 o^ any of the parties or the other 
riparians. 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. "^^ 

The rules to be applied by the arbitrators have been defined as "...[T]he 
provisions of this convention and international law.""^^ 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. "4^ 

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 



Ruth Lapidoth 



facilitate the work of the tribunal. ^^ 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.^^ 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.^^ 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. ^^ 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 if a con- 
troversy arises with regard to the interpretation or manner of implementation 
of the award. ^^ 

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 
rights. 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?^^ 

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 

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." 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. ^^ 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. ^^ 
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. ^^ 

238 



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. "^^ 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. "^^ 

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 Tact-finding Commission of Inquiry'' satis- 
fies the need for modernization. . .."^^ 

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. ^^ 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 



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. ^^ 

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.^^ 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 

77 

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. ^^ 

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 



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.^^ 

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 o{ 
reference that circumscribe the precise area in which it is to operate. These terms 
o{ 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 



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. 



I he 1997 Watercourses Convention has provided for conflict preven- 
Ji. 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 o( 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.^^ 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.^^ 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."^"^ Moreover, one has to remember 
that with regard to water, there may exist psychological factors, as well as reli- 
gious sensitivities.^^ 



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 



Ruth Lapidoth 



Notes 

1. The Convention is annexed toUNGA 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 
Chazoumes, 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 International 
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, 1 1 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 I.C.J. 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 
(II), 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'lNSTITUTDE 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 International Disputes on Shared 
Resources: Elements of a Comparative Study of International 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, 1 7 ECOLOGY LAW QUARTERLY (1990) , p. 74 1 . 

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 



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 (II) (Part One), p. 178, and 1984 (II) (Part One), p. 116). See also the 
judgement of the International Court of Justice in Gabcikovo-Nagymaros case, supra note 3, at 
para. 147. 

11. 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). 
n.lbid. 

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.6/5 1/NUW/DC/CRP.lO, 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.6/5 1/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.6/5 1/NUW/WG/CRP.8 2, 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.6/5 1/NUW/WG/CRP.62, of October 
18 and 22, 1996. 

36. Supra note 1. 

37. A/C.6/5 1/NUW/WG/CRP.83, of March 27, 1997. 

38. E.g., proposal by Finland, Greece, and Italy, supra note 35. 

244 



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 



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 F act-Finding by International 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 H.S. 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, 45^^ 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 Fairness 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 History and Status of the 
International Criminal Court 



Howard S. Levie 



TT T 

I 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. 



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."^ 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 
Hohenzollem, 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 



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 parties 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 



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."^^ 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, o( 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.^^ 

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 o( 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. H 

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

250 



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 o{ 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 
reasons, 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. 

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. ^^ 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. ^^ 

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 MiUtary Tribunal. ^^ 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 



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-treatment 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 o( 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 
11.19 

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 



Howard S, Levie 



and the Secretary-General was directed to submit a specific proposal for the es- 
tablishment of such a Tribunal. 20 He did so,^^ and his proposal was adopted by 
the Security Council. ^^ 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. "^^ 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 
a convention establishing an international criminal court which would have ju- 
risdiction, 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. 2"^ 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. "2^ 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 



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;^^ grave 
breaches of the four 1949 Geneva Conventions^^ and the 1977 Protocol I Ad- 
ditional to those Conventions;^^ 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;^^ hostage-taking and related 
crimes as set forth in the 1979 International Convention Against the Taking of 
Hostages;^^ and the crimes set forth in Article 3 of the 1988 Convention for the 
Suppression of Unlawful Acts Against the Safety of Maritime Navigation^"^ 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.^^ 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.^^ 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. ^^ 
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 



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."^^ 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 I"^^ 

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 concern, 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.^^ Article 3 provides 
that The Hague shall be the seat of the Court but that it may sit elsewhere as 
provided in the Statute. ^"^ 

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. "^^ 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.^^ 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."^ '' 

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 



The History and Status of the International Criminal Court 

non-retroactivity ratione 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.^^ 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. ^^ 

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 
rules 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 5 1 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 



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.^^ 

The Statute contains a number of provisions for the protection of individu- 
als. Thus, Article 55 has provisions protecting persons during the investigation 
of an 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. ^^ 

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 8 1 ( 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 (l)(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. ^^ 

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 



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 1 1 (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 



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; II 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. 

1 I.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) thereinafter 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. 
17.1bia.atll79, 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 Mac Arthur 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 corrimitted 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 I.L.M. 1163 (1993). 

22.S/RES 827 (1993), May 25,1993; 32 I.L.M. 1203 (1993). 

23.32 I.L.M. 1194, (S/RES 955 (1994), Nov. 8, 1994. S/RES/955, Nov. 8, 1954, 33 I.L.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/CON F.183/2/Add.l, 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 



The History and Status of the International Criminal Court 

It 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 I.L.M. 253 (1994). 

26.78 U.N.T.S. 277; 151 B.F.S.P. 683; THE LAWS OF ARMED CONFLICT 231 (Dietrich 
Schindler &. Jifi Toman, eds., 3rd ed. 1988). 

27.6 U.S.T. 3114-3695; T.I.A.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 I.L.M. 133 (1971). 

30.974 U.N.T.S., 177; 10 I.L.M., 1 151 (1971). For some strange reason, the supplement to 
this Convention, the 1988 Protocol for the Suppression of Violence at Airports Serving Civil 
Aviation 27 I.L.M. 627 (1988), was not included. 

31.UNGA/RES 3068 (XXVIII); 13 I.L.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 I.L.M., 672(1988); 

35.27 I.L.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 120forand7 
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 of all 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 International 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: 
http/www.un.org/icc part l.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: 

... I 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 



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. 

I received 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 not a 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. INT'L L. Supp. 146 (1950). 

50. See note 28, supra. 

261 



The History and Status of the International Criminal Court 

5 1. See Howard S. Levie, The Rise and Fall of an Internationally 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. It 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. It 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 




I 



The Charter of the United Nations 
as a World Constitution 



Ronald St, J. Macdonald 

Forty-seven -years ago 1 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 1 
watched with admiration as he travelled the world garnering 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. 



T 



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 
a mere 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 Delia Mea in the preparation of this paper. 



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 
rights. 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 Octroyee" 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 



Ronald Su 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 
rights 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, "i/ est tres remarquable a cet egard que, tout au long de la Charte, comme 
cest le cas du preamhule, tout disposition qui evoque les droits de rhomme traite aussi 
des problemes economiques 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 oi new member States, the general principle of 
self-determination became a principle o( jus cogens, stating the right to 

265 



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 jU5 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 



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- 
rior 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. ^^ 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.^^ 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. ^"^ 

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 



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 



Ronald Su 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. ^^ 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. ^^ 

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. "^^ As 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. ^^ 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. "^^ 

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 



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 
rule is contained in Article 51, which allows the use of force in case of individ- 
ual or collective self-defense.^^ 

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.^^ 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.^^ 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 
Iraqi 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."^^ 

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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 \966P 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. "^^ 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. "^^ 

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. ^"^ 

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. "^^ 

In my opinion. Chapter VIII, although focused on collective security, in no 
way rules out regional cooperation in the economic, cultural, and social fields. 

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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. "^^ 

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 o{ 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 

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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. 



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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, ^^ 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, Indonesia 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. ^^ 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.^^ 

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. ^^ When a resolution restates 

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Ronald Su 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. ^^ 
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. ^^ 

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. "^^ 

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 ju5 cogens or erga 
omneSy 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. 

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Charter of the United Nations as a World Constitution 

Resolution 217A (III) 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 jU5 cogens. Several other important statements, such as the Declara- 
tion on the Rights of the Child (Res. 1386 IXIV] 1959) and the Declaration on 
Racial Discrimination (Res. 1904 IXVIII] 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. "^^ 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. 

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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.""^ 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.^4 

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 ju5 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; 

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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; 

(0 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. '^^ 

(c) Both the Declaration on Friendly Relations and the Resolution on the 

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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."^^ 

(e) Self-determination was originally intended by the drafters of the Charter 
to refer to nationalities, not to peoples under colonial domination."^^ 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 helium 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. "^^ 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 

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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 o( 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 are 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, 

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Ronald Su 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 (XVIII) 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. 

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Charter of the United Nations as a World Constitution 

Resolution 1962 (XVUl) 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 ot 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 ot 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 capacit\'. As Zemanek affirms, "The word 'measures' used in 
Articles 39, 41, and 42 oi the Charter does not suggest that the Security Coun- 
cil may generate rules of general international law by decision. "^^ Yet this is ex- 
actly what the Council has done on several occasions since 1989.^^ The first 
legally doubtful act of the Council after the end o{ the Cold War was the dele- 
gation of the use of force in the intervention against Iraq.^"^ More significant 
from a law-making point of view was the guarantee o{ 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 

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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. ^^ 

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. ^^ 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.^^ 

The lack of explicit dissent, according to the maxim qui tacet consendre 
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. "^^ 

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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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 

1 have 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. 

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 

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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 

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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 offish 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. "^^ 

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 

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Ronald Su 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, [andl 
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 



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 a rule, the Council votes with a qualified majority, ^^ 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.^^ 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. 

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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;^^ 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 

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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. ^^ 
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. ^^ 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.^^ 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. "^^ Externally, the major con- 
sequence of the existence oi 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 

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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,^^ 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.^"^ 

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 duree 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 infieril 

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,"^^ many scholars remain reluctant to recognize the 
Charter as other than a historic instrument founding a permanent system of 

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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 o{ 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. "^^ 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.^^ 

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. ^^ 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.^^ 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.^^ 

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"^^ 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."^^ 
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."^^ 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. "^^ 

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 

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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. "^^ 

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. ^^ 

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 (octroyee) Iby 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 

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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 GlULIANO, TULLIO SCOVAZZI, TULLIO 
Treves, DIRITTO INTERNAZIONALE (Milano: Giuffre, 1991), p. 238; R. St. J. Macdonald, The 
Charter of the United Nations and the Development of Fundamental Principles of International 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-PlERRE 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, Preambule, 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. Gumming trans., 2nd ed., 
1975), p. 263. 

8. Richard Falk, Explaining the UN's Unhappy Fiftieth Anniversary: Tovuards 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, II Consiglio di Sicurezza nel nuovo scenario internazionale: prospettive di 
riforma nella struttura e nelle procedure, 48 COMUNITA INTERNAZIONALE 683-700 (1993). 

1 1 . Luigi Ferrari Bravo, Prospettive del Diritto Internazionale alia 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" deU'ordinamento internazionale, 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 



Ronald Su J. Macdonald 



resemble humanitarian 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 I et 2, in COT ET PELLET, note 5, p. 45 Iff. 

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. 452ff. 

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 5 17ff. (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 INTERN AZION ALE 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 



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, II recesso dall'Organizzazione delle Nazioni Unite: il caso 
dell'lndonesia, 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, International 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 International 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 International Law, 

25 Canadian Yearbook of International Law I30ff. (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. ICJ 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 Norms in International Law, in Volkmar Gotz, Peter 
Selmer, Rudiger Wolfrum (Hrsg.), LiBER AMICORUM GUNTER JAENICHE - Zum Beispiel 
Gieburtstag (Max Plank Institut, Beitrage zum auslandischen offentlichen Recht und 
Volkerrecht, Band 135) (Berlin, Springer, 1998), p. 27. 

5 1 . 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 



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 Securite 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 Intern AZION ale 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 LJnited 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, art. 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 1 970 and 1 998, 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 
WANGTIEYA (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 



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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 processofcreatinganever 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 
. . . Ithe] 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 {(. 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 

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Ronald Su 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 International 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 ofEPU, 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. Eraser 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 Smyter, The United Nations and the European Union: Living 
Apart Together, in Wellens (ed.), note 31, p. 439. 

85.QizhiHe, note4, 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 legal 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 



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 universahty, 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 INTERN AZION ALE 
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. 



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XII 



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 oi France. 

This article is based on an inaugural lecture delivered on November 7, 1998, at the 
Graduate Institute of International Studies in Geneva. 



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- 
ring 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: 

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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- 
rists regarded non-combatant servants of an army, even when not involved in 

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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." 

If 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. 

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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 

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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 report 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 

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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 
rape 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 realpolidky 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 

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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 article — 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 



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 
IHL 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 



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 rules, 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, 

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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 



XIII 



Legal Implications of NATO^s Armed 
Intervention in Kosovo 



Ved P. Nanda 



I 



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 alii- 
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 5 1 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 



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. 5 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 fore [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 



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.^ 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 
3 1 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." ^^ 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. ^^ 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." ^^ 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 [Statel"^^ 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." ^^ 

On October 13, the NATO Council authorized Activation Orders for air 
strikes^^ to be undertaken by NATO military forces within 96 hours as part of a 

315 



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 11 99 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. ^^ The United States also succeeded in diplo- 
matic negotiations under which Yugoslavia agreed on a framework for a politi- 
cal settlement of the conflict.^^ 

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 Glaus Naumann and Wesley Clark, NATO called off the 
air strikes. '^'^ 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 allay 
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. ^^ 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. "^^ 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. "^^ 

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. "^^ 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 



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.^ 1 

The relatively optimistic picture presented by the UN Secretary General, 
however, did not live up to its promise. As a 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.^^ 
The urgency of the mandate was underlined by NATO's commitment to strike if 
required.^^ 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, ^"^ the basic principles of the 
framework were the maintenance of territorial integrity of the Federal Republic 
of Yugoslavia and political autonomy for Kosovo.^^ 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.^^ 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 "^^ 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.^^ 

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 
U.S. envoy Richard Holbrooke to persuade Milosevic to sign the accords failed, 
and on March 23 NATO's air campaign — "Operation Allied Force" — was 
launched. ^^ 

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 



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 civiUan population 
of Kosovo . . . [and] to prevent instability spreading in the region."^^ 

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.'^^ 

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. "^^ 

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 "^^ 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 



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. ""^^ 

Civilian casualties continued to occur, however, because of errors as these 
smart bombs would miss their targets."^^ 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."^^ 

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 lYugoslavia's] 
economy. For example, Mr. Sommaruga Ithe 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.^l 

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. ^^ 
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."^^ The bulk of 
the cost, $23.2 billion, is the estimated loss to Yugoslavia's gross domestic prod- 
uct over the next decade. ^^ 

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 



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 S55yOOO, according to the UN High Commissioner for Refugees, while sev- 
eral hundred thousand were displaced. ^^ 

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. ^^ 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.^^ 
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. ^^ 

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.^^ 

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 



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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.^"^ 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,^^ a deal was struck between President Milosevic and NATO to 
end the bombing. The Yugoslav Parliament accepted the peace document. ^^ 

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.^^ 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. "^^ 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. ^^ 

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 



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. ^^ 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."^^ 

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. ^'^ 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. ^^ 

The NATO action was strongly supported by the representatives of the 
United States, ^^ United Kingdom, ^^ and Canada, ^^ 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.^^ 

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. ^^ 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.^^ 

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."^2 He also said that 

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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. "^"^ 

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.^^ The Chinese representative read a 
statement from his government that said: 

Flagrant bombing by NATO, led 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. "^^ Fie was joined by the representative of 
Russia expressing outrage "over the barbaric action," and calling for an imme- 
diate halt to the strikes. ^^ The United States representative expressed his gov- 
ernment's regrets and offered condolences to the Chinese Ambassador,^^ and 
was joined by several other representatives expressing their sympathy to China 
and condolences to families of victims. ^^ 

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. ^^ The Council 
decided that the General Principles adopted by the G-S Foreign Ministers on 

323 



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."^"^ 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."^^ 

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 [couldl return home in safety, the international civil pres- 
ence [could] operate, a transitional administration [could] be established, and 
humanitarian aid [could] be delivered. "^^ 

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. ^^ 

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. ^^ Fiowever, the dreams of establishing 

324 



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democratic institutions in Kosovo and building a multiethnic, multicultural so- 
ciety there are far from realization. 

Yugoslavians 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. "^^^ Similar claims were brought against nine other main NATO 
countries: Canada, ^^^ France, ^^^ Germany, ^^^ Italy, ^^"^ the Netherlands, ^^^ 
Portugal, ^^^ Spain, ^^7 the United Kingdom, I'^S and the United States. ^^^ 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 ^ 1^ 

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 



Legal Implications of NATO's Armed Intervention in Kosovo 

jurisdiction of the Court might be established."^ ^^ 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,^^^ 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. "^^^ 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."^ ^^ 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. ^^^ 

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.^^^ 

With minor variations, the Court also rejected Yugoslavia's claims against 
other NATO members. ^^^ 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^^^ 
and the United Kingdom, ^^^ 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. "^^"^ The Court also asked the parties to "take care not to aggravate or 

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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. ^^^ 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. "^^^ 

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. ^^^ 
Costly miscalculations had led the alliance to begin air strikes. ^^^ 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 sent a 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 



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 
relations. The only exceptions are: action taken by the Security Council 
under Chapter VII, regional actions under Chapter VIII, and unilateral or 
collective self-defense measures under Article 51. A regional body may 
legitimately use force only pursuant to prior authorization by the Security 
Council. 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. "^^"^ 

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. ^^^ This, he said, 

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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. ^^^ 

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 miUtary 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?"^^^ 

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."^^^ 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."^^^ 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. HO 

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." H^ 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 



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. ^^^ 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. ^^"^ 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." ^5 

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." ^"^^ He emphasized that under 
the Charter the Security Council is required to be the defender of the "com- 
mon interest," ^"^^ 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. ^"^^ 

It 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 



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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. 



I 



t would have been preferable for the UN to have undertaken armed inter- 
J_L 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. ^^^ 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, ^^^ 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. Id., art. 5. 

3. U.N. CHARTER arts. 2(4), 24, 103; chs. VII, VIII. 

4. See S.C. Res. 1244, U.N. 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://www.nato.int/ 
kosovo/history.htm>. (updated 15 July 1999) thereinafter NATO's Role]. 

7. See id. 

8. U.N. Doc. S/1998/223, Mar. 9, 1998; S/1998/272, Mar. 25, 1998. 

9. See U.N. Doc. S/1998/246, Mar. 1 1, 1998. 

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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. 1 199, U.N. SCOR, 53rcl Sess., 3930th mtg., U.N. Doc. S/RES/1 199 (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. S/1998/978, Oct. 16, 1998. 

22. See U.N. Doc. S/1998/991, annex, Oct. 15, 1998. 

23. See U.N. Doc. S/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://www. 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://www.nato.int/docu/speech/1999-/s990413a. htm>. 

332 



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. Id. 

55. Destruction, Casualties, Costs and Other Facts in the War Over Kosovo, AP, June 10, 1999, 
at 1, <http://www.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 Al, 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 1 10 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://www.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. S/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 
AH, 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 vuith 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 thereinafter 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. at 29A, 
col. 2; Editorial, The Kosovo Peace Plan, id. at 28A, col. 1; Michael Wines, Reception in Moscow for 



333 



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. la. 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. S/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 



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. S/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 I.L.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. ICJ, Legality of Use of Force (Yugoslavia v. France), reprinted at id. at 1059. 

103. ICJ, Legahty of Use of Force (Yugoslavia v. Germany), reprinted at id. at 1075. 

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

105. ICJ, 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. 
lll.Id. at953, para. 7. 

112. See id. at 954. 

113. Id. at 955-956, paras. 16-19. 
IH.ld. at956, 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. 
118.1d. at 961-962, para. 51(1). 
119. Id. at 958-960, paras. 34-41. 



335 



Legal Implications of NATO's Armed Intervention in Kosovo 

no. 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. 
125.1d., 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 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. 

133. Article 53(1) reads in part: "The Security Council shall, where appropriate, utihze 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 G A/9595, Sept. 20, 1999, at 
3 thereinafter 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 



Ved Nanda 



142. Michael F. Glennon, The New Interventionism — The Search for a Just International Law, 
FOREIGN Affairs, May/|une 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 International Law — Pt. II, 26 
DENY. J. INT'L 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. Id. 

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, <http://abcnews.go.com/sec- 
tions/world/DailyNews/Kosovo Serbs Flee 990825.html>. 



337 



XIV 



Making Law of War Treaties 

Lessons from Submarine Warfare Regulation 



W. Hays Parks 



fn 



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 P and IP 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. 



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.^ 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.^^ 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.^ ^ 

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,^^ 
and the Annex Thereto, ^^ there are 188 States Parties to the Geneva Conven- 
tions for the Protections of War Victims of August 12, 1949,^"^ 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,^^ the 
International Criminal Tribunal for Rwanda, ^^ 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. ^^ 

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 



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.^^ 

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. ^^ 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 Proces-Verbal Relating to 
the Rules of Submarine Warfare set forth in Part IV of the Treaty of London of 
22 April 193021 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 



Making Law of War Treaties 



At the outset of World War II, forty-nine nations were States Parties. ^^ 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 leaderships^ 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. ^^ 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 



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. ^^ 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. ^^ As a consequence, neither the 
original Russian proposal nor any new proposal to regulate or prohibit subma- 
rines 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.^^ 

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.^^ 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. . . ."^^ 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 



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. ^^ 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.^^ 
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.^^ 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.^^ Allied demands at the end of the war 
for prosecution of Germans accused of war crimes, including U-boat personnel, 
proved only marginally successful."^^ 

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 



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."^^ 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. "^"^ 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- 
rines in light of the changes brought about by (a) 1^^ 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 Proces-Verhal 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. "^^ 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 



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.... ""^^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."^*^ 

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]."^^ 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.^^ 

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.^^ 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 



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. ^^ 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.^^ 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 oi 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 



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,^^ 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 
^OOjOOO letters and telegrams urging abolition or drastic limitation of subma- 
rines, 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 



W. Hays Parks 



feared its piracy provision would place its own submarine commanders and 
crews at risk.^^ 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. "^^ 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: ^^ 



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 hves 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: 

1 . A merchant vessel must be ordered to 
stop for visit and search to determine its char- 
acter before it can be captured. 

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 destroyed 
unless the crew and passengers have been first 
placed in safety. 



2. Belligerent submarines are not under any 
circumstances exempt from the universal 
rules 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. 



The Submarine Treaty, Articles ITV 

Article 1 

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 
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 submit to visit and search 
after warning or to proceed as directed after 
seizure. 

A merchant vessel must not be de- 
stroyed unless the crew and passengers have 
been first placed in safety. 

(2) Belligerent submarines are not under 
any circumstances exempt from the universal 
rules 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. 



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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. 



11. 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. 



Article II 

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- 
rines 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. 



III. 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.^^ 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 



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.^^ 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. ^^ 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. . . . [lit 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 oi 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, ^^ the U-boat enjoyed pop- 
ular support in Germany throughout the years between World Wars I and W^ 
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. ^^ 

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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. 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. ^^ 

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-d-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,^^ or total sub- 
marine tonnage, could not be gained. ^^ 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. ^^ 

352 



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. 

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.^^ 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- 
riod 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.^^ 

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) ;^'^ 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 



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 j 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. ^^ 

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. ^^ 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 
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. 

The High Contracting Parties invite all other Powers to express their assent to 
the above rules. 

354 



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." ^^^ 

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. ^'^^ 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 IL^*^"^ 

Germany, uninvited to the London Naval Conference, continued its prog- 
ress in clandestine U-boat development. ^'^^ 

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 



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, of its 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." ^^^ On March 
16, 1935, German Fiihrer 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 

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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.^^^ Article 22 was adopted as the 
Proces-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV 
of the London Naval Treaty of 1930.^^^ 

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. ^^^ 

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 Proces-Verbalj without any substantive modification or improvement. 
Their efforts were for naught, however, as the British were aware from their 

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Making Law of War Treaties 



interception of Italian signals that its submarine operations had been sus- 
pended two days before the conference began. ^^^ 

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 Proces-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 ProceedingSy dissected the 
1922 Washington submarine treaty, Article 22 of the 1930 London Naval 
Agreement, and the 1936 London Proces-Verbal, and highlighted their short- 
comings.^ ^^ 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 II: 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. ^^^ 
Each major submarine user took different roads at a different pace to abandon- 
ment of the rules contained in the 1936 London Proces -Verbal. 

Germany, Initial orders to German U-boats were that they were to strictly 
observe the 1936 Proces -Verbals 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. 

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. ^^^ Aware of this risk. Hitler for political 

358 



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 L7-30 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. ^^^ 

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. "^^'^ 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 Proces-Verhal 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.^^^ On September 23, Admiral Karl Donitz 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 Proces-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. ^^^ 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. ^^^ By mid- 1940, Germany's move- 
ment toward unrestricted submarine warfare was well underway. ^^"^ 

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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 L/'36. 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 
ProceS'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. 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. 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. 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 Proces-Verhal requirements. 
The British decision was taken for operational reasons rather than in response 
to German U-boat operations. 

Japan, Japanese abrogation of the 1936 Proces-Verbal was immediate, 
coinciding with its December 7, 1941, attack on Pearl Harbor. The l-IS 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 



W. Hays Parks 



followed by other attacks on merchant ships in the western Pacific, and a brief 
campaign along the U.S. west coast. 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. 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 Proces-Verhal 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.' 

Historians and international lawyers long held that the United States' ac- 
tion was a reprisal for the Japanese attack on Pearl Harbor, ^^^ 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 
Donitz. 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 v/as 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. 1^6 

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. ^^^ 

The decision of the United States to abandon its obligations under the 1936 
Proces-Verhal was premeditated, and not based upon reprisal. The historian 
who discovered the actual basis for the decision is quite specific: 

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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. ^^^ Declassified in 
1978, the story emerged in 1984.^"^^ Other pieces of the story were added by 
other historians. 1^1 

The pre-World War II change in U.S. poUcy emerged rapidly. Following the 
1930 London Naval Conference, a new draft of the U.S. Navy's Instructions for 
the Navy o{ the United States Governing Maritime Warfare was received by 
the General Board of the Navy^"^^ 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. ^^^^ 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 Proces-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^'^'^ 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."H5 

The U.S. plan for war against Japan, War Plan Orange, long had recognized 
that Japan could be defeated through blockade. ^^^ As 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. ^