Commentary: Rudolph Dolzer

• Author: Rudolph Dolzer
• Pages: 353

As I agree with most points made by Professor Stein and Judge Pocar, I shall limit my comments to two points. The first one concerns the methodology and sources of international humanitarian law in general. The second one relates more specifically to the evolving diversity of goals and functions of humanitarian law and the necessity to understand and apply the existing rules in the current policy context.

The first point on the sources of humanitarian law starts out from the basic premise that no special rules exist, or should be recognized, in this area which would in principle depart in any way from those recognized for public international law in general. In other words, the canon of principles laid down in Article 38 of the Statute of the International Court of Justice will apply to humanitarian law as well. The jurisprudence of the ICJ has been consistent with this postulate. As to the relationship between treaty law and customary law in particular, the rulings in the North Sea Continental Shelf case,1 the Nicaragua case2 and the Nuclear Weapons advisory opinion3 do not point to any divergence in the Court's approach between humanitarian law and other areas of public international law. The nuances of these three decisions may not be always identical. It has been noticed rightly that the North Sea Continental Shelf decision, for instance, seems to require a more comprehensive and detailed examination of State practice than the Nicaragua decision. All three 1. North Sea Continental Shelf (F.R.G. v. Den., F.R.G. v. Neth.), 1969 I.C.J. 3 (Feb. 20).

2. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (une 27) [hereinafter Nicaragua case].

3. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 I.C.J. 78 (July 8).

   decisions converge inasmuch as they are based on the same view that 'it should not lightly be assumed that treaty law evolves into customary law.'4

   Widespread practice and corresponding opinio iuris will be required for the formation of customary law, with or without parallel treaty law. This maxim has to be adapted to the circumstances of the context in regard to the number and characteristics of relevant States, and the practice of the major States will have to be given considerable weight.

   At the same time, it is appropriate to assume that the rules on the persistent objector will also be operative in the context of humanitarian law. While we all agree that the strengthening and expansion of the rules protecting the victims and the innocents deserve our support, it is also clear that behind these rules lie carefully balanced compromises which take into account the nature of warfare. Against this background, it should not be generally presumed that States are inclined to interpret those rules in favoram humanitatem at the cost of their freedom in the means and methods of warfare.

   Special issues may arise in those areas of customary law and treaty law which are frequently disregarded in State practice. In such a setting it will be necessary to examine carefully to the extent possible whether States assume that the relevant rule is valid in principle, and point to special justifications for their departure from the rule, or clarify whether it must be concluded that States do not consider themselves to be bound in general. Of course, the first alternative describes the setting of considerable State practice regarding the prohibition of the use of force. Many governments...