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U.S. Joint Letter From John Bellinger III, Legal Adviser, U.S. Department of State, and William J. Haynes, General Counsel, U.S. Department of Defense to Dr. Jakob Kellenberger, President, International Committee of the Red Cross, Regarding Customary International Law Study

Published online by Cambridge University Press:  27 February 2017

Dennis Mandsager
Dennis Mandsager*
Affiliation:
International Law Department, Naval War College ASIL Lieber Society on the Law of Armed Conflict Interest Group
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International Legal Materials , Volume 46 , Issue 3 , May 2007 , pp. 511 - 531
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Copyright © American Society of International Law 2007

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References

* This text was reproduced and reformatted from the text appearing at the website (visited May 18, 2006) <http://www.asil.org/pdfs/customaryinternationalhumanitarianlaw.pdf>.

1 Customary International Humanitarian Law, (Jean-Marie Henckaerts&Louise Doswald-Beck eds., Cambridge Univ. Press 2005), 2 volumes, Volume I. Rules, Volune II. Practice (2 Parts), [hereinafter Study]); see also Jean-Marie Henckaerts, Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict, INT'L REV. RED CROSS, NO. 857, Mar. 2005, at 175 (providing an overview of the study's purpose, methodology, and findings).

2 A typical conference approach includes an introduction and defense of the Study by an author or other ICRC representative and critiques of the Study by noted scholars or practitioners. Such an event was held at the Naval War College's annual international law conference in 2005. The views of co-author Jean-Marie Henckaerts, Professor Timothy L.H. McCormack, and Professor Yoram Dinstein are reported in the proceedings of the event. The law of war in the 21st Century, VOL. 82 Us naval war college international law studies 37-111 (Antheny M. Helm ed., 2006)

3 E.g., Hays Parks, W., The ICRC Customary Law Study: A Preliminary Assessment, 99 Proceedings Of The Annual Meeting Of The American Society Of International Law 209 (2005)Google Scholar.

4 Announcements and reports of events may be found at ICRC’ s web site at http://www.icrc.org.

5 San Remo Manual on International Law Applicable to Armed Conflicts at Sea (L. Doswald-Beck ed. Cambridge Univ. Press 1995).

6 See e.g.U.K. Ministry Of Def., The Manual Of The Law Of Armed Conflict (Oxford Univ. Press 2004); Office Of The Judge Advocate General, National Defence Headquarters Of Canada, Law Of Armed Conflict At The Operational And Tactical Levels (2003); And Annotated SupPlement To The Commander's Handbook On The Law Of Naval Operations (A.R. Thomas&James C. Duncan eds., 1999) (Vol. 73, US Naval War College International Law Studies).

7 See Bellinger III, John B., Legal Adviser to the Secretary of State, The United States and International Law, Remarks at The Hague, The Netherlands (June 8, 2007)Google Scholar, available at http://www.state.gov/s/l/rls/86123.htm (visited June 8, 2007).This is part of a series of talks in which Mr. Bellinger argues that international law does matter to the United States. Transcripts of selected talks are available at http://www.state.gov/ s/l/rls/.

8 Id.

9 The U.S. Army Manual was published in 1956. Dep't Of The Army, The Law Of Land Warfare, (Field Manual 27-10) July (1956). Change 1 was added in 1976. TheU.S. Air Force manual was published in 1976. DEP't Of the Air Force, International Law-The Conduct Of Armed Conflict And Air Operations, Air Force Pamphlet 110-31 (Nov. 19, 1976). It has been cancelled without replacement. The Navy, Marine Corps, and Coast Guard Manual was published in 1995. U.S. Navy, U.S. Marine Corps,&U.S. Coast Guard, The Commander's Handbook On The Law Of Naval Operations, Nwp 1-14m, Mcwp 5-2.1, Comdtpub P5800.7 (1995). An updated version has been prepared and is in the final editing process. The Army and Air Force have published “operational law” manuals since the dates of the above manuals; however, those publications tend to cover a broad spectrum of legal issues with less detailed coverage of the law of war than was found in the earlier manuals.

10 Secretary of Defense, DoD Law of War Program, Department of Defense Directive 2311.0IE of May 9, 2006, available at http://www.dtic.mil/whs/directives/corres/html/231101 .htm (visited June 8, 2007).

11 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, reprinted in DOCUMENTS OF THE LAWS OF WAR 422 (Adam Roberts & Richard Guelff eds., 3d ed. 2000).

12 See Garraway, Charles, “England Does Not Love Coalitions” Does Anything Change,” The law of war in the 21st Century, VOL. 82 Us naval war college international law studies 37–111 (Antheny M. Helm ed., 2006.)Google Scholar

13 Study, at xviii.

1 As the Study itself indicates, the field has traditionally been called the “laws and customs of war.”Accordingly, we will use this term, or the term “law of war,” throughout. Haenckerts, J.M. and Doswald-Beck, L., Customary International Humanitarian Law. Vol. 1, p. xxv (Cambridge 2005)CrossRefGoogle Scholar (hereinafter, “Study“).

2 Study, Vol. I, p. xliv (indicating that contrary practice by States not parties to treaties that contain provisions similar to the rule asserted “has been considered as important negative evidence“).

3 As the Study notes (Vol. I, p. xxxviii), the International Court of Justice has observed that “an indispensable requirement” of customary international law is that “State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; — and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.” North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark: Federal Republic of Germany v. Netherlands. [1969] I.C.J. 4,43 (emphasis added). In this context, the Study asserts, this principle means that “[w]ith respect to any rule of international humanitarian law, countries that participated in an armed conflict are ‘specially affected’ when their practice examined for a certain rule was relevant to that armed conflict.” Study, Vol. I, p. xxxix. This rendering dilutes the rule and, furthermore, makes it unduly provisional. Not every State that has participated in an armed conflict is “specially affected;” such States do generate salient practice, but it is those States that have a distinctive history of participation that merit being regarded as “specially affected.” Moreover, those States are not simply “specially affected” when their practice has, in fact, been examined and found relevant by the ICRC. Instead, specially affected States generate practice that must be examined in order to reach an informed conclusion regarding the status of a potential rule. As one member of the Study's Steering Committee has written, “The practice of ‘specially affected states’ — such as nuclear powers, other major military powers, and occupying and occupied states — which have a track record of statements, practice and policy, remains particularly telling.” Theodore Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law. 90 Am. J. Int'l L. 238,249 (1996).

4 Study, Vol. I, p. xl.

5 Even universal adherence to a treaty does not necessarily mean that the treaty's provisions have become customary international law, since such adherence may have been motivated by the belief that, absent the treaty, no rule applied.

1 Haenckerts, J.M. and Doswald-Beck, L., Customary International Humanitarian Law (Cambridge 2005)CrossRefGoogle Scholar (hereinafter, “Study“).

2 Indeed, the authors of the Study may have intended to use the phrase “humanitarian relief personnel”as shorthand for “humanitarian relief personnel, when acting as such.” However, the rule as written does not say this, even though rule33, which is closely related to rule 31, reflects the fact that the protection for peacekeepers attaches only as long as they are entitled to the protection given civilians under international humanitarian law.

3 As Yoram Dinstein notes, “In keeping with Article 71(2) of Protocol I, personnel participating in the transportation and distribution of relief consignments must be protected. However, Article 71(1) underscores that the participation of such personnel in the relief action is subject to the approval of the Party in whose territory they carry out their duties.” The Conduct of Hostilities under the Law of International Armed Conflict 149 (Cambridge 2004) (hereinafter, “Dinstein“).

4 By its terms, the Convention does not apply to enforcement action that the Security Council takes under Chapter VII of the UN Charter.

5 CCW Amended Protocol II, Article 12(l)(a), 35 ILM (1996) 1206-17.

6 Id at Article 12(7)(b).

7 Pictet's Commentary on the Fourth Geneva Convention notes, “In theory, all humanitarian activities are covered … subject to certain conditions with regard to the character of the organization undertaking them, the nature and objects of the activities concerned and, lastly, the will of the Parties to the conflict.“ Commentary. IV Geneva Convention 96, Pictet, ed. (ICRC 1960) (hereinafter, “Pictet“). It continues, “All these humanitarian activities are subject to one final condition — the consent of the Parties to the conflict. This condition is obviously harsh but it might almost be said to be self-evident.” Pictetat 98. As discussed herein, we do not believe that this condition has disappeared since Pictet produced this Commentary.

8 Rome Statute of the International Criminal Court, Article8(2)(e)(iii), 37 ILM 999, 1008-09 (1998).

9 Michael Cottier, War Crimes, in Commentary on the RomeStatute of the International Criminal Court 190, Triffterer,ed. Nomos Verlagsgesellschaft 1999) (italics in original).

10 Study, Vol. I, p. 109.

11 Study, Vol. II, p. 589, paras. 5-6.

12 Study, Vol. II, p. 589, para. 8 (citing the Ground Rules for Operation Lifeline Sudan), and p. 593, para. 39 (stating that Zimbabwe regards relevant provisions of the Geneva Conventions “as part of international customary law“).

13 Study, Vol. II, pp. 589-90, paras. 13 (Australia) and 15 (France).

14 Study, Vol. II, p. 590, para. 17.

15 See, eg., Study, Vol. II, p. 593-96, paras. 41-45,47-62.

16 See generally U.S. Joint Publication 3-07.6, Joint Tactics,Techniques, and Procedures for Foreign Humanitarian Assistance.

17 Study, Vol. II, p. 590, para. 14. Furthermore, the manual citedby the Study is in fact a training manual designed to “briefly outline [ ] the Code of Conduct applicable to all Canadian personnel taking part in all military operations other than Canadian domestic operations.” Code of Conduct for Canadian Forces Personnel, Office of the Judge Advocate Genera). Canadian Ministry of National Defense, B-GG-005-027/AF- 023 (undated), p. 1-1. It is not an official representation of Canada's opinio juris concerning the laws and customs of war; instead, it repeatedly stresses that it is a simplification of applicable laws meant to aid in training.

18 Study, Vol. II, p. 590, para. 16.

19 Study, Vol. II, p. 591, para. 27.

20 Study, Vol. II, p. 592, para. 30.

21 Study, Vol. II,p. 602,para. 111.

22 Similarly, on March 27, 2002, Israeli Defense Forces arrested a driver of a Red Crescent ambulance and seized an explosivesbelt and other explosive charges from the ambulance. The driver admitted that a terrorist leader had given him explosives to transport to terrorist operatives in Ramallah. See http:// www.mfa.gov.il/mfa/government/communiques/2002/appre- hension%20of%20ambulance%20harboring%20a %20wanted%20terro.

23 Study, Vol. II, p. 592, paras. 33 (Nigeria) and 34 (Rwanda).

24 Study, Vol. II, p. 593, para. 39.

25 Study, Vol. II, p. 613, para. 181.

26 See, ££., Study, Vol. II, p. 612, paras. 178 (United Kingdom) and 180 (United States).

27 This discussion focuses on only the first sentence in rule 45.

28 Study, Vol. I, p. xxxviii.

29 The Study includes these statements in Vol. II, p. 878, paras. 152 and 153.

30 Remarks of Michael J. Matheson, Principal Deputy Legal Adviser, U.S. Department of State, 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.and Pol'y 424, 436(1987). One of the U.S. concerns has been that Articles 35(3) and 55 fail to acknowledge that use of such weapons is prohibited only if their use is clearly excessive in relation to the concrete and direct overall military advantage anticipated. The Study purposefully disregards this objection, even as to the contours of the customary rule. As the commentary states, “[T]his rule is absolute. If widespread, long-term and severe damage is inflicted, or the natural environment is used as a weapon, it is not relevant to inquire into whether this behaviour or result could be justified on the basis of military necessity or whether incidental damage was excessive.” Study, Vol. I, p. 157. An example illustrates why States — particularly those not party to AP I — are unlikely to have supported rule 45. Suppose that country A has hidden its chemical and biological weapons arsenal in a large rainforest, and plans imminently to launch the arsenal at country B. Under such a rule, country B could not launch a strike against that arsenal if it expects that such a strike may cause widespread, long-term, and severe damage to the rainforest, even if it has evidence of country A's imminent launch, and knows that such a launch itself would cause environmental devastation. Indeed, one of the Study's authors has recognized elsewhere that the value of the military objective is relevant to an analysis of when an attack that will cause harm to the environment is permitted. See L. Doswald-Beck, International Humanitarian Law and the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons. 316 IRRC 35, 52 (1997).

31 Study, Vol. II, p. 883, para. 186.

32 Study, Vol. II, p. 882-83, para. 185.

33 Letter dated June 20, 1995 from the Acting Legal Adviser of the Department of State, together with the Written Statement of the Government of the United States, p. 25-28; Letter dated June 16, 1995 from the Legal Adviser of the Foreign and Commonwealth Office of the United Kingdom of Great Britain and Northern Ireland, together with Written Statement of the Government of the United Kingdom, p. 40-46; Letter dated June 19,1995 from the Ambassador of the Russian Federation, together with Written Statement of the Government of Russia, p. 10-11; Lettre en date du 20 juin 1995 du Ministre des affaires étrangères de la République franҫaise, accompaigńee de 1'exposé ecrit du Gouvernement de la République franҫaise, p. 31-33.

34 Study, Vol. II, p. 882, para. 184.

35 Digest of U.S. Practice, 1977, p. 919.

36 Official Records of the Diplomatic Conference on the Reaffir-mation and Development of InternationalHumanitarian Law Applicable in Armed Conflicts, Vol. 5-6 (1977), p. 134.

37 Statement of the United Kingdom, January 28, 1998, revised July 2, 2002. See also statement of France, April 11, 2001.

38 We note that the Study raises doubts about the continued validity of the “persistent objector” doctrine. Study, Vol. I, p. xxxix. The U.S. Government believes that the doctrine remains valid.

39 Study, Vol. II, p. 879, paras. 157 and 158.

40 Study, Vol. II, p. 887-88, paras. 224 and 225. See also p. 900, para. 280 (CSCE committee drew attention to shelling that could result in harm to the environment, without indicating that such attacks were unlawful).

41 Study, Vol. II, p. 900-01, para. 282.

42 Study, Vol. II, p. 878 (para. 156), p. 879 (para. 160), p. 898 (paras. 273 and 274), p. 898-99 (para. 275), and p. 902 (para. 289).

43 Study, Vol. II, p. 891, para. 244.

44 Study, Vol. II, p. 890, para. 241.

45 Rome Statute of the International Criminal Court, Article

46 Study, Vol. I, p. 154.

47 See Yoram Dinstein, Protection of the Environment in International Armed Conflict. 5 Max Planck UNYB 523, 543-46 and notes (2001) (discussing the illegality of Iraq's acts but noting that “many scholars have adhered to the view that – while the damage caused by Iraq was undeniably widespread andsevere — the ‘long term’ test (measured in decades) was not satisfied“).

48 These attacks, of course, violated provisions of the law of armed conflict, particularly those relating to military necessity. The U.S. Government, in concurring in the opinion of the conference of international experts, convened in Ottawa, Canada from July 9-12, 1991, found that Iraq's actions violated, among other provisions, Article 23(g) of the Annex to the 1907 Hague Convention IV and Article 147 of the Fourth Geneva Convention. See Letter dated March 19, 1993 From the Deputy Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, S/25441, p. 15.

49 Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (June 13, 2000), para. 15.

50 Study, Vol. I, p. 156-57.

51 Study, Vol. II, pp. 877-78, para. 150.

52 Study, Vol. I, p. 273.

53 Germany's military manual recognizes a prohibition on those exploding bullets “which can disable only the individual directly concerned but not any other persons.” (emphasis added) (Study, Vol. II, p. 1788, para. 13). A U.S. legal review states that “an exploding projectile designed exclusively for antipersonnel use would be prohibited, as there is no military purpose for it.” (emphasis added) (id at 1791, para. 35).

54 Study, Vol. II, p. 1794, para. 47.

55 Study, Vol. I, p. 273.

56 In part, the 1998 test was flawed because it was set up in a way that was contrary to the principle that “in looking at small caliber weaponry, it is necessary to look not just at the bullet but at the entire means of delivery and the context in which the weapon will be used.” Christopher Greenwood, “Legal Aspects of Current Regulations.” Keynote speech at Third International Workshop on Wound Ballistics, Thun, Switzerland, March 28-29, 2001.

57 1 Am. J. Int'l L. (1907) Supp. 95-96.

58 Study, Vol. I, p. 272.

59 Of all the independent States in the Western Hemisphere, only Brazil acceded to the St. Petersburg Declaration. Additionally, none of the African or East Asian States in existence at the time acceded to the Declaration.

60 Estonia acceded in 1991.

61 Joenniemi, Pertti and Rosas, Allan, International Law and the Use of Conventional Weapons (1975), at 30 Google Scholar.

62 Study, Vol. II, p. 1791, para. 35.

63 Hague Draft Rules of Air Warfare, 17 Am. J. Int'l L. (1923) Supp. 245-60, Ch. IV, Art. 18.

64 The 2000 update of the 1998 U.S. legal review of the 12.7mm Raufoss Multi-purpose ammunition, other sections of which are cited by the Study (Study Vol. II, p. 1791, para. 35), lists widespread use of high-explosive or high-explosive-incendiary projectiles weighing less than 400 grams, many of which may have tended to detonate on impact or within the human body. Although the Study cites this review, it does not provide the full picture of the Study's finding in that it omits this compilation of State practice.

65 The Study cites military manuals of Australia, Belgium, Canada, France, Germany, Italy, New Zealand, Russia, Spain, the United Kingdom, and the United States. (Study, Vol. II, p.1788-89, paras. 8-20.) Of these, Germany's clearly opposes the rule as written, and France's, Italy's,and the United Kingdom's offer inconclusive support. The U.S. Air Force Pamphlet, also cited for rule 157, bears a disclaimer that states, “This pamphlet is for the information and guidance of judge advocates and others particularly concerned with international law requirements applicable during armed conflict. It furnishes references and suggests solutions to a variety of legal problems but it is not directive in nature. As an Air Force pamphlet, it does not promulgate official U.S. Government policy although it does refer to U.S., DoD and Air Force policies.” The U.S. Air Force Pamphlet therefore cannot be considered a useful example of State practice.

66 Legislation of Andorra, Australia, Ecuador, Italy, the Netherlands, and Yugoslavia. Ecuador's legislation bans only the use of exploding bullets by its National Civil Police, and Italy's includes an exception for “air or anti-air systems.” The Study notes that the 1945 Australian war crimes act prohibited “exploding bullets.” Study, Vol. II, p. 1790, paras. 21-26. The Study makes no reference to a 2001 Australian legal review of the 12.7mm Raufoss Multipurpose projectile, which concluded that munition was legal. Defence Legal Office, Defence Corporate Support, Australian Ministry of Defence, Memorandum CS 97/23/23431 (January 23, 2001), Subject: Legal Review of the 12.7mm Ammunition Produced by NAMMO. The Australian legal review was the subject of a presentation at the ICRC's Expert Meeting on Legal Reviews of Weapons and the SIrUS Project, held at Jongny-sur-Vevey from January 29-31, 2001.

67 Statements made by Brazil and Colombia do not support the assertion that the rule as written is customary, but rather express support for the prohibition of exploding bullets in some context. Study, Vol. II, p. 1790, paras. 28-29. The Study also includes statements by Norway and the UK made at the Second CCW Review Conference (2001) and before the ICJ in the Nuclear Weapons Case (1995), respectively. See id. at p. 1791, para. 32-33 (Norway) and para. 34 (UK). The Norwegian statement to the ICRC reflects Norway's view that one must consider a number of factors, including intended use, when assessing the legality of a weapon; the UK statement appears to be a description of what the St. Petersburg Declaration provides.

68 The Study sets forth only three purported examples of operational practice: the Report on the Practice of Indonesia (Vol. II, p. 1791, para. 30); the Report on the Practice of Jordan(id. at para. 31); and a statement by the Yugoslav Army (id. at p. 1792, para. 37). The Report on Indonesia does not actually appear to evidence operational practice; rather, it simply states what applicable law is in Indonesia.

69 These are the military manuals of Germany and, arguably, the Penal Code of Yugoslavia.

70 Study, Vol. II, p. 1791, para. 30.

71 Id, para. 31.

72 “The authorities and Armed Forces of the Republic of Sloveni a are treating JNA as an occupation army; and are in their ruthless assaults on JNA members and their families going as far as to employ means and methods which were not even used by fascist units and which are prohibited under international law…. They are … using explosive bullets.” Study, Vol. II, p. 1792, para. 37.

73 Study, Vol. II, p. 1789, para. 19.

74 The Geneva Conventions and AP I incorporate elements that reflect these efforts.

75 Study, Vol. I, p. xxix.

76 Study, Vol. I, p. 574-603.

77 “[I]t should be stressed that custom-generating practice has always consisted of actual acts of physical behaviour and not of mere words, which are, at most, only promises of a certain conduct. The frequent confusion seems to result from the fact that verbal acts, such as treaties, resolutions or declaration, are of course also acts of behaviour in the broad sense of the term and they may in certain cases also constitute custom generating practice, but only as regards the custom of making such verbal acts, not the conduct postulated in them.” Wolfke, K., Some Persistent Controversies Regarding Customary International Law. 24 Netherlands Y.B. Int'l L. 1 (1993)Google Scholar.M. Cherif Bassiouni has discussed the limited practice of States invoking universal jurisdiction to prosecute various international crimes. He notes, “No country has universal jurisdiction for all these crimes [genocide, war crimes, crimes against humanity, piracy, slavery, torture, and apartheid]. It is therefore difficult to say anything more than universal juris-diction exists sparsely in the practice of states and is prosecuted in only a limited way.” Cherif Bassiouni, M., Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice. 42 Va. J. Int'l L. 81, 136 n.195 (2001)Google Scholar.

78 Study, Vol. II, p. 3894-3912, paras. 163-245.

79 Study, Vol. II, p. 3858, para. 22 (Croatia), p. 3859, para. 28 (Hungary), and p. 3861, para. 38 (Switzerland). The Study also includes a number of citations to State laws and manuals that do not include law of war offenses, but rather refer to provisions such as “other punishable acts against human rights” (Costa Rica, p. 3899, para. 182); “crimes against humanity, human dignity or collective health or prosecutable under international treaties” (Cuba, p. 3899, para. 184); and the substance of Articles 64 and 66 of GC IV related to the trial of civilians in occupied territory (Argentina, p. 3894. para. 163).

80 Study, Vol. II, p. 3858, para. 20; see also id., p. 3864-65. paras. 51-52.

81 See Study, Vol. I, p. 604 n. 194 (listing states). This discussion is not intended to suggest that the U.S. Government believes that the Study has shown conclusively the customary nature of Rule 156.

82 Study, Vol. II, p. 3895, para. 166 (Australia); p. 3896, para.172 (Belgium); p. 3898, para. 180 (Colombia); p. 3899, paras. 185-86 (Cyprus); p. 3912, para. 245 (Zimbabwe).

83 Study, Vol. II, p. 3896, para. 170 (Barbados); id, para. 174(Botswana); p. 3908, para. 227 (Singapore); and p. 3910, para.236 (Uganda).

84 Study, Vol. II, p. 3888, para. 145 (Belgium); p. 3889, para.148 (France); p. 3890, para. 153 (South Africa); p. 3890,para.154 (Spain); p. 3890-91, para. 155 (Sweden); and p. 3891, para. 156 (Switzerland).

85 Study, Vol. II, p. 3959-60, para. 397.

86 Study, Vol. II, p. 3889, para. 150.

87 Study, Vol. II, p. 3900-01, paras. 192- 95.

88 Study, Vol. II, p. 3894-95, paras. 165-66.

89 Study, Vol. II, p. 3885, paras. 132-33.

90 Although Volume II of the Study contains references to twenty-seven cases, the Study does not assert that eight of these cases are examples of States exercising universal jurisdiction over war crimes. For example, the Musema case ap pears to be a situation in which Switzerland simply determined that dual criminality existed in Switzerland with regard to the offense for which the ICTR sought the defendant.

91 The Munveshvaka case in France and the Demianjuk case in the United States (which subsequently was overturned on unrelated grounds). In the Demjanjuk case, the Israeli arrest warrant on which the extradition request was based charged that Demjanjuk had operated the gas chambers in Treblinka“with the intention of destroying the Jewish people [i.e., genocide] and to commit crimes against humanity.” Demianiuk v. Petrovskv, 776 F.2d 571,578 (6th Cir. 1985). For the Munveshvaka case, see Study, Vol. II, p. 3915, para. 253.

92 The Polvukhovich case. The majority opinion stated, “It is enough that Parliament's judgment is that Australia has an interest or concern. It is inconceivable that the court could overrule Parliament's decision on that question. That Australia has such an interest or concern in the subject matter of the legislation here, stemming from Australia's participation in the Second World War, goes virtually without saying … It is also unnecessary to deal with the alternative submission that the law is a valid exercise of the power because it facilitates the exercise of universal jurisdiction under international law.” 91 ILR 13-14 (1991).

93 The Rohrig and Others case. “Article 4 of the Decree on Special Criminal Law [that the defendants were charged with violating] was, however, in accordance with international law as being based on the principle of ‘passive nationality’ or 'protection of national interests.'” 17 ILR 393, 396 (1950).

94 See Study, Vol. II, p. 3914, para. 251 (Sarić), p. 3914-15, para. 252 (Javor), p. 3915-16, para. 254 (Diané), p. 3916-17, para. 255 (Jorgić), p. 3917, para. 256 (Sokpjović) and para. 257 (Kusljić). The prosecution in the Sokolović and Kusljić cases successfully argued that crimes committed by the accused (Bosnian nationals) in Bosnia and Herzegovina were part of an international armed conflict, and that obligations under Article 146 of the Geneva Conventions (relating to grave breaches) therefore were applicable. It follows that this arguably strained reliance on the Geneva Conventions denotes a hesitance to claim a right to universal jurisdiction under customary international law. In addition, the German Penal Code permitted its domestic courts to exercise jurisdiction over grave breaches “if this was provided for in an international treaty binding on Germany.” Thus, the German law explicitly looks to the existence of a treaty permitting the exercise of such jurisdiction, and does not rely on any customary international legal “right.“

95 These are, from Belgium: Public Prosecutor v. Higaniro (Four from Butare case) and Public Prosecutor v Ndombasi. which led to the Case Concerning the Arrest Warrant of 11 April 2000 (20021.C.J. 3); from Canada: the Finta case; from Israel: the Eichmann case; from the Netherlands: the Knesevic case and the Ahlbrecht case — the latter of which concerned acts committed in occupied Holland and therefore is not a clear example of the invocation of universal jurisdiction; from Switzerland: the Grabez case and the Nivonteze case; and from the United Kingdom: the Sawoniuk case. For the Ahlbrecht case, see 14 ILR 196 (1947).

96 In the Finta. Ahlbrecht. Sawioniuk. and Eichmann cases, the only “war crimes” of which the defendants were accused would have constituted grave breaches of the Fourth Geneva Convention, including forced deportation and murder of protected persons, if that Convention had been in effect at the time they were committed. See Regina v. Finta. 69 O.R. (2d) 557 (Canadian High Ct. of Justice 1989), 14 ILR 196, 2 Cr App Rep 220 (UK Court of Appeal, Criminal Division 2000), and 36 ILR 5, respectively.

97 The Geneva Conventions, for instance, require States Parties to “enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.” See, eg 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, Art. 146.

98 These States are Australia, Azerbaijan, Bangladesh, Belarus, Belgium, Ecuador, Switzerland, Tajikistan, andpossibly New Zealand.

99 Study, Vol. II, p. 3896, para. 170.

100 Study, Vol. II, p. 3901, para. 194 (France); p. 3902-03, para. 202 (Ireland); p. 3909, para. 229 (Spain).

101 North Sea Continental Shelf Cases. [1969] I.C.J. Reports at