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New trend emerging in international customary law: Kupreškić et al.

Introduction
The power of the international organizations and authorities to intervene in the political
and military decisions of states has been enforced under the influence of the humanitarian
law. On the other hand, when the national law and practices in regard to a specific issue are
not clear, the potential prospect of international law to be alternatively applied cannot be
ignored. In this case, the international Court will be asked to decide on the level at which
the international law can be used instead of national law, and whether the rules of the
former can be considered as superior towards those of the latter – also under which terms
the above relationship can be justified.1
The International Criminal Tribunal for the former Yugoslavia (ICTY) was created in the
context of the United Nations aiming to criticize the military activities developed in the
greater area of Balkans during the 1990s. A particular decision of this Court is examined in
this paper: the case Kupreškić et al.2, the justification of the Court’s decision on the above
case is presented and explored. It is also examined the role of this decision on the
development of customary law and the involvement of humanitarian law in the
establishment of customary principles. One of the most important contributions of the
above mentioned case seems to be its role in the expansion of customary law: it is held that
principles of humanitarian law can be applied even when such case is not clearly stated in
the national law – the customary law is expected to be used, in order to develop such
schemes.

1. ICTY Trial Chamber and determination of rules of customary law in the field of
international humanitarian law
The Martens Clause takes on a significant role in the development of international
customary law, in that it guides judicial conscience. It is often described as a “norm-
creating” instrument of customary international law.3 In this regard the Martens Clause is
the Preamble to the 1907 ‘Hague Convention on the Laws and Customs of War on Land’

1
Prosecutor v. Kupreškić et al., Trial Judgment, Case No. IT-95-16 T, T.Ch. II, 14 January 2000, para. 542.
2
Prosecutor v. Kupreškić et al., Trial Judgment, Case No. IT-95-16 T, T.Ch. II, 14 January 2000.
3
A. Cassese, The Martens Clause: Half a Loaf or Simply Pie in the Sky?, 11 European Journal of
International Law 187, at 193 (2000).
1907. Ultimately the Martens Clause states that civilians and belligerents “remain under
the protection and the rule of principles of law of nations” emanating from “laws of
humanity, and the dictates of the public conscience”.4 The preamble has been immortalized
in customary international law and it has been repeated in the 1949 Geneva Conventions
for the protection of Victims of War, the 1977 Additional Protocols to the Geneva
Conventions and other international treaties. The Preamble has been referred to a number
of domestic military guidelines including Germany, the US and the UK’s military
literature.5 In accordance with the Court’s decision a customary rule of the international
law has emerged; the existence of this rule is justified by referring to the “requirements of
humanity and the dictates of public conscience”6.
Of particular importance would be at this point the reference to the view of Kwakwa7
who mentioned that a reprisal action can be regarded as opposing the international
customary law mostly because these initiatives are expected to have “injurious effects” on
a civilian population.
Other studies also support similar views. An indicative example is the study of Bonafe
who noted that the prohibition of reprisals against civilians is established in the
international customary law – under the influence of the principles of humanitarian law. In
the study of Bonafe the value of the case under examination is highlighted as a key case in
the specific field.8 However, reference is also made to the case Prosecutor v. Martić of
ICTY – a decision through which the absolute prohibition of reprisals was first established.
In accordance with Bonafe the view of ICTY on the absolute prohibition of reprisal of
civilians was developed gradually. Initially, doubts existed in regard to the potential
expansion of such practice9. Through the case under examination the trend of the ICTY for
changing its criteria for evaluating the opposition of an action to the international law was
made clear. The methodology and the justification used by the ICTY in the particular case
is of significant importance in order to identify and understand the reasons of such
differentiation – compared to the ruling of the above Court in similar cases in the past.

4
Ib., at 193.
5
T. Meron, The Martens Clause, Principles of Humanity, and Dictates of Public Conscience, 94 The
American Journal of International law 78, at 78 (2000).
6
Kupreškić et al., see note 2, para. 531.
7
E. Kwakwa, The international law of armed conflict: personal and material fields of application, at 143
(1992).
8
B. I. Bonafè, The relationship between state and individual responsibility for international crimes, at 161
(2009). Reference is also made to the Martić decision of ICTY. See, Prosecutor v. Martić, Decision on the
Review of Indictment Pursuant to Rule 61, Case No. IT-95-11-R61, T.Ch. I, 8 March 1996.
9
Bonafe, see note 8, at 161.

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1.1 Methods used by Trial Chamber in order to find customary international law
The ICTY Trial Chamber has used a specific methodology in order to identify the
customary international law applied on the particular case: at the first level, reference is
made to the First Additional Protocol of 1977; in the specific legislative text the reprisals
against civilians are clearly condemned and prohibited10; reference is also made to the four
1949 Geneva Conventions11 aiming to show the opposition of reprisals to the international
law but also trying to justify the assumption that the customary international law applied
on this case should be related with the principles of humanitarian law.
The importance of the Geneva Conventions regarding the prohibition against civilians is
also highlighted in the study of Henckaerts and Doswald-Beck 12; in the above study, those
conventions are characterized as key legislative texts in the specific field – humanitarian
law. It is explained that the civilians protected by the 1949 Geneva Conventions should be
protected from any potential reprisal against them. However, it is also noted that many
states, including USA, even if they have ratified conventions and other texts of the
international law that prohibit reprisals against civilians, still have stated their concerns in
regard to these texts content – no full prohibition is recognized by these states in regard to
the civilians reprisals13. Likewise, another example is mentioned by Bonafe where
reference is made to the “UK reservation to the 1977 Additional Protocol”14.

1.2 Arguments used in the Chamber’s decision


The ICTY Trial Chamber’s decision in regard to the involvement of the humanitarian
law – even in the form of customary international law – is based on a series of arguments:
a) it is noted that even if reprisals were permitted in the past as the most effective way for
fighting the enemy, such practices cannot be justified in the context of modern
international law15; b) the reprisals against civilians can be characterized as an
infringement of human rights; no military decision violating the human rights can be
permitted – the credibility of such decision could be doubted as being opposite with one of

10
Art. 52(1), 1977 First Additional Protocol.
11
Kupreškić et al., see note 2, para. 534.
12
J.M. Henckaerts & L. Doswald-Beck, Customary International Humanitarian Law: Rules, at 531 (2005).
13
Id., at 521.
14
Bonafe, see note 8, at 161.
15
Kupreškić et al., see note 2, para. 530.

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the important parts of international law, the human rights16, c) the reprisals against civilians
are prohibited in the context of a series of military legislative texts17; this is a fact
indicating the clear opposition of countries worldwide against any potential violation of
human rights in the form of reprisals against civilians; d) It is also mentioned that many
countries worldwide have ratified the First Protocol of 1977 – showing the trend developed
in the context of the international community towards the prohibition of reprisals against
civilians18; and e) the examination of the various aspects of the above case led Court to the
decision that opinio necessitatis19 can be used in order to justify the application of
customary international law – being related with the humanitarian law.
In any case, the Court’s decision on the opposition of reprisals against civilians to the
international law seems to be based on the fact that the International Law Commission has
already set its view in regard to the potential establishment of customary international law
when a case referring to reprisals against civilians is under examination; reference is made
to the Article 50 (former Article 14) of the Draft Articles of State Responsibility where it is
clearly noted that any national legislative text violating the human rights should be
considered as non binding.

1.3 Implications of the decision on the development of international humanitarian law


The Kupreškić et al. decision of ICTY is a part of the Court’s effort to change its
practices in regard to the promotion of the international customary law; despite the fact that
in the past the Court had justified under certain terms the reprisals against civilians, its
ruling in Kupreškić et al. indicated the change in the Court’s ruling on such conflicts and
that reprisals against civilians are now absolutely prohibited. The fact that certain states
have declared their concerns in regard to the absolute prohibition of these practices – e.g.,
USA and Britain – has not affected the Court’s determination to increase the power of the
customary international law; national rules related with the reprisal against civilians are no
longer applicable – at least in the context of international law – as they are considered as

16
Id., para. 529.
17
Reference is made by the Court to the British Manual, the Dutch Manual, the Austrian Manual and the
United States military manual for the Army. Cf., Kupreškić et al., see note 2, para. 532, n. 784.
18
Kupreškić et al., see note 2, para. 532.
19
Id., para. 533.

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opposite to the humanitarian law20. Such opposition cannot be justified. Perhaps, only if
issue of national security is set such practices could be acceptable.
Conclusion
In the context of international law, the activities of states may be controlled and their
potential opposition with the principles and the rules of international law needs to be
periodically examined ensuring that the human rights – in all their forms – are adequately
protected. The first initiatives in order to prohibit the reprisals against civilians can be
identified in the four Geneva Conventions of 1949 and also a series of legislative texts, like
the 1977 First Protocol to the Geneva Conventions which set stricter rules in regard to the
prohibition of the specific activities.21 Article 51(6) of the above Protocol has been also
used as a legal basis for the development of the Court’s decision in the case under
examination.
In accordance with Schabas22 the ruling of the ICTY in Kupreškić et al. can be
characterized as a transition from the Court’s past decisions on the specific issues; in the
context of the new approaches used by the Court – as explained above – the prohibition of
reprisals against civilians is characterized as absolute; no exceptions are permitted or
justified.23 Through this point of view, the Kupreškić et al. decision of ICTY redefined the
criteria used for the evaluation of unlawful acts in the framework of the international law.
Moreover, through the above decision the role of international customary law was enforced
– even towards the national law of countries worldwide.

20
See, e.g., Prosecutor v. Galić, Trial Judgment, Case No. IT-98-29-T, T.Ch. I, 5 December 2003; Prosecutor
v. Strugar, Trial Judgment, Case No. IT-01-42-T, T.Ch. II, 31 January 2005; Prosecutor v. Martić, Trial
Judgment, Case No. IT-95-11-T, T.Ch. I, 12 June 2007. Through these cases the prohibition of reprisal
against civilians is characterized as absolute; such practices can no longer be justified even if the relevant
national law offers to a country’s army the right to proceed to practices of this type.
21
C. Bassiouni, C. Crimes against Humanity in International Criminal Law, at 501 (1999).
22
W.A. Schabas, The UN international criminal tribunals: the former Yugoslavia, Rwanda and Sierra Leone,
at 344 (2006).
23
Art. 52(1), 1977 First Additional Protocol.

Hayk Azizbekyan
Student number- s1065459
hayk_azizbekyan@yahoo.com
03 October 2010