Rules of Conduct During Humanitarian Intervention

• Author: Ivan Shearer
• Pages: 71

T he Russian Orthodox Church recently canonized the last Czar of Russia, Nicholas II. A fantasy of mine is that the Church will at some point also consider for sainthood (assuming his private life met appropriate standards) the czar's legal adviser, Baron Feodor de Martens, who was responsible for the wording of what has come down to us as the 'Martens Clause.' As it first appeared in the Preamble to the Second Hague Convention of 1899, the Martens Clause reads:

Until a more complete code of the laws of war is issued, the high contracting parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.1

In common articles of the 1949 Geneva Conventions, the Martens Clause is substantially repeated, with the substitution of the word 'dictates' 1. Preamble, Convention (II) with Respect to the Laws and Customs of War on Land, July 29, 1899, U.S.T.S. 403, 32 Stat. 1803, 1 Bevans 247.

for 'requirements' in relation to the public conscience.2 The Clause also appears in the 1977 Additional Protocols to the Geneva Conventions.3

The Martens Clause is a powerful reminder that in situations of armed conflict, of whatever kind, there is never a total gap in the law, never a situation in which there cannot be an appeal to law in order to mitigate the horror and the suffering. Baron de Martens correctly foresaw in 1899, and again in 1907, that unscrupulous commanders and their cunning legal advisers might seek to exploit loopholes or ambiguities in the written law. An egregious example is the 'general participation clause' of the Hague Conventions of 1907, according to which the provisions of the Conventions did not apply to any of the belligerents unless all of them were parties to the Conventions. Thus, the detailed Hague Regulations might not apply but, according to the Martens Clause, standards of civilized behavior deriving from custom, humanity and the public conscience do.

2. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, Article 63, 6 U.S.T. 3114, 75 U.N.T.S. 31,

   DOCUMENTS ON THE LAWS OF WAR 197 (Adam Roberts & Richard Guelff eds., 3d ed., 2000) [hereinafter Geneva I]; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, Article 142, 6 U.S.T. 3217, 75 U.N.T.S. 85, id. at 222 [hereinafter Geneva II]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Article 142, 6 U.S.T. 3316, 75

   U.N.T.S. 135, id. at 244 [hereinafter Geneva III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Article 158, 6 U.S.T. 3516, 75

   U.N.T.S. 287, id. at 301 [hereinafter Geneva IV].

3. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Conflicts, Jun. 8, 1977, Article 1(2), 1125 U.N.T.S. 3, id.

   at 422 [hereinafter Protocol I]. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 12, 1977, Preamble, 1125 U.N.T.S. 609, id. at 483 [hereinafter Protocol II].

   I take this as my starting point in the discussion of the jus in bello in relation to humanitarian intervention operations.4 Whatever may be the uncertainties in the identification and application of this law to a relatively new form of armed conflict, at least we can be confident that we start from a firm, albeit general, basis in humanitarian law. That basis is indeed becoming more detailed in content as consensus emerges that certain principles and rules of the jus in bello have achieved recognized status in customary law. Note should be taken in this regard of ongoing discussions in Geneva to identify those parts of Protocol I that may be regarded as customary, notwithstanding the inability of certain States to ratify the Protocol by reason of particular objections.5

   The other firm foundation for my approach is that the application of the jus in bello is not dependent upon the demonstration of a legal basis for the resort to armed force in the jus ad bellum. The law of armed conflict (which term I regard as including international humanitarian law) applies its protection equally to the just and the unjust sides to a conflict. This is an established and undoubted proposition.

   What is 'Intervention'? We may consider first a number of actions that constitute (for the most part) non-forcible and thus uncontroversial forms of intervention. These are sometimes listed under the heading 'Military Operations Other than War' (MOOTW) and include disaster relief, humanitarian assistance, peace 4. Some recent literature on the topic includes: Hilaire McCoubrey and Nigel White, THE BLUE HELMETS: LEGAL REGULATION OF UNITED NATIONS MILITARY OPERATIONS (1996);

   Daphna Shraga and Ralph Zacklin, The applicability of international humanitarian law to UN peacekeeping operations: conceptual, legal and practical issues, in SYMPOSIUM ON HUMANITARIAN ACTION AND PEACE-KEEPING OPERATIONS (Umesh Palwankar, ed., 1994); Willy Lubin,

   Towards the international responsibility of the UN in human rights violations during peace-keeping operations: the case of Somalia, 52 BULLETIN OF THE INTERNATIONAL COMMISSION OF JURISTS 47 (1994); Julianne Peck, Note: The UN and the Laws of War: How Can the World's Peacekeepers Be Held Accountable?, 21 SYRACUSE JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 283 (1995); Brian Tittemore, Belligerents in Blue Helmets: Applying International Humanitarian Law to UN Peace Operations, 33 STANFORD JOURNAL OF INTERNATIONAL LAW (1997); Garth Cartledge, Legal constraints on military personnel deployed on peace-keeping operations, in THE CHANGING FACE OF CONFLICT AND THE EFFICACY OF INTERNATIONAL HUMANITARIAN LAW (Helen Durham and Timothy L.H. McCormack eds., 1999).

5. Yoram Dinstein, The Thirteenth Waldemar A. Solf Lecture in International Law, 166 MILITARY LAW REVIEW 93 (2000).

   73' operations, arms control, military support to the civil authorities, enforcement of...