The Formation of the Treaty Law of Non-International Armed Conflicts by Laura Perna (Martinus Nijhoff: Brill) The purpose of this work is to trace the processes that led and continue to lead to the formation of the treaty norms applicable in non-international armed conflicts. If the purpose of humanitarian law is to achieve a balance between military necessity and humanitarian considerations and to prevent unnecessary suffering and destruction, humanitarian law rules should be equally applicable to both international and internal armed conflicts. Whilst, however, there are a huge number of treaty provisions applicable to international armed conflicts, very few provisions are specifically designed to regulate non-international armed conflicts despite the dramatic increase in the number of such conflicts. The study investigates the reasons behind the differences by analyzing, inter alia, questions such as: Where does the international law of internal armed conflicts come from? Why did it evolve differently from the law regulating international armed conflicts? Where is the international law of internal armed conflicts going?
Excerpt: This study tries to identify the changes in the elements shaping treaty norms relating to internal armed conflicts and the impact of such changes on the formation of treaty law.
Finally, development means what happens to a treaty norm after its adoption.
As regards treaty rules, this study deals exclusively with treaty rules specifically designed to apply in situations of internal armed conflicts: Therefore, it does not deal with international law treaties that, although not designed to apply in situations of internal armed conflict, remain applicable even in time of conflict, albeit possibly in a modified way. In other words, it does not deal with the extent to which a non-international armed conflict affects the application of the rules of international law not specifically designed to address the conflict.
As this study focuses on the treaty law-making process, it looks at the content of the treaty norms only in order to assess the product of this process. Therefore, the analysis of the content of the treaty norms is not analysed per se, but in relation to the treaty law-making process.
The choice of treaty rules, as opposed to customary law, derives from the fact that treaty law remains an extremely valuable instrument as only the acceptance of treaty law by a large number of states is a guarantee that the rules of law are generally regarded as legally binding. Customary law is, in fact, subject to controversy. This is shown by the fact that states are often reluctant to embody in treaty law what international bodies regard as customary law or to ratify treaties which contain rules that are already part of customary international law: Furthermore, a close analysis of the formative factors of the treaty norms applicable in non-international armed conflicts may also offer a basis for action for those interested in developing the treaty rules relating to internal armed conflicts.
Non-international armed conflicts, as covered by this study, range from low intensity armed conflicts to full scale civil wars: their common denominator is the use of violent actions by politically motivated, organized armed groups, in order to oppose their governments or other armed groups. Basically, the armed conflicts analysed fall within the ranges of armed conflicts envisaged by Common Article 3 to the Geneva Conventions and Protocol II Additional to such Conventions.
The nature of the study imposed the choice between two theoretically possible methodological approaches. It might have been possible to examine the issue thematically, for example looking at the rules on the conduct of hostilities, protection, etc. Such an approach would have, however, necessarily involved repetition and would have prevented the possibility of establishing a pattern of evolution. For this reason, the alternative chronological approach has been adopted.
These considerations also explain the organization of the study. In particular, Chapter I deals with the period of time up until the eighteen century. As at that time theologians, political philosophers and military strategists played a major part in determining what was or was not acceptable, it is first necessary to examine the views of such actors in order to ascertain whether they distinguished between international and non-international armed conflicts.
Chapter II deals with the period of time from the nineteenth century until 1949 because, in that period, whilst one finds treaty norms addressing international armed conflicts, not until 1949 does one`find express provisions dealing with internal armed conflicts. Chapter III deals with general elements important to the evolution of treaty norms applicable in non-international armed conflicts from 1949 to the present day. Those elements are relevant to the treaties considered in Chapters IV, V and VI, even though those elements were themselves evolving.
Once treaty provisions expressly dealing with internal armed conflicts have entered into force, an examination of the development of the law needs to include an examination of the impact of the law itself. Chapter IV deals principally with the treaty which elaborated upon Common Article 3 to the Geneva Conventions of 1949, that is to say Protocol II Additional to those Conventions. In addition, the chapter also addresses the 1980 Conventional Weapons Convention. Whilst that treaty was only applicable in international armed conflicts, it is examined in the context of this study on account of the elements considered in Chapter V. Chapter V, in fact, addresses treaties concluded between 1981 and the present day as during this period of time there has been a dramatic increase in the number of treaties applicable in non-international armed conflicts. What is remarkable about the significant number of treaty texts which need to be examined in the chapter is that none of them attempts to supplement Protocol II Additional to the Geneva Conventions, or none deals generally with regulation of non-international armed conflicts. Rather, they address specific problems, which have occurred in such conflicts. In particular, this chapter examines Amended Protocol II, the Ottawa Convention,6 the Second Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict, the Optional Protocol to the Convention on the Rights of the Child, and the Conventional Weapons Convention as amended by the Second Review Conference.
The matters dealt with in Chapters I-V all involve the creation of norms; they do not address the enforcement, particularly through criminal law. This issue is dealt with in Chapter VI, which, therefore, addresses the enforcement of the rules applicable in internal armed conflicts, particularly through criminal sanctions. Whilst the principal focus of concern in this chapter is the statute of the International Criminal Court, that has to be approached in light of the evolution of international criminal law in the field.
Finally, by analysing the formation of the treaty norms applicable in internal armed conflicts, the study also seeks to identify possible explanations for the apparent dramatic increase in the amount of applicable law.
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