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Twenty-five Years after the Adoption of Additional Protocol II: Breakthrough or Failure of Humanitarian Legal Protection?1

Published online by Cambridge University Press:  17 February 2009

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On 12 December 2002, the international community celebrated the twenty-fifth anniversary of the opening for signature of 1977 Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts. In view of today's armed hostilities around the globe, this anniversary raises the questions whether international humanitarian law provides substantive regulation protecting civilians in non-international armed conflicts; whether such legal protection is effectively countering the sufferings of the civilian population and what are now the main challenges for the international community vis-à-vis internal armed conflicts.

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Copyright © T.M.C. Asser Instituut and the Authors 2001

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References

3. SIPRI Yearbook (Stockholm, Stockholm International Peace Research Institute 2002)Google Scholar. For 1998, the SIPRI counted 27 major armed conflicts, with only two being international (SIPRI Yearbook 1999). In at least six of these conflicts, the intensity of the fighting had increased to a higher level than in the previous year, and 13 of the major armed conflicts incurred at least 1,000 deaths during the year. For the year 2000, the number of 25 non-international armed conflicts had gone down to 23 of 25 (SIPRI Yearbook 2001). Although these figures seem to indicate a declining trend, it seems that this does not constitute a sustainable development.

4. Government of the United States of America, Global Humanitarian Emergencies: Trends and Projections, 2001–2002, from: http://www.reliefweb. The remaining nine humanitarian emergencies were mostly due to natural disasters.

5. The three international armed conflicts being the conflicts between Iraq and Kuwait, India and Pakistan and Eritrea and Ethiopia: SIPRI Yearbook (2002) p. 6Google Scholar.

6. SIPRI Yearbook (2002) p. 6Google Scholar.

7. See for example, S/RES/1265 (1999), preamble, para. 4, where the UN Security Council expressed its grave concern about the fact that civilians account for the vast majority of casualties in armed conflicts and are increasingly targeted by combatants and armed elements, and recognised the resultant impact this will have on durable peace, reconciliation and development. See also a detailed ICRC survey in its 1999 ‘People on War’ Report: http://www.icrc.org/eng/onwar.

8. See Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, S/2001/331, para. 3; other sources speak of nine out of every ten war casualties being civilians, Dallaire, R.A., ‘The Changing Role of UN Peacekeeping Forces: The Relationship between UN Peacekeepers and NGOs in Rwanda’, in Whitman, J. and Pocock, D., eds., After Rwanda, The Coordination of United Nations Humanitarian Assistance (Basingstoke, Macmillan/New York, St. Martin's Press 1996) at p. 205Google Scholar.

9. UN Secretary-General, Millennium Report of the Secretary-General: ‘We, the peoples: the role of the United Nations in the 21st century’ [A/54/2000], http://www.un.org./millennium/sg/report/ch3.htm at para. 193.

10. 1949 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces; Geneva Convention II for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Geneva Convention III Relative to the Treatment of Prisoners of War; Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War.

11. On this issue, see for example, Levie, H. S., ed., The Law of Non-International Armed Conflict (Dordrecht, Martinus Nijhoff Publishers 1987)Google Scholar.

12. Additional Protocol I has 160 States Parties; ICRC, http://www.icrc.org/eng/party_gc.

13. Out of 191 members of the United Nations, from http://www.un.org/Overview/unmember.html.

14. SIPRI Yearbook 2001, under Part I.1.

15. M. T. Klare speaks of ‘resource wars’, such resources being in particular gold, diamonds, valuable minerals and old-growth timber. As in Angola and Sierra Leone, ethnic, political, and regional antagonisms are very often interwoven with the use of armed hostilities over economic resources, in Resource Wars, The New Landscape of Global Conflict (New York, Henry Holt 2001) pp. 109 et seqGoogle Scholar. He sees such ‘resource wars’ as part of an interconnected geopolitical system, ‘a global landscape in which competition over vital resources is becoming the governing principle behind the disposition and use of military power’ which will become ‘the mostdistinctive feature of the global security environment’ in the future, pp. 213 et seq.

16. SIPRI Yearbook (2002) p. 6Google Scholar and government of the United States of America, Global Humanitarian Emergencies: Trends and Projections, 2001–2002, US Department of State, 11 January 2002, under ‘Summary’, from: http://www.cia.gov/nic/pubs/other_products/global_humanitarian_pub.htm.

17. Report on the Protection of Civilians in Armed Conflict, S/1999/957 of 8 September 1999, para. 68.

18. A/RES/55/2 of 13 September 2000, para. 26.

19. Report of the UN Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict. Supra n. 8, para. 2.

20. Report of the UN Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, S/2002/1300, of 26 November 2002, para. 11. The Report takes it as a ‘now well known fact that civilians, rather than combatants, are the main casualties of conflicts today, with women and children constituting an unprecedented number of the victims’ (para. 12).

21. ‘(…), a grave and continuing problem that has been heightened by reports of sexual exploitation and abuse and trafficking of women and girls perpetrated by humanitarian workers and peacekeepers’. Supra n. 20, para. 54.

22. ‘The illicit and illegal exploitation of natural resources is a growing problem that serves to fuel conflict and increasingly involves and harms the security of the civilian population.’ Supra n. 20, para. 58.

23. ‘The responses of States to acts of terrorism must remain cognizant of the need to protect civilian life and property and be undertaken with full respect to international humanitarian and human rights law. Every effort to strengthen the international protection of civilians in armed conflict is a victory against terrorism which, by its very nature, seeks to undermine civilian status and weaken the legal and institutional frameworks through which civilian men, women and children are shielded from the violence of war.’ Supra n. 20, para. 61.

24. R.A. Dallaire, ‘The Changing Role of UN Peacekeeping Forces: The Relationship between UN Peacekeepers and NGOs in Rwanda’, in Whitman and Pocock, op. cit. n. 8, at p. 205.

25. For a comprehensive overview of recent discussions see Rogers, P.F., Politics in the next 50 years, University of Bradford, Department of Peace Studies, Peace Studies Papers, Fourth Series, Working Paper No. 1, http://www.brad.ac.uk/acad/peace/pubs/pspl.pdf 2000) pp. 140Google Scholar and Kaldor, M., New & Old Wars, Organised Violence in a Global Era (Cambridge, Polity Press 1999)Google Scholar.

26. Supra n. 19, para. 3.

27. See further Zegveld, L., Accountability of Armed Opposition Groups in International Law (Cambridge, Cambridge University Press 2002) p. 2CrossRefGoogle Scholar.

28. Mention should only be made of the fact that common Article 3 GC constitutes the ‘minimum standard’ of international humanitarian law being applicable in all armed conflicts. Case Concerning Military and Paramilitary Activities In and Against Nicaragua of 27 June 1986, ICJ Rep. (1986) para. 218. Under Additional Protocol II, the core protection of the civilian population is regulated by Arts. 13 to 18 in particular, setting out many of the provisions of common Article 3 GC in more detail and extending the protection afforded to civilians, detainees and medical personnel. These provisions grant protection to civilians and specific civilian objects as well as regulate the forced movement of civilians and humanitarian assistance operations. G.H. Aldrich compares the development of international humanitarian law for non-international armed conflicts to a cosmological ‘’big bang’ that gives birth to a new universe. While the law applicable to non-international armed conflicts may still be seen as no more than a baby universe, the development is so new and unexpected that any predictions about further enlargement in the early part of the next century are bound to be very uncertain,' The Hague Peace Conferences: The laws of war on land’, in 94 AJIL (2000) pp. 4263 at p. 61CrossRefGoogle Scholar.

29. For a concise summary see Zegveld, op. cit. n. 27, at pp. 76–93.

30. Any attempt would be condemned to inadequacy in comparison with the Study on Customary International Humanitarian Law in preparation by the International Committee of the Red Cross. The Study will supposedly prove that many rules are applicable to both international and non-international conflicts. Meron, T., ‘The humanization of humanitarian law’, 94 AJIL (2000) pp. 239 et seq., at p. 261CrossRefGoogle Scholar; see also Meron, T., ‘The continuing role of custom in the formation of international humanitarian law’, 90 AJIL (1996) pp. 238 et seq., at p. 245 et seqCrossRefGoogle Scholar.

31. It has been and still is extensively discussed whether common Art. 3 GC and Additional Protocol II respectively, in toto codify or have crystallised as customary law. See Constitutional Court of Colombia, Ruling No. C-574/92, Section V, B2c, 28 October 1992, and Ruling No. C-225/95, Section VD, 18 May 1995, in Sassòli, M. and Bouvier, A., How Does Law Protect in War (Geneva, ICRC 1999) pp. 13571370Google Scholar, or Meron, T., Human Rights and Humanitarian Norms as Customary Law (Oxford, Oxford University Press 1989) pp. 73 et seqGoogle Scholar. and Aldrich, G.H., ‘The Hague Peace Conferences: The Laws of War on Land’, 94 AJIL (2000) pp. 4263CrossRefGoogle Scholar. See also in particular the International Court of Justice in the case Concerning Military and Paramilitary Activities In and Against Nicaragua of 27 June 1986, ICJ Rep. (1986) para. 218, and Report of the UN Secretary General on Aspects of Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia of 3 May 1993, UN Doc. S/25704. The ICTY Appeals Chamber held that many of the Provisions of Additional Protocol II can now be regarded as declaratory of existing rules or as having crystallised into emerging rules of customary law, or as having been instrumental in their evolution as general principles: The Prosecutor v. Duško Tadić, case No. IT-94–1-A, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 117. Art. 4 of the ICTR Statute of qualifies those provisions of Additional Protocol II being prone to ‘serious violations’ as constituting customary law. In particular Art. 4 AP II on fundamental guarantees is widely accepted as customary law: Prosecutor v. Jean-Paul Akayesu, case No. ICTR-96-4-T, Trial Chamber, Judgement of 2 September 1998, para. 616, and Moir, L., The Law of Internal Armed Conflict (Cambridge, Cambridge University Press 2002) pp. 133192CrossRefGoogle Scholar. The assumption of codification of customary law has recently been questioned by Rubin, A., ‘Review Article. The Independent International Commission on Kosovo’, 6 Journal of Conflict and Security Law (2001) pp. 147 et seq., at p. 148CrossRefGoogle Scholar. In the Kordić Decision on the Defense Motion, the ICTY extended the list of customary law provisions with Art. 13(2) AP II, concerning unlawful attacks on civilians: Prosecutor v. Dario Kordić and Mario Cerkez, case No. IT-95–14/2-PT, Decision of 2 March 1999, para. 31.

32. Limitations on the protection granted by human rights law constitute in particular the derogation clauses and the fact that human rights law in general is not legally binding on non-governmental actors, i.e., in the case of non-international armed conflicts, on non-governmental parties of the conflict.

33. Cf., especially Provost, R., International Human Rights and Humanitarian Law (Cambridge, Cambridge University Press 2002)CrossRefGoogle Scholar.

34. On the development of the concept of armed conflict and its relationship to the notion of ‘war’, see Partsch, K.J., ‘Armed Conflict’, in Bernhardt, R., ed., Encyclopedia of Public International Law, Vol. I (Amsterdam, North-Holland 1992) pp. 249252Google Scholar.

35. The Geneva Conventions refer to such a definition insofar as they clarify that the Conventions shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties' (common Art. 2(1) GC). This determination of the field of application is reiterated by Art. 1(3) AP I and indirectly repeated in Art. 1(1) AP II, while Additional Protocol II explicitly exempts internal disturbances and tensions from the notion of ‘armed conflict’. The rather widely accepted definition as applied in continued jurisprudence by the ICTY states that ‘an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’: The Prosecutor v. Duško Tadić, Decision on Jurisdiction, supra n. 31, para. 70. This definition is repeated and elaborated in The Prosecutor v. Duško Tadić, Trial Chamber, Opinion and Judgement, of 7 May 1997, para. 561; Prosecutor v. Žejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, case No. IT-96–21-T, Trial Chamber, Opinion and Judgement of 16 November 1998, paras. 182 f., and Prosecutor v. Anto Furundžija, case No. IT-95–17/1-T, Trial Chamber, Judgement of 10 December 1998, para. 59. In a less detailed manner, the ICTR Trial Chamber stated in the Akayesu case that the term ‘armed conflict’ in itself suggests the existence of open hostilities between armed forces which are organized to a greater or lesser degree: Prosecutor v. Jean-Paul Akayesu, supra n. 31, para. 620.

36. The ICTY Chamber in the Čelebići case base its findings on ‘continuing armed violence at least from (…) 6 March 1992 until (…) November 1995’, ibid., para. 185; the Trial Chamber in the Furundžija case found an armed conflict during the general time-frame of the acts of the accused in Bosnia-Herzegovina, ibid., para. 59; the ICTR Trial Chamber in the Akayesu case in a similar manner generally observed that ‘there existed at the time of the events alleged in the Indictment an armed conflict not of an international character’. Supra n. 31, para. 621.

37. In the Čelebići case, the ICTY Trial Chamber referred to the applicability of rules of international humanitarian law. With regard to the geographical factor, the Chamber stated that ‘for the norms of international humanitarian law to be applicable’, ‘there does not have to be actual combat activities in a particular location’. Supra n. 36, para. 185. In the specific case, the Chamber found it was not necessary that there was an armed conflict ‘in the Konjic municipality itself’. It held that ‘combat activities’ in ‘the larger territory of which it [i.e., Konjic municipality] forms part’ were sufficient for the determination of an armed conflict. The ICTR Trial Chamber stated in Akayesu that ‘the mere fact that Rwanda was engaged in an armed conflict meeting the threshold requirements of Common Article 3 and Additional Protocol II means that these instruments would apply over the whole territory hence encompassing massacres which occurred away from the ‘war front’. Supra n. 35, para. 636.

38. Cf., Čelebići, supra n. 36, paras. 193–197. In the Furundžija case, the Trial Chamber relied on the accused being an ‘active combatant’ participating in a practice at least endorsed by a party to the conflict, supra n. 35 para. 65; Trial Chamber, Le Procureur v. Zlatko Aleksovski, case No. IT-95–14/1-T, Judgment 25 June 1999, para. 45.

39. Concerning the different uses of the expression ‘armed conflict’ and of its qualifications, cf, Partsch, loc. cit. n. 34, pp. 250–252.

40. Pictet, J., Commentary on the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, ICRC 1958) pp. 35 et seqGoogle Scholar.

41. Including the specific case of armed conflicts in which peoples are fighting against racist regimes in the exercise of their right of self-determination, Art. 1 (4) AP I, which is sometimes clarified as a distinct type of non-international armed conflicts: Bothe, M., Partsch, K.J. and Solf, W.A., eds., New Rules For Victims of Armed Conflicts (The Hague, Martinus Nijhoff 1982)Google Scholar; Art. 1 AP II, 2.2.; Moir, op. cit. n. 31, at p. 101.

42. Cf, with further references Sandoz, Y., Swinarski, Chr. and Zimmermann, B., eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC 1987) para. 4458Google Scholar.

43. The development of humanitarian rules for non-international armed conflicts in international treaties and custom is described for example by Sassòli and Bouvier, op. cit. n. 31, at pp. 68–70 and 88–90; Greenwood, C., ‘Scope of Application of Humanitarian Law’, in Fleck, D., ed., Handbook of Humanitarian Law in Armed Conflicts (Oxford, Oxford University Press 1995) pp. 3949Google Scholar; and Meron, T., ‘Is International Law Moving towards Criminalization?’, 9 EJIL (1998) pp. 1831 at 25CrossRefGoogle Scholar, and in Prosecutor v. Tadić, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, supra n. 31, paras. 100–127.

44. Cf., for example, Sandoz et al., op. cit. n. 42, para. 4458.

45. J. Pictet, op. cit. n. 40, at pp. 35 et seq.

46. The ICC Statute is explicitly based on this traditional concept in that Art. 8 on the definition of war crimes distinguishes between international and non-international armed conflicts and exempts ‘internal situations’ from this definition.

47. Cf., for example, Zegveld, op. cit. n. 27, at pp. 33–38.

48. Amendment of 21 December 2001: http://www.icrc.org/ihl.nsf; the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices had already been amended in 1966.

50. Amendment Art. 1(2).

51. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction of 18 September 1997.

52. Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict of 26 March 1999.

53. Art. 22(1) and 2.

54. Arts. 1 and 2, respectively.

55. Art. 4 of the Optional Protocol provides: ‘Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.’

56. Declaration of 2 December 1990. Revised 1996. Published by the Institute for Human Rights, Åbo Akademi University, Turku/Åbo 1996.

56. Art. 1.

57. In particular, the jurisprudence of the ICTY; cf., Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, supra n. 31, paras. 71 et seq. and paras. 86–93; for an inclusion in Art. 2 of the ICTY Statute cf. the Trial Chamber of the ICTY in the Čelebići case, 16 November 1998, supra n. 36, para. 317.

58. Art. 8(2)(c) and (e) ICC Statute.

59. Art. 8(2)(d) and (f) ICC Statute.

60. Green, L.C., The Contemporary Law of Armed Conflict (Manchester, Manchester University Press 1993 and 2000) pp. 59 et seq.Google Scholar; Meron, loc. cit. n. 30, at p. 261; Cassese, A., International Law (Oxford, Oxford University Press 2001) pp. 6669Google Scholar.

61. Greenwood, loc. cit. n. 43, at p. 41.

62. Zegveld, op. cit. n. 27, p. 148.

63. Elewa, M.S., ‘Genocide at the Safe Area of Srebrenica: A Search For a New Strategy For Protecting Civilians in Contemporary Armed Conflict’, 10 Michigan State Univ.-DCL JIL (2001) pp. 429 et seq., at p. 436Google Scholar. Selected examples are referred to by Moir, op. cit. n. 31, pp. 67–88, 119–132 and 141.

64. See for instance Moir, ibid., p. 51: ‘If this trend continues [i.e., that the distinction between internal and international armed conflict is becoming less important], then there may shortly be a body of international humanitarian law which applies to all armed conflicts.’ For the debate on this issue refer to fn. 93 et seq., on p. 51.

65. On the distinction between international and non-international armed conflicts, including the problem of coincidence of both types, cf. in particular Judgement of the Appeals Chamber, Prosecutor v. Duško Tadić, case No. IT-94–1-A, of 15 July 1999, paras. 84–137. With regard to ‘the conflicts in the former Yugoslavia’, the Appeals Chamber referred to the involvement of the Armed Forces of Croatia in Bosnia-Herzegovina and of the Yugoslav National Army (JNA) in Croatia as three distinct subjects of international law, thus rendering the armed conflict an international one (para. 72). At the same time, the Chamber identified the use of aimed violence between Bosnian Government forces and Bosnian Serb rebel forces in Bosnia-Herzegovina (as well as Croatian Government and Croatian Serb rebel forces in Croatia). From this finding, it drew the conclusion that these conflicts were to be qualified as non-international ones (para. 72). See also Trial Chamber, Opinion and Judgement, Prosecutor v. Dusko Tadić, of 7 May 1997, paras. 566–595.

66. Akayesu, 2 September 1998, supra n. 31, para. 620.

67. Ibid., para. 603.

68. Ibid., paras. 620–621.

69. Ibid., para. 620.

70. Ibid., para. 621.

71. Prosecutor v. Rutaganda, case No. ICTR-96–3, Judgement of the ICTR, 6 December 1999.

72. Ibid., para. 436.

73. ‘It has been established, beyond a reasonable doubt, that there was an armed conflict, not of an international character, in Rwanda. This armed conflict took place between the governmental armed forces, the FAR, and the dissident armed forces, the RPF, in the time of the events alleged in the Indictment, that is from April to July 1994. It has also been shown, beyond a reasonable doubt, that Rwanda was bound by Common Article 3 and Protocol II, which were applicable to ‘the situation in Rwanda in 1994’. The Parties in this non-international conflict confirmed their readiness to comply with the rules of these international humanitarian instruments.’ Prosecutor v. Clément Kayishema and Obed Ruzindana, Judgement, case No. ICTR-95-1-T, 21 May 1999, para. 597.

74. Čelebići, 16 November 1998, supra n. 36, para. 224.

75. Ibid., para. 234.

76. Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vuković, case No. IT-96–23-T and IT-96–23/1-T, 22 February 2001, para. 579.

77. Rutaganda, 6 December 1999, supra n. 71, para. 91.

78. Provost, op. cit. n. 33, at pp. 243, 280 et seq.

79. Cf., the overview of actual conflicts that have having been evaluated by states as being regulated or not regulated by common Article 3 GC in Provost, ibid., at p. 268.

80. Zegveld, op. cit. n. 27, at pp. 12–14.

81. This factor is underestimated by Provost, op. cit. n. 33, at p. 290: ‘A crucial problem common to both humanitarian law and human rights with respect to applicability of their norms is that so much turns on self-characterisation. More often than not, the state will simply disregard all relevant legal criteria and rely on strictly political considerations to officially label a situation as an armed conflict or a state of emergency.’

82. Moir, op. cit. n. 31, at pp. 101 et seq., and Provost, op. cit.n. 33, at p. 248, distinguish between four different types of armed violence, differentiating between situations covered by common Art. 3 GC and those regulated under Additional Protocol II. Cf., also Bothe et al., eds., op. cit. n. 41. Art. 1 AP II, 2.2., distinguish between four categories of ‘non-interstate conflicts’: ‘(a) internal disturbances and tensions to which international human rights instruments are applicable; (b) non-interstate armed conflicts defined in common Art. 3 of the Conventions; (c) non-interstate armed conflicts defined in Art. 1 of Protocol II; (d) non-interstate armed conflicts falling under the definition of Art. 1 of Protocol I (wars of national liberation)’.

83. Additional Protocol II ‘develops and supplements’ the underlying principles of common Art. 3 GC. S.-St. Junod, ‘General introduction to Protocol II’, in Sandoz et al., eds., op. cit. n. 42.

84. For example, the ICTR qualified the conflict having taken place in Rwanda in 1994 as ‘an internal [i.e., non-international] armed conflict within the meaning of Additional Protocol II’ because the ‘material conditions’ of Additional Protocol II had been fulfilled, Akayesu, 2 September 1998, supra n. 31, para. 627.

85. Zegveld, op. cit. n. 27, at pp. 135–140, points to the fact that that the ICTY and ICTR as well as the Inter-American Commission on Human Rights have set down minimum conditions, while the UN SC and the UN Commission on Human Rights have applied common Art. 3 GC to various groups lacking any real effectiveness.

86. Green points to the fact that no group which has been recognised as a national liberation movement so far has had such control of any part of the national territory as would entail the applicability of Additional Protocol II in the strict sense (1993 and 2000), op. cit. n. 60, at pp. 66: ‘The definition of a non-international armed conflict in Protocol II has a threshold that is so high in fact that it would exclude most revolutions and rebellions, and would probably not operate in a civil war until the rebels were well-established and had set up some form of de facto government (…).’ Furthermore, Guatemala is an example where non-governmental conflict parties used guerrilla warfare tactics and did not necessarily seek territorial control, so that certain applicability criteria of Art. 1(1) AP II have to run vain due to the very nature of the actual tactics. See also Peterson, A.G., ‘Order Out of Chaos: Domestic Enforcement of the Law of Internal Armed Conflict’, in 171 Mil. LR (2002) pp. 1 et seq., at p. 21Google Scholar. Provost, op. cit. n. 33, at p. 264, considers AP II to be a ‘regression, given that it requires basically the same conditions as did recognition of belligerence, but without triggering the full application of all humanitarian rules for international armed conflicts.’ The high threshold for applicability of Additional Protocol II has prevented the ICTY Prosecutor from invoking the Protocol in the context of the conflict in former Yugoslavia: Zegveld, op. cit. n. 27, at p. 144 and fn. 30.

87. Zegveld, ibid., at p. 84: ‘The protection provided by the Protocols sweeps more widely (i.e., covers the whole civilian population), but it is not absolute. The protection provided by Common Article 3 is absolute, but its sweep is narrower (i.e., it is confined to protecting persons in detention).’

88. According to Aldrich, the applicability of Additional Protocol II is ‘perversely (…) far too narrow. (…). This scope of application is reminiscent of the standard in customary law for the recognition of belligerency and the consequent application of all the customary laws of war’. ‘The Hague Peace Conferences: The Law of War on Land’, loc. cit. n. 28, at p. 60. Moir takes a more pragmatic approach: ‘The conditions contained in Article 1 of the [Additional] Protocol [II] mean that it applies only to the most intense and large-scale conflicts.’ Op. cit. n. 31, at p. 101.

89. Moir, ibid., at pp. 101 et seq.

90. International Court of Justice, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), ICJ Rep. (1986) para. 218.

91. Prosecutor v. Blaškić, case No. IT-95–14-T, Trial Chamber, Judgement of 3 March 2000, paras. 164–167, and Akayesu, 2 September 1998, supra n. 31, para. 608. Cf., also on this the comprehensive study by Provost, op. cit. n. 33, at pp. 94–102.

92. Zegveld, op. cit. n. 27, at p. 5, prefers the term ‘accountability’, covering both the substantive obligations of the relevant actors and their responsibility for breaches of these violations.

93. Cassese, op. cit. n. 60, at p. 66.

94. See in particular S/RES/1265 (1999), paras. 4 and 9. Cf., also the Inter-American Commission on Human Rights, ‘Third Report on the Situation of Human Rights in Colombia’, OAS Doc. OEA/Ser.L/V/II, doc. 102 (1999), chapter IV, paras. 13 and 85 as well as Report No. 55/97 on Argentina, case No. 11.137, para. 174: ‘Common Article 3's mandatory provisions expressly bind and apply equally to both parties to internal conflicts, i.e., government and dissident forces. Further references of the practice of the UN Security Council and the UN Commission on Human Rights are in Zegveld, op. cit. n. 27, at p. 11 fn. 5.

95. 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 of 10 October 1980, Amendment Art. l, of 21 December 2001.

96. Para. 3.

97. I.e., acceptance either explicitly by declaration or implicitly by application of the Convention or Protocols.

98. Para. 6.

99. For a comprehensive overview, see Sandoz et al., eds., op. cit. n. 42, Protocol II, Part I; Provost, op. cit. n. 33, at pp. 76 et seq.; Moir, op. cit. n. 31, at pp. 52–58. Cf., also Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, supra n. 8, para. 7; and Zegveld, op. cit. n. 27, at pp. 9 et seq., with references in fn. 1, pp. 14–26.

100. Pictet, J., Commentary I on the Geneva Convention Commentaries on the Geneva Conventions of 12 August 1949, Vol. I, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (, Geneva, ICRC 1952), Art. 3(1)(B), pp. 5152Google Scholar: ‘Each of the parties will thus be required to apply Art. 3 by the mere fact of that Party's existence and of the existence of an armed conflict between it and the other party. The obligation is absolute for each of the parties. (…) On the other hand, what justification is there for the obligation on the adverse party in revolt against the established authority? (…) But if the responsible authority at their head exercises effective sovereignty, it is bound by the very fact that it claims to represent the country, or part of the country. (…) If it does not apply it [Art. 3], it will prove that those who regard its actions as mere acts of anarchy or brigandage are right.’ See also Green, op. cit. n. 60, at pp. 60 and 187: ‘The intent of the Conventions is that Article 3 should apply to both sides equally, regardless of whether the revolutionary authorities have made any declaration of intent to comply.’ Prosecutor v. Zoran Kupreskić, Mirjan Kupreskić, Vlatko Kupreskić, Drago Josipović, Dragan Papić and Vladimir Santić, case No. IT-95–16-T, Judgement of the ICTY Trial Chamber of 14 January 2000, paras. 551 et seq.

101. Any mention of ‘the Parties to the conflict’ was removed from the text of Additional Protocol II in the fourth session of the Diplomatic Conference in 1977.

102. See Moir, op. cit. n. 31, pp. 97 et seq.

103. ‘The answer is provided in most national legislations; by the fact of ratification, an international Convention becomes part of law and is therefore binding upon all the individuals of that country.’ Pictet, op. cit. n. 40, Art. 3(1)(B), p. 34.

104. Sandoz et al., eds., op. cit. n. 42, Protocol II, Part I, para. 4444: ‘The question is often raised how the insurgent party can be bound by a treaty to which it is not a High Contracting Party. […] the commitment made by a state not only applies to the government but also to any established authorities and private individuals within the national territory of that State and certain obligations are therefore imposed upon them. The extent of rights and duties of private individuals is therefore the same as that of the rights and duties of the State. Although this argument has occasionally been questioned in legal literature, the validity of the obligation imposed upon insurgents has never been contested.’ With the same conclusion, see for example, Cassese, op. cit. n. 60, at p. 69. Provost, op. cit. n. 33, at p. 89 states: ‘The ICTR and ICTY offer no justification for restricting the application of humanitarian law to the state, and indeed there seems to be no policy or legal reason to do so, quite the contrary.’

105. Provost, op. cit. n. 33, at pp. 90, 94 et seq. and pp. 96–102.

106. On the question of the international legal personality of private individuals, see, for example, the brief summary of Cassese, op. cit. n. 60, at pp. 69 et seq.

107. Cf., Green, op. cit. n. 60, at p. 57; Provost, op. cit. n. 33, at pp. 156–161 denies the principle of reciprocity as a basis for the binding force of common Art. 3 GC and Additional Protocol II for non-state actors.

108. See Srebrenica Report of the Secretary-General pursuant to General Assembly resolution 53/35 ‘The fall of Srebrenica’, A/54/549, 15 November 1999, http://www.un.org/peace/srebrenica.pdf.

109. The Kosovo Report, Independent International Commission on Kosovo, at p. 25: http://www.reliefweb.int./library/documents, p. 25.

110. S/RES/1265 (1999), para. 2.

111. Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, supra n. 8, para. 39: ‘If the first casualty of war is the truth, the next victims are those who are unable to draw attention to their need for protection.’

112. The genocide in Rwanda, for instance, was extensively abetted by the use of broadcasts and newspaper articles: Ubutabera, Independent Journal Providing Information on the International Criminal Tribunal for Rwanda, Arusha, No. 13, July 1997, in Sassòli and Bouvier, op. cit. n. 31, pp. 1280 et seq.

113. Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, supra n. 8, para. 41.

114. In contrast to the list of war crimes of in international conflicts, Art. 8(2)(a) ICC Statute.

115. ‘The High Contracting Parties undertake to respect and to ensure respect for the present Convention/for this Protocol in all circumstances.’

116. The problem will be one of the centre issues to be discussed in the framework of the 28th InternationalConference of the Red Cross and the Red Crescent in 2003.

117. Zegveld, op. cit. n. 27, pp. 92 et seq., at 173–177.

118. S/RES/1265(1999), paras.7 and 9.

119. Report of the Secretary-General on the Protection of Civilians in Armed Conflicts, supra n. 20, para. 11.

120. Ibid., para. 15.

121. Ibid.; the other two key areas are a clear separation of civilians and combatants and the swift re-establishment of the rule of law, justice and reconciliation during transition.

122. Ibid., paras. 19 and 25–29.

123. See Sandoz et al., eds., op. cit. n. 42, para. 4881 et seq., and Bothe et al., eds., op. cit. n. 41, Art. 18,2.4.1.

124. See Sandoz et al., ibid., para. 4885.

125. Zegveld, op. cit. n. 27, pp. 86–89.

126. Fischer, H., ed., International law in humanitarian assistance, Network on Humanitarian Assistance, 2nd edn. (Luxembourg, European Communities 1998) p. 54Google Scholar.

127. The UN General Assembly in this sense expressed its concern for the ‘continuous erosion (…) of respect for the [- general -] principles and rules of international humanitarian law’ (preambular para. 7) and urged ‘all other parties involved in armed conflicts (…) to ensure the security and protection of all humanitarian personnel and United Nations and associated personnel’ with only a general reference to ‘international humanitarian law, in particular their [i.e., all other parties involved in armed conflicts] obligations under the Geneva Conventions of 12 August 1949 and the obligations applicable to them under the Additional Protocols thereto’ (preambular para. 14); A/RES/56/217 of 19 February 2002.

128. War crimes against personnel involved in humanitarian assistance and peacekeeping missions and their respective installations and material are criminalised in Art. 8(2)(e)(iii) ICC Statute.

129. Fischer, loc. cit. n. 126, at p. 51.

130. Such advantages are especially the fact that the development of customary norms is not dependent on the ratification by Governments and that under certain circumstances the development of customary law might be much quicker than negotiation, ratification and entering into force of international treaties.

131. Carey, CM., ‘International Displacement: Is Prevention Through Accountability Possible? A Kosovo Case Study’, 49 Amer. Univ. LR (1999) pp. 243 et seqGoogle Scholar.

132. See also UN Secretary-General, http://www.un.org./millenniurn/sg/report/ch3.htm at para. 210. The recent report of the UN SG takes account of the fact that ‘since the previous report [2001], an increasing number of States, United Nations organizations and regional and non-governmental organizations are making use of the Guiding Principles on Internal Displacement (E/CN.4/1998/53/Add.2, annex) to strengthen legal frameworks on the protection of internally displaced persons.’ Supra n. 20, para. 13.

133. If such acts are indeed less serious as violation of common Art. 3 GC than the list contained in Art. 8(2)(c) remains questionable.

134. On the problem of defining the notions of ‘civilian’ and ‘civilian population’ in the context of common Article 3 GC and Additional Protocol II, see Zegveld, op. cit. n. 27, at pp. 75 et seq.

135. See also Moir, op. cit. n. 31, at pp. 91–96 and 274.

136. Supra n. 20, para. 34: ‘Examples of such responses, which have themselves resulted in further threats to civilian security and rights to protection, include regroupment camps, forced relocation, protected villages and, in the Middle East, punitive measures directed at civilians. Such actions violate international humanitarian and human rights law and should be condemned.’

137. ‘Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities.’ Art. 13(3) AP II.

138. Cf., Aldrich, loc. cit. n. 31, at pp. 42–63, and Moir, op. cit. n. 31, at pp. 4–20.

139. The UN Secretary-General focuses therefore on the following practical actions and requirements: ‘(a) commitment by Governments to remove refugee camps and internally displaced person settlements from border areas and to the separation and internment of combatants; (b) rapid deployment of United Nations multidisciplinary assessment teams to assist and support the separation of combatants and civilians; (c) provision of support to States hosting refugees in order to strengthen the capacity of law enforcement authorities through an appropriate security package, notably to strengthen police units in refugee situations; (d) promotion of the use of the aide-mèmoire and the Agenda for Protection by Governments in situations where combatants and civilians are intermingled, as a means of ensuring that their responses to perceived security threats meet international legal standards’. Supra n. 20, para. 40.

140. Henckaerts, J.-M., ‘The Study on Customary Rules of International Humanitarian Law’, in Hector, M. and Jellema, M., eds., Protecting Civilians in 21st Century Warfare (The Hague, The Netherlands Red Cross 2001) p. 23Google Scholar.

141. Cf., for example, UN Secretary-General, http://www.un.org./millennium/sg/report/ch3.htm at para. 210.

142. See also Zegveld, op. cit. n. 27, at p. 1.

143. Supra n. 20, para. 20.

144. For a comprehensive introduction see Sassòli et al., op. cit. n. 31, at pp. 219–261.

145. Art. 80 AP I uses the term ‘execution’ of the Geneva Conventions and Additional Protocol I. ‘The concept of execution in this article should be understood at two different levels. The first level covers measures introducing all or the relevant parts of the treaty into the legal order of each Contracting Party in accordance with the rules of its constitution (…). (…) In addition, the application of some provisions requires preparatory steps such as the designation or establishment of organizations and the introduction of procedures. Finally, some treaty provisions require development or clarification to be fully and uniformly effective. These various measures may be taken either at a legislative level or by the executive in its widest sense. The second meaning of ‘execution’, which is also contained in this article, is that of its actual application. Some measures must be taken continuously, for example, dissemination; others are only conceivable in situations falling within the material scope of application of the Protocol, (…).’ Zimmermann, in Sandoz et al., eds., op. cit. n. 42, Art. 80, paras. 3288–3290.

146. For recent observations on the impact of reciprocity considerations on international humanitarian law and human rights law see Provost, op. cit. n. 33, pp. 121–181.

147. A positive impact of international public opinion in the context of non-international armed conflicts presupposes a minimum of public presence of the non-governmental conflict parties in the international public and a certain advantage from the observance of humanitarian law for the non-state actors.

148. The concept of protecting powers is presently of no practical relevance in recent (non-international) armed conflicts. More recent initiatives to revitalise the concept have not been practically successful; cf., results of the workshop organised by the Swiss Federal Department of Foreign Affairs and the German Red Cross on the topic ‘Ensuring Respect for International Humanitarian Law — Towards Appropriate Mechanisms’, held during the 27th International Conference of the Red Cross and Red Crescent, Geneva, 31 October–6 November 1999, published in Bothe, M., ed., Towards a Better Implementation of International Humanitarian Law, 43 Bochumer Schriften zur Friedenssicherung und zum Humanitären Völkerrecht (Berlin, Arno Spitz 2001) pp. 139141Google Scholar.

149. On the mandate of the Commission in the non-international armed conflict in Colombia see Kalshoven, F., ‘Protocol II, The CDDH and Colombia’, in Wellens, K., ed., International Law: Theory and Practice (The Hague, Martinus Nijhoff 1998) pp. 597622Google Scholar.

150. Zegveld, op. cit. n. 27, pp. 133–163.

151. Supra n. 119, para. 46. On the criminalisation of acts committed in non-international armed conflicts see Meron, T., ‘International Criminalization of Internal Atrocities’, 89 AJIL (1995) pp. 554 et seqCrossRefGoogle Scholar.

152. Report of the UN Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993) of 3 May 1993, S/25704, Introduction, paras. 4–11.

153. S/RES/955 (1994), preamble, paras. 6–8.

154. Entry into force on 1 July 2002. On the recent progress in the area of international criminal law cf., Kaul, H.-P., ‘The Continuing Struggle on the Jurisdiction of the International Criminal Court’, in Fischer, H., Kreß, C. and Lüder, S.R., eds., International and National Prosecution of Crimes under International Law, 44 Bochumer Schriften zur Friedenssicherung und zum Humanitären Völkerrecht (Berlin, Arno Spitz 2001) pp. 123125Google Scholar.

155. Agreement for and Statute of the Special Court for Sierra Leone of 16 January 2002, http://www.icrc.org/ihl.nsf.

156. McDonald, A., ‘The Year in Review’, 3 YIHL (2000) p. 170CrossRefGoogle Scholar.

157. Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vuković, Judgement of the ICTY Appeals Chamber of 12 June 2002, paras. 51 and 54.

158. Recently confirmed by the ICTY in ibid., para. 68, and Prosecutor v. Dario Kordić and Mario Cerkez, 26 February 2001, supra n. 31, paras. 162 et seq.

159. Whereas Art. 2 ICTY Statute covers only international armed conflicts, Art. 3 ICTY Statute confers jurisdiction over any serious violation of international humanitarian law not covered by Arts. 2, 4 or 5. Despite several contests, it is confirmed jurisprudence of the ICTY that violations of common Art. 3 GC are comprised in this clause and in the list of offences according to Article 3 ICTY Statute; recently confirmed by the ICTY in: Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vuković, 12 June 2002, supra n. 81, para. 68, and Prosecutor v. Dario Kordić and Mario Cerkez, 26 February 2001, supra n. 31, paras. 162 et seq.

160. A comprehensive analysis is provided by Zimmermann, A. in Triffterer, O., ed., Commentary on the Rome Statute of the International Criminal Court, (Baden Baden, Nomos 1999) Art. 8, para. 2Google Scholar.

161. Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vuković, 22 February 2001, supra n. 81, para. 411.

162. Prosecutor v. Radislav Krstić, ibid., para. 481.

163. See also McDonald, loc. cit. n. 156, at p. 171.

164. Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, supra n. 8, para. 12.

165. On amnesties, see Sassòli et al., op. cit. n. 31, at pp. 209 and 250 as well as cases Nos. 129, South Africa, AZAPO v. The President of the Republic of South Africa, pp. 970 et seq. at 971 and 976, Colombia, Constitutional Conformity of Protocol II, pp. 1357 et seq. at 1369. Cf., further Scharf, M.P., ‘Swapping Amnesty for Peace: was there a duty to prosecute international crimes in Haiti?’, 31 Texas ILJ (1996) pp. 1 et seq.Google Scholar; and McCormack, T., ‘Selective Reaction to Atrocity: War Crimes and the Development of International Criminal Law’, 60 Albany LR (1997) pp. 681 et seqGoogle Scholar.

166. Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, supra n. 8, para. 10; Schocken, C., ‘The Special Court for Sierra Leone: Overview and Recommendations’, 20 Berkeley JIL (2002) pp. 436 et seq.Google Scholar; Akinrinade, B., ‘International Humanitarian Law and the Conflict in Sierra Leone’, 15 Notre Dame JL (2001) pp. 391 et seqGoogle Scholar.

167. Stahn, C., ‘Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor’, 95 AJIL (2001) pp. 952 et seq.CrossRefGoogle Scholar; Braun, S., ‘Forgiveness, South Africa's Truth Commission, and Military Trials: America's Options in Dealing with Crimes Against Humanity in Light of the Terrorist Attacks on September 11, 2001’, 12 Hamline Journal of Public Law & Policy (2002) pp. 493 et seq.Google Scholar; Kamali, M., ‘Accountability for Human Rights Violations: A Comparison of Transitional Justice in East Germany and South Africa’, 40 Columbia JTL (2001) pp. 89 et seqGoogle Scholar.

168. Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, supra n. 8, para. 13.

169. Report of the UN Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, supra n. 20, para. 49.

170. Ibid., para. 50.

171. Notwithstanding the possibility of non-military sanctioning measures according to Art. 41 UN Charter and competences of the UN General Assembly in the area of peace and security. The General Assembly, for example in the cases of Myanmar, El Salvador and Sudan, has characterised as non-international armed conflicts internal hostilities which the state did not consider to be more than internal disturbances and strives; see Provost, op. cit. n. 33, at p. 299.

172. See the recent initiative of the UN SG to conclude Stand-by Agreements between the United Nations and Member States with regard to peacekeeping missions; http://www./un.org/depts/dpko/rapid/sba.html.

173. Cf., Frowein, J.A., ‘Commentary to Article 39 UN Charter, paras. 16–23’, in Simma, B., ed., The Charter of the United Nations (Oxford, Oxford University Press 1994)Google Scholar.

174. Ibid.; Malanczuk, P., Akehurst's Modern Introduction to International Law, 7th edn., (London, Routledge 1997) p. 426Google Scholar. A connected question is whether there are any limits on the Security Council's discretion to assess what constitutes a threat to international peace and security.

175. S/RES/688 (1991), para. 1.

176. S/RES/688 (1991), preamble, para. 3.

177. S/RES/841 (1993), preamble, paras. 9 and 11.

178. Although the Security Council literally referred to a ‘threat to peace and security in the region’, the subsequent statement to act ‘under Chapter VII of the Charter of the United Nations’ clarifies the context of Article 39 UN Charter; S/RES/918 (1994), under B.

179. S/RES/918 (1994), preamble, para. 8.

180. Although the Security Council literally referred to a ‘threat to peace and security in the region’, the subsequent statement to act ‘under Chapter VII of the Charter of the United Nations’ clarifies the context of Article 39 UN Charter; S/RES/1199 (1998), preamble, para. 14.

181. S/RES/1199 (1998), preamble, para. 7.

182. S/RES/1244 (1999), preamble, paras. 4 and 7.

183. S/RES/1244 (1999), preamble, para. 10.

184. S/RES/733 (1992), preamble, para. 3.

185. UNPROFOR was deployed in a situation which in any case had both qualities of international and non-international armed conflict.

186. S/RES/770 (1992), preamble, para. 5.

187. S/RES/764 (1992), preamble, paras. 3 and 10.

188. S/RES/769(1992), para.4.

189. S/RES/836(1993), para. 9.

190. For example, the UN Secretary-General: ‘(…) real dilemma (…). The fact that we cannot protect people everywhere is no reason for doing nothing when we can. Armed intervention must always remain the option of last resort, but in the face of mass murder it is an option that cannot be relinquished.’ http://www.un.org./millennium/sg/report/ch3.htm, para. 218.

191. S/RES/1314 (2000), para. 9, S/RES/1265 (1999), para. 10.

192. S/RES/1265 (1999), para. 11.

193. N. Mandela, address delivered at the Independent International Commission on Kosovo's final seminar on 25 August 2000, in Independent International Commission on Kosovo: The Kosovo Report, p. 5; http://www.reliefweb.int./library/documents.

194. Roberts, A.: ‘(…) the debate on the subject has been spurred by the strong sense that there were crises (…) in which the international community should have intervened promptly but failed to do so.’ ‘The So-Called ‘Right’ of Humanitarian Intervention’, 3 YIHL (2000) p. 3CrossRefGoogle Scholar.

195. See Green, 1993 and 2000, op. cit. n. 60, p. 192; Roberts, ibid., pp. 3 at 5 et seq.; Wedgwood, R., ‘NATO's Kosovo Intervention: NATO's Campaign in Yugoslavia’, 93 AJIL (1999) pp. 828 et seq.CrossRefGoogle Scholar; Charney, J.I., ‘NATO's Kosovo Intervention: Anticipatory Humanitarian Intervention in Kosovo’, 93 AJIL (1999) pp. 834 et seq.CrossRefGoogle Scholar; Falk, R.A., ‘NATO's Kosovo Intervention: Kosovo, World Order, and the Future of International Law’, 93 AJIL (1999) pp. 847 et seq.CrossRefGoogle Scholar; Lobel, J. and Ratner, M., ‘Bypassing the Security Council: Ambiguous Authorisations to Use Force, Cease-Fires and the Iraqi Inspection Regime’, 93 AJIL (1999) pp. 124 et seq.CrossRefGoogle Scholar; and Henkin, L., ‘NATO's Kosovo Intervention: Kosovo and the Law of ‘Humanitarian Intervention”’, 93 AJIL (1999) pp. 824 et seqCrossRefGoogle Scholar. One of the more recent examples for such an effort is the judgement of the Independent International Commission on Kosovo's judgement on the lawfulness of the NATO involvement in Kosovo: ‘(… the NATO military intervention was illegal but legitimate. (…) the intervention was justified (…) because the intervention had the effect of liberating the majority population of Kosovo from a long period of oppression under Serbian rule’; Independent International Commission on Kosovo: The Kosovo Report, Executive Summary, p. 2; http://www.reliefweb.int./library/documents.

196. Beyerlin, U., ‘Humanitarian Intervention’, Bernhardt, R., ed., Encyclopedia of Public International Law, Vol. II (Amsterdam, Elsevier 1995) pp. 926933Google Scholar.

197. For example, the UN Secretary-General held that UN authorised intervention maybe necessary, in http://www.un.org./millennium/sg/report/ch3.htm, paras. 217 et seq. The Independent International Commission on Kosovo in its report suggested ‘to close the gap between legality and legitimacy’ and proposed a ‘principled framework’ for humanitarian intervention, Supra n. 109, pp. 1 and 85; http://www.reliefweb.int./library/documents.

198. For comprehensive studies cf. for example, Roberts, loc. cit. n. 194, at pp. 3 et seq., and Lillich, R.B., ‘Humanitarian Intervention Through the United Nations: Towards the Development of Criteria’, 53 ZaöRV (1993) pp. 557 et seqGoogle Scholar.

199. As the Independent International Commission on Kosovo states in its Kosovo Report: ‘NATO air campaign did not provoke the attacks on the civilian Kosovar population but the bombing reacted an environment that made such an operation feasible.’ Supra n. 109, at p. 26; http://www.reliefweb.int./library/documents.

200. Supra n. 20, para. 11.

201. On the — insoluble — problem of the relevance of law, legal institutions and legal instruments. see Merrills, J.G., International Dispute Settlement (Cambridge, Cambridge University Press 1991 and 1998)Google Scholar: ‘To some, the answer to all the world's problems is to be found in legal codes and international tribunals. To others, observing the disregard for legality which is a feature of most international crises, law at best has a marginal role in world affairs, and at worst is a pious illusion.’ p. 292.

202. Some authors even already observe a rather comprehensive legal coverage of non-international armed conflicts; cf., for example, Moir, op. cit. n. 31, p. 275: ‘(…) constitutes a fairly extensive corpus of law, undoubtedly capable of offering civilians adequate protection were it to be applied.’

203. This would only be wrong if rules would not be observed just because of the fact that they are rudimentary — which is definitely not the case.

204. Admittedly also within states and governments arguments are being built and decisions being taken by individuals for more or less personal motivations; but in situations of non-international armed conflict the impact is much more direct and unfiltered and much less tempered by external or at least sociological factors.

205. Merrills answers the question whether there is any value in legal rules without procedures for adjudication in the positive: ‘First, because in practice where legal rules exist they are normally followed, and secondly because although international disputes are generally resolved without adjudication, law will frequently play a significant part in defining the points in issue, and providing a framework for negotiation, conciliation or the presentation of a state's case in a political forum’, op. cit. n. 201, at p. 293.

206. Fenrick states: ‘The success or failure of international humanitarian law must be measured in terms of lives saved and injuries not suffered. It is not measured by the number of prosecutions of the number of convictions.’ The Law Applicable to Targeting and Proportionality After Operation Allied Force: A View from the Outside’, 3 YIHL (2000) pp. 53 at 79 et seqCrossRefGoogle Scholar.

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