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Some curiosities in the sources of the law of armed conflict conceived in a general international legal perspective*

Published online by Cambridge University Press:  07 July 2009

H.H.G. Post
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Extract

In his search for ‘Self-contained regimes’ in the 1985 issue of the Netherlands Yearbook of International Law, Bruno Simma addressed diplomatic law, human rights law and the law of the European Community. He did not consider the most traditional of all ‘special branches’ of international law: the law of war. Although present-day authorities no longer see the modern law of armed conflict as a corpus of law seperate from international law, it is often still considered to be a lex specialis within international law. This special character – although certainly in certain areas still controversial – is notably predicated on the (traditionally) sharp distinction between the conditions of peace and war. Although war ‘in a technical sense’, to use Prof. Dinstein's term, has lost its prominence, if indeed it ever had much, the legal relevance of a distinction between war and peace, or armed conflict or not, is still recognised in international legal instruments as well as by many authors.

Type
Diversity in Secondary Rules and the Unity of International Law
Information
Netherlands Yearbook of International Law , Volume 25 , December 1994 , pp. 83 - 117
Copyright
Copyright © T.M.C. Asser Press 1994

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References

1. See e.g., Meng, W., ‘War’, Encyclopedia of Public International Law, Instalment 4 (1982) p. 282Google Scholar; Kelsen, H., Principles of International Law (1952/1956) p. 26Google Scholar; von Heinegg, W. Heintschel, ‘The Current State of International Prize Law’, in Post, H.G., ed., International Economic Law and Armed Conflict (1994) p. 17Google Scholar; Green, L.C., The Contemporary Law of Armed Conflict (1993) p. 47.Google Scholar

2. The core notion of ‘war in the technical sense’ is that formal steps, like a declaration of war and a peace treaty, are required in order to commence or terminate war (cf., Dinstein, Y., War, Aggression, and Self-Defence, 2nd edn. (1994) p. 8).Google Scholar

3. See e.g., Art. 73 of the 1969 Vienna Convention on the Law of Treaties, Art. 74.1 of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, or Art. 15 of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms.

4. See e.g., Greenwood, C., ‘The Concept of War in Modern International Law’; in 36 ICLQ (1987)p. 283 et seq.CrossRefGoogle Scholar; Green, L.C., Essays on the Modern Law of War (1985)Google Scholar, in particular chapter I, entitled ‘The New Law of Armed Conflict’, at pp. 1–26; or Dinstein, op. cit. n. 2, in particular chapters 1 and 3.

5. See e.g., ‘classic’ treatises, like Grob, F., The Relativity of War and Peace (1949)Google Scholar, or Lord, McNair and Watts, A.D., The Legal Effects of War, 4th edn. (1966), in particular pp. 1–55Google Scholar; or, more modern, Dinstein, op. cit. n. 2.

6. See e.g., Arts. 16, 22, 28, 29 or 40.

7. For example, those on the formation of customary law, as Karol Wolfke, in a recent contribution to this Yearbook, convincingly showed (‘Some Persistent Controversies Regarding Customary International Law’, 24 NYIL (1993) pp. 1–17).Google Scholar

8. See e.g., McNair and Watts, op. cit. n. 5, p. 1 et seq.

9. Lauterpacht, H., ed., Oppenheim's International Law, Vol. II, 7th edn. (1952) p. 202.Google Scholar

10. Dinstein, op. cit. n. 2, at pp. 5–15.

11. Ibid., p. 18.

12. See Green, op. cit. n. 4, at p. 1.

13. Maurice, J.F., Hostilities without Declaration of War from 1700 to 1870 (1883)Google Scholar; see also Eagleton, C., ‘The Form and Function of the Declaration of War’, 32 AJIL (1938) p. 19 et seq.CrossRefGoogle Scholar

14. See Greenwood, loc. cit. n. 4, at p. 285; or Schwarzenberger, G., International Law, Vol. II, ‘The Law of Armed Conflict’ (1968) pp. 65–67.Google Scholar

15. See Dinstein, op. cit. n. 2, at pp. 31–34; see further, B. Vierdag, who attaches the consequence of desuetudo to the lack of application of Hague Convention III (in: Oorlogsverklaring [Declaration of War] (1992) pp. 23–25).

16. The majority of the Dutch Lower House did not object to the Prime Minister's reasoning that no such Declaration, nor permission of Parliament were required in this case. See 23 NYIL (1992) pp. 370–371. The complaint against the State was rejected (ibid., pp. 509–512). See for a discussion of the international legal and constitutional questions this Dutch issue brought up, Vierdag, op. cit. n. 15.

17. In view of the subject-matter of section 3.2, infra, this section will be short; see e.g., Dinstein's extensive discussion of the termination of war, op. cit. n. 2, pp. 35–58.

18. See e.g., the examples Hans Kelsen gives of the US Congress, op. cit. n. 1, at p. 68; more extensively, in the second edition, revised and edited by R.W. Tucker (1966) pp. 93–97.

19. See Meng, op. cit. n. 1, at p. 283.

20. See the general introductions in, for example, Starke, J.G., Introduction to International Law, 10th edn. (1989) ch. 18Google Scholar; or, Kelsen, op. cit. n. 1, at pp. 25–33, or the 2nd edn., op. cit. n.18, at p. 87 et seq.

21. Dinstein, op. cit. n. 2, at pp. 8–10, already referred to in the text in section 2.1, supra.

22. Which may be called the ‘vision’ of Pictet's, J.Les Principes du Droit international humanitaire (1966).Google Scholar

23. See section 3.4, infra.

24. In op. cit. n. 1, at p. 286.

25. During the drafting period, a rather strict distinction between the Hague Conventions and the new Geneva law was made. As a result, in principle, Hague rules, whether customary law or not, were not included in common Art. 3 of the 1949 Geneva Conventions.

26. Schwarzenberger, G., ‘Jus Pacis ac Belli?’, 37 AJIL (1943) p. 473.CrossRefGoogle Scholar

27. Morley, J.D., ‘Approaches to the Law of Armed Conflict’, Can. YIL (1971) pp. 270–271.Google Scholar

28. Dinstein, op. cit. n. 2, at pp. 18–19. However, he does recognize that some rules of the law of peace apply in specific war situations and vise versa (ibid., pp. 19–20). For Schwarzenberger's view, see op. cit. n. 26, at p. 474.

29. See notably, Schindler, D., ‘Commentary on the 1907 Hague Convention XIII Concerning the Rights and Duties of Neutral Powers in Naval War’, in Ronzitti, N., ed., The Law of Naval Warfare. A Collection of Agreements and Documents with Commentaries (1988) pp. 211–214Google Scholar; also: Andrea Gioia, who following an extensive discussion of the issues at stake, forsees a development towards a considerable adaptation of the old law of neutrality (‘Neutrality and Non-belligerency’, in Post, ed., op. cit. n. 1, at pp. 109–110); and T.D. Gill, ‘Comments’, in Dekker, I.F. and Post, H.G., The Gulf War of 1980–1988 (1992) p. 204Google Scholar, who considers non-belligerency permissible, ‘… unless the Security Council authoritatively determined otherwise.’

30. Schindler, D., ‘Aspects contemporain de la neutralité’, Hague Recueil (1967-II) pp. 276–277.Google Scholar

31. Their legal position would be that a ‘violation’ of the neutral's obligations of abstention and impartiality in view of a binding decision of the UN Security Council could be justified on the ground of the prevalence of the Charter obligations over these traditional duties. In such a case the ‘aggrieved’ belligerent would not obtain a right of reprisal. If the Security Council had not taken a binding decision, reprisals would have remained possible although according to some not reprisals which constitute use of force (see M. Bothe, ‘Neutrality at Sea’, in Dekker and Post, op. cit. n. 29; see on some other changes in the law of neutrality Gioia, loc. cit. n. 29, at p. 79).

32. In Dekker and Post, op. cit. n. 29, at p. 207. Bothe believes that neither the 1980–1988 Gulf War, nor other wars have provided enough practice to warrant a new legal institution (ibid.). Already some 40 years ago, Sir Hersh Lauterpacht, rather pragmatically, assessed that the dangers of this risk in practice were determined by the relative strengths of the belligerent and the neutral: ‘The Limits of the Operation of the Law of War’, 30 BYIL (1953) p. 238.Google Scholar

33. Also, neither State practice, nor opinio juris seems to warrant the conclusion that a new rule (or rules) allowing ‘non-belligerency’ has become part of the body of international law. The case of a binding Security Council Resolution, just mentioned, should best be treated as an exception to the existing law of neutrality (although adapted in the mean time, primarily as a result of the changed notion of war and armed conflict, see infra).

34. See supra, n. 13.

35. See, infra, sections 3.3 and 3.4.

36. Greenwood, op. cit. n. 4, at p. 284 and p. 294 et seq.

37. Dinstein, op. cit. n. 2, at p. 16.

38. UNCLOS III (in The Law of the Sea, Official Text of the United Nations Convention of the Law of the Sea (1983)) provides a good illustration. Its references to ‘other rules of international law’ (e.g., Arts. 21, 34.2, or 87.1) are interpreted as covering the law as applicable to armed conflict at sea.

39. ‘Customary Law Status of the 1977 Geneva Protocols’, in Delissen, A.J.M. and Tanja, G.J., eds., Humanitarian Law of Armed Conflict: Challenges Ahead; Essays in Honour of Frits Kalshoven (1991) pp. 93–114.Google Scholar

40. Ibid., p. 97.

41. See for a more sophisticated analysis of the ‘secondary rules’ of international law set for the formation of customary rules of international law: Meijers, H., ‘How is International Law Made? – The Stages of Growth of International Law and the Use of its Customary Rules’, 9 NYIL (1978)CrossRefGoogle Scholar. Also, more recently on this matter, Wolfke, loc. cit. n. 7.

42. See e.g., ICJ Rep. (1985) pp. 29–30 (Libyan Arab Jamahirtya v. Malta), or ICJ Rep. (1986) p. 108 (Nicaragua v. United States).

43. One of the decisions that has been criticised for this reason has been the Nicaragua case. See e.g., Meron, T., Human Rights and Humanitarian Norms as Customary Law (1989) pp. 62–78Google Scholar, and Greenwood, in respect to Arts. 1 and 3 of the 1949 Geneva Conventions (op. cit. n. 4, at p. 98).

44. Moreover, for some of the examples of inadequate attention paid to State practice by the ICJ acceptable explanations have been presented: see e.g., P. Rijpkema, on the Court's lack of analysis of State practice in respect of the general prohibition of the use of force (‘Customary International Law in the Nicaragua case’, 20 NYIL (1989) pp. 91–116Google Scholar).

45. The IMT in declaring that the 1907 Hague Regulations on Land-warfare by 1939 had become part of customary law, or the US Military Tribunal by accepting in US v. Von Leeb that by 1941 the 1929 Geneva Convention on Prisoners of War had already passed into customary law (see Greenwood, op. cit., n. 4, at p. 298, where he also provides some of the arguments advanced to explain the rather easy acceptance in customary law of the provisions of humanitarian treaties, in particular).

46. Actually this process seems to be more in the nature of the formation of binding ‘general principles of law’ (in the sense of Art. 38.1.c of the ICJ Statute). However, in terms of ‘secondary rules’, Meijers rightly concludes that the difference between customary rules and general principles is only relative (loc. cit. n. 41, at p. 4, n. 3).

47. Rousseau, C., Le Droit des Conflits Armés (1983) p. 20.Google Scholar

48. Greenwood, loc. cit. n. 39, at p. 102.

49. Ibid., p. 103.

50. Subsequently, under the same heading of ‘Military Manuals and Other State Practice’, he deals with other kinds of official US publications and statements from which the American position in respect of the customary law status of Protocol provisions can be read (or deduced).

51. ‘Visit, Search, Diversion and Capture in Naval Warfare: Part I, the Traditional Law’, in Can. YIL (1991) pp. 283–329; and ‘The Current State of International Prize Law’, in Post, ed., op. cit. n. 1.

52. In his study on international prize law (see the preceding footnote), the author uses The Commander's Handbook on the Law of Naval Operations (NWP 9 Rev. A) (1989); Canad ian Forces, Law of Armed Conflict Manual (2nd draft) (1988); and Humanitäres Völkerrecht in bewaffneten Konflikten (1992).

53. Bothe, ‘Comments’ (to W.H. von Heinegg's ‘The Current State…’), in Post, ed., op. cit. n. 1, at p. 35.

54. See e.g., Roberts, A. and Guelff, R., in their introduction to Documents on the Laws of War, 2nd edn. (1989) p. 7.Google Scholar

55. Trials of War Criminals before the Nürnberg Military Tribunals, Vol. XI (1950) p. 1237Google Scholar, as quoted in ibid. Subject to explicit reservations to the contrary, Schwarzenberger also emphasizes the importance of manuals as offering ‘… valuable evidence of the views taken by individual Powers of the laws and customs of war.’ Op. cit. n. 14, at p. 17.

56. See authorities such as Schwarzenberger, op. cit. n. 4, at p. 14 et seq.

57. See Schindler, D. and Toman, J., eds., The Laws of Armed Conflict, A Collection of Conventions, Resolutions and Other Documents, 3rd edn. (1989)Google Scholar; or Roberts and Guelff, eds., op. cit. n. 54. All treaties on the law of armed conflict referred to in this article can be found in either of these volumes. No specific references to them will be cited in the footnotes.

58. In principle all peace treaties are, of course, concluded in a condition of ‘technical’ war (see section 2.1 supra), although hostilities would (probably) haveceased. However, (non-international) ‘armed conflict’ complicates matters to a considerable extent.

59. Op. cit., n. 2, at p. 36.

60. In the modern law of treaties Art. 52 of the Vienna Convention covering such conditions for concluding a treaty is generally supposed to express customary law (see e.g., SirSinclair, Ian, The Vienna Convention on the Law of Treaties, 2nd edn. (1984) pp. 177–181).Google Scholar

61. See the examples Meng gives, op. cit. n. 1, at pp. 288–290.

62. 263 UNTS (1956) p. 112 et seq.

63. Meng, op. cit. n. 1, at p. 290.

64. See e.g., Sinclair, op. cit. n. 60, at p. 177. In this brief contribution we cannot – and need not – discuss the interesting issues the old and new rules on this matter have raised (see for some of them: ibid., pp. 177–181).

65. See for a suggestion of the effects on categories of treaties: Lauterpacht, ed., op. cit. n. 9, at pp. 303–306; see also Akehurst, M., A Modern Introduction to International Law, 6th edn. (1987) p. 142.Google Scholar

66. SirHurst, C.J.B., ‘The Effects of War on Treaties’, 2 BYIL (1921/1922) p. 38Google Scholar. In terms of textbooks, the situation does not seem to have improved a great deal as D.P. O'Connell's opening line on the subject suggests: ‘The effect of war on treaties is an obscure topic’ (in International Law, vol. I (1970) at p. 268); see also, Lauterpacht, ed., op. cit. n. 9, at p. 303; somewhat more optimistic about the state of the law in this respect is Akehurst, op. cit. n. 65, at p. 142.

67. Op. cit. n. 66, at p. 40.

68. 999 UNTS (1976) p. 171. This derogation is only permitted under a number of stringent conditions, whereas Art. 4.2 excludes a number of articles (with fundamental rights) from the derogation (see further, Meron, T., ‘Notes and Comments; On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument’, 77 AJIL (1983) pp. 600–601Google Scholar, and section 3.4 infra).

69. 213 UNTS (1955) p. 221. This derogation is also conditional, and furthermore, adds in Art. 15(2): ‘No derogation from article 2 [‘Everyone's right to life’] except in respect of deaths resulting from lawful acts of war … shall be made under this provision.’ Both in its Lawless decision and in its decision in the Greek case, the European Court of Human Rights defined the words ‘public emergency threatening the life of the nation’ in such a way that war and armed conflict within the meaning of he terms given in this article would certainly be included (see for the Lawless decision, 4 Yearbook of the European Convention on Human Rights, p. 438 at pp. 472–474; for the Greek case, vol. 12, p. 72).

70. Art. 44.1 of the 1969 Vienna Convention states that ‘[a] right of a party, provided for in a treaty … to denounce, withdraw from or suspend the operation of the treaty may be exercised only with respect to the whole treaty unless the treaty otherwise provides …’(emphasis added). See in general on ‘separability’, Sinclair, op. cit. n. 60, at pp. 165–167. Although there is good reason to refer to the 1969 Vienna Convention here, it should be kept in mind that according to its Art. 73, the Convention must not prejudge any question in regard to a treaty from the outbreak of hostilities between States (see, infra, in the text).

71. See for other examples, O'Connell, op. cit. n. 66, at pp. 268–271, in particular n. 50 on p. 270.

72. The International Law Commission already concluded in 1963 that in the context of its work on the law of treaties, it could not conveniently deal with ‘ … the effect of the provisions of the Charter concerning the threat or use of force upon the legality of the recourse to the particular hostilities in question’; in ILC Yearbook 1963 Vol. II, p. 189.

73. ‘The outbreak of an armed conflict does not ipso facto terminate or suspend the operation of treaties in force between the parties to an armed conflict.’ See 61 Annuaire de l'Institut de Droit International (1986) no. 2, at p. 279Google Scholar. This article was adopted by a vast majority (see ibid., p. 217).

74. See Art. 5 of the Resolution, in ibid., p. 279.

75. See e.g., Art. 4 of the 1984 Draft Resolution, in 61 Annuaire de l'Institut de Droit International (1985) no. 1, p. 25Google Scholar, or Art. 5 of the 1980 Draft Resolution, ibid. Unfortunately, in view of our subject, but after much debate, references to the Vienna Convention have been deleted; see, e.g., ibid. Vol. 61 (1986) no. 2, pp. 242–244.

76. See Sinclair, op. cit. n. 60, at pp. 190–192, for a discussion of this rule which has only a limited significance within the Vienna Convention.

77. See ibid., pp. 192–196 for an account of this much more prominent and debated rule of the law of treaties.

78. If one of the parties to a conflict is not a party to the instrument, the instrument does not apply to the relations of the parties to the conflict, i.e., not even to the relations of parties who are parties to the instrument. See e.g., Art. 2 of 1907 Hague Convention IV, Art. 7 of Convention VII, Art. 8 of Convention IX, or Art. 9 of Convention XI. In the 1949 Geneva Conventions, si omnes has disappeared as Art. 2 (3) indicates: ‘Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations.’

79. Abi-Saab, G., ‘The Specificities of Humanitarian Law’, in Swinarski, C., ed., Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (1984) p. 267Google Scholar. The customary law status of, e.g., the Hague Regulations on landwarfare, annexed to Hague Convention IV, has in fact already made the si omnes clause of Art. 2 of that Convention irrelevant for the application of the Regulations.

80. 1155 UNTS (1980) p. 331.

81. 92 Hague Recueil (1957) pp. 125–126.

82. See infra, in section 3.4.1 and also Art. 4 of the Resolution of the Institut du Droit International, ibid., n. 73, p. 280, which is broader in its formulation.

83. ICJ Rep. (1970) p. 32. See also the extensive discussion on this dictum and erga omnes obligations by T. Meron, in op. cit. n. 43, pp. 188–201 and by Gaja, G., ‘Obligations Erga Omnes, International Crimes and Jus Cogens: A Tentative Analysis of Three Related Concepts’Google Scholar, in Weiler, J., Cassese, A. and Spinedi, M., International Crimes of State (1989) pp. 151–158.Google Scholar

84. ICJ Rep. (1970) p. 32. It is submitted that the Court thus retreated from its rejection of the possibility of an actio popularis in the South West Africa cases (ICJ Rep. (1966) p. 47 et seq.); see e.g., de Hoogh, A., ‘The Relationship between Jus Cogens, Obligations Erga Omnes and International Crimes: Peremptory Norms in Perspective’, Austrian J Pub. Int. L (1991) pp. 192–193Google Scholar. However, in this respect it is of importance what precisely the legal consequences of such obligations erga omnes are.

85. Art. 1, para. 1 of the 1977 Additional Protocol I is almost identical.

86. Abi-Saab, loc. cit. n. 79, at p. 270.

87. He draws this conclusion from the ICRC Commentary, where it is said that when a power violates an obligation, ‘ … each of the other Contracting Parties (neutral, allied or enemy) should endeavour to bring it back to an attitude of respect for the Convention’ (Pictet, J., Commentary, vol. III (1960) p. 18Google Scholar; emphasis added). As a basis for such a far-reaching qualification of all the obligations of the Conventions, this seems rather weak.

88. See Arts. 49, 50, 129 and 146 of Geneva Conventions I-IV, respectively, and Arts. 85 and 11 of Additional Protocol I. Due to additional criteria, the provisions of the Protocol are somewhat more complicated, but the Protocol has extended the scope of ‘grave breaches’ (notably by way of Art. 11.4; see Kalshoven, F., Constraints on the Waging of War (1987) at p. 132).Google Scholar

89. See e.g., the discussion in Special Rapporteur Gaetano Arangio-Ruiz' Fourth Report on State Responsibility, A/CN.4/444/Add.1, para. 78–90, at pp. 22–34, in particular para. 80, at pp. 24/5. In the first of these paragraphs on ‘Countermeasures and respect for Human Rights’, the Special Rapporteur recognizes the difficulty ‘to determine the precise extent of humanitarian restrictions’.

90. Theodor Meron combines these non-derogable rights with those of two regional conventions: the American and the European Conventions on Human Rights, and then arrives at an ‘irreducible core’ of only four rights: the right to life and the prohibitions of slavery, torture, and retroactive penal measures (op. cit. n. 43, at p. 194). Also, in view of the comparitive purposes of this article, the broader selection is chosen.

91. Although perhaps quite acceptable, this is not to say that these rights necessarily form the ‘core’ of humanitarian rights. Although Art. 85.5 of Additional Protocol I holds that ‘[w]ithout prejudice to the application of the Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes’, an assessment of the most fundamental ‘war crimes in the strict sense’ on the basis of the Nuremberg Charter and Judgment or otherwise, may well lead to a different result (see e.g., Schwarzenberger, op. cit. n. 14, at pp. 483–484). Karl Josef Partsch introduces still other ‘fundamental rules’, like the rules subsumed in common Art. 3 of the Geneva Conventions or the rules in a 1979 ICRC assessment (‘Armed Conflict, Fundamental Rules’, in EPIL, instalment 3 (1982) pp. 28–31).

92. Unless, like Thomas Buergenthal does, in addition to the content of the human rights, the character of the violations is emphasized. In that light, he submits that the core rights consist of genocide, apartheid, torture, mass killings and massive arbitrary deprivations of liberty: Buergenthal, T., ‘Codification and Implementation of International Human Rights’, in Henkin, A., ed., Human Dignity. The Internationalization of Human Rights (1979) p. 17.Google Scholar

93. See Art. 4 of Convention IV for the definition of protected person.

94. See Kalshoven, op. cit. n. 88, at pp. 111–112. Moreover, Art. 11.4 creates a new ‘grave breach’, in the sense that any ‘wilful act or omission’ violating one of the rules of the article, which ‘seriously endangers the physical or mental health or integrity of any person who is in the power of a Party other than the one on which he depends’, are conditions set for this ‘grave breach’ (see ibid., p. 132).

95. In order for violations to qualify as a ‘grave breach’, the acts referred to in para. 3 should be committed wilfully and are ‘causing death or serious injury to body or health’ (see further Kalshoven, op. cit. n. 88, at pp. 132–133).

96. According to Art. 19, para. 4, ‘Any internationally wrongful act which is not an international crime … constitutes an international delict’; ILC Yearbook 1976 Vol. II Part 2, pp. 95–96.

97. Although a State, in the terms of Art. 19.3.c, is presumed to bear responsibility for a systematic and massive resort to such breaches, as Meron submits, op. cit. n. 43, at pp. 211–212.

98. ILC Yearbook 1976 Vol. II Part 2, para. 21, at pp. 103–104.

99. Meron, op. cit. n. 43, at p. 212, has concluded that systematic and massive resort to such breaches could be considered an international crime, a crime of the State in the meaning of Art. 19.3.c. However, in terms of positive obligations the matter is still highly controversial.

100. In A/CN.4/444/Add.1 of 25 May 1992, para. 81, at p. 25.

101. Ibid., p. 34.

102. Ibid., p. 27.

103. On the relationship, see Meron, op. cit. n. 43, at p. 194; and, in particular, De Hoogh, loc. cit. n. 84, at pp. 183–214.

104. Common Arts. 6/7, 6/7, 6/7 and 7/8 of Geneva Conventions I-IV, respectively. For the 1977 Additional Protocols the same general rules apply.

105. See further, Abi-Saab, op. cit. n. 79, at pp. 271–273, and 280. A general discussion of views on the nature of jus cogens is, of course, beyond the scope of this essay.

106. See e.g., Meron, who holds that ‘ … certain provisions of the Conventions of 1949 reflect customary law.’ And that ‘[t]his can only be determined in concreto with regard to each particular provision’ (loc. cit. n. 68, p. 591). Whether the norms of the 1949 Conventions are customary law is, of course, of limited significance because of the almost universal participation of States.

107. See notably, its examination of the character of the general prohibition of the use of armed force in Military and Paramilitary Activities in and against Nicaragua, Merits, ICJ Rep. (1986) pp. 100–101, para. 190.

108. Meron, op. cit. n. 43, at pp. 193–194; see also, n. 90, supra, for his ‘irreducible core’.

109. ILC Yearbook 1980 Vol. II Part 2, p. 98. The ILC did not further explain its views in the context of its work on the State Responsibility Draft (see also, supra, section 3.4.1), nor in its work on the Draft Code of Offences against the Peace and Security of Mankind (see e.g., ILC Yearbook Vol. II Part 2, pp. 25–28).