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Fighting by the Principles: Principles as a Source of International Humanitarian Law
Abstract
The rules of international humanitarian law of armed conflict are codified in a rather extensive body of treaty law. In addition, extensive research has been conducted into the rules of customary international humanitarian law. The author of this contribution will argue that there is another important source of positive international humanitarian law: principles of international humanitarian law. In this chapter, the role of the principles of international humanitarian law, the functions they perform and their legal significance as a source of international humanitarian law will be assessed. With general public international law as its starting point, the chapter discusses the sources of international humanitarian law. It explains the important role of the Martens Clause and provides examples of how the principles of international humanitarian law may be applied in contemporary armed conflicts.
This book seeks to clarify the legal concept of proportionality in international humanitarian law, as it applies during armed conflict. It is argued in the book that a refocus of the interpretation of the proportionality rule is warranted to enhance the protection of civilians. More precisely, this book seeks to dissect the origins of the rule, determine how its components must be interpreted and how it is to be applied in practice. The book considers practical situations that may arise in the conduct of military operations and searches for the limits international humanitarian law sets to commanders' assessments of proportionality during armed conflict. The book concludes that proportionality is an inherently subjective and imprecise yardstick that nonetheless serves to protect civilians during armed conflict.
There is wide agreement that using chemical weapons in warfare is abhorrent and must be prohibited. Chemical weapons have nonetheless, even recently, been used. This chapter argues that chemical weapons are prohibited on the basis of both the international humanitarian law (IHL) principles pertaining to means of warfare as well as arm control law. This is evidenced in the almost universally ratified Chemical Weapons Convention of 1993 (CWC 1993) and a corresponding rule of customary international law. Biological weapons are similarly prohibited, primarily as a result of their inherent indiscriminate character.KeywordsChemical Weapons ConventionChlorineOPCWGas ProtocolBiological weapons
This chapter aims to address the practice of using a “knock on the roof” as a warning before air strikes are launched in order to mitigate civilian casualties during armed conflict. It involves the dropping of non-explosive or low-impact type of munitions on the intended target. This “knock” is reportedly accompanied by other specific warnings, such as telephone calls and text-messages, indicating that the attack on the building is imminent. The knock is intended to be used on a legitimate military objective, leaving no doubt that the attack is in fact about to happen, and urging civilians to relocate to a safer place. This chapter aims to analyse whether, and if so, under which circumstances, the knock on the roof practice may be used within the boundaries of international humanitarian law (IHL), both as a warning and as a method of warfare.
The principle of proportionality, notoriously obscure in application and subjective in interpretation, has been enforced so rarely as to call into question its potency as a meaningful international legal standard. Nonetheless, international criminal tribunals, academics, and the ICRC’s monumental study on customary international humanitarian law all confidently proclaim the principle as embedded in the customary international law applicable to both international and non-international armed conflicts. To assess whether these claims are accurate, and to flesh out how states interpret the principle in practice, the author and a colleague have undertaken a long-term, multinational empirical study of state practice in interpreting and enforcing the proportionality principle. This article discusses the methodological options available and explains the one chosen for the proportionality study. The limitations of the study, in spite of its carefully designed methodology, suggest that the debilities of the proportionality principle may not be conceptual so much as a byproduct of military secrecy. This article concludes that greater transparency in state compliance with the rule of discrimination and the principle of proportionality could create systemic effects that would significantly decrease the dangers to civilians in armed conflicts. The article suggests some ways that a transparency regime could be developed and proposes some alterations to the ius in bello to remove certain pathological disincentives to transparency.
The Roots of Behaviour in War study sought to contribute to improvements in the communication policies and strategies of the International Committee of the Red Cross (ICRC) so as to make them more effective in preventing violations of international humanitarian law (IHL). The study addressed two main questions:
a) What are the key factors which influence the behaviour of bearers of weapons so that they respect or violate IHL in any given situation?
b) Do prevention strategies drawn up by the ICRC take due account of the answers given to the foregoing question?
Malcolm Shaw's engaging and authoritative International Law has become the definitive textbook for instructors and students alike, in this increasingly popular field of academic study. The hallmark writing style provides a stimulating account, motivating students to explore the subject more fully, while maintaining detail and academic rigour. The analysis integrated in the textbook challenges students to develop critical thinking skills. The sixth edition is comprehensively updated throughout and is carefully constructed to reflect current teaching trends and course coverage. The International Court of Justice is now examined in a separate dedicated chapter and there is a new chapter on international criminal law. The detailed references and reliable, consistent commentary which distinguished previous editions remain, making this essential reading for all students of international law whether they be at undergraduate level, postgraduate level or professional lawyers.
This is the seminal textbook on the law of international armed conflict, written by a leading commentator on the subject. The second edition has been thoroughly revised and updated, taking into account new developments in combat, numerous recent judicial cases (especially decisions rendered by the International Criminal Tribunal for the Former Yugoslavia), as well as topical studies and instruments. The text clarifies complex issues, offering solutions to practical combat dilemmas that have emerged in present-day battlefield situations. Several current (and controversial) subjects are examined in depth, including direct participation in hostilities, human shields, and air and missile warfare. Useful definitions and explanations have been added, making intricate problems easier to comprehend. The book is designed not only for students of international law, but also as a tool for the instruction of military officers.
This fully revised fourth edition of Constraints on the Waging of War considers the development of the principal rules of international humanitarian law from their origins to the present day. Of particular focus are the rules governing weapons and the legal instruments through which respect for the law can be enforced. Combining theory and actual practice, this book appeals to specialists as well as to students turning to the subject for the first time.
Thirteen years after the United States initiated a military response to the terrorist attacks of September 11, 2001, the nation continues to prosecute what it considers an armed conflict against transnational terrorist groups. Understanding how the law of armed conflict applies to and regulates military operations executed within the scope of this armed conflict against transnational nonstate terrorist groups is as important today as it was in September 2001. This is because the core purpose of this branch of international law (what was historically known as the law of war) is to strike an effective balance between the necessity of using armed violence to subdue a threat to the nation with the humanitarian interest of mitigating the suffering inevitably associated with that use. How this core purpose of the law of armed conflict has influenced operational decisions related to all aspects of the military response to al-Qaeda and associated forces is the focus of this book. Each chapter will address a specific operational issue, including the national right of self-defense, military targeting and the use of drones, detention, interrogation, and trial by military commission of captured terrorist operatives, and the impact of battlefield perspectives on counter-terror military operations and illustrate how the law of armed conflict influences resolution of that issue. Some chapters will go further. All will reinforce the essential link between respect for the law and strategic legitimacy, perhaps the most enduring lesson from this on-going national challenge.
Who is accountable under international law for the acts committed by armed opposition groups? In today's world the majority of political conflicts involve non-state actors attempting to exert political influence (such as overthrowing a government or bringing about secession). Notwithstanding their impact on the course of events, however, we often know little about these groups, and even less about how to treat their actions legally. In this award-winning scholarship, Liesbeth Zegveld examines the need to legally identify the parties involved when internal conflicts arise, and the reality of their demands for rights. Her study draws upon international humanitarian law, human rights law and international criminal law to consider a fundamental question: who is accountable for the acts committed by non-state actors, or for the failure to prevent or repress these acts? This study will be of interest to academics, postgraduate students and professionals involved with armed conflict and international relations.
Systems of law usually establish a hierarchy of norms based on the particular source from which the norms derive. In national legal systems, it is commonplace for the fundamental values of society to be given constitutional status and afforded precedence in the event of a conflict with norms enacted by legislation or adopted by administrative regulation; administrative rules themselves must conform to legislative mandates, while written law usually takes precedence over unwritten law and legal norms prevail over nonlegal (political or moral) rules. Norms of equal status must be balanced and reconciled to the extent possible. The mode of legal reasoning applied in practice is thus naturally hierarchical, establishing relationships and order between normative statements and levels of authority.
This chapter examines some elements of post-1990 customary practice, not for the purpose of presenting this practice exhaustively, but rather to focus on the relationship between hegemonic power and the customary system of rules. It concludes that, a decade after the end of the Cold War, the primary rules of customary international law have not undergone any dramatic change as a consequence of the dominant position of the United States in the international system. Hegemony finds its expression, not in the abrupt transformation of the international legal order, but in the incidental infiltration of concepts, the “flexibilization” of custom, the maximization of the discretionary powers of policy makers and the increased impact of society on opinio necessitatis. The United States, in order to “set the agenda,” needs to coordinate its activities with those of other States possessing strategic positions within international decision-making structures. Correspondingly, and without prejudice to the possibility of persistent objection, the missing uniformity of state practice can be supplemented by the psychological element of the opinio necessitatis of international society. If we consider the transnational society of non-state actors to be an integral part of the present-day international community, then its contribution to the opinio necessitatis should be extended to custom in general. The “normative strength” of that contribution will depend on the issue and circumstances “giving birth” to a new rule. © Cambridge University Press 2003 and Cambridge University Press, 2009.
The International Committee of the Red Cross's Customary International Humanitarian Law by Jean-Marie Henckaerts and Louise Doswald-Beck (Cambridge University Press, 2005) contains a unique collection of evidence of the practice of States and non-State actors in the field of international humanitarian law, together with the authors' assessment of that practice and their compilation of rules of customary law based on that assessment. The Study invites comment on its compilation of rules. Perspectives on the ICRC Study on Customary International Humanitarian Law results from a year-long examination of the Study by a group of military lawyers, academics and practitioners, all with experience in international humanitarian law. The book discusses the Study, its methodology and its rules and provides a critical analysis of them. It adds its own contribution to scholarship on the interpretation and application of international humanitarian law.
Introduction: When seeking to determine what material to include in a study of customary international humanitarian law, the authors have to decide on the extent to which other areas of law may be relevant. There is a real risk of confusion between two discrete issues: to what extent does a rule of noninternational humanitarian law remain applicable during the existence of fighting (fact), and to what extent and in what manner does a rule of applicable non-international humanitarian law interact with a rule of international humanitarian law (law)? The first question concerns only the rule of international law from a field other than international humanitarian law. The second concerns the relationship between two bodies of rules. This chapter seeks to examine whether areas of law other than international humanitarian law should have been included in a study of customary international humanitarian law and, if so, the extent to and manner in which they were to be considered. The first section considers international law in factual situations of armed conflict, taking into account the mandate given to the ICRC by the Red Cross Conference. The second section considers whether customary international law is one amorphous body of rules or whether it can be compartmentalised by subject matter and the implications of the distinction. The third section considers one particular area of law, human rights law, and its potential relevance to a study of customary international humanitarian law.
Introduction: Targeting law lies at the very core of international humanitarian law. Yet, no treaty with universal participation exists setting out this body of law in any detail, as is the case, for instance, with the treatment of prisoners of war or protection of civilians in occupied territory. The lacuna is unsurprising, for international humanitarian law emerges through a measured balancing of humanitarian objectives with the realities of military necessity. Targeting, the sine qua non of warfare, resides at the apogee of military necessity. This being so, States are understandably reluctant to accept constraints on their freedom of action when attacking their enemy, The 1977 Additional Protocol I to the 1949 Geneva Conventions contains the bulk of generally recognised codified targeting norms. However, standing on its own, the Protocol has seldom formally applied during an armed conflict. First, it binds only parties. Although parties numbered 166 by October 2006, non-parties included, inter alia, India, Indonesia, Israel, Iran, Iraq, Pakistan, Turkey, and the United States. Article 96 of Additional Protocol I provides that Parties are bound when fighting non-parties only in the unlikely event that the latter ‘accepts and applies’ its provisions.
Customary International Humanitarian Law, Volume I: Rules is a comprehensive analysis of the customary rules of international humanitarian law applicable in international and non-international armed conflicts. In the absence of ratifications of important treaties in this area, this is clearly a publication of major importance, carried out at the express request of the international community. In so doing, this study identifies the common core of international humanitarian law binding on all parties to all armed conflicts.
Every student who has ever taken a traditional international law course has learned Manley Hudson’s four elements for the emergence of a rule of customary international law: ( a ) concordant practice by a number of States with reference to a type of situation falling within the domain of international relations;
( b ) continuation or repetition of the practice over a considerable period of time;
( c ) conception that the practice is required by, or consistent with, prevailing international law; and
( d ) general acquiescence in the practice by other States.
As public international law expands into new domains formerly excluded from its province, it will, for its “formal” sources, have to depend more and more on treaties as the nearest substitute for international legislation.
International humanitarian law grew out of practices adopted by fighting armies in the battlefield, inspired by considerations of chivalry, humanity and military necessity. Over time these practices grew into a set of obligatory rules of customary international law. It is a common misunderstanding that international humanitarian law was born with the adoption in Geneva in 1864 of the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, the first multilateral treaty on international humanitarian law. However, this treaty was preceded by and based upon a body of customary rules that grew out of practices adopted during previous wars. Since the adoption of the 1864 Convention numerous other treaties have been adopted that codify the rules regulating armed conflict, in particular the successive Geneva Conventions for the protection of war victims of war (1906, 1929 and 1949) and their Additional Protocols (1977). Notwithstanding this high degree of codification, customary rules of international humanitarian law have continued to exist and remain important to define the protection due to victims of all armed conflicts. The first section of this article will look at the current relevance of customary rules of international humanitarian law. The second section will explain the mechanism through which rules of customary international law are created.
Revival of Customary Humanitarian Law - Volume 99 Issue 4 - Theodor Meron
Foster for stimulating discussions and valuable comments.
Non-international armed conflicts are not only prevalent today, but are also evolving in terms of the types that have been observed in practice. The article sets out a possible typology and argues that Common Article 3 to the Geneva Conventions may be given an expanded geographical reading as a matter of treaty law. It also suggests that there is a far wider range of rules – primarily of a binding nature, but also policy-based – that apply in Common Article 3 armed conflicts with regard to the treatment of persons in enemy hands and the conduct of hostilities.
This paper aims to explore whether there are any legal limits to the use of force, in particular when force is used (as it so often is) for political reasons. How plausible is it to expect people to limit their options when they feel that what they're doing paves the way towards paradise? In this light, much of the law of armed conflict would seem to be inadequate, based as much of it is on the premise that force is non-political. To the extent then that limits are conceivable, these may stem from the individual morality of those engaged in battle rather than from any grand legal designs. Copyright ©2005 by Theoretical Inquiries in Law, The Cegla Center for Interdisciplinary Research of the Law, The Buchmann Faculty of Law, Tel Aviv University. All rights reserved.
Il est notoire que les mécanismes de mise en œuvre du droit international humanitaire sont moins intrusifs et donc moins efficaces que ceux du droit des droits de l'homme. Toutefois, les champs d'application de ces deux branches du droit se chevauchent à certains égards. Dans ce contexte, l'auteur décrit les domaines où un chevauchement existe et analyse les conséquences juridiques de cet état de fait pour les mécanismes d'application. La mise en œuvre cumulée du droit des droits de l'homme et du droit international humanitaire soulève inévitablement la question de la relation réciproque. La Cour internationale de Justice y a répondu en reconnaissant la primauté du droit international humanitaire sur le droit des droits de l'homme dans les conflits armés, faisant ainsi du DIH une lex specialis. L'examen des decisions de la Commission interaméricaine/Cour interaméricaine des droits de l'homme et de la Cour européenne des droits de l'homme révèle que ces instances ont tendance à appliquer le droit international humanitaire. Bien que la pratique des instances des droits de l'homme soit limitée, elle apporte un complément bienvenu à la panoplie, sans conteste limitée, des moyens internationaux disponibles pour contraindre les parties à un conflit armé à respecter le droit international humanitaire. Voilà qui met clairement en évidence les effets pratiques et utiles de la convergence des droits de l'homme et du droit international humanitaire.