Practice Relating to Rule 89. Violence to Life
The Military Manual (1993) of the Netherlands provides: “Every attempt on the life of the wounded and sick is prohibited. In particular, they may not be killed or exterminated.”
The manual further restates the prohibition of violence directed against a protected person’s life, health, physical or psychological well-being, such as murder as found in Article 75 of the 1977 Additional Protocol I.
With respect to non-international armed conflicts, the manual restates the prohibition of violence to life and person, in particular murder, as found in common Article 3 of the 1949 Geneva Conventions and Article 4 of the 1977 Additional Protocol II.
The Military Manual (2005) of the Netherlands states:
Starting with the introduction of the UN Charter and the Universal Declaration of Human Rights, followed by many treaties and conventions at world and regional level, there has come into being an extensive corpus of rules and procedures by which States have undertaken to respect and guarantee human rights. A number of these rights are so important that they are binding even on States which are not party to the conventions and permit no deviation from them, even in emergency situations such as war. These core rights, including the right to life … are just as relevant in time of armed conflict as in time of peace.
The manual further states:
In the event of escape, it is permitted to use weapons against prisoners of war. Firearms may not, however, be used other than as a last resort, and must be preceded by warnings. Instructions to guards in the use of force must therefore be drawn up based on these rules.
In its chapter on the protection of the civilian population, the manual states:
The following acts are, and remain, prohibited at all times:
- Violence against the life, health or physical or mental wellbeing of persons, especially: murder …
[emphasis in original]
In its chapter on non-international armed conflict, the manual states: “The right to life is inalienable, even in the event of death as a result of lawful acts of war.”
In its chapter on peace operations, the manual states:
Section 2 - Applicability of human rights
1211. Human rights should be respected … However, “in time of war or in case of any other general state of emergency which threatens the existence of the country,” certain human rights may be curtailed as long as the situation strictly necessitates such measures. But the right to life, the prohibition of torture, slavery and forced labour, and the legal principle “no punishment without prior legal provision” cannot be waived …
1212. When carrying out its operational mission, the military may be confronted with the following and other human rights, which may affect what they do. The following is based on ECHR [1950 European Convention on Human Rights] and related protocols ratified by the Netherlands. In view of the detailed rules added by extensive legal precedents, this convention forms a basis for the fulfilment of the human rights established in other treaties, at least those with which the military may be involved in pursuit of their duties. Those human rights are as follows:
ECHR Article 2
- The right to life … ECHR makes the use of lethal force conditional on very strict requirements, but lawful acts of war do not breach this human right.
The Definition of War Crimes Decree (1946) of the Netherlands includes “murder and massacres” and “putting hostages to death” in its list of war crimes.
Under the International Crimes Act (2003) of the Netherlands, it is a crime to commit “in the case of an international armed conflict, one of the grave breaches of the Geneva Conventions”, including “intentional killing”.
Furthermore, under the Act, it is also a crime to commit, “in the case of an armed conflict not of an international character, a violation of Article 3 common to all of the Geneva Conventions”, including “violence to life and person, in particular killing of all kinds” of persons taking no active part in the hostilities and “the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are generally recognized as indispensable”.
In its judgment in the Motosuke case
in 1948, the Temporary Court Martial at Amboina in the Netherlands charged the accused, an officer in the Japanese army, with the unlawful execution of four Indonesian civilians. The first victim was summarily executed by a firing squad on the orders of the accused for allegedly firing at a Japanese soldier. The other three victims were similarly executed by a firing squad on the orders of the accused, based on a sentence passed by a Japanese Military Court. The Temporary Court Martial at Amboina found that the victims had not received a proper trial and that the accused was therefore guilty of murder.
In its judgment in the Silbertanne Murder case
in 1946, the Special Court of Cassation of the Netherlands found the accused guilty of the murders of anti-German Dutch civilians, committed in reprisal for attacks on enemy supporters by members of the resistance. The Court considered the murders to be in violation of Article 46 of the 1907 Hague Regulations, which obliges the Occupant to respect the lives of individuals.
In its judgment in the Enkelstroth case
in 1948, the Special Court (War Criminals) at Arnhem in the Netherlands found the accused, a German officer, guilty of shooting, without trial, four people arrested by the German Security Service. The Court considered the murders to be in violation of Articles 30 and 46 of the 1907 Hague Regulations.
In its judgment in the Burghof case
in 1949, the Special Court of Cassation found the accused, a member of the German Military Security Service in Rotterdam, guilty of shooting a number of people without trial and partly as a form of reprisal. The Court found that the killing of innocent civilians in occupied territory amounted to a war crime.
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the Netherlands stated:
The use of nuclear weapons cannot be considered in itself to be a violation of the right to life, as enshrined, inter alia
, in Article 6 [of the 1966 International Covenant on Civil and Political Rights] or in Article 2 [of the 1950 European Convention on Human Rights]. According to the Netherlands Government, these articles do not create an absolute right to life. Thus, the travaux préparatoires of Article 6 [of the 1966 International Covenant on Civil and Political Rights] make it clear that instead of listing the circumstances in which the deprivation of life would not be considered contrary to the right to life, the drafters decided to agree on the formulation that “No one shall be arbitrarily deprived of his life” … One of the instances mentioned in this connection by drafters as an example of a deprivation of life which is not arbitrary was “the performance of lawful acts of war”.