International Humanitarian Law and the Law of Treaties
The International Law Commission has codified the law of treaties under the benevolent assumption that the drafting and implementation of all treaties, of whatever type, should follow the rules adopted in the 1969 Vienna Convention on the Law of Treaties (VCLT). Thus, a treaty on custom dues and tariffs should sit within the same framework as a treaty on human rights.
However, this is not to say that treaties under a specific branch of international law cannot introduce modulations or derogations to the general law of treaties. Such alterations may flow from special rules of these branches of the law (leges speciales) without becoming part of the general law of treaties; but they may also stem from a special provision within that general law.
This post examines the extent to which international humanitarian law (IHL) treaties, as a specific branch of international law, depart from the general rules of the VCLT.
Modulations
Modulations of the law may first occur because of a special provision in the general law of treaties. Article 60 VCLT provides an example of this.
In case of a material breach of a treaty by one party, Article 60 VCLT permits an aggrieved party to terminate or suspend the operation of the treaty either in whole or part. An aggrieved party can thus protect its rights and reestablish the disturbed equilibrium; it is not obliged to continue to implement a treaty that another party has gravely violated. This power of termination or suspension serves to deter violations. If a party knew its violation could not free another party of its reciprocal obligations, an offending party might consider itself better off violating the treaty provisions. Consequently, to some extent the law would thus incentivize such behavior.
In the case of humanitarian treaties, however, Article 60(5) excludes the possibility of a party terminating or suspending the operation of a treaty because of a grave violation by another party. As has been said, “The purpose of the clause [Article 60(5)] is to protect the beneficiaries of humanitarian treaties from losing their rights in the course of interstate disputes” (p. 1366). Expressed as a practical example, the law refuses to accept that a State may suspend Geneva Convention III on account of a material breach by another party, and then proceed to implement harsh and inhuman measures against the prisoners of war it detains. To an important extent, the problem discussed is reduced by the residual applicability of customary international humanitarian law. However, even at the level of the law of treaties, a special protective mechanism exists for IHL treaties.
Modulations may also occur because the parties adopt special clauses in IHL treaties in the exercise of a power granted to them by international law. This is the case, for instance, in the denunciation clauses of IHL treaties.
The law of treaties allows the parties to a treaty to insert at their free will denunciation clauses (VCLT, art. 56(1)). The parties to IHL treaties have regularly done so. In the four 1949 Geneva Conventions, for example, such a clause exists in Articles 63, 62, 142, and 158, respectively. But the IHL clauses, all constructed on the same model, have a distinctive feature, just as other areas of the law have their own (investment treaties, for instance, commonly incorporate a sunset clause ensuring the applicability of the treaty for twenty years after its lapse or denunciation).
According to the wording of the Geneva Convention denunciation clauses, the withdrawal takes effect one year after its notification. This period reflects the general residual rule under VCLT Article 56(2), but it does so with the restriction that the denunciation shall never take effect before the end of the armed conflict in which a party is involved at the time of its denunciation. The point is to ensure the effectiveness of IHL treaties. There is no point in allowing participation during peacetime and the faculty to withdraw from treaty obligations when an armed conflict commences, when the pledge had in principle been taken to apply them.
Considering the fact that the concept of “armed conflict” is very extensive in IHL, and that an armed conflict does not end, for example, before an occupied territory is returned to the lawful sovereign (in that sense, the Israeli-Arab conflict of 1967 still continues) or the last prisoner of war is liberated or their body restituted (thus the Iran-Iraq conflict of the 1980’s continued into the years 2000), this special provision of the denunciation clauses has significant legal effects.
Derogations
A derogation exists where a special rule applicable under an IHL treaty departs from the general law of treaties. In most cases, the rule of the general law on treaties is jus dispositivum, which States may alter. But the alteration in such a case will constitute a derogation, or departure, from the general rule rather than the exercise of a power to design a special rule, a sort of delegation of power. Two examples illustrate the point.
A bygone and thus merely historical derogation is to be found in the si omnes clause of treaties on the law of war. States parties initially designed this clause to ensure the cardinal principle of equality of belligerents. At a time when customary IHL was continuing to develop and treaties were by large the main source of the law of war, it was considered that a belligerent could honor its pledges, which entailed a more or less severe restriction of what it could do in war, only if all the other belligerents were bound by the same restrictions. The si omnes clause was thus a “general participation clause.” If one State entered the war and was not bound by a specific Hague Convention, all the other States engaged in that conflict would be freed of their obligations under that treaty in their inter se relations.
The clause exists for example in Article 2 of Hague Convention IV of 1907. The clause proved to be highly impractical and was largely ignored by States during the First World War. For example, when Montenegro entered the war, and was not bound by the Hague codifications, the other belligerent States decided to continue to apply these treaties to avoid huge gaps in the law. Later there followed a formal relinquishment of this clause.
This abrogation now exists in common Article 2 of the 1949 Geneva Conventions, together with the already quoted denunciation clauses. In other words, modern IHL aligns perfectly with the general law of treaties. The si omnes clause was, contrariwise, a derogation from the ordinary laws of treaties. The latter requires that States continue to apply a treaty in their relations with other parties to the treaty, but they need not apply it to non-contracting States. No rule indicates that because a State or group of States is not bound with third States the application of the treaty between its parties shall also cease.
The second example of a derogation relates to Common Article 2 of the 1949 Geneva Conventions. It holds that a non-party State can by a simple declaration agreeing to accept and apply the provisions of the Convention(s) (or even by compliant action) trigger the application of the Convention’s provisions reciprocally in the relations between the parties and itself.
Under the general law of treaties, a collateral agreement would be necessary to obtain that effect. However, the Geneva Conventions and their Protocols derogate from this ordinary rule by allowing a non-party State to impose by its own unilateral act the requirement that a High Contracting Party applies the Geneva Convention in its dealing with the non-State party.
The legal effect of that act arises because the parties accepted such a power of action by adopting the third paragraph of Common Article 2. The aim of this provision is to extend as much as possible, and without formalism, the application of the Geneva Conventions for the benefit of potential or actual war victims. The humanitarian aim of the law is the heart of this legal generosity.
States have applied this provision in several situations in the past, although it has become slightly less important in recent years because of the rise in the numbers of parties to the Geneva Conventions, which almost all States have either ratified or acceded to. Illustrations of the application of the mentioned IHL-specific rule include the Suez conflict of 1956 and the Bangladesh-Pakistan conflict of 1971 (see ICRC (ed.), Commentary on the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 2016, p. 121).
Conclusion
Overall, IHL treaties faithfully follow the general rules of treaty law. But there are some specificities, albeit of a minor nature, be they modulations of the general law or wholesale derogations from the general law. In this regard, IHL treaties remain much more within the model of general treaties than, for example, human rights agreements. The latter have the distinctive feature of being mainly “triangular” treaties: States assume not only (bilateral) obligations between themselves, but they also accord rights to a third person, the individual. A legal triangle is thus established. This peculiar setting produces many more modulations and derogations from the general law of treaties (for a careful analysis of these alterations, see here, p. 307ff). Contrariwise, IHL treaties remain anchored to a sweeping extent in the general harbor of treaties and their law, from which they depart only on some specific and relatively minor points.
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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.
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: U.S. Army photo by Sgt. Vincent Levelev
