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Index
Coverpage
Half title
Title page
Imprints page
Contents
Preface and Acknowledgments
List of Abbreviations
Introduction
1 Historical development of international humanitarian law
1. Introduction
2. Henri Dunant and the Battle of Solferino
3. The 1864 Geneva Convention
4. The Lieber Code 1863
5. The 1868 St Petersburg Declaration
6. The 1868 Additional Articles, 1874 Brussels Declaration, 1880 Oxford Manual
7. The 1899 and 1907 Hague Conventions
8. The 1949 Geneva Conventions
a. Common Article 3
9. The 1977 Additional Protocols
a. Additional Protocol I, wars of national liberation, and guerrilla fighters
b. Additional Protocol II
10. Other IHL instruments
11. The development of international criminal law – the ICTY and ICTR, the ICC, and the hybrid and ad hoc courts and tribunals
a. The International Criminal Court
b. The ad hoc Criminal Tribunals for the former Yugoslavia and Rwanda
c. Hybrid and ad hoc courts and tribunals
12. Conclusion
Discussion questions
2 The contemporary legal basis of international humanitarian law and its fundamental principles
1. Introduction
2. The law of armed conflict: purpose, concepts, scope, application
a. The separation of jus ad bellum and jus in bello
b. Hague Law and Geneva Law
c. Terminology: wars vs. armed conflicts, law of armed conflict vs. international humanitarian law
d. Scope and application of the law of armed conflict
3. Sources of the law of armed conflict
a. Treaties
i. The treaty law distinction between international and non-international armed conflict
b. Custom
c. Other sources – soft law
4. The fundamental principles of the law of armed conflict
a. The principle of distinction
i. The principle of discrimination (prohibition on indiscriminate attacks)
b. Military necessity
c. The principle of proportionality
d. The prohibition on causing unnecessary suffering and superfluous injury
e. The principle of neutrality
f. The principle of humanity
5. Conclusion
Discussion questions
3 Types of armed conflicts
1. Introduction
2. International armed conflicts
a. Common Article 2 armed conflicts
i. “War” vs. “armed conflict”
ii. What is an “armed conflict”?
iii. Occupation
b. Wars of national liberation
3. Non-international armed conflicts
a. Common Article 3 armed conflicts
i. Intensity and organisation
ii. Geographical field of application
iii. The shortcomings of Common Article 3
b. Additional Protocol II armed conflicts
i. Material field of application
4. Internationalised and “transnational” armed conflicts
a. Internationalised armed conflicts
i. Military intervention by a foreign State in a NIAC
A. The conflict becomes an IAC, regardless of which side the foreign State supports
B. If the foreign State supports the territorial State, the conflict remains non-international
C. If the foreign State supports the armed group, the conflict between the foreign State and the territorial State is international; that between the armed group and the territorial State remains non-international
D. If the foreign State supports the armed group, the whole conflict becomes international
ii. One of the parties is acting on behalf of a foreign State
A. The Nicaragua test – effective control
B. The Tadić test – overall control
b. “Transnational” armed conflicts
i. Conflict between State A and armed group X based in State A, fighting in State A
ii. Conflict between State A and armed group X based in State B, fighting in State A
iii. Conflict between State A and armed group X, fighting in A spills across border into State B
iv. Conflict between State A and armed group X based in neighbouring State B, fighting in B only
v. Conflict between State A and armed group X based in State C (and elsewhere), fighting in various States
5. Conclusion
Discussion questions
4 Individual status in armed conflict – combatants, non-combatants, direct participation in hostilities and prisoners of war
1. Introduction
2. Combatant status – criteria, privileges and responsibilities
a. Early rules on combatant status – the US Civil War to the Geneva Conventions of 1949
3. The current law regarding combatant status
a. Members of the armed forces
b. Partisan and resistance fighters
i. Being commanded by a person responsible for his subordinates
ii. Having a fixed distinctive sign
iii. Carrying arms openly
iv. Obeying the laws of war
c. National liberation and guerrilla fighters under Protocol I
d. Levée en masse
e. Participants in non-international armed conflicts
4. Non-combatants entitled to POW status and treatment
5. Irregulars in hostilities not entitled to combatant status
a. Spies
b. Mercenaries
c. “Unlawful” combatants
d. Private military and security contractors
e. Civilians taking direct part in hostilities
6. Prisoner of war status
a. Determining prisoner of war status
b. Treatment of POWs
i. Rights of POWs
ii. Rules on conditions of captivity
iii. Rules on penal and disciplinary proceedings
iv. Obligations for detaining authorities regarding transmission of information, monitoring by Protecting Powers and the ICRC, and repatriation of prisoners of war
7. Conclusion
Discussion questions
5 Protection of the wounded, sick and shipwrecked
1. Introduction
2. The origins of the protection of the hors de combat in armed conflict
3. The rules regarding respect for and care of the wounded, sick and shipwrecked
a. In international armed conflicts
b. In non-international armed conflicts
4. Provisions on the dead and missing
5. Medical personnel and the protection of medical goods and objects, including hospitals, ambulances and hospital ships
a. Medical and religious personnel
b. Medical goods and objects, including hospitals, ambulances and hospital ships
6. The protective emblems: the Red Cross, Red Crescent and Red Crystal
a. Background to the adoption of the emblems: the Red Cross
b. The Red Crescent
c. The Red Shield of David
d. The Red Crystal
e. Substance of the international law on the distinctive emblems
7. Conclusion
Discussion questions
6 The law of occupation and the protection of civilians
1. Introduction
2. General protections for civilians
3. The historical development and philosophical underpinnings of the modern law of occupation
4. Beginning of occupation
a. Protected persons
b. Administration of occupied territory
c. Rules on protected persons and persons deprived of their liberty
i. Protected persons
ii. Persons deprived of their liberty
d. End of occupation
e. Problems regarding long-term occupation
5. Rules on the treatment of civilians in non-international armed conflicts
6. Conclusion
Discussion questions
7 Targeting
1. Introduction
2. The philosophical underpinnings of the law of targeting
3. The basic rule: Article 48 of Additional Protocol I
4. Military objects and objectives
a. “Objects” and “objectives”
A Side Note: Are people lawful military objectives?
b. Nature, location, purpose, use
i. Nature
ii. Location
iii. Purpose
iv. Use
c. Destruction, capture or neutralisation
d. Circumstances ruling at the time
e. Definite military advantage
5. Additional rules on targeting military objectives
a. Indiscriminate attacks
b. Proportionality
c. Precautions in attack and defence
i. Precautions in attack
ii. Precautions in defence
6. Specific rules on targeting certain types of objects
a. Cultural property
b. The environment
c. Medical facilities
d. Works and installations containing dangerous forces
e. Objects necessary for the survival of the civilian population
f. Civil defence, non-defended localities and demilitarised zones
7. Dual use objects – a new category in the law of targeting?
8. A note on the law of targeting in non-international armed conflicts
9. Conclusion
Discussion questions
8 Means and methods of warfare
1. Introduction
2. The general rules – the prohibitions on causing unnecessary suffering and superfluous injury, and on indiscriminate means and methods
3. The obligation to assess the legality of new means and methods of warfare
4. Specifically prohibited weapons and restricted weapons
a. Explosive and dum-dum bullets
b. Mines and booby-traps
i. Booby-traps
ii. Landmines
c. Incendiary weapons
d. Non-detectable fragments
e. Blinding laser weapons
f. Explosive remnants of war
g. Cluster munitions
h. Chemical weapons and poison
i. Biological and bacteriological weapons
5. Prohibited methods of warfare
a. Orders of “no quarter”
b. Perfidy
c. Siege warfare and starvation of civilians
d. Pillage
e. Other rules relating to methods of warfare
i. Belligerent reprisals
ii. Mercenaries
iii. Parachutists in distress
iv. Espionage
6. Means and methods of warfare of indeterminate or contested status
a. Depleted uranium
b. White phosphorus
c. Nuclear weapons
d. Cyber warfare
e. Targeted killing and drone warfare
7. Conclusion
Discussion questions
9 Implementation, enforcement and accountability
1. Introduction
2. Common Article 1: the obligation to ensure respect
3. Measures to be taken in peacetime
a. Dissemination to the armed forces
b. Dissemination to civil society
c. Implementation into domestic legislation
4. Role of the protecting powers and the International Committee of the Red Cross
5. The International Humanitarian Fact Finding Commission
6. Accountability through international criminal law
a. Individual criminal responsibility for violations of the laws of armed conflict
i. War crimes and grave breaches
ii. Violations of the law of armed conflict not amounting to grave breaches
iii. Crimes against humanity and genocide
b. Command responsibility
7. The International Criminal Court, the International Tribunals and the Hybrid and Internationalised Courts
8. Reparations for violations of the law of armed conflict
9. The role of the United Nations and international and non-governmental organisations
10. Implementation, enforcement and accountability in non-international armed conflicts
a. What law applies?
b. To whom does the (NIAC) law apply?
c. Implementation, enforcement and accountability
i. Dissemination
ii. Special agreements
iii. Unilateral undertakings or commitments
iv. Accountability through International Criminal Law
11. Conclusion
Discussion questions
10 Conclusions
Bibliography
Table of Cases
Tables of Treaties, Legislation and Other Instruments
Index
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