0521806976 cambridge university press international human rights and humanitarian law apr 2002

How do international human rights and humanitarian law protectvulnerable individuals in times of peace and of war?. This study will beof interest to academics and graduate students in in

How do international human rights and humanitarian law protectvulnerable individuals in times of peace and of war? Ren ´e Provostanalyses systemic similarities and differences in the construction ofeach body of law, showing how they achieve a similar goal Bydetailing the dynamics of human rights and humanitarian law,Provost reveals how each performs a task for which it is better suitedthan the other, and that the fundamentals of both fields remainpartly incompatible This helps us understand why their normssucceed in some ways and fail, at times spectacularly, in others.Provost’s study represents innovative and in-depth research,covering all relevant materials from the UN, ICTY, ICTR, and regionalorganisations in Europe, Africa and Latin America This study will be

of interest to academics and graduate students in international lawand international relations, as well as to legal practitioners in relatedfields, and NGOs active in human rights

r e n ´e p r o v o s t is Associate Professor at the Faculty of Law and theInstitute of Comparative Law, McGill University He has published

in the British Yearbook of International Law, the Columbia Journal of Transnational Law and the University of Miami Inter-American Law Review.

This series (established in 1946 by Professors Gutteridge, Hersch Lauterpacht and McNair) is a forum of studies of high quality in the fields of public and private international law and comparative law Although these are distinct legal subdisciplines, developments since 1946 confirm their interrelationship Comparative law is increasingly used as a tool in the making of law at national, regional and international levels Private international law is increasingly affected by international conventions, and the issues faced by classical conflicts rules are increasingly dealt with by substantive

harmonisation of law under international auspices Mixed international arbitrations, especially those involving state economic activity, raise mixed questions of public and private international law In many fields (such as the protection of human rights and democratic standards, investment guarantees and international criminal law) international and national systems interact National constitutional arrangements relating to ‘foreign affairs’, and to the implementation of international norms, are a focus of attention.

Professor Sir Robert Jennings edited the series from 1981 Following his retirement as General Editor, an editorial board has been created and Cambridge University Press has recommitted itself to the series, affirming its broad scope.

The Board welcomes works of a theoretical or interdisciplinary character, and those focusing on new approaches to international or comparative law or conflicts of law Studies of particular institutions or problems are equally welcome, as are translations of the best work published in other languages General Editors: Professor James Crawford SC FBA

Whewell Professor of International Law, Faculty of Law and Director, Lauterpacht Research Centre for International Law, University of Cambridge

Professor John S Bell FBA Professor of Law, Faculty of Law,

University of Cambridge

Editorial Board: Professor Hilary Charlesworth, University of Adelaide

Professor Lori Damrosch, Columbia University Law School Professor John Dugard, Universiteit Leiden

Professor Mary-Ann Glendon, Harvard Law School Professor Christopher Greenwood, London School of

Economics

Professor David Johnston, University of Edinburgh Professor Heinz K ¨otz, Max-Planck-Institut, Hamburg Professor Donald McRae, University of Ottawa Professor Onuma Yasuaki, University of Tokyo Professor Reinhard Zimmermann, Universit¨at Regensburg

Advisory Committee: Professor Sir D W Bowett QC

Judge Rosalyn Higgins QC Professor Sir Robert Jennings QC Professor J A Jolowicz QC Professor Sir Elihu Lauterpacht QC Professor Kurt Lipstein QC Judge Stephen Schwebel

A list of books in the series can be found at the end of this volume

Humanitarian Law

Ren ´e Provost

The Pitt Building, Trumpington Street, Cambridge, United Kingdom

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pour tout

Acknowledgments pagex

Table of other international instruments xxxiv

Individual responsibility: the rule tu quoque 227

PART III Application: law and facts

Humanitarian law of armed conflict 247

Non-international armed conflicts under Protocol II 260Internal armed conflicts under common Article 3 264

State of emergency under human rights law 269

7 Legal effect of characterisation 277

Political organs of intergovernmental organisations 296

Over the course of writing a book, one accumulates many more debtsthan can be acknowledged in a few lines I am grateful to Ian Brownlie,who gave me constant support and advice throughout the course ofthis project, even after I had left Oxford My thanks go to Louis Henkin

at Columbia Law School, with whom I had my first discussions to ticulate the topic of this work David Daube and Stefan Riesenfeld at

ar-UC Berkeley provided, in very different ways, inspiring models of whatacademic pursuit should be about Christine Gray, Benedict Kingsbury,James Crawford and Stephen Toope gave me helpful comments and ad-vice at various stages

St Antony’s College proved a very warm and hospitable place to spend

my time in Oxford, for which I am thankful to the Warden, Fellows andstaff The Faculty of Law of McGill University provided, and continues toprovide, a collegial, friendly and stimulating environment I am indebted

to the staff of the Bodleian Law Library and the McGill Law Library foraccommodating my frequent requests for esoteric books and articles

I am also grateful for the financial support provided by a number ofsources, including the Fonds pour la formation de chercheurs et l’aide

`a la recherche du Qu ´ebec, the Centennial Scholarship Fund, the IODEWar Memorial Scholarships Fund and the Boulton Trust Fund of McGillUniversity

With Amanda Dickins, Fabien G ´elinas, Carolina Labarta, DavidLametti, Susan Law, Hans Meier, David N’dii, Peter Oliver, Sophie ProbertOliver, Diarmuid Rossa Phelan, Nandini Ramanujam, Genevi`eve Saumier,Stephen Smith and Robert Wintemute, I shared much food, wine,whisky, movies, sports, outings and so many other things essential tothe production of a work such as this one J’ai d ´edi ´e ce livre `a mes

x

parents, Jean et Denyse, pour tout ce que j’ai appris et continued’apprendre d’eux Finally my greatest debt is owed to Shauna, with-out whom nothing would have been possible et pour Daniel Sol et

Micah, pour qui rien n’est impossible

Abella v Argentina (‘La Tablada’case) page 157, 199, 333–5

Admission of a State to the United Nations

Barcelona Traction case 124, 134, 145, 204

Civil War Claimants Assoc Ltd v R 47

Coard v United States 20, 335

Commission nationale des droits de l’homme v Chad 61, 269Compulsory Membership (Advisory Opinion) 61

xii

Corfu Channel case 197

Cyprus v Turkey (1975) 19, 20, 21, 285, 333–4

Denmark, Norway, Sweden and the Netherlands v Greece 206

Disabled Peoples International v US 199Diversion of Water from the Meuse case 163

Doe v Islamic Salvation Front 47, 97

Effect of Reservations (Advisory Opinion) 135Enforceability of the Right to Reply or Correction

Filartiga v Pe˜na-Irala 44, 63

France v Alois and Anna Bommer 84

Genocide Convention Application case (Provisional Measures) 310–12Genocide Convention Application case

(Preliminary Objections) 69, 124, 205, 324Genocide Convention Application case (Counterclaims Order) 171, 235

Herrera Rubio v Colombia 61

Interhandel case (Preliminary Objections) 140

International Military Tribunal (Nuremberg) 57, 81, 82, 83, 105, 107,

174, 230, 232, 234, 235, 281–2International Military Tribunal for the Far East (Tokyo) 105, 153Interpretation of the American Declaration (Advisory Opinion) 65

Kommunistische Partei Deutschland v FRG 153

Krofan v Public Prosecutor 36

‘Lawless’case 242, 273, 285–6, 287–8, 316Lockerbie Case (Provisional Measures) 310–12Lockerbie case (Admissibility) 310–12

Loizidou v Turkey (Preliminary Objections) 19, 20

Loizidou v Turkey (Merits) 19

Lubicon Lake Band v Canada 42Mavrommatis Palestine Concession case ( Jurisdiction) 17, 203

Military and Paramilitary Activities in and Against

Nicaragua (Admissibility) 312Military and Paramilitary Activities in and Against

Norway v Flesch 84

Nuclear Weapons (Advisory Opinion) 5, 147, 149, 155, 184,

193, 196, 199, 200, 275, 333

Nulyarimma v Thompson 108, 115

‘Other Treaties’(Advisory Opinion) 65

Paniagua Morales v Guatemala 114

Paul Burghoff (In re) 227, 235

Peter P ´azm ´any University v Czechoslovakia 16

Prosecutor v Aleksovski ( Judgment) 101

Prosecutor v Aleksovski (Appeals Judgment) 39, 92, 229

Prosecutor v Blaski´c 39, 41, 71, 92, 94, 101, 327

Prosecutor v Delali´c et al (the ‘Celebici’case) ( Judgment) 39, 101, 250

Prosecutor v Delali´c et al (the ‘Celebici’case)

(Appeals Judgment) 39, 92, 106, 111, 149, 192, 200, 229, 241, 313

Prosecutor v Erdemovi´c (Sentencing Judgment) 104, 105, 108

Prosecutor v Erdemovi´c (Appeals Judgment) 85, 108

Prosecutor v Furundˇzija 63, 109, 222, 241

Prosecutor v Kayishema and Ruzindana 71, 88, 100, 283

Prosecutor v Kordi´c ( Judgment) 71, 92, 241, 253

Prosecutor v Kordi´c and Cerkes (‘Lasva Valley’case) (Decision

on the Joint Defence Motion to Dismiss the Amended

Indictment for Lack of Jurisdiction Based on the Limited

Jurisdictional Reach of Articles 2 and 3) 96

Prosecutor v Kupreski´c (‘Lasva Valley’case) (Decision on

Defence Motion to Summon Witness) 139, 235

Prosecutor v Kupreski´c (‘Lasva Valley’case) (Decision on

Evidence of the Good Character of the Accused and the

Prosecutor v Kupreski´c (‘Lasva Valley’case) ( Judgment) 71, 72, 140,

R v Bow Street Metropolitan Stipendiary Magistrate,

ex parte Pinochet (No 3) 68, 107, 109

Reparations for Injuries (Advisory Opinion) 203, 283Reservations to the Genocide Convention

(Advisory Opinion) 69, 107, 133, 140Restrictions to the Death Penalty (Advisory Opinion) 141, 142

Roach and Pinkerton v US 65

US v Klein (Hadamar trial) 85, 99

US v Krauch (IG Farben trial) 87, 251

US v List (Hostages trial) 175, 197

US v Ohlendorf (Einsatzgruppen trial) 88, 185, 192

US v Schosser, Goldbrunner and Wilm 86

US v von Leeb (High Command trial) 197, 229, 232, 233

US v Weizsaecker (Ministries trial) 251

US Diplomatic and Consular Staff in Teheran case 73, 123, 219Vel ´asquez-Rodr´ıguez case (1988) 60, 61, 113, 345Western Sahara (Advisory Opinion) 55

X and Y v Netherlands 61, 115Young, James and Webster case 61

Bold type indicates that the article is reproduced in whole or in part

(Geneva) Convention for the Amelioration of the Condition

of the Wounded and Sick in Armies in the Field 249

1907

Hague Conventions 50, 146, 172, 249, 250Hague Convention (IV) Respecting the Laws and Customs

Hague Convention (VI) Relating to the Status of Enemy

Merchant Ships at the Outbreak of Hostilities 147Hague Convention (IX) Concerning Bombardment by

Naval Forces in Times of War

Treaty for the Limitation and Reduction of Naval Armament

Art 2(3) 137, 154, 155, 156, 178, 179

Convention for the Protection of Human Rights and

Fundamental Freedoms (European Convention on

Human Rights) (as amended) 272, 288

ILO Convention (No 103) on Maternity Protection 215

1954

Convention for the Protection of Cultural Property in the Event

of Armed Conflict (Hague Convention on Cultural Property) 146

Supplementary Convention on the Abolition of Slavery, the

Slave Trade, and Similar Institutions and Practices Similar

Optional Protocol to the International Covenant on Civil

Convention on the Prohibition of Military or Any Other Hostile

Use of Environmental Modification Techniques

1977

Additional Protocols to the Geneva Conventions of 12 August

1949 4, 5, 6, 33, 146, 148, 155, 280, 281, 282, 283, 296, 309Protocol I 94, 115, 162, 173, 179, 195, 200, 201, 252, 255,

257, 259, 297, 303, 306–7, 325, 348Art 1 55, 137, 138, 157, 175, 250Art 1(4) 7, 55, 94, 155, 159, 250, 252,254, 256,

Art 91 45, 48, 75, 92, 103

Art 96(2) 153, 154, 156, 178, 179Art 96(3) 94, 154, 155, 178,254, 256, 257, 258,

Convention on the Elimination of All Forms of Discrimination

Against Women (CEDAW)

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 (Conventional Weapons

Convention Against Torture and Other Cruel, Inhuman

or Degarding Treatment or Punishment 68, 109, 141

International Convention on the Protection of the Rights of All

Migrant Workers and their Families 215

Bold type indicates that the article is reproduced in whole or in part

UN General Assembly Resolutions

1946 95(I) Principles of International Law Recognised

in the Charter of the N ¨urnberg Tribunal and

in the Judgment of the Tribunal page 63, 83

2625 Declaration on Principles of International

(XXV) Law Concerning Friendly Relations and

Co-operation Among States in Accordancewith the Charter of the United Nations 255 6

xxxiv

2652 Situation in Southern Rhodesia

Principles of International Cooperation

in the Detection, Arrest, Extradition, andPunishment of Persons Guilty of WarCrimes and Crimes Against Humanity 1113103

1975 3379 Situation in Israel

1985 40/144 UN Declaration on the Human Rights

of Individuals who are not Nationals

of the State in Which They Live 25, 130, 203

UN Security Council Resolutions

827 Adopting the Statute of the ICTY 53, 70, 82, 84

(ICTY Statute Articles)

1994 904 Situation in Israel 300

955 Adopting the Statute of the International

Criminal Tribunal for Rwanda 70, 82, 84, 330, 349(ICTR Statute Articles)

1900 Institut de droit international resolution page 292

1934 Institut de droit international resolution

1968 Resolution XXIII – ‘Respect for Human

Rights in Armed Conflict’– Resolution of

the International Conference on Human

‘Respect and Enforcement of Human Rights

in the Occupied Territories’– Resolution

of the International Conference on Human

1979 OAS General Assembly Resolution 447

(Statute of the Inter-American Commission

on Human Rights)

1983 ASEAN Declaration of the Basic Duties of

Human Rights Commission Resolution

1984 Human Rights Commission Resolution

1985 Human Rights Commission Resolution

1989 Institut de droit international ‘Resolution

on the Protection of Human Rights and the

Principle of Non-Intervention in Internal

Affairs of the State’

OAS General Assembly Resolution 1043

1991 International Law Commission Draft Code

of Crimes against the Peace and Security of

1996 International Law Commission Draft

Articles on State Responsibility

International Law Commission Draft

Code of Crimes against the Peace and

1998/67 301

1999 Institut de droit international, ‘Resolution

on the Application of International

Humanitarian Law and Fundamental

Human Rights in Armed Conflicts

in which Non-State Entites Are Parties’112, 211

Preparatory Commission for the

International Criminal Court

‘Elements of Crimes’71, 84, 89, 102Preparatory Commission for the

International Criminal Court ‘Roles of

2001 International Law Commission Articles on

State Responsibility