This paper entertains the somewhat scattered debate as to whether international humanitarian law ("IHL") rules could, and should, be considered peremptory norms of international law. For some time, the "basic rules of IHL" have been found to constitute peremptory norms of international law, with scant identification of those rules. Through a doctrinal analysis, this paper argues that, so long as they meet the Vienna Convention on the Law of Treaties' criteria, IHL rules should be treated as peremptory norms, creating erga omnes obligations for third States. Further, in theory, while the third State (external) obligation to "ensure respect" in IHL may be considered equivalent to, and even supplemented by, the rules on State responsibility, the scope of the latter may offer a stronger device for international law compliance and enforcement vis-a-vis third States and Parties. A convergent approach is suggested between Common Article 1 of the four Geneva Conventions ("to respect and ensure respect") and the rules on States responsibility to strengthen the legal basis for third State and Party action, both individually and collectively, against IHL violations.
Membership in an Exclusive Club: International Humanitarian Law Rules as Peremptory International Law Norms,
Loy. U. Chi. Int'l L. Rev.
Available at: https://lawecommons.luc.edu/lucilr/vol19/iss2/2