International Humanitarian Law & Mediation

[Go to 5:28 – During a closed session of the Senate Foreign Relations Committee, Senator Joe Biden shocked Israeli Prime Minister Menachim Begin by saying, ‘I would go even further than you. I would be willing to kill women and children’, Quoted Source: ‘The Internationalists: The Fight to Restore American Foreign Policy After Trump’ (2024) by Alexander Ward].

• Will the Real Joe Biden Please Stand Up? – Mishpacha Magazine
• https://www.reuters.com/world/us/i-am-zionist-how-joe-bidens-lifelong-bond-with-israel-shapes-war-policy-2023-10-21/
• Prof. Jeffrey Sachs: US/Russia/China: Worst Tensions in 30 Years. (youtube.com)
• Col Douglas Macgregor: NATO saber-rattling must STOP! (youtube.com)
• NEOCON Playbook Exposed! w/David Sacks (youtube.com)
• Aaron Maté – (The GrayZone) : Nuland and the Leaked German Plot. (youtube.com)
• Phil Giraldi: How Dangerous Is Israel to the US? (youtube.com)
• Against Israel against God | News | Al Jazeera

[Note also that on Saturday on ‘Witness’, Al-Jazeera news is running a special documentary about the influence of Evangelical Chrisitan Zionists on US foreign policy, and by proxy on UK foreign policy].

• John Mearsheimer: “The Israel lobby is as powerful as ever” – New Statesman
• The Israel Lobby and U.S. Foreign Policy. | Harvard Kennedy School
• The Israel Lobby and US Foreign Policy: John J. Mearsheimer: Amazon.co.uk: Mearsheimer, John J, Walt, Stephen M: 9780141031231: Books
• Zionism as settler colonialism – Wikipedia
• Why do evangelical Christians support Israel? | Israel War on Gaza | Al Jazeera
• The uneven alliance: How America became pro-Israel | Conflict | Al Jazeera
• Biden, Palestine, and the buttressing of Christian Zionism | Israel War on Gaza | Al Jazeera
• The anatomy of Zionist genocide | Israel War on Gaza | Al Jazeera
• Christian Zionist cowboys: American and Israeli affinities laid bare | Opinions | Al Jazeera
• Blame Joe Biden for President Trump come November | Israel War on Gaza | Al Jazeera
• Israel lobby in the United Kingdom – Wikipedia
• New bombshell film exposes Israel lobby role in UK Labour Party | The Electronic Intifada
• United Nations General Assembly Resolution 3379 – Wikipedia
• Gaza genocide ignored when EU approved new deals for Israel | The Electronic Intifada
• My blog on the ‘Negotiating Political Order’ page ‘Understanding Conflict & Mediation’ – in which I wrote:

‘In understanding conflict a Mediator must understand who is ‘pulling the strings’ and the ‘ideological source of their power’. These need to be brought to the surface because the underlying logic cannot be examined, understood, probed, and rigorously ‘reality-tested’ by an educated Mediator, while they remain submerged or are camouflaged. For an example in relation to Gaza, see pages 126 – 142 of ‘The Israel Lobby And US Foreign Policy’ by John Mearsheimer & Stephen Walt, who discuss ‘the origins of Christian Zionism which lie in the theology of dispensationalism, an approach to biblical interpretation that emerged in nineteenth-century England … and may have made British Foreign Secretary Arthur Balfour more receptive to the idea of creating a Jewish national home in Palestine.’ Note that Jo-Ann Mort of ‘Americans for Peace’ describes the collaboration between American Jews & the Christian Right as an ‘unholy alliance.’ The Israeli moderate Yossie Alpher has warned that Christian support for continued settlement expansion is ‘leading us into a scenario of out-and-out disaster.’ He told CBS News – ‘God save us from these people.’ The Israeli-American scholar Gershom Gorenberg notes that ‘dispensationalist’ theology does not foresee a happy fate for Jews: in the end-times ‘the Jews die or convert. … Christian Zionists don’t love real Jewish people. They love us as characters in their story, in their play … [and] it’s a five act play in which the Jews disappear in the fourth act.’ So, who is manipulating whom? A Mediator may therefore legitimately ask the question – ‘For whom and for what are members of your armed forces dying?’ I also recommend that you read ‘The Ethnic Cleansing of Palestine’ & ‘Ten Myths about Israel’, by the Jewish Professor of History, Ilan Pappe.’

Writing today in the influential US International Relations journal – ‘Foreign Affairs’, in an article entitled – ‘How to End America’s Hypocrisy on Gaza’, Sarah Yager who is Washington Director at Human Rights Watch, and from 2016 to 2018 served as the first Senior Adviser on Human Rights to the Chairman of the Joint Chiefs of Staff at the U.S. Department of Defense, wrote:

‘The Biden Administration Must Assess Israel’s Conduct—and Hold It to Account. Some might argue that the United States can afford a little hypocrisy in order to support its longtime ally Israel. But playing a part in the erosion of international law will have harmful consequences for the United States far beyond Gaza. Future declarations by the State Department concerning atrocities will ring hollow, making it harder to hold perpetrators accountable and deter future international crimes. Pressure on warring parties to abide by the laws of war in other places—for example, Azerbaijan or Sudan—will carry less weight. In the eyes of the world, it will become harder to distinguish the United States from countries that outright dismiss international law and intentionally undermine the rules-based international order through their actions. To start reining in Israel and to stop the haemorrhaging of American credibility, the Biden administration needs to task its lawyers to assess all available information—classified and unclassified—on Israel’s military campaign in Gaza and determine when and where Israeli forces have violated the laws of war, and whether the IDF held those responsible to account. Their findings should be made public, and the evidence presented to Congress. While those assessments are happening, Israel should be put on notice that U.S. military aid is at risk. The political costs of looking squarely at the evidence and correcting U.S. policy as necessary won’t be comfortable for a president and legislators on the campaign trail. But those costs are lower than the cost of U.S. authorities acting as if the acute suffering of the Palestinian people in Gaza does not deserve the same scrutiny as the suffering of civilians in other conflicts, a stance that gives ammunition to those who claim that, when it comes to applying core American principles and protecting basic human rights, Washington applies an obvious—and obviously hypocritical—double standard.’

I wonder what impact these views will have on the policy of the UK Government and Labour Party, as in less than three weeks time Israel must report to the ICJ and South Africa may make further submissions which could result in the ordering of more specific provisional measures. Whilst the US has vetoed any resolution against Israel in the UN Security Council it is fast approaching a cross-roads and so is President Biden whose latest approval rating was 38.6% [07.02.2024].

How to End America’s Hypocrisy on Gaza | Foreign Affairs

‘Following the ICJ ruling will Rishi Sunak confirm that future arms sales to Israel have been suspended?’

‘What makes the Government’s refusal to suspend arms sales even more horrifying is that Israeli officials have been quite open about their intent in Gaza. At the beginning of the assault, an Israeli military spokesperson said that “the emphasis” of bombing was on “damage and not on accuracy”.
Another official promised to turn Gaza into a “city of tents”, while the former head of the Israeli National Security Council said that the aim was to make Gaza “a place where no human being can exist.” The National Security Minister said that the only thing that should enter Gaza is “not a gram of humanitarian aid” but “hundreds of tons of explosives”. More recently, an Israeli Minister said that the war would be “Gaza’s Nakba”, which is a reference to the 1948 catastrophe in which hundreds of thousands of Palestinians were forcibly expelled from their homes and never allowed to return. Given that stated intent, and actions to match it, UN experts have warned of a “genocide in the making”. Let us be clear: if this is a genocide in the making, British-made weapons are almost certainly part of making that genocide happen. … Israel’s assault on Gaza has been carried out with the Government’s unequivocal support and with British-made weapons. … Following Israel’s Operation Protective Edge in 2014, which human rights organisations said violated international law, the Conservative-led coalition Government undertook an investigation into arms sales to Israel, finding that those arms could have been used by the Israeli military in Gaza. That resulted in the Government committing to suspend sales if Israel resumed its military assault.’ [Hansard – Extract from the speech by Zara Sultan MP (12.12.23).].

https://hansard.parliament.uk/commons/2023-12-12/debates/BF12F435-8E9A-44B0-AA34-ADA9D01616E0/ArmsExportLicencesIsrael

As today the ICJ accepted the case and Israel is now on trial for Genocide, those facts appear to impute to any person supplying arms to it, and to any politician who approves an export licence, ‘constructive knowledge’ that arms may be used to perpetuate genocide. Therefore, following the ICJ ruling, every such person is now on actual notice that if they do so, they may be investigated and prosecuted for ‘complicity’ in a core international crime. I wonder whether at PMQ’s, any MP will ask Rishi Sunak to confirm that following today’s ruling, no further export licences for the sale of arms to Israel will be approved by his government? The board of directors of any British company involved in the supply of arms and parts to Israel, are legally under a fiduciary duty to act in the best interests of their shareholders. Presumably they will make an independent commercial decision which will take into account the reputational risk of being investigated and prosecuted for supplying arms with constructive knowledge of use in genocide? Today’s ruling therefore has far reaching implications.

See also:

UK arms export licences to Israel in the dock (france24.com)

Selling Weapons to Israel Could Make UK Complicit in War Crimes | Human Rights Watch (hrw.org)

UK government faces legal challenge over arms exports to Israel | Israel-Gaza war | The Guardian

CDP-2023-0223.pdf (parliament.uk)

License to Kill: The Israel-Gaza Conflict and the UK’s Arms Exports Regime (justsecurity.org)

 

‘5 questions MPs can ask to test the legal necessity of calling for an immediate ceasefire in Gaza so that Israel can comply with IHL’

Article 49, Fourth Hague Convention [Google – ‘IHL Treaties – Geneva Convention (IV) on Civilians 1949’] states:
‘Deportations, transfers, evacuations – Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. … Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased. The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated. … The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.’ The term ‘forced’ is not limited to physical force. ‘It may also include the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment”. The essential element is that the displacement be involuntary in nature, [i.e.] that the relevant persons had no real choice. …’ [International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Simic et al., (Judgment), Case No. IT-95-9-T, Trial Chamber II (17 October 2003), para 125.
So, this week, when MPs debate whether the United Kingdom should call for an immediate ceasefire in Gaza, they can ask 5 questions to test the legal necessity of Israel agreeing to an immediate ‘humanitarian’ ceasefire so that it can comply with IHL:
·       ‘What accommodation has been provided by Israel to receive displaced Palestinians?’
·       ‘What has Israel done to ensure satisfactory conditions of hygiene, health, safety and nutrition for displaced Palestinians?’
·       ‘What has Israel done to ensure that members of the same family are not separated as a result of the illegal i.e. “forced” displacement of Palestinians?’
·       ‘What is Israel doing to ensure that civilians taking refuge in hospitals under attack are not being detained?’
·  ‘How can Israel transfer displaced Palestinians back to their homes after hostilities have ceased, if their homes have been bombed i.e. no longer exist?’
For statistics Google – ‘Israel-Gaza war in maps and charts: Live Tracker’ + Aljazeera

A violation of International Humanitarian Law can give rise to a private law remedy actionable in the English Court

‘Law Debenture Trust Corp Plc v. Ukraine [2023]UKSC 11 – Can a threat by one foreign state [‘S.1’] to use physical violence against civilians of another foreign state [‘S.2’] and a threat  to damage property in S.2 constitute duress under English Law?’
‘Where a contract is governed by English law, the English courts can entertain the defence of duress raised by a sovereign state [S.1] based on threats by another state [S.2] to use physical violence towards the armed forces and civilians of the threatened state and threats to damage or destroy property in the threatened state. Such threats can constitute duress under English law.’ (‘Duress, Undue Influence and Unconscionable Dealing’ by Nelson Enonchong (2023) Fourth Edition, Sweet & Maxwell, p.15).
At 147, their Lordships stated:
‘In argument, counsel for Ukraine maintained that Ukraine’s case on duress was based on the fact of the threats, that is to say on the nature of the acts which were threatened, rather than on their treatment under international law. On that basis, counsel characterised Ukraine’s case in relation to the threatened use of force as being based on duress of the person and of goods. Although counsel for the Trustee understandably emphasised that Ukraine’s case had not been pleaded in that way, the characterisation of this aspect of its case as one of duress of the person and of goods can be regarded as a change in the legal analysis of the facts pleaded rather than a different case on the facts. Defective pleadings which can be cured by amendment are not necessarily struck out without affording the pleader the opportunity to cure the deficiency, and the court has a wide ambit of discretion in this regard. The same principle also applies in the context of an application for summary judgment. In the present case, any trial of the action remains some considerable way off. We are also mindful that the law of duress has been the subject of significant clarification during the course of these proceedings. With all these factors in mind, we are prepared to consider Ukraine’s case based on alleged duress of the person and of goods. Any prejudice to the Trustee arising from Ukraine’s change of tack, and its failure to argue its case on the same basis in the courts below, is capable of being addressed in costs.’
Since equitable compensation ‘is a remedy by which the court of equity award substantial compensation for loss which the complainant has suffered as a result of the defendant’s equitable wrong … [it] is available even in a transaction where no property was transferred or none is required to be returned through rescission … Equitable compensation is a remedy which may be available in its own right in the absence of rescission … Equitable compensation seeks to restore the parties financially to the status quo ante.’ (Enonchong, para 28-064).

The Law Debenture Trust Corporation plc (Appellant) v Ukraine (Represented by the Minister of Finance of Ukraine acting upon the instructions of the Cabinet of Ministers of Ukraine) (Respondent) – The Supreme Court

‘Combatting the illicit trade is stolen antiquities is linked to global peace’

Article 2 of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property [‘UNESCO 1970’] states:
‘1. The States Parties to this Convention recognize that the illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural
heritage of the countries of origin of such property and that international co-operation constitutes one of the most efficient means of protecting each country’s cultural property against all the dangers resulting there from.
2. To this end, the States Parties undertake to oppose such practices with the means at their disposal, and particularly by removing their causes, putting a stop to current practices, and by helping to make the necessary reparations.’

‘There is international recognition that States should assist one another to prevent the unlawful removal of cultural objects including antiquities. … By Article 2 [UNESCO 1970] the parties recognise that the illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural heritage of the countries of origin, and that international cooperation constitutes one of the most efficient means of protecting each country’s cultural property, and the parties undertake to oppose such practices with the means at their disposal.’ (Lord Phillips CJ at: 155, 157 in Government of the Islamic Republic of Iran v. Barakat Galleries Ltd [2007] EWCA 1374).

‘Market’ and ‘Source’ countries share a common interest in combatting the global illicit trade in antiquities because it is linked to the drugs trade and terrorist financing, see the Report of the Ministerial Advisory Panel On Illicit Trade, December 2000. So, when a popular TV news anchor says ‘I simply don’t get it!’ what they are not ‘getting’ i.e. understanding and seeing, is the ‘big picture’ i.e. the geopolitical consequences of these three illicit trades fuelling each other, because they are all linked through organised criminal activity.

Cultural Heritage Diplomacy (‘CHD’) is a diplomatic forum/arena in which the UK working together with the United States and the EU, can provide global leadership. Cultural Heritage Diplomacy is at the heart of EU foreign policy, Google – ‘A new strategy to put culture at the heart of EU international relations’. ‘This field is in dire need of strong moral and political leadership. … It is only through mutual understanding of each other’s cultural and national identity that humankind can progress, as a global village, toward a more harmonious future. … Acting through the United Nations [state actors] should make a concerted effort to stop the invidious market in illegal art. No one benefits from these acquisitions. In the end, we all lose, because with each stolen artefact or piece of cultural property, we, as a community of nations, hinder UNESCO’s attempts at promoting mutual understanding through cultural education and exchange. It is only through such mutual understanding that nations can truly come to a greater knowledge of what makes us at the same time so different, yet so similar.. … [Diversity] of understanding is the root of what will lead to a more peaceful and more productive world community.’ (Shinn, John P. ‘A new world order for cultural property: addressing the failure of international and domestic regulation of the international art market’, 34 Santa Clara L.Rev 977 (1994), pp.978 & 1005).

‘Jurisdiction of the International Criminal Court’

States retain the primary responsibility in the prosecution of international crimes. Under the Geneva Conventions and Additional Protocol I of 1977, States must prosecute people accused of war crimes before their own national courts or extradite them for trial elsewhere.

The International Criminal Court (‘ICC’), headquartered in the Hague, exercises a complementary jurisdiction in respect of international crimes, and may take up a case when either:

1. a State is unable or unwilling to prosecute the suspects, which include former and serving:
   1. heads of state;
   2. government ministers;
   3. public officials;
   4. military, intelligence, and police personnel of any rank;
   5. members of a paramilitary group; and
   6. civilians; or
2. the Court is requested to initiate proceedings by the UN Security Council, acting under Chapter VII of the UN Charter.

The ICC is an independent international organisation, and is not part of the United Nations system. To download the ICC guide, ‘Understanding the International Criminal Court’ please click on this link*.

The jurisdiction of the ICC is limited to the most serious crimes of concern to the international community as a whole, including war crimes.

The ICC also has jurisdiction over crimes against humanity, which include a range of acts committed as part of a widespread or systematic attack directed against any civilian population.

Together, this includes most of the serious violations of international human rights law covered by the 1949 Geneva Conventions and the 1977 Additional Protocols, whether committed during an international or non-international armed conflict.

The ‘crime of aggression’, also mentioned in the Statute, was not defined during the establishment of the Court, but will come within the ICC’s jurisdiction once it is.

Contrary to other international courts, the ICC may take action against individuals but not States.

However, nothing in the ICC Statute releases States from their obligations under existing international humanitarian law or customary international law.

War Crimes

‘All war crimes are crimes for which there is universal jurisdiction, so that any State can prosecute them. The most authoritative and convenient, list of war crimes, committed in international or internal armed conflicts, is now to be found in the ICC statute. The defence that an accused was acting under the order of a superior is available only in very limited circumstances.’ Handbook of International Law, by Anthony Aust (formerly legal advisor to the Foreign and Commonwealth Office).

Article 8 (‘War Crimes’) of the Rome Statute of the International Criminal Court states,

1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2.         For the purpose of this Statute, “war crimes” means:

(a)     Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(i)     Wilful killing;

(ii)     …inhuman treatment…;

(iii)     Wilfully causing great suffering, or serious injury to body or health;

(iv)     Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(vi)     Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii)     …unlawful confinement;

(viii)     Taking of hostages.

(b)     Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

(i)     Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii)     Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

(iii)     Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(iv)     Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

(v)     Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

(vi)     Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

 (ix)     Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

 (xii)     Declaring that no quarter will be given;

(xiii)     Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;

(xvi)     Pillaging a town or place, even when taken by assault;

(xvii)     Employing poison or poisoned weapons;

(xviii)     Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

(xix)     Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;

(xx)     Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;

(xxi)     Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

 (xxiv)     Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(xxv)     Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;

 (c)     In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:  

(i)     Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(ii)     Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(iii)     Taking of hostages;

(iv)     The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.  

(e)     Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:  

(i)     Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii)     Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(iii)     Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(iv)     Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(v)     Pillaging a town or place, even when taken by assault;

 (x)     Declaring that no quarter will be given;

 (xii)     Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;

3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.

‘Prosecution of individuals in UK courts for international war crimes?’

Sky News reported at 11.30am today – ‘Israel-Hamas war: UK could be complicit in Gaza war crimes, Tory MP warns – Crispin Blunt, who is co-director of a pro-Palestinian group, told Sky News he is not sure his colleagues in Westminster are aware of the “legal peril they are in”. He spoke as Israel faces criticism for ordering more than a million people in Gaza to leave their homes. The UK could be complicit in war crimes in Gaza and could face legal action if it does not do more to “restrain” Israel, Tory MP Crispin Blunt has warned. The International Centre of Justice for Palestinians (ICJP) – of which Mr Blunt is co-director – announced it has written a notice of intention to prosecute UK government officials for “aiding and abetting war crimes in Gaza.” The move comes in response to Israel’s warning for 1.2 million people living in the northern part of the Gaza Strip to immediately leave their homes and move south. Mr Blunt told Sky News he is “not sure [his] colleagues have grasped the legal peril they are in” and “everyone must act to restrain people” if they know war crimes are going to happen. “If you know that a party is going to commit a war crime – and this forcible transfer of people is a precise breach of one of the statutes that governs international law and all states in this area – then you are making yourself complicit,” he said.” And as international law has developed in this area, the fact of being complicit makes you equally guilty to the party carrying out the crime.”’

Note – ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 36 paras 158-159:
‘It follows from that provision that every State party to that Convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with … [and] … In addition, all States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.’

So, under international law, the UK Government is under a positive duty to ensure compliance by Israel with IHL. See also my comment about International Armed Conflicts [‘IAC‘s’] and the possibility of criminal prosecutions being brought against individuals who are either arrested in the UK or extradited to the UK, to face prosecution for War Crimes, in a trial that will take place in the UK courts.

With respect to IAC‘s – ‘all states are obliged , pursuant to the Grave Breaches provisions of the Geneva Conventions, to domestically criminalise such violations, and seek out and either extradite or prosecute those violations.’ [Oxford Handbook of International Humanitarian Law (2020), by Ben Saul & Dapo Akande (Oxford University Press), p.355].

So, if any person sets foot on UK soil who was involved in any War Crime committed during an IAC, it would appear that as an individual, they are at risk of being arrested and prosecuted in a UK court for War Crimes. That would appear to include any person, who either directly or indirectly, has been complicit in a breach of IHL which amounts to a war crime.

Therefore, if, as senior foreign policy experts in the United States have warned in the journal Foreign Affairs this week, the conflict in Gaza becomes an IAC, i.e. because it escalates into a regional conflict, then it also appears to be possible, that with the permission of a future Attorney-General, private prosecutions could be brought against any individual, who does not have diplomatic immunity, who is either arrested in the UK, or can be extradited to the UK, to face charges in a War Crimes trial that will take place in the Old Bailey.

 

‘Cultural Heritage Safe Zones’

Could Cultural Heritage diplomacy be a neutral method of mediating a ceasefire to create a network of humanitarian corridors, i.e. by designating certain areas as “Cultural Heritage Safe Zones” and linking them up?’ As the war in Ukraine has brought into sharp focus, there is no one who today can effectively provide any observance of the International Humanitarian Law Rules. No international peacekeeping mission is possible, because Russia is blocking Security Council action. Therefore, the designation of an area as a ‘Cultural Heritage Safe Zone’ is linked to issues:
(i) the powers and procedures of the UN Security Council; and
(ii) reform of the UN Security Council.

See:

‘There is still time.’ The Vatican assesses its influence as war breaks out in Ukraine. (religionnews.com)

Vatican Diplomacy – Diplomat Magazine

The Vatican and International Diplomacy on JSTOR

Vatican Secret Diplomacy (culturaldiplomacy.org)

New book ‘God’s Diplomats’ unveils the secret history of Vatican diplomacy | National Catholic Reporter (ncronline.org)

‘No Fly Zones’

‘Air power can only be used effectively to coerce or deter if it is used in accordance with these ends. It can be called in to support a force on the ground and attack the targets indicated by the force as threatening it; and it can react to any aircraft ignoring the NFZ [No Fly Zone] and shoot it down. If it is to deter or coerce, then the opponent has to believe that targets that matter to him will be struck effectively, even if they are not necessarily those that he is risking in battle. He must also believe that you will escalate if you do not succeed in getting him to succumb at first, and that the outcome would be to his disadvantage. One is in effect negotiating by threatening or using force, in confrontation not conflict.’(‘The Utility of Force – The Art of War in the Modern World’ [2005], p.345 by General Sir Rupert Smith (former Deputy Supreme Commander (DSACEUR) in NATO. All territorial airspace is considered as coming within the purview of International Humanitarian Law [‘IHL’]. ‘IHL provides that certain areas within the territory of a party to the conflict (or in any other territory) may be rendered off-limits to military activity, through designation of the area as a demilitarised zone, a neutralised zone, and undefended locality (or safe zone), or a hospital or safety zone. Thus, IHL provisions and protection still apply, but these zones are not to be made the location of hostilities. Non-defended localities can be any town, village, dwelling, or building which is declared to be an undefended place. … Neutralised or demilitarised zones may also be established by parties to a conflict. … Demilitarised zones are outlined in article 60 of API and are intended to protect civilians living within such zones from attack by parties to the conflict. The provisions for establishing a demilitarised zone are similar to those for an undefended locality: however, demilitarised zones can only be created by agreement of the parties to the conflict. As the ICRC Commentary to the Protocols notes, the “essential character of the zones created in article 60 … [is] that they have a humanitarian and not a political aim; they are specially intended to protect the population living there against attack.”‘ (The Oxford Guide to International Humanitarian Law (2020) edited by Ben Saul and Dapo Akande), p.67. In international armed conflicts, international humanitarian law applies as soon as an armed conflict exists between states. The formal declaration of war is not required. Therefore, the four Geneva Conventions of 1949 apply to the invasion of a sovereign state by another state actor. The toolbox for humanitarian intervention includes the imposition of ‘humanitarian’ no-fly zones. An undefended locality can be estatblished unilaterally. Attacking a UN safezone is a breach of the rule of law. See also the ‘Humanitarian Mediation’ page at www.diplomaticlawguide.com.

See also:

• Amid Violence, Mass Forced Displacement, ‘Lives of Millions’ of Ukrainian Civilians at Stake, Humanitarian Affairs Chief Tells Security Council | Meetings Coverage and Press Releases
• 2022-02-26_Ukraine_Situation Report #1.pdf (reliefweb.int)
• What the UN General Assembly can do for Ukraine | Crisis Group
• On Theory and Practice of No-Fly Zones in Humanitarian Intervention: Studies in Conflict & Terrorism: Vol 0, No 0 (tandfonline.com)
• Clipped Wings: Effective and Legal No-fly Zone Rules of Engagement (usnwc.edu)
• NATO rushing to resupply Ukraine by land; no-fly zone all but ruled out – POLITICO
• Denying Flight: Strategic Options for Employing No-Fly Zones (rand.org)
• Meibauer_The futility of buffer zones.pdf (lse.ac.uk)

‘Are Principles of Humanity under International Humanitarian Law a diplomatic tool in mediating a peace process and agreement?’

Introduction

In this essay the author argues that:

• Cultural Heritage is part of our shared humanity.
• Cultural Heritage is entwined with UNESCO’s broader mandate concerning human rights, the rule of law, development, and peace.
• The duty of a state to protect Cultural Heritage (‘CH’) is quintessentially a fiduciary duty under International Humanitarian Law (‘IHL‘). The underlying premise is that every civilized society is a fiduciary of humanity, and so are their governments.
• Intentional destruction of cultural heritage is an unjustifiable offence to the principles of humanity.
• Destruction of CH is not only a war crime under IHL it can also be a political mistake – that is the paradox of Machiavelli’s Principle of Survival(‘MPS’).
• If the destruction of CH has the potential to politically destabilise the aggressor (‘H’ i.e. a Hegemon), then it follows that  surrounding states in the region (‘SIR’s’) also have a national security interest in the survival of H.
• Therein, and counter-intuitively, lies the seed of a principle that can result in the mediation of terms of peace which ensure the survival of both H and the sovereign state invaded by H. If this geo-political interest is recognised by all parties to the conflict and their supporters, that could open the door to a mediated dialogue using cultural heritage as a language of diplomacy, to negotiate a ceasefire and peace agreement.
• This is where a non-partisan Non-State Actor (‘NSA’) e.g. an NGO, can play an instrumental diplomatic and mediation role.

Strategic importance of Cultural Heritage

In the frequently quoted words of the 1954 Hague Convention, cultural property is ‘the cultural heritage of all mankind.’[i] In other words, Cultural Heritage it is part of our shared humanity. Therefore, we all have a common interest in preserving and protecting cultural property everywhere.

Cultural Heritage is entwined with UNESCO’s broader mandate concerning human rights, the rule of law, development, and peace.[ii]

‘Annihilation of cultural heritage is gradually evolving into an issue of peace and security in the 21^st century. Destructive ideologies are not new in history, as the UNESCO Strategy, entitled ‘Reinforcement of UNESCO’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict’, acknowledges; but today “threats to cultural heritage in the event of armed conflict result from intentional destruction, collateral damage, forced neglect, as well as from organised looting and illicit trafficking of cultural objects … [on] an unprecedented scale.”[iii] Intentional destruction of cultural heritage by extremist non-State actors, such as the Taliban in Afghanistan, the so-called Islamic state (Islamic State of Iraq and the Levant, or ISIL, or Daesh) in Syria, Iraq, and Libya, or Boko Haram in Nigeria, may be seen as part of “ideological warfare against cultural property.”[iv] …’[v]

Cultural identity is considered to part of human dignity. It is linked to human rights because cultural heritage is of crucial importance to individuals and communities as part of their identity. As cultural heritage requires memory, this applies to both tangible and intangible heritage, because material and physical heritage needs to be placed in both a historical and cultural context, in order to understand its value.

‘The cultural heritage of a people is not limited to the tangible expressions of art, architecture, religion, poetry, or writing in general but also includes its intangible heritage, which is transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity. More generally, cultural heritage includes the expressions of the people’s spirituality, and the body of values which give meaning to life’  (Francioni & Vrdoljak‘, p 77).

Duty to protect

The author’s thesis, is that when ‘Art’ (‘A’) is of cultural significance, i.e. is recognised as being ‘Cultural Heritage’  (‘CH’), it forms part of a recognised heritage. If then in either a narrow or a broad sense, it becomes part of civilization and a record of human evolution (i.e. part of the consciousness and collective memory of mankind), public duties do or should attach to possession. In particular, the possessor (‘P’) who owns A that is also CH, is also a custodian of the CH. In which case, duties attach to possession, e.g. a duty to preserve and protect the cultural property (‘DP). DP also applies to an underwater archaeological site, because as the French Archaeologist Salomon Reinach famously remarked, ‘The sea is the largest museum in the world’.  If P is a state, these duties extend to protecting the CH in the event of war. Therefore, DP is quintessentially a fiduciary duty under IHL.  The underlying premise is that every civilized society is a fiduciary of humanity, and so are their governments.[vi] This also highlights the existence of a potential intersection between: (i) ‘principles of humanity’ under IHL; and (ii) the existence of ‘fiduciary duties’ on state actors under foundational principles of international law – see Criddle & Fox-Decent (2009).

The paradox of Machiavelli’s Principle of Survival

In the 16th century, the strategist and political philosopher Niccolò Machiavelli wrote that ‘he who becomes a master of a city accustomed to freedom and does not destroy it, may expect to be destroyed by it, for in rebellion it has always [been] the watchword of liberty and its ancient privileges as a rallying point, which neither time nor benefits will ever cause it to forget.’ (‘The Prince’, Chapter V – ‘Concerning The Way To Govern Cities Or Principalities Which Lived Under Their Own Laws Before They Were Annexed.’)(1532). In other words, if you really want to destroy a people, its pride, it self esteem, and its sense of belonging to its own cultural identity, you need to destroy its cultural heritage, otherwise you will not be able to dominate. (‘Machiavelli’s principle of survival’) [‘MPS’].

‘The real target of most acts of intentional destruction of cultural heritage is therefore, not the heritage in itself but the human communities for which such a heritage is of special significance.’ (‘Mens Rea of Intentional Destruction of Cultural Heritage’, by Federico Lenzerini, Chapter 4 of the Oxford Handbook of International Cultural Heritage Law’ (2020), Oxford University Press, page 77).

Analysing the psychology of an invasion through the hard geo-political lens of ‘Offensive Realism’ (see Mearsheimer 2014), if an invading sovereign state is a hegemon or an aspiring hegemon) (‘H’), and the political logic underlying invasion is survival, then since a hegemon must dominate in order to survive, there is a paradox, because PA requires the destruction of CH. In other words, to achieve its political objectives, H must destroy part of itself.

Therefore, invasion may be a political mistake[vii]. The miscalculation is that instead of H becoming stronger it will actually weaken itself, because by invading a state with a shared cultural heritage, H will to an extent destroy its own cultural identity. If that happens then over time, institutionally H may become unstable and ungovernable, resulting ultimately in the political break-up of H. In other words, institutionally, the destruction of cultural heritage by H is an act of political self-destruction.

The existential question for H then becomes, how do they end the war without ending up being in a worse position than they were in before it, in order to:

(i) preserve the status quo within H itself; and

(ii) restore the balance of power (i.e. the status quo ante) between H and other hegemons and aspiring hegemons in the region/world, including H‘s political allies –  who may pursue their own self-interest at the expense of H, if H becomes politically unstable, i.e. by annexing territory that H can no longer politically control because its military capability and economy have been weakened.

If the author is right, then the calculus of risk by H is a dynamic that can influence a decision by H to end a war by positively engaging in mediation.

Intentional destruction of cultural heritage is an unjustifiable offence to the principles of humanity

‘The destruction of heritage, and prohibition of cultural behaviours are used by certain conflict actors as “shaping operations”, where violence against the “Other” becomes normalised as communities, either incrementally or at once, lose their property, freedoms, and humanity. Culture is a shared set of values, ideas, and behaviours that enable a social group to function and survive. Cultural heritage maintains identity, social cohesion, and a sense of security through intangible practices, including rituals, music, language and skills, and tangible property such as artefacts, archaeology and places. Roosevelt’s four  freedoms link cultural behaviour – to freedom from fear and want. Targeting cultural heritage is an act of power that legitimises one group while diminishing others and is often a precursor for the most offensive form of cultural destruction: genocide.’[viii]

Hence, there is an unspoken connection between:

1. the deliberate destruction of cultural heritage as a strategy by an invading force in war and occupation;
2. ethnic cleansing; and
3. genocide.

The intentional destruction of cultural heritage is an offence against humanity as a whole.[ix] Article II.2 of the 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage (17 October 2003) states:

‘For the purposes of this Declaration “intentional destruction” means an act intended to destroy in whole or in part cultural heritage, thus compromising its integrity, in a manner which constitutes a violation of international law or an unjustifiable offence to the principles of humanity and dictates of public conscience, in the latter case in so far as such acts are not already governed by fundamental principles of international law.’

In other words, the intentional destruction of cultural heritage is an unjustifiable offence to the principles of humanity and the dictates of public conscience.

Principles of Humanity

Whether IHL can bring warring P‘s together in an ‘offensive realism’ paradigm depends upon the answer to the following questions:

• Do universal ethical values exist under IHL as ‘Principles of Humanity’ [‘principles’][x].
• What are these principles.
• In the real world, could these principles be used in mediation as potential building blocks of a peace process, protocol, and agreement – i.e. are they a sufficient basis for starting a ‘difficult’ conversation that can eventually transform attitudes and each P’s Political Doctrine [‘PD’], resulting in the negotiation of a sustainable and enduring Peace Treaty.

The philosophical pillars of universal Principles of Humanity under IHL, are two classical doctrines:

(i) obligations ‘erga omnes’; and

(ii) ‘jus cogens’.

Although it can be said that jus cogens rules consist of rules stipulating erga omnes obligations, it is not axiomatic that erga omnes obligations constitute jus cogens. While there is an overlap between: (i) obligations erga omnes; and (ii) jus cogens rules, the IHL principles and norms that can be derived from the nexus between these doctrines in relation to Cultural Heritage suffer from a lack of scholarly formulation, definition and classification.

Therefore the answer to the first question is yes. However because the formulation of these principles and their philosophical basis under IHL, requires further research[xi], the answer to the second question is almost a blank canvass.The answer to the third question depends upon whether these principles align with H’s political interest in the preservation of CH, as destruction of CH is ultimately an act on institutional self-destruction. So, in theory, because, by definition preservation of CG is common ground,  the door is open for a form of Mediation to take place through Cultural Heritage Diplomacy.

Conclusion

There is a tension between the:
(i)      common ground represented by a shared cultural heritage, including a set of ethical, philosophical and religious values/beliefs; and
(ii)      political ambitions and objectives (‘PA’) that drive military strategy in war.

A logical corollary of MPS, is that where  an invading state and an invaded state share a common cultural heritage i.e. CH, that the invader must destroy part of itself in order to achieve its political objective(s), i.e. its PA.

Arguably, Principles of Humanity under IHL are a powerful diplomatic tool in mediating a peace process and agreement, because violation, i.e. the impact of war on CH, may adversely sway public opinion within H and weaken support for the war.

When the political strategy of H is to create a failed state i.e., where it has failed in its primary objective to turn the invaded state into a client state, then the preservation and protection of cultural heritage in the invaded state, is also arguably elevated to the level of being a threat to the national security of any other state in the region (‘SIR’), because there is a risk of a failed state emerging within SIR‘s geo-political sphere of influence.

If the destruction of CH has the potential to politically destabilise H, then it follows that SIR also has a national security interest in the survival of H.  Therein, and counter-intuitively, lies the seed of a principle that can result in the mediation of terms of peace which ensure the survival of both H and the sovereign state invaded by H. If this geo-political interest is recognised by all parties to the conflict and their supporters, that could open the door to a mediated dialogue using cultural heritage as a language of diplomacy, to negotiate a ceasefire and peace agreement. This is where a non-partisan NSA e.g. an NGO, can play an instrumental diplomatic and mediation role.[xii]

Bibliography

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Bowling, Daniel (Editor) & David Hoffman (Editor) (2003), Bringing Peace Into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution, Jossey-Bass. (‘Bowling et al’).

Carstens, Anne-Marie & Elizabeth Varner (2020), Intersections In International Cultural Heritage Law, Oxford University Press. (‘Carstens & Varner’).

Chalcraft, Jasper Into the Contact Zones of Heritage Diplomacy: Local Realities, Transnational Themes and International Expectations, International Journal of Politics, Culture and Society (published online 05.01.2021). (‘Chalcraft’).

Clack, Timothy & Mark Dunkley (2022) Cultural Heritage in Modern Conflict, Past, Propaganda, Parade, Routledge. (‘Clack & Dunkley’).

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Durbach, Andrea & Lucas Lixinski (2019) Heritage, Culture And Rights – Challenging Legal Discourses, Hart. (‘Durbach & Lixinski’).

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Mearsheimer, John J. (2023) & Sebastian Rosato How States Think: The Rationality of Foreign Policy, Yale University Press. (‘Mearsheimer & Rosato’).

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[i] This has a philosophical root in the western liberal theory of cultural property internationalism ‘A related claim is a critique of the nationalist position, namely that cultural heritage is a fluid concept and hence claims to total sovereignty are arbitrary. The position is less that there is no national claim to territorial cultural property, but rather that a balance should be struck between sovereignty and shared access to what is viewed by the cultural property internationalists as a common cultural heritage of humanity. Support for these claims are likewise evident from Article 4 UNESCO 1970, which includes in the definition of “cultural heritage” both “cultural property which has been the subject of a freely agreed exchange,” and “cultural property received as a gift or purchased legally with the consent of the competent authorities of the country of origin of such property.” These provisions seem to reflect an idea that cultural property can be attributed to a cultural heritage beyond the territory of its origin, and also acknowledges the value in protecting other states’ provision of access to cultural property of foreign origin.’ (Strother, p.358).

[ii] ‘Culture is [also] a key element of operational understanding. Operations of both the British and US militaries in Afghanistan and Iraq taught hard lessons: culture is critical. Culture is a driver and motivator of people. It is also a medium for communication and a means to achieve military effect. It can also shape and define the Information Environment. Culture, as a component of military planning is one of four key human factors that shape the operating environment. Put simply, culture determines how people interpret and orientate themselves to that environment.’ Clack & Dunkley, p.301 – An interview with Captain Mark Waring. These are the words of Captain Waring.

[iii] UNESCO General conference, ‘Reinforcement of UNESCO’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict (2 November 2015) UNESCO doc 38/C/49. See also UNESCO General Conference, ‘Strategy for the Reinforcement of UNESCO’s action for the protection of culture and the promotion of Cultural Pluralism in the Event of Armed Conflict’ (24 October 2017) UNESCO doc 39/C/57, para 1.

[iv] Kirsten Schmalenbach, “ideological Warfare Against Cultural Property: UN Strategies and Dilemmas” 19 Max Planck  YB UN L 1.

[v] Carstens & Elizabeth Varner, p.82.

[vi] Note also that ‘fiduciary principles play a prominent role in the international law of occupation. As one leading scholar has observed, the foundational principle upon which the entire law of occupation is based is the principle of inalienability of sovereignty through unilateral action of a foreign power. Accordingly, when a state establishes effective control over foreign territory, its international legal status is conceived to be that of a trustee who exercises only temporary managerial powers until the occupation ends. … An occupant also bears a variety of proscriptive fiduciary duties. It must respect unless absolutely prevented, the laws in force in the country. … Nor may an occupant confiscate private property, [or] destroy property without military necessity. … Moreover the occupant serves only as administrator and usufructuary of public buildings, [and] real estate … belonging to the hostile state, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct, avoiding wasteful or negligent destruction of the capital value … Contrary to the rules of good husbandry. … For centuries, international lawyers and statesmen have endorsed the principle that a state’s sovereign authority is held in trust for the benefit of its people.’ (Criddle, Miller & Sitkoff, pp.356 & 358-9).

[vii] In a proxy war, where a hegemon (‘H‘) is a liberal democracy acting in support of a strategic asset (‘SA’), aggression by SA in breach of IHL not only undermines the integrity of the international rules based order where a Nelsonian blind eye is turned to violation, it can also turn SA into a ‘liability’ which can sway public opinion in H, who demand that support for SA cease.

[viii] Clack & Dunkley, p.301 – An interview with Colonel Rosie Stone. These are the words of Colonel Stone.

[ix] ‘[It] seems to have been forgotten that even wars have limits.

The so-called “Hague-Law”, which regulates the use of means and methods of warfare so as to mitigate, as much as possible, the “calamities of war”, is the oldest branch of IHL. It’s basic tenet can be summarised in three fundamental maxims, namely: (i) that “the only legitimate object which states should endeavour to accomplish during war is to weaken military forces of the enemy”; and that therefore, in pursuing this aim, both (ii) “the right of the parties to the conflict to choose methods or means of warfare is not unlimited”; and (iii) “[t]he civilian population and individual civilians shall enjoy general protection against dangers arising from military operations.”’ (Saul & Akande, p.235).

[x] Primary sources include:

• Hague Convention II, Convention (II) with respect to the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land (adopted 29 July 1899, entered into force 4 September 1900):-

‘Preamble …

Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and requirements of the public conscience.’

• Additional Protocol 1, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (adopted 8 June 1977, entered into force 7 December 1978):-

1(2) – In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.’

• International Criminal Tribunal for the former Yugoslavia – Prosecutor v. Kupreskic et al., (Judgment), Case No. IT-95-16-T, Trial Chamber (14 January 2000).

The following is an extract from Tsagourias & Morrison, pp43 & 44:

‘On the issue of humanity and how it assists in the interpretation of IHL, the Chamber held as follows:

525. More specifically, recourse might be had to the celebrated Martens Clause which, … Has by now become part of customary international law. True, this Clause may not be taken to mean that the ‘Principles of Humanity’ and the ‘Dictates of Public Conscience’ have been elevated to the rank of independent sources of international law, for this conclusion is belied by international practice. However, this clause enjoins, as a minimum, reference to those principles and dictates any time a rule of international humanitarian law is not sufficiently rigorous or precise: in those instances, the scope and purport of the rule must be defined with reference to those principles and dictates.’

• Danish Ministry of Defence, Defence Command Denmark, Military Manual on International Law Relevant to Danish Armed Forces in International Operations (2016, updated 2020), chapter 4:-

‘The principle of humanity expresses a fundamental prohibition against the infliction of suffering, injury, or destruction that is not actually necessary for the accomplishment of legitimate military purposes. The principle also implies the basic requirement of humane treatment. … There are three aspects to the principle of humanity. The first aspect concerns the fact that belligerents are limited in their use of means and methods of warfare. … The second aspect of the principle of humanity is the requirement that certain precautions – for instance, in the choice of means and methods – must be taken in connection with the planning and execution of attacks and in the defence against attacks. … The third aspect of the principle concerns a minimum standard for the humane treatment of any person who is held in the custody of the belligerent state.’

• ‘The key to understanding international jus cogenslies in a much neglected passage of The Doctrine Of Right, where Immanuel Kant discusses the innate right of humanity which all children may assert against their parents as citizens of the world. Drawing on Kant’s account of familial fiduciary relations, our theory of jus cogens posits that states exercise sovereign authority as fiduciaries of the people subject to state power. An immanent feature of this state subject fiduciary relationship is that the state must comply with jus cogens.’ (Criddle & Fox-Decent (2009), pp.353 – 354 (Kant’s Model of Fiduciary Relations).

[xi] ‘An additional consideration should be devoted, as well, to unpacking the fiduciary model’s consequences for future litigation to enforce alleged jus cogens violations, including such threshold concerns as standing, sovereign immunity, causes of action, compulsory jurisdiction, forums, and remedies. … Addressing these questions will be essential to determine the specific legal consequences that flow from a breach of jus cogens.’ (Criddle & Fox-Decent (2009)).

[xii] For example in mediating a ceasefire, in order to create a network of humanitarian corridors, i.e. by designating certain areas as ‘Cultural Heritage Safe Zones’, and then linking them up, so as to create a matrix, which in effect brings about a cessation of military operations throughout a conflict zone.