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C.
International Humanitarian Law 57.
To the extent that terrorist or counter-terrorist actions may
give rise to or occur in the context of the use of armed force between
states or armed violence between governmental authorities and organized
armed groups or between such groups within a state, as described in
further detail below, they may implicate the possible application of
rules of international humanitarian law in evaluating states’ human
rights obligations. This section provides for an introduction to
humanitarian law, its scope of application and its basic rules as they
presently exist. As observed in the introduction to this report,
however, it cannot be ruled out that new manifestations of terrorist
violence such as those perpetrated in the United States on September 11,
2001 may lead to future developments in international humanitarian law. 58.
International humanitarian law is a branch of international law
that applies in situations of armed conflict and which principally
regulates and restrains the conduct of warfare or the use of violence so
as to diminish its effects on the victims of the hostilities. The
victims of armed conflict who are afforded this protection include
civilians, prisoners of war, and any other members of armed forces
placed hors de combat by
sickness, wounds, detention or any other cause and who have fallen into
the hands of an adverse party.[162]
59.
International humanitarian law is applicable during armed
conflicts, that is to say whenever there is a resort to armed force
between states or low intensity and armed confrontations between State
authorities and organized armed groups or between such groups within a
State.[163]
In this respect, armed conflicts may be of an international or
non-international nature, which in turn affects the specific
international rules that apply to a conflict. In particular, as will be
discussed throughout this report, situations of international armed
conflict trigger an extensive and specialized regime of rules and
regulations under the 1949 Geneva Conventions and related instruments
that impact upon the manner in which international human rights law may
be considered to apply to the victims of such conflicts, including
prisoners of war, unprivileged combatants and civilians. For their part,
internal armed conflicts must also be distinguished from situations of
internal tensions and disturbances, such as demonstrations without a
concerted plan from the outset or isolated sporadic acts of violence,[164]
which are not presently governed by international humanitarian law but
rather are covered by universal and regional human rights instruments.[165]
In all cases, the determination as to the existence and nature of an
armed conflict is an objective one, based upon the nature and degree of
hostilities, irrespective of the purpose or motivation underlying the
conflict[166]
or the qualification by Parties to the conflict.[167]
60.
Temporally and geographically, international humanitarian law
applies “from the initiation of such armed conflicts and extends
beyond the cessation of hostilities until a general conclusion of peace
is reached; or, in the case of internal conflicts, a peaceful settlement
is achieved. Until that moment, international humanitarian law continues
to apply in the whole territory of 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.”[168] 61.
In situations of armed conflict, both international human rights
law and international humanitarian law apply.[169]
Nevertheless, the American Convention and other universal and regional
human rights instruments were not designed specifically to regulate
armed conflict situations and do not contain specific rules governing
the use of force and the means and methods of warfare in that context.
Accordingly, in situations of armed conflict, international humanitarian
law may serve as lex specialis
in interpreting and applying international human rights instruments.[170]
For example, both Article 4 of the American Convention and humanitarian
law applicable to armed conflicts protect the right to life and, thus,
prohibit summary executions in all circumstances. However, reference to
Article 4 of the Convention alone may be insufficient to assess whether,
in situations of armed conflicts, the right to life has been infringed.
This is in part because the Convention is devoid of rules that either
define or distinguish civilians from combatants and other military
targets. Nor does the Convention specify the circumstances under which
it is not illegal, in the context of an armed conflict, to attack a
combatant or civilian or when civilian casualties as a consequence of
military operations do not imply a violation of international law.
Consequently, in such circumstances, one must necessarily look to and
apply definitional standards and relevant rules of international
humanitarian law as sources of authoritative guidance in the assessment
of the respect of the inter-American Instruments in combat situations.[171] 62.
It is therefore appropriate, and indeed imperative, for the
Commission to consider all relevant international norms, including those
of international humanitarian law, while interpreting the international
human rights law instruments for which it is responsible.[172]
International humanitarian law is also pertinent to the Commission’s
interpretation of and application of human rights protection to the
extent that, as described previously, states’ treaty obligations in
these regimes of international law prescribe interrelated and mutually
reinforcing standards of protection.[173] 63.
The principal sources of international humanitarian law are the
four Geneva Conventions of 1949,[174]
their Additional Protocols I[175]
and II[176]
of 1977, the Hague Conventions of 1899 and 1907 and associated
regulations,[177]
and the customary laws of war. Most of the provisions of the Hague
Conventions,[178]
the 1949 Geneva Conventions,[179]
and Additional Protocol I,[180]
are applicable in international armed conflicts or belligerent
occupations, defined as cases of declared war or of any other armed
conflict which may arise between two states, even if the state of war is
not recognized by one of them, cases of partial or total occupation of
the territory of a state by another, even if the said occupation meets
with no armed resistance,[181]
and, in the case of Additional Protocol I, 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.[182]
Article 3 common to the Four Geneva Conventions, on the other hand, was
developed to apply to armed conflicts which are not of an international
character[183]
and has subsequently been interpreted as constituting the minimum
standards of international humanitarian law applicable in all armed
conflicts.[184]
Additional Protocol II,[185]
which develops and supplements many of the protections contained in
common Article 3, is specifically applicable in a more narrowly defined
category of internal armed conflicts, namely those which take place in
the territory of a state between its armed forces and dissident armed
forces or other organized armed groups which, under responsible command,
exercise such control over a part of its territory as to enable them to
carry out sustained and concerted military operations and to implement
international humanitarian law.[186]
Notwithstanding the narrower application of Additional Protocol II,
however, certain of its provisions, including the fundamental guarantees
under Articles 4, 5 and 6, are considered to develop protections
prescribed in common Article 3 and should therefore likewise be
considered to apply in all non-international armed conflicts. Virtually
every OAS member state has also ratified one or more of the 1949 Geneva
Conventions and or other humanitarian law instruments.[187]
64.
Much of the treaty law canvassed above is widely considered to
constitute customary international law[188]
binding on all states,[189]
including in particular the 1907 Hague Convention and its annexed
Regulations concerning the Laws and Customs of War on Land,[190]
the Four Geneva Conventions of 1949[191]
including their grave breach provisions[192]
and common Article 3,[193]
and the core of Additional Protocols I and II,[194]
including Articles 51(1), 52(1) and 75 of Additional Protocol I[195]
and Articles 4, 5, 6 and 13(2) of Additional Protocol II.[196]
65.
In addition, notwithstanding the distinctive regimes of
protection that apply to international and non-international armed
conflicts, it has been widely recognized that certain norms apply in all
armed conflicts regardless of their nature.[197]
These include the protections under common Article 3 and their
corresponding provisions under Additional Protocol II,[198]
as well as:
•
The principle of military necessity, which justifies those
measures of military violence not forbidden by international law that
are necessary and proportionate to securing the prompt submission of the
enemy with the least possible expenditure of human and economic
resources.[199]
•
The principle of humanity,[200]
which both complements and inherently limits the doctrine of military
necessity. This principle prohibits the infliction of suffering, injury
or destruction not actually necessary, i.e. proportionate, for the
realization of lawful military purposes.[201]
Moreover, the principle of humanity also confirms the basic immunity of
civilians from being the object of attack in all armed conflicts.
Accordingly, the conduct of hostilities by the parties to all armed
conflicts must be carried out within the limits of the prohibitions of
international law, including the restraints and protections inherent in
the principles of military necessity and humanity.[202]
66.
Inherent in the principles of military necessity and humanity are
the principles of proportionality and distinction. The principle of
proportionality prohibits an attack which may be expected to cause
incidental loss of civilian life, injury to civilians, damage to
civilian objects, or a combination thereof, which would be excessive in
relation to the concrete and direct military advantage anticipated.[203]
In a similar vein, the principle of distinction prohibits, inter
alia, the launching of attacks against the civilian population or
civilian objects and requires the parties to an armed conflict, at all
times, to make a distinction between members of the civilian population
and persons actively taking part in the hostilities or civilian objects
and military objectives,[204]
and to direct their attacks only against persons actively taking part in
the hostilities and other legitimate military objectives.[205]
67.
While certain norms are common to all armed conflicts regardless
of their nature, others are limited to the realm of international armed
conflicts as defined in the 1949 Geneva Conventions and Additional
Protocol I. Among the most significant of these norms is the notion of
the “combatant’s privilege” and the related concept, discussed
below, of “prisoner of war status.” A “combatant” is generally
defined as a person who directly engages in hostilities by participating
in an attack intended to cause physical harm to enemy personnel or
objects. A “lawful” or “privileged” combatant is a person
authorized by a party to an international armed conflict to engage in
hostilities and, as such, is entitled to the protection encompassed in
the “combatant’s privilege” as well as the status and protections
of a prisoner of war as provided for under the Third Geneva Convention
when they have fallen into the power of the enemy.[206]
Article 4A of the Third Geneva Convention, which reflects the
requirements of the 1899 and 1907 Hague Conventions and is broadly
considered to constitute customary international law, prescribes the
categories of privileged combatants as encompassing the following:
1.
Members of the armed forces of a Party to the conflict as well as
members of militias or volunteer corps forming part of such armed
forces.
2.
Members of other militias and members of other volunteer corps,
including those of organized resistance movements, belonging to a Party
to the conflict and operating in or outside their own territory, even if
this territory is occupied, provided that such militias or volunteer
corps, including such organized resistance movements, fulfill the
following conditions: (a)
That of being commanded by a person responsible for his
subordinates; (b)
That of having a fixed distinctive sign recognizable at a
distance; (c)
That of carrying arms openly; (d)
That of conducting their operations in accordance with the laws
and customs of war. 3.
Members of regular armed forces who profess allegiance to a
government or an authority not recognized by the Detaining Power. 4.
Persons who accompany the armed forces without actually being
members thereof, such as civilian members of military aircraft crews,
war correspondents, supply contractors, members of labour units or of
services responsible for the welfare of the armed forces, provided that
they have received authorization from the armed forces which they
accompany, who shall provide them for that purpose with an identity card
similar to the annexed model. 5.
Members of crews, including masters, pilots and apprentices, of
the merchant marine and the crews of civil aircraft of the Parties to
the conflict, who do not benefit by more favourable treatment under any
other provisions of international law. 6.
Inhabitants of a non-occupied territory, who on the approach of
the enemy spontaneously take up arms to resist the invading forces,
without having had time to form themselves into regular armed units,
provided they carry arms openly and respect the laws and customs of war.[207] 68.
The combatant’s privilege in turn is in essence a license to
kill or wound enemy combatants and destroy other enemy military
objectives. A privileged combatant may also cause incidental civilian
casualties. A lawful combatant possessing this privilege must be given
prisoner of war status, as described below, upon capture and immunity
from criminal prosecution under the domestic law of his captor for his
hostile acts that do not violate the laws and customs of war. This
immunity does not, however, extend to acts that transgress the rules of
international law applicable in armed conflict.[208]
69.
In converse to this is the status in international armed
conflicts of the “unprivileged” combatant, sometimes referred to as
an “unlawful combatant”, namely a person who does not have the
combatant’s privilege but nevertheless directly participates in
hostilities. Such unlawful belligerents include irregular or part-time
combatants, such as guerrillas, partisans, and members of resistance
movements, who either fail to distinguish themselves from the civilian
population at all times while on active duty or otherwise do not fulfill
the requirements for privileged combatant status, as well as those
privileged combatants who violate the requirements regarding mode of
dress, such as regular military personnel who are caught spying while
out of uniform. Others falling within the category of unprivileged
combatants are civilians, noncombatant personnel in the armed forces, as
well as noncombatant members of the armed forces who, in violation of
their protected status, actively engage in hostilities.[209]
These persons temporarily forfeit their immunity from direct
individualized attack during such time as they assume the role of a
combatant.[210]
It is possible in this connection, however, that once a person qualifies
as a combatant, whether regular or irregular, privileged or
unprivileged, he or she cannot on demand revert back to civilian status
or otherwise alternate between combatant and civilian status.[211]
Unlike privileged combatants, unlawful combatants upon capture can be
tried and punished under municipal law for their unprivileged
belligerency, even if their hostile acts complied with the laws of war.
It should also be noted that the term “unlawful” combatant is used
only to denote the fact that the person lacks the combatant’s
privilege and is not entitled to participate in hostilities. Mere
combatancy by such persons is not tantamount to a violation of the laws
and customs of war, although their specific hostile acts may qualify as
such. 70.
Since lawful combatant and prisoner of war status directly flow
from the combatant’s privilege, recognition of this privilege is
limited under customary and conventional international law to situations
of international armed conflict as defined under the 1949 Geneva
Conventions and Additional Protocol I. In contrast, a government engaged
in a civil war or other kind of internal hostilities is not obliged to
accord its armed opponents prisoner of war status since these dissidents
do not have the combatant’s privilege. Such governments therefore are
free to prosecute all captured dissidents for sedition and their other
violent acts.[212]
At the same time, there is no rule of international law that prohibits a
government during international armed conflict from according members of
dissident armed groups prisoner of war or equivalent status.
71.
With regard to the issue of supervision of compliance with the
law of armed conflict, international humanitarian law treaties are to a
significant extent self-regulating, as states parties to the treaties
undertake to respect and ensure respect for the terms of the agreements
through such mechanisms as training, information dissemination, and
prescription and enforcement of disciplinary and penal sanctions under
domestic law.[213]
The terms of the 1949 Geneva Conventions do, however, provide for two
specific external supervisory mechanisms: the Protecting Powers regime,
which is applicable only in international armed conflicts and to-date
has never been employed;[214]
and the services of the International Committee of the Red Cross, which
may be offered and accepted in the context of international or
non-international armed conflicts[215]
as well as potentially in situations of tensions and disturbances
falling short of armed conflict.[216]
These mechanisms are supplemented by provisions under the Third and
Fourth Geneva Convention and Additional Protocol I which provide for
review procedures for the determination of the status and treatment of
protected persons under certain circumstances and are discussed in Part
III(F) below.[217]
Article 90 of Additional Protocol I further provides for an
International Fact Finding Commission, whose mandate includes, inter
alia, inquiring into any facts alleged to be a grave breach as
defined in the Geneva Convention or Protocol I or other serious
violations of those instruments in respect of those states parties that
have recognized the competence of the Commission in this regard.[218]
Finally, it should be recalled that the recently-established
International Criminal Court has been provided with jurisdiction to
prosecute, inter alia,
serious violations of international humanitarian law committed in
international and non-international armed conflicts, where the
conditions for the admissibility of such violations have been satisfied.[219]
72.
It is also significant to recognize that international
humanitarian law differs from international human rights law in terms of
the actors whose conduct it regulates and in respect of whom it imposes
international legal responsibility. As mentioned in the previous
section, international human rights law governs directly the conduct of
the state and its agents. Accordingly, certain violations of such norms
by the state may imply state responsibility. International humanitarian
law also governs the conduct of the state and its agents, but, in
addition, that of non-state actors, as it equally applies to and
expressly binds all the parties to an armed conflict.[220]
In this way, international humanitarian law regulates the behavior of
state security forces, dissident armed groups and all of their
respective agents and proxies.[221]
Moreover, certain violations of international humanitarian law may
generate not only state responsibility, but also the individual criminal
responsibility of the perpetrator and, under the doctrine of superior or
command responsibility,[222]
his or her superior.[223]
Violations of international humanitarian law by states, groups or
persons during a conflict do not, however, affect the continued
application of humanitarian law to that conflict nor do they justify
violations by opposing parties.[224]
74.
The Commission also considers it crucial to note at this stage
the importance of determining the status under international
humanitarian law of individuals who take part in terrorist violence in
the context of international armed conflicts, as it is from this status
that the lex specialis of
international humanitarian law protections for such individuals will to
a significant extent be derived. Specifically, where, in the context of
an international armed conflict, individuals take direct part in
hostilities by perpetrating or otherwise participating in terrorist
violence but do not qualify as lawful combatants,
because, for example, they are not authorized by a party to the
conflict to engage in hostilities as provided for under Article 4 of the
Third Geneva Convention, they may properly be considered to be unlawful
combatants.[230]
While these individuals will, as a consequence, not qualify for the
protections of the Third or Fourth Geneva Conventions, they will
nevertheless be entitled to the minimum standards of protection under
Article 75 of Additional Protocol I.
75.
Where, in relation to a terrorist act or situation, an armed
conflict cannot be said to exist, terrorist actions or anti-terrorist
initiatives would be subject exclusively to international human rights
law and domestic law, as described in the previous section.[231] 76.
Given the broad focus of the current report, the Commission’s
analysis will consider principally those fundamental human rights and
humanitarian law protections that are widely considered to constitute a
part of customary international law and to be applicable to all armed
conflicts. These protections include the core rights common to most
international human rights instruments such as the right to life, the
right to humane treatment and the right to due process, as well as
corresponding protections embodied in specific provisions of
international humanitarian treaty law, in particular Article 3 common
to the Four Geneva Conventions,[232]
core provisions of Article 75 of Additional Protocol I to the 1949
Geneva Conventions,[233]
and Articles 4 to 6 of Additional Protocol II to the 1949 Geneva
Conventions.[234]
Common Article 3 provides as follows: In
the case of armed conflict not of an international character occurring
in the territory of one of the High Contracting Parties, each Party to
the conflict shall be bound to apply, as a minimum, the following
provisions: 1.
Persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those placed
hors de combat by sickness, wounds, detention, or any other cause, shall
in all circumstances be treated humanely, without any adverse
distinction founded on race, colour, religion or faith, sex, birth or
wealth, or any other similar criteria. To this end, the following acts
are and shall remain prohibited at any time and in any place whatsoever
with respect to the above-mentioned persons: (a)
violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture; (b)
taking of hostages; (c)
outrages upon personal dignity, in particular humiliating and
degrading treatment; (d)
the passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly constituted court,
affording all the judicial guarantees which are recognized as
indispensable by civilized peoples. 2.
The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International
Committee of the Red Cross, may offer its services to the Parties to the
conflict. The Parties to the conflict should further endeavour to bring
into force, by means of special agreements, all or part of the other
provisions of the present Convention. The application of the preceding
provisions shall not affect the legal status of the Parties to the
conflict. 77.
This provision contains fundamental guarantees applicable at all
times during armed conflicts, for the benefit of persons who do not or
no longer take an active part in the hostilities. Similar guarantees,
which supplement and develop those under Common Article 3, are provided
for by Articles 4 to 6 of Additional Protocol II in respect of persons
no longer taking part in the hostilities of a non-international armed
conflict, and by Article 75 of Additional Protocol I in respect of
persons who are in the power of a party to the conflict to an
international armed conflict and who do not benefit from more favorable
treatment under the 1949 Conventions or Additional Protocol I, such as
certain unprivileged combatants who do not fall within the protection of
the Third or Fourth Geneva Convention or Additional Protocol I with
respect to states parties to that instrument.[235]
78.
Finally, it should be emphasized that the rules of international
humanitarian law are non-derogable, subject to very limited exceptions.[236]
As a consequence, the minimum standards prescribed under international
humanitarian law cannot be suspended, even if the American Convention
might otherwise permit derogation from corresponding protections. Where,
for example, international humanitarian law prescribes minimum standards
of due process, states cannot rely upon any permissible derogations from
this right under international human rights law to avoid respect for
these standards in armed conflict situations. This approach is mandated
in part by Articles 27 and 29 of the American Convention, which prohibit
any measures of derogation that are inconsistent with a state’s other
obligations under international law and which foreclose any
interpretation of the Convention that restricts the enjoyment of
exercise of any right or freedom recognized by virtue of another
convention to which a state is a party.
[ TABLE OF CONTENTS | PREVIOUS | NEXT ]
[162]
IACHR Report on Colombia (1999), supra
note 110, at 74, para. 10.
See also
M.
Sassoli & A. Bouvier, How
does law protect in war, (ICRC, 1999), at p. 67
[hereinafter Sassoli
& Bouvier]. [163]
Abella
Case, supra note
73, para. 152. See
similarly International Criminal Tribunal for the Former
Yugoslavia, Prosecutor v. Dusko Tadić, IT-94-1, Appeals Chamber,
Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 70 [hereinafter Tadić AC
Decision Jurisdiction]. [164]
See ICRC, Protection
and Assistance Activities in Situations Not Covered by International
Humanitarian Law, 262 Int’l
Rev. Red Cross 9, 13 (1988). [165]
See Hans-Peter Gasser, A
Measures of Humanity in Internal Disturbances and Tensions: Proposal
for a Code of Conduct, 262 Int’l
Rev. Red Cross 38, 42 (1988). See
also Declaration of Turku Abo (2 December 1990) (declaring minimum
humanitarian standards applicable in all situations, including
internal violence, disturbances, tensions, and public emergency, and
which cannot be derogated from under any circumstances). [166]
See Abella Case, supra
note 73, para. 153.
One narrow exception to his rule is prescribed in Article 1(4)
of Additional Protocol I, which incorporates within the classes of
conflicts governed by the Protocol “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”. See
Additional Protocol I, supra
note 68, Article1(4). [167]
See Article 2 Common to the Geneva Conventions, supra
notes 36, 67. [168]
Tadić AC Decision Jurisdiction, supra
note 163, at para. 70. See also IACHR Report on Colombia
(1999), supra note 110, at
95, Part IV, para. 83. [169]
IACHR Report on Colombia (1999), supra
note 110, at 74, Part IV, para. 9. Abella Case, supra
note 73, para. 158. [170]
IACHR Report on Colombia (1999), supra
note 110, at 74, Chapter IV, paras. 8-11. See also Abella Case,
supra note 73, paras.
158-159; Case 11.142, Report Nº 26/97, Arturo Ribón Avilan
(Colombia), Annual Report of the IACHR (1997), para 171. [171]
See IACHR Report on Colombia (1999), supra
note 110, at 75, Chapter IV, para. 12. See
also Abella Case, supra
note 73, para. 161. [172]
American Convention on Human Rights, supra
note 61, Article 29. See also
Advisory Opinion OC-16/99, supra
note 129, para. 36 et seq. [173]
See Part II(B). para. 45
(International Human Rights Law), para. F.9. See
also American Convention on Human Rights, supra
note 61, Article 27 (1) and 29; Additional Protocol I, supra
note 68, Article 75 (8); Advisory Opinion OC-1/82, supra
note 73; Advisory Opinion OC-16/99, supra
note 129, paras. 29 et seq.; Villagran
Morales Case, supra note
130, paras. 178-198 (interpreting the American Convention on
Human Rights in light of pertinent provisions of the UN Convention on
the Rights of the Child, supra
note 122). [174]
First Geneva Convention, supra
note 67, Second Geneva Convention, supra
note 67, Third Geneva Convention, supra
note 67, Fourth Geneva Convention, supra
note 36. [175]
Additional Protocol I, supra
note 68. [176]
Additional Protocol II, supra note
36. [177]
In particular the Fourth Convention respecting the Laws and Customs of
War on Land and its annex: Regulation concerning the Laws and Customs
of War on Land, 18 October 1907, 3 Martens Nouveau Recueil (ser. 3)
461, 187 Consol. T.S. 227 [hereinafter 1907 Hague Convention and
Regulations]. [178]
Hague Convention Nº I of July 29, 1899, for the Pacific Settlement of
International Disputes, 32 Stat. 1803, T.S. Nº 392; Hague Convention
Nº II of July 29, 1899 with Respect to the Laws and Customs of War on
Land, 32 Stat. 1803, T.S. Nº 403; Hague Convention Nº III of July
29, 1899, for the Adaptation to Marine Warfare of the Principles of
the Geneva Convention of August 22, 1864, 32 Stat. 1827, T.S. Nº 396;
Hague Convention Nº IV of July 29, 1899, Prohibiting Launching of
Projectiles and Explosives from Balloons, 32 Stat. 1839, T.S. Nº 393;
Hague Convention Nº I of October 18, 1907, for the Pacific Settlement
of International Disputes, 32 Stat. 2199, T.S. Nº 536; Hague
Convention Nº II of October 18, 1907, Respecting the Limitations on
the Employment of Force for the Recovery of Contract Debts, 36 Stat.
2241, T.S. Nº 537; Hague Convention No. III of October 18, 11907,
Relative to the Opening of Hostilities, 36 Stat. 2259, T.S. Nº 538;
Hague Convention Nº IV of October 18, 1907, Respecting the Laws and
Customs of War on Land and the Regulation Annexed thereto, supra
note 177; Hague Convention V of October 18, 1907, Respecting the
Rights and Duties of Neutral Powers and Persons in Case of War on
Land, 36 Stat. 2310, T.S. Nº 540; Hague Convention Nº VIII of
October 18, 1907, Relative to the Laying of Automatic Submarine
Contact Mines, 36 Stat. 2332, T.S. Nº 541; Hague Convention No. IX of
October 18, 1907, Concerning Bombardment by Naval Forces in Time of
War, 36 Stat. 2351, T.S. Nº 542; Hague Convention Nº X of 18 October
1907, for the Adaptation to Marine Warfare of the Principles of the
Geneva Convention, 36 Stat. 2371, T.S. Nº 543; Hague Convention Nº
XI of October 18, 1907, Relative to Certain Restrictions with Regard
to the Exercise of the Right of Capture in Naval War, 36 Stat. 2396,
T.S. Nº 544; Hague Convention Nº XIII of October 18, 1907,
Concerning the Rights and Duties of Neutral Powers in Naval War, 36
Stat. 2415, T.S. Nº 545; Hague Convention Nº XIV of October 18,
1907, Prohibiting the Discharge of Projectiles and Explosives From
Balloons, 36 Stat. 2439, T.S. Nº 546. [179]
Supra notes 36, 67. [180]
Additional Protocol I, supra
note 68. [181]
Article 2 Common to the Four Geneva Conventions, supra
notes 36, 67. [182]
Additional Protocol I, supra
note 68, Article 2. [183]
Article 3 Common to the Four Geneva Conventions, supra
notes 36, 67. [184]
See Tadić AC Decision Jurisdiction, supra
note 163, at paras. 97-134. [185]
Additional Protocol II, supra note
36. [186]
Additional Protocol II, supra note
36, Article 1. [187]
Abella Case, supra note 73,
para. 162. For OAS member states that are parties to the 1949 Geneva
Conventions, see Annex II. [188]
Article 38(1)(b) of the Statute of the International Court of Justice,
26 June 1945, 3 Bevans 1153; North Sea Continental Shelf Cases, 20
February 1969, ICJ Rep. 1969, 3; Nicaragua v. United States, 27 June
1984, ICJ Rep. 1986, 14, at para. 77 [hereinafter ICJ, Nicaragua
Case]; Tadić AC Decision Jurisdiction, supra
note 163, paras. 96 et seq. [189]
See IACHR Report on
Colombia (1999), supra note
110, at 82, Ch. IV, para. 39; Case 11.519, Report Nº 61/99, José
Alexis Fuentes Guerrero (Colombia), Annual Report of the IACHR 1998,
at para 37; Case 10.488, Report N° 136/99, Ignacio Ellacuria, S.J. y
Otros (El Salvador), Annual Report of the IACHR 1999, at para.
159; Case 10.548, Report N° 38/97, Hugo Bustios Saavedra (Peru),
Annual Report of the IACHR 1997, at para. 61. See
also Report of the Secretary-General pursuant to paragraph 2 of
resolution Security Council 808 (1993), UN Doc. S/25704 and Add.1, 3
May 1993; UN Security Council Resolution 827, 25 May 1993 [hereinafter
UN Secretary General Report (1993)]; ICJ, Advisory Opinion on the
Legality of the Threat or Use of Nuclear Weapons, supra
note 73, paras. 79, 84; ICJ, Nicaragua Case, supra
note 188, para. 220; Tadić AC Decision Jurisdiction, supra
note 162, paras. 98, 102, 112, 134. For a general discussion of
customary norms of international humanitarian law, see Theodor Meron, The
Humanization of Humanitarian Law, 94 Am. J. Int'l. L. 239 (2000),
at 244, 248-250, 275 [hereinafter
Meron, The Humanization of Humanitarian Law]; Theodor
Meron, The Continuing Role of
Custom in the Formation of International Humanitarian Law, 90 Am.
J. Int'l L. 238 (1996) at 239, 244, 247. Other potentially pertinent
instruments considered to constitute part of customary international
law include the Genocide Convention (Convention on the Prevention and
Punishment of the Crime of Genocide, 9 December 1948, 78 U.N.T.S. 277
[hereinafter Genocide Convention]); Statute of the International
Military Tribunal at Nuremberg (Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis, and
Charter of the International Military Tribunal, Aug. 8, 1945, 82
U.N.T.S. 280). [190]
See, e.g., Trial of German
Major War Criminals, 1946, Cmd. 6964, Misc. Nº 12, at 65 and United
States v. Von Leeb, 11 Trials of War Criminals Before the Nuremberg
Military Tribunals under Control Council Law Nº 10, at 462 (1950)
(recognizing the Hague Regulations of 1907 as norms of customary
international law). [191]
Four Geneva Conventions, supra notes
36, 67. [192]
Prosecutor v. Dusko Tadić, Case Nº IT-94-1, Trial Chamber,
Opinion and Judgment, 7 May 1997, para. 577 [hereinafter Tadić TC
Judgment] (referring to Tadić AC Decision Jurisdiction, supra
note 163, and recognizing the customary nature of the Grave Breach
provisions of the Four Geneva Conventions). The Tadić
Judgment was appealed to the ICTY Appeals Chamber without challenge to
this finding. See The
Prosecutor v. Duško Tadić, ICTY Appeals Chamber (15 July 1999). See
also
U.N. GAOR, 3rd Committee, 23rd Session, UN Doc. A/C.3/SR.1534 (1968),
UN GAOR, 25th Session, Supp. Nº 28 UN Doc. A/8028 (1970). [193]
See, e.g., ICJ, Nicaragua
Case, supra note 188, para.
77; ICTY, Prosecutor v. Delalic, Case Nº IT-96-21-T, Trial Chamber,
Judgment, 16 November 1998, paras. 298-306 [hereinafter Celibici TC
Judgment], affirmed on this point on appeal, The Prosecutor v.
Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad
Landžo, Appeals Chamber Judgment, February 20, 2001 (ICTY), paras.
143-150;
ICTR, Prosecutor v. Akayesu, Case Nº ICTR-96-4-T, Trial Chamber I
Judgment, 2 September 1998, paras. 604-610 [hereinafter Akayesu, TC
Judgment], ICTR Appeals Chamber dismissed appeal June 1, 2001; ICTY,
Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2, Trial Chamber
III Decision on the Joint Defence Motion to Dismiss the Amended
Indictment for Lack of Jurisdiction based on the limited
Jurisdictional Reach of Articles 2 and 3, 2 March 1999, paras. 25-34
[hereinafter Kordic TC Jurisdiction Decision] (recognizing that
Article 3 Common to the Four Geneva Conventions constitutes a norm of
customary international law). [194]
See, e.g., Tadić AC
Decision Jurisdiction, supra
note 163, paras. 98, 117 (recognizing that the core of Additional
Protocol II constitutes customary international law); Akayesu, TC
Judgment, supra note 193,
paras. 604-610 (recognizing that Article 4 of Additional Protocol II
constitutes customary international law); Kordic TC Jurisdiction
Decision, supra note 193,
para. 31 (recognizing that Articles 51(2) and 52(1) of Additional
Protocol I and Article 13(2) of Additional Protocol II constitute
customary international law). [195]
See generally Michael
J Matheson, “The United States position on the relation of customary
international law to the 1977 Protocols Additional to the 1949 Geneva
Conventions” in Martin D. Dupuis, John Q Heywood and Michèle Y.F.
Sarko, The Sixth Annual
American Red Cross-Washington College of Law Conference on
International Humanitarian Law: a Workshop on Customary International
Law and the 1977 Protocols Additional to the 1949 Geneva Conventions,
2 Am.
U. J. Int’l L. & Pol. 419 (1987) [hereinafter Matheson]. See
also Kordic TC Jurisdiction Decision, supra
note 193 (recognizing that Articles 51(2) and 52(1) of Additional
Protocol I and Article 13(2) of Additional Protocol II constitute
customary international law).
[196]
See, e.g., Tadić AC
Decision Jurisdiction, supra
note 163, paras. 98, 117, 132; Kordic TC Jurisdiction Decision, supra
note 193 (recognizing that Articles 51(2) and 52(1) of Additional
Protocol I and Article 13(2) of Additional Protocol II constitute
customary international law). ICJ, Advisory Opinion on the Legality of
the Threat or Use of Nuclear Weapons, supra
note 73, [197]
See, e.g., Tadić AC Decision Jurisdiction, supra
note 163, paras. 96-127, citing, inter
alia, UN General Assembly Resolution 2444, UN GAOR 23rd
Sess., Supp. Nº 18, UN Doc. A/7218 (1968), UN General Assembly
Resolution 2675, UN GAOR 25th Sess., Supp. No. 28, UN Doc.
A/8028 (1970); IACHR Report on Colombia (1999), supra
note 110. [198]
See ICJ, Nicaragua Case, supra
note 188, para. 77; Tadić AC Decision Jurisdiction, supra
note 163, paras 98, 117, 132. [199]
IACHR Report on Colombia (1999), supra
note 110, at 82, Ch. IV, para. 38. See,
e.g., 1907 Hague Convention
and Regulations, supra note
177, Article 23(g); First Geneva Convention, supra
note 67, Article 50 in fine;
Second Geneva Convention, supra
note 67, Article 51 in fine; Fourth Geneva Convention, supra
note 36, Article 147 in fine; Additional Protocol I, supra
note 68, Article 51(1) in fine. [200]
See, e.g.,
Article 3 common to the Four Geneva Conventions; First Geneva
Convention, supra note 67,
Article 12; Second Geneva
Convention, supra note 67,
Article 12; Third Geneva Convention, supra
note 67, Article 13; Fourth Geneva Convention, supra
note 36, Article 14; Additional Protocol I, supra
note 68, Article 11; Additional Protocol II, supra
note 36, Article 4. [201]
IACHR Report on Colombia (1999), supra
note 110, at 82, Ch. IV, para. 38. See,
e.g., Arturo Ribón Avilan
Case, supra note 170, paras.
134, 136, 140, 141 (considering attacks upon persons who have been
placed “hors de combat” to constitute violations of international
humanitarian law). [202]
IACHR Report on Colombia (1999), supra
note 110, at 82, Ch. IV, para. 38. [203]
IACHR Report on Colombia (1999), supra
note 110, at 82, Ch. IV, paras. 40, 77-79 (referring to the standards
found in Articles 51 and 52 of Additional Protocol I, supra
note 68, and stating that the principle of proportionality prohibits
"[a]n attack which may be expected to cause incidental loss of
civilian life, injury to civilians, damage to civilian objects, or a
combination thereof, which would be excessive in relation to the
concrete and direct military advantage anticipated". This
principle imposes […] an additional limitation on the discretion of
combatants in deciding whether an object is a military objective
[…]. Should an attack be expected to cause incidental civilian
casualties or damage, the requirement of an anticipated
"definite" military advantage is elevated to the more
restrictive standard of a "concrete" and "direct"
military advantage. Another aspect of the proportionality equation
requires that foreseeable injury to civilians and damage to civilian
objects not be disproportionate or "excessive" to the
anticipated "concrete and direct military advantage".
[footnotes omitted] See
also
Abella Case, supra note 73,
para. 177; Bustios Saavedra Case, supra
note 189, para. 61; Fuentes Guerrero Case, supra
note 189, paras. 38-39; Ignacio Ellacuria, S.J. y Otros Case, supra
note 189, paras. 158-163. [204]
See Additional Protocol I, supra
note 68, Article 52 (“(1) Civilian objects shall not be the object
of attack or of reprisals. Civilian objects are all objects which are
not military objectives as defined in paragraph 2. (2) Attacks shall
be limited strictly to military objectives. In so far as objects are
concerned, military objectives are limited to 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
neutralization, in the circumstances ruling at the time, offers a
definite military advantage. (3) In case of doubt whether an object
which is normally dedicated to civilian purposes, such as a place of
worship, a house or other dwelling or a school, is being used to make
an effective contribution to military action, it shall be presumed not
to be so used”). See also Resolution 2444 (XXIII) of the
United Nations General Assembly, on Respect for Human Rights in Armed
Conflicts, adopted 19 December 1968, GA Res. 2444, UN GAOR, 23rd
Sess., A/RES/23/2444 (1968), in Dietrich
Schindler and Jiri Toman, The Laws of Armed Conflicts, 2nd
ed., 199 (1981). [205]
See, e.g.,
Additional Protocol I, supra
note 68, Articles 51, 52; Additional Protocol II, supra
note 36, Article 13. [206]
See Waldmar Solf, The
Status of Combatants in Non-International Armed Conflicts Under
Domestic Law and Transnational Practice, 33 Am.
U. L. Rev. 53, 59 (1983) [hereinafter
Solf, The Status of Combatants]. [207]
Third Geneva Convention, supra note 67, Article 4A.
For OAS member states that are parties to Additional Protocol I
see Annex II. It should be noted that Articles 43 and 44 of that
instrument endeavor to relax the requirements of the Hague and Geneva
standards by eliminating the distinction found in the Hague
Regulations and the Third Geneva Conventions between regular armed
forces and irregular voluntary corps, militias and other organized
resistance movement and thereby to provide guerrillas a possibility of
attaining privileged combatant status. More particularly, Article 43
of Additional Protocol I incorporates as combatants entitled to the
combatants privilege and prisoner of war status “all organized armed
forces, groups and units which are under a command responsible to that
Party for the conduct of its subordinates, even if that Party is
represented by a government or an authority not recognized by an
adverse Party. Such armed forces shall be subject to an internal
disciplinary system which, inter alia, shall enforce compliance
with the rules of international law applicable in armed conflict.”
Additional Protocol I, supra note 68, Article 43(1). Article
44(3) of Additional Protocol I further obliges combatants defined
under Article 43 to “distinguish themselves from the civilian
population while they are engaged in an attack or in a military
operation preparatory to an attack. Recognizing, however, that there
are situations in armed conflicts where, owing to the nature of the
hostilities an armed combatant cannot so distinguish himself, he shall
retain his status as a combatant, provided that, in such situations,
he carries his arms openly: (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. Acts which comply with the requirements
of this paragraph shall not be considered as perfidious within the
meaning of Article 37, paragraph 1 (c)". Additional Protocol I, supra
note 68, Article 44(3).These provisions have been the subject of
controversy among states and have never been applied in the context of
an armed conflict, and therefore likely do not constitute a part of
customary international law. They nevertheless have relevance for
those OAS member states who have ratified Additional Protocol I. It
should also be noted that even where the Protocol I standards apply,
it is still possible for a combatant to be regarded as forfeiting his
or her combatants status and hence entitlement to prisoner of war
status by failing to meet the standards under Article 44(3) of the
Protocol, namely by failing to carry his arms openly during each
military engagement as well as during such time as he is visible to
the adversary when he is engaged in a military deployment preceding
the launching of an attack. See
George Aldrich, Guerilla
Combatants and Prisoner of War Status, 31 Am.
U. L. Rev. 871, 877-878 (1982 [hereinfater Aldrich (1982)]).
[208]
See, e.g., United States v.
List (The Hostage Case), Trial
of the War Criminals before the Nuremberg Tribunal 1228, 1238
(1950) (stating that “[i]t cannot be questioned that acts done in
times of war under the military authority of an enemy cannot involve
any criminal liability on the part of officers or soldiers if the acts
are not prohibited by the conventional or customary rules of war.”);
U.S.
Department of War, Instructions for the Government of the Armies of
the United States in the Field, General Order Nº 100 (1863)
[hereinafter “Lieber Instructions”], Articles 56-57; Third Geneva
Convention, supra note 67,
Article 87 (providing that “[p]risoners of war may not be sentenced
[…] to any penalties except those provided for in respect of members
of the armed forces of the said power who have committed the same
acts.”). [209]
See generally Richard
Baxter, So Called Unprivileged
Belligerency: Spies, Guerrillas and Saboteurs, Brit.
Y.B. Int’l L. (1952). [210]
See Additional Protocol I, supra note 68, Article 51(3)
(providing that “[c]ivilians shall enjoy the protection afforded by
this section unless and for such time as they take a direct part in
hostilities.”). See also ICRC,
Commentary on the Additional Protocols of 8 June 1977 to the geneva
conventions of 12 August 1949 (ICRC, 1987)
[hereinafter ICRC
Commentary on the Additional Protocols], at 619, ¶1944 (noting
in respect of the qualification under Article 51(3) of Additional
Protocol I that it is “only during such [direct] participation that
a civilian loses his immunity and becomes a legitimate target. Once he
ceases to participate, the civilian regains his right to […]
protection […] and he may no longer be attacked”). See also
M.
Bothe, K. Partsch & W. Solf, New Rules for Victims of Armed
Conflicts: Commentary on the Two 1977 Protocols Additional to the
Geneva Conventions of 1949 (1982) [hereinafter New
Rules], at
301-302.
[211]
See ICRC
Commentary on the Additional Protocols, supra note 210,
at 515, ¶ 1677 (confirming in respect of the standards under Article
43 of Additional Protocol I governing combatant status that any
concept of a part-time status, a semi-civilian, semi-military status,
a soldier by night and peaceful citizen by day, also disappears. A
civilian who is incorporated in an armed organization such as that
mentioned in paragraph 1, becomes a member of the military and a
combatant throughout the duration of the hostilities (or in any case,
until he is permanently demobilized by the responsible command
referred to in paragraph 1), whether or not he is in combat, or for
the time being armed. If he is wounded, sick or shipwrecked, he is
entitled to the protection of the First and Second Conventions
(Article 44, paragraph 8), and, if he is captured, he is entitled to
the protection of the Third Convention (Article 44, paragraph 1)). [212]
Solf, The Status of Combatants, supra
note 206, at 53. [213]
See, e.g., Article 1 Common
to the 1949 Geneva Conventions (requiring High Contracting Parties to
“respect and ensure respect for” the terms of the Conventions);
Fourth Geneva Convention, supra
note 36, Article 146 (requiring states parties to enact any
legislation necessary to provide for effective penal sanctions for
persons committing, or ordering to be committed, any of the grave
breaches under the Convention). [214]
See, e.g., Third Geneva
Convention, supra note 67,
Article 8 (“The present Convention shall be applied with the
co-operation and under the scrutiny of the Protecting Powers whose
duty it is to safeguard the interests of the Parties to the conflict.
For this purpose, the Protecting Powers may appoint, apart from their
diplomatic or consular staff, delegates from amongst their own
nationals or the nationals of other neutral Powers. The said delegates
shall be subject to the approval of the Power with which they are to
carry out their duties. The Parties to the conflict shall facilitate
to the greatest extent possible the task of the representatives or
delegates of the Protecting Powers. The representatives or delegates
of the Protecting Powers shall not in any case exceed their mission
under the present Convention,. They shall, in particular, take account
of the imperative necessities of security of the State wherein they
carry out their duties.”).
[215]
See, e.g., Article 3 Common
to the 1949 Geneva Conventions (providing, inter
alia, that “[a]n impartial humanitarian body, such as the
International Committee of the Red Cross, may offer its services to
the Parties to the conflict”); Third Geneva Convention, supra
note 67, Article 9 (“The provisions of the present Convention
constitute no obstacle to the humanitarian activities which the
International Committee of the Red Cross or any other impartial
humanitarian organization may, subject to the consent of the Parties
to the conflict concerned, undertake for the protection of prisoners
of war and for their relief.”). [216]
Internal Disturbances and
Tensions: A New Humanitarian Approach?, 262 Int’l
Rev. Red Cross 3, 4-5 (1988). [217]
See infra Part III(F),
paras. 347, 348. [218]
Additional Protocol I, supra
note 68, Article 90. [219]
Rome Statute, supra note 31, Articles 5(1)(c), 8. [220]
IACHR Report on Colombia (1999), supra
note 110, at 75, Part IV, para. 13. [221]
IACHR Report on Colombia (1999), supra
note 110, at 75, Part IV, para. 13. [222]
See, e.g., Additional
Protocol I, supra note 68,
Article 87; ICTY Statute, supra
note 549, Article 7(3). [223]
See, e.g., First Geneva
Convention, supra note 67,
Article 49; Third Geneva Convention, supra
note 67, Article 129; Fourth Geneva Convention, supra
note 36, Article 146; Additional Protocol I, supra
note 68, Article 85(1). [224]
For humanitarian law treaty provisions governing reprisals, see Third
Geneva Convention, supra note 67, Article 13; Fourth Geneva
Convention, supra note 36, Article 33; Additional Protocol I, supra
note 68, Article 51(6). [225]
Abella Case, supra note 73,
para. 152. See also Tadić
AC Decision Jurisdiction, supra
note 163, para. 70. [226]
The operations of the Kosovo Liberation Army during the 1999 Kosovo
War were considered as terrorist activities by the Yugoslav
government. Nevertheless, the operations of both the KLA and the
Yugoslav forces where subject to international humanitarian law. [227]
As indicated above, during armed conflicts, international humanitarian
law applies in the whole territory of 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. Tadić AC
Decision Jurisdiction, supra
note 163, para. 70. See also
IACHR Report on Colombia (1999), supra
note 110, at 95, Chapter IV, para. 83. [228]
Tadić TC Judgment, supra
note 192, para. 572. [229]
See inter
alia, Eric
David, Principes de droit
des conflits armés, (Bruylant, 1999), at 178 [hereinafter David
1999]. Indeed, certain provisions of international humanitarian law
treaties specifically prohibit acts of terrorism committed in the
context of armed conflicts. See,
e.g., Fourth Geneva Convention, supra
note 36, Article 33.
[230]
As noted above, for member states that are parties to Additional
Protocol I (see Annex II), Articles 43 and 44 of Additional Protocol I
eliminate the distinction found in the Hague Regulations and the Third
Geneva Conventions between regular armed forces and irregular
voluntary corps, militias and other organized resistance movement and
thereby provide guerrillas a possibility of attaining privileged
combatant status. Even where the Protocol I standards apply, however,
it is still possible for a combatant to be regarded as forfeiting his
or her combatants status and hence entitlement to prisoner of war
status by failing to meet the standards under Article 44(3) of the
Protocol, namely by failing to carry his arms openly during each
military engagement as well as during such time as he is visible to
the adversary when he is engaged in a military deployment preceding
the launching of an attack. See
Aldrich (1982) supra note 207, at 871, 877-878. [231]
See supra Part II(B),
paragraphs 42, 49. [232]
Four Geneva Conventions, supra notes
36, 67. [233]
Additional Protocol I, supra
note 68. [234]
Additional Protocol II, supra note
36. [235]
ICRC Commentary
on the Additional Protocols, supra
note 210, at 870, para. 3031. [236] See ICRC Commentary on the Additional Protocols, supra note 210, at 392 et seq, 626, 649, 843-844. Under very specific circumstances, certain rules of international humanitarian law can be the subject of derogation or restriction based upon reasons of national security, military necessity or imperative military reasons. See, e.g., Additional Protocol I, supra note 68, Article 54(5) (providing that “[i]n recognition of the vital requirements of any Party to the conflict in the defense of its national territory against invasion, derogation from the prohibition contained in paragraph 2 [against the attack, destruction, removal or rendering useless objects indispensable to the survival of the civilian population] may be made by a Party to the conflict within such territory under its own control where required by imperative military necessity.”). See also supra Part III(D), paras 247-250 |
