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

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

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

1
Prosecutor v. Kupreškić et al., Trial Judgment, Case No. IT-95-16 T, T.Ch. II, 14 January 2000, para. 542.
2
Prosecutor v. Kupreškić et al., Trial Judgment, Case No. IT-95-16 T, T.Ch. II, 14 January 2000.
3
A. Cassese, The Martens Clause: Half a Loaf or Simply Pie in the Sky?, 11 European Journal of
International Law 187, at 193 (2000).

Ch. 531.. The Martens Clause. para. Martić of ICTY – a decision through which the absolute prohibition of reprisals was first established. at 161. 2 . and Dictates of Public Conscience. Prosecutor v. In the study of Bonafe the value of the case under examination is highlighted as a key case in the specific field. Reference is also made to the Martić decision of ICTY. IT-95-11-R61. 94 The American Journal of International law 78.. The relationship between state and individual responsibility for international crimes. Through the case under examination the trend of the ICTY for changing its criteria for evaluating the opposition of an action to the international law was made clear. the US and the UK’s military literature. Martić. at 193.5 In accordance with the Court’s decision a customary rule of the international law has emerged. 8 March 1996. at 143 (1992). Initially. See. Kwakwa.4 The preamble has been immortalized in customary international law and it has been repeated in the 1949 Geneva Conventions for the protection of Victims of War. The methodology and the justification used by the ICTY in the particular case is of significant importance in order to identify and understand the reasons of such differentiation – compared to the ruling of the above Court in similar cases in the past. reference is also made to the case Prosecutor v. at 78 (2000).1907. Ultimately the Martens Clause states that civilians and belligerents “remain under the protection and the rule of principles of law of nations” emanating from “laws of humanity. Principles of Humanity. and the dictates of the public conscience”. 7 E. Bonafè. Decision on the Review of Indictment Pursuant to Rule 61. see note 2. the existence of this rule is justified by referring to the “requirements of humanity and the dictates of public conscience”6. The Preamble has been referred to a number of domestic military guidelines including Germany.8 However. An indicative example is the study of Bonafe who noted that the prohibition of reprisals against civilians is established in the international customary law – under the influence of the principles of humanitarian law. I. doubts existed in regard to the potential expansion of such practice9. at 161 (2009). The international law of armed conflict: personal and material fields of application. 5 T. 8 B. 9 Bonafe. 4 Ib. T. Other studies also support similar views. see note 8. the 1977 Additional Protocols to the Geneva Conventions and other international treaties. In accordance with Bonafe the view of ICTY on the absolute prohibition of reprisal of civilians was developed gradually. 6 Kupreškić et al. Of particular importance would be at this point the reference to the view of Kwakwa7 who mentioned that a reprisal action can be regarded as opposing the international customary law mostly because these initiatives are expected to have “injurious effects” on a civilian population. I. Case No. Meron.

see note 8. The importance of the Geneva Conventions regarding the prohibition against civilians is also highlighted in the study of Henckaerts and Doswald-Beck 12. at 531 (2005). 13 Id. reference is also made to the four 1949 Geneva Conventions11 aiming to show the opposition of reprisals to the international law but also trying to justify the assumption that the customary international law applied on this case should be related with the principles of humanitarian law. 14 Bonafe. 52(1). 15 Kupreškić et al. including USA. It is explained that the civilians protected by the 1949 Geneva Conventions should be protected from any potential reprisal against them..2 Arguments used in the Chamber’s decision The ICTY Trial Chamber’s decision in regard to the involvement of the humanitarian law – even in the form of customary international law – is based on a series of arguments: a) it is noted that even if reprisals were permitted in the past as the most effective way for fighting the enemy. at 161. Doswald-Beck. still have stated their concerns in regard to these texts content – no full prohibition is recognized by these states in regard to the civilians reprisals13. 11 Kupreškić et al. see note 2. even if they have ratified conventions and other texts of the international law that prohibit reprisals against civilians. However. 12 J. in the above study. 1977 First Additional Protocol. in the specific legislative text the reprisals against civilians are clearly condemned and prohibited10. para. 1. those conventions are characterized as key legislative texts in the specific field – humanitarian law. para. it is also noted that many states.. no military decision violating the human rights can be permitted – the credibility of such decision could be doubted as being opposite with one of 10 Art. reference is made to the First Additional Protocol of 1977. Henckaerts & L. at 521.1. see note 2. Likewise. b) the reprisals against civilians can be characterized as an infringement of human rights. 534. 530. another example is mentioned by Bonafe where reference is made to the “UK reservation to the 1977 Additional Protocol”14..M. such practices cannot be justified in the context of modern international law15.1 Methods used by Trial Chamber in order to find customary international law The ICTY Trial Chamber has used a specific methodology in order to identify the customary international law applied on the particular case: at the first level. Customary International Humanitarian Law: Rules. 3 .

the Austrian Manual and the United States military manual for the Army. indicated the change in the Court’s ruling on such conflicts and that reprisals against civilians are now absolutely prohibited. and e) the examination of the various aspects of the above case led Court to the decision that opinio necessitatis19 can be used in order to justify the application of customary international law – being related with the humanitarian law. c) the reprisals against civilians are prohibited in the context of a series of military legislative texts17. Kupreškić et al. USA and Britain – has not affected the Court’s determination to increase the power of the customary international law.. d) It is also mentioned that many countries worldwide have ratified the First Protocol of 1977 – showing the trend developed in the context of the international community towards the prohibition of reprisals against civilians18.. para. In any case. para. 18 Kupreškić et al.. the Court’s decision on the opposition of reprisals against civilians to the international law seems to be based on the fact that the International Law Commission has already set its view in regard to the potential establishment of customary international law when a case referring to reprisals against civilians is under examination.3 Implications of the decision on the development of international humanitarian law The Kupreškić et al.the important parts of international law. 529. 533. Cf. 532. 784. 532. the Dutch Manual. The fact that certain states have declared their concerns in regard to the absolute prohibition of these practices – e. para. 17 Reference is made by the Court to the British Manual. reference is made to the Article 50 (former Article 14) of the Draft Articles of State Responsibility where it is clearly noted that any national legislative text violating the human rights should be considered as non binding. this is a fact indicating the clear opposition of countries worldwide against any potential violation of human rights in the form of reprisals against civilians. decision of ICTY is a part of the Court’s effort to change its practices in regard to the promotion of the international customary law. para. its ruling in Kupreškić et al. n. 19 Id. 1.. the human rights16.g.. 4 . national rules related with the reprisal against civilians are no longer applicable – at least in the context of international law – as they are considered as 16 Id. see note 2.. see note 2. despite the fact that in the past the Court had justified under certain terms the reprisals against civilians.

at 501 (1999). Hayk Azizbekyan Student number. such practices can no longer be justified even if the relevant national law offers to a country’s army the right to proceed to practices of this type. only if issue of national security is set such practices could be acceptable.Ch.A. T. Such opposition cannot be justified. in the context of the new approaches used by the Court – as explained above – the prohibition of reprisals against civilians is characterized as absolute. Moreover. the activities of states may be controlled and their potential opposition with the principles and the rules of international law needs to be periodically examined ensuring that the human rights – in all their forms – are adequately protected. 1977 First Additional Protocol. I. Prosecutor v. 5 December 2003. Strugar. 20 See. Through these cases the prohibition of reprisal against civilians is characterized as absolute. C. 23 Art. no exceptions are permitted or justified. 22 W. Schabas. Case No.23 Through this point of view. 12 June 2007.opposite to the humanitarian law20. Galić. T.s1065459 hayk_azizbekyan@yahoo. the Kupreškić et al. Bassiouni.Ch. Prosecutor v.21 Article 51(6) of the above Protocol has been also used as a legal basis for the development of the Court’s decision in the case under examination. I. at 344 (2006). II. decision of ICTY redefined the criteria used for the evaluation of unlawful acts in the framework of the international law.g. Crimes against Humanity in International Criminal Law. e.. like the 1977 First Protocol to the Geneva Conventions which set stricter rules in regard to the prohibition of the specific activities. Case No.com 03 October 2010 5 . Trial Judgment. The first initiatives in order to prohibit the reprisals against civilians can be identified in the four Geneva Conventions of 1949 and also a series of legislative texts. Case No. Perhaps. In accordance with Schabas22 the ruling of the ICTY in Kupreškić et al.Ch. 21 C. IT-01-42-T. Rwanda and Sierra Leone. through the above decision the role of international customary law was enforced – even towards the national law of countries worldwide. 31 January 2005. IT-98-29-T. The UN international criminal tribunals: the former Yugoslavia. Conclusion In the context of international law. Martić. Trial Judgment. IT-95-11-T. Trial Judgment. Prosecutor v. 52(1). T. can be characterized as a transition from the Court’s past decisions on the specific issues.