The Role of Municipal Law Analogies in the Law of Armed Conflicts

It is common wisdom that the law of armed conflict (LOAC) contains many “principles” or rules of considerable normative breadth and importance. Some examples include: the principle of limitation of means and methods; the principle of distinction between the military and the civilian; the principle of proportionality of collateral damage; the principle of precautions when planning or carrying out an attack; or the principle of military necessity, and conversely, the principle of humanity or humane treatment.

The object of this post is not to examine such principles in depth. It is rather to determine whether Article 38(1)(c) of the International Court of Justice Statute has found some fertile soil within LOAC. This post discusses how the general principles of law recognized by so-called “civilized nations” serve as a channel for municipal law analogies to fill gaps in international law and to influence the interpretation of treaty provisions. The relevant provision reads: “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply … the general principles of law recognized by civilized nations … .”

A perusal of experiences in LOAC shows that such general principles of law have indeed played a certain role, albeit not a very prominent one. It appears that their role has been of two distinct types: first, the classical role of analogies to fill gaps in international regulation; second, the role of steering the interpretation of certain treaty terms. Moreover, municipal law may be referenced in LOAC, but without a search for common principles across the legal orders. It is then the municipal law of one State which will form the basis for some type of legal operation. This post illustrates each of these roles by giving two examples for each role type, and one example that employs a mere reference to a municipal legal system.

Filling of Gaps

Effectiveness of Occupation

Before the Hague Regulations of 1899 were adopted, the issue of whether “paper occupations” (i.e., territories proclaimed to be occupied without actual control) were recognized loomed quite large in discussions on applicable international law of war. Such occupations were largely rejected by legal writings as being incompatible with sound principles, for they could allow some States to treat as belligerently occupied vast parts of a territory without the actual presence of a hostile army.

Support for this argument was found by using an analogy from the law of maritime warfare and also by referring to the law of blockade. In the latter, the principle of effectiveness (actual presence of blockading ships) had established itself since the middle of the 19th century. Complementary support for rejecting paper occupations referred to the private law rules accepted by the then-dominating legal cultures (common and civil law), holding that occupation requires the possession of an object (animus and corpus) (p. 153). The first reading resorts to an analogy within the body of international law; the second is based on a municipal law analogy under the umbrella of general principles of law. As often happens in such cases, this initially tentative analogy was later transformed into positive law by virtue of Article 42 of the Hague Regulations (1899 and 1907).

The Doctrine of Continuous Voyage

In another example, the United Kingdom, operating within maritime law, quite early established a doctrine of “continuous voyage” in order to justify the seizure of assets purportedly destinated to an enemy. Under maritime law neutrality, as codified in 1856, goods shipped to a neutral destination are free and cannot be seized by a belligerent. There was, however, no provision in international law for cases of abuse, divertive, or deceptive actions in bad faith.

Indeed, the temptation was great to declare that certain goods were shipped to a neutral destination, when in fact they were designed to ultimately reach a belligerent. The neutral port was then only an intermediary destination, the voyage of the goods thereafter often continued on land to the final hostile destination. Certainly, the adverse belligerent did not want to tolerate such diversions; as intercepting goods before they reach the enemy was an easy way to exercise its power. This explains why and how the doctrine of “continuous voyage” was developed: the true destination rather than the pretended one was sought after, looking at the voyage of the goods as a single and continuous one.

However, it was and is often difficult to determine the true destination of maritime goods. A series of signs to that effect was taken as evidence of such a concealed true destination, e.g., the notorious use of a certain port, especially those ports near belligerent States, for such concealed consignments. Because these signs were never codified in international law, various State municipal laws that prohibit certain maritime activities offer clues for further interpretation of the doctrine of continuous voyage. Therefore, by looking at municipal law analogies to fill gaps in the doctrine of continuous voyage, general principles of law were, to some extent, incorporated in international law.

Interpretation of Treaty Terms

Rape and Sexual Offences

Further examples derive from the application of LOAC by international criminal law tribunals. Several sources of international humanitarian law prohibit acts of sexual violence. But what constitutes sexual violence is not well defined in public international law. This finding was made explicitly by the International Criminal Tribunal for the former Yugoslavia in the famous Furundzija case of 1997 when it sought definitions of “rape” (§§ 174 et seq.).

There being no established definition of rape in international law, the tribunal held that it was necessary to search for principles of criminal law common to the major legal systems of the world to understand how rape is defined there. These principles aided the tribunal in defining a tentative definition of rape, after finding that there were limited divergencies in modern municipal law.

Usufruct

In the context of the administration of public property by a belligerent occupier, Article 55 of the Hague Regulations of 1907 provides: “The occupying State shall be regarded only as administrator and usufructuary of public [property]… It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.” The use of the concept of usufruct in Article 55 is based on an implied reference to the internal legal order.

Usufruct does not appear anywhere in public international law. But it is known to internal legal orders founded on Roman law. In Anglo-Saxon law, there is the analogous counterpart of “life tenancy.” The term “usufruct” thus operates as an implicit reference to internal legal systems, the comparison of which should allow for a correct interpretation of that term within the body of the law of occupation. The gist of usufruct in the municipal legal systems is that the substance of the object must be preserved, while the income and offspring it generates can be appropriated.

Mere Reference to Municipal Law

Reimbursement of Internments in the Law of Neutrality

If a fraction of an army of a belligerent enters neutral territory, the neutral State has the duty to intern its members and not to let them participate any more in the armed conflict. Article 12(2) of the same Convention provides that expenses shall be made good at the conclusion of peace. One famous example of such internment occurred in the Franco-Prussian War of 1870, when a fraction of the French army commanded by General Bourbaki was interned in Swiss territory, and payment for the expenses incurred was made by France after the war (p. 282-3). What is meant by the term “expenses?” The provision contained in the Hague Regulations does not make this clear. Therefore, municipal law analogies were used to calculate expenses, comparing them to the cost of the troops of the detaining State when held in military caserns.

Conclusion

The legal technique of using general principles of law to fill gaps by analogizing relevant  municipal law plays a certain role in the LOAC, albeit a limited one. It is not overly frequent that gaps in this area must be filled by such a return to municipal law, because LOAC is one of the most (and best) codified of modern international law. What occurs more frequently is that terms used in treaties relating to that branch of the law are not completely autonomous and either have a municipal law distinctive origin and stamp (e.g., usufruct) or are best understood in the light of municipal law experiences (e.g., expenses).

In such a case, careful and critical consideration of what is traditionally done in municipal law can help the interpreter assign the most reasonable and contextually fitting interpretation of the treaty terms at stake.

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Robert Kolb is a Professor of Public International Law at the University of Geneva and former legal staff member of the ICRC. Prof Kolb is also a member of the legal section of the Swiss military high command (IHL section).

The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

Photo credit: Jaber Jehad Badwan