Implementation of the Laws of War in Late 20th-Century Conflicts: Part I

Security Dialogue

Volumn 29, Issue 2, 1998, Pages 137-150

  Roberts, Adam ^a  

^a NONE

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EID: 0009160167     PISSN: 09670106     EISSN: None     Source Type: Journal    
DOI: 10.1177/0967010698029002002     Document Type: Article

References (44)

1. Amended Protocol II (concluded 3 May 1996) on anti-personnel land-mines to the 1981 UN Convention on Specific Conventional Weapons, Articles 1(2), 3-12. 35 International Legal Materials (hereafter, ILM) (1996) 1209. (For more details, see Part II.)
2. 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, opened for signature in Ottawa on 3-4 December 1997, Article 1. 36 ILM (1997) 1507. (For more details, see Part II.)
3. See for example G.I.A.D. Draper, 'Implementation of International Law in Armed Conflicts', International Affairs, vol. 48, no. 1, January 1972, pp. 46-59. This useful survey looks particularly at three mechanisms - the Protecting Power system, reprisals and penal processes.
4. Two English-language edited collections taking this broad historical approach to the subject are Michael Howard, ed., Restraints on War: Studies in the Limitation of Armed Conflict (Oxford: Oxford Univ. Press, 1979); and Michael Howard, George J. Andreopoulos & Mark R. Shulman, eds, The Laws of War: Constraints on Warfare in the Western World (New Haven, CT: Yale University Press, 1994).
5. Two English-language edited collections taking this broad historical approach to the subject are Michael Howard, ed., Restraints on War: Studies in the Limitation of Armed Conflict (Oxford: Oxford Univ. Press, 1979); and Michael Howard, George J. Andreopoulos & Mark R. Shulman, eds, The Laws of War: Constraints on Warfare in the Western World (New Haven, CT: Yale University Press, 1994).
6. Geoffrey Best, War and Law Since 1945 (Oxford: Oxford University Press, 1994).
7. The present survey is a distillation, substantially updated, of my contribution to a study commissioned by the European Commission Humanitarian Office. That two-volume study looked at the role, and problems, of law in humanitarian crises generally, including problems of implementing existing rules of 'international humanitarian law'. Adam Roberts, 'The Laws of War: Problems of Implementation in Contemporary Conflicts', in European Commission, Law in Humanitarian Crises, vol. I, How Can International Humanitarian Law be Made Effective in Armed Conflicts? (Luxembourg: Office for Official Publications of the European Communities, 1995), pp. 13-82; also published in Duke Journal of Comparative & International Law, vol. 6, no. 1, 1995, pp. 11-78.
8. The present survey is a distillation, substantially updated, of my contribution to a study commissioned by the European Commission Humanitarian Office. That two-volume study looked at the role, and problems, of law in humanitarian crises generally, including problems of implementing existing rules of 'international humanitarian law'. Adam Roberts, 'The Laws of War: Problems of Implementation in Contemporary Conflicts', in European Commission, Law in Humanitarian Crises, vol. I, How Can International Humanitarian Law be Made Effective in Armed Conflicts? (Luxembourg: Office for Official Publications of the European Communities, 1995), pp. 13-82; also published in Duke Journal of Comparative & International Law, vol. 6, no. 1, 1995, pp. 11-78.
9. Humanitarian Law in Armed Conflicts: Manual (Bonn: Federal Ministry of Defence of the Federal Republic of Germany, August 1992), para. 1202. This is the English translation of ZDv 15/2 Humanitäres Völkerrecht in bewaffneten Konflikten: Handbuch, issued in August 1992. Rüdiger Wolfrum discusses the same 13 factors in his 'Enforcement of International Humanitarian Law', in Dieter Fleck, ed., The Handbook of Humanitarian Law in Armed Conflicts (Oxford: Oxford University Press, 1995), pp. 517-550. Wolfrum does briefly refer to the possibility of military intervention by states not party to the original conflict, and to certain implementation roles of the UN (pp. 526, 546-547).
10. Humanitarian Law in Armed Conflicts: Manual (Bonn: Federal Ministry of Defence of the Federal Republic of Germany, August 1992), para. 1202. This is the English translation of ZDv 15/2 Humanitäres Völkerrecht in bewaffneten Konflikten: Handbuch, issued in August 1992. Rüdiger Wolfrum discusses the same 13 factors in his 'Enforcement of International Humanitarian Law', in Dieter Fleck, ed., The Handbook of Humanitarian Law in Armed Conflicts (Oxford: Oxford University Press, 1995), pp. 517-550. Wolfrum does briefly refer to the possibility of military intervention by states not party to the original conflict, and to certain implementation roles of the UN (pp. 526, 546-547).
11. Humanitarian Law in Armed Conflicts: Manual (Bonn: Federal Ministry of Defence of the Federal Republic of Germany, August 1992), para. 1202. This is the English translation of ZDv 15/2 Humanitäres Völkerrecht in bewaffneten Konflikten: Handbuch, issued in August 1992. Rüdiger Wolfrum discusses the same 13 factors in his 'Enforcement of International Humanitarian Law', in Dieter Fleck, ed., The Handbook of Humanitarian Law in Armed Conflicts (Oxford: Oxford University Press, 1995), pp. 517-550. Wolfrum does briefly refer to the possibility of military intervention by states not party to the original conflict, and to certain implementation roles of the UN (pp. 526, 546-547).
12. The full texts of the Hague Conventions and other pre-1989 laws of war agreements cited in this article may be found in Dietrich Schindler & Jiri Toman, The Laws of Armed Conflicts, 3rd edn (Dordrecht: Martinus Nijhoff, 1988); and Adam Roberts & Richard Guelff, Documents on the Laws of War, 2nd edn (Oxford: Oxford University Press, 1989).
13. The full texts of the Hague Conventions and other pre-1989 laws of war agreements cited in this article may be found in Dietrich Schindler & Jiri Toman, The Laws of Armed Conflicts, 3rd edn (Dordrecht: Martinus Nijhoff, 1988); and Adam Roberts & Richard Guelff, Documents on the Laws of War, 2nd edn (Oxford: Oxford University Press, 1989).
14. From an account by the President, Erich Kussbach, 'The International Humanitarian Fact-Finding Commission', International and Comparative Law Quarterly, vol. 43, part 1, January 1994, p. 185.
15. The circumstances in which the ICRC was prepared to make public statements about violations were outlined in ' Action by the International Committee of the Red Cross in the Event of Breaches of International Humanitarian Law', International Review of the Red Cross, no. 221, March-April 1981, p. 76.
16. For such expositions of Article 1 see Luigi Condorelli & Laurence Boisson de Chazournes, 'Quelques remarques à propos de l'obligation des Etats de "respecter et faire respecter" le droit internationale humanitaire "en toutes circonstances"', in Christophe Swinarski, ed., Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge (Dordrecht: Martinus Nijhoff, 1984), pp. 17-36; and Hans-Peter Gasser, 'Ensuring Respect for the Geneva Conventions and Protocols: The Role of Third States and the United Nations', in Hazel Fox & Michael Meyer, eds, Effecting Compliance, vol. II of a series on Armed Conflict and the New Law (London: British Institute of International and Comparative Law, 1993), pp. 24-25. Dr Gasser, Legal Adviser, ICRC, was writing in a personal capacity.
17. For such expositions of Article 1 see Luigi Condorelli & Laurence Boisson de Chazournes, 'Quelques remarques à propos de l'obligation des Etats de "respecter et faire respecter" le droit internationale humanitaire "en toutes circonstances"', in Christophe Swinarski, ed., Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge (Dordrecht: Martinus Nijhoff, 1984), pp. 17-36; and Hans-Peter Gasser, 'Ensuring Respect for the Geneva Conventions and Protocols: The Role of Third States and the United Nations', in Hazel Fox & Michael Meyer, eds, Effecting Compliance, vol. II of a series on Armed Conflict and the New Law (London: British Institute of International and Comparative Law, 1993), pp. 24-25. Dr Gasser, Legal Adviser, ICRC, was writing in a personal capacity.
18. I owe this point to Prof. Frits Kalshoven, who kindly made available the preliminary results of his careful researches on the drafting history of common Article 1.
19. See Rüdiger Wolfrum's excellent chapter 'The Decentralized Prosecution of International Offences Through National Courts', in Yoram Dinstein & Mala Tabory, eds, War Crimes in International Law (The Hague: Martinus Nijhoff, 1996), pp. 233-247.
20. For an account of the trial of 44 former Dergue members which began in Addis Ababa on 13 December 1994, see John Ryle, 'An African Nuremberg', The New Yorker, 2 October 1995, pp. 50-61. The charges included genocide and crimes against humanity. On 13 February 1997 a further 5,198 people, of whom 2,246 were already in detention, were charged with genocide, war crimes and other offences (The Guardian, 14 February 1997, p. 17).
21. For an account of the trial of 44 former Dergue members which began in Addis Ababa on 13 December 1994, see John Ryle, 'An African Nuremberg', The New Yorker, 2 October 1995, pp. 50-61. The charges included genocide and crimes against humanity. On 13 February 1997 a further 5,198 people, of whom 2,246 were already in detention, were charged with genocide, war crimes and other offences (The Guardian, 14 February 1997, p. 17).
22. For evidence for this proposition see Adam Roberts, 'The Applicability of Human Rights Law During Military Occupations', Review of International Studies, vol. 13, no. 1, January 1987; and Christina M. Cerna, 'Human Rights in Armed Conflict: Implementation of International Humanitarian Law Norms by Regional Intergovernmental Human Rights Bodies', in Frits Kalshoven & Yves Sandoz, eds, Implementation of International Humanitarian Law (Dordrecht: Martinus Nijhoff, 1989).
23. For evidence for this proposition see Adam Roberts, 'The Applicability of Human Rights Law During Military Occupations', Review of International Studies, vol. 13, no. 1, January 1987; and Christina M. Cerna, 'Human Rights in Armed Conflict: Implementation of International Humanitarian Law Norms by Regional Intergovernmental Human Rights Bodies', in Frits Kalshoven & Yves Sandoz, eds, Implementation of International Humanitarian Law (Dordrecht: Martinus Nijhoff, 1989).
24. For the facts of the case, see Yearbook of the European Convention on Human Rights, vol. 38 (The Hague: Nijhoff, 1997), especially the judgement at pp. 308-314. On the UK government reaction, see for example the main front-page story 'Tory Anger as European Court Condemns Gibraltar Killings', The Independent, 28 September 1995, p. 1.
25. For the facts of the case, see Yearbook of the European Convention on Human Rights, vol. 38 (The Hague: Nijhoff, 1997), especially the judgement at pp. 308-314. On the UK government reaction, see for example the main front-page story 'Tory Anger as European Court Condemns Gibraltar Killings', The Independent, 28 September 1995, p. 1.
26. Commissions of inquiry are entirely neglected in Michael Bothe, ed., National Implementation of International Humanitarian Law: Proceedings of an International Colloquium held at Bad Homburg, June 17-19, 1988 (Dordrecht: Martinus Nijhoff, 1990).
27. Report of the Committee of Privy Counsellors Appointed to Consider Authorized Procedures for the Interrogation of Persons Suspected of Terrorism, Cmnd. 4901 (London: Her Majesty's Stationery Office, 1972), pp. 1-2, 11-23.
28. Yitzhak Kahan et al., Final Report of the Commission of Inquiry into the Events at the Refugee Camps in Beirut (Jerusalem: Government of Israel, 1983). Reprinted in 22 ILM (1983) 473.
29. Yitzhak Kahan et al., Final Report of the Commission of Inquiry into the Events at the Refugee Camps in Beirut (Jerusalem: Government of Israel, 1983). Reprinted in 22 ILM (1983) 473.
30. The Canadian Commission of Inquiry reported in June 1997 after being refused a request to extend its hearings; see Dishonoured Legacy: The Lessons of the Somalia Affair (Ottawa: Government of Canada, 1997). See also Information Legacy: A Compendium of Source Material from the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, CD-ROM (Ottawa: Government of Canada, 1997), which contains the Report of the Commission of Inquiry, Research Studies, Hearings Transcripts, 11,500 Evidentiary Exhibits, Transcripts of the Courts Martial, and other materials.
31. The Canadian Commission of Inquiry reported in June 1997 after being refused a request to extend its hearings; see Dishonoured Legacy: The Lessons of the Somalia Affair (Ottawa: Government of Canada, 1997). See also Information Legacy: A Compendium of Source Material from the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, CD-ROM (Ottawa: Government of Canada, 1997), which contains the Report of the Commission of Inquiry, Research Studies, Hearings Transcripts, 11,500 Evidentiary Exhibits, Transcripts of the Courts Martial, and other materials.
32. For a discussion of the dilemmas involved, see David Pion-Berlin, 'To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone', Human Rights Quarterly, vol. 16, no. 1, February 1994, pp. 105-130. See also the two articles on truth commissions by Priscilla B. Hayner & Mark Ensalaco, Human Rights Quarterly, vol. 16, no. 4, November 1994, pp. 597-675.
33. For a discussion of the dilemmas involved, see David Pion-Berlin, 'To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone', Human Rights Quarterly, vol. 16, no. 1, February 1994, pp. 105-130. See also the two articles on truth commissions by Priscilla B. Hayner & Mark Ensalaco, Human Rights Quarterly, vol. 16, no. 4, November 1994, pp. 597-675.
34. Jonathan Kuttab, 'Avenues Open for Defence of Human Rights in the Israeli-Occupied Territories', in Emma Playfair, ed., International Law and the Administration of Occupied Territories: Two Decades of Israeli Occupation of the West Bank and Gaza Strip (Oxford: Oxford University Press, 1992), pp. 501-502.
35. For a sceptical survey see Frits Kalshoven, Belligerent Reprisals (Leiden: Sijthoff, 1971). For the definition of reprisals I have also drawn on the 1992 German manual Humanitarian Law in Armed Conflicts, para. 476; and on the slightly revised version in Fleck, ed., The Handbook of Humanitarian Law in Armed Conflicts, p. 204.
36. For a sceptical survey see Frits Kalshoven, Belligerent Reprisals (Leiden: Sijthoff, 1971). For the definition of reprisals I have also drawn on the 1992 German manual Humanitarian Law in Armed Conflicts, para. 476; and on the slightly revised version in Fleck, ed., The Handbook of Humanitarian Law in Armed Conflicts, p. 204.
37. For a sceptical survey see Frits Kalshoven, Belligerent Reprisals (Leiden: Sijthoff, 1971). For the definition of reprisals I have also drawn on the 1992 German manual Humanitarian Law in Armed Conflicts, para. 476; and on the slightly revised version in Fleck, ed., The Handbook of Humanitarian Law in Armed Conflicts, p. 204.
38. A useful and judicious discussion of the many factors involved in non-use of gas in World War II is Edward M. Spiers, Chemical Warfare (London: Macmillan, 1986), pp. 62-88. He also stresses the attitudes of political leaders and the non-assimilation of gas weapons by military commanders.
39. Explored further in Adam Roberts, 'The Laws of War in the 1990-91 Gulf Conflict', International Security, vol. 18, no. 3, Winter 1993/94, pp. 163-164.
40. Between 1972 and 1997, 11 states withdrew their reservations to the 1925 Geneva Protocol, presumably because of their apparent inconsistency with the 1972 Biological Weapons Convention or the 1993 Chemical Weapons Convention: Ireland (1972); Australia (1986); New Zealand (1989); Czechoslovakia (1990); Romania, Chile, Bulgaria (1991); Netherlands (1995); South Africa, France (1996); and Belgium (1997). Source: Communication to the author from French Foreign Ministry, acting as Depositary, September 1997.
41. Original English texts of the partial withdrawals of reservations to the 1925 Geneva Protocol by Canada (August 1991) and UK (November 1991) supplied by the Department of Foreign Affairs and Trade in Ottawa and the Foreign and Commonwealth Office in London, September and December 1997.
42. Explicit prohibitions on reprisals are contained in 1977 Geneva Protocol I, Arts. 51(6), 52(1), 53(c), 54(4), 55(2) and 56(4). For a succinct discussion of the background, see Frits Kalshoven, Constraints on the Waging of War (Geneva: ICRC, 1987), pp. 102-104.
43. Text of Italy's statements of interpretation (made in 1986) and of Germany's declarations (1991) supplied to the author by the Swiss Federal Department for Foreign Affairs, July-September 1988 and July 1997. The Italian statement can also be found in Schindler & Toman, The Laws of Armed Conflicts, pp. 712-713; and Roberts & Guelff, Documents on the Laws of War, p. 465. Text of UK statement at ratification in 1998 supplied by Foreign and Commonwealth Office, London, February 1998.
44. Text of Italy's statements of interpretation (made in 1986) and of Germany's declarations (1991) supplied to the author by the Swiss Federal Department for Foreign Affairs, July-September 1988 and July 1997. The Italian statement can also be found in Schindler & Toman, The Laws of Armed Conflicts, pp. 712-713; and Roberts & Guelff, Documents on the Laws of War, p. 465. Text of UK statement at ratification in 1998 supplied by Foreign and Commonwealth Office, London, February 1998.