0 FACULTY OF LAW 2014/2015 The Critical Analysis on the ‘Belligerent Reprisals’ as Means ofSubject Enforcement: Thesis (Final of) DraftInternational Humanitarian Law: Inconsistency between International Humanitarian Law and International Criminal Law and Legitimacy Issues A thesis submitted in a partial fulfillment of academic requirements for the award of a Master Degree in International and European Law and the Title of Master of Laws (LLM) By, Protogène DUSABE Supervisor: Prof H.G. van der Wilt Amsterdam, 26 June 2015 i DECLARATION I, DUSABE Protogène, here-by declare that, this research work entitled “The Critical Analysis on the ‘Belligerent Reprisals’ as Means of Enforcement of International Humanitarian Law: Inconsistency between International Humanitarian Law and International Criminal Law and Legitimacy Issues” is to the best of my knowledge and belief original, apart from where acknowledged in the text, and has not previously been submitted in any institution for the award of a Degree or Diploma. DUSABE Protogène June 2015 ii DEDICATION To The Almighty God; To our spouse Kayitesi M. Assumpta; To our daughters Glenda and Ingrid; To our deceased father; To our much-loved mother; To all those who advocate the cause of humanity iii ACKNOWLEDGEMENTS This thesis is an achievement that leaves me highly indebted to The Almighty God for his blessings throughout my life, as well as to many individuals and institutions for their moral and financial support; and I hereby extend to them my opportune appreciation. I wish to express my deepest thanks to Prof. H.G.van der Wilt for having accepted the idea of this thesis and for his learned guidance. I wholeheartedly thank the Governments of Rwanda and The Netherlands for their support throughout my study period. My most sincere thanks are due to ‘Universiteit van Amsterdam (UvA)’for not only having ensured adequate knowledge in the Faculty of Law, but most importantly for the Amsterdam Merit Scholarship that greatly contributed towards my academic cost. Too, I would like to thank my family whose continuous support and encouragement was vital. My deep appreciation goes to my learned friends in the International and European Law program 2014/2015, more particularly those in Public International Law track with whom I used to exchange ideas in many discussions. Also, worth acknowledgement is due to the socialization geared by the continuous friendship with Y. Foliant, A. Marvin, Mees van Ojik, A. Jonkers, A. Haalebos and H. Valentijn for their invaluable friendship in Amsterdam. I am proud of that comradeship. All of you thank you ever so much! P. DUSABE June 2015 iv LIST OF ACRONYMS AND ABBREVIATIONS § Paragraph AJIL American Journal of International Law AP Additional Protocol ASIL American Society of International Law B.O. Bulletin Officiel CCW (UN) Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or To Have Indiscriminate Effects CUP Cambridge University Press Doc. Document Ed. Edition e.g. Exampli gratia (For example) EJIL European Journal of International Law et al. et alii (and others) et seq. Et Sequens [And the following (pages)] GC Geneva Conventions ICRC International Committee of the Red Cross ICTY International Criminal Tribunal for the Former Yugoslavia ICTR International Criminal Tribunal for Rwanda Ibid. (Short of Ibidem) In the same place (as before) IHL International Humanitarian Law ILC International Law Commission IRRC International Review of the Red Cross JICJ Journal of International Criminal Justice Law & Contemp. Probs Law and Contemporary Problems LOAC Law of Armed Conflict LWT Law Reports of Trials of War Criminals Mich.L.R. Michigan Law Review v Mil.L.Rev. Military Law Review n. Note (footnote) N.J. New Jersey N.Y. New York OUP Oxford University Press p./pp. Page/Pages PoW Prisoner(s) of War Res. Resolution RSK Republic of Serbia Krajina UK United Kingdom UN United Nations UNGA United Nations General Assembly UNRIAA United Nations Reports of International Arbitral Awards UNSC United Nations Security Council UNTS United Nations Treaty Series USA United States of America viz. Videlicet (Namely) VCLT Vienna Convention on the Law of Treaties (1969) Vol. Volume WWI/II World War I/II vi Table of International Instruments 26 October 1945 Charter of the United Nations, 26 October 1945, 1 UNTS XVI 17 July 1998 Rome Statute of the International Criminal Court as amended by the Resolutions adopted by the Review Conference in June 2010 concerning article 8 (Res 5) and the crime of aggression (Res 6) (2187 UNTS 3) 12 August 1949 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I) 12 August 1949 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II) 12 August 1949 Geneva Convention (III) relative to the Treatment of Prisoners of War (GC III) 12 August 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (GC IV) 22 May 1969 The Vienna Convention on the Law of Treaties (VCLT) 1155 UNTS 331 8 June 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (AP I) 14 may 1954 The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention 2 December 1983 The Protocol (II) on the prohibitions or restrictions on the use of mines, booby- traps and other devices as amended on 03 May 1996 (Protocol II to 1980 CCW) 10 October 1980 United Nations Convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects as amended on 21-12-2001, 1342 UNTS 137 27 July 1929 Geneva Convention relative to the Treatment of Prisoners of War 8 August 1945 London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal 18 October 1907 The Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land 9 September 1880 The Laws of War on Land, Manual published by the Institute of International Law (Oxford Manual) 24 April 1863 General Orders, No. 100: Instructions for the Government of Armies of the United States in the Field (Lieber Code) vii Table of Judgments Nuremberg Trials Law Reports of Trials of War Criminals (LWT), Selected and prepared by the United Nations War Crimes Commission, Vols. IV, VIII, XII, s. (London: His Majesty’s Stationery Office, 1947-1949) [via online http://www.loc.gov, accessed April-May 2015]: The German High Command Trial, United States v. Wilhelm Von Leeb and Thirteen Others, United States Military Tribunal, Nuremberg, Case No. 72, Judgment of 30th December, 1947-28th October, 1948, Vol. XII, 1-127 The Hostage Case Trial, United States of America v. Wilhelm List et al., Judgment, 19 February 1948, Case No. 47, Vol. VIII The Dostler case, Trial of Gen. Anton Dostler (United States Military Commission, Rome, 8th -12th October, 1945), Case No. 2, Vol. I The Einsatzgruppen Case, , USA v Otto Ohlendorf et al., Military Tribunal II , Case No.9, Vol. IV, Nuernberg, October 1946– April 1949 International Court of Justice ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Judgment, 27 June 1986, Merits, ICJ Reports 1986. [Via Online www.icj-cij.org, accessed 26-03-2015] International Criminal Tribunal for the Former Yugoslavia ICTY, Prosecutor v. Milan Martić, Case No. IT-95-11, Appeals Chamber Judgment, 08.08-2008 ICTY, Prosecutor v. M. Martic, Case No. IT-95-11, Trial Chamber 2 Judgment,12-06-2007 ICTY, Prosecutor v. Kupreškić et al., Case No. IT-95-16, Appeals Chamber Judgment, 23-10-2001 ICTY, Prosecutor v. Kupreškić et al., Case No. IT-95-16, Trial Chamber Judgment, 14-01-2000 ICTY, A. Furundžija Case, ICTY, Case No.: IT-95-17/1, Trial Chamber Judgment, 10-12-1998 The International Arbitration Tribunal The Portuguese Colonies Case (Naulilaa incident), Portugal v. Germany (31 July 1928) 2 UNRIAA 1011-1033 (2006) viii FOREWORDS 1. “…for honor is a recognition of superiority; but the man who endures such an injury shows that in a superior degree he possesses the virtue of long-suffering , and thus rather increases his honor than diminishes it…………..that it is characteristic of a small soul not to be able to bear an insult” - Stephen C. Neff (Ed. & Annoted), Hugo Grotius on the Law of War and Peace (CUP, 2012), at 86. 2. “Revenge is the most worthless weapon in the world. It ruins the avenger while more firmly confirming the enemy in his wrong. It initiates an endless flight down the bottomless stairway of rancor, reprisals, and ruthless retaliation.” ―Tim F. Lahaye & Bob Phillips (Authors), Anger is a Choice (Zondervan, 2001). ix ABSTRACT The thesis seeks to analyze the reason behind the gap between IHL and international criminal law with respect to the traditional and controversial mechanism of enforcing the laws of war: "Belligerent reprisals." Traditionally, the doctrine of belligerent reprisals was the only available and effective mechanism of enforcing the laws of war. In 20th century, the need to restrict to only military target the so-called evil of wars against humanity arose and the 1949 Geneva Conventions codified important restrictions that were extended in their 1977 AP I. However, the narrow scope of reprisals resulting from 1974-1977 Conferences has not gained support from major powers of the West. Consequently, some states claim that the prohibition of reprisals against civilians is not part of customary international law and there is a possibility to target enemy civilians despite the requirement of conformity in all cases to the laws of humanity and morality.