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The beginning of application of international humanitarian law: A discussion of a few challenges

Published online by Cambridge University Press:  03 August 2015

Julia Grignon
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Abstract

This article discusses some of the challenges related to the beginning of application of international humanitarian law (IHL). It concludes that IHL pertaining to international armed conflicts begins to apply as soon as one State employs force in the territory of another State without the latter's consent, provided that the violence is of a collective nature. In the case of non-international armed conflicts, this article acknowledges that it is now well settled that the two key criteria are the organization of the parties to the conflict and the level of intensity of the violence. This article shows however that some of the challenges inherent to the beginning of application of IHL make it almost impossible to identify a very single point in time at which it begins to become applicable, be it for international armed conflicts, including occupation, or non-international armed conflicts.

Keywords

IHLtemporal scope of applicationbeginning of applicationbeginning of armed conflictinternational armed conflictnon-international armed conflictoccupation
Type
Articles
Information
International Review of the Red Cross , Volume 96 , Issue 893: Scope of the law in armed conflict , March 2014 , pp. 139 - 162
Copyright
Copyright © icrc 2015 

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References

1 Stephanie Nebehay, “Some Syria Violence Amounts to Civil War: Red Cross”, Reuters, 8 May 2012, available at: www.reuters.com/assets/print?aid=USBRE8470D920120508 (all internet references were accessed on 14 January 2015). On 17 July of the same year, however, the ICRC clarified in a press release: “Thus, hostilities between these parties wherever they may occur in Syria are subject to the rules of international humanitarian law.” ICRC, “Syria: ICRC and Syrian Arab Red Crescent Maintain Aid Effort Amid Increased Fighting”, available at: www.icrc.org/eng/resources/documents/update/2012/syria-update-2012-07-17.htm.

2 For further details regarding the status of this Convention, see Julia Grignon, L'applicabilité temporelle du droit international humanitaire, Schulthess Éditions Romandes, Genève, 2014, p. 30, note 88.

3 See Anthony Aust, Handbook of International Law, Cambridge University Press, Cambridge, 2005, p. 252; Kritsiotis, Dino, “The Tremors of Tadić”, Israel Law Review, Vol. 43, 2010, p. 275CrossRefGoogle Scholar; Marko Milanovic, “The End of Application of International Humanitarian Law”, in this issue of the Review; Jean Pictet, Humanitarian Law and the Protection of War Victims, Sijthoff/Henry Dunant Institute, Leyden/Geneva, 1975, p. 52; Quégunier, Jean-François, “Ten Years after the Creation of the International Criminal Tribunal for Former Yugoslavia: Evaluation of the Impact of Its Jurisprudence on International Humanitarian Law”, International Review of the Red Cross, Vol. 85. No. 850, 2003, p. 273Google Scholar; International Criminal Tribunal for the former Yugoslavia (ICTY), The Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement (Appeals Chamber), 15 July 1999, Separate Opinion of Judge Shahabuddeen (Presiding Judge), p. 150, paras 25–26.

4 Werner Meng, “War”, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 4, Amsterdam, North-Holland, 2000, p. 1338. See also Klafkowski, Alfons, “Les formes de cessation de l’état de guerre en droit international (Les formes classiques et non classiques)”, Collected Courses of the Hague Academy of International Law, Vol. 149, 1976, p. 224Google Scholar.

5 This provision, which was codified in Convention III relative to the Opening of Hostilities (The Hague), 1907, may be regarded as a dead letter. Probably the last time that it was applied was in 1946, in the aftermath of the Second World War, in the judgment of the Nuremberg Tribunal, which found that that war had been conducted in breach of the 1907 Hague Convention III: International Military Tribunal for Germany, 14 November 1945–1 October 1946, Trial of the Major War Criminals, Vol. 1, Official Documents, Proceedings, Nuremberg, 1947, pp. 85 (Indictment), 220 (Judgment). For a fuller discussion of this question and for references in the literature, see J. Grignon, above note 2.

6 ICTY, The Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995, para. 70.

7 Jean Pictet (ed.), Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: Commentary, ICRC, Geneva, 1952, p. 32. See also UK Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford University Press, Oxford, 2004, p. 27, para. 3.1; Ministère de la Défense, Manuel de droit des conflits armés, Impressions SMS, Château-Chinon, 2000, pp. 12, 41.

8 ICTY, above note 6, para. 70. This definition has never been contradicted in later judgments; see in this connection Luisa Vierucci, “Armed Conflict”, in Antonio Cassese (ed.), The Oxford Companion to International Criminal Justice, Oxford University Press, Oxford, 2009, pp. 247–248. In the Delalić case, the Trial Chamber merely stated that “in its adjudication of the nature of the armed conflict with which it is concerned, the Trial Chamber is guided by the Commentary to the Fourth Geneva Convention”. ICTY, The Prosecutor v. Zejnil Delalić, Zdravko Mucić, also known as “Pavo”, Hazim Delić, Esad Landžo, also known as “Zenga”, Case No. IT-96-21-T, Judgement (Trial Chamber), 16 November 1998, para. 208. See also Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, Cambridge, 2002, p. 19; William A. Schabas, The International Criminal Court: A Commentary of the Rome Statute, Oxford University Press, Oxford, 2010, p. 202.

9 The ICTY had no choice but to use the term “State”. Its Statute made it impossible to use the term “High Contracting Party”, which is specific to the Geneva Conventions. On this point see also D. Kritsiotis, above note 3, p. 275.

10 For the ICRC, the answer is definitely in the affirmative: “According to this provision [common Article 2], international armed conflicts are those which oppose ‘High Contracting Parties’, meaning ‘States’.” ICRC, How Is the Term “Armed Conflict” Defined in International Humanitarian Law?, opinion paper, March 2008, available at: www.icrc.org/eng/resources/documents/article/other/armed-conflict-article-170308.htm.

11 See ICRC, “Treaties and States Parties to Such Treaties”, online database available at: www.icrc.org/IHL.nsf/(SPF)/party_main_treaties/$File/IHL_and_other_related_Treaties.pdf.

12 See International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, p. 226, para. 75 (reiterated with regard to the conduct of military operations in ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, p. 136, para. 89). See also A. Aust, above note 3, p. 253; as well as Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), p. 628.

13 Patrick Dallier, Mathias Forteau and Allain Pellet, Droit international public, 8th ed., Librairie Générale de Droit et de Jurisprudence, Paris, 2009, p. 587, para. 344. See also the opinion of the Badinter Arbitration Commission (named after its chairman) in connection with the issue of whether the constituent republics of the Socialist Federal Republic of Yugoslavia were seceding and what the consequences were: “the existence or disappearance of a State is a question of fact and the effects of recognition by other States are purely declaratory”. Peace Conference on Yugoslavia, Arbitration Commission, available at: http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e13?].

14 See in this connection Marco Sassòli, “The Legal Qualification of the Conflicts in the Former Yugoslavia: Double Standards or New Horizons for International Humanitarian Law?”, in Wang Tieya and Sienho Yee (eds.), International Law in the Post-Cold War World: Essays in Memory of Li Haopei, Routledge, London, 2001, p. 320.

15 Ram P. Anand, “New States and International Law”, in Rüdiger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Oxford University Press, Oxford, 2008, para. 1, electronic ed. available at: www.mpepil.com (password required).

16 ICRC, above note 10; Christopher Greenwood, “Scope of Application of Humanitarian Law”, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, Oxford University Press, Oxford, 2nd ed., 2008, p. 51; Schindler, Dietrich, “The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols”, Collected Courses of the Hague Academy of International Law, Vol. 163, 1979, pp. 128, 129Google Scholar.

17 J. Pictet (ed.), above note 7, p. 32.

18 J. Pictet, above note 3.

19 Despite some slight differences, since some of them have paramilitary forces or have a foreign army stationed in their territory, some twenty States in the world have no government armed forces. For a list of these States, see the CIA data available at: www.cia.gov/library/publications/the-world-factbook/fields/2055.html#bp: they are Andorra, Costa Rica, Dominica, Grenada, Iceland, Kiribati, Liechtenstein, Marshall Islands, Mauritius, Micronesia, Monaco, Nauru, Palau, Panama, Saint Lucia, Saint Vincent and the Grenadines, Samoa, San Marino, Solomon Islands, Tuvalu, Vanuatu.

20 See in this connection C. Greenwood, above note 16, p. 46.

21 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges (Pre-Trial Chamber I), 29 January 2007, paras 207, 208.

22 Ibid., para. 209; ICC, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07, Decision on the Confirmation of Charges (Pre-Trial Chamber I), 30 September 2008, para. 238.

23 ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo (Pre-Trial Chamber II), 15 June 2009, para. 223.

24 Jean Pictet (ed.), Geneva Convention relative to the Treatment of Prisoners of War: Commentary, ICRC, Geneva, 1960, p. 23.

25 For a detailed account of these events, see Jean-Pierre Langellier, “Téhéran capture quinze soldats britanniques”, Le Monde, 25 March 2007, p. 4; and Jean-Pierre Langellier, “Les quinze marins britanniques capturés dans le Golfe sont apparus à la télévision iranienne: Londres gèle ses relations diplomatiques avec Téhéran”, Le Monde, 30 March 2007, p. 4.

26 These circumstances call to mind the notion of allegiance employed by the ICTY in its reasoning regarding the application of Article 4 of the Fourth Geneva Convention in the event of ethnic armed conflicts, where people can be interned on account not of their nationality, but of their allegiance to a third State. This question alone would merit lengthy analysis, irrespective of any considerations related to the applicability ratione temporis of IHL. See in this connection ICTY, above note 3, paras 164 ff; Greenwood, Christopher, “International Humanitarian Law and the Tadic Case”, European Journal of International Law, Vol. 7, No. 2, 1996, pp. 272–273CrossRefGoogle Scholar; and Meron, Theodor, “Classification of Armed Conflict in the Former Yugoslavia: Nicaragua's Fallout”, American Journal of International Law, Vol. 92, 1998, p. 242CrossRefGoogle Scholar.

27 See in this connection Vité, Sylvain, “Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations”, International Review of the Red Cross, Vol. 91, No. 873, 2009, p. 73CrossRefGoogle Scholar.

28 Official statement of 28 July 1998, reproduced in the judgment of the ICJ in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 December 2005, para. 49.

29 This denunciation took place at the Victoria Falls Summit, which ended on 8 August 1998. See in this connection Ibid., para. 33.

30 See Ibid., paras 42 ff.

31 Ibid., paras 51, 53. See more generally the Commentaries to Draft Articles 20 and 45 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, which refer to the point in time at which consent (or acquiescence) may be found to exist. International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001, available at: legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf, para. (3) of the Commentary to Draft Article 30 and para. (6) of the Commentary to Draft Article 45, pp. 73 and 122.

32 ICJ, above note 28, para. 51.

33 See in this connection Greenwood, Christopher, “The Concept of War in Modern International Law”, International and Comparative Law Quarterly, Vol. 36, 1987, p. 286CrossRefGoogle Scholar.

34 Ibid., p. 295.

35 Ibid., p. 286.

36 These are possibilities suggested by D. Kritsiotis, above note 3, p. 280.

37 See, for example, ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, report prepared by the ICRC, 28th International Conference of the Red Cross and Red Crescent, Geneva, 2–6 December 2003, p. 8, or ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, report prepared by the ICRC, 30th International Conference of the Red Cross and Red Crescent, Geneva, 26–30 November 2007, p. 7; and ICTY, Tadić, Case No. IT-94-1-A, Judgment (Trial Chamber), 7 May 1997, para. 569, or Special Court for Sierra Leone (SCSL), The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-01-T, Judgement (Trial Chamber II), 18 May 2012, paras 563 ff.; Lucius Caflisch, “La pratique suisse en matière de droit international public 2008”, Revue Suisse de Droit International et Européen, No. 4, 2009, p. 605, reproduced in the reply given on 19 November 2008 by the Federal Council to a question put by Mr Josef Lang, Member of the National Council, on 1 October 2008.

38 See, for example, UK Ministry of Defence, above note 7, p. 29, para. 3.3.1; Aldrich, George H., “Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia”, American Journal of International Law, Vol. 90, 1996, p. 67CrossRefGoogle Scholar, or International Law Association, Initial Report on the Meaning of Armed Conflict in International Law, prepared by the International Law Association Committee on the Use of Force, submitted at the Rio de Janeiro Conference, 2008, p. 10; and International Law Association, Final Report on the Meaning of Armed Conflict in International Law, The Hague Conference, 2010, p. 3, note 7, available at: www.ila-hq.org/en/committees/index.cfm/cid/1022.

39 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, report presented at the 31st International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 28 November–1 December 2011, pp. 8–9, available at: www.icrc.org/fre/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-ihl-challenges-report-11-5-1-2-fr.pdf.

40 ICTY, above note 38, para. 569.

41 ICTY, above note 8, paras 184 and 208.

42 See ICC, above note 21, para. 207.

43 SCSL, above note 37, paras 563 ff.

44 Article 42 of the Hague Regulations, which is the reference provision regarding the beginning of a situation of occupation, states: “Territory is considered occupied when it is actually placed under the authority of the hostile army.” Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907.

45 See International Review of the Red Cross, Vol. 94, No. 885, 2012, in particular the debate between Michael Bothe, Martin Zwanenburg and Marco Sassòli, as well as Tristan Ferraro's contribution, all of which discuss the point at which an occupation can be said to have begun.

46 See in this connection Robert Kolb and Sylvain Vité, Le droit de l'occupation militaire: Perspectives historiques et enjeux juridiques actuels, Bruylant, Brussels, 2009, pp. 145–146. See also Eritrea–Ethiopia Claims Commission, Partial Award, Western Front, Aerial Bombardment and Related Claims, Eritrea's Claims 1, 3, 5, 9–13, 14, 21, 25 & 26, between the State of Eritrea and the Federal Democratic Republic of Ethiopia, The Hague, 19 December 2005, para. 27.

47 For the details of this study, see J. Grignon, above note 2.

48 ICRC, Occupation and Other Forms of Administration of Foreign Territory, Expert Meeting, ICRC, Geneva, 2012, p. 25, available at: www.icrc.org/eng/resources/documents/publication/p4094.htm.

49 See in this connection Daniel Thürer and Malcolm Mclaren, “Ius Post Bellum in Iraq: A Challenge to the Applicability and Relevance of International Humanitarian Law?”, in Klaus Dicke et al. (eds), Weltinnenrecht: Liber amicorum Jost Delbrück, Duncker & Humblot, Berlin, 2005, p. 758.

50 See J. Grignon, above note 2, p. 133 ff.

51 Geneva Convention IV, Arts 14, 63, 69.

52 See Michele Mack, Increasing Respect for International Humanitarian Law in Non-international Conflicts, ICRC, Geneva, 2008, available at: www.icrc.org/eng/assets/files/other/icrc_002_0923.pdf.

53 See in particular ICTY, The Prosecutor v. Ramush Haradinaj, Idriz Balaj, Lahi Brahimaj, Case No. IT-04-84-T, Judgement (Trial Chamber I), 3 April 2008, para. 49; ICTY, The Prosecutor v. Ljube Boškoski, Johan Tarčulovski, Case No. IT-04-82-T, Judgement (Trial Chamber II), 10 July 2008; ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgement Pursuant to Article 74 of the Statute (Trial Chamber I), 14 March 2012, para. 537; Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law, Cambridge Studies in International and Comparative Law, Cambridge University Press, Cambridge, 2010; Lindsay Moir, The Law of Internal Armed Conflict, Cambridge Studies in International and Comparative Law, Cambridge University Press, Cambridge, 2002.

54 ICTY, Haradinaj and Boškoski, above note 53.

55 See ICRC, “Syria: ICRC and Syrian Arab Red Crescent Maintain Aid Effort Amid Increasing Fighting”, Operational Update, 17 July 2012, third paragraph, available at: www.icrc.org/eng/resources/documents/update/2012/syria-update-2012-07-17.htm. No further attempt will be made to consider whether the conflict also meets the requirements of the AP II, since Syria is not a party to that instrument; hence it is inapplicable to this situation. See the table of ratifications compiled by the ICRC, available at: www.icrc.org/IHL.nsf/(SPF)/party_main_treaties/$File/IHL_and_other_related_Treaties.pdf.

56 See the indicative factors defined by the ICTY in The Prosecutor v. Ljube Boškoski, Johan Tarčulovski, above note 53, paras 177 ff.

57 Ibid., paras 199 ff.

58 The UN set up an Independent International Commission of Inquiry to look into the situation in Syria. The Commission has produced several reports covering various periods, namely: UN Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, 23 November 2011, UN Doc. A/HRS/S-17/2/Add.1; UN Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, 22 February 2012, UN Doc. A/HRC/19/69; UN Human Rights Council, Oral Update of the Independent International Commission of Inquiry on the Syrian Arab Republic, 26 June 2012, UN Doc. A/HRC/20/CRP.1. The Parliamentary Assembly of the Council of Europe has also produced an extremely detailed report on events prior to 24 April 2012: Parliamentary Assembly of the Council of Europe, The Situation in Syria, report, 24 April 2012, Doc. 12906. See also UN Human Rights Council, Preliminary Report of the High Commissioner on the Situation of Human Rights in the Syrian Arab Republic, 14 June 2011, UN Doc. A/HRC/17/CRP.1. Reference may also be made to reports produced by the non-governmental organization Human Rights Watch, in particular: “We Live as in War”: Crackdown on Protesters in the Governorate of Homs, Human Rights Watch, November 2011; “By All Means Necessary”: Individual and Command Responsibility for Crimes against Humanity in Syria, Human Rights Watch, December 2011; and In Cold Blood: Summary Executions by Syrian Security Forces and Pro-Government Militias, Human Rights Watch, April 2012. See also S. Nebehay, above note 1; and “Exclusive: Red Cross Ruling Raises Questions of Syrian War Crimes”, Reuters, 14 July 2012, available at: www.reuters.com/article/2012/07/14/us-syria-crisis-icrc-idUSBRE86D09H20120714. See also ICRC, above note 1.

59 See UN reports of that time, above note 58.

60 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), Vol. 8, Summary Records of Committee I, 1978, p. 220, para. 31.

61 When the Federal Republic of Germany spoke on 14 February 1975, neither of the international covenants had yet entered into force (the International Covenant on Civil and Political Rights entered into force on 23 March 1976, and the International Covenant on Economic, Social and Cultural Rights on 3 January 1976).

62 For a position in favour of standardization, see A. Cullen, above note 53, p. 219. See in particular the detailed list which he proposes in footnotes 18 to 25 on pages 120 and 121. He welcomes this trend because he considers that common Article 3 has no objective criteria and that the criteria contained in AP II are problematic. See also Cullen, Anthony, “The Parameters of Internal Armed Conflict in International Humanitarian Law”, University of Miami International and Comparative Law Review, Vol. 12, 2004, p. 202Google Scholar; Cullen, Anthony, “Key Developments Affecting the Scope of Internal Armed Conflict in International Humanitarian Law”, Military Law Review, No. 183, Spring 2005, pp. 108–109Google Scholar.

63 See in this connection A. Cullen, above note 53, p. 112; Dieter Fleck, “The Law of Non-International Armed Conflicts”, in. D. Fleck, above note 16, p. 624; Leslie C. Green, The Contemporary Law of Armed Conflict, 3rd ed., Manchester University Press, Manchester, 2008, p. 83; D. Schindler, above note 16, p. 149.

64 This shift in thinking is particularly noteworthy when compared with the view expressed by Dietrich Schindler in 1979: “The attempt to develop the rudimentary provisions of [common Article 3] by adopting Additional Protocol II has, therefore, proved rather unsuccessful [owing to the introduction of requirements for its applicability]. However, Additional Protocol II may be considered as a first step towards a larger recognition of rules of humanitarian law in non-international armed conflicts. The next step should be to lower the threshold of application of Additional Protocol II so as to assimilate its field of application to the one of Article 3.” D. Schindler, above note 16, p. 149.

65 See in this connection D. Fleck, above note 63, p. 624.

66 See Marko Milanovic, “The End of Application of International Humanitarian Law”, in this issue of the Review.