100 Years of Peace Through Law: Past and Future [1 ed.] 9783428548347, 9783428148349

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Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel

Band 191

100 Years of Peace Through Law: Past and Future Edited by

Andreas von Arnauld, Nele Matz-Lück and Kerstin Odendahl

Duncker & Humblot · Berlin

Andreas von Arnauld, Nele Matz-Lück and Kerstin Odendahl (Eds.)

100 Years of Peace Through Law: Past and Future

Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel In der Nachfolge von Jost Delbrück herausgegeben von Andreas von Arnauld, Nele Matz-Lück und K e r s t i n O d e n d a h l Walther-Schücking-Institut für Internationales Recht

191

Völkerrechtlicher Beirat des Instituts: Christine Chinkin London School of Economics James Crawford International Court of Justice, The Hague Lori F. Damrosch Columbia University, New York Vera Gowlland-Debbas Graduate Institute of International Studies, Geneva Rainer Hofmann Johann Wolfgang GoetheUniversität, Frankfurt a.M. Fred L. Morrison University of Minnesota, Minneapolis

Eibe H. Riedel Geneva Academy of International Humanitarian Law and Human Rights Law Allan Rosas Court of Justice of the European Union, Luxemburg Bruno Simma Iran International States Claims Tribunal, The Hague Daniel Thürer Universität Zürich Christian Tomuschat Humboldt-Universität, Berlin Rüdiger Wolfrum Max-Planck-Stiftung für Internationalen Frieden und Rechtsstaatlichkeit, Heidelberg

100 Years of Peace Through Law: Past and Future Edited by

Andreas von Arnauld, Nele Matz-Lück and Kerstin Odendahl

Duncker & Humblot  ·  Berlin

Bibliographic information of the German national library The German national library registers this publication in the German national bibliography; specified bibliographic data are retrievable on the Internet about http://dnb.d-nb.de.

All rights reserved. No part of this book may be reproduced, translated, or utilized in any form or by any means, electronic or mechanical, without the expressed written consent of the publisher. © 2015 Duncker & Humblot GmbH, Berlin Printing: Meta Systems GmbH, Berlin Printed in Germany ISSN 1435-0491 ISBN 978-3-428-14834-9 (Print) ISBN 978-3-428-54834-7 (E-Book) ISBN 978-3-428-84834-8 (Print & E-Book) Printed on no aging resistant (non-acid) paper according to ISO 9706

Internet: http://www.duncker-humblot.de

Foreword The present book is the result of an international conference held in Kiel from 19 to 21 September 2014 in honour of the 100th anniversary of the Walther Schücking Institute for International Law (WSI) at Kiel University. The WSI is the oldest university institute for public international law in the world. It was established in 1913 by the Prussian Minister of Culture and took up work in 1914. Therefore, the year 1914 is regarded as its founding year. In 1995, the institute adopted the name of its former director and judge of the Permanent Court of International Justice, Walther Schücking, who, contrary to the vast majority of German public international lawyers of his time, felt dutybound to create an order of peace and international understanding. Today, focal areas of research of the WSI encompass practically all aspects of public international law. Besides a strong focus on questions of international peace and security, the work of the institute comprises several areas of public international law, such as human rights, international dispute settlement, international criminal law, environmental law, the law of the sea, the history and theory of international law, and cultural heritage law, as well as European Union law and comparative constitutional law. The broad range of activities at the institute includes the publication of the “German Yearbook of International Law” and the “Publications of the Walther Schücking Institute for International Law” series. Furthermore, the WSI is home to Germany’s oldest and biggest university library for international law, which became the first German library to attain the status of UN Depository Library bestowed upon it in 1948. The topic of the international conference in honour of the 100th anniversary of the WSI was “100 Years of Peace Through Law: Past and Future”. The reason for choosing this subject was twofold: First, it picked up one of the main areas of work of Walther Schücking. Second, it referred to one of the key areas of present research and work of the institute as a whole. When we decided about the thematic focus in 2012, we did not expect it to be of such a topicality exactly at the moment the international conference took place. The events in Ukraine as well as in the Arab-Muslim world and in large parts of Africa do raise the question whether it is actually possible to maintain, establish and restore peace with the help of law. Are those who condemn the use of force, those who want to banish it from international relations, those who work for a world in which law prevails – and not power, aggression and violence – only dreamers? We discussed these and several other questions during three days.

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Foreword

The conference was composed of three parts. The opening part, under the title “100 Years of Public International Law” presented a historical perspective. The first speech, held by Prof. Dr. Dr. h.c. mult. em. Knut Ipsen, University of Bochum, one of the numerous distinguished alumni of the institute, dealt with “100 Years of Public International Law in Kiel: The History of the Walther Schücking Institute”. It was followed by a speech delivered by Prof. James Crawford, D.Phil., LL.D., S.C., F.B.A., then University of Cambridge, now Judge at the International Court of Justice, on “The Unfolding of Public International Law since 1914”. The two presentations analysed the entangled developments of both, public international law and an academic institution, between idealism and pragmatism, between disillusionment and high aspirations. The second part of the conference took up the central topic of “Maintenance and Restoration of International Peace and Security”. Three speakers analysed the existing ways as well as available instruments to maintain and restore peace and security: Dr. Gunter Pleuger, former diplomat and then President of the European University Viadrina Frankfurt/Oder, presented the diplomatic means. Prof. Francisco Orrego Vicuña, Ph.D., Santiago de Chile, an experienced arbitrator and judge, dealt with arbitration and judicial settlement as legal means. Prof. Dr. Théodore Christakis, University of Grenoble and Director of the Centre d’Etudes sur la Sécurité Internationale et les Coopérations Européennes, analysed the ways how international peace and security may be maintained and restored by means of (legitimate) force. These general surveys where supplemented by three case studies. Their aim was to show how in practice, depending on the circumstances, the different means (diplomatic and legal means as well as the use of force), are combined with each other. Dr. Lucy Keller Läubli, Swiss Federal Department of Justice and Police, who researched intensively on Cambodia, presented a case study on the peace process in this country. Prof. Dr. Frank Hoffmeister, European Commission, who worked on the European Commission’s Cyprus Desk as well as for the UN Special Advisor on Cyprus, dealt with the case of Cyprus. Prof. Dr. Jean-Yves de Cara, Paris Descartes University, former Executive Director of Paris-Sorbonne University Abu Dhabi and expert on the Maghreb region, exposed the difficulties in restoring peace in Libya. The conference ended with a third part dedicated to the situation arising should the different means of maintaining and restoring peace fail. We looked at the existing rules and the challenges to international humanitarian law. Prof. Dr. Marco Sassòli, University of Geneva, who worked for the ICRC for several years, presented an expert’s tour d’horizon on the “Challenges to International Humanitarian Law”. This exposé was followed by two talks on specific and still unresolved challenges: Prof. Dr. Andreas Paulus, University of Göttingen and Justice of the Federal Constitutional Court of Germany, who formed part of the group of experts of the ICRC on occupation and other forms of administra-

Foreword

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tion of foreign territory, analysed whether the law of occupation may be applied to UN missions. Prof. Math Noortmann LL.M., M.Sc., Ph.D., then Oxford Brookes University, now Coventry University, an expert on non-state actors, presented the challenges posed to international humanitarian law by private military companies. The conference was an inspiring success. The long and in-depth discussions which continued during breaks, receptions and dinners showed us that we still do not have the answers to all questions and problems challenging the maintenance and restoration of international peace and security today. However, we remain confident. In the Institute’s future work we will carry on the legacy of Walther Schücking – an academic writer, a teacher of law, and a practitioner of international law, always devoted to lasting world peace and security. Many thanks to all speakers and their excellent contributions as well as to all participants and their valuable comments! This book could never have been published without the support of an excellent team of three members of the WSI: Jens Theilen took over the immense task of proof-reading, assessing and commenting each single contribution. He was assisted by Liv Christiansen who helped him in verifying footnotes and other sources. Samira Wagner did a wonderful job by formatting the whole text and bringing it in due form. We are extremely grateful for their commitment and all the time they invested. Kiel, October 2015

Andreas von Arnauld, Nele Matz-Lück, Kerstin Odendahl

Table of Contents Part I 100 Years of Public International Law Knut Ipsen 100 Years of Public International Law in Kiel: The History of the Walther Schücking Institute ............................................................................................

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James Crawford The Unfolding of Public International Law Since 1914: International Judgments and Domestic Courts with Special Reference to Germany ..............

31

Part II Maintenance and Restoration of International Peace and Security Gunter Pleuger Maintenance and Restoration of International Peace and Security by Diplomatic Means ........................................................................................

45

Francisco Orrego Vicuña Maintenance and Restoration of International Peace and Security Through Arbitration and Judicial Settlement ....................................................

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Théodore Christakis and Karine Bannelier Maintenance and Restoration of International Peace and Security by Means of Force ............................................................................................

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Lucy Keller Läubli Case Study on Cambodia ..................................................................................

103

Frank Hoffmeister Case Study on Cyprus .......................................................................................

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Jean-Yves de Cara Case Study on Libya .........................................................................................

133

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Table of Contents Part III International Humanitarian Law

Marco Sassòli and Yvette Issar Challenges to International Humanitarian Law .................................................

181

Andreas Paulus UN Missions and the Law of Occupation .........................................................

237

Math Noortmann and Ioannis Chapsos Private Military and Security Companies: A Transnational Legal Approach ...

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List of Authors ........................................................................................................

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List of Abbreviations AFDI AJIL AP API APLPJ Art. Arts. ASEAN ASL ASPJ AU Bd. BRICS Brook. JIL BVerfG BYIL CAR CC CCW CDA cf. Chic. JIL Chin. JIL CIL Conn. JIL CR CTS DIIS DoD DRC ECCC ECHR ECJ EComHR ECR

Annuaire Français de Droit International American Journal of International Law Additional Protocol (to the Geneva Conventions) Asia Pacific Issues Asian-Pacific Law and Policy Journal Article Articles Association of Southeast Asian Nations Air and Space Law Air and Space Power Journal African Union Band (volume) Brazil, Russia, India, China, South Africa Brooklyn Journal of International Law Bundesverfassungsgericht (Federal Constitutional Court of Germany) British Yearbook of International Law Central African Republic Constitutional Commission (of Libya) Convention on Certain Conventional Weapons Constitution Drafting Assembly (of Libya) confer (compare) Chicago Journal of International Law Chinese Journal of International Law Customary international law Connecticut Journal of International Law Cyprus Review Consolidated Treaty Series Danish Institute for International Studies Department of Defense Democratic Republic of the Congo Extraordinary Chambers in the Court of Cambodia European Convention on Human Rights European Court of Justice European Commission of Human Rights European Court Reports

12 ECtHR ed. eds. e.g. EJIL EO et al. etc. et seq. EU EUBAM EWCA EWHC FARC FILJ GA GC GJICL GLJ GNC GöJIL GYIL HNSLJ HoR HPCR HRC HRILD HRLJ IAC ibid. ICC ICD ICESCR ICJ ICLQ ICMP ICRC ICRtoP ICSID ICTY id./ead. IDF IDI

List of Abbreviations European Court of Human Rights Editor/edition Editors exempli gratia (for example) European Journal of International Law Executive Outcomes et alii/et aliae (and others) et cetera et sequens/et sequentia (and following) European Union EU Border Assistance Mission Court of Appeal of England and Wales High Court of England and Wales Revolutionary Armed Forces of Columbia Fordham International Law Journal General Assembly Geneva Convention/Grand Chamber (of the ECtHR) Georgia Journal of International and Comparative Law German Law Journal General National Congress (of Libya) Göttingen Journal of International Law German Yearbook of International Law Harvard National Security Law Journal House of Representatives (of Libya) Humanitarian Policy and Conflict Research Program United Nations Human Rights Council Human Rights and International Legal Discourse Human Rights Law Journal International armed conflict ibidem (at the same place) International Criminal Court Interim Constitutional Declaration (of Libya) International Covenant on Economic, Social and Cultural Rights International Court of Justice International and Comparative Law Quarterly International Commission on Missing Persons International Committee of the Red Cross International Coalition for the Responsibility to Protect International Centre for Settlement of Investment Disputes International Criminal Tribunal for the former Yugoslavia idem/eadem (the same) Israeli Defense Forces Institut de Droit International

List of Abbreviations IHFFC IHL IHRL ILS IRRC Irv. LR ISAF ISIL ISIS IYHR JCSL JICJ JILP JIR JLE JORF KFOR LJIL LNTS LRTWC Mich. JIL MINUSCA MINUSMA MJIS MLLWR MN MONUC MONUSCO MPEPIL MPRI MPYUNL NATO NGO NIAC NJB NLR No. NQHR NTC

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International Humanitarian Fact-Finding Commission International humanitarian law International human rights law International Law Studies International Review of the Red Cross Irvine Law Review International Security Assistance Force Islamic State of Iraq and the Levant (also ISIS or Daech) Islamic State of Iraq and Syria (also ISIL or Daech) Israel Yearbook on Human Rights Journal of Conflict and Security Law Journal of International Criminal Justice New York University Journal of International Law and Politics Jahrbuch für Internationales Recht Journal of Legal Education Journal Officiel de la République Française Kosovo Force Leiden Journal of International Law League of Nations Treaty Series Law Reports of Trials of War Criminals Michigan Journal of International Law United Nations Multidimensional Integrated Stabilisation Mission in the Central African Republic United Nations Multidimensional Integrated Stabilisation Mission in Mali Millennium – Journal of International Studies Military Law and Law of War Review Marginal number United Nations Mission in the Democratic Republic of Congo (later MONUSCO) United Nations Organisation Stabilisation Mission in the Democratic Republic of Congo Max Planck Encyclopedia of Public International Law Military Professional Resources Incorporated Max Planck Yearbook of United Nations Law North Atlantic Treaty Organisation Non-Governmental Organisation Non-international armed conflict Nederlands Juristen Blad Nebraska Law Review Number Netherlands Quarterly on Human Rights National Transitional Council of Libya

14 NWCR NYULR OCHA OHCHR OJ P5 para. paras. PCA PKK PMC PMSC PNG POW PSC PSPICoC R2P rapp. RBDI RdC RGDIP RoE RPS RQDI RWP SC S.Ct. SI SJIL SLPR SNC TFEU TFSC TLP TRNC UAE UAV UCR UK UKHL UN UN Doc.

List of Abbreviations Naval War College Review New York University Law Review United Nations Office for the Coordination of Humanitarian Affairs United Nations Office of the High Commissioner for Human Rights Official Journal of the European Union Permanent members of the Security Council Paragraph Paragraphs Permanent Court of Arbitration Kurdistan Workers’ Party Private military company Private military and security company Papua New Guinea Prisoner of war Private security company/Peace and Security Council (of the African Union) International Code of Conduct for Private Security Providers Responsibility to Protect Rapporteur Revue Belge de Droit International Recueil des Cours Revue Générale de Droit International Public Rules of engagement Research in Political Sociology Revue Québécoise de Droit International Responsibility While Protecting Security Council Supreme Court (of the United States) Sandline International Stanford Journal of International Law Stanford Law and Policy Review Supreme National Council (of Cambodia) Treaty on the Functioning of the European Union Turkish Federated State of Cyprus Transnational Legal Process Turkish Republic of Northern Cyprus United Arab Emirates unmanned aerial vehicle United Cyprus Republic United Kingdom United Kingdom House of Lords United Nations United Nations document symbol

List of Abbreviations UNAMIC UNAMSIL UN-Ch UNCITRAL UNCLOS UNFICYP UNHCR UNICEF UNITA UNMIK UNOCI UNPROFOR UNSMIL UNTAC UNTS US USSR VJIL Vol. WFP WHO WLR YJIL

United Nations Advance Mission in Cambodia United Nations Mission in Sierra Leone Charter of the United Nations United Nations Commission on International Trade Law United Nations Convention on the Law of the Sea United Nations Peacekeeping Force in Cyprus United Nations High Commissioner for Refugees United Nations Children’s Fund National Union for the Total Independence of Angola United Nations Mission in Kosovo United Nations Operation in Côte d’Ivoire United Nations Protection Force United Nations Support Mission in Libya United Nations Transitional Authority in Cambodia United Nations Treaty Series United States of America Union of Soviet Socialist Republics Virginia Journal of International Law Volume World Food Programme World Health Organisation Weekly Law Reports Yale Journal of International Law

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Part I

100 Years of Public International Law

100 Years of Public International Law in Kiel: The History of the Walther Schücking Institute By Knut Ipsen 100 years of an academic institution devoted to international law: such a history comprises a hardly imaginable diversity of acting persons, of ideas, of activities, of success and sometimes of aberration and of failure. My contribution to this anniversary does not, of course, permit a comprehensive appreciation of the merits of all generations that have contributed to the reputation of this Institute. A detailed history is to be found in the “Festschrift” which will be presented at this Conference. The author of that historical survey is Dr. Ursula Heinz1 and I very warmly recommend reading it, which I had the pleasure of doing in advance. I will confine my brief contribution to finding the common denominator of that diversity just mentioned. Finding this common denominator requires looking for the traces of the spirit that has animated the acting persons and guided their activities. I would like, therefore, to invite this distinguished audience to participate in a search covering three phases partially similar to three epochs of our national history.2 This approach will consequently reflect the positions of scholars of this Institute in comparison with the mainstream of German international legal scholarship in their time.

_____________ 1 Ursula E. Heinz, 100 Jahre Walther-Schücking-Institut für Internationales Recht, in: Jost Delbrück et al. (eds.), Aus Kiel in die Welt: Kiel’s Contribution to International Law, Festschrift zum 100-jährigen Bestehen des Walther-Schücking-Instituts für Internationales Recht, 2014, 13 et seq. This is a general reference for everybody who seeks for more detailed information than it has been possible to provide during the 30 minutes presentation of this paper. 2 The first phase covers the time of the Republic of Weimar, but begins already with the disastrous year 1914. The second phase, the adaption of the national-socialist ideology by many German scholars of international law, came to an end with regard to the Institute already in 1944 with the directorship of Hermann von Mangoldt. It was von Mangoldt whose careful leadership prepared the beginning of the third phase of the Institute as a research entity in a democratic State.

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A. Realism and Idealism – the Basic Approaches to International Law of Two Eminent Scholars The first phase to be considered covers the time from 1914 to 1933. The initiator and first Director of this Institute, Theodor Niemeyer, and his successor, Walther Schücking, whose personality and work are rightfully honoured by the name of the Institute since 1995, cannot be regarded as typical German international lawyers of their time. Precisely because of this fact, both deserve our special attention. I. International Law as an Undeniable Reality and an Element of Civilisation Theodor Niemeyer,3 though holding a chair of Roman and civil law at the law faculty of Kiel University since 1893, concentrated his main interests more and more on international law. Thus he wrote, already at the very beginning of the 20th century: “The unfolding of national energies directed at worldwide interaction demands of jurisprudence, too, a cosmopolitan extension ... The internationalisation of law corresponds to the generally accepted interests of all progressive States”.4 This was perhaps still the private international lawyer and the Roman lawyer (with regard to the antique ius gentium) speaking. His basic position, however, was laid down in 1910, when he published, under the title “On the nature of international law”, a revised version of his inaugural speech as the Rector of the Christian-Albrechts-Universität.5 He qualified the view of the majority of his contemporary German colleagues that States are bound to international law only by their will and only as long as the law was in accordance with their will as a “misguided doctrinalism” and an incorrect “aprioristic” (eine falsche Aprioristik).6 To explain this verdict he argued that it was not conceivable to seek the nature of all law a priori in the heterogeneous regulations of law on the national and international level. When doing so, the result would be an abstractum not compatible with reality. He was convinced that nobody could deny the reality of an international legal organisation, if one was prepared to consider the reality of international relations instead of “looking up _____________ 3 See for details Alexander Bader, Leben und Werk des Geheimen Justizrates Prof. Dr. Dr. h.c. Theodor Niemeyer, 2001. 4 Theodor Niemeyer, Zeitschrift für Internationales Privat- und Strafrecht11 (1902), 2 (introduction of Niemeyer as the editor); this and all following quotations of German texts in an English version are translations of the author of this paper. 5 Theodor Niemeyer, Vom Wesen des internationalen Rechts, Zeitschrift für Internationales Recht 20 (1910), 1 and note * on that page. 6 Niemeyer (note 5), see this and the following quotations 8 et seq.

The History of the Walther Schücking Institute

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to the clouds and waiting whether from there, international legal revelations and angels of peace would be inclined to come down to earth”. The unions organised on the basis of multilateral treaties during the second half of the 19th century had created in his view an undeniable new quality of international law.7 So this organisation of peaceful and permanent international cooperation had transformed international law into a positive and important component of the entire social order of international life. Thus, international law was, in the modern age, a real element of international culture. Its source was the consensus of States and it was this consensus which must be taken as a reflection of the real interests of States. This sociological approach, as Niemeyer qualified his concept, was, as he himself expressly stated, far removed from the traditional approach of his contemporary German colleagues, who inquired whether or how far international law was compatible with the sovereignty of States. According to Niemeyer’s opinion the nation which would succeed in combining national interests with the development of international law in the most clear-sighted manner would, in the future, be at the pinnacle of civilisation.8 At this point I cannot resist the temptation to consider whether our American colleagues Goldsmith and Posner would perhaps have hesitated to qualify international law as a kind of a mere epiphenomenological “drop off” of State interests, if they had studied Niemeyer’s 100 years old treatise on the nature of international law before elaborating on the limits of international law.9 After all, this was the fundamental position of Theodor Niemeyer when he succeeded in obtaining, on 5 February 1914, the Ministerial Approval to the Statute of the “Royal Seminar of International Law at the University of Kiel”. II. International Law as the Basis of a Peaceful World Order Walther Schücking,10 who was appointed as the successor of Niemeyer in 1926, had always frankly confessed his political orientation as a convinced liberal and a declared pacifist – in times of a wide-spread conservatism in German law faculties and, moreover, in German public life a position outside the _____________ 7

Niemeyer (note 5), 12 et seq. Niemeyer (note 5), 15. 9 Jack L. Goldsmith/Eric A. Posner, The Limits of International Law, 2005, especially Part 2 (Treaties), 81 et seq. 10 For details as to his work and life see Frank Bodendiek, Walther Schückings Konzeption der internationalen Ordnung – Dogmatische Strukturen und ideengeschichtliche Bedeutung, 2001. 8

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mainstream. His basic view of possible interactions between pacifism and international law was teleologically oriented: pacifists are, so he stated already in 1908, the creators of the ideas the most conducive to the progress of the civilised world. Thus, he regarded pacifism as an appropriate way of proposing possible aims for international law, whereas international lawyers could and should analyse, by applying the scientific methods of their discipline, such grand designs with regard to the chances of their realisation. A logical consequence of this basic approach was that Schücking always remained openminded with regard to the concept of the law of nature and to the politics of international law. An adherent to the philosophy of Kant,11 he intensely criticised that the mainstream of German international legal scholarship during the first decades of the 20th century was still unable to abandon the theoretical fundament of the historical approach to law of the 19th century, which conceived the historical background of law and especially the dependence of law on historical circumstances as the main pattern of explaining law (historische Rechtsschule). The characteristic of Walther Schücking was, above all, his moral perception of his responsibility as an international lawyer. International Law was for him not a mere object to demonstrate high intellectual qualities, admired or criticised by learned colleagues. For him international law was a substance that required a close connection of knowledge and of conscience. He confessed in a lecture at the Hague Academy on the topic Le Développement du Pacte de la Société des Nations: “Je crois que le juriste ne doit jamais oublier qu’il a à servir la vie”.12 The international lawyer who believes to have discovered deficiencies in the law in force is obliged by his conscience (obligé dans sa conscience) to propose their correction. An international lawyer would fail to achieve his great mission if he confined his efforts to legal formalism without paying due regard to conviction and morality – a problem of our discipline disputed even in our days. Schücking’s firm conviction was that international law had to be developed as the fundament of a peaceful world.13 So he expected progress in the codification of international law, in peaceful settlement of disputes and in disarmament within the framework of the League of Nations and he was deeply disappointed that this organisation failed, particularly in these fields. The development of the League of Nations did not, moreover, live up to his far-reaching vision of _____________ 11 For this see especially Jost Delbrück, Die Grenzen des Rechts – Walther Schücking und die Suche nach der lex ferenda, in: Festschrift (note 1), 43, 46. 12 Walther Schücking, Le Développement du Pacte de la Société des Nations, RdC 20 (1927), 353, see for this and the following 453. 13 As to this perception of Schücking’s see Delbrück (note 11), 47 et seq.

The History of the Walther Schücking Institute

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“peace through law”14 – a vision which induces international lawyers, even today, to assign to him a summary classification as an idealist. His perception of a future world and his philosophical background may have been based on idealism, but the means and methods of his scholarly work were realityoriented, as they have to be for a highly respected scholar of international law. Niemeyer, on the other hand, emphasised reality again and again as the starting point of his deductions, but he also stated: “Even if one does not take the aims of pacifists as unrealistic visions, it has to be admitted, that these aims represent the maximum of human perfection, the highest and ultimate aims of international socialisation, which may perhaps stand at the end, but never at the beginning of the development of international law”.15 Thus, Niemeyer and Schücking may be taken as witnesses for the finding that idealism-oriented and realismoriented thinking may both contribute to the final peace-creating purpose of law. Compared with his predecessor, Schücking’s time as the Director of the Institute was relatively limited because of his election, as the only German lawyer, as a Judge of the Permanent International Court of Justice. He kept close contact to the Institute until he was, in 1933, first suspended because of his – as the national-socialist authorities stated – “missing national reliability” and then discharged.

B. “Gleichschaltung” – Legal Scholarship at Kiel in the Time of the “Third Reich” The dismissal of Walther Schücking coincided with a radical change of legal scholarship at the law faculty of Kiel University and the beginning of the second, the “dark” phase of the Institute. Karl August Eckhardt, appointed Professor of the history of law in 1933, who only one year later became the Head of the Department of Law, State, Politics and Economy of the Ministry of Education at Berlin, was the main initiator of the so-called Kieler Schule. This school of legal doctrine on the basis of the national-socialist ideology16 came into being by the replacement of the majority of the members of the law faculty by young Professors who were “reliable national-socialists”. One of these Professors was Paul Ritterbusch, who was appointed Director of the Institute in 1937. Paul Ritterbusch had already started a brilliant academic career before the time _____________ 14

Ibid. 48. Niemeyer (note 5), 9. 16 For detailed information see e.g. Michael Stolleis, Geschichte des öffentlichen Rechts in Deutschland, 3. Bd., 1999, 279 et seq.; as to the German international legal scholarship after 1933 in general ibid., 380 et seq. 15

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of the “Third Reich”. During the four years of his directorship he was also the Rector of Kiel University, so he simply could not devote sufficient energy to form the Institute according to the doctrine of the Kieler Schule. This second phase of the Institute should not, however, be put in a favourable light by depicting it as a mere interim. This phase may be and must be a warning lesson with regard to three important aspects. Firstly: The years 1933/34 established a striking example of how radical a change may occur in an academic institution in a relatively short time if only two preconditions exist, namely public authorities free of commitments to basic human rights and to the rule of law and scholars who are prepared to devote their capabilities to such authorities. Secondly: Eminent intelligence and academic education do not, unfortunately, protect against profound aberration if morality is suppressed or even lost. Thirdly: Eminent intelligence of scholars is not always connected with a firm ethical conviction, but sometimes with personal deficiencies like vanity or other kinds of egocentricity. Therefore, one should never forget that a system of unique inhumanity is, to a considerable extent, based on the frailty of human nature which is hard to overcome.

C. Scholarly Freedom Regained – the Rebirth of the Institute The third phase of the history of our Institute began, when Hermann von Mangoldt, who had served in both World Wars as a Navy Officer, was released from military service in 1944 and took over the directorship of the Institute. It was Hermann von Mangoldt who removed the excellent library of the Institute including the irretrievable Franz-Kahn-Library of private international law to a place outside of Kiel to protect it against the air raids. In 1948 von Mangoldt succeeded in acquiring for the Institute the status of a United Nations Depository Library with full deposit. He initiated, together with Rudolf von Laun, University of Hamburg, the publication of the Jahrbuch für internationales und ausländisches öffentliches Recht, which was edited during the first years alternately in Kiel and Hamburg. The name of Hermann von Mangoldt is not only closely connected with the reconstruction of the Institute, but also with the law faculty as the Dean in the difficult first year after the war and with the University of Kiel as the Rector in 1947/48. The following year he was a member of the Parliamentarian Council that had to elaborate on and to decide upon the Basic Law of the Federal Republic of Germany. One of the leading commentaries on the Grundgesetz still bears the name “von Mangoldt” as the first name of

The History of the Walther Schücking Institute

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the editors today. Hermann von Mangoldt passed away early, in 1953. An interim of two years brought into office Victor Böhmert who had been an Assistant of Walther Schücking in the twenties and had, in different positions, endured the eventful development of the Institute. I. Monocratic Leadership – a Real Managing Director In April 1955 Eberhard Menzel took over the chair of von Mangoldt and the post of the Managing Director of the Institute. He kept this position for 17 years, until he fell seriously ill in 1972. Eberhard Menzel had formulated the purpose and function of an institute already in 1953 as the head of a research institution for international law at the University of Hamburg17 and he had further elaborated on his perception. At the 50th anniversary of this Institute he defined its four basic tasks in the following manner:18 1. To collect and systematise all available material concerning international law and make it accessible for public use. 2. To make that material effective through a learned staff by written opinions, etc. to tribunals, courts, ministries and other authorities, thus creating the necessary scientific basis for planning and acting. 3. To provide a forum for authors in the field of international law, foreign public law and related disciplines of law and thereby to enrich the German specialised literature. This task presupposes a concise planning in order to avoid, with regard to the periodicals of an institute, the more or less accidental submission of manuscripts. 4. To provide, in order to establish a kind of postgraduate program for young scholars, a permanent seminar which no other institution would be able to organise in a comparable intensity and which was especially aimed at the promotion of the rising generation of international lawyers who should, in particular, get accustomed to teamwork. This concept was, as Eberhard Menzel pointed out, the necessary consequence of the modern development of a structured system of scholarship.19 A _____________ 17 See Eberhard Menzel, Aufgaben und Funktionen der wissenschaftlichen Institute auf den Gebieten des Völkerrechts, der Zeitgeschichte, der Wissenschaft von der Politik und der internationalen Beziehungen, Protokoll der Tagung von Leitern völkerrechtlicher und verwandter Institute in Göttingen am 28.11.1953, Europa-Archiv 9 (1954), Sp. 6249 et seq. 18 Eberhard Menzel, Begrüßung und Bericht des Geschäftsführenden Direktors Prof. Dr. Eberhard Menzel, in: Fünfzig Jahre Institut für Internationales Recht an der Universität Kiel, Akademischer Festakt am 12.11.1964, 1965, 12. 19 For this and the following see ibid., 13.

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concluding remark of Menzel with regard to this concept deserves to be expressly mentioned. He emphasised that more important than the institutional framework of the described activities of an institute was the spirit in which the work is done. He referred in this connection to his predecessors, Niemeyer and Schücking, as witnesses for the deplorable fact that it was a phenomenon particularly in the field of international law that policy and law are sometimes massively in conflict and that it may then be not the international lawyer, but the political environment that hectically changes. In such a case a courageous spirit is required to continue acting in accordance with what is subjectively estimated as the truth. This was more than a personal confession. It may be regarded as a warning advice always to be careful with regard to the mainstream of ideological emotions by which his generation had been so dangerously20 tempted. The four tasks just pointed out remained the leading perception of Eberhard Menzel in his time as the Managing Director of the Institute. Two topics of his manifold scholarly interests deserve to be particularly highlighted. In his time it was evidently the German Question that was the central concern of German international and constitutional lawyers. As to this actual problem Menzel’s approach was not a part of the mainstream which consisted of an endless dispute on the well known sophisticated theories of the identity or continuity of the German Reich and the Federal Republic of Germany and of the consequences of such theories on the status of the German Democratic Republic. Menzel decided rather early on to pursue instead a combined approach including the other field of his particular interest, namely peace through collective security, regional and universal. Several of his own writings,21 but also different contributions to the periodicals and publications of the Institute, as well as several conferences and workshops organised by the Institute indicate this central orientation of the Managing Director. For instance, he organised, in 1966, the last conference of international and constitutional lawyers of the Federal Republic and of the GDR on possible solutions of the German Question. Another example was the first conference of international and constitutional lawyers and members of different Federal Ministries on the legal results of the Neue Ostpolitik.22 _____________ 20 For details concerning Menzel’s involvement in the so called “Rektoraffäre 1963/64” see Heinz (note 1), 24 and note 43. 21 See especially Eberhard Menzel, Friedensvertrag mit Deutschland oder Europäisches Sicherheitssystem?, JIR 13 (1967), 11 et seq. 22 Ostverträge – Berlin-Status, Münchener Abkommen, Beziehungen zwischen der BRD und der DDR. Vorträge und Diskussionen eines Symposiums veranstaltet vom Institut für Internationales Recht an der Universität Kiel 27.–29. März 1971, 1971.

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A unique project was realised under no. 4 of Menzel’s concept by a seminar of several years during the sixties. The assistants elaborated, under the guidance of the Director, on the strategic concepts of the main powers in the nuclear age, on the beginning considerations on arms control and disarmament and on the ethical and legal preconditions of security policy.23 This seminar stands for the basic position of Eberhard Menzel that international law should not be primarily the field of highly abstract deductions, but the indispensable system to practically realise peace in this world as it is. He did not, however, follow a mere functional approach to international law as an instrument to promote peace. He was convinced that peace was by definition only possible through law. He challenged his staff to work with a maximum of efficiency and the example he gave was one such challenge to his assistants. II. Manifold Interests and Changing Scholars With Eberhard Menzel the era which was characterised by a monocratic position of the Managing Director came to an end. Since that time the Institute was headed by two or sometimes by three Directors in coexistence and cooperation. The time constraints on this contribution unfortunately do not permit an exhaustive appreciation of the merits of all the eleven Directors since Eberhard Menzel in a really fitting manner. Those who left the Institute in order to accept honourable offers of other academic institutions may be regarded as highly estimated because of their eminent scholarship and their work at this Institute. They all have significantly contributed to the reputation of the Institute.24 Thus, the name of the late Wilhelm Kewenig remains connected with his research concerning the United Nations. Wilfried Fiedler stands for central problems of the German Question and for the protection of cultural property. Rüdiger Wolfrum concentrated his interests especially on the law of the sea and worked as a member and legal adviser of the German Delegation at the UN Conference on the Law of the Sea and – by then already Director of the Max Planck Institute – as a Judge of the International Court of the Law of the Sea and finally as the President of this Court. Rainer Hofmann concentrated his research especially on minority issues, on refugee problems and on questions of the protection of other victims. Andreas Zimmermann is remembered because of his writings and advisory activities in international criminal law and because of the idea to publish, together with Thomas Giegerich, a set of articles in the German Yearbook of International Law under the general topic of typical German ap_____________ 23 Abschreckung und Entspannung – Fünfundzwanzig Jahre Sicherheitspolitik zwischen bipolarer Konfrontation und begrenzter Kooperation, 1977. 24 For details see Heinz (note 1), 27 et seq. and the annexes of the “Festschrift” (note 1), 975 et seq.

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proaches to international law. The preferred field of Thomas Giegerich was the protection of human rights and the peaceful settlement of disputes. Alexander Proelß and Andreas Zimmermann together with Uwe Jenisch signed for the Exzellenzinitiative Ozean der Zukunft, promoted by the Deutsche Forschungsgemeinschaft. The consideration primarily of the research-initiating and leading function of the Directors shall, however, by no means supersede the merits of the large group of international lawyers who have, especially during the time of the respective qualification, contributed fundamentally to the reputation of the Institute. The same has, of course, to be stated with regard to the administrative staff which has always been an indispensable and integral part of this Institute. III. The Decisive Influence on the Institute of One International Lawyer One colleague deserves to be identified with the history of the Institute above all, not only because he is the man who has formed the Institute during a longer time than anybody else, but also because this Institute may be called his life-work, more precisely a successful, original and progressive life-work. It is Jost Delbrück. Seven years as Assistant under the directorship of his academic teacher Eberhard Menzel and 25 years as a Director of this Institute, which means round about one third of the time we are celebrating today, the Institute has been influenced and essentially formed by Jost Delbrück. I know that Jost in his personal modesty would be reserved as to any eulogy referring to his merits. I would like, therefore, to compress all that objectively has to be said in this connection to only four points: 1. Jost Delbrück established and encouraged multidisciplinary and interdisciplinary cooperation with other disciplines, especially with political science, to an extent that was, in his time, rare among German international lawyers. 2. Jost Delbrück promoted more young international lawyers than any colleague of our generation. There can be no doubt that a “Delbrück-Schule” emerged from the Institute. 3. Jost Delbrück favoured a kind of leadership that a sociologist would call a cooperative style of guidance. 4. Jost Delbrück perceived changing structures of international law which could lead to a capacity of this law, permitting the application of international law as a regulatory system of a world order, in its basic effects comparable to those of a constitutional State based on the rule of law. This Weltinnenrecht could be regarded as the logical complement of the Weltin-

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nenpolitik highlighted by the late philosopher and physicist Carl Friedrich von Weizsäcker.25

D. Peace Through Law as a Permanent Process At the beginning of my contribution I dared to invite this distinguished audience to take part in the search for the spirit which may be regarded as the common denominator of 100 years of the Institute of International Law of the University of Kiel. If I may be allowed at the end of this search to summarise the traces that we have found on our way through that time, the spirit presenting the common denominator may be formulated in the words of Immanuel Kant, who stated as the result of his considerations on the metaphysical reasons of the basic doctrine of law: “One must say that this general and permanent creation of peace is not only a part, but the complete final purpose of the basic doctrine of law within the framework of rationality” (at this point I cannot withhold the original text: “Man kann sagen, dass diese allgemeine und fortdauernde Friedensstiftung nicht bloß einen Teil, sondern den ganzen Endzweck der Rechtslehre innerhalb der Grenzen der bloßen Vernunft ausmache”).26 It is this fundamental orientation to which the main traces that we discovered on our way may be assigned. Theodor Niemeyer stands for an early qualification of international law as an element of international civilisation and as an indispensable element of a peaceful culture; on this basis he saw a possible symbiosis between international law and State interest. Walther Schücking stands for a position even more future-oriented with regard to his concept of a peaceful international order and his perception of an international lawyer primarily guided by a firm conviction of ethical commandments. Hermann von Mangoldt, mainly a constitutional lawyer, stands for the return of the Institute, after the time of the “Kieler Schule”, into the framework of a constitutional State based on the rule of law. Eberhard Menzel stands for a conception that should make feasible a solution of the German Question on the basis of international law within the framework of peace-creating collective security. Jost _____________ 25 Carl Friedrich von Weizsäcker, Weltinnenpolitik 1963? Weltinnenpolitik 1997!, in: Ulrich Bartosch/Jochen Wagner (eds.), “Weltinnenpolitik” – Internationale Tagung anläßlich des 85. Geburtstags von Carl Friedrich von Weizsäcker, 1998, 35 et seq.; Jost Delbrück, Von der Staatenordnung über die internationale institutionelle Kooperation zur ‘supraterritorial or global governance’: Wandel des zwischenstaatlichen Völkerrechts zur Rechtsordnung des Menschen und der Völker?, in: ibid., 55 et seq. 26 Immanuel Kant, Metaphysische Anfangsgründe der Rechtslehre (Beschluß), 1797, in: Anita Dietze/Walter Dietze (eds.), Ewiger Friede? Dokumente einer deutschen Diskussion um 1800, 1989, 287; Kants Werke, Akademie-Ausgabe 1968, Bd. VI, 350 et seq.

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Delbrück stands for changing structures of international law towards a “Weltinnenrecht”. Though differing in their main approaches and ideas they and many other scholars of the Institute may be called a unity with regard to Kant’s perception that permanent peace-creating („fortdauernde Friedensstiftung”) may be called the final purpose of the basic doctrine of law. So the latin proverb enclosed in the seal of the Kiel University, “pax optima rerum”, is not only a motto aptly to be referred to in celebrations, but it has been and it is, in a secular meaning, the leading principle of the work of this Institute – a principle which remains vitally important even today. The present Directorate – Kerstin Odendahl, Nele Matz-Lück and Andreas von Arnauld – deserves our gratitude for this continuity and for the program of the next two days which is determined by this principle.

E. ... und ein Schlusswort mit zwei Wünschen an die Institutsgemeinschaft Meine Damen und Herren, erlauben Sie mir zu guter Letzt einige Worte in unserer Muttersprache, die an das Direktorium und an alle Mitarbeiterinnen und Mitarbeiter unseres Instituts gerichtet sind. Ich spreche sie deshalb auf Deutsch, weil sie eine sehr persönliche Seite der Institutsmitgliedschaft berühren, die bisher nicht zur Sprache gekommen ist. Wenn ich auf die mehr als 50 Jahre meiner Befassung mit dem Völkerrecht zurückschaue, dann sind die neun Jahre als wissenschaftliche Hilfskraft und Assistent an unserem Institut eine Erinnerung, die ich keinesfalls missen möchte. Der Dienst unter und die gelegentliche Auseinandersetzung mit einer Persönlichkeit wie Eberhard Menzel, das langjährige freundschaftliche Zusammenwirken mit den Kollegen meiner Generation – wir waren damals nur zu Dritt, nämlich Jost Delbrück, Peter Soyke und ich –, das Mitwirken in einem Team, das viel Freud und bisweilen auch Leid miteinander teilte – das alles war eine unvergessliche Zeit; unsere Enkelkinder würden heute in höchster Würdigung sagen: einfach cool! Deshalb darf ich Ihnen, der jetzt agierenden Mannschaft (das ist natürlich “genderneutral” gemeint), herzlich wünschen, dass Sie einst in ähnlicher Erinnerung auf unser Institut zurückschauen können, wie sie mir selbst immer wieder Freude bereitet. Und zu allerletzt darf ich Ihnen deshalb das wünschen, was unsere Landsleute von der friesischen Westküste stets denen zugerufen haben, die über See zu fernen Horizonten aufbrachen: Rüm Haart – Klor Kimming! Weites Herz – Klare Sicht!

The Unfolding of Public International Law Since 1914: International Judgments and Domestic Courts with Special Reference to Germany By James Crawford*

A. Introduction Walther Schücking, as a scholar, espoused an optimistic, forward-looking approach to international order and a robust conception of „international organisation”. He departed from the strict positivist/voluntarist thinking that characterised international legal scholarship at the beginning of the 20th century and placed great faith, as Frank Bodendiek remarked in a piece published in the European Journal of International Law, in the international lawyer’s “power to imagine that international law norms might one day be completely different from today’s reality”.1 At a time when “international organisation” seemed far-fetched as a political and juridical idea, Schücking imagined an organised international community in which States forming a World Confederation would renounce the use of military force and commit to the peaceful settlement of international disputes.2 He would have been, one can imagine, impressed by the steps the modern international legal system has taken towards realising his vision as a matter of positive law: see Article 2 (3) and (4) of the UN Charter (UN-Ch). But he would probably have been far less impressed by the relative ineffectiveness from which the United Nations and its system of collective security suffer in their attempt to fulfil this vision in a deeply conflictual world, and by the limited progress towards third party settlement of disputes. When one considers the unfolding of public international law since 1914, one can pinpoint several developments that neither Schücking nor any observer _____________

* Judge, International Court of Justice. This piece was delivered prior to the author’s election to the Court and reflects personal views only. 1 Frank Bodendiek, Walther Schücking and the Idea of ‘International Organization’, EJIL 22 (2011), 741, 743. 2 On the evolution of Schücking’s thinking on the matter, see Bodendiek (note 1), 744–747.

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from his generation would have been able to predict. These developments come both in the form of promises and challenges. The scope and institutional apparatus of international law have expanded greatly in the past hundred years, but such progress has come at the expense of legal and especially institutional fragmentation. While the international legal system now incorporates the ideal of “international organisation” at many levels, it remains a relatively decentralised system, so that a great deal still depends on the actions of individual States. If no World Confederation has been established to act in lieu of or in supplement to individual States, it is no wonder that the expansion in the scope of international law has created and continues to present serious challenges for domestic institutions. International rules not only affect the work of foreign ministries, but of many organs of the executive branch which one would hardly associate with the conduct of international relations. They affect, moreover, the work of the legislative branch, especially when international institutions are empowered to adopt rules or decisions that aspire to affect the content of domestic law. Then there are the courts. Domestic judiciaries have never been so exposed to rules and decisions having an international origin as they are now. Aside from applying the law of diplomatic and State immunity – their métier in Schücking’s time – domestic courts are now asked to enforce international rules of which individuals are the beneficiaries, for example, under human rights law and bilateral investment treaties. They are sometimes required to express a view on difficult questions of public international law on which no international court has yet ruled conclusively – as was the case with the House of Lords in Al-Jedda, where the question of the hierarchy between the European Convention on Human Rights and Article 103 of the UN Charter was in issue.3 As regards European Union law, courts of EU members are required not only to apply the foundational treaties and the regulations adopted by the European Council, but also to guarantee that these are construed correctly – and for this purpose the mechanism of preliminary rulings to the CJEU has been devised.4 To pay tribute to Walther Schücking and the Institute that bears his name, I will offer some reflections on how the German Federal Constitutional Court (Bundesverfassungsgericht) has been handling the challenges posed by the expansion of international law, and on the Court’s contribution to the fulfilment of the ideal of “international organisation”. It is impossible not to think, when dealing with this topic, of Georges Scelle’s idea of dédoublement fonctionnel or “role splitting”, pursuant to which in a decentralised system agents of the State _____________ 3

House of Lords, R (on the application of Al-Jedda) (FC) v Secretary of State for Defence [2007] UKHL 58. 4 Art. 267 TFEU.

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– including the courts – perform a dual role, serving both the international and domestic legal orders.5 In appraising the degree to which the Federal Constitutional Court “role splits”, I shall focus on its case law on a particularly tricky question: the domestic legal status of decisions of international courts and tribunals, namely the European Court of Human Rights and the International Court of Justice.

B. Constitutional “Friendliness” Towards International Law One of the difficulties in assessing the relations between international and domestic law from the perspective of the constitutional law of a particular jurisdiction is that domestic constitutions tend to say relatively little about the terms under which these relations occur. Constitutional arrangements often confer to the executive branch the competence to conclude treaties, and to the legislature the competence either to prevent the executive from doing so by withholding its authorisation (as in the German system) or to proceed, or not, with the incorporation of the treaty into domestic law at a later stage (as in the English system). Less often do they contain provisions on the incorporation of customary international law or on the normative hierarchy that international rules (or domestic rules having an international origin, as the case may be) enjoy in municipal law. But Article 25 of the German Basic Law provides a remarkable example of such a provision. I hardly need to tell this audience that it prescribes that “the general rules of international law shall be an integral part of federal law” and that these rules “take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory”, that is to say, Germany. From an international lawyer’s point of view Article 25 is a model – the state of the art. But it answers only the a priori question of priority: it does not answer the specific question – is there conflict? Almost never do constitutions provide meaningful guidance as to how domestic courts are to interpret and apply rules having an international origin, or on the extent of their competence to do so autonomously. As a result, in practice the openness of a domestic legal system to international rules tends to be very much dependent on the attitude of domestic courts towards international law, and on what these courts make of existing constitutional practices (including those followed by other jurisdictions). But the problem is that domestic courts are often hesitant to apply international law: their openness to international legal rules appears to be proportional to the familiar_____________ 5

See e.g. Georges Scelle, Règles Générales du Droit de la Paix, RdC 46 (1933), 358.

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ity that individual judges have with the discipline.6 Of course, the quality of any judgment may be affected by the degree of a judge’s expertise and familiarity with the rules being applied. But while judges can scarcely afford to ignore a field of domestic law that they personally dislike, they tend to consider themselves comparatively freer to disregard international law, especially in legal systems closer to the dualist end of the spectrum. International law may not be “foreign”, but it is still culturally perceived as “external” to the legal system in which domestic courts operate. This makes it all the more remarkable that, in contrast with courts that can barely disguise their scepticism in relation to international law, the Federal Constitutional Court has developed and endorsed a doctrine of „openness” or – in more precise translation – „friendliness” of the German constitution to international law (Völkerrechtsfreundlichkeit des Grundgesetzes). The Court has long taken the firm stance that German law, including the Basic Law itself, has to be construed in accordance with international law and in a way that guarantees that Germany complies with its international obligations.7

C. The Case Law on the Significance of Decisions of International Tribunals Let us take a look at how the notion of „Völkerrechtsfreundlichkeit“ has been applied in cases concerning the relevance of judgments of the European Court of Human Rights and the International Court of Justice. I. Judgments of the European Court of Human Rights In the Görgülü case, the Federal Constitutional Court was faced with a complaint by an individual who sought to rely on a judgment of the European Court of Human Rights to the effect that Germany had violated his right to privacy and family life (Article 8 ECHR). The applicant found out that he had a son born out of wedlock only after the child’s mother had given him up for adoption, and was denied custody of and even access to the child by the German courts. The European Court found that this decision had been disproportionate and concluded that Germany owed Görgülü not only compensation, but also the obligation of taking measures to enable the applicant to have access to his _____________ 6 Cf. Rosalyn Higgins, Problems and Process. International Law and How We Use It, 1994, 206–207. 7 Cf. Andreas Paulus, The Judge and International Custom, The Law and Practice of International Courts and Tribunals 12 (2013), 253, 256–257.

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child.8 On the authority of the European Court’s judgment, Görgülü petitioned for an injunction to obtain the custody of his son, which was granted by a lower court but cancelled on appeal. It was against this latter decision that the constitutional complaint was made. In its judgment of 14 October 2004, the Second Senate of the Federal Constitutional Court provided an extended analysis of the significance of judgments of the European Court in the German legal order. It began by stating that, though the Convention as an incorporated treaty has the status of ordinary federal law, it is “constitutionally relevant”. In the Court’s words: “[t]he text of the Convention and the case-law of the European Court of Human Rights serve, on the level of constitutional law, as guides to interpretation in determining the content and scope of fundamental rights and constitutional principles of the Basic Law, provided that this does not lead to a restriction or reduction of protection of the individual’s fundamental rights under the Basic Law”.9

This, the Court thought, was an expression of the “Basic Law’s commitment to international law (Völkerrechtsfreundlichkeit)”.10 But when it considered the specific effects that a judgment by the European Court produces vis-à-vis domestic courts, especially when this judgment criticises or otherwise disavows previous decisions by domestic courts, the Federal Constitutional Court was far more circumspect. It considered, as a general matter, that because the Convention had been incorporated, there was an obligation under domestic law to: take into account the guarantees of the European Convention on Human Rights and the decisions of the ECHR at least demands that notice is taken of the relevant texts and case-law and that they are part of the process of developing an informed opinion of the court appointed to make a decision, of the competent authority or of the legislature.11

This did not mean, however, that a judgment of the European Court contradicting a decision of a domestic court produced the effect of rendering that decision appealable.12 The Bundesverfassungsgericht here appeared to be unsure as to how best to reconcile the notion that decisions of the European Court must be taken into account with the limitations imposed by domestic law – _____________ 8 Bundesverfassungsgericht (BVerfG), Order of the Second Senate of 14 October 2004, 2 BvR 1481/04, MN 64; English translation available at http://www.bverfg.de /en/decisions/rs20041014_2bvr148104en.html (accessed on 20 April 2015). 9 Ibid., MN 32. 10 Ibid., MN 33. 11 Ibid., MN 48. 12 Ibid., MN 52.

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though it is clear in the judgment that the Court considered reconciliation as an objective that must be seriously pursued. More ingenious than its treatment of the relationship between German domestic law and judgments of the European Court was the Federal Constitutional Court’s treatment of its competence to oversee the “taking into account” of such judgments by domestic courts. The Federal Constitutional Court reaffirmed its competence to: prevent and remove, if possible, violations of public international law that consist in the incorrect application or non-observance by German courts of international-law obligations and may given rise to an international-law responsibility on the part of Germany.13

It considered itself as “indirectly in the service of enforcing international law and in this way reduc[ing] the risk of failing to comply with international law”,14 and here one sees the Court clearly committing to Scelle’s role-splitting, even if the role of “international agent” is said to be indirect. The procedural implications of this finding are non-negligible: “it may be necessary”, the Court said, “[to deviate] from the customary standard [and] review the application and interpretation of international-law treaties by the ordinary courts”.15 The test that domestic courts must pass is then stated in stronger terms. For the Constitutional Court, to “take into account” means taking notice of the Convention provision as interpreted by the ECHR and applying it to the case, provided the application does not violate prior-ranking law.16 While the test remains somewhat vague, that does not have to be seen as a bad outcome insofar as it is the Federal Constitutional Court itself that has the competence to decide whether the test has been applied correctly. In the words of the Court: “it must at all events be possible, on the basis of the relevant fundamental right, to raise the objection in proceedings before the Federal Constitutional Court that state bodies disregarded or failed to take into account a decision of the ECHR”.17 Görgülü was ultimately successful in his constitutional complaint, the Court having found that the Higher Regional Court that cancelled the injunction had failed to take into account the judgment from Strasbourg. _____________ 13

Ibid., MN 61. Ibid. 15 Ibid. 16 Ibid., MN 62. 17 Ibid., MN 63; for a positive evaluation of this procedural decision (despite reservations as to the assessment by the BVerfG of the status of judgments of the ECtHR in domestic law), see Rainer Hofmann, The German Constitutional Court and Public International Law. New Decisions, New Approaches? GYIL 47 (2005), 9, 30–31. 14

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II. Judgments of the International Court of Justice The so-called German Consular Notification cases18 carry forward the Görgülü jurisprudence and extend it to judgments of international courts that are not formally binding on Germany as a matter of international law. In both cases, the plaintiffs filed constitutional complaints arguing that the German police had failed to inform them of their right to consular assistance under Article 36(1) of the 1963 Vienna Convention on Consular Relations. Their ultimate objective was to obtain the revision of their conviction for serious crimes under German law. They were thus complaining against the same conduct that Germany had a few years earlier challenged before the International Court in the LaGrand case, when it successfully obtained from the Court a declaration that individuals have a right under Article 36 (1) of the 1963 Vienna Convention on Consular Relations and that the authorities of the receiving State have to fulfil this right, notwithstanding any procedural obstacles that its own domestic law may pose.19 This decision was subsequently confirmed in the Avena case between the United States and Mexico.20 In the first of the two judgments, given on 19 September 2006, the Federal Constitutional Court started its analysis by affirming “a direct constitutional duty for German courts to take notice of and apply relevant judgments of international courts with jurisdiction over Germany”.21 This duty, the Court later explained, does not arise out of a general subordination of the German legal order to international law, but rather from: the principle of the conformity of the Constitutional Act with international law, in conjunction with the binding nature of jurisprudence on statute and customary law (Art. 20 (3) and Art. 59 (2)), which welcome the decisions of an international court established under international law, in accordance with the substance of the incorporated international treaty.22

But that effect is not limited to cases to which Germany is itself a party. In a striking passage, the Court affirmed that: _____________ 18

BVerfG, Judgment of 19 September 2006, 2 BvR 2115/01 and BVerfG, Judgment of 8 July 2010, 2 BvR 2548/075; given the similarity between the two judgments for present purposes, the analysis below will focus on the first of them. 19 ICJ, LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, 466. 20 ICJ, Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, 12. 21 BVerfG, Judgment of 19 September 2006, 2 BvR 2115/0, MN 54; English translation available at International Law in Domestic Courts, Oxford University Press: http:// opil.ouplaw.com/view/10.1093/law:ildc/668de06.case.1/law-ildc-668de06?rskey=ktfw mq&result=20&prd=ORIL (accessed on 20 April 2015). 22 Ibid., MN 58.

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James Crawford If the duty of respectful consideration of the precedents of the International Court of Justice were to be limited to those case in which Germany participated, it would not be possible to prevent conflict from arising regularly between the international law obligations of the Federal Republic of Germany and domestic law in the context of the de facto precedence of its decisions. The Constitutional Act seeks to avoid precisely such conflict with its outward-looking constitutional provisions. The interpretation of an international treaty by the International Court of Justice must therefore be given a normatively guiding function that goes beyond individual cases, and which the contracting parties would have to observe.23

So far so good – this is an interpretation that fulfils the promise of “friendliness” towards international law with the additional benefit of avoiding the embarrassing situation in which the German judiciary would disown a position that Germany itself had argued before the International Court. But another finding by the Federal Constitutional Court stands at odds with its general approach.24 The Court stated that it was a “prerequisite” for taking international judgments into consideration that Germany not only be party to the treaty establishing the international tribunal but also that it accept the compulsory jurisdiction of the tribunal.25 This prerequisite was doubly fulfilled in those cases because Germany is a party to the Optional Protocol to the 1963 Convention and has made a declaration under the Optional Clause of Article 36 (2) of the ICJ Statute. But even if Germany was not subject to the compulsory jurisdiction of the International Court, it would be odd for the Federal Constitutional Court not to consider decisions of the International Court as authoritative, especially when they confirm the existence of rules of customary international law.

D. How Much “Friendliness” Should Be Accorded to Judgments of International Courts? The decisions of the Federal Constitutional Court compare favourably with similar decisions of other jurisdictions. Görgülü compares favourably with the decision of the House of Lords in R v Lyons, in which the House denied any meaningful domestic effect to two judgments of the European Court of Human Rights confirming that English legislation violated the right of the plaintiffs not _____________ 23

Ibid., MN 62. Cf. the commentary of Christian Tams in German Consular Notification Case, F v T, Joint constitutional complaint, 2 BvR 2115/01, ILDC 668 (DE 2006), 19 September 2006, Constitutional Court [BVerfG], §A4, available at: http://opil.ouplaw.com /view/10.1093/law:ildc/668de06.case.1/law-ildc-668de06?rskey=ktfwmq&result=20& prd=ORIL (accessed on 20 April 2015). 25 BVerfG (note 21), MN 62. 24

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to incriminate themselves.26 This was because the European Convention on Human Rights had not been given effect in British law at the time when the prosecutions took place (the Human Rights Act not yet having been enacted), and because English constitutional law is pronouncedly dualist when it comes to the application of treaties at the domestic level in the absence of an implementing statute. Moreover, this dualism goes further and extends to questions of interpretation, even where a treaty has been legislatively implemented. As pointed out by Lord Hoffman, “English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so”.27 Likewise, the German Consular Assistance cases compare rather favourably to the judgment of the US Supreme Court in the Medellín case. Ernesto Medellín was one of the individuals referred to by the International Court in the Avena judgment. Following that judgment, he applied for certiorari to the Supreme Court. The Court concluded that neither Article 94 (1) of the UN Charter, pursuant to which each member “undertakes to comply” with the decisions of the International Court, nor Article 59 ICJ Statute, pursuant to which those decisions have “binding force” for the parties to the case, were self-executing. As a result, the Avena judgment could not be enforced by domestic courts in the United States. In support of this conclusion, Chief Justice Roberts (writing for the Court) argued that because, under the framework laid down by the Charter, ICJ judgments can only be enforced by Security Council action, the United States had reserved the option not to fulfil these judgments by exercising its veto power.28 This of course reflects a highly problematic, indeed untenable, view of the legal character of judgments of the International Court in international law. At the same time, one should not lose sight of what the German Constitutional Law has not said when considering the relevance of judgments of international courts. In Görgülü, it refrained from stating that judgments of the European Court of Human Rights are binding as a matter of German law: the European Convention may well be part of federal law, but decisions of the European Court have only to be “taken into account” by domestic courts. In R v Lyons, Lord Hoffmann affirmed that, though English courts could not apply decisions of the European Court pending incorporation, “there [was] a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an _____________ 26

House of Lords, R v Lyons and others [2002] UKHL 44. Ibid., MN 27. 28 Supreme Court of the United States, José Ernesto Medellín v. Texas, Judgment of 25 March 2008, No. 06–984, 552 U.S. 491 (2008), at 509–511. 27

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international obligation” and went as far as to concede that an interpretation conforming to the decisions of the European Court could supersede judge-made law or precedent adopting a different interpretation (as long as both interpretations are compatible with the text of the statute).29 Here the tone of the House of Lords (as well as the practical result) does not appear to be much different from that of the Federal Constitutional Court, although starting at the other end of the constitutional spectrum. Likewise, the German Consular Notification cases do not go much further than confirming an obligation to take into account judgments of the International Court in a way that is compatible with German law. They do not suggest that the Federal Constitutional Court would apply a decision of the International Court that contradicted German domestic law if a situation analogous to that faced by the US Supreme Court arose.30 This serves to highlight the difficulty of the notion of dédoublement fonctionnel in practice. In times of global governance, domestic courts are under the pressure to serve two masters: international law and domestic law. But they can do so only to an extent, as they are institutionally tied to the domestic legal systems to which they belong, to put it crudely, to those who appoint them, pay their salary and are entitled ultimately to hold them to account. The “leeways for judicial choice” do not permit a judge to circumvent the domestic constitutional process and to integrate international law into the municipal order at will. It would be absurd to say that judges cannot apply international law under any circumstances, but to do so, the appropriate processes must be adopted; and these vary with history and constitutional arrangements.31 Even in the context of European integration, in which courts are given a general mandate to implement European law in concert with the courts in Luxembourg, national judges are hardly more European than they are international; if they are either it is only contingently, though the contingency differs. With European as with international law, the Grundnorm (from the perspective of a national institution) is pacta sunt servanda, whereas for a national institution the Grundnorm comes from the constitution, or perhaps the national society _____________ 29

House of Lords, R v Lyons and others [2002] UKHL 44, MN 27 and 33. But the see the commentary by Jana Gogolin, which reads the judgment as establishing “an obligation to conform to the decisions of international tribunals” (at 270) while at the same time suggesting that German criminal procedure law is more “able to react flexibly on the requirements of Article 36 of the VCCR as interpreted by the ICJ” than American domestic law (at 277): Jana Gogolin, Avena and Sanchez-Llamas Come to Germany. The German Constitutional Court Upholds Rights under the Vienna Convention on Consular Relations, GLJ 8 (2007), 261. 31 Cf. James Crawford, Chance, Order, Change. The Course of International Law, RdC 365 (2013), 170. 30

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whose constitution it is. For the European Union may falter or fail or be repudiated, just as treaties may be terminated. And the Federal Constitutional Court ranks among the most prominent institutions to remind us of that elementary truth: it did so in Solange I and Solange II reserving the right to examine the compatibility of EU law with the fundamental rights guaranteed by the German Basic Law.32 It did so again, in the clearest of terms, in its Lisbon judgment of 30 June 2009 by delineating the outer limits of the Basic Law’s “friendliness” to EU law.33 By reserving for itself the role to oversee the process of integration and declare the unconstitutionality of EU treaties duly approved by the German Parliament, the Court made it clear that its ultimate master is, indeed, the Basic Law.

E. Concluding Remarks The treatment accorded to judgments of international courts is a revealing indicator of the openness of a legal system to international law because these judgments take the form of binding orders to which the State has not directly consented. In a way, they are more “foreign” than are the provisions of an incorporated treaty, or even than customary international itself, which domestic judges will always have more scope to adjust to the contextual realities of the case at hand. Despite the international judge’s best intentions, their judgments may contain findings and prescriptions that create tricky conflicts for domestic courts to solve. In the absence of clear authorisation by Parliament to apply the international judgment, domestic courts will be tempted to minimise their impact and downplay their domestic effects. This is why even international lawfriendly courts such as the German Federal Constitutional Court at times take approaches that are rather underwhelming viewed from the perspective of the international lawyer. Some commentators have reacted with circumspection to the decisions of the Federal Constitutional Court which I have discussed, fearing that the Court is becoming more closed – or less friendly – to international law.34 Another way _____________ 32

Crawford (note 31), 182. BVerfG, Judgment of 30 June 2009, 2 BvR 2/80, 5/80, 1018/08, 1022/08, 1259/08, 1259/08, 182/09. 34 See e.g. Tomuschat’s critical comments of the “taking into account” dictum in Görgülü: Christian Tomuschat, The Effects of the European Court of Human Rights According to the German Constitutional Court, GLJ 11 (2011), 513, 522–523; and Paulus’ critical comments on Lisbon: Andreas Paulus, From Dualism to Pluralism. The Relationship between International Law, European Law and Domestic Law, in: Pieter Bekker et al. (eds.), Making Transnational Law Work in the Global Economy. Essays in Honour of Detlev Vagts, 2010, 133, 150–151. 33

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of appraising the evolution of the case law is as if the Court is calibrating – with mixed results – the terms of the relations between international law and German law in reaction to challenges brought by the progressive insertion of rules having an international origin into the domestic legal system. Either way, one would hope and expect that the Court will continue to take its commitment to international law seriously. After all, the legal culture that this commitment embodies truly matters. This is clear for example in the Medellín case. In Medellín, the majority was concerned that giving effect to the judgments of the International Court under the supremacy clause of the US Constitution would allow these judgments to “override otherwise binding state law” and noted that there was “nothing in [the plaintiff’s] logic that would exempt contrary federal law from the same fate”.35 The concern of the minority was markedly different: for them, the majority’s position would bring the serious consequence of undermining “longstanding efforts” in dozens of treaties concluded by the US with the objective “to create an effective international system for interpreting and applying many, often commercial, self-executing treaty provisions”.36 As it happens so often in these constitutional cases, it was the prevailing conception among the justices as to the significance of international law and the Court’s role in promoting international rules that determined the outcome. Despite its progressively more cautious take on the Constitution’s “friendliness” towards international law, the German Federal Constitutional Court has remained, in practice, remarkably committed to the application of international rules: in all the cases discussed, including the Lisbon judgment, international law was applied at the end.37 This is a commendable record, thoroughly in line with Walther Schücking’s ideal of “international organisation”.

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Supreme Court of the United States, José Ernesto Medellín v. Texas, Judgment of 25 March 2008, No. 06–984, 552 U.S. 491 (2008), 518. 36 Ibid., 560 (Justice Breyer, dissenting, joined by Souter and Ginsburg). 37 As Paulus pointed out, “the earlier Karlsruhe case-law also shows that the theoretical dualism of the German Federal Constitutional Court, in practice, often gives way to a pragmatic approach in favour of implementing international as well as European law”: Paulus (note 34), 151; a similar point was made by Beke Zwingmann in relation to European integration: Lisbon “is not a reliable guide gauging the Court’s actual attitude towards European integration”, especially when one considers previous and subsequent cases confirming the commitment of the BVerfG to EU law; see Beke Zwingmann, The Continuing Myth of Euro-Scepticism? The German Federal Constitutional Court Two Years After Lisbon, ICLQ 61 (2012), 665, 694.

Part II

Maintenance and Restoration of International Peace and Security

Maintenance and Restoration of International Peace and Security by Diplomatic Means By Gunter Pleuger

A. Bilateral and Multilateral Diplomacy Experience of the last half century has shown that peace and security can only be maintained or restored by diplomatic means. Military action, the threat of force or sanctions might become necessary to stop a violent conflict. But the underlying causes of the conflict – political, social or economic problems – or the reconstruction of destroyed governance structures can only be resolved by diplomatic means. If this cannot be achieved the violence will return after a certain period of time. That is why the UN, in the reform discussion of 2005, created the “Peace Building Commission” to work after the end of military or violent confrontation for the restoration of destroyed structures in government, economy and society.1 Diplomacy means conflict solving by negotiation. In bilateral diplomacy the diplomats have to solve a problem by a compromise that both sides consider to be fair. As the two negotiators are independent from each other there cannot be a winner and a loser – no diplomat will report to his government that he lost and the other side won. Therefore it is important that both sides realise what the position, tactics, the possibilities and the “red lines” of their counterpart are in order to find a solution with a fair share of gains and sacrifices. Multilateral diplomacy works differently because in international conferences decisions are taken by majority vote. Here the diplomat has to collect the necessary majority of votes to “win” a decision. In lobbying for a cause and winning a majority there are two ways of collecting votes: either convince the other delegate that your initiative is also in his interest, or make a deal that if he supports your case you will support him in another case where he might need your support. This requires mutual trust that both sides will implement the deal. Therefore lies, threats or sanctions, are normally not effective in diplomatic conflict resolution. _____________ 1

General Assembly, Resolution 60/180 of 20 December 2005 (UN Doc. A/RES/60/ 180); Security Council, Resolution 1645 of 20 December 2005 (UN Doc. S/RES/1645).

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Diplomatic crisis management by multilateral or bilateral means is not a sign of weakness but the only effective way of maintaining and restoring international peace and security.

B. Legal Foundations The Charter of the United Nations (UN-Ch)2 is still the basic legal foundation for the maintenance of international peace and security. Article 2 UN-Ch establishes the sovereign equality of all Member States, which means that they enjoy equal rights and one vote for each Member State regardless of its size or power. Article 2 UN-Ch rejects foreign intervention in domestic affairs of Member States. And most importantly: it interdicts the threat or use of force against the territorial integrity or political independence of any State. There are only two exceptions to the interdiction of the use of force: one is self-defence according to Article 51 UN-Ch, and the other is the use of force for the restoration of peace and security based on a decision by the Security Council according to Chapter 7 of the Charter. Since the founding of the UN there have been developments in international law that have restricted national sovereignty and given greater responsibility to the UN and the international community of States. The decolonisation debate in the UN during the 1960s and 1970s3 has changed the legitimacy of the use of force for maintaining colonial rule. A significant breakthrough was the independence of Algeria decided by General de Gaulle who had been expected to keep “l’Algérie française”. This delegitimisation of the use of force to maintain a certain rule has certainly contributed to the peaceful democratic evolution of central and Eastern Europe and the end of the “Cold War”. The protection of human rights has also restricted to a certain extent the prohibition of intervention and provided new tools of policy for the international community. A breakthrough was the International Conference on Human Rights in Vienna in 1993 when all States signed a final document declaring the protection of Human Rights a legitimate concern of the international commu_____________ 2

Charter of the United Nations (26 June 1945), 1 UNTS XVI. E.g. Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly, Resolution 1514(XV) of 14 December 1960 (UN Doc. A/RES/ 1514(XV)); Resolution establishing the Special Committee on Decolonization, General Assembly Resolution 1654(XVI) of 27 November 1961 (UN Doc. A/RES/1654(XVI)); Programme of Action for the full Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assemby, Resolution 2621(XXV) of 12 October 1970 (UN Doc. A/RES/2621(XXV)). 3

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nity of States – and not just the task of national governments.4 A step further was taken in the UN reform debate of 2005, initiated by Kofi Annan, by establishing the “Responsibility to Protect” of the international community in cases of gross violations of human rights such as genocide.5 The unresolved problem remains, however, how to implement this responsibility. Who can decide when and how to apply the Responsibility to Protect? The only body authorised by the UN Charter is the Security Council. The traditional and long term instruments for the maintenance and restoration of peace and security are preventive agreements such as disarmament treaties or the law of the sea agreement, peaceful settlement of disputes under Chapter 6 of the UN Charter, settlement of legal disputes in international courts (Article 36 UN-Ch), and sanctions by the International Criminal Court (ICC) under the Statute of Rome. The effectiveness and credibility of the ICC, however, is affected by efforts of the United States to gain immunity from the Court for its own citizens first by (failed) Security Council Resolutions, then by bilateral agreements with more than 100 UN Member States to exclude extradition of US-citizens to the ICC.6 A new and promising development is the creation of new international law by the Security Council. Normal international law is created by international treaties or the development of customary international law. Both take time. A threat against peace and security often has to be countered quickly. The Security Council can take the necessary decisions under Chapter 6 and 7 of the Charter and these decisions are binding on all member States under Article 25 UN-Ch. In two cases the Security Council has set new international law: the “anti terrorism” resolution7 and the Resolution to prevent the spread of “weapons of mass destruction”.8 The implementation of these resolutions by UN Member States is controlled by the respective sub-committees of the Security Council so that the Security Council can take enforcement action by imposing sanctions in case of non-compliance.

_____________ 4

Vienna Declaration and Programme of Action of 25 June 1993 (UN Doc. A/CONF. 157/23). 5 Outcome Document of the 2005 United Nations World Summit of 24 October 2005 (UN Doc. A/RES/60/1), paras. 138–140. 6 A list of bilateral immunity agreements can be found at http://www.iccnow.org/ documents/CICCFS_BIAstatus_current.pdf (accessed on 9 April 2015). 7 Security Council, Resolution 1373 of 28 September 2001 (UN Doc. S/RES/1373). 8 Security Council, Resolution 1540 of 28 April 2004 (UN Doc. S/RES/1540).

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C. Role of the UN in International Peace-Keeping The functions and capacities of the UN institutions, of the diplomats and the rules of procedure determine effectiveness and legitimacy of the decision making process. According to Articles 10 and 11 UN-Ch, the General Assembly may discuss any question including questions relating to the maintenance of international peace and security, and may make recommendations to its members or to the Security Council or both. However, if the Security Council is dealing with a problem, the General Assembly is not allowed to make recommendations on the same issue in order to avoid conflicting decisions by both bodies. The Security Council gets the privilege of decision-making. Although the General Assembly with its comprehensive membership has the highest legitimacy, this transfer of decision-making power makes sense because according to Article 25 UN-Ch only the Security Council can take decisions legally binding on all Member States, whereas the General Assembly can only make recommendations that are not legally but only politically binding for those Member States which voted “yes”. There is no obligation to help implement the recommendation for those who have voted “no” or abstained, the abstention being considered in the UN as a “polite no”. There is only one precedent for the General Assembly taking over the responsibility of the Security Council: when, after a veto in the Security Council blocking a resolution on military intervention in the Korean war, the United States asked the General Assembly to take that decision under the heading “Uniting for Peace”.9 This has never been repeated because it was illegal under Article 12 UN-Ch, but mainly because of the change of membership and voting power since the early 1950s which has diminished the influence of the great powers in the General Assembly. Yet it still happens, especially in Middle East disputes, that a Security Council resolution that has been blocked by a veto is – in slightly changed form – taken to the General Assembly.10 In such cases the EU frequently plays a key role because the twenty-eight EU-members (and their votes) can be decisive for bringing together a majority. This gives the EU great influence on the formulation of the substance of resolutions in the General Assembly. _____________ 9

General Assembly, Resolution 377 A(V) of 3 November 1950 (UN Doc. A/RES/ 377(V)). 10 E.g. General Assembly, Resolution 1237(ES–III) of 21 August 1958 (UN Doc. A/RES/1237(ES–III)); General Assembly, Resolution 2253(ES–V) of 4 July 1967 (UN Doc. A/RES/2253(ES–V)).

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The most important organ of the UN for the maintenance and restoration of peace and security is the Security Council. It can respond to disputes or situations in different ways, depending on the degree of urgency. The mildest form of reaction is a “declaration” by the president or by the Council as a whole to the press. Another step could be recommendations on appropriate procedures or methods of conflict resolution. A legally binding act, however, is only a “decision” of the Security Council. That means that the operative part of the Security Council resolution has to start with the word “decides”. And if the resolution is an authorisation for military intervention under Article 42 UN-Ch the wording is “to take all necessary measures”. This became an important issue with regard to the first Iraq-resolution of November 2002 which only threatened with “serious consequences”.11 This was not considered to be the necessary authorisation for military action. The British/American draft of an authorisation resolution with the right wording in early 200312 was never put to the vote because there was a solid opposition of 11 of the 15 SC-members. Therefore, the Iraq war was considered not to have been legitimised under international law. The decisions of the Security Council are prepared in “informal consultations” among the 15 Council members and take place in a small office room next to the official “Security Council Chamber”. Because of the growing multitude and complexity of its tasks the Security Council meets daily, if necessary also on weekends. The Presidency, changing every month according to the English alphabet, submits a monthly work programme every first day of the month. In order to share the burden of work every delegation takes responsibility for a number of issues and the preparation of decisions (e.g. in 2003/2004 Germany as a non-permanent member took over the issues “War in Afghanistan”, “Children in armed conflicts”, the “Oil for Food Program” and the chair of the “Sanctions Committee” for Iraq). The performance of the Security Council varies. Sometimes the action is quick and decisive. For instance, when violence returned to Haiti in 2003/2004, the President of the Security Council called the members on a Sunday morning, convened the Council at 4 p.m., the Council adopted all necessary decisions for a quick humanitarian intervention by 7 p.m.13 and by 10 p.m. the first peacekeeping group of American and French soldiers was airborne! But very often the effectiveness and the legitimacy of the Security Council are affected by political and institutional problems. The legitimacy of the _____________ 11

Security Council, Resolution 1441 of 8 November 2002 (UN Doc. S/RES/1441 (2002)). 12 Draft Resolution of 7 March 2003 (UN Doc. S/2003/215). 13 Security Council, Resolution 1529 of 29 February 2004 (UN Doc. S/RES/1529).

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Council suffers from the deficiencies of its structure. The composition of the Council represents the world of 1945 and not of the 21st century. The legitimacy of international institutions like the UN is based on comprehensive membership. In bodies with limited membership legitimacy is established by a structure in which non-members too can feel adequately represented. In the present council of 15 members, the big regions, Africa, Asia, Latin America and Eastern Europe are grossly underrepresented. The legitimacy of the Security Council is also affected by its decisionmaking, which lacks due process. There is no “audiatur et altera pars”. A country or people who are subjected to sanctions are heard only during the formal meeting of the Security Council in the Security Council Chamber – but to no avail, because the decisions have already been taken before in the informal consultations to which no State or person concerned is admitted or gets a hearing. Another problem is the voting system. A decision is taken by 9 votes of the 15 members. But any of the 5 permanent members (P5) can block a decision by casting a veto – without even having to explain why. This is considered by the overwhelming majority of Member States to be undemocratic, but cannot be changed because it would require a change of the UN Charter, which could, in theory, be decided by a two thirds majority in the General Assembly where there is no veto. However, the change of the Charter has to be ratified by two thirds of the Member States – including the P5 – according to Article 108 UNCh. This means that the P5, in the ratification process, have a veto against the abolition of the veto! For the efficiency of the Security Council a number of reforms are necessary. First of all, the small number of countries who provide most of the resources for peacekeeping have to be permanently included in the decisionmaking process because national parliaments who have to agree to make the resources available will demand: “no taxation without participation”. Secondly, the peacekeeping capabilities of the UN have to be strengthened. After a peacekeeping decision of the Security Council, the Secretary General is supposed to put a peacekeeping mission into place for which he has no soldier, no personnel, no infrastructure or money. Asking Member States to provide the necessary resources often takes six to nine months before the mission can be fielded. One remedy could be to set up an international stand-by force of ca. 120.000 soldiers and staff. Yet this proposal of the UN Secretariat has been discussed for more than ten years without results. At present the UN is getting more and more dependent on outside help. Regional organisations like EU and NATO can be useful with “battle groups” and “rapid reaction forces” but it is also essential that regional organisations such as

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the African Union are enabled to take over greater responsibility for peacekeeping in the many African conflicts. The so-called “G-Groups” can be helpful in conflict resolution. A good example was the role of the G8 in the Kosovoconflict. After the Russian Federation had vetoed a resolution in the Security Council and left the contact group in New York the G8, of which Russia was still a member, worked out the text of a new resolution that was eventually adopted by the Security Council,14 ended the war and laid the foundations for a peace-building process in the region.

D. Legitimacy, Efficiency, Reforms Increase of legitimacy and efficiency of diplomatic efforts for the maintenance and restoration of peace and security require a diminution of hypocrisy, dual standards and abuse. The Iraq war has done considerable damage to the credibility of peacekeeping operations by a coalition of the willing. The facts given by the US in the Security Council meeting of 5 February 2003 to justify the military operations15 turned out to be all wrong. And “preventive selfdefence” as claimed by the US is not covered by the UN Charter because Article 51 UN-Ch allows self-defence only “if an armed attack occurs”. Measures of self-defence have to be immediately reported to the SC and “shall not in any way affect the authority and responsibility of the SC” to take “such action as it deems necessary in order to maintain or restore international peace and security”. That excludes “pre-emptive” self-defence in the form of military action before an armed attack has occurred. Equally “regime change” by foreign military action is not covered by international law. To pursue regime change under the cover of a peace keeping operation as happened in Iraq and recently in Libya has eroded the legitimacy and credibility of the decision making process in multilateral diplomacy for peacekeeping operations. A similar effect occurs when basic rules of international law are disregarded as in the violation of the territorial integrity of Member States and their borders or the intervention in internal affairs, as happened recently in the Ukraine. Before the background of an increasing number of conflicts that cause mass killings of the civilian population, starving, diseases and mass exodus of refugees, diplomatic efforts to cope with such humanitarian disasters need new instruments. Under present international law a right to “humanitarian intervention” does not exist because a majority of Member States of the UN fears that _____________ 14 15

Security Council, Resolution 1239 of 14 May 1999 (UN Doc. S/RES/1239). Security Council Meeting Record of 5 February 2003 (UN Doc. S/PV.4701).

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such an intervention – that would always be undertaken by a stronger against a weaker actor – might easily be abused for purposes of power policy. First steps of reform point in the right direction:  The “responsibility to protect” – as mentioned above – which, however, still lacks a convincing decision-making procedure.  The creation of the Peace Building Commission has enabled some successes in West-Africa but still deserves more support and resources.  The new Human Rights Council has still to prove its greater effectiveness in the protection of Human Rights as compared to the previous Human Rights Commission. Successful international diplomacy for the maintenance and restoration of peace and security needs and receives crucial support from two directions: Every serious conflict creates starvation, exodus of refugees, health problems, suffering of children, to name only a few of the problems. To deal with these casualties we need the specialised agencies of the United Nations such as the World Food Program (WFP), the High Commissioner for Refugees (UNHCR), the World Health Organisation (WHO), UNICEF and others of the more than 150 specialised agencies of the UN. Member States and the international organisations equally need the many “non-governmental organisations” (NGOs) such as “Human Rights Watch” or “Médicins Sans Frontières” as the actual Ebola-epidemic in West Africa and conflicts elsewhere demonstrate.

E. Conclusion In a globalised and increasingly interdependent world no State or group of States is strong enough to single-handedly secure or restore international peace, security and stability. Global problems such as genocide, regional violence, hunger, climate change, transferable diseases and others need global solutions. To achieve global solutions we need a global organisation and the only one the world has is the United Nations. So it is not enough to complain about the many deficiencies of the UN system. It is imperative to mend the weaknesses and strengthen the structure, the decision-making procedures, the capabilities, the effectiveness and the legitimacy of the United Nations, in particular of the Security Council.

Maintenance and Restoration of International Peace and Security Through Arbitration and Judicial Settlement By Francisco Orrego Vicuña I have been greatly honoured by the invitation from the organisers of this conference to address the subject of maintenance and restoration of international peace and security through arbitration and judicial settlement, an ever timelier question. I have had the privilege of a close academic association with Germany throughout the years and I cannot fail to mention that it all begun at this very Institute when Professor Rüdiger Wolfrum was its director. It is a singular pleasure to be able to participate in the commemoration of its 100th Anniversary.

A. Peace, Security and Dispute Settlement: A Decoupled Equation It appears appropriate to remind ourselves at the outset that following some of Judge Schücking’s key ideas concerning the prospects for the development of international law in the twentieth century, international peace and security were indissolubly linked to the settlement of disputes by arbitration and judicial settlement.1 These were the two pillars on which the international legal system would be built. They continue to be so, only that it is today noticeable that resorting to the use of force has not been prevented by its outlawing and that to a meaningful extent international settlement of disputes has been decoupled from the equation. Why this has happened and which are the current and future prospects for reestablishing the role of dispute settlement in the international community are the thoughts that I propose for our discussion. I. Judicial Institutions: Responding to Contemporary Needs If judicial institutions established under international law are subject to a critical examination it will not be difficult to notice that a number of them are not responsive to the current needs of the international system. The role of the _____________ 1

Frank Bodendiek, Walther Schücking and the idea of “International Organization”, EJIL 22 (2011), 741, 747–749.

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International Court of Justice, important as it is, has been restricted to disputes which to a large extent are situated on the periphery of the development of such a system. The evident consequence is that some of the major political and economic questions dividing the world are never brought to its adjudication. This is probably the result of it being modelled on the United Nations allocation of power, which permeates the distribution of many of its seats, the election of its members and, more importantly, controls its agenda on significant matters. Permanent members of the Security Council have in fact been, for the most, exempted from judicial settlement and seldom are their fundamental interests brought to the Court. Use of force turns out, then, to be refrained mainly by the existence of counterbalancing forces and not by any sense of the need to ensure the peaceful settlement of the disputes in question. This restricted judicial function is not, however, just a question of international politics and can also be seen in many other key areas that are today the essence of global interactions. None of the major international economic, financial or trade disputes is brought to judicial settlement, with only some benefitting from arbitration arrangements that will be discussed further below. The same is true to an extent of the International Tribunal for the Law of the Sea as many disputes that are at the centre of contemporary law of the sea have not been brought to adjudication. Moreover, judicial developments in some other areas on which great expectations were placed have not been particularly successful. International criminal tribunals, which were in fact closely connected to the recognition of the legitimate humanitarian concerns of the international community, have been haunted by political problems and personality cults with the result that while some crimes are brought to justice, many others are left undisturbed if protected by ideological privileges. Regional developments have been successful in some cases as a result of the greater professionalism of judges and the solid underlying legal and cultural bases for their action, a case in point being both the European Court of Human Rights and the Court of Justice of the European Union. But such models have not succeeded in other regions in view of their Member States lacking a true commitment to dispute settlement in the context of privileging short term conveniences. II. Redressing Distortions of the International Legal System The question that follows is quite naturally what can be done to remedy this situation of judicial shortcomings. From a conceptual point of view the twentieth century witnessed important developments that laid the ground for an

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effective system of international adjudication. A number of what at the beginning were Schücking’s idealist proposals have turned out to be true, in particular the premise that State sovereignty could no longer be understood as an obstacle to the establishment of international organisations2 and that, to the contrary, it was sovereignty that allowed the State to accept legally binding international institutions.3 The influence of economic links and trade among nations, then expressed as the international solidarity of interests, anticipated current globalisation, just as cultural bonds, communications technology and private internationalisation were all foreseen as the basis of peace through law and the prevention of war.4 There is, however, one important conceptual aspect that needs rethinking. In the context of German idealism as known in the early twentieth century, international organisations and institutions were largely conceived in harmony with the role of State sovereignty and the turn from positivism to modern natural law allowing for the identification of new legal norms was understood as a process of evolution.5 Later expressions of idealism, however, on occasions genuine, on occasions intertwined with political aspirations, have tended to decouple international law and the institutions created thereunder from the role of States, thereby unbalancing a system which historically has been the outcome of careful and prudent progress. This is not only a question concerning international institutions but the structure of international law as a whole, as evidenced by the difference between what Schücking conceived as a normative development of lege ferenda based on scientific study6 and what today has become an effort to proclaim rules of jus cogens. The latter is often unconnected to scientific legal studies or even natural law as normative development as it was understood by that distinguished writer. It can only be regretted that some of the most acute legal exaggerations have seen the light in international conferences, the representativeness of which is open to doubt, and still more strikingly in the ambit of judicial institutions. It is submitted that a rebalancing needs to be attained so as to ensure an orderly development of the law and the support for its rules both internationally and domestically. Otherwise the much needed respect for international law and international adjudication will continue to dwindle, thereby leaving the use of _____________ 2

Bodendiek (note 1), 745. Jost Delbrück, Law’s Frontier – Walther Schücking and the quest for the Lex Ferenda, EJIL 22 (2011), 801, 806. 4 Bodendiek (note 1), 744–745. 5 Bodendiek (note 1), 742–743. 6 Bodendiek (note 1), 742. 3

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force in the international community to a mere issue of balance of power. If this were the case we would be back at the beginning. III. Seeking Effectiveness for International Organisations The aspiration to establish a general international organisation entrusted with the maintenance of international peace and security, also a paramount idea in Schücking’s thinking,7 came to be reflected first in the League of Nations and next in the United Nations. The former was not successful while the latter is today confronted with an increasing scepticism about its effectiveness. In fact, the role of the Security Council in the major instances of contemporary use of force has been in the best of cases marginal and even non-existent. This is a serious symptom of a grave illness which threatens to contaminate the role of judicial settlement as well. Should this come to pass, the two pillars of international peace and security would crumble under the weight of irrelevance. There is no room at present for thinking about the establishment of yet another international organisation entrusted with the maintenance of international peace and security in a broad sense. At the most some regional developments might be encouraged or perfected, but even then the same diminution in effectiveness is today apparent. Initiatives aiming at the reorganisation of present international organisations are of course plentiful, but most of them have not left the drawing board. Neither does there appear to be room for thinking about a new court of general international jurisdiction. Finally, although many ways of perfecting the International Court of Justice have been suggested, these invariably turn on the improvement of the technical aspects of international adjudication rather than its connection to the maintenance of peace and security.

B. Functional Developments of International Adjudication There are, however, three steps that could be taken to strengthen the pillars of international organisation and adjudication. They are all three related to the functional development of dispute settlement methods. I. Streamlining Existent Courts A first step that might be of relevance, rather than substituting current judicial or political institutions, is to provide for simpler and expedited methods of settlement in some cases or areas concerning peace and security. The idea is _____________ 7

Bodendiek (note 1), 747–749.

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certainly not new. We might recall that also Schücking had envisaged an international equity tribunal for international conflicts and that conciliation, mediation and arbitration were in his agenda for action,8 just as it is still the case today. It is also necessary to keep in mind that some initiatives of the past that had never been put to work in practice have occasionally regained importance in respect of contemporary disputes, a case in point being that of the Bryan Treaties9 whose dispute settlement mechanisms were successfully implemented for the first time just a few years ago in a dispute between Chile and the United States. The alternative of advisory opinions has to a limited extent also contributed to fostering the link between judicial functions and the maintenance of international peace and security.10 Streamlined conciliation and mediation arrangements can well serve today the same purpose of conflict prevention, the institutionalisation of which would not be difficult to achieve. One could not omit mentioning the most successful mediation by Pope John Paul II between Argentina and Chile in the period 1978–1984, with the specific result that war was prevented and a new era of cooperation took its place. The experience of such diplomatic efforts, conducted in the context of a specific legal framework, is perhaps indicative of how this approach might help in other kinds of conflicts. This approach has been put in motion recently in the successful silent mediation by the Pope in the unfreezing of relations between Cuba and the United States. Because of these positive experiences the Vatican is presently considering the establishment of a permanent mediation office. II. New Areas of International Law Requiring Functional Jurisdiction A second step relates to the establishment of courts of functional jurisdiction in respect of areas of international law that are today mature enough for such a development. The relevance of the International Tribunal for the Law of the Sea in respect of the law governing the uses and exploitation of the oceans, or the successful experience of the European Court of Human Rights and of the Court of Justice of the European Union, have been mentioned above. A court for the adjudication of international trade disputes is one initiative that could be successfully undertaken as from today. It ought not to be con_____________ 8

Bodendiek (note 1), 748–749. Reprinted in: James Brown Scott, Treaties for the Advancement of Peace between the United States and other Powers negotiated by the honourable William J. Bryan, Secretary of State of the United States, 1920. 10 Rüdiger Wolfrum, Advisory Opinions: Are they a Suitable Alternative for the Settlement of International Disputes?, in: Rüdiger Wolfrum/Ina Gätzschmann (eds.), International Dispute Settlement: Room for Innovations?, 2012, 35–108. 9

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ceived as a substitute for the work of the World Trade Organisation system of panels and the Appellate Body, but could provide for a broader framework of dispute adjudication in this matter. It would thus be responsive to the global increase in trade and the many arrangements related thereto, including current massive initiatives such as the Trans-Pacific Partnership and the European Union-United States free trade negotiations, the proliferation of free trade agreements, regional mechanisms and other efforts at developing a broader freedom of trade. The connection of this question to the implementation of sanctions and countermeasures, a number of them relating to political events, cannot pass unnoticed in the context of current disputes between the United States, the European Union and Russia. Another judicial development that is today calling for action is that concerning State insolvency, a matter on which questions of State functions and commitments are intertwined with the rights of bondholders and other creditors. Important experiences in the context of national courts in whose jurisdictions debt instruments have been issued, as is also the case of some past and present arbitration undertakings and regional initiatives at supervision and coordination, can well serve as the bases for a structured system of international adjudication that might provide a greater clarity to the law governing financial disputes. It is not difficult to realise that institutions such as the International Monetary Fund or the European Central Bank might draw great help from this development. III. Ensuring Direct Access of Individuals to International Courts and Tribunals The third step that might be suggested in the context of improving international adjudication is in our view the most decisive. International courts’ and tribunals’ jurisdiction should today be accessible by individuals so as to provide a direct right of action in case of infringement of their rights. Judge Higgins appropriately commented in this connection, referring to Lord Denning’s views in the Gouriet case,11 that “a right which depended for its enforcement upon the consent of another party was close to being no legal right at all”.12 The historical reasons that reserved international adjudication solely to States do not appear to be justified any longer in the context of a profound process of globalisation. The role of subjects of international law has significantly changed and it is the individual that in many respects has become the central actor of the interna_____________ 11

Gouriet v Union of Post Office Workers and others [1977] 2 WLR 310. Rosalyn Higgins, Conceptual thinking about the individual in international law, in: Richard A. Falk/Friedrich V. Kratochwil/Saul H. Mendlovitz (eds.), International Law: A Contemporary Perspective, 1985, 476, 479. 12

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tional system. Yet, the judicial component of said system is largely decoupled from this development and has remained attached to the features that were prevalent in the early twentieth century. The only areas in which international dispute settlement has quite rightly opened up are with good reason those concerning human rights and international investments, the latter in the framework of the arbitration mechanisms that will be discussed further below. Notwithstanding that individuals are, for the most part, the real agents of international trade they are largely devoid of direct rights of access to dispute settlement in this connection, except in the case of some regional arrangements and in a very limited way in the World Trade Organisation. The functional developments discussed above would be futile without the recognition of the role of the individual therein, a case in point being for example that of a court for adjudicating State insolvency. This is not only a requirement for the effectiveness of functional dispute settlement but applies equally to courts of general jurisdiction, including the International Court of Justice. As noted by most distinguished writers and judges, there is no apparent legal reason that should prevent individuals from the benefits of international adjudication, which today they can only enjoy by the intermediation of States. In point of fact, Shabtai Rosenne advocated direct representation of the individual in the proceedings before the Court with the result that such a step would enhance its prestige and public confidence in the reality of international justice,13 just as Judge Higgins noted that “there are powerful arguments for giving [the individual] access – through a revision of its Statute – to the International Court or perhaps to a Special Chamber of that Court”.14 The main concerns raised in expressing reluctance towards such a development are of a technical nature, in particular the fact that international courts and tribunals would be overwhelmed by thousands of petitions. This difficulty can be reasonably managed, however, by means of screening procedures that would allow the separation of real from fictitious plaints and the establishment of a mechanism for selective adjudication. Such procedures are already in place for the European Court of Human Rights and the Supreme Court of the United States.

_____________ 13

Shabtai Rosenne, The Law and Practice of the International Court 1920–1996, 1997, 655. 14 Higgins (note 12), 481.

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C. Arbitration and Alternative Dispute Resolution in Support of International Peace At this point it is necessary to examine the second main avenue of international dispute settlement, that concerning international arbitration. With good reason Schücking received with particular enthusiasm the initiatives of the 1899 and 1907 Peace Conferences leading to the establishment of the Permanent Court of Arbitration (PCA). This was not only because it was the first time that States accepted an institutionalised mechanism of arbitration but also because it really opened the way to effective functional arrangements from which the world community would certainly benefit in the long term.15 Slowly at the beginning and actively at present, the Permanent Court of Arbitration continues to serve the international community by providing first for arrangements at the inter-State level and increasingly by accommodating the needs of the individual in their disputes with States. This includes links with international investment and commercial arbitration, in particular because of its functions in the framework of UNCITRAL arbitration rules and ad-hoc arbitrations of many kinds. Not many contemporary arbitration institutions are related specifically to questions of maintenance of international peace and security. The PCA is again one exception as its basic governing instruments are rooted in the tradition of the 1899 and 1907 Conventions,16 the main concern of which was precisely to promote international arbitration as a guarantee of the non-recourse to the use of force, at least as a first instance. This function continues to exist today in a more limited way. Some particular dispute settlement mechanisms of the past, such as the Bryan Treaties noted above, were also geared towards issues of international peace and security and their contemporary relevance should not be dismissed. Some long standing dispute settlement methods, such as conciliation and mediation, are often in use today in the context of international peace and security, mostly as a function of international organisations. Because of the structural problems affecting such organisations these efforts are often unsuccessful as in the end they cannot escape the power politics involved. More exceptional is the mediation carried out by outstanding personalities, as is the case, mentioned above, of the Papal mediation and also that leading to the Camp David Peace Agreements. An independent institutionalisation of these methods would _____________ 15

Bodendiek (note 1), 752. The Hague Convention for the Pacific Settlement of International Disputes of 22 July 1899, AJIL 1 (1907), 103; The Hague Convention for the Pacific Settlement of International Disputes of 18 October 1907, AJIL 2 (1908), Supp. 43. 16

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not be difficult to achieve, as also noted. The effectiveness of these methods is today apparent as evidenced by the increasing use of mediation in commercial disputes. I. The Development of Functional Arbitration Just as is the case of international courts and tribunals, the development of international arbitration has quite rightly followed the path of functional developments in connection with specific areas of activity, ranging from international trade to investment arbitration, commercial contracts, maritime delimitation, environmental disputes and many other matters. The initiative launched in 2012 to establish an arbitration system in connection with financial disputes, as embodied in Prime Finance (Panel of Recognised International Market Experts in Finance), is of particular importance since an area in which trillions of dollars are at stake cannot endure without an accompanying international dispute settlement mechanism. In the aggregate, these developments are also to be understood as a major contribution to the maintenance of international peace and security. Long past is, for example, the thought that the use of force is justified to collect outstanding debts or to protect other financial interests. Anecdotally, it should not pass unnoticed the Schücking himself, in spite of his idealism and devotion to peace, supported the naval blockade that Germany and other European countries undertook in Venezuela in 1902–1903 as an expression of the law of peace.17 Many of today’s arbitral institutions are active in the above-mentioned range of fields, each with its own measure of success and difficulties. Some such difficulties are not of the making of the management of international arbitration but of the structural limits and ill-conceptions imposed by their constitutive instruments. The initiative for establishing a court of international arbitration that would be the ultimate authority to decide on challenges, appeals or other questions arising from the work of arbitration tribunals has been suggested from time to time. With respect, I submit that this is not a good idea as it would introduce a measure of devaluation of the work of tribunals and hence of their authority and would result in a system devoid of the necessary flexibility that has been of the essence of international arbitration. Neither does there appear to be a good reason to suggest that the tradition of party-appointed arbitrators should be discontinued. Similar views have been expressed in connection with the discontinuance of judges ad hoc at the Inter_____________ 17

Mónica García-Salmones, Walther Schücking and the Pacifist Traditions of International Law, EJIL 22 (2011), 755, 764.

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national Court of Justice and other judicial institutions. Again with respect, such initiatives are likely to be counterproductive as they would deprive States of the assurances that their views will be duly weighed and taken into account in the context of a detailed knowledge of the issues in dispute, a right which has been intertwined with the acceptability of international arbitration since its inception. II. Broadening the Access of Individuals to Arbitration and Alternative Methods Although it is not possible to address here the merits and difficulties of each major arbitration institution, reference should be made to some common problems. The first one is the need already identified in connection with international courts and tribunals concerning the direct right of access of individuals. This is of course a salient feature of commercial arbitration but it is still rather exceptional in circumstances where action is brought against States. Investment arbitration is one notable exception and some regional arrangements also provide examples of such right of action. For the most part, however, this alternative is not available to individuals who continue instead to be directly or indirectly subject to the rules governing diplomatic protection, including the discretionary handling of claims by governments and the interference of political interests therein. Occasional control of these discretional powers by national courts, as is again the case of Germany, has been a useful tool to ensure that objective and non-arbitrary standards are applied for espousing individuals’ claims, but this is also a rather exceptional remedy.18 The real answer lies in the right of individuals to directly bring their complaints to arbitration. It is in this light that it is often difficult to understand the continuous criticism of the ICSID system of investment dispute settlement. There are, of course, many problems in the working of a major arbitration centre such as this one. However, all of these can be corrected and none alters the fact that ICSID offers to individuals a feature which is indispensable to guarantee the protection of their rights under international standards. It would be most inappropriate to turn back the clock and leave this protection to the role of espousing governments or, even worse, to political pressures or the use of force. In fact, the very recognition of property in the ambit of human rights standards is an important reason why a system of direct access should be encouraged, just like with other _____________ 18 Georg Ress, La pratique allemande de la protection diplomatique, in: JeanFrançois Flauss (ed.), La Protection Diplomatique: Mutations contemporaines et pratiques nationales, 2003, 121, 134–135.

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protected rights. A discourse based on the protection of human rights which at the same time denies such protection to affected individuals is contradictory in essence and tends to evidence the existence of underlying ideological choices. III. Limits to De-nationalised Protection of Rights The ideal of international developments capable of substituting for what experience indicates has been in many respects a failure of domestic solutions is the cornerstone of contemporary international law and as such it should be preserved. This assumes, however, that such internationalised arrangements will effectively guarantee the protection of rights entrusted to them. If this objective fails to materialise a reversion of trends will inevitably occur with domestic solutions reentering the scene. Some such reversion can already be seen in a contemporary setting. For many years it was thought that, specifically in connection with arbitration, it would be best to de-nationalise certain judicial functions so as to prevent abuses arising in a purely domestic ambit. Challenges brought in respect of arbitration awards and disqualifications of arbitrators have been some important features of such de-nationalisation, as evidenced by the ICSID Convention. The handling of challenges against awards, however, has in some cases been distorted to the point that annulment committees have gone far beyond the limited standards governing nullity under the Convention and international law so as to constitute themselves as courts of appeal with the mission of reconsidering the merits of the case.19 This system has fallen in disrepute and the choice of bringing challenges to national courts under UNCITRAL and other rules has regained importance as one offering strong guarantees of strict legal scrutiny, as is evident from the decisions of many national tribunals around the world. The same may be said in respect of instances of requests for disqualifying arbitrators. The system has been to a significant extent abused as challenges are increasingly made for strategic reasons unrelated to the governing standards of independence and impartiality, just as an unsupported standard of “issue conflict” has recently arisen so as to disqualify arbitrators because of what they might have decided in other cases on different facts. This has been taken to the extreme of requesting disqualification on the basis of academic writings of arbitrators in their scholarly capacity, thus resulting in a serious threat to freedom of expression and the unwillingness of many arbitrators to write about _____________ 19 Katharina Diel-Gligor, Systemic Deficiencies of ICSID Investment Arbitration? An Inspection of the Annulment Mechanism, in: Wolfrum/Gätzschmann (note 10), 359– 392; Shotaro Hamamoto, New Challenges for the ICSID Annulment System: Another Private-Public Problem in the International Investment Dispute Settlement, in: Wolfrum/Gätzschmann (note 10), 393–416.

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anything meaningful. This is hardly compatible with a fundamental human right. In truth these distortions are not the exclusive domain of arbitration or judicial developments but can be increasingly seen in the work of international organisations, particularly in the context of adopting sanctions that directly affect individuals. On not few occasions normal standards of due process are completely ignored. It is also interesting to note in this context that Schücking warned in his Hague lectures that any international developments concerning sanctions should be accompanied by clear procedural guarantees.20 Once more a reversion can be seen in this matter as the lack of adequate international guarantees has prompted the intervention of national courts to ensure the protection of constitutional rights of affected individuals, a case in point being again that of German courts.21

D. Rebalancing Rights and Interests in the International Legal System Many virtues and defects today characterise the international legal system. Prospects for the future are encouraging but require the prompt rebalancing of rights and interests noted at the beginning, including those at the heart of the role of sovereign States in the context of a global community as well as those of individuals in connection with specific international legal developments finding justification in the need to ensure their protection. Reasonableness and professionalism ought to be the guiding principles of judicial and arbitral functions. On occasions judges and arbitrators tend to believe in self-importance as if they were above States and individuals and that international law is what they say it is, a state of mind that leads to the most serious distortions of the law and the failed mission to protect the genuine rights at issue. Even when courts believe they are not entering the domains of lawmaking, they are in fact doing just that to a bigger or lesser extent, as noted by Professor Hugh Thirlway.22

_____________ 20

Christian J. Tams, Re-Introducing Walther Schücking, EJIL 22 (2011), 725, 738. Erika de Wet/André Nollkaemper, Review of Security Council Decisions by National Courts, GYIL 45 (2002), 166. 22 Hugh Thirlway, Unacknowledged Legislators: Some Preliminary Reflections on the Limits of Judicial Lawmaking, in: Wolfrum/Gätzschmann (note 10), 311. 21

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E. Preserving Democratic Legitimacy In the end, as rightly identified by Professor von Bogdandy, the fundamental issue is that international law cannot be conceived as antagonistic to democratic legitimacy and the role that citizens and national institutions are called to guarantee in that connection.23 When international conferences or judicial institutions seek to substitute their views for the essential values of democratic society, sovereignty, even as understood in a contemporary setting, will necessarily prevail. Keeping with the sense of modesty and respect that has traditionally characterised the judicial and arbitral functions is the best guarantee that balanced approaches will be found to the settlement of the disputes submitted. This in itself will also provide new assurances about the role of such functions in the maintenance of international peace and security in its broad meaning.

_____________ 23

Armin von Bogdandy/Ingo Venzke, International Courts as Lawmakers, in: Wolfrum/Gätzschmann (note 10), 161, 181–197.

Maintenance and Restoration of International Peace and Security by Means of Force By Théodore Christakis and Karine Bannelier*

A. Introduction The current celebrations of the 70th anniversary of the United Nations Organisation (UN)1 eclipsed another very important anniversary: almost exactly 25 years ago, on 29 November 1990, the United Nations Security Council (UNSC) adopted Resolution S/RES 678 authorising Member States to “use all necessary means […] to restore international peace and security” in Kuwait.2 This was a landmark resolution, undoubtedly one of the most famous (if not the most famous …) in the history of the UNSC. This resolution provided the legal basis for Operation Desert Storm, during which a coalition of 34 nations led by the by the United States (US) intervened against Iraq on 17 January 1991 in response to Iraq’s invasion and annexation of Kuwait. It became a symbol of the end of the Cold War and created hopes for the emergence of a “New World Order” where the opposing blocks of the West and the East would put aside their former differences and work together to promote international law and justice. For the UNSC this was indeed a landmark moment. During the whole period of the Cold War, and with the exception of the very limited and controversial episode of the War in Korea,3 the UNSC, like a new Prometheus Bound, was _____________ *

The authors would like to warmly thank the editors who invited them to contribute to this important book celebrating the 100 years anniversary of the Walther Schücking Institute for International Law. Walther Schücking, former director of the Institute and Judge of the Permanent Court of International Justice, was profoundly attached to the idea of a legal order of peace and international understanding. This chapter covers developments till April 2015. 1 See Karine Bannelier et al. (eds.), Les 70 ans des Nations Unies: quel rôle dans le monde actuel? En l’honneur du Professeur Yves Daudet, 2014. 2 Security Council, Resolution 678 of 29 November 1990 (UN Doc. S/RES/678), para. 2. 3 The very exceptional circumstances of the adoption of Resolutions 83 of 27 June 1950 and 84 of 7 July 1950 are well known: it was only due to the absence of the USSR

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unable to use the “fire” that States bestowed upon it in Chapter VII of the UN Charter as a major tool in order to “save succeeding generations from the scourge of war” and “maintain international peace and security”.4 The adoption of S/RES 678 announced the beginning of a new era, in which the UN could finally use means of force in order to promote collective security. Liberated suddenly from its chains in 1990, the UNSC has plainly used this powerful tool authorising States or coalitions of States to use force on multiple occasions in order to “restore or maintain international peace and security”. Since 1990, the UNSC has indeed given, by means of Chapter VII resolutions, dozens of such authorisations to use force (“all necessary means”) in a great variety of cases, countries and situations.5 If we add to these authorisations the cases where UN peacekeeping forces were authorised to use all “necessary means” to achieve part of their mandates,6 and especially the recent use-of-force mandates given to robust’ UN forces acting under UN flag

_____________

that the UNSC was able to recommend “that the Members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area”. 4 See the Preamble of the UN Charter. 5 In Iraq in 1990 (S/RES/678 of 22 November 1990); in Bosnia and-Herzegovina (S/RES/770 of 13 August 1992) and Somalia (S/RES/794 of 3 December 1992) in 1992; in Rwanda (S/RES/929 of 22 June 1994) and Haiti (S/RES/940 of 31 July 1994) in 1994; in the former Zaire (S/RES/1080 of 15 November 1996) in 1996; in Albania (S/RES/1101 of 28 March 1997) and in the Central Africa Republic (S/RES/1125 of 6 August 1997) in 1997; in Guinea Bissau 1998 (S/RES/1216 of 21 December 1998), in Kosovo (S/RES/1244 of 10 June 1999) and in Timor-Leste (S/RES/1264 of 15 September 1999) in 1999; in Afghanistan (S/RES/1368 of 20 December 2001) in 2001; in Côte d’Ivoire (S/RES/1464 of 4 February 2003) and in the Democratic Republic of the Congo (S/RES/1484 of 30 May 2003) in 2003; again in Côte d’Ivoire (S/RES/1528 of 27 February 2004), in Haiti (S/RES/1529 of 29 February 2004) and in Iraq (S/RES/1511 of 16 October 2003 and S/RES/1546 of 8 June 2004) in 2004; in the Democratic Republic of the Congo (S/RES/1671 of 25 April 2006 ) in 2006; in Chad (S/RES/1778 of 25 September 2007) in 2007 and again in Somalia (S/RES/1744 of 21 February 2007 and S/RES/1816 of 2 June 2008) in 2007 and 2008; in Libya in 2011 (S/RES/1973 of 17 March 2011); in Mali (S/RES/2085 of 20 December 2012; S/RES/2100 of 25 April 2013; S/RES/2164 of 25 June 2014) in 2012, 2013, 2014 and again in the Central Africa Republic (S/RES/2121 of 10 October 2013, S/RES/2127 of 5 December 2013, S/RES/2134 of 28 January 2014 and S/RES/2149 of 10 April 2014, S/RES/2162 of 26 June 2014, S/RES/2217 of 28 April 2015) in 2013, 2014 and 2015. These authorisations were in some cases given in conjunction with the deployment of UN peacekeeping operations. 6 Starting with UNPROFOR in Yugoslavia in 1993 and continuing with several other UN missions such as UNAMSIL in Sierra Leone in 1999, MONUC in the DRC in 2003 or UNOCI in Côte d’Ivoire in 2004.

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and command,7 we understand that use of force progressively became a major tool used by the UNSC for the maintenance and restoration of international peace and security. In this chapter we will not discuss the problems related to the use of force by UN forces acting under UN flag and command, which, although related to the general topic of our study, raise several different questions that require a separate study (and which have indeed been the object of many recent studies).8 We will only focus on the delegation by the Council of the power to use force to individual States or “coalitions of the willing” acting under national command. The editors of this book asked us to examine this question under both the prism of the “past” and the prism of “future” evolutions in this field. The first part of our analysis will thus proceed to an assessment of these 25 years of UNSC use of force mandates, mainly in order to identify what the major legal issues and problems during the practice of use of force mandates were (B.). We will then proceed, in the second part of our analysis, to an examination of different paths and proposals that could permit to improve the system of UNSC use of force mandates and make it more functional, legitimate and compatible with rule of law requirements (C.).

B. Twenty-Five Years of UNSC Authorisations to Use Force: An Assessment As we have seen above, the UNSC has resorted, during these last 25 years, to a widespread use of the mechanism of giving to individual States or coalitions of States an authorisation to use force (“all necessary means” in the jargon of the Chapter VII resolutions) in order to accomplish a great variety of tasks. Dozens of such resolutions have been adopted by the UNSC9 authorising _____________ 7

See especially the mandate given by Security Council, Resolution 2098 of 28 March 2013 (UN Doc. S/RES/2098) to the United Nations Intervention Brigade in the Democratic Republic of Congo, a new-style UN “offensive” combat force, intended to carry out targeted operations to “neutralise and disarm” the M23 rebel group and other Congolese rebels and foreign armed groups. Similarly, the Council established by Resolution 2100 of 25 April 2013 (UN Doc. S/RES/2100) the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) which also has a robust mandate. 8 For a more general overview of the topic including use of force by UN missions see Karine Bannelier/Cyrille Pison (eds.), Le recours à la force autorisé par le Conseil de Sécurité: Droit et Responsabilité, 2014 and Jeremy Farrall/Hilary Charlesworth (eds.), Strengthening the Rule of Law through the UN Security Council, 2016 (forthcoming). 9 Especially if we count the resolutions granting an extension to the use of force mandates.

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the use of force in the territory of 16 different States, namely: Iraq, BosniaHerzegovina, Somalia, Rwanda, Haiti, Albania, the Central African Republic, Guinea-Bissau, Kosovo (Serbia), Timor-Leste, Afghanistan, Côte d’Ivoire, Zaire and the Democratic Republic of the Congo (DRC), Chad, Libya, and Mali.10 It is impossible to attempt here an assessment of the effectiveness of each one of these use of force mandates given by the UNSC. Indeed such a query would not only require a different kind of study and approach, but would also drive us away from what is intended to be a legal study. Suffice it to say that it seems to us that, despite several shortcomings, several of these resolutions have been effective in that they achieved all or at least some of the intended results. Indeed, in several of these cases where the UNSC authorised the use of force, the operating States did not use it as they were able to achieve the desired results by non-lethal means.11 The effectiveness of the system is also demonstrated by the increasing demand for more use of force mandates and, as we will see, the UNSC has been heavily criticised for its inability or unwillingness to resort to force in order to deal with some crises (such as the current crisis in Syria). This even led to some proposals to “bypass”, in one way or another, the Council in relation to the authorisation to use force. But before examining the possibility of use of force without UNSC authorisation (II.) we will focus on these 25 years of UNSC use of force mandates in order to identify the main legal problems raised (I.). I. Use of Force With UNSC Authorisation: Problems We will discuss here successively three of the main legal problems12 raised by the practice of the UNSC in relation to the use of force. _____________ 10

For some of these States multiple authorisations have been given for different cri-

sis. 11 One of the best examples is Operation Uphold Democracy, authorised by Security Council, Resolution 940 of 31 July 1994 (UN Doc. S/RES/940), which led to the removal of the military regime installed by the 1991 coup d’état that overthrew the elected President of Haiti Jean-Bertrand Aristide. Fearful of the prospect of an imminent US-led and UN- authorised intervention, the putschists stepped down and the military mission changed from an offensive operation to a peacekeeping operation. 12 For a discussion of several other issues see Danesh Sarooshi, The United Nations and the development of collective security: The delegation by the UN Security Council of its Chapter VII powers, 1999; Niels Blokker, Is the authorization authorized? Powers and practice of the UN Security Council to authorize the use of force by “coalitions of the able and willing”, EJIL 11 (2000), 552–554; Erica de Wet, The Chapter VII Powers of the United Nations Security Council, 2004; Linos Alexandre Sicilianos, Entre multilatéralisme et unilatéralisme: l’autorisation par le Conseil de sécurité de recourir à la

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1. The Problem of the Legal Basis The UN Charter does not expressly provide for a system of authorisation to use force. Article 42 of the UN Charter provides, in a general way, for the possibility to take military action,13 but normally such military action should be carried out by armed forces made available to the UN pursuant to Articles 43 et seq.14 under the command of the Military Staff Committee provided for by Article 47.15 The initial idea of the drafters of the UN Charter was thus that the use of force should remain highly centralised and institutionalised and carried out by the UN itself. This was perfectly in conformity with the idea of collective security that the UN wanted to introduce after the failures of the League of Nations and the dramatic consequences of World War II.

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force, RdC 339 (2008); Bannelier/Pison (note 8); Farrall/Charlesworth (note 8); Marc Weller (ed.), The Oxford Handbook of the Use of Force in International Law, 2015, 179–464. 13 According to Art. 42: “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations”. 14 According to Art. 43: “1) All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. 2) Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. 3) The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes”. 15 According to Art. 47: “1) There shall be established a Military Staff Committee to advise and assist the Security Council on all questions relating to the Security Council's military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament. 2) The Military Staff Committee shall consist of the Chiefs of Staff of the permanent members of the Security Council or their representatives. Any Member of the United Nations not permanently represented on the Committee shall be invited by the Committee to be associated with it when the efficient discharge of the Committee's responsibilities requires the participation of that Member in its work. 3) The Military Staff Committee shall be responsible under the Security Council for the strategic direction of any armed forces placed at the disposal of the Security Council. Questions relating to the command of such forces shall be worked out subsequently”.

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It is well known that disagreements between Member States deprived the UN from the possibility of creating its own army under Articles 43–47. So when, in 1990, the Council wished to react strongly to the annexation of Kuwait by Iraq, the legal question raised was whether the UNSC was “disarmed” and unable to use military force because of the non-conclusion of the agreements provided for by Articles 43 et seq., or whether the Council could delegate the power to use force to decentralised agents, i.e. States acting under national command. When, in 1990, the UNSC clearly chose the second solution, Iraq protested strongly to the Council saying that “only collective action under the command and control of the UNSC, in coordination with the Military Staff Committee, can lead to the use of force against any country, and no individual Member State may be authorized to lynch a particular country for any reason”.16 Several arguments nonetheless were available in favour of the existence of an implied power of the UNSC to authorise the use of force by individual States. It was rather clear that the drafters of the UN Charter did not want the Council to remain powerless for “technical” reasons and unable to deal with a serious threat to international peace and security. Indeed, Articles 53, 106 and 48 of the Charter indicated that the “decentralisation” of a decision to use force was compatible with the Charter. The ICJ itself, in its 1962 advisory opinion in the Certain Expenses case, clearly opted for a flexible reading of the powers of the UNSC, responding to those who suggested a restrictive interpretation with regard to Peacekeeping Operations that The Court cannot accept so limited a view of the powers of the Security Council under the Charter. It cannot be said that the Charter has left the Security Council impotent in the face of an emergency situation when agreements under Article 43 have not been concluded.17

The existence and validity of a legal basis to authorise States to use force was thus never questioned as such since 1990. The practice of use of force mandates has in any case become, since then, so overwhelming and abundant that the legality of the system is beyond any doubt. The exact legal nature of the authorisations given nonetheless remained an interesting (although probably deprived of much practical interest) legal topic. While some scholars suggested that the authorisations were just a waiver given by the UNSC to some States from their obligation to respect Article 2 (4) of the

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167.

Mr. Al-Anbari, Iraq, in S/PV.2963, 29 November 1990, 21. ICJ, Certain Expenses of the United Nations, Advisory Opinion, ICJ Reports 1962,

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UN Charter,18 most scholars agreed that they constituted a system of delegation of military coercion to UN Member States.19 2. The Problem of Form A second major problem, raised during these last 25 years (and especially during the NATO bombing of Serbia in 1999 and the US/UK intervention in Iraq in 2003) concerned the form that a use of force mandate should take and, more specifically, the possibility of a presumed or post-facto authorisation. Without reopening here the entire debate about this topic, which has already been analysed extensively by some scholars,20 we should limit ourselves to a few remarks. The main arguments used in favour of the theory of presumed authorisation have been the following three. First, it has been argued (especially in relation to Operation Provide Comfort in Iraq in 1991 or the 1999 Kosovo intervention) that when the UNSC characterises, in a resolution, a situation as a “threat to the peace” and condemns a specific country for its actions, all States could have the right to undertake military action in order to put an end to this threat. Second, it has been advanced that the absence of condemnation by the UNSC of a military intervention is tantamount to tacit approval, an argument used especially in relation to NATO’s intervention against Serbia in 1999, when Russia failed to obtain from the UNSC a resolution condemning this intervention.21 Third, it has been argued that the authorisation could be given post-facto and, more precisely, that the fact that the UNSC was adopting resolutions after a military intervention in order to deal with a crisis without condemning this intervention should be considered as a retroactive authorisation. This argument was used, for example, in relation to Resolution 1244 (1999) concerning Kosovo, by which the Security Council approved the agreement between the belligerents without condemning NATO’s intervention, or in relation to Resolutions 1511 and 1546 (2003), adopted several months after the invasion of Iraq by the US and the UK. _____________ 18 See Jean Combacau, Le Chapitre VII de la Charte des Nations Unies: résurrection ou métamorphose?, in: R. Ben Achour/Slim Laghmani (eds.), Les nouveaux aspects du droit international, 1994, 157. 19 See Sarooshi (note 12). 20 See mainly: Olivier Corten/Francois Dubuisson, L’hypothèse d’une règle émergente fondant une intervention militaire sur une “autorisation implicite” du Conseil de sécurité, RGDIP 104 (2000), 878–84; Olivier Corten, Opération Iraqi Freedom: Peut-on admettre l'argument de l’ “autorisation implicite” du Conseil de sécurité?, RBDI 2003, 205–243; Olivier Corten, The Law Against War, 2010, 348–400. 21 A draft resolution presented by Russia was rejected by twelve votes to three. See S/PV.3989, 26 March 1999, 6.

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This “presumed authorisation” theory seems incompatible with the general principle of law according to which delegations of power between public persons cannot be presumed. It also seems contrary to the will of the drafters of the UN Charter. Indeed, it is impossible to maintain that the characterisation of a situation under Article 39 as a “threat to the peace” automatically confers a right of military action to end this threat to Member States. Indeed, the assertion by the Council of the existence of a “threat to the peace” is just a preparatory act entirely insufficient as such to authorise any military action. Similarly, pretending that the absence of condemnation is tantamount to tacit authorisation could have the absurd result of retroactively making lawful all the armed interventions that the Council was unable to condemn, such as the Cold War interventions of the USSR in Afghanistan, Hungary or Czechoslovakia, the US interventions in places such as the Dominican Republic, Grenada or Panama, several interventions by Israel, or the recent Russian interventions in Georgia or Crimea. But as Olivier Corten rightly recalls, the fact that the armed intervention of the US in Nicaragua was not condemned by the Security Council did not prevent the ICJ from holding this intervention unlawful in the Military and Paramilitary Activities case.22 The argument of post-facto authorisation is also problematic. First, nowhere in Resolutions 1244 (1999) or 1511 and 1546 (2003) was it said that the UNSC had any intention to retroactively authorise the military interventions against Serbia or Iraq. On the contrary, it is clear that the UNSC wanted to deal with the new situation created after these interventions which clearly constituted a threat to the peace and international security. The resolutions then could only have a legal effect ex nunc, not ex tunc. Moreover, it has been shown that during the debates in the UN, a vast majority of States rejected the idea of presumed or a posteriori authorisation.23 Finally, the theory of presumed or a posteriori authorisation could be a good recipe for chaos: if we accepted it, States could undertake military interventions without any legal basis, hoping that the UNSC would later legitimise the operation by a “presumed” or a postfacto authorisation (by not condemning the action and/or by dealing with the effects of the intervention which should be interpreted as a presumed approval of it). The result of such a theory could indeed be absurd: normally, if a State is victim of an armed attack by another State, it can defend itself against the aggressor by using the inherent right of self-defence codified in Article 51 UN Charter. But a “presumed” or post-facto authorisation given by the UNSC would mean that the initial armed attack was legal, retroactively transforming the State who acted in self-defence to an aggressor! _____________ 22 23

Olivier Corten, The Law Against War, 2010, 386. See the studies supra, note 20.

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The requirements of security and predictability in the international legal order thus lead us to conclude that normally the authorisation to use force should be given clearly and expressly by the UNSC at the beginning of a military operation and that the UNSC cannot normally provide retroactive and “presumed” letters of indulgence to intervening States. This was also the conclusion of the Institut de droit international, in its 2011 Rhodes Resolution, where it emphasised that “The lack of a Security Council reaction to or condemnation of the use of force not previously authorized may not be interpreted as an implicit or ex post facto authorization”.24 3. The Problem of Control25 As we have seen above, while the initial idea of the drafters of the UN Charter was to put in place a centralized, highly institutionalized system of collective security, the solution finally applied by practical considerations was to “decentralise” the use of force by giving use of force mandates to States or “coalitions of the willing”. This system of “delegation” of the power to use force to individual States or coalitions raises the risk of abuse or misuse of the collective security system. Indeed, powers such as the US, the UK or France and others that agree to take action on the basis of these Council resolutions often have direct interests to protect in the countries where they are intervening. There is thus a clear danger that some States might use the Council’s authorisation in these situations as a cover to achieve their own agenda and justify what would be otherwise an unlawful intervention and interference. However, in practice there is always a tension between the need for such an effective control of military operations, and the willingness of intervening States to benefit from maximum flexibility in order to perform a costly and often very dangerous mission.26 Binding’ the operating States by imposing a _____________ 24

IDI, Authorization of the Use of Force by the United Nations, Rhodes Resolution, Art. 13, available at http://justitiaetpace.org/resolutions_chrono.php?start=2009&end= 2015&lang=eng (accessed on 14 October 2015). 25 This section is an expanded version of our introduction in Karine Bannelier/Théodore Christakis, Between Flexibility and Accountability: How can the Security Council Strengthen Oversight of Use-of-Force Mandates?, in: Jeremy Farrall/Hilary Charlesworth (eds.), Strengthening the Rule of Law through the UN Security Council, 2015 (forthcoming). 26 See our analysis in Théodore Christakis/Karine Bannelier, Acteur vigilant ou spectateur impuissant? Le contrôle exercé par le Conseil de Sécurité sur les Etats autorisés à recourir à la force, RBDI 37 (2004), 498–528. See also Niels Blokker (note 12), 565: “Somewhat paradoxically, too little and too much control are the Scylla and Charybdis between which resolutions authorizing operations by ‘coalitions of the able and willing’ must sail”.

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form of rigorous control could be counterproductive: the volunteers could vanish and the UN could revert to precisely the same kind of inaction that stigmatised the Cold War years and relegated the organisation to a helpless spectator role during the genocide in Rwanda. The UNSC realised the problem and took note of the initital criticism regarding some aspects and failures related to the use of force mandates, and their effective control. This was reflected, for example, in a UNSC Presidential Statement dated 30 November 1998 concerning the need for accountability and enhanced Council procedures to monitor and assess the manner in which use of force resolutions are interpreted and implemented.27 For the subsequent years, the Council was struggling to balance the institutional requirement of centralisation and control and the functional necessity of decentralisation and flexibility. The Libyan crisis disrupted this delicate equilibrium within the Council. The modalities of interpretation of Council Resolution 197328 and implementation of Operation Unified Protector raised critical issues concerning compliance by the coalition of operating States with the Council’s mandate. Some States within the UN considered that “the Council’s mandate for conducting the operation in Libya was disregarded”,29 or that there was an “arbitrary interpretation of the Council’s resolutions”.30 Other States, like South Africa, talked about a “flagrant abuse of resolution 1973 [which] seriously undermined and damaged the reputation of R2P”31 while Cuba32 or _____________ 27

See UN Doc. S/PRST/1998/35, 30 November 1998, Statement by the President of the Security Council (addressing the agenda item “The situation in Africa”). 28 Security Council, Resolution 1973 of 27 March 2011 (UN Doc. S/RES/1973). 29 Position of Russia in S/PV.6620, 16 September 2011, 3; See also S/PV.6528, 4 May 2011, 9 or S/PV.6531, 10 May 2011, 9. 30 Position of China in S/PV.6528, 4 May 2011, 10; see also S/PV.6531, 10 May 2011, 21. 31 Statement By Ambassador Baso Sangqu, Permanent Representative of South Africa to the United Nations at the Informal Meeting Hosted by the Minister of External Relations of Brazil, 12 February 2012, available at http://cpdoc.fgv.br/relacoesinter nacionais/rwpbrazil/informaldebate (accessed on 14 October 2015). 32 “Right now, the overthrowing of governments through the use of force and violence is being blatantly encouraged; the ‘change of regime’ is being imposed from Washington and other NATO member countries' capitals, and conquest wars are being waged for the control of natural resources and strategically important areas”. Intervention of Cuba in the UN General Assembly as appears in Global Centre for the Responsibility to Protect, “The Responsibility to Protect and the 67th Opening of the UN General Assembly”, 4 October 2012, 50, available at http://www.globalr2p.org/media/files/ compilation_of_r2p_related_unga_2012_quotes.pdf (accessed on 14 October 2015).

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Venezuela33 talked about “imperialism” of the western powers. Even some States participating in the coalition, like Norway, emphasised that it was “essential that such mandates are implemented strictly to protect civilians and do not go beyond that”.34 Several scholars also concluded that “the NATO bombings clearly deviated from its original goal to protect the civilian population by actively supporting one side of the internal armed conflict between the National Transition Council and the Gaddafi dictatorship”.35 Motivated by these concerns, Brazil presented a concept note entitled “responsibility while protecting” (RWP) at the UN in November 201136, in order, inter alia, to advance proposals designed to limit the risk of abuse of a Council use of force mandate. While the RWP concept was initially welcomed by several countries in the UN, 37 it received a rather mixed and unenthusiastic reception from several Western countries who expressed the fear that the

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“The same interventionist script applied in Libya is being followed in Syria. Imperial powers stir up ethnic, political and religious divisions between the Syrians and between neighbouring countries. They supply, perkily, weapons to rebel forces trying to overcome the government of that Arab country. Venezuela supports the peace efforts made by the Special Envoy of the Secretary General of the UN, Lakhdar Brahimi. We encourage the political dialogue between the Syrians. We reject foreign intervention and the terrible policy of regime change. We support the positions of Russia, China and other countries that, at the Security Council, call for the unity and territorial integrity of the Syrian State. The Non-Aligned Movement (NAM) can play a proactive role in overcoming this crisis.” Intervention of Venezuela in the UN General Assembly in 2012 as appears in Global Centre for the Responsibility to Protect, “The Responsibility to Protect and the 67th Opening of the UN General Assembly”, 4 October 2012, 33, available at http://www.globalr2p.org/media/files/compilation_of_r2p_related_unga_2012_quotes. pdf (accessed on 14 October 2015). 34 S/PV.6531 (Resumption 1), 10 May 2011, 13. 35 Marcelo Kohen, The Principle of Non-Intervention 25 Years After the Nicaragua Judgment, LJIL 25 (2012), 157, 162. See also for example: Olivier Corten/Vaios Koutroulis, The Illegality of the Military Support to the Rebels in the Libyan War: aspects of jus contra bellum and jus in bello, JCSL 18 (2013), 59–77 and Mehrdad Payandeh, The United Nations, Military Intervention, and Regime Change in Libya, VJIL 2012, 355–403. 36 Responsibility while protecting: elements for the development and promotion of a concept, UN Doc. A/66/551–S/2011/701 (11 November 2011), Letter dated 9 November 2011 from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-General. 37 For a presentation of Governments’ (and NGOs’) statements see the website of the Global Centre for the Responsibility to Protect (http://www.globalr2p.org/about_r2p) or the website ICRtoP: http://www.responsibilitytoprotect.org/index.php/component/con tent/article/35-r2pcs-topics/4002-informal-discussion-on-brazils-concept-of-responsibility -while-protecting (both accessed on 14 October 2015).

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Brazilian proposals could lead to the institutionalisation of “inaction”.38 In nonWestern countries, the concept of RWP originally received a fairly warm welcome but a certain mistrust was later progressively installed. The initial enthusiasm of South Africa and India gave way to scepticism while China and Russia did not hesitate to express their strong reservations. The latter probably thought that the concept of RWP, by proposing a series of “checks and balances”, could grant new legitimacy to the R2P and could thus weaken Russia’s opposition to the use of force in cases like Syria.39 II. Use of Force Without UNSC Authorisation? As we have seen, the UNSC has resorted many times to the system of use of force mandates which has been used as a major tool in order to restore and maintain peace and security since 1990. The Council has sometimes been criticised for its unwillingness to authorise the use of force in order to deal with some crises. This has mainly been the case during these last four years in relation to the situation in Syria. Indeed, some States, and especially the US, France and the UK wanted to intervene against the Bachar El-Assad government of Syria in September 2013 and criticised the UNSC for its unwillingness to authorise such intervention (especially taking into consideration the strong opposition and veto power of Russia and China). In this case, like in previous similar cases when some super-powers tried unsuccessfully to get UNSC backing for military intervention (for example during the 1999 NATO-led campaign and the 2003 Gulf war), several voices were raised about a possibility to “bypass” the UNSC (2.) or to bypass, at least, the veto power within the Council (3.). But before discussing these proposals, we will examine some situations where the existence of an alternative legal basis renders a military intervention without UNSC perfectly legal (1.). 1. The Existence of Another Legal Basis It goes without saying that military intervention can be legal despite the absence of a UNSC authorisation when another legal basis exists to justify such intervention. In such cases the interaction between the alternative legal basis and the role of the UNSC could be particularly interesting. _____________ 38 See Statement by Ambassador Herman Schaper, available at http://www.responsibil itytoprotect.org/index.php/component/content/article/35-r2pcs-topics/4002-informal-discus sion-on-brazils-concept-of-responsibility-while-protecting (accessed on 14 October 2015). 39 For more details on this debate, see Théodore Christakis, L’encadrement juridique des autorisations et le concept de Responsibility while Protecting, in: Bannelier/Pison (note 8), 143–145.

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The UN Charter itself provides for such a hypothesis in Article 51 where it is clearly recognised that “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security”. The article adds that “[m]easures taken by Members in the exercise of this right of selfdefence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”. This central role of the UNSC in connection with the exercise and the control of the right of selfdefence raised some important questions in the past and has already been discussed in legal scholarship.40 Less attention has been given by legal scholarship to the role of the UNSC in relation to another legal basis for military intervention, namely intervention on invitation or consent. It is widely recognised that, if valid consent has been given by a representative and a still effective government, intervention by invitation is normally legal, although it could be unlawful when the objective of this intervention is to settle an exclusively internal political strife in favour of the established government which launched the invitation.41 It is precisely this legal basis that was advanced by France in January 2013 for its military intervention in Mali. Responding to an urgent request by the authorities of Mali, France launched “Operation Serval” against several terrorist armed groups in January 2013. The French troops were assisted by a Chadian contingent and by forces progressively deployed by other African countries within a UNSC-authorised African force (Resolution 2085). As we have shown elsewhere,42 this intervention was clearly legal because on the one hand, the request was validly formulated by the internationally recognised government of Mali and, on the other hand, its legitimate purpose was to fight terrorism. What is very interesting though is the role of the UNSC in this case. The UNSC followed the Malian crisis very closely from the beginning, dedicating several formal or informal meetings to it. It used the whole range of acts available in its toolbox, adopting several resolutions, presidential _____________ 40

Christine Gray, International Law and the Use of Force, 3rd ed. 2008, 98 et seq. See our study Théodore Christakis/Karine Bannelier, Volenti non fit injuria? Les effets du consentement à l’intervention militaire, AFDI 2004, 102–138 where we argue that the principle of self-determination could impose some limits to the principle volenti non fit injuria. 42 Karine Bannelier/Théodore Christakis, Under the UN Security Council’s Watchful Eyes: Military Intervention by Invitation in the Malian Conflict, LJIL 26 (2013), 855– 874. 41

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statements and “press statements”. But despite all this presence and activity of the UNSC, the French military intervention in Mali took place without a clear authorisation by the Council. The UNSC was “there”, overseeing the events and “welcoming the swift action by the French forces”, but did not rush to replace the unilateral legal basis of the intervention (request of the Malian authorities) with a clear, multilateral use of force mandate. The UNSC approved this legal basis of intervention by invitation and “helped” France and Chad appeal validly to it by listing the enemy as “terrorist groups”. It gave its “blessing” to these interventions without authorising them and observed the events with relief. The adoption of Resolution 2100 on 25 April 2013 raised new legal questions. The Council created a UN peace enforcement mission in Mali, MINUSMA, which received a robust use of force mandate. Created just a few weeks after the DRC “Intervention Brigade”, this force was just another sign of an ongoing evolution in UN peacekeeping, notwithstanding the assurances by some UNSC Member States that MINUSMA will avoid “offensive counter-terrorism operations”. Resolution 2100 gave a restricted use of force mandate to France (to protect MINUSMA), without challenging the legal validity of intervention by invitation for all other missions. All this led to an interesting and original combination of legal justifications for the use of force by foreign States in Mali, some of them acting on the basis of the consent of the Malian authorities (with the informal praise of the UNSC) and others on the basis of UNSC authorisation (with the applause of the Malian government). From this point of view the foreign military intervention in Mali was a unique blend of UNSC blessing and authorizing.43 2. Bypassing the UNSC? While the UNSC has used the power to authorise force several times, in some cases like the ones mentioned above (Kosovo in 1999, Iraq in 2003 or Syria since 2011) the UNSC was unwilling or unable (because of a veto threat) to do so despite the willingness of some States to obtain such a use of force mandate. This led to recurring discussions about the “failure to act” of the UNSC44 and the possibility to obtain such an authorisation by the UNGA or to pass through an authorisation given by a regional security organisation such as NATO or the African Union.

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We have discussed in detail all these questions in ibid. For a recent synopsis see Ian Johnstone, When the Security Council is divided: Imprecise authorizations, implied mandates, and the “unreasonable veto”, in: Marc Weller (ed.), The Oxford Handbook of the Use of Force in International Law, 2015, 227–250. 44

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The main argument used in all these cases was that the UNSC was “failing” in its responsibilities under the UN Charter to maintain peace and security and thus alternative solutions should be possible. As the French Minister of Foreign Affairs Laurent Fabius wrote in October 2013 in relation to the Syrian crisis: “If we do not wish to lose our legitimacy, we must learn from the recent blockages …”.45 The concept of “Responsibility to Protect” was also often used in order to argue that the UNSC was not playing its role and to call for military interventions. If we take a closer look, nonetheless, we realise that the UN Security Council has intervened in many conflicts since 1990, authorising the use of force in order to react to atrocities and human rights violations.46 There is thus no recurrent problem or unwillingness to act and other explanations could be given for these few cases where the UNSC refused to give such an authorisation, including the explanation that for some States it was not necessarily appropriate to give the use of force mandate requested by some Western States. Without recalling here the debates that preceded the 2003 US and UK intervention in Iraq (where France itself was strongly opposed to this intervention …), we could limit ourselves to the current crisis in Syria. Indeed, the “blockage” in the case of Syria was not due to a structural paralysis within the UN. It was due to the fact that several States (and not only Russia and China) did not share the French or American view about the necessity to intervene in favour of the Syrian rebels and against Bashar El-Assad. One could share or regret this position and also put in parallel with the ongoing military strikes by several States including the US, France and Russia against one of the major enemies of Bashar El-Assad, ISIS. But in any case, nowhere in the UN Charter is it written that the UNSC has an obligation to always share the political approach, assessment and will of some States and respond positively to all their requests for use of force authorisation. Indeed, in the mind of the drafters of the UN Charter, the UNSC should be an organ of dialogue, exchange of views and respect of multiculturalism. The 2003 intervention in Iraq by the US and the UK (an intervention that led to no discovery of any weapon of mass destruction but that deeply and lastingly destabilised that country and the region47) showed that the reluctance to authorise force by some States within the UNSC could sometimes be wiser than presented. Last but not _____________ 45

See infra, note 62. This was the case, for example, in Somalia (1992), Bosnia (1993), Rwanda (1994), East Timor (1999), the Ivory Coast (2003), Libya (2011) or the Democratic Republic of the Congo (2013). 47 See Peter Bergen, Bush’s Toxic Legacy in Iraq, 16 June 2014, available at http://edition.cnn.com/2014/06/13/opinion/bergen-iraq-isis-bush/index.html (accessed on 14 October 2015). 46

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least, as Gareth Evans, one of the architects of the Responsibility to Protect concept, rightly observed, the lack of will of some non-Western States to authorise use of force against the Syrian Government is also due to the fear of abuse by Western States of an eventual UN use of force mandate – as has happened, according to the BRICS, in the case of Libya.48 Putting aside these observations and moving back to the legal field, we should first answer to the question if the UNGA could authorise the use of force instead of the UNSC under the famous “Uniting for Peace”49 Resolution. This is a theme that occasionally comes back to legal debate in a Phoenix-like way. Indeed, several scholars took the position that this is possible50 and even the Brazilian document on RWP agreed with that.51 Nonetheless, as Olivier Corten has demonstrated, this argument is extremely problematic and, indeed, there is neither opinio juris52 nor any practice53 to sustain the argument that there is such a new exception to the prohibition of the use of force under Article 2 (4) of the UN Charter.54 _____________ 48 See Gareth Evans, The Responsibility to Protect After Libya and Syria, address to Annual Castan Centre for Human Rights Law Conference, Melbourne, 20 July 2012, available at http://www.gevans.org/speeches/speech476.html and Gareth Evans, Responsibility While Protecting, January 2012, available at http://www.project-syndica te.org/commentary/responsibility-while-protecting (both accessed on 14 October 2015). 49 General Assembly, Resolution 377 (V) of 3 November 1950 (UN Doc. A/RES/377 (V)), A 1 (votes: 52-5-2). 50 Most recently Nigel White, The relationship between the UN Security Council and General Assembly in matters of International Peace and Security, in: Weller (note 44), 293–313. 51 See supra, note 36. According to para. 11 (c) of the Brazilian document: “The use of force, including in the exercise of the responsibility to protect, must always be authorized by the Security Council, in accordance with Chapter VII of the Charter, or, in exceptional circumstances, by the General Assembly, in line with its resolution 377 (V)”. 52 Revisiting the debates on the topic, Corten (note 22), 333 et seq. shows that the possibility of an authorisation to use force granted by the General Assembly has never been accepted by Member States as a whole in the texts laying down principles. 53 Corten shows that no precedent is known where the General Assembly has claimed to authorise a use of force: Corten (note 22), 332–333. Even the “Uniting for Peace” resolution “does not confer on the General Assembly any general competence to decide on or authorise military action”. See his analysis in ibid., 330 et seq. Contra: White (note 50), 312, concluding that “[t]hough actual practice by the General Assembly in recommending that states take military action is extremely limited […] the Assembly has the power to make such recommendations, to combat threats to the peace as well as breaches and acts of aggression”. 54 Contra: White (note 50), 311, considering that if such an exception exists for the UNSC, it also exists for the UNGA. According to him: “The question of which organ within the UN authorizes [military action] is an internal issue and does not affect the legitimacy of UN action vis-à-vis transgressing state”.

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The argument that the authorisation could be given by a regional security organisation is even more problematic. Article 53 (1) UN Charter makes it very clear that: The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.55

The “ordinary meaning” to be given to the terms of Article 53 (1) thus leaves no doubt that military action carried out under regional organisations schemes must be authorised by the UNSC (or find another legal basis, such as collective self-defence or valid consent). The same could be said about the “object and purpose” of Article 53: the will of the drafters was clearly to ban unilateral military interventions by States or regional organisations and to put in place instead a system of collective security under the authority of the UNSC. A review of the preparatory works also confirms that Article 53 (1) was “deliberately drafted in such plain terms”.56 The subsequent practice and opinio juris of States does not seem to indicate the emergence of a new interpretation of Article 53 (1). As Olivier Corten shows, there are very few precedents where regional organisations invoked the right to undertake military intervention without a UNSC authorisation – and most of the UN Member States rejected this argument. Furthermore, in several debates within the UN States have constantly reaffirmed the system laid down by Article 53 (1).57 Concerning the legal developments within regional organisations, the example of the African Union (AU) is particularly interesting. In the beginning of the last decade, the AU abandoned its policy of non-interference in Member States and adopted a Constitutive Act allowing it to intervene in times of crisis. A protocol to the Constitutive Act (in force since December 2003) created the AU Peace and Security Council (PSC) as a collective security and early warning arrangement to facilitate timely and effective responses to conflict and crisis situations in Africa. The Constitutive Act and the PSC Protocol together provide extensive powers of intervention. Article 4 (h) of the Constitutive Act provides for “the right of the Union to intervene in a Member State [...] in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity”. In addition, Article 4 (j) allows Member States to request AU intervention “in order to restore peace and security”. A 2003 Protocol, not yet in force, could introduce “a serious threat to legitimate order” into the _____________ 55

Emphasis added. Corten (note 22), 336. 57 Ibid., 336–348. 56

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category of “grave circumstances” under which intervention can be taken under Article 4 (h). These texts initiated a heated debate concerning the power of the AU to undertake military intervention without the UNSC authorisation required by Article 53 of the UN Charter. Some scholars took the position that “the African regional organizations by custom have the authorization to engage in firstinstance enforcement actions unless and until the Council takes seizin”.58 Others went as far as to suggest that the AU had not only the right but also “a legal duty” to intervene in cases of war crimes, genocide and crimes against humanity.59 On the other side of the spectrum, several scholars rejected the idea of regional military intervention without UNSC authorisation. For them the combined action of jus cogens and Article 103 of the UN Charter leave no place for “regional derogations” from the requirements of Article 53. As for State practice and opinio juris, they do not confirm the emergence of a new custom.60 It is interesting to note, nonetheless, that the effort to claim a right to military intervention for the AU without UNSC authorisation seems not only doubtful from a legal point of view, but also disconnected from practice. Indeed, during several important recent conflicts in Africa the problem was not the absence of UNSC authorisation to use force – but instead the fact that the African organisations were either unwilling or unable to intervene.61 3. Suspending the Right of Veto? We have just seen that “bypassing” the UNSC by relying on an authorisation given by another organ seems legally problematic. This is the reason why it has sometimes been suggested that the best solution to a potential deadlock in the UNSC could be to abolish or suspend the right of veto. This way the UNSC would remain the organ invested with the power to authorise the use of force, but without being blocked by a potential veto of one of the Permanent Members (P5). Several proposals in this direction have been presented during these last 25 years. We will only focus here on one of the most important, _____________ 58

Suyash Paliwal, The Primacy of Regional Organizations in International Peacekeeping: The African Example, VJIL 51 (2010–2011), 220. 59 Ntombizozuko Dyani-Mhango, Reflections on the African Union’s Right to Intervene, Brook. JIL 38 (2012), 1. 60 For example Olivier Corten, L’Union africaine, une organisation régionale susceptible de s’émanciper de l’autorité du Conseil de sécurité? Opinio Juris et pratique récente des Etats, ESIL Conference Paper No. 11/2012, available at http://ssrn.com/abstract= 2193756 (accessed on 14 October 2015). 61 See Théodore Christakis, The Emperor Has No Clothes? The Secondary Role of African Regional Organizations in Recent Armed Conflicts in Africa, in: ASIL Proceedings, 2013.

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which was the French October 2013 proposal for a “voluntary suspension” of the right to veto by the P5 in the event of “mass crimes”. This proposal was advanced by France in the context of the Syrian crisis. It is interesting to recall that in 2003 France received applause from many States and public opinion worldwide when it opposed the US intervention in Iraq without UN Security Council authorisation. Ten years later, nonetheless, in a paradoxical repetition of the arguments used by the US in 2003 (when France was the source of the UN stalemate), France denounced the “deadlock” in the UN Security Council in relation to Syria. This happened after the horrific use of chemical weapons in Syria in September 2013. France first proclaimed its desire to break free from the jus contra bellum rules and attack Syria without authorisation from the UN Security Council. Constrained by reality to desist from this military option, the French President submitted to the UN General Assembly a proposal of “voluntary suspension” of the right to veto by the five permanent members of the Security Council that would apply at the occurrence of “mass crimes”. The project was explained by the French Minister of Foreign Affairs in an op-ed in the New York Times. According to him: The suggestion is that the five permanent members of the Security Council themselves could voluntarily regulate their right to veto. The Charter would not be amended and the change would be implemented through a mutual commitment from the permanent members. In concrete terms, if the Security Council were required to make a decision with regard to a mass crime, the permanent members would agree to suspend their right to veto. The criteria for implementation would be simple: at the request of at least fifty Member States, the UN Secretary-General would be called upon to determine the nature of the crime. Once he had delivered his opinion, the code of conduct would immediately apply. To be realistically applicable, this code would exclude cases where the vital national interests of a permanent member of the Council were at stake […] a change such as this, so simple to implement, would allow us to preserve the fundamental credibility of the Security Council, which should be a pillar of peace and stability. It would convey the will of the international community to make the protection of human life a true priority. It would restore the power of discussion and constructive negotiation. It would avoid States becoming prisoners of their own principled positions.62

France announced in September 2015 that it had received the support of 70 Member States for this proposal.63 But while this proposal is interesting, it remains dubious from several points of view.

_____________ 62 The transcription can be found here: http://www.diplomatie.gouv.fr/en/french-for eign-policy/united-nations/events/events-2013/article/suspending-the-right-to-veto-in (accessed on 14 October 2015). 63 See Security Council Report, October 2015, 3.

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The French Minister explained that the “Charter would not be amended and the change would be implemented through a mutual commitment from permanent members”. This could lead to legal confusion: either the P5 accept to undertake a binding legal commitment to suspend their right to veto in the case of mass crimes, in which instance there will be an amendment to the Charter (even if it is an informal one); or their “commitment” will be solely political, in which situation a veto will remain a legal possibility. The criteria for implementation suggested by France are also problematic. At the request of at least 50 Member States, the UN Secretary-General would be called upon to determine the nature of the crime – and then the 15 members of the UN Security Council could adopt measures (including the use of force) without the threat of a veto. This proposition raises serious legal and political difficulties in relation with the role and functions of the Secretary-General who, according to the UN Charter, is just an administrative authority. Taking into consideration his powers under the Charter, it is thus more than doubtful that the SecretaryGeneral would be legally able to take such an important decision to preclude the use of a right to veto by a permanent member. Of course, it is perfectly possible to change the system and to empower the Secretary-General to exercise such a function. However, this would obviously require a formal modification of the Charter, which could be very hard to achieve – especially taking into consideration the incapability of UN Members to proceed to the reform of the UNSC despite decades of talks. In addition to this legal obstacle, one might wonder what would be the political consequences of such a fundamental change, particularly with respect to the desired neutrality of the “chief administrative officer” of the Organisation. The implementation of the French proposal would inevitably oblige the Secretary-General to take sides in severe political conflicts between the P5 (Syria is a very good example of this …). One could thus reasonably expect the appointment of the Secretary-General under the procedure of Article 97 of the UN Charter to become a real “mission impossible”. Beyond all this, would it not be more logical to entrust such a mission to the International Court of Justice, the primary judicial organ of the UN? Or at least to the UNGA, which is the most representative and democratic structure within the UN? According to the French proposal, the only possibility for the General Assembly to play a role in this process would be to organise a debate leading to the possible request by fifty States to trigger the procedure. Taking into consideration that, in order to be effective, the French proposal would necessarily require (contrary to what France wishes) an amendment of the UN Charter, it would seem more appropriate to enlarge the powers of the UNGA than those of the Secretary-General. This could indeed permit to “heal” the

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legal weaknesses mentioned above in connection with the Uniting for Peace Resolution and to give the legal power to the UNGA to also be able to resort to use of force mandates. From a democratic point of view, but also from an “effectiveness” point of view (in order to avoid potential inaction and unwillingness to act by the UN Secretary-General), it seems much more appropriate to give the power to decide military action to the majority of States within the UNGA. This is not necessarily a wise solution in relation to the existing system, but it is certainly more democratic than the one proposed by France which intends to invest a single person and administrative body with such huge responsibilities. Last but not least, the French proposal to exclude from this mechanism “cases where the vital national interests of a permanent member of the Council were at stake” also creates a lifting of the shields, especially if we consider the historic abuses and misuses of the concept of “vital national interests” of States. Moreover this brings us, in reality, back to square one: who will decide if the “national interests of a permanent member of the Council are at stake”? Each of the P5? But this would mean that the current situation is not really modified: it would be enough for one of the P5 to invoke its “vital national interests” in order to prevent the use of force by the UNSC. Which means that we go back to a veto power by other means, merely using different terminology … As a conclusion, while the French proposal provides some food for thought, we are not convinced that a “change such as this” is “so simple to implement”, as France has suggested. In reality there are very slim chances that this proposal will be adopted.64 Probably, then, while waiting for a more profound reform of the UNSC (a reform that States have failed to accomplish for decades now), it would be more useful to try to advance some practical proposals about how to improve the current system of UNSC authorisations.

C. The Way Forward: How Could the UNSC Improve the System of Use of Force Mandates? During these last 25 years several proposals have been advanced in order to improve the system of collective security and strengthen oversight and control of use of force mandates.65 We will first examine some proposals aimed at _____________ 64

Russia strongly opposes for example the French proposal. See http://www.theguardi an.com/world/ng-interactive/2015/sep/23/un-security-council-failing-70-years (accessed on 14 October 2015). 65 This part builds upon three previous studies we have undertaken and mainly: Karine Bannelier/Théodore Christakis, Between Flexibility and Accountability: How can the Security Council Strengthen Oversight of Use-of-Force Mandates?, in: Jeremy

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better defining the scope and the duration of the use of force mandates (I.), then we will focus on some proposals aimed at better controlling the operating States (II.). I. Measures Aimed at Better Defining the Scope and the Duration of the Mandate 1. Dealing with Vagueness and Referrals The UN Security Council has sometimes been accused of using vague and open-ended expressions which fail to clearly specify the objectives of use of force missions. Criticism started already with Resolution 678 (1990)66 which authorised UN members “to use all necessary means […] to restore international peace and security” after the invasion of Kuwait by Iraq – a very general mandate that created a lot of problems of interpretation. As a result of this vagueness in the use of force mandates, several voices within the UN were raised in order to request that the authorisations for the use of force must be clear and limited in scope with a statement of the specific objectives to be achieved.67 This was also acknowledged by the UNSC itself in the 1998 Presidential Statement.68 Similarly, the Institut de droit international, in its 2011 Rhodes Resolution, emphasised that “[i]n authorizing the use of force, the Security Council should specify the objectives, scope and modes of control of any measure taken pursuant to that authorization”.69 _____________

Farrall/Hilary Charlesworth (eds.). See also: Strengthening the Rule of Law through the UN Security Council, 2015 (forthcoming); Karine Bannelier/Théodore Christakis, Strengthening Oversight of Use of Force Mandates by the UN Security Council: A Set of 9 Proposals, Working Paper, The UNSC, Force and the Rule of Law, ANU Centre for International Governance & Justice and Australian Civil-Military Centre, June 2013, available at http://regnet.anu.edu.au/research/publications/2723/working-paper-no-81strengthening-oversight-use-force-mandates-un (accessed on 14 October 2015); and Christakis/Bannelier (note 26). For another recent view on the same topic see Niels Blokker, Outsourcing the use of force: Towards more Security Council control of authorized opeations?, in: Weller (note 44), 202–226. 66 Security Council, Resolution 678 of 29 November 1990 (UN Doc. S/RES/678)). 67 See for example, “Responsibility while protecting: elements for the development and promotion of a concept” (note 36): “The authorization for the use of force must be limited in its legal, operational and temporal elements”. 68 UN Doc. S/PRST/1998/35, 30 November 1998, Statement by the President of the Security Council: “operations should have a clear mandate, including a statement of objectives”. 69 IDI, Authorization of the Use of Force by the United Nations, Rhodes Resolution, Article 2, available at http://justitiaetpace.org/resolutions_chrono.php?start=2009&end= 2015&lang=eng (accessed on 14 October 2015).

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As a response to these reactions, the UNSC sometimes tried to better define the madates of use of force,70 but often its resolutions remained vague.71 For instance, the use of force mandate given by Resolution 1264 (1999) to “restore peace and security in East Timor”, used almost exactly the same terminology used in Resolution 678. More recently, the case of Resolution 1973 (2011) concerning Libya showed that even when the Council gives a more precise mandate,72 operating states could still use different arguments in order to interpret this mandate in an extensive way. Problems of interpretation were also raised in some cases where the UNSC, instead of specifying clearly and precisely in what situations and for what reasons operating States are authorised to use force, referred to preexisting texts in order to provide an answer to these questions. Resolutions 1031 (1995) and 1088 (1996) on Bosnia-Herzegovina, for instance, did not directly define what was to be the mandate of the multinational military Implementation Force (IFOR), referring instead to “annex 1-A” of the Dayton Peace Agreement. It was thus necessary to read this long annex in order to deduce in which cases use of force is authorised. Similarly, in the case of Resolution 1546 (2004)73 concerning Iraq, the UNSC did not specify with precision the use of force mandate given to the US, but referred for this to two letters annexed to this resolution and especially to the one by the US Secretary of State himself. _____________ 70

In the first use of force mandates given after Resolution 678, for example, the Council only authorised the use of force in order to achieve very specific objectives: “to facilitate the delivery of humanitarian assistance” in Sarajevo and wherever needed in other parts of Bosnia Herzegovina (Resolution 770 of 13 August 1992 (UN Doc. S/RES/770), para. 2) or to “establish as soon as possible a secure environment for humanitarian relief operations in Somalia” (Resolution 794 of 3 December 1992 (UN Doc. S/RES/794), para. 7). In a series of other resolutions the UNSC only gave a use of force mandate to States “to ensure the security and freedom of movement of the personnel” of a multinational protection force operating in a specific country. See for example Resolution 1101 of 28 March 1997 (UN Doc. S/RES/1101), para. 4 concerning the situation in Albania; Resolution 1125 of 6 August 1997 (UN Doc. S/RES/1125), para. 2 concerning the situation in Central African Republic; or Resolution 1216 of 21 December 1998 (UN Doc. S/RES/1216), para. 4 concerning the situation in Guinea-Bissau. 71 For instance, the use of force mandate given by Security Council, Resolution 1264 of 15 September 1999 (UN Doc. S/RES/1264), para. 3 was given in order to “restore peace and security in East Timor” – using once again the terminology used in S/RES/678. 72 Security Council, Resolution 1973 of 17 March 2011 (UN Doc. S/RES/1973) authorises States “to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory” (para. 4) and “to take all necessary measures to enforce compliance with the ban on flights” (para. 8). 73 Security Council, Resolution 1546 of 8 June 2004 (UN Doc. S/RES/1546).

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This technique of “referrals” thus appears rather problematic. The UNSC should try to introduce the precise scope of the use of force mandate in the resolution itself and avoid the impression of giving a carte blanche to the intervening State (who might sometimes be suspected, as we have seen, of trying to promote its own unilateral agenda under the cover of UN authorisation). The Council cannot “abdicate” its collective security powers by giving carte blanche to intervening powers to do “as they wish” following a process of self-definition of their mission and authority to use force. At the same time, while it is perfectly understandable that, in some cases, the UNSC could decide, for several reasons, to give a broader mandate, it should still try to define the objectives and scope of the use of force mandates in the most precise way. 2. Black Holes and Sunset Clauses The Council should always be able to intervene in order to clarify, amend or revoke an authorisation in case of conflicting interpretation, abuse, or other problems.74 However, when the UNSC gives a use of force mandate under Chapter VII, there is a real risk for the Council to enter into a kind of “black hole”:75 the refusal (veto) of a permanent member to authorise a modification of a Chapter VII resolution could result to an impossibility to “get out” of the authorised action and to an incapacity of the UNSC to terminate or amend the mandate. This is the problem of the “reverse veto”. The best way to deal with this risk is by always including a sunset clause that fixes a date on which the authorisation will expire. This is enough in order to avoid the “black hole” effect of Chapter VII. But this solution also presents two other advantages. On the one hand by clearly fixing an “expiration” date, it permits to avoid any misunderstandings about the eventual continuing existence of an authorisation several years after its issuance.76 On the other hand, such sunset clauses can enhance the system of control of use of force mandates by the UNSC because it logically requires the UNSC to periodically assess the _____________ 74

For a detailed analysis of the mechanisms of amendment or termination of UNSC authorisations, see Christakis/Bannelier (note 26), 519–526. 75 See Théodore Christakis, L’ONU, le Chapitre VII et la crise Yougoslave, 1996, 145–149. See also Editorial: A Black Hole in the System of Collective Security, JCSL 16 (2011), 415–416. 76 We can recall, for example, the argument used by the US and the UK in 2003 that the authorisation to use force against Iraq given by Resolution 678 in 1990 still remained valid 13 years later. The IDI (note 69), Art.10, concluded in 2011 that “in no case may a previous authorization be invoked for any purpose beyond its specific objectives, time and scope”.

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evolution of the situation in order to decide whether the mandate ought to be extended, modified or terminated. The UNSC gave the impression, for several years, of having understood the necessity of such a sunset clause. Indeed, to our knowledge, between 199477 and 2011 all use of force resolutions included such a duration clause.78 The only exception to this practice was Resolution 1973 (2011) on Libya which set no deadline of expiration. This was evidently due to the fear of participating Western States that the authorisation might expire before achievement of the military goals in Libya. In a more general way, one could think that the practice of sunset provisions could also have some disadvantages. Such a potential disadvantage could be the reluctance of States to accept future UNSC missions and engage their troops on the field, fearing that they will have to bear the economic and political costs of a potential future termination of the mandate: flying the troops and military material to often very distant places costs a lot of money – and operating States and their public opinion could hardly understand why the UNSC asks, immediately afterwards, to withdraw them … They could also not understand a situation where the UNSC later modifies a use of force mandate in such a way that the mission becomes more costly, complicated and riskier for the State. Such potential disadvantages are, nonetheless, perfectly manageable. Use of force mandates are generally given by the Council on the basis of unanimity – or consensus among its members, and thus the risk of an “unjustified” modification or termination of the mission seems very limited. Indeed, in none of the situations for which the UNSC introduced sunset clauses with expiration delays since 1994 such a problem appeared, the Council constantly renewing the mandates for new periods. The example of the French “Operation Licorne” authorised to use force in Cote d’Ivoire by Resolution 1464 of 4 February 2003 and periodically renewed without any difficulty comes immediately to mind. In conclusion, the advantages of the practice of expiration dates (enabling a constant control of the operation by the Council and establishing mutual trust between member States) clearly override the potential disadvantages. The Council should thus respect the requirement of introduction of such sunset clauses in use of force resolutions.

_____________ 77 Security Council, Resolution 929 of 29 June 1994 (UN Doc. S/RES/929) concerning Rwanda. 78 Generally the period of authorisation is either 6 or 12 months but this could vary depending on the circumstances.

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II. Measures Aimed at Better Controlling the Operating States 1. Avoiding Ultra Vires Acts A basic principle governing delegation of powers in general and authorisation to use force in particular is that the delegate cannot act ultra vires.79 This means that the discretionary power of the States authorised to use force only exists as far as these States remain within the framework fixed by the act of delegation.80 As the Brazilian document on RWP stated, “the scope of military action must abide by the letter and the spirit of the mandate conferred by the Security Council”.81 Similarly, the Institut de droit international, in its 2011 Rhodes Resolution, said that “the objectives, scope and modes of control of each authorization should be strictly interpreted and implemented”.82 But while this is of course very desirable, several difficulties arise in practice. First, we have already seen that sometimes the use of force mandates given by the UNSC are vague and open-ended, which makes it tough to “strictly interpret” them. Second, intervening States authorised to use “all necessary means” or “to take all necessary measures” to accomplish a mission enjoy a large margin of discretion in order to implement the UNSC mandate. Although necessity implies that they should “not do more” than what is “necessary” in order to implement a Council resolution, their discretion is important. Indeed, the case of intervention in Libya demonstrated that even when the UNSC tries to define the use of force mandate with precision, there can be enough room for interpretation of the “necessary means” that intervening States may use in order to implement it.83 Last but not least, a major question is who is entitled to interpret the UNSC resolutions and decide that operating States have acted ultra vires. Without _____________ 79

See for example Sarooshi (note 12), 165; Philippe Lagrange, La sous-traitance de la gestion coercitive des crises par le Conseil de sécurité des Nations Unies, Thèse de doctorat, Université de Poitiers, 1999, 432 et seq. 80 Bannelier/Christakis (note 25). 81 Supra, note 36, para. 11 (d). 82 Supra, note 69, Article 2. 83 Security Council, Resolution 1973 of 27 March 2011 (UN Doc. S/RES/1973), para. 4. Gave mandate to intervening States “to take all necessary measures […] to protect civilians and civilian populated areas under threat of attack”. The coalition read its mandate as authorising bombings not only against troops directly involved in the attacks against civilians, but also against other military targets and infrastructure of Gadhafi’s army as a measure “necessary” to protect civilians. See Corten/Koutroulis (note 35).

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excluding the possibility of a judicial control by the ICJ if the victim State introduces a case against intervening States,84 the logical answer should be that the UNSC has the capacity to proceed to such an assessment within its general power of review and control of the enforcement action. However, as we have shown in detail elsewhere, referring to precedents such as the protests of Cote d’Ivoire against France or Libya and the African Union against the States participating in Operation Unified Protector, the UNSC has never, to date, accused a State of exceeding one of its mandates.85 And in any case, it is hard to imagine how a potential draft resolution criticising a permanent member for acting ultra vires could escape a veto.86 2. The Challenge of Rules of Engagement It is sometimes suggested that the Council should develop rules of engagement (RoE) to guide the parties responsible for implementing use of force mandates. Although such an evolution would certainly be useful (especially where troops are deployed on the ground) it should be kept in mind that imposing detailed and strict rules of engagement on operating States could hamper military effectiveness and wipe out their necessary margin of discretion. Indeed, in some cases like Bosnia-Herzegovina where the UNSC tried to introduce “dual-key” procedures (requiring “green light” of the UN before the intervening State may using force) many problems have emerged in practice.87 3. Proportionality Use of force under UNSC authorisation is subordinated to exactly the same “customary” conditions as use of force in self-defence, namely respect of the principles of necessity and proportionality. The very formula used by the UNSC in its resolutions granting the authorisation to States to “use/take all necessary means/measures” clearly puts necessity in the heart of the system of use of force mandates. Furthermore, general international law seems to require respect of the principles of necessity and proportionality in all cases of use of

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There has been no such case involving use of force mandates for the time being. Bannelier/Christakis, note 25. 86 Who could imagine, for example, a resolution of the UNSC criticising States participating in Operation Unified Protector for exceeding the UNSC mandate in Libya? 87 For a detail analysis of coordination (or lack of it) between NATO and the UN in relation to the use of force during the conflict in Bosnia see Christakis (note 75), 165 et seq. and Bannelier/Christakis (note 25). 85

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force.88 It thus comes as no surprise that all official calls to strengthen the rule of law during the implementation of UNSC use of force mandates emphasise that “in the event that the use of force is contemplated, action must be judicious, proportionate”,89 must be “conducted proportionately to the gravity of the situation”90 and “must produce as little violence and instability as possible and under no circumstance can it generate more harm than it was authorized to prevent”.91 However, here again we find problems very similar to the ones highlighted above in relation to the question of eventual ultra vires acts.92 First, necessity and proportionality give rise to difficult judgments concerning what is required in the circumstances. Second, the problem of the appropriate body to make this assessment arises again here and the unwillingness of the UNSC to criticise intervening States for their operations should be recalled. Third, the large margin of discretion93 given by the “necessity” concept to intervening States means that they enjoy almost absolute freedom in relation to the planning, command and conduct of the eventual military operations in order to achieve the objectives fixed by the Security Council.94 Indeed, this is very much _____________ 88

See Michael Bothe, Les limites des pouvoirs du Conseil de sécurité, in: Réné-Jean Dupuy (ed.), Le développement du rôle du Conseil de sécurité, 1993, 76–79; Judith Gardam, Proportionality and Force in International Law, AJIL 87 (1993), 391; Judith Gardam, Legal restraints on Security Council military enforcement action, Mich. JIL 17 (1996), 305 et seq.; Julian M. Lehmann, All Necessary Means to Protect Civilians: What the Intervention in Libya Says About the Relationship Between the Jus in Bello and the Jus ad Bellum, JCSL 17 (2012), 132–133. See also ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, 84, para. 176. Human Rights Treaty Bodies such as the ECtHR or the Human Rights Committee also insist on the fact that while the principle of proportionality does not appear as such in the human rights conventions, it always applies when State police and enforcement agents use force. See, for example, the seminal case of the ECtHR, McCann and Others v. UK, 18984/91, Judgment of 27 September 1995, para. 149: “the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2 (a), (b) and (c) of Article 2”. 89 “Responsibility While Protecting”, supra, note 36, para. 11 (e). 90 IDI, supra, note 69, Art. 9. 91 Supra, note 36, para. 11 (f). 92 Supra, B.II.1. 93 We could also refer to the term “margin of appreciation”, a concept used to describe the range of discretion in implementing exceptions and derogations by many Courts in continental Europe, especially the European Court of Human Rights and the Court of the European Union. The term has also been used recently by the ICJ, Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Judgment, 31 March 2014, para. 59. 94 This large margin of discretion is a guarantee for States or “coalitions of the willing” who accept the risks of intervention. Indeed, it is part of the flexibility needed for

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welcomed and appreciated by intervening States and their military staff. Pushing the requirements of necessity and proportionality too far could thus create exactly the same problems and reactions as the introduction of precise RoE and render the system of use of force mandates unattractive. This is why, as we have concluded elsewhere,95 we believe that the Council should only intervene to control how its authorisations to use force are interpreted and implemented when there is a manifest error of assessment on the part of the delegates (for example, if it becomes evident that the facts justifying a military operation do not actually exist), or when the military operation is manifestly disproportionate to the objectives that gave rise to the authorisation, for example if there is a blatant and obvious mismatch between the military action undertaken, the facts on the ground, and the objectives set by the Council. 4. Compliance with International Law, Responsibility and Accountability Three questions that often arise in relation with the implementation of use of force mandates concern the primary and secondary rules of international law applicable during the military operations authorised by the UNSC. The first question concerns jus in bello. There is no doubt, that, as the Institut de droit international has emphasised, “when the use of force is authorized, it shall be conducted […] in full compliance with international humanitarian law”.96 However, several difficult questions might arise about the applicable jus in bello rules, especially when use of force mandates are given in a context of non-international armed conflict or even in situations where there is no armed conflict at all.97 The second question concerns human rights law. It is generally admitted today that, while jus in bello is the lex specialis, human rights law is still relevant during armed conflict.98 But while in several of its resolutions the UNSC gave a use of force mandate in order to protect human rights in a given country,99 it is only very recently that the Security Council started including the _____________

the system to remain functional, providing assurance to States acting alone or multinational forces acting under unified command that there will be no external interference concerning military planning and the conduct of operations as long as they remain within the framework of the authorisation. 95 Bannelier/Christakis (note 25). 96 Supra, note 69, Art. 9. 97 See Bannelier/Christakis (note 25). 98 See especially the analysis of Sicilianos (note 12), 304–335. 99 See for example Security Council, Resolution 1528 of 27 February 2004 (UN Doc. S/RES/1528) in Côte d’Ivoire.

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respect of human rights law as a requirement and condition for States authorised to use force. For example, in its Resolution 2100 concerning MINUSMA in Mali, the UN Security Council “calls upon MINUSMA and all military forces in Mali [...] to abide by international humanitarian, human rights and refugee law”.100 One year later, in its Resolution 2134 concerning the Central Africa Republic (CAR) crisis, the UN Security Council emphasised “the need for all military forces in CAR, while carrying out their mandate, to act [...] in full compliance with applicable international humanitarian law, human rights law and refugee law”.101 Another interesting development is that the UNSC progressively introduced the idea that, if use of force is used in support of local defence and security forces, then there is a kind of “positive obligation” of intervening States to assure that these local forces comply with international human rights law. In February 2013, the UN Secretary-General presented to the General Assembly and the Security Council a set of measures “that all United Nations entities must take in order to ensure that any support that they may provide to non-United Nations forces is consistent with the purposes and principles as set out in the Charter of the United Nations and with its responsibility to respect, promote and encourage respect for international humanitarian, human rights and refugee law”.102 Two months later, in Resolution 2100, the UN Security Council implemented these measures for the first time and requested “that MINUSMA takes fully into account the need to protect civilians and mitigate risk to civilians, including, in particular, women, children and displaced persons and civilian objects in the performance of its mandate as defined in paragraphs 16 and 17 above, where undertaken jointly with the Malian Defense and Security Forces, in strict compliance with the Human Rights Due Diligence Policy on United Nations Support to non-United Nations Security Forces (S/2013/110)”.103 One year later, in the Central African Republic crisis, Resolution 2149 also “[r]equests MINUSCA to ensure that any support provided to non-United Nations security forces is provided in strict compliance with the Human Rights Due Diligence Policy on United Nations support to non-United Nations security forces (HRDDP)”.104 _____________ 100 Security Council, Resolution 2100 of 25 April 2013 (UN Doc. S/RES/2100), para. 24 (emphasis in original). 101 Security Council, Resolution 2134 of 28 January 2014 (UN Doc. S/RES/2134), para. 48. See also Resolution 2149 of 10 April 2014 (UN Doc. S/RES/2149), para. 42. 102 Identical letters dated 25 February 2013 from the Secretary-General addressed to the President of the General Assembly and to the President of the Security Council, A/67/775–S/2013/110, 5 March 2013. 103 Security Council, Resolution 2100 of 25 April 2013 (UN Doc. S/RES/2100), para. 26. 104 Security Council, Resolution 2149 of 10 April 2014 (UN Doc. S/RES/2149), para. 39 (emphasis in original).

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The third and undoubtedly thorniest question concerns issues of responsibility and accountability for violations of jus in bello or other rules of international law during the authorised military operations. The problem becomes especially difficult taking into consideration the important number and variety of actors participating in military operations under UNSC use of force mandates. In 1990, Operation Desert Storm against Iraq was led, for example, by a coalition of 34 States; in Afghanistan ISAF was a coalition of 48 States; in Libya 18 States participated in the NATO-led Operation Unified Protector; and in Mali the forces of MINUSMA come from 36 States. Factors such as secrecy covering the operations, lack of transparency concerning the identification of the authors of attacks, the variety of rules binding each operating State and the problem of legal interoperability (for example, due to uneven ratification of jus in bello and arms control treaties), the invocation of immunity rules, as well as problems of shared responsibility that have not been adequately addressed by the International Law Commission’s Draft Articles on Responsibility of International Organizations,105 create a lot of major difficulties for attribution of internationally wrongful acts. Indeed, this is a question that led to heated debate in international legal scholarship and fora during these last years. 5. Reporting and Monitoring The Council requests operating States to report to it on a regular basis regarding the implementation of use of force mandates. Such reporting is compulsory under Article 54 of the UN Charter if the authorisation is given to regional organisations, and one could logically deduce that what is compulsory for States when acting within a regional organisation should also be compulsory when they act individually.106 Several things could be done, nonetheless, to enhance the Council’s reporting and monitoring systems.107 The Council has never indicated what should be included in the content of these reports. We of course understand that the operating States should not be asked to include confidential military information the disclosure of which could be detrimental to the action of armed forces and the accomplishment of the mission. On the other hand, it would be consistent with the principles of accountability and transparency to require States to include in their reports non_____________ 105 International Law Commission, Draft Articles on the Responsibility of International Organizations, Yearbook of the International Law Commission 2011 II 2. 106 According to Art. 54: “The Security Council shall at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security”. 107 The following analysis mainly reproduces our recommendations as they appear in Bannelier/Christakis (note 25).

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classified information that is relevant to the conduct of Council-authorised operations. The reporting requirement should not be a mere formal process, but should on the contrary enable the Council to have a clear idea about the situation on the ground and the respective roles of each of the participating States. Another problem is that the Council did not always fix a timeframe for the presentation of reports. In the mandates given during the first half of the 1990s, the UN Security Council only requested, in general terms, that States present a report “on a regular basis” while sometimes fixing a deadline only for the first report.108 During the second half of the 1990s, the Council gave the impression of changing this practice, generally requesting States to present a report in very tight timeframes (every two weeks).109 Since then the practice of the Council has been diversified. Sometimes the Council asked operating States to present their report in a specific timeframe (for example six110 or three months111), but other times it just used the expression “regular basis” or “periodic reports” without any further precision.112 We think that there is no reason for the Council to neglect to include, in its authorising resolutions, a provision that requires operating States to report to it in a specific time-frame which could

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See, for example, Security Council, Resolution 794 of 3 December 1992 (UN Doc. S/RES/794) on Somalia (para. 18); Resolution 929 of 22 June 1994 (UN Doc. S/RES/929) on Rwanda (para. 10); and Resolution 940 of 31 July 1994 (UN Doc. S/RES/940) on Haiti (para. 13). 109 See, for example, Security Council, Resolution 1080 of 15 November 1996 (UN Doc. S/RES/1080) on Zaire (para. 11); Resolution 1101 of 28 March 1997 (UN Doc. S/RES/1101) on Albania (para. 9); and Resolution 1125 of 6 August 1997 (UN Doc. S/RES/1125) on the Central African Republic (para. 6). These resolutions request a report “at least twice monthly” or “at least every two weeks”! 110 Security Council, Resolution 1511 of 16 October 2003 (UN Doc. S/RES/1511) concerning Iraq “[r]equests” the United States, to “report to the Security Council on the efforts and progress of this force as appropriate and not less than every six months” (para. 25, emphasis in original). 111 Resolution 1546 of 8 June 2004 (UN Doc. S/RES/1546), also concerning Iraq, is more demanding, requesting the United States to report “within three months from the date of this resolution [...] and on a quarterly basis thereafter” (para. 31). 112 See, for example, Security Council, Resolution 1386 of 20 December 2001 (UN Doc. S/RES/1386) on Afghanistan, para. 9 (requesting “the leadership of the International Security Assistance Force to provide periodic reports on progress towards the implementation of its mandate through the Secretary-General”); or similar expressions in Resolution 1464 of 4 February 2003 (UN Doc. S/RES/1464) and Resolution 1528 of 27 February 2004 (UN Doc. S/RES/1528) on Côte d’Ivoire, Resolution 1529 of 29 February 2004 (UN Doc. S/RES/1529) on Haiti or, more recently, Resolution 2100 of 25 April 2013 (UN Doc. S/RES/2100) on Mali (para. 18).

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vary depending on the nature of the mission.113 And of course the Council should not hesitate to launch “reminders” in cases where operating forces neglected their reporting duties.114 Last but not least, the current system is essentially based on a process of self-reporting, with the implication that States involved in military operations can pick and choose what to mention and what to omit from their reports. One way to address this problem would be to put in place a system of independent monitoring. For example, the Council could mandate the UN Secretary-General or another person designated by the Council to receive all relevant information (including from non-governmental organisations) and present it in a report to the Council.115 6. Instituting a “Use of Force Committee”? In an article published in 2013 two scholars116 suggested the creation of a “Use of Force Committee” similar to the Council’s sanctions committees. This new committee would be a subsidiary organ of the UNSC entrusted with the task of monitoring implementation of use of force mandates. According to the suggestion of these two scholars: It is the task of the committee to interpret SC resolutions authorizing the use of force and to examine the compatibility of military measures taken by Operating States with these resolutions. Were the committee to find that the military measures taken by Operating States exceeded the terms of the UNSC resolution authorizing the use of force, it would submit clarifications to the Secretary General regarding the scope of the permission to use force granted by the resolution … [T]he clarifications of the committee would have the status of authentic interpretation of the resolution _____________ 113

The objective is not to impose a severe burden of bureaucracy on operating States but to inform the Council and to introduce transparency. 114 See the preamble of Security Council, Resolution 2100 of 25 April 2013 (UN Doc. S/RES/2100) on Mali noting “that the requirement to report as requested in paragraph 10 of resolution 2085 (2012) was not fulfilled and looking forward to the submission of those reports”. 115 Indeed, in some cases the Council asked the Secretary-General to present a report on the implementation of the use of force mandate or asked States to present their report “through the Secretary General”. In Rwanda for example, Security Council, Resolution 929 of 22 June 1994 (UN Doc. S/RES/929) “[r]equests the States concerned and the Secretary-General, as appropriate, to report to the Council on a regular basis” (para. 10). In Somalia, Resolution 794 of 3 December 1992 (UN Doc. S/RES/794) “[r]equests the Secretary-General and, as appropriate, the States concerned to report to the Council on a regular basis” (para. 18). 116 Tamar Hostovsky-Brandes/Ariel Zemach, Controlling the Execution of a Security Council Mandate to Use Force: Does the Council Need a Lawyer?, FILJ 36 (2013), 657–705.

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authorizing the use of force, and its operative recommendations would become binding for the Operating States, unless they were rejected within two weeks of their submission by an SC resolution adopted in accordance with the regular voting rules of the Council. Hence, each permanent member of the SC would be able to ensure the binding status of the committee’s clarifications by vetoing a resolution rejecting such clarifications.117

While this proposal is interesting, it also raises some important questions. How could a subsidiary organ of the Council have the power to impose its findings and interpretations on its own creator? The two scholars try, of course, to avoid this pitfall by saying that the UNSC could “decide otherwise”. But in order to “decide” otherwise, a Chapter VII resolution is necessary. This means that, if a veto is exercised by one of the P5, the UNSC will not be able to “decide otherwise” and the conclusions of the Committee would be binding upon the UNSC. The suggestion that the UNSC would be able to create a subsidiary committee superior to the Council itself brings to mind the old “omnipotence paradox”: could the UNSC be so omnipotent as to create an organ even more powerful than itself?118 Moreover, the idea of creation of such “an independent, quasi-judicial body” capable of imposing its findings on the P5 and the UNSC seems tantamount to inventing the legendary philosopher’s stone of international law. At a more practical level, such a development could become counter-productive by creating permanent strain and conflict between operating States that would wish to act under their margin of appreciation, and an increasingly inquisitive Committee that would put each individual military operation under its magnifying lens. In any case, we can hardly imagine how the P5, who are often involved in use of force mandates, could accept such an evolution detrimental to their flexibility and freedom of action. Things could be easier, nonetheless, if such a Committee only has monitoring and advisory functions.

D. Conclusion During the last 25 years, the UNSC has adopted dozens of resolutions giving (or extending) use of force mandates to States, coalitions of States or UN peacekeeping forces in order to achieve very different objectives in a great variety of cases. Use of force mandates have, since 1990 and the end of Cold War, played an essential role for the maintenance and restoration of international peace and security. _____________ 117

Ibid., 696–697. Philosophers and logicians also present this paradox as the “paradox of the stone” related to the (in)existence of God: “Could an omnipotent being create a stone so heavy that even he could not lift it?”. 118

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There were of course, during this time, some failures, the incapacity to prevent genocide in Rwanda being the most dramatic and traumatic one. These failures led to very harsh criticism of the UN, presented sometimes as “irrelevant” and incapable of restoring or maintaining international peace and security. Only two years ago, for example, France, unhappy with the unwillingness of the UNSC to authorise use of force against the government of Bashar El-Assad in Syria, denounced the “deadlock” in the UN Security Council, saying that the Council was about to “lose its legitimacy” – and suggested that it could go ahead with using force without UNSC authorisation. So this is one possible direction for the future: focus on the failures of the system of collective security and try to bypass the Organisation. We are very much afraid that this could lead to disaster and fundamentally undermine Article 2 (4) of the UN Charter which was a major achievement in the history of humanity. A second possible direction is to advance radical suggestions that could lead to the replacement of the current system by an entirely new and different system of collective security. France, for example, suggested the suspension of the right to veto in case of “mass atrocities”. The problem is that such proposals are often controversial and create new problems like the ones we examined in this chapter. The French proposal is nonetheless a vital sign of the need for a substantial improvement of the system of collective security which, indeed, is marked by several weaknesses. But the decades-lasting but still fruitless negotiations concerning a substantial reform of the UNSC leave little room for optimism for a rapid, radical change. A third, more plausible direction for the near future is to try to think about the weaknesses of the system and advance with realism, step by step, in order to progressively “fix” the failures and improve the legitimacy and effectiveness of the system of collective security. In the second part of this chapter we tried to examine some avenues of action in order to improve the system of control of States authorised to use force by the UNSC. In 1914, when the Walther Schücking Institute for International Law was created, humanity was about to plunge into the first of two successive devastating wars which brought untold sorrow to mankind. 100 years later, things are far from perfect, but we are all grateful for the progress accomplished and we owe so much to Article 2 (4) and international law. Let us hope that until the next centennial anniversary of the Walther Schücking Institute, humanity will find ways to substantially improve the system of collective security in order to enjoy peace through law.

Case Study on Cambodia By Lucy Keller Läubli

A. Background of the Cambodian Conflict I. Historical Background During the first Indo-China War (1946–1954), Cambodia fought against France in order to attain full autonomy from its protectoral status. In 1953, the head of State, Prince Norodom Sihanouk, declared Cambodia’s independence. In 1954, Cambodia became a member of the United Nations. From 1954 until the 1970s, Cambodia was a constitutional monarchy under Prince Norodom Sihanouk's autocratic rule. Vast antagonism by the rightist military forces and the communist Khmer Rouge led to a coup d’état in 1970. Cambodia became involved in the war in Vietnam (second Indo-China War, 1970–1975) and sided with South Vietnam. On Cambodian territory, civil war broke out in which the communist Khmer Rouge guerrillas prevailed.1 In 1975, the communist and totalitarian Khmer Rouge under Pol Pot came to power and renamed the country “Democratic Kampuchea”. The Khmer Rouge’s policies – inspired by Maoist ideology – were aimed at radically transforming Cambodia into a classless, homogeneous, and rural Khmer society. The pre-existing traditions, institutions, Cambodia’s legal system and everything considered western or intellectual were abolished and destroyed.2 The regime dispatched roughly three million people to agricultural labour camps. The former Prince Sihanouk served as formal head of State but was held under house arrest. During the destructive Khmer Rouge regime from 1975 to 1979, one to two million people died through execution in the “killing fields”, through torture, starvation, and diseases. Estimations of the exact number of the _____________ 

The author wishes to thank Dr. Noëmi Crain Merz for her critical and helpful comments on this contribution. 1 See Martin F. Herz, A Short History of Cambodia, 1958, 65 et seq.; Lucy Keller, UNTAC in Cambodia: From Occupation, Civil War and Genocide to Peace, MPYUNL 9 (2005), 127 et seq. 2 See Ben Kiernan, The Pol Pot Regime, 1996, 54.

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dead vary, but the execution of nearly a fifth of Cambodia’s population has to be qualified as one of the highest rates of mass killing in world history.3 In 1979, the Khmer Rouge regime came to an end as Vietnamese troops invaded the devastated country and took control of Cambodia. They installed a totalitarian communist regime referred to as “the People’s Republic of Kampuchea”. Vietnam developed an effective authority over more than 80 per cent of the territory. What it lacked, however, was legitimacy, international recognition outside the Soviet bloc and, of course, internal support.4 Several hundred thousands of Cambodians fled the country. Moreover, Vietnam’s invasion gave rise to political and military opposition by three Cambodian resistance groups: a royalist faction led by Prince Sihanouk; a conservative and rightist faction; and a communist faction dominated by the Khmer Rouge. Despite their different interests, the three rebel factions formed the Coalition Government of Democratic Kampuchea in 1982, headed by the former Prince Sihanouk. After Vietnam’s occupation, a civil war raged in Cambodia for the following ten years as the three Cambodian factions fought against Vietnam’s troops.5 II. International Reaction to the Conflict The first international reaction to the Cambodian conflict came in 1978. It was the Sub-Commission on Prevention of Discrimination and Protection of Minorities that passed a resolution stating inter alia that violations of human rights had taken place in Cambodia and that urgent measures had to be taken in order to restore full respect for human rights.6 Vietnam’s offensive against Cambodia in 1979 was not only of national, but also of international importance. Many States in the Cold War era were in one way or another involved in the conflict.7 For this reason, draft resolutions of the UN Security Council regarding Cambodia’s situation were blocked by the Soviet Union’s veto.8 Subsequently, the UN General Assembly passed a resolu-

_____________ 3

See Kiernan (note 2), 159 et seq., 251 et seq. See Michael W. Doyle, UN Peacekeeping in Cambodia: UNTAC’s Civil Mandate, 1995, 17 et seq. 5 See Keller (note 1), 136 et seq. 6 Sub-Commission on Prevention of Discrimination and Protection of Minorities, Resolution 4 B (XXXII) of 5 September 1978 (UN Doc. E/CN. 4/1350 – E/CN. 4/Sub. 2/435, 47). 7 See Keller (note 1), 138 et seq. 8 Draft resolution by Bangladesh et al. of 15 January 1979 (UN Doc. S/13027); Draft resolution by Indonesia et al. of 13 March 1979 (UN Doc. S/13162). 4

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tion calling for the immediate withdrawal of all foreign forces from Cambodia.9 Additionally, the UN initiated several conferences and deliberations – all of them without apparent success. Furthermore, the Secretary General dispatched his Special Representative to the region. From 1981 until 1989, however, the Cambodian peace process stagnated due to the differing interests among the conflicting factions and on the international level.10

B. The Peace Process and the Paris Agreements I. Peace Negotiations Due to the end of the Cold War, the peace process began to gather momentum. In 1989 the “Conference on Peace in Cambodia”, also referred to as “Paris Peace Conference”, was held in Paris. For the first time, all belligerent Cambodian factions participated in the same conference, together with the permanent members of the Security Council, the ASEAN Member States, representatives of the non-aligned States, and the Secretary-General. They agreed on the withdrawal of foreign forces. Subsequently, Vietnam, under diplomatic and economic pressure, withdrew completely from Cambodia in 1989.11 In order to monitor the fragile ceasefire, the Cambodian factions requested that the UN send observers to Cambodia. The Security Council thus passed a resolution12 by which it decided that the UN Advance Mission in Cambodia (UNAMIC) should be sent to Cambodia immediately after the signing of the final peace treaty. The five permanent members of the Security Council then agreed on a comprehensive political settlement of the Cambodia conflict in the so-called “Framework Agreement” in 1990.13 Despite the Khmer Rouge’s initial opposition, the four factions accepted the Framework Agreement, and the Security Council endorsed it by a resolution.14 France and Indonesia negotiated the _____________ 9

General Assembly, Resolution 34/22 of 14 November 1979 (UN Doc. GA/RES/ 34/22). 10 Keller (note 1), 142 et seq. 11 See Amitav Acharya et al. (eds.), Cambodia: The 1989 Paris Peace Conference, 1991, Introduction 23, 45. 12 Security Council, Resolution 717 of 16 October 1991 (UN Doc. S/RES/717). 13 Security Council, Letter dated 30 August 1990 from China, France, the Soviet Union, the United Kingdom, and the United States Transmitting Statement and Framework Document Adopted by their Representatives at a Meeting in New York 27–28 August 1990, 31 August 1990 (UN Doc. A/45/472–S/21689). 14 Security Council, Resolution 668 of 20 September 1990 (UN Doc. S/RES/668).

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Framework Agreement into a final peace treaty. Finally, in October 1991, after more than ten years of diplomatic effort and civil war in Cambodia, the Agreements on a Comprehensive Political Settlement of the Cambodia Conflict (also referred to as “Paris Agreements”) were signed.15 The peace treaty was signed by 19 States, including the three Cambodian factions, the Vietnamese faction and the five permanent members of the UN. The UN itself signed the Paris Agreements as a witness. The Security Council as well as the General Assembly expressed their full support for the agreements by each adopting a resolution.16 II. The Paris Agreements The Paris Agreements contain four documents: the Final Act of the Paris Conference on Cambodia (“Final Act”) restates the history of the Paris Conference. The Agreement of a Comprehensive Political Settlement of the Cambodia Conflict (“Comprehensive Settlement Agreement”) is the principal document and contains all essential elements of the settlement. The Agreement Concerning the Sovereignty, Independence, Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia (“Guarantees Agreement”) mainly reproduces the provisions included in the Comprehensive Settlement Agreement with respect to human rights. Furthermore, it outlines the obligations to be fulfilled by Cambodia and the other parties to the agreements with respect to Cambodia’s territorial integrity and general security. The Declaration on the Rehabilitation and Reconstruction of Cambodia (“Declaration”) contains the measures to be taken with respect to Cambodia’s reconstruction and to the integration and repatriation of the Cambodian people.17 The Paris Agreements provide for an innovative, broad and comprehensive settlement of the Cambodian conflict, aiming at the rebuilding of peace in Cambodia. The agreements contain detailed provisions on human rights, on the elections, on principles for the new Cambodian constitution and on international guarantees. One of the exceptional features of the Paris Agreements is the institution of the Supreme National Council (SNC). Given that there was no single Cambodian government politically and legally accepted by all States, the parties to the Paris Agreements decided to create one single council including representatives _____________ 15

Agreement on a Comprehensive Political Settlement of the Cambodia Conflict of 23 October 1991, UNTS Vol. 1663, 27. 16 Security Council, Resolution 718 of 31 October 1991 (UN Doc. S/RES/718); General Assembly, Resolution 46/18 of 20 November 1991 (UN Doc. GA/RES/46/18). 17 Lucy Keller, Cambodia Conflicts (Kampuchea), in: Rüdiger Wolfrum (ed.), MPEPIL (online edition), MN 15.

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from the four factions in Cambodia, chaired by Prince Sihanouk.18 Accordingly, the SNC was a body authorised to represent the Cambodian State externally and “the unique legitimate authority and source of sovereignty of Cambodia” during the transitional period.19 The SNC was to delegate all powers necessary for the implementation of the agreement to the UN and indicate its consent to UNTAC’s operation during the transitional period.20

C. The United Nations Transitional Authority in Cambodia (UNTAC) I. UNTAC’s Mandate The Paris Agreements led to what was at that point the largest peacekeeping operation in history: the United Nations Transitional Authority in Cambodia (UNTAC).21 The Paris Agreements authorise the Security Council to establish UNTAC under the responsibility of the Secretary General.22 The peace treaty describes UNTAC’s mandate in detail.23 UNTAC’s broad mandate comprised seven different components: human rights, elections, military, civil administration, police, repatriation and rehabilitation. UNTAC’s mandate had to be accomplished within 18 months and, as mentioned above, UNTAC was to comply with the SNC’s advice. UNTAC was created in February 1992 by Security Council Resolution 745.24 Regarding UNTAC’s mandate, Resolution 745 refers directly to the Paris Agreements. Thus, the legal basis of UNTAC’s mandate is to be found in the Paris Peace Agreements on the one hand and in Security Council Resolution 745 on the other.25 Immediately after UNAMIC’s mandate ended, UNTAC became operational in March 1992. The transitional authority ended in September 1993 with the promulgation of the new Cambodian constitution.

_____________ 18 See Keller (note 17), MN 16 et seq.; Steven R. Ratner, The Cambodia Settlement Agreements, AJIL 87 (1993), 1 et seq. 19 Arts. 3 and 5, part 1, section 3 of the Comprehensive Settlement Agreement. 20 Art. 6 of the Comprehensive Settlement Agreement. 21 Judy L. Ledgerwood, UN Peacekeeping Missions: The Lessons from Cambodia, API 11 (1994), 3. 22 Art. 2 para. 1, part 1, section 2 of the Comprehensive Settlement Agreement. 23 See annex 1 of the Comprehensive Settlement Agreement. 24 Security Council, Resolution 745 of 28 February 1992 (UN Doc. S/RES/745). 25 Keller (note 17), MN 27 et seq.

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II. Implementation of UNTAC’s Mandate The coexistence of UNTAC and the SNC did not cause any challenges. This was mainly due to the fact that Prince Sihanouk was accepted as head of the SNC and that he cooperated fully with UNTAC and the Special Representative.26 UNTAC had an unprecedented and exceptional level of involvement in Cambodia’s civil administration: UNTAC supervised nearly all possible areas of a State’s administration – from security and finance to education, energy, and communications.27 UNTAC’s military function was to control the withdrawal of foreign forces and the ceasefire. Despite the fact that UNTAC had a military personnel of 16,000 at its disposal, it faced enormous problems: the Khmer Rouge faction repeatedly broke the ceasefires and impeded the disarmament, declaring its non-compliance with the implementation of the Paris Peace Agreements.28 In the field of human rights UNTAC focused its far-reaching and effective activities mainly on two goals: firstly, it addressed ongoing human rights violations. Secondly, it aspired to build the foundations for long-term human rights protection through supervision and information in various fields. Furthermore, the SNC signed seven major human rights agreements.29 However, UNTAC’s major success consists in the organisation of free and fair elections of the constituent assembly. The elections – the first ones organised by the UN – took place in May 1993 under peaceful circumstances and with a very high turnout of voters. Sihanouk’s party obtained a majority of votes and hence the majority of seats in the constituent assembly.30 The Security Council endorsed the elections by adopting a resolution in June 1993.31 In September 1993, Sihanouk signed the new Constitution as head of State and accepted his formal restoration as King of Cambodia. The reconstruction process of Cambodia proceeded after the termination of UNTAC’s transitional operation. Numerous Cambodians were assisted in returning to Cambodia. Various rehabilitation projects improved the economy.32 _____________ 26

See Keller (note 1), 160 et seq. Ratner (note 18), 1 et seq. 28 See Keller (note 1), 167 et seq.; Ledgerwood (note 21), 6. 29 Keller (note 1), 164 et seq. 30 See Doyle (note 4), 46; Ledgerwood (note 21), 4 et seq. 31 Security Council, Resolution 840 of 15 June 1993 (UN Doc. S/RES/840). 32 See Ledgerwood (note 21), 5 et seq. 27

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It is moreover worth mentioning that the unprecedented and singular comprehensiveness of UNTAC’s mandate comprised the personal and financial dimension as well: UNTAC disposed of a military and civilian personnel of some 21,000; the costs – including those for UNAMIC – amounted to 1,6 billion US$.33

D. Post-Conflict Justice: The Khmer Rouge Tribunal I. Background Despite the magnitude of the crimes committed by the Khmer Rouge regime from 1975 until 1979, the issue of post-conflict justice in Cambodia was not seriously considered until late 2003. There are three main reasons for this delay: first, the last active Khmer Rouge leaders did not surrender until 1999. Second, many of the political, military and financial elites in Cambodia are to this day affiliated with former Khmer Rouge officials. Third, the international community was focused primarily on the withdrawal of Vietnam’s forces and on the State building process in Cambodia.34 After several unsuccessful negotiations between the UN and the Cambodian government,35 Cambodia passed a national law on the establishment of Extraordinary Chambers for the prosecution of the Khmer Rouge crimes36 in 2001 (hereinafter referred to as “Cambodian law”). The Cambodian law contained several provisions which were unsatisfactory to the UN.37 Nevertheless, in 2003, the UN and the Cambodian government reached a Prosecution Agreement on the establishment of Extraordinary Chambers providing a legal basis for the cooperation between the UN and Cambodia.38 They agreed that the Prosecution Agreement should prevail over the Cambodian law.39 _____________ 33

Keller (note 1), 169. Keller (note 17), MN 39. 35 See Keller (note 1), 171 et seq. 36 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (entered into force 10 August 2001), available at http://www.eccc.gov.kh/en/docu ments/legal/law-on-eccc (accessed on 11 February 2015). 37 See Keller (note 1), 172 et seq. 38 Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea of 6 June 2003, UNTS Vol. 2329, 1. 39 Ernestine E. Meijer, The Extraordinary Chambers in the Courts of Cambodia for Prosecuting Crimes Committed by the Khmer Rouge: Jurisdiction, Organization, and Procedure of an Internationalized National Tribunal, in: Cesare P. R. Romano et al. 34

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II. The Extraordinary Chambers in the Court of Cambodia (ECCC) In 2006, the Extraordinary Chambers in the Court of Cambodia (ECCC) were established and 27 judges nominated. The court consists of a pre-trial chamber, a trial chamber and a supreme court chamber. Decisions taken by the latter are final.40 1. Composition and Jurisdiction of the ECCC The hybrid Khmer Rouge tribunal is, as mentioned above, established within a domestic legal system. Furthermore, international judges are not in the majority on the benches of the chambers. Each judicial decision must, however, be made with the consent of at least one international judge.41 The temporal jurisdiction of the Extraordinary Chambers extends only from 1975 to 1979, the period of the Khmer Rouge regime. The subject-matter jurisdiction covers crimes under both international and domestic law. The crimes that are tried are genocide, crimes against humanity, grave breaches of the Geneva Conventions and certain violations of Cambodian law. The Extraordinary Chambers have personal jurisdiction only over senior leaders of “Democratic Kampuchea” and over those who were most responsible for the abovementioned crimes. Regarding the applicable procedural law, the Prosecution Agreement leaves procedural matters essentially to the Cambodian law.42 2. Trials before the ECCC After the arrest of five suspects for prosecution in 2007 – all of them senior Khmer Rouge leaders and charged with crimes against humanity, grave breaches of the Geneva Conventions and some with genocide – the ECCC started the proceedings in 2008.43 In case 001, “Duch”, the former head of political prison Tuol Sleng was indicted. Case 001 was concluded in February

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(eds.), Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia, 2004, 208. 40 See http://www.eccc.gov.kh/en/organs (accessed on 11 February 2015). 41 Keller (note 17), MN 42; Meijer (note 39), 212. 42 Keller (note 17), MN 43 et seq. 43 See Seeta Scully, Judging the Successes and Failures of the Extraordinary Chambers of the Courts of Cambodia, APLPJ 13/1 (2011), 320.

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2012: Duch was found guilty of crimes against humanity and grave breaches of the Geneva Conventions and was sentenced to life imprisonment.44 Case 002 involves the other four accused Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith. Case 002 was split into two separate trials, each addressing a different section of the indictment. The trials in the first part of case 002 began in November 2011.45 However, two proceedings had to be closed, since one of the accused was ruled mentally incapable to stand trial46 and the other accused died in March 2013.47 The proceedings against the two surviving accused – the second highest commander after Pol Pot as well as the former chief of State during the regime – ended on 7 August 2014. The court found Nuon Chea and Khieu Samphan guilty of crimes against humanity committed between 1975 and 1977 and sentenced them to life imprisonment.48 The second trial, case 002/02, will cover allegations related to genocide.49 There are currently two more cases under investigation, case 003 and case 004. Both deal with crimes allegedly committed by five additional suspected persons whose identity is confidential.50 3. Shortcomings of the ECCC The ECCC had and still has many shortcomings. There has been evidence of bias and corruption among the national judges. Without going into details,51 the tribunal’s independence from Cambodia’s executive is very doubtable. Relating to the evidence of corruption of several national judges, the ECCC decided not to investigate these issues due to the lack of relevant provisions in the Cambodian law. These incidences prove that the ECCC failed to meet the rights of the accused to an impartial process before an independent tribunal.52 Furthermore, for as long as the negotiations on the court have been going on, there have been concerns about the court being a compromise between the UN and Cambodia. One of the main concerns regards the ECCC’s basis in Cambo_____________ 44 Case File 001/18-07-2007-ECCC/SC, Doc. E188; see Keller (note 17), MN 47 et seq.; Scully (note 43), 320 et seq. 45 Keller (note 17), MN 49. 46 Case File 002/19-09-2007/ECCC/TC, Doc. E138/1/10). 47 Case File 002/19-09-2007/ECCC/TC, Doc. E270/1. 48 Case File 002/19-09-2007-ECCC/TC, Doc. E313. 49 See http://www.eccc.gov.kh/en/case/topic/2 (accessed 11 February 2015). 50 See http://www.eccc.gov.kh/en/case/topic/286; http://www.eccc.gov.kh/en/case/to pic/98 (both accessed 11 February 2015). 51 For a detailed account see Scully (note 43), 332 et seq. 52 See Scully (note 43), 325 et seq.

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dian law. It implies only insufficient reference to international law, and, moreover, the Cambodian law restricts the court’s jurisdiction.53 The regime’s extensive crimes would indeed call for the indictment of more than only five or eventually ten Khmer Rouge seniors. And, taking into account that the Khmer Rouge’s crimes were also committed before and after the four years of the regime, the temporal jurisdiction should be more extensive in order to attain a complete review of the Cambodian past.54

E. Assessment The peace settlement process as well as the Paris Peace Agreements and the UN peacekeeping force in Cambodia represent an unprecedented and ambitious attempt by the United Nations to end a decades-old conflict in Cambodia. Even though UNTAC faced several difficulties and was challenged by the Khmer Rouge’s incompliance, the main goals of the Paris Agreements were fulfilled and the State-building process in Cambodia succeeded. This success is largely due to the multilateral, consensual and comprehensive approach of the Paris Peace Agreements.55 Compared to traditional UN peacekeeping, the UN’s operation in Cambodia consisted of a multidimensional process. The parties to the peace treaty agreed not only to the terms of a ceasefire but also to a real “peace building” mission. UNTAC assumed a multidimensional set of responsibilities in human rights, civilian administration, election organisation, refugee repatriation and economic rehabilitation. In this way, Cambodia was transformed into a basically secure and democratic State after more than twenty years of war and international isolation. As to the ECCC, the initial disagreement between Cambodia and the UN regarding the modalities of the tribunal delayed the establishment of the tribunal. The Cambodian government wanted a national tribunal dominated by Cambodia and with assistance of the UN. The UN was only willing to support and assist a predominately international tribunal.56 The UN’s ensuing readiness for compromise was, understandably, caused by the fact that time was running out for justice to be served given the high age of the defendants. And yet, in consideration of the grave human rights breaches by the Khmer Rouge, these compromises did not lead to a very satisfactory result. _____________ 53

See Keller (note 17), MN 50. Keller (note 17), MN 51. 55 See Doyle (note 4), 25; Keller (note 1), 177 et seq.; Ratner (note 18), 1 et seq. 56 See Keller (note 1), 176. 54

Case Study on Cyprus By Frank Hoffmeister*

A. Introduction Given the many failures of multilateral diplomacy and the even more numerous legal opinions commissioned by either side, I have previously described the Cyprus problem as a graveyard for diplomats and a gold mine for international lawyers.1 This point may also introduce the topic of this case study: what has been the role of international law in the attempts for a settlement in Cyprus? Does the Cyprus problem suffer from the absence of international law or – horribile dictu – is the reliance on international law arguments by both sides sometimes even impeding a successful settlement? The present contribution will review this question by putting the focus on three tools of UN activity – peacekeeping, non-recognition and good offices – before concluding.

B. UN Peace-keeping I. The Constitutional Set-up of the Republic of Cyprus Being a former colony of the United Kingdom, Cyprus received independence in 1960 with a specific constitutional set-up. Following the London-Zurich agreements of 1959 between the United Kingdom, Greece and Turkey, the Cyprus constitution of 1960 was marked by its bi-communal character. Powersharing arrangements foresaw a Greek Cypriot President and a Turkish Cypriot Vice-President, certain guarantees for the Turkish Cypriot Community in the legislature and a number of quotas for public administration. Moreover, the _____________ *

The views expressed are strictly personal and partially draw upon material previously published in my article, The Cyprus Problem in 2009: Which Role for international and European law?, in: Thomas Giegerich/Alexander Proelß (eds.), Krisenherde im Fokus des Völkerrechts – Trouble Spots in the Focus of International Law, 2010, 57–71. 1 Frank Hoffmeister, Legal Aspects of the Cyprus Problem, 2006, 239.

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Constitution established the Constitutional Court with a foreign President to ensure impartiality towards the two communities. In addition, three international treaties were concluded: a Treaty of Establishment between the United Kingdom and Cyprus, laying down specific rules for the transition of power, and two treaties between the UK, Greece, Turkey and Cyprus. Importantly, under the Treaty of Alliance, a certain amount of Greek and Turkish military were allowed to be stationed on the island, and in the Treaty of Guarantee, the constitutional order was guaranteed by the ‘Guarantor powers’. Thus, from the very beginning, the Cyprus domestic legal order was heavily influenced by and connected with a number of international legal texts. However, despite this remarkable internationalisation, the status quo was not to hold very long on the ground. II. The Establishment of UNFICYP As of 21 December 1963, bi-communal strife emerged with Turkish Cypriot and Greek Cypriot paramilitary troops attacking civilian quarters of Nicosia where members of the opposite community were living. When the Turkish contingent moved out of its barracks to the Kyrenia road, north of Nicosia, and Turkish jets flew a “warning flight” on Christmas day, the Cyprus government raised a complaint against Turkey before the Security Council on 26 December 1963. On the same day, the three Guarantor powers agreed to station a joint truce force. The British Commander drew a “green line” between the quarters of Nicosia, including a neutral zone, on 30 December 1963. 2,700 British troops and the Greek and Turkish contingents on the island were to maintain public order and security, but fighting continued. After the breakdown of an international conference to find a diplomatic solution, the Security Council was again seized by Cyprus together with the United Kingdom on 14 February 1964. With Resolution 186 (1964) of 4 March 1964,2 the Council established a United Nations Peacekeeping Force in Cyprus (UNFICYP) with the consent of Cyprus. By the end of March, approximately 6,000 UN soldiers from Western countries under the command of General Gyani (India) were deployed to the island. They could not prevent further fighting until August, when the UN Security Council, in its Resolution 193 (1964),3 called on both sides for the immediate ending of Turkish bombing and Greek Cypriot attacks on the ground. The total number of casualties over the period 21 December 1963 to 9 August 1964 is disputed, but a possible figure is about 193 Turkish Cypriots and 133 Greek Cypriots killed, _____________ 2 3

Security Council, Resolution 186 of 4 March 1964 (UN Doc. S/RES/186). Security Council, Resolution 193 of 9 August 1964 (UN Doc. S/RES/193).

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with many missing. During this period, between 20,000 and 25,000 Turkish Cypriots were forced to flee to enclaves.4 III. The Mandate of UNFICYP 1. The Original Mandate Under UN Security Council Resolution 186 (1964) UNFICYP originally received the mandate to:  prevent a recurrence of fighting;  contribute to the maintenance and restoration of law and order;  contribute to a return to normal conditions. Details of these three tasks were laid down in a circular from the SecretaryGeneral of 11 April 1964,5 in particular clarifying that troops would not take any initiative in using arms except in situations of self-defence. In November 1967, new inter-communal fighting broke out. When the President of Cyprus, Makarios, resisted demands from the Greek military dictatorship which had assumed power in April 1967 to declare enosis, armed units of the national guard under the command of General Grivas attacked Turkish Cypriot enclaves in Kokkina. UNFICYP being unable to offer protection due to the lack of a Chapter VII mandate to engage during conflicts between the communities, the Turkish aircraft bombed Greek Cypriot forces and Ankara prepared a military intervention. Following international pressure, Greece recalled General Grivas from the island and reduced its forces. UN Security Council Resolution 244 (1967) of 22 December 19676 expanded UNFICYP’s mandate to include the supervision of disarmament and arrangements to safeguard internal security. 2. The Amendments On 15 July 1974, the governing military junta of Greece sponsored a coup d’état against Cyprus President Makarios. After the Cyprus National Guard, led by Greek officers, had occupied the Presidential Palace, the former Greek Orthodox Bishop from Paphos, Gennadios, appointed Nicos Sampson as the new _____________ 4 Security Council Special Research Report of 4 September 2008 (2008 No. 3), “Cyprus: New Hope After 45 Years on the Security Council Agenda”, at 4; available at http://www.securitycouncilreport.org (accessed on 25 February 2015). 5 Secretary-General, Note of 11 April 1964 (UN Doc. S/5653). 6 Security Council, Resolution 244 of 22 December 1967 (UN Doc. S/RES/244).

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President. Sampson was known as a brutal paramilitary leader in the intercommunal strife of 1963/1964 and a fierce supporter of enosis. Upon instruction from Prime Minister Ecevit, the Turkish army landed on Cyprus on 20 July 1974, quickly seizing Kyrenia and around 5% of Cypriot territory. The Greek Junta broke down on 23 July and was replaced by civilian administration. In Cyprus, the speaker of the House, Clerides, assumed office when Sampson resigned as President on the same day. Clerides then represented Cyprus in the international conference of Geneva with Turkey, Greece and the United Kingdom (25–30 July 1974) and the Greek Cypriot community in inter-communal talks with the Turkish Cypriot leader, Denktash. On 14 August, those talks broke down and the Turkish army advanced within three days to the “Attila-line”. Turkey thereby gained control of nearly 37 % of the island’s territory. Moreover, most Greek Cypriots living in the northern parts of the island (numbering around 140,000–160,000 according to estimates) had to flee their towns and villages. In the course of the intervention, severe violations of human rights were committed by the Turkish army against Greek Cypriot civilians.7 Turkey’s intervention clearly breached Article 2 (4) of the UN-Charter and could not be justified under Article IV of the Treaty of Guarantee since the second phase at least did not have the objective to restore the constitutional order of Cyprus.8 However, UNFICYP troops on the island were neither empowered nor even remotely militarily equipped to stop the Turkish action. Rather, after the end of the hostilities, the Security Council adopted a number of resolutions expanding UNFICYP’s mandate. The changes included supervising the de facto ceasefire that came into effect on 16 August 1974, and maintaining a buffer zone between the lines of the Cyprus National Guard and of the Turkish and Turkish Cypriot forces. Following reports every June and December of the Secretary-General to the Security Council about the status of the Cyprus conflict and UNFICYP, the Security Council regularly renews the mandate for six-month terms.9 IV. First Interim Conclusion UN Peacekeeping activities on Cyprus belong to the first generation. The main goal is to ensure that the ceasefire is observed in full impartiality. The _____________ 7

EComHR, Cyprus v. Turkey, 9780/74 et al., Report of 10 July 1976. Kypros Chrysostomides, The Republic of Cyprus, A study in international law, 2000, 127 with further references. 9 The latest decision was taken pursuant to paragraph 7 of Security Council, Resolution 2168 of 30 July 2014 (UN Doc. S/RES/2168). 8

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maintenance of peace is no small achievement given the scale of the conflict and its potential to destabilise the Eastern Mediterranean region including the two NATO members Greece and Turkey. At the same time, UNFICYP has no political mandate to contribute to a political solution of the process. This brings us back to the second pillar of UN activities in Cyprus, namely its nonrecognition policy.

C. UN Non-Recognition Policy I. The Proclamation of the Turkish Republic of Northern Cyprus The forced eviction of Greek Cypriots from the northern part of the island in 1974 changed the demographic situation in Cyprus quite dramatically, leading to a zone north of the green line populated mainly by Turkish Cypriots, who were hitherto living under the effective control of the Turkish army stationed there in huge numbers. On 13 February 1975, the Turkish Cypriot administration reorganised itself by proclaiming a “Turkish Federated State of Cyprus” (TFSC). This entity saw itself as a federated State within the Republic of Cyprus although the latter was not organised as a federation. The TFSC was firmly ruled by the Turkish Cypriot leader, Denktash. He also reached an agreement (the “Vienna III agreement”) with his Greek Cypriot counterpart that most of the Turkish Cypriots who had still lived in the southern part of Cyprus were allowed to resettle in the northern part. Moreover, Turkey and the TFSC encouraged a significant number of Turkish settlers to move to northern Cyprus, thereby affecting the demographic composition of the island even further. Having been re-elected as President of the TFSC twice (in 1975 and 1981), Denktash received support from the Turkish army under General Kenan Evren (governing in Ankara since the coup d’état in September 1980) to upgrade the Turkish Cypriot entity. On 15 November 1983 the “Turkish Republic of Northern Cyprus” (TRNC) was proclaimed and recognised by Turkey as an independent State. The constitution of May 1985 closely resembles the Turkish (military) constitution of 1982, but also includes some elements of the 1960 Cyprus Constitution. II. Non-Recognition by the United Nations The concept of independent statehood in the northern part of Cyprus met sharp international resistance, though. The UN Security Council, in Resolution

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541 (1983) of 18 November 1983,10 declared that the proclamation of the TRNC should be considered “null and void” and called upon all States not to recognise it. Moreover, when Turkey established diplomatic relations with the TRNC, the UN Security Council called on States not to “facilitate or in any way assist the secessionist entity” in Resolution 550 (1984) of 11 May 1984.11 The legal significance of these statements is not entirely clear at first sight. Could a UN-Security Council Resolution on non-recognition prevent statehood of the TRNC? Under today’s prevailing view, that cannot be the case as recognition (or not) of a State by other States has only a declaratory function: “an entity is not a State because it is recognised; it is recognised because it is a State”.12 In the case of the TRNC, the fulfilment of at least two of the objective criteria of statehood (territory, population) cannot be denied. Whether there is independent government in view of the close ties with Turkey is, however, subject to debate.13 III. The Practical Effects of Non-Recognition In any case, even if statehood of the TRNC were to be assumed, account must be taken of the UN Security Council’s call for collective non-recognition. The practice, followed by all UN Member States, is not to enter into relations with the TRNC which presuppose attributes of sovereignty. Accordingly, the TRNC is neither admitted to international organisations, nor does it conclude international treaties with other States except Turkey. Moreover, the TRNC government cannot avail itself of any sovereign rights under the law of the sea or customary air law. Rather, rights under the Chicago Convention regulating the use of Cypriot airspace still belong to the Republic of Cyprus. It follows that third States are required to prohibit direct flights to the airport of northern Nicosia in view of the Republic of Cyprus’s decision to close it for international traffic.14 Certificates issued by Turkish Cypriot authorities cannot be recognised as proving Cypriot origin for the purpose of receiving preferential _____________ 10

Security Council, Resolution 541 of 18 November 1983 (UN Doc. S/RES/541). Security Council, Resolution 550 of 11 May 1984 (UN Doc. S/RES/550). 12 James Crawford, The recognition of states in international law, 2nd ed. 2006, 93. 13 Finding against Chrysostomides (note 8), 259–279; Hoffmeister (note 1), 51–52; finding in favour Stephan Talmon, Die kollektive Nichtanerkennung von Staaten, 2006, 37; Zaim Necatigil, The Cyprus Question and the Turkish Position in International Law, 2nd ed. 1996, 320 with further references. 14 High Court of Justice, Queen’s Bench Division, judgment of 28 July 2009 [2009] EWHC 1918 (Admin); upheld by the Court of Appeal on 12 October 2010 in R (on the application of Kibris Turk Hava Yollari & CTA Holidays) v. Secretary of State for Transport (Republic of Cyprus, interested party) [2010] EWCA Civ 1093 with a commentary by Mark Franklin, ASL 36 (2011), 109–116. 11

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access to the European market.15 Finally, TRNC citizenship is internationally invalid for immigration purposes, but may be relevant for personnel matters under international private law.16 On the other hand, not all legal acts of the TRCN are internationally irrelevant. In line with the finding of the ICJ in the Namibia opinion,17 legal arrangements and transactions should be deemed valid, “the effects of which can be ignored only to the detriment of the inhabitants of the Territory”. This means that at least documents and acts relating to personal status have to be generally accepted. Other administrative or judicial decisions may be regarded as valid provided that they do not interfere with vested human rights of other persons, in particular Greek Cypriot refugees.18 In this regard, the European Court of Human Rights clarified in two important judgments19 that the reformed Turkish Cypriot Property Commission can be regarded as a local remedy that must be exhausted before bringing a claim to the Strasbourg court. This gives some international credence to the decisions of this body. IV. Second Interim Conclusion In sum, the legal status of the TRNC (both if regarded as a non-State or an illegal, collectively unrecognised State) today resembles that of a local de-facto government.20 Other States are free to engage with this secessionist entity as long as this does not imply recognition, facilitation or assistance, the exact meaning of which falls within the discretion of States. International law thus largely governs both intricate questions of status of the parties to the conflict and has a number of consequences for the daily life of the Turkish Cypriot Community in particular. While not under formal embargo by the international community, Turkish Cypriots in the northern part of the island are living in a _____________ 15

ECJ, Judgment of 5 July 1994, Case 432/92 – Anastasiou, ECR 1994 I–3087. Talmon (note 13), 491–495. 17 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, 16, 56 (para. 125). 18 ECtHR, Loizidou v. Turkey, Merits, 15318/89, Judgment of 18 December 1996, ECHR 1996–IV 2216. 19 ECtHR, Xenides-Arestis v. Turkey, Admissibility, 46347/99, Judgment of 14 March 2005; ECtHR, Xenides-Arestis v. Turkey, Merits, 46347/99, Judgment of 22 December 2005, [2005] ECHR 919; ECtHR, Demopoulos and Others v. Turkey, Admissibility, 46113/99 et al., Decision of 1 March 2010. 20 Talmon (note 13), 265; Astrid Epiney/Bernhard Hofstötter, Zur Stellung von Nordzypern und Nordzyprern im europäischen Gemeinschaftsrecht, in: Astrid Epiney/Ulrich Haltern/Bernhard Hofstötter/Atilay Ileri (eds.), Zypern in der Europäischen Union – Ausgewählte völker- und europarechtliche Aspekte, 2008, 67–97. 16

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situation of political and economic isolation. To a certain degree, this is the consequence of their self-proclaimed statehood and the non-recognition thereof by the United Nations followed by all UN members except Turkey.

D. UN Good Offices I. The Security Council Parameters for a Settlement In line with Article 99 of the UN-Charter, several UN Secretary-Generals have personally involved themselves in good offices missions to foster a political settlement in Cyprus. While the details of their political approaches can be consulted elsewhere, the interesting detail here is the fact that the UN Security Council intervened at some stage by using a number of parameters for a settlement. Those political parameters, in turn, reflect certain legal assessments. Starting with UN Security Council Resolution 649 (1990)21 the Security Council has emphasised the “political equality” of the two communities. Not questioning its non-recognition policy towards the TRNC, the Council hereby gave comfort to the Turkish Cypriot community by clarifying that it should not merely be regarded as a minority in relation to the Greek Cypriot community. In diplomatic terms, this also implied that talks could be held between the “leaders of the two communities”, and not between the (internationally recognised) “President of the Republic of Cyprus” and the (non-recognised) “President of the Turkish Republic of Northern Cyprus”. Subsequently, the Security Council went even beyond these important formal parameters and addressed crucial aspects of substance. In Paragraph 11 of Resolution 1251 (1999),22 which is still highlighted in contemporary resolutions adopted in New York,23 the Security Council reaffirms its position that a Cyprus settlement must be based on a State of Cyprus with a single sovereignty and international personality and a single citizenship, with its independence and territorial integrity safeguarded, and comprising two politically equal communities as described in the relevant Security Council resolutions, in a bicommunal and bi-zonal federation, and that such a settlement must exclude union in whole or in part with any other country or any form of partition or secession.

The reference to a “State of Cyprus with a single sovereignty and international personality” is a diplomatic attempt to exclude a confederation between _____________ 21

Security Council, Resolution 649 of 12 March 1990 (UN Doc. S/RES/649). Security Council, Resolution 1251 of 29 June 1999 (UN Doc. S/RES/1251). 23 See para. 6 of Security Council, Resolution 2168 of 30 July 2014 (UN Doc. S/RES/2168). 22

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the Republic and the TRNC as this would lend ex-post legitimacy to the TRNC in contradiction to the UN's non-recognition policy. Instead, a federal solution is set as a parameter. This federation, however, should be “bi-communal and bi-zonal”. The latter recognises that there are two territorial “zones” on the island. This does not prejudge the size of territorial adjustments which could be made via a settlement. However, any solution should clearly give the Greek Cypriot and the Turkish Cypriot a territorial base for self-governance within the federal structure. In addition, the mention of “bi-communal” prescribes a system of powersharing between the two communities also at the federal level. In other words, next to self-governance on matters that belong to the level of the communities, the federal institutions should be designed in a way that Turkish Cypriots and Greek Cypriots be able to participate in a way that both communities feel properly represented. II. The Annan Plan 2002–2004 Sparked by the EU accession course of the Republic, the UN good offices mission became very intense in the period between 2002 and 2004. It culminated in the presentation of a fully-fledged settlement text in five different versions (Annan I – Annan V). The final proposal was put to the parties by the UN Secretary-General at the end of a diplomatic conference held in Bürgenstock (Switzerland) with the parties as well as Greece and Turkey in March 2004. Procedurally, the Annan Plan was probably the most comprehensive peace plan in UN history, including not only the main political principles, but a whole series of fully formulated legal texts, including the constitution of the United Cyprus Republic, the two constituent States and numerous federal laws.24 Those had been elaborated by the parties over months and finalised by the team of the UN Special Advisor on Cyprus based on the power to “fill gaps”, which the two parties had entrusted on Kofi Annan in February 2004. The plan thus tried to put the above-mentioned principles from the Security Council into a concrete structure, enacting main compromises on governance, territory, security and property.25 During the preparation, the parties under_____________ 24

The full text of Annan V of 31 March 2004 is available at http://www.zypern.cc/ extras/annan-plan-for-cyprus-2004.pdf (accessed on 25 February 2015). 25 For a critical assessment of the plan (pro and contra) see the contributions in Andrekos Varnava/Hubertus Faustmann (eds.), Reunifying Cyprus: the Annan Plan and Beyond, 2009.

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pinned their positions with arguments derived from international law in particular on three controversial issues. 1. The Creation of the United Cyprus Republic Under the Annan Plan, a United Cyprus Republic (UCR) would have been created with two constituent States.26 The parties, though, disagreed over the mode of creation. For the Greek Cypriot side, the UCR would be a continuation of the Republic of Cyprus in a different constitutional set-up, whereas the Turkish Cypriot side preferred the idea that both existing entities (the Republic of Cyprus and the TRNC) would be co-founders of the new UCR. The UN tried to square the circle by suggesting a “virgin birth” approach. The SecretaryGeneral thus did not adopt a coherent legal theory about the creation of the United Cyprus Republic, but rather mixed elements of continuity (such as the automatic membership of the UCR in the UN and the EU) and succession (such as the validity of past acts and the listing of two TRNC agreements with Turkey as binding on the UCR) together. This did not imply ex-post recognition of the TRNC and was thus consistent with the non UN’s non-recognition policy.27 2. The Treatment of Dispossessed Owners Article 10 of the Foundation Agreement put forward the following rules on property: (1) The claims of persons who were dispossessed of their properties by events prior to entry into force of this Agreement shall be resolved in a comprehensive manner in accordance with international law, respect for the individual rights of dispossessed owners and current users, and the principle of bi-zonality. (2) In areas subject to territorial adjustment, properties shall be reinstated to dispossessed owners. (3) In areas not subject to territorial adjustment, the arrangements for the exercise of property rights, by way of reinstatement or compensation, shall have the following basic features: a. Dispossessed owners who opt for compensation, as well as institutions, shall receive full and effective compensation for their property on the basis of value at the time of dispossession adjusted to reflect appreciation of property values in comparable locations. Compensation shall be paid in the form of guaranteed bonds and appreciation certificates b. All other dispossessed owners have the right to reinstatement of one-third of the value and one-third of the area of their total property ownership, and to receive full _____________ 26 27

Arts. 1 and 2 of the Foundation Agreement of Annan V (note 18). Hoffmeister (note 1), 160.

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and effective compensation for the remaining two-thirds. However, they have the right to reinstatement of a dwelling they have built, or in which they lived for at least ten years, and up to one donum of adjacent land, even if this is more than one-third of the total value and area of their properties c. Dispossessed owners may choose any of their properties for reinstatement, except for properties that have been exchanged by a current user or bought by a significant improver in accordance with the scheme. A dispossessed owner whose property cannot be reinstated, or who voluntarily defers to a current user, has the right to another property of equal size and value in the same municipality or village. S/he may also sell his/her entitlement to another dispossessed owner from the same place, who may aggregate it with his/her own entitlement d. Current users, being persons who have possession of properties of dispossessed owners as a result of an administrative decision, may apply for and shall receive title, if they agree in exchange to renounce their title to a property, of similar value and in the other constituent state, of which they were dispossessed e. Persons who own significant improvements to properties may apply for and shall receive title to such properties provided they pay for the value of the property in its original state; and f. Current users who are Cypriot citizens and are required to vacate property to be reinstated shall not be required to do so until adequate alternative accommodation has been made available. (4) Property claims shall be received and administered by an independent, impartial Property Board, governed by an equal number of members from each constituent state, as well as non-Cypriot members. The Property Board shall be organized into branches in accordance with sound economic practice. No direct dealings between individuals shall be necessary.

When analysing these rules, the following distinction can be made. Paragraph 1 sets out the underlying principles; paragraphs 2 and 3 contain the substantive rules; and paragraph 4 lays down the applicable procedure. Turning to the underlying principles, the Annan Plan refers in the first place to the individual rights of dispossessed owners. This echoes the basic ruling of the European Court of Human Rights, according to which expropriation of Greek Cypriots who fled their properties in the north under the TRNC had no legal value.28 Accordingly, the starting premise on the property issue was to find a solution in line with Article 1 of the First Additional Protocol to the European Convention on Human Rights. The second principle, though, is the respect for the – conflicting – rights of “current users”. The idea behind this seems to recognise the circumstances of persons or their children who have _____________ 28 ECtHR, Loizidou v. Turkey, Merits, 15318/89, Judgment of 18 December 1996, ECHR 1996–IV 2216, MN 44; ECtHR, Cyprus v. Turkey, 25781/94, Judgment of 10 May 2001, MN 188–189.

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lived for up to 30 years in the property of a dispossessed owner or who may have also invested their own money into the maintenance or improvement of such property. While this does not create a title over the land of an evicted owner, it may at least be regarded as a legitimate interest that needs to be respected in any balancing exercise. The third principle refers back to “bizonality” as laid down in the relevant UN Security Solutions. Accordingly, the plan would look at solutions that would not disrupt the basic constitutional setup with two constituent States, each one basically administered by one of the Cypriot communities. Paragraphs 2 and 3 then contained Annan’s specifications of how to reconcile the underlying principles in practice. Importantly, paragraph 2 foresaw restitution of Greek Cypriot property in those areas which – after territorial readjustment – would fall under the jurisdiction of the Greek Cypriot constituent State. That would have covered more than half of the Greek Cypriot refugees. In turn, property lying in the territory of the Turkish Cypriot constituent State would be treated, under paragraph 3, in a differentiated fashion. Turkish Cypriot users who had invested into the property more than its original value could receive title over it against payment of compensation (lit. e). Similarly, those Turkish Cypriots who had left their property in the southern part could exchange it against property in which they were living now in the northern part (lit. d). However, the situation of all other persons, in particular settlers who were simply living in a Greek Cypriot house, would have been dependant on a decision of the dispossessed owner. If the latter decided to accept compensation, the current user would gain title against full payment (lit. a). If the dispossessed owner demanded restitution, he would get full reinstatement if he had lived in the house in question for at least 10 years before eviction or had him/herself built the dwelling (lit. b second sentence). In all other cases, the dispossessed owner could demand restitution of at least 1/3 of the property and receive full and effective compensation for the remaining 2/3 (lit. b. first sentence). Finally, paragraph 4 made clear that dealing with those issues should be handled through an impartial Property Commission with domestic and international membership. In the eyes of the UN Legal Advisor on the Annan Plan29 and some academic observers,30 this ‘mixed’ system was in line with the Convention system. _____________ 29 Didier Pfirter, Cyprus – A UN Peace Effort under Conditions of ECHR Applicability in Human Rights, Democracy and the Rule of Law, in: Liber amicorum Luzius Wildhaber, 2007, 590, 610 et seq.

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However, in the eyes of the Greek Cypriot side, such treatment of the property issue added to other grievances with regard to the overall balance struck by the plan. The then Greek Cypriot leader, Tassos Papadopoulos, mentioned it in his famous TV speech of 7 April 2004 before the referendum by which he advised the Greek Cypriots to reject the plan. Today, the judge appointed by Cyprus to the European Court of Human Rights equally holds the view that the Annan Plan was incompatible with the Convention guarantees, arguing that all properties of Greek Cypriots in the occupied territory should be reinstated to their lawful owners because usurpation of private land by an occupying power would be illegal under international law.31 This view, though, seems to overlook the logic of the plan with respect to property matters. In line with international law, the Annan Plan would not have accorded any legal force to previous TRNC measures (and thus confirmed ownership of all dispossessed Greek Cypriot owners with respect to properties lying in the north). However, the plan itself would then have expropriated some Greek Cypriot owners whose property would have been situated in the Turkish Cypriot Constituent State if the current user had made significant improvements or if the 1/3 rule would have been applied. In such a situation, the dispossessed owner would have had to accept that 2/3 of his property is not reinstated but only compensated. Such a new measure, if it had been approved by the Cyprus people through referenda, would have been in line with the Convention. First, the European Court of Human Rights has already allowed expropriation against the payment of compensation, which does not have to reflect the full market value if that is justified by a fundamental change in the country’s constitutional system.32 A fortiori, a solution providing full compensation in clearly circumscribed cases of expropriation would have withstood the test as well. Moreover, in the meantime the Court itself has confirmed in the Demopoulos decision that compensation provided to dispossessed Greek Cypriot owners under the Turkish Cypriot law no. 67/2005 is in principle in line with the Convention. In that context it held that it is “necessary to ensure that the redress applied to those old injuries _____________ 30 Thomas Giegerich, The EU accession of Cyprus and the Fate of the Annan Plan – concluding remarks, in: Thomas Giegerich (ed.), The EU Accession of Cyprus, 2006, 253, 278. 31 Loukis G. Loucaidis, The Legal Support of an illegal UN Plan by a UN Lawyer, Cyprus Yearbook of International Relations 2007, 19, 39. The article is also published online on the site of the Cyprus Supreme Court at http://www.supremecourt.gov.cy/ju dicial/sc.nsf/0/56BBB08840A924DEC225734E004FC360/$file/Annan%20Plan%20Arti cle.pdf. Unfortunately, and uncommonly for academic debate, the article also contains a number of unjustified personal attacks against the UN Legal Advisor. 32 ECtHR, Former King of Greece v. Greece, 25701/94, Judgment of 28 November 2002, MN 78.

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does not create disproportionate new wrongs. To that end, the legislation should make it possible to take into account the particular circumstances of each case. Thus, there is no precedent in the Court’s case-law to support the proposition that a Contracting State must pursue a blanket policy of restoring property to owners without taking into account the current use or occupation of the property in question”.33 This statement can be read as accepting Annan’s second underlying principle, namely that next to the rights of dispossessed owners the interests of current users must also be taken into account when solving the property issue. Whether or not such weighing and balancing between the different rights and interests under the plan would have been politically desirable is, of course, another matter. In other words – the critique of the Annan Plan as being “incompatible with (international or European) human rights” is simply a cover for a political position which is not willing to compromise on the property issue, but instead insists on full restitution for all Greek Cypriot dispossessed owners without any exception. 3. The Eligibility of Voters in the Simultaneous, but Separate Referenda On 24 April 2004, the Annan Plan was submitted to voters in the government controlled areas (75,8% against) and in the northern part of the island (64,9% in favour). On the Turkish Cypriot side, all TRNC citizens who were registered as electors in December 2003 were allowed to vote. Whereas the precise number is unclear, this undoubtedly included a number of persons coming from mainland Turkey who settled in the northern part of Cyprus after 1974. Their participation was criticised, as under the right to self-determination, only the original population of the territory should have been allowed to express its will on its political future.34 One opponent of the Annan Plan formulated sharply: A plan whose main characteristic was vagueness and which had not been approved by the elected officials of the Republic of Cyprus was submitted to two separate referenda, one of which was held under military control and with the participation of illegal settlers. This is hardly the manner in which one achieves a viable solution of an international problem.35 _____________ 33

ECtHR, Demopoulos and Others v. Turkey, Admissibility, 46113/99 et al., Decision of 1 March 2010, MN 117. 34 Andreas Auer/Mark Bossuyt/Peter Burns/Alfred De Zayas and others (International Expert Panel for a European Solution of the Cyprus Problem), Opinion commissioned by the Republic of Cyprus, para. 14; available at http://alfreddezayas.com/Law_history/ Cyprusproposal.shtml (accessed on 25 February 2015). 35 Achilles Emilianides, Contra: Constitutional Structure of the Annan Plan, in: Varnava/Faustmann (note 25), 93, 94.

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True, the final plan had not been approved by the Cyprus government. But government experts had fully participated in the preceding working groups which had produced almost the entire text of the plan. And the UN filled the remaining blanks on the basis of an empowerment given by the Cyprus President to the UN Secretary-General in February 2004! Otherwise, it would also have hardly been conceivable that the government submitted the plan – which it did not support – to a referendum in the southern part of the island. With respect to the participation of settlers, the above quoted view does not, unfortunately, discuss the counter-arguments derived from previous UN practice when organising referenda. For example, practice on East-Timor and Western Sahara has shown that marriage with an eligible voter or continuous residence on the territory may create a legitimate link for exercising voting rights in an act of self-determination – only if a TRNC voter would have fulfilled neither of these conditions would there have been room for questioning the vote in the northern part of the island.36 This, however, was unlikely for the greater part of the voters, as during the negotiations on the first version of the Annan Plan the then President Clerides had already accepted that 45.000 of settlers in the TRNC would have become eligible as citizens of the United Cyprus Republic. III. EU Accession 2004 1. The Legality of Accession With the rejection of the Annan Plan, the UN good offices came to a halt. At the same time, the Republic of Cyprus entered the European Union as a full member. Not surprisingly, this action was not left without a legal attack either. As early as 1997, when Cyprus’s application was entertained by the European Council, the Turkish Cypriot side argued with reference to an opinion commissioned by Turkey37 that European Union membership would be incompatible with Article I (2) the Treaty of Guarantee. The latter outlaws any activity “likely to promote, directly or indirectly, either union with any other state or partition of the island”. Both the wording and the historical context make clear that it was directed against ‘Enosis’ (unification with Greece), but had nothing to do with the accession to an international organisation to which Greece was also party. Accordingly, the attempt to stop EU accession via an argument derived from international law utterly failed. _____________ 36

Hoffmeister (note 1), 183–184 with more details. Moritz Mendelson, The application of “The Republic of Cyprus” to join the European Union, circulated by Turkey in the UN as UN Doc. A/51/951. 37

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However, EU membership did not mean that the Turkish Cypriots would become governed by European law either. Rather, the application of the acquis communautaire was formally suspended in the areas in which the Government of Cyprus does not exercise effective control.38 This clarification differs from the approach taken by the Republic, which regards its domestic law as applicable throughout the entire island. 2. The International Law Dispute on the Direct Trade Regulation Moreover, in spring 2004, the EU Commission drew some consequences from the call of the 15 EU Foreign Ministers after the referenda to “put an end to the isolation of the Turkish Cypriot Community and to facilitate reunification of Cyprus by encouraging the economic development of the Turkish Community”.39 While a regulation for financial aid was passed in the Council, the other proposal to facilitate direct trade between the northern part of Cyprus and EU Member States40 was rejected by the Government of Cyprus. One of the arguments raised, supported by the Council Legal Service, was that the proposal would undermine its sovereign decisions to close all northern ports and airports for international traffic, thus violating international law. Moreover, the used legal basis on foreign trade with third countries could imply recognition of the TRNC.41 The second argument can be easily disposed of. Clearly, Article 207 TFEU (then Article 133 EC) refers to foreign trade with territories where the acquis does not apply. Accordingly, the trade regime with Ceuta and Melilla is governed by regulations based on this legal basis.42 The same could be done with an area which belongs to an EU Member State where the acquis is formally suspended. However, the international law argument is more to the point: would the EU not undermine the Cypriot government’s choice to stop direct traffic through northern seaports and ports when offering privileged access to the EU market, knowing that this can only be done by using those ports? _____________ 38

Protocol 10 to the Accession Treaty, OJ 2003 L 236/955. Conclusions of the EU General Affairs Council of 26 April 2004. 40 Commission of the European Communities, Proposal for a Council Regulation on special conditions for trade with those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control of 7 July 2004, COM(2004) 466 final. 41 Phoebus Anthanassiou, The Status of the “TRNC” through the Prism of Recent Legal Developments: Towards Future Recognition?, CR 22 (2010), 15, 28 (at note 56). 42 Council Regulation (EC) 1140/2004 of 21 June 2004 suspending the autonomous Common Customs Tariff duties on certain fishery products in Ceuta and Melilla, OJ 2004 L 222/1. 39

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The answer for this question could be found in customary international law: is there any rule, binding on the EU, which prohibits direct trade through ports that the legitimate government has closed? On this point, the Commission took the view that no such rule exists with respect to seaports. Rather, State practice has been to make use of seaports which were under the control of local insurgents against the will of the legitimate government.43 Irrespective of this legal assessment, though, the proposal has been classified in the European Parliament by consensus between the main political groups in 2010 and is unlikely to be adopted. IV. The Direct Talks In 2008, settlement talks were revived after the election of Mr. Christofias as President of the Republic of Cyprus. He engaged with the leader of the Turkish Cypriot Community, Mr. Talat, in a new format. The talks should be “Cyprus driven”, assisted by the UN in the person of Special Adviser Downer. On substance, the leaders took over the UN framework principles, as described above, adding that there should be a single citizenship in Cyprus. However, no breakthrough could be achieved by spring 2010 when Mr. Talat’s mandate ended. Equally disappointing was the outcome of the discussions between Mr. Christofias and the new Turkish Cypriot leader Eroglu. Despite the personal involvement of UN Secretary-General Ban (Greentree I and II meetings in January 2011 and 2012), no result could be recorded before Christofias was replaced by Mr. Anastassiadis through elections in February 2013 in the Republic. Interestingly, the present leaders were able to issue a new joint declaration on 11 February 2014 reiterating their consent to aim for a “Bi-zonal, bicommunal federation of a united Cyprus with single international personality, single sovereignty, and single citizenship (the three singles)”. Evidently, this was very close to the UN parameters as previously enriched by Talat and Christofias on the issue of single citizenship. The latter point did away with the idea under the Annan Plan that next to international citizenship issued by the Federation there could be internal constituent State citizenship for administrative purposes.44 Since then, both sides exchange their positions on all negotiation chapters (17 documents by the Greek Cypriot side and 15 documents by the Turkish Cypriot side). _____________ 43

EU Commissioner Rehn, Response of 18 January 2008 to Parliamentary Question E-4901/07; Talmon (note 13), 766–772 with further references. 44 Art. 3 (2) of the Foundation Agreement under Annan V (note 24).

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However, as of writing, no further exchanges are scheduled, inter alia because the Turkish Cypriot leader judges the Greek Cypriot positions as falling outside the UN parameter, while the Greek Cypriot leader rejects the Turkish Cypriot suggestions to agree on a fixed timetable first before entering the discussions on substance. Moreover, the diplomatic tensions between Cyprus and Turkey over off-shore gas exploration in the country’s exclusive economic zone and Turkey’s announcement of May 2014 not to pay the just satisfaction of 90 million € awarded by the European Court of Human rights in the Cyprus v. Turkey case45 do not seem to foster a general atmosphere conducive to advancing the talks at this juncture.

E. Conclusion How would Walther Schücking have assessed the role of international law in the Cyprus conflict? He probably would have liked the very fact that the UN played a central role in providing stability through peacekeeping and discouraged recognition of the TRNC as an entity owing its existence to aggression by Turkey. Moreover, the UN’s good offices mission, offering assistance and expertise in the settlement talks and even completing a fully-fledged settlement plan might have resonated well with his beliefs of bringing peace through international law. However, he would have also been confronted with the attitude from the legal advisors of both sides to use international law to reduce the available negotiation space. Lord Hannay, the former British Special Envoy on Cyprus, has observed in his review of the book written by the Greek Cypriot Legal Advisor Mrs. Claire Palley on the Annan Plan46 that she used legal considerations “as a tool, a weapon even, against the opposing party, a means of gaining redress for the wrongs of the past, coming to an astonishing reductionist view of the UN Secretary General and his officials to broker a settlement, a reductive view shared on the other side of the table by Rauf Denktash”.47

_____________ 45 ECtHR (Grand Chamber), Cyprus v. Turkey, Just satisfaction, 25781/94, Judgment of 12 May 2014; with discussion by Isabella Risini, An Individual Centered Decision seen in the historical and institutional context which led to Cyprus v. Turkey (IV) – The 2014 Just Satisfaction Judgment of the European Court of Human Rights, HRLJ 34 (2014), 18–26. 46 Claire Palley, An International Relations Debacle, The UN Secretary’s Mission of Good Offices in Cyprus 1994–2004, 2005. 47 David Hannay, Former UK Special Envoy on Cyprus, Book review, BYIL 79 (2008), 367, 368–369.

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Such a use of international law has probably not fostered but rather hampered conflict settlement through weighing and balancing of the interests at issue. Exercising such weighing and balancing, though, it is submitted, is foremost the task for the politicians in the name of the people they represent. Ruling out solutions through a rigid reading of the law instead can easily create stumbling blocks and reduce the usefulness of the law. Cyprus is thus an example of both the importance and the limits of international law for international conflict settlement.

Case Study on Libya By Jean-Yves de Cara

A. Introduction The situation which has been developing in Libya as from 2011 illustrates Goethe’s observation: “A great revolution is never the fault of the people, but always of the government”.1 Following three years of fierce fights and political adventure, the fake or real kidnapping of the Prime Minister, attempted assassination of his successor, continuous changes in the government and several elections, two governments and two parliaments have been competing for almost a year and negotiation between factions and armed groups has been ongoing since September 2014. Actually, it all started in Benghazi, the capital city of Cyrenaica – an Eastern region of the country and an area traditionally hostile to Tripoli and particularly to Qadaffi’s clan. Then, from the “Day of Anger” on 17 February 2011, protests unfolded against the rule of Muammar Qadaffi. The country is huge with a small population, and the tribal system prevails. The three main regions – Tripolitania, Cyrenaica and Fezzan – united under the colonial Italian ruling, then under the monarchy and finally by the “Supreme Guide” since 1969, do not reflect a feeling for national unity. The time has gone when the Senussi brotherhood had created the impression that the tribes belonged to one community to which the fight led by Omar Al-Mokhtar infused a national feeling.2 Opposition to the Qadaffi regime had suffered from repression in the 1980s, but a new generation of opponents appeared through networks linked to “cyberactivists” from outside, Europe and the USA. The violent crackdown turned protests into riots and some commanders from Cyrenaica joined the insurgents. Qadaffi deployed air forces despite the reservations or opposition of the head of _____________ 1

“Revolutions are utterly impossible as long as governments are constantly just and constantly vigilant; so that they may anticipate them by improvements at the right time, and not hold out until they are forced to yield by the pressure from beneath”; cf. Johann Peter Eckermann, Conversations with Goethe, 1836 (year 1824). 2 Eric A. Vully de Candole, The life and times of King Idris of Libya, 1988; published privately by Mohamed Ben Ghalbon, 1990; François Burgat/André Laronde, La Libye, 2003.

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air forces, General al Rifi al Sharif, and managed to fight back the rebellion. The Libyan leader vowed to fight back the insurgents until their “last drop of blood” and to destroy “rats and microbes” who took arms against the State. On 10 March 2011, The French authorities decided to recognise the National Transitional Council of Libya (NTC, created on 6 March) as “the legitimate representative of the Libyan people”.3 On the following day, the European Council expressed strong solidarity with the Libyan people and the victims.It firmly condemned the violent repression of the Libyan regime “against its citizens and the gross and systematic violation of human rights” with the Council declaring that “Colonel Gadhafi must relinquish power immediately. His regime has lost all legitimacy and is no longer an interlocutor for the EU”.4 One month after the uprising in Libya, foreign intervention was decided following the adoption of two Security Council (SC) resolutions. The purpose of the intervention is clearly stated: to “protect innocent civilians,” as claimed by the US representative. That summarises the inspiration and the spirit of the two UN resolutions. The first one,5 unanimously adopted, expressed “grave concern at the situation” and condemned the violence and use of force against civilians, “the gross and systematic violation of human rights, including the repression of peaceful demonstrators”. The Council relied also on the previous condemnation by the League of Arab States (LAS), the African Union (AU) and the Organization of the Islamic Conference (OIC), as well as the Human Rights Council (HRC). For the SC, the widespread and systematic attacks taking place in Libya against the civilian population might amount to a crime against humanity. Reaffirming the sovereignty, independence, territorial integrity and national unity of the Libyan Arab Jamahiriya, the SC also recalled the national authorities’ responsibility to protect (R2P) their population. Acting under Chapter VII of the UN Charter, on the basis of Article 41, the SC called for an immediate end to violence and for steps to fulfil the legitimate demands of the population. Four categories of measures were decided: – reference of the situation to the Prosecutor of the International Criminal Court, – an arms embargo on all supply to Libya, _____________ 3

See Press Statements by the French Government, 6 and 10 March 2011, available at http://www.diplomatie.gouv.fr/fr/pays-zones-geo/libye/la-france-et-la-libye/evenements4528/article/libye-10-03-11 (accessed on 28 February 2013). 4 European Council, Declaration of 11 March 2011 (EUCO 7/1/11 REV 1), paras. 6 et seq. 5 Security Council, Resolution 1970 of 26 February 2011 (UN Doc. S/RES/1970).

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– travel bans for sixteen individuals (Qadaffi and several members of his family), – freezing of all assets and economic resources of the family. Following the adoption of that resolution, on 8 March 2011, the North Atlantic Treaty Organization (NATO) increased its surveillance operations in the Mediterranean.6 The Libyan authorities failed to comply with the measures. The SC adopted a second resolution, to reinforce and toughen the measures against Libya.7 The resolution mainly focused on the protection of civilians. For that purpose, the SC authorised “Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, [...] to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi,” however it excluded “a foreign occupation force of any form on any part of Libyan territory.” That is the usual phrasing for the authorisation to use force and that formed the basis for the armed intervention. Secondly, the SC established a no-fly zone, which placed a ban on all flights in the Libyan airspace in order to help protect civilians, as suggested by the Arab League. Sir Mark Lyall Grant, for the United Kingdom, made it very clear that: “the central purpose of the resolution is [...] to end the violence, to protect civilians and to allow the people of Libya to determine their own future, free from the tyranny of the Al-Qadhafi regime”.8 However, there was certainly some ambiguity in the discussion. For the Russian envoy to the UN, the resolution did not keep with standard practice in the SC and a range of questions remained unanswered. Those questions “touched on how the no-fly zone would be enforced, what the rules of engagement would be and what limits on the use of force there would be.” The Russian delegation considered that the initial proposal had been transformed and that this could potentially open the door to large-scale military intervention.9 The Russian position was joined by four other members of the SC who decided to abstain in the voting. Despite the reservations of some Member States, _____________ 6 The Ministers of NATO met on 7 March 2011 and action started on the following day, see statement by the NATO Secretary General issued on 27 March 2011, available at http://www.nato.int/cps/en/natolive/news_71808.htm (accessed on 27 February 2013). 7 Security Council, Resolution 1973 of 17 March 2011 (UN Doc. S/RES/1973). 8 Security Council, The Situation in Libya, Provisional Verbatim Record of the 6498th Meeting, 17 March 2011 (UN Doc. S/PV.6498), 4. 9 Ibid., Vitaly Churkin (Russia), 8; the same views were expressed by the SC President speaking in his capacity as representative of China, Li Baodong (China), 10.

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the resolution was adopted and action was taken the following day. Lebanon had co-sponsored the resolution and several Arab countries volunteered to participate in the decision relating to the implementation of the measures. Qatar and the United Arab Emirates (UAE) were among the first States to notify the UN that they would contribute to the military operations. They made a critical contribution to the coalition, and this was hailed by the London Conference contributors who created a contact group that met later in Qatar.10 The military intervention was launched by France on 19 March 2011, following a tripartite summit of the EU, AU and the Arab League. On 22 March 2011 NATO agreed to enforce the ‘arms and related materials’ embargo and on 24 March 2011 to enforce the no-fly zone over the country. Finally the Alliance took sole command and control of the international military action on 31 March 2011 to protect civilians and civilian-populated areas from air attacks. All allies took part directly or indirectly in the Operation Unified Protector which was also supported by Sweden, Qatar, the UAE, Jordan and Morocco. Close contact and consultation were kept with the UN, the Arab League and the other international partners. The intervening parties made clear that they did not envisage an occupation of the country, which would be contrary to the resolution. However, they also blandly asserted that the current regime had completely lost its legitimacy and that Qadaffi should therefore stand down immediately. The NATO operation continued during October 2011, helping to reduce the ability of the Qadaffi regime to target civilians. After the capture of the Libyan leader by opposition forces and his death, the military operation ended on 31 October 2011; the Alliance was ready to assist the new Libyan authorities if requested to do so. What was the basis of the intervention? From a legal point of view, this is the first time the SC acted on the basis of the Responsibility to Protect (R2P), as designed in the 2005 World Summit Outcome Document.11 Although related to “human security”, R2P is a distinct doctrine. It is aligned with the idea of an international community and with an enlarged concept of international responsibility. That is linked to “a serious breach by a State of [...] a peremptory norm of general international law”: prohibition of aggression and genocide, and more generally “the principles and rules concerning the basic rights of the human person, including protection _____________ 10

This contact group of fifteen members was created in London on 30 March 2011. Reaffirmed in Security Council, Resolution 1674 of 28 April 2006 (UN Doc. S/RES/1674); see Société française pour le droit international, La responsabilité de protéger – Colloque de Nanterre (2008); Laurence Boisson de Chazournes/Luigi Condorelli, De la responsabilité de protéger, ou d’une nouvelle parure pour une notion déjà bien établie, RGDIP 110 (2006), 1, 11; Vincent Auger, The responsibility to protect: Six years after, ASPJ 25 (2011), 84. 11

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from slavery and racial discrimination.” But it also covers torture, persecutions and other forms of degrading treatment or punishment. In the 2005 World Summit outcome, the General Assembly (GA) acknowledged that “each individual State has the responsibility to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity”, which flows down from sovereignty. However, the GA declared in that context that States are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organisations as appropriate, should peaceful means be inadequate and national authorities manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. As a consequence, no serious doubt has been expressed as to the legality of the intervention in Libya on the basis of the UN resolution, as an implementation of the R2P doctrine. The situation is quite different from previous precedents of intervention, in Yugoslavia (1999), in Afghanistan (2001), or in Iraq (2003), which were decided and conducted outside the authority of the UN. There have been precedents. Military actions taken to protect civilians have been authorised by the SC.12 In that regard the intervention in Libya is not exceptional. The right to intervene does not exist in international law,13 but it has been long established that intervention in the interest of humanity could be legally permissible. Already in the early 20th century, Rougier designed the theory of “intervention d’humanité” on the basis of a number of precedents. This does not mean, however, that it constitutes a binding obligation on States. Furthermore, there have been many cases where States did not intervene in similar situations.14 A minor part of French doctrine had even developed, in the 1980s, the notion of a “right to intervene” or a “duty to intervene,” which would now be unfolded into the R2P.15 This alleged right of intervention can only be regarded as a rhetorical effect or as a diplomatic pose. _____________ 12

Bosnia and Herzegovina, Somalia, Rwanda and Zaire, Timor Leste or the Ivory Coast. 13 ICJ, Corfu Channel case, Judgment, ICJ Reports 1949, 4, 35. 14 Antoine Rougier, La théorie de l’intervention d’humanité, RGDIP 17 (1910), 468; Percy Henry Winfield, The History of Intervention in International Law, BYIL 3 (1922– 1923), 130; Brendan Simms/D.J.B. Trim (eds.), Humanitarian Intervention: A History (2011). 15 See Mario Bettati, Le droit d’ingérence. Mutation de l’ordre international, 1996; id., Du droit d’ingérence à la responsabilité de protéger, Outre-Terre 20 (2007), 381– 389; Bernard Kouchner/Mario Bettati, Le devoir d’ingérence. Peut-on les laisser mourir?, 1987.

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In 1986, the ICJ rejected the idea that the violation of human rights entitles a foreign State to change the government of another country by force, stating that “[t]he Court cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system”.16 The Court did not accept the principle of an ‘ideological intervention’ the definition of which would be discretionary, so as to change the political, social or economic regime of a foreign State. But that ruling does not reject armed force measures whose purpose would be purely to safeguard internationally protected rights. In that sense, the R2P stems from a classical analysis. The first goal is to ensure and enforce the respect of the UN Charter and human rights. The second is to channel international intervention through the SC. It is not a deep transformation of the global collective security system, it has always been accepted that the SC might authorise military action to redress a catastrophic internal situation when it is prepared to consider it as a “threat to international peace and security” and so long as the permanent members refrain from the use of the veto. However, two observations have to be added. Firstly, the R2P does not mean only the responsibility to react, i.e., intervention, but the responsibility to prevent and the responsibility to rebuild as well. Secondly, apart from the right authority to decide, five criteria of legitimacy for the use of force in such a situation have been identified: seriousness of the threat, proper purpose, last resort, proportional means and balance of consequences.17 They describe the usual conditions such as proportionality and exhaustion of all peaceful means to settle the situation as already required in the past and present. They also refer to the usual practice of the SC where the definition of purposes, the limitation of the duration of a military operation, and the reporting as to the action taken are all within the jurisdiction of the authorising body. The R2P is not legally binding on States or the Security Council. There is certainly, under international law, a duty for the State to protect its citizens. Conversely, there is presently no legal basis for an obligation binding on States to intervene on behalf of foreign citizens persecuted by their own government on its territory. Inevitably the evaluation of an intervention comprises a crucial political aspect; it constitutes, for the intervening State, the decisive factor. The motives of NATO in Libya were not disguised. _____________ 16 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment, ICJ Reports 1986, 14, para. 263. 17 International Commission on Intervention and State Sovereignty, Report: The Responsibility to Protect (December 2001), para. 4.16.

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Firstly, the coalition insisted on the need to impede a “humanitarian catastrophe” and pleaded that the threat expressed by Qadaffi was the most urgent factor; the members of the coalition would not accept another Rwanda or Srebrenica. The Independent International Commission on Kosovo deemed NATO’s action in 1999 “illegal but legitimate” and suggested the need to close that gap. The R2P in Libya was the way to narrow the divide between legitimacy and legality.18 Secondly, there were obviously reasons relating to the international balance and the calculations of international and regional players in the context of the Arab uprisings: a victory of Qadaffi over the Arab world would have been a disaster, and there had been, for years, some resentment against the Libyan leader among the Arab States themselves. On the other hand, Libya is not a particularly influential country, and Qadaffi’s isolation explains the support given to the UN resolution by the Arab League. Thirdly, there were obvious economic considerations with regard to oil access and political aspects associated to the relations of the intervening parties in Libya and the situation of the region. This political dimension of humanitarian intervention is not unusual.19 States do appreciate the appropriateness of their action and do not restrict their approach to a balance between legality and legitimacy. That might explain the hostility of some writers to humanitarian intervention and the controversy about a so-called “double-standard” interpretation of the R2P. In that matter, contingency prevails. States cannot restrict their assessment of a situation to the balance between legitimacy and legality. That is illustrated by the situation in Libya where intervention unfolded into an internal crisis as well as an international crisis, the dimension of which has changed over the last four years.

B. The Current Internal Crisis From its first resolutions the SC strongly recommended the swift establishment of an “inclusive, representative transitional government” and emphasised “the need for the transitional period to be underpinned by a commitment to democracy, good governance, rule of law, national reconciliation and respect for human rights and fundamental freedoms of all people of Libya”.20 However, _____________ 18

Council on Foreign Relations, Independent International Commission on Kosovo, The Kosovo Report, Executive Summary (2000). 19 See Jean-Baptiste Jeangène Vilmer, La guerre au nom de l’humanité: tuer ou laisser mourir, 2012. 20 Security Council, Resolution 2009 of 16 September 2011 (UN Doc. S/RES/2009); Resolution 2016 of 27 October 2011 (UN Doc. S/RES/2016).

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the SC did not ignore the risks and the factors of “destabilization”.21 The State rebuilding process was to be conducted with the assistance of the United Nations Support Mission in Libya (UNSMIL) whose mandate has been extended and enlarged.22 In spite of the “centrality” of credible elections and the constitutional process, the situation has rapidly become tense, leading to a general disorder on the brink of civil war. I. The Failure of State Building Libya currently operates under an “Interim Constitutional Declaration” (ICD) which was issued by the National Transitional Council (NTC) from Benghazi during the revolution (in August 2011). It has subsequently been amended three times, but these amendments do not affect the interim governance arrangements. The ICD sets out a timetable and process for drafting a new constitution to be completed in 2013 followed by the first constitutional elections. The NTC was a self-appointed body, which lost some of its revolutionary legitimacy during its period in office (Benghazi Declaration in August 2011 up to the first sitting of the General National Congress on 8 August 2012). The elections of 7 July 2012 were very successful in terms of the conduct of Libyan citizens, media, judicial system, and government under the supervision of the High Electoral Commission. The provisional electoral act had provided for a mixed system: one hundred and twenty members of the Congress were elected through the first-past-the-post voting and eighty were elected on national party lists. A large number of political groups or movements took part in the campaign but only a few could be regarded as real, institutionalised political parties. Those directly elected were supposed to be independent, but some of them were supported by parties. The list votes were primarily in favour of liberal modernising parties. Thus the General National Congress (GNC) comprises 200 members (of which 33 women) with almost no familiarity with how a deliberative assembly should work. The GNC met for the first time on 8 August 2012 and elected a President (Mr. Mohammed Magarief) and two Vice Presidents. It then broke up for Ramadan and reconvened on 12 September 2012 and designated a Prime Minister.23 _____________ 21

Security Council, Resolution 2017 of 31 October 2011 (UN Doc. S/RES/2017). Security Council, Resolution 2040 of 12 March 2012 (UN Doc. S/RES/2040). 23 The Prime Minister designate submitted two proposals for Council of Ministers (Cabinet) both of which were rejected by the GNC. The GNC then designated Mr. Ali 22

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All governance institutions (including the GNC) must act as provisional authorities, pursuant to the Constitutional Declaration. They have limited time horizons; it was intended to hold constitutional elections in 2013/2014. The form of the future Constitutional order (e.g. Parliamentary, Presidential or even Monarchical regime, and territorial governance arrangements) was open. The ICD establishes the GNC (as the successor to the NTC) as a legislature and as corporate Head of State represented by the President. It has the responsibility to nominate an executive (Government) but its members are not members of the Congress (i.e. it is not a “Westminster” but more a Presidential system). The President of the GNC has a dual function – he is President of the Congress (Speaker) and also acts as Head of State. The services of the GNC support both functions. The ICD sets the following main tasks for the GNC: – Nominating a Prime Minister and approving the Government (this has just been done, but 6 nominations have been referred to the “integrity commission” concerning their alleged links to the previous regime) – Continuing the work as a legislature (passing law and ensuring oversight of the Government, etc.). – “Managing” the constitutional process. – Pursuant to the future constitution, passing an election law and carrying out the first “constitutional” elections (this would include re-appointing or replacing the High Electoral Commission). The GNC had to start work, immediately, on the budget for 2013 and initiate priority reforms (e.g. modernisation of the system of justice). However, from the beginning, the GNC faced substantial urgent problems: reorganisation of army and police forces, status and control of militias and weapons scattered all over the country and particularly in deserted places where they had been airdropped for the regime as well as for insurgents during the revolution, boundaries monitoring, criminal activities (kidnapping) and of course restarting the economic activities. These are contentious issues as they allocate real power and may affect the future trajectory of the State architecture. But the constitutional process was under a stringent time limit: the Constitution should be drafted within 120 days of the first sitting of the Constitutional Commission. The deadline for nominating the Constitutional Commission was related to the first sitting of the GNC, _____________

Zeidan as Prime Minister. His proposed Cabinet was approved on 31 October 2012 subject to reference to the National Integrity Committee.

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but this was missed, in part because of an ICD amendment that very significantly changed the parameters. The Congress faced three main difficulties: Firstly, the democratic transition is not easy in a country which has no liberal tradition. Setting up new institutions has been uncertain as the Congress, instead of solving the most obvious major difficulties, struggled to perform basic functions and engaged in an agitated discussion about a Political Isolation Law which aimed at eliminating from public positions anyone involved with the Qadaffi regime at any level. Under the pressure of militias which, for two weeks, besieged and encircled most important ministries and administrative buildings, including the Congress, the law was passed in May 2013. That law has raised serious questions.24 Does it contribute to reconciliation and efficient governance? Does it not undermine Libya’s prospects for a successful democratic transition? Does it constitute a threat to human rights and transitional justice? The text lists a long series of political and administrative posts as well as objectionable conducts and it is applicable for ten years: it may deprive the country of competent leaders and certainly undermine reconciliation, in spite of warning opinion expressed by international observers and judicial review requested by several NGOs and the National Libyan Council for human rights. Manipulation of the law for political purposes and its disproportionate implementation threaten rights of citizens and stability of the institutions. It certainly creates a political and administrative vacuum. As an immediate consequence, new leaders have resigned from their positions such as President of GNC Mohammed Magarief, Vice President Juma Attigha and several ministers. Secondly, a few weeks later political and regional splits within the Congress worsened during the debates on electoral law for the constitutional assembly and several political groups decided not to sit in the legislative process anymore. Thirdly, the Congress, pressed or invaded by the “wounded of the Revolution”, encircled repeatedly by militias which thus blocked the rebuilding and the functioning of the State administration, could not face emergencies: reprisals, arbitrary detention, unjustified deprivation of human rights and liberties, armed groups activities, disarmament and reintegration of militias either into civil life or into security and military forces.25 At the same time, national forces were weak, deprived of uniforms, weapons and commanders. In that context the GNC opened discussions with some neighbouring countries, particularly _____________ 24

Roman David/Houda Mzioudet, Personnel change or personal change? Rethinking Libya Political Isolation Law, Brookings Doha Center Stanford Paper, 17 March 2014. 25 Security Council, Resolution 2095 of 14 March 2013 (UN Doc. S/RES/2095).

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Niger, Mali and Chad, in order to limit incursions into Libya through porous borders. In that context, repeated calls by the SC for democracy, building up a stable and prosperous State based on national reconciliation, justice, human rights and the rule of law reflect false irenicism. The SC has underlined “the importance of a single, inclusive national dialogue that can forge consensus on the priorities for securing a transition to democracy and help ensure that all views in Libya are properly taken into account”. However, the remarkable efforts by UNSMIL to facilitate a meaningful Libyan-led national dialogue have often be regarded as vain wishes.26 As the Secretary General pointed out, “the challenges facing Libya are further compounded by the 42-year legacy of dysfunctional State institutions, which were purposely undermined over decades of authoritarian rule”.27 Tribal and regional tensions, the lack of stable and clear legal norms, and the repression exercised against independent elites and civil society have deprived the Libyan people of the necessary means to rebuild the nation. The economic structures and policies hindered the development of the country and made the reintegration of the revolutionary forces into civil life difficult. More critically in that context, the debilitated security forces have not allowed a strong and immediate action to restore and maintain public order. The absence of a legitimate unchallenged authority, the divisions and hesitations of the interim government, and the lack of backed and properly coordinated assistance of foreign partners have encouraged the development of a creeping civil war, while the majority of the Libyan people was expecting the leaders to deal with major problems stemming from the revolution. Dereliction of the government appeared clearly in two situations: The first took place in October 2013. Prime Minister Ali Zeidan, independent politician supported by liberals, was kidnapped by rebels who reproached him for authorising the capture of an Al Qaida leader by the United States on Libyan territory. The second happened on 11 March 2014. A commercial tanker, the Morning Glory, flying the flag of North Korea, loaded crude oil at al Sidra port held by anti-government rebels and sailed successfully to the high sea, as the Libyan government failed to establish an effective blockade to prevent the vessel from leaving territorial waters. The sale of crude oil on the free market had been, for a long time, the goal of a federalist rebel group under the leadership of Ibrahim _____________ 26 Statement from the President of the Security Council of 16 December 2013 (UN Doc. S/PRST/2013/21). 27 Report of the Secretary-General on the United Nations Support Mission in Libya of 21 February 2013 (UN Doc. S/2013/104).

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Jadhran who meant to defy the central government and claimed greater autonomy, having established its control over the Eastern ports of the country. North Korea disavowed the ship which was seized off the coast of Cyprus by the US Navy Seals and the rogue vessel was brought to the port of Zawiya and handed over to Libyan authorities on 22 March 2014. The move precipitated the downfall of the fragile transitional Zeitan government.28 Since November 2012 the later had been fighting with the GNC which criticised the Prime Minister for failing to restore peace in the country. Conversely, Ali Zeitan denounced the islamist intrigues within the Congress. A new interim Prime Minister, Abdallah Al Thani, former minister for defence, was appointed for two weeks and confirmed one month later. He shortly resigned but refused to hand over power to his successor who was then invalidated. That government went through endless changes and incidents. However, the GNC, whose mandate should have expired in February 2014, decided to extend it up to December 2014. Meanwhile a new national assembly, the House of Representatives, has been elected on 25 June 2014. It sits in Tobruk and it has asked Mr. Al Thani to form the new government in September 2014. Nevertheless, on 6 November 2014, the Supreme Court invalidated the results of the June elections. The Court ruled that the seventh constitutional amendment issued in March 2014 was unconstitutional and hence so were the June elections that brought the House of Representatives into power. The House rejected the ruling claiming it was made at “gunpoint” in Tripoli. From that decision onward, the two camps were clearly delineated. The socalled “islamist” groups of the GNC and militia grouped in Fajr Libya (Libya Dawn) decided to recognise the GNC as the only legitimate authority and to appoint a new self-proclaimed Prime Minister, Mr. Omar al-Hassi who established his government in Tripoli. Indeed, after the terrible fights during the summer of 2014, Tripoli and the region are under the control of Libya Dawn and allied militias. The international actors could have engaged all parties as potentially legitimate, but most States and the UN incline to recognise the interim government of Mr. al-Thinni and the parliament based in Tobruk and keep contact with them directly or in Tunis. Those authorities are supported by General Khalifa Haftar, the anti-Islamist leader of Operation Dignity against the militia, particularly in Benghazi, who has been appointed Commander in Chief of the national armed forces in March 2015.29 That international recognition may _____________ 28

Libya Herald, 8 March 2014 et seq.; Al Jazeera, 11 March 2014; Financial Times, 17 March 2014; Reuters, 23 March 2014 (accessed on 27 April 2015). 29 Reuters, 2 March 2015, UK Edition 9:45 pm.

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affect the authority of the Special Representative of the UN, Mr. Bernardino Leon, regarded as biased by the Tripoli factions and administration. In spite of the division of the country under two authorities, negotiations for a “National Unity” government incorporating all major political factions have been conducted in several places. That shows the incapacity of either national authority to grant security across its controlled territory to find a safe neutral location for sustainable talks; it also demonstrates the difficult task of the UN to bring together the stakeholders in Geneva or Ghadames for more than one day. On the other hand, the UN-backed negotiations held in the Moroccan town of Skhirat, which have been adjourned three times, seem the most advanced ones in April 2015. Progress has been made lately, but the negotiators are still far away from a political agreement which could bring together the moderate political forces in the country. In May 2015, Prime Minister Abdullah al-Thinni escaped an assassination attempt outside the Tobruk House of Representatives, by “paid criminals” who had previously tried to storm parliament.30 The description illustrates the urgent need to rebuild an efficient State. This aim, however, is difficult to achieve in the presently chaotic situation. II. The Internal Chaos Immediately after the collapse of the Qadaffi regime, serious incidents struck the country, particularly in the Eastern part and along the southern borders. Criminal activities developed, such as kidnapping, and weak border control allows markets in weapons, narcotics and people to thrive alongside trafficking in goods and oil with severe consequences for the whole region. Human beings trafficking revealed, through Libyan disorder, new migration channels to Europe. As soon as December 2011, the political unrest showed through revolutionary brigades in Tripoli and demonstrations in Benghazi and Derna against the NTC due to the potential amnesty of combatants or representatives of the Qadaffi regime. In early 2012, confrontation between rival groups from Benghazi, Misrata and Tripoli reawakened old property or tribal disputes. In Tripolitania or in the Nafusa mountains, there are tensions between Tubus, Tuareg, Zwaya, Zintan and Mashashiva, while some regions call for federalism. In September 2012, an attack on the US consulate in Benghazi resulted in the death of Ambassador Christopher Stevens and members of the staff.

_____________ 30

Reuters, 26 May 2015 UK Edition 7:21 pm; Libya Herald 27 May 2015; The Guardian, 27 May 2015.

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Several factors explain the unrest (1.). However, disarray has not stopped the constitutional process (2.). 1. The Factors of the Unrest Firstly, the period of the dictatorship has not allowed a “Libyan nation” to be established. The wording itself of the country as Jamahiriya referred to the theory of the “state of masses”, Libya being considered as Arab and African without any exaltation of national feeling. The Jamahiriya was supposed to be governed by the people through a system of local councils as Qadaffi proposed a third universal theory, claiming there was a third way, beyond communism and capitalism, in order to achieve social harmony.31 Admittedly, dictatorship had maintained the unity of the State – but failed in keeping a social link between the regions, tribes, families and clans which are typical of Libya. a) The Tribal System This huge country with a small population of six million has been constituted by tribes from lower Egypt and caravans coming from the South who used to fight fiercely. An important factor of the political game in Libya, the tribal system, is complex. The distribution of tribes and their role are based on the ethnic composition of the society. Every ethnic component – Arabs, Berbers, Tuareg, Tubu as well as Beni-Fezzan and Kulughlis (originally Turks) – is divided into tribes and subgroups. It is accepted that there are almost one hundred fifty tribes of which roughly thirty prevail, gathering together four million people. In the political turmoil which preceded and followed the revolution, three of them dominate: the Warfallah tribe (one million people) lives mainly in the Eastern part, supported the 1969 revolution and became well introduced into the State administration and army but it was severely repressed after the failed coup against Qadaffi in 1993; the Makarha in Tripolitania have been longstanding allies of the Guide’s tribe but they have had decisive influence because they joined the revolution while headed by Abdesselem Jalud, former right-handman of Qadaffi until 1993; the Khadafa (more than 125,000 people) originating from Beni-Fezzan who live in the central region, had the control over the previous regime andimportant oil resources; the Tuareg is one of the most important nomadic tribes of Africa and South-East Libya. Also, some smaller tribes may exercise influence such as Zwaya, located in regions wealthy with oil resources, and Amazighs, who are more of an ethnic group than a tribe. _____________ 31

Qadaffi outlined his political tenets in The Green Book, published in 1975; available at http://www.bgf.nu/greenbook.pdf (accessed on 27 July 2015).

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Experts maintain that segmentary tribes in the Eastern part cannot function as effective governance institutions because of the animosities of the different segments toward each other, and that would be illustrated particularly well among Cyrenaica’s tribes.32 Therefore the implications of the segmentary character of tribes on the governance system are vast. It does not mean that all Libyans would be inclined to answer to and follow their tribal leaders but the tribes may attempt to fill the gaps left by the disintegration of the State, as in Cyrenaica, or they may be tempted to support federalism. Other correcting factors have a role, such as the control of natural resources and the religious commitment.33 As a closed society, Libyan population is also divided into clans and some also belong to powerful brotherhoods such as the Senussi or Tijani. Those various groups enjoy a territorial establishment but the allegiance system is sophisticated and goes beyond institutions, administration and even the army. The Supreme Guide of the Revolution, in his time, skilfully used the tribes which were a source of legitimacy and a network available to the government, in particular through the “popular and social commands” present in every region. However, major tribes became exasperated with repression, authoritarian attitude and wealth monopolisation by the Qadaffi clan.34 From a military point of view, the prevalence of tribes explains the ebb and flow warfare during the revolution, which is typical of tribal tactics. Tribalism sheds some light on the unpredictable positions toward NATO intervention, then towards the NTC, in the GNC and finally during the constitutional debates.35 In September 2014, on behalf of the Council of Arab tribes, Ezz El Arab Abu Al-Qassim considered that the council “contains all shades of the Libyan people, and it was declared in the media and at political and social levels as the legitimate representative of the Libyan people by virtue of its components. We [the council] advocate cancelling all of the agreements concluded by the National Congress, and call for the return of displaced Libyans, who are _____________ 32 Emyrs L. Peters, The Bedouin of Cyrenaica: studies in personal and corporate power, 1990. 33 Jason Pack/Karim Mezran/Mohamed Eljarh, Libya’s Faustian bargains: breaking the appeasement cycle, 2014; John Davies, Le système libyen: les tribus et la révolution, 1990. 34 See Davis (note 33); Djaziri Moncef, Tribus et Etat dans le système politique libyen, Outre-Terre 23 (2009), 127–134; Olivier Pliez, Chapitre 12, Est Ouest, Etatstribus: la Libye ne peut-elle échapper au mode binaire?, in: M’hamed Oualdi/Delphine Pagès-El Karoui/Chantal Verdeil, Les ondes de choc des révolutions arabes, Beyrouth, Presses de l’Institut Français du Proche Orient, 2014, 235–248. 35 On 25 May 2014 two thousands tribes leaders met in Al Azizia to express various claims as to the safeguard on the country and its future organisation. In May 2015 Libya tribal chiefs met in Cairo to explore ways to unite warring parties and bring security and peace to the country.

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estimated at 2 million due to the NATO bombing. Their number has increased to 3.5 million emigrants because of the terrorist attacks suffered in Benghazi and across Libya over the past days, and due to the release of political prisoners who were detained by militias. The council aims at stopping Qatar and Turkey from supporting US-sponsored militias. It [the council] is leading the war against terrorism, as are tribes fighting terrorist operations backed by Qatar and Turkey, under US auspices, especially considering that Libyan tribes form the backbone of the Libyan National Army because Libya is composed of tribes”.36 b) The Militias The collapse of State institutions especially with respect to security paved the way for the powerful action of militias. International support for training of military and security forces was obviously inadequate. The Libyan national army, troops numbering 35,000, was badly equipped from the beginning. The command of the army has submitted specific requests for the lifting of the arms embargo, and the Libyan Ambassador to the UN has repeatedly urged the SC to do so or to facilitate the procedures for exemptions from said embargo in the interest of peace and security not only in Libya but also in the broader region.37 Conversely, militias have been equipped with weapons looted from the former Libyan army warehouses or provided from abroad. Federalists, terrorist groups, and extremists thus enjoy means of maintaining pressure on authorities and taking action. Peripheral groups such as Tubus, Amazigh and Tuareg also tend to protect their interests by opposing the strengthening of central power. After the fall of Qadaffi, around 300,000 troops gathered in many armed groups and militias succeeding to the 30,000 revolutionary combatants (thuwar) of 2011. The first reason for that blossom is the support and subsidies of authorities from the moment the revolution ended: the NTC offered generous fees to those who presented themselves as revolutionary combatants, then successive governments favoured their enrolment as from 2012 into armed militias. The lack of national leadership and the weakness of institutions explain that trend. The GNC and the government have allowed militia leaders and armed brigades to regard themselves as more legitimate than the police and military forces which have long been considered as infiltrated by Qadaffi era’s officers. Provided with weapons readily available, independent from any central State headquarters, better paid and free to choose their residence and their personal _____________ 36

Ezz El Arab Abu Al-Qassim, Talk to Azzaman, 19 September 2014, available at http: //www.almonitor.com/pulse/politics/2014/09/tribes-libya-battle-militias-egypt.html# (accessed on 27 July 2015). 37 Al Jazeera, 19 February 2015; Security Council, Provisional Verbatim Record of the 7398th Meeting, 4 March 2015 (UN Doc. S/PV.7398), 5.

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way of life, those brigades feel justified in influencing the government or interfering in the decisions of the elected transitional institutions by occupying or blocking the government facilities, including the ministries or the GNC itself, as well as the main oil and gas sites and harbours. The authorities do not have sufficient well-trained forces to counter those armed groups and protect their own premises and the population. Hundreds of militias and brigades therefore refuse to disband and the new institutions on both sides have tried to establish a partnership with them to provide security and to efficiently oppose or challenge the rival government. Militias constitute permanent security threats because they are present on both side of the main issues: arms, goods, drug and human trafficking, kidnapping and assassinations, local disputes; hence: “for every rogue militia, a temporarily pro-government one has to be employed”.38 The Petroleum Facilities Guard, the Borders and Vital Facilities Guard, the Revolutionary Operations Room (in charge of keeping Tripoli safe and reporting to the President) or various Supreme Security Committees (to the Ministries of Interior or Defence), for example, have all been implicated in activities which they were supposed to prevent and counter. On 13 August 2014, the House of Representatives adopted, by a slim majority, an act disbanding all officially recognised and funded militias formed after the 2011 revolution in order to deprive them of the legitimacy they claim to have received from the GNC and the governments. The deadline for the implementation of the law was 31 December 2014 but it is quite obvious that it has not been enforced.39 The second reason for the sustainable development of militias is their territorial basis. Those armed groups formed spontaneously to fight against the Qadaffi regime, then to influence the post-revolutionary political evolution, with accession to power at national or local level in mind. There are indeed some umbrella groupings such as Libya Shield Force, Supreme Security Committes or Fajr Libya (Libya Dawn), but they gather or depart according to contingent reasons and there are frequent clashes among their branches and with the population. However, several major regional groups may be identified: The Zintan brigades under the leadership of the Zintan Revolutionaries’ Military Council are associated with the West region and the Nafusa mountains. They consist of the Qaaqaa Brigade, the Sawaiq (Lightning Bolt) Brigade and the Civic Brigade which present themselves as anti-islamist. They have been joined by the Airport Security Battalion and the Warshefana tribal _____________ 38

Pack et al. (note 33), 26. Libya Herald, 13 August 2014, available at libyaherald.com (accessed on 15 August 2014). 39

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militia as well as a dissenting group of Libya Shield and they all fought together in the battle for Tripoli Airport during the summer of 2014. On the islamist side, there are many groups which sometimes join together. The Tripoli militias have set up the Tripoli Military committee, then the local Council for Tripoli. Supported and subsidised by Qatar, they are mainly associated with islamic combatant groups of Libya (Muslim Brotherhood, Justice and Construction Party, SSC) and they now control the capital city and the region. The Misrata militias are very active and mobile particularly under the Shield of Central Libya. The Benghazi militias, in particular the 17 February Martyrs Brigade, are engaged in violent disputes with loyalist troops of General Al Haftar: most of them are islamists who had fought in Afghanistan, then started the rebellion against Qadaffi in 2011. The Eastern federalist armed groups, such as Cyrenaica Protection Force, tend to control oil facilities in Ras Lanuf, Zueitina and Sidra. Finally the Derna militias, specifically the Abu Salim Martyrs, control the Eastern region and make claims for a strict Islam. Indeed, terrorist armed groups have been constituted under Ansar-al-Sharia in Benghazi, Derna and Syrte, or under Al Qaida in Libya. That second group is part of the Al Qaida in Maghreb network but it is autonomous and, alongside its local activity, it controls training camps for combatants in Syria infiltrated by others coming from the neighbouring countries. Most recently, Islamic State (Daech) settled down in Libya. It does not really consist in a branch which came into the country but more of groups which gave allegiance to Daech, though, with time, the terrorist movement proceeded to turn Libya into a Western basis of the Islamist State for potential actions in the region and in Europe. During the last months, it engaged in the most terrible crimes in Derna, Syrte and Benghazi, particularly against Egyptian Christians; it lead the assault against the Corinthia Hôtel and oil fields in Mabruk and al-Sidra, it occupies public premises and aims at destabilising the internationally recognised authorities.40 Again, it is not yet an intrusion of the Islamic State (ISIS) through troops coming from the Middle East. These are Libyan armed groups affiliated to the movement eager to establish a territorial basis and to appropriate local resources. They fly that dark flag in order to fight Western countries and their supposed Arab allies. That is also expressed in the threat of sending to Europe thousands of migrants through Italy. As from early 2015, a flow of foreigners could swell the ranks Daech, giving a new international dimension to the Lib-

_____________ 40

See discussions in the Security Council, Provisional Verbatim Record of the 7387th Meeting, 18 February 2015 (UN Doc. S/PV.7387).

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yan conflict, as noticed by Mr. Bernadino Leon, the UN Representative of the Secretary General and chief executive of UNSMIL.41 With the extension by the GNC of its own mandate beyond 7 February 2014 and the loss of its legitimacy, the discredit of its members with the people, and the dual system of government and populace protests, the militias are now free and under no control. Some, such as the extremist militias of Misrata, support the GNC; others, such as the Zintan militias and federalist ones, oppose the GNC. All have impeded any effort for disarmament, demobilisation and reintegration as they continue to bloom through their networks and their various trafficking. The fight for control of the main ministries (Defence, Home Office, etc.) and strategic places such as airports, and the battles for Benghazi and Tripoli42 are explained by the will of the militias and other stakeholders to impose themselves as a national force and deny the central authorities a real power of control and leadership.43 In that sense, General Khalifa Haftar pledged to take control of Benghazi in two weeks and to capture the capital Tripoli in three months. He had independently launched attacks on militias in the Eastern region in May 2014 but was reintegrated in November 2014 to the Libyan army by the House of Representatives. His priority was then to annihilate Ansar al Sharia in Benghazi and remove the Islamists of Fajr Libya (Libya Dawn) from Tripoli and the militants who have pledged allegiance to the Islamic State at Derna, the Eastern town beyond government control.44 However, the national army needs more men, more supplies and weaponry, while the abandoned massive weapons stockpile of the Qadaffi regime and legal or illegal imports of heavy weaponry and ammunitions, in spite of embargo measures decided by the UN, provide all groups with a huge arsenal.45 In that chaotic context, there is no room for justice: thousands of convicts are waiting for trial. Courts and prisons have been attacked. The Fact-Finding and Reconciliation Commission does not really work and no effective investigations were known to have been carried out. Up to 10,000 persons are estimated _____________ 41

Ibid., 3. Nizar Sarieldin, The Battle for Benghazi. The limits of stabilization by military means, SWP Comments 8, February 2015, 1; Valerie Stocker, The battle for Tripoli, available at en.qantara.de/content/clashes-between-rival-militias-in-libya-the-battle-fortripoli (accessed on 27 July 2015). 43 Pack et al. (note 33). 44 Middle East Eye, 29 November 2014, available at www.middleeasteye.net/news/li byas-haftar-pledges-take-imminent-control-benghazi-and-tripoli-1615448321 (accessed on 13 February 2015). 45 On Libya’s chemical weapons see: Eric Schmitt, Libya’s Cache of toxic Arms all destroyed, The New York Times, 2 February 2014. 42

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to be missing: this number includes persons missing as the result of the 2011 revolution, as well as those who went missing during the 42 years of Qadaffi’s rule, including war with other countries and the Abu Salim prison massacre in Tripoli in 1996. In November 2012, Libya and the International Commission on Missing Persons (ICMP) signed a cooperation agreement but a sustainable investigating and filing process has been affected and made impossible at the present time because of the deteriorated political situation and lack of security.46 Since the summer of 2014, the fights have reached the highest level of intensity. Not only struggles for main cities and oil fields, pipelines, and harbours is widespread but the lack of public order has opened the way to all sorts of political crimes and criminal offences: kidnapping, car-jacking, burglary, looting, and assaults are constant practice and jeopardise public safety in all regions. 2. The Constitutional Process The constitutional process was obviously the crucial element of State building in Libya. It is indeed a fundamental political step which needs the full support of the country expressed through the majority of the people. But it is mainly, from a legal point of view, a technical operation as it should consist in a choice on the structure of the State, on the separation and balance of powers and on various mechanisms to allow the expression of the will of the people. In the context of creeping civil war, the Constitution Drafting Assembly elected on 20 February 2014 appeared as the only stable body able to find a legal solution to the crisis. Originally, the Assembly was meant to be composed of 60 members (20 from each of the three main regions (Tripolitania, Cyrenaica and Fezzan). Violence in some parts of the country as well as the boycott of the elections by single groups, however, made it impossible for all seats to be taken. In the end, the Assembly was constituted of forty-seven members. There were two aspects to be addressed: firstly, the procedural process leading to the adoption of the Constitution, secondly the content of the constitution. a) Procedural Aspects The ICD sets out parameters for the constitutional process in Article 30:

_____________ 46

ICMP press releases of 18 June 2014 and 4 June 2015, available at www.ic-mp.org (accessed on 29 July 2015).

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–

A constitutional commission (CC) to draft the Constitution.

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The Constitution to be submitted directly to referendum (not prior approval by GNC) requiring a 2/3 majority vote for approval, and then to GNC for formal acceptance (from the March amendment).

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From the March amendment, the CC to have 60 members, selected by the GNC, with 20/20/20 from historical regions (with no further details specified; for example, does origin relate to place of birth or current domicile?); there is an explicit reference to the 1951 constitutional process after independence.

–

From the July amendment, the CC to be chosen by direct public election, but not specified except for a general principle of representation and legitimacy.47

There were and there are still questions as to the constitutional process: how to avoid a lack of representativeness in relation to gender, age, tribes, civil society categories etc.? It was agreed that the Constitution Drafting Assembly (CDA) should include at least six women and would also represent cultural and linguistic groups (Amazigh, Tuareg, Tubu). The decisions require a 2/3 majority vote and a consensus from the Libyan society’s cultural and linguistic components for the matters they were related to, but is that to be regarded as a possible veto from one of those groups? It is provided for an approval of the new Constitution through referendum; in case the draft is not accepted by a 2/3 majority the CDA would have thirty days to draft and propose a new text.However, no provision suggests any solution if the result of the second referendum were negative. Lastly, in the present chaos public information campaign and opinion research are unpredictable, and it would be difficult to have a referendum and elections so long as the competing authorities remain irreconcilable and fights are going on in the country. The timetable was also challenging: the CC, then the CDA had 120 days from its first sitting to submit its draft. However, the constitutional assembly met in al Bayda on 21 April 2014, then produced a first draft in December which was discussed in the Chamber with experts and published in February 2015.48 The discussions on the draft Constitution were not easy. Each of the eight committees in charge of the various chapters of the Constitution presented a _____________ 47

Amendment n°7 (2014) and electoral law n°17 (2013). For the purpose of this paper the original draft provided by the CDA has been used, however the document has been published by IDEA (International Institute for Democracy and Electoral Assistance), Initial Draft Constitution 2014 (English), available at www.constitutionnet.org/vl/item/libya-initial-draft-constitution-2014-english (accessed on 29 July 2015); and Analysis of the Draft Constitution of Libya – Thematic Committees of the Constitution Drafting Assembly Status, available at www.consitutionnet. org/vl/item/analysis-draft-constitution-libya-thematic-committes-constitution-drafting-as sembly-status (accessed on 29 July 2015). 48

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first draft to the plenary session, sometimes with an option between two versions. The Assembly discussed it in al Bayda firstly with experts then in camera and the draft was made public. The draft covers: the general form of the State and its fundamental principles; the system of governance at the central level; the judiciary and the constitutional court; independent institutions; fundamental rights and liberties; the local government; natural resources; the financial system; security forces (army and police); transitional measures. There have been some controversial issues within the committees particularly as to the local government system where two drafts have been produced; in some matters committees have published only broad views on the constitutional framework. Conversely in other matters the committees have gone into details and set up sophisticated procedures which might not be easy to enforce in practice or might create constitutional blockages. However, an enormous work has been done in a very tense context and a very unsecure environment which affects the whole country. If the draft were to finally be adopted as the new Libyan constitution there could be serious issues for interpretation. b) The Content of the Draft Constitution This is not the place to get into a deep analysis of the draft constitution but a few aspects may be highlighted. On the one hand there are at least three issues which seem controversial; on the other hand the more conventional aspects of a constitution which have been developed in a sophisticated manner by the CDA might also, when time comes for their implementation, give rise to difficulties. aa) The Controversial Issues To begin with, the status of Islam and Sharia law was discussed. The draft provides that Libya is an Islamic State and that Islam shall be religion of the State, and provisions of the Islamic Sharia shall be the source of all legislation. Any legislation in violation thereof may not be enacted and all legislation enacted in violation thereof shall be null and void. The State shall be committed to preventing the propagation of beliefs and practices contrary to Islam and those constitutional provisions cannot be amended.49 That might conflict with the following statement on the supremacy of law and of the Constitution in the State50 and be a cause of future tension between those who expected liberalisation through the revolution and groups which fight for a severe re-interpretation of Islam. _____________ 49 50

Arts. 7 and 8 of the draft (note 48). Ibid., Art. 9.

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As for international treaties subject to ratification with emphasis on the principle of reciprocity, they will have “supra-legal and infra-constitutional value and force” provided that they are not contrary to the Islamic Sharia.51 However, the draft Constitution proclaims political pluralism52 and acknowledges with pride all social and cultural components of the country (Arabs, Amazighs, Tuareg, Tubu and others),53 as well as equality between male and female citizens.54 Within the framework of the Sharia, it also provides a bill of rights and liberties, as a basis of governance. It is equivalent to most constitutions and international human rights conventions, including socio-economic rights. It contains an interpretation guideline article and general rules for the legislator to set the right balance between public and private interests. The draft also features a restriction clause – which is desirable and common in comparative and international practice, but might create difficulties in the present case. Firstly, because legislation in the field of rights and liberties requires the agreement of two thirds of Parliament which is a difficult condition to fulfil on sensitive topics. Secondly, restrictions can be necessary “to preserve the core of rights and liberties” and such a notion has not been successfully delineated. Indeed the new emerging State will have a global approach to the society and some policy guidelines are expressed by the draft constitution. The family is regarded as the cornerstone of society, being based on religion, ethics and patriotism: “its care and protection from all that is contrary to Islam and public morals shall be guaranteed by the State”55 which also has specific duties to children and youth, disabled people, martyrs, missing, injured and war inflicted people. More generally, the State is in charge of social justice and social welfare, the goals of which are enumerated rather precisely by the Constitution in relation to housing, education, health, sports and charitable endowments, with a specific mention of “scientific research” to which a share of 1 per cent of the national income will be allocated.56 Secondly, the draft does not prescribe the form of the State, although there have been, from 2011 onward, sharp discussions related to the federal or unitary form of the State. The issue is not addressed in the first chapter but rather _____________ 51

Ibid., Art. 17. Ibid., Art. 14. 53 Ibid., Art. 7; national languages other than Arabic, which is the language of the Holy Quran and the official language of the State, are considered part of cultural and social legacy of Libya (Art. 27). 54 Ibid., Art. 13: “male and female citizens are equal before the law”. 55 Ibid., Art. 28. 56 Ibid., Arts. 32 to 39; bearing in mind the behaviour of Daesh in the Middle East, it has to be pointed out that the draft obliges the State to protect and preserve historical monuments. 52

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indirectly in relation to the vision of local government. In practice it seems that the views for a unitary State prevailed but two different versions have been submitted. The first proposal is based on administrative and financial decentralisation and on the two principles of equal opportunities and allocation of wealth. The country would be divided into 32 governorates with full legal personality and financial autonomy whose Council and Governor, directly elected, would enjoy jurisdiction and competencies in matters listed in the Constitution. That leaves quite a large power to central authorities to legislate and regulate, subject to a fair allocation of wealth,57 but a group of governorates would have the possibility to form economic regions. The second proposal is based on the three historical regions of Libya. The regions would enjoy legislative power in almost similar matters to that recognised to the governorates but the power would be subject to a control of constitutionality, probably by the Constitutional Court. The matters not assigned to the regions would stay within the central State's jurisdiction. However, interaction would exist between the two levels as the Region’s Council could propose joint legislation, requiring the approval of the State, to the Parliament to be discussed. Obviously, the allocation of financial resources is the crucial issue, and the two proposals largely overlap in that matter, though the points of contention are the allocation of the income from natural resources and the funding of national policies. Thirdly, management of natural resources in the anticipated Constitution of Libya is at the heart of the discussions and largely responsible for the ongoing fights in the country. The oil sector constitutes the biggest part of the economy. The draft constitution deals both with ownership of natural resources and distribution of revenues. The clarity with respect to property rights is critical to achieve political stability and investor confidence, while the ambiguity about who owns natural resources could be a main source of disagreement between the components of the society in different areas. So the natural resources in Libya shall be considered as a part of the national heritage, because of their importance in the financing of economic and social development and the provision of services in all parts of the country.58 It is assumed that the central government will play a major role in managing the natural resources and allocating the revenue they produce.59 The draft rules on the distribution of revenues among the central and decentralised levels and sets out principles and criteria for the allocation of revenues from the resources.60 The solution is therefore _____________ 57

Art. 9 of Proposal 1 Governorates System. Issa Saleh Ali/Jean-Yves de Cara, Natural resources treatment in comparative constitutions, International Management Group, 8 December 2014. 59 Arts. 1 and 2 of the Title on Natural Resources. 60 Population, geographical surface area, marginalisation and poverty, level of services and infrastructure, stability and resulting demographic vacuum, regional development, human development in all regions, using local expertise (Art. 5). 58

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more sophisticated than the allocation of fixed percentages to governorates and regions as suggested in the other parts of the draft (local government) and allows an equitable allocation of wealth for sustainable development. However, for that purpose, the draft also allocates ten per cent of the revenues of extracted resources to the production regions and three per cent to the areas surrounding production regions in order to create alternative, national and sustainable projects. bb) The Intricate Drafting of Some Provisions The separation of powers was obviously the main concern of the drafters, already expressed in the GNC. Therefore, the CDA gave a very detailed description of the allocation of powers and organisation of the checks and balances, so one could fear that the constitution could be a nest for political crises or tensions and certainly complicated procedures. The second concern was the “transitional measures”. Again that was discussed in the GNC particularly when the Isolation Law was enacted, but the CDA took a broader approach to cover most of the problems triggered by the sweeping change of regime: not only the regulation of human rights violations and compensation for those, the status of persons associated with the previous regime, the reorganisation of courts and administration, the review of the legislation but also the dissolution of militias and the replacement of military police and security authorities, as well as the recovery of assets and fight against corruption and fraud have to be taken into consideration. Obviously, there are precedents of truth and reconciliation commissions in other countries, but every situation is specific and needs to be treated tactfully and with care. The political regime is semi-presidential with an elected President and a Parliament constituted of two chambers, with extended powers.61 The Head of State's position is implemented62 in a similar way to that of the President in the French Constitution of 1958, but he seems to be more dependent on Parliament and he is certainly weakened by various procedures. The President appoints the Prime Minister from the party or the coalition which obtained the largest number of seats to form the government. The House of Representatives and the Shura Council should allow appropriate representation of all sections and social, cultural, linguistic components of the Libyan people. The Shura Council is particularly designed to equally represent the three main regions and equality should also be considered in distributing seats among the governorates within _____________ 61 There are forty six articles devoted to the legislative authority. Committee on form and system of governance, Initial Draft for proposed texts (The legislative and executive authorities). 62 Ibid., Arts. 48 and 58–69.

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these regions. Legislation is adopted by the two chambers with an absolute majority in the House of Representatives and a two-thirds majority in the Shura Council. The purpose of the high requirements is to ensure large support for the legislation but it creates a risk of political deadlock in the legislative procedure. It should be pointed out that not only the members of the two chambers but also the Head of State, the Prime Minister and three thousand voters have the right to propose a draft law or amendments to a law. The Shura Council has the power to dissolve itself at the behest of the absolute majority of its members and with the election of the new Shura Council, the President of the State submits his resignation which is subject to confirmation by vote of a two-thirds majority. A similar procedure exists in the House of Representatives. However, the decision to dissolve the House of Representatives belongs to the Head of State but it is subject to complicated conditions and procedures; notably in some circumstances the issue of dissolving the House shall be presented to a popular referendum.63 On the other hand, the draft constitution rationalises the vote of confidence to the government: the House of Representatives gives its confidence to a new government with the absolute majority of its members and if not, the Prime Minister forms a temporary caretaker government and the House should deliberate within a year either to give its confidence to the temporary government or to agree on a new government. Moreover, confidence may be withdrawn from the Prime Minister or one of the ministers, again with the approval of the absolute majority of the House.64 It seems that the accumulation of procedures, time limits and special majority may also create political blockage and delay a clear and efficient direction of the public policy of the State. The second abstruse title is that on transitional measures. The objectives are clearly set up: it is for the State “to put in place the necessary measures and mechanisms to hold community dialogue, uncover the facts, achieve fairness, reconciliation and constitutional and legislative reform”.65 Undoubtedly the legislator would have to intervene to develop more precisely the principles set out in the draft constitution. Firstly, the right to compensation – financial and moral – for victims and affected parties, individuals, groups or regions, for systematic violations of human rights and military operations, is proclaimed but the mechanisms, the conditions and the limitations are not provided for in the constitution. _____________ 63

Ibid., Art. 68. Ibid., Arts. 75 and 77. 65 Committee on Rights, Freedoms and Transitional Measures, Title on Transitional Measures (articles are unnumbered). 64

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Secondly, the draft deals with crimes during the previous regime and their perpetrators but it raises many questions. Criminal prosecution for those violations and for crimes of financial and administrative corruption as well as guarantees of non-repetition are anticipated but the limits of such responsibility are unclear. Disarmament and dismantling of all armed organisations with psychological and professional rehabilitation of their members are provided for but the ways and means to achieve those goals will be difficult to organise. Furthermore, the text gives no indication of the authorities which would be in charge of bringing into effect the right to reclaim public money and religious endowment money, although this action is highly supported by the international community.66 Also, no limit is fixed to the measures to be taken by the State “to rescind all the legal transactions on which foreigners’ ownership of property is based” and that might open the way to international claims and disputes. Thirdly, the centrality of credible elections to a peaceful transition in Libya is certainly a crucial factor to rebuilding the State and the society. The chapter on that matter establishes three principles concerning elections; they are transitional since they are enforceable for three consecutive elections only. In normal circumstances, if there is neither dissolution nor political crisis, that extends the transitional period to twelve years for the House of Representatives and nine years for the Shura. The first rule secures a share of at least 30 per cent for women in the elections. The second rule gives military personnel the right to take part in elections, through voting after three elections, if the military institution has been fully structured and its absolute neutrality has been ensured. The third rule provides that the electoral system is based on individual candidates which implies a majority system rather than a proportional representation. It is not sure how those rules will combine to make sure that the women would be able to run for election in the present society and it is not clear how the exclusion of military personnel from election might be legally based and could be maintained for a long time. It is conceivable to prohibit members of armed forces from standing for election, it is a debatable prejudice to deprive them of the basic right of citizenship.

C. The Current International Crisis Libya has been on the agenda of the SC since 2011. Twelve resolutions have been adopted, among them nine based on Chapter VII of the Charter, with some, in particular the two last ones, being adopted unanimously. Besides, Presidential statements and many meetings of the Council demonstrate the _____________ 66

Security Council, Resolution 2213 of 27 March 2015 (UN Doc. S/RES/2213), paras. 22, 23.

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gradual awareness of the chaotic and dangerous situation of the country and the region. The reasons for the increasing anxiety are clearly stated in the resolutions and in the records of the meetings. To start with, the solutions appear limited as the crisis could lead to a regional conflict or a general confrontation with the major terrorist groups. In that sense, it reflects the consequences and risks of diplomatic procrastination. The first concern of the main powers is the risk of regional destabilisation. The second, expressed unanimously, particularly within the UN, follows from the disastrous humanitarian situation which had inspired the 2011 international action but which has been paradoxically worsened by that self-restricted intervention. Now the consequences are expanding and the humanitarian disaster is creeping overseas. I. The Risk of Destabilisation During the first period which followed the end of the Qadaffi regime, States and international organisations, often non-coordinated and with ulterior motives inspired by competition, provided humanitarian and technical assistance to Libya for State-building. For the SC, the UN should lead the effort of the international community in supporting a Libyan-led transition and rebuilding process to establish a democratic, independent and united Libya. A high-level meeting of regional organisations took place with the Secretary-General on 26 August 2011. Then, the 1 September 2011 Paris Conference launched the international support to Libya, represented by the National Transitional Council. At the request of Libyan authorities, a deployment of UN personnel, led by a Special Representative of the Secretary-General, was dispatched in September 2011. The SC decided to establish UNSMIL for an initial period of three months. Its mandate is to assist and support Libyan efforts to “restore public security and order and promote the rule of law, undertake inclusive political dialogue, promote national reconciliation, and embark upon the constitutionmaking and electoral process; extend State authority, including through strengthening emerging accountable institutions and the restoration of public services; promote and protect human rights, particularly for those belonging to vulnerable groups, and support transitional justice; take the immediate steps required to initiate economic recovery; and coordinate support that may be requested from other multilateral and bilateral actors as appropriate”.67 The mandate of UNSMIL has been regularly extended and enlarged, firstly to include, in coordination and consultation with the transitional Government, assistance and support of efforts to address the threats of proliferation of arms _____________ 67

Security Council, Resolution 2009 of 16 September 2011 (UN Doc. S/RES/2009).

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and related material.68 Then the mandate was extended for longer periods (twelve months) and includes, “in full accordance with the principles of national ownership”, assistance to define “national needs and priorities throughout Libya” and support Libyan efforts to restore public security, counter illicit proliferation of all arms and of course coordinate international assistance and build government capacity in all relevant sectors.69 More recently, the mandate of UNSMIL has been reduced and focuses, as an immediate priority, on support to the Libyan political process and security arrangements, through mediation and good offices, and the size of the mission has been reduced in view of the current security situation in the country.70 To begin with, the vision of the UN was ambitious but somewhat lacked realism and, besides delays, some mistakes were made on the ground in the relations with Libyans. The European Union (EU) also made an important effort – both technical and financial – to contribute to State-building through concrete operations. The EU has been at the forefront of the humanitarian support and the biggest donor of aid from the beginning with € 150 million spent already in September 2011 and with presence on the ground. The EU also offered swift assistance for capacity-building in key public sectors (police and security, the judiciary, budget management), for the demobilisation and reintegration of combatants and for reconciliation and democratisation.71 Obviously over the months the concern about regional destabilisation has become more acute and, with the development of terrorist activities, that concern prevails. As soon as October 2011, the Security Council underlined the risk of destabilisation posed by the dissemination in the Sahel region of illicit small arms and light weapons and reaffirmed, in that regard, that terrorism constitutes one of the most serious threats to international peace and security.72 In later resolutions, the members of the SC insist on the need to secure Libyan borders and encourage Libya and neighbouring States to cooperate in order to stabilise the situation in the country and to prevent violent extremist groups from using territories of such States to plan, fund or carry out violent or other _____________ 68

Security Council, Resolution 2022 of 2 December 2011 (UN Doc. S/RES/2022). Security Council, Resolution 2040 of 12 March 2012 (UN Doc. S/RES/2040); Resolution 2144 of 14 March 2014 (UN Doc. S/RES/2144). 70 Security Council, Resolution 2213 of 27 March 2015 (UN Doc. S/RES/2213). 71 Statement by President Barroso following the International Conference on Libya (Paris, 1 September 2011), Press Release, speech/11/546, available at europa.eu/rapid/ press-release_SPEECH-11-546_en.htm (accessed on 29 July 2015); more than € 150 million for humanitarian aid, € 25 million for immediate needs of stabilisation, € 60 million for capacity building, 27 October 2011, cf. The European External Action Service Europa, www.eeas.europa.eu (accessed on 11 August 2015). 72 Security Council, Resolution 2017 of 31 October 2011 (UN Doc. S/RES/2017). 69

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illicit acts to destabilise the country and the States in the region, pointing out an escalating series of security incidents, in particular in the East of Libya and along its southern borders.73 Through its President, the SC expressed its concern at the threat posed by unsecured arms and ammunition in the country and their proliferation which creates a risk to stability, “including through transfer to terrorist and extremist groups”.74 However, it appeared useless to call on the Libyan government to take concrete measures to control arms and ammunition stockpiles by ensuring proper management, safe storage and effective disposal of arms and material or to strengthen border security, since the authorities could not rely on strong military and police institutions, particularly in Benghazi and Derna. Nonetheless, the members of the SC vainly expressed their concern at the use of force by armed groups against State institutions and the illegal seizure of energy facilities and smuggling of natural resources. The deleterious situation did not allow the transfer of control of all facilities back to the proper authorities as those progressively collapsed and split. Two responses are possible in such a situation. In view of the absence of results of the State-rebuilding support, it is tempting to consider a military option, as suggested by the House of Representatives, but would that be legally and politically possible (2.)? However, the intricate situation and the threat of terrorism have led the SC to opt for a more diplomatic approach which does not exclude counter-terrorism measures (1.). There is a third point to be mentioned, related to measures derogating from certain aspects of the law of the sea (3.). 1. The Diplomatic Approach The neighbouring countries of Libya as well as the whole Sahel region are shaken and in the grip of terrorism. President Abdel Fattah el-Sissi of Egypt has stopped the evolution towards a Muslim Brotherwood domination, but the Egyptian forces are fighting ISIS in the Sinai and the country faces permanent risks of bombing or terrorist attacks. Tunisia is unsettled and the government is struggling with security difficulties while the extremist forces are strengthened in the provinces. In Algeria, under the cover of a quietly aging power, underground rebels are active in half of the country, which is facing an economic deadlock. The whole area in the south of Sahara is at war: the Mali crisis remains unsolved, on the southern border of Libya Boko Haram is on an offensive position; Niger is stuck between Libyan unrest and terrorist pressures; Nigeria, previously regarded as indestructible, has lost control over parts of its territory; unrest prevails in Sudan which is occupied partially by militia Al _____________ 73

Security Council, Resolution 2095 of 14 March 2013 (UN Doc. S/RES/2095). President of the Security Council, Statement of 16 December 2013 (UN Doc. S/PRST/2013/21). 74

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Shabbab, while war is developing between Dinka and Nuer in South Sudan and Somalia is very frail. The control of borders is therefore crucial, though difficult to achieve. For the European Union, the strategic objective of EUBAM (EU Border Assistance Mission) in Libya, adopted in May 2013, is to support the authorities in developing capacity for enhancing the security of their land, sea and air borders in the short term and to develop a broader integrated border management strategy in the long term. EUBAM Libya was not supposed to carry out any executive functions. Its mission was to achieve its objectives through the transfer of know-how by training and monitoring, in order to consolidate the State and fight against organised crime and terrorism in the country and the wider region. The initial mandate was two years and the EU is Libya’s largest donor in that matter. However, the strengthening of the Libyan borders was to be considered in the regional context of the Maghreb and Sahel and in line with the UN Security Council.75 Moreover, international action has become more difficult and even impossible on the ground, except occasionally. As from July 2014, chaos turned into a civil war and most embassies withdrew to Tunis, Italy being the last State to pull out its diplomats in January 2015. International organisations, including the UN,76 also removed their staff and assistance has, since then, been provided from outside. Diplomacy remained active but it became dangerous to interfere within the national situation. Nevertheless the international community granted its support to the government of Tobruk and the elected House of Representatives. The main difficulty is due to the unusual dimension of the Libyan crisis. The tribal setup of the country does not make the conflict “asymmetrical” in the sense that groups or regions would rebel against the central State. In Libya institutions are fragmented and neither rival government controls clearly delimitated regions; they are supported by armed groups which are not strictly organised and are fighting all over the country. Nor is the conflict placed in the sunni/shii logic. In that regard, the government of Tobruk is supported by Egypt and the UAE while Qatar and Turkey have an ambiguous position. Qatar supported the rebellion against the Qadaffi regime and intervened with the 2011 international coalition but now Qatar is favourable to islamist militias. Turkey _____________ 75

Council of the European Union, Conclusions on Libya, 18 November 2013. In July 2014, a total of 229 UNSMIL international and national staff members and government-provided personnel had been deployed. On 7 July part of the non-security staff left the Mission area. On 13–14 July all staff members were evacuated by road to Tunisia, as a temporary measure, motivated solely by security considerations. Five security officers remained in Tripoli. Report of the Secretary-General on the United Nations Support Mission in Libya of 5 September 2014 (UN Doc. S/2014/653). 76

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was reluctant as to the intervention although, finally, it did take part in the maritime blockade, but presently Turkey is criticised for supplying extremist militias with weapons: the government of Prime Minister Al Thani has therefore decided to exclude Turkish companies from future development contracts in Libya.77 The SC takes the view that Libya has become a strategic platform for attacks on Europe, the Sahel, the Horn of Africa and sub-Saharan Africa.78 The members of the SC therefore address the threat of terrorism as the key factor of the Libyan crisis. As summarised by a member of the SC, “it is vital that counterterrorism and political efforts continue in parallel. The absence of a strong, united central Government in Libya strengthens those who wish to plunge the country and the region into chaos. A National Unity Government is therefore critically important for Libya’s counter-terrorism efforts”.79 The rise of ISIL-affiliated groups in Libya and across North Africa, the murder of Egyptian Coptic Christians, the Al Quba bombings, the attacks in several places and particularly in Tunisia have paved the way for Resolution 2214 of the Security Council, adopted unanimously. That resolution seems to be a “strong collective sign of the commitment” of the Member States to supporting Libya’s fight against terrorism. In a solemn way, the SC hereby reaffirms its primary responsibility for the maintenance of peace and security to which terrorism constitutes one of the most serious threats; it also emphasises the importance of sanctions in the restoration of peace and security and recalls the main resolutions in that matter. It expresses its grave concerns over the growing trend of terrorist groups in Libya that proclaim allegiance to ISIL and the negative impact of the actions of those groups, individuals and entities on the stability of the country and the region.80 However, for the SC, it is vital that counter-terrorism and political efforts continue in parallel, as all Member States expressed in the meeting of the Security Council. Resolution 2213, adopted unanimously on the same day, “calls for an immediate and unconditional ceasefire and underscores that there can be no military solution to the ongoing political crisis, urging all parties in Libya to engage constructively with the efforts of UNSMIL and the Special Representative of the Secretary-general to facilitate, in accordance with the principles of

_____________ 77

The Tripoli Post, 28 February 2015. Mr. Gonzàles de Linares Palou (Spain), Security Council, 7420th Meeting, 27 March 2015 (UN Doc. S/PV.7420). 79 Sir Mark Lyall Grant, ibid. 80 Security Council, Resolution 2214 of 27 March 2015 (UN Doc. S/RES/2214). 78

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national ownership, the formation of a national unity government and agreement on interim security arrangements necessary for stabilising Libya”.81 There have been, indeed, several attempts to bring together the representatives of both Libyan governments. The UN Special Representative Bernadino Leon is generally praised for his patience and persistence but negotiations are not easy: they are conducted in a tense context of ongoing fights, bombings and terrorist crimes. Repeatedly, one of the delegations pulls out or protests. That was illustrated, for example, in November 2014, when the representatives of the Tobruk Parliament meant to stop the “inclusive dialogue” engaged through the UN with the islamist coalition Fajr Libya (Libya Dawn). Then Mr. Sharif Al Wafi from the Tobruk Parliament considered as “inacceptable the manoeuvres” of Mr. Leon who tends to treat on an equal footing the representatives from the Tobruk government and the members of the GNC which have formed the Tripoli government under the influence of Fajr Libya, and where only 40 of the previous 200 GNC members, mostly Islamists, remain.82 The kidnapping and public beheading of a group of Coptic Christian migrants from Egypt, which had been preceded by a spate of attacks against public buildings and foreign embassies, underscored the consolidation of power of extremist and the terrorist groups, particularly in the eastern part of the country. A few days later (on 16 February 2015), the Egyptian forces launched airstrikes against sites associated with Islamist groups and particularly targeted ISIL training sites and weapon storage areas.83 Nevertheless, those airstrikes and the ongoing violent fights in the whole country as well as a new series of bombings against foreign embassies, notably Morocco’s diplomatic premises, “are not likely to fundamentally change the commitment of countries in the region to an inclusive dialogue in Libya”, commented the Algerian Foreign Affairs Minister.84 In Ghadames, on the border with Algeria, Libyan stakeholders and negotiators have been occasionally gathering since May 2014 for UN-backed talks.85 _____________ 81

Security Council, Resolution 2213 of 27 March 2015 (UN Doc. S/RES/2213); see already Resolution 2174 of 27 August 2014 (UN Doc. S/RES/2174) and Report of the Secretary General on the UN Support Mission in Libya (UN Doc. S/2014/653). 82 See http://www.taqadoumiya.net/fr/2015/03/04/libye-negociations-a-couteaux-tires/ (accessed 29 July 2015); see also: Libya Herald, 7 March 2015. 83 Report of the Secretary-General on the United Nations Support Mission in Libya of 26 February 2015 (UN Doc. S/2015/144). 84 Algeria Press Service, 23 February 2015. 85 Al Jazeera, 30 September 2014, available at http://www.aljazeera.com/news/mid dleeast/2014/09/un-dialogue-seeks-end-libya-crisis-20149306471155215.html (accessed on 29 July 2015); Libya Herald, 21 November 2014; Libya-Analysis.com, 9 February 2015.

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But it is mainly in Skhirat that the negotiations, hosted by Morocco, continue with the support of UNSMIL. Several principles are advocated by the dialogue delegates, to be agreed by the House of Representatives and the GNC: among those, the Prime Minister should not have dual nationality and should not be linked to any political grouping or come from any city or place that has been party to the current crisis. Also, the cabinet should be reduced in number and security be its main priority; in particular, the first task would be to remove the militias from the cities and collect the weapons, reopen airports, sea ports and border crossings subject to a strict control. But obviously those are only lines for discussion and they move constantly. On the other hand, the internationally recognised Libyan authorities (Tobruk) underline that combating terrorism implies exemptions from the arms embargo in order to provide weapons to the Libyan Army and those requests are regarded as realistic and supported by several States, such as Egypt and the Arab League.86 As noted by the Libyan delegate to the UN, “the task is very difficult, and made even more so at times by ambivalence, lack of clarity, misinterpretation and at times even outright incitement against role [sic] of the United Nations. But it is also evident that very significant progress has been achieved through the dialogue and that hope has become brighter and more visible to Libyans that agreement can be reached and the bloodshed ended”.87 2. Military Action Could the Member States of the UN go further and, as sometimes suggested, consider that the R2P, which was the basis of the international intervention in 2011, could allow them to interfere again in the Libyan situation in view of the humanitarian disaster and of the terrorist threat? In that respect, the House of Representatives (HoR) passed two important resolutions on 13 August 2014 regarding the security crisis crippling the country. In its first resolution, the HoR called for the SC to intervene in Libya so as to protect civilians and institutions currently put at risk by internal fights between factions that are increasingly coalescing in national level blocks and jeopardising the political transition. The resolution was approved by 111 out of the 124 representatives attending the meeting. In its wording, however, the resolution does not provide details on the means which the HoR expects the UN _____________ 86 Mr. Aboulatta (Egypt), Security Council, 7420th Meeting, 27 March 2015 (UN Doc. S/PV.7420); Arab League, Resolution 7852 of 15 January 2015. 87 Mr. Dabbashi (Libya), Security Council, 7420th Meeting, 27 March 2015 (UN Doc. S/PV.7420).

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to adopt in its intervention; it is unlikely that a full blown military intervention would actually take place without a clear mandate coming from within the country. This view is further reinforced by the statement issued by the UNSMIL mission which calls for a political solution to the crisis rather than a militarily imposed one. Support for UNSMIL and its approach towards Libya were also reiterated by the US, Italian, French and German governments through a joint statement.88 Through a second resolution, the HoR ordered the disbandment of all existing militias and removed financial benefits previously allocated for those recognised by the State. The resolution (No. 7/2014), adopted by 102 out of the 104 representatives present, calls for all armed groups to either join the National Armed Forces or disband by 31 December 2014.89 A few days later, air strikes against the Misrata militia leading Operation Dawn were regarded as a covert international intervention. It created some anxiety and the Italian ambassador appeared on local TV to state that his country was not involved. The Arab League criticised the position of the HoR and some Arab States spoke out strongly against an international intervention. Egypt rebuffed the accusation of covert military intervention in Libya through UAE air forces. Some States have reacted in a positive way, in particular the French government through the statement of the Ministry of Defence in September 2014.90 In February 2015, after the Egyptian airstrikes, that option arose again. Military action is considered possible by some governments with regard to the terrorist threat and the risk of destabilisation of the whole region. The SC has repeatedly recalled the obligations of Member States in matters of terrorism and again in Resolution 2161 (2014):91 the measures involve freezing of assets, travel bans, arms embargoes, and targeted sanctions but they do not include the use of force. Thus two possibilities may be explored as to recourse to force against threats and armed attacks. Firstly, a new international intervention under the auspices of the UN would be subject to a positive vote in the SC but could be vetoed. Apart from the _____________ 88 Joint Statement on Libya by the governments of France, Germany, Italy, United Kingdom and the US, 14 August 2014, Press Release: US Department of State. 89 Libya Herald, 13 August 2014, available at http://www.libyaherald.com/2014/08/ 13/hor-disbands-officially-recognized-and-funded-militias/#axzz3AN4emGZM (accessed on 29 July 2015). 90 Mr. Jean-Yves Le Drian, Minister for Defence, interview with Le Figaro, 8 September 2014. 91 Security Council, Resolution 2161 of 17 June 2014 (UN Doc. S/RES/2161), referred to by Security Council, Resolution 2174 of 27 August 2014 (UN Doc. S/RES/2174).

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opposition of Russia and China which had denounced the misinterpretation of the 2011 resolutions, some western countries might be reluctant to accept the use of force. In 2011, the US had limited their military support of the intervening powers of NATO during approximately ten days, according to a “leading from behind”92 policy expressed by President Obama so long as vital US interests are not directly at stake, which is the case in Africa. A sharp discussion took place between the members of the US administration, bearing in mind the Iraq intervention precedent.93 Secondly, the regional powers cannot accept, for a long time, an explosive situation on a strategic territory for the balance of the region. Egypt and the other Maghreb States are directly concerned by the risks of terrorist propagation. Even Italy did not exclude the use of force, though the Ministry of Defence’s statement in that sense has been refuted by the Prime Minister.94 Indeed, from a legal point of view, any armed operation would presuppose an authorisation from the UN. There are precedents of intervention based on implied authorisation or self-defence; the first category can be disregarded while the second one is not illegal under international law but it supposes conditions strictly interpreted. In particular, self-defence may be invoked on the basis of Article 51 of the UN Charter or as the inherent and natural right to selfdefence,95 however the consent of the legitimate authorities of Libya would be needed. Alongside the consent condition, i.e. the call from local authorities for intervention against rebels and terrorists, the legitimacy and effectivity of the local government and the proportionality of the intervention would have to be appreciated.96 The Libyan internal conflict is a complex one: on the one hand, the Islamist opposition forces are part of a transnational movement which is not effectively controlled by any government, whose goal is to bring about a fundamental change to the global international structure. On the other hand, there are undoubtedly intra-State elements which involve confrontations between the State _____________ 92

Expression used for the first time by The New Yorker, 2 May 2011; then repeated in the New York Times on the following day. 93 Justin Vaïsse, Barack Obama et sa politique étrangère (2008–2012), 2012, 178 et seq. 94 Statement of Mrs. Roberta Pinotti declaring that Italy was ready to lead a coalition of the regional countries, both European and North African, to stop the spreading of the Caliphate already at 350 kilometers of Italian coasts: The Boston Globe, 17 February 2015. 95 David Kretzmer, The Inherent Right to Self-Defence and Proportionality in Jus Ad Bellum, EJIL 24 (2013), 235. 96 Ekiav Lieblich, International Law and Civil Wars: Intervention and Consent, JCSL 19 (2014), 381.

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and internal forces which comprise Libyan citizens (tribes, militias) supplemented by foreigners. Now the Islamist militia are pursuing an objective which is the establishment of the Islamic caliphate, regarded as incompatible with the international standards of human rights and international law. The struggle is aiming to dismantle the State, very much like in Iraq. This raises a number of questions related to the response of international law to terrorism. As for an intervention based on consent, when the conflict involves elements which reject the State structure, the non-intervention argument seems inadmissible. As a precedent, although no military action was decided therein, in Resolution 2169 (2014) regarding Iraq, the SC expressed its grave concern at the current security situation in Iraq as a result of a large-scale offensive carried out by terrorist groups, in particular ISIL, and associated armed groups, involving a steep escalation of attacks, heavy human casualties including children, the displacement of civilians, and threats against all religious and ethnic groups. The SC condemned the attempt to destabilise the country and region by terrorist groups and associated armed groups and the threat to a State’s security and territorial integrity.97 As Judge Kooijmans noted, in present-day international relations “a phenomenon has unfortunately become as familiar as terrorism, viz. the almost complete absence of government authority in the whole or part of the territory of a State. If armed attacks are carried out by irregular bands from such territory against a neighbouring State, they are still armed attacks even if they cannot be attributed to the territorial State. It would be unreasonable to deny the attacked State the right to self-defence merely because there is no attacker State, and the Charter does not so require”.98 The lawfulness of the conduct of the attacked State must be put to the same test as that applied in the case of a claim of self-defence against a State: does the armed action by the irregulars amount to an armed attack and, if so, is the armed action by the attacked State in conformity with the requirements of necessity and proportionality? From a political point of view, intervention by one or several regional powers, particularly military operations on the ground, may be considered more acceptable. In that regard, Egypt, solely or with the support of airforces of other powers, could more legitimately intervene as a neighbouring State directly affected, particularly with the terrorist threat of ISIL affiliated groups in the Sinai. President Abdel Fattah el-Sissi considers that European States did not fully achieve their mission when they intervened against the Gadaffi regime, _____________ 97

Security Council, Resolution 2169 of 30 July 2014 (UN Doc. S/RES/2169). ICJ, Armed Activities (RDC v Congo), Judgment, Separate Opinion of Judge Kooijmans, ICJ Reports 2005, 306, 314. 98

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and the risks due to the Libyan chaos concern Egypt and the whole region.99 Forcible intervention would be a toll to achieve security. On the other hand, interventions to support militias and islamists have been mentioned: some airstrikes on behalf of the brigades, particularly in Benghazi, go beyond the possibility of any Libyan group and weapons and ammunition have been supplied from Sudan and Qatar according to the Libyan authorities, though the States in question denied any involvement; without any doubt support to rebels is illegal, but those actions further accentuate the regional dimension of the conflict. 3. Law of the Sea Taking advantage of the inability of the Libyan authorities to exercise an effective control over the territory, armed groups are seeking to obtain financial means for their activities. In particular, they are trying to seize oil resources to sell and export to foreign clients. Beyond the fights over the control of oil fields which are at the heart of the present civil war, several incidents occurred in relation to illegal exports of oil. Eager to reassert control over the nation’s main revenue source,100 the government had issued comminatory statements prohibiting illegal shipments of crude oil, and eventually threatened to board and search, or even bomb, vessels which illegally load crude oil and sail away with the cargo.101 The government would have to be able to do so, but it happened that the Libyan forces refused to fire a tanker. Then, in March 2014, at the request of Libyan authorities the US Navy boarded and searched a tanker, the Morning Glory, flying the North Korean flag and leaving Libya with its cargo of 350,000 barrels of crude oil loaded in El Sidra, a port of the Eastern coast controlled by rebels. Immediately, North Korea denied having granted its flag to the vessel carrying the contentious cargo. As a consequence, the SC has adopted a resolution which rearranges the principle of exclusive jurisdiction of the flag State over a ship on the high seas. The resolution describes several phases for action of the Libyan Government on the basis of any information regarding such exports or attempted exports:

_____________ 99

Abdel Fattah el-Sissi, Statement of 17 February 2015. Libya pumped about 235,000 barrels a day in March 2014 compared to 1,4 million barrels a day in July 2013 when four of its nine crude-exporting ports were shut by forces led by Ibrahim Al Jedran, a former commander of the Petroleum Facilities Guard and founder of Barqa (Cyrenaica) Executive Office. 101 Libya Herald, February and March 2014, reporting particularly the press conference of Prime Minister Ali Zeidan on 8 March 2014. 100

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Contact the vessel’s flag State to solve the issue.

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Appoint a focal point responsible for communication and informing the Committee established by Resolution 1970 (2011) of any vessel transporting crude oil illicitly and of any effort made to solve the issue.

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The Committee would immediately inform all relevant States and the Resolution authorises Member States to inspect the vessels designated by the Committee on the high seas and to use all measures commensurate to the circumstances, in full compliance with humanitarian law and HR law, and to return the crude oil to Libya.

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Before taking such measures States should, however, seek the consent of the vessel’s flag State and they have to promptly submit a report to the Committee.

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That authorisation applies only to inspections carried out by warships and Stateowned ships used on government non-commercial service.

It is indeed a derogation from the vessel’s flag State principle which is framed by international law: for that reason, the SC refers to the rules and principles of the United Nations Convention on the Law of the Sea (UNCLOS) including the principle of exclusive jurisdiction of a flag State over its vessel on the high seas. It makes clear that such an authorisation is strictly related to the Libyan situation and that the resolution cannot be regarded as establishing customary international law. This wording is similar to that used in relation to piracy along the coast of Somalia, although the situation is quite different. This right to search and inspect goes along with a sanction mechanism for specific vessels. It is for the Committee set up by Resolution 1970 (2011) to designate the targeted vessels and impose obligations on them: firstly, the flag State shall take the necessary measures to forbid the vessel to load, transport or unload Libyan crude oil, on the instruction of the Libyan focal point; secondly, all Member States must prohibit vessels designated by the Committee from entering their ports unless in case of emergency or in the case of return to Libya; and they must also prohibit the provision by their nationals or from their territory of services (fuel, supplies, services, etc.); finally, States must require their nationals and entities or individuals on their territory not to engage in any financial transactions with respect to such crude oil from Libya aboard designated vessels. II. The Humanitarian Disaster Although the intervening powers invoked a humanitarian disaster in 2011 to take action, the situation is certainly worse at the present time. It is embarrassing for the intervening powers as they restricted the operation to airstrikes, while R2P implies the responsibility to rebuild the target State and, at least, a moral duty to rescue and preserve the population. For these reasons, being

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present on the ground was needed though it might have be difficult and less flattering for the governments in the face of public opinion. The humanitarian situation deteriorated badly in 2014–2015102 and it is a serious concern for two reasons: humanitarian issues and migration. 1. Humanitarian Issues Several humanitarian issues have been identified and pointed out by UNSMIL and humanitarian organisations. They constitute offences under international and national law. a) Facts There are countless facts of violence which mark the everyday life of the Libyan people. UNSMIL as well as the OHCHR and other organisations or NGOs regularly list and report them. Indiscriminate shelling and attacks on civilian objects as well as air strikes on populated areas are constant, including hospitals, residential buildings and houses, shops and infrastructures. Casualty figures are high but difficult to establish: the Secretary-General regularly reports hundreds of killings and thousands of injured people in periods of approximately six months. For example, in Benghazi between October and December 2014, an estimated 450 people were killed in fighting, and half of the population has left to escape the fighting. In western Libya, according to UNSMIL, armed hostilities in the Warshafana tribal belt area left approximately 100 dead, 500 injured and 120,000 displaced. The siege by Zintani forces of the towns of Kikla and al-Qal’a in the Nafusa Mountains reportedly left more than 170 dead and displaced more than 5,700 families. In the south, some 140 were reportedly killed in intertribal clashes in Awbari.103 The escalation of fighting has a disproportionate impact on children across Libya: schools are damaged as a result of shelling, some are used as bases by combatants (Warshafana, Nafusa mountains), many schools have been converted into shelters for displaced persons (Benghazi, Tobruk, Tripoli). Approximately 400,000 persons are estimated to be internally displaced of whom 360,000 were displaced as the result of the fighting that began in July 2014. Refugees outside the country number two million and are located mostly in Tunisia where they are estimated at one million.104

_____________ 102

Report of the Secretary-General on the United Nations Support Mission in Libya of 26 February 2015 (UN Doc. S/2015/144). 103 Ibid., para. 25. 104 Brookings Institution, 17 March 2015.

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Several regions are largely inaccessible to the humanitarian help, including UN staff, and although international humanitarian law prohibits attacks against medical facilities, medical personnel and the wounded and sick, hospitals in Tripoli and Benghazi have been shelled. Casualties increased but personnel could not report to work due to lack of security. Arbitrary detentions, abductions, and torture have been denounced: UNSMIL has received reports that armed groups engaged in the fighting have arbitrarily detained or abducted fighters as well as civilians. In October 2013, UNSMIL and OHCHR published a joint report setting out the widespread torture, other ill-treatment, and deaths of those detained by armed groups in Libya.105 UNSMIL is concerned that in the current context these abuses are being replicated. In addition to the detention of fighters or suspected fighters, UNSMIL has received initial reports that dozens of civilians were abducted in Tripoli and Bengahzi solely for their actual or suspected tribal, family or religious affiliation, and have remained missing since the time of their abduction. Assassinations and unlawful killings both in Tripoli and Benghazi, as well as public executions that amount to summary executions were reportedly carried out in Derna by the Shura Council of Islamic Youth armed group. Attacks on media professionals have been steadily increasing in 2014, and UNSMIL is particularly concerned by the continued harassment of and attacks on journalists by all parties to the conflict, including restrictions of movement, confiscation of equipment, arbitrary arrests, abductions and assassinations. As for the administration of justice, the courts in Tripoli effectively stopped functioning during the 2014 fights, although the public prosecution has continued its work to some extent. The Offices of the Prosecutor General and courts in central Tripoli were hit by shells on 20 August 2014. The courts were suspended in Derna, Benghazi and Sirte in March 2014, with some judges reporting to duty in adjacent towns. The Minister of Justice informed UNSMIL that, as of 27 August, the Ministry of Justice in Tripoli was shut down and occupied by Operation Dawn members. The conflict has also affected the situation in prisons. b) Legal Implications Those facts and situations constitute violations of international and national humanitarian and human rights law. Libya is a party to international human rights instruments and to the four Geneva Conventions and the 1977 Protocol II. The situation in Libya has been referred to the Prosecutor of the International Criminal Court by SC Resolution 1970 (2011). Indiscriminate attacks _____________ 105

UNSMIL/OHCHR, Torture and death in detention in Libya, October 2013.

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and attacks against civilians and civil targets – such as airports – constitute war crimes, except where those equipments and sites are used for military purposes. However, in such cases, there is a duty to protect civilians. The same considerations should apply to airstrikes. Intentionally destroying private properties without any military justification, executions, torture and inhuman or degrading treatment are also war crimes. Finally, under the criminal code of Libya the following constitute offences: intentional destruction of public property (Article 198), acts threatening public security through systematic assassinations (Article 296),voluntary interruption of public services and provision of electricity (Article 301), looting, destruction of private property (Article 323), and the use of explosives in order to create terror within the population (Article 325). As for allegations of torture and inhuman treatment during the present period, Law n°10 of 2013 on Torture, Enforced Disappearances and Discriminations is applicable.106 There is some intricacy in the relations between the ICC and Libya. Some ICC staff have been detained in Zintan while they were undertaking a mission authorised by the interim government in 2012; ICC documents have been seized by the militias and the authorities are reluctant to have the cases dealt with by the Court. So, in cases regarding Saif Al-Islam Qadaffi and Abdullah Al-Senussi for alleged crimes against humanity (murder and persecution) committed in Libya in February 2011, Libya has not yet surrendered the requested persons and challenged the admissibility of the cases before the Court in 2012. On 31 May 2013, the Pre-Trial Chamber rejected Libya’s challenge to the admissibility of the case against Saif Qadaffi and ordered his surrender, and that was confirmed by the Appeals Chamber on 18 July 2013. The Court acknowledged Libya’s efforts to restore the rule of law but it underscored the difficulties faced in exercising its judicial powers and particularly the order to secure Qadaffi in State custody. Conversely, on 11 October 2013, the Pre-Trial Chamber ruled that the case against Al-Senussi was inadmissible before the ICC on the basis that Libyan authorities are both willing and able to prosecute him. That is the first time the Court has found in favour of the government challenge to ICC jurisdiction. That decision was appealed by Al-Senussi, but the appeal was rejected107 and the Prosecutor then called on Libya to show that he would receive a fair trial. Saif Qadaffi requested the Pre-Trial Chamber to find that Libya did not comply with its obligation to transfer him to the Court. On 21 May 2014, the Appeals Chamber confirmed the admissibility of the Qadaffi case as Libya had not proven that its national investigation covers the same _____________ 106

Law n°10 (2013), adopted by the GNC on 14 April 2013. Judgment on the appeal of Mr. Abdullah Al-Senussi against the decision of the Pre-Trial Chamber I of 11 October 2013 entitled “Decision on the admissibility of the case against Abdullah Al-Senussi”. 107

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case as the one before the Court.108 On 10 December 2014, the Pre-Trial Chamber found that Libya has failed to comply with the Chamber’s requests to surrender Saif Al-Islam Qadaffi to the custody of the Court. The Pre-Trial Chamber decided to refer the matter to the SC.109 The SC has reaffirmed the importance of the government of Libya’s cooperation with the ICC and the Prosecutor and the importance of holding accountable those responsible for violations or abuses of human rights or violations of international humanitarian law, including those involved in attacks targeting civilians.110 By Resolution 2174, adopted unanimously and based on Chapter VII, the SC expressed its determination to use “targeted sanctions” against individuals and entities who threaten the stability of Libya and obstruct or undermine its successful completion of the political transition. That applies particularly to “planning, directing or committing acts that violate applicable international human rights law or international humanitarian law, or acts that constitute human rights abuses, in Libya”. The Prosecutor of the ICC, Mrs. Fatou Bensouda, stated once again that the Office of the Prosecutor “will not hesitate to investigate and prosecute those who commit crimes under the Court’s jurisdiction in Libya irrespective of their official status or affiliation”.111 2. Migration The collapse of the Libyan State has opened the borders to a flow of migrants. With the eruption of fighting between the militia and the violence of terrorist groups, large numbers of refugees and asylum-seekers take the risk of crossing the Mediterranean with people smugglers. According to the UNHCR, _____________ 108 Judgment on the appeal of Libya against the decision of the Pre-Trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Qadaffi”, including Separate Opinion of Judge Sang-Hyun Song and Dissenting Opinion of Judge Anita Usacka. The two cases have been studied and discussed in Chatham House, The Royal Institute of International Affairs, The International Criminal Court and Libya: complementarity in conflict, London, 22 September 2014; summary available at http://www.chathamhouse.org/event/international-criminal-court-and-libya-com plementarity-conflict (accessed 29 July 2015). 109 Mrs. Fatou Bensouda, Statement to the United Nations Security Council on the Situation in Libya, pursuant to UNSCR 1970 (2011), 12 May 2015; Ninth Report of the Prosecutor of the International Criminal Court to the UN Security Council pursuant to UNSCR 1970 (2011), 12 May 2015. 110 Security Council, Resolution 2174 of 27 August 2014 (UN Doc. S/RES/2174); Resolution 2213 of 27 March 2015 (UN Doc. S/RES/2213). 111 Statement of the Prosecutor of the ICC, Fatou Bensouda, in relation to the escalating violence in the situation in Libya, 25 July 2014, ICC Weekly Update #219.

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more than 110,000 such people have already arrived on Italian shores; not all are Libyan, half of them originate from Syria and Eritrea. The others come from destabilised regions of Africa and the Middle East as well as Libya.112 This migration entails two risks related to the immigration policy and the security of European States. It makes it difficult to master and control the migration phenomenon and encourages all sorts of traffics, tragedies such as the Lampedusa shipwreck in 2013. The European Agency Frontex (European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union)113 has intensified its action in order to face the high migratory pressure. The European Commission extended Joint Operation Triton, launched on 1 November 2014, over the whole year 2015 to coordinate sea patrol vessels and aircrafts in the central Mediterranean. The mission consists of deployment of vessels in the search and rescue zones of Italy and Malta. It includes support to the Italian authorities in collecting intelligence on the people-smuggling networks operating in the countries of origin and transit of the migrants as well as screening. It operates under the command of the Italian Ministry of the Interior in cooperation with relevant authorities. Since November 2014, around 20,000 people have been rescued, an increase of almost 60 per cent compared to 2014.114 Beyond destitution and poverty of the concerned people, those rescue operations represent a high cost and create a vacuum effect attracting always more desperate migrants towards Europe. Already the previous rescue operation Mare Nostrum, set up by Italy, had been criticised by some European governments as it could arouse the crossing yearning and the activities of smugglers.115 Another risk has been pointed out by Italian and Egyptian authorities: the danger of terrorist infiltration among the migrants. EU members fear Libya could become a direct security threat while more and more refugees seeking safety in Europe present a major humanitarian issue. The threat to send Islamist militiamen who would pose as migrants has been raised by ISIL in the begin_____________ 112

According to the UNHCR Representative in Libya, as of December 2014, there were 363,067 Internally Displaced Persons in Libya, 27,964 refugees, 8,904 asylum seekers; total population of concern: 399,935; statistical snapshot available at http:// www.unhcr.org/pages/49e485f36.html (accessed on 11 August 2015). 113 Established by Regulation (EC) 2007/2004 of the Council of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ 2004 L 349, amended in 2011. 114 Mr. Cardi (Italy), Security Council, 7387th Meeting, 18 February 2015 (UN Doc. S/PV.7387). 115 Le Monde, 31 October 2014.

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ning of 2015 and that imposes on the Member States a strategic response and eventually the use of force which is already available to Frontex116 or beyond. The High Representative of the EU, Mrs. Federica Mogherini, clearly pointed out the critical situation in Libya, both as a source and as a transit point for migrants, to the Security Council: “The vast majority of human trafficking and smuggling in these months is happening in Libya, or rather, through Libya. As long as there is not a Unity Government that can exercise its legitimate authority over the entire territory of the country and its land and sea borders, the situation is likely to continue this way. We need to work together in partnership, Europeans and Libyans, to fight trafficking and smuggling organisations. This is a Libyan interest and responsibility, this is a Mediterranean interest and responsibility, this is a European interest and responsibility, this is also an African interest and responsibility and I would say, it is a global interest and responsibility”.117 In May 2015 the EU Naval Force (EUNAVFOR Med) has been instituted to tackle smugglers and traffickers in the southern central Mediterranean, and Foreign and Defence Ministers adopted conclusions on strengthening the EU’s common security and defence policy, in cooperation with NATO.118

D. Conclusion The situation in Libya thus covers all international law rules applicable to conflicts. International law does not deprive States of means to act efficiently. The most decisive factor is a political will to act. For a State, it is the highest vital interests which trigger the ultimate responsibility: we have reached the ultimate moment for Libya to constitute spontaneously as a nation without any external factor. In the so-called “international community” to which one often refers although it is not yet an effective entity, one should notice that “solidarities weaken as the threatening perils grow; those which reassert themselves _____________ 116

RABIT (Rapid Border Intervention Teams), Regulation (CE) 863/2007 of the European Parliament and the Council of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams, OJ 2007 L 199/30; on the action of the task force see Communiqué from the European Commission of 4 December 2013; on Frontex: Benoît Grémare, L’agence Frontex et la marine nationale, 2012, available at dmas.ccsd.cnrs.fr (accessed on 29 July 2015). 117 Security Council, 7439th Meeting, 11 May 2015, Cooperation between the UN and regional and subregional organisations (UN Doc. S/PV.7439). 118 Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean, OJ 2015 L 122/31; Statement of the Ministers of Foreign Affairs and Defence of 18 May 2015, European External Action Service of 19 May 2015.

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flow back to their traditional centre, the nation”.119 The Libyan crisis, precisely because of its magnitude and diversity, threatens the heart of every nation.

_____________ 119

Charles De Visscher, Theory and reality in Public International Law, 1957 (1st ed. in English), ed. Paris 1970, 112.

Part III

International Humanitarian Law

Challenges to International Humanitarian Law By Marco Sassòli and Yvette Issar

A. Introduction Efforts to reduce the suffering unleashed by war through rules of conduct for belligerents are not a uniquely modern phenomenon. They have been with humanity for centuries, and as such, the origins of present-day International Humanitarian Law (IHL) can be traced to ancient times. However, the manner in which these efforts have been articulated has undergone significant changes over time. Taking stock of the corpus of IHL today it is clear that, as it has developed, IHL has enjoyed significant successes. Although this contribution deals with contemporary challenges to IHL, we will nevertheless first summarise some impressive successes achieved over the last 150 years, to avoid painting too bleak a picture of this branch of law which aims at ensuring a minimum of humanity in such fundamentally inhumane situations as armed conflicts. We will then discuss contemporary challenges to IHL, some of which result from the very nature of the situations to which it applies, while others may arguably be ascribed to certain problematic characteristics of modern warfare. Challenges concerning the substance of the law will be treated first, followed by what, in our opinion, is the main challenge, namely the insufficiency of mechanisms to ensure respect for already existing and largely adequate rules. To a large extent, these failings can be ascribed to a lack of political will on the part of States (and other actors) to follow through with effective implementation mechanisms. This article, written by lawyers and not political scientists, will focus on the legal challenges and attempt to offer suggestions that may help to effect change on, at least, the legal plane. As such, the final section will explore potential avenues for, and obstacles to, addressing the substantive and procedural challenges highlighted.

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B. Successes of International Humanitarian Law I. Substantive Progress Firstly, as IHL has developed, it has experienced incredible growth. An increasing number of IHL treaties have come to regulate a greater number of issues in greater depth, meaning that the protection offered by IHL treaties has increased both horizontally and vertically. For example, the 1864 Geneva Convention,1 considered by many to represent the birth of modern, codified IHL,2 covered wounded and sick soldiers on the battlefield, and contained ten Articles. Intervening years (and the horrific armed conflicts accompanying them) saw the development of additional treaties regulating the treatment of additional categories of persons in the power of the enemy and additional issues, such as the conduct of hostilities and the use of certain weapons. Besides this horizontal expansion, the rules of IHL have, in all areas, become more detailed, with the experience of previous conflicts providing insight into aspects requiring further regulation. Early IHL treaties, including the 1864 Convention, were limited to international armed conflicts (IACs). With the adoption of Common Article 3 to the four Geneva Conventions of 1949 (Geneva Conventions, GCs),3 it was accepted that international law regulated what were previously considered domestic affairs. The adoption of Additional Protocol II (AP II)4 in 1977 provided further confirmation of this and the trend has continued to date, with the effect that today, a greater number of rules of international law are applicable in times of non-international armed conflicts (NIACs). Today’s armed conflicts are predominantly non-international in character and are responsible for a staggering amount of devastation. Fortunately, it has become almost a matter of course _____________ 1 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 22 August 1864. 2 Marco Sassòli/Antoine Bouvier/Anne Quintin, How Does Law Protect in War?, 3rd ed. 2011, 139. 3 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, UNTS Vol. 75, 31 (GC I); Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, UNTS Vol. 73, 85 (GC II); Convention relative to the Treatment of Prisoners of War of 12 August 1949, UNTS Vol. 75, 135 (GC III); Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, UNTS Vol. 75, 287 (GC IV). 4 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977, UNTS Vol. 1125, 609 (AP II).

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for present-day IHL instruments to regulate NIACs.5 Some instruments prohibiting weapons – such as the 1997 Ottawa Convention on Landmines6 and the 2008 Convention on Cluster Munitions7 – result inevitably in exactly the same regime for NIACs and IACs. Others regulate both types of conflicts, but contain different, albeit similar, provisions for each type. An example is the Rome Statute of the International Criminal Court, which contains separate lists of war crimes for IACs and NIACs.8 Secondly, not only are there a greater number of IHL rules governing NIACs, but the substance of that law tends increasingly towards the law of IACs, the latter being historically the more detailed, and therefore often (but not always) the more protective, of the two branches. This is one of the greatest triumphs in the development of IHL, and has mainly occurred through the discovery of customary rules, which are claimed to be largely the same in both IACs and NIACs. The jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) is particularly noteworthy in this regard, its approach being summed up in the famous dictum from the Tadić case, in which the Tribunal held that “what is inhumane and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife”.9 Building on this, the ICRC’s 2005 Study on Customary IHL,10 based upon the most comprehensive analysis of official State practice ever made in this field, has identified 161 rules of customary IHL, out of which at least 136 (if not 141) are considered applicable to NIACs, despite the fact that many of the customary rules identified resemble the treaty rules of Additional Protocol I (AP I)11 which was drafted for IACs. _____________ 5 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, 2012, in particular 61–65. 6 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction of 18 September 1997, UNTS Vol. 2056, 211. 7 Convention on Cluster Munitions of 30 May 2008, UNTS Vol. 2688, 1. 8 Rome Statute of the International Criminal Court of 17 July 1998, UNTS Vol. 2187, 3; Compare Articles 8 (2) (a) and (b) of the Statute on IACs against Articles 8 (2) (c) and (e) of the same on NIACs. 9 ICTY, The Prosecutor v. Duško Tadić aka “Dule”, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995 (Case No. IT-94-1-AR72), para. 119. 10 Louise Doswald-Beck/Jean-Marie Henckaerts (eds.), Customary International Humanitarian Law, Volume I: Rules, 2005. The Study is now available as a database, which is hosted by the International Committee of the Red Cross (ICRC) and regularly updated. The database is online at https://www.icrc.org/customary-ihl/eng/docs/home. 11 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts of 8 June 1977, UNTS Vol. 1125, 3 (AP I).

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This proliferation of (alleged) customary rules itself marks the third major development of IHL. It is “notoriously difficult”12 to identify customary rules, as the constituent elements of custom are generally uniform State practice and opinio iuris. One scholar correctly notes that, unlike in general public international law, in determining customary IHL we pay more attention to what States say rather than to what they actually do.13 Not only are the pronouncements of States actually involved in a conflict taken into account, but those of noninvolved States are also significant and usefully serve to “demonstrate the views of the outside state on the law.”14 Prior to the mid-1990s, it was difficult to argue for the existence of more than a handful of customary rules applicable in times of NIACs.15 It would have been even more difficult to argue that those customary rules were identical in content to their counterparts governing IACs. Today, this has changed dramatically, facilitated in part by ICTY jurisprudence, supported by the ICRC Study, but also accepted by States in their official pronouncements. The significance of the identification of these customary rules, in both IACs and NIACs, transcends the realm of IHL and is particularly relevant from the point of view of the principle of legality in international criminal law. The fourth area in which great strides have been made concerns the regulation of certain weapons. From its earliest beginnings, rules on warfare have regulated weapons. In ancient India, for example, the use of poisoned weapons was prohibited.16 The first modern codification of this rule found expression in a set of national instructions, the Lieber Code.17 Shortly after, States adopted the St. Petersburg Declaration – the world’s first weapons treaty – prohibiting the use of explosive bullets in warfare.18 It codified the “balancing logic” of _____________ 12

Sivakumaran (note 5), 104. Ibid., 102: “[I]n highly areas such as the law of armed conflict, greater regard is had for opinio juris and for what ought to be the law than is otherwise the case.” (footnotes omitted). 14 Ibid. 15 Ibid., 55. 16 George Bühler (translator), Sacred Books of the East: The Laws of Manu, Volume 25, Chapter VII, Point 90, “When he fights with his foes in battle, let him not strike with weapons concealed (in wood), nor with (such as are) barbed, poisoned, or the points of which are blazing with fire.” 17 Instructions for the Government of Armies of the United States in the Field of 24 April 1863 (Lieber Code), Section I, Art. 16. 18 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes in Weight, St. Petersburg, 1868 (see, in particular, the ICRC’s introduction to the Declaration), available at https://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp? documentId=3C02BAF088A50F61C12563CD002D663B&action=openDocument (accessed on 16 December 2014). 13

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IHL and paved the way for the concepts of military necessity, superfluous injury and unnecessary suffering, which continue to operate to this day and have led to the adoption of a range of instruments regulating specific means of warfare, including asphyxiating gases,19 biological20 and chemical21 weapons, and also conventional weapons,22 including those which leave non-detectable fragments,23 incendiary weapons,24 blinding laser weapons,25 explosive remnants of war,26 landmines27 and cluster munitions.28 In addition, IHL criteria have been incorporated into the recently adopted Arms Trade Treaty, requiring States not to authorise transfers of certain weapons if they are aware that such weapons would be used to commit war crimes.29 Furthermore, exporting States are required to assess the potential that their exports could be used to commit or facilitate serious violations of IHL.30 The adoption of these weapons treaties, many of which are also applicable to NIACs, represents an important step forward in protecting civilians and combatants from the ravages of unrestrained warfare. _____________ 19 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare of 17 June 1925, League of Nations Treaty Series, Vol. XCIV, 65. 20 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction of 10 April 1972, UNTS Vol. 1015, 163. 21 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 3 September 1992, UNTS Vol. 1974, 45. 22 UN Convention on Prohibitions or Restrictions of the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects of 10 October 1980, UNTS Vol. 1342, 137 (CCW). 23 Additional Protocol to the CCW: Protocol I on Non-Detectable Fragments of 10 October 1980, UNTS Vol. 1342, 168. 24 Additional Protocol to the CCW: Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons of 10 October 1980, UNTS Vol. 1342, 171. 25 Additional Protocol to the CCW: Protocol IV on Blinding Laser Weapons of 13 October 1995, UNTS Vol. 1380, 370. 26 Additional Protocol to the CCW: Protocol V on Explosive Remnants of War of 28 November 2003, UNTS Vol. 2399, 100. 27 Additional Protocol to the CCW: Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and other Devices of 10 October 1980, UNTS Vol. 1342, 168; Amended Protocol II to the CCW of 3 May 1996, UNTS Vol. 2048, 93; Ottawa Convention Banning Anti-Personnel Land Mines (note 6). 28 Note 7. 29 UN Arms Trade Treaty of 2 April 2013 (cf. General Assembly, Resolution 67/234 of 4 January 2013, UN Doc. A/RES/67/234), Art. 6 para. 3. 30 Ibid., Art. 7 para.1 lit. b (i).

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Finally, we must mention recent work by the International Committee of the Red Cross (ICRC) to clarify IHL. In its role as “the guardian of IHL”31 the ICRC, among other things, works to clarify key substantive issues. Due to the reluctance of States to accept new treaty rules and in view of the risk that new rules may weaken rather than strengthen the existing legal framework, ICRC initiatives limit themselves to developing improved understandings of existing IHL provisions and claim not to aim at establishing new obligations for belligerents. One such initiative – an expert process that ran for six years between 2003 and 2008 – produced the ICRC’s Interpretive Guidance on the notion of direct participation in hostilities.32 The Guidance aimed to clarify the principle of distinction for the purposes of conduct of hostilities. It was responding to the twin challenges that a) over time, it has become increasingly difficult to distinguish between civilians and fighters in contemporary warfare, as the latter do not seek to identify as such; and b) additionally, the increasing “civilianisation” of warfare, with the employment of private military and security companies, translators for security forces, civilian intelligence agents among others, has made it extremely unclear whether an individual civilian’s acts constitute “direct participation in hostilities” which would make it lawful to target that civilian while he/she was engaged in such direct participation.33 The Guidance, through its 10 recommendations, provides clarification on these issues, has been cited by international bodies,34 and “is likely to have a significant influence on international and national tribunals considering the meaning of direct participation in hostilities […]”.35 The fact that it has also come under severe criticism from some quarters36 does not detract from the largely useful work of the ICRC in clarifying the concept of direct participation in hostilities. _____________ 31

Yves Sandoz, The International Committee of the Red Cross as Guardian of International Humanitarian Law, 31 December 1998, available at https://www.icrc.org/eng/ resources/documents/misc/about-the-icrc-311298.htm (accessed on 16 December 2014). 32 Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, 2009. The Interpretive Guidance and materials produced during the expert process are available online at https://www.icrc.org/ eng/resources/documents/publication/p0990.htm (accessed on 16 December 2014). 33 AP I, Art. 51 para. 3; AP II, Art. 13 para. 3. 34 Human Rights Council (rapp. Philip Alston), Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions: Study on Targeted Killings of 28 May 2010 (UN Doc. A/HRC/14.24/add.6), paras 62–69. 35 Damien van der Toorn, ‘Direct participation in hostilities’: A legal and practical evaluation of the ICRC Guidance (2009) 1, available at http://www.works.bepress.com/ damien_van_der_toorn/1 (accessed on 16 December 2014). 36 Bill Boothby, “And for Such Time As”: The Time Dimension to Direct Participation in Hostilities, JILP 42 (2010), 741; Michael Schmitt, The Interpretive Guidance on

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A similar process was undertaken with respect to the law on occupation. Several contemporary challenges linked to the exercise of military authority on foreign territory prompted the ICRC to launch consultations to investigate whether the law of occupation is adequate in four main areas: the beginning and end of occupation, the rights and duties of an occupying power, the relevance of occupation law for UN administration of foreign territory and the use of force in occupied territory. The results of the consultations have been presented in a Report37 which found generally that the law of occupation is adequate, but identified areas where further clarification would be useful. Continuing its tradition of strengthening IHL through such non-binding “clarifications”, the ICRC has launched a project to strengthen legal protection for victims of armed conflict38 and “is currently leading a major consultation process on how to strengthen legal protection for persons deprived of their liberty in relation to NIAC”.39 This is because it is generally considered that IHL of NIACs is particularly insufficient in the following areas: “conditions of detention, protection for especially vulnerable groups of detainees, grounds and procedures for internment and transfers of detainees to another authority.”40 It is not currently clear what form the results of the process will take, but an update on work done so far is scheduled for 2015, and it is hoped that the process will provide much needed guidance for parties that hold detainees in NIACs. We sincerely hope that despite the reluctance of States, the perspective of armed groups and the legal regulation of detention by such groups will not be forgotten in this process.

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the Notion of Direct Participation in Hostilities: A Critical Analysis, HNSLJ 1 (2010), 5; William Hays Parks, Part IX of the ICRC “Direct Participation in Hostilities” Study: No Mandate, No Expertise and Legally Incorrect, JILP 42 (2010), 769. 37 ICRC, Occupation and Other Forms of Administration of Foreign Territory (Expert Meeting Report), March 2012 (prepared and edited by Tristan Ferraro), available at https://www.icrc.org/eng/resources/documents/publication/p4094.htm (accessed on 16 December 2014). 38 ICRC, Strengthening legal protection for victims of armed conflicts, available at https://www.icrc.org/eng/what-we-do/other-activities/development-ihl/strengthening-pro tection-victims-armed-conflict.htm (accessed on 16 December 2014). 39 ICRC, Detention in non-international armed conflict: the ICRC’s work on strengthening legal protection, available at https://www.icrc.org/eng/what-we-do/otheractivities/development-ihl/strengthening-legal-protection-ihl-detention.htm (accessed on 16 December 2014). 40 Ibid.; see also infra, text accompanying notes 97 and 98.

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II. Development of Implementation Mechanisms In addition to this substantive progress, there have been important developments as regards implementation of IHL. The law cannot be correctly applied if few are aware that it exists, and even fewer are aware of its contents. Therefore the first significant development is related to increased interest in and dissemination of IHL. Thirty years ago, IHL was largely a secret science dealt with in closed circles by a few ICRC lawyers, a few (mainly Western) military lawyers and the veterans of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, held in Geneva from 1974 to 1977, which drafted the 1977 Additional Protocols. To the best of our knowledge, the only university in the world to offer a regular IHL course to civilians was in Geneva. The UN still referred to IHL as “human rights in armed conflicts”.41 Today, however, the picture is quite different. The statements and other arguments of belligerents, both the hypocrisies and well-founded claims made by governments, rebels, terrorists, politicians, diplomats, NGO activists, demonstrators and journalists, constantly refer (correctly or not – but increasingly correctly) to IHL. It is omnipresent in UN Security Council resolutions, UN Human Rights Council discussions, political pamphlets of opposition movements, NGO reports, training materials of soldiers, commitments of armed groups, non-papers of diplomats, and the staggering number of theses and articles produced by doctoral students and scholars. Significant progress has been made with respect to the preventive measures to be taken in peacetime, in particular the development of appropriate national legislation, education, training and dissemination of IHL. This has been, in part, thanks to the ICRC’s Advisory Service, which provides specialised legal advice to States (and which, as we argue in section D.VIII. below, should be extended to armed groups), and to the impetus given to the development of national legislation by the Statute of the ICC. While the latter formally requests only legislation to ensure co-operation with the Court, many States have taken this opportunity to finally implement their obligation to criminalise grave breaches of the Geneva Conventions42 and other war crimes in their domestic legislation. The United Nations, for its part, has changed its discourse on IHL issues, and now contributes significantly to the implementation of IHL in a number of

_____________ 41

International Conference of Human Rights (Tehran), Resolution XXIII on Human Rights in Armed Conflict of 12 May 1968 (UN Doc. A/CONF.32/41), at p. 18; UN General Assembly, Resolution 2444 (XXIII) on Respect for Human Rights in Armed Conflicts of 19 December 1968 (Supp. N°18, U.N. Doc. A/7218). 42 GC I, Art. 49; GC II, Art. 50; GC III, Art. 129; GC IV, Art. 146.

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ways, and through different organs.43 Firstly, the UN Security Council has, on several occasions, called upon parties to armed conflicts to abide by IHL,44 verbally condemned45 and even sanctioned46 violations of IHL, established peace operations with robust mandates to protect civilian populations against violations of IHL,47 and authorised the creation of fact-finding missions and international criminal tribunals with mandates to investigate violations of IHL.48 The Security Council has also set up a monitoring and reporting mechanism to combat six grave violations committed against children in armed conflict. The mechanism operates by identifying and formally listing parties responsible for the six violations and requesting them to formulate action plans that lead to compliance with international law. As such, the mechanism not only serves to “name and shame”, but also functions as a regular “follow up” mechanism, as parties are only removed from scrutiny and “delisted” once it has been verified that activities listed in the action plan are fully implemented.49 Secondly, the UN General Assembly and, more importantly, UN human rights mechanisms are proving increasingly relevant in promoting compliance with and implementation of IHL. Within the UN Human Rights Council (HRC), the review of a State’s human rights record in the context of the Universal Periodic Review also encompasses applicable IHL.50 In both its regular _____________ 43 See generally, Sivakumaran (note 5), 465–467; UN Office of the High Commissioner for Human Rights (OHCHR), International Legal Protection of Human Rights in Armed Conflict, 2011, 92–117, available at http://www.ohchr.org/documents/publicati ons/hr_in_armed_conflict.pdf (accessed on 25 November 2014). 44 E.g., Security Council, Resolution 1181 of 13 July 1998 (UN Doc. S/RES/1181), para. 12. 45 E.g., Security Council, Resolution 2134 of 28 January 2014 (UN Doc. S/RES/2134). 46 E.g., Security Council, Resolution 2161 of 17 June 2014 (UN Doc. S/RES/2161). 47 E.g., the United Nations Organisation Stabilisation Mission in the Democratic Republic of the Congo (MONUSCO). For the adjusted mandate of MONUSCO, see Security Council, Resolution 2147 of 28 March 2014 (UN Doc. S/RES/2147), in particular para. 4. 48 E.g., International Criminal Tribunal for the Former Yugoslavia (Security Council, Resolution 827 of 25 May 1993 (UN Doc. S/RES/827)); International Criminal Tribunal for Rwanda (Security Council, Resolution 955 of 8 November 1994 (UN Doc. S/RES/955)); International Commission of Inquiry for Darfur (Security Council, Resolution 1564 of 18 September 2004 (UN Doc. S/RES/1564)). 49 For more information, consult the website of the Office of the Special Representative of the Secretary-General for Children and Armed Conflict: Monitoring and Reporting, available at https://childrenandarmedconflict.un.org/our-work/monitoring-andreporting/ (accessed on 12 November 2014). 50 UN Human Rights Council, Resolution 5/1, Institution-building of the United Nations Human Rights Council of 18 June 2007 (UN Doc. A/HRC/RES/5/1), para. 2; UN Human Rights Council, Report of the Working Group on the Universal Periodic Review

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and special sessions, the Council has condemned violations of IHL in particular contexts,51 and has also set up fact-finding mechanisms, many of which have a mandate to look into potential violations of IHL.52 The establishment of such fact-finding missions has become nearly systematic in the event of major armed conflicts and they have to a large extent replaced the ineffective International Humanitarian Fact-Finding Commission discussed below.53 The HRC’s Special Procedures, such as the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on arbitrary detention, also refer regularly to IHL in their work. In particular, they have helped shed light on the relationship between IHL and IHRL obligations in times of armed conflicts.54 Finally, human rights treaty bodies such as the Committee on the Rights of the Child and the Committee against Torture also contribute to the monitoring and implementation of IHL.55 For instance, under the Optional Protocol to the Convention on the Rights of the Child,56 States are required to report on measures they have taken to implement its provisions, including how they have defined “compulsory recruitment and use of children in hostilities” and what constitutes “direct participation in hostilities”.57 A great boost to implementation has come through the development of international criminal law and, even more so, of international criminal justice. Today, IHL is referred to on a daily basis by defence lawyers and prosecutors in international and – unfortunately to a lesser extent – domestic tribunals, and forms the basis for well-reasoned verdicts. This has greatly contributed to the _____________

– Israel of 8 January 2009 (UN Doc. A/HRC/10/76), paras. 24, 34, 35, 39, 55, 57, 59, 100 (not an exhaustive list of relevant paragraphs); UN Human Rights Council, Report of the Sudan Human Rights Council Working Group on the Universal Periodic Review of 11 July 2011 (UN Doc. A/HRC/18/16), Section II, paras. 83.124 and 83.130. 51 E.g., UN Human Rights Council, Resolution S-21/1, Ensuring respect for international law in the Occupied Palestinian Territory, including East Jerusalem of 23 July 2014 (UN Doc. A/HRC/RES/S-21/1), para. 3. 52 See ibid., para. 13; UN Human Rights Council, Resolution 14/1, The grave attacks by Israeli forces against the humanitarian boat convoy of 2 June 2010 (UN Doc. A/HRC/RES/14/1), para. 8; although not a Human Rights Council initiative, see also, OHCHR, Nepal Conflict Report, October 2012. 53 See infra, text accompanying notes 121 and 122. 54 OHCHR, International Legal Protection of Human Rights in Armed Conflict (note 43), 109. 55 Ibid., 107; Sivakumaran (note 5), 467. 56 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict of 25 May 2000, UNTS Vol. 2173, 222. 57 UN Committee on the Rights of the Child, Revised Guidelines Regarding Initial Reports to be submitted by States Parties Under Article 8, Paragraph 1, of the Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict of 19 October 2007 (UN Doc. CRC/C/OPAC/2), paras 18–19.

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clarification – although not always in a realistic manner58 – of substantive rules of IHL. It has also demonstrated – though still with too few examples – that IHL is an enforceable legal regime. Those sceptics who question whether IHL is really law must accept that certain individuals are currently serving prison sentences for having violated its provisions. The regular prosecution of war crimes can be expected to deter future violations. Such criminal processes have a stigmatising effect and individualise guilt and repression, thereby avoiding the vicious circle of collective responsibility in which atrocities by one party lead to counter-atrocities, most often against innocent people, by the opposing party. For as long as responsibility is attributed to States and nations, violations carry the seeds of future wars. This is, then, the civilising and peace-seeking mission of international criminal law and of international criminal justice. This modest overview does not seek to highlight all of IHL’s successes over the past decades, but highlights what, to the authors, are some of the most important positive developments in the field. As we move forward to consider some of the challenges to IHL, it is worth keeping these areas of progress in mind.

C. Substantive Challenges I. Non-challenges Often Seen as Challenges in Public Discussion A number of issues do not, in our view, present substantive challenges as such, but are often viewed as problematic, particularly because they relate to novel means and methods of warfare, or approaches to armed conflict. 1. Drones The use of drones – or unmanned aerial vehicles (UAV) – is one such issue. The authors do not believe that their use constitutes a new challenge to the substantive rules of IHL. Rather, the use of drones simply highlights many general challenges, such as determining the limits of the geographical scope of the battlefield,59 the relationship between IHL and IHRL, and the lack of transparency that often accompanies drone use as much as other forms of hostilities. As long as they are under human control, drones do not actually raise problems _____________ 58

Marco Sassòli/Julia Grignon, Les limites du droit international pénal et de la justice pénale dans la mise en œuvre du droit international humanitaire, in: Abdelwahab Biad/Paul Tavernier (eds.), Le droit international humanitaire face aux défis du XXIe siècle, 2012, 133. 59 See infra, text accompanying notes 89–94.

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that are different from those encountered with other weapon systems. In fact, the use of drones may, in some cases, make it easier to respect the principles of distinction, proportionality and precautions.60 They are capable of observing their targets over long periods, permitting attacks to be undertaken at a point in time that would minimise harm to civilians. In addition, they make certain precautionary measures more feasible, as their operators are often remotely located and hence face no risks, thereby “making possible attacks on alternative targets that might not otherwise be viable”.61 Moreover, operators are not in combat situations and therefore more likely to calmly assess situations before they make decisions. Finally, as drones are equipped with recording devices, they may facilitate investigations, as well as disciplinary and criminal sanctions in case of violations (assuming that the attacking party wants to sanction violations). 2. Terrorism In recent years, many have claimed that terrorism constitutes a fundamental challenge to IHL, or that IHL is out-dated in the face of the threat of terrorism.62 However, terrorism does not constitute a separate category of situations to which IHL applies. IHL only applies to and in armed conflicts and therefore covers terrorist acts only when they are committed as part of an armed conflict. In very extreme situations, terrorist acts alone may trigger an armed conflict, but what counts for such classification is the level of organisation of the group that committed the acts and the intensity of the violence involved, not whether the acts themselves were lawful or terrorist acts. In an armed conflict, IHL prohibits the most common and typical acts of terrorism, even if committed for the most legitimate cause: attacks against civilians,63 indiscriminate attacks,64 acts or threats the main aim of which is to _____________ 60

Christopher Markham/Michael Schmitt, Precision Air Warfare and the Law of Armed Conflict, ILS 89 (2013), 669, 689. 61 Ibid. 62 Claudia Rosett, The Red Cross needs to get real, Wall Street Journal of 23 January 2002, available at http://www.wsj.com/articles/SB1011754375965762560 (accessed on 16 December 2014); Ruth Wedgwood, Personal View: Prisoners of a different war: The Geneva convention applies to conventional soldiers, not to the terrorists being held at Camp X-Ray, Financial Times of 30 January 2002, available at http://www.law.yale. edu/news/3345.htm (accessed on 24 March 2015): “were not negotiated to govern wars against piratical groups that operate internationally”; David Montgomery, Geneva Convention’s Gentility, Treaty Stresses Civil Treatment of Prisoners, Washington Post of 17 February 2002; see also certain comments of the then US Defence Secretary, Donald Rumsfeld, during a press conference on 8 February 2002, excerpts available in Sassòli/Bouvier/Quintin (note 2), 2338. 63 AP I, Art. 51 para. 2; AP II, Art. 13 para. 2.

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spread terror among the civilian population65 and acts of “terrorism” aimed against civilians in the power of the enemy.66 In most cases, such acts are considered war crimes that must be universally prosecuted.67 Beyond this, there is no universally recognised definition of terrorism. The two main controversies preventing States from reaching consensus on this point are related to armed conflicts.68 Some States want to exclude acts committed in struggles for national liberation and against foreign occupation from the definition. This approach conflates ius ad bellum and ius in bello. Others suggest that the definition should not only cover attacks against civilians and indiscriminate acts, but also those against government agents (including soldiers) and property (including military objectives) if their purpose is to compel the government to act or refrain from acting. As this is the essence of warfare, the consequence would be to label as “terrorist” – and subsequently criminalise – acts that are not prohibited in armed conflicts by IHL. This, in turn, would discourage armed groups from complying with IHL, as their conduct would always be labelled as terrorist. II. IHL of Non-international Armed Conflicts is Different and Less Developed than IHL of International Armed Conflicts The application of different rules in IACs and NIACs obliges belligerents, humanitarian actors and victims to classify conflicts before they can invoke IHL rules. This can be theoretically difficult and is always politically delicate.69 In addition, from a humanitarian point of view, the victims of NIACs should be protected by the same rules as the victims of IACs. Both sets of victims face similar problems and therefore need similar protection. In both situations, fighters and civilians are arrested and detained by “the enemy”; civilians are forcibly displaced; attacks are launched against towns and villages; food supplies must cross front lines; and finally, similar means and methods of warfare are used in both types of conflicts. _____________ 64

AP I, Art. 51 para. 4 and para. 5. See AP I, Art. 51 para. 2; AP II, Art. 13 para. 2. 66 See GC IV, Art. 33 para. 1; in non-international armed conflicts AP II, Art. 4 para. 2 extends this protection to all individuals who do not or no longer directly participate in the hostilities. 67 GC IV, Art. 147; AP I, Art. 85 para. 3 lit. a; ICC Statute, Art. 8 para. 2 lit. e (i). 68 For details, see Marco Sassòli, La définition du terrorisme et le droit international humanitaire, RQDI (2007) (hors série), Études en hommage à Katia Boustany, 29, 41– 44. 69 Elizabeth Wilmshurst (ed.), International Law and the Classification of Conflicts, 2012. 65

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As we noted above, despite the reluctance of States to accept the same rules for both situations, the law of NIACs has in the last few decades indeed gotten closer to that of IACs. Despite this convergence, there are two issues for which there still exists a marked difference between IACs and NIACs: The first is status (combatant and prisoner of war (POW) status only exist in IACs, and combatants may not be punished in IACs for the mere fact of having committed acts of hostility), and the second is occupied territory, a concept difficult to extend to NIACs, and for which IHL rules protecting civilians in IAC are much more detailed. The corresponding challenges in NIACs then revolve around identifying which persons may be legitimately targeted, and which obligations armed groups are bound by in the event that they control territory. To address these and other problems arising in NIACs, it is common to use IHL of IACs as a starting point. However, before drawing, qua customary law or otherwise, analogies between the IHL of IACs and NIACs, a serious reality check from the perspective of armed groups should be made, as the IHL of NIACs, unlike that of IACs, is not only addressed to States, but also to armed groups. In addition, it should be borne in mind that if a given situation or issue is not regulated by the IHL of non-international armed conflicts applying as the lex specialis, IHRL applies, although possibly limited by derogations. Therefore, applying rules of IACs to NIACs by analogy necessarily leads to crowding out, in NIACs, the more protective rules of IHRL. III. The Threshold of Application of IHL 1. Over-classification: The “War on Terror” as an Armed Conflict One of the few genuinely new challenges to IHL is the relatively recent tendency of certain States to “over-classify” situations by labelling them as armed conflicts, thus extending the scope of application of IHL to situations for which it was never intended. Following 11 September 2001, the US administration, facing the nebula of international terrorism generally and Al-Qaeda more specifically, declared that it was engaged in a single, worldwide IAC against a non-State actor. Despite its initial claim that the conflict was international,70 the US position was to deny its enemies the full protection of IHL of IACs. At the same time, the administration also held that such persons could not be dealt with under domestic criminal legislation or international human rights law, their treatment being entirely and exclusively governed by some mysterious _____________ 70

George W. Bush, Address to the Joint Session of the 107th Congress, 20 September 2001, in Selected Speeches of President George W. Bush: 2001–2008, 65–73, at 68– 69, available at http://georgewbush-whitehouse.archives.gov/infocus/bushrecord/docu ments/Selected_Speeches_George_W_Bush.pdf (accessed on 16 December 2014).

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rules of customary “laws of war”.71 IHL – the branch of international law that seeks to provide protection during armed conflicts – was thus used to justify the denial of protection under human rights law and domestic legislation to certain persons. Fortunately, US courts have increasingly, but not completely, dismantled this line of argument.72 However, the Obama administration still considers that the US is engaged in one worldwide armed conflict against the Taliban, Al Qaeda and their associates, and that enemies may be targeted and detained in that conflict as the rules of IAC, presumably applied by analogy, would permit.73 Even if the situation is a NIAC, as the Obama administration argued before the UN Human Rights Council,74 this is likely an over-classification, because Al Qaeda does not at present fulfil the organisational requirement to qualify as a party to a NIAC.75 Such “over-classification” is – unfortunately – no longer limited to the US, but seems to be used by certain Latin American militaries to justify more robust methods in combatting social unrest. Many humanitarians who were previously convinced that IHL should be applied as broadly as possible76 have discovered that its “over-application” has at least three negative consequences. First, it deprives persons of the greater degree of protection they would benefit from under the law of peace, in particular considering the use of force and deprivation of freedom. Indeed, under IHL, enemy combatants may be attacked until they surrender, independently of whether they represent an immediate threat to those who attack them and whether it would be possible to arrest them, while the same would be qualified as an extrajudicial execution under human rights law applicable to law enforcement operations. Under IHL, captured enemy combatants may be held as prisoners of war for a period that is undetermined at the moment of their capture, i.e. until the end of active hostilities, without trial and without judicial review, while in peacetime even the worst criminal has a right to be tried as _____________ 71 See, for a discussion and criticism of this position, Marco Sassòli, Terrorism and War, JICJ 4 (2006), 959, especially at 963–64 and 971–74. 72 See, in particular, United States Supreme Court: Rasul v. Bush, Judgment of 28 June 2004, 542 U.S 466; Hamdan v. Rumsfeld, Judgment of 29 June 2006, 548 U.S. 557; Boumediene v. Bush, Judgment of 12 June 2008, 553 U.S. 723. 73 United States District Court for the District of Columbia, In Re: Guantanamo Bay Detainee Litigation, Misc No 08-442 et al., Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay of 13 March 2009. 74 National Report submitted in accordance with paragraph 15 (a) of the annex to Human Rights Council resolution 5/1 by the United States of America on 23 August 2010 (UN Doc. A/HRC/WG.6/9/USA/1), para. 84. 75 See infra, text accompanying notes 82 and 83. 76 Such as those following the arguments of Jean Pictet (ed.), ICRC Commentary on the Geneva Conventions of 12 August 1949, Vol. IV: Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1958, 36.

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rapidly as possible and even the most dangerous terrorist has access to habeas corpus. Second, not astonishingly, when applied to situations for which it was not designed, IHL appears inadequate. The consequence of this, unfortunately, is that it is applied selectively (e.g. through arguments that IHL gives States fighting terrorists the same rights but not the same obligations that they have towards “regular” enemy combatants). Thirdly, this pick-and-choose approach inevitably results in a reduced willingness to respect IHL entirely, unconditionally and independently of conflicting interests, even in those situations where IHL actually and uncontroversially applies! Many consider that it would not have been possible for the cases of torture in Abu Ghraib to occur without the corrupting influence of the selective application of IHL in Guantánamo, although for the former, unlike the latter, the US never denied the full applicability of Geneva Conventions III and IV.77 2. Under-classification: The Frequent Denial that IHL Applies Traditionally, when States were confronted with armed conflicts, their first line of defence against the restraints imposed by IHL was simply to deny it applied. They relied instead on national criminal laws, to which, today, they add international anti-terrorism law. Such was, for decades, the position of the Turkish government, which considered that the situation in Eastern Turkey did not amount to an armed conflict, but simple law enforcement against PKK “terrorists”. India, Pakistan, Russia, and Thailand argue similarly with respect to the conflicts they were or are still facing. 3. The Minimum Threshold for IHL to Apply (IACs) It has long been said that IHL begins to apply as soon as there is resort to armed force, no matter the intensity, between States. This traditional view implies – for IACs – a very low threshold of application of IHL, with the entire corpus of the law being activated by the firing of the first shot pitting two States against each other. Is it realistic for IHL to apply to all inter-State violence, or are there situations – for example the recent border skirmishes between India and Pakistan78 – that do not trigger the immediate application of (all of) IHL? _____________ 77 See, for example, Karen J. Greenberg/Joshua L. Dratel (eds.), The torture papers: the road to Abu Ghraib, 2005. 78 Jora Farm, Feeling of wartime on India-Pakistan border due to recent skirmishes, The Times of India of 28 August 2014, available at http://timesofindia.indiatimes. com/india/Feeling-of-wartime-on-India-Pakistan-border-due-to-recent-skirmishes/article show/41079418.cms (accessed on 2 December 2014).

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In the latter case, what criteria must be used to decide at what point the situation crosses the threshold to become an IAC, and what rules protect people in the interim period? There are good legal reasons – in particular based upon a teleological and contextual interpretation of Common Article 2 of the Conventions – and good policy reasons for maintaining a low threshold for the applicability of IHL of IACs.79 However, a Committee of the International Law Association has recently suggested that there exists a single definition of armed conflict applicable to both IACs and NIACs, and that State practice demonstrates that in both cases, a certain level of intensity is required for IHL to apply.80 4. The Minimum Threshold for IHL to Apply (NIACs) IHL does not apply in the case of internal tensions and disturbances, such as riots.81 According to the ICTY in the Tadić case, two basic cumulative criteria need to be met in order to be able to distinguish a situation of NIAC from these other situations that do not trigger the application of IHL.82 Firstly, the violence involved must reach a certain level of intensity, and, secondly, the non-State party/parties must exhibit a certain degree of organisation. While the ICTY has provided indicators that are helpful in making determinations based on the twin criteria of intensity and organisation,83 the criteria remain rather vague, facilitating the possibility for States to argue that the situation in which they are involved does not amount to an armed conflict. IV. Internationalised and Transnational Armed Conflicts Some have suggested that the category of NIAC may be inadequate to cover the variety of conflicts today that do not occur between State actors.84 Others have offered typologies of NIACs, to break the larger category down into con_____________ 79

Marco Roscini, Cyber operations and the use of force in international law, 2014,

134. 80

International Law Association, Use of Force Committee, Final Report on the Meaning of Armed Conflict in International Law, The Hague Conference, 2010. 81 AP II, Art. 1 para. 2. 82 ICTY, The Prosecutor v. Duško Tadić aka “Dule”, Trial Chamber Judgment of 7 May 1997 (Case No. IT-94-1-T), para. 562. 83 ICTY, The Prosecutor v. Ramush Haradinaj and others, Trial Chamber Judgment of 3 April 2008 (Case No. IT-04-84-T). For indicators on intensity see para. 49. For indicators on organisation see para. 60. 84 See, for example, Claus Kress, Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts, JCSL 15 (2010), 245.

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flicts of similar types/characteristics.85 Categories into which NIACs may be divided include those that involve foreign intervention either by a third State(s) or multinational forces, and those that spill over the borders of the territorial State (with further sub-categories being possible in each of these cases). In the case of foreign intervention by a third State or multinational forces into an existing NIAC, the widely accepted approach to determine the applicable IHL is to “split” the conflict up and consider dynamics between pairs of belligerents. Relations between State belligerents would be governed by IHL of IACs while those between a State and non-State belligerent and/or between two non-State belligerents would be governed by IHL of NIACs. Academically, this may present a satisfactory solution, but it is incredibly difficult to translate into battlefield practice. For instance, would IHL of IAC or NIAC govern persons captured by foreign troops and then handed over to an armed group? What law would apply to the reverse situation? Current interpretations may lead to the conclusion that transfers are possible in the latter case but not the former. The result of splitting the conflict up in this way would be that persons facing the same situation – deprivation of liberty – would have to be treated according to a vastly different set of rules depending on whether they are held by foreign forces or an allied armed group,86 implying differing levels of protection for individuals caught up in the same conflict. At present, however, there is no alternative way to deal with conflicts that have been “internationalised” through the presence of foreign State or multinational elements. Common Article 3 and AP II make specific reference to the territory of a single State, and it is possible to restrictively interpret these provisions such that the application of IHL is limited to hostilities occurring on a State’s territory.87 Conflicts that cross borders, and conflicts that involve armed non-State actors present in more than one territory (or “transnational armed conflicts”,88 as some have termed them), are accompanied by a host of substantive challenges, including the question of whether IHL of IACs applies if a State uses force on the territory of a non-consenting State against an armed group that has sought refuge in that territory. These challenges raised by NIACs with an internationalised or transnational dimension have led some scholars to argue that the law of NIACs as a whole is _____________ 85

Sylvain Vité, Typology of armed conflicts in international humanitarian law: legal concepts and actual situations, IRRC 91 (2009), 69, 83–93. 86 Ibid., 86. 87 See, for an explanation (but not necessarily endorsement) of this interpretation, Michael Schmitt, Charting the Legal Geography of Non-International Armed Conflict, ILS 90 (2014), 1, 9. 88 Kress (note 84), 78.

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not adequate to regulate the variety of present day conflicts.89 We recognise that these issues represent serious challenges, to which workable solutions must be found, not only for legal theoreticians, but most importantly, for practitioners on the battlefield. However, while it is true that IHL of NIACs was not made in view of armed conflicts occurring outside the territory of the State involved, and therefore is silent and implicitly refers to the domestic legislation of the territorial State for many issues, for the time being IHL of NIACs must apply to these situations, because the alternative – that IHL does not apply to them at all – would be unimaginable. V. The Geographical Scope of Application of IHL IHL of IACs is considered to apply in any location where opposing forces exercise belligerent activity, be it on their territories or not (keeping in mind, of course, that the use of force on the territory of a non-consenting third State would be in violation of the ius ad bellum). In NIACs, the issue is not so clearcut. According to certain interpretations of Common Article 3 and AP II, the application of IHL is limited to the territory of the State embroiled in noninternational armed conflict.90 Under this approach, IHL does not apply to acts taking place beyond the State’s borders, giving way instead to IHRL and criminal law enforcement frameworks. However, the extraterritorial application of IHRL and of domestic criminal law is often controversial. The main reason for which many are reluctant to admit that IHL applies world-wide once a NIAC exists is that IHL even of NIACs is today often claimed as constituting a sufficient legal basis for targeting or detaining enemies.91 However, the view that IHL of NIACs applies only on the territory of the State involved presents several problems. Firstly, even if one followed this approach, it will be admitted that, in line with the ICTY’s ambiguous holding in the Tadić case,92 it is not entirely settled whether IHL applies in the same way _____________ 89 Ibid.; Roy. S. Schondorf, Extra-State Armed Conflicts: Is there a Need for a New Legal Regime?, JILP 37 (2004), 61; Ruth Wedgwood, The Supreme Court and the Guantánamo Controversy, in: Peter Berkowitz (ed.), Terrorism, the Laws of War, and the Constitution: Debating the Enemy Combatant Cases, 2005, 179. 90 Schmitt (note 87), 9. 91 See, on detention, Jelena Pejic, The protective scope of Common Article 3: more than meets the eye, IRRC 93 (2011), 189, 207; on the lethal use of force, ICRC, The use of force in armed conflicts: Expert Meeting, Report prepared by Gloria Gaggioli, 2013, 13–23; and Inter-American Commission on Human Rights, Abella v. Argentina, Report No. 55/97, Case No. 11.137, OEA/ Ser/ L/V/II.98, Doc. 38, 6 December 1997, para. 178. 92 ICTY, The Prosecutor v. Duško Tadić aka “Dule” (note 9), para. 70, which reads in part: “international humanitarian law continues to apply in the whole territory of

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throughout the territory of the State, or whether there should be a differentiation based on where hostilities (are more likely to) occur. Is, for example, IHL applicable throughout Colombia? Only in areas where hostilities occur? Would it be lawful to target a member of an armed group visiting relatives in Bogota – relatively free from conflict – or should the government seek to arrest and detain the individual under domestic criminal law and IHRL in such a situation? When hostilities spill across borders, the conditions for the applicability of IHL are even more difficult to determine. Must the intensity criterion also be satisfied in the neighbouring State for IHL to be held to apply there? Or is it simply enough that an individual, or – a different criterion – their conduct be linked to a pre-existing armed conflict in another geographical location?93 This issue was at the heart of one of the controversies in the “war on terror”. Some considered that if an individual/event was linked to a pre-existing armed conflict, this nexus was sufficient to justify the application of IHL with respect to that person/event. The US, a proponent of this approach, took things much further (at least theoretically speaking), alleging that there existed a world-wide (non-)international armed conflict against “terrorism” and that IHL was applicable everywhere in the world where the US was taking action against terrorists. The view did not prove to be legally tenable, and the term “war on terror” has since been abandoned by the US. However, the US and other States continue to extend the scope of the battlefield, beyond the territories of States involved in non-international armed conflicts, in operations against terrorists, particularly through the use of drones, and it is here – rather than in the nature of the weapon system itself – that the real challenge associated with drone use lies.94 A possible solution to the controversy, if geography were to be abandoned as the decisive criterion for application of IHL, would be to apply IHL world-wide to every act linked to a NIAC, but to consider that IHRL prevails on most issues and in most places as the lex specialis. This presupposes, however, that IHRL is accepted as applying extraterritorially, even in the absence of territorial control. VI. The Distinction Between Civilians and Combatants The principle of distinction is at the heart of IHL, and yet it is threatened in many armed conflicts. The threat is perhaps most acute in NIACs, which are likely to be more asymmetrical than IACs. It has been even argued that the _____________

the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there”. 93 Some of these questions are treated in Noam Lubell/Nathan Dereijko, A Global Battlefield: Drones and the Geographical Scope of Armed Conflict, JICJ 11 (2013), 65. 94 See supra, text accompanying notes 59–61.

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principle of distinction is not realistic in NIACs because it is inherent in such conflicts that particularly non-State armed groups rely upon ordinary civilians for certain tasks.95 Can fighters on the technologically weaker side in such conflicts realistically be expected to distinguish themselves from civilians, when doing so would almost certainly mean defeat? The question is, admittedly, not very palatable, but unfortunately, it reflects very real concerns, and a very pressing threat to the aims of IHL to protect those “outside” the fighting. The increasing civilianisation of armed forces96 is also contributing to the erosion of the principle of distinction. Several functions that contribute to military capacity and even to battlefield action – such as the provision of security services, intelligence gathering and operation of drones – are increasingly being performed by persons outside of the armed forces. VII. The Admissibility of Targeting and Detaining Enemy Fighters in NIACs IHL treaty law does not provide explicit authorisation to target and/or detain enemy fighters in NIACs. However, targeting and detention are, unfortunately, part of warfare, and are practiced in the context of NIACs independently of whether or not IHL contains explicit authorisation for these occurrences. In order to regulate the admissibility of targeting and detention in NIACs, two frameworks may serve as models. In the first instance, we may choose to apply IHL of IACs to NIACs by analogy. In this case, fighters may be attacked at any time as long as they are not hors de combat (like combatants in IACs); and detained without any individual decision until the end of active hostilities (like prisoners of war in IACs, but without the attendant privileges). Alternatively, as the matter is not regulated by treaty rules of IHL of NIACs as the lex specialis, we may choose to apply IHRL as the lex generalis, in which case fighters may only be attacked if arrest is impossible, and only after a warning has been issued and the possibility for surrender made available (where feasible). They may only be detained in view of a trial or, in case of derogation, with at least the right to have the legality of detention reviewed by an impartial tribunal. To determine which of the two approaches is more appropriate, one of the authors of this contribution has suggested that we must determine the lex spe_____________ 95

Sivakumaran (note 5), 357–358. Giulio Bartolini, The “Civilianization” of Contemporary Armed Conflicts, in: Hélène Ruiz Fabri/Rüdiger Wolfrum/Jana Gogolin (eds.), Select Proceedings of the European Society of International Law, Vol. 2, 2008, 570. 96

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cialis for every given situation and specific set of circumstances.97 As already mentioned, such exercises are academically enriching, but not entirely useful for practitioners, who require clear guidelines on conduct, particularly when the issues at stake could quite literally make the difference between life and death. In addition, the results of such determinations must be realistic for those who are supposed to apply them, as unrealistic rules do not protect anyone. This area represents one of the biggest gaps in IHL of NIACs, and it is one where the development of new specific rules and/or guidelines has been suggested. As mentioned above, the ICRC is currently working in discussion with States on this issue.98 VIII. Autonomous Weapon Systems Autonomous weapon systems may be defined as “weapon systems that, once activated, can select and engage targets without further human intervention”.99 Most of the challenges presented by such systems are linked to the notion of “autonomy” that they might possess. Currently, no country is fielding fully autonomous weapon systems in battle. Some systems, such as drones, do demonstrate limited autonomy. As such, one of the problems of the debate is that it remains hypothetical. We assume it may one day be technologically possible to develop robots that can operate fully autonomously, that possess all the necessary capacities to perceive the information required to comply with IHL (a formidable technological challenge – the system in question must be at least as good as a human being in perceiving changes to both its physical environment and the larger battle context, as we will discuss below), and to subsequently actually apply IHL to that information. If and when this does become possible, the following issues are expected to present legal challenges. The first is linked to predictability. Autonomous weapons must, by nature, possess a form of artificial intelligence, and possibly even be capable of “learning”. As such, it is difficult to say with certainty whether it will be possible to ensure that they cannot act in a way they were not intended by their human creators to act. It is the latter that are the addresses of IHL, and as such it must _____________ 97

Marco Sassòli, The Role of Human Rights and International Humanitarian Law in New Types of Armed Conflicts, in: Orna Ben-Naftali (ed.), International Human Rights and Humanitarian Law, 2011, 34, 78–93. 98 See supra, text accompanying notes 38–40. 99 UN Human Rights Council (rapp. Christof Heyns), Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions of 9 April 2013 (UN Doc. A/HRC/23/47), emphasis added; the definition is contained in the Summary on the cover page.

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be always possible for humans to predict how the weapon will operate, otherwise humans cannot remain responsible for their “conduct”. The second issue concerns IHL’s temporal scope of application, as it will become necessary to determine the extent to which IHL is applicable to conduct in peacetime (such as the development and programming of autonomous weapons) which produces results during armed conflict and constitutes the last human intervention in an attack (because individuals actually using the systems must trust that they have been programmed correctly). Thirdly, there are concerns related to the three principles governing the conduct of hostilities: distinction, proportionality and precautions. A preliminary legal issue to be addressed before we discuss the principles themselves involves the question of whether targeting decisions involve subjective judgements. In our opinion, IHL on targeting requires an objective assessment of material facts rather than subjective value judgements – which machines are unable to make. Some argue that it is precisely this “assessment” that involves subjective determinations.100 We are of the opinion that this is not a normative proposition, but simply a correct description of the (unfortunate) reality on the ground. As targeting decisions are to be based on objective facts, the three principles mentioned above require that those conducting hostilities are able to sense, capture and synthesise a range of information in complex, dynamic environments. Assuming the technological challenge of building machines capable of gathering the relevant information is overcome, IHL further requires that they are capable of performing, in real-time, the no less formidable task of completing case-by-case determinations of whether lethal force can be deployed in compliance with IHL. In many cases, these determinations involve balancing between military necessity and the interests of humanity, and it is difficult (to say the least) to imagine reducing that balance to a matter of algorithms (although this would certainly help clarify the proportionality principle!). For example, proportionality assessments of an attack against a legitimate target must include an evaluation of risks to civilians as well as an evaluation of the “concrete and direct military advantage anticipated”101 as a result of the attack. Both elements constantly change depending on movements of troops and civilians, the plans of the commander and the development of military operations on both sides. If a machine were to autonomously apply the proportionality princi_____________ 100

Human Rights Watch/International Human Rights Clinic: Human Rights Program at Harvard Law School, Losing Humanity, the Case Against Killer Robots, 2012, 4; Peter Asaro, On Banning Autonomous Weapon Systems: Human Rights, Automation and the Dehumanization of Lethal Decision-Making, IRRC 94 (2012), 687, 696–700; Noel E. Sharkey, The evitability of autonomous robot warfare, IRRC 94 (2012), 787, 789–790; and (more nuanced), Heyns (note 99), paras. 70–74. 101 AP I, Art. 51 para. 5 lit. b.

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ple, it would need, first, to be suitably programmed, and then, to be constantly updated as to military operations and plans. The same difficulty is present regarding the principle of distinction. An object is a legitimate military objective if it makes an “effective contribution to military action” and the attack offers a “definite military advantage” “in the circumstances ruling at the time”.102 An autonomous weapon would need not only to be able to capture the relevant information, but also to be “aware” of changing military plans and operational developments in order to apply the principle. IHL requires attackers to take feasible precautions to avoid or minimise incidental harm to civilians. As the rules of IHL are addressed to human beings, we contend that the feasibility assessment must be based upon what would be feasible for a human being executing the same attack and not upon the capabilities of the machine. This may require a consolidated assessment of whether an autonomous weapon is as able as the average soldier to respect IHL. However, such assessments must be made for every attack. Furthermore, the obligation to take certain precautions, such as those to verify the nature of a target or to choose means and methods that avoid/minimise incidental effects on civilians, are addressed only to “those who plan or decide upon an attack”.103 It is correct that this means that only human beings may “plan or decide” but does not exclude decisions made by programming machines to execute an attack. Yet other obligations to take precautions are incumbent upon those actually carrying out attacks, such as the obligation to interrupt an attack when it becomes apparent that it is unlawful.104 This again implies that autonomous weapons must possess the ability to act based on real-time processing of battlefield information that they (must be able to) sense and gather. The final challenge relates to the concept of direct participation in hostilities. Generally, exactly what conduct constitutes direct participation in hostilities continues to be debated. In the specific case of autonomous weapons, things are even more unclear. Who, in the chain of producing, programming and deploying these weapon systems, directly participates in hostilities? According to the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities, one of the constitutive elements of direct participation is the direct causation of harm, and the Guidance suggests that this “should be understood as meaning that the harm in question must be brought about in one causal step”.105 Obviously, only human steps can count (because the concept of direct partici_____________ 102

AP I, Art. 52 para. 2. AP I, Art. 57 para. 2 lit. a. 104 AP I, Art. 57 para. 2 lit. b. 105 Melzer (note 32), 53. 103

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pation refers to who and not what may be targeted). Therefore, if autonomous weapons are used, the last causal human step leading to the harm caused will constitute direct participation in hostilities. This step may be geographically removed from its effects. The Interpretive Guidance also holds that the standard of direct causation includes conduct that causes harm only in conjunction with other acts.106 It is possible to interpret this expansively such that, in case autonomous weapons are used, the last human being to determine the weapon’s targets in an undetermined number of future operations directly participates in hostilities. However, in our view, like the drafters of tactical military manuals, programmers do not directly participate in hostilities, although the respect of IHL depends on them. States and other humanitarian actors must make sure that such individuals know and comply with IHL. Along with the possible challenges that fully autonomous weapons – if ever developed – may present to IHL are potential advantages. Using autonomous weapons may allow attacks to be executed in such a way as to guarantee better respect for the principles of distinction, proportionality and precautions, as they are able to perform better than humans in certain situations, process information more rapidly, and do not face the same emotional and physical stressors that human fighters are exposed to. Robots can take additional precautionary measures that are impossible for humans (for example, measures that involve serious risks) and can delay the use of force until it is established with greater certainty that the target and the attack are legitimate. The development of autonomous weapons may even lead, because of programming needs, to a clarification of many rules that have so far remained vague. Only human beings can deliberately chose not to comply with the rules they were instructed to follow, and only human beings – not weapon systems – violate IHL. IX. Cyber Warfare One of the few areas in which existing IHL rules have not caught up with technological progress is cyber warfare. Fortunately, this has not yet produced significant humanitarian consequences. Although cyber security concerns encompass a range of phenomena,107 the ICRC uses the term cyber warfare to refer to “means and methods of warfare that rely on information technology and are used in the context of an armed conflict”.108 This statement helpfully _____________ 106

Ibid., 54. Cordula Droege, Get off my cloud: cyber warfare, international humanitarian law, and the protection of civilians, IRRC 94 (2012), 533, particularly 534–538. 108 ICRC, Statement on weapons delivered during the General debate on all disarmament and international security agenda items, UN General Assembly, 67th session, First Committee, 16 October 2012, available at https://www.icrc.org/eng/resources/do 107

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clarifies the fact that IHL is only applicable to cyber operations that are part of an armed conflict. However, in reality, it is not very easy to determine when an operation can be considered to have taken place “in the context of” an armed conflict. It is even more difficult to determine when cyber operations alone trigger the applicability of IHL. Can they constitute hostilities to which IHL of IACs applies? Can they ever reach the minimum threshold of violence necessary to make IHL of NIACs applicable? A logically distinct, but related question, which raises similar difficulties, is determining when a cyber operation amounts to an attack to which the detailed IHL rules on targeting apply. What kind of effect must a cyber operation produce in order for it to constitute hostilities or an attack? What is most often discussed in ius in bello is which cyber operations linked to armed conflicts would constitute “attacks” within the meaning of IHL. Legal experts drafting the Tallinn Manual on the International Law Applicable to Cyber Warfare109 have defined a cyber attack as “a cyber operation, whether offensive or defensive, that is reasonably expected to cause injury or death to persons or damage or destruction to objects”.110 According to these experts, “it is the use of violence against a target that distinguishes attacks from other military operations”111 and “[n]on-violent operations, such as psychological cyber operations or cyber espionage, do not qualify as attacks”.112 These experts steer away from problematic and over-inclusive definitions of “attack”, which include any operation that interferes with information systems. The intended effects of the cyber operation, then, are determinative of whether or not it can be qualified as an attack within the meaning of IHL, and as such this is a reasonable approach. However, the effects doctrine, requiring death or injury to persons, or damage or destruction of objects, is not without problems, and it may indeed prove to be under-inclusive. A cyber operation that resulted in the obliteration of data necessary to run Switzerland’s financial markets, for example, would not qualify as an “attack” despite the crippling and clearly deleterious effects that would follow for the entire country. A compromise solution would therefore be to consider cyber operations without violent effects as hostilities and attacks if they have a considerable effect upon the targeted _____________

cuments/statement/2012/united-nations-weapons-statement-2012-10-16.htm (accessed on 8 December 2014). 109 See the website of the Tallinn Manual Process, available at https://ccdcoe.org/ tallinn-manual.html (accessed on 8 December 2014). 110 Tallinn Manual on the International Law Applicable to Cyber Warfare, 2009, 108, Rule 30. 111 Ibid. 112 Ibid.

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party.113 This is however a very vague criterion and it is difficult to reconcile with the text of the existing treaty law. Cyber attacks also bring up issues related to the principle of distinction. The basic IHL rule on determining whether an object is a military objective is contained in Art. 52 of AP I, which describes military objectives as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage” (emphasis added). Applying this to cyber attacks, we must first ask ourselves which parts of an information system can be considered possible targets of an attack: the physical system itself or the data contained within the system? Opinion is divided on whether data itself can be considered an “object” in the ordinary meaning of the term, as it is intangible.114 If data is not an “object” then by definition, it cannot be a military objective. All the aforementioned and many other discussions on cyber warfare show that existing IHL is simply not adapted to intangible operations and objectives. Pending new specific treaty law, existing rules would however have to be applied after appropriate interpretation and the Tallinn Manual constitutes invaluable help, providing clarification on numerous issues and at least outlining the debate on others.

D. The Main Challenge: Ensuring Respect of Existing Rules There is near unanimity among States and scholars that the main challenge to IHL is ensuring its effective implementation on the ground during armed conflicts. However, States are very reluctant to accept new enforcement mechanisms that would operate during armed conflicts – especially if these would equally cover NIACs, as they should, given that the latter constitute the vast majority of today’s armed conflicts. That enforcement is the Achilles’ heel of IHL should not astonish. The situations to which IHL applies manifest themselves as chaotic exceptions to the normal course of relations between actors in the international community. As such, it would be absurd if IHL were perfectly respected in these situations, which are characterised by hostile conduct that is contrary to the basic norms of international law (in IACs) or of domestic law (in NIACs). Furthermore, IHL is _____________ 113

See, for a similar approach applying the same threshold for the two logically distinct questions when an armed conflict is triggered by a cyber operation and when such an operation constitutes an attack under IHL, Michael N. Schmitt, The Law of Cyber Warfare: Quo Vadis?, SLPR 25 (2014), 269, 290, 291, 295 and 296. 114 Tallinn Manual (note 110), 126–127.

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a part of international law. Like most other branches of international law, it is marked by the absence of third party adjudication and enforcement. It must be self-applied by its addressees – States, armed groups and individuals. However, in times of armed conflict, the very survival of those addressees is at stake. The usual mix of negotiations and mutual bartering of various promises and threats that leads to most rules of international law being respected most of the time does not work to promote compliance between belligerents seeking to defeat each other. More importantly, reciprocity, an important sociological factor and legal principle, does not work positively to promote mutual respect for the law in asymmetric conflicts.115 In any case, from a historical perspective reciprocity in the form of reprisals often led, in practice, to a “competition in barbarism”116 rather than inducing the enemy to cease violations. Reprisals are therefore largely outlawed in contemporary IHL. To fill the gaps and promote better respect of IHL, some have suggested improving current implementation mechanisms, as well as put forward ideas for new mechanisms. In 2003, the ICRC organised several regional expert meetings on this question.117 Unfortunately, such propositions will only be effective if States are willing to accept efficient third-party enforcement in the international society. If this were the case, we would not need new implementation mechanisms, as the existing ones would function sufficiently.118 I. IHL-based Implementation Mechanisms Have Not Developed 1. Protecting Powers Protecting powers are a mechanism specific to IHL,119 but analogous to one present in the law of diplomatic relations. Under this system, a third State may act as an intermediary representing one of the belligerents vis-à-vis the enemy, to cooperate in the implementation of IHL and to monitor compliance. However, this mechanism has not been employed since the Falklands-Malvinas conflict in 1982. It is considered a difficult, if not impossible, system to imple_____________ 115

See infra, text accompanying notes 137–138. Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, Vol. II, The Law of Armed Conflict, 1968, 99. 117 See, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Report prepared by the International Committee of the Red Cross for the 28th International Conference of the Red Cross and the Red Crescent, Geneva, 2003, Annex III. 118 Ibid., 47. 119 GC I, Arts. 8, 10; GC II, Arts. 8, 10; GC III, Arts. 8, 10; GC IV, Arts. 9, 11; AP I, Art. 5. 116

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ment. First, the three States concerned must agree on the principle of employing the system and on designating one State as the protecting power, which is understandably difficult when two of them are at war. Second, the system of protecting powers only applies to IACs and as most contemporary armed conflicts are non-international, the system becomes increasingly obsolete. Third, neutrality plays a smaller role in contemporary international society, and additionally, neutral States are hesitant to act as protecting powers in an environment where most IACs are perceived as international law enforcement operations against international “outlaws”.120 2. The International Humanitarian Fact-Finding Commission Although lawyers are fascinated by legal debates, it remains that most controversies on whether IHL has/has not been violated in contemporary armed conflicts are not about the law, but about the facts. As such, the impartial, independent, reliable establishment of facts by a neutral, legitimate body could greatly contribute to ensuring better respect of IHL. It would also serve to prevent or suppress rumours, perceptions or propaganda that IHL is always violated (which lead to further violations).121 Such a fact-finding body would also provide third States with reliable information on the situation, allowing them to make appropriate decisions in light of their obligation to ensure respect of IHL.122 The Geneva Conventions encourage States to agree to enquiry mechanisms in the event of alleged violations, but States have never resorted to the use of such mechanisms. Article 90 of Protocol I established the International Humanitarian Fact-Finding Commission (IHFFC), which may enquire, in international armed conflicts, into allegations of serious violations between States having accepted – ex ante or ad hoc – its jurisdiction. Unfortunately, despite having members, a secretariat, a budget, and 72 States that have accepted its jurisdiction ex ante, it has never been used. Why? First, it must be triggered through the consent of both belligerents, which is incredibly difficult to secure during an armed conflict. Today however, there arguably exists an IAC between two States that have accepted the jurisdiction of the IHFFC ex ante: Russia and Ukraine. Nevertheless, not even Ukraine has seized the IHFFC to enquire into the numerous IHL violations by insurgents it considers attributable to Russia. Second, it has no mandate in NIACs. The IHFFC has indicated its willingness to work in NIACs, but again, this would only be possible if the consent of both parties was obtained. Third, as it has never been used, it cannot _____________ 120

See infra, text accompanying notes 133–136. See infra, para. following note 161. 122 GC I, Art. 1; GC II, Art. 1; GC III, Art. 1; GC IV, Art. 1; AP I, Art. 1. 121

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demonstrate its expertise and impartiality, and tends to be considered an obsolete mechanism by many. Fourth, unlike ad hoc enquiries set up by the UN, the IHFFC is not linked to any international body that could follow-up on its findings and recommendations. Fifth, States, in our view, simply dislike automatisms, preferring ad hoc mechanisms over which they have a greater degree of control. 3. The ICRC The ICRC’s greatest assets are its independence, its focus on humanitarian action, its impartiality and its principled approach. It continues to be the main, and unfortunately in some cases (such as those of forgotten conflicts), the only actor monitoring the respect of IHL on the ground. However, the ICRC is not without its own limitations. First, its priority remains its humanitarian work and securing access to persons and areas affected by conflict. This sometimes means that when faced with difficult choices between promoting compliance and gaining access, it will prefer the pragmatic approach that guarantees access to victims. Take, for instance, the manner in which the ICRC chooses to share its classification determinations. Even if it had come to the conclusion that the situation in Eastern Ukraine is an IAC because the insurgents are under Russian control, and that Crimea is occupied territory, it would not choose to make its conclusions public, nor even to share them with the Russian Federation, as doing so would jeopardise its chances of remaining present and assisting war victims in that region and in other conflict areas in which Russia has influence. This “softlysoftly” approach prioritising access, while an understandable policy choice, raises several difficulties. Beyond frustrating legal scholars, it also means that no dialogue can be initiated on the protective rules on occupation contained in the Fourth Geneva Convention. In any case, although the ICRC does engage authorities in bilateral and confidential discussions on legal issues, the fact that this occurs “behind the scenes” increases public perception that the law does not matter, and also means that other States have no solid basis for implementing their obligation to ensure respect for IHL. Furthermore, even this approach does not always guarantee the ICRC secure access to the victims. Sometimes security concerns or States’ obsession with sovereignty prevents the ICRC from being present in conflict areas. The ICRC rarely speaks out even when it is denied access, as it nevertheless maintains hope that it may be granted access at a later stage. In some cases, the ICRC does not even have meaningful access to the parties themselves – for instance, when the government does not permit engagement with armed groups classified as “terrorist”, or when the government or armed group itself mistrusts the ICRC.

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Second, despite being independent, the ICRC exists on a planet dominated by States. Its leverage on powerful States like India (Kashmir) and Russia (Chechnya) is so limited that it may not even try to pressure them publicly on key issues. Although from a legal and humanitarian point of view it should probably have done otherwise, it is therefore understandable that the ICRC accepted the (rather counter-factual and counter-intuitive) determination by a unanimous UN Security Council that the occupation of Iraq came to an end on 30 June 2004.123 Third, repeated attacks against ICRC premises and personnel have obliged the organisation to balance its mission to protect victims of armed conflicts against the risks associated with fulfilling this mission. In an increasing number of situations (Eastern Congo, Iraq, Syria, Chechnya, the Tribal areas in Pakistan), the ICRC is no longer able to be fully present in the midst of the fighting and therefore cannot directly monitor the respect of IHL where it is most likely to be violated. Fourth, humanitarian action is increasingly seen by the international community or by those who claim to represent it (e.g. until 2014, NATO in Afghanistan) as an aspect of building peace and a means to undermine popular support for insurgents (e.g. the Taliban). It is obvious that such insurgents do not appreciate these peace building efforts. This fact makes it increasingly difficult to carry out neutral and impartial humanitarian action that is not linked to any political goals and accepted by all parties. II. The Need for an Inter-State Mechanism on Compliance We currently lack a forum to discuss challenges States face in implementing IHL, to assess when the obligation to ensure respect under common Article 1 is triggered, and to coordinate a response in cases of insufficient respect. Contrary to many treaties in other branches of international law, the Geneva Conventions do not foresee a State conference or treaty body to monitor compliance. Switzerland and the ICRC have launched a joint initiative to fill this gap, based upon a mandate received from the 31st International Conference of the Red Cross and the Red Crescent.124 Consultations are under way on a number of _____________ 123

Security Council, Resolution 1546 of 8 June 2004 (UN Doc. S/RES/1546); Knut Doermann/Laurent Colassis, International Humanitarian Law in the Iraq Conflict, GYIL 47 (2004), 293, 307–312. 124 Swiss Federal Department of Foreign Affairs, Joint Initiative by Switzerland and the ICRC on strengthening compliance with international humanitarian law, available at https://www.eda.admin.ch/eda/en/home/aussenpolitik/voelkerrecht/humanitaeres_voelke rrecht/ikrk-initiative.html (accessed on 16 December 2014); ICRC, Strengthening compliance with international humanitarian law (IHL): The work of the ICRC and the Swiss government, available at https://www.icrc.org/eng/what-we-do/other-activities/develop ment-ihl/strengthening-legal-protection-compliance.htm (accessed on 16 December 2014).

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potential methods by which to strengthen compliance, such as the introduction of periodic debates on compliance questions, periodic reports on national implementation, and fact-finding processes in case of alleged violations. It would, in our view, be desirable that a future inter-State IHL compliance mechanism include an independent body with no operational humanitarian role in the field and that it possess the capacity to trigger its own operation and provide States with the necessary information to assess, in periodic meetings, whether IHL has been violated. Although it will be challenging in practice, such a mechanism must also be authorised to deal with armed groups if it is to contribute to greater respect for IHL in NIACs. In addition, the relationship between any future IHL mechanism and existing IHRL mechanisms must be clarified. Unfortunately, reports on the current discussions of States in the context of the Swiss-ICRC initiative suggest that a majority of States do not support the idea of an independent treaty body, nor the involvement of armed groups in a compliance mechanism, nor even discussion of violations in specific conflicts by a periodic meeting of States.125 At least the idea of holding such periodic meetings currently meets with acceptance, and such meetings could hopefully constitute a first step towards achieving the other goals just mentioned. III. Limitations of the United Nations Although, the UN Security Council can be considered an embryonic centralised enforcement system, it is limited in several ways. First, it is dominated by the veto-wielding P-5. Their decisions (like those of most other members) are based on political interests rather than on objective criteria relating to noncompliance. The resulting impression is that enforcement by the UN Security Council involves double standards, and this leads to resentment by civilians and belligerents involved in armed conflicts. It may also lead to choices – or offers leaders convenient alibis – to disregard Council decisions, especially if no action was taken in prior similar situations that elicited the sympathy of public opinion or elites in a given country. Second, the main concern of the UN Security Council must be with ius ad bellum, i.e. maintaining or restoring international peace and security.126 As a consequence, its main priority is not to ensure the highest degree of respect for IHL during armed conflicts, and it is less capable of enforcing respect by both parties as, at least in IACs, one necessarily violated the ius ad bellum and deserves harsher treatment by the Council, irrespective of its respect for IHL. Third, it is extremely difficult for the UN to apply the principle of equality of belligerents127 to NIACs involving govern_____________ 125

See ICRC, ibid. Charter of the United Nations of 26 June 1945, Art. 24. 127 See infra, text accompanying notes 132–133. 126

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ments and armed groups. The former represent constituent member States and the latter are inevitably perceived as criminals, if not as “terrorists”, even by the UN. This stance is unhelpful from the compliance viewpoint, as all weaponsbearers should be engaged to promote full respect of IHL and sanctioned if they do not. IV. Limits of International Criminal Justice Bearing in mind the important progress highlighted earlier,128 it must nevertheless be noted that until recently, international criminal tribunals existed for only two of the many situations requiring them – namely the crises in the former Yugoslavia and Rwanda. Although we now have a standing International Criminal Court, it will only be able to function with maximum effectiveness once its Statute has been universally accepted, and absent political interference, including by the permanent members of the UN Security Council, or self-censorship by the Prosecutor. The very credibility of international justice is dependent on this, as justice that is not the same for everyone is not true justice. Another significant material limitation to the work of the ICC results from its Prosecutor’s understandable policy to concentrate upon the most large-scale and most representative crimes.129 One can only hope that prospective perpetrators envisaging attacking “only” hundreds of civilians or torturing “only” tens of prisoners do not study the ICC’s website. Besides these material limitations, it is well recognised (at least at the domestic level) that criminalisation and punishment cannot be the only response to socially deviant behaviour. The increasing focus on criminal prosecution of violations may have inadvertently weakened aspects of implementation. For example, the threat of criminal prosecution may have made States more reluctant to accept existing fact-finding mechanisms such as the IHFFC. States have even become wary of the ICRC, which has stressed that it will not share information for the purpose of the prosecution of perpetrators and has even obtained corresponding immunities from international criminal tribunals.130 This fear has also meant that certain proposals to develop new mechanisms to enhance re_____________ 128

See supra, text accompanying note 58. International Criminal Court, The Office of the Prosecutor, Letter to Senders re Iraq of 9 February 2006, available at http://www.icc-cpi.int/NR/rdonlyres/04D143C819FB-466C-AB77-4CDB2FDEBEF7/143682/OTP_letter_to_senders_re_Iraq_9_Februa ry_2006.pdf (accessed on 16 December 2014). 130 See ICTY, The Prosecutor v. Simić and others, Decision on the Prosecution Motion under Rule 73 of 27 July 1999 (Case No. IT-95-9-T); ICC, Rules of Procedure and Evidence in: Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First Session, New York, 3–10 September 2002 (ICCASP/1/3 and Corr.1), part II. A, Art. 73. 129

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spect for IHL – such as the suggestion that States operationalise the proportionality principle, that they keep records to ensure a minimum of transparency about precautionary measures, that they conduct enquiries in cases involving civilian deaths and make the inquiry results publicly accessible131 – have met with resistance in military circles, even if these measures do not aim at criminal prosecution. A disproportionate focus on criminal prosecution may also give rise to the impression that all behaviour in armed conflict is either a war crime or lawful. That impression increases frustration and cynicism about IHL and its effectiveness, which in turn facilitates violations. More importantly, that impression is simply false. For instance, to protect the civilian population it is crucial that all those launching attacks take all feasible measures to minimise incidental civilian harm by, for example, verifying targets and issuing effective warnings. Violations of these obligations do not amount to war crimes, but they remain crucial rules. While the great civilising impact of international criminal law is that it individualises responsibility and sanctions, it must be admitted that war is preponderantly a collective phenomenon. Given modern technology, military structures and political oversight, hostilities may be planned and executed in a system in which no one has full knowledge and control, yet IHL will only be respected if it is taken into account by all participants. To split, for example, the targeting process up into contributions for which individuals can be held criminally responsible is, first, not conceptually easy to carry out; second, it is often impossible to obtain sufficient evidence to prosecute all those involved in violations; and thirdly, establishing individual responsibility only gets us half-way to justice. It is also indispensable to establish the responsibility of States and armed groups. Criminal justice furthermore inevitably adopts an approach to behaviour in war that is retrospective, legalistic, procedural and confrontational. Punishment for violations is handed down many years after the fact. While confrontational and procedural processes are required to bolster the law in the long-term, progress must also be made in strengthening implementation through preventive action, immediate reactions to violations, and the provision of timely redress to victims. Co-operative, pragmatic approaches often lead to better immediate results. There is great complementarity and mutual reinforcement between international criminal justice and the traditional methods of implementation of _____________ 131

See Marco Sassòli/Lindsey Cameron, The Protection of Civilian Objects – Current State of the Law and Issues de lege ferenda, in: Natalino Ronzitti/Gabriella Ventu rini (eds.), Current Issues in the International Humanitarian Law of Air Warfare, 2006, 35, 63–64 and 71.

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IHL. We must avoid criminal justice being seen as the dominant solution, to the detriment of cooperation and humanitarian action. V. The Equality of Belligerents Before IHL is Challenged in Discourse and in Reality Perhaps the most important principle of IHL is the absolute separation between the ius ad bellum (regulating the legitimacy of resort to force) and the ius in bello (regulating the actual use of force). The separation results in the equality of belligerents before IHL. This means effectively that the rules apply in the same way to both parties, independently of whether or not their cause is just under the ius ad bellum.132 This constitutes the difference between armed conflicts between equals, to which IHL applies, and crimes, to which criminal law and IHRL rules on law enforcement apply. The principle itself is frequently challenged or ignored by those who are convinced of the ‘justness’ of their cause. Even if only at the level of perception – and not that of legal argument – certain IACs are seen as law enforcement actions of the international community directed against “outlaw” States, entities, or groups. This is even a legally correct description of conflicts resulting from the application of the UN Charter’s collective security system and it corresponds to the discourse employed in the military campaigns of hegemonic powers and their allies.133 In such situations, the perception of the parties as equals is threatened, and it becomes difficult to argue that the same rules of conduct apply to both the outlaws and the law enforcers. Those who perceive themselves as enforcing the common interest would not like to be told that they are being held to the same standards as the “outlaws”. They may even genuinely believe that, as defenders of the international community, they can, quite literally, do no wrong. This attitude may be behind the UN’s reluctance to recognise that it is not only bound by the principles and spirit of IHL, but also by all its detailed rules.134 At most, the “good guys” may accept being bound by a new set of temperamenta belli,135 human rights-like restraints addressed solely _____________ 132

See generally, Marco Sassòli, Ius ad bellum and Ius in Bello – The Separation between the Legality of the Use of Force and Humanitarian Rules to be Respected in Warfare: Crucial or Outdated?, in: Michael Schmitt/Jelena Pejic (eds.), International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein, 2007, 241, with further references. 133 Detlev F. Vagts, Hegemonic International Law, AJIL 95 (2001), 843 ff.; José Enrique Alvarez, Hegemonic International Law Revisited, AJIL 97 (2003), 873. 134 Sassòli, (note 132), 259. 135 For the temperamenta belli, which Grotius holds applicable to those fighting for a just cause, see Peter Haggenmacher, Grotius et la doctrine de la guerre juste, 1983, 597–604.

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to those engaged in international law enforcement – but not to their enemies.136 At least as long as armed conflicts remain a reality distinct from crimes, the understanding that IHL can only work if it applies equally to both parties cannot be stressed enough. Failure to uphold the principle of equality of belligerents would bring us back to our historical starting point, with temperamenta belli applying only to those engaged in a bellum iustum. The progress made in the centuries intervening between Grotius’ time and ours would be erased. VI. Difficulties in Obtaining Respect for IHL in Asymmetric Conflicts At its inception, IHL regulated behaviour between States, which are equal in their sovereignty. It is best suited to armed conflicts between parties that are similar in terms of military and technological capacity. However, many present day conflicts are NIACs, and almost by definition exhibit heavy asymmetry. In asymmetric conflicts, both sides are convinced that they cannot succeed militarily without violating or at least “reinterpreting” IHL. As such, asymmetric conflicts pose a direct challenge to the very philosophy of IHL. The St. Petersburg Declaration laid down that “the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy”.137 A strong argument to convince belligerents to respect IHL is to explain that victory is not only possible, but potentially facilitated, through compliance with IHL rules which require that parties concentrate only on what is decisive – the military potential of the enemy. This argument does not work in the case of asymmetric conflicts. An official US commission of inquiry looking into the “war against terrorism” concluded that the US could not defeat the “enemy” if captured foes were to be treated in line with the ICRC’s interpretation of the Third Geneva Convention.138 The belief that it is justifiable to obtain intelligence relating to terrorist networks by subjecting captured foes to inhumane treatment demonstrated one aspect of the corrupting influence of asymmetry. The technologically superior party, faced with an unconventional enemy that violates the law, adopts the logic wherein the ends (preventing future attacks at home) justify all means. The other dimension of the corrupting influence is to be seen on the side _____________ 136 See David Scheffer, Beyond Occupation Law, AJIL 97 (2003), 842; Nehal Bhuta, The Antinomies of Transformative Occupation, EJIL 16 (2005), 721; Steven R. Ratner, Foreign Occupation and International Territorial Administration, EJIL 16 (2005), 695. 137 Supra, note 18. 138 James R. Schlesinger (Chairman), Final Report of the Independent Panel to Review DoD Detention Operations of 24 August 2004, 85, available at http://www.defense link.mil./news/Aug2004/d20040824finalreport.pdf (accessed on 16 December 2014).

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of the “terrorist” adversary, who does indeed employ illegal tactics, not simply out of hate and spite, but based on the very rational calculation that his only chance of overcoming a technologically and militarily superior enemy lies in demoralising the latter’s civilian population through acts of terror. The vicious cycle is complete and never-ending. In our view, however, both sides are wrong. Inhumane treatment of suspected “terrorists” only contributes to their recruitment efforts and places democratic States on the same moral plane as the terrorists, while terrorist attacks bolster the enemy population’s support for both its government as well as the latter’s military solutions to the “terror” problem. Furthermore, in asymmetric conflicts, most rules of IHL are in fact only addressed to one side. Only one side has prisoners and an air force. Only one side could possibly use the civilian population as a shield. Although the reciprocity argument cannot justify violations of IHL, this absence of reciprocity negates an important motivating factor that leads to respect for IHL. A combatant treats captured enemy combatants humanely because he or she hopes to be accorded similar treatment if captured. This positive reciprocity is obviously lacking in asymmetric conflicts. Finally, all legal systems require a minimum of structure and authority in order to be meaningfully implemented. The weaker side in an asymmetric conflict often lacks the necessary structures of authority, hierarchy, communication between superiors and subordinates and processes of accountability, all of which are necessary to comply with rules. Furthermore, the requirement that armed groups possess such structures and processes presupposes that the aim of all such groups is to eventually take over State functions through control of territory. While this is true for some groups, it is not a safe assumption to make generally. Some groups simply do not have either governance aspirations or the structures typically associated with such functions. A similar problem arises in the case of so-called “failed States”, where formal structures of authority have collapsed and informal structures are non-transparent, transient and based upon interpersonal relations rather than rules. In practice, it is much more difficult for third party humanitarian actors (such as the ICRC) to persuade, train and monitor the actions of individuals forming part of such loosely organised groups than it is to convince a troop commander who is able to transmit instructions to his units, monitor respect, receive and deal with allegations of nonrespect and act to repress violations should they occur. VII. IHL is Humanitarian, but Some Actors Pursue Inherently Inhumane Goals As we have mentioned, according to the philosophy of IHL, respect for its rules should not prevent, but may even facilitate victory. By permitting only

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that violence which is directed at the military potential of the enemy, the balance between the principles of necessity and humanity serves to curb “total war”.139 Acts of violence against persons or objects of political, economic, or psychological importance may sometimes present more efficient ways of overcoming the enemy, but are never necessary, because every enemy can be overcome by sufficiently weakening its military forces. Today, this line of reasoning is not only “oversimplistic” according to some scholars,140 but is at odds with the very aims of certain actors engaged in armed conflicts, aims that are incompatible with IHL, and which include genocide, ethnic cleansing, looting and rape. This violence is not directed at enemy militaries, but at entire populations. Respecting IHL would make the achievement of such goals impossible. In these cases, it is almost impossible to obtain respect for IHL. In another type of situation, the goal of a belligerent is in line with IHL, but the most readily available means to achieve that end is prohibited. For example, take a belligerent wishing to oust an enemy government. This aim as such is fully compatible with IHL, and the belligerent remains in compliance with IHL if fighting is only conducted against the enemy government’s armed forces. However, once those armed forces are defeated, but the enemy government itself refuses to surrender, the belligerent has “run out of targets” militarily speaking.141 The only option remaining under IHL would be to occupy the country and physically arrest the members of that government and its supporters. However, the experience of the US and its allies in Iraq may strongly discourage future belligerents from adopting the same approach; in fact, the experience may encourage the taking of “short-cuts” such as seeking to provoke the local (enemy) population to oust the enemy government. If this is done through propaganda, including disinformation, it is unproblematic under IHL. However, if the short-cuts include supporting doubtful local warlords and armed groups, attacking that population and the infrastructure it relies on, or making life for members of that population impossible, they would be incompatible with IHL. In such a case, in order to respect IHL, the belligerent may be required to employ a more “costly” strategy (both in terms of resources and actual lives). Clearly, it is more difficult to convince belligerents of this than it is to persuade them to attack ammunition factories rather than holiday resorts. _____________ 139

See, Gabriella Venturini, Necessità e proporzionalità nell’uso della forza militare in diritto internazionale, 1988, in particular 145–150. 140 Michael Schmitt, Targeting and Humanitarian Law: Current Issues, IYHR 33 (2003), 59, 68. 141 James E. Baker, When Lawyers Advise Presidents in Wartime: Kosovo and the Law of Armed Conflict, NWCR 55 (2002), 11; Adam Roberts, The Law of War After Kosovo, in: Andru E. Wall (ed.), Legal and Ethical Lesson of NATO's Kosovo Campaign, U.S. Naval War College, ILS 78 (2002), 401, 416.

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VIII. Engaging Non-State Armed Groups In 1930, a British author wrote: “[I]n spite of the modern theories, which make individuals subjects – and sometimes the only subjects of International law, it nevertheless has something to do with States.”142 Despite the many changes the world has undergone since then, this dictum still rings true today. International law is primarily made by and addressed to States; its implementation mechanisms are even more State-centred. While today, the rules on State responsibility are well codified, the international responsibility of non-State actors still remains largely uncharted territory. In those cases where international rules do apply to non-State actors (or are claimed to apply to them), no international forum exists in which individual victims, injured or third States, intergovernmental or non-governmental organisations could invoke the responsibility of a non-State actor and obtain relief. International reality, however, has become increasingly less State-centred, involving the participation of NGOs, multi-national enterprises, and armed groups. As far as armed conflicts are concerned, it is imperative that international law catches up with international reality, for to fail to do so results in a weak level of protection for victims of the majority of armed conflicts, those involving armed groups. Other non-State actors such as multi-national enterprises and NGOs may be dealt with by the domestic law of the territorial State in which they are present. In the case of armed groups, this is simply not possible. Their existence in itself is testament to the fact that they operate beyond the practical reach of the law enforcement systems of the territorial State. They must therefore be engaged by international law and its mechanisms. IHL of NIACs has, since 1949, been more progressive than the rest of international law in this regard. Armed groups are specifically mentioned as addressees of IHL by Article 3 common of the Geneva Conventions. Nevertheless, the mechanisms of implementation for NIACs remain very limited and some IHL treaties, such as the Ottawa Convention banning landmines, are still only addressed to States. In addition, although armed groups are addressees of IHL and bound by its rules, it is necessary to engage them directly to foster a sense of ownership of the rules of IHL on their part. In our view, engagement must begin in the process of drafting rules. One of the reasons for claiming that IHL is no longer adequate for modern conflicts involves precisely the issue of armed groups – in particular transnational armed groups. If we assume that a revision of the law applicable to fighting between States and armed groups were to take place, the revision, in our opinion, should involve all stakeholders, including armed groups. Similarly, one could not review the law of naval warfare without consulting the world’s navies. IHL is, _____________ 142

Thomas Baty, The Canons of International Law, 1930, 1.

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above all, a pragmatic endeavour. Its success depends on effective application by parties to conflicts. As such, it must be based on a solid understanding of the problems, dilemmas and aspirations of all parties to armed conflicts. Criminal law, on the contrary, does not have to take into account the aspirations of the criminals, or be realistic for them. This is because, unlike IHL, which is enforced horizontally by the parties, criminal law enforcement is vertical and hierarchical. Once it is developed, the law must be disseminated to those who are charged with applying it. How does one disseminate to armed groups, taking their specificities into account? As efficient training does not consist solely of teaching prohibitions, but of showing how real-life situations may be solved while respecting IHL, the risk is that realistic training is considered support to the group, which is frequently equated with support to terrorism. It is worthwhile to get an armed group to commit to respecting IHL. This by itself would help close the ownership gap, and would create a constituency of leaders and other members, who would become advocates of IHL within the group (if for no other reason than to avoid losing face should violations continue unabated after the commitment is obtained). General commitments to respect IHL – such as declarations to comply with “the Geneva Conventions and Additional Protocols” – may be viewed with scepticism, as those treaties contain over 500 articles! Instead, a two-page code of conduct, which addresses the genuine humanitarian issues that arise for a given armed group in the field, is preferable. Geneva Call,143 a Swiss-based NGO, works precisely to obtain such concrete commitments by armed groups to humanitarian rules prohibiting the use of landmines, the involvement of children in armed conflict and sexual violence, through formal “Deeds of Commitment”144 which are signed in Geneva by high-level military leaders of armed groups. Armed groups should equally have access to advisory services, such as those provided by the ICRC to States. In our view, compliance is much more difficult for these groups than it is for governments with structures and institutions in place. How does a clandestine, illegal group ensure compliance with IHL? How does it punish members who do not comply? Can it punish or provide a fair trial without legislation? If we are serious about obtaining respect for IHL by armed groups, we must engage with the groups as they attempt to address these questions. This must be done assuming that many groups genuinely wish to respect IHL, which may prove to be untrue. However, it is also often untrue in _____________ 143

For more information, consult the Geneva Call website at http://www.geneva call.org. 144 For more information, see Geneva Call’s explanation of their Deeds of Commitment at http://www.genevacall.org/how-we-work/deed-of-commitment (accessed on 2 January 2015).

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the case of States, but this does not prevent us from providing them with advice. Experience shows that such advice often contributes to parties wanting to comply with IHL even if they did not want to do so initially. Furthermore, the respect of IHL by an armed group should be rewarded. In an IAC, a combatant falling into the power of the enemy becomes a prisoner of war. Combatant immunity means she cannot be punished for having participated in hostilities. If she commits war crimes, however, she must be punished. She therefore has a definite interest in complying with IHL. This incentive does not exist for non-international armed conflicts. If a fighter in a NIAC only kills government soldiers, he will nevertheless be prosecuted for murder once captured by governmental forces. Even perfect respect for IHL does not bar prosecution under domestic law. Although this fundamental difference between international and non-international armed conflicts is inherent in our Westphalian international system, we should nevertheless develop some incentives and rewards – in IHL, international criminal law, refugee law and international anti-terrorism law – for compliance. This is one of the major reasons why we believe that lawful acts of war committed in an armed conflict should never be allowed to fall under any definition of terrorism.145 Commitment, advice and rewards are, by themselves, not sufficient to promote compliance. The respect of the law also has to be monitored, and mechanisms to engage with armed groups in this regard remain few and far between. Under Article 3 common to the Geneva Conventions, the ICRC may offer its services to an armed group and if the latter accepts, the ICRC may monitor the group’s respect in exactly the same way as it monitors the activities of States involved in international armed conflicts. Similarly, Geneva Call monitors whether a group’s commitments correspond to reality on the ground. However, sovereignty-obsessed States do not appreciate such activities. Finally, as with States, there must be responsibility for violations by armed groups. International criminal law is as much addressed to members of armed groups as members of armed forces. In international private law the possibility to construe and sanction a violation of IHL as a tort has to be explored and implemented in domestic courts. In this field, the United States has been a pioneer with its Alien Tort Claims Act.146 Furthermore, the international responsibility of an armed group has already been addressed by sanctions taken by the Security Council against armed groups.147 Another area that we think _____________ 145 See, for a more detailed discussion, Sassòli, La définition du terrorisme (note 68), 33–44. 146 The Alien Tort Statute of 25 June 1948, 28 U.S. Code. § 1350 (2001). 147 See, for example, concerning UNITA: Security Council, Resolution 1127 of 28 August 1997 (UN Doc. S/RES/1127); Security Council, Resolution 1173 of 12 June 1998 (UN Doc. S/RES/1173); Security Council, Resolution 1221 of 12 January 1999

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deserves exploration concerns how humanitarian organisations react to violations of IHL by armed groups. On the one hand, these organisations want to assist and protect persons who are in the hands of the armed groups, which necessitates continuing to cooperate with the group. On the other hand, reacting to violations is crucial, and humanitarian organisations must not sacrifice criticising violations, at least bilaterally and confidentially, to ensure access. There are three main objections to engaging all non-State armed groups. First, many object that engagement by international actors encourages armed groups to continue employing violence, which inevitably contributes to human suffering. We would like to see a world without armed groups, just as we would like to see a world without armed conflicts. However, at present, they must be accepted as a reality, similar to armed conflicts. They will not disappear if we ignore them. Rather, the reality in armed conflicts may be improved if we devise methods and mechanisms through which to engage with these actors. Second, more moderate opponents accept engaging some, but not all, armed groups. We hold that engagement must be toward all groups, because if not, selective criteria for which groups to engage will be applied, and these will only weaken efforts to ensure compliance. From a humanitarian point of view, distinctions between “good”, “bad” and “horrible” armed groups would mean that those in greatest need of protection would be deprived of it because they are in the hands of a group whose methods or ideology we utterly reject. Engaging all groups would also avoid a diplomatic problem. If we refuse, for example, to engage Hezbollah in Lebanon or the Taliban in Afghanistan, how can we justify engaging the FARC to the government of Colombia? The only reasonable limitations to engagement are therefore to require that the group be a genuine armed group engaged in a genuine armed conflict. Both terms are admittedly not very clearly defined in IHL.148 Third, the most recent obstacle to engaging armed groups is linked to the fight against terrorism. The US, for instance, has criminalised any support to the 60 groups currently on its “terror” list,149 which includes some armed groups involved in NIACs. Furthermore, the US considers mere training in IHL _____________

(UN Doc. S/RES/1221); concerning Republika Srpska: Security Council, Resolution 942 of 23 September 1994 (UN Doc. S/RES/942); concerning rebels in Sierra Leone: Security Council, Resolution 1171 of 5 June 1998 (UN Doc. S/RES/1171); and to a certain extent, concerning the Khmer Rouge: Security Council, Resolution 792 of 30 November 1992 (UN Doc. S/RES/792). 148 See supra, text accompanying notes 81–83. 149 As of 2 January 2015; the U.S.’s list of foreign terrorist organisations is available on the website of the U.S. Department of State at http://www.state.gov/j/ct/rls/other/des/ 123085.htm (accessed on 2 January 2015).

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as constituting “support” to armed groups.150 In our view, this is incompatible with Common Article 3, which gives impartial humanitarian bodies the right to offer their services to armed groups, and if their offer is accepted, to provide such services to the groups. The approach of the US, and many other States criminalising the support of terrorist groups, is often justified as a method of implementing UN Security Council Resolutions. Such resolutions could indeed prevail under Article 103 of the UN Charter over Common Article 3.151 However, we would interpret such resolutions in conformity with Common Article 3 such that they do not affect the right of initiative of impartial humanitarian bodies.

E. The Challenge of Perception: The Perceived Gap Between the Promises of the Law and Reality is Widening The incredible development IHL has witnessed has generated increased expectations of protection. The statements of scholars, international tribunals, international organisations, States, and now, even armed groups, might lead one to believe that the full machinery of international law will guarantee protection in times of armed conflicts. We are told that most rules of IHL have a ius cogens character152 and are intransgressible.153 We hear of the growth of customary IHL, that it is not only binding upon all States, but that it is based upon State practice, and that IHL rules applicable to IACs are also applicable to NIACs.154 The UN Security Council has consistently held that violations of IHL constitute threats to international peace and security. In this, it is applauded by the _____________ 150 See, Section 2339B, title 18 of the United States Code (USC), 2339B (a) (1), Antiterrorism and Effective Death Penalty Act of 1996, and the US Supreme Court in Holder v Humanitarian Law Project, 561 U.S. 1 (2010), 130 S.Ct. 2705, 2720 and 2725. 151 See in particular Security Council, Resolution 1373 of 28 September 2001 (UN Doc. S/RES/1373). 152 International Law Commission, Commentary, Draft Articles on Responsibility of States for internationally wrongful acts, in: United Nations, International Law Commission, Report on the work of its fifty-third session (23 April–1 June and 2 July–10 August 2001), published as General Assembly, Official Records, Fifty-fifth Session, Supplement No. 10 (UN Doc. A/56/10), 284 (para. 5 of commentary on Art. 40); ICTY, The Prosecutor v. Zoran Kupreskic and others, Judgment of 14 January 2000 (Case No. IT95-16-T), para. 520. 153 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 257, para. 79. 154 See supra, text accompanying notes 3–11, and ICTY, The Prosecutor v. Duško Tadić aka “Dule”, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (note 9), paras. 96–136.

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unanimous college of scholars. However, victims of violations of IHL in Chechnya, Palestine and Syria still wait for the Security Council to comply with the “duties”155 conferred upon it by the Charter to manage such threats. Furthermore, IHL experts optimistically recall that all States have an obligation to “ensure respect” of IHL.156 In the halls of the United Nations, the doctrine of the “responsibility to protect”157 is debated. While both represent truly lofty and laudable aspirations, they are lacking in clarity.158 These concepts generate massive expectations that the international community is, all too often, unable to fulfil either because intervention may prove too costly in terms of human and material resources, or because political interests at play in certain situations prevent any action/intervention. Both reasons leave affected populations with a bitter taste in their mouths. They may interpret unwillingness to intervene as a judgement that their situation is not “horrible enough” to warrant international action, or they may be left with the feeling that their lives and fortunes are being balanced against and sacrificed for political points. Despite the progress made in the international fight against impunity for violations of IHL, there are many armed conflicts in which not a single perpetrator has been punished. Even where serious international and domestic efforts towards criminal prosecutions have been made, most war criminals continue to benefit from de facto impunity. While we are told that there is “no peace without justice”, many war victims are simply still deprived of both. The case of the former Yugoslavia has shown that it is materially, socially and politically impossible to prosecute all perpetrators of war crimes. As for reparations, in not one single case has full compensation been offered to all victims of violations after a conflict.159 That victims were not sensitised, from the very beginning, to these perspectives contributes to the credibility gap under discussion. It is highly irresponsible on the part of the international community to generate expectations that it is not willing to, or cannot – materially or financially – fulfil. Doing so only serves to rub salt in the wounds of those who have already suffered much. _____________ 155

UN Charter (note 126), Art. 24. GCs I-IV, Art 1; AP I, Art. 1. 157 General Assembly, Resolution 60/1 of 24 October 2005, World Summit Outcome Document (UN Doc. A/RES/60/1), paras. 138–140. 158 For Responsibility to Protect, see, International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, 2001. 159 The UN General Assembly has promised full reparation to all victims of violations of IHL in: Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, General Assembly, Resolution 60/147 of 20 March 2006 (UN Doc. A/RES/60/147). 156

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This credibility gap has negative effects on the implementation of IHL. Firstly, the perceived gap with respect to some rules affects how other rules are complied with. Some alleged customary rules unfortunately do not correspond to what States and armed groups actually do in many cases, and this puts at risk other uncontroversial rules, for example, the rule prohibiting deliberate attacks upon civilians. Secondly, in some cases the delivery of a “promise” has also served as an alibi for inaction. According to some sources, this was the hope of some Security Council members in setting up the ICTY.160 Thirdly, the gap leads to frustration on the part of victims, who no longer believe in the restraining power of the law. This means that they, and those fighting on their behalf, are less likely to comply with IHL. Fourthly, the generation of unrealistic expectations may, quite simply, place persons affected by armed conflicts in grave danger, as evidenced by the tragedy of Srebrenica. Had its inhabitants known at the outset that the UN could not realistically deliver on the promise of designating Srebrenica a protected zone, they may not have tolerated Bosnian Muslim forces’ occasional provocation of the Bosnian Serb forces through raids on the surrounding villages161 and they would likely either have stayed in their villages of origin or have fled to real safety instead of concentrating in the place where they would eventually be massacred. Finally, and most importantly, only very few individuals would be ready to respect rules protecting those they perceive as their enemies, if they were convinced that they were the only ones respecting those rules. The credibility gap can, however, be bridged, firstly by respecting IHL as promised. This will be easier to accomplish if commitments are realistic and nuanced. Additionally, we must work to prevent the imbalance in perception that IHL is more frequently violated than respected. Anyone consulting media and NGO reports would be led to believe that IHL is almost never complied with. This perception is strongest in certain long-running conflicts, for example, in the Near East, where people have a profound sense of being the victims of historical injustice. This imbalance in perception is not only inaccurate, but also extremely dangerous, and can result in a vicious cycle of non-respect. To counter this, it is necessary to foster – globally – an attitude in which respect for IHL matters and violations – no matter who they are committed by – are taken seriously. Well-organised, powerful, democratic States can take the lead in setting this tone. Second, States accused of violations should carry out serious enquiries and make their results public in every instance, in order to convince their adversaries and others of their general willingness to respect IHL. In _____________ 160 Pierre Hazan (James Thomas Snyder, transl.), Justice in a Time of War: the True Story Behind the International Criminal Tribunal for the Former Yugoslavia, 2004. 161 ICTY, The Prosecutor v. Naser Orić, Trial Chamber Judgment of 30 June 2006 (Case No. IT-03-68-T), paras. 104–105.

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our view, this would contribute much more towards winning the “war on terrorism” than any doubtful intelligence information which may be extracted from suspected terrorists. Thirdly, the media and NGOs cannot be relied upon to report even-handedly and proportionately about respect and violations. They correctly consider violations scandals that must be made known, while respect is considered “normal” and as newsworthy as the fact that most drivers respect speed limits most of the time. Nevertheless, all of us should endeavour, whenever possible and when it is true, to show that IHL is very often respected. This is not an easy task, as it is difficult to come across real-life examples of respect, unless one is in the field and working directly in situations of armed conflict, in which case one will be aware of such examples daily.

F. How to Produce New, More Adequate Rules and Mechanisms? I. Through Treaties? One might be inclined to expect that, when it comes to the elaboration of new IHL rules, especially those relating to mechanisms, the obvious starting point should be treaty law. This was what Henry Dunant suggested and achieved in 1864 with the very first Geneva Convention162 after he had witnessed in 1859 the horrors of the battle of Solferino. However, the composition and functioning of the international community is very different today, and current international reality is such that there are great difficulties in adopting new multilateral treaties and having them universally accepted. For a start, the number of States in existence has increased dramatically, a fact that necessarily affects the length of negotiation processes that result in multilateral treaties. Secondly, as there is already a largely adequate normative framework in place, the few remaining areas that would benefit from clarification often involve highly technical or controversial points of law that States do not really wish to clarify, preferring to maintain a certain latitude of action in armed conflicts. Codification to clarify issues such as, for instance, the temporal and geographical scope of IHL, the contours of the principle of proportionality, the notion of direct participation in hostilities, or the relationship between IHL and IHRL is particularly challenging (or impossible at present) because the debate is not settled, and there are (sometimes very wide-ranging) differences of opinion about what would constitute acceptable and unacceptable conduct.

_____________ 162

Supra, note 1.

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Finally, there are some concerns that moves to agree on new rules might jeopardise the already existing normative framework. A particularly good illustration of such concerns can be found in the case of the International Humanitarian Fact-Finding Commission, established by Article 90 of AP I.163 While there is general recognition that the mandate and trigger mechanism of the IHFFC need to be re-examined,164 States are extremely hesitant to re-open discussion on this mechanism, or to admit that it has failed, bury it officially, and agree on something new on the same issue. By pointing out the above, we do not mean to suggest that IHL treaties may never again be concluded. Indeed, recently, we witnessed the adoption of the Convention on Cluster Munitions and the Arms Trade Treaty, both of which are relevant from the point of view of armed conflict. Neither do we mean to suggest that only treaties with universal acceptance are effective instruments. The Ottawa Convention on Landmines, the Convention on Cluster Munitions and Additional Protocol I itself have not been accepted by several key States that are involved in armed conflict. India, Israel, Pakistan, Turkey and the United States are particularly noteworthy as non-parties of all three treaties. Nevertheless, those treaties bind their parties and provide evidence of State practice that is useful in determining the emergence of customary rules on specific issues. The case of the Ottawa Convention shows that a widely ratified treaty may also have an impact on the conduct of non-Parties. Finally, future attempts to address substantive challenges to IHL through treaty law should be carried out in such a way as to address (or at least, to avoid widening) the ownership gap with respect to armed groups and the law. In order for new rules to be realistic and to be complied with, modalities of engaging armed groups in the development and – at the very least – recognition of new norms must be elaborated.165 II. The Revival of Customary Law We now turn to customary IHL, which – unlike treaty IHL – has seen tremendous expansion over the past twenty years. The customary law channel has _____________ 163

See supra, text accompanying notes 121–122. Chairs’ Conclusions, Second Meeting of States on Strengthening Compliance with International Humanitarian Law, Geneva, 17–18 June 2013, available at https:// www.icrc.org/eng/what-we-do/other-activities/development-ihl/strengthening-legal-prot ection-compliance.htm (accessed on 8 November 2014). 165 For a concrete proposal, see Sivakumaran (note 5), 564–567; for a general discussion of armed groups and the creation of international law, see Anthea Roberts/Sandesh Sivakumaran, Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law, YJIL 37 (2011), 107. 164

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already been effective in bridging – at least in theory – the substantive gap between IHL of IACs and NIACs, and this channel may prove useful in addressing some of the other challenges outlined in this article, particularly those related to the admissibility of targeting and detaining enemy fighters in noninternational armed conflicts. However, mechanisms and institutions needed for better enforcement can by definition not be created by customary law.166 In addition, if we are to look to customary IHL to fill the substantive gaps identified above, then the evaluation of custom needs to be largely independent from actual practice of States, and more reliant on opinio iuris – on what States say rather than what they actually do. Even then, it is rather delicate to tell States that have rejected a certain rule as a binding treaty obligation that the same rule is binding upon them qua customary law, based upon their “practice”. Furthermore, in order to ensure that future customary rules are realistic for all belligerents, it is important that the practice and statements of armed groups are taken into account. At present, armed groups are largely ignored in the evaluation of custom.167 Although there are several conceptual difficulties in considering the practice of armed non-State actors in the norm-creating process, some scholars have argued that it is possible for armed groups to play a role in the development of new rules, although they see the risk of “downgrading” current international protections.168 These scholars have put forward a theory of what they call “quasi-custom” which, in our opinion, merits further reflection.169 III. New Forms of Soft Law Besides conventional and customary IHL – which both require lengthy periods to establish new rules – there are other ways that have been employed to reinforce and consolidate the body of law that applies in times of armed con_____________ 166 The prevailing view is that customary law is concerned with substantive provisions, rather than with procedural ones; see ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) Merits Judgment, ICJ Reports 1986, para. 200; Bing Bing Jia, The Relations between Treaties and Custom, Chin. JIL 9 (2010), 81, 92. 167 Roberts/Sivakumaran (note 165); at page 150, they mention the ICRC Customary Law Study, which did collect practice of armed groups, but did not use it in its evaluation of custom. They also mention that the ICTY in Tadic “took into account the practice of the CPLA, FMLN and the Royalists in Yemen in determining that a number of customary rules applied to noninternational [sic] armed conflicts”. However, the scholars also note that “nonetheless, in subsequent cases, the ICTY has not relied on the practice of armed groups”. 168 Ibid., 141–152. 169 Ibid.

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flicts. The most notable of these are “soft” or “non-binding” documents that provide guidelines for conduct. Some of these non-binding documents claim to be “restatements” of existing international law, rather than developments of the law. Examples include the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea,170 the 2005 ICRC Customary International Humanitarian Law Study,171 and the 2009 Manual on International Law Applicable to Air and Missile Warfare.172 Inevitably, these non-binding documents are not pure restatements, but on certain issues they represent developments of the law with respect to specific questions.173 Other non-binding documents are intended to serve as guides to the interpretation of certain elements of the law, such as the ICRC’s Interpretive Guidance on the notion of Direct Participation in Hostilities.174 Another example, the 2008 Montreux Document,175 “the first document of international significance to define how the law applies to the activities of private military and security companies (PMSCs) when they are operating in an armed conflict zone”,176 explicitly states that it does not attempt to create legal rules, but contains “a set of good practices designed to help states take measures nationally in order to fulfil their obligations under international law”.177 _____________ 170 Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 1995. 171 Henckaerts/Doswald-Beck (note 10). 172 Program on Humanitarian Policy and Conflict Research at Harvard University (HPCR), Manual on International Law Applicable to Air and Missile Warfare, 2009. 173 For the HPCR Manual on Air and Missile Warfare, see Ian Henderson, Manual on International Law Applicable to Air and Missile Warfare: A Review, MLLWR 49 (2010), 169; for the ICRC Customary Law Study, see John B. Bellinger, III/William J. Haynes II, A US government response to the International Committee of the Red Cross study Customary International Humanitarian Law, IRRC 89 (2007), 443; for the San Remo Manual, its introduction is itself instructive: “The purpose of the Manual is to provide a contemporary restatement of international law applicable to armed conflicts at sea. The Manual includes a few provisions which might be considered progressive developments in the law, but most of its provisions are considered to state the law which is currently applicable.”, emphasis added. 174 Melzer (note 32). 175 Montreux Document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict (2008). The Montreux Document is available in an Annex to the letter dated 2 October 2008 from the Permanent Representative of Switzerland to the United Nations addressed to the Secretary-General (UN Doc. A/63/467-S/2008/636). 176 Swiss Federal Department of Foreign Affairs, Montreux Document, https://www.e da.admin.ch/eda/en/fdfa/foreign-policy/international-law/international-humanitarian-law /private-military-security-companies/montreux-document.html (accessed on 9 November 2014). 177 Ibid.

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In our view, in international law even more so than in other areas of law, there exists a sliding scale between restatement and progressive development and between new legislation and the interpretation of existing rules. With some new non-binding documents, there is concern about the process leading to their adoption, which is non-transparent and non-inclusive. They are often elaborated by experts whose representativeness and legitimacy are doubtful. Even where States are involved, these soft law rules are no longer elaborated, as they were traditionally, in the UN General Assembly or the Human Rights Council, in public and with civil society present. The Copenhagen Process on the Handling of Detainees in International Military Operations178 is an example. It was launched in response to challenges presented by detention in the context of international military operations, and comprised of a five-year process involving the participation of 24 States and 5 international/regional organisations. The resulting Copenhagen Process Principles and Guidelines have been criticised on various counts, including for the closed nature of the process leading to their adoption.179 Similarly, the current initiatives led by Switzerland and the ICRC to strengthen the respect of IHL and that led by the ICRC to strengthen legal protection for persons deprived of their liberty in relation to NIACs involve, for the time being, only State representatives and the reports on discussions held do not attribute any opinions to individual States.180 This makes it impossible for civil society, even in democracies, to advocate for more humanitarian positions by their governments. Despite the declared intentions of their authors, such documents create presumptions181 as to the state of development of the law, and as such may be useful tools in addressing the substantive gaps addressed in our paper. Future attempts to develop similar instruments would benefit from inclusivity, transparency and methodological rigour, to avoid criticisms of their validity, credibility and legitimacy.

_____________ 178 Copenhagen Process on the Handling of Detainees in International Military Opera tions, at the website of the Danish Ministry of Foreign Affairs: http://um.dk/en/foreign-p olicy/copenhagen-process-on-the-handling-of-detainees-in-international-military-operati ons (accessed on 2 January 2015). 179 Jacques Hartmann, The Copenhagen Process: Principles and Guidelines, EJIL:Talk! Blog of the European Journal of International Law, 3 November 2012, available at http://www.ejiltalk.org/the-copenhagen-process-principles-and-guidelines (accessed on 9 November 2014). 180 See supra, notes 40 and 124. 181 See, concerning the HPCR Manual, Henderson (note 173), 180.

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IV. Scholarly Writings Between Apology and Utopia “It should be recalled that the law of armed conflict has a history of rules later being accepted which first emerged ‘from the pens of scholarly advocates’.”182 When a problem of interpretation of IHL arises, students, scholars and practitioners regularly consult scholarly writings. If the Commentaries published by the ICRC183 and currently in the process of being updated184 were to be classified among the traditional sources of international law, they would probably constitute particularly authoritative scholarly writings. Other scholarly writings, however, increasingly lack the same weight. This is because, often times, scholars do not try to present the law as it is, but as they or their clients wish it to be. On the one hand, some present – often camouflaged through sophisticated, novel, policy-oriented theories – the practice of powerful States, or the criticisms by their parent States, as the law. On the other hand, idealist lawyers are under the illusion that they can improve the law by claiming that their humanitarian aspirations already constitute law. Despite their noble aims, such scholars weaken the impact of the law. When it comes to IHL in particular, scholars must remain realists, because it is a profoundly pragmatic branch of international law. In Utopia, there is no IHL, because there are no armed conflicts. V. The Increasing Importance of Jurisprudence Yet another way in which IHL has been fleshed out has been through the overwhelming impact of jurisprudence. Unlike under IHRL, which developed later, mechanisms of implementation, monitoring and enforcement under IHL are quite weak. For the most part, enforcement through criminalisation is left up to national authorities. With the notable exception of the work of the ICRC, the compliance mechanisms foreseen by IHL have never been activated.185 _____________ 182

James E. Bond, Application of the Law of War to Internal Conflicts, GJICL 3 (1973), 345. 183 Jean Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, Volumes I – IV, 1952; Yves Sandoz (ed.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987. 184 See interview of 12 July 2012 with Jean-Marie Henckaerts, legal adviser and head of the project to revise the Commentaries, available at https://www.icrc.org/eng/ resources/documents/interview/2012/geneva-conventions-commentaries-interview-2012 -07-12.htm (accessed on 2 January 2015). 185 ICRC, Background Document, Second Meeting of States on Strengthening Compliance with International Humanitarian Law (IHL), 17/18 June 2013, Geneva, 5–6, available at https://www.icrc.org/eng/assets/files/2013/2013-06-strenghtening-ihl-backgro und.pdf (accessed on 9 November 2014).

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In the absence of an IHL mechanism that can be triggered by the individual victim, the jurisprudential burden is shifted to existing human right bodies – such as the United Nations Human Rights Council, the UN Committee against Torture, the African Commission and Court on Human and People’s Rights, the Inter-American Commission and Court of Human Rights and the European Court of Human Rights among others – and to international criminal courts such as the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal Court. As far as human rights bodies are concerned, while this shift fills the mechanism gap in some ways,186 it also creates certain substantial challenges for all human rights bodies engaging with such questions.187 For instance, it is doubtful whether they have the competence to handle specific IHL questions in a realistic manner, especially when it comes to questions of conduct of hostilities – including determinations of direct participation in hostilities and proportionality, which involve rather complex evaluations that are very different from the point of view of international human rights law, where life and property are protected to a greater degree than is the case in times of armed conflict.188 In the case of international criminal courts, the challenge is that these operate at the level of individual (not belligerent) responsibility, and deal only with violations of IHL that amount to war crimes, and therefore other violations of IHL that do not amount to such gravity are not covered. Additionally, the practice of international criminal tribunals and – to a lesser extent – that of human right bodies does not take the difficulties of applying IHL during armed conflicts

_____________ 186 See Robert Kolb/Gloria Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law, 2013, who refer to this as a development of “paramount importance in particular in institutional terms”. They go on to say, “Taking into account that the ICRC can only rarely publicly address violations of IHL and that the international criminal tribunals focus on the behaviour of individuals and not parties to a conflict as such, the Human Rights Council and its mechanisms have become ‘the major forum in which governments are most likely to be held to account for abuses committed’ in the context of armed conflict where they are ‘called upon to justify their conduct publicly and in a systematic manner’. Thus, it has become the main substitute for the lacking monitoring mechanisms under the Geneva Conventions and the Protocols additional to them”, 455, (footnotes/further references omitted). 187 See generally, Françoise J. Hampson, The relationship between international humanitarian law and human rights law from the perspective of a human rights treaty body, IRRC 90 (2008), 549. 188 Kolb/Gaggioli (note 186), 456: “Another weakness is the often superficial invocation and application of IHL by treaty bodies that may not do justice to the detailed content and the conceptual underpinnings of the law of armed conflict”.

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into account.189 Their interpretations are in some cases easier to apply years after the events than on the battlefield.190 The jurisprudence of these human rights bodies and criminal tribunals has nevertheless played an enormous role in developing and clarifying the laws applicable to armed conflict, for example those on the relationship between human rights law and humanitarian law, the material, temporal and geographical scope of NIACs, the existence of a similar body of IHL rules for IACs and NIACs, among others. As for domestic jurisprudence, it could and should have an important role in enforcing and clarifying the legal obligations of States, but it is often marked by the desire to justify the conduct of the forum State or to criticise conduct of another State. Often, domestic jurisprudence employs various types of avoidance strategies to absolve the forum State of IHL violations, or is marked by utopian interpretations by judges targeted against enemy or third States, or armed groups.191 VI. The Role of Natural Law Finally, and as a last resort, it must be recalled that in the event of an issue on which treaty and customary law are silent, for which no non-binding texts exist and where jurisprudence is unavailable, we are still guided, in the realm of IHL more than in other branches of public international law, by natural law, which inspired the very first codifications. This understanding first appeared in the Martens Clause contained in the preamble to the 1899 Hague Convention: Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.192 _____________ 189

Grignon/Sassòli (note 58), 144–152. For instance, the concept of responsibility for violations of IHL through the doctrine of joint criminal enterprise, while undoubtedly useful for criminal prosecutions, is not very evident to apply in practice during battle. 191 See generally, Sharon Weill, The Role of National Courts in Applying International Humanitarian Law, 2014. 192 Preamble, Convention (II) with Respect to the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (Hague Convention and Hague Regulations) of 29 July 1899. It must be noted that the Martens Clause originally dealt only with the (already at that time) controversial issue of the protection of persons directly participating in hostilities, but lacking combatant status. 190

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The Martens clause shows, effectively, a link between positive law and natural law. That the High Contracting Parties were motivated by considerations of “rightness” to include the clause in the preamble brings into focus the relationship, particularly in this area of international law, between what is morally good, fair or just, and what is legal. The Martens clause is today, even more than when it was drafted, read to mean that the silence of treaties on a particular issue does not give States the right to act as they will, establishing additional wellsprings in which to seek guidance on conduct: the usages established between civilised nations, the laws of humanity and the requirements of the public conscience. The reference to the usages established between civilised nations points to “the importance of customary norms in the regulation of armed conflicts”.193 The term “laws of humanity” is taken to be synonymous with the expression “principles of humanity”, which prohibit, “means and methods of war which are not necessary for the attainment of a definite military advantage”.194 The term “the dictates of the public conscience” has been interpreted variously, but could be said to include authoritative expressions, such as those found in General Assembly resolutions, of the will of the international community.195

G. Conclusion By definition, IHL and its implementation mechanisms can never be perfect, because in a perfect international society, armed conflicts, to which IHL applies, would not exist. Nevertheless, since 1864, when Henry Dunant obtained States’ acceptance of the first Geneva Convention, the legal protection of war victims and international efforts to obtain compliance with those rules have seen incredible progress. It is, however, disheartening to note that the 38 years since 1977 (when the Additional Protocols were adopted) constitute the longest period in the 150 years of the history of modern, codified IHL in which no general update of existing IHL has been undertaken. This is not solely because the existing rules are largely adequate, but also and more importantly because a majority of States are obsessed with their sovereignty and fear any outside interference, even in the form of rules protecting their populations, and additionally because a minority of powerful States desire to keep as many options as possible open in the event of an armed conflict. Limited progress has been achieved, but only through normative detours and often in a veiled manner. _____________ 193

Rupert Ticehurst, The Martens Clause and the Laws of Armed Conflict, IRRC 37 (1997), 125, 129. 194 Ibid. 195 Ibid., 130–131.

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Some efforts have claimed the exact opposite of what is actually their aim, i.e. mere restatement and interpretation rather than (new and) improved rules and more efficient mechanisms resulting in better protection. Nevertheless, any approach to IHL must be pragmatic. If – but only if – such new avenues improve protection of war victims, they deserve to be pursued, even if they frustrate positivist lawyers and make it more difficult for practitioners to know what “the law” is. As for the enforcement of existing rules, even if we take into account the fact that IHL implementing mechanisms can by definition never be perfect, add our admiration for the humanitarian activities of the ICRC, and subtract the distortions that arise from misperception, we must admit that IHL, which offers adequate protection to most people on nearly all humanitarian issues if applied and interpreted in good faith, is simply insufficiently enforced. This is the greatest challenge for IHL. Today some fragile momentum exists for an interState implementation mechanism. For the time being, States do not seem to support the necessary minimum for an efficient mechanism, i.e. an independent treaty body, the involvement of armed groups, and open discussions about violations. However, perhaps even an insufficient mechanism may generate momentum which will provide, once a political window of opportunity opens, the basis for further improvement. More generally, what is lacking is political will by States and armed groups to respect IHL. Although desperately needed, this can only marginally be created by legal mechanisms. What is required first and foremost is to convince individuals who decide and fight for States and armed groups, and society at large, that respect for the law matters. To foster a general culture of respect, dissemination, training and education are crucial, but not sufficient. A range of political, moral, religious and/or utilitarian arguments can be used as well. The role of law in all this is limited. This article has nevertheless shown that some of the challenges for the implementation of IHL are related to – if not caused by – legal issues. We do not pretend to have solutions for overcoming all these challenges, but have tried to suggest some: faithful application of IHL where it applies, without manipulation, be it for political or humanitarian purposes, or even to ensure victory for a just cause; ensuring that as few belligerents as possible must perceive IHL as an obstacle to the achievement of their final aims; engaging all those who are meant to respect IHL; and reducing the credibility gap, not only by enforcing IHL, but also by placing the emphasis on the existing rules instead of endlessly developing new ones – or, worse, pretending that they already exist – and by convincing the general public, journalists, news-consumers, fighters and their constituencies that there is much more respect for IHL in evidence than they may be given to think.

UN Missions and the Law of Occupation By Andreas Paulus*

A. Introduction: The Blurring of Lines Between Peace and Armed Conflict Since encountering his work while working on my dissertation, I have felt nothing but great admiration for Walther Schücking as a liberal politician, as a pacifist activist, and as a relentless advocate and practitioner of international institutions and adjudication.1 I have also worked through countless publications and books from the Kiel Institute with their special blend of pragmatism and optimism in the potential of international law and adjudication in the resolution of conflict – and this conference is a fitting example. I thank you also for the invitation to speak on the international law of occupation, which leads me back to the last project I have been involved in with the International Committee of the Red Cross before I was elected Justice of the Constitutional Court.2 It is a difficult task to comment on Professor Sassòli’s comprehensive and succinct article and say anything new on the topic. But I intend to use this comment to continue a long ranging debate among us regarding the scope of international humanitarian law with regard to the threshold for the existence of an armed conflict. As a constitutional scholar and judge, I may have another sensibility than a practitioner and scholar with an international humanitarian law background. The existence of an armed conflict plays a central role for the application of international humanitarian law. And yet, as the so-called “war on terror” has shown, the threshold between armed conflict and the application of the regular law in times of peace has not, so far, been satisfactorily resolved, in particular _____________ * The author wishes to thank Mr. Matthias Lippold, LL.M. (NYU) and Mr. Maik Knaust for their research assistance and their helpful suggestions. The responsibility for the final text remains that of the author alone. 1 Andreas Paulus, Die internationale Gemeinschaft im Völkerrecht, 2001, 164–170. 2 See Expert meeting: Occupation and other Forms of Administration of Foreign Territory (Geneva, ICRC March 2012), available at https://www.icrc.org/eng/assets/ files/publications/icrc-002-4094.pdf (accessed on 2 June 2015).

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with regard to the law of non-international armed conflict where domestic law and international humanitarian law intersect. Three examples from the past weeks demonstrate the continued relevance of the threshold question: Firstly, the most obvious is the recent armed conflict between Israel and non-State armed groups in the Gaza strip. It was provoked by elements of a non-State actor that controls parts of a self-determination unit, namely Palestine, which is, by itself, under a situation of quasi-occupation.3 And yet, the beginning of the use of armed force by Israel against Gaza (“Operation Protective Edge”) in reaction to the kidnapping and murder of three young Israeli settlers and rocket attacks from the Gaza strip raises important issues as to the relationship between occupation and actual hostilities, with regard to both the jus in bello and the jus ad bellum. By the way, Israel apparently announced the beginning of hostilities against Gaza in a Twitter message.4 Indeed, we have travelled a long way in the last century from declarations of war, still mandatory for inter-State war according to the Third Hague Convention,5 to commencement of hostilities by Twitter. Furthermore, the relationship between armed conflict and peace has become more dubious with regard to two other conflicts in Eastern Europe and the Middle East as well. Consider the following statement by the head of the Russian General Staff of 2013: “In the 21st century we have seen a tendency toward blurring the lines between the states of war and peace. Wars are no longer declared and, having begun, proceed according to an unfamiliar template. [...] [A] perfectly thriving state can, in a matter of months and even days, be transformed into an arena of fierce armed conflict, become a victim of foreign intervention, and sink into a web of chaos, humanitarian catastrophe, and civil war.”6 While meant as a commentary on the Arab spring and the Western reac_____________ 3

Cf. United Nations Office for the Coordination of Humanitarian Affairs (OCHA), Occupied Palestinian Territory: Gaza Emergency Situation Report [OCHA-Report], 1 et seq., available at http://www.ochaopt.org/documents/ocha_opt_sitrep_04_09_2014.pdf (accessed on 29 June 2015. 4 Twitter message by an IDF (Israeli Defense Forces) Spokesperson: “IDF has commenced Operation Protective Edge in Gaza against Hamas, in order to stop the terror Israel’s citizens face on a daily basis.”, see Marcy Kreiter, Timeline: Israel Mounts Operation To End Gaza Rocket Fire, International Business Times, available at http://www.ibtimes.com/israel-mounts-operation-end-gaza-rocket-fire-1621462 (accessed on 18 September 2014). 5 Hague Convention relative to the opening of hostilities (1907) of 10 October 1907, CTS Vol. 205, 263. 6 Valery Gerasimov, in: Military-Industrial Kurier, 27 February 2013, available at http://vpk-news.ru/sites/default/files/pdf/VPK_08_476.pdf (accessed on 18 September 2014), transl. by Robert Coalson, Top Russian General Lays Bare Putin’s Plan for Ukraine, 2 Sept. 2014, Huffington Post, available at http://www.huffingtonpost.com/

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tion to it, we can easily discern President Putin’s Ukraine strategy behind these lines. Do peace and war only reflect distinct modes of combat rather than different legal régimes? But these observations are by no means limited to the new cold warriors in Moscow. It was US President George W. Bush who blurred the lines between war and peace with his “war against terror”, and it is his successor, the Nobel peace laureate, who has announced his readiness to “hunt down terrorists who threaten our country” by the use of the US Air Force regardless of whether the territory in question approved or was unwilling or unable to pursue such action – note that President Obama did not mention only “self-defence” or even “collective self-defence” but rather unspecified “threats” as justification.7 At least in the Middle East, alas, use of armed force seems to have become – again – in the (pseudo-Clausewitzian) language of the 1928 Kellogg-Briand-Pact, “an instrument of national policy”.8 _____________

robert-coalson/valery-gerasimov-putin-ukraine_b_5748480.html (accessed on 18 September 2014). I thank Heike Krieger for referring me to this text. 7 “Moreover, I have made it clear that we will hunt down terrorists who threaten our country, wherever they are. That means I will not hesitate to take action against ISIL in Syria, as well as Iraq. This is a core principle of my presidency: If you threaten America, you will find no safe haven.” Statement by the President on ISIL, 10 Sept. 2014, available at http://www.whitehouse.gov/the-press-office/2014/09/10/statement-president-isil-1 (accessed on 18 September 2014). Self-defense and the upholding of “values” are two sides of the same coin: “And our own safety, our own security, depends upon our willingness to do what it takes to defend this nation and uphold the values that we stand for.” See also Letter from the President – War Powers Resolution Regarding Syria, 23 September 2014: “In furtherance of these U.S. counterterrorism efforts, on September 22, 2014, at my direction, U.S. military forces began a series of strikes in Syria against elements of al-Qāʿida known as the Khorasan Group. These strikes are necessary to defend the United States and our partners and allies against the threat posed by these elements.” This did not, however, prevent the US from invoking self-defense in its communication with the UN Security Council, see Letter dated 23 September 2014 from the Permanent Representative of the United States of America to the United Nations addressed to the Secretary-General, S/2014/695: “ISIL and other terrorist groups in Syria are a threat not only to Iraq, but also to many other counties, including the United States and our partners in the region and beyond. States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defense, as reflected in Article 51 if the UN Charter, when, as is the case here, the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks.”. 8 General Treaty for the Renunciation of War as an Instrument of National Policy (Pact of Paris) of 27 Aug. 1928, LNTS Vol. 94, 57, entry into force 24 July 1929. For Clausewitz himself, the tendency of wars to get out of control was precisely the reason why he called for strict political control of the military so that the “continuation of politics” would not degenerate into total war, see Carl von Clausewitz, On War, trans. Michael Howard and Peter Paret, 1976, 87; see also Hugh Smith, On Clausewitz. A Study

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Thus, it is safe to say that the blurring of legal distinctions is commonplace today. And it is not only politicians or generals who are engaged in these activities, but it is apparently courts, too. In its Hassan judgment, the Grand Chamber of the European Court of Human Rights recently held that the European Convention on Human Rights could apply alongside international humanitarian law even during the active conduct of hostilities,9 but that Article 5 of the Convention regarding permissible grounds for detentions should be supplemented by or rather, in the Court's terms, „accommodated [...] with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Convention“ in international armed conflict even in the absence of a formal derogation under Article 15 of the Convention.10 After this healthy dose of legal realism, the following lines address questions of applicable law from the perspective of humanitarian law as well as general international law. As we shall see, while in practice the line between peace and armed conflict seems increasingly blurred, in theory a strict distinction must be made between the laws applicable in war, or rather armed conflict, and the general law of peace in international law; and I would argue in favour of sustaining this line if we do not wish to get into a permanent state of exception, in which the airport of Chicago or the port in Kiel constitute theatres of war as much as, alas, some regions of Pakistan, Syria, or Ukraine do. To this we have to add a further distinction, the one between occupation and conduct of hostilities, because the rules to be applied are different. And yet, it is increasingly difficult to distinguish the scope of the different legal orders “at the vanishing point of international law”, as Hersch Lauterpacht once famously put it.11 The following remarks will concentrate on the law applicable to the use of force in occupied territory as well as in “transformative occupations”, in which the occupier does not intend to re-establish the previous political régime but to comprehensively modify the interior structure of the State.

_____________

of Military and Political Ideas, 2004, 104–10. Münkler regards the theory of war, but not the control by politics, as indicative for the future – see Herfried Münkler, Clausewitz’ Theorie des Krieges, 2003, 25–6. 9 ECtHR (GC), Hassan v. UK, 29750/09, Judgment of 16 September 2014, paras. 76– 77. 10 Id., para. 104. 11 Hersch Lauterpacht, The Problem of Revision of the Law of War, BYIL 29 (1952), 360, 382.

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B. Normative Régimes Applicable to the Use of Force in Occupied Territories The use of force in occupied territories – such as the West Bank, but arguably also Gaza – constitutes a good example for the scope and the overlap of legal régimes between peace and armed conflict. Each of them has a distinct scope of application with, however, a considerable overlap in certain situations. In the following, the régimes of international humanitarian law, the law of occupation, human rights law and also the jus ad bellum are analysed. I. Application of IHL in General In principle, the application of international humanitarian law (which constitutes a part of the “laws of war”) is predicated on the existence of a situation of armed conflict in the territory in question, whereas peace includes the absence of hostilities between States and within a State, but also, in a broader view, a situation in which the State can enjoy and exercise sovereignty over its territory and population unhindered by military challenges. The state of armed conflict thus constitutes an exception to a situation of peace. The modern definition can of course be found in Common Articles 2 and 3 of the Geneva Conventions, distinguishing between an international and a non-international armed conflict. Both presuppose an “armed conflict”, either between the High Contracting Parties or, in the event of a non-international armed conflict, an armed conflict between a State party and a non-State actor, or between two non-State actors. Article 1 para. 4 of the 1977 Additional Protocol I12 added, in a controversial fashion, “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination”. It thereby blurred the factual analysis of the existence of an armed conflict with questions of legitimacy, in other words, the line between the jus in bello and the jus ad bellum. The 1977 Additional Protocol II13 has complicated things further by containing additional requirements for non-international armed conflicts to which the Protocol is applicable, namely the existence of “dissident armed forces or other organized armed groups which, under responsible command, exercise [...] control over a part of [...] territory”. For the sake of applicability of the protection of persons hors de _____________ 12 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), UNTS Vol. 1125, 3; entry into force: 7 December 1978. 13 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), UNTS Vol. 1125, 609; entry into force: 7 December 1978.

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combat as contained in Common Article 3, the Protocol cannot diminish Common Article 3, but limits itself to the conventional application of Additional Protocol II. Indeed, recent case law suggests that the control of territory is not a customary law condition for the applicability of international humanitarian law, in particular the minimum rules as contained in Article 75 AP I.14 Some have argued that the threshold of “armed conflict” in international and non-international armed conflict is different. The Criminal Tribunals, however, seem to adapt a single definition15 that has been taken up by Article 8 para. 2 lit. f of the Rome Statute for the International Criminal Court, namely the existence of an “armed conflict that takes place in the territory of a state when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups”. While the word “protracted” seems to indicate a minimum period of time for a state of armed conflict to exist, part of the case law of the Criminal Tribunals, but also the ICRC seem to suggest, following the Abella case of the InterAmerican Commission on Human Rights,16 that it simply indicates intensity. But this view comes with a heavy price tag. If we were to renounce a temporal element, we would allow the existence of an “instant war” coming out of the commission of a single terrorist or other violent act, not so different from 11 September 2001. A single act, and not a general state of armed hostilities, would thus be sufficient for changing the law to an armed conflict mode, to a permanent state of exception in which law is reduced to the “vanishing point”, to take up the formula by Hersch Lauterpacht. From a constitutional or rule of law perspective, this is very problematic, as the so-called “war on terror” amply demonstrates. If we allowed one single act to transform “peace” into “war”, armed conflict and peace would not signify different states of affairs, but could co-exist with each other on the same territory at the same time. When the police raids an airport café in which alleged terrorists and criminals are sitting, far from the theatre of any military operation, the police may arrest one as an “enemy combatant” in a war, the other as a suspect of a burglary. I understand that the ICRC and other humanitarian organisations argue for a low threshold to be able to offer their vital services to prisoners and others. But _____________ 14 See Andreas Paulus/Mindia Vashakmadze, Asymmetrical war and the notion of armed conflict – a tentative conceptualization, IRRC 91 (2009), 104. 15 Cf. ICTY (Appeals Chamber), Prosecutor v. Tadić, IT-91-1-AR72, Decision on jurisdiction of 2 October 1995, paras. 65 et seq.; ICRC, How is the Term “Armed Conflict” Defined in International Humanitarian Law?, Opinion Paper, available at https://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf (accessed on 29 July 2015). 16 IACtHR, Abella v. Argentina, Case 11.137, Report No. 55/97, OEA/Ser.L/V/II.95, doc. 7 rev. paras. 152–153.

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I would suggest allowing those visits in a pre-conflict situation rather than applying conflict law to them. There is a strong presumption of an armed conflict when two formal armies clash militarily. However, as we see currently in Ukraine, this is far more difficult to ascertain nowadays. Thus, inter-State war and non-international armed conflict are getting nearer together in practice, and while the legal regulation of the two remains quite different – full regulation for international conflicts, minimum regulation next to domestic law for non-international conflicts – rising convergence would ease some of the fine distinctions made between international conflicts, internationalised conflicts, and the difficult category of conflicts between a State and an international non-State actor that are difficult to bring in the current framework but that is arguably to be treated as “noninternational” because it does not involve two States, but rather a State and a non-State actor.17 There remain differences, though, between international armed conflicts and non-international armed conflicts, in particular with regard to the legal basis for the conduct of hostilities. While in the case of an international armed conflict, the legal basis for detention derives from international humanitarian law itself,18 the situation is different in a so-called non-international armed conflict where this legal basis can only derive from general international law, for instance Security Council resolutions, or domestic law.19 The ICRC seems however to maintain “that both customary and treaty IHL contain an inherent power to intern and may in this respect be said to provide a legal basis for internment in” non-international armed conflict.20 One wonders, however, where such a legal basis should come from. From a constitutional standpoint, police – and the armed forces – would need a clear authorisation to arrest. Such authorisation, however, is nowhere to be found in international law for non-international armed conflict.21 The ICRC opinion _____________ 17

See Paulus/Vashakmadze (note 14), 108 et seq. with further references. See Arts. 21 et seq. GC III, Arts. 41–43, 68, 78, 79 et seq. GC IV. Cf. ECtHR (GC), Hassan v. UK, 29750/09, Judgment of 16 September 2014, para. 104 with further references. 19 In this direction, in my view correctly, the English High Court of Justice, Serdar Mohammed v. Ministry of Defence and Others [2014] EWHC 1369 (QB), esp. paras. 227, 268; thanks to Matthias Lippold for referring me to this. 20 See ICRC, Internment in Armed Conflict: Basic Rules and Challenges (Opinion Paper, November 2014), available at https://www.icrc.org/en/download/file/1980/se curity-detention-position-paper-icrc-11-2014.pdf, at 7 (accessed on 25 May 2015). 21 The internment provisions are neither reproduced in common Art. 3 to the Geneva Conventions nor in Additional Protocol II dealing with non-international armed conflict, because it apparently expects such authority to be contained in domestic (police or criminal procedure) law. 18

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paper confirms rather than contradicts this view when it states: “This position is based on the fact that internment is a form of deprivation of liberty which is a common occurrence in armed conflict, not prohibited by Common Article 3, and that Additional Protocol II – which has been ratified by 167 States – refers explicitly to internment”.22 If a “common occurrence” has no legal basis, such a basis cannot be derived from the absence of a prohibition (in Common Article 3) or by a provision that regulates minimum rules for the internment itself, but does not give any authorisation for internment in the first place (Article 5 AP II). The ICRC opinion paper admits as much when it continues: “additional authority related to the grounds for internment and the process to be followed needs to be obtained, in keeping with the principle of legality.”23 This being the case, it is not international humanitarian law, but an external source such as a treaty, secondary international law such as Security Council resolutions, or internal law that authorises detention and triggers the application of Article 5 AP II and other humanitarian rules for the humane treatment of internees. II. Occupation In the law of occupation, there is an important paradox involved: while occupation presupposes, in the words of Article 2 of the Hague Regulations, “the authority of the hostile army” over territory “where such authority has been established and can be exercised”, the necessity of military force appears to indicate that such control is lacking. However, established authority and occasional use of force are not contradictory, because occupation takes place in a zone of “armed conflict”, and in such a situation the establishment of 100 per cent control appears almost impossible. The question then arises which law governs such violence. Next to the “law of occupation” as contained, in particular, in Articles 42–56 of the Hague Regulations and Articles 47–87 of Geneva Convention IV24 and the respective customary law, other legal regimes potentially applicable are the law on the conduct of hostilities, the law on the resort to military force, the jus ad bellum, and, most importantly, human rights law. We will discuss them in turn.

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ICRC opinion paper (note 20), 8. Ibid. 24 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) of 12 August 1949, UNTS Vol. 75, 287; entry into force: 21 October 1950. 23

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1. International Humanitarian Law I: Occupation Law Stricto Sensu The departing point needs to be found, almost as a matter of course, in the law of occupation itself. Article 42 of the Hague Regulations, which apply pursuant to Article 154 GC IV and customary law, provides, under the headline “Military Authority over the Territory of the Hostile State”, that “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”. Common Article 2 of the Geneva Conventions adds that “[t]he Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”.25 Once an occupied power has established itself on the territory of any State, the law of international armed conflict becomes applicable, even if the State has lost its authority to non-State groups. This is valid, for instance, for the 2003 Iraq or 2006 Lebanon wars. In the case of the Palestinian territories occupied by Israel, the International Court of Justice, in its Wall opinion, clarified that while the occupied Palestinian territory may not belong to any other State, the occupation nevertheless falls under Common Article 2 para. 1 GC because the territory was occupied in the wake of an armed conflict between High Contracting Parties, namely Israel and its neighbours.26 This finding has been widely accepted.27 With regard to Gaza, the matter is much more complicated, because there is no agreement on the question whether Israeli control of airspace and border is sufficient to establish authority under the Hague Regulations.28 _____________ 25

See Friederike Bredt, Anwendbarkeit des humanitären Völkerrechts im IsraelPalästina-Konflikt, 2009, 67 et seq.; Paulus/Vashakmadze (note 14), 113 with further references. 26 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136, 144–177 (paras. 95–101); see also Hans-Peter Gasser, Protection of the Civilian Population, in: Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 2nd ed. 2008, 275 (para. 527), with further references. 27 For the reaction by the Israeli Supreme Court see Mara’abe v. Prime Minister of Israel, HCJ 7957/04, 15 September 2005, para. 14 (noting the acceptance of the humanitarian provisions by the Government of Israel and leaving the question open); see also David Kretzmer, The Advisory Opinion: The Light Treatment of International Humanitarian Law, AJIL 99 (2005), 88, 90, with further references to the Israeli position in note 22. 28 Supreme Court of Israel, Jaber Al-Bassiouni v. Prime Minister, HCJ 9132/07, Judgment, 30 January 2008, para. 12; Yuval Shany, The Law Applicable to Non-

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It is doubtful whether occupation law is the only law applicable. If this were the case, the application of other rules, from those on the conduct of hostilities to self-defence under the jus ad bellum, would be excluded; any justification for the use of force would have to come from occupation law itself, in particular the provisions allowing for security exceptions to the obligations towards the occupied territory, such as Articles 5, 49 para. 2, 57 para. 1, 62 GC IV, and Article 43 Hague Regulations. The ICJ has opined that human rights law is applicable to occupied territories, but jus ad bellum is not – at least insofar as threats from non-State actors are involved.29 In general, occupation ends with the loss of control by the occupying power,30 which can also happen only in parts of the (formerly) occupied territory.31 It is possible to argue that either a territory is occupied, or it is in a state of ‘hot’ armed conflict so that the law on the conduct of hostilities is applicable. In an armed conflict, there is no control, and where there is control and thus occupation, there is no armed conflict.32 In a situation of continued belligerent occupation and therefore belligerency, it may be unclear whether or not sufficient authority exists for an occupation to continue. Gaza is a case in point. To adopt a strict view of the necessity of control for establishing an occupation may lead to a certain reluctance to apply occupation law – in other words, it appears to run counter to the humanitarian purpose of extending its reach. It may thus “squeeze” occupation law between the rules for the conduct of hostilities and applicable human rights law. Thus, occupation law needs a more broadly defined “trigger” than complete control. Accordingly, it should be sufficient for the establishment of “authority” if the _____________

Occupied Gaza: A Comment on Bassiouni v. Prime Minister of Israel, Hebrew University International Law Research Paper, No. 13–09, 2009, 6–8, available at http://ssrn. com/abstract=1350307 (accessed on 29 June 2015), on the one hand, and Yoram Dinstein, The International Law of Belligerent Occupation, 2009, paras. 661–678, on the other. See also, recently, ECtHR (GC), Sargsyan v. Azerbaijan, 40167/06, Judgment of 16 June 2015, paras. 94, 143–44 (“boots on the ground” necessary for occupation). 29 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136, paras. 102–113 on applicability of IHRL, para. 139: “Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State. [...] Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.”. 30 Art. 42 para. 2 Hague Regulations limits the applicability of occupation law to territory “where such authority has been established and can be exercised.”. 31 See only Dinstein (note 28), paras. 657 et seq. 32 Alexander Orakhelashvili, The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?, EJIL 19 (2008), 161, 164 (reference omitted).

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occupying power has established general control over the occupied territory (cf. Article 42 Hague Regulations). In Armed Activities in the Congo, the ICJ regarded the exclusion of the territorial State or any other authority as the main criterion for the establishment of the necessary authority of the occupier, without determining a precise degree of control.33 But this also implies that occupation and the use of military force do not necessarily exclude each other.34 The phenomenon of a “revolving door” in which control switches from day to night exemplifies such a situation: whereas a State may have perfect control of an occupied territory in daylight, it may lose such control after nightfall. As a rule, such territory will nevertheless be regarded as occupied. 2. International Humanitarian Law II: Conduct of Hostilities The applicability of occupation law thus does not exclude the emergence of an armed conflict with regard to occupied territory. For the existence of such an armed conflict, the criteria of length and intensity should be applied – although the protractedness required by the ICTY and the Rome Statute indicates that a minimum extension in time is necessary.35 While many authorities, such as the Israeli Supreme Court, hold this view,36 it is by no means a matter of course.37 In spite of the submissions of the Prosecution to the contrary, the International Criminal Tribunal for the Former Yugoslavia has held, in its Tadić Merits Appeal, that each armed conflict needs to be analysed separately, and that it is possible that an internal conflict exists _____________ 33 ICJ, Armed Activities in the Congo (Congo v. Uganda), Judgment of 19 December 2005, para. 173. 34 Similary Dinstein (note 28), para. 234; Françoise Hampson, The relationship between international humanitarian law and human rights law from the perspective of a human rights treaty body, IRRC 90 (2008), 549, 554 (note 21); cf. US Military Tribunal (Nuremberg 1948), Hostages Trial (United States of America v. List et al.), LRTWC Vol. 8, 34, 56, cited after Dinstein (note 28), para. 101. 35 Cf. Cordula Droege, Elective affinities? Human rights and humanitarian law, IRRC 90 (2008), 501, 539; Paulus/Vashakmadze (note 14), 107, 118 (explaining that the temporal element is necessary because armed conflict is a situation, not a moment, and changes the applicable legal regime). 36 Supreme Court of Israel sitting as the High Court of Justice, Targeted Killings Case, HCJ 769/02, para. 18; Physicians for Human Rights v. Israel, HCJ 201/09, IYHR 39 (2009), 406, 411 (para. 13); Antonio Cassese, International Law, 2nd ed. 2005, 420; Dinstein (note 28), para. 232. 37 See also Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine, Report of the human rights inquiry commission established pursuant to Commission resolution S-5/1 of 19 October 2000, Doc. E/CN.4/2001/121 (2001), para. 39.

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alongside an international one.38 The same conclusion seems to follow from the Nicaragua judgment of the ICJ that distinguished between an international conflict between the United States and Nicaragua, on the one hand, and a noninternational armed conflict between the Contras and Nicaragua, on the other.39 The situation in the occupied Palestinian territory complicates the matter because occupation law is applicable here as a consequence of an armed conflict (Common Article 2 para. 1 GC) and not because of the occupation of the territory of a State Party as such (Common Article 2 para. 2 GC). It does not follow from this view that every armed conflict in the Palestinian occupied territory between the occupying power and the local population amounts to an international armed conflict.40 Thus, armed conflicts within an occupied territory need to be analysed in the same way as any other armed conflict and can be either international or noninternational in character. However, in view of rising convergence of the substantive rules for international and non-international conflicts, the impact of the international or non-international character of the conflict may be limited.41 In each case, members of armed groups may only attack combatants, and civilians are not protected from attack while directly participating in hostilities. It is in keeping with the humanitarian interests of IHL to continue to apply the law of occupation towards the civilian population when armed conflict flares up in parts of the occupied territory while in conflict with armed groups, the law on the conduct of hostilities applies. This does not imply, however, that the threshold to an armed conflict is a low one.

_____________ 38

ICTY (Appeals Chamber), Prosecutor v. Tadić, IT-94-1-A, Merits, Judgment of 15 July 1999, para. 84 (cf. the views of prosecution and trial chamber, id. paras. 85–86, 88– 89). 39 ICJ, Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, 14 (para. 219). 40 For the delineation between international and non-international armed conflict cf. the discussion in Paulus/Vashakmadze (note 14), 108–119 with further references. 41 Michael N. Schmitt, Targeting and International Humanitarian Law in Afghanistan, IYHR 39 (2009), 99, 101: “[T]he IHL norms governing attacks during international armed conflicts, on one hand, and non-international armed conflicts, on the other, have become nearly indistinguishable.”; see also the submissions by the Government of Israel in Supreme Court of Israel sitting as the High Court of Justice, Targeted Killings Case, HCJ 769/02, para. 11; Yoram Dinstein, Concluding Remarks on Terrorism and Afghanistan, IYHR 39 (2009), 315, 326–327, para. 31.

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3. Self-Defence and Jus ad Bellum According to the ICJ, Article 51 UN-Ch is not applicable to threats emanating from non-State actors in occupied territories.42 It is not the place here to analyse the problem in depth.43 However, it appears that matters have not remained there. Already the UN General Assembly, while accepting the conclusions of the Court in general, reaffirmed in resolution 10/15 (2004) that all States have the right and the duty to take actions in conformity with international law and international humanitarian law to counter deadly acts of violence against their civilian population in order to protect the lives of their citizens.44

No State has ever claimed that another must stand idle and “hold the other cheek” while it is attacked by military means just because the source of that bombardment is not a State. This would hardly be compatible with the ‘natural’ or ‘inherent’ nature of the right to self-defence as contained in Article 51 UN Charter.45 It is doubtful, however, that the Court wished to exclude countermeasures against non-State threats as such. Rather the Court did not see such counter-measures as falling under Article 51 when the threat comes from nonState actors. What the Court may imply is that in so far as an occupation is firmly established, the law of occupation thus removes claims under the jus ad bellum, also with regard to acts emanating from non-State actors in occupied territories. The Court emphasises, in paragraph 139, that “Israel exercises control in the Occupied Palestinian Territory and [...] the threat which it [Israel] _____________ 42

ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136, 194 (para. 139); see also Separate Opinion Kooijmans, ICJ Reports 2004, 229–30 (para. 36, in accord with this part of the proposition), but see Separate Opinion Higgins, ICJ Reports 2004, 215 (para. 34); Declaration Buergenthal, ICJ Reports 2004, 243 (para. 6). 43 For two different viewpoints, see, e.g., Sean D. Murphy, Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?, AJIL 99 (2005), 62; Iain Scobbie, Words My Mother Never Taught Me – “In Defense of the International Court”, AJIL 99 (2005), 76. 44 General Assembly, Resolution ES-10/15 of 2 August 2004 (UN Doc. A/RES/ES10/15), preambular para. 16; see also EU Presidency Statement – The ICJ-Resolution – Explanation of Vote (20 July 2004), cited by Scobbie (note 43), 77 (note 4), explicitly endorsing the view that Art. 51 was available under the circumstances. 45 ICJ, Armed Activities on the Territory of the Congo (Congo v. Uganda), Judgment of 19 December 2005, para. 147; Separate Opinion Kooijmans, para. 28; Separate Opinion Simma, para. 11; regarding Afghanistan, see Sean D. Murphy, The International Legality of U.S. Military Cross-Border Operations From Afghanistan into Pakistan, IYHR 39 (2009), 281, 303. For critique of the ICJ position, see Yoram Dinstein, War, Aggression and Self-Defence, 5th ed. 2011, 247 (using a terminology – “extra-territorial law enforcement” – that is however open to confusion with the ‘law enforcementmodel’ of anti-terrorist activity within States).

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regards as justifying the construction of the wall originates within, and not outside, that territory”.46 In other words, its view appears similar to those who argue that occupation and active hostilities mutually exclude each other. The main authority of the occupying power to restore and ensure public safety, however, does not come from the jus ad bellum,47 but derives from Article 43 of the Hague Regulations that applies alongside Geneva Convention IV according to Article 154 GC IV and/or customary law. However, particularly in “mixed” situations in which the occupying power has given up some of its power and is then faced with an armed attack from the territory it has left, self-defence cannot be denied, regardless of its attribution to State or non-State actors. Needless to say, any response must meet the criteria for self-defence, in particular necessity and proportionality.48 Of course, the limitations of the jus in bello remain firmly in place, too, when a “protracted armed conflict” ensues. 4. Human Rights In a situation of occupation after an armed conflict, however, the International Court of Justice has clarified in its Wall opinion that human rights treaties remain perfectly applicable extraterritorially as soon as jurisdiction and control are established.49 In addition, human rights law may be applicable by way of customary international law50 that does not limit its reach to the territory _____________ 46

For a more extensive analysis, see Scobbie (note 43), 81–85. But see Murphy (note 43), 67. 48 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226, 245; ICJ, Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, 14, 94 (para. 176); for an example from the case law, see ICJ, Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, ICJ Reports 2003, 161, 198 (para. 76). 49 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136 (paras. 106–113). 50 See Dinstein (note 28), para. 166. In this vein, see also US Army Operational Handbook of 2008, Chapter 3, 39, available at http://www.au.af.mil/au/awc/awcgate /law/oplaw_hdbk.pdf (accessed on 29 June 2015); see also id., 44, denying the applicability of IHR treaties; see US Army Operational Handbook of 2013, Chapter 3, 51: “IHRL based on CIL binds all States in all circumstances, and is thus obligatory at all times”, available at http://www.loc.gov/rr/frd/Military_Law/pdf/operational-law-hand book_2013.pdf (accessed on 29 June 2015). But see the modification in US Army Operational Handbook of 2014, Chapter 3, 57–58: the Handbook distinguishes between “Customary IHRL that is considered jus cogens (‘fundamental human rights’) and customary IHRL that is not considered to be jus cogens (‘non-fundamental human rights’).” While “fundamental customary IHRL binds a State’s forces during all operations, both inside and outside the State’s territory (…) [n]on-fundamental human rights law binds 47

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or jurisdiction of a particular state, while its applicability to non-State groups remains controversial.51 In addition, human rights law may be applicable to occupied territories by way of reference in international humanitarian law or via general clauses contained therein or as part of applicable domestic law (in so far as it is not contrary to the law of occupation). In situations of belligerent occupation, both human rights law and international humanitarian law apply, in principle, cumulatively. Only in the exceptional case in which both régimes arrive at different, mutually exclusive results52 will it be necessary to decide on the basis of the usual legal principles, from the object and purpose of the two régimes to the lex specialis rule, which rule applies. In this respect, and in particular with regard to social and economic rights, one should also keep in mind that many international human rights norms contain aspirational goals for the optimisation of the enjoyment of the respective rights, whereas the law of occupation often consists of more narrow, but also ‘harder’ norms demanding respect and application without considerations of feasibility or proportionality. The main difficulty relating to the questions to be discussed concerns the relationship between international humanitarian law and human rights law, to which an easy and clear solution is difficult to come by. As Marco Sassòli has put it: “The limited body of case law is […] not really conclusive on the question as to what HRL requires from government authorities using force against fighters, but there is no clear indication that the principles applicable in peacetime do not apply.”53 However, as Sassóli himself has shown, international as well as domestic cases in which fighters (or their relatives) claim to have been wrongly attacked are hard to come by.54 Some may argue that either humanitar-

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States to the extent and under the particular circumstances those IHRL are customarily applied.”. 51 See Andrew Clapham, Human Rights Obligations of Non-State Actors, 2006, 272, 284. 52 According to Marco Sassòli/Laura M. Olson, The relationship between international humanitarian and human rights law where it matters: admissible killings and internment of fighters in non-international armed conflicts, IRRC 90 (2008), 599, 601, such conflict mainly concerns two areas: the permissibility of attacks against the members of armed groups when they do not participate in hostilities and the detention of captured members of armed groups without judicial review. Both are relevant to situations of occupation, too. 53 Marco Sassòli, The International Legal Framework for Stability Operations, IYHR 39 (2009), 177, 200–201. 54 Sassòli/Olson (note 52), 612, with further references.

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ian law or human rights always prevail in case of conflict.55 Others argue in favour of a cumulative approach.56 However, while such complementarity may be appropriate in cases where the two régimes are not contradictory, it does not provide a solution where the bodies of law diverge. Finally, and most convincingly, many authors maintain that the relationship between IHL and HRL is complex and that every case needs to be analysed ad hoc, even at the price of lack of precision and clarity. In the words of Adam Roberts, “the precise relevance of human rights law in times of foreign military occupation needs to be carefully examined in any particular instance”.57 According to Sassòli, the relationship between IHL and HRL may amount to a “sliding scale” where the “specificities of the situation” need to be taken into account.58 While this is certainly correct, such a “pick-and-choose” approach with regard to the applicable rules may blur the lines between armed conflict, occupation and peacetime. It seems to me that it is preferable to keep the régimes distinct as far as possible, while taking account of their mutual influence on each other. The recent Hassan judgment of the European Court of Human Rights provides, in my view, a good example of how this process of mutual “give and take” can work. While the Court explicitly recognised the parallel applicability of both the European Convention on Human Rights and the law of occupation and could not find authority for long-term arrest in Article 5 of the European Convention, the Court considered “that there are important differences of context and purpose between arrests carried out during peacetime and the arrest of a combatant in the course of an armed conflict”. But since “combatants detained as prisoners of war … [enjoyed] combatant privilege, allowing them to participate in hostilities without incurring criminal sanctions, it would not be appropriate for the Court to hold that this form of detention falls within the scope of Article 5 § 1 (c) of the Convention”.59 Rather, the Court maintained that “[b]y reason of the co-existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision should be accommodated, as far as possible, with the taking of pris_____________ 55 Cf. Hampson (note 34), 559–561; Dinstein (note 28), para. 690; see also Danio Campanelli, The law of military occupation put to the test of human rights law, IRRC 90 (2008), 653, 656. 56 Gloria Gaggioli/Robert Kolb, A Right to Life in Armed Conflicts? The Contribution of the European Court of Human Rights, IYHR 37 (2007), 115, 163. 57 Adam Roberts, Transformative military occupation: Applying the laws of war and human rights, AJIL 100 (2006), 580, 599; similarly Sassòli (note 53), 204–206. 58 Sassòli (note 53), 206. 59 ECtHR (GC), Hassan v. UK, 29750/09, Judgment of 16 September 2014, para. 97.

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oners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions”.60 The Court thus accepted the prevalence of humanitarian law regarding the lawful depravation of liberty in armed conflict, as long as the purposes of human rights law are maintained, namely the protection from arbitrariness.61 Thus, the observance of the periodical review foreseen by Articles 43 and 78 of the Fourth Geneva Convention was also mandatory under the European Convention. In addition, the Convention required that the “competent body” prescribed by the Geneva Convention should, as an additional condition of the European Convention, “provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness” and this review should take place “shortly after the person [was] taken into detention.”62 In the end, such an approach might better accomplish the effective protection of human rights than a judgment that applied Article 5 ECHR without any qualification.63 Thus, the application of human rights law must take into account the specificities of occupation and armed conflict. This includes also those human rights that require a more long-term approach, such as social, economic and cultural rights.64 Where international humanitarian law contains a more specific obligation, it has to be applied also as a requirement of human rights law (see, e.g., Article 4 para. 3 lit. a AP II, on the rights of children, or Article 55 GC IV on the provision of food and medical supplies). Where an occupation is brief, social rights must be realised to the fullest extent possible while taking account of the realities of the battleground and the occupation.65 Where occupation lasts longer, as in the territories occupied by Israel, the occupying State is under the same obligations to fully realise the social, economic and cultural rights of the population. What we find here is an application of the principle of “systemic integration” foreseen by Article 31 para. 3 lit. c of the Vienna Convention on the Law of

_____________ 60

Ibid., para. 104. Ibid., para. 105. 62 Ibid., para. 106. 63 Cf. Angelika Nußberger, The Concept of ‘Jurisdiction’ in the Jurisprudence of the European Court of Human Rights, Current Legal Problems 65 (2012), 214, 254: “If the Court were to interpret its jurisdiction in a way not accepted by the Member States, it would risk that the relevant judgments remain on paper and are not implemented.”. 64 See Art. 2, para. 1 ICESCR (International Covenant on Economic, Social and Cultural Rights of 16 December 1966, UNTS Vol. 993, 3). 65 Cf. Gilles Giacca, Economic, Social, And Cultural Rights in Armed Conflict, 2014, esp. 172–229, 273–275. 61

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Treaties66 to bring different international legal regimes in harmony with each other.

C. “Transformative Occupation” and the Role of UN Forces Originally, occupation law was predicated on the assumption that its goal would be the re-establishment of the status quo ante to allow the legitimate holder of territorial title to again exercise its sovereignty after the period of occupation. In other words, occupation freezes the laws of the occupied territory. One example is South Tyrol after occupation and before annexation by Italy in 1919. Today, we are increasingly faced with situations of “occupation“ by UN Forces or “coalitions of the willing” who aim at the establishment of a new democratic regime, or, in the case of Palestine, with an occupation lasting for almost fifty years – with no end in sight. Attempts to establish a “special regime” of “transformative occupation” have to be rejected, however.67 Rather, occupation can only lead to changes in the occupied territories when these changes are justified by the application of international law such as human rights, either by way of incorporation in applicable domestic law or by way of extraterritorial application with regard to the occupying power. An additional possibility for a justification of modifications of local laws consists of other rules of international law that are also applicable during occupation, such as the right to self-determination which may amount to a right of the domestic population to democratically introduce changes to domestic law by autonomous decision-making subject to security arrangements with the occupying power; or by SC resolution.68 Whether the resolutions adopted by

_____________ 66 Vienna Convention on the Law of Treaties of 23 May 1969, UNTS Vol. 1155, 31, entry into force: 27 January 1980; see ECtHR (GC), Hassan v. UK, 29750/09, Judgment of 16 September 2014, para. 102; see also the fragmentation report edited by the International Law Commission, Report on the work of its fifty-eighth session (1 May to 9 June and 3 July to 11 August 2006), UN Doc. A/61/10, 413 et seq. 67 Cf., with a similar result, Roberts (note 57), 580 et seq. 68 In its Advisory Opinion on the Declaration of Independence of Kosovo, the International Court of Justice did not consider it necessary to discuss the applicability and effects of the right to self-determination: ICJ, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, 403, 438 (paras. 82–83).

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the UN Security Council on the occupation of Iraq69 amounted to such authorisation would require an analysis in detail that cannot be undertaken here. The UN has yet to formally endorse the applicability of human rights to its actions similar to its acceptance of international humanitarian law.70 The refusal to do so amounts to a failure to live up to the purposes and principles of the Charter, as contained in Article 1 para. 3 of the Charter, that are binding also on the SC by way of Articles 24 and 25 UN-Ch. While UN Forces are no occupying power and rarely act in support of one, often humanitarian law is applied rather than human rights because the latter is considered too burdensome and too imprecise, while humanitarian law is a known quantity and part of military training. Nevertheless, these practical considerations do not relieve the United Nations from respecting and protecting applicable human rights. The Behrami judgment71 of the European Court of Human Rights has led to – and shown – an unfortunate lack of legal or judicial control of peace-keeping forces. Review boards and similar mechanisms in international organisations thus need to be strengthened and judicialised to effectively protect human rights. It is time that promises to this effect are implemented.72 Contributing States should at least be held liable for crimes committed by their troops as far as they are not fully placed under UN command.

_____________ 69 See Security Council, Resolution 1483 of 22 May 2003 (UN Doc. S/RES/1483); Resolution 1500 of 14 August 2003 (UN Doc. S/RES/1500); Resolution 1511 of 16 October 2003 (UN Doc. S/RES/1511). 70 See Secretary-General Kofi Annan, Bulletin on Observance by United Nations Forces of International Humanitarian Law, UN Doc. ST/SBG/1999/13 (1999), ILM 38 (1999) 1656–9. 71 ECtHR (GC), Behrami v. France and Saramati v. France, Norway and Germany, 71412/01 & 78166/01, Decision of 2 May 2007; but see ECtHR (GC), Al-Jedda v. UK, 27021/08, Judgment of 7 July 2011, paras. 74 et seq. 72 Art. VIII section 29 of the Convention on the Privileges and Immunities of the United Nations of 13 February 1946, UNTS Vol. 1, 15; GA, UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law of 16 December 2005 (UN Doc. A/RES/60/147); cf. also Agreement on the status of the UN Protection Force in Bosnia and Herzegovina of 15 May 1993, UNTS Vol. 1722, 77, Art. 48, promising a claims commission that has never been set up; see also ECtHR, Stichting Mothers of Srebrenica and others v. the Netherlands, 65542/12, Judgment of 11 June 2013, paras. 163, 165.

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D. Conclusions: The Interaction of International Humanitarian and Human Rights Law Contemporary conflicts may resist a clear delimitation of situations of armed conflict and peace, conduct of hostilities and occupation. Nevertheless, a threshold between the application of ordinary law and exceptional situations of hostilities must be drawn so that the law does not exacerbate states of exception in which the regular human rights protections give way to a conflict régime that international humanitarian law can only tame but not replace. In the so-called “war on terror”, the blurring of the lines between peace and war has removed the most basic protections of human rights. In the Ukraine, we have seen that what started with a campaign of infiltration has ended in a fullblown civil war. In Gaza, a half-baked withdrawal from occupation has led to an endless cycle of violence, in which the law of occupation has given way time of again to renewed hostilities. While, as Adam Roberts suggested, “the law of occupation remains both viable and useful, and has proved reasonably flexible in practice”,73 it is torn between the relative clarity of humanitarian law and the broader promise of human rights law. Effective control and a well-functioning law enforcement regime exclude the applicability of norms on the use of force, whether under the jus ad bellum or under the law on the conduct of hostilities. However, the moment when effectiveness wanes, an armed attack occurs, and armed conflict is renewed, those two branches of law may again intervene. In addition, the occupying power is obliged to apply human rights law, but this law needs to take account of the degree of control in the application of the proportionality principle and of the relativity of the optimisation clauses in some human rights treaties. In general, human rights law will not be suspended, but superseded by the law of occupation. In case and as long as humanitarian law is applicable, human rights standards will inform the application of international humanitarian law and may even provide judicial control where it used to be absent. As the Hassan judgment74 convincingly demonstrates, both instruments may well complement each other. Thus, in the era of proliferation of international law, the main contemporary problem seems not to lie in the “vanishing” of law, but rather in its multiplication which has led to its evasion – in other words, our present predicament is not so different from the inability of the world powers to abide by the Hague Conventions. To follow in Schücking’s footsteps thus remains as important a mission as ever. _____________ 73 74

Roberts (note 57), 580. ECtHR (GC), Hassan v. UK, 29750/09, Judgment of 16 Sept. 2014.

Private Military and Security Companies: A Transnational Legal Approach By Math Noortmann and Ioannis Chapsos

A. Introduction When we had need of skilled soldiers to separate fighters from refugees in the Rwandan refugee camps in Goma, I even considered the possibility of engaging a private firm. But the world may not be ready to privatize peace. (Kofi Annan, 1998)1

Is the world ready in 2015? This is the question we seek to answer in this chapter. The contemporary academic and societal discourse on Private Military and Security Companies (PMSCs) is at least ambiguous. The idea of the “privatisation of war” still meets with substantial and uncompromising critique2 and scepticism towards PMSCs still abounds.3 Critique and scepticism, however, are also increasingly questioned and countered, and there seems to be room for a wider discussion on the role of PMSCs in global security governance and the manner in which private responsibility and public accountability relate.4 _____________ 1 Kofi Annan, Secretary-General Reflects on “Intervention” in 35th Annual Ditchley Foundation Lecture, Press Release of 26 June 1998 (SG/SM/6613). 2 Ian Traynor, The privatisation of war, The Guardian of 10 December 2003. See also Bjørn Møller, Privatisation of Conflict, Security and War (DIIS Working Paper, 2005); Jakkie Cilliers/Richard Cornwell, From the Privatisation of Security to the Privatisation of War, in: Jakkie Cilliers/Richard Cornwell (eds.), Africa – Peace, Profit or Plunder? The Privaisation of War-Torn African Societies, 1999. 3 Ian Douglas, Fighting for diamonds-Private military companies in Sierra Leone, in: Cilliers/Cornwell (note 2); Mark Fulloon, Private military companies: The new condottieri, Social Alternatives 32 (2013), 49. 4 Simon Chesterman/Chia Lehnardt (eds.), From mercenaries to markets: the rise and regulation of private military companies, 2007; Surabhi Ranganathan, Constructive Constraints? Conceptual and Practical Challenges to Regulating Private Military and Security Companies, in: Cedric Ryngaert/Math Noortmann (eds.), Human Security and International Law: the Challenge of Non-State Actors, 2014; Anna Leander, The Power to Construct International Security: On the Significance of Private Military Companies, MJIS 33 (2005), 803; Philip Utesch, Private Military Companies, Die zukünftigen Peacekeeper, Peace Enforcer?, 2014.

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Post-cold-war armed conflicts in Europe, Africa, and Asia definitely created new (market) opportunities for companies operating in the so-called military and security service industry. As soon as their activities became more known in the mid-1990s, journalists, academics, and politicians started to investigate and report on PMSC actions. The debate that emerged was profoundly fuelled and guided by a number of incidents and political scandals involving private military companies and the unambiguous images of (heavily) armed and combat dressed PMSC units that started to emerge on the Internet.5 Within the international law episteme, the critical approach likewise prevailed. Grounded in the unmistakable normative (dis)qualification of “mercenaries”, the international legal debate did not come to grips with the overt corporatisation of military operations and the privatisation of security until the beginning of the 21st century. At the time that the United Nations started to look into these “new forms of mercenary activities”,6 governments in States like the United Kingdom and Germany were discussing the prospects of regulating private military companies.7 And last but not least, the sector began to develop robust self-regulating initiatives.8 International legal scholars have generally responded to those latter initiatives with suspicion, focusing on “hard” (inter)national regulation in terms of accountability and enforcement schemes.9 The regulatory initiatives that emerge in the sector are generally frowned upon. It is the purpose of this chapter to reflect on the purpose of those initiatives and to question the special understanding of law as being solely national or international as well as a panacea _____________ 5 For accounts of these incidents see generally: Peter Singer, Corporate Warriors: the rise of the privatized military industry, 2008; Stephen Armstrong, War PLC: the rise of the new corporate mercenary, 2008; Jeremy Scahill, Blackwater: The rise of the world’s most powerful mercenary army, 2007; or type “military companies” as a search term in an internet browser and select “images”. 6 See e.g. the subsequent UN Reports of the Meeting of Experts, the Special Rapporteur and the Working group on Traditional and New Forms of Mercenary Activities as Means of Violating Human Rights and Impeding the Exercise of the Rights of Peoples to Self-Determination. The titles of this activity reflect the bias towards “mercenaries” and the focus on violations of international law. 7 For an overview see Chesterman/Lehnardt (note 4), 258–259. 8 See e.g. the 2010 International Code of Conduct for Private Security Service Providers, available at http://www.icocpsp.org/uploads/international_code_of_conduct_Fi nal_without_Company_Names.pdf (accessed on 4 March 2015). 9 See e.g. Andrew Clapham, Human Rights Obligations of Non-State Actors, 2006, 266; Eric De Brabandere, Human Rights and Transnational Corporations: The Limits of Direct Corporate Responsibility, HRILD 4 (2010), 66; Noemi Gal-Or/Cedric Ryngaert/ Math Noortmann (eds.), Responsibilities of the non-state actor in armed conflict and the market place, 2015.

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to violations and abuse of (inter)national human security.10 Math Noortmann has argued elsewhere that transnational law constitutes a third independent legal arena, with its own private regulatory and enforcement mechanisms, that requires proper recognition.11 The State cannot at the same time outsource and privatise tasks that many consider to be public ones, while at the same time maintaining absolute legal control over the private sphere. The transnational roles and tasks of private military and security companies are changing to reflect the changing global security environment. There is little doubt that national and international regulation is not designed to respond to those 21st century challenges and that the transnational gap between accountability and responsibility is growing.12 In this chapter, we will argue that the development of bottom-up transnational social responsibilities within the business sector constitutes a robust and workable alternative to the concept of legal accountability. First, we will provide an overview of the debates and policy initiatives on private military and security corporations in order to establish the discursive legal and political context. Secondly, we will discuss the concept of transnational law as it developed since Phillip Jessup popularised the idea 60 years ago.13 We will juxtapose the concept of a transnational legal space with the _____________ 10

Math Noortmann, Human Security, International Law and Non-State Actors: Bringing Complexity Back In, in: Cedric Ryngaert/Math Noortmann (eds.), Human Security and International Law: The challenge of non-state actors, 2014. 11 Math Noortmann, Transnational Law: Philip Jessup’s legacy and beyond, in: Math Noortmann/Cedric Ryngaert/August Reinisch (eds.), Handbook on Non-State Actiors in International Law, 2015 (forthcoming); Math Noortmann, Understanding Non-State Actors in the Contemporary World Society: Transcending the International, Main streaming the Transnational. Or Bringing the Participants Back In?, in: Math Noort mann/Cedric Ryngaert (eds.), Non-State Actor Dynamics in International Law: from law-takers to law-makers, 2010; Math Noortmann, Aufständische Gruppen und Private Militärunternehmen – Theoretische und praktische Überlegungen zur Position be waffneter nicht-staatlicher Akteure im Humanitären Völkerrecht, in: Hans-Joachim Heintze/Knut Ipsen (eds.), Heutige bewaffnete Konflikte als Herausforderungen an das humanitäre Völkerrecht, 2011. 12 See generally: Noëlle N. R. Quénivet/Shilan Shah-Davis, International law and armed conflict: challenges in the 21st century, 2010; John Hatchard/Amanda PerryKessaris (eds.), Law and Development: Facing Complexity in the 21st Century, 2003; Richard H. Cooper/Juliette Voïnov Kohler, The responsibility to protect: the global moral compact for the 21st Century, 2008; Gareth J. Evans, The responsibility to protect: ending mass atrocity crimes once and for all, 2008; Thomas George Weiss, Humanitarian intervention: ideas in action, 2007. 13 Philip C. Jessup, Transnational Law, 1956. See also Christian Tietje/Alan Brouder/Karsten Nowrot (eds.), Philip C. Jessup’s transnational law revisited on the occasion of the 50th anniversary of its publication, 2006; Wolfgang Friedmann et al.

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Benthamian conception of law14 being either national or international and argue that PMSCs are operating in a transnational business and security environment. Thirdly, we will set out and examine the diversity of roles of the private military and security companies in order to map roles and activities against possible responsibility and accountability schemes. Fourthly, the concepts of international and transnational responsibility and accountability are reviewed in order to identify the linkages between international and transnational regulation, and determine areas of overlap and the need for clarification. Finally, we will formulate some conclusions and suggestions for understanding initiatives within the sector from a transnational legal perspective. The authors of this chapter have no difficulty in assuming that PMSCs are here to stay and contending that it is time to accommodate their transnational appearance. In doing so it is necessary to understand that corporate responsibility and public accountability are two sides of the same coin. The development of adequate 21st century responsibility and accountability schemes cannot be done without a substantial reflection on and (re)consideration of the “international” in our global legal system. In doing so, we can no longer neglect the possible task of PMSCs’ role in transnational law enforcement and the maintenance of peace and security in different regions in the world.

B. The PMSC Discourse in International Law: Normativity is the Norm [T]he term mercenary will continue to be applied to express the speaker’s disapproval. (Andrew Clapham, 2006)15

In the mid-1990s, operations of PMSCs started to come to the attention of the public international law scholar and the wider public. The normative (dis)qualifications almost immediately became an integral part of the academic and societal discourse. Labels like the “new dog of war”16 and the (new) “mer_____________

(eds.), Transnational law in a changing society; essays in honor of Philip C. Jessup, 1972. 14 Jeremy Bentham, An introduction to the principles and morals of legislation, 1781. 15 Andrew Clapham referring to “Private Security Firms”, see Andrew Clapham, Human rights obligations of non-state actors in conflict situations, IRRC 88 (2006), 513. 16 Juan Carlos Zarate, Emergence of a New Dog of War: Private International Security Companies, International Law and the New World Disorder, SJIL 34 (1998), 75.

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cenary”17 reflected the normative scepticism in our discipline. Critical scholarship and non-governmental organisations mistrusted the neo-liberal privatisation of security, international humanitarian law and human rights scholars suspected violations of the specific rights of non-combatants and general human rights.18 While the involvement of Military Professional Resources Incorporated (MPRI) in supporting Croatia had largely gone unnoticed, the participation of Executive Outcomes (EO) in Sierra Leone and Sandline International (SI) in Papua New Guinea caused major national and international havoc. PMSCs became first and foremost Private Military Companies (PMCs) in the eyes of the public, of academic commentators, and of national and international policy makers. The release of so-called “trophy videos”,19 the involvement of contractors in the Abu Graib incident,20 and the al-Nisoor Square killings further fuelled the discussion on PMCs, and the negative image continued to prevail in many publications. The labelling of these companies as “private military companies” rather than “private security companies” is a political one and the characterisation of its personnel as “mercenaries”, “warriors” or “hired guns” has an obvious political purpose; it stresses the military or combat role over the security role. The sector, however, stresses the security service that they provide.21 When asked about the distinction “between military activities and activities carried out by military companies”, Andrew Bearpark, the Director General of the British Association of Private Security Companies, replied as follows:

_____________ 17

Simon Chesterman/Chia Lehnardt, Introduction, in: Chesterman/Lehnardt (note 4). Lindsay Cameron, Private Military Companies: their status under international humanitarian law and its impact on their regulation, IRRC 88 (2006), 573; Louise Doswald-Beck, Private Military Companies under International Humanitarian Law, in: Chesterman/Lehnardt (note 4). 19 See, for example, YouTube video “contractor in action”: https://video.search.ya hoo.com/video/play;_ylt=A2KLqIJx8vZUYncAaAn7w8QF;_ylu=X3oDMTBzc2M2Mjd yBHNlYwNzcgRzbGsDdmlkBHZ0aWQDBGdwb3MDMTE-?p=military+companies&v id=b9e318409b7c15a567af87473a261150&l=00%3A54&turl=http%3A%2F%2Fts1.mm. bing.net%2Fth%3Fid%3DVN.608011728573303548%26pid%3D15.1&rurl=https%3A% 2F%2Fwww.youtube.com%2Fwatch%3Fv%3DharZGVeHCkw&tit=contractor+in+actio n&c=10&sigr=11b1m5b3v&sigt=10kg41008&sigi=11rvett3k&age=1246736432&fr2=p %3As%2Cv%3Av&fr=aaplw&tt=b. 20 See e.g. CorpWatch, Private Contractors and Torture at Abu Ghraib, Iraq, available at http://www.corpwatch.org/article.php?id=10828 (accessed on 4 May 2015). 21 As in: The International Code of Conduct for Private Security Service providers; The British Association of Private Security Companies. 18

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In the UK, we refer to private security companies rather than private military companies. It better expresses the wide range of services companies are offering, but it also obviously has to do with the cultural reservations with the term private military companies, which may imply that services at the front lines of the conflicts are included.22

The sectors sensitivity with the labelling of its industry is understandable given the prevailing normative bias. Only a handful of articles seem to make the specific distinction between security services and military services and appreciate the possibility of the industry playing a role in international and transnational security and enforcing, keeping and building peace.23 The apparent normative bias neither contributes to a better understanding of the sector and its role in transnational security governance, nor to the facilitation of a private-public dialogue that intends to overcome entrenched perspectives.

C. PMSCs Beyond the Law Inter Nations, or the Ordering of a New Transnational Security Space The contradictions posed by PMCs (maintaining or disturbing peace, protecting or violating human rights, facilitating or hindering development, bolstering or destabilizing states) and government preferences (private efficiency or public accountability, and regulation or free enterprise) are yet to be fully reconciled. (Stephen Tully, 2007)24

When Jeremy Bentham coined the term “international” in his Introduction to the Principles of Morals and Legislation more than two centuries ago he probably did not realise that he would both shape and smudge our discourse well into the cyber age. Bentham was very clear: “[t]he word international, […] is a new one; […] It is calculated to express, in a more significant way, the branch of law which goes commonly under the name of the law of nations”.25

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Toni Pfanner, Interview with Andrew Bearpark, IRRC 88 (2006), 449. See e.g. Oldrich Bures, Private military companies: A second best peacekeeping option? International Peacekeeping 12 (2005), 533; Leander (note 4); Utesch (note 4); Noortmann (note 11). 24 Stephen Tully, Corporations and International Lawmaking, 2007, 221. 25 One could argue that Bentham has interpreted the preposition “of” in “the law of nations” as a preposition of belonging rather than as a preposition of identity. 23

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Rather than considering international law to be the law of nations, Bentham considered it to regulate “matters betwixt nation and nation”.26 Bentham’s nation-State had completed a centrifugal political process that was inaugurated at the 1648 Westphalian peace conferences and which had lead to the monopolisation of the authority to legislate, adjudicate and enforce. By the end of the 18th century, the (Westphalian) nation-State had accumulated enough public regulatory authority – at the expense of non-State institutions and arrangements – that Bentham could comfortably conclude that all law was basically national or international. The State’s monopolisation of authority is also evident in the changed concept of territorial and national security. By the end of the Napoleonic Wars, contracted forces had been replaced by large standing armies; the State had become a “nation at arms”.27 The Imperial German Bodyguard that protected Julius Caesar in battle, the Order of Saint John of Jerusalem which safeguarded pilgrimage routes, the famous Italian “Condottiere” offering their contracted services to different warring Italian cities, and the British and Dutch East-India Companies that secured colonies and sea routes became historical examples of pre-18th century private military and security initiatives. What we are witnessing, according to some authors, is a revival of contracted military and security services; therefore “in the future we should not expect that organized violence would only be located in the public realm”.28 That shifting and smudging of the public-private border has become a recurring theme in our post-World War II academic discourses, which has led American international legal scholars to question Bentham’s State-centred world-view. The increasing appearance of actors other than States such as national liberation movements, international governmental and non-governmental organisations, and multinational corporations led scholars like Myres McDougal, Henry Steiner and Alfred Chayes29 to question the States’ prerogative of participation in international law. But it was Philip Jessup’s seminal Transna_____________ 26

In a footnote, Bentham refers to Henri François d’Aguesseau as having stated that: “what is commonly called droit des gens, ought rather to be termed droit entre les gens”, Bentham (note 14). 27 Only the Swiss Guard is a remainder of The British Ghurka Brigade and the French Légion étrangère are structurally incorporated in the respective national armies and are not considered to be hired forces. 28 Singer (note 5), 39. 29 Henry J. Steiner, Transnational Legal Problems, 1986; Myres S McDougal et al., The World Constitutive Process of Authoritative Decision, JLE 19 (1966), 253; Abraham Chayes et al., The International Legal Process: Materials for an Introductory Course, 1967.

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tional Law that questioned Bentham’s national/international dichotomy and suggested the existence of a third legal space. Jessup was right: [T]he term “international” is misleading since it suggests that one is concerned only with the relations of one nation (or state) to other nations (or states). Part of the difficulty in analyzing the problems of the world community and the law regulating them is the lack of an appropriate term for the rules we are discussing. Just as the term “international” is inadequate to describe the problem, so the term “international law” will not do.30

Unfortunately, however, Jessup conceptualised transnational law as an all encompassing legal space in that it: Include[s] all law, which regulates actions or events that transcend national frontiers. Both public and private international law are included as are other rules, which do not wholly fit into such standard categories.31

Since Jessup’s inaugural use of “transnational law” the term has taken many conceptual turns of which Harold Koh’s Transnational Legal Process (TLP) and Peer Zumbansen et al.’s understanding of transnational law as being a new lex mercatoria are perhaps the most articulate. Like Jessup, however, both approaches are either too inclusive or too exclusive. Koh’s transnational law is a set of “ultimately internalize[d] rules” as a result of institutional interaction between “public and private actors”.32 This inclusiveness of all actors prevents transnational law from being a third legal realm that functions as a regulatory system for non-State actors. The new lex mercatoria concept of transnational law, on the other hand, excludes non-State actors that are not “private economic actors”.33 The transnational legal problematic is well reflected in the Sandline case, which led to parliamentary questions and governmental investigations as well as arbitral and judicial proceedings across the globe. In January 1997, Papua New Guinea (PNG) and Sandline International concluded an Agreement for the Provision of Military Assistance.34 The 36 million _____________ 30

Jessup (note 13), 1. Jessup (note 13), 2. 32 Harold Hongju Koh, Transnational Legal Process, NLR 75 (1996), 184. 33 Christian Tietje/Alan Brouder/Karsten Nowrot (note 13), 20; see also Ursula Stein, Lex mercatoria: Realität und Theorie, 1995; Carrie Menkel-Meadow, Why and How to Study Transnational Law, Irv. LR 1 (2011), 97; Klaus Peter Berger, The creeping codification of the new lex mercatoria, 2010; Peer Zumbansen, Transnational law, Encyclopedia of Comparative Law, 2006. 34 Agreement for the Provision of Military Assistance dated this 31 day of January 1997 between the Independent State of Papua New Guinea and Sandline International. The contract is reproduced in Singer (note 5), 263–272; see also http://www.private military.de/pooldoc/documentssandline-png.pdf (accessed on 28 January 2015). 31

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USD contract sets out in detail what the obligations of the parties are and in particular the “manpower, equipment and services” Sandline is required to provide. The agreement’s preamble leaves little doubt as to the task of Sandline “to support [PNG’s] Armed Forces in the protection of its Sovereign territory and regain control over important national assets, specifically the Panguna mine”.35 Due to the “sensitive nature of this agreement” the parties agreed to first resolve any dispute “amicably” before referring “the matter to arbitration in conformity with UNCITRAL rules”.36 The contract itself is subjected to the laws of England and there is no indication that it violates these laws. What we have so far is a perfectly valid contract that can be subjected to arbitration. Whether the parties are restricted from entering into such a contract depends on a separate set of obligations they hold under national, international, or possibly transnational arrangements.37 Depending on the legal perspective, it can be presented as a question of public international law concerning State responsibility and self-determination, as well as a question of international private law concerning internationalised contracts and commercial arbitration, and a question of emerging transnational law involving private regulation, codes of conduct and social corporate responsibility.38

_____________ 35

Ibid. Ibid. 37 It is to be noted here that the 1997 agreement between Papua New Guinea and Sandline International has been considered to have “had questionable legality, since it was signed without parliamentary approval”, Singer (note 5), 195. That legal argument would only be valid if Sandline had or should have known that parliamentary approval was legally required. Under the Vienna Convention on the Law of Treaties, “a State may not invoke the fact that its consent to be bound by the treaty has been expressed in violation of a provision of its internal law, unless that violation was manifest […]”. See also Anthony Aust, Modern Treaty Practice, 2000. We submit that states may also not invoke that fact vis-à-vis companies. For the responsibility of PNG with respect to the (legal) status of SI personnel, see hereunder section F. 38 See hereunder section F. 36

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D. PMSCs’ Roles: The Complexity of Diversification He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation. (US Declaration of Independence)39

Whether the Hessians fighting on behalf of Great Britain in the American revolutionary wars could technically be called “mercenaries” is questionable. It is rather the negative connotation of the term and its normative power that makes it so “usable” in politico-legal narrative. In reviewing contemporary literature on PMSCs, it is impossible to avoid the term “mercenaries” for very much the same reason. By using the term “mercenaries” one stresses the offensive side of PMSCs, them fighting for the wrong cause, and on the wrong side. As stated above, the use of mercenaries had been virtually abandoned by the end of the 18th Century, which coincided with the maturing of the nation State. During and after the period of decolonisation, however, the mercenary reemerged, in particular in conflicts on the African continent, and the international community reacted in its typical abstruse and belated manner. In 1977, Article 47 of Additional Protocol I to the Geneva Conventions relating to the Protection of Victims of International Conflict and the Organisation of African Unity’s Convention on the Elimination of Mercenarism in Africa dealt with the legal status of mercenaries. The United Nations entered the debate in 1987 with the appointment of a Special Rapporteur to examine the question of the use of mercenaries as a means of violating human rights and of impeding the exercise of the right of peoples to self-determination.40 Two years later, in 1989, The UN General Assembly adopted the International Convention against the Recruitment, Use, Financing, and Training of Mercenaries, which entered into force in 2001.41 In that same year, a Meeting of Experts on Traditional and New Forms of Mercenary Activities as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self Determination was inaugurated, and in 1985 a Working Group with the same name succeeded in the work of the Special Rapporteur. To the extent that these initiatives have aimed at the outlawing of the mercenary, their effect is questionable. First of all, “mercenarism” is an outdated _____________ 39 United States Declaration of Independence of 4 July 1776, available at http://www. archives.gov/exhibits/charters/declaration_transcript.html (accessed on 1 March 2015). 40 See Economic and Social Council, Resolution of 23 May 1986 (UN Doc. 1986/43). 41 General Assembly, Resolution of 4 December 1989 (UN Doc. A/RES/44/34).

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normative concept that only has incidental relevance in the 21st century. Secondly, the “legal” approach is wholly political, very much like the international community’s engagement with terrorism; definitions do not add up, fragmentation is widespread and the normative complexity that is reflected in that confusion is covered in international legal righteousness. But what is more: mercenaries are not PMSCs and PMSCs are not mercenaries.42 Mercenaries are incidental to contemporary international relations, international politics and law; reminders of a historical past, notwithstanding some preoccupation with the phenomenon in our literature. Institutionally, mercenaries are ad hoc and unorganised, outlawed in every sense of the word. Private Military Companies and Private Security Companies are none of the above. PMSCs are on the rise and here to stay, firmly and legally incorporated and organised into departments and holdings that represent an extremely diverse area of services. Focusing on the military service of PMSCs betrays that diversity. The question, however, is whether we can make a clear distinction between military services and security services, and or whether that distinction is relevant for further investigations and understanding the sector’s private responsibility and the demand for public accountability. Several criteria for distinguishing between military and security services have been proposed, without achieving the status of general acceptance. Peter Singer identifies four main different criteria for distinctions in use within the sector and amongst firms: (1) active/passive, (2) armed/unarmed, (3) offense/defense (theory) and (4) military/security.43 He discards these criteria as being “conceptually interchangeable” and ultimately considers these “monikers [as] really normative determinations”.44 He holds that “the categorization typically degenerates into a biased way of distinguishing the “good” passive [defensive] private security firms from the “bad” active [offensive] private military firm”.45 Whether or not cognisant of that particular normative bias, (international) law and policy makers are generally in need for distinctive definitions that can be applied in their practices. Those definitions often serve a (hidden) political purpose and are hardly neutral. Simon Chesterman and Chia Lehnardt adhere to the “military” and “security” distinction, taking the “stability” of the opera_____________ 42 Kevin A. O’Brien, What should and what should not be regulated?, in: Chesterman/ Lehnardt (note 4), 3; Singer (note 5), 40–48; for a non-discriminatory understanding of “mercenaries, PMC/PSC” see Ulrich Schneckener, Fragile Statehood, Armed Non-State Actors and Security Governance, in: Alan Bryden/Marina Caparini (eds.), Private Actors and Security Governance, 2007. 43 Singer (note 5), 88–91. 44 Singer (note 5), 90. 45 Ibid.

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tional space as a determining criteria. PMCs, according to Chesterman and Lehnardt, “provid[e] services outside their home states [and] operat[e] in conflict zones in a military environment”.46 PSCs, on the other hand – they argue – “primarily guard premises in a stable environment”.47 Chesterman and Lehnardt recognise at the same time the “difficulty of distinguishing between offensive and defensive operations,” and “the potential for use of lethal force, as well as training of and advice to militaries that substantially affects their war-fighting capabilities”.48 In that statement, the authors perfectly voice our problem. “Using lethal force”, “training” and “advice” are three rather distinctive activities that can – in different ways – affect fighting capabilities, whether defensive or offensive, and the political and military relations based thereon. “Offensive fighting”, “training” and “advising” are just three of the many services PMSCs provide. How do we determine the impact of these services on the alteration or outcome of the conflict? To what extent is the outcome legally relevant, i.e. how is the conflict classified in terms of international law in the first place? How do we appreciate the other services these companies provide in the context of potentially altering conflicts: logistics, hospitality management, intelligence gathering, and brokering? Should we differentiate on the basis of the industry’s clientele? May non-governmental organisations like the Red Cross charter security; may oil companies outsource the protection of their installations, may shipping companies organise the defence of their ships against pirates privately, and may the United Nations subcontract the business of supplying peacekeeping operations? Are States and armed non-State actors the only ones that are suspect in contracting PMSCs? The solution, according to Peter Singer, is “to recognize the duality that is at the very nature of the privatized military [and security] industry”.49 It is both “military” and “industry”. As such it offers services that can broadly be classified as “providing”, “consulting” and “support/maintenance”. The roles that go with these services can be understood in terms of PMSC personnel-public proximity; in “tip-of-the-spear typology” in military language; or in the front/back office distinction in business jargon. Understanding the distinctive services and roles of PMSCs also provides a “better” basis for developing a diversified accountability and responsibility regime that recognises the difference between the public accountability and private responsibility. _____________ 46

Chesterman/Lehnardt (note 17), 3. Ibid. 48 Ibid. 49 Singer (note 5), 90. 47

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E. Public Accountability or Private Responsibility; Is That the Question? Acceptance of that [military] market will largely depend on the reality and the perception of accountability mechanisms to guard against abuse. […] As private actors take on more responsibilities a central question is whether the normative framework and the accountability adequately address the new environment. Most commentators agree that they do not. (Simon Chesterman and Chia Lehnardt, 2006)50

Chesterman and Lehnardt are right; various commentators consider the “accountability structures”, the legal regulatory framework and/or the corporate responsibility scheme(s) inadequate.51 Given the record of some of the early players, Blackwater, Executive Outcomes and Sandline International, their involvement in scandals and incidents, and the subsequent processes of dissolving and renaming, the scepticism and call for more robust control mechanisms are understandable. The crucial, hard legal questions are (1) who is held accountable: individual or corporation, and (2) how are individuals and organisations held accountable: via national or international criminal or civil procedures? International law’s reputation for holding corporations and other non-State actors accountable is well known.52 National and international law do not constitute, neither in theory nor in practice, a loophole-free legal system. Conflicting civil and criminal national jurisdictions, the granting of immunities and the lack of a robust international criminal legal system create an image of lawlessness. What we observe is the prototypical “problematic case” of transnational non-State actors in national and international law.53 _____________ 50

Chesterman/Lehnardt (note 17), 2; I assume that Chesterman and Lehnardt refer to the absence of a specific legal framework rather than the more general and “normative framework” that would conceptually include socio-political and economic norms. 51 See, inter alia, Jonathan Finer, Holstering the hired guns: new accountability measures for private Security contractors, YJIL 33 (2008), 259; Ranganathan (note 4). 52 Cedric Ryngaert/Helene Struyven, Threats Posed to Human Security by Non-State Corporate Actors: the Answer of International Criminal Law, in: Ryngaert/Noortmann (note 4); Andrew Clapham, Extending international criminal law beyond the individual to corporations and armed opposition groups, JICJ 6 (2006), 899. 53 See Math Noortmann/Cedric Ryngaert, Non-State Actors, International Law’s Problematic Case, in: Noortmann/Ryngaert (note 11); Math Noortmann, Non-State Actors in International Law, in: Bas Arts/Math Noortmann/Bob Reinalda, Non-State Actors in International Relations, 2001; Math Noortmann, Towards an interdisciplinary approach to non-state participation in the formation of global law and order, in: Jean

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If governments are unwilling or unable to close the accountability gap to the fullest possible extent, we are left with two transnational regulatory alternatives: market regulation and self-regulation. The former involves different socio-economic and (quasi-)legal regulatory mechanisms, such as demand/supply, reputation and contractual liabilities, and as such sits in between law-based public accountability and social responsibility.54 For that purpose, “accountability” must be distinguished from “responsibility” and the related bias towards public/legal accountability as opposed to private responsibility schemes must be elaborated upon.55 Responsibility and accountability are different socio-legal institutions fulfilling different functions in the relationship between people, corporate actors and (non-)governmental institutions; between the public and the private. With respect to non-State actors operating in an internationalised global public domain, the relationship between public accountability and private responsibility is complex, as John Ruggie’s work on business and human rights has demonstrated.56 The guiding principles “protect” and “respect” are respectively formulated as a “duty” of the State and a “responsibility” of the business community. But where does that leave us, considering that the State is “outsourcing” that very protection and the PMSCs are increasingly involved in the protection business as much as States are? _____________

d’Aspremont (ed.), Participants in the international legal system: multiple perspectives on non-state actors in international law, 2011. 54 Laura A. Dickinson, Contract as a tool for regulating porivate military companies, in Simon Chesterman/Chia Lehnardt (eds.), From mercenaries to markets: the rise and regulation of private military companies, 2007; Michael Cottier, Elements for contracting and regulating private security and military companies, IRRC 88 (2006), 637; Anne van Aaken, Markets as Accountability Mechanisms in International Law, in: Noemi Gal-Or/Cedric Ryngaert/Math Noortmann (eds.), Responsibilities of the nonstate actor in armed conflict and the market place, 2015. 55 That bias is not typical for the PMSC discourse but is more generally related to the activities of business, in particular in the relation to general and specific human rights violations; see e.g. Nicola Jägers, Corporate Human Rights Obligations: in Search of Accountability, 2002; Nicola Jägers, UN guiding principles on business and human rights: making headway towards real corporate accountability, NQHR 2011, 159; Rebecca J. Cook, Accountability in International Law for Violations of Women’s Rights by Non-State Actors, in: Dorinda Dallmeyer (ed.), Studies in Transnational Legal Policy #25, 1993, 93; Liesbeth Zegveld, Armed Opposition Groups in International Law: The Quest for Accountability, 2000 (PhD Thesis, Erasmus University); Jan Wouters et al., Accountability for human rights violations by international organisations, 2010; Tim Bartley, Corporate accountability and the privatization of labor standards: struggles over codes of conduct in the apparel industry, RPS 14 (2005), 211. 56 See John Ruggie, Guiding Principles on Business and Human Rights: Im plementing the United Nations “Protect, Respect and Remedy” Framework, 2011.

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The sector has responded to public and academic critique and the encroaching prospect of national and international regulation with a number of private initiatives. The most recent and most comprehensive of these is the International Code of Conduct for Private Security Providers (PSPICoC), which was adopted in 2010 and which 708 companies have signed up to.57 The 70 article long code – which finds its public counterpart in the Montreux Document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict58 – is comprehensive and contains, in addition to “specific commitments regarding management and governance”, “specific principles regarding the conduct of personnel”.59 Many of these “specific principles” are considered by many international lawyers to constitute obligations for PMSC personnel under international humanitarian law, international human rights law, and/or international criminal law, irrespective of the code. It is, however, not the question whether individuals can theoretically be held accountable for their actions under internationally agreed agreements, but whether private commitments that mirror these wider global norms enhance the possibility of internalisation and thereby prevention. The Code has not impressed non-governmental organisations like War on Want, which considered the voluntary code as “a licence for abuse” and an instrument “to legitimise the industry and by governments to sidestep proper controls”.60 International legal scholars are more open to assessing this instrument on its merits. According to Surabhi Ranganathan, the articles of the code must be assessed in conjunction with its “oversight and governance mechanism” and its affect on clients. According to her, this could be the “crystallization of a long urged accreditation mechanism that givers teeth to the industry self-regulation”.61 Forms of self-regulation could arguably be in need of their own verifications, compliance, and accountability mechanisms, without taking _____________ 57

See 2010 International Code of Conduct for Private Security Provider of 9 November 2010, available at http://www.icoc-psp.org/Home_Page.html (accessed on 30 March 2015); other codes are: the Code of Conduct and Ethics for the Private Security Sector, available at http://www.coess.eu/_Uploads/dbsAttachedFiles/Code_of_Conduct _and_Ethics_EN.pdf (accessed on 30 March 2015), and the Sarajevo Code of Conduct for Private Security Companies, available at http://psm.du.edu/media/documents/re gulations/global_instruments/multi_stakeholder/sarajevo_code_of_conduct_eng.pdf (accessed on 30 March 2015). 58 Idem. 59 Idem. 60 War on Want, Charity slams conduct code for private military and security companies, available at http://www.waronwant.org/component/content/article/17987 (accessed on 30 March 2015). 61 Ranganathan (note 4).

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away the private and voluntary character, in order to add a mechanism of soft enforcement to that commitment.62 It must also be noted that neither the Code nor the Montreux designed to distinguish between the various services provided. PSCs active in the maritime domain, i.e. providing anti-piracy signatories to the Code, the Code does not address the specific maritime security contractors provide.63

Document is While many services, are services that

We will conclude this paragraph with a short related remark on the role and position of the State in the outsourcing of security and military action to private security providers. As stated above, outsourcing and privatisation entail a degree of deregulation at the (inter)national level and the handing over of responsibility (including the responsibility for setting up accountability mechanisms) to the private sector. It does not necessarily exonerate the State from being held accountable for the consequences of privatisation. Chapter II of the Articles on the Responsibility of States for Internationally Wrongful Acts come to mind, in particular Articles 5 (Conduct of a person or entities exercising elements of government authority), 6 (Conduct of organs placed at the disposal of a State by another State) and 9 (Conduct carried out in the absence or default of the official authorities).64 _____________ 62

The website of the International Code of Conduct for Private Security Service Providers and the corresponding website of the Association the International Code of Conduct for Private Security Service Providers refer to a so-called “oversight mechanism” and a concept paper containing “Elements of a Governance and Oversight Mechanism for the International Code of Conduct for Private Security Service Providers” can be found at http://www.icoc-psp.org/uploads/Draft__ICoC_Oversight_Concept_Paper.pdf (accessed on 30 March 2015). So far, however, we have been unable to locate or get a hold of that document. 63 On the specific problem of maritime security and maritime security contractors see: David Belt/Ioannis Chapsos et al., Maritime Security Challenges in South-East Europe, in: Sharyl Cross et al. (eds.), Shaping South East Europe’s Security Community for the Twenty First Century: Trust, Partnership, Integration, 2013; Ioannis Chapsos, Introducing the Privatisation of Maritime Security: Causal Factors, Implications and Trends, NATO Maritime Interdiction Operational Training Center NMIOTC MIO Journal 2014, 10; Ioannis Chapsos/Paul Holtom, Stockpiles at Sea: Floating Armories in the Indian Ocean, in: Small Arms Survey 2015. 64 See generally on State responsibility: James Crawford, The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect, AJIL 96 (2002), 874; Math Noortmann, De ontwerpartikelen inzake staatsaansprakelijkheid van de VN-Commissie voor Internationaal recht, NJB 78 (2003), 878; on State responsibility and non-State actors see Berglind Halldorsdottir Birkland, Reining in non-state actors: State responsibility and attribution in cases of genocide, NYULR 84 (2009), 1623; Kai Hobér, State Responsibility and Attribution, in: Peter Muchlinski et al. (eds.), The Oxford Handbook of International Investment Law, 2008; more particularly on State responsibility and PMSCs see: Derek Jinks, State responsibility for the acts of private

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The Agreement for the Provision of Military Assistance Contract between Papua New Guinea and Sandline International not only provides us with an interesting case for testing the private PSPICoC, or the UNCITRAL rules, but also these (customary?) rules of international law. According to the contract: the State automatically grants to Sandline and its personnel all approvals, permissions, authorisations, […] to conduct its operations […] including issuing instructions to PNG defence forces and […] give orders. The State recognizes that Sandline’s commanders will have such powers as are required to […] engage and fight hostile forces and arrest.65

There is no doubt in our minds that PNG could be held to account for the actions of Sandline, if it had voluntarily agreed to the above mentioned rules and had, in addition, voluntarily accepted a procedure under which it could actually be held accountable. With respect to the international accountability, i.e. the possibility that one State is held to account by another, the prospects are rather dim – let alone that States are held accountable by non-State actors in the international arena. The title of the Articles on State Responsibility is spot on. What we have is a voluntary instrument that stipulates secondary rules of responsibility that lack an instrument to hold States to account.66 Perhaps we must begin to give private corporate codes as much credit as we give to similar public international codes.

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armed groups, Chic. JIL 4 (2003), 83; Oliver R. Jones, Implausible deniability: state responsibility for the actions of private military firms, Conn. JIL 24 (2008), 239; Chia Lehnardt, Private military companies and state responsibility, in: Simon Chesterman/ Chia Lehnardt (eds.), From mercenaries to markets: the rise and regulation of private military companies, 2007. 65 Quoted from Singer (note 5), 267. 66 See on the problem of State responsibility, the lack of compulsory dispute settlement and the inadequacy of sanctions Math Noortmann, Enforcing international law: from self-help to self-contained regimes, 2005.

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Math Noortmann and Ioannis Chapsos

F. Concluding Thought: Is it Possible that Private Military and Security Companies are Amongst the Good Guys? The general lack of governmental support for Private Military Companies willing to help end armed conflicts in places like Africa, in the absence of effective international intervention, is the reason for this decision. Without such support the ability of Sandline to make a positive difference in countries where there is widespread brutality and genocidal behaviour is materially diminished. (Sandline International, 2004)67

The question is a rhetorical one. Kofi Annan’s opening quote, at the beginning of this chapter, already hinted towards the possibility of employing private military units by the United Nations. The conceptualisation and development of privatised peacekeeping and peace-enforcement seems to be a matter of time and likely to supplement and/or replace United Nations peacekeeping forces and the national military units mandated by the UN Security Council.68 The world might not be completely ready for accepting privatised peacekeeping, but it is undoubtedly more ready than it was in 1998. The reasons for accepting PMSCs’ roles in not only securing a State-centred public order, but also protecting our human security in accordance with purposes and principles that reflect the transnational/global values of human dignity as opposed to international values are threefold: Firstly, the international State-centred order is vastly and quickly changing. To the extent that the post-World War II international order at the same time caused and mitigated international relations’ processes such as decolonisation and postcolonial State building, the collapse of that order in 1989 gave rise to new civil conflicts which the institutes of international security governance were not equipped to handle. Non-State actors, businesses, NGOs and armed opposition groups were in need of procuring their own security. PMSCs provided that service. Secondly, the attention on the role of PMSCs as quasi-mercenaries, i.e. their “private military” side, is shifting towards their “security” services. While there _____________ 67 Closure Statement of Sandline International, available at http://www.sandline. com/ (accessed on 2 March 2015). 68 Oldrich Bures, International Peacekeeping, 2005; Martina Fischer/Volker Ritt berger, Strategies for peace: contributions of international organizations, states and nonstate actors, 2008; Damian Lilly, The privatization of security and peacebuilding, 2000; Utesch, (note 4); it ought to be noted that the logistics of peacekeeping are already outsourced to a large extent, see e.g. Damian Lilly, The privatization of peacekeeping: prospects and realities, 2000, § 3.

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is still an overwhelming attention for the “private military company”, which reflects the predominant bias towards the combat/offensive role of the industry, that “other” side of the sector is no longer neglected, which also affects the discussion on the accountability and responsibility of the industry. Thirdly, to the extent that the academic discourse on PMSCs was dominated by the (sub) disciplines of (international) law and political science and international relations, the debate was understandably normative. Incidents and affairs involving former PMSC icons like Blackwater, Sandline International and Executive Outcomes did not favour the development of a positive general public opinion on the industry. A combination of national and international regulation and market and self-regulation has provided the industry with a different image. The industry has matured and like any other established industry, it is receptive to public critique and market incentives. The law fulfils its own specific role in creating national and international legal frameworks for the regulating transnational business in general and the private military and security business in particular. But legal regulation and accountability schemes are no panacea for the lack of corporate responsibility. There is little doubt that the industry has understood its own onus to develop a corporate responsibility culture in the sector. Do we academics have a duty to question these private social corporate accountability schemes? No doubt, but as much as we have a duty to politically and legally question the public accountability schemes? We cannot do so without taking the possibility of a future transnational policing role of the private military and security industry into account. A continued focus on incidents and the possibility of criminal offenses by PMSCs and their personnel hampers our intellectual ability to contribute to transformative change in the governance of transnational security.

List of Authors Prof. Dr. Karine Bannelier is associate professor of international law at the University Grenoble-Alpes, France. Prof. Dr. Jean-Yves de Cara is professor of international law at Paris Descartes University (Sorbonne Paris Cité) and former executive director of the Paris-Sorbonne University Abu Dhabi. Dr. Ioannis Chapsos is research fellow in maritime security at the Center for Trust, Peace and Social Relations of Coventry University and a former Captain (ret) of the Hellenic Navy. Prof. Dr. Théodore Christakis is professor of international law and director of the Centre for International Security and European Studies (CESICE), University GrenobleAlpes, and a Senior Member of the Institut Universitaire de France. Prof. James Crawford, B.A., LL.B. (Adel.), D.Phil. (Oxon.), LL.D. (Cantab.), S.C. (N.S.W.), A.C., F.B.A., is a Judge at the International Court of Justice and former director of the Lauterpacht Research Centre for International Law at the University of Cambridge. Prof. Dr. Frank Hoffmeister is a Head of Unit at the European Commission’s DG Trade (formerly a member of its Legal Service) and also works as a part-time professor at the Free University of Brussels. Prof. Dr. Dr. h.c. mult. Knut Ipsen, LL.D. h.c., is professor emeritus of public law, especially international law, at the University of Bochum and former President of the German Red Cross. Ms. Yvette Issar, LL.M. (Geneva), is a research assistant and doctoral candidate at the Faculty of Law of the University of Geneva. Dr. Lucy Keller Läubli is a scientific collaborator at the Federal Office of Justice, Bern. Prof. Math Noortmann, LL.M. (Utrecht), M.Sc. (Amsterdam), Ph.D. (Utrecht), is professor of transnational law and non-state actors at the Center for Trust, Peace and Social Relations of Coventry University. Prof. Francisco Orrego Vicuña, Ph.D. (Santiago de Chile), is professor of the Heidelberg University Center in Santiago and an arbitrator at 20 Essex Street in London. Prof. Dr. Andreas Paulus is Justice of the Federal Constitutional Court of Germany and professor of public and international law at the University of Göttingen. Dr. Gunter Pleuger is a diplomat and former President of the European University Viadrina in Frankfurt (Oder). Prof. Dr. Marco Sassòli is professor of international law and director of the Department of Public International Law and International Organization at the University of Geneva.