Humantarian Law Esaasy

THE RELATIONSHIP BETWEEN INTERNATIONAL HUMANITARIAN
LAW AND THE NOTION OF STATE SOVEREIGNTY
Rogier Bartels
Amsterdam Law School Legal Studies Research Paper No. 2018-18

Amsterdam Center for International Law No. 2018-04
Electronic copy available at: https://ssrn.com/abstract=3207193

The Relationship between International Humanitarian Law and the
Notion of State Sovereignty
Rogier Bartels *
Forthcoming in:
The special issue of the Journal of Conflict and Security Law on
‘The Impact of the Law of Armed Conflict on General International Law’,
Volume 23 (2018)
Abstract
This article explores the relationship between international humanitarian law (IHL) and the
State sovereignty. Historically, only wars between sovereign States were subject to
regulation by the laws of war. From the 19th century onwards, States agreed upon a
significant number of IHL treaties and in 1949, despite calls upon sovereignty, they accepted
extension of a limited part of the rules to non-international armed conflicts. Since then,
through the formation of customary international law and in part as result of new treaties, it
has been accepted that the majority IHL has become applicable to internal conflicts. In
addition, international institutions have been set up to prosecute individuals for serious
violations of IHL. The author discusses how IHL and sovereignty have influenced each
other’s development. The analysis shows that the development of IHL should not be seen as
limiting State sovereignty, but rather ought to be regarded as a manifestation of sovereignty,
expressed through the formation of this branch of international law by its core subjects:
States. At the same time, as a result of the increased reliance on means other than treaties
for clarification and development of IHL, the role of States has become more limited; it is
reduced to either accepting or rejecting the prospective developments of IHL and any
consequential impact on their sovereignty.
Key words: State sovereignty, international humanitarian law, law of armed conflict,
public international law, international criminal justice, humanitarian assistance
*
Legal Officer in Chambers (Trial Division) at the International Criminal Court and a Research-Fellow
(Military Law Section) at the Netherlands Defence Academy. The views expressed are the author’s alone
and do not necessarily represent those of the aforementioned institutions. The author is grateful to Kubo
Macak and Lawrence Hill-Cawthorne for their helpful feedback on an earlier version of this article, as
well as for organising the expert round table where a paper on the same topic was presented and
discussed. Email: rogierbartels@hotmail.com.

Rogier Bartels, ‘The Relationship between International Humanitarian Law and the Notion of State Sovereignty’, 23
(2018) Journal of Conflict and Security Law (forthcoming)
1. Introduction
Initially, the laws of war, also known as jus in bello and more recently as the law of
armed conflict or international humanitarian law (IHL), 1 only regulated wars between
States, while internal violence was unregulated and remained entirely within the
purview of the State concerned. 2 This distinction can be explained by the fact that the
laws governing wars and armed conflicts are historically founded ‘upon the difference
between inter-state relations, which was the proper focus for international law, and
intra-state matters which traditionally fell within the domestic jurisdiction of states and
were thus in principle impervious to international legal regulation’. 3
The dichotomy between international and internal situations ‘was clearly
sovereignty-oriented’. 4 Indeed, when soon after the Second World War negotiations
took place to revise the then existing Geneva Conventions, 5 the participating States
were strongly against the proposal by International Committee of the Red Cross (ICRC)
to make the updated treaties applicable in full to both international and ‘internal’ armed
conflicts. The delegation of the United Kingdom, for example, in reaction to the ICRC’s
draft proposal for the provision that would later become Common Article 3, presented
at the Diplomatic Conference convened in 1949, argued against adoption of the draft
because it would ‘strike at the root of national sovereignty’. 6
Nearly 70 years later, the following statement, appearing in the United States’
Judge Advocate General School’s deskbook on the law of armed conflict, is striking in
this regard:
The law of armed conflict is […] applicable only after the requirements for
piercing the shield of sovereignty have been satisfied. Once triggered, the law of
1
The term IHL is used throughout the present contribution, even though it also covers the period prior to
when this term was first used.
2
See, generally, R Bartels, ‘Timelines, Borderlines and Conflicts: The Historical Evolution of the Legal
Divide between International and Non-International Armed Conflicts’ (2009)91 IRRC 65.
3
MN Shaw, International Law (CUP 2002) 1068-9.
4
Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY-
94-1-A (2 October 1995) (Tadić Jurisdiction Decision) para 96. The Appeals Chamber continued that the
dichotomy ‘reflected the traditional configuration of the international community, based on the
coexistence of sovereign States more inclined to look after their own interests than community concerns
or humanitarian demands’.
5
Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (22 August
1864; updated on 6 July 1906 and 27 July 1929); and Convention relative to the Treatment of Prisoners
of War (27 July 1929).
6
ICRC, Final Record of the Diplomatic Conference of Geneva of 1949: Vol. II-B (Federal Political
Department Berne 1963) 10.

armed conflict intrudes upon the sovereignty of the regulated State by limiting the
means and methods of its application of violence in combat and by imposing
obligations to respect and protect certain persons and places. 7
The authors of this deskbook appear to view the impact of IHL 8 on the concept of
sovereignty as negative; at least the words used suggest so. However, one can wonder
whether it is appropriate to refer to ‘intrusions’ by IHL upon sovereignty, when
generally these intrusions will take place in the form of treaty obligations, and as such
are the result of prior explicit acceptance by (sovereign) States. Indeed, it has been
noted that recourse was sought to the law of nations to regulate inter-state warfare
precisely because the principle of sovereign equality ‘rendered inconceivable the idea
that one sovereign could regulate by his own law the belligerent acts of military forces
of an enemy sovereign, and vice versa’. 9 Be that as it may, the extension of many rules
of IHL to non-international armed conflict as customary law 10 can perhaps be seen as
an intrusion with respect to those States that did not (actively) take part in the –
arguably rapid 11 – formation of custom, 12 or were opposed such a rule. 13
In addition to the aforementioned impact of State sovereignty on the foundation
of IHL, it has been observed that sovereignty continued to influence its development.14
One can further wonder whether in turn, and to what extent, IHL influenced the
understanding and/or development of the notion of sovereignty as part of general
international law. Indeed, as sovereignty is considered to be ‘a changing notion which
adjusts to the developing nature of international law’, 15 while at the same time it has
been submitted that ‘the story of IHL is the tale of changing notions of sovereignty’, 16 it
7
D Lee (ed.), Law of Armed Conflict Deskbook (5th edn, The US Army Judge Advocate General’s Legal
Center and School 2015) 24.
8
It is, of course, also possible that the authors see any ‘interference’ by international law as undesirable.
9
R O’Keefe, International Criminal Law (OUP 2015) 124.
10
J-M Henckaerts and L Doswald-Beck, Customary International Humanitarian Law (CUP 2005).
11
See below under 4.
12
A State may not have contributed to the formation of a rule of customary IHL, for example, because at
the time the rule came into existence, it did not exist, or was not involved in any armed conflicts, thus not
in a position to create any State practice.
13
For a discussion of the persistent objector rule, see JA Green, The Persistent Objector Rule in
International Law (OUP 2016).
14
Eg T Fleiner-Gester and MA Meyer, ‘New Developments in Humanitarian Law: A Challenge to the
Concept of Sovereignty’ (1985)34 ICLQ 267-83; and N Melzer, International Humanitarian Law: A
Comprehensive Introduction (ICRC 2016) 53.
15
A Clapham, ‘National Action Challenged: Sovereignty, Immunity and Universal Jurisdiction before the
International Court of Justice’ in M Lattimer and P Sands (eds), Justice for Crimes against Humanity
(Hart Publishing 2003) 305.
16
RJ Goldstone and AM Smith, International Judicial Institutions: The architecture of international
justice at home and abroad (Routledge 2009) 14.

is interesting to explore how the changes in the legal framework of IHL and how the
development of the notion of sovereignty have affected each other.
In the present contribution, the author will discuss the relationship between State
sovereignty and the rules governing armed conflicts, and how the development of IHL,
in becoming more comprehensive and – importantly – increasingly applicable to non-
international situations, relates to the law of State sovereignty. In doing so, the notion of
State sovereignty will first be briefly set out, explaining the distinction between external
and internal sovereignty. Next, it will be discussed how these two forms of sovereignty
relate to IHL. The discussion then turns to the interaction between the laws governing
war and State sovereignty by way of historical analysis, identifying key moments in the
development of the relevant international legal frameworks. Finally, two specific issues
are considered, namely the requirement of consent to humanitarian relief activities and
the geographical scope of IHL with respect to extra-territorial situations involving
armed groups. The contribution ends with an evaluation whether the impact of IHL on
State sovereignty, and vice versa, is to be cherished or is cause for concern.
2. The Concept of State Sovereignty in Public International Law
The international law notion of State sovereignty can be defined as ‘a state’s

independence and exclusive authority over its territory and those residing upon it’. 17
This entails a State’s capacity to exercise State functions on or related to its territory,
without interference by other States, as well as the capacity to engage in international
relations, or decide to refrain from doing so. 18
State sovereignty may nowadays be the ‘standard operating assumption’ of the
international (legal) system, 19 but as a concept, it first came into existence in when the
idea of the modern nation-State was born, 20 with the Peace of Westphalia in 1648. 21
17
C Henderson, ‘The Arab Spring and the Notion of External State Sovereignty in International Law’
(2014)35 Liverpool Law Review 175-176, referring to J Crawford, ‘Sovereignty as a legal value’ in J
Crawford and M Koskenniemi (eds), The Cambridge companion to international law (CUP 2012) 131.
18
ibid.
19
Crawford (n 17) 131.
20
RA Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective (Transnational
Publishers 1998) 4. For a critique of the idea that a new concept of sovereignty was conceived with the
Peace of Westphalia, see eg A Osiander, ‘Sovereignty, international relations, and the Westphalian myth’
(2001) 55 International Organization.

The new world order then established was premised on the absolute sovereignty of its
constituent members. 22 With the rise of the nation-State, the rights to wage war came to
be characterised as an inherent sovereign right, 23 even growing into sovereignty’s main
characteristic. 24 As phrased by the Nuremberg Tribunal’s chief prosecutor: ‘[E]ach state
is sovereign, its right absolute, its will unrestrained, and free to resort to war at any
time, for any purpose’. 25
States (and statesmen) did not consider the freedom of waging war to constitute
a problem under international law; nor did they find it inconceivable that a State could
legitimately challenge the sovereignty of other States by calling upon its own
sovereignty. 26 This part of State sovereignty, which has been referred to as ‘external
sovereignty’, 27 is based on the principle that all States are equal for the purposes of
international law. 28 This principle was incorporated in the Charter of the United Nations
(UN Charter), 29 and subsequently confirmed by the International Court of Justice, 30 and
advocated by the UN General Assembly. 31
Internal sovereignty, on the other hand, dictates that States have full jurisdiction
over their internal affairs and a monopoly of governing authority: 32 a domain réservé,
free from interference by other States. 33 It concerns the locus of power and control
21
N Schrijver, ‘The changing nature of state sovereignty’ (2000)70 BYIL 65, 67, refers to 1648 as the
‘“birth year” of the sovereign state’.
22
Eg MP Snyman-Ferreira, ‘The evolution of state sovereignty: a historical overview’ (2006)12
Fundamina 9.
23
Bartels (n 2) 65.
24
O’Keefe (n 9) 124, referring to the waging of war as ‘the exercise par excellence of sovereign
authority’.
25
RH Jackson, ‘Nuremberg in Retrospect: Legal Answer To International Lawlessness’ (1949)35
American Bar Association Journal 813.
26
Y Dinstein, ‘The legal status of war’, in D Kinsella and CL Carr (eds), The Morality of War: A Reader
(Lynne Rienner Publishers 2007) 101.
27
Eg Henderson (n 17) 175.
28
N Schrijver (n 21) 71, explaining that ‘a State is not subject to the legal power of another State or of
any other higher authority, and stands in principle on an equal footing with other States: par in parem non
habet imperium.’
29
Art 2(1) of the UN Charter: ‘The Organization is based on the principle of the sovereign equality of all
its Members’.
30
Corfu Channel Case (United Kingdom v Albania) Merits, 9 April 1949, ICJ Reports 4, 35, in which the
Court held that ‘[b]etween independent States, respect for territorial sovereignty is an essential
foundation of international relations’.
31
Declaration on Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations, A/RES/25/2625 (1970), which
recalled and qualified the ‘principle of sovereign equality of States’.
32
Crawford (n 17) 120. The Permanent Court of Arbitration held that ‘[i]ndependence in regard to a
portion of the globe is the right to exercise therein, to the exclusion of any other state, the functions of a
state’: Island of Palmas (United States v. The Netherlands), 4 April 1929, 11 RIAA 831, 838.
33
See art 2(7) of the UN Charter.

within a State, as determined by the domestic constitutional framework of the State

concerned, and internal sovereignty thus generally rests with the government. 34
As is discussed next, the division of sovereignty into an external and internal
component is relevant for the interplay between sovereignty and IHL. Interestingly, it
also appears, in part, to match IHL’s bifurcated system of the law of international armed
conflict and the law related to internal, or rather non-international, armed conflicts. 35
3. The Differentiated Relationship Between the Laws Related to Wars and

Armed Conflicts and State Sovereignty
External Sovereignty
The principle of sovereign equality of States relates mostly to the jus ad bellum and its
regulation of the use of force. While historically, jus ad bellum and jus in bello were
interrelated parts of the just war doctrine, these two branches of international law are
now distinct. During an (international) armed conflict, IHL applies ‘without any
adverse distinction based on the nature or origin of the armed conflict or on the causes
espoused by or attributed to the Parties to the conflict’. 36 Indeed, the concomitant
principle of equality of belligerents 37 is ‘fundamental’ to the separation between jus ad
bellum and jus in bello. 38
It is ‘no accident’ that the first multilateral convention open to accession by all
States (ie the type of instrument that forms the very basis of modern international law
and has become its primary source), namely the Paris Declaration on Maritime Law of
1856, emerged in the field of IHL. 39 States recognised the need for uniform and
universally accepted rules, especially as concerns warfare. 40 Negotiations of the new
multilateral conventions took place on the basis of sovereign equality, allowing small
34
Crawford (n 17) 121; and Henderson (n 17) 176.
35
See, generally, on the bifurcated system and its development: L Hill-Cawthorne, ‘Humanitarian law,
human rights law and the bifurcation of armed conflict’ (2015)64 ICLQ 293-325; and Bartels (n 2).
36
Preamble of Additional Protocol I.
37
S Sivakumaran, The Law of Non-International Armed Conflict (OUP 2012) 95.
38
H Lauterpacht, ‘The Limits of the Operation of the Law of War’ (1953)30 BYIL 206; and J Somer,
‘Jungle justice: passing sentence on the equality of belligerents in non-international armed conflict’
(2007)89 IRRC 659.
39
A Roberts, ‘The equal application of the laws of war: a principle under pressure’ (2008)90 IRRC 940.
40
ibid 939.

States, such as Belgium, to successfully advocate for inclusion rules that would benefit
them in wars against bigger, more powerful States. 41
Whereas the IHL principle of equality of belligerents appears to derive directly
from the principle of sovereign equality of States, it, in fact, mainly follows from the
realism that since IHL is designed specifically to apply in situations of conflict,
belligerents must comply with the humanitarian obligations imposed by it in all
circumstances. 42 If one side would not be bound by certain rules, the opposing side is
unlikely to comply with the rules it is bound by. 43
The introduction of the prohibition on the use of force in the UN Charter, and
the fact that war could no longer be seen as a ‘continuation of politics by other
means’, 44 reinforced this realism, but it existed prior to 1945. Indeed, the early IHL
treaties, as a result of States calling upon their sovereignty, as well as the lack of
confidence at the time in international regulation of warfare, 45 included so-called
‘general participation clauses’: 46 either all States engaged in a war were bound by the
convention concerned, or none was. 47 After the negative consequences of such clauses
became apparent during the First World War, they were ‘expressly excluded’ for the
two Geneva Conventions adopted in 1929.48 The wish of the participating States to
ensure better and more humane protection of the sick and wounded and prisoners of war
thus overcame the ‘paralysing’ impact external sovereignty had on earlier IHL
treaties. 49
Nevertheless, as discussed next, internal sovereignty formed the main obstacle
to extent the majority of the rules of IHL to the type of armed conflict that has become
the most prevalent form today: non-international armed conflict.
Internal Sovereignty
41
Eg arts 1 and 2 of the Regulations annexed to the 1907 Hague Convention (IV) respecting the Laws
and Customs of War on Land (Hague Regulations), addressing militia and volunteer corps, as well as
levée en masse. See GIAD Draper, ‘The development of international humanitarian law’ in UNESCO,
International Dimensions of Humanitarian Law (Martinus Nijhoff 1988) 73.
42
See Melzer (n 14) 17.
43
Sivakumaran (n 37) 95.
44
C von Clausewitz, On War (translated by Howard and Paret; Princeton University Press 1984) 584.
45
Traditionally, treaties had been bilateral rather than multilateral.
46
Eg art 2 of the Hague Regulations.
47
Draper (n 41) 74.
48
ibid 76-7. Arts 25 and 82, respectively of the two 1929 Geneva Conventions (n 5), each specified that
‘[i]f … a belligerent is not a party to the Convention, its provisions shall, nevertheless, be binding as
between all the belligerents who are parties thereto.’
49
Draper (n 41) 74-7.

The humanitarian notions underlying many of the treaty and customary rules of IHL
date back to ancient history; just as the idea of inalienable rights for every individual
was chiefly advocated since the Enlightment but had its origins in far earlier periods.
Interestingly, however, States entered into agreements and concluded treaties
addressing the manner in which the subjects of another State (or rather: the enemy)
were to be treated in times of war, well before they took to conclude treaties limiting
the treatment by governments of their own citizens. The first multilateral treaty on IHL
was concluded in 1864 50 – with several more to follow in the decades thereafter.
Although rights of individuals were acknowledged in national instruments such as the
Bill of Rights and the Déclaration des Droits de l’Homme et du Citoyen, and the UN
Charter referred to human rights and called for action in this regard, 51 it was not until
1950 before the first regional human rights instrument came into existence, 52 and the
first international human rights treaties were not adopted until 1966.53 Meanwhile,
already in 1949, States had (partially) extended the reach of IHL to internal fighting. 54
As with the difference in regulation of inter- and intra-State fighting, the reason
may be traced back to the notion of State sovereignty. For arranging one’s relations
with another sovereign power, including its subjects, is an expression of external
sovereignty, while accepting limitations on how to deal with one’s own internal affairs
was understood as a limitation. Especially, with respect to internal sovereignty, the
development of IHL and its rapidly increased application to situations of non-
international armed conflict thus can be expected to have caused tension. This will be
analysed in the next section.
4. The Development of the Laws Governing Wars and Armed Conflicts and the
Concept of State Sovereignty
IHL and the concept of sovereignty appear to develop alongside each other, with their
development spurred by the same events. Just like for the concept of State sovereignty
50
Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (22 August
1864).
51
Eg arts 1, 13, and 55.
52
European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November
1950).
53
Eg International Covenant on Civil and Political Rights (16 December 1966).
54
In addition to situations where insurgents were recognised as belligerents (see below).

to come into existence, for the modern idea of international armed conflicts, which are
defined as taking place between two or more States, 55 it was necessary for the State as
such to first be recognised as an (international) legal concept. However, prior to the
emergence of the concept of the nation-State, wars were also fought and they were – to
a certain extent – regulated by laws of war, if the enemy was part of the same developed
world or shared the same religion, as opposed to being seen as ‘barbaric’. 56
Yet, after 1648, until the twentieth century, only fighting between (at least) two
sovereign States was considered to constitute war. Internal conflicts were not
considered to fall within the realm of international law, and thus not covered by the
laws of war. 57 Only when a situation resembled an international war, after the
recognition of belligerency by the government, international law placed the fighting
parties on an equal footing: the sovereign State and the insurgents recognised as
belligerents. 58 Interestingly, third States not taking part in the fighting could also
recognise belligerency, but this would not affect the rules applicable to the fighting.
Instead it affected the relation between the non-State actor (ie the insurgents) and the
third State, however, and thereby also have legal consequences for the relationship
between the sovereign States. For that reason, ‘certain de facto elements must all be
present for third States to be able to recognize a situation of belligerency without
committing the inadmissible act of interfering with the internal affairs of the other
State.’ 59
Since the 18th century, events such as the American and French revolutions took
place and the governments of various States adopted some form of constitution, which
constrained and regulated internal sovereignty by introducing power sharing
arrangements, but these were not part of international law and internally driven
55
Art 2 common to the 1949 Geneva Conventions. The ICTY further famously held that an international
armed conflict ‘exists whenever there is a resort to armed force between States’. Tadić Jurisdiction
Decision, para 70.
56
See generally Bartels (n 2) 42-8; see also GAID Draper, ‘The Interaction of Christianity and Chivalry
in the Historical Development of the Law of War’ (1965)46 IRRC 3-23.
57
Eg L Oppenheim, International Law: A Treatise (Vol II, Longmans, Green and Co. 1906) 56-58, 65-
67.
58
On recognition of belligerency and its requirements, see generally H Lauterpacht, Recognition in
International Law (CUP 1947) 175-269. Recognition of belligerency would not actually change the
nature of the conflict. The fighting would therefore continue to take place as part of an internal/non-
international matter, but become subject to international law, ie the laws of war, thus be regulated by a
larger set of rules (see, eg YM Lootsteen, ‘The Concept of Belligerency in International Law’ (2000)166
MilLRev 109).
59
Y Sandoz et al, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of
12 August 1949 (Martinus Nijhoff 1987) para 4346.

movements. 60 The Westphalian notion of absolute State sovereignty therefore mostly

prevailed until the early 20th century. However, the excesses that took place at the hands
of States during the First World War are said to have challenged this. 61
Indeed, the 1919 Versailles Treaty recognised the Allied and Associated
Powers’ right to prosecute alleged violators of the laws and customs of war and
demanded that the German Government ‘hand over to the Allied and Associated
Powers, or to such one of them as shall so request, all persons accused of having
committed an act in violation of the laws and customs of war’. 62 Nonetheless, while the
letter of the treaty appeared to be an evident limitation of Germany’s internal
sovereignty, what actually occurred in practice may rather be seen as an emphasis of
this form of sovereignty. Namely, Germany refused to extradite its citizens to the
victorious nations that had wanted to put them on trial and instead proposed to itself
prosecute the alleged war criminals identified by the Allied States. So it did, albeit a
significantly smaller number, in what became known as the Leipzig trials. 63 While
Germany having to try its own nationals at the demand of the victors of the war can be
regarded as a considerable interference with its internal sovereignty, 64 the fact that the
Allied States accepted the proposed arrangement may at the same time indicate a
continued recognition of the said sovereignty. Relatedly, the Netherlands, which had
remained neutral during the war, refused to extradite the German emperor, after he had
sought refuge there, for prosecution by an international tribunal. It justified its refusal
with reference to both its internal sovereignty and the ex-emperor’s position as a
sovereign. 65 The subsequent acceptance by the Allied States appears to similarly
confirm the enduring importance of sovereignty.
60
Of course, revolutions in one State could serve as an inspiration for the population of another State.
61
EE Kuijt, Humanitarian Assistance and State Sovereignty in International Law (Intersentia 2015) 135,
referring to JN Maogoto, ‘Westphalian Sovereignty in the Shadow of International Justice? A fresh Coat
of Paint for a Tainted Concept’ in T Jacobsen et al (eds), Re-envisioning Sovereignty: The End of
Westphalia? (Ashgate 2008) 213.
62
Art 228 of the Treaty of Peace between the Allied and Associated Powers and Germany (28 June
1919).
63
On these trials, held at the then supreme court of Germany (Reichsgericht in Leipzig), see C Mullins,
The Leipzig Trials: An Account of the War Criminals’ Trials and Study of German Mentality (HF&G
Witherby 1921).
64
However, only a few trials actually took place and the sentences handed down were ‘disproportionately
light’. M Schmitt, ‘Investigating Violations of International Law in Armed Conflict’ (2011)2 Harvard
National Security Journal 35.
65
See eg MC Bassiouni, Crimes against humanity: Historical evolution and contemporary application
(CUP 2011) 638.
10

Shortly afterwards, the founding of the League of Nations and adoption of its
Covenant both re-affirmed the concept of State sovereignty 66 and introduced some
restrictions to it. 67 These restrictions, however, were agreed upon by all participating
States and may therefore be seen as a manifestation of their sovereignty, rather than a
real limitation.
Subsequently, the Second World War created a real trigger to limit State
sovereignty. Following the horrors of the war, the UN Charter was quickly agreed
upon. 68 In doing so, States gave the UN Security Council, albeit made up of States, the
authority to exercise supranational powers pursuant to Chapter VII of the UN Charter,
and recognised collective security as a valid form to take action. External sovereignty
was therewith formally impeded on. As discussed below, the Security Council later
played an important role in the development of IHL, with actions that at the same time
affected the sovereignty of the States involved, when it created international criminal
tribunals.
Before that time, however, immediately after the war, the Allies had set up the
International Military Tribunals at Nuremberg and Tokyo, 69 where German and
Japanese nationals were prosecuted against the will of the defeated Axis Powers, inter
alia, for war crimes. IHL, or the laws of war, as it was still known at the time, enabled
the prosecution by providing both the jurisdictional basis and legal framework that was
allegedly contravened, thereby playing a significant role in this interference with the
internal sovereignty of the two States concerned. 70 In addition to setting up the
tribunals, 71 the Allies also conducted trials in the parts of the German territory they
occupied, taking their authority to further impede on the German and Japanese
sovereignty from the law of occupation. At the same time, this was showing of strength
by the sovereign victors. Moreover, the criminalisation of aggression arguably erected
‘a wall’ around external sovereignty. 72 Be that as it may, the prosecution of the crimes
66
Eg Art 10 of the Covenant of the League of Nations (28 June 1919)
67
Eg ibid arts 8 and 23.
68
See Preamble of the UN Charter (signed on 26 June 1945) para 1.
69
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and
Charter of the International Military Tribunal’ (signed on 8 August 1945); and Charter of the
International Military Tribunal for the Far East (proclaimed on 19 January 1946).
70
On the Nuremberg Tribunal’s impact on State sovereignty, see C Tomuschat, ‘The Legacy of
Nuremberg’ (2006) JICJ 837-41.
71
The IMT’s Charter was drawn up by the four Allied Powers, but 19 European States also ratified it,
thereby expressing their agreement – a form of external sovereignty.
72
D Luban, Legal Modernism (University of Michigan Press 1994) 336.
11

committed against German Jews ‘pierce[d] the veil of [internal] sovereignty’. 73 Indeed,
the recognition that State officials could commit crimes against humanity made
individual rights in international law superior to the law of the sovereign State. 74
In 1949, with the war-time experience fresh in everyone’s mind, the
international community extended the application of IHL to internal situations, albeit to
a very limited degree, and saw the introduction of the grave breaches regime. As both
developments are especially relevant with respect to internal sovereignty, each will be
discussed in turn.
Introduction of IHL Applicable to Non-International Armed Conflicts

Since its inception in the 19th century, the Red Cross movement had been trying to
assist victims of internal conflicts, but applications by the ICRC or a foreign Red Cross
Society to the bring relief in such cases were regularly treated as constituting
interference in internal matters of the States concerned. 75 At various instances prior to
the Second World War, the ICRC had unsuccessfully advocated for a convention
addressing its services during civil wars and insurgencies, but in 1921 a resolution was
adopted by the International Conference of the Red Cross 76 which gave the ICRC a
mandate for civil wars. In 1938, this resolution was supplemented and the ICRC was
asked to study the problems raised by civil war. 77 Then, during the Diplomatic
Conference that led to the Geneva Conventions of 1949, the ICRC presented the results
of the aforementioned study and proposed to make the new treaties applicable to both
international and non-international armed conflicts in their entirety. However, this
proposal was met with very strong opposition and the States could only agree on the
application of one provision, Common Article 3. 78 Nonetheless, the inclusion of this
one provision, often referred to as a ‘mini-convention’, primarily in response to the
brutal civil wars that took place in the years between the two world wars, such as the
Spanish Civil War, 79 was ‘almost unhoped-for’. 80
73
ibid.
74
H Lauterpacht, International Law and Human Rights (Archon Books 1968) 347.
75
JS Pictet (ed.), Commentary on the Geneva Convention of 12 August 1949 for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field (ICRC 1952) 39
76
All States that are party to the Geneva Conventions participate in these conferences.
77
Commentary to the Additional Protocols (n 59) 4350-3; and Sivakumaran (n 37) 36-7.
78
See, generally, A Cullen, The Concept of Non-International Armed Conflict in International
Humanitarian Law (CUP 2010) 25-61; and Bartels (n 2) 57-64.
79
GS Corn, ‘Hamdan, Lebanon, and the regulation of hostilities: The need to recognize a hybrid category
of armed conflict’ (2007)40 VandJTransnatL 305.
12

Pictet described Common Article 3 as ‘marking a decisive step in the evolution

of modern law and tending to limit the sovereignty of the state for the benefit of the
individual’. 81 Yet, according to the representative of the German Democratic Republic,
the resulting ‘very important’ distinction between international and non-international
armed conflicts, and the more limited coverage by IHL of the latter, was actually ‘based
on respect for State sovereignty and territorial integrity.’ 82 The extension of certain
minimum rules of IHL to internal situations can thus be seen as having affected internal
sovereignty, but only the extent the negotiating States considered acceptable.
It was clear, however, that these States understood the term ‘armed conflict not
of an international character’ to be similar to civil war. 83 The extension of IHL to
internal situations was therefore agreed upon in the understanding that this would only
occur when a level of insurgency similar to that traditionally set for recognition of
belligerency was reached. The very reason for recognition of belligerency, which is left
to the discretion of the State concerned, would generally be the acknowledgement by
State authorities that an insurgency could not easily be supressed and the opposition had
become so powerful that application of the laws of war would serve the interests of the
State. The acceptance of an impediment by IHL on the States’ internal sovereignty may
therefore similarly have been out of self-interest, at least in part, and not merely to
achieve better protection for victims of internal conflicts.
Subsequently, driven by developments that followed the Second World War,
such as the anti-colonial struggles and the creation of new States as well as the
emergence of new means of warfare, the Swiss Federal Council convened a diplomatic
conference to reaffirm and develop IHL in 1974. Four sessions and three years later,
despite the difficult political context (namely, at the end of the Vietnam War, and in the
middle of the Cold War), two Additional Protocols to the 1949 Geneva Conventions
were adopted.
80
JS Pictet (ed.), Commentary on the Geneva Convention of 12 August 1949 relative to the Treatment of
Prisoners of War (ICRC 1958) 28.
81
JS Pictet, Development and Principles of International Humanitarian Law (Martinus Nijhoff 1985) 47.
82
As expressed during the negotiations for the Additional Protocols of 1977: Official Records of the
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law
Applicable in Armed Conflicts, Vol VIII (1978) 206.
83
The final report states that: ‘It was clear that this referred to civil war, and not to a mere riot or
disturbances caused by bandits. States could not be obliged, as soon as a rebellion arose within their
frontiers, to consider the rebels as regular belligerents to whose benefit the Conventions had to be
applied.’ Final Record (n 6) 129.
13

Due to the changed interests of a number of participating States, mostly the

former colonies who mostly desired a comprehensive Additional Protocol I for
international armed conflicts, the scope of Additional Protocol II, 84 applicable to non-
international armed conflict, was less encompassing than the ICRC had initially
proposed. 85 Its material scope was also more limited than that of Common Article 3, as
Additional Protocol II requires one of the parties to be a State and that the armed
opposition controls part of that State’s territory. 86 Nevertheless, it expanded on the
substance of Common Article 3 by creating a more detailed protection regime, and
including some provisions on the conduct of hostilities. 87 The States considered it vital,
however, to make emphasise that ‘[n]othing in this Protocol shall be invoked for the
purpose of affecting the sovereignty of a State or the responsibility of the government,
by all legitimate means, to maintain or re-establish law and order in the State or to
defend the national unity and territorial integrity of the State.’ 88
Importantly, however, since the introduction into IHL of the concept of ‘armed
conflict not of an international character’ with the adoption of Common Article 3, the
notion of non-international armed conflict has been expanded and the threshold for a
so-called ‘Common Article 3 conflict’ has been significantly lowered. 89 While States
set a higher conflict threshold for the further extension of IHL to internal situations in
1977, the rules contained in Additional Protocol II are now regarded to apply to all non-
international armed conflicts as customary IHL, ie also during Common Article 3
conflicts. 90
84
Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of
Victims of Non-International Armed Conflicts (8 June 1977) (Additional Protocol II).
85
Commentary to the Additional Protocols (n 59) paras 4453-4455.
86
Art 1 of Additional Protocol II.
87
Eg ibid art 13.
88
ibid art 3(1). The delegate for Indonesia explained that ‘his delegation understood the concern of those
who objected to draft Protocol II on the grounds that some of its provisions interfered in the internal
affairs of States and were contrary to the principle of national sovereignty.’ Official Records (n 82) Vol
XI, 248.
89
See Bartels (n 2) 35; Cullen (n 78) 60-1; see also the level applied by the ICTY in Prosecutor v
Boškoski and Tarčulovski (Trial Judgment) ICTY-04-82-T (10 July 2008), paras 175–204.
90
Naturally, the development of IHL extends beyond the Geneva Conventions and Additional Protocols.
Various treaties were adopted on methods and means of warfare, and the protection cultural property. A
number of them became applicable to non-international armed conflicts by way of optional protocols (eg
the 1999 Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict). However, sovereignty also played an important role in the formation of these
treaties. During the 2003 negotiations for the Protocol on Explosive Remnants of War (Protocol V) to the
Convention on Certain Conventional Weapons, some delegations proposed that the responsibility to clear
unexploded munitions should be shifted to the party that used the munitions. According to the US,
‘[s]uch a provision would have been contrary to the long-established customary principle of the rights
14

As the international human rights law regime took form at the same time, one
can wonder whether the lowering of the application of the Common Article 3 (and the
resulting growing impact on internal sovereignty) should be attributed to the
development of IHL, or rather to the growing acceptance of international law generally,
through emerging human rights obligations, as a limiting factor of sovereignty when
individuals are concerned. 91 Similarly, the recognition in 1977 that situations ‘in which
peoples are fighting … in the exercise of their right to self-determination’ may, subject
to certain conditions, 92 qualify as international armed conflicts, 93 can be seen as a
reflection of the general acceptance in international law of the concept of self-
determination 94 and human rights law, rather than an impact on sovereignty deriving
from IHL itself. 95 Notwithstanding the foregoing, it is interesting to note that the
existence of human rights law, as a supplementary form of protection and regulation for
situations of non-international armed conflict, has been named as one of the reasons
why applying the law of non-international armed conflict to extra-territorial situations is
justified. 96
The adoption in 1977 of the more elaborate rules for non-international armed
conflict coincided with further encroachment on a State’s dealings with its citizens
came with the development of the human rights law regime from the mid-1960ies
onwards. International human rights law, arguably, forms the biggest limitation to
sovereignty, 97 but one should not forget that human rights treaty bodies and mechanism
only operate at the grace of their member States and even those institutions that can
issue binding decisions, such as the Inter-American Court of Human Rights and
European Court of Human Rights, cannot rely on an effective enforcement of all their
and responsibilities of a sovereign state over its territory; responsibility should be assigned to the entity in
the best position to exercise it.’ US Department of Defense Law of War Manual (updated version
December 2016) para 6.20.7 (fn 483).
91
On the recognition of the individual as a subject of international law, see, eg R Portmann Legal
Personality in International Law (CUP 2010) 126-132.
92
The State concerned must have ratified Additional Protocol I. Moreover, for the Geneva Conventions
and Additional Protocol I to become equally binding upon both sides of the conflict, a declaration
pursuant to art 96(3) by the “authority representing a people” has to be addressed to the depositary of the
Conventions (ie the Swiss government), who so far has refused to accept any declarations by non-State
actors fighting a State that is not a party to Additional Protocol I.
93
Art 1(4) of Additional Protocol I.
94
Eg Art 1(2) of the UN Charter.
95
Draper (n 41); and generally, Hill-Cawthorne (n 35).
96
Eg N Lubell, Extraterritorial Use of Force Against Non-State Actors (OUP 2010).
97
As argued, inter alia, in BS Brown, ‘Nationality and Internationality in International Humanitarian
Law’ (1998)34 StanJIntLaw 395.
15

rulings. 98 Moreover, it has correctly been observed that the increasingly active role of
the international community in human rights protection, by negotiating and adopting
human rights treaties, in fact ‘enhances rather than diminishes the notion of
sovereignty’. 99 Indeed, ‘[a]lthough a nation sacrifices some sovereignty when it
becomes a party to an international agreement, it also gains certain protections that
broaden and enhance its sovereignty. The interdependence of the international
community assists and fortifies sovereignty as the power of a nation to protect its
citizens.’ 100
In addition to the development of international human rights law as a result of
the recognition of the individual as a subject of international law, 101 the enhanced focus
on the individual is also connected to the development of an international criminal
justice system, to which the discussion now turns.
Individual Criminal Responsibility and Customary IHL

The second ‘ground-breaking’ 102 introduction made in the 1949 Geneva Conventions,
that of the grave breaches regime, created the duty to investigate allegations of specific
violations of IHL and to prosecute (or extradite) the alleged violators, regardless of their
nationality. 103 However, the regime adopted was limited in scope and ‘disappointingly’
few States enacted the required legislation. 104 Despite acknowledging the need to attach
individual criminal responsibility to certain serious violations of IHL, States apparently
wished to leave internal sovereignty mostly intact. Moreover, they did not want a
similar ‘intrusion on State sovereignty’ with respect to their internal conflicts, and
therefore did not establish the same mandatory universal jurisdiction (as for grave
98
The limited compliance by the Russian Federation with the ECtHR judgments is a case in point. See,
eg European Committee of Ministers, Resolution CM/ResDH(2007) 106. On aggregate the ECtHR had a
compliance rate of 48% in 2009, while the IACtHR rate was 34%: A Donald and P Leach, Parliaments
and the European Court of Human Rights (OUP 2016) 71.
99
L Sellers Bickley, ‘U.S. Resistance to the International Criminal Court: Is the Sword Mightier Than the
Law?’ (2000)14 EmoryIntlLRev 261.
100
ibid.
101
K Fortin, The Accountability of Armed Groups under Human Rights Law (OUP 2017) 31.
102
ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field (CUP 2016) para 2888.
103
See arts 49-50, 50-51, 129-130, and 146-147 of the four 1949 Geneva Conventions, respectively.
104
Y Sandoz, ‘The History of the Grave Breaches Regime’ (2009)7 JICJ 675; and ICRC 2016
Commentary (n 102) 2888-2889.
16

breaches) over serious violations of IHL committed in non-international armed

conflicts. 105
This remained the same in 1977, as the grave breaches regime was only
included in Additional Protocol I, with the same limitations as for the Geneva
Conventions. 106 Although ‘[o]n paper the grave breaches regime amounts to a
watertight mechanism’, 107 hardly any prosecutions of grave breaches cases have taken
place in the years after the adoption of the regime and prior to the establishment of the
ICTY. 108
Also in 1977, in a desire to strengthen the enforcement of IHL, it was agreed
that an International Humanitarian Fact-Finding Commission would be established.109
However, the competency of this permanent body is solely based on consent: a State
must ‘unambiguously announce’ its recognition of the Commission’s competence (for
any future conflicts), in which case an enquiry can take place in case of a conflict
involving a State having made a similar declaration, or the enquiry is requested by a
belligerent party and consented to by the other. 110 To date, no belligerent party has ever
agreed to an (official) enquiry by the Commission, 111 which has therefore been referred
to as a ‘sleeping beauty’. 112
105
Tadić Jurisdiction Decision, para 80. The accepting of universal jurisdiction, which limits material
immunities, is somewhat paradoxical, as States empower themselves enable them to expand their
sovereign rights to events beyond their borders, yet at the same time have to accept that other States may
do the same. (see R Cryer, ‘International Criminal Law vs State Sovereignty: Another Round?’ (2006)16
EJIL 987).
106
Art 85 of Additional Protocol I.
107
ICRC 2016 Commentary (n 102) para 2888.
108
K Dörmann and R Geiss, ‘The Implementation of Grave Breaches into Domestic Legal Orders’
(2009)7 JICJ 704, referring to a ‘remarkably modest corpus of domestic jurisprudence governing these
offences’, while the ICRC 2016 Commentary only identifies one instance of a national prosecution for
(alleged) grave breaches: a Danish case in 1994 (ibid).
109
110
ICRC, The International Humanitarian Fact-Finding Commission (2001) at
<https://www.icrc.org/eng/assets/files/other/fact_finding_commission.pdf> accessed 17 July 2017.
111
Melzer (n 14) 301.
112
F Kalshoven, ‘The International Humanitarian Fact-Finding Commission: A Sleeping Beauty?’
(2002)15 Humanitäres Völkerrecht 213-16. In 2017, the Commission, at the request of the Organization
for Security and Cooperation in Europe (OSCE), led an investigation in Ukraine. However, the
Independent Forensic Investigation team presented its report to the OSCE, not to the parties to the
conflict (as per art 90(5)(a) of Additional Protocol I). See Executive Summary of the Report of the
Independent Forensic Investigation in relation to the Incident affecting an OSCE Special Monitoring
Mission to Ukraine (SMM) Patrol on 23 April 2017 at
<https://www.osce.org/home/338361?download=true>.
17

Nevertheless, whereas internal sovereignty prevailed for many years over

accountability for violations of IHL, 113 during a second ‘era of unprecedented
consensus’, immediately after the end of the Cold War, 114 the UN Security Council did
impede upon the internal sovereignty of (certain) States by setting up the International
Criminal Tribunal for the former Yugoslavia (ICTY) and sister tribunal for Rwanda
(ICTR); not only by creating these supra-national institutions to prosecute citizens of
the States of the former Yugoslavia and Rwanda, including many government officials
and (former) presidents, but also – more specifically – by giving the ICTR jurisdiction
over violations of Common Article 3 and Additional Protocol II. 115 Until that time, it
was long considered that war crimes could only be committed during international
armed conflicts, but the ICTY’s Appeals Chamber, in its revolutionary ruling on
jurisdiction in Tadić, 116 confirmed – without much subsequent opposition from States –
that war crimes could equally be committed during non-international armed conflicts.117
However, the real impact on sovereignty came from the tribunal’s extension of the
majority of (treaty) rules of IHL so far only applicable in international armed conflicts,
through custom, to non-international armed conflicts. 118 The Appeals Chamber did so
by reasoning that ‘[w]hat is inhumane, and consequently proscribed, in international
wars, cannot but be inhumane and inadmissible in civil strife’. 119
These ad hoc judicial institutions clearly were not held back by concerns of
State sovereignty. 120 Yet, the ruling was positive perceived by States, 121 who therefore
113
Alleged perpetrators of international crimes were put on trial at the national level, leading to
controversy and discussion about the concept of universal jurisdiction: see eg, C Nyst, ‘Solidarity in a
Disaggregated World: Universal Jurisdiction and the Evolution of Sovereignty’ (2012)8 JIntlLIntlRel 39-
47, 49.
114
The first era had taken place directly following the Second World War, prior to the start of the Cold
War. Goldstone and Smith (n 16) 2.
115
See UNSC Res S/RES/955 (8 November 1994); and art 4 of the ICTR Statute, annexed to the
aforementioned resolution. The Report of the Secretary-General pursuant to Paragraph 5 of Security
Council Resolution 955 (1994) (UN Doc S/1995/134, 13 February 1995) expressly stated that ‘the nature
of the conflict [was] non-international in character’ (para 11).
116
Tadić Jurisdiction Decision, para. 137.
117
Notably, shortly before (in 1993) even the ICRC had stated that ‘according to humanitarian law as it
stands today, the notion of war crimes is limited to situations of international armed conflict’: Tadić
Jurisdiction Decision, Separate Opinion of Judge Li, para 9.
118
Tadić Jurisdiction Decision, para 127; confirmed in, eg Prosecutor v Delalić (Appeal Judgment)
ICTY-96-21-A (20 February 2001) para 172; and Prosecutor v Tadić (Appeal Judgment) ICTY-94-1-A
(15 July 1999).
119
Tadić Jurisdiction Decision, para 119.
120
Sivakumaran (n 37) 65.
121
M Milanovic and V Hadzi-Vidanovic, ‘A Taxonomy of Armed Conflict’ in ND White and C
Henderson (eds), Research Handbook on International Conflict and Security Law (Edward Elgar 2013)
256-257.
18

appeared to accept that customary IHL had developed in the manner found by the
judges. In Rome, in 1998, States expressed as much by giving the ‘final seal of
approval’ for the advancement of individual criminal responsibility for serious
violations of IHL applicable to non-international armed conflicts, 122 when they agreed
upon the Rome Statute of the International Criminal Court, which gives the Court
material jurisdiction with respect to this type of conflict over the majority of serious
violations that were recognised as war crimes when committed in times of international
armed conflict. 123 The agreement reached in Rome would not have been possible
without the ICTY laying the groundwork. 124
Another important development, both for IHL and sovereignty, was the ICRC’s
Study on Customary IHL 125 which found a few years later that 146 out of 161 rules of
customary IHL are applicable during both types of armed conflict. 126 Other than some
criticism of specific aspects of the study, 127 the ICRC’s findings were largely accepted
by the international community and have been relied upon by international courts and
tribunals, commissions on inquiry, and made their way into military manuals. 128
The classic sovereign right to quash rebellions in whatever way the government
saw fit thus seems to have become restricted in an irreversible manner as a result of the
expansion by non-State entities, such as the ICTY, of the majority of the rules to non-
international armed conflicts. 129 Yet, two things should be pointed out. First, with
respect to international criminal justice and State sovereignty, their relationship is
complex. While the former does affect the latter, this is more the case for those
international crimes that previously were outside the purview of international law, and
in part relates to procedural aspects, such as the obligation to cooperate with the
122
Y Dinstein, Non-International Armed Conflicts in International Law (CUP 2014) 177.
123
See art 8(2)(c) and (e) of the Rome Statute.
124
Eg G Werle, Principles of International Criminal Law (2nd edn, TMC Asser Press 2009) 361; and E
La Haye, War Crimes in Internal Armed Conflicts (CUP 2008) 139.
125
Henckaerts and Doswald-Beck (n 10).
126
The extensive reliance of the Customary IHL Study on case law from the ad hoc tribunals is perhaps
the clearest testament to the impact of the ICTY’s rulings.
127
J Bellinger, ‘A US government response to the International Committee of the Red Cross study
Customary International Humanitarian Law’ (2007)89 IRRC 443-471.
128
See J Henckaerts, ‘The International Committee of the Red Cross and Customary International
Humanitarian Law’ in R Geiss et al (eds) Humanizing the Laws of War: The Red Cross and the
Development of International Humanitarian Law (CUP 2017) 96-102.
129
With respect to the role of international courts and tribunals, it can be observed that while prosecution
of war crimes builds upon IHL, which is the body of law setting out specific protections and prohibiting
certain behaviour in times of armed conflict, and substantive international criminal law therefore is an
accessory to IHL, one can argue that it was the emergence of international criminal law as a separate
(independent) body of law (and not IHL) that impacted on State sovereignty.
19

tribunals set up by the Security Council, or for the ICC’s State Parties to cooperate with
the Court. 130 Moreover, ‘the prevention of international crimes cannot occur without
sovereignty’, 131 as shown, for example, by the situation in Somalia. Most importantly,
with respect to the ICC, it should be recalled that creating this institution, ‘perhaps
paradoxically’ was in fact an exercise of sovereignty. 132 In ratifying the Rome Statute,
the State Parties transferred part of their right to exercise jurisdiction to the Court
accepted that in this manner it may exercise some of their sovereign powers. 133 In
addition to the limitation of their sovereignty having been voluntary, the States that
drafted the Rome Statute ensured that the ICC’s powers were ‘hedged with conditions
protecting sovereignty’, 134 including the system of complementarity. 135
Second, with respect to the role of organisations such as the ICRC in the
development of IHL, it should be noted that the current trend is for actors other than
States to be involved in the clarification and development of IHL. The ICRC considered
reaffirmation and clarification of IHL to be important. 136 However, the clarification has
been done mostly by groups of experts, 137 and despite the ICRC initially having
identified four areas it believed stronger rules were needed for, 138 more recently it
accepted that at no treaty negotiation processes can be embarked upon as there is
‘insufficient political support’. 139
Besides the contribution made by the case law of international criminal tribunals
and courts, the development of IHL therefore seems to mostly be left to expert
meetings, be it that as part of these expert processes State representatives are often
130
Cryer (n 105) 985.
131
ibid.
132
ibid.
133
ibid.
134
ibid.
135
Whereas the ad hoc tribunals had supremacy over national courts, the ICC’s jurisdiction only arises
when a State has been unable or unwilling to itself investigate and prosecute the alleged conduct. See art
17 of the Rome Statute.
136
J-P Lavoyer, ‘International Humanitarian Law: Should it be Reaffirmed, Clarified or Developed?’
(2004)34 IsraelYBHumRts 36.
137
See, eg N Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under
International Humanitarian Law (ICRC 2009); ICRC, Occupation and Other Forms of Administration of
Foreign Territory (Expert meeting report, ICRC 2012); MN Schmitt, Tallinn Manual on the International
Law Applicable to Cyber Warfare (CUP 2013); and HPCR, Manual on International Law Applicable to
Air and Missile Warfare (CUP 2013).
138
The four areas were: i) protection for persons deprived of liberty; ii) international mechanisms for
monitoring compliance with IHL and reparation for victims of violations; iii) protection of the natural
environment; and iv) protecting internally displaced persons. ICRC, Strengthening legal protection for
victims of armed conflicts: Report, 31IC/11/5.1.1 (2011).
139
ICRC, Strengthening international humanitarian law protecting persons deprived of their liberty:
Concluding Report, 32IC/15/19.1 (2015) 3.
20

consulted. A notable exception was the Copenhagen Process on the Handling of

Detainees in International Military Operations, which concluded in 2012 with a set of
‘Principles and Guidelines’, 140 as 24 States took part in the process. However, the result
is a set of non-binding guidelines. Indeed, as a result of the ‘state-centric nature’ of the
process, the principles adopted ‘are cautious not to place too many burdens on
states’. 141
As States are unlikely to agree on new comprehensive IHL treaties, non-State
actors, such as the ICRC and experts, as well as international courts and tribunals, may
be expected to continue to play an important role in the development of IHL. The role
for States is therefore reduced. They may accept or reject the proposed developments,
which will – if accepted and States act accordingly – develop into rules of customary
IHL.
In light of this practice, it is worth looking into two specific issues: humanitarian
assistance and the concept of consent, and the scope of IHL in relation to extra-
territorial fighting.
Humanitarian assistance under IHL and State sovereignty

In one area of IHL that specifically took account of the principle of sovereignty, namely
the delivery of humanitarian assistance, a clear shift can be identified. Article 9 of the
First Geneva Convention of 1949 mandates that impartial humanitarian organisations
may relief operations undertake for the protection of wounded and sick, ‘subject to the
consent of the Parties to the conflict concerned’, on which the ICRC – rather bluntly –
commented in 1952 that ‘[a] belligerent Power can obviously not be obliged to tolerate
in its territory activities of any kind by any foreign organization. That would be out of
the question. The Powers do not have to give a reason for their refusals. The decision is
entirely theirs.’ 142
In 1977, Additional Protocol I repeated the same requirement of ‘consent of the
Parties to the conflict’ for ICRC operations in its general clause on activities of
humanitarian organisations. 143 Although the entitlement of the ‘civilian population of
140
Text available at <http://um.dk/en/∼/media/UM/English-site/Documents/Politics-and-
diplomacy/Copenhangen%20Process%20Principles%20and%20Guidelines.pdf> accessed 17 July 2017.
141
L Hill-Cawthorne, ‘The Copenhagen Principles on the Handling of Detainees: Implications for the
Procedural Regulation of Internment’ (2013)18 JCSL 496-497.
142
Pictet (n 75) 110.
143
21

any territory under the control of a Party to the conflict, other than occupied territory’ to
humanitarian assistance in times of armed conflict was strengthened, a requirement that
any humanitarian relief actions be ‘subject to the agreement of the Parties concerned in
such relief actions’ was maintained. 144 As the parties to an international armed conflict
are States, the Protocol therefore continued to highlight the sovereignty of States over
their territory. Indeed, the ICRC noted in its commentary to the relevant provisions that
‘[t]he clause requiring the agreement of the Parties concerned was added during the
Conference essentially out of a concern to protect the national sovereignty of the State
receiving the relief.’ 145 However, according to the ICRC, this did not mean that the
State concerned had absolute and unlimited freedom to reject relief actions. Rather, the
treaty text must be interpreted to mean that ‘[a] Party refusing its agreement must do so
for valid reasons, not for arbitrary or capricious ones.’ 146 With respect to the non-
international armed conflict provision included in Additional Protocol II, 147 which
shows a similar aim to preserve sovereignty, 148 the ICRC commented that
the fact that consent is required does not mean that the decision is left to the
discretion of the parties. If the survival of the population is threatened and a
humanitarian organization fulfilling the required conditions of impartiality and
non-discrimination is able to remedy this situation, relief actions must take place.
… The authorities responsible for safeguarding the population in the whole of the
territory of the State cannot refuse such relief without good grounds. 149
Naturally, by emphasising the requirement of the consent, the States had

underscored their view of enduring internal sovereignty. However, in 2015, the ICRC,
while still of the view that consent should be sought from the State in whose territory a
non-international armed conflict is taking place, including for relief operations to areas
over which the State has lost control, stated that IHL ‘is not entirely deferential to State
sovereignty when it comes to relief operations’. 150 An offer of services may only be
turned down for three reasons: i) there are no needs to be met; ii) the proposed
operations are not humanitarian in nature; or iii) the offer of services does not come
144
ibid art 70.
145
Commentary to the Additional Protocols (n 59) para 2805; see also para 2769.
146
ibid.
147
Art 18 of Additional Protocol II.
148
For a discussion, see E-C Gillard, ‘The Law Regulating Cross-Border Relief Operations’ (2013)95
IRRC 356.
149
Commentary to the Additional Protocols (n 59) para 4885.
150
ICRC, International humanitarian law and the challenges of contemporary armed conflicts: Report,
32IC/15/11 (October 2015) 29-30.
22

from an organisation with an impartial and humanitarian character. 151 According to the
ICRC, IHL does not foresee any other grounds to justify the denial of consent. 152
The aforementioned shift away from sovereignty, at least in so far as the ICRC’s
view is concerned, is also evident with respect to humanitarian relief during
international armed conflicts. The ICRC’s updated commentary of 2016 – more
explicitly – asserts that IHL, as a result of subsequent State practice, 153 has evolved
since 1977 ‘to the point where one can conclude that consent may not be refused on
arbitrary grounds.’ 154 Therefore, if ‘a Party to an international armed conflict is
unwilling or unable to address those persons’ humanitarian needs, it must accept an
offer of services from an impartial humanitarian organization.’ 155 The ICRC concludes
that such an arbitrary refusal is considered to be a violation of international law. 156
Although the ICRC’s progressive interpretation has been criticised as overly
‘humanitarian’ and it has been questioned ‘whether the cause of international law and
thus humanity is better served in the long run by textual and structural fidelity rather
than by well-meaning invention or innovation’, 157 the ICRC is not alone in its view. In
light of reports that access to humanitarian relief for populations in need is frequently
withheld by one or more of the warring parties, seemingly on purpose, 158 a system for
humanitarian relief that gives less deference to State sovereignty is advocated for; 159 at
160
least by non-governmental entities. Moreover, in 2014, an (inter- or supranational)
151
ibid.
152
ibid.
153
Referring to the State practice analysed for Rule 55 of the Customary IHL Study (n 10).
154
ICRC 2016 Commentary (n 102) para 1174.
155
ibid (emphasis added).
156
ibid.
157
See S Watts, ‘The Updated First Geneva Convention Commentary, DOD’s Law of War Manual, and
More Perfect Law of War: Part II’, Just Security (29 July 2016)
<https://www.justsecurity.org/32194/updated-geneva-convention-commentary-dods-law-war-manual-
perfect-law-war-part-ii/> accessed 17 July 2017.
158
As is concluded, for example, with respect to the parties to the Syrian conflict in Report of the
Secretary-General, Implementation of Security Council Resolution 2139 (UN Doc S/2014/295 (2014), 23
April 2014) paras 19, 22, 26–28, 33–37.
159
Eg R Barber, ‘Facilitating Humanitarian Assistance in International Humanitarian and Human Rights
Law’ (2009)91 IRRC; K Luopajärvi, ‘Is there an Obligation on States to Accept International
Humanitarian Assistance to Internally Displaced Persons under International Law?’ (2003)15 IJRL.
160
The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed
Conflict, issued by UN OCHA in 2016, is more conservative. It concludes, at p. 61, that ‘[h]umanitarian
relief operations conducted by states or international organisations on the territory of another state,
including its airspace, without that state’s consent, violate the latter’s sovereignty and territorial integrity,
even in cases where humanitarian relief operations have been unlawfully impeded.’ However, it also
concludes that humanitarian relief operations imposed by the UN Security Council would be lawful, also
when conducted without the consent of the relevant States; and that States or international organisations
may ‘exceptionally’ conduct relief operations of a temporary nature ‘to bring life-saving supplies to a
23

governmental entity, the UN Security Council, authorised humanitarian operations into

Syria to take place without the consent of the Syrian government. 161 The plight of
individuals thus gradually appears to have resulted in limitations to sovereignty.
Geographical Application of IHL: Transnational or Cross-Border Conflicts involving

Non-State Actors
Much of today’s armed violence is carried out by armed groups, which have become
increasingly mobile and frequently move across State borders, seemingly oblivious to
limitations imposed by them. 162 Moreover, many of the groups are conducting their
operations in, or from, States that are either unwilling or unable to prevent them from
attacking civilians and/or government structures. In these contemporary conflicts,
armed groups often reject the system built around State sovereignty and governmental
authority, as their aim is not to overthrow the government in order to simply replace it.
Instead, their fighting largely follows from the desire to impose their ideology and
values. 163 However, these (transnational) armed groups do not merely challenge the
notion of sovereignty by rejecting governments and borders, but their existence has also
caused the States combatting them to justify impediments to the sovereignty of the host
States as legal, based on jus ad bellum as well as jus in bello arguments.
Furthermore, although traditionally States have always been reluctant to
recognise the existence of an armed conflict within its state borders, lately they seem to
have increasingly realised that there may be benefits to recognising the existence of a
non-international armed conflict, especially when the fighting takes place elsewhere. 164
It has been argued that cross-border or transnational armed conflict situations
involving armed non-State actors should be classified as non-international armed
conflicts, because otherwise there would be a gap in the protection afforded by IHL,
which cannot ‘be explained by states’ concerns about their sovereignty’, as it is not
clear ‘why victims of conflicts spilling over the territory of several states should benefit
people in extreme need, when no alternatives exist’, so long as no threat or use of force takes place and
the territorial integrity of the relevant State is not seriously impaired.
161
UNSC Res 2165 (14 July 2014) para 6 (renewed by way of Resolution 2191).
162
Recent examples include the Islamic State of Iraq and the Levant (ISIS) in Syria, Iraq and Libya and
Boko Haram in Nigeria and its neighbouring countries.
163
JA Williamson, ‘Protection of Civilians under International Humanitarian Law’, in H Willmot et al
(eds), Protection of Civilians (OUP 2016) 174, listing Boko Haram, ISIS, Al Shabaab, and Seleka and the
Christian militias in the Central African Republic as examples of an array of groups involved in conflicts
that are increasingly driven by radical ideology and fuelled by extremism.
164
Eg P Alston, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions:
Study on Targeted Killings’ (UN Doc A/HRC/14/24/Add/6, 28 May 2010) para 47.
24

from less protection than those affected by conflicts limited to the territory of only one
state.’ 165 This view appears to take as a point of departure that such cross-border
situations necessarily need to be classified as non-international armed conflicts because
‘internal conflicts are distinguished from international armed conflicts by the parties
involved rather than by the territorial scope of the conflict’. 166
Others, have held, however, that such cross-border or transnational situations
are governed by the law of international armed conflict (in addition to the law of non-
international armed conflict), if the foreign State intervenes without the consent of the
territorial State. 167 Applying IHL in this manner is consistent with the underlying
reasons for the distinction between international and non-international armed conflicts.
In the case of conflicts with organised armed groups on the territory of another State,
the sovereignty and State autonomy arguments that are used to justify the more limited
regulation of non-international armed conflicts, are absent with respect acts by the State
outside its own territory. Indeed, deference to the sovereignty of the attacking State
ought not to apply where that State acts outside its territory, as the sovereignty and
autonomy of the State on whose territory the fighting takes place, are now also in
issue. 168 In this regard, it is important to recognise that in the absence of any attacks on
government structures, the territorial State nonetheless has interests at stake: the
protection of its territory and of its civilian population and infrastructure. 169
In combination with the increased reliance of certain States, such as the United
States and Israel, on the permissive role of IHL, which in their view allows for the use
of lethal force against fighters, 170 including in situations of non-international armed
165
M Sassòli, ‘Transnational Armed Groups and International Humanitarian Law’ (HPCR Occasional
Paper Series, Winter 2006) 9.
166
ibid, referring to L Zegveld, Accountability of Armed Opposition Groups in International Law (CUP
2002) 136.
167
D Akande, ‘Classification of Armed Conflicts: Relevant Legal Concepts’ in E Wilmshurst (ed.),
International Law and the Classification of Conflicts (OUP 2012) 70-79; R Bartels, ‘Transnational
Armed Conflict: Does it Exist?’ in S Kolanowski (ed.), Proceedings of the Bruges Colloquium: Scope of
Application of International Humanitarian Law (College of Europe/ICRC 2013) 114-28. The ICRC
submits that in such a case two conflicts exist in parallel: an international armed conflict between the
attacking State and the territorial State, alongside a non-international armed conflict between the
attacking State and the organised armed group. ICRC 2016 Commentary (n 102) para 477.
168
Some authors view that in cases of an intervention without consent, but with a legal basis (such as a
UN Security Council mandate or in self-defence), there is ‘no violation of either the ius ad bellum or the
territorial State’s sovereignty and right of territorial inviolability.’ T Gill, ‘Classifying the Conflict in
Syria’ (2016)92 International Law Studies 367-8, recalling that ‘[ne]ither the 1952 ICRC Commentary
nor the Tadić judgment cites violation of territory or sovereignty as a criterion for determining the
classification of the conflict.’
169
Akande (n 167) 77; see also Bartels (n 167) 124, and ICRC 2016 Commentary (n 102) para 262.
170
Eg Alston (n 164).
25

conflicts and extra-territorial targeting, impacts on sovereignty. By reference to IHL, 171

States have justified the targeting of persons on the territory of third States, without
their permission, including in situations where the targets are citizens of the third
State. 172 In addition, there is a lively debate about whether IHL authorises detention in
non-international armed conflicts taking place outside the territory of the detaining
State. 173 These debates surrounding the scope of application of IHL in relation to extra-
territorial use of force and detention – in what is referred to as non-international armed
conflicts – show a tension between external sovereignty and internal sovereignty, as
well as the need for a further defining of the interaction between IHL and sovereignty.
Conclusion
New laws are often created in a reactionary fashion and legal developments are
generally ‘one step behind’. International law is no different in this respect. As the most
extreme form of international relations, wars and armed conflicts have shown where the
relevant areas of international law fell short in addressing far-reaching effects these
events had on relations between States, between States and their populations, and
between individuals. The above analysis demonstrates that wars and armed conflicts
appear to have been the key triggers of developments in both the law related to
sovereignty and IHL. The experiences of these conflicts led States to manifest their
external sovereignty by entering into new IHL treaties, including those that aimed to
regulate non-international situations, thereby agreeing to a certain limitation on their
internal sovereignty. A further impact on internal sovereignty was caused by
prosecution of nationals of defeated States for serious violations of IHL, thereby
interfering with their internal sovereignty. At the same time, in addition to the extension
of treaty law explicitly having been accepted by States, the intrusion of internal
sovereignty by the holding of war crime trial against the will of the States whose
nationals are concerned, was agreed upon and accepted by a large part of the
international community.
171
The inherent right to self-defence is also relied on to justify such targeting.
172
See US Department of Justice White Paper entitled ‘Lawfulness of a Lethal Operation Directed
Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qaida or An Associated Force’.
173
Eg D Murray, ‘Non-State Armed Groups, Detention Authority in Non-International Armed Conflict,
and the Coherence of International Law: Searching for a Way Forward’ (2017)30 LJIL 435-456.
26

Alongside the developments that followed armed conflicts, the growing

importance of the individual in international law impacted on internal sovereignty not
only by the emergence of international criminal justice, but the acceptance of the rights
of individuals also caused an expansion of the rules of IHL applicable to non-
international armed conflicts. It is important, however, to recognise that the increased
importance of the individual within international law was only possible due to the
creation of treaties and setting up of institutions by States, who remain the core subjects
of international law.
It has been shown above that sovereignty remains of key importance in
international law and international relations. Indeed, as aptly observed by an influential
international law scholar, ‘[r]eports of the death of sovereignty are much
exaggerated’. 174 Despite the advances of IHL in terms of its scope and application, and
the resulting impact on State sovereignty, its relevance within international law
pertains, and as such continues to influence the development of IHL. Indeed, it has been
observed that the continued refusal to grant immunity to non-State fighters is due to the
fact that any such equality of the parties would be ‘fundamentally at odds with the
modern system of the international law of sovereign states’. 175 The following
observation, albeit written in a different context, appears fitting:
the classical international lawyer’s call for a surrender of sovereignty was

erroneous. What was and is most urgently needed is not a surrender of sovereignty
but a transformation and augmentation of it into new directions by harnessing it,
through proper legal devices, to the making of collective decisions, and the taking
of effective collective action, over international political problems. 176
However, the prerogatives State sovereignty confers have been limited over time, and
the role of States in the formation of IHL has become more limited. Instead of a State
driven process, the contemporary clarification and development of IHL is done by non-
State actors. The role of States is reduced to either accepting or rejecting the
prospective developments of IHL and any consequential impact on their sovereignty.
174
Crawford (n 16) 132.
175
E Crawford, The Treatment of Combatants and Insurgents Under the Laws of Armed Conflict (CUP
2010) 154.
176
R Jennings, ‘Sovereignty and International Law’ in G Kreijen et al (eds), State, Sovereignty and
International Governance (OUP 2002) 39.
27

Insisting on a traditional concept of sovereignty would thus be anachronistic.177

Moreover, as a result, in part, of the increase in non-internationals armed conflicts and
the proliferation of cross-border use of force against armed groups, the legal order has
started to further redefine the boundaries of both internal and external sovereignty. 178
Coupled with ongoing technological developments that require new rules or a
clarification of the present ones, it is expected that the relationship between IHL and the
concept of State sovereignty will continue to change over time, depending on the
triggers that may come up.
177
Bartels (n 2) 67.
178
See for a similar conclusion: Kuijt (n 61) 126.
28

Humantarian Law Esaasy

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THE RELATIONSHIP BETWEEN INTERNATIONAL HUMANITARIAN

LAW AND THE NOTION OF STATE SOVEREIGNTY

Amsterdam Law School Legal Studies Research Paper No. 2018-18

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2. The Concept of State Sovereignty in Public International Law

The international law notion of State sovereignty can be defined as ‘a state’s

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within a State, as determined by the domestic constitutional framework of the State

3. The Differentiated Relationship Between the Laws Related to Wars and

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movements. 60 The Westphalian notion of absolute State sovereignty therefore mostly

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Introduction of IHL Applicable to Non-International Armed Conflicts

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Pictet described Common Article 3 as ‘marking a decisive step in the evolution

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Due to the changed interests of a number of participating States, mostly the

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Individual Criminal Responsibility and Customary IHL

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breaches) over serious violations of IHL committed in non-international armed

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Nevertheless, whereas internal sovereignty prevailed for many years over

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consulted. A notable exception was the Copenhagen Process on the Handling of

Humanitarian assistance under IHL and State sovereignty

Electronic copy available at: https://ssrn.com/abstract=3207193

Naturally, by emphasising the requirement of the consent, the States had

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Electronic copy available at: https://ssrn.com/abstract=3207193

governmental entity, the UN Security Council, authorised humanitarian operations into

Geographical Application of IHL: Transnational or Cross-Border Conflicts involving

Electronic copy available at: https://ssrn.com/abstract=3207193

Electronic copy available at: https://ssrn.com/abstract=3207193

conflicts and extra-territorial targeting, impacts on sovereignty. By reference to IHL, 171

Electronic copy available at: https://ssrn.com/abstract=3207193

Alongside the developments that followed armed conflicts, the growing

the classical international lawyer’s call for a surrender of sovereignty was

Electronic copy available at: https://ssrn.com/abstract=3207193

Insisting on a traditional concept of sovereignty would thus be anachronistic.177

Electronic copy available at: https://ssrn.com/abstract=3207193

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