The application of international humanitarian law to United Nations military operations is a subject that has attracted considerable interest almost from the inception of the United Nations. While the basic premise that United Nations forces should, at the very least, respect the ‘principles and spirit’ of international humanitarian law conventions has long commanded general acceptance, there has been considerable controversy both about the legal basis for this proposition — in particular, whether this duty of respect is something derived from general international law or the result of a specific and voluntary undertaking by the United Nations — and about the exact meaning of ‘principles and spirit’ in this context.

The establishment of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 (ICTY) and the adoption of its Statute heralded a new page in the history of international, particularly international criminal, law. For the first time since World War II, an international criminal court was established. The Tribunal was created in order to achieve important legal and political goals: to punish perpetrators of serious violations of international humanitarian law committed in the former Yugoslavia since 1991; to prevent further crimes; to facilitate the peace process; and to serve as a test for a future permanent international criminal court.

From a doctrinal point of view, the relationship between human rights and international humanitarian law (IHL) seems like a settled issue in terms of the correspondence of basic objectives and common aims.

Different theories have tried to explain that relationship, taking into consideration either that human rights and IHL are separate systems or that they are completely integrated within international law. Most recent positions emphasize their convergence into a scheme of mutual coordination and complementarity.

In our view, none of these positions clearly characterize the day-to-day interface between human rights and IHL. Taking that premise as a point of departure, our purpose is to demonstrate that there is no rational or organized convergence between the two systems of law, that similitude and correspondence are sometimes overwhelmed by diversity, and that gaps and overlaps between their rules are a common feature of their interrelations.

Since the breakthrough adoption in 1977 of Protocols I and II Additional to the Geneva Conventions of 1949, the major issue and biggest challenge facing international humanitarian law (IHL) has been its implementation. The two Additional Protocols addressed many, though not all, of the lacunae left in IHL after the adoption of the Geneva Conventions in 1949. As one commentator has noted: ‘There is, however, aparticularly acute contrast between humanitarian law's highly developed rules, many of which enjoy nearly universal acceptance, and the repeated violations of those rules in conflicts around the world.’

Following the death of Rwandan President Juvénal Habyarimana in a plane crash on 6 April 1994, Hutu extremists, members of the Presidential Guard, Rwandan army troops, the Interhamwe (‘Those who work together’) militia affiliated to the ruling party, the M.R.N.D. (Mouvement Révolutionaire National pour la Démocratie) and the Impuzamugambi (‘Those with a single purpose’) militia of the extremist CDR Party (Coalition pour la Défense de la République) began the systematic and widespread killings of Tutsi civilians in the capital Kigali. Hutu moderates were also targeted. Early victims of the violence included Prime Minister Agathe Uwilingiyimana along with ten Belgian soldiers of the United Nations Assistance Mission for Rwanda (UNAMIR). This incident prompted the withdrawal of UNAMIR which left the perpetrators of the genocide a free rein. Ministers and the President of the Constitutional Court were also killed within hours of the plane crash.

It is generally known that one of the worst acts of mass killings and auto-genocide occurred in Cambodia between 1975–79 during the reign of terror unleashed by the Khmer Rouge (KR) regime. It is estimated that between 1–2 million Cambodians (out of a total population of around 7 million) were killed, starved, or died of malnutrition and disease during this period. The KR regime persecuted religious and ethnic minorities, abolished all religions, private property and money and put the entire population under forced labor. The KR continued such practices in the areas under its control during the 1980s, and conducted a vitriolic and violent campaign against the ethnic Vietnamese in Cambodia until its collapse last year.

On 17 December 1997, US magistrate Judge Marcel Notzon ordered the release of Elizapban Ntakirutimana, who had been held in custody in Texas pending a decision on a request by the United States for his extradition to the International Criminal Tribunal for Rwanda (ICTR).

Dražen Erdemović, a lance corporal in the Bosnian Serb Army, admitted to killing ‘from 10 to 100’ Bosnian Muslim men by firing squad in July 1995, in and around the area of Srebrenica, during which process approximately 1,200 unarmed civilians were killed. He expressed a willingness to surrender to the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and was duly transferred to The Hague from the Federal Republic of Yugoslavia (FRY).

On 29 October 1997, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY), composed of Judges Antonio Cassese (presiding), Adolphus Karibi-Whyte, Haopei Li, Ninian Stephen and Lal Chand Vohrah, handed down its Judgement in the Blaškić case on the appeal filed by the Republic of Croatia against the ‘Subpoena Decision’ of Trial Chamber II of 18 July 1997. The legal issues raised in this case are complicated, rather new and fundamental from the perspective of international law and the inherent powers of international criminal courts established ad hoc by a Security Council resolution under Chapter VII of the United Nations Charter. They concern the authority and power of the Tribunal to issue compulsory orders of this kind to states, to high government officials and other individuals; the question of which remedies are available if there is a failure to comply with such subpoenae duces tecum; and other issues, as how to deal with the problem of the national security interests of sovereign states.

From one perspective, the modern development of international humanitarian law has been a remarkable success. Its rules are among the most detailed and extensive of international law. Its principal treaties enjoy almost universal acceptance. For the other side of the picture, one has only to look at what is happening in most recent armed conflicts to realize that serious violations of humanitarian law are rife all over the world. This leads to the conclusion that it is compliance — respect for the rules — which is the major challenge facing humanitarian law today rather than its very existence or the adequacy of its provisions.

Colombia, which never deigned to sign the Additional Protocols of 1977, in 1993 acceded to Protocol I on the protection of victims of international armed conflicts, and in 1996 to Protocol II applicable in situations of non-international (or internal) armed conflict. The latter step was the more remarkable in that Colombia for more than four decades was (and is to the present day) the scene of virulent internal armed conflict.

Between 3 and 4 December 1997, 122 governments signed the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and On Their Destruction, marking the first time in history that die international community banned a weapon that is already in widespread use.

Tens of millions of landmines are emplaced in about 70 nations. Another 100–200 million anti-personnel landmines are believed to be in the arsenals of more than 100 governments. Although militaries around the world have used antipersonnel landmines for decades, this treaty banning the weapon was proposed, developed, negotiated and signed in record time in recognition of the humanitarian imperative ‘to put an end to the suffering and casualties caused by anti-personnel mines mat kill or maim hundreds of people every week, mostly innocent and defenceless civilians and especially children, obstruct economic development and reconstruction, inhibit the repatriation of refugees and internally displaced persons, and have other severe consequences for years after emplacement’.

For at least a decade, die Government of Papua New Guinea (PNG) has been engaged in armed efforts to terminate a secessionist movement on the island of Bougainville off the South East coast of the PNG mainland. In late 1996, the government agreed to hire the firm of Sandline International to provide mercenary assistance, in a desperate bid to regain effective control of Bougainville. In an ironical twist to the cycle of violence and missed opportunities for peaceful resolution of the conflict, the controversial decision to engage Sandline proved to be the very catalyst to facilitate a process which appears to offer a real prospect for a negotiated settlement to the dispute.

The public disclosure of the decision of the then-Prime Minister, Sir Julius Chan, to resort to mercenarism was condemned by regional governments and resulted in widespread civil disturbance in PNG. Ultimately, the Chan Government was overthrown in a general election and the new government of Prime Minister Bill Skate has participated in the negotiation of an agreement to establish an independent Truce Monitoring Group and an end to me Bougainville conflict.

In the introduction to their book Srebrenica: Record of a War Crime, political scientists Jan Willem Honig and Norbert Both write: ‘“Srebrenica” has become synonymous with such an extraordinarily horrific crime that exceptional explanations have been proposed. Stories of conspiracy and betrayal abound. The most popular theory is that Srebrenica fell as the result of a plot involving senior UN personnel, the French government and the Serbian government. Others place the blame firmly on the Dutch UN soldiers, whom they accuse of cowardice during the Serb offensive against the safe area. We reject these explanations. Conspiracy theories tend to be neatly constructed so that every decision, or failure to decide, seems to stem from sinister ulterior motives. They leave no room for the dilemmas of real life, nor for miscommunication or outright failure. As such, they rarely bring us closer to the truth, and more often create a fertile breeding ground for dangerous stab-in-the-back myths’ Honig and Both claim that final culpability should, without a doubt, be attributed to the highest Serb officials and officers who organised the crime and gave the orders for its perpetration. The systematic manner in which the crime was committed, the evidence that detailed plans had been drawn up and that procedures established earlier had been painstakingly carried out — all this points to the direct responsibility of the Bosnian Serb leadership in Pale. Moreover, the Serbian leadership in Belgrade had given, if not the order, then still its tacit consent.

The end of the Cold War and the disappearance of bipolarity have resulted in a recrudescence of a number of armed conflicts in the world, in particular in the ex-Yugoslavia and the former Soviet Union. Such conflicts have demonstrated a blatant disregard for the law of armed conflicts and a loss of respect for human lives and cultural heritage. They have also demonstrated deficiencies in the implementation of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict — the only comprehensive international agreement aimed specifically at protecting movable and immovable cultural heritage in the event of armed conflict.

The adoption by the Italian parliament of Law No. 374 on 29 October 1997, entitled Rules for the ban of anti-personnel land-mines, formalizes the transformation of Italy from one of the major producers of such mines to one of the leaders of national and international initiatives for the ban of antipersonnel landmines.

On the modern battlefield, lasers are employed for a variety of military tasks, including rangefinding, target designation, jamming or destruction of optical or electro-optical systems. Sweden and the ICRC, in particular, alerted the international community to the fact that many existing and currently developed laser systems might well be used to blind enemy combatants. They argued that intentional blinding causes unnecessary suffering and pushed for an international agreement which would explicitly prohibit the use of lasers for blinding as a method of warfare. More than 20 years after the first discussions about regulation of laser weapons, the Review Conference of States Parties to the UN Conventional Weapons Convention adopted Protocol IV on Blinding Laser Weapons on 13 October 1995.

In early 1995, Italy ordered the extradition from Argentina to Italy of Erich Priebke. The request was made on the basis of an arrest petition against Priebke issued by the Judge in charge of the preliminary investigation before the Military Justice of Rome. Priebke was accused of ‘having been a member of the German Army, an enemy of the Italian State, in cooperation with … odier German soldiers, widi … executive action of … criminal design and acting with cruelty on people … causing the death of 335 people most of them Italian citizens, military men and civilian people who were not taking part in military operations, and premeditated shooting some shots against them, in “Cave Ardeatine”, Rome, on 24 March 1944 during the time of the war between Italy and Germany.’

The complex case of Erich Priebke can be analysed through two different phases. The first runs from the massacre of 335 Italian citizens at the Ardeatine Caves in Rome in 1944 to the conviction of Herbert Kappler and other Nazi officers involved in that shooting on 20 July 1948. During mis four-year period, Priebke became untraceable and escaped justice. The second phase starts when the former SS officer was detected in Argentina in May 1994 and, following extradition proceedings there, was extradited to Italy, where he underwent two criminal trials in front of the Italian military jurisdiction.