Abstract
The ILC Articles on State Responsibility contain six general defences: consent, self-defence, countermeasures, force majeure, distress and state of necessity. These defences are, in principle, applicable to the whole range of obligations of States under international law—regardless of their source, character, or addressees—and are therefore at least potentially applicable in respect of obligations under international humanitarian law. In this chapter we argue that, other than force majeure, the defences in the law of responsibility are not applicable to the breach of IHL obligations. There are a variety of reasons for this, which reflect the material scope of the ARS defences and the particularities of the armed conflict context and IHL. Indeed in some cases, IHL may be seen as an actualisation of the concern that is addressed by the general defences, leaving them no further role to play within IHL. In respect of force majeure, which is available as a defence in respect of (certain) IHL breaches, we argue that States are obliged to ensure that their conduct in the circumstances respects the object and purpose of IHL as far as this is possible.
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Notes
- 1.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12 1949, 75 UNTS 31 (entered into force 21 October 1950) (‘GCI’); Geneva Convention for the Amelioration of the Conditions of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12 1949, 75 UNTS 85 (entered into force 21 October 1950) (‘CGII’); Geneva Convention Relative to the Treatment of Prisoners of War of August 12 1949, 75 UNTS 135 (entered into force 21 October 1950) (‘GCIII’); Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12 1949, 7 UNTS 287 (entered into force 21 October 1950) (‘GCIV’), together with GCI, GCII, and GCIII, collectively referred to as the ‘Geneva Conventions’; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977; 1125 UNTS 3 (entered into force 7 December 1978) (‘API’); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, open for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (‘APII’), together with API, the ‘Additional Protocols’. This chapter, in its articulation of IHL, will rely principally on the treaty law framework of the Geneva Conventions and the Additional Protocols.
- 2.
See ICRC 2005.
- 3.
On which see, generally, Mačák 2021.
- 4.
The term ‘defence’ is, to be sure, ambiguous. One accepted sense is as a catch-all term to refer to substantive arguments that aim to defeat claims on the merits. The latter is precisely the role of the listed ‘circumstances precluding wrongfulness’ in the International Law Commission (‘ILC’) (2001) Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, in Report of the International Law Commission on the work of its fifty-third session, UN Doc. A/56/10, 31 (‘ARS’ and ‘ARS Commentary’), according to the ARS Commentary to Chapter V of Part One of the ARS, para 8. The term ‘defence’ will be used throughout this chapter to refer to the ILC’s ‘circumstances precluding wrongfulness’. The preference for the term ‘defence’ in this context stems from the fact that the provisions in ARS Articles 20–25 are not clearly categorized into justifications and excuses. The ILC left the question of their classification into these two categories open. Yet, the term ‘circumstance precluding wrongfulness’ is synonymous with justification: namely a circumstance which, when it is present, affects the legal characterisation of conduct as wrongful or lawful. For this reason, it is an inadequate term to refer to the provisions in Chapter V of Part One of the ARS, insofar as it would seem to exclude the possibility that some of these defences do not affect the wrongfulness of the relevant conduct but instead preclude the responsibility of the actor. So as to avoid prejudging the character of each of these circumstances—a matter which is beyond the scope of this chapter—we will use the general term ‘defence’. On the use of this term to refer to the ARS’s ‘circumstances precluding wrongfulness’ see: Okowa 1999; Paddeu 2018, pp 23–62; Jarrett 2019, pp 16–42; Duarte d’Almeida 2020, p 179.
- 5.
ARS, above n 4, Articles 20–25, respectively.
- 6.
ARS, above n 4, Article 12.
- 7.
ARS, above n 4, Article 26.
- 8.
ARS, above n 4, Article 55.
- 9.
ARS, above n 4, Article 50(1)(b).
- 10.
In respect of IHL breaches, whether under the Geneva Conventions or Additional Protocols, or under customary international law, jurisdiction would only be available before the International Court of Justice if the State parties to a dispute had each made an optional clause declaration (Statute of the International Court of Justice, opened for signature 18 April 1946 (‘ICJ Statute’), Article 36(2)) or agreed on an ad hoc basis to submit the case to the Court under Article 36(1) ICJ Statute States might also give ad hoc consent to arbitration, as was the case in respect of the Eritrea Ethiopia Claims Commission (‘EECC’). See Agreement between the Government of the Federal Democratic Republic of Ethiopia and the government of the state of Eritrea, 12 December 2000, 2138 UNTS 94, Article 5.
- 11.
Here we draw a distinction between the implementation of responsibility for a breach of IHL, and the normative pull and compliance pressure of IHL, which of course include public attention, reciprocity, diplomacy etc.
- 12.
For example, see ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Rep 14 (Nicaragua Case); ICJ, Armed Activities on the Territory of the Congo (DRC v Uganda), Judgment of 19 December 2005, [2005] ICJ Rep 168; EECC, Federal Democratic Republic of Ethiopia v Eritrea, Partial Award, Prisoners of War, 1 July 2003; EECC, Federal Democratic Republic of Ethiopia v Eritrea, Partial Award, Western Front, Aerial Bombardment and Related Claims, 19 December 2005.
- 13.
There has also been a considerable increase in the implementation of State responsibility for human rights breaches which are co-extensive with IHL breaches before human rights courts or treaty monitoring bodies. See generally Zyberi 2018; Steiger 2015. But the applicability of general international law defences to relevant internationally wrongful acts in such cases will be a question asked and answered within the normative and procedural framework of international human rights law, and therefore does not help to address the IHL-specific question addressed in this contribution.
- 14.
We alter the order in which the defences are listed in the ARS in two respects. First, we address force majeure last because, in our analysis, this is the only defence which is available if with significant limitations in IHL. We thought it would make sense to address all those defences which are not available first. Second, we also invert the order of distress and state of necessity. This is because, in our assessment, distress is a specific form of necessity and the considerations which arise with respect to necessity are equally applicable to distress.
- 15.
ARS, above n 4, Article 26.
- 16.
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).
- 17.
ILC (2022) Draft conclusions on the identification and legal consequences of Peremptory Norms of International Law (jus cogens), UN Doc A/77/10, adopted by the Commission at its seventy-third session in 2022, Draft Conclusion 18.
- 18.
It is widely accepted that the ‘basic rules’ of IHL are jus cogens norms. See ARS Commentary, above n 4, Article 40, para 5; ILC (2006), Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law in Report of the International Law Commission on the work of its fifty-eighth session, UN Doc. A/61/10 (‘Conclusions of the Study Group on fragmentation of international law’), para 251, conclusion 33. These ‘basic rules’ have been characterized variously in terms of the prohibition of directing hostilities at the civilian population (ILC, Report of the Study Group on fragmentation of international law: difficulties arising from the diversification and expansion of international law (finalized by Martti Koskenniemi), UN Doc. A/CN.4/L.682, Corr.1 and Add.1, para 374), and the prohibitions covered by Common Article 3 and the grave breaches regime of the Geneva Conventions, above n 1. See generally Weatherall 2015, pp 213–219.
- 19.
ARS, above n 4, Article 55. For a general discussion of the application and implications of the lex specialis principle, see Conclusions of the Study Group on Fragmentation of International Law, above n 18, p 177.
- 20.
ARS Commentary, n 4 above, Article 55, para 2; Conclusions of the Study Group on Fragmentation of International Law, above n 18, para 251, conclusion 5.
- 21.
Ibid., conclusions 7 and 8.
- 22.
Ibid., conclusion 9.
- 23.
Some of which, as will be argued, were included specifically to respond to the particular concerns and context of IHL.
- 24.
- 25.
ARS Commentary, above n 4, Article 20, para 3. But see Paparinskis 2016, p 489, writing in the context of investment law, who frames the issue as one concerning the suspension of treaty provisions under the law of treaties. The approach is unduly narrow: it is not required as a matter of ILC Article 20.
- 26.
ARS Commentary, above n 4, Article 20, para 2.
- 27.
Consent given after the conduct in question takes place cannot retroactively render that conduct lawful. Ex post consent amounts to a waiver of claims, regulated in Article 45 ARS, above n 4. See ARS Commentary, above n 4, Article 20, para 3. See Crawford 2013, p 286.
- 28.
ARS Commentary, above n 4, Article 20, para 4.
- 29.
The ARS Commentary here refers to the ‘principles concerning the validity of consent to treaties’: ARS Commentary, above n 4, Article 20, para 6.
- 30.
Crawford 2013, p 284.
- 31.
- 32.
- 33.
- 34.
- 35.
- 36.
Campbell 1987.
- 37.
German law, for example, distinguishes between the two functions of consent by using different words: Einwilligung to refer to consent as a defence, and Einverständnis to refer to consent as a definitional element, see: Bohlander 2009, p 77. Other jurisdictions that distinguish between these two functions of consent include: France, the Netherlands, New Zealand, Sweden, Turkey, and the US. On which see the chapters in Reed et al. 2017, pp 386, 305–306, 326–327, 420, 367–368, 345, respectively.
- 38.
An international armed conflict is defined in reference to the nature of the parties to the conflict (States only). See Geneva Conventions, above n 1, Common Article 2; API, above n 1, Article 1. Non-international armed conflicts, on the other hand, are defined in reference to a number of criteria (including territory and intensity), but a necessary element is that one of the belligerents is a non-State actor (see Geneva Conventions, above n 1, Common Article 3; APII, above n 1, Article 1)—in which case an inter-State like consent defence would be inapplicable.
- 39.
Coercion is a basis for vitiating consent in the ARS Commentary, above n 4. And recognising the inherent potential for coercion in situations of armed conflict, Theodore Meron notes in particular that Common Article 6/6/6/7 of the Geneva Conventions (discussed further below) was adopted in reaction to agreements between belligerents during WWII, for example those between Germany and the Vichy government which, under pressure from the German authorities, deprived French POWs of protections under the 1929 Geneva Convention. Meron 2009, p 624. See further, ICRC 1952, p 71.
- 40.
ARS Commentary, above n 4, Article 20, para 6: ‘the principles concerning the validity of consent to treaties provide relevant guidance’.
- 41.
Schmalenbach notes that ‘Whereas the wording of Article 52 shields the conclusion of the treaty from prohibited force, the question arises whether the treaty performance—e.g., the renunciation of treaty rights—can be the target of coercion as well. As a rule, Article 52 does not address forced treaty performance if this performance is required by the treaty. If, however, the coerced party waives or alters its treaty rights and this act meets the consent of the coercing party, Article 52 is applicable to this renouncement or alteration agreement’, see Dörr and Schmalenbach 2018, p 945.
- 42.
See generally Greenwood 1983.
- 43.
- 44.
ARS Commentary, n 4 above, Article 18, para 3.
- 45.
ARS Commentary, n 4 above, Article 23, para 3.
- 46.
Corten 2011, p 1209.
- 47.
Paddeu 2018, pp 172–174.
- 48.
It is not clear whether such an exclusion is also accepted as a matter of customary IHL. This may not be problematic in respect of the Geneva Conventions, given universal participation (such that States would be bound by the treaty-based exclusion). But it could prove problematic in respect of API, which has a lower level of State participation.
- 49.
See Sassòli 2002, at 414.
- 50.
See Condorelli and Boisson De Chazournes 1984, pp 22–23.
- 51.
ICRC 1952, Article 7, p 71.
- 52.
API does not contain a provision akin to that of Common Article 6/6/6/7 of the Geneva Conventions, above n 1, but is understood to be equally covered by the GC prohibition on special agreements which adversely affect the situation of protected persons. See the updated Commentary on GCI, Article 6 (ICRC 2016, paras 957 and 960). It should be noted that there are some protections under IHL which, a contrario, amount to permissions under IHL. For instance, the right of State parties to an international armed conflict to seize military equipment belonging to the adverse party as ‘war booty’ is in part the flipside of the requirement that prisoners of war be allowed to keep all their personal belongings and protective gear (see GCIII, Article 18; ICRC 2005, Rule 49). Should States wish to renounce their rights to claim war booty (through special agreements), there is nothing in the Geneva Conventions which would preclude them from doing so—but neither would such renunciation amount to a breach of IHL needing justification.
- 53.
An essential definitional element of non-international armed conflicts is that non-State actors are at least one of the belligerent parties. When non-State actors are fighting against a State, the conflict falls within the scope of both Common Article 3 Geneva Conventions, above n 1, and APII, above n 1; and when non-State actors are fighting against each other, the non-international armed conflict falls uniquely within the scope of Common Article 3 Geneva Conventions, above n 1.
- 54.
ARS Commentary, above n 4, Article 20, para 10.
- 55.
Common Article 7/7/7/8 of the Geneva Conventions, above n 1, in its entirety, reads as follows: ‘[Wounded and sick, as well as members of the medical personnel and chaplains]/[Wounded, sick and shipwrecked persons, as well as members of the medical personnel and chaplains]/[Prisoners of War]/[Protected Persons] may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be.’ This rule (entitled ‘Non-renunciation of rights’) applies equally to the protections set forth in APII, above n 1 (which applies to non-international armed conflicts), insofar as APII develops and supplements the Geneva Conventions, without modifying its existing conditions of application (APII, above n 1, Article 1), and is understood to apply to API, above n 1, despite the fact that it does not have a similarly drafted provision on scope of application. See ICRC 2016, Article 7, para 990.
- 56.
The 1952 Commentaries draw on the drafting history of the Geneva Conventions in arriving at this characterization—most particularly that the ICRC’s initial draft excluded the renunciation of rights where ‘induced by constraint or by any other means of coercion.’ (ICRC 1952, Article 7, pp 79–80). To close off the possibility that an a contrario interpretation might be available (whereby renunciation was permissible provided the choice was made completely freely and without any pressure), the current formulation framed in absolute terms was adopted. See further ICRC 2016, Article 7, para 990.
- 57.
ICRC 1952, Article 7, p 78.
- 58.
Ibid., p 71.
- 59.
Geneva Conventions, above n 1, Common Article 1; API, above n 1, Article 1(1).
- 60.
ICRC 1952, Article 7, p 78. See further ICRC 2016, Article 7, para 989. The 2016 Commentaries enter into the question of whether the Geneva Conventions confer rights on individuals, qualifying the non-renunciation provisions as ‘acknowledging that individuals have rights’ (ICRC 2016, Article 7, para 989), while drawing a distinction between ‘rights attached directly to individuals’ and ‘international legal rights in the sense of rights protected by international treaties and enforced or supervised by courts or treaty bodies’ (ICRC 2016, Article 7, paras 1000–1001).
- 61.
- 62.
What may be termed ‘collateral violations’ caused by self-defensive force: Paddeu 2014.
- 63.
ARS Commentary, above n 4, Article 21, para 1.
- 64.
Oil Platforms (Islamic Republic of Iran v United States of America) (2003) ICJ Rep 161.
- 65.
ARS Commentary, above n 4, Article 21, paras 3–4.
- 66.
ARS Commentary, above n 4, Article 21, paras 3–4.
- 67.
Neff 2005, p 177.
- 68.
For an exhaustive review of practice, see, generally: Mancini 2009.
- 69.
States can suspend or terminate treaties during armed conflict, though it is unclear whether the existence of armed conflict is on its own an accepted ground for suspension or termination. The ILC adopted articles on the Effects of Armed Conflict on Treaties in 2011, (in Report of the International Law Commission on the work of its sixty-third session, UN Doc. A/RES/66/99 (2011)). For a review, and critique, of the ILC’s articles see: Ronen 2014, p 541.
- 70.
As clarified by the ICJ ‘[a] violation of the rights of one party under the Treaty by means of the use of force is as unlawful as would be a violation by administrative decision or by any other means’: Oil Platforms, above n 64, Preliminary Objections, Judgment of 12 December 1996, [1996] ICJ Rep 803, p 812, para 21.
- 71.
- 72.
See, e.g., Paparinskis 2016, p 493.
- 73.
ARS Commentary, above n 4, Article 21, para 3.
- 74.
- 75.
See Trapp 2013, pp 166–67, assessing the impact of time pressure on the obligation to take precautionary measures.
- 76.
See API, above n 1, Articles 51(5) and 57.
- 77.
ARS Commentary, above n 4, Article 21, para 6 (emphasis added).
- 78.
Ibid.
- 79.
ILC (1999a), Second Report on State Responsibility by James Crawford, Special Rapporteur, UN Doc. A/CN.4/498/Add.2.
- 80.
ILC (1999a, b), p 87. See further ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep 226.
- 81.
The discussion at the ILC as to why Crawford’s second paragraph was superfluous is somewhat inconclusive, with some members considering the term ‘lawful’ in the text of Article 21 to already address the issue he was seeking to clarify. ILC (1999b) Yearbook of the International Law Commission, vol I, Summary records of the meetings of the fifty-first session (3 May-23 July 1999), UN Doc A/CN.4/SER.A/1999, interventions by: Pellet, 2589th meeting, p 159, para 45; Rosenstock, ibid., p 159, para 47. Bruno Simma initially viewed the adjective ‘lawful’ in the text of the provision as a reference to the jus ad bellum, but was convinced by Alain Pellet’s explanation that this term made sense only as a reference to the jus in bello. See: Simma, ibid., p 158, para 41, p 159, para 48.
- 82.
ILC (1999b) Yearbook of the International Law Commission, vol I, Summary records of the meetings of the fifty-first session (3 May–23 July 1999), UN Doc A/CN.4/SER.A/1999, interventions by: Hafner, 2589th meeting, p 158, para 36; Galicki, ibid., p 158, para 37 (while Galicki was ILC Chairman, this intervention was made in his capacity as ILC member); Pellet, ibid., p 159, para 45; Goco, ibid., p 159, para 51; Crawford, ibid., pp 159–160, paras 53–55.
- 83.
Many investment treaties, for example, contain war clauses. Furthermore, defending States could suspend or terminate the operation of the relevant treaties as a result of the armed conflict.
- 84.
On which see Mclachlan 2005.
- 85.
- 86.
The ARS left the question open whether countermeasures could be taken by States other than the injured State, where the breach involves an erga omnes obligation. ARS, above n 4, Article 54. Since 2001, there have been several studies on countermeasures taken by States other than the injured State, all of which come to the conclusion that these measures are now permitted by customary law. See, e.g., Tams 2005; Proukaki 2011; Dawidowicz 2017. But the notion remains controversial (Focarelli 2016). Given what is set out below in respect of IHL reprisals, the focus in this section is on measures adopted by belligerent parties in the context of an armed conflict and not on third party measures adopted by States who are not participating in the armed conflict.
- 87.
ARS, above n 4, Article 49.
- 88.
ARS Commentary, above n 4, Article 49, para 3. On the difficulties of this requirement, see Trapp 2011, p 187.
- 89.
Crawford 2013, p 687.
- 90.
These are: the prohibition of force, obligations for the protection of fundamental human rights, obligations of a humanitarian character prohibiting reprisals, and other obligations arising under peremptory rules. Further, countermeasures do not prevent a State from complying with obligations under dispute settlement procedures applicable between it and the responsible State, and those concerning the inviolability of diplomatic or consular agents, premises, archives and documents.
- 91.
O’Keefe 2010, p 1158.
- 92.
Iwasawa and Iwatsuki 2010, p 1152.
- 93.
ARS, above n 4, Article 52.
- 94.
ARS, above n 4, Article 52(3). See also ARS, above n 4, Article 52(4), excluding the application of paragraph 3 if the responsible State does not implement dispute settlement procedures in good faith.
- 95.
ARS, above n 4, Article 53.
- 96.
We are here drawing a distinction between the non-performance of IHL obligations (in respect of which Article 22 ARS is unavailable), and the non-performance of non-IHL obligations—by way of countermeasure—adopted with a view to procuring the cessation of an IHL breach and to achieve reparation for any injury caused thereby. The latter are permissible and unaffected by the exclusions set out in this analysis.
- 97.
See above n 18.
- 98.
Neither the Geneva Conventions nor API provide a definition of ‘reprisal’. The International Committee of the Red Cross (‘ICRC’), in its study on customary international humanitarian law, has defined ‘reprisals’ as ‘an action that would otherwise be unlawful but that in exceptional cases is considered lawful under international law when used as an enforcement measure in reaction to unlawful acts of an adversary.’ ICRC 2005, Rule 145. This definition is the IHL functional equivalent of the definition of countermeasure in ARS, above n 4, Articles 22 and 49.
- 99.
ARS Commentary, above n 4, Article 50, para 8.
- 100.
Endorsed in EECC, Federal Democratic Republic of Ethiopia v Eritrea, Partial Award, Prisoners of War, 1 July 2003, sect. 149–150.
- 101.
See GCI, above n 1, Article 46; GCII, above n 1, Article 47; GCIII, above n 1, Article 13; API, GCIV, above n 1, Article 33; API, above n 1, Articles 20, 51(6), 52(1), 53(c), 54(4), 55(2), 56(4); ICRC 2005, Rules 145–147.
- 102.
- 103.
- 104.
Reprisals which are “carried out in secret can have no deterrent effect and should, on that account, be deemed illegitimate.” McDougal and Feliciano 1961, p 679.
- 105.
- 106.
See ICRC 2005, Rule 145 (Conditions).
- 107.
For a regretful historical illustration in respect of World War I of this sort of escalation, see Hull 2014.
- 108.
It is relatively clear from the long debates in the ILC regarding the conditions to which the adoption of countermeasures might be subject, including in respect of whether dispute settlement was a pre-condition for the adoption of countermeasures, that these are not legally required to be a measure of last resort. See, e.g., the Symposium on ‘Countermeasures and Dispute Settlement: The Current Debate within the ILC’ in 1994 5 EJIL 20, with articles by Condorelli, Arangio-Ruiz, Tomuschat, Vereshchetin, Bennouna, Simma, Crawford, and Bowett; Alcaide Fernández 2004.
- 109.
- 110.
See generally Sect. 3.2 above. Both IHL reprisals and State responsibility countermeasures are defences applicable to an instrumental and responsive breach of international law, and therefore address the same ‘substantive matter’ (Simma and Pulkowski 2010, p 141). This precise form of lex specialis is contemplated by the ILC in the ARS Commentary: “In other cases, one aspect of the general law may be modified, leaving other aspects still applicable”. ARS Commentary, above n 4, Article 55, para 3. See also Bílková 2014, p 33.
- 111.
Indeed, in its Study on Customary IHL, the ICRC relies expressly on the ARS conditions for adopting countermeasures in framing the conditions for reprisals, making it clear that, at least insofar as the ICRC was concerned, the law of State responsibility was entirely relevant to the IHL specific regime. See ICRC 2005, Rule 145 (Conditions).
- 112.
ARS Commentary, above n 4, Article 25, para 1.
- 113.
ICJ, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, [1997] ICJ Rep 7, p 40, para 53.
- 114.
ARS Commentary, above n 4, Article 25, para 14.
- 115.
ARS Commentary, above n 4, Article 25, para 17.
- 116.
ARS Commentary, above n 4, Article 25, para 20.
- 117.
ARS, above n 4, Article 25(2)(a). For up-to-date analysis of the defence, including review of the cases to date, see: Paddeu and Waibel 2022.
- 118.
ARS, above n 4, Article 25, para 15.
- 119.
Heathcote 2005, pp 131–132.
- 120.
Sassòli 2002, pp 401, 416.
- 121.
Hill-Cawthorne 2014, p 232.
- 122.
Such is the case, for instance, in Article 54(5) API, above n 1, which prohibits attacks against objects which are indispensable to the survival of the civilian population, but permits derogations to this provision where required by ‘imperative military necessity’ in cases of defence of national territory against invasion.
- 123.
API, above n 1, Article 57.
- 124.
See for e.g., UK Ministry of Defence 2005, sects. 2.3 and 23.
- 125.
Hill-Cawthorne 2014, pp 229–234.
- 126.
- 127.
ARS Commentary, above n 4, Article 25, para 21. See, more clearly, ILC (1980) Report of the Commission on the work of its thirty-second session, UN Doc A/35/10, draft Article 33, commentary, para 28. The ILC’s understanding on this point is widely accepted by IHL commentators. See for example Schmitt 2010, p 798.
- 128.
The relation between the necessity defence under customary law (in Article 25) and treaty-based necessity defences was addressed, extensively, in the investment law context in connection with so-called ‘non-precluded measures clauses’ in bilateral investment treaties. Reviewing the different approaches taken by tribunals, see, e.g., Waibel 2007; Kürtz 2008; Von Staden 2011. See also Henckels 2019, addressing specifically situations of armed conflict in the context of investment treaties. Note, however, that the interaction in this field was between two rules: the essential security clause in bilateral investment treaties, and the customary defence of necessity. In IHL, as we have argued, the interaction is more complex as the essence of IHL is a balance between conflicting interests.
- 129.
ARS Commentary, above n 4, Article 24, para 9.
- 130.
ARS Commentary, above n 4, Article 24, para 7. Nationality is irrelevant: ibid., para 1.
- 131.
ARS Commentary, above n 4, Article 24, para 7.
- 132.
ARS Commentary, above n 4, Article 24, para 6.
- 133.
ARS Commentary, above n 4, Article 24, para 10.
- 134.
ARS Commentary, above n 4, Article 24, para 10. For example, the plea is excluded in the case where ‘a nuclear vessel in distress might threaten the health and safety of the port in which it sought refuge’: Fasoli 2013, para 7.
- 135.
- 136.
ILC (1979) Yearbook of the International Law Commission, vol I, Summary records of the meetings of the thirty-first session (14 May–3 August 1979), UN Doc A/CN.4/SER.A/1979, intervention by Ago, 1573rd meeting, p 207, para 9.
- 137.
Paddeu 2018, p 431.
- 138.
Heathcote 2005, pp 131–132.
- 139.
Sassòli 2002, p 417.
- 140.
For instance, the prohibition of direct attacks against civilians is suspended for so long as they are directly participating in hostilities (which participation puts lives at risk). API, above n 1, Article 51(3).
- 141.
- 142.
ARS Commentary, above n 4, Article 23, para 2. On foreseeability, see ICSID, Autopista Concesionada de Venezuela v Bolivarian Republic of Venezuela, Award, 23 September 2003, Case No ARB/00/5, paras 115–117.
- 143.
ARS Commentary, above n 4, Article 23, para 2.
- 144.
ARS Commentary, above n 4, Article 23, para 3. Indeed, it can originate in pressures from another State: see ARS Commentary, above n 4, Article 18, para 4.
- 145.
ARS Commentary, above n 4, Article 23, para 2.
- 146.
There are disagreements in the literature as to the standard of impossibility. Arguing that impossibility need not be absolute, see: Crawford 2013, p 299; Tzanakopoulos and Lekkas 2014, pp 329–330; Gourgourinis 2017, p 293. Arguing that the standard requires an absolute impossibility, see: Scalese 2008, p 69; Szurek 2010a, pp 479–480; Paddeu 2018, pp 320–323.
- 147.
ARS Commentary, above n 4, Article 23, para 3.
- 148.
ARS Commentary, above n 4, Article 23, para 9.
- 149.
See ICC, Güris and others v Syria, Award, 5 April 2016, Case No 21845/ZF/AYZ, para 322.
- 150.
ARS Commentary, above n 4, Article 23, para 1.
- 151.
Under GCIII, above n 1, Article 22: Prisoners of war may be interned only in premises located on land and affording every guarantee of hygiene and healthfulness. Except in particular cases which are justified by the interest of the prisoners themselves, they shall not be interned in penitentiaries.
- 152.
- 153.
For example, consider the obligation to take precautions in attack in the conduct of military operations, API, above n 1, Article 57; and the obligation to take precautions against the effects of attacks, API, above n 1, Article 58.
- 154.
- 155.
While GCIII, GCIV and the Additional Protocols do not contain similar provisions, the 2016 Commentaries have framed the obligation as in keeping with the general obligation of ‘respect and ensure respect’ in Common Article 1 of the Geneva Conventions and API. ICRC 2016, para 2716. Geneva Conventions, above n 1, Common Article 1; API, above n 1, Article 1(1).
- 156.
Emphasis added. GCI, above n 1, Article 45; GCII, above n 1, Article 46.
- 157.
ICRC 1952, p 341.
- 158.
ICRC 2016, paras 2722–2726.
- 159.
- 160.
Emphasis added. GCI, above n 1, Article 45; GCII, above n 1, Article 46.
- 161.
ARS Commentary, above n 4, Article 27, paras 1–2.
- 162.
ARS Commentary, above n 4, Article 27, para 2.
- 163.
As acknowledged by ARS, above n 4, Article 27(b).
- 164.
Note, moreover, that the ILC clarifies that partial compliance is still wrongful: ARS Commentary, above n 4, Article 12, para 2.
- 165.
Geneva Conventions, above n 1, Common Article 1; API, above n 1, Article 1(1).
- 166.
ARS Commentary, above n 4, Article 50, para 6. See also Commentary, ibid., Article 49 (fn 745).
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Paddeu, F.I., Trapp, K.N. (2024). Defences to State Responsibility in International Humanitarian Law. In: Krieger, H., Kalmanovitz, P., Lieblich, E., Evdokimos Pantazopoulos, S. (eds) Yearbook of International Humanitarian Law, Volume 25 (2022). Yearbook of International Humanitarian Law, vol 25. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-619-2_3
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