International Humanitarian Law & Mediation

‘The way to change the game is to change the frame’ – William Ury (Director of the Global Negotiation Project at Harvard University).

‘Appreciate their point of view.  Understand it. It is very important to appreciate the way they see it. Even if you don’t agree, say that it merits serious consideration. Don’t say that they are wrong. Appreciate their self-esteem. Acknowledge that the other person has been heard. Be prepared to argue their case better than they can before you answer it.’

The late Professor Roger Fisher (Roger Fisher (academic) – Wikipedia) in a two hour conversation with Carl Islam at Harvard Law School during a research visit as a Scholar from King’s College London to Harvard University in April 2002.

‘In the heat of a dispute it is easy for scholars and statesmen alike to forget that, though life can only be understood backwards, it must be lived forwards.’ (‘Sending Them Home – Some Observations on the Relocation of Cultural Objects from UK Museum Collections’ by the late Professor Norman Palmer, Art Antiquity And Law, Vol 5, Issue 4, December 2000, page 353).

Contents:

    • Articles & Talks.
    • International Court of Justice – Hearings & Judgments.
    • Humanitarian & Transformative Mediation Resources.
    • Mediation of Peace Process and Agreement Resources.
    • Research Bibliography.
    • Blogs & Essays – NB these are set out and appear after the ‘Bibliography’ so please scroll down to find and read.

–   ‘The law as States would like it to be is not the law as it is.’

–   ‘Derogation from a peremptory norm is not permitted under International Law – so there can be no defence to a jus cogens violation.’

–   ‘Is pressure from within the US Foreign Policy establishment gathering momentum to rein in Israel and stop the haemorrhaging of American credibility?’

–  ‘The ICJ Ruling’s Hidden Diplomacy – How the Court’s Considered Measures Can Help America Restrain Israel.’

–   ‘Fiduciary theory of jus cogens.’

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

–   ‘War Crime of execution – Rome Statute of the ICC.’

–   ‘South Africa’s case is legally watertight.’

–  ‘Cultural Genocide is the Elephant in the Room at the ICJ for the Global South.’

–  ‘Intentional destruction of cultural heritage is not only a war crime it is also prima facie evidence of genocide.’

–  ‘War is as much about destroying cultures and identity as it is about killing people and seizing land.’

–  ‘The UK Government is under a positive duty to ensure compliance by Israel with International Humanitarian Law’.

–  ‘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.’

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

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

– ‘Complicity In International Law.’

– ‘UK accused of seeking to block the international court of justice.’

– ‘Jurisdiction of the International Criminal Court.’

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

– ‘International Humanitarian Law prohibits the starvation of civilians as a method of warfare.’

– ‘For a war crimes suspect nowhere is safe.’

– ‘Cultural Heritage Safe Zones.’

– ‘No Fly Zones.’

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

Articles & Talks

Please note that links to Foreign Affairs articles are only available to view on my PC and are not accessible to visitors to the webiste. They are assembled here for my future research and writing.

International Court of Justice – Hearings & Judgments

Humanitarian & Transformative Mediation Resources

Mediation of Peace Process & Agreement Resources

Research Bibliography

Abelow, Benjamin (2022) How the West Brought War to Ukraine: Understanding How U.S. and NATO Policies Led to Crisis, War, and the Risk of Nuclear Catastrophe Paperback, Siland Press.

Aksenova, Marina (2019) Complicity in International Criminal Law, Hart Publishing.

Allison, Graham (2018) Destined for War: can America and China escape Thucydides’ Trap?, Scribe UK.

Aust, Anthony (2013) Modern Treaty Law and Practice, Third Edition, Cambridge University Press.

Bailliet, Cecilia M. (editor) (2020) Research Handbook on International Law and Peace, Edward Elgar Publishing Limited.

Bell, Christine (2008) On The Law Of Peace, Oxford University Press.

Besson, Samantha & John Tasioulas (2013) The Philosophy of International Law, Oxford University Press.

Bowen, Jeremy (2022) The Making of the Modern Middle East: A Personal History, Picador.

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.

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

Carter, Jennifer (2022). Human Rights Museums: Critical Tensions Between Memory and Justice. Routledge.

Carty, Anthony (2017) Philosophy of International Law, Second Edition, Edinburgh University Press.

Chechi, Allesandro (2014) The Settlement Of International Cultural Heritage Disputes, Oxford University Press.

Cook, Stephen A. & Martin S. Indyk (2022) The Case for a New U.S.-Saudi Strategic Compact, Council on Foreign Relations.

Clark, Christopher (2013) The Sleepwalkers: How Europe Went to War in 1914, Penguin.

Cloke, Kenneth (2019) The Crossroads of Conflict – A Journey Into the Heart of Dispute Resolution,  Goodmedig Press.

Cox, Michael (2022) Agonies of Empire – American Power from Clinton to Biden, Bristol University Press.

Criddle, Evan J. & Evan Fox-Decent (2016) Fiduciaries of Humanity – How International Law Constitutes Authority, Oxford University Press.

Criddle, J., Evan Fox-Decent, Andrew S. Gold, Sung Hui Kim & Paul B.Miller (2018), Fiduciary Government, Cambridge University Press.

Crisp, Roger (2015) The Oxford Handbook of The History Of Ethics, Oxford University Press.

de Chazournes, Laurence Boisson, Marcello G. Kohen & Jorge E. Vinuales (2013) Diplomatic and Judicial Means of Dispute Settlement, Martinus Nijhoff Publishers.

de Mesquita, Bruce Bueno (1981), The War Trap, Yale University Press.

Denza, Eileen (2018) Diplomatic Law – Commentary on the Vienna Convention on Diplomatic Relations, Oxford University Press.

Djefal, Christian (2016) Static and Evolutive Treaty Interpretation, Cambridge University Press.

Drazewska, Berenika (2021) Military Necessity in International Cultural Heritage Law, Brill Nijhoff.

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

Duke, Annie (2018) Thinking in Bets, Portfolio Penguin.

Failat, Yanal Abul (2022) Outer Space Law: Legal Policy and Practice 2nd ed, Globe Law and Business.

Fisher, Roger & Scott Brown (1988) Getting Together – Building Relationships As We Negotiate, Penguin Books.

Fisher, Roger, Elizabeth Kopelman & Andrea Kuper Schneider (1994) Beyond Machiavelli – Tools For Coping With Conflict, Penguin Books.

Fisher, Roger & Daniel Shapiro (2007) Building Agreement – Using Emotions As You Negotiate, RH Business Books.

Fleck, Dieter, Editor (2021) The Handbook of International Humanitarian Law 4th ed, Oxford University Press.

Fox-Decent, Evan (2011) Sovereignty’s Promise – The State as Fiduciary, Oxford University Press.

Freedman, Sir Lawrence (2013) Strategy – A History, Oxford University Press.

Freedman, Sir Lawrence (2022) Command: The Politics of Military Operations from Korea to Ukraine,  Allen Lane.

Gardiner, Richard (2015) Treaty Interpretation, Oxford University Press.

Goold, Benjamin J. & Liora Lazarus (2019) Security And Human Rights, Hart Publishing.

Gozzi, Gustavo (2019) Rights and Civilizations – A History and Philosophy of International Law, Cambridge University Press.

Grant, Adam (2021) Think Again – The Power Of Knowing Waht You Don’t Know, Penguin Books.

Hollis, Duncan B. (2012) The Oxford Guide to Treaties, Oxford University Press.

Indyk, Martin (2021) Master of the Game: Henry Kissinger and the Art of Middle East Diplomacy, Knopf Books for Young Readers.

Iverson, Jens (2021) Jus Post Bellum: The Rediscovery, Foundations, and Future of the Law of Transforming War into Peace, Brill Nijhoff.

Jackson, Miles (2015) Complicity in International Law, Oxford University Press.

Jervis, Robert (2017) Perception and Misperception in International Politics. Princeton University Press.

Jervis, Robert (2017) How Statesmen Think – The Psychology of International Politics, Princeton University Press.

Kahneman, Daniel (2011) Thinking Fast And Slow, Allen Lane.

Kennan, George.F (2012) American Diplomacy, The University of Chicago Press.

Kim, Jihon (2022) Non-State Actors in the Protection of Cultural Heritage: An Analysis on Their Rights, Obligations, and Roles, Springer-Verlag.

Kissinger, Henry (1957), (2013 update) A World Restored – Metternich, Castlereagh and the Problems of Peace 1812-22, Echo Point Books & Media LLC.

Kissinger, Henry (2022) Leadership: Six Studies in World Strategy, Allen Lane.

Kolb, Robert (2016) Theory of International Law, Bloomsbury.

Kolb, Robert (2017) The Law Of Treaties, Edward Elgar.

Koopmans, Sven M.G. (2008) Diplomatic Dispute Settlement – The Use of Inter-State Conciliation, T.M.C Asser Press.

Koopmans, Sven M.G. (2018) Negotiating Peace – A Guide To The Practice, Politics, And Law Of international Mediation, Oxford University Press.

Lafollette, Hugh (2010) The Oxford Handbook of Practical Ethics, Oxford University Press.

Lanovov, Victor (2019) Complicity and its Limits in the Law of International Responsibility, Hart Publishing.

Levinger, Matthew (2013) Conflict Analysis – Understanding Causes, Unlocking Solutions, United States Institute of Peace.

Mackinder, Sir Halford (2020) The Geographical Pivot of History, Cosimo Classics.

Malhotra, Deepak & Max H. Bazerman (2008) Negotiation Genius, Harvard Business School, Bantam Books.

Malhotra, Deepak (2016) Negotiating The Impossible – How To Break Deadlocks And Resolve Ugly Conflcts (Without Money or Muscle), Harvard Business School, Berrett-Kohler Publishers, Inc.

Malik, Kenan (2014) The Quest for a Moral Compass: A Global History of Ethics, Atlantic Books.

Malik, Kenan (2023) Not So Black and White: A History of Race from White Supremacy to Identity Politics, Hurst Publishers.

Martin, Mike (2018) Why We Fight, C Hurst & Co Publishers Ltd.

Mearsheimer, John J. (2014) The Tragedy Of Great Power Politics (Updated Edition), Norton.

Mearsheimer, John J. (2019) The Great Delusion: Liberal Dreams and International Realities (Henry L. Stimson Letures),Yale University Press.

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

Meyer, Thomas, Jose de Sales Marques & Marion Telo (2021) Towards a New Multilateralism – Cultural Divergence and Political Convergence?, Routledge.

Milton, Patrick, Michael Axworthy and Brendan Simms (2018) Towards A Westphalia for the Middle East,C Hurst & Co Publishers Ltd.

Mitchell J. George & Alon Sachar (2016) A Path To Peace – A Brief History of Israeli-Palestinian Negotiations and a Way Forward in the Middle East, Simon & Schuster.

Odon, Daniel Ovo (2023) Armed Conflict and Human Rights Law: Protecting Civilians and International Humanitarian Law, Routledge.

Osthagen, Andreas (2022) Ocean Geopolitics: Marine Resources, Maritime Boundary Disputes and the Law of the Sea, Edward Elgar Publishing Limited.

Omand, David (2020) How Spies Think – Ten Lessons in Intelligence, Penguin Viking.

Omand, David (2023) How To Survive A Crisis – Lessons in Resilience and Avoiding Disaster, Penguin Viking.

Peak, Thomas (2021) Westphalia From Below: Humanitarian Intervention and the Myth of 1648, C Hurst & Co Publishers Ltd.

Pirie, Fernanda (2021), The Rule of Laws: A 4000-year Quest to Order the World, Profile Books.

Powell, Jonathan (2014), Talking To Terrorists – How to end armed conflicts, Vintage.

Ramsbotham, Oliver, Tom Woodhouse & Hugh Miall (2021) Contemporary Conflict Resolution, Fourth Edition, Polity.

Randolph, Paul (2016) The Psychology of Conflict, Bloomsbury.

Retter, Mark and Andrea Varga (editors) (2021) International Law and Peace Settlements, Cambridge University Press.

Reus-Smit, Christian & Duncan Snidal (2008) The Oxford Handbook of International Relations, Oxford University Press.

Richmond, Oliver P. (2022)  The Grand Design: The Evolution of the International Peace Architecture, Oxford University Press USA.

Roberts, Sir Ivor (2018) Satow’s Diplomatic Practice, Seventh Edition, Oxford University Press.

Ross, Dennis (2004) The Missing Peace: The Inside Story of the Fight for Middle East Peace,St Martin’s Press.

Rudd, Kevin (2022) The Avoidable War: The Dangers of a Catastrophic Conflict between the US and Xi Jinping’s China, Public Affairs.

Saul, Ben & Dapo Akande (2020) The Oxford Guide To International Humanitarian Law, Oxford University Press.

Shafer-Landau, Russ (2013) Ethical Theory – An Anthology, Wiley-Blackwell.

Shapiro, Daniel (2017) Negotiating the Non-negotiable, Penguin Books.

Shirk, Susan L (2022) Overreach: How China Derailed Its Peaceful Rise, OUP USA.

Simms, Brendan and D.J.B Trim 2011) Humanitarian Intervention, Cambridge University Press.

Singer, Peter (1993) A Companion To Ethics, Blackwell Publishing.

Smith, Retired General Sir Rupert (2005) The Utility of Force – The Art of War in the Modern World, Penguin Books.

Stewart, Rory & Gerald Knaus (2012) Can Intervention Work?, W.W. Norton & Company.

Stone, Douglas, Bruce Patton & Sheila Heen (2000) Difficult Conversations, Penguin Books.

Strasser, Freddie & Paul Randolph (2004), Mediation – A Psychological Insight into Conflict Resolution, Contunuum.

Tams, Christian J. & Antonios Tzanakopoulos (2012), Basic Documents on The Settlement Of International Disputes, Hart Publishing.

Tan, Floris (2023) The Duty to Investigate in Situations of Armed Conflict: An Examination under International Humanitarian Law, International Human Rights Law, and their Interplay, Brill Nijhoff.

Thouless R.H. & C.R. Thouless (1930) Straight & Crooked Thinking, Hodder Education.

Turner, Catherine (Editor) & Mark Wahlisch (Editor) (2021) Rethinking Peace Mediation: Challenges of Contemporary Peacemaking Practice, Bristol University Press.

Ury, William (1993) Getting Past No – Negotiating In Difficult Situations, Bantam Books.

Ury, William (1999) The Third Side – Why We Fight And How We Can Stop, Penguin Books.

Voss, Chris with Tahl Raz (2016) Never Split The Difference – Negotiating as if your life depended on it, RH Business Books.

Walker, Stephen (2021) Mediation Behaviour – Why We Act Like We do, Bloomsbury Professional.

Zwier, Paul.J. (2013) Principled Negotiation And mediation In The International Arena, Cambridge University Press.

Blog & Essays

‘The law as States would like it to be is not the law as it is.’

The six days of hearings in the ICJ of Israel’s occupation of the Palestinian territories concluded on 26 February 2024.

There are links to the proceedings on each day on the International Humanitarian Law and Mediation page under the heading ‘International Court of Justice – Hearings & Judgements’ at www.diplomaticlawguide.com.

Outstanding speeches include:
·       Palestine (Day 1) – scroll along to 1:15.
·       League of Arab Nations (Day 6 – Morning session) – scroll along to 53.00.
·       Mauritius (Day 6 –Afternoon session) – scroll to 1:18.

Representing the League of Arab Nations, one of the submissions made by Dr Ralph Wilde pulled the rug from underneath a central legal argument advanced by the US, UK & Zambia as follows:
‘The United States of America, the United Kingdom and Zambia suggested here that there is a sui generis applicable legal framework, an Israeli-Palestinian lex specialis. This somehow supersedes the rules of international law determining whether the occupation is existentially lawful. Instead, we have a new rule, justifying the occupation until there is a peace agreement meeting Israeli security needs. This is the law as these States would like it to be, not the law as it is. It has no basis in resolution 242, Oslo or any other resolutions or agreements. Actually, you are being invited to do away with the very operation of some of the fundamental, peremptory rules of international law itself. As a result, the matters these rules conceive as rights vested in the Palestinian people would be realized only if agreement is reached, and only on the basis of such agreement. At best, if there is an agreement, this means one that need not be compatible with Palestinian peremptory legal rights, determined only by the acute power imbalance in Israel’s favour. At worst, if there is no agreement, this means that the indefinite continuation of Israeli rule over the Palestinian people in the occupied Palestinian territories, on the basis of racist supremacy and a claim to sovereignty, would be lawful. This is an affront to the international rule of law, to the United Nations Charter imperative to settle disputes in conformity with international law, and to your judicial function as guardians of the international legal system.’

See also my post on the same page  –  ‘Derogation from a peremptory norm is not permitted under International Law – so there can be no defence to a jus cogens violation.’

‘Colonialism’ lies at the heart of this case. According to many leading political science and international relations theorists, the world is now geopolitically bifurcated i.e. split into two parts:
(i) the ‘Global North’ – essentially: US & European former colonial powers; and
(ii) the ‘Global South’ – which includes victims of colonialism & genocide.
Together with the Genocide case against Israel, these cases will have far reaching geopolitical consequences.

‘Derogation from a peremptory norm is not permitted under International Law – so there can be no defence to a jus cogens violation.’

I have a research and writing interest in relation to International Humanitarian Law, and in 2025 plan to research and write a book provisionally entitled, ‘Universal Principles of Humanity Under International Law – Jus Cogens & Erga Omnes.’See the International Humanitarian Law page at www.carlislam.co.uk.

States can respond to breaches of obligations ‘erga omnes’ by instituting proceedings in the ICJ. Where under International Law a crime, e.g. genocide is a ‘jus cogens’ violation, there can be no legal justification whatsoever. So, at trial, (i) ‘erga omnes’ – which on the factual matrix may arise out of a breach of ‘fiduciary duty’ under international law, see my previous post; and (ii) ‘jus cogens’, are powerful arguments in discharging the burden of proof, because if the other threshold issues are met, i.e. proven, including: ‘dispute’; ‘jurisdiction’; ‘actus reus’ and ‘intent’, there is no defence.

‘Is pressure from within the US Foreign Policy establishment gathering momentum to rein in Israel and stop the haemorrhaging of American credibility?’

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

‘The ICJ Ruling’s Hidden Diplomacy – How the Court’s Considered Measures Can Help America Restrain Israel’

Writing today in the journal Foreign Affairs in an article entitled, ‘The ICJ Ruling’s Hidden Diplomacy – How the Court’s Considered Measures Can Help America Restrain Israel’, David Kaye observed:
·       ‘Sword of Damocles’ – The court has placed ‘a virtual sword of Damocles over not only Israel in its future conduct in Gaza, but also those, such as the United States, that have given it such strong support.’
·       ‘Diplomatic tool’ – ‘The court has given the United States and Europe a new tool to demand that Israel change its approach in Gaza. The ruling offers the Biden administration an opportunity to emphasize its strong displeasure, backed by international law, with the dehumanizing rhetoric that has come from members of Israel’s right-wing cabinet. And it provides Washington with an opportunity to press Prime Minister Benjamin Netanyahu to do more than merely restate Israel’s aims to “eradicate” Hamas and to hold accountable those in his coalition and in the military who use the language of destruction of Gaza and its Palestinian population.’
·       ‘Opportunity for US to reaffirm it’s historic commitment to enforcement of international justice ’ – ‘Even as it supports Israel’s right to self-defense, the United States can bolster the court’s demands for concrete Israeli steps to prevent and punish violence against civilians in Gaza and the rampant destruction of the infrastructure that makes Gaza livable. The United States is no mere bystander, either to Israeli military action or to the enforcement of international law. Indeed, Washington has in the past, launching the modern era’s use of the court for real-time international justice when it brought an ICJ claim against Iran in 1979, demanding that it release the American hostages held at the U.S. embassy in Tehran. The court has given the United States an opportunity to reaffirm that historic commitment, and the Biden administration should take it.’

‘Fiduciary theory of jus cogens

jus cogens‘ (literally, ‘compelling law‘) refers to norms that command peremptory authority, superseding conflicting treaties & customs, i.e. they are mandatory. In their article ‘A Fiduciary Theory of Jus Cogens’ (The Yale Journal of International Law (2009) Vol 34: 331-387), Evan Criddle & Evan Fox-Decent argue that:

‘Jus cogens ‘s norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.  … By placing limits on state action, jus cogens challenges the positivist orthodoxy that views state consent as the wellspring of all international legal obligations. … [Peremptory] norms express constitutive elements of sovereignty’s normative dimension. The key to understanding international jus cogens lies 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. … Although the term  “jus cogensdid not take root in international law discourse until the 20th century, the principle that certain fundamental norms merit peremptory authority within international law bears a much older pedigree. Classical publicists such as Hugo Grotius, Emer de Vattel, and Christian Wolff drew upon the Roman law distinction between jus dispositivum (voluntary law) and jus scriptum (obligatory law) to differentiate consensual agreements between states from the “necessary” principles of international law that bind all states as a point of conscience regardless of consent. In contrast to ordinary legal obligations derive from treaty or customs, jus scriptum norms would not permit derogation, Vattel reasoned, because they were derived from a higher source – the natural law of reason itself;

“We use the term necessary Law of Nations for that law which results from applying the natural law to Nations. It is necessary, because Nations are absolutely bound to observe it. … The same law is called by Grotius and his followers the internal Law of Nations. … It is by the application of this principle that a distinction can be made between lawful and unlawful treaties or conventions and between customs which are innocent and reasonable and those which are unjust and deserving of condemnation.” [Emer De Vattel, The Law Of nations Or The Principles Of Natural Law (1758).). …

Verdross argued that states bore an imperative duty under international law to undertake certain moral tasks. …

Lauterpacht asserted that peremptory norms derive their unique legal authority from two interrelated sources – international morality and general principles of state practice. In Lauterpacht’s view, “overriding principles of international law,” [which in my opinion include a duty by an occupier to protect ancient  monuments located in occupied territory – subject to the doctrine of military necessity], “may be regarded as constituting principles of international public order (ordre international public). These principles … May be expressive of rules of international morality so cogent that an international tribunal would consider them forming a part of those principles of law generally recognised by civilised nations which the ICJ is bound to apply [under] it’s statute.” … Kant’s theory of international law ultimately relies on his social contract theory of the state. [The] theory we defend is that the state and its institutions fiduciaries of the people subject to state power, and therefore a state’s claim to sovereignty, properly understood, relies on its fulfilment of a multifaceted and overarching fiduciary obligation to respect the agency and dignity of the people subject to state power. One of the requirements of this obligation – is compliance with jus cogens. Put another way, fiduciary principle governs the relationship between the state and its people, and this principle requires the state to comply with peremptory norms. … Fiduciary relations arise from circumstances in which one party (the fiduciary) holds discretionary power of an administrative nature over the legal or practical interests of another party (the beneficiary), and the beneficiary is  peculiarly vulnerable to the fiduciary’s power in the sense that she is unable, either as a matter of fact or law, to exercise the entrusted power. … The fiduciary’s power is purposive in that it is held or conferred for limited purposes, such as furthering exclusively the equitable interests of a trust’s beneficiary.  And finally, the power is institutional in that it must be situated within a legally permissible institution.  … The law seeks to dissolve rather than regulate relationships of incorrigible domination. Beneficiaries are particularly vulnerable in that, once in a fiduciary relationship, they generally are unable to protect themselves or their entrusted interests against an abuse of fiduciary power. … Locke had famously asserted that legislative power is “only a fiduciary power to act for certain ends” and that “there remained still in the people a supreme power to remove or alter the legislators, when they find the legislative act contrary to the trust reposed in them. In other words, popular sovereignty denotes that the state sovereign powers belong to the people, and so those powers are held in trust by the rulers on condition that they be used for the people’s benefit. Popular sovereignty thus implies that the state and its institutions are fiduciaries of the people, for their justification rests exclusively on the authority they enjoy the governance of the people. … [It] is an entity’s assumption of state powers, not the jury statehood per se, that triggers the fiduciary principle. Any entity that assumes unilateral administrator power over individuals bears a fiduciary obligation to honour the basic demands of dignity, including the peremptory norms of international jus cogens. … [Implicit] within the state’s obligation to secure legal order is another independently sufficient condition for the identification of peremptory norms: the rule of law. … Public corruption offends the state subject fiduciary relation irrespective of whether the corrupt acts are large or small in scope: a low-level public official who … Accepts a petty bride violates the peremptory norm against corruption, just as a head of state violates jus cogens by draining the state treasury for private gain. The prohibition against corruption thus illustrates the important principle that the scope of jus cogens is not limited exclusively to acts such as military aggression. … Violations of peremptory norms .. are necessarily wrongful and legally impermissible on any scale. … Legal scholars have traced the fiduciary concept as far back as the Code of Hammurabi in ancient Mesopotamia … and have shown that concepts of fiduciary obligation informs not only Roman law … But also Islamic law. … Indeed, the modern Anglo-American law of trust owes a considerable debt to the waqf from Islamic law – an endowment created by a donor for use by designated beneficiaries and under the administration of the trustee – which was introduced to England by Franciscan friars returning from the Crusades in the 13th century. … Many important questions require further consideration. … 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): 331;332;333;334;335;337;347;350;359;366;372;378;379; 387].

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.’ [Evan Criddle & Evan Fox-Decent]. Another consideration is how a global order in which states must act as ‘fiduciaries of humanity’ can emerge and evolve in the real world of ‘balance of power politics’, i.e. because states will usually act in their own interest. It would be a better world if states, politicians, and political elites were under an overriding fiduciary duty to act in the best interests of all mankind, and perhaps future generations will become the architects? Meanwhile the seeds of what can become a mighty Oak Tree have been planted, and if nourished and protected, perhaps a new ‘fiduciary’ world order will evovlve incrementally and in small steps. I think that one step is acknowledgment of the existence of ‘humanitarian principles’ under IHL, which I will be writing about in 2025.

You will be hearing a lot about ‘jus cogens’ over the coming months and years, as the absolute prohibition of genocide is both ‘jus cogens’ and ‘erga omnes partes’ (i.e. obligations owed to the international community as a whole) – as the ICJ stated yesterday.

See also my essay on the ‘International Humanitarian Law’ page at  www.carlislam.co.uk – Cultural Heritage Diplomacy & IHL – Are Principles of Humanity under International Humanitarian Law a diplomatic tool in mediating a peace process and agreement?’

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)

‘War Crime of execution – Rome Statute of the ICC.’

Para 103 of ICC, The Office of the Prosecutor, Situation in Mali Article 53(1) Report (16 January 2013) states:
The actus reus of the war crime of … execution without due process pursuant to Article 8(2)(c)(iv) requires that the perpetrator … carry out an execution of one or more persons who were … civilians … taking no part in hostilities; and that the … execution is carried out without previous judgement pronounced by a regularly constituted court, that is, a court which affords the essential guarantees of independence and impartiality, and the other judicial guarantees generally recognised as indispensable under international law.’
The elements of this war crime are:
·       The perpetrator … executed one or more persons.
·       Such person or persons were … civilians.
·       The perpetrator was aware of the factual circumstances that established this status.
·       There was no previous judgement pronounced by a court, or the court that rendered judgement was not “regularly constituted”, that is, it did not afford the essential guarantees of independence and impartiality, or the court that rendered judgement did not afford all other judicial guarantees generally recognized as indispensable under international law. The perpetrator was aware of the absence of a previous judgement or of the denial of relevant guarantees and the fact that they are essential or indispensable to a fair trial.

‘South Africa’s case is legally watertight’

Professor Vaughan Lowe KC, representing the Republic of South Africa stated two core principles of International Law:
1st – The exercise of the right of self-defence cannot justify or be a defence to genocide – ‘In its Advisory Opinion in the Wall case the Court noted that the threat that Israel argued justified the construction of the Wall was not imputable to a foreign State, but emanated from territory – the Occupied Palestinian Territory – over which Israel itself exercises control. For those reasons the Court decided that as a matter of international law the right of self-defence under Article 51 of the UN Charter had no relevance in such circumstances. Twenty days ago the Security Council affirmed yet again that Gaza is occupied territory. Though Israel refers to a complete withdrawal from Gaza, it has retained control over Gaza – over access by land, sea and air, and over key governmental functions and supplies of water and electricity. The tightness of its grip may have varied; but no-one can doubt the continuous reality of Israel’s grip on Gaza. The Court’s legal holding from 2004 remains good. A similar point is to be made here. What Israel is doing in Gaza, it is doing in territory under its own control. Its actions are enforcing its occupation. The law on self-defence under Article 51 of the Charter has no application.’
2nd – The prohibition of genocide is not an ordinary rule of international law: it is jus cogens – an overriding fundamental principle, at all times and without exception, for all humanity – ‘No matter how outrageous or appalling an attack or provocation, genocide is never a permissible response. Every use of force, whether used in self-defence, or in enforcing an occupation, or in policing operations, must stay within the limits set by international law, including the explicit duty in Article I of the Convention to prevent genocide. South Africa believes that the publicly-available evidence, of the scale of the destruction resulting from the bombardment of Gaza, and the deliberate restriction of the food, water, medicines and electricity available to the population of Gaza demonstrates that the Government of Israel – not Jewish people or Israeli citizens: the Government of Israel and its military – is intent on destroying the Palestinians in Gaza as a group, and is doing nothing to prevent or punish the actions of others who support that aim. The point is not simply that Israel is acting ‘disproportionately’: the point is that the prohibition on genocide is an absolute, peremptory rule of law. Nothing can ever justify genocide. No matter what some individuals within the group of Palestinians in Gaza may have done, and no matter how great the threat to Israeli citizens might be, genocidal attacks on the whole of Gaza and the whole of its population with the intent of destroying them cannot be justified.’

‘Courts and Tribunals have repeatedly recognised the jus cogens character of the prohibition of genocide. The international court has consistently observed that genocide constitutes a universal prohibition arising from the higher interests of the international community, giving rise to obligations erga omnes. Domestic courts in Canada, Germany, Italy, the Philippines, Spain, and the United States have [also] recognised the jus cogens character of the prohibition of genocide.’ (‘Jus Cogens – International Law and Social Contract’ by Thomas Weatherall [2015] Cambridge University Press, p.233).

‘The Genocide Convention places criminal responsibility on all individuals, Article IV making no exception for Heads of State or lesser public officials.’ (‘Handbook of International Law, Second Edition, by Anthony Aust [2011], Cambridge University Press). Anthony Aust was a former Deputy Legal Adviser of the Foreign & Commonwealth Office in London.

The principles stated by Professor Lowe are immutable. Therefore provided the burden of proof has been discharged on the other threshold issues, i.e. ‘dispute; ‘jurisdiction’; ‘actus reus’; and ‘intention’, for which South Africa adduced overwhelming primary evidence from credible sources, including the Israeli Government and the IDF themselves, then it’s application for provisional measures which must satisfy the legal test of ‘plausibility’, is legally watertight, as the core principles mentioned above are not legally capable of any rebuttal. That is one of the reasons why the future of: the court; international law; and of the international rules based system, are all in the balance. Legally, the judgment is a ‘no-brainer’, but let’s see what these judges decide.

Note added 28.01.2024 –

What SA’s counsel Vaughan Lowe KC argued: 1st – The exercise of the right of self-defence cannot justify or be a defence to genocide & 2nd – The prohibition of genocide is not an ordinary rule of international law: it is jus cogens – an overriding fundamental principle, at all times and without exception, for all humanity, I wrote – ‘provided the burden of proof has been discharged on the other threshold issues, i.e. ‘dispute; ‘jurisdiction’; ‘actus reus’; and ‘intention’, for which South Africa adduced overwhelming primary evidence from credible sources, including the Israeli Government and the IDF themselves, then it’s application for provisional measures which must satisfy the legal test of ‘plausibility’, is legally watertight, as the core principles mentioned above are not legally capable of any rebuttal.’ – My reading of the ICJ judgment is: 1. ‘Jurisdiction’ – has been accepted. 2. ‘Actus reus’ – the court accepted that SA’s case is plausible. So if Israel does not restrain itself SA can invite the court to issue further provisional measures [‘PM’]. Every PM ordered by the ICJ bangs a further nail into the coffin lid of Israel’s defence on actus reus. 3. ‘Intention’ – this will be a battleground at trial, however the court named 3 senior figures who have made statements inciting genocide. Therefore if Israel does nothing to investigate & prosecute it will be in breach of a provisional measure which its own ad hoc judge voted in favour of. So, the court is putting Israel to a test by calling its bluff. If Vaugham Lowe is correct on ‘jus cogens’ and I consider that he is, NB my blog on the same page about ‘jus cogens’, and what Israel’s counsel Malcolm Shaw KC wrote on p. 317 of the ‘8th edition of his book ‘International Law (2017) – ‘The [ICJ] in the Bosnian Genocide case reaffirmed in its Order of 8 April 1993 on provisional measures the view expressed in the Advisory Opinion on Reservations to the Genocide Convention that the crime of genocide “shocks the conscience of mankind, results in great losses to hummanity … and is contrary to the moral law and to the spirit and aims of the United Nation.”…’ In my blog I quote from an article by Criddle & Evan-Fox in which they state, ‘Lauterpacht asserted that peremptory norms derive their unique legal authority from two interrelated sources – international morality and general principles of state practice. In Lauterpacht’s view, overriding principles of international law may be regarded as constituting principles of international public order (ordre international public). These principles [may] be expressive of rules of international morality so cogent that an international tribunal would consider them forming a part of those principles of law generally recognised by civilised nations which the ICJ is bound to apply [under] it’s statute.’ So looking at Israel’s defence in the round, one plank i.e. jurisdiction has fallen away, another plank i.e. ‘actus reus’ may fall away within one month, a third plank i.e. ‘intention’ is being tested by calling Israel’s bluff, and on the technical issues of ‘jus cogens’ & ‘erga omnes’ Israel does not appear to have a plank to stand on. So if Israel maintains the intensity of its military operations in Gaza it will lose at trial, i.e. Israel is on track to be found guilty of the core international crime of genocide.

A state that is convicted of genocide has no place in the world order of ‘civilized’ states and may be expelled from membership of the United Nations. It that happens it will be designated as being a ‘rogue state’. A rogue state has no power in the UN to block the imposition of a two-state solution.

‘Cultural Genocide is the Elephant in the Room at the ICJ for the Global South’

‘In 1933, the very year when Hitler became Chancellor and a little more than a decade before Raphael Lemkin, a Polish lawyer of Jewish origin, coined the term “genocide”, Lemkin made a farsighted proposal. Motivated by aspirations of cultural diversity and multiculturalism, Lemkin abhorred the wilful and systematic destruction of a nation’s cultural and artistic works and the extermination of racial, religious, or social collectivities. These offences formed the basis of Lemkin’s definition in 1944, of genocide. … Lemkin initiated and promoted the 1948 Genocide Convention. … In Lemkin’s view, the deliberate destruction of culture – what he also described as a national pattern – was a fundamental act of genocide, which could also be a predicate of the systematic elimination of a people. His concept of cultural genocide was that it involved two phases: destruction of the national pattern or culture of an oppressed people, as a whole or in part, and replacement by the oppressor of its own national pattern or culture – that is, its own institutions and culture. Lemkin viewed this second phase as an attribute of colonisation, based on his studies of the Spanish Conquest in the Western Hemisphere. Accordingly, as an act of imperialism, everything from traditional folkways and language to cultural monuments would be wiped out and recast or rebuilt in the oppressor’s image. The final version of the Genocide Convention, however, makes no mention of cultural genocide … The decision not to explicitly prohibit cultural genocide resulted from several factors: first, the opposition of Western Hemisphere and Western Europe representatives … second, a more specific fear of some countries that their colonial and other treatment of minority peoples could be branded as cultural genocide. … Even so, despite the rejection of cultural genocide as an express target of the 1948 convention, the concept has nevertheless evolved into a secure concept in the discourse of international relations and will likely continue to evolve as an instrument of human rights and humanitarian discourse. Ironically, the Convention has been described as a ’seriously flawed document’ in part for one of its ‘major weaknesses’: the failure to include culture as well as social and political groups within its protective scope.’  (The Oxford Handbook of International Cultural Heritage Law’, pages  130-132). As I observed in an essay which you can read on the ‘International Humanitarian Law’ page at www.carlislam.co.uk, ‘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. 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.’

‘Intentional destruction of cultural heritage is not only a war crime it is also prima facie evidence of genocide.’

‘Israel is “intentionally destroying” cultural and historical sites in Gaza, the Euro-Med Human Rights Monitor said on Monday, calling for an international inquiry into Israel’s targeting of Palestinians’ cultural heritage.  The rights group pointed out that a significant portion of Gaza’s Old City, targeted in intense Israeli bombardments, is an area containing ancient residences, mosques, churches, markets, and educational institutions. The report highlights the damage to Gaza’s oldest mosque, the Al-Omari Grand Mosque, famed for its minaret dating back 1,400 years. It also mentions the destruction of three historic churches, among them the Church of Saint Porphyrius, which was originally constructed in around 407 AD. The Euro-Med Monitor also drew attention damage to the ancient Al-Balakhiya port and the Anthedon Harbour, archaeological sites dating back to 800 BC and listed on both the Islamic Heritage List and the preliminary World Heritage List.’ Israel ‘deliberately destroying’ cultural sites in Gaza (newarab.com)

See – As part of its genocidal war in Gaza, Israel destroys Palestinians’ cultural heritage (euromedmonitor.org)

In my essay ‘Cultural Heritage Diplomacy & IHL – Are Principles of Humanity under International Humanitarian Law a diplomatic tool in mediating a peace process and agreement?’, which appears on the ‘Cultural Property Claims & International Humanitarian Law’ page at www.carlislam.co.uk I observe that ‘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 first draft of this essay was written in February 2023 and submitted to Foreign Affairs in New York. See also the ‘International Humanitarian Law’ and ‘Geopolitical Challenges’ pages at www.diplomaticlawguide.com. Based upon the arguments set out in the essay I would argue that the intentional destruction of cultural heritage by any state party [‘SP’] against any civilian population [‘CP’] is prima facie evidence of genocide. It therefore follows, that any other state (including civil servants and politicians), or any private person (including a company and its executives), who have in any way (including financing) been involved in the provision of arms to ‘SP’ in the knowledge that these weapons could be used to intentionally destroy the cultural heritage of ‘CP’, are all prima facie complicit, if a war crime is subsequently proven to have been committed by SP in a court of law or international tribunal.

‘War is as much about destroying cultures and identity as it is about killing people and seizing land’

This was a recurring theme at the  online conference ‘Reporting Heritage Destruction: A Double-Edged Sword?’ 15.11.2023 organised by the Endangered Cultural Heritage in the Global South (ECHGS) Hub, in the School of Archaeology of the University of Oxford. As you would expect the presenters were all leaders in their field, and their presentations were eye-opening. I concluded that there is an urgent need for more research, and teaching not only on mainstream university law, political science, international relations, and archaeology courses, but also for journalists and armed forces personnel, about the dynamic inter-relationship between:
(i)         protection of cultural property & heritage;
(ii)        the framework of protective principles under international humanitarian law;
(iii)       the framework of protective principles under human rights law;
(iv)       preservation & stability of the international rules based system and order;
(v)        human security;
(vi)       peace-building, geopolitical mediation, and negotiating political order;
(vii)     post-conflict transformation through a process of truth & reconciliation; and
(viii)    restitution & repatriation of cultural property.
This will be the subject of my next book, which I will start to research and write from January 2025. Perhaps, the book could also become the foundation for a future teaching course? Meanwhile, I would like to thank the organisers of the conference for a highly informative and thought-provoking day. One of the attendees, Maria Blyzinsky kindly sent me an article she had co-written with Tetyana Filevska entitled, ‘A Global Approach to Decolonizing Ukrainian Cultural Heritage’, published in Museum & Society earlier in the year, and I have included a link to the article on the ‘International Humanitarian Law’ page at www.diplomaticlawguide.com under ‘Articles.’ Extract – ‘Ukraine has been reclaiming its suppressed history since regaining independence in 1991. … Under Russian and Soviet rule, archives held by museums, libraries, government organizations and centres for academic research were censored, restricted, hidden or destroyed. Access to such information was only possible after 1991, resulting in a great rediscovery of knowledge. However, since the full-scale invasion of Ukraine … stories have emerged about the deliberate Russian destruction of cultural organizations, looting of heritage, and brutal treatment of cultural workers within temporarily occupied areas. As of 17 May 2023, UNESCO had verified damage to 256 cultural sites and counting, including museums, monuments, libraries and archives, as well as buildings of historic, artistic or religious interest. Such cultural obliteration is a recognized feature of wars globally. After all, war is as much about destroying cultures and identity.’

See – A Global Approach to Decolonizing Ukrainian Cultural Heritage | Filevska | Museum and Society

‘The UK Government is under a positive duty to ensure compliance by Israel with International Humanitarian Law’

‘[A]ll 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.’ ‘[Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 36 paras 158-159’]. Therefore, the UK Government is under a positive duty to ensure compliance by Israel with International Humanitarian Law. The duty is unequivocal, so there is no scope for ambiguity. I wonder, and perhaps an MP can ask this question in Parliament this week – has the UK Government been advised by the Foreign Office Legal Department that failure to perform this duty risks undermining the rule of law, and thereby jeopardises the stability of the global order which depends upon survival of the rule of law? Because we live in a geopolitically multi-polar and bifurcated world, playing fast and loose with international law or dismissing it at being irrelevant, is a dangerous path for politicians to choose, because as history shows, it clears the way for fascism. Mussolini compared accumulating power to ‘plucking a chicken one feather at a time, go slowly and no one notices’. ‘Democracies erode slowly, in barely visible steps. Many government efforts to subvert democracy are legal, in the sense that they are approved by the legislature or accepted by the courts. They may even be portrayed as efforts to improve democracy – making the judiciary more efficient, combating corruption, or cleaning up the electoral process. People do not immediately realise what is happening. Many continue to believe they are living under a democracy. Because there is no single moment- no coup, declaration of martial law, or suspension of the constitution -in which the regime obviously crosses the line into dictatorship, nothing may set off society’s alarm bells. Those who denounce government abuse may be dismissed as exaggerating or crying wolf. Democracy’s erosion is, for many, almost imperceptible. The tragic paradox of the electoral route to authoritarianism is that democracy’s assassins use the very institutions of democracy – gradually, subtly, and even legally – to kill it.’ – Google ‘Carl’s Mediation blog’ and use the search bar to find my blog ‘‘Sleep walking into fascism.’ That is why survival of the rule of law, by ensuring full legal compliance with IHL, is an existential priority for all democracies, and trumps any individual political allegiance.

‘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).

‘Complicity In International Law’

The following is an extract from a Thesis written by Miles Jackson. There is a link to his Thesis under ‘Articles’. Miles Jackson is the author of ‘Complicity in International Law’ published by Oxford University Press (2015) – available from Amazon.
‘A significant part of Nuremberg’s legacy is the principle of individual criminal responsibility for violations of international law. Article 6 of the Charter of the International Military Tribunal at Nuremberg, signed by the United Kingdom, France, the Union of Soviet Socialist Republics, and the United States … provided for individual criminal responsibility for crimes against peace, war crimes, and crimes against humanity. It also set out the modes of participation in the crimes prohibited therein: Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. … The principle of individual criminal responsibility was reflected in identical terms in the statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda: A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime. These are the forms of responsibility at the ad hoc tribunals—planners, instigators, orders, perpetrators, and aiders and abettors bear individual criminal responsibility. The forms of responsibility at the ICTR and ICTY constitute a more sophisticated approach than those at the post-Second World War tribunals. … In accordance with [the Rome] Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime.’

See also:

‘UK accused of seeking to block the international court of justice’

See: UK ‘seeking to block ICJ ruling’ on Israeli occupation of Palestine | Palestinian territories | The Guardian

‘The UK has been accused of “seeking to block the international court of justice (ICJ) from addressing important international humanitarian law matters” in a submission to the world court on the legality of Israel’s occupation of the Palestinian territories. … “[Assuming that the document is authentic] … this is a rather weak and uninformed document that portrays Israel’s longstanding occupation of the West Bank and Gaza, and its annexation of East Jerusalem, as a bilateral dispute between two states,” said Dr Victor Kattan, an assistant professor in public international law at the University of Nottingham who has written widely on the Israeli-Palestinian conflict. According to Kattan, the ICJ can issue an opinion on any legal question arising from the work of the UN, and the general assembly does not need Israel’s consent to refer a request to the court.

A senior Palestinian source … said: “The UK submission is a complete endorsement of Israeli talking points. They are not arguing that this is not the right time to go to the ICJ, because the peace process is working. They are saying the Israeli violations Palestinians point out are not as important as negotiation frameworks from decades ago.” Daniel Machover of Hickman & Rose solicitors in London, who has extensive experience in human rights litigation, said with the caveat that the document is authentic: “It is a matter of concern that the UK is seeking to block the court from addressing such important matters, something I am sure it would not do were the court asked to address comparable issues … such as Russia’s occupation of Ukrainian territory.” … Unlike other ICJ submissions seen by the Guardian, including those of France and Ireland, the UK statement makes no mention of the dire political situation in either Israel or Palestine. It also does not reference relevant UN findings since 2016 that Israel has repeatedly failed to fulfil its obligation to uphold the rights of the Palestinian people and violated international humanitarian law. … Israel has lambasted the ICJ referral, with its envoy to the UN … calling the general assembly vote a “moral stain” that delegitimises Israel. The last conclusive action related to Palestine at the ICJ was in 2004, when the court decided Israel’s West Bank security barrier was illegal. Israel rejected the ruling.’

See also:

‘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;

  1. 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.

‘International Humanitarian Law (“IHL”) prohibits the starvation of civilians as a method of warfare’

Deliberately depriving civilians of food as a method of warfare is a war crime, see Dapo, Akande and Emanuella-Chiara Gillard, ‘Conflict Induced Food Insecurity and the War Crime of Starvation of Civilians as a Method of Warfare: The Underlying Rules of International Humanitarian Law .’ (2019) 17 JICJ 753. ‘Derived from the principle of distinction, this rule appears for the first time in both additional Protocols of 1977 [API article 54(1); APII article 14] and, today, is considered customary law in both IAC’s and NIAC’s [CIHL rule 53]. The Rome Statute provides that “intentionally using starvation of civilians as a method of warfare” is a war crime in IAC’s. …. Arbitrarily denying humanitarian access in favour of civilians in need, or arbitrarily restricting the freedom of movement of humanitarian relief personnel will also constitute violations of the prohibition of starvation. …. Although sieges … have been condemned by the international community, they are not prohibited, even if they cause starvation, as long as the purpose is to achieve a military objective and not to starve the civilian population. At the same time, the prohibition of starvation implies that the besieging party must either allow the inhabitants to leave the besieged area or permit the free passage of humanitarian relief supplies. For example, in the context of the Gaza blockade, which led to harsh humanitarian consequences and food insecurity, the issue of starvation has been discussed by several commissions of enquiry. Although these discussions did not reach the same conclusions regarding the lawfulness of the blockade (terms of proportionality and on whether it amounted to collective punishment), none concluded that the blockade amounted to a violation of the prohibition of starvation as a method of warfare. The reason for this was that the starvation of the civilian population was not the sole and not even the main purpose of the blockade. This does not, however, relieve the blockading party from their obligation to take into account, when assessing the proportionality of incidental harm, any starvation which may be expected to result as an unwanted consequence resulting from the blockade.’ [‘The Oxford Guide to International Humanitarian Law’, edited by Ben Saul and Dapo Akande (2020) Oxford University Press, pages 248-249]. When is deliberately depriving civilians of food a war crime? Where is the line drawn? What if e.g. 42% of the besieged population have no political allegiance to the hostile population, the elimination of which is the primary military objective of the blockading party? If a siege is disproportionate because of the scale of collective punishment and suffering, is the inextricably consequential starvation of civilians a war crime? When can starving an entire civilian population be justified in International Law?

‘Volker Turk, the U.N. High Commissioner for Human Rights, told the New York Times Thursday that “the imposition of sieges that endanger the lives of civilians by depriving them of goods essential for their survival is prohibited under international humanitarian law.” Tom Dannenbaum, an expert on siege law at Tufts University, affirmed this assessment, describing Israel’s policy as an abnormally clear-cut instance of starving civilians as a means of war, an unambiguous violation of human rights’. See: https://nymag.com/intelligencer/2023/10/the-u-s-is-giving-israel-permission-for-war-crimes.html#:~:text=Tom%20Dannenbaum%2C%20an%20expert%20on,unambiguous%20violation%20of%20human%20rights.

See also:

Customary IHL – Rules (icrc.org)

Ex-Israeli Negotiator to BBC: ‘You’ve Lost Sight Of Humanity’ Over Indiscriminate Gaza Bombing (msn.com)

Excerpt:

‘He continued: “Do you think terrorist organisations embedded in populations who are denied their most basic rights are ended once and for all in a military campaign? Does that happen in history? Can someone credibly tell me that when the leadership of a country says we are cutting off food, electricity, water, all supplies to an entire civilian population that they’re targeting militants?”

“I’m sorry these kinds of lies can’t be allowed to pass. And when you tell yourself the lie, it leads to the wrong policy,” he said.

“If anyone told me that what the militants did on the weekend was a legitimate response to years and years of occupation. I would say: ‘No, you’re wrong headed. You’ve lost sight of humanity and reality,’” Levy rationalised. “And if anyone tells me that what Israel is doing in Gaza today is a legitimate response to what happened on the weekend, it’s exactly the same.”

“And yet they are saying it,” he closed. “And yet the international community is, and people need to challenge them on it because it’s a lie and we’re war mongering if we allow them to get away with it.”

[Daniel Levy served a notable role in the history of peace process relations between Israel and the Palestinians, working as an Israeli peace negotiator during crucial talks at Taba Summit in 2001 and also at the Oslo-B talks in 1994. He is currently the president of the U.S./Middle East Project, an organisation committed to advancing peace in the region]’

For a war crimes suspect nowhere is safe’

‘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).

For a war crimes suspect nowhere is safe, because all war crimes are crimes for which there is universal jurisdiction. Therefore, any State can prosecute them, i.e. they can be prosecuted anywhere and everywhere.

Once the ICC has issued an arrest warrant against a person [‘P‘] suspected of war crimes, the rhetorical question that those who belong to the same political elite or who associate with P need to ask themselves is – ‘Will I be next?’

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.

See also:

Head of State Immunity is Too Important for the International Court of Justice – Just Security

Heads of State Immunities, International Crimes and President Bashir’s Visit to South Africa in: International Criminal Law Review Volume 18 Issue 4 (2018) (brill.com)

SUN7%B1:9129BK–01I:0001-K (ejil.org)

Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova | International Criminal Court (icc-cpi.int)

Putin Wanted by International Criminal Court Over Alleged War Crimes in Ukraine (foreignpolicy.com)

What does the ICC arrest warrant for Vladimir Putin mean in reality? | Vladimir Putin | The Guardian

House of Lords – In Re Pinochet (parliament.uk)

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:

‘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 21st 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]

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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:

  1. 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.