* This text was reproduced and reformatted from the text available at the United Nations Refugee Agency website (visited October 6, 2010) http://www.unhcr.org/refworld/docid/4c5823342.html.

¹ Van Anraat v. The Netherlands, App. No. 65389/09, Eur. Ct. H.R. (July 6, 2010), available at http://www.unhcr.org/refworld/docid/4c5823342.html [hereinafter Van Anraat v. The Netherlands]. There is no indication in the decision that the case was communicated to the government of The Netherlands.

² See Marten Zwanenburg & Guido den Dekker, Prosecutor v. Frans van Anraat, 104 Am. J. Int’l L. 86 (2010).

³ Van Anraat v. The Netherlands, ¶ 68.

⁴ The ECtHR case of Konovov v. Latvia, in which the ECtHR for the first time made express reference to the interpretation and application of international humanitarian law, was first decided by a ECtHR Chamber (App. No. 36376/04 (July 24, 2008)), which held, in a four-three majority, that Kononov’s conviction in Latvia for war crimes committed in 1944 contravened Article 7 (retroactive application of the law) of the Convention. After Latvia had asked for a re-assessment of the case, the Grand Chamber of the ECtHR came to the opposite conclusion in its judgment of May 17, 2010, ruling, by fourteen votes to three, that there had been a sufficiently clear legal basis at the time of the events in 1944 for the crimes for which Kononov was convicted; and hence there was no violation of Article 7. See Giulia Pinzauti, The European Court of Human Rights’ Incidental Application of International Criminal Law and Humanitarian Law, 6 J. Int’l Crim. Justice 1043 (2008) (providing a critical discussion of the 2008 Konovov decision).

⁵ Van Anraat v. The Netherlands, ¶ 81.

⁶ Id.¶ 83.

⁷ Id. ¶ 90.

⁸ Id. ¶ 26. The Netherlands had made the same reservation but withdrew it in 1995, several years after the Iran-Iraq war.

⁹ Customary International Humanitarian Law, Vol. I: Rules 260-61 (Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2005) (the authors suggest that only Iraq and Angola under treaty law could avail themselves of their reserved right to retaliate in kind to the first use of chemical weapons).

¹⁰ Van Anraat v. The Netherlands, ¶¶ 93-94.

¹¹ For a detailed discussion, see Zwanenburg & Den Dekker, supra note 2, at 90-93. Cf. Daniel H. Joyner, International Law and the Proliferation of Weapons of Mass Destruction 265 (2009); David Turns, Weapons in the ICRC Study on Customary International Humanitarian Law, 11 J. Conflict Sec. L. 201, at 220, 223 (2006); The ECtHR motivates its finding primarily by pointing to a decision by the International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Tadić, wherein the Chamber ruled that ‘‘at the relevant time . . . a rule of customary international law prohibiting the use of chemical weapons by states against civilian populations within their own territory’’ existed. See Prosecutor v. Tadić, Case No. IT-94-1-I (Int’l Crim. Trib. for the Former Yugoslavia) (cited in Van Anraat v. The Netherlands, ¶ 94). However, it seems that the ICTY in Tadić was more cautious as it concluded that there ‘‘emerged’’ a general consensus on the applicability of the rule in non-international armed conflict, thereby basing itself mostly on statements and reports of late 1980s and information procured thereafter (cited in Van Anraat v. The Netherlands, ¶ 56). It seems that most international reactions in fact emphasized that weapons were used against the civilian population, which is prohibited under international humanitarian law irrespective of the nature of the weapons employed.

¹² Van Anraat v. The Netherlands, ¶ 96. The somewhat forced wording used by the ECtHR, ‘‘civilian population present in border areas affected by an international conflict,’’ is the result of a lack of clarity in the Dutch judgments, which failed to differentiate clearly between international and non-international armed conflicts.

1. Both cited in International Committee of the Red Cross, Customary international humanitarian law, Jean-Marie, Henckaerts and Louise, Doswald-Beck (eds.) (Cambridge University Press 2005), vol. II, pp. 1663-68Google Scholar.