426
rights law and humanitarian law in the following terms: “The universal and regional
human rights instruments and the Geneva Conventions share a common ‘core’ of
fundamental standards which are applicable at all times, in all circumstances and to
all parties, and from which no derogation is possible”.
19
The close link between the principle of humanity on one hand and human rights
and humanitarian law on other hand was also outlined by Judge Cançado Trindade
in his separate opinion to the judgment rendered by the ICJ in the Pulp Mills on the
River Uruguay case. In his view, the principles of humanity constitute a general
principle of international law and an autonomous source of law
20
which characterises the international law of human rights and international humanitarian law. In this
regard, he asserted as follows: “Can we dwell upon the International Law of Human
Rights without bearing in mind the principles of humanity, of the dignity of the
human person, of the inalienability of human rights, of the universality and indivisibility of human rights? Certainly not. Can we consider International Humanitarian
Law without the principles of humanity, of proportionality, of distinction? Surely
not”.
21
The Court, through the ‘considerations of humanity’ included in its judgments and in the opinions of its judges, has made a significant contribution to the
interpretation and development of rules and principles of international human rights
law, by exercising also its influence on other tribunals. For example, in the jurisprudence of international criminal courts and tribunals there is not only a broader application of the principle of humanity but also greater attention to the jurisprudence of
the ICJ. However, the consideration of human rights by international criminal courts
is not surprising because their main task is actually to strengthen respect for human
rights and punish gross violations thereof.
Especially in the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY), there are many references to the judgments of the ICJ with
regard to ‘considerations of humanity’. It is important to take into account, purely
by way of example, the Čelebići case. In this case the ICTY Appeals Chamber,
referring to the ICJ judgment in the Nicaragua case, pointed out that the rules set
out in common article 3 reflect ‘elementary considerations of humanity’ applicable
under customary international law and in all circumstances to any conflict. In this
regard, it stated that common article 3 “sets forth a minimum core of mandatory
rules, reflects the fundamental humanitarian principles which underline international humanitarian law as a whole, and upon which the Geneva Conventions in
their entirety are based. These principles, the object of which is the respect for the
19 ICRC Commentary on the Additional Protocols Sandoz et al. (1987), p. 1340.
20 With reference to the nature of general principles of law, he observed that they “confer upon the
legal order itself — both nationally and internationally — its ineluctable axiological dimension (cf.
supra). It is those principles that reveal the values which inspire the whole legal order, and which,
ultimately, provide its foundations themselves. The identification of the basic principles has
accompanied pari passu the emergence and consolidation of all the domains of law”. ICJ, Pulp
Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010, Separate Opinion
of Judge Cançado Trindade, para. 209.
21 Ibidem, para. 210.
F. Delfino
rights law and humanitarian law in the following terms: “The universal and regional
human rights instruments and the Geneva Conventions share a common ‘core’ of
fundamental standards which are applicable at all times, in all circumstances and to
all parties, and from which no derogation is possible”.
19
The close link between the principle of humanity on one hand and human rights
and humanitarian law on other hand was also outlined by Judge Cançado Trindade
in his separate opinion to the judgment rendered by the ICJ in the Pulp Mills on the
River Uruguay case. In his view, the principles of humanity constitute a general
principle of international law and an autonomous source of law
20
which characterises the international law of human rights and international humanitarian law. In this
regard, he asserted as follows: “Can we dwell upon the International Law of Human
Rights without bearing in mind the principles of humanity, of the dignity of the
human person, of the inalienability of human rights, of the universality and indivisibility of human rights? Certainly not. Can we consider International Humanitarian
Law without the principles of humanity, of proportionality, of distinction? Surely
not”.
21
The Court, through the ‘considerations of humanity’ included in its judgments and in the opinions of its judges, has made a significant contribution to the
interpretation and development of rules and principles of international human rights
law, by exercising also its influence on other tribunals. For example, in the jurisprudence of international criminal courts and tribunals there is not only a broader application of the principle of humanity but also greater attention to the jurisprudence of
the ICJ. However, the consideration of human rights by international criminal courts
is not surprising because their main task is actually to strengthen respect for human
rights and punish gross violations thereof.
Especially in the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY), there are many references to the judgments of the ICJ with
regard to ‘considerations of humanity’. It is important to take into account, purely
by way of example, the Čelebići case. In this case the ICTY Appeals Chamber,
referring to the ICJ judgment in the Nicaragua case, pointed out that the rules set
out in common article 3 reflect ‘elementary considerations of humanity’ applicable
under customary international law and in all circumstances to any conflict. In this
regard, it stated that common article 3 “sets forth a minimum core of mandatory
rules, reflects the fundamental humanitarian principles which underline international humanitarian law as a whole, and upon which the Geneva Conventions in
their entirety are based. These principles, the object of which is the respect for the
19 ICRC Commentary on the Additional Protocols Sandoz et al. (1987), p. 1340.
20 With reference to the nature of general principles of law, he observed that they “confer upon the
legal order itself — both nationally and internationally — its ineluctable axiological dimension (cf.
supra). It is those principles that reveal the values which inspire the whole legal order, and which,
ultimately, provide its foundations themselves. The identification of the basic principles has
accompanied pari passu the emergence and consolidation of all the domains of law”. ICJ, Pulp
Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010, Separate Opinion
of Judge Cançado Trindade, para. 209.
21 Ibidem, para. 210.
F. Delfino