International Humanitarian Law was supposed to inject much needed morality into the element of war. But, on the evidence of matters, IHL has so far failed in this quest. Why? Some blame the text in IHL instruments, some the lack of goodwill in implementing otherwise decent laws, and yet others the insensitivity of humanitarian law to emerging realities.
But who is right?
The IHL regime is complex, hazy and no doubt backward in light of everyday innovation. However, erroneous interpretation and application of IHL as it is presents a far greater stumbling block in the clamour for moral warfare than textual problems and backwardness ever would. Indeed, as long as legislation follows innovation, IHL many never be entirely free from these shackles. The morality IHL seeks can only be achieved pursuing a natural approach in its application, and not the liberalism that has defined it so far. Morality cannot be legislated, but we can read it into law and coerce its application even in the absence of good faith.
What it lacks in adaptation, IHL makes up for in the insurance of the blanket principles of proportionality, humanity, non-distinction and moderation. As far as dumb weapons go, it’s more specific. Article 22 of the 4th Hague Convention is instructive that the right of belligerents to adopt means of injuring the enemy is not unlimited. It forbids the use of poisons, the employment of treachery to kill and wound, the killing and wounding of surrendered persons, the employment of weapons calculated to cause unnecessary suffering and destruction or seizure of enemy property unless such destruction or seizure be imperatively demanded by the necessity of war. Art. 25 bans the destruction of undefended areas, 27 the destruction of religious, heritage and charitable centres as well as anything not being used for the purposes of war, while Art. 26 demands prior warning.
The Geneva Conventions and their optional protocols are more relevant. The 1993 Chemical Weapons Convention prohibits production, stockpiling and use of chemical weapons even in retaliation. The 1980 Certain Conventional Weapons Convention restricts the use of certain weapons deemed to cause unnecessary suffering as to be indiscriminate. Protocol 1 bans the deployment of non-detectable fragments; Protocol 2, booby traps, etc.; Protocol 4 laser weapons; Protocol 5 explosive remnants of war.
A State is required to declare its consent to be bound by the Convention on Certain Conventional Weapons as well as at least 2 of the optional protocols, according to its national procedures. Each protocol must be separately signed.
Ladies and gentlemen, that is the law – humane, articulate but largely optional. And though those who deploy them deny it, courts tribunals and leading commentators accept that drones, land mines and cluster munitions, cluster bombs, chemical and biological weapons, like mustard gas, novichok agents, nerve as well as blister agents and suitcase nukes, which have claimed close to 750,000 deaths as a result of radiation, defy the humane principles of the law of armed conflict. Where States recuse themselves, this defiance is actually legal, where they do not and action has to be taken, reliance on State good will and emphasis on sovereignty means that IHL’s morality cannot be enforced!
Humanity already exists in normative humanitarian text, but with little effect considering the liberal basis of IHL. If a solution is to be found, IHL must take a bold step away from this optional and consensus-based approach towards a mandatory application in the justicability of jus cogens – another of the cures already existing within the IHL framework. Humanitarian law norms should be treated as norms of jus cogens and not optional pursuits.
Unfortunately, it remains unclear what the content of jus cogens is. International jurisprudence remains deceptively shallow, with courts and tribunals wary of breaking away from the traditional principle of mutual flexibility between sources of international law. To find out its content Prof Cherif Bassiouni suggests we assess crimes on the impact they have on the general interests of the world community, particularly peace and security.
What is jus cogens for him is a natural law ideal that can be deciphered from a consideration of opinion juris, the preambles of treaties and progressive constitutions, the wide ratification of concerned treaties, the limited jurisprudence available, including ad hoc international investigations, and prosecution of perpetrators. He settles on humanity as the most important non-derogable norm.
There is little doubt that humanity is a non-derogable norm, as courts, in the few times they address themselves on this matter, acknowledge. The bone of contention is whether the binding nature of non-derogable norms trumps immunity rules. Quoting the good professor, “whether jus cogens places obligations erg a omnes on States or merely gives them certain rights to proceed against perpetrators of such crimes…whether obligation erga omnes carries with it the full implications of the latin word obligatio, or whether it is denatured in international law to signify only the existence of a right rather than a binding legal obligation.”
Courts accept jus cogens; they are only afraid of the diplomatic crisis drawing mechanical conclusions from its superiority would cause. If I may cite a few examples:
In shutting the door to any human rights exceptions to the Foreign Sovereign Immunities Act, the Supreme Court of the USA was of the opinion that however monstrous such an abuse may be, a foreign state’s exercise of power of its police has long been understood as sovereign in nature.
In Samantar vs. Yousuf where some Somali citizens were seeking damages from Ali Samantar, a former Minister of Defence and Vice President of the Republic of Somalia alleging torture, wrongful detention, rape and killings they suffered at his hand in the 18’s, the Supreme Court dismissed their claims holding that the US Foreign Sovereign Immunities Act of 1976 did not apply to immunity claims of individual foreign officials.
Sovereignty is also favoured in the Pinochet, Ferrini, Distomo Massacre and the Al Adsani cases. In Al Adsani, it was the majority position that there would be no firm basis for concluding that, as a matter in International Law, a foreign state is deprived of the immunity it enjoys under International Law before the domestic courts of another state where it is accused of human rights violations – which decision further limits the already frail justicability of International Humanitarian Law.
Most curious perhaps is how the US even came out to say that IHL does not cover individuals under a contracting party’s jurisdiction but outside its territory; that the UN Convention against torture does not apply to armed conflict, which really means her war “on terror”.
What these do is reduce IHL norms to the level of utopian aspirations, which may only be pursued by willing states. Humanity, the underlying principle of IHL, becomes an option not a mandate, which has the spiral effect of negating the bulk of International Human Rights law.
Yet, there could be hope after all if the opinions of lead scholars and dissenting judges in the cases already mentioned are anything to by. A case in point is the early position adopted by Alfred Von Verdoss when he writes:
“A treaty binding a State to reduce its police or its organisation of courts in such a way that it is no longer able to protect at all in an adequate manner the life, the honour and the property of men on its territory ought to be forbidden in International Law…
Judges must be innovative
And Louis Henkin agrees when he places human rights above public goods, and then warns against their limitation on less than proportionate grounds.
In his dissenting opinion in the South West African case Justice Tanaka too upholds this natural view, observing that if the International Law Commission could introduce jus cogens into International Law, then surely International Humanitarian Law belongs to jus cogens as well. The position of Humanity as a non-derogable norm in International Human Rights Law has never been in doubt, and neither has the mandatory application of treaties that pronounce it, such as the UN Charter and the Vienna Convention on the Law of Treaties.
As a panacea, IHL should consider formally declaring itself a non-derogable norm. By this, IHL instruments would enjoy the superiority envisaged under Art. 103 of the Charter of the Unit 2ed Nations: it declares obligations under the charter superior to obligations arising out of any other international agreement.