CHAPTER 15

THE REGULATION OF ARMED CONFLICT

15.1 Introduction

Traditionally there has always been a distinction made between the law relating to the resort to war (the jus ad bellum) and the law governing the conduct of the war (the jus in bello). The law of war in classical international law was the regime that came into operation when the relations of particular countries with each other were no longer governed by the law of peace because a state of declared war existed between them. The law of war dealt with all aspects of the hostile relationship.

The modern development of legal restrictions on the resort to war and the use of armed force has caused a shift in attitude towards the law of war. For example, the traditional view was that treaties were annulled as soon as war broke out. That is now not the case and the position depends much more on the terms of the treaty and the intention of the parties. The law of war is now less regarded as an alternative to the law of peace and more regarded as a device for alleviating the suffering caused by war. Since the end of World War Two there has been a concerted attempt, led by the International Committee of the Red Cross, to strengthen that branch of the law of war which is now often referred to as International Humanitarian Law.

Another modern phenomenon has been the reluctance of states actually to admit that they are at war and the absence of international recognition of states of war. For example, in 1982 the UK Prime Minister made it clear that the UK was not at war with Argentina and the hostilities relating to the Falkland Islands was always officially referred to as the Falklands Conflict or the Falklands Crisis. Similarly the use of force in 1991 in response to Iraq’s continued occupation of Kuwait is usually officially referred to as the Gulf Conflict. This reluctance to resort to war, so-called, has led to the development of what is known as the law of armed conflict. The scope of the law of armed conflict has been extended over the years to include not only hostilities between states but also civil wars and other ‘non-international’ conflicts. This has been necessary because traditionally the law of war did not come into operation until there was a recognised state of war.

The definition of war offered by Starke is that it is a hostile relationship between two or more states resulting in a contest which is primarily between the armed forces of either side. There has been some dispute as to whether a formal declaration of war was required before a state of war could exist. Certainly it is felt that a declaration, even a unilateral one, is sufficient evidence that a state of war exists. But it is now accepted today that the question of whether or not a war exists is an objective one and depends on the overall picture. It is also true that with the development of the law of armed conflict much of the importance of the distinction has gone.

625

Sourcebook on Public International Law

15.2 The sources of the law of armed conflict

Throughout history there have been restrictions placed on those using armed force in respect of methods of combat, use of weapons and treatment of civilians and prisoners of war. Up until the middle of the last century the source of the law governing armed conflict was almost entirely customary law. However, over the last 140 years a significant number of treaties have been agreed, many of which codify previously existing rules of international law. Rules of customary international law still have an enormously important role to play and much of the evidence for specific rules is found in the manuals of military law which most states have promulgated.

One of the first treaties to be concluded was the Paris Declaration Respecting Maritime Law 1856. At the outbreak of the Crimean War in 1854 all belligerents agreed certain rules relating to neutral ships and the capture of property at sea. At the peace conference that ended the war the seven participants signed the Declaration which has since been acceded to by a large number of states and, strictly speaking, remains in force to this day. In 1864 the Red Cross was established by Henri Dunant and the first of the ‘Red Cross’ conventions, the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field 1864, was adopted. Since that time a large number of treaties have been signed, among the most important of which are:

•Hague Declarations 1899;

•Hague Conventions 1907, in particular the Hague Convention IV Respecting the Laws and Customs of War on Land 1907 together with the annexed Hague Regulations on the Laws and Customs of War on Land;

•the four Geneva Conventions 1949 and their two additional Protocols 1977.

Seeing that, while seeking means to preserve peace and prevent armed conflicts between nations, it is likewise necessary to bear in mind the case where the appeal to arms has been brought about by events which their care was unable to avert;

Animated by the desire to serve, even in this extreme case, the interests of humanity and the ever progressive needs of civilisation;

Thinking it important, with this object, to revise the general laws and customs of war, either with a view to defining them with greater precision or to confining them within such limits as would mitigate their severity as far as possible;

Have deemed it necessary to complete and explain in certain particulars the work of the First Peace Conference, which, following on the Brussels Conference of 1874, and inspired by the ideas dictated by a wise and generous forethought, adopted provisions intended to define and govern the usages of war on land.

According to the views of the High Contracting Parties, these provisions, the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants.

It has not, however, been found possible at present to concert regulations covering all the circumstances which arise in practice;

On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders.

626

The Regulation of Armed Conflict

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity, and the dictates of the public conscience.1

15.3Application of the law: international and noninternational armed conflicts

As has already been stated, the law regulating armed conflict has developed from the laws of war. War was, by definition, a dispute between states and thus clearly within the ambit of international law. As the law was extended to cover situations which could not formally be referred to as war, debate occurred as to whether the law applied to situations of civil war and internal armed conflict. Applying international law to such situations could create problems in that it might be argued that it contravened the principle of non-interference in the domestic affairs of sovereign states. Historically, internal and civil wars were matters solely for the particular state involved. However, by the 1930s there existed a number of regional agreements concerned with the regulation of internal conflicts and customary international law had developed to the situation where the laws of war would apply where a recognised situation of belligerency existed. The need for such recognition has diminished since the end of World War Two and a growing acceptance that certain provisions of the law of armed conflict will apply to internal conflict. Article 3 which is repeated in all four Geneva Conventions 1949 provides that in the case of an armed conflict not of an international character occurring in the territory of one of the parties to the Conventions, certain fundamental humanitarian provisions relating to protection of civilians will apply to those participating in the conflict. The law has been further strengthened by the Geneva Protocol II Relating to the Protection of Victims of Non-International Armed Conflicts 1977. The provisions of Protocol II are much less extensive than those which relate to international armed conflicts. Nevertheless, the Protocol does provide certain protections for members of the civilian population and the wounded, sick and shipwrecked.

In addition to extending provisions of the law to non-international conflicts there has also been a broadening of the definition of international conflict to include ‘armed conflicts in which peoples are fighting for self-determination against colonial and alien occupation and against racist regimes in the exercise of their rights of self-determination’. This broader definition was first included in General Assembly Resolution 3103 (1973) which was passed by a 82:13 vote with 19 states abstaining. Among those voting against or abstaining were the majority of Western states and the Resolution could not be considered to have the status of customary international law at the time. However, the definition was repeated in Article 1(4) Geneva Protocol I to which the majority of states

________________________________________________________________________________________________________________________________________________

1Convention (IV) Respecting the Laws and Customs of War on Land – signed at The Hague, 18 October 1907.

627

Sourcebook on Public International Law

(including the Western states) are parties and it is submitted that it is now correct to include such national liberation struggles within the category of international armed conflict. Clearly, there remains a large number of actual and potential conflicts which still do not fall into the broader definition and these will be subject to the relatively more restricted provisions contained in Geneva Protocol II. The issue of the nature of the armed conflict has particular relevance in the current situation in Bosnia where the status of ‘Serbian’ troops is critical. At its simplest, the question can be posed thus: were the ‘Serbian’ forces operating in Bosnia members of the armed forces of the state of Serbia and Montenegro, or were they members of a Bosnian Serb militia? If the former is true, then the conflict must be defined as an international armed conflict since the armed forces of one state are operating without consent in the territory of another state; if the latter is true the conflict remains a non-international one. For the civilians who are suffering the question is perhaps purely an academic one, but it has important implications as to the rules of law which apply and in particular the degree of responsibility that can attach to those involved in some of the worst atrocities.

15.4 Effect of outbreaks of war and armed conflicts

The outbreak of war has far-reaching effects on the relations between the opponent belligerent states. The general rule of international law is that states are free to enact municipal legislation dealing with such matters as trading with the enemy, and provide for seizure of enemy property. This would seem to be true of war and any other armed conflict. As far as individuals are concerned state practice varies as to the exact nature of test of enemy character, but most states now effectively adopt one based on nationality.

On the outbreak of war diplomatic relations between the two states will cease although according to the Vienna Convention on Diplomatic Relations diplomatic agents must be enabled to leave. As has already been stated the effect on treaties is unsettled and the Vienna Convention on Treaties contains no provision dealing with effect of war.

15.5 Rules on belligerence

Much of the law relating to belligerency has the aim of minimising damage to civilians. Many prohibitions apply to non-military objectives. Military objectives usually means targets which by their nature, location, purpose or use make an effective contribution to military action and whose destruction, capture or neutralisation offer a definite military advantage.

15.5.1 Restrictions on weapons

Attempts to prohibit the use of particular types of weapons have been made in various civilisations over a long period of time. In the ancient Hindu codes there was a prohibition on the use of poisoned arrows. In 1132 the Lateran Council declared that the crossbow was an ‘un-Christian weapon’. When the law of war began to be codified in the 19th century, the prohibition of certain weapons was an early objective. The St Petersburg Declaration 1868 is regarded as the first major international agreement prohibiting the use of particular weapons, in this

628

The Regulation of Armed Conflict

case the prohibition of bullets under 400 grammes which exploded on impact – no states objected to exploding shells. Further development of the rules occurred at the Hague Conference in 1899 which resulted in the three Hague Declarations 1899. Declaration 2 prohibits the use of certain asphyxiating gases and Declaration 3 further prohibits the use of exploding bullets. The Declaration outlawed the use of so-called dum-dum bullets which were designed to expand in the body after impact. They were named dum-dum after the place in India where the UK first manufactured them.

A subsequent conference was held in the Hague in 1907 which resulted in a number of treaties relating to war. Hague Convention VIII Relative to the Laying of Automatic Submarine Mines 1907 remains applicable today: it regulates the use of naval mines (still relevant); and Hague Convention XIV attempted to regulate the use of bombing from balloons.

More progress was made after World War One and in 1925 the Geneva Gas Protocol was agreed.

PROTOCOL FOR THE PROHIBITION OF THE USE IN WAR OF ASPHYXIATING, POISONOUS OR OTHER GASES, AND OF BACTERIOLOGICAL METHODS OF WARFARE

ENTRY INTO FORCE: 8 February 1928

The undersigned Plenipotentiaries, in the name of their respective governments:

Whereas the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilised world; and

Whereas the prohibition of such use has been declared in Treaties to which the majority of powers of the world are Parties; and

To the end that this prohibition shall be universally accepted as a part of International Law, binding alike the conscience and the practice of nations;

Declare:

That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration.

The High Contracting Parties will exert every effort to induce other states to accede to the present Protocol. Such accession will be notified to the government of the French Republic, and by the latter to all signatories and acceding Powers, and will take effect on the date of the notification by the government of the French Republic.

The present Protocol, of which the English and French texts are both authentic, shall be ratified as soon as possible. It shall bear today’s date.

The ratifications of the present Protocol shall be addressed to the government of the French Republic, which will at once notify the deposit of such ratification to each of the signatory and acceding Powers.

629

Sourcebook on Public International Law

The instruments of ratification of and accession to the present Protocol will remain deposited in the archives of the Government of the French Republic.

The present Protocol will come into force for each signatory power as from the date of deposit of its ratification, and, from that moment, each power will be bound as regards other powers which have already deposited their ratifications.

In witness whereof the Plenipotentiaries have signed the present Protocol.

Done at Geneva in a single copy, the seventeenth day of June, One Thousand Nine Hundred and Twenty-Five.

Since the Second World War there have been a number of attempts to modify further and strengthen the law relating to weapons. However, it sadly has to be admitted that the development of the law is usually one step behind the ingenuity of weapons manufacturers. As particular restrictions are introduced so states look for ways of evading the new law. An illustration of the problem is provided by examining the law relating to four particular categories of weapons:

•conventional weapons

•weapons of mass destruction

•biological and chemical weapons

•environmental weapons

15.5.1.1 Conventional weapons

‘Conventional weapons’ includes all weapons not included in the other four categories. The principal relevant treaty is the UN Convention on Prohibitions or Restrictions of Certain Conventional Weapons that Cause Unnecessary Suffering or Have Indiscriminate Effects 1981 (the Weaponry Convention) together with its three annexed protocols which entered into force in December 1983.

CONVENTION ON PROHIBITIONS OR RESTRICTIONS ON THE USE OF CERTAIN CONVENTIONAL WEAPONS WHICH MAY BE DEEMED TO BE EXCESSIVELY INJURIOUS OR TO HAVE INDISCRIMINATE EFFECTS AND PROTOCOLS (1980)

ENTRY INTO FORCE: 2 December 1983 The High Contracting Parties,

Recalling that every state has the duty, in conformity with the Charter of the United Nations, to refrain in its international relations from the threat or use of force against the sovereignty, territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations,

Further recalling the general principle of the protection of the civilian population against the effects of hostilities,

Basing themselves on the principle of international law that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited, and on the principle that prohibits the employment in armed conflicts

630

The Regulation of Armed Conflict

of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering,

Also recalling that it is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment,

Confirming their determination that in cases not covered by this Convention and its annexed Protocols or by other international agreements, the civilian population and the combatants shall at all times remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience,

Desiring to contribute to international detente, the ending of the arms race and the building of confidence among states, and hence to the realisation of the aspiration of all peoples to live in peace,

Recognising the importance of pursuing every effort which may contribute to progress towards general and complete disarmament under strict and effective international control,

Reaffirming the need to continue the codification and progressive development of the rules of international law applicable in armed conflict,

Wishing to prohibit or restrict further the use of certain conventional weapons and believing that the positive results achieved in this area may facilitate the main talks on disarmament with a view to putting an end to the production, stockpiling and proliferation of such weapons,

Emphasising the desirability that all states become parties to this Convention and its annexed Protocols, especially the militarily significant states,

Bearing in mind that the General Assembly of the United Nations and the United Nations Disarmament Commission may decide to examine the question of a possible broadening of the scope of the prohibitions and restrictions contained in this Convention and its annexed Protocols,

Further bearing in mind that the Committee on Disarmament may decide to consider the question of adopting further measures to prohibit or restrict the use of certain conventional weapons,

Have agreed as follows:

Article 1 Scope of application

This Convention and its annexed Protocols shall apply in the situations referred to in Article 2 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, including any situation described in para 4 of Article 1 of Additional Protocol I to these Conventions.

Article 2 Relations with other international agreements

Nothing in this Convention or its annexed Protocols shall be interpreted as detracting from other obligations imposed upon the High Contracting Parties by international humanitarian law applicable in armed conflict.

Article 3 Signature

This Convention shall be open for signature by all states at United Nations Headquarters in New York for a period of 12 months from 10 April 1981.

Article 4 Ratification, acceptance, approval or accession

1 This Convention is subject to ratification, acceptance or approval by the Signatories. Any state which has not signed this Convention may accede to it.

631

Sourcebook on Public International Law

2The instruments of ratification, acceptance, approval or accession shall be deposited with the Depositary.

3Expressions of consent to be bound by any of the Protocols annexed to this Convention shall be optional for each state, provided that at the time of the deposit of its instrument of ratification, acceptance or approval of this Convention or of accession thereto, that state shall notify the Depositary of its consent to be bound by any two or more of these Protocols.

4At any time after the deposit of its instrument of ratification, acceptance or approval of this Convention or of accession thereto, a state may notify the Depositary of its consent to be bound by any annexed Protocol by which it is not already bound.

5Any Protocol by which a High Contracting Party is bound shall for that Party form an integral part of this Convention.

Article 5 Entry into force

1This Convention shall enter into force six months after the date of deposit of the twentieth instrument of ratification, acceptance, approval or accession.

2For any state which deposits its instrument of ratification, acceptance, approval or accession after the date of the deposit of the twentieth instrument of ratification, acceptance, approval or accession, this Convention shall enter into force six months after the date on which that state has deposited its instrument of ratification, acceptance, approval or accession.

3Each of the Protocols annexed to this Convention shall enter into force six months after the date by which twenty states have notified their consent to be bound by it in accordance with para 3 or 4 of Article 4 of this Convention.

4For any state which notifies its consent to be bound by a Protocol, annexed to this Convention after the date by which twenty states have notified their consent to be bound by it, the Protocol shall enter into force six months after the date on which that state has notified its consent so to be bound.

Article 6 Dissemination

The High Contracting Parties undertake, in time of peace as in time of armed conflict, to disseminate this Convention and those of its annexed Protocols by which they are bound as widely as possible in their respective countries and, in particular, to include the study thereof in their programmes of military instruction, so that those instruments may become known to their armed forces.

Article 7 Treaty relations upon entry into force of this Convention

1When one of the parties to a conflict is not bound by an annexed Protocol, the parties bound by this Convention and that annexed Protocol shall remain bound by them in their mutual relations.

2Any High Contracting Party shall be bound by this Convention and any Protocol annexed thereto which is in force for it, in any situation contemplated by Article 1, in relation to any state which is not a party to this Convention or bound by the relevant annexed Protocol, if the latter accepts and applies this Convention or the relevant Protocol, and so notifies the Depositary.

3The Depositary shall immediately inform the High Contracting Parties concerned of any notification received under para 2 of this article.

4This Convention, and the annexed Protocols by which a High Contracting Party is bound, shall apply with respect to an armed conflict against that High Contracting Party of the type referred to in Article 1, para 4, of Additional

632

The Regulation of Armed Conflict

Protocol I to the Geneva Conventions of 12 August 1949 for the Protection of War Victims:

(a)where the High Contracting Party is also a party to Additional Protocol I and an authority referred to in Article 96, para 3, of that Protocol has undertaken to apply the Geneva Conventions and Additional Protocol I in accordance with Article 96, para 3, of the said Protocol, and undertakes to apply this Convention and the relevant annexed Protocols in relation to that conflict; or

(b)where the High Contracting Party is not a party to Additional Protocol I and an authority of the type referred to in sub-para (a) above accepts and applies the obligations of the Geneva Conventions and of this Convention and the relevant annexed Protocols in relation to that conflict. Such an acceptance and application shall have in relation to that conflict the following effects:

(i)the Geneva Conventions and this Convention and its relevant annexed Protocols are brought into force for the parties to the conflict with immediate effect;

(ii)the said authority assumes the same rights and obligations as those which have been assumed by a High Contracting Party to the Geneva Conventions, this Convention and its relevant annexed Protocols; and

(iii)the Geneva Conventions, this Convention and its relevant annexed Protocols are equally binding upon all parties to the conflict.

The High Contracting Party and the authority may also agree to accept and apply the obligations of Additional Protocol I to the Geneva Conventions on a reciprocal basis.

Article 8 Review and amendments

1

(a)At any time after the entry into force of this Convention any High Contracting Party may propose amendments to this Convention or any annexed Protocol by which it is bound. Any proposal for an amendment shall be communicated to the Depositary, who shall notify it to all the High Contracting Parties and shall see their views on whether a conference should be convened to consider the proposal. If a majority, that shall not be less than eighteen of the High Contracting Parties so agree, he shall promptly convene a conference to which all High Contracting Parties shall be invited. states not parties to this Convention shall be invited to the conference as observers.

(b)Such a conference may agree upon amendments which shall be adopted and shall enter into force in the same manner as this Convention and the annexed Protocols, provided that amendments to this Convention may be adopted only by the High Contracting Parties and that amendments to a specific annexed Protocol may be adopted only by the High Contracting Parties which are bound by that Protocol.

2

(a)At any time after the entry into force of this Convention any High Contracting Party may propose additional Protocols relating to other categories of conventional weapons not covered by the existing annexed Protocols. Any such proposal for an additional Protocol shall be communicated to the Depositary, who shall notify it to all the High Contracting Parties in accordance with sub-para 1(a) of this article. If a majority, that shall not be less than eighteen of the High Contracting Parties

633

Sourcebook on Public International Law

so agree, the Depositary shall promptly convene a conference to which all states shall be invited.

(b)Such a conference may agree, with the full participation of all states represented at the conference, upon additional protocols which shall be adopted in the same manner as this Convention, shall be annexed thereto and shall enter into force as provided in paras 3 and 4 of Article 5 of this Convention.

3

(a)If, after a period of 10 years following the entry into force of this Convention, no conference has been convened in accordance with sub-para 1(a) or 2(a) of this article, any High Contracting Party may request the Depositary to convene a conference to which all High Contracting Parties shall be invited to review the scope and operation of this Convention and the Protocols annexed thereto and to consider any proposal for amendments of this Convention or of the existing Protocols. states not Parties to this Convention shall be invited as observers to the conference. The conference may agree upon amendments which shall be adopted and enter into force in accordance with sub-para 1(b) above.

(b)At such conference consideration may also be given to any proposal for additional Protocols relating to other categories of conventional weapons not covered by the existing annexed Protocols. All states represented at the conference may participate fully in such consideration. Any additional protocols shall be adopted in the same manner as this Convention, shall be annexed thereto and shall enter into force as provided in paras 3 and 4 of Article 5 of this Convention.

(c)Such a conference may consider whether provision should be made for the convening of a further conference at the request of any High Contracting Party if, after a similar period to that referred to in sub-para 3(a) of this article, no conference has been convened in accordance with sub-para 1(a) or 2(a) of this Article.

Article 9 Denunciation

1Any High Contracting Party may denounce this Convention or any of its annexed Protocols by so notifying the Depositary.

2Any such denunciation shall only take effect one year after receipt by the Depositary of the notification of denunciation. If, however, on the expiry of that year the denouncing High Contracting Party is engaged in one of the situations referred to in Article 1, the Party shall continue to be bound by the obligations of this Convention and of the relevant annexed Protocols until the end of the armed conflict or occupation and, in any case, until the termination of operations connected with the final release, repatriation or re-establishment of the person protected by the rules of international law applicable in armed conflict, and in the case of any annexed Protocol containing provisions concerning situations in which peace-keeping, observation or similar functions are performed by United Nations forces or missions in the area concerned, until the termination of those functions.

3Any denunciation of this Convention shall be considered as also applying to all annexed Protocols by which the denouncing High Contracting Party is bound.

4Any denunciation shall have effect only in respect of the denouncing High Contracting Party.

634

The Regulation of Armed Conflict

5 Any denunciation shall not affect the obligations already incurred, by reason of an armed conflict, under this Convention and its annexed Protocols by such denouncing High Contracting Party in respect of any act committed before this denunciation becomes effective.

Article 10 Depositary

1The Secretary General of the United Nations shall be the Depositary of this Convention and of its annexed Protocols.

2In addition to his usual functions, the Depositary shall inform all states of:

(a)signatures affixed to this Convention under Article 3;

(b)deposits of instruments of ratification, acceptance or approval of or accession to this Convention deposited under Article 4;

(c)notifications of consent to be bound by annexed Protocols under Article 4;

(d)the dates of entry into force of this Convention and of each of its annexed Protocols under Article 5; and

(e)notifications of denunciation received under Article 9, and their effective date.

Article 11 Authentic texts

The original of this Convention with the annexed Protocols, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Depositary, who shall transmit certified true copies thereof to all states.

PROTOCOL ON NON-DETECTABLE FRAGMENTS

(PROTOCOL I)

It is prohibited to use any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays.

PROTOCOL ON PROHIBITIONS OR

RESTRICTIONS ON THE USE OF MINES, BOOBYTRAPS AND OTHER DEVICES (PROTOCOL II)

Article 1 Material scope of application

This Protocol relates to the use on land of the mines, booby-traps and other devices defined herein, including mines laid to interdict beaches, waterway crossings or river crossings, but does not apply to the use of anti-ship mines at sea or in inland waterways.

Article 2 Definitions

For the purpose of this Protocol:

1‘Mine’ means any munition placed under, on or near the ground or other surface area and designed to be detonated or exploded by the presence, proximity or contact of a person or vehicle, and ‘remotely delivered mine’ means any mine so defined delivered by artillery, rocket, mortar or similar means or dropped from an aircraft.

2‘Booby-trap’ means any device or material which is designed, constructed or adapted to kill or injure and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act.

635

Sourcebook on Public International Law

3‘Other devices’ means manually-emplaced munitions and devices designed to kill, injure or damage and which are actuated by remote control or automatically after a lapse of time.

4‘Military objective’ means, so far as objects are concerned, any object which by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage.

5‘Civilian objects’ are all objects which are not military objectives as defined in para 4.

6‘Recording’ means a physical, administrative and technical operation designed to obtain, for the purpose of registration in the official records, all available information facilitating the location of minefields, mines and booby-traps.

Article 3 General restrictions on the use of mines, booby-traps and other devices

1 This article applies to:

(a)mines;

(b)booby-traps; and

(c)other devices.

2It is prohibited in all circumstances to direct weapons to which this article applies, either in offence, defence or by way of reprisals, against the civilian population as such or against individual civilians.

3The indiscriminate use of weapons to which this article applies is prohibited. Indiscriminate use is any placement of such weapons:

(a)which is not on, or directed at, a military objective; or

(b)which employs a method or means of delivery which cannot be directed at a specific military objective; or

(c)which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

4 All feasible precautions shall be taken to protect civilians from the effects of weapons to which this article applies. Feasible precautions are those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.

Article 4 Restrictions on the use of mines other than remotely delivered mines, booby-traps and other devices in populated areas

1 This article applies to:

(a)mines other than remotely delivered mines;

(b)booby-traps; and

(c)other devices.

2 It is prohibited to use weapons to which this article applies in any city, town, village or other area containing a similar concentration of civilians in which combat between ground forces is not taking place or does not appear to be imminent, unless either:

(a)they are placed on or in the close vicinity of a military objective belonging to or under the control of an adverse party; or

636

The Regulation of Armed Conflict

(b)measures are taken to protect civilians from their effects, for example, the posting of warning signs, the posting of sentries, the issue of warnings or the provision of fences.

Article 5 Restrictions on the use of remotely delivered mines

1 The use of remotely delivered mines is prohibited unless such mines are only used within an area which is itself a military objective or which contains military objectives, and unless:

(a)their location can be accurately recorded in accordance with Article 7(1)(a); or

(b)an effective neutralising mechanism is used on each such mine, that is to say, a self-actuating mechanism which is designed to render a mine harmless or cause it to destroy itself when it is anticipated that the mine will no longer serve the military purpose for which it was placed in position, or a remotelycontrolled mechanism which is designed to render harmless or destroy a mine when the mine no longer serves the military purpose for which it was placed in position.

2 Effective advance warning shall be given of any delivery or dropping of remotely delivered mines which may affect the civilian population, unless circumstances do not permit.

Article 6 Prohibition on the use of certain booby-traps

1 Without prejudice to the rules of international law applicable in armed conflict relating to treachery and perfidy, it is prohibited in all circumstances to use:

(a)any booby-trap in the form of an apparently harmless portable object which is specifically designed and constructed to contain explosive material and to detonate when it is disturbed or approached; or

(b)booby-traps which are in any way attached to or associated with:

(i)internationally recognised protective emblems, signs or signals;

(ii)sick, wounded or dead persons;

(iii)burial or cremation sites or graves;

(iv)medical facilities, medical equipment, medical supplies or medical transportation;

(v)children’s toys or other portable objects or products specially designed for the feeding, health, hygiene, clothing or education of children;

(vi)food or drink;

(vii)kitchen utensils or appliances except in military establishments, military locations or military supply depots;

(viii)objects clearly of a religious nature;

(ix)historic monuments, works of art or places or worship which constitute the cultural or spiritual heritage of peoples;

(x)animals or their carcasses.

2 It is prohibited in all circumstances to use any booby-trap which is designed to cause superfluous injury or unnecessary suffering.

Article 7 Recording and publication of the location of minefields, mines and booby-traps

1 The parties to a conflict shall record the location of:

(a)all pre-planned minefields laid by them; and

(b)all areas in which they have made large-scale and pre-planned use of boobytraps.

637

Sourcebook on Public International Law

2The parties shall endeavour to ensure the recording of the location of all other minefields, mines and booby-traps which they have laid or placed in position.

3All such records shall be retained by the parties who shall:

(a)immediately after the cessation of active hostilities:

(i)take all necessary and appropriate measures, including the use of such records, to protect civilians from the effects of minefields, mines and booby-traps; and either

(ii)in cases where the forces of neither party are in the territory of the adverse party, make available to each other and to the Secretary General of the United Nations all information in their possession concerning the location of minefields, mines and booby-traps in the territory of the adverse party; or

(iii)once complete withdrawal of the forces of the parties from the territory of the adverse party has taken place, make available to the adverse party and to the Secretary General of the United Nations all information in their possession concerning the location of minefields, mines and boobytraps in the territory of the adverse party;

(b)when a United Nations force or mission performs functions in any area, make available to the authority mentioned in Article 8 such information as is required by that article;

(c)whenever possible, by mutual agreement provide for the release of information concerning the location of minefields, mines and booby-traps, particularly in agreements governing the cessation of hostilities.

Article 8 Protection of United Nations forces and missions from the effects of minefields, mines and booby-traps

1 When a United Nations force or mission performs functions of peacekeeping, observation or similar functions in any area, each party to the conflict shall if requested by the head of the United Nations force or mission in that area, as far as it is able:

(a)remove or render harmless all mines or booby-raps in that area;

(b)take such measures as may be necessary to protect the force or mission from the effects of minefields, mines and booby-traps while carrying out its duties; and

(c)make available to the head of the United Nations force or mission in that area, all information in the party’s possession concerning the location of minefields, mines and booby-traps in that area.

2 When a United Nations fact-finding mission performs functions in any area, any party to the conflict concerned shall provide protection to that mission except where, because of the size of such mission, it cannot adequately provide such protection. In that case it shall make available to the head of the mission the information in its possession concerning the location of minefields, mines and booby-traps in that area.

Article 9 International co-operation in the removal of minefields, mines and booby-traps

After the cessation of active hostilities, the parties shall endeavour to reach agreement, both among themselves and, where appropriate, with other states and with international organisations, on the provision of information and technical and material assistance – including, in appropriate circumstances, joint operations necessary to remove or otherwise render ineffective minefields, mines and booby-traps placed in position during the conflict.

638

The Regulation of Armed Conflict

TECHNICAL ANNEX TO THE PROTOCOL ON PROHIBITIONS OR RESTRICTIONS ON THE USE OF MINES, BOOBY-TRAPS AND OTHER DEVICES (PROTOCOL II)

Whenever an obligation for the recording of the location of minefields, mines and booby-traps arises under the Protocol, the following guidelines shall be taken into account.

1 With regard to pre-planned minefields and large-scale and pre-planned use of booby-traps:

(a)maps, diagrams or other records should be made in such a way as to indicate the extent of the minefield or booby-trapped area; and

(b)the location of the minefield or booby-trapped area should be specified by relation to the co-ordinates of a single reference point and by the estimated dimensions of the area containing mines and booby-traps in relation to that single reference point.

2 With regard to other minefields, mines and booby-traps laid or placed in position:

In so far as possible, the relevant information specified in para 1 above should be recorded so as to enable the areas containing minefields, mines and booby-traps to be identified.

PROTOCOL ON PROHIBITIONS OR

RESTRICTIONS ON THE USE OF INCENDIARY

WEAPONS (PROTOCOL III)

Article 1 Definitions

For the purpose of this Protocol:

1 ‘Incendiary weapon’ means any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or a combination thereof, produced by a chemical reaction of a substance delivered on the target.

(a)Incendiary weapons can take the form of, for example, flame throwers, fougasses, shells, rockets, grenades, mines, bombs and other containers of incendiary substances.

(b)Incendiary weapons do not include:

(i)Munitions which may have incidental incendiary effects, such as illuminants, tracers, smoke or signalling systems;

(ii)Munitions designed to combine penetration, blast or fragmentation effects with an additional incendiary effect, such as armour-piercing projectiles, fragmentation shells, explosive bombs and similar combinedeffects munitions in which the incendiary effect is not specifically designed to cause burn injury to persons, but to be used against military objectives, such as armoured vehicles, aircraft and installations or facilities.

2 ‘Concentration of civilians’ means any concentration of civilians, be it permanent or temporary, such as in inhabited parts of cities, or inhabited towns or villages, or as in camps or columns of refugees or evacuees, or groups of nomads.

639

Sourcebook on Public International Law

3‘Military objective’ means, so far as objects are concerned, any object which by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage.

4‘Civilian objects’ are all objects which are not military objectives as defined in para 3.

5‘Feasible precautions’ are those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.

Article 2 Protection of civilians and civilian objects

1It is prohibited in all circumstances to make the civilian population as such, individual civilians or civilian objects the object of attack by incendiary weapons.

2It is prohibited in all circumstances to make any military objective located within a concentration of civilians the object of attack by air-delivered incendiary weapons.

3It is further prohibited to make any military objective located within a concentration of civilians the object of attack by means of incendiary weapons other than air-delivered incendiary weapons, except when such military objective is clearly separated from the concentration of civilians and all feasible precautions are taken with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimising, incidental loss of civilian life, injury to civilians and damage to civilian objects.

4It is prohibited to make forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives, or are themselves military objectives.

15.5.1.2 Weapons of mass destruction

One of the first decisions taken by the UN General Assembly was made in January 1946 to establish a Commission for, inter alia, the ‘elimination of major weapons adaptable to mass destruction’. The Commission for Conventional Armaments in 1948 defined weapons of mass destruction to include atomic explosive weapons, radio-active material weapons, as well as certain lethal chemical and biological weapons. The General Assembly later expanded the definition to include any weapons developed in the future which have characteristics comparable in destructive effect to those of the atomic bomb.

The main type of weapons of mass destruction are nuclear weapons and the international law on the subject operates on two levels. First, there are restrictions on the production and possession of nuclear weapons, for example, the Treaty on the Non-Proliferation of Nuclear Weapons 1963 which restricts the number of states which can build and possess nuclear weapons.

640

The Regulation of Armed Conflict

TREATY ON THE NON-PROLIFERATION OF

NUCLEAR WEAPONS (1968)2

ENTERED INTO FORCE: 5 March 1970

The states concluding this Treaty, hereinafter referred to as the ‘Parties to the Treaty’,

Considering the devastation that would be visited upon all mankind by a nuclear war and the consequent need to make every effort to avert the danger of such a war and to take measures to safeguard the security of peoples,

Believing that the proliferation of nuclear weapons would seriously enhance the danger of nuclear war,

In conformity with resolutions of the United Nations General Assembly calling for the conclusion of an agreement on the prevention of wider dissemination of nuclear weapons,

Undertaking to co-operate in facilitating the application of International Atomic Energy Agency safeguards on peaceful nuclear activities,

Expressing their support for research, development and other efforts to further the application, within the framework of the International Atomic Energy Agency safeguards system, of the principle of safeguarding effectively the flow of source and special fissionable materials by use of instruments and other techniques at certain strategic points,

Affirming the principle that the benefits of peaceful applications of nuclear technology, including any technological by-products which may be derived by nuclear-weapon states from the development of nuclear explosive devices, should be available for peaceful purposes to all Parties to the Treaty, whether nuclear-weapon or non-nuclear-weapon states,

Convinced that, in furtherance of this principle, all Parties to the Treaty are entitled to participate in the fullest possible exchange of scientific information for, and to contribute alone or in co-operation with other states to, the further development of the applications of atomic energy for peaceful purposes,

Declaring their intention to achieve at the earliest possible date the cessation of the nuclear arms race and to undertake effective measures in the direction of nuclear disarmament,

Urging the co-operation of all states in the attainment of this objective,

Recalling the determination expressed by the Parties to the 1963 Treaty banning nuclear weapon tests in the atmosphere, in outer space and under water in its Preamble to seek to achieve the discontinuance of all test explosions of nuclear weapons for all time and to continue negotiations to this end,

Desiring to further the easing of international tension and the strengthening of trust between states in order to facilitate the cessation of the manufacture of nuclear weapons, the liquidation of all their existing stockpiles, and the elimination from national arsenals of nuclear weapons and the means of their delivery pursuant to a Treaty on general and complete disarmament under strict and effective international control,

Recalling that, in accordance with the Charter of the United Nations, states must refrain in their international relations from the threat or use of force against the

________________________________________________________________________________________________________________________________________________

2 UNTS No 10485, Vol 729, pp 169–75.

641

Sourcebook on Public International Law

territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations, and that the establishment and maintenance of international peace and security are to be promoted with the least diversion for armaments of the world’s human and economic resources,

Have agreed as follows:

Article I

Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear-weapon state to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.

Article II

Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.

Article III

1Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency’s safeguards system, for the exclusive purpose of verification of the fulfilment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices. Procedures for the safeguards required by this article shall be followed with respect to source or special fissionable material whether it is being produced, processed or used in any principal nuclear facility or is outside any such facility. The safeguards required by this article shall be applied on all source or special fissionable material in all peaceful nuclear activities within the territory of such state, under its jurisdiction, or carried out under its control anywhere.

2Each State Party to the Treaty undertakes not to provide: (a) source or special fissionable material, or (b) equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to any non-nuclear-weapon state for peaceful purposes, unless the source or special fissionable material shall be subject to the safeguards required by this article.

3The safeguards required by this article shall be implemented in a manner designed to comply with Article IV of this Treaty, and to avoid hampering the economic or technological development of the Parties or international cooperation in the field of peaceful nuclear activities, including the international exchange of nuclear material and equipment for the processing, use or production of nuclear material for peaceful purposes in accordance with the provisions of this article and the principle of safeguarding set forth in the Preamble of the Treaty.

4Non-nuclear-weapon States Party to the Treaty shall conclude agreements with the International Atomic Energy Agency to meet the requirements of this article either individually or together with other states in accordance with the Statute of the International Atomic Energy Agency. Negotiation of such

642

The Regulation of Armed Conflict

agreements shall commence within 180 days from the original entry into force of this Treaty. For states depositing their instruments of ratification or accession after the 180-day period, negotiation of such agreements shall commence not later than the date of such deposit. Such agreements shall enter into force not later than eighteen months after the date of initiation of negotiations.

Article IV

1Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty.

2All the Parties to the Treaty undertake to facilitate, and have the right to participate in, the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy. Parties to the Treaty in a position to do so shall also co-operate in contributing alone or together with other states or international organisations to the further development of the applications of nuclear energy for peaceful purposes, especially in the territories of non-nuclear-weapon States Party to the Treaty, with due consideration for the needs of the developing areas of the world.

Article V

Each Party to the Treaty undertakes to take appropriate measures to ensure that, in accordance with this Treaty, under appropriate international observation and through appropriate international procedures, potential benefits from any peaceful applications of nuclear explosions will be made available to non- nuclear-weapon States Party to the Treaty on a non-discriminatory basis and that the charge to such Parties for the explosive devices used will be as low as possible and exclude any charge for research and development. Non-nuclear- weapon States Party to the Treaty shall be able to obtain such benefits, pursuant to a special international agreement or agreements, through an appropriate international body with adequate representation of non-nuclear-weapon states. Negotiations on this subject shall commence as soon as possible after the Treaty enters into force. Non-nuclear-weapon States Party to the Treaty so desiring may also obtain such benefits pursuant to bilateral agreements.

Article VI

Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.

Article VII

Nothing in this Treaty affects the right of any group of states to conclude regional treaties in order to assure the total absence of nuclear weapons in their respective territories.

Article VIII

1Any Party to the Treaty may propose amendments to this Treaty. The text of any proposed amendment shall be submitted to the Depositary Governments which shall circulate it to all Parties to the Treaty. Thereupon, if requested to do so by one-third or more of the Parties to the Treaty, the Depositary Governments shall convene a conference, to which they shall invite all the Parties to the Treaty, to consider such an amendment.

2Any amendment to this Treaty must be approved by a majority of the votes of all the Parties to the Treaty, including the votes of all nuclear-weapon States

643

Sourcebook on Public International Law

Party to the Treaty and all other Parties which, on the date the amendment is circulated, are members of the Board of Governors of the International Atomic Energy Agency. The amendment shall enter into force for each Party that deposits its instrument of ratification of the amendment upon the deposit of such instruments of ratification by a majority of all the Parties, including the instruments of ratification of all nuclear-weapon States Party to the Treaty and all other Parties which, on the date the amendment is circulated, are members of the Board of Governors of the International Atomic Energy Agency. Thereafter, it shall enter into force for any other Party upon the deposit of its instrument of ratification of the amendment.

3 Five years after the entry into force of this Treaty, a conference of Parties to the Treaty shall be held in Geneva, Switzerland, in order to review the operation of this Treaty with a view to assuring that the purposes of the Preamble and the provisions of the Treaty are being realised. At intervals of five years thereafter, a majority of the Parties to the Treaty may obtain, by submitting a proposal to this effect to the Depositary Governments, the convening of further conferences with the same objective of reviewing the operation of the Treaty.

Article IX

1This Treaty shall be open to all states for signature. Any state which does not sign the Treaty before its entry into force in accordance with para 3 of this article may accede to it at any time.

2This Treaty shall be subject to ratification by signatory states. Instruments of ratification and instruments of accession shall be deposited with the governments of the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics and the United States of America, which are hereby designated the Depositary Governments.

3This Treaty shall enter into force after its ratification by the states, the governments of which are designated Depositaries of the Treaty, and 40 other states signatory to this Treaty and the deposit of their instruments of ratification. For the purposes of this Treaty, a nuclear-weapon state is one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January, 1967.

4For states whose instruments of ratification or accession are deposited subsequent to the entry into force of this Treaty, it shall enter into force on the date of the deposit of their instruments of ratification or accession.

5The Depositary Governments shall promptly inform all signatory and acceding states of the date of each signature, the date of deposit of each instrument of ratification or of accession, the date of the entry into force of this Treaty, and the date of receipt of any requests for convening a conference or other notices.

6This Treaty shall be registered by the Depositary Governments pursuant to Article 102 of the Charter of the United Nations.

Article X

1 Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardised the supreme interests of its country. It shall give notice of such withdrawal to all other Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardised its supreme interests.

644

The Regulation of Armed Conflict

2 Twenty-five years after the entry into force of the Treaty, a conference shall be convened to decide whether the Treaty shall continue in force indefinitely, or shall be extended for an additional fixed period or periods. This decision shall be taken by a majority of the Parties to the Treaty.

Article XI

This Treaty, the English, Russian, French, Spanish and Chinese texts of which are equally authentic, shall be deposited in the archives of the Depositary Governments. Duly certified copies of this Treaty shall be transmitted by the Depositary Governments to the governments of the signatory and acceding states.

IN WITNESS WHEREOF the undersigned, duly authorised, have signed this Treaty.

DONE in triplicate, at the cities of London, Moscow and Washington, the first day of July, one thousand nine hundred and sixty-eight.

In addition, there are treaties which prohibit the testing and use of nuclear weapons in particular locations, for example, the Space Treaty 1967 and the Antarctic Treaty 1959.

The use of nuclear weapons, along with the use of all other weapons, is subject to three basic principles: the necessity to use them; the proportionality of their use; and the obligation not to cause unnecessary suffering. Nuclear weapons cause, by their very nature, indiscriminate suffering and destruction and, as such, it could be argued that their use is contrary to the rules of international law. It has also been argued that the use of nuclear weapons would contravene the Genocide Convention and could also contravene the Hague Regulations which prohibit poisonous weapons. Those who argue in favour of a right to use nuclear weapons have suggested that the rules prohibiting indiscriminate suffering relate to conventional weapons only and that the use of nuclear weapons would be permissible in the absence of any positive law to the contrary. What does seem to be accepted is that the first use of nuclear weapons is acceptable although state practice seems to suggest that the possession and production of such weapons is not, providing there is no breach of the Non-Proliferation Treaty, in itself a breach of international law. In 1994 the United Nations General Assembly requested an advisory opinion from the ICJ on the question of the legality of the use by a state of nuclear weapons in armed conflict:

LEGALITY OF THE THREAT OR USE OF NUCLEAR

WEAPONS CASE3

20 The Court must next address certain matters arising in relation to the formulation of the question put to it by the General Assembly. The English text asks: ‘Is the threat or use of nuclear weapons in any circumstance permitted under international law?’ The French text of the question reads as follows: ‘Est-il permis en droit international de recourir à la menace ou à l’emploi d’armes nucléaires en

________________________________________________________________________________________________________________________________________________

3 [1996] ICJ Rep at p 90.

645

Sourcebook on Public International Law

toute circonstance?’ It was suggested that the Court was being asked by the General Assembly whether it was permitted to have recourse to nuclear weapons in every circumstance, and it was contended that such a question would inevitably invite a simple negative answer.

The Court finds it unnecessary to pronounce on the possible divergences between the English and French texts of the question posed. Its real objective is clear: to determine the legality or illegality of the threat or use of nuclear weapons.

21 The use of the word ‘permitted’ in the question put by the General Assembly was criticised before the Court by certain states on the ground that this implied that the threat or the use of nuclear weapons would only be permissible if authorisation could be found in a treaty provision or in customary international law. Such a starting point, those states submitted, was incompatible with the very basis of international law, which rests upon the principles of sovereignty and consent; accordingly, and contrary to what was implied by use of the word ‘permitted’, states are free to threaten or use nuclear weapons unless it can be shown that they are bound not to do so by reference to a prohibition in either treaty law or customary international law. Support for this contention was found in dicta of the Permanent Court of International Justice in the Lotus case that ‘restrictions upon the independence of states cannot ... be presumed’ and that international law leaves to states ‘a wide measure of discretion which is only limited in certain cases by prohibitive rules’ (PCIJ, Ser A, No 10, pp 18 and 19). Reliance was also placed on the dictum of the present Court in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) that:

in international law there are no rules, other than such rules as may be accepted by the state concerned, by treaty or otherwise, whereby the level of armaments of a sovereign state can be limited ([1986] ICJ Rep at p 135, para 269).

For other states, the invocation of these dicta in the Lotus case was inapposite; their status in contemporary international law and applicability in the very different circumstances of the present case were challenged. It was also contended that the above-mentioned dictum of the present Court was directed to the possession of armaments and was irrelevant to the threat or use of nuclear weapons.

Finally, it was suggested that, were the Court to answer the question put by the Assembly, the word ‘permitted’ should be replaced by ‘prohibited’.

22 The Court notes that the nuclear-weapon states appearing before it either accepted, or did not dispute, that their independence to act was indeed restricted by the principles and rules of international law, more particularly humanitarian law (see below, para 86), as did the other states which took part in the proceedings.

Hence, the argument concerning the legal conclusions to be drawn from the use of the word ‘permitted’, and the questions of burden of proof to which it was said to give rise, are without particular significance for the disposition of the issues before the Court.

23In seeking to answer the question put to it by the General Assembly, the Court must decide, after consideration of the great corpus of international law norms available to it, what might be the relevant applicable law.

24Some of the proponents of the illegality of the use of nuclear weapons have argued that such use would violate the right to life as guaranteed in Article 6 of

646

The Regulation of Armed Conflict

the International Covenant on Civil and Political Rights, as well as in certain regional instruments for the protection of human rights. Article 6, para 1, of the International Covenant provides as follows:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

In reply, others contended that the International Covenant on Civil and Political Rights made no mention of war or weapons, and it had never been envisaged that the legality of nuclear weapons was regulated by that instrument. It was suggested that the Covenant was directed to the protection of human rights in peacetime, but that questions relating to unlawful loss of life in hostilities were governed by the law applicable in armed conflict.

25The Court observes that the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article

4of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.

26Some states also contended that the prohibition against genocide, contained in the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide, is a relevant rule of customary international law which the Court must apply. The Court recalls that, in Article II of the Convention genocide is defined as:

... any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a)killing members of the group;

(b)causing serious bodily or mental harm to members of the group;

(c)deliberately inflicting on the group conditions of life calculated to being about its physical destruction in whole or in part;

(d)imposing measures intended to prevent births within the group;

(e)forcibly transferring children of the group to another group.

It was maintained before the Court that the number of deaths occasioned by the use of nuclear weapons would be enormous; that the victims could, in certain cases, include persons of a particular national, ethnic, racial or religious group; and that the intention to destroy such groups could be inferred from the fact that the user of the nuclear weapon would have omitted to take account of the wellknown effects of the use of such weapons.

The Court would point out in that regard that the prohibition of genocide would be pertinent in this case if the recourse to nuclear weapons did indeed entail the element of intent, towards a group as such, required by the provision quoted above. In the view of the Court, it would only be possible to arrive at such a conclusion after having taken due account of the circumstances specific to each case.

27 In both their written and oral statements, some states furthermore argued that any use of nuclear weapons would be unlawful by reference to existing

647

Sourcebook on Public International Law

norms relating to the safeguarding and protection of the environment, in view of their essential importance.

Specific references were made to various existing international treaties and instruments. These included Additional Protocol I of 1977 to the Geneva Conventions of 1949, Article 35, para 3, of which prohibits the employment of ‘methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment’; and the Convention of 18 May 1977 on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, which prohibits the use of weapons which have ‘widespread, long-lasting or severe effects’ on the environment (Art 1). Also cited were Principle 21 of the Stockholm Declaration of 1972 and Principle 2 of the Rio Declaration of 1992 which express the common conviction of the states concerned that they have a duty ‘to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction’. These instruments and other provisions relating to the protection and safeguarding of the environment were said to apply at all times, in war as well as in peace, and it was contended that they would be violated by the use of nuclear weapons whose consequences would be widespread and would have transboundary effects.

28 Other states questioned the binding legal quality of these precepts of environmental law; or, in the context of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, denied that it was concerned at all with the use of nuclear weapons in hostilities; or, in the case of Additional Protocol I, denied that they were generally bound by its terms, or recalled that they had reserved their position in respect of Article 35, para 3, thereof.

It was also argued by some states that the principal purpose of environmental treaties and norms was the protection of the environment in time of peace. It was said that those treaties made no mention of nuclear weapons. It was also pointed out that warfare in general, and nuclear warfare in particular, were not mentioned in their texts and that it would be destabilising to the rule of law and to confidence in international negotiations if those treaties were now interpreted in such a way as to prohibit the use of nuclear weapons.

29The Court recognises that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognises that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment.

30However, the Court is of the view that the issue is not whether the treaties relating to the protection of the environment are or not applicable during an armed conflict, but rather whether the obligations stemming from these treaties were intended to be obligations of total restraint during military conflict.

The Court does not consider that the treaties in question could have intended to deprive a state of the exercise of its right of self-defence under international law because of its obligations to protect the environment. Nonetheless, states must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality.

648

The Regulation of Armed Conflict

This approach is supported, indeed, by the terms of Principle 24 of the Rio Declaration, which provides that:

Warfare is inherently destructive of sustainable development. states shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.

31 The Court notes furthermore that Articles 35, para 3, and 55 of Additional Protocol I provide additional protection for the environment. Taken together, these provisions embody a general obligation to protect the natural environment against widespread, long-term and severe environmental damage; the prohibition of methods and means of warfare which are intended, or may be expected, to cause such damage; and the prohibition of attacks against the natural environment by way of reprisals.

These are powerful constraints for all the states having subscribed to these provisions.

32 General Assembly Resolution 47/37 of 25 November 1992 on the Protection of the Environment in Times of Armed Conflict, is also of interest in this context. It affirms the general view according to which environmental considerations constitute one of the elements to be taken into account in the implementation of the principles of the law applicable in armed conflict: it states that ‘destruction of the environment, not justified by military necessity and carried out wantonly, is clearly contrary to existing international law’. Addressing the reality that certain instruments are not yet binding on all states, the General Assembly in this resolution ‘[a]ppeals to all states that have not yet done so to consider becoming parties to the relevant international conventions’.

In its recent Order in the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) case, the Court stated that its conclusion was ‘without prejudice to the obligations of states to respect and protect the natural environment’ (Order of 22 September 1995; [1995] ICJ Rep at p 306, para 64). Although that statement was made in the context of nuclear testing, it naturally also applies to the actual use of nuclear weapons in armed conflict.

33The Court thus finds that while the existing international law relating to the protection and safeguarding of the environment does not specifically prohibit the use of nuclear weapons, it indicates important environmental factors that are properly to be taken into account in the context of the implementation of the principles and rules of the law applicable in armed conflict.

34In the light of the foregoing the Court concludes that the most directly relevant applicable law governing the question of which it was seised, is that relating to the use of force enshrined in the United Nations Charter and the law applicable in armed conflict which regulates the conduct of hostilities, together with any specific treaties on nuclear weapons that the Court might determine to be relevant.

35In applying this law to the present case, the Court cannot however fail to take into account certain unique characteristics of nuclear weapons.

The Court has noted the definitions of nuclear weapons contained in various treaties and accords. It also notes that nuclear weapons are explosive devices whose energy results from the fusion or fission of the atom. By its very nature, that process, in nuclear weapons as they exist today, releases not only immense quantities of heat and energy, but also powerful and prolonged radiation. According to the material before the Court, the first two causes of damage are

649

Sourcebook on Public International Law

vastly more powerful than the damage caused by other weapons, while the phenomenon of radiation is said to be peculiar to nuclear weapons. These characteristics render the nuclear weapon potentially catastrophic. The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilisation and the entire ecosystem of the planet.

The radiation released by a nuclear explosion would affect health, agriculture, natural resources and demography over a very wide area. Further, the use of nuclear weapons would be a serious danger to future generations. Ionising radiation has the potential to damage the future environment, food and marine ecosystem, and to cause genetic defects and illness in future generations.

36In consequence, in order correctly to apply to the present case the Charter law on the use of force and the law applicable in armed conflict, in particular humanitarian law, it is imperative for the Court to take account of the unique characteristics of nuclear weapons, and in particular their destructive capacity, their capacity to cause untold human suffering, and their ability to cause damage to generations to come.

37The Court will now address the question of the legality or illegality of recourse to nuclear weapons in the light of the provisions of the Charter relating to the threat or use of force.

38The Charter contains several provisions relating to the threat and use of force. In Article 2, para 4, the threat or use of force against the territorial integrity or political independence of another state or in any other manner inconsistent with the purposes of the United Nations is prohibited. That paragraph provides:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

This prohibition of the use of force is to be considered in the light of other relevant provisions of the Charter. In Article 51, the Charter recognises the inherent right of individual or collective self-defence if an armed attack occurs. A further lawful use of force is envisaged in Article 42, whereby the Security Council may take military enforcement measures in conformity with Chapter VII of the Charter.

39These provisions do not refer to specific weapons. They apply to any use of force, regardless of the weapons employed. The Charter neither expressly prohibits, nor permits, the use of any specific weapon, including nuclear weapons. A weapon that is already unlawful per se, whether by treaty or custom, does not become lawful by reason of its being used for a legitimate purpose under the Charter.

40The entitlement to resort to self-defence under Article 51 is subject to certain constraints. Some of these constraints are inherent in the very concept of selfdefence. Other requirements are specified in Article 51.

41The submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law. As the Court stated in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) ([1986] ICJ Rep at p 94, para 176): ‘there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law’. This dual condition

650

The Regulation of Armed Conflict

applies equally to Article 51 of the Charter, whatever the means of force employed.

42The proportionality principle may thus not in itself exclude the use of nuclear weapons in self-defence in all circumstances. But at the same time, a use of force that is proportionate under the law of self-defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law.

43Certain states have in their written and oral pleadings suggested that in the case of nuclear weapons, the condition of proportionality must be evaluated in the light of still further factors. They contend that the very nature of nuclear weapons, and the high probability of an escalation of nuclear exchanges, mean that there is an extremely strong risk of devastation. The risk factor is said to negate the possibility of the condition of proportionality being complied with. The Court does not find it necessary to embark upon the quantification of such risks; nor does it need to enquire into the question whether tactical nuclear weapons exist which are sufficiently precise to limit those risks: it suffices for the Court to note that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by states believing they can exercise a nuclear response in self-defence in accordance with the requirements of proportionality.

44Beyond the conditions of necessity and proportionality, Article 51 specifically requires that measures taken by states in the exercise of the right of self-defence shall be immediately reported to the Security Council; this article further provides that these measures shall not in any way affect the authority and responsibility of the Security Council under the Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. These requirements of Article 51 apply whatever the means of force used in self-defence.

45The Court notes that the Security Council adopted on 11 April 1995, in the context of the extension of the Treaty on the Non-Proliferation of Nuclear Weapons, Resolution 984 (1995) by the terms of which, on the one hand, it:

... [t]akes note with appreciation of the statements made by each of the nuclear-weapon states (S/1995/261, S/1995/262, S/1995/263, S/1995/264, S/1995/265), in which they give security assurances against the use of nuclear weapons to non-nuclear-weapon states that are Parties to the Treaty on the Non-Proliferation of Nuclear Weapons,

and, on the other hand, it:

... [w]elcomes the intention expressed by certain states that they will provide or support immediate assistance, in accordance with the Charter, to any non- nuclear-weapon State Party to the Treaty on the Non-Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used.

46Certain states asserted that the use of nuclear weapons in the conduct of reprisals would be lawful. The Court does not have to examine, in this context, the question of armed reprisals in time of peace, which are considered to be unlawful. Nor does it have to pronounce on the question of belligerent reprisals save to observe that in any case any right of recourse to such reprisals would, like self-defence, be governed inter alia by the principle of proportionality.

47In order to lessen or eliminate the risk of unlawful attack, states sometimes signal that they possess certain weapons to use in self-defence against any state violating their territorial integrity or political independence. Whether a signalled

651

Sourcebook on Public International Law

intention to use force if certain events occur is or is not a ‘threat’ within Article 2, para 4, of the Charter depends upon various factors. If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, para 4. Thus it would be illegal for a state to threaten force to secure territory from another state, or to cause it to follow or not follow certain political or economic paths. The notions of ‘threat’ and ‘use’ of force under Article 2, para 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a state to use force must be a use of force that is in conformity with the Charter. For the rest, no state – whether or not it defended the policy of deterrence – suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal.

48Some states put forward the argument that possession of nuclear weapons is itself an unlawful threat to use force. Possession of nuclear weapons may indeed justify an inference of preparedness to use them. In order to be effective, the policy of deterrence, by which those states possessing or under the umbrella of nuclear weapons seek to discourage military aggression by demonstrating that it will serve no purpose, necessitates that the intention to use nuclear weapons be credible. Whether this is a ‘threat’ contrary to Article 2, para 4, depends upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a state, or against the Purposes of the United Nations or whether, in the event that it were intended as a means of defence, it would necessarily violate the principles of necessity and proportionality. In any of these circumstances the use of force, and the threat to use it, would be unlawful under the law of the Charter.

49Moreover, the Security Council may take enforcement measures under Chapter VII of the Charter. From the statements presented to it the Court does not consider it necessary to address questions which might, in a given case, arise from the application of Chapter VII.

50The terms of the question put to the Court by the General Assembly in Resolution 49/75K could in principle also cover a threat or use of nuclear weapons by a state within its own boundaries. However, this particular aspect has not been dealt with by any of the states which addressed the Court orally or in writing in these proceedings. The Court finds that it is not called upon to deal with an internal use of nuclear weapons.

51Having dealt with the Charter provisions relating to the threat or use of force, the Court will now turn to the law applicable in situations of armed conflict. It will first address the question whether there are specific rules in international law regulating the legality or illegality of recourse to nuclear weapons per se; it will then examine the question put to it in the light of the law applicable in armed conflict proper, ie the principles and rules of humanitarian law applicable in armed conflict, and the law of neutrality.

52The Court notes by way of introduction that international customary and treaty law does not contain any specific prescription authorising the threat or use of nuclear weapons or any other weapon in general or in certain circumstances, in particular those of the exercise of legitimate self-defence. Nor, however, is there any principle or rule of international law which would make the legality of the threat or use of nuclear weapons or of any other weapons dependent on a specific authorisation. State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorisation but, on the contrary, is formulated in terms of prohibition.

652

The Regulation of Armed Conflict

53The Court must therefore now examine whether there is any prohibition of recourse to nuclear weapons as such; it will first ascertain whether there is a conventional prescription to this effect.

54In this regard, the argument has been advanced that nuclear weapons should be treated in the same way as poisoned weapons. In that case, they would be prohibited under:

(a)the Second Hague Declaration of 29 July 1899, which prohibits ‘the use of projectiles the object of which is the diffusion of asphyxiating or deleterious gases’;

(b)Article 23(a) of the Regulations respecting the laws and customs of war on land annexed to the Hague Convention IV of 18 October 1907, whereby ‘it is especially forbidden ... to employ poison or poisoned weapons’; and

(c)the Geneva Protocol of 17 June 1925 which prohibits ‘the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices’.

55The Court will observe that the Regulations annexed to the Hague Convention IV do not define what is to be understood by ‘poison or poisoned weapons’ and that different interpretations exist on the issue. Nor does the 1925 Protocol specify the meaning to be given to the term ‘analogous materials or devices’. The terms have been understood, in the practice of states, in their ordinary sense as covering weapons whose prime, or even exclusive, effect is to poison or asphyxiate. This practice is clear, and the parties to those instruments have not treated them as referring to nuclear weapons.

56In view of this, it does not seem to the Court that the use of nuclear weapons can be regarded as specifically prohibited on the basis of the above-mentioned provisions of the Second Hague Declaration of 1899, the Regulations annexed to the Hague Convention IV of 1907 or the 1925 Protocol (see para 54 above).

57The pattern until now has been for weapons of mass destruction to be declared illegal by specific instruments. The most recent such instruments are the Convention of 10 April 1972 on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their destruction – which prohibits the possession of bacteriological and toxic weapons and reinforces the prohibition of their use – and the Convention of 13 January 1993 on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction – which prohibits all use of chemical weapons and requires the destruction of existing stocks. Each of these instruments has been negotiated and adopted in its own context and for its own reasons. The Court does not find any specific prohibition of recourse to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction.

58In the last two decades, a great many negotiations have been conducted regarding nuclear weapons; they have not resulted in a treaty of general prohibition of the same kind as for bacteriological and chemical weapons. However, a number of specific treaties have been concluded in order to limit:

(a)the acquisition, manufacture and possession of nuclear weapons (Peace Treaties of 10 February 1947; State Treaty for the Re-establishment of an Independent and Democratic Austria of 15 May 1955; Treaty of Tlatelolco of 14 February 1967 for the Prohibition of Nuclear Weapons in Latin America, and its Additional Protocols; Treaty of 1 July 1968 on the Non-Proliferation of Nuclear Weapons; Treaty of Rarotonga of 6 August 1985 on the Nuclear-

653

Sourcebook on Public International Law

Weapon-Free Zone of the South Pacific, and its Protocols; Treaty of 12 September 1990 on the Final Settlement with respect to Germany);

(b)the deployment of nuclear weapons (Antarctic Treaty of 1 December 1959; Treaty of 27 January 1967 on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies; Treaty of Tlatelolco of 14 February 1967 for the Prohibition of Nuclear Weapons in Latin America, and its Additional Protocols; Treaty of 11 February 1971 on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea Bed and the Ocean Floor and in the Subsoil Thereof; Treaty of Rarotonga of 6 August 1985 on the Nuclear-Weapon-Free Zone of the South Pacific, and its Protocols); and

(c)the testing of nuclear weapons (Antarctic Treaty of 1 December 1959; Treaty of 5 August 1963 Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water; Treaty of 27 January 1967 on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies; Treaty of Tlatelolco of 14 February 1967 for the Prohibition of Nuclear Weapons in Latin America, and its Additional Protocols; Treaty of Rarotonga of 6 August 1985 on the Nuclear-Weapon-Free Zone of the South Pacific, and its Protocols).

59 Recourse to nuclear weapons is directly addressed by two of these Conventions and also in connection with the indefinite extension of the Treaty on the Non-Proliferation of Nuclear Weapons of 1968:

(a)the Treaty of Tlatelolco of 14 February 1967 for the Prohibition of Nuclear Weapons in Latin America prohibits, in Article 1, the use of nuclear weapons by the Contracting Parties. It further includes an Additional Protocol II open to nuclear-weapon states outside the region, Article 3 of which provides:

The governments represented by the undersigned Plenipotentiaries also undertake not to use or threaten to use nuclear weapons against the Contracting Parties of the Treaty for the Prohibition of Nuclear Weapons in Latin America.

The Protocol was signed and ratified by the five nuclear-weapon states. Its ratification was accompanied by a variety of declarations. The United Kingdom government, for example, stated that ‘in the event of any act of aggression by a Contracting Party to the Treaty in which that Party was supported by a nuclear-weapon state’, the United Kingdom government would ‘be free to reconsider the extent to which they could be regarded as committed by the provisions of Additional Protocol II’. The United States made a similar statement. The French government, for its part, stated that it ‘interprets the undertaking made in Article 3 of the Protocol as being without prejudice to the full exercise of the right of self-defence confirmed by Article 51 of the Charter’. China reaffirmed its commitment not to be the first to make use of nuclear weapons. The Soviet Union reserved ‘the right to review’ the obligations imposed upon it by Additional Protocol II, particularly in the event of an attack by a State Party either ‘in support of a nuclear-weapon state or jointly with that state’. None of these statements drew comment or objection from the parties to the Treaty of Tlatelolco.

(b)the Treaty of Rarotonga of 6 August 1985 establishes a South Pacific Nuclear Free Zone in which the Parties undertake not to manufacture, acquire or possess any nuclear explosive device (Art 3). Unlike the Treaty of Tlatelolco, the Treaty of Rarotonga does not expressly prohibit the use of such weapons. But such a prohibition is for the States Parties the necessary consequence of

654

The Regulation of Armed Conflict

the prohibitions stipulated by the Treaty. The Treaty has a number of protocols. Protocol 2, open to the five nuclear-weapon states, specifies in its Article 1 that:

Each Party undertakes not to use or threaten to use any nuclear explosive device against:

(a)Parties to the Treaty; or

(b)any territory within the South Pacific Nuclear Free Zone for which a state that has become a Party to Protocol 1 is internationally responsible.

China and Russia are parties to that Protocol. In signing it, China and the Soviet Union each made a declaration by which they reserved the ’right to reconsider’ their obligations under the said Protocol; the Soviet Union also referred to certain circumstances in which it would consider itself released from those obligations. France, the United Kingdom and the United States, for their part, signed Protocol 2 on 25 March 1996, but have not yet ratified it. On that occasion, France declared, on the one hand, that no provision in that Protocol ‘shall impair the full exercise of the inherent right of self-defence provided for in Article 51 of the ... Charter’ and, on the other hand, that ‘the commitment set out in Article 1 of [that] Protocol amounts to the negative security assurances given by France to non-nuclear-weapon states which are parties to the Treaty on ... Non-Proliferation’, and that ‘these assurances shall not apply to states which are not parties’ to that Treaty. For its part, the United Kingdom made a declaration setting out the precise circumstances in which it ‘will not be bound by [its] undertaking under Article 1’ of the Protocol.

(c)as to the Treaty on the Non-Proliferation of Nuclear Weapons, at the time of its signing in 1968 the United States, the United Kingdom and the USSR gave various security assurances to the non-nuclear-weapon states that were parties to the Treaty. In Resolution 255 (1968) the Security Council took note with satisfaction of the intention expressed by those three states to:

... provide or support immediate assistance, in accordance with the Charter, to any non-nuclear-weapon State Party to the Treaty on the Non-Proliferation ... that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used.

On the occasion of the extension of the Treaty in 1995, the five nuclear-weapon states gave their non-nuclear-weapon partners, by means of separate unilateral statements on 5 and 6 April 1995, positive and negative security assurances against the use of such weapons. All the five nuclear-weapon states first undertook not to use nuclear weapons against non-nuclear-weapon states that were parties to the Treaty on the Non-Proliferation of Nuclear Weapons. However, these states, apart from China, made an exception in the case of an invasion or any other attack against them, their territories, armed forces or allies, or on a state towards which they had a security commitment, carried out or sustained by a non-nuclear-weapon State Party to the Non-Proliferation Treaty in association or alliance with a nuclear-weapon state. Each of the nuclear-weapon states further undertook, as a permanent Member of the Security Council, in the event of an attack with the use of nuclear weapons, or threat of such attack, against a non-nuclear-weapon state, to refer the matter to the Security Council without delay and to act within it in order that it might take immediate measures with a view to supplying, pursuant to the Charter, the necessary assistance to the victim state (the commitments assumed comprising minor variations in

655

Sourcebook on Public International Law

wording). The Security Council, in unanimously adopting Resolution 984 (1995) of 11 April 1995, cited above, took note of those statements with appreciation. It also recognised:

... that the nuclear-weapon state permanent members of the Security Council will bring the matter immediately to the attention of the Council and seek Council action to provide, in accordance with the Charter, the necessary assistance to the state victim;

and welcomed the fact that:

... the intention expressed by certain states that they will provide or support immediate assistance, in accordance with the Charter, to any non-nuclear- weapon State Party to the Treaty on the Non-Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used.

60Those states that believe that recourse to nuclear weapons is illegal stress that the conventions that include various rules providing for the limitation or elimination of nuclear weapons in certain areas (such as the Antarctic Treaty of 1959 which prohibits the deployment of nuclear weapons in the Antarctic, or the Treaty of Tlatelolco of 1967 which creates a nuclear-weapon-free zone in Latin America), or the conventions that apply certain measures of control and limitation to the existence of nuclear weapons (such as the 1963 Partial Test-Ban Treaty or the Treaty on the Non-Proliferation of Nuclear Weapons) all set limits to the use of nuclear weapons. In their view, these treaties bear witness, in their own way, to the emergence of a rule of complete legal prohibition of all uses of nuclear weapons.

61Those states who defend the position that recourse to nuclear weapons is legal in certain circumstances see a logical contradiction in reaching such a conclusion. According to them, those Treaties, such as the Treaty on the NonProliferation of Nuclear Weapons, as well as Security Council Resolutions 255 (1968) and 984 (1995) which take note of the security assurances given by the nuclear-weapon states to the non-nuclear-weapon states in relation to any nuclear aggression against the latter, cannot be understood as prohibiting the use of nuclear weapons, and such a claim is contrary to the very text of those instruments. For those who support the legality in certain circumstances of recourse to nuclear weapons, there is no absolute prohibition against the use of such weapons. The very logic and construction of the Treaty on the NonProliferation of Nuclear Weapons, they assert, confirm this. This Treaty, whereby, they contend, the possession of nuclear weapons by the five nuclearweapon states has been accepted, cannot be seen as a treaty banning their use by those states; to accept the fact that those states possess nuclear weapons is tantamount to recognising that such weapons may be used in certain circumstances. Nor, they contend, could the security assurances given by the nuclear-weapon states in 1968, and more recently in connection with the Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons in 1995, have been conceived without its being supposed that there were circumstances in which nuclear weapons could be used in a lawful manner. For those who defend the legality of the use, in certain circumstances, of nuclear weapons, the acceptance of those instruments by the different non- nuclear-weapon states confirms and reinforces the evident logic upon which those instruments are based.

62The Court notes that the treaties dealing exclusively with acquisition, manufacture, possession, deployment and testing of nuclear weapons, without specifically addressing their threat or use, certainly point to an increasing

656

The Regulation of Armed Conflict

concern in the international community with these weapons; the Court concludes from this that these treaties could therefore be seen as foreshadowing a future general prohibition of the use of such weapons, but they do not constitute such a prohibition by themselves. As to the treaties of Tlatelolco and Rarotonga and their Protocols, and also the declarations made in connection with the indefinite extension of the Treaty on the Non-Proliferation of Nuclear Weapons, it emerges from these instruments that:

(a)a number of states have undertaken not to use nuclear weapons in specific zones (Latin America; the South Pacific) or against certain other states (non- nuclear-weapon states which are parties to the Treaty on the NonProliferation of Nuclear Weapons);

(b)nevertheless, even within this framework, the nuclear-weapon states have reserved the right to use nuclear weapons in certain circumstances; and

(c)these reservations met with no objection from the parties to the Tlatelolco or Rarotonga Treaties or from the Security Council.

63These two treaties, the security assurances given in 1995 by the nuclearweapon states and the fact that the Security Council took note of them with satisfaction, testify to a growing awareness of the need to liberate the community of states and the international public from the dangers resulting from the existence of nuclear weapons. The Court moreover notes the signing, even more recently, on 15 December 1995, at Bangkok, of a Treaty on the Southeast Asia Nuclear-Weapon-Free Zone, and on 11 April 1996, at Cairo, of a treaty on the creation of a nuclear-weapons-free zone in Africa. It does not, however, view these elements as amounting to a comprehensive and universal conventional prohibition on the use, or the threat of use, of those weapons as such.

64The Court will now turn to an examination of customary international law to determine whether a prohibition of the threat or use of nuclear weapons as such flows from that source of law. As the Court has stated, the substance of that law must be ‘looked for primarily in the actual practice and opinio juris of states’ (Continental Shelf (Libyan Arab Jamahiriya/Malta) Judgment, [1985] ICJ Rep at p 29, para 27).

65States which hold the view that the use of nuclear weapons is illegal have endeavoured to demonstrate the existence of a customary rule prohibiting this use. They refer to a consistent practice of non-utilisation of nuclear weapons by states since 1945 and they would see in that practice the expression of an opinio juris on the part of those who possess such weapons.

66Some other states, which assert the legality of the threat and use of nuclear weapons in certain circumstances, invoked the doctrine and practice of deterrence in support of their argument. They recall that they have always, in concert with certain other states, reserved the right to use those weapons in the exercise of the right to self-defence against an armed attack threatening their vital security interests. In their view, if nuclear weapons have not been used since 1945, it is not on account of an existing or nascent custom but merely because circumstances that might justify their use have fortunately not arisen.

67The Court does not intend to pronounce here upon the practice known as the ‘policy of deterrence’. It notes that it is a fact that a number of states adhered to that practice during the greater part of the Cold War and continue to adhere to it. Furthermore, the members of the international community are profoundly divided on the matter of whether non-recourse to nuclear weapons over the past fifty years constitutes the expression of an opinio juris. Under these circumstances the Court does not consider itself able to find that there is such an opinio juris.

657

Sourcebook on Public International Law

68According to certain states, the important series of General Assembly resolutions, beginning with Resolution 1653 (XVI) of 24 November 1961, that deal with nuclear weapons and that affirm, with consistent regularity, the illegality of nuclear weapons, signify the existence of a rule of international customary law which prohibits recourse to those weapons. According to other states, however, the resolutions in question have no binding character on their own account and are not declaratory of any customary rule of prohibition of nuclear weapons; some of these states have also pointed out that this series of resolutions not only did not meet with the approval of all of the nuclear-weapon states but of many other states as well.

69States which consider that the use of nuclear weapons is illegal indicated that those resolutions did not claim to create any new rules, but were confined to a confirmation of customary law relating to the prohibition of means or methods of warfare which, by their use, overstepped the bounds of what is permissible in the conduct of hostilities. In their view, the resolutions in question did no more than apply to nuclear weapons the existing rules of international law applicable in armed conflict; they were no more than the ‘envelope’ or instrumentum containing certain pre-existing customary rules of international law. For those states it is accordingly of little importance that the instrumentum should have occasioned negative votes, which cannot have the effect of obliterating those customary rules which have been confirmed by treaty law.

70The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.

71Examined in their totality, the General Assembly resolutions put before the Court declare that the use of nuclear weapons would be ‘a direct violation of the Charter of the United Nations’; and in certain formulations that such use ‘should be prohibited’. The focus of these resolutions has sometimes shifted to diverse related matters; however, several of the resolutions under consideration in the present case have been adopted with substantial numbers of negative votes and abstentions; thus, although those resolutions are a clear sign of deep concern regarding the problem of nuclear weapons, they still fall short of establishing the existence of an opinio juris on the illegality of the use of such weapons.

72The Court further notes that the first of the resolutions of the General Assembly expressly proclaiming the illegality of the use of nuclear weapons, Resolution 1653 (XVI) of 24 November 1961 (mentioned in subsequent resolutions), after referring to certain international declarations and binding agreements, from the Declaration of St Petersburg of 1868 to the Geneva Protocol of 1925, proceeded to qualify the legal nature of nuclear weapons, determine their effects, and apply general rules of customary international law to nuclear weapons in particular. That application by the General Assembly of general rules of customary law to the particular case of nuclear weapons indicates that, in its view, there was no specific rule of customary law which prohibited the use of nuclear weapons; if such a rule had existed, the General Assembly could simply have referred to it and would not have needed to undertake such an exercise of legal qualification.

658

The Regulation of Armed Conflict

73Having said this, the Court points out that the adoption each year by the General Assembly, by a large majority, of resolutions recalling the content of Resolution 1653 (XVI), and requesting the member states to conclude a convention prohibiting the use of nuclear weapons in any circumstance, reveals the desire of a very large section of the international community to take, by a specific and express prohibition of the use of nuclear weapons, a significant step forward along the road to complete nuclear disarmament. The emergence, as lex lata, of a customary rule specifically prohibiting the use of nuclear weapons as such is hampered by the continuing tensions between the nascent opinio juris on the one hand, and the still strong adherence to the practice of deterrence on the other.

74The Court not having found a conventional rule of general scope, nor a customary rule specifically proscribing the threat or use of nuclear weapons per se, it will now deal with the question whether recourse to nuclear weapons must be considered as illegal in the light of the principles and rules of international humanitarian law applicable in armed conflict and of the law of neutrality.

75A large number of customary rules have been developed by the practice of states and are an integral part of the international law relevant to the question posed. The ‘laws and customs of war’ – as they were traditionally called – were the subject of efforts at codification undertaken in The Hague (including the Conventions of 1899 and 1907), and were based partly upon the St Petersburg Declaration of 1868 as well as the results of the Brussels Conference of 1874. This ‘Hague Law’ and, more particularly, the Regulations Respecting the Laws and Customs of War on Land, fixed the rights and duties of belligerents in their conduct of operations and limited the choice of methods and means of injuring the enemy in an international armed conflict. One should add to this the ‘Geneva Law’ (the Conventions of 1864, 1906, 1929 and 1949), which protects the victims of war and aims to provide safeguards for disabled armed forces personnel and persons not taking part in the hostilities. These two branches of the law applicable in armed conflict have become so closely interrelated that they are considered to have gradually formed one single complex system, known today as international humanitarian law. The provisions of the Additional Protocols of 1977 give expression and attest to the unity and complexity of that law.

76Since the turn of the century, the appearance of new means of combat has – without calling into question the long-standing principles and rules of international law – rendered necessary some specific prohibitions of the use of certain weapons, such as explosive projectiles under 400 grammes, dum-dum bullets and asphyxiating gases. Chemical and bacteriological weapons were then prohibited by the 1925 Geneva Protocol. More recently, the use of weapons producing ‘non-detectable fragments’, of other types of ‘mines, booby-traps and other devices’, and of ‘incendiary weapons’, was either prohibited or limited, depending on the case, by the Convention of 10 October 1980 on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects. The provisions of the Convention on ‘mines, booby-traps and other devices’ have just been amended, on 3 May 1996, and now regulate in greater detail, for example, the use of anti-personnel land mines.

77All this shows that the conduct of military operations is governed by a body of legal prescriptions. This is so because ‘the right of belligerents to adopt means of injuring the enemy is not unlimited’ as stated in Article 22 of the 1907 Hague Regulations relating to the laws and customs of war on land. The St Petersburg Declaration had already condemned the use of weapons ‘which uselessly

659

Sourcebook on Public International Law

aggravate the suffering of disabled men or make their death inevitable’. The aforementioned Regulations relating to the laws and customs of war on land, annexed to the Hague Convention IV of 1907, prohibit the use of ‘arms, projectiles, or material calculated to cause unnecessary suffering’ (Article 23).

78 The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; states must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In application of that second principle, states do not have unlimited freedom of choice of means in the weapons they use.

The Court would likewise refer, in relation to these principles, to the Martens Clause, which was first included in the Hague Convention II with Respect to the Laws and Customs of War on Land of 1899 and which has proved to be an effective means of addressing the rapid evolution of military technology. A modern version of that clause is to be found in Article 1, para 2, of Additional Protocol I of 1977, which reads as follows:

In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

In conformity with the aforementioned principles, humanitarian law, at a very early stage, prohibited certain types of weapons either because of their indiscriminate effect on combatants and civilians or because of the unnecessary suffering caused to combatants, that is to say, a harm greater than that unavoidable to achieve legitimate military objectives. If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law.

79It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary considerations of humanity’ as the Court put it in its Judgment of 9 April 1949 in the Corfu Channel case ([1949] ICJ Rep at p 22), that the Hague and Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed by all states whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.

80The Nuremberg International Military Tribunal had already found in 1945 that the humanitarian rules included in the Regulations annexed to the Hague Convention IV of 1907 ‘were recognised by all civilised nations and were regarded as being declaratory of the laws and customs of war’ (International Military Tribunal, Trial of the Major War Criminals, 14 November 1945: 1 October 1946, Nuremberg, 1947, Vol 1, p 254).

81The Report of the Secretary General pursuant to para 2 of Security Council Resolution 808 (1993), with which he introduced the Statute 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, and which was unanimously approved by the Security Council (Resolution 827 (1993)), stated:

660

The Regulation of Armed Conflict

In the view of the Secretary General, the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law ...

The part of conventional international humanitarian law which has beyond doubt become part of international customary law is the law applicable in armed conflict as embodied in: the Geneva Conventions of 12 August 1949 for the Protection of War Victims; the Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto of 18 October 1907; the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948; and the Charter of the International Military Tribunal of 8 August 1945.

82The extensive codification of humanitarian law and the extent of the accession to the resultant treaties, as well as the fact that the denunciation clauses that existed in the codification instruments have never been used, have provided the international community with a corpus of treaty rules the great majority of which had already become customary and which reflected the most universally recognised humanitarian principles. These rules indicate the normal conduct and behaviour expected of states.

83It has been maintained in these proceedings that these principles and rules of humanitarian law are part of jus cogens as defined in Article 53 of the Vienna Convention on the Law of Treaties of 23 May 1969. The question whether a norm is part of the jus cogens relates to the legal character of the norm. The request addressed to the Court by the General Assembly raises the question of the applicability of the principles and rules of humanitarian law in cases of recourse to nuclear weapons and the consequences of that applicability for the legality of recourse to these weapons. But it does not raise the question of the character of the humanitarian law which would apply to the use of nuclear weapons. There is, therefore, no need for the Court to pronounce on this matter.

84Nor is there any need for the Court elaborate on the question of the applicability of Additional Protocol I of 1977 to nuclear weapons. It need only observe that while, at the Diplomatic Conference of 1974–77, there was no substantive debate on the nuclear issue and no specific solution concerning this question was put forward, Additional Protocol I in no way replaced the general customary rules applicable to all means and methods of combat including nuclear weapons. In particular, the Court recalls that all states are bound by those rules in Additional Protocol I which, when adopted, were merely the expression of the pre-existing customary law, such as the Martens Clause, reaffirmed in the first article of Additional Protocol I. The fact that certain types of weapons were not specifically dealt with by the 1974–77 Conference does not permit the drawing of any legal conclusions relating to the substantive issues which the use of such weapons would raise.

85Turning now to the applicability of the principles and rules of humanitarian law to a possible threat or use of nuclear weapons, the Court notes that doubts in this respect have sometimes been voiced on the ground that these principles and rules had evolved prior to the invention of nuclear weapons and that the Conferences of Geneva of 1949 and 1974–77 which respectively adopted the four Geneva Conventions of 1949 and the two Additional Protocols thereto did not deal with nuclear weapons specifically. Such views, however, are only held by a small minority. In the view of the vast majority of states as well as writers there can be no doubt as to the applicability of humanitarian law to nuclear weapons.

661

Sourcebook on Public International Law

86 The Court shares that view. Indeed, nuclear weapons were invented after most of the principles and rules of humanitarian law applicable in armed conflict had already come into existence; the Conferences of 1949 and 1974–77 left these weapons aside, and there is a qualitative as well as quantitative difference between nuclear weapons and all conventional arms. However, it cannot be concluded from this that the established principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future. In this respect it seems significant that the thesis that the rules of humanitarian law do not apply to the new weaponry, because of the newness of the latter, has not been advocated in the present proceedings. On the contrary, the newness of nuclear weapons has been expressly rejected as an argument against the application to them of international humanitarian law:

In general, international humanitarian law bears on the threat or use of nuclear weapons as it does of other weapons.

International humanitarian law has evolved to meet contemporary circumstances, and is not limited in its application to weaponry of an earlier time. The fundamental principles of this law endure: to mitigate and circumscribe the cruelty of war for humanitarian reasons. (New Zealand, Written Statement, p 15, paras 63–64.)

None of the statements made before the Court in any way advocated a freedom to use nuclear weapons without regard to humanitarian constraints. Quite the reverse; it has been explicitly stated,

Restrictions set by the rules applicable to armed conflicts in respect of means and methods of warfare definitely also extend to nuclear weapons (Russian Federation, CR 95/29, p 52);

So far as the customary law of war is concerned, the United Kingdom has always accepted that the use of nuclear weapons is subject to the general principles of the jus in bello (United Kingdom, CR 95/34, p 45); and

The United States has long shared the view that the law of armed conflict governs the use of nuclear weapons – just as it governs the use of conventional weapons (United States of America, CR 95/34, p 85).

87Finally, the Court points to the Martens Clause, whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons.

88The Court will now turn to the principle of neutrality which was raised by several states. In the context of the advisory proceedings brought before the Court by the WHO concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, the position was put as follows by one state:

The principle of neutrality, in its classic sense, was aimed at preventing the incursion of belligerent forces into neutral territory, or attacks on the persons or ships of neutrals. Thus: ‘the territory of neutral powers is inviolable’ (Article 1 of the Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, concluded on 18 October 1907); ‘belligerents are bound to respect the sovereign rights of neutral powers ...’ (Article 1 to the Hague Convention (XIII) Respecting the Rights and Duties of Neutral Powers in Naval War, concluded on 18 October 1907), ‘neutral states have equal interest in having their rights respected by

662

The Regulation of Armed Conflict

belligerents ...’ (Preamble to Convention on Maritime Neutrality, concluded on 20 February 1928). It is clear, however, that the principle of neutrality applies with equal force to transborder incursions of armed forces and to the transborder damage caused to a neutral state by the use of a weapon in a belligerent state (Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Nauru, Written Statement (I), p 35, IV E).

The principle so circumscribed is presented as an established part of the customary international law.

89The Court finds that as in the case of the principles of humanitarian law applicable in armed conflict, international law leaves no doubt that the principle of neutrality, whatever its content, which is of a fundamental character similar to that of the humanitarian principles and rules, is applicable (subject to the relevant provisions of the United Nations Charter), to all international armed conflict, whatever type of weapons might be used.

90Although the applicability of the principles and rules of humanitarian law and of the principle of neutrality to nuclear weapons is hardly disputed, the conclusions to be drawn from this applicability are, on the other hand, controversial.

91According to one point of view, the fact that recourse to nuclear weapons is subject to and regulated by the law of armed conflict does not necessarily mean that such recourse is as such prohibited. As one state put it to the Court:

Assuming that a state’s use of nuclear weapons meets the requirements of self-defence, it must then be considered whether it conforms to the fundamental principles of the law of armed conflict regulating the conduct of hostilities (United Kingdom, Written Statement, p 40, para 3.44);

the legality of the use of nuclear weapons must therefore be assessed in the light of the applicable principles of international law regarding the use of force and the conduct of hostilities, as is the case with other methods and means of warfare’ (United Kingdom, Written Statement, p 75, para 4.2(3)); and

The reality ... is that nuclear weapons might be used in a wide variety of circumstances with very different results in terms of likely civilian casualties. In some cases, such as the use of a low yield nuclear weapon against warships on the High Seas or troops in sparsely populated areas, it is possible to envisage a nuclear attack which caused comparatively few civilian casualties. It is by no means the case that every use of nuclear weapons against a military objective would inevitably cause very great collateral civilian casualties’ (United Kingdom, Written Statement, p 53, para 3.70; see also United States of America, Oral Statement, CR 95/34, pp 89–90).

92 Another view holds that recourse to nuclear weapons could never be compatible with the principles and rules of humanitarian law and is therefore prohibited. In the event of their use, nuclear weapons would in all circumstances be unable to draw any distinction between the civilian population and combatants, or between civilian objects and military objectives, and their effects, largely uncontrollable, could not be restricted, either in time or in space, to lawful military targets. Such weapons would kill and destroy in a necessarily indiscriminate manner, on account of the blast, heat and radiation occasioned by the nuclear explosion and the effects induced; and the number of casualties which would ensue would be enormous. The use of nuclear weapons would therefore be prohibited in any circumstance, notwithstanding the absence of any explicit conventional prohibition. That view lay at the basis of the assertions by

663

Sourcebook on Public International Law

certain states before the Court that nuclear weapons are by their nature illegal under customary international law, by virtue of the fundamental principle of humanity.

93A similar view has been expressed with respect to the effects of the principle of neutrality. Like the principles and rules of humanitarian law, that principle has therefore been considered by some to rule out the use of a weapon the effects of which simply cannot be contained within the territories of the contending states.

94The Court would observe that none of the states advocating the legality of the use of nuclear weapons under certain circumstances, including the ‘clean’ use of smaller, low yield, tactical nuclear weapons, has indicated what, supposing such limited use were feasible, would be the precise circumstances justifying such use; nor whether such limited use would not tend to escalate into the all-out use of high yield nuclear weapons. This being so, the Court does not consider that it has a sufficient basis for a determination on the validity of this view.

95Nor can the Court make a determination on the validity of the view that the recourse to nuclear weapons would be illegal in any circumstance owing to their inherent and total incompatibility with the law applicable in armed conflict. Certainly, as the Court has already indicated, the principles and rules of law applicable in armed conflict – at the heart of which is the overriding consideration of humanity – make the conduct of armed hostilities subject to a number of strict requirements. Thus, methods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited. In view of the unique characteristics of nuclear weapons, to which the Court has referred above, the use of such weapons in fact seems scarcely reconcilable with respect for such requirements. Nevertheless, the Court considers that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance.

96Furthermore, the Court cannot lose sight of the fundamental right of every state to survival, and thus its right to resort to self-defence, in accordance with Article 51 of the Charter, when its survival is at stake.

Nor can it ignore the practice referred to as ‘policy of deterrence’, to which an appreciable section of the international community adhered for many years. The Court also notes the reservations which certain nuclear-weapon states have appended to the undertakings they have given, notably under the Protocols to the Treaties of Tlatelolco and Rarotonga, and also under the declarations made by them in connection with the extension of the Treaty on the Non-Proliferation of Nuclear Weapons, not to resort to such weapons.

97Accordingly, in view of the present state of international law viewed as a whole, as examined above by the Court, and of the elements of fact at its disposal, the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a state in an extreme circumstance of self-defence, in which its very survival would be at stake.

98Given the eminently difficult issues that arise in applying the law on the use of force and above all the law applicable in armed conflict to nuclear weapons, the Court considers that it now needs to examine one further aspect of the question before it, seen in a broader context.

In the long run, international law, and with it the stability of the international order which it is intended to govern, are bound to suffer from the continuing

664

The Regulation of Armed Conflict

difference of views with regard to the legal status of weapons as deadly as nuclear weapons. It is consequently important to put an end to this state of affairs: the long-promised complete nuclear disarmament appears to be the most appropriate means of achieving that result.

99 In these circumstances, the Court appreciates the full importance of the recognition by Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of an obligation to negotiate in good faith a nuclear disarmament. This provision is worded as follows:

Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.

The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result – nuclear disarmament in all its aspects – by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith.

100 This twofold obligation to pursue and to conclude negotiations formally concerns the 182 States Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, or, in other words, the vast majority of the international community.

Virtually the whole of this community appears moreover to have been involved when resolutions of the United Nations General Assembly concerning nuclear disarmament have repeatedly been unanimously adopted. Indeed, any realistic search for general and complete disarmament, especially nuclear disarmament, necessitates the co-operation of all states.

101 Even the very first General Assembly resolution, unanimously adopted on 24 January 1946 at the London session, set up a commission whose terms of reference included making specific proposals for, among other things, ‘the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction’. In a large number of subsequent resolutions, the General Assembly has reaffirmed the need for nuclear disarmament. Thus, in Resolution 808 A (IX) of 4 November 1954, which was likewise unanimously adopted, it concluded:

that a further effort should be made to reach agreement on comprehensive and co-ordinated proposals to be embodied in a draft international disarmament convention providing for: ... (b) the total prohibition of the use and manufacture of nuclear weapons and weapons of mass destruction of every type, together with the conversion of existing stocks of nuclear weapons for peaceful purposes.

The same conviction has been expressed outside the United Nations context in various instruments.

102 The obligation expressed in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons includes its fulfilment in accordance with the basic principle of good faith. This basic principle is set forth in Article 2, para 2, of the Charter. It was reflected in the Declaration on Friendly Relations between States (Resolution 2625 (XXV) of 24 October 1970) and in the Final Act of the Helsinki Conference of 1 August 1975. It is also embodied in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969, according to which ‘[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith’.

Nor has the Court omitted to draw attention to it, as follows:

665

Sourcebook on Public International Law

One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential (Nuclear Tests (Australia v France), Judgment of 20 December 1974; [1974] ICJ Rep at p 268, para 46).

103 In its Resolution 984 (1995) dated 11 April 1995, the Security Council took care to reaffirm ‘the need for all States Parties to the Treaty on the NonProliferation of Nuclear Weapons to comply fully with all their obligations’ and urged:

... all states, as provided for in Article VI of the Treaty on the NonProliferation of Nuclear Weapons, to pursue negotiations in good faith on effective measures relating to nuclear disarmament and on a treaty on general and complete disarmament under strict and effective international control which remains a universal goal.

The importance of fulfilling the obligation expressed in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons was also reaffirmed in the final document of the Review and Extension Conference of the parties to the Treaty on the Non-Proliferation of Nuclear Weapons, held from 17 April to 12 May 1995.

In the view of the Court, it remains without any doubt an objective of vital importance to the whole of the international community today.

104At the end of the present Opinion, the Court emphasises that its reply to the question put to it by the General Assembly rests on the totality of the legal grounds set forth by the Court above (paras 20 to 103), each of which is to be read in the light of the others. Some of these grounds are not such as to form the object of formal conclusions in the final paragraph of the Opinion; they nevertheless retain, in the view of the Court, all their importance.

105For these reasons,

THE COURT,

(1) By 13 votes to one,

Decides to comply with the request for an advisory opinion;

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins;

AGAINST: Judge Oda.

(2) Replies in the following manner to the question put by the General Assembly: A Unanimously,

There is in neither customary nor conventional international law any specific authorisation of the threat or use of nuclear weapons;

B By 11 votes to three,

There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such;

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;

AGAINST: Judges Shahabuddeen, Weeramantry, Koroma.

666

The Regulation of Armed Conflict

C Unanimously,

A threat or use of force by means of nuclear weapons that is contrary to Article 2, para 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful;

D Unanimously,

A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons;

E By seven votes to seven, by the President’s casting vote,

It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law;

However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a state would be at stake;

IN FAVOUR: President Bedjaoui; Judges Ranjeva, Herczegh, Shi, Fleischhauer, Vereschetin, Ferrari Bravo;

AGAINST: Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Koroma, Higgins.

F Unanimously,

There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.

A specific aspect of nuclear weapons that has been considered is the use of radiological weapons. Such weapons are designed to utilise the radio-active fallout which follows a nuclear explosion. Radiological weapons fall into two categories: those which use separate radio-active agents which act independently of the nuclear explosion itself, and so-called dirty nuclear weapons which are designed to maximise the amount of fallout from the nuclear explosion. The use and possession of such weapons has for some time been considered by the UN Conference on Disarmament.

15.5.1.3 Biological and chemical weapons

Biological and chemical weapons can be distinguished from other weapons in that they exercise their effect solely on living matter and are aimed at large groups rather than individual soldiers. The use of poisoned weapons is not new. Historically much use has been made during sieges of the tactic of poisoning water supplies and in medieval times plague victims proved effective weapons when thrown over city walls.

The first treaty reference to such weapons appeared in Article 23 of the Hague Regulations Respecting the Laws and Custom of War on Land which prohibits the use of poison or poisoned weapons. The Regulations are generally regarded as constituting customary international law but it remains unclear

667

Sourcebook on Public International Law

whether the prohibition on the use of poison covers the use of gas. Gas was used in both World Wars, in Vietnam and in the Iran-Iraq war. The peace treaties concluded after World War One all prohibited the possession by Germany of all ‘asphyxiating, poisonous and other gases and analogous liquids, material and devices’ but it was unclear whether this prohibition applied to all states. The Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare 1925 (the Geneva Gas Protocol) expressly recognised that the prohibition of asphyxiating, poisonous and other gases and analogous liquids, materials and devices was part of international law and extended the prohibition to the use in war of bacteriological weapons. However, problems have remained over the interpretation of the Protocol’s provisions. In particular there has been dispute over whether the prohibition covers only lethal weapons or extends to such things as tear gas and other non-lethal materials such as herbicides. The problem is partly caused by the fact that the French text, which is equally authentic to the English text of the Protocol, refers to ‘similaires’ rather than ‘other’ gases and analogous liquids, etc.

In 1986 a UN Security Council resolution condemned the use by Iraq of chemical weapons which was stated to be in clear violation of the Geneva Gas Protocol. The prevailing view today seems to be that the provisions of the Protocol have become customary international law and that consequently the first use of lethal chemical and biological weapons is prohibited. There is less agreement on the use of non-lethal chemical and biological weapons.

There now exist a Biological Weapons Convention 1972 and a Chemical Weapons Convention 1992, both of which prohibit the production and stockpiling of specific weapons, although they do not deal with the use in armed conflict of such weapons.

15.5.1.4Environmental weapons

The widespread use of defoliants by the USA during the Vietnam War and growing concern about the environment generally led to calls for regulation of weapons which have a particular effect on the environment. During the Vietnam War there were press reports that the USA was attempting to artificially produce rain in the war zone to flood North Vietnamese supply routes. This provoked international discussions aimed at prohibiting the use of environmental modification techniques as weapons of war. The result of the discussions was the UN Convention on the Prohibition of Military Use of Environmental Modification Techniques 1977. This Convention prohibits the hostile use of any technique for changing ‘the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space’. It is arguable that the Convention would cover the use of nuclear weapons.

In addition to the 1977 Convention, Article 55 of the Geneva Protocol I Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of International Armed Conflicts 1977 places an obligation on states in warfare to minimise widespread, long-term and severe damage to the natural environment and prohibits the use of weapons and methods of warfare which ‘may be expected to cause’ such damage and thereby to prejudice the health

668

The Regulation of Armed Conflict

and survival of the population. It has been suggested that the deliberate spillage by Iraq of quantities of oil into the Persian Gulf during the 1991 Gulf Conflict contravened these provisions.

15.5.2 Restrictions on methods of warfare

A basic distinction in the law of armed conflict must be drawn between combatants and civilians. Combatants are those under command, having fixed visible and distinctive emblems, carrying arms openly, and observing the laws of war. The basis of the law of armed conflict is that it is the combatants who fight the war, and if they are captured they are entitled to Prisoner of War (POW) status. The civilian, in turn, should be protected from attack. The distinction between combatant and civilian is crucial to the question of legitimate targets: combatant or military targets are legitimate, civilian targets are not. The rule is one of customary international law binding on all states. The problem is then one of establishing what is a military target and what is a civilian target. Clearly some objects can be defined without problem, for example, a tank is a military target, a nursery school is not. However, not all targets can be so clearly distinguished.

An attempt was made at a distinction in the Hague Draft Rules of Aerial Warfare 1923 which were never fully adopted but which are now considered declaratory of customary international law. The Draft Rules prescribed that attacks from the air would only be permitted if directed against a military objective, the total or partial destruction of which presented a ‘distinct military advantage to the attacker’. Article 24 contained a list of targets which were to be classed as military targets:

... military forces, military works, military establishments or depots, factories constituting important and well-known centres engaged in the manufacture of arms, ammunition or distinctively military supplies, lines of communication or transportation used for military purposes.

The Rules provided that compensation was payable for any breach of the prohibition. As can be seen, the list leaves considerable scope for interpretation and raises problems where targets are used for both military and civilian purposes, for example, railways or roads. The problem was further compounded by the fact that the rules were produced in three languages, French, German and English, all of which were equally authentic and valid and none of which said completely the same thing. The German text, for example, makes more clear reference to radio stations and other news media, not expressly included in the English text ‘lines of communication’.

Some writers in the 1930s suggested that a subjective approach should be adopted based on the dominant purpose. Further development of the definition occurred during and immediately after the Second World War. It became more clear that bombing exclusively directed at civilian population is prohibited. Both the UK and the US governments condemned such bombing in December 1939 in the context of German tactics during the Spanish Civil War and at the beginning of World War Two and the Charter of the Nuremberg Tribunal 1946 included such indiscriminate bombing in its definition of war crimes. It has to be noted, however, that UK and US practice, particularly in respect of the

669

Sourcebook on Public International Law

‘carpet’ bombing of Dresden, did not accord with the statements made in 1939. The prohibition on attacks on civilian targets has been re-iterated in a series of UN Resolutions and the most recent example comes from the Iran-Iraq war when Iraqi bombing of civilian areas in Iran drew widespread condemnation and led to an agreement between the two sides to cease military attacks on purely civilian targets.

The present law can be found in the Geneva Protocol I 1977 which is widely considered to represent a codification of customary international law. The Protocol defines military targets as those objects which by their nature, location, purpose or use make effective contribution to military action as well as those whose total or partial destruction, capture or neutralisation in the circumstances at the time, offers a definite military advantage. Article 52 of the Protocol then goes on to outlaw attacks on civilian objects and Article 57 imposes a duty on those planning or deciding upon an attack to take all feasible precautions to verify that the objectives to be attacked are military objectives and to refrain from attack which might cause incidental loss of civilian life which would be excessive in relation to the military advantage gained (the proportionality principle). Part II of the Protocol contains provisions relating to the protection of the sick, wounded and shipwrecked and Article 12 specifically states that medical units shall not be the object of attack. Medical units includes any establishment, military or civilian, which is organised for the search for, collection, transportation, diagnosis or treatment of the wounded, sick or shipwrecked. Such units should be clearly identified by the red cross (lion, star or crescent) emblem. Linked to the protection given to medical units is the obligation on states not to site them close to legitimate military targets. During the Gulf Conflict 1991 there were allegations that Iraq had deliberately sited anti-aircraft batteries close to hospitals in Baghdad. Such deliberate siting and the misuse of the red cross emblem will result in the protection given under the Protocol being withdrawn and constitutes a breach of treaty obligations. Part IV of the Protocol deals with the civilian population and states clearly that civil defence installations, such as air raid shelters, shall be protected. However, Article 65 states that the protection shall cease if they are used to commit acts harmful to the enemy. The chapter goes on to provide that shelters should be identifiable. The internationally recognised symbol for such installations is a blue triangle on an orange background.

The question of legitimate targets was much discussed during the Gulf Conflict specifically in the context of Coalition attacks on bridges that were used for both civilian and military transport and one particular attack on a building that Iraq claimed was an air-raid shelter but which the Coalition forces argued was being used as a military communications headquarters. The discussions confirmed the existence of binding rules regarding legitimate and nonlegitimate targets but showed the immense difficulties encountered in clearly distinguishing between the two in practice. A term which was much used during the war and which has continued to have a high currency is collateral damage. This was used to refer to damage caused to non-legitimate targets during the carrying out of attacks on military targets. Clearly there is a limit to the amount of collateral damage that can be caused before it becomes wholly disproportionate to the military advantage gained.

670

The Regulation of Armed Conflict

In addition to the question of targets of attack, there are four methods of warfare which are specifically prohibited under international law:

•No quarter: this refers to methods of warfare which admit of no limit. An order to leave no survivors and take no prisoners would amount to no quarter and it has long been prohibited by international law. The Geneva Protocol I specifically forbids such orders given in relation to enemy combatants (Article 40);

•Starvation: deliberately subjecting the civilian population to starvation as a means of defeating the enemy. Article 54 of the Geneva Protocol I expressly prohibits the use of starvation as a method of warfare and also prohibits attacks on foodstuffs and other objects and areas indispensable to the survival of the population, for example, drinking water installations. Articles 69 to 71 further provide protection to those engaged in humanitarian relief operations;

•Belligerent reprisals: acts of victimisation or vengeance directed against civilians, POWs or others hors de combat in response to attacks by noncombatants are prohibited by international law.

•Perfidy: international law draws a distinction, which is not always easy to make in practice, between a general level of deception which is an integral part of warfare and the deliberate use of certain specific acts of treachery and ‘impermissible ruses’ such as the improper use of the white flag of surrender, the use of false flags, and such things as disguising missile sites as hospitals.

15.5.3 Humanitarian rules

Humanitarian law in the widest sense concerns the protection of individuals in war or armed conflict. What are discussed here are humanitarian rules in a narrower sense, that is to say, those rules which specifically protect the human person, rather than the general rules concerning means and methods of waging warfare. The majority of these humanitarian rules apply to both international and non-international armed conflicts.

15.5.3.1 Treatment of civilians

Civilians are non-combatants and combatants who are hors de combat. Most of the protection afforded to civilians is based on the system laid down in the Geneva Convention IV 1949 as supplemented by Geneva Protocols I and II of 1977. The Protocols actually state that anyone who is not a combatant is presumed to be a civilian. Article 75 Protocol I includes a catalogue of forbidden practices to which civilians and persons hors de combat must not be subjected:

(a)violence to life, health of physical or mental well-being of persons, in particular:

(i)murder;

(ii)torture of all kinds, whether physical or mental;

(iii)corporal punishment;

(iv)mutilation;

(b)outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;

671

Sourcebook on Public International Law

(c)taking of hostages;

(d)collective punishments;

(e)threats to commit any of the above.

Civilians must not be subjected to any action which causes their physical suffering or their intimidation. Hostages must not be taken and civilians must not be used to protect military targets. These provisions were breached by Iraq during the Gulf Conflict. If civilians are interned they must be given adequate clothes, light and heat and must not be subjected to forced mass transfers. There have been many allegations of breaches of these rules during the conflict in former Yugoslavia.

15.5.3.2 Specially protected groups

Certain categories of persons are afforded specific protection by international law:

Wounded, sick and shipwrecked: the protections given to the wounded, sick and shipwrecked apply to both civilians and combatants. They must all be treated humanely and not subjected to murder, torture, or any biological experiments. There is an obligation on captors to search for and collect enemy wounded, sick and shipwrecked and to give them adequate care.

Women: special protection is given to women under Geneva Convention IV which prescribes that they must not be subjected to attacks on their honour, enforced prostitution, rape or any form of indecent assault. Further protection is given to pregnant women and those with new-born babies.

Children under 15: Geneva Convention IV imposes an obligation on belligerents to ensure the safety of those under 15 who have been orphaned or separated from their parents as a result of war.

Journalists: war correspondents receive some protection under Geneva Convention III in that they are to be accorded POW status if captured. They are given further protection under Geneva Protocol I Article 79.

Civil defence, medical and religious personnel: individuals falling within these categories are given extra protection under the Geneva Conventions and Protocols in that they must be allowed to carry on their work and medical personnel must not be made POWs.

Prisoners of war (POWs): there was early agreement on rudimentary protection of POWs in the Geneva Convention 1864. The essence of the obligations as far as POWs are concerned is that detaining them is not a sanction or punishment but is purely a precautionary measure. There is an overriding duty to treat POWs humanely. Those who can be accorded POW status are listed in Article 4 of the Geneva Convention III and Protocol I but there is still some doubt as to the ambit of protection. There is dispute about the status of those who commit war crimes prior to capture, and the exact status of guerrilla forces is unclear.

As has already been mentioned, POWs must be treated humanely. More specifically, POWs cannot be subjected to summary execution, medical experiments, torture, or interrogation. Article 17 of the Geneva Convention III provides that POWs are only required to give their name, rank and number. POWs are to be given adequate food, clothing and health care and adequate

672

The Regulation of Armed Conflict

hygiene standards must be observed. Escapees may be disciplined within the limits imposed by Article 89. Non-officers may be compelled to undertake work of a type authorised by the Convention. POWs are allowed to receive and send up to two letters and four postcards per month. At the end of hostilities all POWs must be repatriated and those who are seriously wounded should be repatriated during hostilities.

15.6 Responsibility and enforcement

Violations of the laws of armed conflict involve state responsibility (discussed in Chapter 9) and the duty to make reparation. Yet as the International Military Tribunal at Nuremberg stated:

Crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

The problem for international law has therefore been to identify the individuals responsible for breaches of the laws of armed conflict and to ensure that they are effectively punished. The issue of enforcement has often shown up weaknesses in international law. Partly this has been because of the procedural difficulties encountered in bringing to trial those responsible for breaches but more particularly it is because the enforcement of the law has usually been seen as little more than the application of the principle of vae victis: it only ever appears to be members of the defeated side who bear responsibility for breaches of the law. The legitimacy of war criminal trials is always adversely effected by the fact that the tribunal itself is seen as having a major interest in the result since generally it is made up of representatives of the victorious states. The alternative is for trials to take place within the municipal courts of the defendant’s state. The drawback with this option is that the defendant’s state often has little interest in pursuing the trial with any real conviction.

One aspect of individual responsibility that was established at Nuremberg that should be noted is that the fact that an individual was acting pursuant to the orders of his or her government or of a superior does not automatically absolve him or her from responsibility. It may only be considered in mitigation of punishment. This seemed to confirm a view that had been held for some time that ‘superior orders’ does not constitute a defence to breaches of the laws of armed conflict. The one exception to this is where it can be shown that the subordinate individual could not reasonably have been expected to be aware of the illegality of the superior orders given. Of course, in such a situation, the individual giving the order will bear responsibility for the action carried out.

Following the end of the First World War the Allied Commission upon the Responsibility of the Authors of the War and on the Enforcement of Penalties prepared a list of 896 alleged war criminals, including the German Kaiser Wilhelm II, and the intention was to try the leading members before an international tribunal. However, difficulties in actually bringing any of the principal defendants to trial and criticism that the whole process was motivated by a spirit of vindictiveness led to the proposal’s failure. In 1920 an Advisory Commission of Jurists investigated the possibilities of establishing an international criminal court with powers to try crimes constituting a breach of

673

Sourcebook on Public International Law

international public order or against the universal law of nations. The League of Nations rejected the proposal on the grounds that there was not sufficient agreement among nations on the content of an international penal code.

The events of World War Two led to repeated demands for the trial of those responsible for war crimes and crimes against peace. By 1943 there were discussions among the Allies as to what to do with the leaders of the Axis powers at the end of the war. The American Secretary of State proposed that they should be hanged after a summary trial or court martial. But Churchill, Roosevelt and Eden favoured an international trial. Subsequent discussion led to the London Conference in August 1945 at which basic agreement was reached on a trial of German leaders by an international military tribunal. There remained considerable differences of opinion, not least because of different conceptions of criminal justice between those used to an Anglo-American system and those used to the Continental system. The Charter of the International Military Tribunal 1945 that was agreed by the USA, UK, USSR and France therefore represents a considerable compromise. The Charter established the International Military Tribunal although it was not a truly international tribunal since the four allies were acting in the capacity of occupying powers in place of the dissolved Nazi regime in Germany. There have therefore been arguments that the Tribunal operated in some way as a municipal court under the authority of the national government of occupation. This would deal with the difficulty posed by the fact that, certainly at the time, individuals could not be considered the subjects of international law and could therefore not come within the jurisdiction of true international tribunals. Article 6 of the Charter gave the Tribunal jurisdiction over three types of offence:

•Crimes against peace: planning, preparation, initiation, or waging a war of aggression, or a war in violation of international treaties, or conspiracy to commit the foregoing;

•War crimes: violations of the laws or customs of war including murder, illtreatment of civilian population, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

•Crimes against humanity: namely murder, extermination, enslavement, deportation or other inhumane acts committed against any civilian population before or during a war and genocide whether or not in violation of the domestic law of the country where perpetrated.

The Tribunal began its proceedings in November 1945. A similar charter was agreed with respect to Japanese War Criminals and an International Military Tribunal for the Far East sat in Tokyo. The judgment of the Nuremberg Tribunal in 1946 and of the Tokyo Tribunal in 1948 affirmed the principle of direct individual responsibility in international law.

The ILC subsequently drew up a Draft Code of Principles Recognised in the Tribunal’s judgment which was the start of attempts to establish an international criminal law. The code reiterated the principle of individual responsibility which is repeated in the Genocide Convention.

The definition of war crimes has implications for the individual jurisdiction of states and may involve application of the universality principle (discussed at

674

The Regulation of Armed Conflict

7.7). A number of serious violations of the laws of armed conflict were identified in the Charter of the International Military Tribunal as constituting war crimes but the list contained in Article 6 was not intended to be exhaustive. The Geneva Conventions 1949 referred to certain ‘grave breaches’ of the provisions of the conventions which would constitute war crimes and imposed a duty on states ‘to provide effective penal sanctions for persons committing or ordering to be committed, any grave breaches of the Convention’. Every state party to the conventions was further obliged to search for offenders and to bring them, irrespective of their nationality, to trial before its municipal courts or to hand them over for trial in the courts of another contracting party. The definition of grave breaches is further extended in Protocol I which repeats the obligation on states to bring offenders to trial but in addition places an obligation on states to take ‘all measures necessary’ for the suppression of all acts contrary to the conventions and protocols other than grave breaches. Protocol I also provides for the establishment of an International Fact-Finding Commission to investigate grave breaches of the Conventions or the Protocol.

CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE 1948

[Signed on 11 December 1948 – entered into force 12 January 1951]

The Contracting Parties,

Having considered the declaration made by the General Assembly of the United Nations in its Resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilised world,

Recognising that at all periods of history genocide has inflicted great losses on humanity, and

Being convinced that, in order to liberate mankind form such an odious scourge, international co-operation is required,

Hereby agreed as hereinafter provided:

Article I

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

Article II

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or part, a national, ethnical, racial or religious group, as such:

(a)killing members of the group;

(b)causing serious bodily or mental harm to members of the groups;

(c)deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

675

Sourcebook on Public International Law

(d)imposing measures intended to prevent births within the group;

(e)forcibly transferring children of the group to another group.

Article III

The following acts shall be punishable:

(a)genocide;

(b)conspiracy to commit genocide;

(c)direct and public incitement to commit genocide;

(d)attempt to commit genocide;

(e)complicity in genocide.

Article IV

Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

Article V

The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in Article III.

Article VI

Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the state in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

Article VII

Genocide and the other acts enumerated in Article III shall not be considered as political crimes for the purposes of extradition.

The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.

Article VIII

Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III.

Article IX

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a state for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Article X

The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of 9 December 1948.

Article XI

The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any non-member state to which an invitation to sign has been addressed by the General Assembly.

676

The Regulation of Armed Conflict

The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary General of the United Nations.

After 1 January 1950 the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member state which has received an invitation as aforesaid.

Instruments of accession shall be deposited with the Secretary General of the United Nations.

Article XII

Any Contracting Party may at any time, by notification addressed to the Secretary General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.

Article XIII

On the day when the first twenty instruments of ratification or accession have been deposited, the Secretary General shall draw up a proces-verbal and transmit a copy thereof to each member of the United Nations and to each of the nonmember states contemplated in Article XI.

The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession.

Any ratification or accession effected subsequent to the latter date shall become effective on the ninetieth day following the deposit of the instrument of ratification or accession.

Article XIV

The present Convention shall remain in effect for a period of ten years as from the date of its coming into force.

It shall thereafter remain in force for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiry of the current period.

Denunciation shall be effected by a written notification addressed to the Secretary General of the United Nations.

Article XV

If, as a result of denunciations, the number of Parties to the present Convention should become less than 16, the Convention shall cease to be in force as from the date on which the last of these denunciations shall become effective.

Article XVI

A request for the revision of the present Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary General.

The General Assembly shall decided upon the steps, if any, to be taken in respect of such a request.

Article XVII

The Secretary General of the United Nations shall notify all Members of the United Nations and the non-member states contemplated in Article XI of the following:

(a)signatures, ratifications and accessions received in accordance with Article XI;

(b)notifications received in accordance with Article XII;

677

Sourcebook on Public International Law

(c)the date upon which the present Convention comes into force in accordance with Article XIII;

(d)denunciations received in accordance with Article XIV;

(e)the abrogation of the Convention in accordance with Article XV;

(f)notifications received in accordance with Article XVI.

Article XVIII

The original of the present Convention shall be deposited in the archives of the United Nations.

A certified copy of the Convention shall be transmitted to each Member of the United Nations and to each of the non-member states contemplated in Article XI.

Article XIX

The present Convention shall be registered by the Secretary General of the United Nations on the date of its coming into force.

678