THE CONTRIBUTION OF INTERNATIONAL BODIES

TO THE DEVELOPMENT AND IMPLEMENTATION

OF INTERNATIONAL HUMANITARIAN LAW (IHL)

CLAUDE EMANUELLI*

*
Professor, Faculty of Law, University of Ottawa, Canada.
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 INTERNATIONAL HUMANITARIAN LAW…

Introduction

International Humanitarian Law (IHL) is a branch of Public International Law

which is intended to alleviate human pain and suffering resulting from armed
conflicts1.

The expression humanitarian law was developed after World War II to focus
attention on the protection of war victims (i.e. wounded and sick members of
armed forces on land; wounded, sick, shipwrecked members of armed forces at
sea; prisoners of war and civilians) and to establish a connection between the law
of war, as it was then known, and human rights law2, which was then in its
infancy. Indeed, both branches overlap in some respects. Both are informed by
the same values since both are intended to protect human dignity. However,
human rights law applies in time of peace as well as in time of war whereas
humanitarian law applies only in the event of an armed conflict. Thus, according
to article 1 (2) of Protocol II additional to the Geneva Conventions of 19493, IHL
does not apply « to situations of internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence and other acts of a similar nature, as not
being armed conflicts ». These situations are not governed by IHL, but they are
governed by human rights law. This being said, in practice, it may sometimes be
difficult to distinguish a situation of internal violence from an armed conflict, as
demonstrated in the Abella case4.

Because it is concerned with armed conflicts, humanitarian law is often

confused with the law of armed conflicts (the law of war) which traditionally
deals with the conduct of hostilities. Both branches largely overlap, although the
law of armed conflicts includes rules which are not inspired by humanitarian
concerns: those dealing with neutrality or with the protection of cultural property,
for instance. This difference is reflected in the traditional distinction between the
Law of Geneva, on one hand, and the Law of The Hague, on the other. The Law
of Geneva is humanitarian law proper. It is made up of protection rules. The Law
of The Hague is the law of war. It is made up of combat rules. However, the
distinction is somewhat superficial and it has been blurred by the adoption of the

1
See J. Pictet, Développement et principes du droit international humanitaire, Genève,
Institut Henry Dunant/Paris, Pédone, 1983, p.7; F. Kalshoven, Constraints on the Waging
of War, Geneva, I.C.R.C., 1987, at 1.
2
See D. Schindler, « The International Committee of the Red Cross and Human Rights
», (1979) 715 International Review of the Red Cross 3.
3
Geneva Protocol II Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of Non-International Armed Conflicts, (1979) 1125
U.N.T.S. 609, A. Roberts/R. Guelff, Documents on the Laws of War, 3rd ed., Oxford
University Press, 2000, at 481.
4
Juan Carlos Abella v. Argentina, Report No. 55/97, Case 11.137, Inter-Am. C.H.R.
271, OEA ser. L/V/11.98, doc. 6 rev. (1998).
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C. EMANUELLI

additional Protocols of 19775. Indeed, both instruments include protection rules

as well as combat rules.

The main source of IHL consists of the four Geneva Conventions of 19496.
They deal primarily with international armed conflicts. However, they also
include a common article 3 which deals with non international armed conflicts.

The Geneva Conventions were supplemented by two additional Protocols

adopted in 1977. Protocol I applies to international armed conflicts7, while
Protocol II applies to non- international armed conflicts8. It supplements article 3.
More recently, a third additional protocol was adopted, which recognizes an
additional distinctive emblem in the shape of a red crystal on a white
background9.

The Geneva Conventions have been ratified virtually by all States10, so that
most of their provisions, including article 3, are considered to be part of
customary law11.

The situation is somewhat different with respect to the additional Protocols.

So far, Protocol I was ratified by 166 States, and Protocol II was ratified by 162
States. However, according to a study completed by the International Committee
of the Red Cross (ICRC) in 200512, a large number of the rules included in both
additional protocols are supposed to apply to all States as part of customary
international law. In turn, Protocol III has, to this point in time, been ratified by 7
States.

Apart from the Geneva Conventions and their additional Protocols, other rules
of IHL are found in several international instruments dealing with specialized

5
See G. Abi-Saab, « The specificities of humanitarian law », in C. Swinarski (ed.),
Studies and essays on international humanitarian law and Red Cross principles in honour
of Jean Pictet, Geneva, ICRC/The Hague, Martinus Nijhoff, at 265, ftn. 1.
6
Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field, (1950) 75 UNTS 31; Geneva Convention II for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea, (1950) 75 UNTS 85; Geneva Convention III Relative to the Treatment of
Prisoners of War, (1950) 75 UNTS 135; Geneva Convention IV Relative to the Protection
of Civilian Persons in Time of War, (1950) UNTS 287; Roberts/Guelff, op.cit., note 3,
respectively at 195, 221, 243, 299.
7
Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Conflicts, (1979) 1125 UNTS 3;
Roberts/Guelff, op.cit., note 3, at 419.
8
Supra, note 3.
9
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005,
(2006) 861 International Review of the Red Cross 187. On line: www.icrc.org.
10
As to December 1st, 2006, the Geneva Conventions have been ratified by 194 States.
11
See J.-M. Henckaerts/L. Doswald-Beck, Customary International Humanitarian Law,
vol. 1: Rules, Cambridge University Press, 2005, at xxx.
12
See the Study, Id.
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topics such as the Convention on Genocide (1948)13, the Ottawa Convention on

land mines (1997)14, or the 1998 Rome Statute of the International Criminal
Court15. Some rules are also found in United Nations Security Council
Resolutions dealing with armed conflicts16, as well as in decisions, judgments and
advisory opinions rendered by international judicial bodies17.

Together, all these rules make up the body of IHL. However, they have
different backgrounds. Also, their development as well as their implementation
involves different international bodies. Some of these bodies are non-
governmental organizations (NGOs) like the ICRC. Other bodies belong to the
United Nations family.

1. The contribution of non-governmental international bodies to the

development and implementation of IHL

Three non-governmental international bodies are mainly involved in the

development and the implementation of IHL:

- the ICRC;
- the International Red Cross and Red Crescent Movement;
- The International Institute of Humanitarian Law.

A) The International Committee of the Red Cross (ICRC)

1) The international legal status of the ICRC18

The ICRC is a Swiss society governed by the Swiss Civil Code as well as by
its own Statutes. Its governing body is made up exclusively of Swiss citizen who
guarantees its neutral character. Neutrality is one of the fundamental principles
the ICRC operates under19.

13
UN Convention on the Prevention and Punishment of the Crime of Genocide, (1951)
78 UNTS 277; Roberts/Guelff, op.cit., note 3, at 179.
14
Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and
Transfer of Anti-Personnel Mines and on their Destruction, (1997) 36 ILM 1507;
Roberts/Guelff op.cit., note 3, at 645.
15
Rome Statute of the International Criminal Court, (1998) 37 ILM 999; Roberts/
Guelff, op.cit., note 3, at 667 (extracts).
16
Infra.
17
Infra.
18
See F. Bugnion, Le Comité international de la Croix-Rouge et la protection des
victimes de la guerre, Genève, C.I.C.R., at 1113 et seq.
19
The other principles are: humanity, impartiality, independence, voluntary service,
unity, universality.
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C. EMANUELLI

In spite of its domesticity, the ICRC has, through practice, acquired an

international legal personality of a functional nature20. As a result, it can enter into
some treaties, such as headquarters agreements, have diplomatic relations with
States, extend its diplomatic protection to its delegates, etc. Moreover, since
1990, it has the status of an observer at the United Nations which allows the
ICRC to contribute to the work of the Organization relating to IHL.

It should also be noted that the ICRC is the cornerstone of the International
Red Cross and Red Crescent Movement, which also plays a role in the
development of IHL.

2) The ICRC and the development of IHL

The history of the ICRC is closely linked to that of IHL. As mentioned

before, the expression IHL is recent. However, the modern origins of its rules can
be traced back to the battle of Solferino and to one man: Henry Dunant21.

The battle of Solferino took place in 1859, in northern Italy between Austro-
Hungarian armies on one side and the Franco-Sardinian Alliance on the other.
The battle lasted 15 hours. The casualties were heavy: some 40,000 dead,
wounded or missing. Most wounded were left to die without help for want of
adequate medical resources.

It is at this point that Henry Dunant came into the picture. Henry Dunant was
a Swiss businessman who was traveling back to Geneva through northern Italy
when he arrived in Solferino just after the battle was over. Dunant, who was
shocked by the agony of the wounded soldiers, interrupted his trip back to
Geneva. For several days, with the help of women from a neighbouring village, he
tended to the wounded and the dying without any distinction based on uniform.

Later on, back in Geneva, Dunant wrote a short book entitled « A Memory of
Solferino »22 in which he gives a vivid account of his experience in Solferino.

In his book, Dunant also developed two seminal ideas:

- a relief society for wounded soldiers should be created in each country in

time of peace to supplement army medical services in time of war;
- an international treaty should be concluded to determine the role of national
relief societies in time of war.

20
See C. Dominicé, « La personnalité juridique internationale du CICR », in Swinarski,
op.cit., note 5, at 663; P. Reuter, « La personnalité juridique internationale du Comité
international de la Croix-Rouge », Id., at 782; J. A. Barberis, « El Comité internacional de
la Cruz Roja como sujeto del derecho de gentes », Id., at 635.
21
See Bugnion, op.cit., note 18, at 6 et seq.
22
Geneva, Imprimerie Jules-Guillaume Fick, 1862.
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« A Memory of Solferino » was published in 1862. It was well received in

Geneva as well as in the rest of Europe. Indeed, the times were right: in 19th
century Europe, fed by liberal ideas, public opinion was more sensitive to human
suffering than it ever was before. As a result, in 1863 an International Permanent
Committee for the Relief of Wounded Soldiers was established by five citizens of
Geneva, including H. Dunant. The purpose of this Committee of Geneva was to
promote Dunant’s program throughout Europe. To that end, the Committee of
Geneva organized two conferences:

The first conference was held in Geneva in 1863. It led to the adoption of 10
resolutions which set up the foundations of national societies for the relief of
wounded soldiers23. They were to become national societies of the Red Cross in
1872. The resolutions of 1863 also provided that the Committee of Geneva
would temporarily serve as a link between the national societies. However, this
role proved to be so important during the Franco-Prussian war of 1870 that
eventually, the Committee of Geneva ended up acting as a permanent connection
between national societies. It became the ICRC in 1880.

The second conference organized by the Committee of Geneva took place in

1864 under the auspices of the Swiss government. It led to the adoption of the
first Geneva Convention (Convention for the Amelioration of the Condition of the
Wounded in Armies in the Field)24.

This Convention included ten articles formulated around four basic principles
which are still relevant today:

- army medical personnel are not combatants; if captured by the enemy,

they must not be held prisoners;
- all wounded and sick soldiers must be cared for without any adverse
distinction;
- civilians who tend to wounded soldiers must be respected;
- field hospitals and ambulances are neutral. They are identified by a red
cross on a white background, an inversed version of the Swiss federal flag. At the
time, this emblem was adopted in recognition of the role played by Switzerland in
his adoption of this first Geneva Convention.

The Convention, which was ratified by twelve States, is a landmark. For one
thing, it is the first multilateral treaty concluded in time of peace to govern future
armed conflicts between the contracting parties. For another thing, it marks the
beginning of IHL. Indeed, the Geneva Convention of 1864 was revised in 1906,
1929 and 1949 when it became Geneva Convention I25.

23
See Bugnion, op.cit., note 18, at 21.
24
Id., at 27-28.
25
See Roberts/Guelff, op.cit., note 3, at 195.
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C. EMANUELLI

Moreover, the provisions of the Geneva Convention of 1864 were extended to

the wounded, sick and shipwrecked at sea by Hague Convention III of 1899.
Subsequently, the provisions of that Hague Convention were revised in 1907
(Hague Convention X). In 1949, both Hague Conventions were replaced by
Geneva Convention II26.

In the meantime, other Hague Conventions adopted in 1899 (HCII) and in

1907 (HCIV)27 identified the groups of combatants who are entitled, when
captured, to prisoner of war status and defined how they should be treated during
their captivity. The relevant provisions of these Conventions were supplemented
by a Geneva Convention of 1929, and complemented in 1949 by Geneva
Convention III28.

In 1949, a fourth Geneva Convention was adopted to deal with the protection
of civilians29. Furthermore, as noted before, the four Geneva Conventions of
1949 were developed and supplemented by Additional Protocol I of 197730.
Thus, the Geneva Convention of 1864 was the starting point of a movement
which led to the adoption of a whole body of rules of IHL applicable to
international armed conflicts.

Furthermore, the four Geneva Conventions include a common article 3 which,

for the first time, provided a basic framework of minimum standards applicable to
non-international armed conflicts31. In turn, article 3 was developed and
supplemented by Additional Protocol II of 197732. Then, in 2005 an additional
distinctive emblem (the red crystal) was recognized by Protocol III33.

Together, the four Geneva Conventions of 1949 and the three additional
Protocols make up the body of what is known as Geneva Law because of the role
which the Committee of Geneva (the ICRC) has played in its development since
the beginning. Indeed, from the start, the ICRC has been leading efforts to
develop IHL34. Thus, it started the process which ended up with the conclusion of
the Geneva Conventions of 1864, 1906, 1929 and 194935.

Also, it was involved in the extension of the 1864 and 1906 Geneva
Conventions to maritime warfare, by way of Hague Conventions. As noted
before, those were replaced by Geneva Convention II which was drafted by the
ICRC36.

26
Id., at 221.
27
Id., at 67.
28
Id., at 243.
29
Id., at 299.
30
Id., at 419.
31
See Bugnion, note 18, at 374 et seq.
32
Id., at 385 et seq.; Roberts/Guelff, op.cit., note 3, at 481.
33
Supra, note 9.
34
See Bugnion, op.cit., note 18, at 22 et seq.
35
See Roberts/Guelff, op.cit., note 3, at 14-15.
36
Id., at 222.
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 INTERNATIONAL HUMANITARIAN LAW…

Moreover, the ICRC initiated the move to supplement the Geneva

Conventions of 1949 with the two additional Protocols of 1977. Those were
negotiated on the basis of drafts prepared by the ICRC. Their provisions, as well
as those of the Geneva Conventions, are exposed in the « Commentaries »
prepared and published by the ICRC37. Furthermore, the ICRC was instrumental
in the adoption of an additional distinctive emblem by way of Additional Protocol
III. It should also be mentioned that in several instances the ICRC developed, on
its own initiative, practices which later on were confirmed by conventional rules:
for instance, the establishment in 1914 of the International Agency for Prisoners
of War. The initiative gave rise to provisions found in the 1929 Geneva
Convention on Prisoners of War (art. 79) and in Geneva Convention III of 1949
(art. 123)38.

The ICRC has also contributed to the adoption of other treaties, such as the
1980 U.N. Convention on Certain Conventional Weapons39, the 1997 Ottawa
Convention on anti-personnel land mines40, the 1998 Rome Statute of the
International Criminal Court41, etc.

Furthermore, the ICRC has recently endeavored to identify customary rules of

humanitarian law to supplement the body of treaty rules.

The rationale behind this new development lies in the fact that non-
international armed conflicts are not regulated in sufficient detail by treaty law.
To be sure, far fewer treaty rules are applicable to non-international armed
conflicts than to international armed conflicts. Besides, in practice, many non-
international armed conflicts are only governed by article 3 common to the four
Geneva Conventions. As noted before, article 3 merely provides a basic
framework of minimum standards. On the other hand, international armed
conflicts are regulated in more detail by treaty law. Yet, since the end of World
War II, non-international armed conflicts have become proportionally more
important than international armed conflicts42.

It is against this background that the ICRC undertook a study on customary

international humanitarian law.

37
See J. Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary, 4 vols.,
Geneva, ICRC, 1952-60; Y. Sandoz/C. Swinarski/B. Zimmermann, Commentary on the
Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949,
Geneva, Martinus Nijhoff for International Committee of the Red Cross, 1987.
38
See Bugnion, op.cit., note 18, at 93, 200, 638 et seq.
39
Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate
Effects, (1983) 1342 UNTS 137; Roberts/Guelff, op.cit., note 3, at 515.
40
Supra, note 14.
41
Supra, note 15.
42
See J.-M. Henckaerts/L. Doswald-Beck, op. cit., note 11, at xxviii-xxix; J.M.
Henckaerts, « A contribution to the understanding and respect for the rule of law in armed
conflict », (2005) 857 International Review of the Red Cross 175, at 177-178.
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C. EMANUELLI

The study was mandated in 1995 by the 26th International Conference of the
Red Cross and Red Crescent Movement43. It took ten years to complete. After
extensive research and several meetings of experts from various countries, the
study led to a report which was published in 200544.

In the study, the ICRC identifies 161 rules which are presented as part of
customary international law. In many cases, these rules apply to both international
and non-international armed conflicts. Some of the rules deal with the protection
of victims, others deal with the conduct of hostilities, and others still deal with the
implementation of IHL45. Most of the rules stem from treaties which, like both
additional Protocols, have not been ratified by all States.

This raises the following question: on what basis did the ICRC justify its
findings? Indeed, customary law, whether domestic or international, is supposed
to reflect some social consensus46. Here, such a consensus seems to be missing.
Indeed, several States have not consented to be bound by the treaties which gave
rise to the rules identified in the study47.

To deal with this issue, an investigation into the method used by the ICRC to
complete its study is necessary. This method is described in the study48. It turns
around the application of article 38 (1) b) of the Statute of the International Court
of Justice (ICJ). There lies one of the problems which affect the study. Indeed, it
may be argued that the ICRC study is flawed for the following reasons49:

1) The study reduces the concept of international custom to its definition

under article 38 (1) b) of the Statute of the ICJ. Article 38 (1) b) defines
international custom « as evidence of a general practice accepted as law ». As a
rule on evidence, article 38 (1) b) states the conditions required to establish the
existence of a rule of customary law before the Court. Thus, article 38 (1) b) is
fundamental when, in a concrete case brought before the ICJ in adversary
proceedings, a party intends to prove the existence of some customary rule. The
situation is quite different when the ICRC pretends, in the abstract, to establish
the existence of a whole body of customary rules of humanitarian law. In such a

43
26th International Conference of the Red Cross and Red Crescent, 1995, Resolution 1,
International humanitarian law : From law to action, Report on the follow-up to the
International Conference for the Protection of War Victims, (1996) 310 International
Review of the Red Cross 58.
44
See J.-M. Henckaerts/L. Doswald-Beck, op.cit., note 11.
45
See J.-M. Henckaerts, loc. cit., note 42, at 187-197 (« Summary of Findings »).
46
See J. Patrick Kelly, « The Twilight of Customary International Law », (2000) 40
Virginia Journal of International Law 449, at 453, 461-465.
47
E.g., Eritrea, India, Indonesia, Iran, Iraq, Malaysia, Morocco, Myanmar, Nepal,
Pakistan, The Philippines (bound only by Protocol II), Somalia, Sudan, Sri Lanka,
Thailand.
48
See Henckaerts/Doswald-Beck, op.cit., note 11 at xxxi-xlv; Henckaerts, loc.cit., note
42, at 178-184.
49
See C. Emanuelli, « L’étude du CICR sur le droit humanitaire coutumier: la coutume
en question », (2006) 110 Revue Générale de Droit International Public 435.
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 INTERNATIONAL HUMANITARIAN LAW…

context resorting to article 38 (1) b) seems inappropriate. An investigation into

the foundations of customary law seems necessary. Such an investigation goes
beyond the terms of article 38 (1) b). The ICRC study ignores this question. As a
result, it also fails to tell us what opinio juris consists of. Is it consent based or
consensus based50? How do we determine the opinio juris of States? This issue
is particularly relevant here because, as noted before, most of the rules identified
in the study stem from treaties which have not been ratified by all States.

Moreover, as it relies heavily on article 38 (1) b) of the Statute of the ICJ, the
approach adopted by the ICRC study creates other problems:

2) Indeed, the application of article 38 (1) b) raises practical issues to which

the study gives superficial answers:

- What does State practice consist of? What are its components? Do they
include judicial decisions, resolutions adopted by international organizations51?
- Do all the components of State practice have the same weight52? The issue
is particularly important when State practice is not uniform, as it is the case with
respect to IHL.
- How widespread must State practice be to give rise to a custom? To what
extent is the concept of « specially affected State53 » relevant in this respect?

3) Moreover, some of the positions adopted by the ICRC in its study are
ambiguous and sometimes tendentious. For instance, the study tends to confuse
the customary law making process with the common law making process, by
emphasizing the importance of judicial precedents in establishing the existence of
a custom54. Here, it must be remembered that customary law is not judge-made
law55. It is derived from the practice and the opinio juris of States.

Furthermore, the study sets aside the practice of armed opposition groups
because it does not constitute State practice as such56. On the other hand, the
study finds the practice of the ICRC relevant because it has international legal
personality57. Indeed, this is true. However, the ICRC is not a State. It has a more

50
This is a controversial issue: see Kelly, loc.cit., note 46, at 458, 508 et seq.
51
Those are controversial issues: see Kelly, loc.cit., note 46, at 500; Jack L.
Goldsmith/Eric A. Posner, « Understanding the Resemblance Between Modern and
Traditional Customary International Law », (2000) 40 Virginia Journal of International
Law 639, at 660.
52
Again, this is a controversial issue: see Kelly, loc.cit., note 46, at 491-492, 503 et seq.
53
See North Sea Continental Shelf, (FRG v. Denmark) (FRG v. Netherlands), 1969
ICJ Rep. 3, para. 74.
54
See Henckaerts/Doswald-Beck, op.cit., note 11, at xxxiv; Henckaerts, loc.cit., note
42, at 179.
55
See Kelly, loc cit., note 46, at 529-530.
56
See Henckaerts/Doswald-Beck, op.cit., note 11, at xxxvi ; Henckaerts, loc.cit., note
42, at 179-180.
57
See Henckaerts/Doswald-Beck, op.cit., note 11, at xxxv.
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C. EMANUELLI

limited legal personality than States. Therefore, its practice should not have the
same weight as that of States. Yet, the study puts the practice of the ICRC on an
equal footing with the practice of States.

For these reasons, as well as others relating to the substance of the rules
identified by the ICRC study, its results are controversial.

3) The ICRC and the implementation of IHL

As a major contributor to the adoption and the interpretation of the Geneva

Conventions, the I.C.R.C. is considered to be their custodian58. The tacit
consequence of this characterization is that the ICRC has the authority to remind
the parties to an armed conflict of their obligations under the Geneva
Conventions.

In the same vein, the ICRC can reprimand the warring parties if, in the course
of their military operations, they commit violations of the Geneva Conventions,
and demand their immediate cessation59. In extreme cases, the ICRC can even
publicly denounce these violations, if the following conditions are met:

- the violations are massive and repeated;

- other efforts have failed;
- it is felt to be in the interest of the victims to publicly denounce the
violations;
- the violations have been established60.

However, the ICRC lacks the power to impose other types of sanctions to
warring parties which do not comply with IHL.

The ICRC derives some of its implementing authority directly from the
Geneva Conventions: for instance, under article 126 of Geneva Convention III,
ICRC delegates can visit prisoners of war wherever they are being held and
interview them without witnesses. Under article 143 of Geneva Convention IV,
ICRC delegates enjoy the same power with respect to civilian internees.

Also, under article 3 common to the four Geneva Conventions, the ICRC
enjoys a right of initiative which allows the Committee to offer its services to the
parties to non-international armed conflicts61. If its offer is accepted, the ICRC
can perform a number of humanitarian activities on the ground, to assist victims.

58
In this respect, see article 5 (2) c) of the Statutes of the Movement; Bugnion, op.cit.,
note 18, at 416.
59
See Bugnion, Id., at 1077 et seq.
60
Id., at 1107.
61
See Bugnion, op. cit., note 18, at 459 et seq.
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 INTERNATIONAL HUMANITARIAN LAW…

For instance, it can provide the civilian population with food, water, medical
assistance, medicine, etc.62.

Moreover, the right of initiative enjoyed by the ICRC was extended to

international armed conflicts when, in the Nicaragua Case63, the ICJ decided that
art. 3 applies to all categories of armed conflicts. Furthermore, under the Statutes
of the ICRC, and according to international practice, the right of initiative also
extends to situations of internal violence. This being said, it must be emphasized
that its right of initiative merely allows the ICRC to offer its services to the
warring parties. To follow up on its offer and perform activities in favour of war
victims, the ICRC needs the approval of the warring parties.

Finally, other rights and powers enjoyed by the ICRC in relation to the
implementation of IHL are derived from its Statutes or were created on an
empirical basis through practice. Thus, the ICRC helps national societies of the
Red Cross and Red Crescent perform different tasks, such as train medical
personnel to perform their duties in time of war, promote the implementation of
IHL at the domestic level, and disseminate rules of IHL, etc.64

B) The international red cross and red crescent movement65

The Movement is not an international organization. It is a network of

humanitarian non-governmental organizations (ie. the ICRC, national societies of
the Red Cross and the Red Crescent, as well as the Federation of national
societies) which come together every four years when the Movement holds its
international conference. The first Conference of the Movement took place in
1867 in Paris. Since then, the Conferences have actively contributed to the
making of IHL in several ways. Thus, the Conference held in 1948 approved the
draft Geneva Conventions prepared by the ICRC66, which were adopted one year
later. Similarly, the draft protocols to the Geneva Conventions prepared by the
ICRC were approved by the Conference held in Tehran in 197367.

Moreover, the Conferences have often adopted resolutions which give the
ICRC the authority to act. Thus, in 1912, the Conference held in Washington
gave the ICRC the authority to provide prisoners of war with material as well as
with moral relief. Also, the action of the ICRC during the Spanish Civil war was

62
See M. Harroff-Tavel, « Action taken by the International Committee of the Red
Cross in situations of internal violence », (1993) 294 International Review of the Red
Cross 211.
63
See Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v.
United States of America), Merits, 1986 ICJ Rep. 14, para. 218.
64
See Harroff-Tavel, loc. cit., note 62, at 235.
65
See Bugnion, op. cit., note 18, at 413 et seq.
66
Id., at 355-356.
67
Id., at 368.
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C. EMANUELLI

largely based on a resolution adopted by the Conference in 1921 (Resolution

XIV)68.

Furthermore, international Conferences of the Movement can give the ICRC

mandates to perform certain tasks. Thus, in 1995, the Conference asked the ICRC
to undertake a study on customary international humanitarian law69.

C) The international institute of humanitarian law70

The Institute was created in 1970 as a non-profit humanitarian association. Its

headquarters are in San Remo, Italy. According to its Statutes, the main purpose
of the Institute « is to promote the dissemination and development of international
humanitarian law and to operate at all levels for its implementation » (article 1).

To these ends, the Institute organizes general as well as specialized courses on

IHL, human rights law and refugee law, which are offered in different languages.
Its military courses have become famous. Each year it also organizes a
competition on IHL for military academies and a round table on current problems
of IHL. Moreover in the past, it has organized various conferences and
commissions related to IHL. Last but not least, it is responsible for the adoption in
1994 of the San Remo Manual on armed conflicts at sea71. Currently, the Institute
is involved in the development of a Manual on the law applicable to non-
international armed conflicts.

Other non-governmental organizations have also played a role in the

development of IHL72. Thus, the Institute of International Law was responsible
for the adoption of the 1880 Oxford Manual of Land War and the 1913 Oxford
Manual of Naval War. More recently, the Institute adopted resolutions on the
application of the law of armed conflicts to United Nations forces.

In turn, the International Law Association adopted in 1938 a draft convention

dealing with the protection of civilians in time of war. However, these bodies are
not specialized in IHL.

2. The contribution of United Nations bodies to the development and

implementation of IHL

The involvement of the United Nations in the development and the

implementation of IHL can be divided in three different periods:

A) 1945 to 1968
B) 1968 to 1990

68
Id., at 309.
69
Supra, note 43.
70
See Roberts/Guelff, op.cit., note 3, at 14.
71
Id., at 573 et seq.
72
Id., at 14.
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 INTERNATIONAL HUMANITARIAN LAW…

C) since 1990.

A) 1945 to 196873

During this period, the United Nations showed little interest in the law of
armed conflicts, because it believed that there was no need for it. Thus, in 1949,
the International Law Commission struck the codification of the law of war from
its agenda. This decision was made to avoid casting some doubt as to the ability
of the United Nations to maintain international peace and security. To be sure,
immediately after World War II, the United Nations’ limited interest in IHL was
focused on reaffirming the principles recognized in the Charter of the
International Military Tribunal of Nuremberg and preparing the 1948 Genocide
Convention74.

On the other hand, in 1949, the ICJ rendered its decision in the famous Corfu
Channel Case75. In that case, the ICJ found that Albanian authorities were bound
to warn approaching British warships of the dangers created by a minefield inside
Albanian waters. According to the Court, this obligation was not based on Hague
Convention VIII of 1907, which is not applicable in time of peace, but « on
certain general and well-recognized principles », including « elementary
considerations of humanity, even more exacting in peace than in war76 ». This
statement echoes the so-called Martens clause77 which was first included in the
Preamble of the 1899 Hague Convention on land warfare. Under this clause, in
the absence of specific rules of IHL: « 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 public conscience »78.

So, while political organs of the United Nations played down the importance
of IHL, the ICJ reaffirmed its application in a situation which, paradoxically, was
not related to an armed conflict. The ICJ referred to its statement in the Corfu
Channel Case in subsequent cases.

B) 1968 to 199079

The situation changed in the wake of a conference on human rights with took
place in 1968 in Tehran, under the auspices of the United Nations. Resolution

73
Id., at 15-16; Kalshoven, op.cit., note 1, at 18-19.
74
Convention on the Prevention and Punishment of the Crime of Genocide, (1951)
78.UNTS 277; Roberts/Guelff, op.cit., note 1, at 179 et seq.
75
(United Kingdom v. Albania), Merits, 1949 I.C.J. Rep. 4.
76
Id., at 22.
77
See Roberts/Guelff, op.cit., note 3, at 8-9; S. Miyazaki, « The Martens Clause and
international humanitarian law », in Swinarski, op.cit., note 5, at 433.
78
A more modern version of the clause is found in article 1 (2) of Protocol I (1977), as
well as in the Preamble of Protocol II (1977).
79
See Kalshoven, op.cit., note 1, at 19 et seq.; Robert/Guelff, op.cit., note 3, at 15-17.
157
C. EMANUELLI

XXIII80, which was adopted by the Conference, requested the General Assembly
of the United Nations to invite the Secretary General to study steps « to secure the
better application of existing international humanitarian Conventions and rules in
all armed conflicts ».

The Resolution also called for an enquiry into the « need for additional
humanitarian international Conventions or for possible revision of existing
Conventions to ensure the better protection of civilians, prisoners and combatants
in all armed conflicts and the prohibition and limitation of the use of certain
methods and means of warfare ». Resolution XXIII was endorsed by General
Assembly Resolution 2444 (XXIII) (1968) entitled « Respect for Human Rights
in Armed Conflicts ». So, it is through the promotion and protection of human
rights, for which the United Nations is responsible under the Charter, that the
Organization came to be involved in IHL.

In the 1960s, the United Nations involvement in IHL became focused on wars
of national liberation. Indeed, newly independent States, socialist States as well as
some western States supported these wars in the name of the right of self
determination of peoples. According to the United Nations, wars of national
liberation were to be considered as international armed conflicts and captured
fighters should be given prisoner of war status and treatment. This position is
reflected in general Assembly resolutions adopted between 1968 and 197381. It
also made its way into articles 1 (4) and 44 of Protocol I.

So, according to article 1 (4):

« armed conflicts in which peoples are fighting against colonial domination

and alien occupation and against racist regimes in the exercise of their right of
self-determination » are international armed conflicts. As such, they are governed
by the four Geneva Conventions as well as by additional Protocol I. The
provisions of article 1 (4) set an important development. Indeed, without them,
wars of national liberation are non-international armed conflicts governed only by
article 3 common to the four Geneva Conventions.

Moreover, under article 44 (3) of Protocol I, a guerrilla fighter is considered

to be a lawful combatant, entitled to prisoner of war status and treatment if
captured by the enemy, « provided that [...] he carries his arms openly:

80
See Schindler, loc.cit., note 2, at 8-9; A.H. Robertson, « Humanitarian law and
Human rights », in Swinarski, op.cit., note 5, at 793.
81
See D. Schindler, « The Different Types of Armed Conflicts According to the Geneva
Conventions and Protocols », (1979) 163 Recueil des Cours, Académie de droit
international 117, at 133; A. Cassese, « Wars of national liberation and humanitarian law
», in Swinarski, op.cit., note 5, 313, at 314.
158
 INTERNATIONAL HUMANITARIAN LAW…

a) during each military engagement, and

b) during such time as he is visible to the adversary while he is engaged in a
military deployment preceding the launching of an attack in which he is to
participate ».

Furthermore, according to article 44 (4), a guerilla fighter who does not

comply with the conditions set out in the preceding paragraph is not a lawful
combatant. If captured by the enemy, he is not entitled to prisoner of war status.
However, he is entitled to prisoner of war treatment.

Again, these provisions set an important development. Indeed, they are

looser than those of article 4 (A) of Geneva Convention III, which traditionally
identifies the categories of combatants who are entitled to prisoner of war status
and treatment, if captured by the enemy.

Apart from setting important developments in terms of IHL, the provisions of

articles I (4) and 44 (3) (4) are quite controversial. They explain to a large extent
why some States are not parties to Protocol I. On a more positive note, it should
also be mentioned that the provisions of Protocol I dealing with the protection of
civilians reflect the « Basic principles for the Protection of Civilian Populations in
Armed Conflicts » found in United Nations General Assembly Resolution 2675
(XXV) of 197082. Unlike the provisions of articles 1 (4) and 44 (3) (4), they
reflect the position of the international community as a whole.

In the 1970s, the United Nations also focused its attention on the conduct of
hostilities. Thus, during that time, the United Nations General Assembly adopted
several resolutions dealing with possible prohibitions or limitations on the use of
certain specific conventional weapons. The diplomatic conference which adopted
the two additional protocols was supposed to address the issue. However, in the
end, the conference could only adopt some general provisions on this question83,
such as those found in art. 36 of Protocol I, for example. As a result, a new
United Nations conference was convened in 1979 and 1980. It saw the adoption
of the 1980 United Nations Convention on Prohibitions or Restrictions on the Use
of Certain Conventional Weapons which May be Deemed to be Excessively
Injurious or to Have Indiscriminate Effects84. The types of weapons covered by
the Convention as well as the limitations affecting their use, are described in three
Protocols annexed to the Convention:

- Protocol I prohibits the use of any weapon the primary effect of which is
to injure by fragments which are not detectable in the human body by x-rays;
- Protocol II regulates the use on land of mines, booby traps and other
similar devices;
- Protocol III regulates the use of incendiary weapons, such as napalm.

82
See Robert/Guelff, op. cit., note 3, at 16; Bugnion, op.cit., note 18, at 842 et seq.
83
See Kalshoven, op.cit., note 1, at 21, 23.
84
See Roberts/Guelff, op.cit., note 3, at 515 et seq.
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C. EMANUELLI

- A fourth protocol was added to the list in 1995. It prohibits the use and
transfer of blinding laser weapons.

Also, amendments to Protocol II were adopted in 1996 to strengthen its

application. Yet, some States, like Canada, consider that even as amended,
Protocol II does not go far enough. They concluded the Ottawa Convention of
199785 which prohibits the manufacture, transfer, possession and use of anti-
personnel land mines. Moreover, new amendments to Protocol II dealing with
anti-vehicle mines (AVMs) are currently being considered by the United Nations.

Efforts by the United Nations to regulate the conduct of hostilities also led to
the adoption of the 1976 United Nations Convention on the Prohibition of
Military or Any Other Hostile Use of Environmental Modification Techniques
(the ENMOD Convention). Under its article 1, the Convention prohibits the use
of military or other hostile environment modification techniques which have
« wide-spread, long lasting or severe » effects. Its principles were reaffirmed by
the Review Conference which was held in accordance with article 8 of the
Convention.

During the same period, the ICJ reaffirmed and substantiated some principles
of IHL in the Nicaragua Case (1986)86. In that case, the ICJ reaffirmed the
fundamental character of article 3 common to the four Geneva Conventions which
was described by the Court as a minimum yardstick of international standards
applicable to all armed conflicts, including international armed conflicts (para.
218).

In the same case, the ICJ also reaffirmed the fundamental obligations
resulting from article 1 common to the four Geneva Conventions. Under that
article, States must respect and ensure respect for the Geneva Conventions in all
circumstances. According to the Court, these obligations do « not derive only
from the Conventions themselves, but from the general principles of humanitarian
law to which the Conventions merely give specific expression » (para. 220). In
view of these obligations, the Court held that the United States is under an
obligation not to encourage violations of article 3 common to the four Geneva
Conventions (para. 220). It also found that the United States had breached this
obligation (para. 292).

The Court further held that « the provision of strictly humanitarian aid to
persons or forces in another country, whatever their political affiliations or
objectives, cannot be regarded as unlawful intervention, or as in any other way
contrary to international law » (par. 242). However, the Court did not go as far as
to recognize the existence of a right of humanitarian intervention.

85
See Roberts/Guelff, op.cit., note 3, at 407 et seq.
86
Supra, note 63.
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 INTERNATIONAL HUMANITARIAN LAW…

C) Since 1990

Since the end of the Cold war, the Security Council has increased its role in
the implementation of IHL, often acting under chapter VII of the United Nations
Charter87. In so doing, the Security Council has also played a role in the
development of IHL.

As to the implementation of IHL, the Security Council has adopted numerous

resolutions reaffirming the obligation of the parties to an armed conflict to comply
with IHL in general and with the Geneva Conventions in particular (for instance
in Resolutions 764, 771, 780 (1992) ; 808, 815 (1993). All related to the conflicts
in the former Yugoslavia).

Moreover, in several cases, the Security Council has identified violations of

IHL and demanded their immediate cessation. Such was the case in Resolution
674 (1990) in which the Security Council condemned the taking of third-State
nationals as hostages, their mistreatment as well as that of Kuwaiti nationals.
Such was also the case in Resolution 681 (1990) in which the Security Council
condemned the deportation of Palestinians from territories occupied by Israel in
violation of Geneva Convention IV. In many resolutions relating to the conflicts
in the former Yugoslavia, the Security Council condemned the practice of ethnic
cleansing (Resolutions 787 (1992), 820 (1993), 836 (1993)) and warned the
offenders of their individual responsibility.

In order to identify the applicable rules, the Security Council has

characterized some situations. Thus, in Resolution 681 (1990), the Security
Council urged Israel to recognize the de jure applicability of Geneva Convention
IV to all territories occupied since 1967 and to comply with its provisions. In so
doing, the Security Council characterized the situation in territories held by Israel
since 1967 as one of military occupation. Also, the Security Council characterized
the coalition presence in Iraq until June 2004 as military occupation and asked the
occupying powers to comply with Geneva Convention IV (Resolutions 1472
(2003), 1546 (2004)) .

Moreover, in some cases, the Security Council took concrete measures to

ensure the implementation of IHL. Thus, the Security Council authorized member
States to take military sanctions against Iraq in part to respond to violations of
IHL (Resolution 678 (1990)). In the same vein, the Security Council adopted
sanctions against the Federal Republic of Yugoslavia (Serbia and Montenegro)
(Resolutions 757 (1992), 820 (1993)). Also, during the armed conflict in Bosnia,

87
See M. Nabot, « Le rôle du Conseil de sécurité dans la mise en oeuvre du droit
international humanitaire (notamment au travers de son pouvoir coercitif) », in
International Institute of Humanitarian Law, Application of International Humanitarian
Law, Human Rights and Refugee Law: UN Security Council, Peacekeeping Forces,
Protection of Human Beings in Disaster Situations, International Conference, Sanremo, 8-
10 September 2005, Proceedings, at 117.
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C. EMANUELLI

the Security Council established « safe areas » to ensure the protection of civilians
and allowed UNPROFOR as well as other foreign forces to use force to defend
those areas (Resolutions 819, 824, 836, 844 (1993)).

Furthermore, the Security Council established fact finding and investigative

commissions on an ad hoc basis to deal with violations of IHL, of human rights
law and with acts of genocide. Thus, by way of Resolution 446 (1979), the
Security Council established a commission « to examine the situation relating to
settlements in the Arab territories occupied since 1967, including Jerusalem ».
Then, ad hoc commissions were established to investigate serious violations of
IHL in the former Yugoslavia, in Rwanda (including possible acts of genocide in
that case) and in Darfur (Resolutions 780 (1992), 935 (1994), 1564 (2004)
respectively). In turn, a commission of inquiry was established by the Security
Council to investigate possible violations of human rights following the
presidential elections in Côte d’Ivoire (2000). Also, fact-finding missions were
carried out in relation to events in Andijan, Uzbekistan and Togo under United
Nations auspices.

Following the reports of the Commissions of Experts for the former

Yugoslavia and for Rwanda, the Security Council established the ICTY in 1993
and the ICTR in 1994 to prosecute violations of IHL committed during the
respective armed conflicts. More recently, it contributed to the establishment of
the Special Court for Sierra Leone (Resolution 1315 (2000)). It also referred the
situation in Darfur to the ICC (Resolution 1593 (2005)), which was established by
a diplomatic conference prepared by the United Nations.

As it becomes more involved in the implementation of IHL, the Security

Council also plays an active role in its development. Thus, the Security Council
has repeatedly called for individual criminal responsibility for violations of IHL,
including in non-international armed conflicts. In so doing, the Security Council
has contributed to extend the concept of individual criminal responsibility for
violations of IHL to this category of conflicts88. This is reflected in the Statute of
the ICTR89 and in particular in its article 4. Indeed, under this article, the
Tribunal has jurisdiction over violations of article 3 common to the four Geneva
Conventions and of Additional Protocol II which deal with non-international
armed conflicts. In turn, the Statute of the Special Court for Sierra Leone
confirms that serious violations of article 3 and of Protocol II give rise to
individual criminal responsibility90. Finally, articles 6, 7 and parts of article 8 of
the Statute of the International Criminal Court apply to non-international armed
conflicts91.

88
See M. Sassoli, « Interpretation of International Humanitarian Law by the UN
Security Council », Id., at 98.
89
See Roberts/Guelff, op.cit., note 3, at 615 et seq.
90
See A. Dieng, « Le Conseil de sécurité et la mise en place des tribunaux ad hoc pour
l’Ex-Yougoslavie, le Rwanda et la Sierra Leone, in International Institute of Humanitarian
Law », op.cit., note 88 at 80, 84 et seq.
91
See Roberts/Guelff, op.cit., note 3.
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 INTERNATIONAL HUMANITARIAN LAW…

On a different note, the Security Council has also moved away from the
Hague Rules on military occupation and extended the authority of the powers
occupying Iraq92. According to the Hague Rules of 1907, the rights of occupying
powers are strictly limited. Thus, under article 43, the laws in force in the
occupied country must be respected. Under article 55, the occupying party is
merely an administrator and usufructuary of the natural resources of the occupied
territories. However, Security Council Resolution 1483 (2003), adopted under
Chapter VII of the United Nations Charter, provides that the sale of Iraqi oil and
the use of proceeds by powers occupying Iraq are allowed to fund long-term
economic reconstruction projects to benefit that country.

Also, Security Council Resolutions 1483, 1511 and 1546 have authorized
occupying forces to promote political changes in Iraq, including the adoption of a
new Constitution.

In view of article 103 of the United Nations Charter, the aforementioned

resolutions override the relevant Hague Rules with which they conflict. However,
they are exceptions to the Rules. As such, they are not intended to amend the
Rules. Yet, they constitute precedents which can be followed in other situations.

Moreover, during the same period, the United Nations turned its attention to
the rules applicable to United Nations military operation.

First, in 1994, it adopted the Convention on the Safety of United Nations and
Associated Personnel93. The Convention was adopted as a response to the
growing number of attacks against United Nations personnel. Under the
Convention, such intentional attacks are criminal offences (art. 9)94 which must be
punished by the contracting parties under the formula « prosecute or extradite ».
In other words, the contracting party on which territory a would-be offender is
found must either prosecute the suspect or extradite him to another State, which
has jurisdiction, and which is willing to prosecute (art. 14). However, the
Convention does not apply to United Nations enforcement operations authorized
by the Security Council under chapter VII, in which any of the personnel are
involved as combatants against other organized armed forces (for example:
Operation Desert Storm, 1991). These operations are governed by the law of
armed conflicts (art. 2 (2)).

Moreover, in his 1999 Bulletin on Observance by United Nations forces of

IHL95, the Secretary General recognized that IHL applies to United Nations forces

92
See J. Bellinger, « United Nations Security Council Resolutions and the Application
of International Humanitarian Law, Human Rights and Refugee Law », in International
Institute of Humanitarian Law, op. cit., note 88 at 74, 78; Sassoli, loc.cit., note 89 at 98-
99.
93
See Roberts/Guelff, op.cit., note 3, at 623 et seq.
94
See also article 8 (2) b) iii), e) iii) of the ICC Statute.
95
See Roberts/Guelff, op.cit., note 3, at 721 et seq.
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C. EMANUELLI

whenever they are involved in hostilities, in enforcement actions or in

peacekeeping operations, when the use of force is allowed in self-defence (sect.
1.1).

The applicable principles and rules are informed by the four Geneva
Conventions of 1949 as well as by Protocol I of 1977. They deal with:

- the protection of civilians against attacks (sect. 5);

- means and methods of combat (sect. 6);
- the treatment of civilians and persons hors de combat (sect. 7);
- the treatment of detained persons (sect. 8);
- the protection of the wounded, the sick and medical and relief personnel
(sect. 9).

Violations of these rules and principles are subject to prosecution in national

courts (sect. 4).

The adoption of this Bulletin is another important development. It tends to

put an end to the controversy dating back to the Korean War as to whether the
United Nations is bound by IHL96. Indeed, traditionally, the United Nations
considered that it was only bound by the « principles and spirit » of the law of
armed conflicts, whereas the ICRC insisted that rules of IHL apply to the United
Nations mutatis mutandis. However, the Bulletin is criticized by some States,
which disapprove of the unilateral adoption of specific humanitarian rules
applicable to United Nations forces and which are not parties to Protocol I.

Within the same period, the ICJ has also been active in the field of IHL. Thus,
in its Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons97, the Court distinguished the jus in bello from the jus ad bellum (para.
34 et seq) and from human rights law. In this respect, the Court said that, in the
context of an armed conflict, rules of IHL trump rules of human rights law
because they are the lex specialis (para. 25). The Court also found that the use of
nuclear weapons cannot be considered as specifically prohibited by conventional
rules prohibiting the use of poisoned weapons, since they were not adopted
having this type of weapons in mind (para. 53-56). However, the Court stated that
IHL applies to nuclear weapons (para. 85-87) and it reaffirmed the principle of
distinction between combatants and non combatants as well as the prohibition of
weapons causing superfluous and unnecessary suffering (pars. 78).

The Court further stated that many rules of IHL constitute « intransgressible
principles of international customary law » (para. 79). It then proceeded to
identify the conventional rules of IHL which have, beyond doubt, become part of

96
See D. Shraga, « The United Nations as an actor bound by international humanitarian
law », in L. Condorelli (ed.), The United Nations and International Humanitarian Law,
Paris, Pédone, 1996, at 319; C. Emanuelli, « Les forces des Nations Unies et le droit
international humanitaire », Id., at 345.
97
1996 ICJ Rep. 226.
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 INTERNATIONAL HUMANITARIAN LAW…

customary international law. They include the provisions of the Geneva

Conventions, Hague Convention IV, the1948 Genocide Convention and the
Charter of the International Military Tribunal of 8 August 1945 (para. 81). In the
end, the ICJ said that the threat or use of nuclear weapons would « generally » be
contrary to international law applicable in armed conflict. However, the Court
could not « conclude definitively whether the threat or use of nuclear weapons
would be lawful or unlawful in an extreme circumstance of self-defence, in which
the very survival of a State would be at stake » (para. 105 (2) E)).

Then, in its Advisory Opinion on the Legal Consequences of the Construction

of a Wall in Occupied Palestinian Territory98, the ICJ reaffirmed that the Hague
Rules of 1907 are part of customary international law (para. 89). It also
recognized that Geneva Convention IV is applicable in any case of military
occupation involving contracting parties (para. 95, 101) and found that under
customary international law a « territory is considered occupied when it is
actually placed under the authority of the hostile army, and the occupation
extends only to the territory where such authority has been established and can be
exercised » (para. 78). According to the Court, Geneva Convention IV applies to
Palestinian territories occupied by Israel since 1967 (para. 101). The Court also «
concluded that the Israeli settlements in occupied Palestinian Territory (including
East Jerusalem) have been established in breach on international law » (para.
120). Moreover, the Court made a number of observations relating to the law of
military occupation as it applies to occupied Palestinian territories. As a result, it
found that the construction of the wall runs contrary to human rights law as well
as to IHL (para. 134). As a consequence, the Court indicated that Israel’s
responsibility is engaged under international law (para. 147). It then proceeded to
describe the practical consequence of its findings. Some of those consequences
concern other States. In this respect, the Court stressed that some of the
obligations violated by Israel are obligations erga omnes, such as the obligation to
respect the right of the Palestinian people to self-determination and certain
obligations arising from IHL (para. 155). The Court also reminded the parties
that most rules of IHL are part of customary international law (para. 157) and that
under article 1 common to the four Geneva Conventions, States must respect and
ensure respect for the Conventions (para. 158). Therefore, the Court considered
that « all States are under an obligation not to recognize the illegal situation
resulting from the construction of the wall » (para. 159).

In the case between Congo and Uganda99, the ICJ looked again at the rules
governing military occupation (para.172 et seq.). It found that Uganda had
occupied part of the Democratic Republic of the Congo (D.R.C.). As such,
Uganda was under an obligation to take all possible measures to restore and
ensure public order and safety in the occupied territory, while respecting the laws
in force in the D.R.C. This obligation included the duty to secure respect for

98
2004 ICJ rep. 1017.
99
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), Judgment, (2005) ICJ Rep. X.
165
C. EMANUELLI

human rights law and IHL (para. 178). In this respect, the Court found that
Uganda committed violations of human rights law and of IHL (para. 219). As a
result, the Court concluded that Uganda was internationally responsible for those
violations including the failure to comply with its obligations as an occupying
power (para. 220).

It should also be noted that in the more recent case between Congo and
Rwanda, the World Court recognized that the rule prohibiting genocide is a rule
of jus cogens100.

Finally, the contribution of both the I.C.T.Y. and the I.C.T.R. to the
development and the implementation of IHL should be emphasized101. Indeed,
through the cases they dealt with, both ad hoc tribunals have developed and
clarified the various crimes over which they have jurisdiction under their
respective Statute. For instance, the I.C.T.R. found that rape is an act of genocide
when it is committed against members of an ethnic group. They also contributed
to extend the concept of individual criminal responsibility for violations of IHL to
non-international armed conflicts. The I.C.T.Y. extended the concept of
internationalized non-international armed conflicts, etc.102.

Conclusion

Several international bodies are involved in the development and the

implementation of IHL. However, they don’t all have the same weight. The ICRC
plays a traditional role in the development and the implementation of IHL.
However, in this latter capacity the ICRC lacks teeth. It can only rely on its own
credibility within the international community and on public opinion to secure
respect for IHL. On the other hand, the United Nations involvement in the
development and the implementation of IHL is more recent, but the Organization
has the means of ensuring respect of IHL, if it so decides. Thus, the Security
Council can impose sanctions on those States which commit violations of IHL,
authorize military operations against them, establish ad hoc international criminal
tribunals to prosecute violations of IHL, seize the International Criminal Court of
violations of IHL, etc. Therefore, it is in a better position than the ICRC to ensure
compliance with IHL. As it resorts to Chapter VII of the United Nations Charter
to perform this task, the Security Council is bridging the gap between the jus ad
bellum and the jus in bello. The Security Council is also capable of developing
new rules and of extending the scope of existing ones by adopting decisions. In
this respect, the Security Council can give new blood to IHL. However, on the
downside, the Security Council is a political body. As such, it lacks the neutrality
which is enjoyed by the I.C.R.C. In turn, this affects the credibility of some of its

100
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of the Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the
Application, (2006) ICJ Rep. X.
101
See Roberts/Guelff, op. cit., note 3, at 565 et seq., 615 et seq.; C. Emanuelli, Droit
international public, 2nd ed., Montreal, Wilson & Lafleur, 2004, at 713 et seq.
102
See Emanuelli, Id., at 689-690.
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 INTERNATIONAL HUMANITARIAN LAW…

actions. In practice, there is a growing tendency for the Security Council to

occupy the field when it comes to the implementation of IHL. This is reflected,
for instance, in the fact that the Security Council prefers to establish its own ad
hoc commissions to investigate violations of IHL rather than to resort to the fact
finding Commission provided by article 90 of Additional Protocol I. Thus, even
though the United Nations cooperates with the I.C.R.C. with respect to the
development and the implementation of IHL, it also competes with the
Committee in these areas.

Last but not least, international criminal tribunals play a major role in the
development and the implementation of IHL, by enforcing the principle of
individual criminal responsibility. Above all, it is clear that international body,
and in particular the ones studied above, have defined IHL as it stands today.
They now face new challenges as the nature of armed conflicts keeps evolving.

167
168