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Endc Proceedings 15/2012 ENDC PROCEEDINGS 15/2012 CULTURAL, PEACE AND CONFLICT STUDIES SERIES Volume I: Religion and Politics in Multicultural Europe: Perspectives and Challenges Edited by Alar Kilp and Andres Saumets Volume II: Extremism Within and Around Us Edited by Alar Kilp and Andres Saumets Volume III: The Law of Armed Conflict: Historical and Contemporary Perspectives Edited by Rain Liivoja and Andres Saumets ESTONIAN NATIONAL DEFENCE COLLEGE MARTENS SOCIETY CULTURAL, PEACE AND CONFLICT STUDIES SERIES SERIES EDITORS: ANDRES SAUMETS AND ALAR KILP VOLUME III: THE LAW OF ARMED CONFLICT: HISTORICAL AND CONTEMPORARY PERSPECTIVES Rain Liivoja and Andres Saumets Proceedings 15/2012 EXECUTIVE EDITOR: Andres Saumets (Estonia) EDITORIAL BOARD: Ken Kalling (Estonia) Alar Kilp (Estonia) Peeter Kukk (Estonia) Rain Liivoja (Australia) Enno Mõts (Estonia) Erik Männik (Estonia) Andreas Pawlas (Germany) Claus Freiherr von Rosen (Germany) Volker Stümke (Germany) LANGUAGE EDITORS: Collin W. Hakkinen (USA) Epp Leete (Estonia) David W. E. Thomas (United Kingdom) EDITORIAL COUNCIL: Aarne Ermus (Estonia) Wilfried Gerhard (Germany) Rudolf Hamann (Germany) Jakob Kübarsepp (Estonia) Ants Laaneots (Estonia) Raul Mälk (Estonia) Ago Pajur (Estonia) Eric Allan Sibul (USA) Villu Tamul (Estonia) Peeter Tulviste (Estonia) Matti Turtola (Finland) ISSN 1736–0242 ISBN 978–9985–9513–9–2 Copyright: Estonian National Defence College, 2012 Tartu University Press www.tyk.ee CONTENTS PREFACE ................................................................................................. 9 FRIEDRICH MARTENS: A FOUNDING FATHER OF THE HAGUE TRADITION ............................................................................................ 13 Arthur Eyffinger 1. The Backdrop .................................................................................... 13 2. A Career in the Making .................................................................... 16 3. Martens’ Views on the Law .............................................................. 19 4. The 1899 Hague Peace Conference .................................................. 22 5. The Martens Clause .......................................................................... 25 6. Arbitration ........................................................................................ 28 7. The Permanent Court of Arbitration ................................................. 30 8. The Peace Palace .............................................................................. 31 9. The Second Hague Conference (1907) ............................................. 33 10. Epilogue .......................................................................................... 38 THE HISTORY OF PRIVATE VIOLENCE ............................................ 45 Erkki Holmila 1. Introduction ..................................................................................... 45 2. The Pre-nation State ........................................................................ 46 2.1. The Ancient World ................................................................... 46 2.2. The Dark and Middle Ages ...................................................... 48 2.3. The Italian Renaissance ........................................................... 50 2.4. Catholic Just War Theory and Diplomatic Pragmatism .......... 54 2.5. Swiss “Mercenaries” and German Landsknechte ................... 57 2.6. Mercantile Companies ............................................................. 59 3. The Dawn of Enlightenment and the French Revolution ................ 62 4. Early Domestic Legal Regulation ................................................... 65 5. The Decline of Mercenarism ........................................................... 67 6. Summary ......................................................................................... 71 6 CONTENTS CHIVALRY WITHOUT A HORSE: MILITARY HONOUR AND THE MODERN LAW OF ARMED CONFLICT ................................... 75 Rain Liivoja 1. Introduction ...................................................................................... 75 2. Prisoners of War .............................................................................. 78 3. Means and Methods of Warfare ....................................................... 83 3.1. Prohibited Weapons ................................................................. 84 3.2. Treachery and Perfidy ............................................................. 86 4. Concluding Remarks ....................................................................... 93 THE MARTENS CLAUSE AND INTERNATIONAL CRIMES IN ESTONIA .......................................................................................... 101 Martin Arpo APPLYING THE LAW OF ARMED CONFLICT TO CYBER ATTACKS: FROM THE MARTENS CLAUSE TO ADDITIONAL PROTOCOL I ......................................................................................... 107 Erki Kodar 1. Introduction ................................................................................... 107 2. Prerequisites for the Application of LOAC: Invoking the Spirit of Martens ...................................................... 109 3. Specific LOAC Issues Related to Cyber Attacks .......................... 112 3.1. Cyber Attacks and the Law of Neutrality ............................... 113 3.2. Cyber Attacks as Weapons Systems and Related Restrictions ............................................................................ 114 3.3. Combatants and Direct Participation in Hostilities ................ 124 3.4. Ruses and Perfidy ................................................................... 127 4. Conclusion ...................................................................................... 128 NATIONAL IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN LAW: THE CASE OF ESTONIA .......................... 133 Annika Talmar-Pere 1. Introduction ..................................................................................... 133 2. Disseminating and Other Informative Obligations ........................ 134 3. Administrative Measures ................................................................ 136 4. Penal Measures ............................................................................... 139 5. Conclusion....................................................................................... 140 CONTENTS 7 SUPERIOR RESPONSIBILITY ............................................................ 143 René Värk 1. Introduction ..................................................................................... 143 2. Historical Background .................................................................... 144 3. Codification of Duties and Responsibility ...................................... 146 4. Nature of Responsibility ................................................................. 148 5. Elements of Responsibility ............................................................. 151 5.1. Superior-Subordinate Relationship ......................................... 152 5.2. A Superior’s Knowledge of Criminal Conduct ...................... 154 5.3. Failure to Prevent and Punish ................................................. 157 6. Conclusion ...................................................................................... 159 CONTRIBUTORS ................................................................................. 163 PREFACE Gravely mistaken are those who think that law and war are incompatible phe- nomena. Throughout human history warfare has been subject to some form of normative regulation – be it religion, ethics, or (more recently) law. And while it may be the case that the laws of war are sometimes honoured more in the breach than the observance, it is the presence of rules that distinguishes warfare from terrorism and other kinds of mindless slaughter. Accordingly, knowledge of and respect for the law of war – referred to as the law of armed conflict or international humanitarian law in more modern parlance – form an important part of the ethos of the military professional The Estonian National Defence College, as an institution dedicated to educating leaders for the Estonian Defence Forces, and the Martens Society as a professional association promoting the teaching of international law have an obvious mutual interest in deepening knowledge of the law of armed conflict in Estonia. Both organisations would like to see Estonian soldiers and commissioned and non-commissioned officers set an example to others through their respect for the rule of law in military operations. To that end, the ENDC and the Martens Society have embarked on a collaboration which led to a joint conference on the law of armed conflict in Tartu in late 2009, and now to the publication of this collection of essays. This volume presents a series of papers that in many ways seeks to highlight the continued relevance of principles devised many decades and centuries ago for very different con- flicts, and show a historical continuity in the law of armed conflict despite changing times and circumstances. This volume opens with the text of the Fourth Friedrich Martens Memorial Lecture. The Martens Society has established a tradition of organ- ising annual or biennial public lectures to celebrate the life and work of Friedrich Fromhold Martens (1845–1909), a world-renown Estonian-born international lawyer and diplomat. The lectures, delivered alternatingly by a notable Estonian scholar and a notable foreign scholar, have tended to touch on the
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