A human rights law of internal armed conflict: The European Court of Human Rights in Chechnya

European Journal of International Law

Volumn 16, Issue 4, 2005, Pages 741-767

  Abresch, William ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 27944490822     PISSN: 09385428     EISSN: None     Source Type: Journal    
DOI: 10.1093/ejil/chi139     Document Type: Article

References (162)

1. Isayeva, Yusupova and Bazayeva v Russia, ECtHR, App Nos 57947-49/00 (24 Feb. 2005) (hereinafter Isayeva I)
2. Isayeva v Russia, ECtHR, AppNo 57950/00 (24 Feb. 2005) (hereinafter Isayeva II).
3. This is affirmed in both the preamble to Protocol II and the derogation clause of the ECHR. See Protocol II, Preamble, para. 2 ('Recalling furthermore [in addition to Common Article 3] that international instruments relating to human rights offer a basic protection to the human persons.'); ECHR, Art. 15(1) (providing for derogation '[i]n time of war.').
4. An International Committee of the Red Cross (ICRC) summary of the conclusions reached at a gathering of humanitarian law experts states that'[T]he great majority of participants simply recalled that IHL represented a special law in as much as it has been specifically framed to apply in a period of armed conflict. They noted that, in offering ground rules adapted to this particular context of violence, this body of law makes it possible - in many cases - to specify the precise content of the non-derogable human rights. In this regard, many references were made to the reasoning followed by the International Court of Justice in its advisory opinion [on] the Legality of the Threat or Use of Nuclear Weapons.' ICRC, 'International Humanitarian Law and Other Legal Regimes: Interplay in Situations of Violence' (Nov. 2003).
5. Human Rights Watch and Amnesty International have increasingly applied humanitarian law rather than human rights law in reports on armed conflicts. See Bennoune, 'Toward a Human Rights Approach to Armed Conflict: Iraq 2003', 11 UC Davis J Int'l L & Pol'y (2004) 171, 216-219.
6. ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (8 July 1996), paras. 24-25
7. see also ICJ, Advisory Opinion on Legal Consequences of the Construction of a Wallin the Occupied Palestinian Territory (9 July 2004), paras. 102, 105.
8. Koskenniemi, 'Fragmentation of International Law: Topic (a): The function and scope of the lex specialis rule and the question of "self-contained regimes": An outline', prepared for the Study Group on Fragmentation of International Law of the International Law Commission, available at http://www.un.org/law/ilc/sessions/55/ fragmentation_outline.pdf, para. 2.2.
9. Ibid., §2.2 (internal quotations are from Grotius).
10. Jenks surveys the various principles available to resolve conflicts among law-making treaties, helpfully emphasizing their heuristic character and the importance of a pragmatic approach. He concludes that: '[a] solution to a conflict deduced from abstract legal principles is always possible when no alternative is available, but in the interest of developing a coherent body of law fully adjusted to changing practical needs recourse to such a process of abstract reasoning should always be regarded as a last resort': Jenks, 'The Conflict of Law-Making Treaties', 30 BYBIL (1953) 401, 450.
11. ICCPR, Art. 9(1).
12. Geneva (III), Art. 118.
13. The approach outlined here is that taken by Draper, who wrote that 'under article 15 of the European Convention, the whole of the Law of War as to killing has been incorporated by reference.... [A]rticle 15 is here spelling out the new philosophy of the essential relationship between the Law of Armed Conflicts and that of Human Rights. The latter is the normal ordering of civil society. The Law of War, international or internal, is the exceptional situation derogating from the full application of the Human Rights system. The two systems are essentially complementary, and that is an end to the old dichotomy between the Law of War and the Law of Peace into which International Law was traditionally divided': Draper, 'Human Rights and the Law of War', 12 Va J Int'l L (1972) 326, 338.
14. See also Bruscoli, 'The Rights of Individuals in Times of Armed Conflict', 6 Int'l J Human Rights (2002) 45.
15. All of the ECtHR's jurisprudence on the conduct of hostilities could be dismissed as an anomaly created by states' failure to derogate. This would be a mistake. In Isayeva II, supra note 1, at para. 191, the ECtHR explained that the Russian operation had to be 'judged against a normal legal background' because no derogation had been made. If a state did derogate to humanitarian law 'in respect of deaths resulting from lawful acts of war', the ECtHR would presumably take the renvoi to humanitarian law, but the legal implications of this should not be overestimated. The ECtHR could simply apply humanitarian law, but it would not be difficult for it to continue to apply essentially the same doctrine it has already developed in McCann, Ergi, Isayeva, etc. In her study of the travaux, Svensson-McCarthy notes, inter alia, that all derogations are subject to the Art. 15(1) requirement that they be limited 'to the extent strictly required by the exigencies of the situation' and concludes that '[i]n interpreting the derogation provisions of human rights treaties in armed conflicts, international humanitarian law should not be ignored, because it provides an absolute minimum level of protection beyond which no interpretation of the human rights treaties could possibly ever be allowed to go. On the other hand, whilst this absolute minimum level may perhaps in certain particularly severe circumstances be allowed to guide the interpretation of the aforementioned derogation provisions, it is in no way of any conclusive importance for the interpretation of these provisions, which may in many respects provide a higher and more general level of protection. These derogation provisions do thus have a life of their very own, and they should in all circumstances be interpreted with due respect for the object and purpose of the treaties within which they are contained, so as to preserve to a maximum degree the full enjoyment of the rights and freedoms guaranteed therein': Svensson-McCarthy, The International Law of Human Rights and States of Exception: With Special Reference to the Travaux Preparatoires and Case-Law of the International Monitoring Organs (1998), 378. It would also be regrettable were the ECtHR to give broad effect to a derogation from Art. 2 inasmuch as this would allow states to pick and choose among the standards provided in the two legal regimes.
16. Art. 2(2)(c), 'in action lawfully taken for the purpose of quelling a riot or insurrection', has also been invoked with respect to riots. See Güleç v Turkey, ECtHR, App. No. 21593/93 (27 July 1998).
17. Ergi v Turkey, ECtHR, App No 23818/94 (28 July 1998); at para. 79
18. Isayeva II, supra note 1, at para. 176.
19. Isayeva I, supra note 1, at para. 175.
20. Ibid., at para. 197.
21. Heintze, 'On the Relationship Between Human Rights Law Protection and International Humanitarian Law', 86 IRRC (2004) 789
22. Heintze, 'The European Court of Human Rights and the Implementation of Human Rights Standards During Armed Conflicts', 45 German Yearbook Int'l L (2002) 60
23. Reidy, 'The Approach of the European Commission and Court of Human Rights to International Humanitarian Law', 80 IRRC (1998) 513.
24. Bankovic v Belgium, ECtHR, App. No. 52207/99 (2001).
25. The other principal human rights instruments have provisions similar to that in Art. 6(1) of the ICCPR: '[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.' See American Convention on Human Rights (hereinafter ACHR), Art. 4(1)
26. African Charter on Human and Peoples 'Rights (hereinafter African Charter), Art. 4.
27. See ECHR, Art. 6
28. ICCPR, Art. 14
29. ACHR, Art. 8; African Charter, Art. 7.
30. ECHR, Art. 14
31. see also ICCPR, Art. 2(1)
32. ACHR., Art. 1 (1)
33. African Charter, Art. 2.
34. While the text of Common Art. 3 will sustain the interpretation that it prohibits the targeting during combat of persons not taking active part in hostilities, most experts consider its field of application limited to persons within the power of a party to the conflict. In any case, Common Art. 3 clearly does not regulate the conduct of hostilities in any other aspect: ICRC, Commentary: I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (hereinafter ICRC Commentary on Geneva I), (1952), 52-57
35. ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (hereinafter ICRC Commentary on Additional Protocols) (1987), 1325
36. M. Rothe et al., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (1982), 667, note 1.
37. Protocol II includes the 'principle of distinction' but regulates the conduct of hostilities only in so far as they are implicit in the 'general protection against the dangers arising from military operations' accorded the civilian population in Art. 13(1). Early drafts of Protocol II did regulate the conduct of hostilities, but the negotiating states became uneasy with the draft's scope, and 'the provisions on means of combat were... among the first provisions to fall beneath the guillotine': A. Cassese, 'Means of Warfare: The Traditional and the New Law', in Cassese (ed.), The Humanitarian Law of Armed Conflict (1979), 191, 195. The exclusion of these provisions from Protocol II has led one scholar to characterize the means and methods of warfare in internal conflict as 'at the "vanishing point" of international humanitarian law': Turns, 'At the "Vanishing Point" of International Humanitarian Law: Methods and Means of Warfare in Non-international Armed Conflicts', 45 German YIL (2002) 115, 116.
38. See also discussion infra in Part 3 (C).
39. The argument can, of course, be made in the other direction. Gasser notes the substantial overlap between the humane treatment provisions of the ICCPR and Protocol II, but suggests that it is Protocol II that fills the conduct of hostilities gap in the ICCPR: Gasser, 'International Humanitarian Law and Human Rights Law in Non-international Armed Conflict: Joint Venture or Mutual Exclusion', 45 German YIL (2002) 149. In the final instance, there is a strategic choice to be made as to whether it is more legitimate for advocates to construe Protocol II broadly or for courts extensively to develop human rights standards.
40. J.-M. Henckaerts and I. Doswald-Beck (eds.), Customary International Humanitarian Law, Vol. 1: Rules (hereinafter ICRC Customary Humanitarian Law Study) (2005).
41. Ibid., at p. xxix.
42. Protocol II, Preamble, para. 5.
43. Protocol I, Art. 1 (2).
44. T. Meron, Human Rights and Humanitarian Norms as Customary Law (1989), 73-74. Meron argues that other features of Protocol II 'strengthen the proposition that beyond the express provisions of Protocol II, regulation of internal armed conflicts is relegated to the domestic law of states'. Meron points in particular to the failure of Protocol II, Art. 13 (1) to include the reference to 'other applicable rules of international law' in contrast to Protocol I, Art. 51(1), the absence of an obligation for other states to 'ensure respect' for Protocol II in contrast to Protocol I, Art. 1 (1)), and the 'especially strong prohibition of intervention in the affairs of the state in whose territory the conflict occurs' in Protocol II, Art.
45. The ICRC commentary interprets the omission of customary law as due to a 'cautious point of view' on the development of state practice, and argues that 'the existence of customary norms in internal armed conflicts should not be totally denied. An example that might be given is the respect for and protection of the wounded': ICRC Commentary on Additional Protocols, supra note 22, at 1341.
46. See also discussion on deriving custom from military manuals in Turns, supra note 23, at 138-143,
47. and T. Meron, Human Rights and Humanitarian Norms as Customary Law (1989), 41.
48. Protocol II, Preamble, para. 3.
49. For an attempt to explain the success of the ECtHR and develop strategies for other bodies to become more effective, see Helfin and Slaughter, 'Toward a Theory of Effective Supranational Adjudication', 107 Yale LJ (1997) 273.
50. Case of Juan Carlos Abella (Argentina), Inter-Am CtHR, Case 11.137 (1997), para. 161.
51. Ibid., para. 177. The Inter-American Court of Human Rights has thus far rejected the lex specialis application of humanitarian law on jurisdictional grounds, but continues to refer to and consider humanitarian law provisions: Las Palmeras (Colombia), Preliminary Objections, Inter-Am CtHR (Ser. C) No. 67, para. 33 (2000)
52. Bámaca Velásquez (Guatemala), Judgment, Inter-Am CtHR (Ser. C) No. 70, para. 209 (2000). The Commission continues to apply humanitarian law as lex specialis: See the letter from Juan E. Méndez, President of the Commission, to attorneys for those requesting provisional measures (13 Mar. 2002) (quoting letter notifying the US of the imposition of provisional measures), available at http://www.ccr-ny.org/v2/legal/september_11th/docs/ 3-13-02%20IACHRAdoptionofPrecautionaryMeasures.pdf.
53. See also Zegveld, 'The Inter-American Commission on Human Rights and International Humanitarian Law: A Comment on the Tablada Case', 80 IRRC (1998) 505.
54. McCann and Others v United Kingdom, ECtHR, App No 18984/91, paras. 149-150 (27 Sept. 1995).
55. The ECtHR has repeated this passage nearly verbatim in subsequent cases concerning armed conflicts: See Ergi, supra note 140, at para. 79
56. Isayeva I, supra note 1, at para. 169
57. Isayeva II, supra note 1, at para. 173.
58. Isayeva II, supra note 1, at para. 180.
59. Ibid., at para. 191
60. see also McCann, supra note 35, at para. 212.
61. As compared to humanitarian law, the relevance of human rights law to the behaviour of non-state armed groups is quite limited. However, groups that claim to govern a state or aspire soon to govern a state may be responsive to human rights law arguments even if they are not subject to the jurisdiction of any judicial or quasi-judicial human rights body: L. Zegveld, Accountability of Armed Opposition Groups in International Law (2002)
62. Matas, 'Armed Opposition Groups', 24 Manitoba LJ (1997) 621.
63. Protocol I, Art. 1(4).
64. Protocol II, Art. 1(1).
65. The text of Common Art. 3 refers to 'armed conflict not of an international character' without defining 'armed conflict' as such. Proposals to include a definition of armed conflict within Common Art 3 tended to provide criteria similar to those triggering Protocol II, but ultimately no definition was included: See ICRC Commentary on Geneva I, supra note 22, at 49-50.
66. Today, it seems to be widely accepted in principle that Common Art. 3 will be triggered at a much lower threshold of violence, as attested to by Protocol II, Art. 1(2). The International Criminal Tribunal for the Former Yugoslavia has held 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': Tadic, Case No. IT-94-1-AR72 (Appeals Chamber)(2 Oct. 1995), para. 70.
67. Protocol II, Art. 1(2) states that the Protocol 'shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts' (emphasis added).
68. T. Meron, Human Rights in Internal Strife: Their International Protection (1987).
69. Russia acceded to the Geneva Conventions of 1949 on 10 May 1954
70. Protocols I and II on 29 Sept. 1989. See http://www.icrc.org/ihl. In 2000 the Russian Minister of Justice informed the then UN High Commissioner for Human Rights, Mary Robinson, that Russia regards 'the events in Chechnya not as an armed conflict but as a counter-terrorist operation': 'The Russian Authorities Regard the Events in Chechnya not as an Armed Conflict but as a Counter-Terrorist Operation', RIA Novosti, 4 Apr. 2000. And in 2004 Russia succeeded in getting a report of the UN Secretary-General amended to state that Chechnya 'is not an armed conflict within the meaning of the Geneva Conventions' and to refer to 'Chechen illegal armed groups' rather than 'Chechen insurgency groups': Lederer, 'U.N. Seeks to Stop Use of Child Soldiers', Associated Press, 23 Apr. 2004. During the First Chechen War, in 1995, the Russian Constitutional Court indicated that the conflict was governed by Protocol II; however, inasmuch as the Court found that it lacked competence to apply Protocol II, the view of the executive is here more important than that of the judiciary.
71. See Gaeta, 'The Armed Conflict in Chechnya before the Russian Constitutional Court', 7 EJIL (1996) 563.
72. Isayeva I, supra note 1, deals with civilians escaping the city during the siege. Isayeva II, supra note 1, deals with the Russian attack on an outlying village as insurgents retreated through it from Grozny. A thorough exploration of the attack on another such village can be found in A. Meier, Chechnya: To the Heart of a Conflict (2005).
73. 'A Forgotten Conflict' (21 Mar. 2005), available at http://www.chechnya-mfa.info/print_press.php?func=detail&par=12765.
74. Thomas, 'Grozny 2000: Urban Combat Lessons Learned', Military Review (July-Aug. 2000)
75. Bagrov, 'Chechen Rebels Put Up Tough Fight', AP, 25 Jan. 2000.
76. Thomas, supra note 47
77. Cockburn, 'Chechen Leader Pledges to Retake Grozny', The Independent (London), 8 Feb. 2000, Foreign News, 15
78. Alkhan-Kala, 'Russian Troops Advance as Chechens Flee Capital', St Louis Post-Dispatch (Missouri), 4 Feb. 2000, A5.
79. Thomas, supra note 47
80. Bagrov, 'Chechen Rebels Put Up Tough Fight', AP, 25 Jan. 2000.
81. Bagrov, 'Russians Encircle Chechen Rebels', AP, 27 Feb. 2000.
82. Turkey acceded to the Geneva Conventions of 1949 on 10 Feb. 1954; it has never acceded to Protocol I or II. See http://www.icrc.org/ihl.
83. Kinzer, 'Rebel Kurds Back Leader In Peace Offer To the Turks', New York Times, 3 June 1999, A7.
84. Kocher, 'The Decline of PKK and the Viability of a One-state Solution in Turkey', 4 International Journal on Multicultural Societies (2002) 5.
85. Cowell, 'Turks' War With Kurds Reaches a New Ferocity', New York Times, 18 Oct. 1993, A3.
86. Veuthey, 'Learning from History: Accession to the Conventions, Special Agreements, and Unilateral Declarations', 27 Collegium (2002) 139, at 144.
87. Protocol I, Art. 96(3) provides that a people engaged in a national liberation struggle 'may undertake to apply the Conventions and this Protocol in relation to that conflict by means of a unilateral declaration addressed to the depositary'.
88. Turns, supra note 23, at 133: 'The Turkish Foreign Ministry expressly denies the suggestion that the insurgency in south-eastern Turkey can be regarded as an armed conflict, however characterized, within the meaning of the Geneva Conventions, on the following grounds: (1) the PKK does not respect the rules of war; (2) the PKK's unilateral declaration of a "cease-fire" in Sept. 1999 has no effect on the organization's legal status; (3) the PKK does not control territory in the sense of being able to conduct sustained and concerted military operations and to implement humanitarian law; (4) the PKK's attacks occur all over Turkey and also in foreign States, thereby negating the concepts of civil war and armed conflict as such.' The first, second, and fourth points are irrelevant; the third point would go to the applicability of Protocol II were Turkey a party to that treaty.
89. See Meron, 'The Humanization of Humanitarian Law', 94 AJIL (2000) 239, at 272. The UK acceded to the Geneva Conventions of 1949 on 23 Sept. 1957 and to Protocols I and II on 28 Jan. 1998 (but with a reservation undercutting Protocol I's application to national liberation movements). See http://www.icrc.org/ihl.
90. See, e.g., Pogatchnik, 'Harsh Brand of Justice in Belfast: IRA Gun Squads Mete Out Punishment for "Anti-Social Behavior"', San Francisco Chronicle, 5 Dec. 1990, A6.
91. See, e.g., Lohr, 'I.R.A. Shifts Tactics, and the Results Are Deadly', New York Times, 23 Aug. 1988, A3.
92. Ibid.
93. While Common Art. 3 specifies that its application 'shall not affect the legal status of the Parties to the conflict' - see also Protocol II, Art. 3 (affirming the sovereignty of the state) - it does in fact carry both legal and political implications for the status of the rebels. As Abi-Saab notes, 'common article 3 does confer a certain objective legal status on "rebels"': T. Meron, Human Rights in Internal Strife: Their International Protection (1987) 38 (quoting Abi-Saab, 'Wars of National Liberation and the Laws of War', 3 Annals Int'l L Studies (1972) 93, at 96, emphasis added). Meron points out that, while Common Art. 3 does not make rebels 'privileged combatants' and impede their prosecution under criminal law, 'the reluctance of States to acknowledge the applicability of Article 3 demonstrates the cogency of Abi-Saab's analysis'.
94. Parks, 'Memorandum of Law: Executive Order 12333 and Assassination', Army Lawyer, Dec. 1989, 4, at 5.
95. Solf, who was a member of the US delegation to the 1974-1977 Diplomatic Conference that produced Protocols I and II, has attempted to convey 'the concrete objections' that the delegations from 'newer third world states' had with extending international armed conflict concepts of 'combatant status' and 'distinction between combatants and civilians' to internal armed conflicts: Solf, 'Problems with the Application of Norms Governing Interstate Armed Conflict to Non-International Armed Conflict', 13 Ga J Int'l & Comp L (1983) 291. 'Do you really think', such a delegate asks, 'that we would concur in any treaty that would grant immunity from our treason laws to our domestic enemies, and by doing so grant them a license to attack the government's security personnel and property, subject only to honorable internment as prisoners of war for the duration of the conflict?:
96. ibid., at 292. In a state already 'plagued with ideological and ethnic rivalries, aided and abetted by external states', this would only 'encourage[ ] rebellion by reducing the personal risk of "the rebels"'
97. ibid. Under Common Art. 3 and Protocol II, it is absolutely permissible to treat an insurgent as a criminal: ICRC Commentary on Geneva I, supra note 22, at 39. By unabashedly treating rebels as criminals - who, like other criminals, have rights - the ECtHR's approach avoids implying that rebels have any status above - or below - that of other citizens.
98. Bothe, supra note 22, at 669. With respect to the principle of distinction in the conduct of hostilities, Solf's delegate says, 'My government knows that needlessly attacking innocent civilians tends to strengthen dissident movements and we will take strong measures against such misbehavior by our armed forces. But to prescribe an international norm prohibiting attacks against civilians and civilian objects implicitly suggests that it is permitted to attack security personnel and objects': Solf, supra note 64, at 292. These objections were overcome, but the attitudes remain. By affirming everyone's right to life, the ECtHR's approach avoids any implication that attacks on government forces are permitted.
99. Protocol II, Art. 13(3): 'Civilians shall enjoy the protection afforded by this Part [not to be an object of attack], unless and for such time as they take a direct part in hostilities'.
100. See supra note 22.
101. Kretzmer, 'Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?', 16 EJIL (2005) 171, at 197-200.
102. Ibid., at 189-201.
103. See also ibid., at 177-183
104. Watkin, 'Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflicts', 98 AJIL (2004) 1, at 32-33.
105. McCann, supra note 35, at para. 200.
106. Ibid., at para. 211 (emphasis added).
107. See Ergi, supra note 14, at para. 79 ('[state responsibility] may also be engaged where [agents of the state] fail to take all reasonable precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to minimising, incidental loss of civilian life.')
108. Isayeva II, supra note 1, at para. 183 (inquiring 'whether the operation was planned and conducted in such a way as to avoid or minimise, to the greatest extent possible, harm to civilians, as is required by Article 2 of the [ECHR].')
109. Isayeva I, supra note 1, at paras. 177, 199.
110. Isayeva I, supra note 1, at para. 171
111. Isayeva II, supra note 1, at para. 175
112. see also Ergi, supra note 14, at para. 79.
113. See also the position of the amici in Isayeva I: Isayeva I, supra note 1, at para. 167: 'The submission argued that the law of non-international armed conflicts as construed by international human rights law established a three-part test. First, armed attacks on mixed combatant/civilian targets were lawful only if there was no alternative to using force for obtaining a lawful objective. Second, if such use of force was absolutely necessary, the means or method of force employed could only cause the least amount of foreseeable physical and mental suffering. Armed forces should be used for the neutralization or deterrence of hostile force, which could take place by surrender, arrest, withdrawal, or isolation of enemy combatants - not only by killing and wounding. This rule required that states make available non-lethal weapons technologies to their military personnel. Furthermore, the authorities should refrain from attacking until other non-lethal alternatives could be implemented. Third, if such means or method of using force did not achieve any of its lawful objectives, then force could be incrementally escalated to achieve them.'
114. Protocol I, Art. 51(4) ('Indiscriminate attacks are prohibited. Indiscriminate attacks are: [list] and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.').
115. Protocol I, Art. 57(2)(a) ('[T]hose who plan or decide upon an attack shall:... refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.').
116. Protocol I, Art. 57(2)(a) ('[T]hose who plan or decide upon an attack shall:... take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.')
117. Protocol I, Art. 5 7(2)(c) ('[E]ffective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.').
118. Protocol I, Art. 57(2)(a)(i).
119. Protocol I, Art. 57(2)(a)(ii).
120. Protocol I, Art. 57(4).
121. Protocol I, Art. 57(2)(b).
122. Protocol I, Art. 57(2)(c).
123. Protocol II, Art. 13(1).
124. See Cassese, supra note 23, at 194-195
125. but see Bothe, supra note 22, at 677 ('It is certainly arguable that attacks against densely populated places which are not directed at military objectives, those which cannot be so directed, and the area bombardments prohibited by para. 5(a) of Art. 51 [of Protocol I] are inferentially included within the prohibition against making the civilian population the object of attack. Their deletion may be said to be part of the simplification of the text.').
126. Ibid., at 670.
127. Ibid., at 671.
128. Ibid.
129. Ibid., at 677-678.
130. Ibid., at 677.
131. Ibid., at 670-671, 677 (arguing that because Protocol II, Art. 13(1) tracks the language of Protocol I, Art. 51(1) except to exclude the clause specifying that the rules given 'are additional to other applicable rules of international law', it is difficult to argue that precautionary measures or proportionality are implicit in the phrase 'general protection')
132. but see ICRC Commentary on Additional Protocols, supra note 22, at 1450-1451 ('The question may well be asked whether the reference to international law was intentionally omitted in order to suggest that customary law is deemed not to apply to situations of non-international armed conflict. It would seem that this is not the case. The discussions in Conference do not indicate that any doubt was cast on the applicability of customary law. The reference to other rules of international law was probably omitted because it was not considered necessary, given that the only rule explicitly laid down for non-international armed conflicts is common Article 3 of the 1949 Conventions, which does not contain provisions relating to the protection of the civilian population as such.').
133. Ibid., at 1448-1450.
134. Protocol II's unusual drafting history does, however, leave at least some room for disagreement regarding the state of customary law even as of 1977. As negotiations came to a close, a text elaborated in private, mainly by the Canadian and Pakistani delegations, supplanted the text negotiated in committee and was adopted without extensive discussion or modification: Eide, 'The New Humanitarian Law in Non-International Armed Conflict', in A. Cassese (ed), The New Humanitarian Law of Armed Conflict (1979), at 277, 277-278. The resulting record casts less light on the legal views of each state than would otherwise be the case.
135. Ergi, supra note 14, at para. 79.
136. Isayeva I, supra note 1, at paras. 195-197.
137. Isayeva II, supra note 1, at para. 190.
138. Isayeva I, supra note 1, at para. 175.
139. Ibid., at para. 183.
140. Ibid., at para. 187.
141. Ibid., at para. 186.
142. Ibid., at para. 188.
143. Ibid., at para. 189.
144. Ergi, supra note 14, at para. 80.
145. Ibid., at para. 80.
146. Ibid., at para. 80.
147. Isayeva II, supra note 1, at paras. 13, 185, 187.
148. Ibid., at para. 187.
149. Ibid., at para. 189.
150. McKerr v United Kingdom, ECtHR, App No 28883/95, 4 May 2001, para. 22 (emphasis added)
151. see also Isayeva II, supra note 1, at para. 181 ('Accepting that the use of force may have been justified in the present case, it goes without saying that a balance must be achieved between the aim pursued and the means employed to achieve it. The Court will now consider whether the actions in the present case were no more than absolutely necessary for achieving the declared purpose.')
152. Güleç, supra note 13, at para. 16 ('The Court, like the Commission, accepts that the use of force may be justified in the present case under paragraph 2 (c) of Article 2, but it goes without saying that a balance must be struck between the aim pursued and the means employed to achieve it.').
153. Isayeva II, supra note 1, at para. 180.
154. Ibid., at para. 191.
155. M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (3rd edn., 2000), at 132-133.
156. Protocol I, Art. 52 (2) (emphasis added).
157. Protocol I, Art. 51(5)(b) (emphasis added).
158. See Eide, 'The Laws of War and Human Rights - Differences and Convergences', in C. Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (1984), at 675, 681: 'It is beyond the laws of war to determine whether it is necessary, or legitimate, for a State to bend another's will, or to conquer. Thus, the question of what is necessary is left completely to each State concerned. Their own, subjective discretion in determining what is necessary, is a key factor in this law.'
159. Ibid., at 681-682.
160. Universal Declaration of Human Rights, Art. 29 (2).
161. McCann, supra note 35, at para. 149.
162. See also Haßenpflug, 'Comment' (on paper by Heintze), 45 German YIL (2002) 78, at 80-81: 'The proportionality test as enshrined in many IHL provisions... seeks to maintain a careful balance between standards of humanitarian law and objectives of military necessity, whereas the proportionality test to be applied in human rights cases envisages restrictions of individual rights for the necessary safeguard of public interests. The concept of public interest may in some situations prove to be broader than that of military necessity, e.g., the use of certain weapons may fail the proportionality test of Article 35 Additional Protocol I but still meet the proportionality requirement of Article 2 para. 2 lit. c ECHR. On the other hand, situations are thinkable where the military necessity would justify the infringement of humanitarian standards although the public interest justifying the violation of those standards is rather low. Additionally, it could be argued that in armed conflict situations where the right to life has been violated (Article 2 para. 2 lit. c ECHR), the IHL proportionality test should prevail because of the "lex specialis" character of IHL. At least, it should be taken into consideration that the proportionality tests as applied in human rights and IHL are based on different criteria (i.e., notions of public interest and military necessity).'