Law in Times of Crisis Part 8 pdf

self-preservation, necessity, self-defense 333 leaving no choice of means, and no moment for deliberation.” It was also necessary to show that the measures taken involved ‘‘nothing unreason- able or excessive; since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.” 30 The prin- ciple of necessity means that no other peaceful alternative measures are available or effective. Use of force was to be a measure of last resort. 31 This operates as the functional equivalent of ‘‘ordinary law first” in the derogation regime’s use of the proportionality test. Equally the princi- ple of proportionality was considered to be the crux of the self-defense doctrine in international law. A third condition which forms part of customary international law on this matter is the principle of immedi- acy. This principle requires that there will not be ‘‘an undue time-lag between the armed attack and the exercise of self-defence.” 32 Thus, if the historical model of self-preservation ushered in an element of extra- legality, the doctrine of self-defense was part and parcel of a model of accommodation, internalizing rules concerning use of force into the system of international law and operating within the legal framework of international law rather than outside it. This conceptual distinction, which had been mostly theoretical during the nineteenth century when war was not legally outlawed, became significant with the prohibition on war and use of force. In modern form this prohibition is most co- gently and authoritatively expressed in article 2(4) of the United Nations Charter (UN Charter) which provides the general rule prohibiting the use of force in inter-state relations. 33 This general prohibitory rule is subject, in turn, to article 51 of the charter which permits a resort to individual and collective self-defense in certain circumstances as well as to the power of the Security Council to authorize the use of force under Chapter VII of the charter. A closely linked pattern of moving away from extra-legal claims about the right of self-preservation to claims rooted and defined within the boundaries of international legal rules is demonstrated by the rejection of the ‘‘German doctrine” of military necessity. 34 According to this doc- trine which was invoked as justification for German actions during 30 Letter from Daniel Webster to Fox (Apr. 24, 1841) later incorporated in a Note to Lord Ashburton (July 27, 1842), quoted in Brownlie, Use of Force, p. 43. 31 For a critical analysis of this proposition, see Schachter, International Law in Theory and Practice, pp. 106 34. 32 Ibid., p. 202. Dinstein, Aggression,p.210. 33 Dinstein, Aggression, p. 177. 34 Thomas Erskine Holland, The Laws of War on Land (Oxford: Clarendon Press, 1908), para. 2. 334 emergencies and humanitarian law World War I there could have been no obligations whatsoever im- posed upon states in times of war concerning the rules of warfare, since Kriegsraison geht vor Kriegsmanier. Under circumstances of extreme emer- gency the rule of law was replaced by a ‘‘rule of necessity.’’ 35 If a bel- ligerent deemed it necessary for the success of its military operations to violate a rule of international law, the violation would be permissible. This doctrine was widely rejected as leading to ‘‘an end of international law . . . [and to] a world without law.” 36 It is generally accepted that claim of necessity cannot justify or excuse any deviation from the rules and norms of the laws and customs of war unless a particular rule is explic- itly qualified by a clear reference to military necessity. 37 ‘‘Military neces- sity or expediency do [sic] not justify a violation of positive rules.’’ 38 Thus, ‘‘military necessity” has come to be an integral part of the international legal system, defined and operating within the confines of international law, rather than being an extra-legal measure justifying the suspension of legal norms and rules. The concepts of ‘‘necessity” and ‘‘self-defense” are not confined to the area of the laws of war. There is a clearly marked pattern of incorporat- ing these doctrines within the confines of legal discourse and adopting a model of accommodation concerning their application. Thus, for ex- ample, these concepts form two of the defenses that a state may seek to invoke against the imposition upon it of responsibility for acts violating international legal rules. In the context of the discussion concerning the desirability of setting an a priori emergency structure, it is instructive to note that during the discussions in the International Law Commission (ILC) concerning the Draft Articles on State Responsibility, an argument was made that the justificatory claim of a ‘‘state of necessity” need not be included within the codified list of circumstances precluding the 35 N.C.H. Dunbar, ‘‘Military Necessity in War Crimes Trials’’ (1952) 29 British Yearbook of International Law 442 at 446. 36 Elihu Root (1921 speech in the annual meeting of the American Society of International Law), quoted in William G. Downey, Jr., ‘‘The Law of War and Military Necessity’’ (1953) 47 American Journal of International Law 252 at 253. 37 See, e.g., Gerhard von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (Minneapolis: University of Minnesota Press, 1957), pp. 225 26. 38 United States v. List et al. (1950) 11 Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law 757 at 1252 (Case VII, also known as the Hostages trial). See also In re Krupp and Others (1949) 10 War Crimes Reports 138 39; In re von Leeb and Others (1949) 12 War Crimes Reports 1at93(theGerman High Command Trial); Quincy Wright, ‘‘The Outlawry of War and the Law of War’’ (1953) 47 American Journal of International Law 365 at 371. self-preservation, necessity, self-defense 335 wrongfulness of a state action or omission which does not conform to that state’s international obligations. The claim was made that situations amounting to a true ‘‘state of necessity” were exceptional and rare, that a codified rule might lend itself more easily to further abuse, and that immense practical difficulties would inhere in any attempt to determine objectively that an ‘‘essential” interest of a state had been severely endangered. It was thus thought best not to include an express provision concerning necessity in the articles. 39 In rejecting this position the ILC emphasized a number of considerations. 40 Silence on this matter would not lead to states forgoing the possible use of the necessity claim since this claim was ‘‘too deeply rooted in general legal thinking.” Fear of potential abuses could not serve as a reason to bar the legitimate re- sort to the justificatory claim of necessity in adequate circumstances. 41 Moreover, abuses could be minimized by setting out precisely the strict conditions necessary for a claim of a ‘‘state of necessity” to be legitimate, 42 and by excluding from the ambit of that doctrine certain matters with regard to which the risk of abuse is considered too large to take. 43 Similar arguments were made with respect to the doctrine of self-defense. 44 The debate as to whether matters of state security can or ought to be regulated by legal norms and rules is a long-standing one. 45 As noted 39 Report of the International Law Commission on the Work of its Fifty-Third Session, Official Records of the General Assembly, Fifty-Sixth Session, Supplement No. 10 (A/56/10), chp.IV.E.1, Text of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (Nov. 2001). See also James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002). 40 Ibid. 41 Thus, ‘‘This right possessed by all nations, which is based on generally accepted usage, cannot lose its raison d’ˆetre simply because it may in some cases have been abused.” The Wimbledon, at 36 (Anzilloti, Huber, JJ., dissenting). 42 See also Francisco V. Garcia Amador, ‘‘Report on Responsibility of the State for Injuries Caused in its Territory to the Person or Property of Aliens’’ (1959) 2 Yearbook of the International Law Commission 53 at para. 13 (the uncertainty surrounding the substantive content of the doctrine of necessity as a significant reason to codify this doctrine and set it within well-defined limits and criteria). 43 For a discussion on the categories of matters in which states are barred from invoking the claim of necessity see International Law Commission, Articles on State Responsibility, pp. 50 51, paras. 37 38. 44 Schachter, International Law in Theory and Practice, pp. 259 63. 45 Indeed, the debate might be considered as a particular reflection of an even more general debate concerning the ability of legal norms to shape behavior and influence conduct of individuals and states, rather than being a mere ex post justification for such behavior that is originally propelled solely by other, extra-legal considerations. 336 emergencies and humanitarian law above, the prevailing position among international legal scholars con- siders claims of self-defense to be governed and regulated by positive law. In other words, a constitutional model of emergency regime may be said to govern the international legal sphere. 46 An alternative ap- proach considers self-defense to be outside the realm of positive law. Under this position, the right of self-defense is ‘‘an autonomous, non- derogable right that ‘exists’ independently of legal rules.” 47 This position is shared by two main schools of thought. First, there are those who re- gard the right of self-defense as an expression of the natural right of self-preservation applicable both to individuals and to states and who therefore refuse to recognize the possibility of limiting that right by means of positive law. 48 According to Grotius, for example, ‘‘The right of self-defence . . . has its origin directly, and chiefly, in the fact that na- ture commits to each his own protection.” 49 Under certain exceptional circumstances, necessity may confer a right upon a state to act in con- travention of recognized positive rules of law. 50 However, it should be noted that Grotius rejected the view that necessity led to the suspension of all law. Rather he thought that it might result in the suspension of a particular rule or norm. 51 Moreover, Grotius considered the doctrine of necessity to entail certain limitations on its own use, such as that there must not be fault on the part of the state which exercised the right of necessity, that the danger be real, threatening life or property as well as imminent, and that the measures employed would not exceed that which was necessary for removing that danger. 52 The view of self-defense as an autonomous ‘‘right” is advanced even further by those who regard law as subordinate to power in interna- tional relations. 53 Those who subscribe to the realist school in interna- tional relations (the history of which can be traced back to Thucydides, 46 See, e.g., D.W. Bowett, ‘‘The Use of Force for the Protection of Nationals Abroad’’ in Antonio Cassese (ed.), The Current Legal Regulation of the Use of Force (Boston: Nijhoff, 1986), p. 39. 47 Schachter, International Law in Theory and Practice, p. 260. 48 Hugo Grotius, De Jure Belli ac Pacis (1646) (Washington, DC: Carnegie Institution of Washington, 1925), p. 172. On the Grotian concept of necessity see generally Burleigh C. Rodick, The Doctrine of Necessity in International Law (New York: Columbia University Press, 1928), pp. 2 8; Hersch Lauterpacht, ‘‘The Grotian Tradition in International Law’’ (1946) 23 British Yearbook of International Law 1 at 30 39. 49 Schachter, International Law in Theory and Practice, p. 259. 50 Rodick, The Doctrine of Necessity,p.4. 51 Ibid. 52 Ibid., p. 6; Lauterpacht, ‘‘The Grotian Tradition,’’ 32. 53 Schachter, International Law in Theory and Practice, p. 260. self-preservation, necessity, self-defense 337 Machiavelli, and Hobbes) 54 reject the belief in the ability of states to cooperate and that international law and institutions can be effective means to bring about world peace. The picture that they paint is one dominated by the twin images of power and anarchy. 55 The question of peace is to be viewed not through the prism of law and international institutions, but rather through the mediating factor of the ‘‘balance of power.” 56 Under this approach, there is no room for any kind of a ‘‘legalistic-moralistic” approach in international relations, in general, and with respect to issues involving state safety and security, in par- ticular. Legal rules and norms are considered too inflexible and rigid to accommodate the security needs of states; each state is and should have the full and unfettered discretion to determine what course of action ought to be taken to promote its vital interests, security and preservation being the most prominent of those interests. That there is a tension between what states might perceive to be their security needs and the restrictive dictates of international law can hardly be disputed. But an attempt to resolve that tension cannot ignore one part of the equation and focus on the other as a sole factor. ‘‘Interna- tional law” and ‘‘state interest” cannot be regarded as totally separate of each other and mutually exclusive; they are both important factors in the overall equation and are interdependent. The ‘‘defensist” principle, considering self-defense to be the only legitimate reason to use force in inter-state relations, is not only a legal proposition but is also accepted by many states as a strategic policy. 57 The implementation of such a 54 Thucydides, History of the Peloponnesian War, trans. Richard Crawley (Vermont: Everyman, 1993); Thomas Hobbes, Leviathan (1651), ed. C.B. Macpherson (Harmondsworth: Penguin, 1968). 55 See, e.g., Jack Donnelly, Realism and International Relations (Cambridge, UK: Cambridge University Press, 2000); Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace (6th edn, New York: Knopf, 1985); Hans Morgenthau, ‘‘Diplomacy’’ (1946) 55 Yale Law Journal 1067; Edward H. Carr, Twenty Years’ Crisis, 1919 1939: An Introduction to the Study of International Relations (New York: Palgrave, 2001); George F. Kennan, American Diplomacy, 1900 1950 (London: Secker & Walburg, 1951); Dean Acheson, ‘‘Foreign Policy of the United States’’ (1964) 18 Arkansas Law Review 225; Robert Kagan, Paradise and Power: America and Europe in the New World Order (rev. edn, London: Atlantic Books, 2004). 56 See generally Kenneth N. Waltz, Theory of International Politics (New York: McGraw-Hill, 1979); Claude L. Inis, Power and International Relations (New York: Random House, 1962); Ernst B. Haas, ‘‘The Balance of Power: Prescription, Concept, or Propaganda’’ (1953) 5 World Politics 442; Kenneth N. Waltz, ‘‘Realist Thought and Neorealist Theory’’ (1990) 44 Journal of International Affairs 21; A.F.K. Organski, World Politics (2nd rev. edn, New York: Knopf, 1968). 57 Schachter, ‘‘Self-defense,” 268. 338 emergencies and humanitarian law policy calls for active measures by states (for example, considering ways to resolve conflicts and reduce threats without resort to force) that go beyond the negative dictates of the law prohibiting the use of force. 58 This policy leads, in turn, to the strengthening of the international legal prohibition on the use of force by means of bilateral and multilateral treaties, as well as unilateral actions taken by states. 59 Despite contempo- rary challenges we believe that such steps serve to enhance rather than limit a state’s sense of security and stability over the longer term. 60 As originally understood the concepts of self-preservation, necessity, and self-defense had frequently been used interchangeably. The turn of the twentieth century saw an increasing number of voices in the inter- national legal community expressing doubts as to the viability, in inter- national law, of such broad notions as ‘‘self-protection” and ‘‘necessity.” The two world wars led to an almost complete abandonment of these doctrines. A more strictly defined doctrine of self-defense filled the place once occupied by the broad doctrines of necessity and self-preservation. These sweeping doctrines allowed states to act in contravention of their international legal obligations. They were seen as suspending some of the rules of international law (and, under a radical version, all rules of international law) and justifying acts otherwise considered to be il- legal. The clear move was away from an unconstitutional, extra-legal model of emergency powers toward an accommodation/constitutional style model of emergency regime. It was accepted that claims of self- defense and necessity, in their modern, limited sense, ought to be strictly confined to situations that were truly exceptional the threat had to be directed at the most important interests of the state and the danger to those interests had to be extremely serious and imminent and could not be legitimate unless the principles of necessity and proportionality were maintained, i.e., the measures taken were necessary to ward off the danger, and no other legal means were available or effective to the achievement of that purpose. The concept of ‘‘exceptional circumstances” informed by the tradi- tional discourse concerning the relationship between normalcy and emergency is also closely linked to the fundamental dichotomy of in- ternational law relating to the distinction between peace and war. Spe- cial rules and laws were developed to deal with these two separate phenomena. When peace ended and war started a new regime of in- ternational legal rules became applicable and vice versa when peace 58 Ibid. 59 Ibid., pp. 269 70. 60 Ibid., p. 274. internal armed conflicts and emergencies 339 was reinstituted. Evidently, as we have noted above, this historical dis- tinction has been substantially reformulated by the jurisprudence of the International Court of Justice and the Human Rights Committee, insist- ing (though with markedly different emphasis) on the continuation of the norms of peacetime (namely human rights norms) throughout any period of armed conflict. But suffice to note here as a historical matter that as the peace war separation became less clear so too did the distinc- tion between normalcy and emergency, between the boundaries of the rule and the limits of the exception. We observe similar patterns be- tween national and international legal responses to the exception. The same is equally apparent when we examine the relationship between emergency and internal conflict. Internal armed conflicts and emergencies This brings us to examine one of the most contentious aspects of in- ternational humanitarian law, whose content has remained the subject of much debate among states and scholars, namely classifying the legal status of internal armed conflicts and the rules applicable thereto. Lack of consensus has been most marked on the issue of when the legal crite- ria establishing the existence of an internal armed conflict are satisfied. Despite, or perhaps because of, lack of such agreement internal armed conflicts have been a persistent feature of the international political landscape for decades. They have been associated with the most egre- gious human rights violations, characterized by inept and insufficient governance and increasingly leading to various forms of international and regional intervention. We suggest that there is increasing clarity on the legal and factual requirements that activate the applicability of international humani- tarian law to low-intensity internal conflict. In particular, we examine the overlap between situations characterized as ‘‘high-intensity” emer- gencies and situations of low-intensity armed conflict and argue that rigid ‘‘emergency normal” or ‘‘emergency conflict” distinctions are mis- placed. In doing so we stress the importance, both symbolic and legal, of identifying which model of accommodation actually applies to a situation of violent crisis. Moreover, we note that such situations can move between legal regimes (and thus, between the various models of accommodation). To demonstrate this, we propose a series of markers that facilitate the classification of conflicts with emergency characteristics in the legal 340 emergencies and humanitarian law campground of humanitarian law. We believe that such categorization is not only significant in terms of accountability, but has a substantial impact on the capacity to successfully negotiate the end of conflict as well as the successful transformation of conflicted societies during and after peace agreements have been negotiated. In doing so we set out the means to distinguish between situations of emergency and situations of conflict. In this way, we address the standard response by states con- fronted with internal insurgency claiming that the problem they face is one of internal criminal or terrorist behavior, which activates only the application human rights law and domestic emergency responses. 61 We conclude the discussion by suggesting that the pressing question for those concerned with the oversight and control of emergencies is not satisfied simply by applying a model of accommodation to deal with an emergency problem, but rather that it is important within that discus- sion to decide which model is applied. We start by examining ‘‘high-intensity” emergencies and identifying their characteristics. We then move to clarify and identify what we mean by low-intensity conflict. This discussion sketches the legal standards that are relevant to classifying such situations, as well as addressing the application of such standards in practice. We then address the meeting point of emergency and conflict regimes. Here we look at the form of accommodation model that is applied by international law to internal conflict matters and explore the overlap between human rights and hu- manitarian law in conflict situations. We propose a series of markers that may be used to chart the movement of situations from emergency to conflict regulation. We also outline the benefits, in terms of account- ability and transparency, of regulating low-intensity conflicts by apply- ing international humanitarian law. However, it should be noted that while we make specific claims for the categorization of certain emer- gency situations under the humanitarian law framework, this does not 61 In this context it is argued that the appropriate regulatory standards are Minimum Humanitarian Standards. See, for example, Declaration of Minimum Humanitarian Standards, reprinted in Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Forty-Sixth Session, Commission on Human Rights, 51st Sess., Provisional Agenda Item 19, at 4, UN Doc. E/CN.4/1995/116 (1995); Report of the Secretary-General, ‘‘Promotion and Protection of Human Rights Fundamental Standards of Humanity’’, E/CN.4/2001/91 (Jan. 12, 2001); Peter H. Kooijmans, ‘‘In the Shadowlands between Civil War and Civil Strife: Some Reflections on the Standard-Setting Process’’ in Astrid J.M. Delissen and Gerard J. Tanja (eds.), Humanitarian Law of Armed Conflict: Challenges Ahead: Essays in Honour of Frits Kalshoven (Boston: Nijhoff, 1991); Theodor Meron, ‘‘Towards a Humanitarian Declaration on Internal Strife’’ (1984) 78 American Journal of International Law 859. internal armed conflicts and emergencies 341 imply that some internal conflicts are not appropriately regulated by both human rights law and humanitarian law. In fact, as noted above, there is an increasing consensus that international human rights law norms continue to apply throughout the experience of conflict. However, we believe that there is still considerable tension over which body of law enjoys primacy in such context. Moreover, many conflict situations are fluid and are capable of moving between these legal regimes. High-intensity emergencies As chapter 5 demonstrated, situations of emergency are facilitated and regulated by international human rights law through the mechanism of derogation. The crises that derogation can attach to are varied being political, economic, or social in nature (though we have gener- ally focused our assessment on political/violent crisis type emergencies). Recalling chapter 5, an analysis of international human rights law jurisprudence gives us some guidelines as to what constitutes an emer- gency: ‘‘public emergency” was characterized in the Lawless case as ‘‘an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organized life of the commu- nity of which the state is composed.” 62 It is also clear that a situation of emergency is conceived of as a temporary phenomenon. 63 Finally the measures taken must be proportionate to the scale of the crisis experi- enced and must function as a means to bring an end to the crisis, rather than as a mechanism to perpetuate it. As envisaged by the derogation regime, emergencies were well de- fined, both in terms of the situations to which they would apply and with regard to the length of time for which ‘‘special” legal regula- tion would be required. However, the real world of derogations and their legal regulation has been markedly different. Emergencies have rarely operated in textbook form, with situations of de facto, complex and institutionalized, and permanent emergencies being common fea- tures in practice. 64 These ‘‘problem” emergencies are more typical of the experience of emergency powers than the ‘‘model” scenario in which a state resorts to emergency powers for a brief period of time in order to contain a specific problem, and having done so successfully returns the 62 Lawless v. Ireland (Court), 3 Eur. Ct HR (ser. A) (1960 61). 63 Nicole Questiaux, ‘‘Study of the Implications for Human Rights of Recent Developments Concerning Situations Known as States of Siege or Emergency,’’ UN ESCOR, 35th Sess., UN Doc. E/CN.4/Sub. 2/1982/15 (1982), para. 69, at 20. 64 Ibid., para. 103, at 26; para. 118, at 29; para. 112, at 28. 342 emergencies and humanitarian law legal situation to the status quo ante. These problem emergencies also point to the many limitations of the models of accommodation that are manifested domestically and internationally. These problem emergencies have, in turn, a high crossover with sit- uations of internal armed conflict. In particular, we suggest that there is a high correlation between what we call ‘‘high-intensity” emergencies and situations of low-intensity internal armed conflict. In this we sug- gest that the emergency typecast can be maneuvered by governments to cover up extreme and fatal internal disorder. The emergency exception becomes a disguise for regime illegitimacy. The prolonged suspension of normal protections for individuals is often inimical to the original rationale for allowing states to limit the exercise of certain rights and liberties. The validated legal exception may further autocratic tenden- cies, advance strong-arm military tactics, and facilitate the creation of power hierarchies where ultimate control rests with elite political ac- tors. Thus, the hybrid models of accommodation that the derogation procedure offers can function negatively rather than positively to deal with problem emergencies. High-intensity emergencies are a particular form of emergency that combines features of complex, institutionalized, and permanent emer- gencies. We suggest that they are characterized by the following ele- ments. First, these emergencies are not short term but permanent. In a variety of jurisdictions including, but not limited to, Northern Ire- land, Turkey, El Salvador, and India, a state of emergency may have been proclaimed for decades. 65 Second, normal constitutional or judi- cial guarantees in these contexts are suspended or rendered inoperable for extended periods of time. Third, the reach and substance of emer- gency powers are continuously expanded. The effect of emergency pow- ers on due process rights is particularly notable. 66 Fourth, states that 65 For Turkey see Oren Gross, ‘‘‘Once More unto the Breach’: The Systematic Failure of Applying the European Convention on Human Rights to Entrenched Emergencies” (1998) 23 Yale Journal of International Law 437; for India see C. Raj Kumar, ‘‘Human Rights Implications of National Security Laws in India: Combatting Terrorism while Preserving Civil Liberties’’ (2005) 33 Denver Journal of International Law and Policy 195; for Northern Ireland derogations see http://www.law.qub.ac.uk/humanrts/emergency/ nireland1/INTRO.HTM# declarations (last visited on Aug. 8, 2005). 66 Judicial Guarantees in States of Emergency, 9 Inter-American Ct HR (ser. A) at 40, OEA/ser. L/VI/111.9 doc.13 (1987). Notably in this decision the court decided that the due process protections of article 8 of the American Convention cannot be suspended in situations of emergency, in so far as they are prerequisites for the necessary functioning of judicial guarantees. [...]... classification of the kinds of emergency situations we identify in the humanitarian law context States have guarded jealously that scope of discretionary action which allows them under international law to suspend in times of crisis the protection of certain rights vested in individuals and to expand the scope of executive control States have also maintained rigorously that few, if any, situations of internal crisis. .. The situations referred to in [common article 2 of the Geneva Conventions of 1949] include armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and... procedural structure of the interface militates against an assessment of the totality of the derogation or conflict experience When considered under the individual complaint process each case is treated as being an independent hearing for the state and the party bringing the complaint Therefore, there is little room for the institutional memory of preceding cases invoking similar (or, indeed, even the very... the application of international humanitarian law does not eclipse the oversight of international human rights law, in terms of both the applicable norms and the oversight of international bodies Furthermore, there is increased acceptance of the augmentation of humanitarian law oversight through 110 Report of the Commission of International Jurists on the Administration of Justice in Peru, Nov 30, 1993... the in uence of human rights norms In this context the International Court of Justice stated in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons that: [T]he protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national... Scope of Protocol II and its Relation to Common Article 3 of the Geneva Conventions of 1949 and Other Human Rights Instruments’’ (1 983 ) 33 American University Law Review 9 at 10 (outlining in particular the position of the Norwegian delegation) 88 Protocol II, article 1(2) Protocol II, article 1(1) Theodor Meron, ‘‘The Geneva Conventions as Customary Law ’ (1 987 ) 81 American Journal of International Law. .. symptom of, and a causal factor in, the durability quotient of low-intensity article 3 situations One prominent example of this comes from the ongoing conflict in Peru In a report on the jurisdiction the International Commission of Jurists made the following observations: [W]e think that it is useful to clarify our views on the nature of the ongoing conflict in Peru This is particularly important since... set out in Article 1(1) exist. 89 Many agree that Protocol II sets a high, if not unreachable, threshold that is unreflective of the general patterns of strife in internal contexts.90 The protocol requires not 84 85 86 87 89 90 See Waldemar A Solf and W George Grandison, ‘‘International Humanitarian Law Applicable in Armed Conflict’’ (1975) 10 Journal of International Law and Economics 567 at 5 78 Ibid.,... application of the statute’s war crimes 106 107 Alejandro Garro, ‘‘The Role of the Argentine Judiciary in Controlling Governmental Action under a State of Siege’’ (1 983 ) 4 Human Rights Law Journal 311 for a gloomy assessment of the functioning of domestic judiciary in a state of crisis A parallel question, beyond the scope of this work, is whether the usurpation of democratic government itself is an indication... states to accept classification of conflicts in the humanitarian law arena Second, drawing on Abe and Antonia Chayes’ analysis of a managerial model of legal compliance with international treaties, we argue that clarity of legal regimes has a specific effect in terms of the possibilities of affecting the modes of state behavior and interaction in the international sphere around internal conflicts.117 We accept . ushered in an element of extra- legality, the doctrine of self-defense was part and parcel of a model of accommodation, internalizing rules concerning use of force into the system of international law. Yearbook of International Law 442 at 446. 36 Elihu Root (1921 speech in the annual meeting of the American Society of International Law) , quoted in William G. Downey, Jr., ‘‘The Law of War and. being an independent hearing for the state and the party bringing the complaint. Therefore, there is little room for the institutional memory of preceding cases invoking similar (or, indeed, even