Of custom, treaties, scholars and the gavel: The influence of the International Criminal Tribunals on the ICRC Customary Law Study

Journal of Conflict and Security Law

Volumn 11, Issue 2, 2006, Pages 239-263

  Cryer, Robert ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

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[No Author keywords available]

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EID: 33748093428     PISSN: 14677954     EISSN: 14677962     Source Type: Journal    
DOI: 10.1093/jcsl/krl008     Document Type: Article

References (216)

1. See, e.g. Theodor Meron, 'War Crimes in Yugoslavia and the Development of International Law', (1994) 88 AJIL 78
2. Christopher Greenwood, 'The Development of International Humanitarian Law by the International Criminal Tribunal for the Former Yugoslavia', (1998) 2 Max Planck Yearbook of United Nations Law 97
3. and William Fenrick, 'The Development of the Law of Armed Conflict Through the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia', (1998) 3 Journal of Armed Conflict Law 197.
4. Which, of course, might be expected to take a sanguine view of their earlier pronouncements. On the other hand, certain influences, such as that of the Tadić interlocutory appeal (Prosecutor v Tadić, Decision on Interlocutory Appeal on Jurisdiction, IT-94-1-AR72, 2 October 1995) on the ICC Statute can be seen
5. see, e.g. Lindsay Moir, The Law of Internal Armed Conflict (2002) 160.
6. Sir Hersch Lauterpacht, The Development of International Law by the International Court (1958) 21.
7. Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (2005) [hereinafter Study].
8. The precise status of the study as an ICRC document is a little more complex than might be thought. Although it was mandated by the 26th Conference of the Red Cross and Crescent, contains the ICRC logo on the cover and is said by the ICRC President to be believed by the ICRC to be an accurate statement of the law (Jakob Kellenberger, 'Foreword' in the Study, ix, p. xi), it is not a formal ICRC statement of views, and the ICRC states that it 'respected the academic freedom both of the report's authors and the experts consulted' (ibid.). The Study (even if in preparation) is conspicuously absent from François Bugnion, 'The International Committee of the Red Cross and the Development of International Humanitarian Law', (2004-2005) 5 Chicago Journal of International Law 191.
9. See, e.g. the 1949 Geneva Convention III Relative to Prisoners of War, 75 UNTS 135, articles 3, 123, 125 and 126. Protocol Additional to the Geneva Conventions of 12 August 1949, 1125 UNTS 3, article 5(3).
10. On the ICTR and international law, see Larissa J. van den Herik, The International Criminal Tribunal for Rwanda and the Development of International Law (2005).
11. The only notable use is in relation to command responsibility; see e.g. Study, vol. 2, pp. 3768-3772.
12. Jakob Kellenberger, loc. cit., fn. 5.
13. Yves Sandoz, 'Foreword' in the Study, xiv, p. xvii.
14. Sandoz, op. cit., fn. 9, p. xvii.
15. See Prosecutor v Hažihasanović and Kubura, Decision on Joint Defence Interlocutory appeal of Trial Chamber Decision on Rule 98bis Motions for Acquittal, IT-01-47-AR73.3, 11 March 2005, paras 29-30, 38 and 45-46
16. Prosecutor v Stakič, Judgment, IT-97-24-A, March 2006, Para 296 and domestically
17. Adalah and others v GOC Central Command, IDF and others, Israel Supreme Court, 23 June 2005, HCJ, 3799, 02, paras 20, 21 and 24.
18. Meron avers that the Study 'will be a significant aid to international criminal tribunals', Meron, 'Revival of Customary Humanitarian Law', (2005) 99 AJIL 817 at 833.
19. On which see Iain Scobbie, 'Poisoned Chalice or New Pictet?', in a future issue of this journal
20. and see also Malcolm Maclaren and Felix Schwendimann, 'An Exercise in the Development of International Law: The New ICRC Study on Customary International Law', (2005) 6 German Law Journal 1217 at 1237-1238.
21. There has also been criticism from members of the US forces; see, e.g. W. Hays Parks, 'The ICRC Customary Study: A Preliminary Assessment', (2005) 99 Proceedings of the American Society of International Law 208.
22. Of which, I consider myself to be one. Lest there be any misinterpretation of this piece, the compliments herein directed to the Study are not sops to professional courtesy but a reflection of genuine admiration for the Study, and the criticisms ought to be read against the background of my support for most of what the Study says, and its intentions in full.
23. Even in the case of the Tokyo IMT, its basis is probably treaty law, i.e. the instrument of surrender between Japan and the Allies.
24. The 1945 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, 82 UNTS 279.
25. Prosecutor v Tadić, fn. 2, paras 28-40.
26. See, e.g. William A. Schabas, 'Interpreting the Statutes of the ad hoc Tribunals', in Lal Chand Vohrah et al. (eds.), Man's Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (2003) 847 at 849-870.
27. The 2001 agreement between the United Nations and Sierra Leone on the establishment of a Special Court. This article treats the Special Court as an international tribunal solely on the basis that the Study does. Despite its protestations to the contrary (see, e.g. Prosecutor v Taylor, Decision on Immunity, SCSL-2003-01-I, 31 May 2004, paras 37-42), the Special Court is a hybrid tribunal.
28. For criticism of the Special Court's views, see Zsuzsanna Deen-Racsmány, 'Prosecutor v Taylor: The Status of the Special Court for Sierra Leone and its Implications for Immunity', (2005) 18 Leiden Journal of International Law 299.
29. Probably the classic work in the area is Richard R. Baxter's, 'Multilateral Treaties as Evidence of Customary International Law', (1965-1966) 41 British Yearbook of International Law 275.
30. A more modern and very useful study is Mark Villiger's, Treaties and Custom: A Manual on the Theory and Practice of the Interrelationship of Sources (2nd edn., 1997).
31. See also Michael Byers, Custom: Power and the Power of Rules: International Relations and Customary International Law (1999) 166-180
32. and Jonathan I. Charney, 'International Agreements and the Development of Customary International Law', (1986) 61 Washington Law Review 971.
33. For a critical view of scholarship on the relationship between treaties and custom, see Arthur M. Weisburd, 'Customary International Law: The Problem of Treaties', (1988) 21 Vanderbilt Journal of Transnational Law 1.
34. Oscar Schachter, 'Entangled Treaty and Custom', in Yoram Dinstein (ed.), International Law in a Time of Perplexity: Essays in Honour of Shabtai Rosenne (1989) 717.
35. (1969) ICJ Reports 3.
36. Ibid., paras 60-82.
37. See also 'International Law Association', Report of the Committee on Formation of Customary (General) International Law 1, 42-54.
38. Ibid., p. 43.
39. Baxter, op. cit., fn. 19, pp. 286, 299.
40. Ibid
41. this is something misunderstood by Weisburd, loc. cit., fn. 19, pp. 39-41.
42. See, e.g. Frederick Kirgis, 'Custom on a Sliding Scale', (1987) 81 American Journal of International Law 146 at 147-150
43. and Meron, Human Rights and Humanitarian Law as Customary Law (1989).
44. See also Anthea Elizabeth Roberts, 'Traditional and Modern Approaches to Customary International Law: A Reconciliation', (2001) 95 AJIL 757 at 764-766, 772-774.
45. See, e.g. Michael Akehurst, 'Custom as a Source of international Law', (1976) 47 BYIL 1 at 45-48.
46. As the Study notes, p. xliii, see Maclaren and Schwendimann, op. cit., fn. 12, p. 1123.
47. See, e.g. ILA Report, fn. 22, p. 44
48. and Villiger, op. cit., fn. 19, pp. 232-236.
49. Baxter, op. cit., fn. 19, pp. 277-278.
50. Equally, the fact that preambles are not binding has a bearing on the question in situations where the statement of a treaty's codificatory nature is made there (Villiger, ibid., p. 236). And, that is where most of such statements are made.
51. Villiger, op. cit., fn. 19, p. 232.
52. See ibid., pp. 231-232.
53. ILA Report, fn. 22, pp. 50-54
54. and Villiger, op. cit., fn. 19, chap. 6.
55. North Sea Continental Shelf case, fn. 21, para. 71.
56. ILA Report, fn. 22, p. 46. The fact that the major rules of humanitarian law are of a fundamentally norm-creating manner is not irrelevant here.
57. Villiger, op. cit., fn. 19, pp. 182-183.
58. ILA Report, fn. 22, pp. 46-47.
59. See, for example, Christopher Greenwood, 'The Customary Status of the 1977 Geneva Protocols', in Astrid J.M. Delissen and Gerard J. Tanja, The Humanitarian Law of Armed Conflict: Challenges Ahead (1991) 93.
60. See Baxter, op. cit., fn. 19, pp. 282-283.
61. Ibid., pp. 285-286.
62. Such a process appears to have occurred with respect to at least most of the 1949 Geneva Conventions.
63. The literature is so strong that it is to be hoped that readers will forgive the rather heavy use of quotation in this section. For some of the best examples amongst this literature, see, in particular, Lauterpacht, loc. cit., fn. 3
64. Mohammed Shahabuddeen, Precedent in the World Court (1995)
65. Robert Y. Jennings, 'The Judiciary, National and International, and the Development of International Law', (1996) 45 ICLQ 1
66. and Georg Schwarzenberger, International Law as Applied By International Courts and Tribunals, vol. 1 (3rd edn., 1957).
67. Igor P. Blischenko, 'Judicial Decisions as a Source of International Humanitarian Law', in Antonio Cassese (ed.), The New Humanitarian Law of Armed Conflict (1979) 41 at 51.
68. For a modern (and non-trite) appraisal, see Guénaël Mettraux, International Crimes and the ad Hoc Tribunals (2005) 13-18.
69. Sir Gerald Fitzmaurice, 'Some Problems Regarding the Formal Sources of International Law', (1958) Symbolae Verzijl 153 at 172
70. Ian Brownlie, The Rule of Law in International Affairs: International Law at the 50th Anniversary of the United Nations (1998) 28.
71. See James Crawford, The International Law Commission's Articles on State Responsibility: Texts and Commentaries (2002).
72. Robert Y. Jennings and Arthur Watts (eds.), Oppenheim's International Law: Volume I: Peace (9th edn., 1992) 41. The only caveat that may be entered is about the inconspicuous nature of some of the development of international law by some courts.
73. Shahabuddeen, op. cit., fn. 41, p. 72.
74. It might be noted parenthetically that, in the context of state responsibility, states have expressly used this possibility to argue against any quick attempt to adopt the ILC rules into a treaty; see James Crawford and Simon Olleson, 'The Continuing Debate on a UN Convention on State Responsibility', (2005) 54 ICLQ 959 at 960, 966-968.
75. Jennings, op. cit., fn. 41, p. 3.
76. Sir Gerald Fitzmaurice, 'Judicial Innovation-its Uses and its Perils', in R.Y. Jennings (ed.), Cambridge Essays in International Law in Honour of Lord McNair (1965) 24.
77. Lauterpacht, op. cit., fn. 3, p. 18.
78. Schwarzenberger, op. cit., fn. 41, p. 30.
79. Ibid., p. 32.
80. See also Mettraux, op. cit., fn. 42, p. 15.
81. It might be noted that the ICTY has, on at least one occasion, expressly refused to follow an earlier decision of the ICTR it considered badly reasoned; see Prosecutor v Vasiljević, Judgment, IT-98-32-T, 29 November 2002, fn. 586.
82. On hegemony and international law generally, see Detlev Vagts, 'Hegemonic International Law', (2001) 95 AJIL 843
83. and José E. Alvarez, 'Hegemonic International Law Revisited', (2003) 97 AJIL 873.
84. Brownlie, op. cit., fn. 43, p. 33.
85. José Alvarez has expressed doubt at the extent to which the ad hoc tribunals' decisions can be independent of the wishes of those tribunal's creators. See Alvarez, 'Crimes of Hate/Crimes of State: Lessons From Rwanda', (1999) 23 Yale Journal of International Law 365 at 398.
86. Alvarez provides no empirical evidence of this at the judicial stage, however, and the extent to which China and Russia welcomed the decisions on the law applicable to non-international armed conflicts and crimes against humanity, inter alia, in Prosecutor v Tadić, fn. 2, paras 96-136
87. and Prosecutor v Tadić, Judgment, IT-94-1-T, 7 May 1997, para 627, might be queried.
88. Mark Osiel views the ICTY's development of joint criminal enterprise liability as proof of their independence from the United States see Mark J. Osiel, 'Modes of Participation in Mass Atrocity', (2005) 39 Cornell International Law Journal 793 at 800-802.
89. Martti Koskenniemi, in stating that the 1999 Tadić appeal (Prosecutor v Tadić, Judgment, IT-94-1-A, 15 July 1999) demonstrated a 'bias to guarantee as wide a scope for international prosecutions as possible', at least implicitly takes the view that the judges of the ICTY have minds of their own, Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2006) 586.
90. See, e.g. Antonio Cassese, International Criminal Law (2003) 91-94.
91. See, e.g. the papers in the 'Agora: The ICJ Advisory Opinion on the Construction of a Wall in the Occupied Palestinian Territory', (2005) 99 AJIL 1-141.
92. The classic statement of the role of academics in international law is Clive Parry, The Sources and Evidences of International Law (1968) 103-108.
93. See, for example, Fitzmaurice, op. cit., fn. 43, pp. 174-175.
94. See, e.g. Prosecutor v Krstić, Judgment, IT-98-33-A, 19 April 2004, paras 10 and 25
95. and Prosecutor v Stakić, Judgment, IT-97-24-T, 31 July 2003, para. 519.
96. The famous Tadić interlocutory appeal was clearly influenced by Meron's work. See, for example, Meron, 'International Criminalization of Internal Atrocities', (1995) 89 AJIL 554. Meron was a consultant to the prosecutor in the Tadić litigation.
97. Perhaps most notable in this regard is Meron, loc. cit., fn. 26.
98. Not least, by collecting instances of practice together, which states, courts and advocates may not have the ability or time to do. Scholarly studies have, since at least Vattel's, Principles of the Law of Nations [1916 (originally 1758)], proved highly influential and not just amongst scholars
99. see (from very different perspectives) B.S. Chimni, International Law and World Order: A Critique of Contemporary Approaches (1993) 229-230
100. Jeremy Rabkin, Law Without Nations: Why Constitutional Government Requires Sovereign States (2005) 78-81
101. and Koskenniemi, op. cit., fn. 54, p. 112.
102. See, e.g. Robert Jennings, 'International Lawyers and the Progressive Development of International Law', in Jerzy Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century: Essays In Honour of Krysztof Skubizewski (1996) 413.
103. Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), ICJ General List 121, 14 February 2002.
104. For a selection of the critical literature, see Cassese, 'When May Senior State Officials Be Prosecuted for International Crimes: Some Comments on the Congo v Belgium Case', (2002) 13 EJIL 853
105. Steffen Wirth, 'Immunity for Core Crimes? The ICJ's Judgment in the Congo v Belgium Case', (2002) 13 EJIL 877
106. Neil Boister, 'The ICJ in the Belgian Arrest Warrant Case: Arresting the Development of International Criminal Law', (2002) 7 JCSL 293
107. and Roger O'Keefe, 'Universal Jurisdiction: Clarifying the Basic Concept', (2004) 2 Journal of International Justice 735.
108. Study, pp. xlii-xliv.
109. The Study itself notes this. See the critical remarks of Daniel Bethlehem, The Law of Armed Conflict: Problems and Prospects, Chatham House, 18-19 April 2005, Transcripts and Summaries 9 at 12.
110. Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808, UN doc. S/25704, para. 34.
111. Daphna Shraga and Ralph Zacklin, 'The International Criminal Tribunal for Rwanda', (1996) 7 EJIL 501 at 504.
112. Report of the Secretary General Pursuant to Paragraph 5 of Security Council Resolution 955. UN doc. S/1995/134, para. 12.
113. See, e.g. Study, pp. 10, 183, 311, 315, 320, 321, 324, 328, 334.
114. Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, 4 October 2000, UN doc. S/2000/915, para. 12.
115. Ibid., paras 17-18.
116. Statute of the International Criminal Court, 2187 UNTS 3, article 8(2)(e)(vii).
117. Letter From the President of the Security Council to the Secretary-General, 22 December 2000, UN doc. S/2000/1234, 2.
118. Study, p. 596.
119. Study, pp. xliv-xlv.,
120. quoting Philippe Kirsch, 'Foreword', in Knut Dörmann (ed.), Elements of War Crimes Under the Rome Statute of the International Criminal Court: Sources and Commentary (2003) xiii.
121. See, e.g. Leila Nadya Sadat, 'Custom, Codification and Some Thoughts About the Relationship Between the Two: Article 10 of the ICC Statute', (2000) 49 De Paul Law Review 909
122. contra, e.g. Kenneth S. Gallant, 'Jurisdiction to Adjudicate and Jurisdiction to Prescribe in International Criminal Courts', (2003) 48 Villanova Law Review 763.
123. See Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (2005) chaps 5-6.
124. Prosecutor v Furundžija, Judgment, IT-95-17/1-T, 10 December 1998, para. 227.
125. Prosecutor v Tadić, Judgment, 15 July 1999, IT-94-1-A, para. 223, but see Separate Opinion of Judge Shahabuddeen, para. 3.
126. ICC/ASP/1/3.
127. See, Erkin Gadirov, 'Article 9' in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999) 289.
128. Study, p. xxxiv.
129. For other problems with the way in which the Study approaches case law, in relation to human rights bodies, see Heike Krieger, 'A Conflict of Norms: The Relationship Between Humanitarian Law and Human Rights Law in the ICRC Customary Study', in this issue of the journal.
130. The Special Court for Sierra Leone, for example, has come under considerable criticism for the quality of the reasoning in some of its decisions, see, e.g. Deen-Racsmány, loc. cit., fn. 18
131. Sarah Williams, 'Amnesties in International Law: The Experience of the Special Court for Sierra Leone', (2005) 5 Human Rights Law Review 271 at 307
132. and Robert Cryer, 'Commentary', in Goran Sluiter and Andre Klip (eds.), Annotated Leading Cases of the International Criminal Tribunals, vol. 9 56.
133. 'Nuremberg IMT, Judgment and Sentence', (1947) 41 AJIL 172 at 248.
134. Study, p. xliv. The ICJ, for example, has taken this view without criticism
135. see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004), ICJ Rep. 172, para. 89
136. Case Concerning Armed Activities On the Territory of the Congo, ICJ General List 116, para. 217.
137. Study, p. xliii.
138. Maclaren and Schwendimann, op. cit., fn. 12, pp. 1226-1228.
139. Ibid., p. 1227.
140. On which see Christine Byron, 'Armed Conflicts: International or Non-International?', (2001) 6 JCSL 63.
141. Tadić, fn. 54, paras 83-162
142. and Kordić and Čerkez Judgment, IT-95/2-A, 17 December 2004, paras 295-378.
143. A distinction which Lauterpacht, for example, doubted, op. cit., fn. 3, p. 61
144. and see also Shabtai Rosenne, The Perplexities of Modern International Law (2004) 45.
145. Equally, the ICTY considers there to be such concepts, Prosecutor v Aleksovski, Judgment, IT-95-14/1-A, 24 March 2000, paras 110 and 113.
146. See Prosecutor v Tadić, fn. 2, para. 70
147. and Rome Statute, article 8(2)(e).
148. See David Turns, 'Weapons in the Customary Study', in this issue of the journal.
149. Tadić, fn. 2, para. 119.
150. Study, p. 240.
151. See, e.g. Study, pp. 7-8, 129, 262.
152. Study, p. 311.
153. Meron characterises the approach of the ICTY as 'conservative' on customary law (Meron, op. cit., fn. 11, pp. 821-829) but does not refer to many of the more controversial cases.
154. Prosecutor v Kupreškić et al., Judgment, IT-95-16-T, 14 January 2000, paras 521-536.
155. Assuming that the reference to the Geneva Conventions is to those of August 1949 rather than Additional Protocol I, as we will see.
156. Study, p. 523.
157. Study, pp. 512-513.
158. Though see the apposite comments in Dieter Fleck, 'International Accountability for Violations of the Jus in Bello: The Impact of the ICRC Study on Customary International Law', in this issue of the journal.
159. The reasoning in the case is effectively skewered by Greenwood, 'Belligerent Reprisals in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia', in Horst Fischer, Claus Kreß and Sascha Rolf Lüder (eds.), International and National Prosecution of Crimes Under International Law: Current Developments (2001) 539.
160. See also Frits Kalshoven, 'Reprisals and the Protection of Civilians: Two Recent Decisions of the Yugoslavia Tribunal', in Vohrah et al. (eds.), Man's Inhumanity to Man: Essays in Honour of Antonio Cassese (2003) 481.
161. Ibid., p. 550.
162. Kalshoven, op. cit., fn. 103, p. 504.
163. Ibid., p. 508.
164. Prosecutor v Kupreš kić, fn. 99, paras 521-536.
165. See Ministry of Defence, Manual of the Law of Armed Conflict (2004) 421.
166. There are many references to academic works in the Study when it deals with the particular rules, but the vast majority of the references are simply to factual assertions. There are some references to the ICRC commentaries on the Geneva Conventions and Additional Protocols, see, e.g. Study, vol. 2, pp. 330, 342, 506, 545, 977, 989, 990, 1205, 1338, 1354, 1388, 1414, 1437, 1457, 1551, 1786, 1793, 2060, 2137, 2147, 2456, 2467, 2487, 2512, 2880, 2895, 3195, 3286, 3299, 3528, 3591, 3883.
167. The most heavily used piece of academic literature, which is used to assist in the determination of custom, is a piece by Michael Matheson, 'The United States Position on the Relation of Customary Law to the 1977 Protocols Additional to the Geneva Conventions of 1949', (1986) 2 American University Journal of International Law and Politics 419.
168. The piece is referred to, e.g., in the Study, vol. 2 at pp. 73, 187, 318, 351, 472, 526, 572, 664, 698, 709, 721, 834, 835, 895, 926, 988, 1134, 1268, 1326, 1337, 1353, 1387, 1539, 1993, 2006, 2035, 2187, 2204, 2278, 2387, 2408, 2509, 2532, 2544, 2560, 2579, 2587, 2638, 2661, 2686, 2712, 2720, 2730, 2747, 2770, 2831, 3085, 3104, 3204, 3382, 3392, 3420, 3451, 3469, 3478, 3487, 3498, 3993, 4077.
169. It seems that this was (quite sensibly, given the title, Matheson's position as Deputy Legal Adviser to the US State Department and the absence of any caveat in the piece that he is speaking in a personal capacity) basically taken as a statement of US official views rather than a judgment on its intrinsic academic merit. In a slightly ironic twist, one of the very few areas where academic commentaries are used in the Study is on the general conditions of lawful reprisals (Study, vol. 2, pp. 3328, 3336, 3337, 3346, 3374, 3505-3506) where earlier works by Greenwood ['The Twilight of the Law of Belligerent Reprisals', (1989) 20 Netherlands Yearbook of International Law]
170. and Kalshoven [Belligerent Reprisals (1971)] are relied upon quite heavily.
171. Study, p. 565.
172. Study, p. 566.
173. See Paula Gaeta, 'The Defence of Superior Orders: The Statute of the International Criminal Court Versus Customary International Law', (1999) 10 EJIL 172
174. Cassese, International Criminal Law (2003) 231-242
175. Hilaire McCoubrey, 'From Nuremberg to Rome: Restoring the Defence of Superior Orders', (2001) 50 ICLQ 386
176. and Charles Garraway, 'Superior Orders and the International Criminal Court: Justice Delivered or Justice Denied?', (1999) 336 IRRC 785.
177. See, Gaeta, ibid., p. 183.
178. Prosecutor v Strugar, Decision of 22 November 2002, IT-01-42, para. 10; Blaškić Appeal, paras 157-158
179. and Greenwood, op. cit., fn. 37, pp. 123-125.
180. That the provisions of Additional Protocol I on this matter were common ground between the parties in the Ethiopia/Eritrea Claims Commission, Partial Award, Western and Eastern Fronts, Ethiopia's Claims 1 & 3, 19 December 2005, para. 18.
181. On the latter point, see below.
182. Study, p. 576.
183. Ibid., p. 577.
184. See, e.g. the formulation in the New Zealand Proposal concerning article 5, 2 July 1998, UN doc. A/Conf.183/C.1/L40, reprinted in United Nations Conference of Plenipotentiaries for the Establishment of the International Criminal Court: Official Records, vol. 3, Reports and Other Documents, A/Conf.183/13, p. 245.
185. The ICRC considered it necessary to say at Rome that in their view the addition of 'overall' did not alter the interpretation of the crime, Study, pp. 49-50.
186. See Dörmann, op. cit., fn. 75, p. 126.
187. See, e.g. New Zealand Proposal, fn. 117.
188. See Cryer, op. cit., fn. 77, pp. 277-279.
189. See, e.g. the concerns reported in Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (2002) 165.
190. Bethlehem, op. cit., fn. 65, p. 15.
191. The latter of which, it might be noted, does not adopt the Rome Statute's express distinction between civilians and military superiors, despite coming after it.
192. There is a relevant distinction to be made between them, but it is not at the level of mens rea but at the point of determining whether the relevant relationship falls under the test of the person exercising effective control and failing to exercise that control.
193. Study, p. 562.
194. The Study fails to note that the ICTR has since repudiated the case. Prosecutor v Bagilishema, Judgment, ICTR-95-1A-A, 2 July 2003, paras 26-37.
195. Per Saland, 'International Criminal Law Principles', in Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (1999) 189 at 204.
196. Prosecutor v Kayishema and Ruzindana, Judgment, ICTR-95-1-T, 21 May 1999, paras 227-228.
197. 'Judgment', reprinted in B.V.A. Röling and C.F. Rüter (eds.), The Tokyo Judmgent (1977) 29-31.
198. Although this was not uncontroversial, the dissenter who dealt with command responsibility, Judge Röling, did not distinguish civilians and military personnel in relation to the conditions for liability in this regard, 'Dissenting Opinion of Judge Röling', in Röling and Rüter (eds.), ibid., pp. 1062-1064
199. Röling's criticisms of the majority were related to the majority not appropriately dealing with the effective control test for civilians, not the mens rea, which Judge Pal, in essence, did not accept command responsibility for either set of defendants, Dissenting Opinion of Judge Pal, ibid., p. 966.
200. Prosecutor v Delalić, Delić, Mucić and Landžo, Judgment, IT-96-21-T, 16 November 1998, paras 379-393.
201. See also Prosecutor v Krnojelac, Judgment, IT-97-25-T, 15 March 2002, para. 94.
202. Prosecutor v Delalić, Mucić, Delić & Landžo, Judgment, IT-96-21-A, 20 February 2001, para. 240.
203. Prosecutor v Hadžihasanović, Alagic and Kubura, Decision on Interlocutory Appeal in Relation to Command Responsibility, IT-01-47-AR72, 16 July 2003.
204. See Greg Vetter, 'Command Responsibility of Non-Military Superiors in the International Criminal Court (ICC)', (2000) 25 Yale Journal of International Law 89 at 123-124
205. and Elies van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003) 191-192.
206. Though, see Zhu Wenqi, 'The Doctrine of Command Responsibility as Applied to Civilian Leaders: The ICTR and the Kayishema Case', in Sienho Yee and Wang Tieya (eds.), International Law in the Post-Cold War World: Essays in Memory of Li Haopei (2001) 373.
207. See also Krieger, loc. cit., fn. 82.
208. On which see Peter Rowe, 'War Crimes', in McGoldrick, Rowe and Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (2004) 203 at 204-205
209. but, see Georges Abi-Saab, 'The Concept of War Crimes', in Yee and Tieya, op. cit., fn. 132, p. 99 at pp. 112-113.
210. Study, p. 571.
211. To which might be added Prosecutor v Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), SCSL-2004-14-AR72, 31 May 2004.
212. Study, p. 571.
213. Ibid.
214. For critique of the ICTY here, see Robert Cryer, 'Prosecutor v Galic and the War Crime of Terror Bombing' (2004) 2 Israel Defence Forces Law Review.
215. For critique of the SCSL, see Matthew Happold, 'International Humanitarian Law, War Criminality and Child Recruitment: The Special Court for Sierra Leone's Decision in Prosecutor v Samuel Hinga Norman', (2005) 18 Leiden Journal of International Law 283.
216. Although, as Philip Allott points out, such debates risk forgetting that regulating war through law is an ersatz response to the devastation that war inevitably begets, 'Law and War: A Sinister Partnership', (2005) 99 Proceedings of the American Society of International Law 203.