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Jus ad bellum, jus in bello and non-international armed conflicts1

Published online by Cambridge University Press:  17 February 2009

François Bugnion
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Of all the calamities that can befall a people or a state, civil war has always been considered one of the worst. Setting son against father, brother against brother and neighbour against neighbour, civil war is a merciless struggle that is not limited to the clash of armed forces. Characterised by denunciations, acts of vengeance and the settling of scores, civil war unleashes the built-up tension and hatred within a society.

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Yearbook of International Humanitarian Law , Volume 6 , December 2003 , pp. 167 - 198
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Copyright © T.M.C. Asser Instituut and the Authors 2003

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References

3. ‘Traditionally, a distinction is drawn between jus ad bellum (that is, the set of rules of international law relating to the conditions in which a subject of international law is permitted to resort to armed force) and jus in bello (that is, the set of rules of international law applicable to the mutual relations of parties to an international armed conflict, or more briefly the laws and customs of war).’ Rousseau, C., Le droit des conflits armés (Paris, Pedone 1983) p. 25Google Scholar. In the present article the expression jus ad bellum is used to designate the set of rules governing the right to resort to force or the prohibition on so doing, whether these are rules of international law or rules prohibiting the use of force in domestic law, and jus in bello to designate the set of rules governing the mutual relations between belligerents, whether in an international or an internal armed conflict.

4. ‘All of these factors confirm that customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife.’ Prosecutor v. Duško Tadić, Case No. IT-94–1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 134, cited by Sassoli, M. and Bouvier, A. in How does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law (Geneva, ICRC 1999) pp. 1192–1193Google Scholar.

5. Art. 8(2)(c) of the Statute of the International Criminal Court, 38 IRRC (1998) pp. 678 in particular 681Google Scholar; Roberts, A. and Guelff, R., eds., Documents on the Laws of War, 3rd edn. (Oxford, Oxford University Press 2000) pp. 678–679Google Scholar.

6. ‘International humanitarian law governs the conduct of both internal and international armed conflicts.’ Prosecutor v. Duško Tadić, supra n. 4, para. 67Google Scholar.

7. In its judgement of 2 October 1995 in the Tadić case, the ICTY Appeals Chamber nevertheless recognised that an internal conflict could constitute a threat to peace: ‘It can thus be said that there is a common understanding, manifested by the subsequent practice of the membership of the United Nations at large, that the threat to peace of Article 39 may include, as one of its species, internal armed conflicts.’ Ibid., para. 30.

8. In particular Art. 1(2) and Art. 55.

9. In particular GA Res. 1514 (XV) 1960, 2621 (XXV) 1970, 2625 (XXV) 1970, 2674 (XXV) 1970, 2852 (XXVI) 1971 and 3103 (XXVIII) 1973.

10. ‘…the continuation of colonialism in all its forms and manifestations … is a crime and … colonial peoples have the inherent right to struggle by all necessary means at their disposal against colonial Powers and alien domination in exercise of their right of self-determination recognized in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. … The struggle of peoples under colonial and alien domination and racist regimes for the implementation or their right to self- determination and independence is legitimate and in full accordance with the principles of international law. Any attempt to suppress the struggle against colonial and alien domination and racist regimes is incompatible with the Charter of the United Nations … and constitutes a threat to international peace and security’ proclaims Res. 3103 (XXVIII) 1973, adopted by the General Assembly on 12 December 1973. See also GA Res. 1514 (XV) 1960, 2621 (XXV) 1970, 2625 (XXV) 1970, 2674 (XXV) 1970 and 2852 (XXVI) 1971.

11. Few states recognised the right of the population of East Pakistan to revolt against the central government of Pakistan in the spring and summer of 1971. However, as soon as the intervention of the Indian Armed Forces in support of the insurgents precipitated the break up of Pakistan and the emergence of the new state of Bangladesh, most states and international organisations rushed to recognise it.

12. In legal theory a fundamental distinction is drawn between the situation of a state, which is entitled to resort to the use of armed force in order to preserve its national integrity and to crush a rebellion, and that of the insurgent party, which has no right to take up arms, except in the exercise of the right of self-determination. There is, therefore, a fundamental inequality between the two parties, from the viewpoint of both the internal law of the state concerned and that of international law. In practice, the situation is often more complex. If a civil war occurs, it is always because the legitimacy of the party in power is in dispute. In many cases that party has not respected the constitutional order or has gained power by force, or is violating human rights or a people's right to self-determination. Quite frequently there are two parties involved, each claiming to embody the legitimacy of the state. Finally, even the international community may be divided on the issue. Depending on their political interests and ideological leanings, some states grant recognition to one of the parties to the conflict while others recognise the adverse party. In the absence of any centralised and binding mechanism for granting recognition, the distinction between government party and insurgent is often not as clear-cut in practice as legal theory would have it.

13. For a more thorough consideration of this matter, reference may be made to the works and articles cited in the author's study, ‘Just wars, war of aggression and international humanitarian law’, 84 IRRC (2002) pp. 523–546Google Scholar.

14. ‘War inexorably expresses the prevailing ideas of the age. It takes the form of the passions on which it feeds. On the battlefield man encounters his own demons. It is in fact the ceremonial aspect of this bloody confrontation that the law of war is designed to regulate. But the law of war also implies a certain respect for one's adversary. The Roman canon that ‘which is foreign is barbarian’ legitimates extermination and creates a barrier to the emergence of the law. The same applies when the enemy are considered as inferior beings or as the agents of a criminal ideology. Here again the conditions for an attitude of restraint disappear and the ‘right’ which justifies the unleashing of violence highlights the defeat of the rule of law. War against criminals is not subject to any restraining influence since one does not negotiate with criminals. It is only to the extent that war appears as an unfortunate and tragically inadequate means of settling international disputes that it can be tacitly or contractually codified.’ Boissier, P., History of the International Committee of the Red Cross: From Solferino to Tsushima (Geneva, Henry Dunant Institute 1985) pp. 141–142Google Scholar.

15. Pact of Paris or Briand-Kellogg Pact, signed in Paris on 27 August 1928, 94 LNTS p. 58.

16. de Vattel, E., The Law of Nations or Principles of Natural Law Applied to the Conduct and Affairs of Nations and Sovereigns, translated by Fenwick, C.G. (Washington DC, Carnegie Institution 1916) Book III, ch. III, p. 247, paras. 39 and 40Google Scholar.

17. Art. 6 Charter of the International Military Tribunal. The text of the London Agreement of 8 August 1945 and of the annexes thereto is reproduced in 82 UNTS p. 280.

18. The judgement of the Nuremberg International Tribunal is reproduced in 41 AJIL (1947) pp. 172–333CrossRefGoogle Scholar. It should be noted in particular that the Tribunal refused to condemn Admirals Dönitz and Raeder for conducting all-out submarine warfare, including the torpedoing of Allied and neutral merchant shipping and the abandonment of the survivors, on the grounds that the illegality of these acts under the laws and customs of war had not been sufficiently proven (pp. 304–305, 308). Thus, the Tribunal acknowledged that the rules of jus in bello worked not only against the accused but also in their favour. The accused could not be condemned for hostile acts whose illegality under the laws and customs of war had not been proven, even though the acts in question had been committed during a war of aggression.

19. Here reference may be made to the numerous cases cited by Meyrowitz, H., Le principe de l'égalité des belligérants devant le droit de la guerre (Paris, Pedone 1970) pp. 62–76Google Scholar.

20. Furthermore, common Art. 2 specifies that the Conventions apply to all cases of declared war or of any other armed conflict between two or more of the High Contracting Parties.

21. The same interpretation is given in Meyrowitz, supra n. 19, pp. 37–40.

22. First Geneva Convention, Art. 46; Second Geneva Convention, Art. 47; Third Geneva Convention, Art. 13(3); Fourth Geneva Convention, Art. 33(3).

23. Protocol I, para. 5 of the preamble. Under the terms of Art. 31(2) of the Vienna Convention on the Law of Treaties of 23 May 1969, the preamble is an integral part of the treaty.

24. ‘Omnes bello capti relaxentur, ab una & altera parte, sine lytri ullius solutione, distinctione, aut exceptione captivorum qui extra Belgium militarunt & sub aliis vexillis signisve quam Dominorum Ordinum,’ Art. LXIII of the peace treaty between Spain and the Low Countries, signed at Münster on 30 January 1648, in Parry, C., ed., The Consolidated Treaty Series, Vol. 1 (New York, Oceana Publications 1969–1986) pp. 1 at 31–32, 88Google Scholar.

25. The main positions of this theory are set forth in Meyrowitz, supra n. 19, pp. 77–140. For a review of the American positions, see Tucker, R.W., The Just War: A Study in Contemporary American Doctrine (Baltimore, The Johns Hopkins Press 1960)Google Scholar. For a summary of the Soviet doctrine, see Tunkin, G.I., Droit international public: Problèmes théoriques, translated by the Center for Research on the USSR and the Eastern Countries of the Strasbourg University Faculty of Law, Political Science and Economics (Paris, Pedone 1965) pp. 35–55 and 210–219Google Scholar. With regard to the Soviet conception of the law of armed conflict, reference may be made to Toman, J., L'Union soviétique et le droit des conflits armés (Geneva, Graduate Institute of International Studies 1997)Google Scholar.

26. Lenin, (Vladimir Ilich Ulianov), Imperialism: The Highest Stage of Capitalism (New York, International Publishing Company. 1939)Google Scholarpassim; J. Toman, supra n. 25, p. 19.

27. The Hanoi government stated its position on many occasions, and in particular in the Note of 31 August 1965 from the Ministry of Foreign Affairs of the Democratic Republic of Vietnam in response to the appeal of 11 June 1965 by the International Committee of the Red Cross relating to the conduct of hostilities in Vietnam (the English translation of this Note was reproduced in 5 IRRC (1965) pp. 527–528CrossRefGoogle Scholar). Reference may also be made to document CDDH/41, submitted on 12 March 1974 to the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflict, Vol. IV (Berne, Federal Political Department 1978) pp. 177–190Google Scholar. A summary of the negotiations between the ICRC and the government of the Democratic Republic of Vietnam is to be found in the study by Barde, M., entitled La Croix-Rouge et la révolution indochinoise: Histoire du Comité international de la Croix-Rouge dans la guerre du Vietnam (Geneva, Graduate Institute of International Studies 1975)Google Scholar, and in the work by ProfessorFreymond, J., Guerres, révolutions, Croix-Rouge: Réflexions sur le rôle du Comité international de la Croix-Rouge (Geneva, Graduate Institute of International Studies 1976) pp. 85–94Google Scholar. The government of the Democratic Republic of Vietnam also invoked the reservation it had formulated with regard to Art. 85 of the Third Convention, relating to the treatment of war criminals. For an examination of the position of the Hanoi authorities in the light of international humanitarian law, reference may be made to an article by de La Pradelle, P., ‘Le Nord-Vietnam et les Conventions humanitaires de Genève’, 75 RGDIP (1971) pp. 313–332Google Scholar.

28. ‘Report on the protection and assistance mission to the Socialist Republic of Vietnam’, 5–14 April 1979, in particular Annex 7.1, p. 11; ‘Report on the protection and assistance mission to the Socialist Republic of Vietnam’, 24–31 May 1979, in particular pp. 6–10 and Annex 8, ICRC Archives, file 251 (69).

29. ‘The law of war, as a system of legal rules, finds its origin in the customary regulation of relations on the battlefield between two entities which were equal in legal terms.’ Siotis, J., Le droit de la guerre et les conflits armés d'un caractère non-international (Paris, Librairie générale de Droit et de Jurisprudence 1958) p. 53Google Scholar.

30. ‘As the delegate of the Imperial Government, I consider and declare that the Imperial Government would under no circumstances, and in no form whatever, become a party to, or even discuss, any agreement or recommendation on this subject; I consider that, in view of its politically serious nature, this subject should not even be a matter for discussion at a conference devoted exclusively to humanitarian and peaceful affairs. I further consider that Red Cross Societies have no duty whatsoever towards bands of insurgents or revolutionaries who cannot be considered by the laws of my country as anything other than criminals …. Any offer of services from Red Cross Societies, whether direct or indirect, to insurgents or revolutionaries could be seen only as a breach of friendly relations, indeed as an unfriendly act likely to encourage and foment sedition and rebellion …’ declared General Yermolov, the Russian delegate at the Ninth International Conference of the Red Cross, held in Washington in 1912. Neuvième Conférence internationale de la Croix-Rouge, tenue à Washington du 7 au 17 mai 1912, Compte rendu (Washington, The American Red Cross 1912) p. 45Google Scholar. In a reversal such as often occurs in history, it so happened that Russia was the scene of the first Red Cross operation in a civil war that took place after the Washington Conference.

31. Vattel, supra n. 16, Book. III, ch. XVIII, p. 336.

32. Ibid., p. 338.

33. Ibid.

34. Recognition of belligerency by the government of a state in which civil war is raging, which has the effect of making the laws and customs of war applicable between that government and its adversaries, must not be confused with recognition of belligerency by the government of another state, which has the effect of making the law of neutrality applicable between that state and the parties involved in the civil war.

35. Siotis, supra n. 29, p. 60.

36. Ibid.

37. ‘That there shall be no future Confiscations made, nor any prosecutions commenced against any Person or Persons, for or by reason of the Part which he or they may have taken in the present War, and that no person shall on that account suffer any future Loss or Damage, either in his Person, Liberty or Property; and that those who may be in confinement on such charges at the time of the Ratification of the Treaty in America, shall be immediately set at Liberty, and the Prosecutions so commenced be discontinued. … All Prisoners on both sides shall be set at Liberty.’ Provisional Articles of Peace between Great Britain and the United States, signed in Paris, 30 November 1782, Arts. 6 and 7, in Parry, C., ed., The Consolidated Treaty Series, Vol. 48 (New York, Oceana Publications 1969–1986) pp. 223 at 228Google Scholar. These provisions were confirmed by Art. VI of the Definitive Treaty of Peace between Great Britain and the United States, signed in Paris, 3 September 1783, ibid., pp. 487 at 493–494.

38. In December 1845, political and religious divergences between the Confederates prompted the seven Catholic cantons of Lucerne, Uri, Schwyz, Unterwald, Zug, Fribourg and Valais to conclude a separate alliance (the ‘Sonderbund’). The federal Diet, comprising representatives of all the Swiss cantons, considered that this alliance was contrary to the Confederal Pact and ordered its dissolution. The Catholic cantons refused to submit and withdrew from the Diet. On 4 November 1847, the Diet ordered an armed intervention and appointed Guillaume-Henri Dufour to lead the federal troops. Twenty-six days later the campaign was over, before the major powers had had time to become involved. The ‘Recommendations for proper conduct towards inhabitants and troops’ of 4 November 1847 and the ‘Proclamation to the Army’ of 5 November 1847 are cited in Reverdin, O., La guerre du Sonderbund vue par le Général Dufour, juin 1847 — avril 1848 (Geneva, Éditions du Journal de Genève 1948) pp. 42–45Google Scholar; Pedrazzini, D.M., ‘Conceptions et réalisations humanitaires du général Guillaume-Henri Dufour lors de la guerre du Sonderbound’, in Durand, R. and Meurant, J., eds., Préludes et Pionniers: Les précurseurs de la Croix-Rouge, 1840–1860 (Geneva, Henry Dunant Society 1991) pp. 55–67Google Scholar.

39. du Bois, P., La guerre du Sonderbund: La Suisse de 1847 (Paris, Alvik Editions 2002) pp. 154–156Google Scholar.

40. On 15 April 1861. Brogan, H., The Penguin History of the USA, 2nd edn. (London, Penguin Books 1999) p. 315Google Scholar.

41. ‘… the very act of placing the Confederate ports under blockade constitutes application of a whole chapter, and one of the most important, of the law of war’. Siotis, supra n. 29, p. 80.

42. One notable exception is General Sherman's campaign through Georgia in the last months of the war, during which his army laid waste to vast tracks of land in a way which would probably be considered today as contrary to the law of belligerent occupation. However, the law of belligerent occupation was not as developed then as it is today; furthermore, it was not considered that the recognition of belligerency led to the application of the law of belligerent occupation. The occupation regime applied to the former Confederate States after the end of the conflict also left deep wounds and long lasting bitterness.

43. Documents on Prisoners of War, edited with annotations by Levie, H.S. (Newport, Rhode Island, United States Naval War College 1979) pp. 34–36Google Scholar.

44. Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863, in Schindler, D. and Toman, J., eds., The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents, 3rd edn. (Dordrecht, Martinus Nijhoff Publishers 1988) pp. 3–23Google Scholar; Documents on Prisoners of War, supra n. 43, pp. 37–44.

45. ‘The troops shall march by Brigades and Detachments to a designated point, stock their arms, deposit their flags, sabres, pistols, etc. and from thence march to their homes under charge of their Officers, superintended by their respective Division and Corps Commanders, Officers retaining their side arms, and the authorized number of private horses.’ Art. 1 of the Articles of Agreement in Regard to the Surrender of the Army of Northern Virginia under Gen. Robert E. Lee, signed at Appomattox Court House, VA, on 9–10 April 1865; War Department, Record and Pension Office, 1892–1904; Records of the Adjutant General's Office, 1780–1917; Record Group 94; National Archives <http://www.classbrain.com/artteenst/publish/article_124.shtml>; Brogan, supra n. 40, pp. 344–345. Churchill, W., The Great Republic: A History of America (New York, Random House 1999) pp. 217–218Google Scholar.

46. Castrén, E., Civil War (Helsinki, Suomalainen Tiedeakatemia 1966) p. 152Google Scholar; Guggenheim, P., Traité de Droit international public, Vol. 1, 1st edn. (Geneva, Librairie Georg & Cie 1953) p. 207Google Scholar; Mugerva, N., ‘Subjects of international law’, in Sørensen, M., ed., Manual of Public International Law (London, MacMillan 1968) pp. 247 in particular 287Google Scholar; Oppenheim, L., International Law: A Treatise, edited by Lauterpacht, H., Vol. II, Disputes, War and Neutrality, 7th edn. (London, Longman 1952) pp. 211–212, 371Google Scholar; Schwarzenberger, G., International Law, Vol. II (London, Stevens & Sons 1968) p. 691Google Scholar; Siotis, supra n. 29, pp. 109–110; Zorgbibe, C., La guerre civile (Paris, Presses universitaires de France 1975) pp. 47–56Google Scholar.

47. Keesing's Contemporary Archives (Bristol, Keesing's Publications Limited 1967) p. 22088Google Scholar.

48. Africa Research Bulletin, Economic Series (London, Blackwell Publishers 1967) p. 775; Zorgbibe, C. ‘Sources of the recognition of belligerent status’, 17 IRRC (1977) p. 111CrossRefGoogle Scholar.

49. ICRC Annual Reports, 1967 to 1970. On the negotiations relating to the blockade of the secessionist province and to relief operations, reference may be made to Hentsch, T., Face au blocus: La Croix-Rouge internationale dans le Nigéria en guerre (1967–1970) (Geneva, Graduate Institute of International Studies 1973)Google Scholar.

50. Note from the Nigerian minister of defence to the ICRC delegation in Lagos, 14 May 1970, ICRC Archives, file 219 (186); ICRC Annual Report 1970, p. 10.

51. At the end of the War of Secession, for example, the US government decided not to prosecute members of the Confederate armed forces for their participation in the hostilities. On the other hand, Captain Henry Wirz, who had been in charge of the prisoner of war camp in Andersonville, Georgia, was prosecuted and found guilty of war crimes perpetrated in that camp. Documents on Prisoners of War, supra n. 43, pp. 46–56.

52. Res. XIV: ‘The Red Cross and civil war’, in the report of the Tenth International Red Cross Conference, Geneva, 30 March – 7 April 1921 (Geneva, ICRC 1921) pp. 217–218Google Scholar.

53. From the legal standpoint, the law of armed conflict establishes, by virtue of Art. 1(2) of Protocol II Additional to the Geneva Conventions, a line separating situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other similar acts, which are not considered to be armed conflicts, from non-international armed conflicts, to which Art. 3 common to the four Geneva Conventions and in some cases Protocol II are applicable. The article states: ‘This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.’ It is nevertheless obvious that this is a distinction between legal categories that the human mind imposes upon a sociological phenomenon which is in fact a continuum. From the sociological and phenomenological viewpoint there is a gradation of situations of violence which proceed, without any break in continuity, from mere riots to a civil war between two organised parties, each of which controls part of the national territory and deploys organised armed forces. One and the same conflict can go through the entire range of such situations.

54. For example, the massacre in April 1927 of the workers' militias which had helped Chiang KaiShek to take the city of Shanghai marked the split between the Kuo Min Tang and the Chinese Communist Party and the start of the civil war, which was to end in 1949 with the victory of the Chinese communists after a series of pitched battles involving hundreds of thousands of men on either side. Similarly, on 26 July 1953, Fidel Castro, leading a handful of insurgents, failed in his attempt to take the Moncada barracks; freed in 1955, Castro took refuge in Mexico; on 2 December 1956 he landed in Cuba with a few companions and hid out in the Sierra Maestra, from where he continued the struggle until his victorious entry into Havana on 1 January 1959.

55. Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B (Berne, Federal Political Department 1950–1951) p. 122Google Scholar (hereafter, Final Record 1949).

56. Art. 2(4) Stockholm Draft, Revised and New Draft Conventions for the Protection of War Victims: Texts approved and amended by the XVIIth International Red Cross Conference (Geneva, ICRC 1948) pp. 10, 32, 51–52 and 114; Final Record 1949, supra n. 55, Vol. I, pp. 47, 61, 73 and 113.

57. Final Record 1949, supra n. 55, Vol. II-B, pp. 47–48 (remarks by Pilloud).

58. It appears that this term was coined by the Soviet delegation, Final Record 1949, ibid., pp. 35 and 326.

59. For the legislative history of Art. 3, see ‘Report on the work of the Preliminary Conference of National Red Cross Societies for the study of the conventions and of various problems relative to the Red Cross, Geneva, July-August, 1946’ (Geneva, ICRC 1947) pp. 14–15, 70–71 and 105; ‘Report on the work of the Conference of Government Experts for the study of the conventions for the protection of war victims, Geneva, April, 1947’ (Geneva, ICRC 1947) pp. 8–9, 103 and 272; XVIIth International Conference of the Red Cross, Stockholm, August 1948, Draft Revised or New Conventions for the Protection of War Victims, Doc. No. 4a (Geneva, ICRC 1948) pp. 5–6, 35–36, 53–54 and 156–157; XVIIe Conférence internationale de la Croix-Rouge, Stockholm, août 1948, ‘sténogramme des séances de la Commission juridique’, pp. 36–57 and 62–64; ‘Report of the Seventeenth International Red Cross Conference, held in Stockholm from 20 to 30 August 1948’ (Stockholm, Swedish Red Cross, 1948) pp. 71–73; Revised and New Draft Conventions for the Protection of War Victims: Texts approved and amended by the XVIIth International Red Cross Conference, revised translation (Geneva, ICRC 1948) pp. 9–10, 32, 51–52 and 114; Revised and New Draft Conventions for the Protection of War Victims: Remarks and Proposals submitted by the International Committee of the Red Cross (Geneva, ICRC 1949) pp. 9, 26, 36–39 and 68; Final Record 1999, supra n. 55, Vol. I, pp. 47, 61, 73, 113, 205–206, 225–226, 243–244, 297–298, 343 and 351; Vol. II-A, pp. 207–208, 221–222, 576–577 and 847–848; Vol. II-B, pp. 9–16, 26, 27, 34–35, 36–39, 40–50, 76–79, 81, 82–84, 89–90, 91, 93–95, 97–102, 106, 107–108, 120–127, 128–129, 157, 165–166, 171, 189, 325–339 and 525–526; Vol. III, pp. 27–28, 50, 58 and 100.

60. The war in Algeria, for example, which began with a series of terrorist attacks in Algeria on 1 November 1954 and which has always been regarded as a non-international armed conflict, came to an end on 18 March 1962 with the signing in Évian of a ceasefire agreement concluded between the French government and the Provisional Government of the Algerian Republic. Art. 11 of the agreement provided for the release of all prisoners of war, 66 RGDIP (1962) pp. 686–692Google Scholar. Similarly, the war which ravaged East Pakistan in 1971 and ended with the independence of Bangladesh was settled by a series of agreements concluded between Pakistan and the new state of Bangladesh; the matter of the release and repatriation of the prisoners captured on either side was dealt with essentially by the agreement on the repatriation of prisoners of war concluded in New Delhi on 28 August 1973, 12 ILM (1973) pp. 1080–1084Google Scholar.

61. Indeed, on many occasions both sides claim to represent the legitimacy of the state. In such cases the international community is split, some states granting recognition to one of the adversaries and other states granting it to the other, all on the basis of political or ideological affinities and regardless of any legal criteria and considerations of effectiveness.

62. ‘Protection of victims of non-international conflicts’, report submitted by the International Committee of the Red Cross to the Twenty-first International Conference of the Red Cross, Istanbul, 1969, published in 9 IRRC (1969) pp. 343–352CrossRefGoogle Scholar, and ‘Reaffirmation and development of the laws and customs applicable in armed conflicts’, report submitted by the International Committee of the Red Cross (Geneva, ICRC 1969) pp. 112–142.

63. For the legislative history of Protocol II, the following documents should be consulted: Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, Geneva, 24 May-12 June 1971, documents submitted by the International Committee of the Red Cross, Vol. V, Protection of Victims of Non-international Armed Conflicts (Geneva, ICRC 1971)Google Scholar; ‘Conference of Red Cross Experts on the reaffirmation and development of international humanitarian law applicable in armed conflicts, The Hague, 1–6 March 1971, report on the work of the Conference’ (Geneva, ICRC 1971) pp. 43–52; ‘Conference of Government Experts on the reaffirmation and development of international humanitarian law applicable in armed conflicts, Geneva, 24 May-12 June 1971, report on the work of the Conference’ (Geneva, ICRC 1971) passim; Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, second session, Geneva, 3 May-3 June 1972, documentary material submitted by the International Committee of the Red Cross, Vol. I, Basic Texts (Geneva, ICRC 1972) pp. 35–46; Vol. II, Commentary, Part Two, pp. 1–89; ‘Conference of Red Cross Experts on the reaffirmation and development of international humanitarian law applicable in armed conflicts, second session, Vienna, 20–24 March 1972, report on the work of the Conference’ (Geneva, ICRC 1972) passim; ‘Conference of Government Experts on the reaffirmation and development of international humanitarian law applicable in armed conflicts, second session, 3 May-3 June 1972, report on the work of the Conference’ (Geneva, ICRC 1972) passim; Draft Additional Protocols to the Geneva Conventions of August 12, 1949 (Geneva, ICRC 1973) pp. 33–46; Draft Additional Protocols to the Geneva Conventions of August 12, 1949: Commentary (Geneva, ICRC 1973) pp. 130–176; ‘Report on the study by the XXIInd International Conference of the Red Cross of the draft Additional Protocols to the Geneva Conventions of August 12, 1949’ (Geneva, ICRC 1974) passim; Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, Geneva, 1974–1977 (Berne, Federal Political Department 1978) passim. In the ‘Commentary on the Additional Protocols’ published by the ICRC and in the work by M. Bothe et al., New Rules for Victims of Armed Conflicts, details are given of the legislative history of each article of Protocol II.

64. Thomas, H., The Spanish Civil War (Harmondsworth, Penguin Books 1974) pp. 224 and 760–761Google Scholar; Tamames, R., Historia de España Alfaguara, Vol. VII, 6th edn. (Madrid, Alianza Editorial, Ediciones Alfaguara 1977) pp. 324–325 and 370–373Google Scholar.

65. The members of President Somoza's National Guard were sentenced for belonging to a criminal association (‘asociación para delinquir’), ‘Special tribunals in Nicaragua’, Note for the record, 20 May 1980; Report on mission to Nicaragua by Mr André Pasquier, Delegate-General, from 31 October to 12 November 1980, ICRC Archives, file 200 (93).

66. The rudimentary nature of the regime established by Art. 3 results from the preparatory work and the wording of the article: ‘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 …’ [emphasis added]. The rudimentary nature of Protocol II is clearly revealed by a comparison between the draft prepared by the ICRC and the draft resulting from the work of the Committees of the Diplomatic Conference, on the one hand, and the text finally adopted by the Plenary Assembly, on the other.

67. In 2003, the ICRC organised five regional expert seminars on the implementation of international humanitarian law. These seminars took place in Cairo, Pretoria, Kuala Lumpur, Mexico City and Bruges. A sixth seminar, on the effects of direct participation in hostilities, was organised jointly with the T.M.C. Asser Institute in The Hague; additionally, the 27th San Remo Round Table, organised jointly with the International Institute of Humanitarian Law, focused on the interplay between international humanitarian law and other legal regimes in situations of violence. On the basis of these seminars, the ICRC submitted an important report to the 28th International Conference of the Red Cross and Red Crescent, which met in Geneva in December 2003: ‘International humanitarian law and the challenges of contemporary armed conflicts’ (2003). Most of the ideas and proposals indicated in the present section were submitted to the experts taking part in these seminars and led to stimulating and lively debates.

68. The Intergovernmental Group of Experts for the Protection of War Victims, meeting in Geneva from 23 to 27 January 1995, recommended that the ICRC be invited to prepare, with the assistance of experts on international humanitarian law representing various geographical regions and different legal systems, and in consultation with experts from governments and international organisations, a report on customary rules of humanitarian law applicable in international and non-international armed conflicts. The 26th International Conference of the Red Cross and Red Crescent, meeting in Geneva in December 1995, endorsed that recommendation. More than 100 experts contributed to the study, conducting extensive research with a view to identifying state practice and that of belligerents during international and non-international armed conflicts. The study is currently being printed and is due to be published at the beginning of 2005.

69. For many years, a group of states objected, as a matter of principle, to any development of the law applicable to non-international armed conflict. However, since some of them have been confronted with armed insurrection on their national territory, they have recognised the importance of a legal regime limiting violence in such conflicts and protecting their victims, clearing the way for new developments in the law applicable to non-international armed conflict in recent years. The Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Landmines and on their Destruction of 18 September 1997 applies to all armed conflicts, and so does the Second Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict of 26 March 1999. The Rome Statute of the International Criminal Court of 17 July 1998 gives the Court jurisdiction over war crimes committed in international and non-international armed conflicts. On 21 December 2001, the Review Conference of the Convention on Prohibitions and Restrictions on the Use of Certain Conventional Weapons which are deemed to be Excessively Injurious or to have Indiscriminate Effects of 10 October 1980 adopted the revised Art. 1 of the Convention, which extends the field of application of the framework Convention and of its Protocols to non-international armed conflicts.

70. ‘Insurgents are bound to observe the rules of Article 3, not by virtue of the accession or ratification by the established government, but in accordance with the desire of the international community, of which that government, on the point in question, is no more than an agent — a case in which a government's duty to act both as the representative of its particular State and as a member of the international community … is particularly evident.’ Wilhelm, R.-J., ‘Problèmes relatifs à la protection de la personne humaine par le droit international dans les conflits armés ne présentant pas un caractère international’, 137 Recueil des Cours (1972) p. 368Google Scholar. In its judgement of 27 June 1986, in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US) Merits, the International Court of Justice declared that Art. 3 formed part of the ‘elementary considerations of humanity’ applicable to international and non-international armed conflicts, ICJ Rep. (1986) pp. 14 at 114.

71. According to the above-mentioned study on customary international humanitarian law (n. 68), the majority of the provisions of Additional Protocol II, in particular the fundamental guarantees embodied in Art. 4 as well as the provisions on the conduct of hostilities (Arts. 13 to 17), reflect international custom.

72. There is surely a contradiction in demanding that non-state actors comply with international humanitarian law without giving them the opportunity to adhere to the instruments of international humanitarian law applicable to non-international armed conflicts or the opportunity to make a formal commitment to complying with those instruments.

73. With regard to the ICRC's offers of services, reference may be made to the author's work, The International Committee of the Red Cross and the Protection of War Victims (Geneva, ICRC 2003)Google Scholar in particular pp. 403–465.

74. Jakovlević, B., ‘The Agreement of May 22, 1992, on the implementation of international humanitarian law in the armed conflict in Bosnia-Herzegovina’, 39 Yugoslovenska Revija za Medjunarodno Pravo (1992) pp. 212–221Google Scholar; Mercier, M., Crimes Without Punishment: Humanitarian Action in Former Yugoslavia (London, Pluto Press 1995) pp. 203–207Google Scholar.

75. Tadić case, Appeals Decision, supra n. 4, para. 73.

76. During the 1970s and 1980s, the ICRC recorded and mentioned in its Annual Reports or published in the International Review of the Red Cross the declarations whereby various national liberation movements undertook to comply with international humanitarian law. At the time, however, the ICRC could draw support from the fact that these movements were recognised by the regional organisations concerned. Plattner, D., ‘La portée juridique des déclarations de respect du droit international humanitaire qui émanent de mouvements en lutte dans un conflit armé’, 18 RBDI (1984–1985) pp. 298–320Google Scholar.

77. Under the terms of Art. 8(2)(c) of the Statute of the International Criminal Court, the Court has jurisdiction in respect of serious violations of Art. 3 common to the four Geneva Conventions; under the terms of Art. 8(2)(e), the Court has jurisdiction in respect of other serious violations of the laws and customs applicable in armed conflicts not of an international character, as defined in this provision, 38 IRRC (1998) pp. 678 at 681Google Scholar; Documents on the Laws of War, supra n. 5, pp. 678–679.

78. On the role of the depositary state and the practice of Switzerland in that capacity, reference may be made to the memorandum of the Swiss Federal Political Department (now the Federal Department of Foreign Affairs) of 28 December 1960: ‘Obligations of the depositary government of a multilateral treaty’, 20 Annuaire suisse de droit international (1963) pp. 76–83Google Scholar.

79. On the issue of anti-personnel landmines, the Geneva Call, a non-governmental organisation, fulfills this role of registering declarations of intent by non-state actors.

80. Superior Army Command, 10th Military Region, Memorandum of 19 March 1958, ICRC Archives, file 225 (12); The ICRC and the Conflict in Algeria (Geneva, ICRC 1963) p. 8Google Scholar. The link between the treatment given to captured insurgents and their conduct in battle is highlighted in General Salan's Memorandum of 19 March 1958, ordering that military internee camps be set up for insurgents captured bearing weapons. Under the title ‘General concepts’, the memorandum contained the following preliminary observations:

‘Rebels driven to the wall very often fight with a degree of ferocity which leads to their extermination. This obstination is due less to a spirit of sacrifice dedicated to a cause regarded as sacred than to efficacious psychological preparation. The interrogation of prisoners has, in fact, revealed that during their training the ‘mujaheddin’ are warned in pressing terms about what will happen to them should they surrender. They are told that the French troops first torture then kill prisoners or, in the most favourable cases, bring them before courts which automatically condemn them to death. Extracts from certain French and foreign newspapers, liberally quoted by rebel and foreign radio stations, back up this propaganda very effectively. The fear perpetuated in this way gives armed groups a determination which must be weakened as far as possible in order to reduce our own losses. One way of doing this is to treat prisoners as liberally as possible and to make this fact known.’

General Salan's initiative was taken for the sake of military effectiveness. The ICRC's representations recommending adoption of this measure, on the other hand, were prompted by the wish to see enhanced respect for the laws and customs of war, a consideration also reflected in the Memorandum of 19 March 1958, which stated: ‘Proposals for bringing captives before the courts should be systematically avoided, except in the case of those who have committed atrocities ….’

81. Art. 2(4): reads as follows: ‘Captured combatants shall enjoy the treatment provided for by the Third Geneva Convention. The ICRC shall have free access to all captured combatants in order to fulfill its humanitarian mandate according to the Third Geneva Convention.’ Cited in Mercier, supra n. 74, p. 205.

82. There have been for many years diverging views on whether states are bound to prosecute war crimes committed during non-international armed conflicts. According to common Arts. 49, 50, 129 and 146, the High Contracting Parties are under the obligation to search for persons alleged to have committed, or to have ordered to be committed, grave breaches of the Geneva Conventions and to bring such persons before their own courts. In our view, since common Art. 3 is part of the 1949 Geneva Conventions, there is no reason why grave breaches of this article should not be considered as grave breaches of the Geneva Conventions. While refraining from using the term ‘grave breaches’, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia determined that customary international law imposes criminal responsibility for serious violations of common Art. 3. See Prosecutor v. Duško Tadić, supra n. 4, para. 134. Furthermore, there is no doubt that each party to the conflict is under an obligation to prosecute members of its own armed forces alleged to have committed, or to have ordered to be committed, war crimes, whether during international or non-international armed conflicts.

83. This view was aired by two or three experts taking part in the five regional expert seminars organised by the ICRC in 2003, see supra n. 67; however, it was not supported by the other experts.

84. Arts. 50, 51, 130 and 147 common to the four Geneva Conventions define grave breaches of those Conventions; Art. 85 of Protocol I defines grave breaches and categorises them as war crimes; Art. 8 of the Statute of the International Criminal Court defines the war crimes committed in the case of international or non-international armed conflict.