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And Yet It Exists: In Defence of the ‘Equality of Belligerents’ Principle

  • VAIOS KOUTROULIS

Abstract

The equal application of international humanitarian law (jus in bello) to all parties to an international armed conflict is a cornerstone principle of jus in bello. In his article, Professor Mandel casts doubt on the legal basis of this principle. Reacting to this claim, this contribution demonstrates that the ‘equality of belligerents’ is a principle firmly grounded in both conventional and customary international law. Moreover, its legal force withstands the test of international jurisprudence, including the International Court of Justice's controversial Nuclear Weapons advisory opinion.

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1 Mandel, M., ‘Aggressors’ Rights: The Doctrine of “Equality between Belligerents” and the Legacy of Nuremberg’, (2011) 24 LJIL 627.

2 The present author subscribes to the view that the expression ‘jus contra bellum’ reflects the content of the legal regime concerning states’ use of force more accurately than the expression ‘jus ad bellum’; see Corten, O., The Law against War: The Prohibition on the Use of Force in Contemporary International Law (2010), 2. For a comment, see the review essay by van Steenberghe, R., ‘The Law against War or Jus contra Bellum: A New Terminology for a Conservative View on the Use of Force?’, (2011) 24 LJIL 747. However, since the expression jus ad bellum is used in Mandel's article, this contribution will follow the same terminology.

3 In this article, the terms will be used interchangeably.

4 The scope of this analysis is limited to international armed conflicts. Indeed, these are the conflicts traditionally covered by the equality of belligerents principle. The reason for this is that jus ad bellum does not apply to internal armed conflicts; see Corten, supra note 2, at 127–35. However, legal literature acknowledges that there is an emerging jus ad bellum even with respect to these conflicts; see E. David, Principes de droit des conflits armés (2008), at 83. This has led some scholars to examine the equal application of IHL in the context of non-international armed conflicts; see M. Sassoli, ‘Ius ad Bellum and Ius in Bello – The Separation between the Legality of the Use of Force and Humanitarian Rules to Be Respected in Warfare: Crucial or Outdated?’, in Schmitt, M. N. and Pejic, J. (eds.), International Law and Armed Conflict: Exploring the Faultlines – Essays in Honour of Yoram Dinstein (2007), 241 at 255–7; Bugnion, F., ‘Jus ad Bellum, jus in Bello and Non-International Armed Conflicts’, (2003) 6 YIHL 167; Somer, J., ‘Jungle Justice: Passing Sentence on the Equality of Belligerents in Non-International Armed Conflict’, (2007) 89 RICR 655, at 659–64. However, since the issue is not specifically raised in the commented article, the present contribution will limit itself to traditional inter-state armed conflicts.

5 Mandel, supra note 1, at 627–9 and 649–50.

6 For example, the possibility (or rather the lack thereof) of the aggressor to invoke military necessity; ibid., at 633–4. Cf. ‘The’ title of the article.

7 Ibid., at 646. Thus, for example, Mandel refers to a passage by Lauterpacht which ‘can only be read as a statement contrary to any notion of “equality of belligerents” between aggressor and victim’; ibid., at 648. Along the same lines, he relies on the 1996 Nuclear Weapons Advisory Opinion of the International Court of Justice as confirming ‘the weak legal status of any notion of “equality of belligerents” between aggressor and victim’; see also the general formulation of the central thesis of Mandel's article in the text accompanying note 9, infra.

8 Ibid., at 648, ‘A victim of aggression can have wider jus in bello rights that an aggressor.’

9 Ibid., at 629.

10 Ibid., at 631–41.

11 Ibid., at 642–8.

12 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 32 (‘GC I’); 1949 Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 86 (‘GC II’); 1949 Geneva Convention Relative to the Treatment of Prisoners of War, 75 UNTS 136 (‘GC III’); 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 288 (‘GC IV’).

13 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 4 (‘AP I’).

14 The expression is used in relation to the Geneva Conventions; Mandel, supra note 1, at 644.

15 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 226 (‘Nuclear Weapons Advisory Opinion’).

16 Mandel, supra note 1, at 647–8.

17 Such as the argument that a differential application of IHL to the aggressor and to the victim of aggression would lead to erosion of IHL because all sides in a conflict claim to have respected jus ad bellum; see notes 119–24 and accompanying text, infra.

18 Mandel, supra note 1, at 644–5 and 648–9.

19 GC I, supra note 12, at 32 (for both articles) (italics added). The articles being identical in all four Geneva Conventions, reference is only made to the text of the GC I.

20 In relation to common Article 1, the commentary of GC I reads as follows:

The words ‘in all circumstances’ mean in short that the application of the Convention does not depend on the character of the conflict. Whether a war is ‘just’ or ‘unjust’, whether it is a war of aggression or of resistance to aggression, the protection and care due to the wounded and sick are in no way affected.

J. S. Pictet, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: Commentary (1952), at 27 (‘Commentary GC I’). The other commentaries are almost identical on this point; see J. S. Pictet, Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea: Commentary (1960), at 26 (‘Commentary GC II’); J. S. Pictet, Geneva Convention Relative to the Treatment of Prisoners of War: Commentary (1960), at 18 (‘Commentary GC III’); J. S. Pictet, Geneva Convention Relative to the Protection of Civilian Persons in Time of War: Commentary (1958), at 16–17 (‘Commentary GC IV’).

The same reasoning applies to common Article 2. The formulation of the article, according to the Pictet commentaries, excludes the possibility of invoking legitimate self-defence as an argument for eluding the application of the Conventions; see Pictet, Commentary GC I, supra, at 32; Pictet, Commentary GC II, supra, at 28; Pictet, Commentary GC III, supra, at 23; Pictet, Commentary GC IV, supra, at 20.

21 Final Record of the Diplomatic Conference of Geneva of 1949 (undated), Federal Political Department, Berne, Vol. 3, annex no. 85, at 59. The Danish delegate explained the reasoning of the proposal in the following terms:

Today, an aggressive war was considered illegal. It followed that warlike acts committed by civilians against the aggressor could no longer be considered illegal. Civilians who took up arms in good faith for the defence of their country against an invader should therefore, in his opinion, have the benefit of the protection accorded to prisoners of war.

See also Final Record supra, Vol. 2-A, at 240 and 425–6.

22 Ibid., at 426: ‘To accept the amendment would be tantamount to rejecting the principles generally accepted and recognized in the Prisoners of War Convention. It was essential that war, even illegal war, should be governed by those principles.’ The UK delegation made the point perfectly clear in a later discussion on the Danish amendment by stating that, although states starting a war ‘commit an international delinquency’, ‘in all these and similar cases all the laws of warfare must find application, for a war is still a war in the eyes of international law even though it has been illegally commenced’. See Final Record of the Diplomatic Conference of Geneva of 1949, supra note 21, Vol. 2-B, at 268.

23 Final Record of the Diplomatic Conference of Geneva of 1949, supra note 21, vol. II-B, at 268:

It is true that the four Conventions should also be applicable to illegal warfare, since their object is to protect wounded, sick and shipwrecked persons, prisoners of war and civil populations, in all circumstances. It must be borne in mind that this humanitarian task is the object of these Conventions, and unless they serve that purpose, they cannot be considered as an expression of international law or of the laws and customs of war.

. . . [A]n illegal war of aggression does not automatically become legal if the aggressor applies the provisions of the Prisoners of War Convention. The aggression is, and must remain, illegal; and it must incur all normal consequences such as sanctions, reparations, and so on.

24 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Proceedings (‘Wall Advisory Proceedings’), Indonesia, Written Statement of 29 January 2004, at 7, para. 11, and Jordan, Written Statement of 30 January 2004, at 67–8, para. 5.80. See also Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Proceeding (WHO request) (‘Nuclear Weapons Advisory Proceedings (WHO request)’), Solomon Islands, Further Written Observations submitted by the Government of the Solomon Islands, 20 June 1995, at 60, para. 4.74. All statements are available at www.icj-cij.org.

25 See the declaration by the Belgian foreign minister, quoted in David, E. (ed.), ‘La pratique du pouvoir exécutif et le contrôle des chambres législatives en matière de droit international (1999–2003)’, (2005) XXXVIII RBDI 5, at 270.

26 US Department of Defense, Briefing on Geneva Convention, EPWs [i.e. Enemy Prisoners of War] and War Crimes, Office of the Assistant Secretary of Defense (Public Affairs), 7 April 2003, available at www.defense.gov/transcripts/transcript.aspx?transcriptid=2281 (italics added).

27 Mandel, supra note 1, at 644. Many scholars support the proposition that the Geneva Conventions offer a textual legal basis to the equality of belligerents principle. See, e.g., C. Greenwood, ‘The Relationship between Ius ad Bellum and Ius in Bello’, (1983) 9 RIS 221, at 225; Y. Dinstein, War, Aggression and Self-Defence (2005), at 159; Bugnion, F., ‘Guerre juste, guerre d'agression et droit international humanitaire’, (2002) 84 RICR 523, at 540–1; Roberts, A., ‘The Equal Application of the Laws of War: A Principle under Pressure’, (2008) 90 RICR 931, at 936–7; Moussa, J., ‘Can Jus ad Bellum override Jus in Bello? Reaffirming the Separation of the Two Bodies of Law’, (2008) 90 RICR 963, at 967; Sloane, R. D., ‘The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War’, (2009) 34 YJIL 47, at 103; Bouvier, A., ‘Assessing the Relationship between Jus in Bello and Jus ad Bellum: An Orthodox View’, (2006) 100 ASIL Proceedings 109, at 110.

28 AP I, supra note 13, at 7.

29 Mandel, supra note 1, at 643.

30 For the position of the Democratic Republic of Vietnam, see the basic considerations accompanying the amendments deposed by the Democratic Republic of Vietnam to the draft version of AP I at the beginning of the 1974–77 Diplomatic Conference, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–77), Federal Political Department, Bern, 1978 (‘Acts of the 1974–77 Conference’), Vol. 4, CDDH/41, at 177–80. For the position of Romania, see, ibid., Vol. 5, CDDH/SR.11, at 103, para. 12; Vol. 6, CDDH/SR.42, at 235–6; Vol. 9, CDDH/I/SR.44, at 31–2, paras. 26–27.

31 The paragraph was adopted by consensus both in the First Committee and in the Plenary Session of the 1974–77 Diplomatic Conference, see Acts of the 1974–77 Conference, ibid., Vol. 11, CDDH/I/SR.76, at 476, para. 15 (First Committee) and Vol. 8, CDDH/SR.54, at 170, para. 43 (Plenary Session).

32 As well as Iran, Pakistan, Somalia, Sri Lanka, Thailand, and Turkey. According to the ICRC ratification list, last updated on 10 July 2012, AP I counts 172 state parties; available at www.icrc.org/IHL.nsf/(SPF)/party_main_treaties/$File/IHL_and_other_related_Treaties.pdf; cf. the list of states participating at the 1974–77 Diplomatic Conference, Acts of the 1974–77 Conference, supra note 30, Vol. 2, at 29 ff.

33 See, e.g., Israel's explanation of vote after the adoption of the two additional protocols at the 1974–77 Diplomatic Conference, Acts of the 1974–77 Conference, supra note 30, Vol. 7, CDDH/SR.56, at 215 ff, paras. 104 ff. See also US president's letter of transmittal to the Senate, dated 29 January 1987, stating the views of the US administration on AP I, ‘Agora: The US Decision Not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims’, (1987) 81 AJIL 910, at 911–12.

34 Nuclear Weapons Advisory Proceedings (WHO Request), supra note 24, India, Letter dated 20 June 1995 from the Ambassador of India, together with Written Comments of the Government of India, at 16.

35 GC IV, Art. 4(1), supra note 12, at 290.

36 See accompanying text to note 29, supra.

37 See accompanying text to note 28, supra.

38 GC I, Art. 13, supra note 12, at 40; GC II, Art. 13, supra note 12, at 94.

39 GC III, Art. 4, supra note 12, at 138, 140.

40 GC IV, Art. 4, supra note 12, at 290; cf. the titles of Sections I and II of Part III of the Convention. Section I of Part III is entitled ‘Provisions common to the territories of the parties to the conflict and to occupied territories’ (ibid., at 306). Section II of Part III is entitled ‘Aliens in the territory of a party to the conflict’ (ibid., at 310). This clearly indicates that the protected persons covered by GC IV are not limited to the ‘occupied’.

41 AP I, Art. 50, supra note 13, at 26.

42 Mandel, supra note 1, at 646–7.

43 AP I, Art. 51, supra note 13, at 26.

44 AP I, supra note 13, at 26.

45 The same goes for the relevant customary IHL rules; cf. Henckaerts, J-M. and Doswald-Beck, L., Customary International Humanitarian Law (2005), Vol. 1: Rules, at 17 (Rule 5).

46 Mandel, supra note 1, at 646.

47 See text accompanying note 29, supra.

48 Although it is rather rare, depending on the relevant rule, this scope of application may even include a state's own nationals. For example, the prohibition of recruiting into the armed forces children who have not attained the age of 15, laid down in Art. 77 of AP I, clearly applies to the relations between a state (be it an ‘occupier’, a ‘targeter’, or anything else) and its own nationals; AP I, Art. 77, supra note 13, at 39. See also Sandoz, Y., Swinarski, C., and Zimmermann, B. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), 902 (‘Commentary AP I’).

49 GC IV, supra note 12, at 296–8. See also Pictet, Commentary GC IV, supra note 20, at 118–19, confirming that these provisions apply also to a belligerent's own nationals and asserting that ‘the mere fact of a person residing in a territory belonging to or occupied by a party to the conflict, is sufficient to make Part II of the Convention applicable to him’.

50 AP I, Art. 9(1), supra note 13, at 11:

This Part, the provisions of which are intended to ameliorate the condition of the wounded, sick and shipwrecked, shall apply to all those affected by a situation referred to in Article 1, without any adverse distinction founded on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria.

51 AP I, Arts. 51, 52, 53, 54, 56, 57, supra note 13, at 26–9.

52 Moreover, the ‘targeter’/‘victim of targeting’ distinction is not conclusive even for Mandel's line of reasoning. This distinction is different from the distinction between the ‘aggressor’ and the ‘victim of aggression’. The victim of aggression can very well find himself in the place of the ‘targeter’ when responding to the armed attack in exercise of his right to self-defence. In such a case, the aggressor will be the victim of the targeting and therefore the Protocol's fifth preambular paragraph will apply to him as well, contrary to Mandel's logic.

53 UK Ministry of Defence, The Manual of the Law of Armed Conflict (2004) (‘UK Manual’), 34, para. 3.12. See also New Zealand, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, B-GG-005-027/AF-020 (8 January 1999), at 2-2, para. 14; Australia, Operations Law for RAAF Commanders, Royal Australian Air Force, AAP 1003, 2nd edn (2004), at 53, para. 6.15 and 42, para. 5.5, available online at airpower.airforce.gov.au/publications/Details/156/AAP1003-Operations-Law-for-RAAF-Commanders-2nd-Edition.aspx; Germany, Humanitarian Law in Armed Conflicts – Manual, Federal Ministry of Defence, VR II 3 (August 1992), at 11, para. 101 and 24, para. 207; Norway, Norwegian Armed Forces Joint Operational Doctrine, Organisation and Instruction Authority, Defence Staff (2007), at 35, para. 0248, available online at www.mil.no/multimedia/archive/00106/FFOD_English_106143a.pdf; Spain, Orientaciones – El Derecho de los conflictos armados, Tomo I, Estado Mayor del Ejercito, OR7-004 (18 March 1996), at 1-1; US, The Commander's Handbook on the Law of Naval Operations, Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, Department of Homeland Security, and US Coast Guard, NWP 1-14M, MCWP 5-12.1, COMDTPUB P5800.7A (July 2007), at 5-1, para. 5.1.2, available at www.usnwc.edu/getattachment/a9b8e92d-2c8d-4779-9925-0defea93325c/1-14M_(Jul_2007)_(NWP); Italy, Manuale di Diritto Umanitario, Introduzione e Volume I, Usi e Convenzioni di Guerra, Stato Maggiore della Difesa, I Reparto – Ufficio Addestramento e Regolamenti, SMD-G-014 (1991), at xiv (Introduction).

54 See, e.g, the written statement of the League of Arab States in the context of the Wall Advisory Proceedings, according to which ‘International humanitarian law as part of the ius in bello applies equally to both sides of an international armed conflict, whether it be the aggressor or the victim of aggression.’ Wall Advisory Proceedings, supra note 24, League of Arab States, Written Statement, January 2004, at 84, para. 9.6. See, along the same lines, the written statements by Indonesia and Jordan referred to at note 24supra. The same position was expressed by several states in relation to the two Nuclear Weapons advisory proceedings before the ICJ. Nuclear Weapons Advisory Proceedings (WHO Request), supra note 24, Solomon Islands, Written Statement, 19 June 1995, at 60, para. 4.74; as well as the statement by India cited at the text accompanying note 3supra; Legality of the Threat or Use of Nuclear Weapons, Advisory Proceedings (request by the UN General Assembly) (‘Nuclear Weapons Advisory Proceedings (UNGA request)’), Malaysia, Written Statement, 19 June 1995, at 18; Mexico, Written Statement, 19 June 1995, at 13, para. 77(b); New Zealand, Written Statement, 20 June 1995, at 14, para. 60; Nauru, Written Statement (2nd part), 15 June 1995, at 19–20. All written statements are available at www.icj-cij.org. See also Switzerland, ABC of International Humanitarian Law, Federal Department of Foreign Affairs (FDFA), at 3, 28, 32, available at www.eda.admin.ch/etc/medialib/downloads/edazen/doc/publi/publi2.Par.0015.File.tmp/HVR_ENG.pdf.

55 Bugnion, supra note 27, at 542–3; Freymond, J., ‘Confronting Total War: A “Global” Humanitarian Policy’, (1973) 67 AJIL 672, at 677–8.

56 Vietnam has been party to AP I since 19 October 1981; see the ICRC ratification list, supra note 32.

57 ICRC, Rapport d'activités 1979 (1980), at 40–1. See also Bugnion, supra note 4, at 543.

58 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria, Equatorial Guinea intervening), Contentious Proceedings, Cameroon, Mémoire de la République du Cameroun, livre I, 16 March 1995, at 612, para. 6.152 (‘Even if it is recognised that military occupation in violation of international law is in itself illegal, and that the use of force per se cannot generate rights, such situations, when they occur, are not completely ignored by international law. On the contrary, a group of legal rules has been elaborated precisely in order to provide assistance to victims of armed conflicts. . . . As the US Military Tribunal has underlined in In re List (Hostages judgment), “international law makes no distinction between a lawful and an unlawful occupant in dealing with the respective duties of occupant an population [sic] in occupied territory” . . ., since the objective is the protection of civilians’) (author's translation).

59 The ICJ did not deal with Cameroon's relevant submission and therefore did not express any opinion on the argument cited above; cf. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria, Equatorial Guinea intervening), Judgment of 10 October 2002, [2002] ICJ Rep. 303, at 458.

60 Indeed, in a number of international armed conflicts states have made no explicit link between the legality of the intervention under jus ad bellum and the application of jus in bello. See, e.g., with respect to the intervention of the US-led coalition in Iraq in 1991, Cummins, S. J. and Stewart, D. P. (eds.), Digest of United States Practice in International Law 1991–1999 (2005), US Department of State, Office of the Legal Adviser, International Law Institute, at 2057 ff, and ‘US: Department of Defense Report to Congress on the Conduct of the Persian Gulf War – Appendix on the Role of the Law of War’, (1992) 31 ILM 612 ff.

61 For the facts of the operation see ‘Grenada – Military Coup – Intervention by US and Caribbean Forces’, (1984) XXX Keesing's Contemporary Archives, at 32614 ff.

62 Leigh, M. Nash, ‘Contemporary Practice of the United States Relating to International Law’, (1984) 78 AJIL 200, at 201–4; M. Leigh, Nash (ed.), Cumulative Digest of United States Practice in International Law 1981–1988 (1995), Book III, Office of the Legal Adviser, Department of State, at 3454–6.

63 Nash Leigh, Cumulative Digest of United States Practice in International Law 1981–1988, supra note 62, at 3453.

64 ‘Responses to additional questions posited by the European Union Fact-Finding Mission on the events that took place in the Caucasus in August 2008 (Legal Aspects)’, Independent International Fact-Finding Mission on the Conflict in Georgia (September 2009), Report, Vol. 3 – Views of the Sides on the Conflict, Chronologies and Responses to Questionnaires, at 438, available at www.ceiig.ch (‘2008 Conflict in Georgia Report’).

65 ‘ICRC, Afghanistan: ICRC Position on Alleged Ill-Treatment of Prisoners’, News Release 01/69, 12 December 2001, available at www.icrc.org/eng/resources/documents/misc/57jrhs.htm.

66 Status of Detainees at Guantanamo, Fact Sheet, 7 February 2002, available at www.presidency.ucsb.edu/ws/?pid=79402.

67 UN Doc. S/RES/1472 (2003), at 2, para. 1. See also the statement of the UK representative, UN Doc. S/PV.4726 (Resumption 1), 27 March 2003, at 23. In connection, in particular, to occupation law, elements of jus ad bellum and jus in bello confusion can be found in arguments advanced not by states but by scholars; see, e.g., Giladi, R., ‘The Jus Ad Bellum/Jus In Bello Distinction and the Law of Occupation’, (2008) 41 Israel Law Review 246, at 269, 279–81; Scheffer, D. J., ‘Beyond Occupation Law’, (2003) 97 AJIL 842, at 843–4, 849, 851. For a reply to these arguments, see Koutroulis, V., ‘Mythes et réalités de l'application du droit international humanitaire aux occupations dites “transformatives”’, (2007) XL RBDI 365, at 377–97.

68 H. Meyrowitz, Le principe de l'égalité des belligérants devant le droit de la guerre (1970), 53–76; See, e.g., the pronouncement of the International Military Tribunal for the Far East, Röling, B. V. A. and Rüter, C. F. (eds.), The Tokyo Judgment, The International Military Tribunal for the Far East, 29 April 1946–12 November 1948 (1977), Vol. 1, at 32–3.

69 Orakhelashvili, A., ‘Overlap and Convergence: The Interaction between Jus ad Bellum and Jus in Bello’, (2007) 12 JCSL 157, at 168 (and at 168–170 for the author's complete analysis).

70 Meyrowitz, supra note 68, at 53; see also I. Brownlie, International Law and the Use of Force by States (1968), 406–7 (note 3).

71 One example is the ‘controversy’ raised after the Hostages judgment between one of the judges and the prosecutor; Mandel, supra note 1, at 639–40. The confrontation is of a general character and does not refer to the part of the Hostages judgment confirming the ‘equality of belligerents’ principle. Therefore, it is not evident why this incident is relevant in the analysis of the principle as such.

72 As the nuanced conclusion of Orakhelashvili confirms; see note 69 and accompanying text, supra.

73 See, e.g., the position adopted by Cameroon, note 58 and accompanying text, supra. See also, Nuclear Weapons Advisory Proceedings (UNGA request), Malaysia, Written Statement, 19 June 1995, at 18 (note 99) and Nauru, Written Statement (1st part), 15 June 1995, at 26 (note 115).

74 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, [2005] ICJ Rep. 168 (‘Armed Activities judgment (DRC v. Uganda)’).

75 Ibid., at 280, para. 345(1), (2) and (3).

76 Ibid., at 321, para. 58 (Judge Kooijmans, Separate Opinion) and at 358–9, para. 4 (Judge ad hoc Verhoeven, Declaration).

77 We are referring to the opinion's operative part according to which:

It follows from the above-mentioned requirements that the threat or use of force of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law;

However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.

Nuclear Weapons Advisory Opinion, supra note 15, at 266, para. 105(2)(E).

78 Mandel, supra note 1, at 647–8. The situation of a nuclear war is in many respects an exceptional one and on this basis one could oppose generalizing the positions adopted in this respect and transposing them to conventional warfare. Mandel, however, is making such a transposition. He states at 648:

‘When the International Court of Justice holds that self-defence could well trump jus in bello, even in the case of nuclear weapons, or even that the clash between the two jures is irresolvable in such a case, the weak legal status of any notion of ‘equality of belligerents’ between aggressor and victim is hard to miss.’

79 See, among many, L. Boisson de Chazournes and P. Sands (eds.), International Law, the International Court of Justice and Nuclear Weapons (1999), 620; David, E., ‘L'avis de la Cour internationale de justice sur la licéité de l'emploi des armes nucléaires’, (1997) 79 RICR 264; !!Fujita, H., ‘Au sujet de l'avis consultatif de la Cour internationale de justice rendu sur la licéité des armes nucléaires’, (1997) 79 RICR 60; McCormack, T. L. H., ‘Un non liquet sur les armes nucléaires – La Cour internationale de justice élude l'application des principes généraux du droit international humanitaire’, (1997) 79 RICR 82; Mohr, M., ‘Avis consultatif de la Cour internationale de justice sur la licéité de l'emploi d'armes nucléaires – Quelques réflexions sur ses points forts et ses points faibles’, (1997) 79 RICR 99; Gill, T., ‘The Nuclear Weapons Advisory Opinion of the International Court of Justice and the Fundamental Distinction between the Jus ad Bellum and the Jus in Bello’, (1999) 12 LJIL 613.

80 Mandel, supra note 1, at 647.

81 Nuclear Weapons Advisory Opinion, supra note 15, at 244, para. 39.

82 Ibid., at 245, para. 42.

83 The need to reconcile the two has led two prominent legal scholars to suggest that the two parts of the dispositif of the advisory opinion should not be read as having a ‘principle–exception’ relationship and that the term ‘generally’ in the first line of paragraph 105(2)E should not be read as assuming that all uses of nuclear weapons would be contrary to IHL; see Greenwood, C., ‘L'avis consultatif sur les armes nucléaires et la contribution de la Cour internationale de justice au droit international humanitaire’, (1997) 79 RICR 70, at 79; C. Greenwood, ‘Jus ad Bellum and Jus in Bello in the Nuclear Weapons Advisory Opinion’, in Boisson de Chazournes and Sands, supra note 79, 247, at 264; L. Condorelli, ‘Le droit international humanitaire, ou de l'exploration par la Cour d'une terra à peu près incognita pour elle’, in ibid., supra note 79, 228, at 241–2. The ambiguity of the term ‘generally’ has also been noted by Judge Higgins in her dissenting opinion, Nuclear Weapons Advisory Opinion, supra note 15, at 589, para. 25.

84 Cf. the submissions of states and organizations participating in the two advisory proceedings related to nuclear weapons, available at www.icj-cij.org.

85 Whose opinion is cited favourably by Mandel, supra note 1, at 647.

86 Nuclear Weapons Advisory Opinion, supra note 15, at 290, para. 8 (Judge Guillaume, Separate Opinion).

87 Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level, B-GG-005-027/AF-020 (8 January 1999), at 5–6, para. 55; UK Manual, supra note 53, at 117, paras. 6.17, 6.17.1 (and note 85); US Judge Advocate General's Legal Centre and School, Puls, Maj. K. E. (ed.), Law of War Handbook 2005, at 187; US Judge Advocate General's Legal Centre and School, Rawcliffe, Maj. J. (ed.), Operational Law Handbook 2007, at 20; Israel, Military Advocate General Headquarters, Laws of War in the Battlefield (1998), at 29.

88 Cf., e.g., 1997 Oslo Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, 2056 UNTS 211; 2003 Geneva Protocol on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (Protocol V), 2399 UNTS 100; 2008 Dublin Convention on Cluster Munitions (not yet in force), text available at www.icrc.org.

89 The declarations and reservations by state parties to IHL related treaties are available online at the ICRC site, under the section ‘International Humanitarian Law – Treaties & Documents’, at www.icrc.org.

90 See the third paragraph of New Zealand's Declaration to the Statute of the International Criminal Court, available at treaties.un.org/doc/Publication/MTDSG/Volume%20II/Chapter%20XVIII/XVIII-10.en.pdf:

The Government of New Zealand further notes that international humanitarian law applies equally to aggressor and defender states and its application in a particular context is not dependent on a determination of whether or not a state is acting in self-defence. In this respect it refers to paragraphs 40–42 of the Advisory Opinion in the Nuclear Weapons Case.

See also Prosecutor v. Boskoski and Tarculovski, Judgement, Case No. IT-04-82-A, Appeals Chamber, 19 May 2010, at 13, para. 31 (note 116).

91 Prosecutor v. Boskoski and Tarculovski, supra note 90, at 13, para. 31 (note 116) and at 18, para. 44; Prosecutor v. Martić, Judgement, Case No. IT-95-11-A, Appeals Chamber, 8 October 2008, at 96–7, para. 268 (see also references cited at note 720 of the judgment). See also, implicitly, Prosecutor v. Kordić and Čerkez, Judgement, Case No. IT-95-14/2-T, Trial Chamber, 26 February 2001, at 147, para. 452. All judgements are available at www.icty.org.

92 See, e.g., Prosecutor v. Boskoski and Tarculovski, supra note 90, at 13, para. 31 (note 116).

93 See the text and references at note 4, supra.

94 Prosecutor v. Fofana and Kondewa, Judgment, Case No. SCSL-04-14-A, Appeals Chamber, 28 May 2008, at 85, para. 247 and at 183, paras. 530–531, available at www.sc-sl.org.

95 The sentences are available online at www.pca-cpa.org. See also notes 110–12 and accompanying text, infra.

96 Greenwood, supra note 27, at 222, 230–1; Moussa, supra note 27, at 968.

97 See Koutroulis, V., ‘Of Occupation, Jus ad Bellum and Jus in Bello: A Reply to Solon Solomon's “The Great Oxymoron: Jus in Bello Violations as Legitimate Non-Forcible Measures of Self-Defense: The Post-Disengagement Israeli Measures towards Gaza as a Case Study”’, (2011) 10 Chinese JIL 897, at 912–13.

98 Lauterpacht, H. (ed.), L. Oppenheim – International Law – A Treatise (1952), 218–19; Orakhelashvili, supra note 69, at 162. Given Mandel's focus on belligerent rights, he may be seen as subscribing to this theory, although, as was explained in the introduction of this contribution, his thesis is formulated in more general terms.

99 GC IV, Arts. 32, 33(2) and 34, supra note 12, at 308–10.

100 See GC I, supra note 12, at 32.

101 Regulations concerning the Laws and Customs of War on Land, Art. 42, Annex to the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land, available at www.icrc.org/ihl.nsf/WebART/195-200053?OpenDocument.

102 GC IV, Art. 51(2), supra note 12, at 320.

103 According to the Preamble of the 1907 Hague Convention IV respecting the Laws and Customs of War on Land, the wording of the Convention's provisions ‘has been inspired by the desire to diminish the evils of war, as far as military requirements permit’; see supra note 101. See also the Preamble of the 1868 Saint Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight, available at www.icrc.org/ihl.nsf/FULL/130?OpenDocument. Among legal doctrine, see, e.g., Sandoz, Swinarski and Zimmermann, supra note 48, at 392–3, para. 1389; Schmitt, M. N., ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’, (2010) 50 Virginia Journal of International Law 795, at 798 ff.

104 GC IV, Art. 53, supra note 12, at 322.

105 Mandel, supra note 1, at 633–4. Orakhelashvili has made a similar point; Orakhelashvili, supra note 69, at 182–4.

106 Wall Advisory Proceedings, League of Arab States, supra note 54, at 36, para. 5.19, at 38, para. 5.21, and at 79–80, paras. 8.40–3.

107 Ibid., at 86, para. 9.13. See, e.g., the analysis concerning specifically Art. 53 of the GC IV.

108 Wall Advisory Proceedings, Saudi Arabia, Written Statement, 30 January 2004, at 6, para. 11 (violation of jus ad bellum), and at 11, para. 18 (the military-necessity exception laid down in IHL is not rejected outright as a result of the jus ad bellum violation); Wall Advisory Proceedings, Jordan, Written Statement, 30 January 2004, at 12, para. 2.22 (Israel is qualified as an aggressor) and at 143–4, paras. 5.279–81 (affirmation that ‘in modern humanitarian law exceptions such as military necessity are subject to strict interpretation’; this implicitly confirms that such exceptions are not excluded for a belligerent having violated jus ad bellum); Wall Advisory Proceedings, Morocco, Written Statement, 30 January 2004, at 5 (illegality under jus ad bellum) and at 11 (reference to Art. 53 of the GC IV and affirmation that the construction of the Wall ‘is not a case of an absolute requirement of military operations’, thereby confirming that the exception is applicable to Israel). See also Wall Advisory Proceedings, Organisation of the Islamic Conference, Written Statement, January 2004, at 7–8, paras. 28–29 (violation of jus ad bellum by Israel), and at 10, paras. 34–35 (military necessity exceptions in jus in bello rules cannot justify the construction of the Wall and reference to the ‘disproportion between the size of the areas confiscated and military necessities’). Along the same lines, see the position of Cameroon voiced in the context of its land and maritime boundary case with Nigeria cited at the text accompanying note 58, supra.

109 See L. McNair and A. D. Watts, The Legal Effects of War (1966), 393–6 and 412–14; Dinstein, Y., The International Law of Belligerent Occupation (2009), 219, 231; Y. Arai-Takahashi, The Law of Occupation (2009), 198–200 and 228–9; !!Downey, W. G. Jr, ‘Captured Enemy Property: Booty of War and Seized Enemy Property’, (1950) 44 AJIL 488, at 499–500; !!Morgenstern, F., ‘Validity of the Acts of the Belligerent Occupant’, (1951) 28 BYIL 291, at 321 (note 1), and the case law cited by these authors.

110 Eritrea–Ethiopia Claims Commission, Jus ad Bellum – Ethiopia's Claims 1–8, Partial Award, 19 December 2005, at 5, para. 16 and at 7, para. B1.

111 Eritrea–Ethiopia Claims Commission, Central Front – Ethiopia's Claim 2, Partial Award, 28 April 2004, at 24–5, para. 101.

112 Eritrea–Ethiopia Claims Commission, Ethiopia's Damages Claims, Final Award, 17 August 2009, at 93, paras. 426–427.

113 !!Lauterpacht, H., ‘The Limits of the Operation of the Law of War’, (1953) 30 BYIL 206, at 243; Dinstein, supra note 27, at 157–8; Roberts, supra note 27, at 961; Sassoli, supra note 4, at 246; Sloane, supra note 27, at 103; Moussa, supra note 27, at 967; Bugnion, supra note 27, at 535–6; Bouvier, supra note 27, at 112.

114 Mandel, supra note 1, at 649 (emphases in original).

115 Georgia, ‘Use of Force Issues Arising out of the Russian Federation Invasion of Georgia, August, 2008’, 2008 Conflict in Georgia Report, Vol. 3, supra note 64, at 228–67; Russian Federation, ‘On Georgia's Aggression against South Ossetia in August 2008’, ibid., at 336–8 and ‘Responses to Additional Questions Posited by the European Union Fact-Finding Mission on the Events that Took Place in the Caucasus in August 2008 (Legal aspects)’, ibid., at 437–8.

116 Mandel, supra note 1, at 646 and 648.

117 Ibid., at 649.

118 AP I, Art. 51(3) and (5)(b), supra note 13, at 26.

119 Mandel, supra note 1, at 650:

the obvious tendency of the doctrine of equality between belligerents, coupled with aggressor impunity, is to legitimate aggression by making it legally irrelevant and, indeed, to justify it as a perfectly acceptable response to real or invented jus in bello criminality by the various enemies of the big powers, thus to legitimate war itself.

120 International Law Commission, ‘Report to the General Assembly’, 1949 YILC, at 281, para. 18.

121 See note 30 and accompanying text, supra. However, both states have aligned themselves to the equality of belligerents principle by voting in favour of the preamble of AP I and by ratifying the Protocol with no declaration or reservation regarding its fifth preambular paragraph.

122 AP I, Preamble, para. 4, supra note 13, at 7. See also 1998 Rome Statute of the International Criminal Court, Preamble, paras. 7 and 8, 2187 UNTS 90, at 91; Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, Art. 22(5), 2253 UNTS 172, at 221; Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II as amended on 3 May 1996) annexed to the 1996 Geneva Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 3 May 1996, Art. 1(5), 2048 UNTS 93, at 133; Amendment to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 21 December 2001, Art. 5, 2260 UNTS 82, at 89.

123 AP I, Art. 89, supra note 13, at 43 (italics added). See the explanation of vote by Italy, Acts of the 1974–77 Conference, supra note 30, Vol. 6, CDDH/SR.46, at 376.

124 Greenwood, supra note 27, at 233. Along the same lines, see Sassoli, supra note 4, at 245.

125 See note 5 and accompanying text, supra.

* Visiting Fellow, Lauterpacht Centre for International Law, University of Cambridge, Chargé de cours, Faculté des sciences juridiques, politiques et sociales, Université de Lille 2, Assistant, Centre de droit international, ULB. []

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