The Oxford Guide to International Humanitarian Law

480 Pages·2020·4.507 MB·English

by  Ben Saul (editor), Dapo Akande (editor)

The Oxford Guide to International
Humanitarian Law

The Oxford Guide
to International
Humanitarian Law
Edited by
BEN SAUL AND DAPO AKANDE
1
3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
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Preface
The prevalence, and ever-p resent threat, of armed conflict ensures the continuing import-
ance of international humanitarian law (IHL), which seeks to balance the military necessity
of fighting war with the humanitarian protection of those affected by it. IHL governs ‘old’ and
‘new’ wars alike, from conventional inter-s tate wars to complex, contemporary transnational
insurgencies involving non-s tate ‘terrorist’ organizations. While the implementation and en-
forcement of IHL rules and principles is always challenging, not least because of new actors
and technologies, these challenges have often also led to flexible new interpretations, adapta-
tions, or applications of IHL, enabling IHL to maintain and reassert its relevance.
This Oxford Guide to International Humanitarian Law is intended as a practical yet so-
phisticated overview of the subject for professionals who are not necessarily IHL experts,
but who work in fields where IHL may be relevant. These may include government officials
(lawyers and decision- or policy-m akers in defence, foreign affairs, foreign aid and devel-
opment, policing, human rights, or other areas); military officers (such as military lawyers,
judges, planners, or commanders); civilian judges, prosecutors, and defence lawyers in na-
tional or international courts; United Nations entities; peacekeepers; humanitarians; devel-
opment actors; the human rights community; investors or corporations; and civil society
(including media, non-g overnmental organizations (NGOs), and think tanks), as well as
university students and researchers.
The Oxford Guide to IHL aims to serve as a first port of call, and an essential reference
work, for such non- experts dealing with IHL matters. It provides an accurate, objective,
and accessible overview of IHL by leading and emerging experts. It is intended to be more
detailed and nuanced, and less descriptive, than some of the many introductory surveys
or student textbooks on IHL which have proliferated in recent years,1 precisely as a result
of the burgeoning interest in the practice of IHL in many conflicts and countries. It is not,
however, as technical as the various practical manuals2 or expert commentaries on IHL;3
1 Leslie Green, The Contemporary Law of Armed Conflict (3rd edn, Manchester University Press 2008);
Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War: An Introduction to International
Humanitarian Law (4th edn, CUP 2011); Marco Sassòli, Antoine Bouvier, and Anne Quintin, How Does
Law Protect in War? (3rd edn, ICRC 2011); Laurie Blank and Gregory Noone, The International Law of Armed
Conflict: Fundamental Principles and Contemporary Challenges in the Law of War (Wolters Kluwer 2013); Jonathan
Crowe and Kylie Weston-S cheuber, Principles of International Humanitarian Law (Edward Elgar 2013); Robert
Kolb, An Advanced Introduction to International Humanitarian Law (Edward Elgar 2014); Emily Crawford and
Alison Pert, International Humanitarian Law (CUP 2015); Yoram Dinstein, The Conduct of Hostilities under the
Law of International Armed Conflict (3rd edn, CUP 2015); Françoise Bouchet- Saulnier, The Practical Guide to
International Humanitarian Law (Rowman & Littlefield 2016); Nils Melzer, International Humanitarian Law: A
Comprehensive Introduction (ICRC 2016); Geoffrey Solis, The Law of Armed Conflict: International Humanitarian
Law in War (2nd edn, CUP 2016); Gary Corn, Christopher Jenks, Richard Jackson, and Victor Hansen, The Law
of Armed Conflict: An Operational Approach (2nd edn, Wolters Kluwer 2018); Nicholas Tsagourias and Alasdair
Morrison, International Humanitarian Law (CUP 2018).
2 UK Ministry of Defence, The Manual of the Law of Armed Conflict (OUP 2004); Dieter Fleck (ed), The
Handbook of International Humanitarian Law (3rd edn, OUP 2013). For an extensive list of national military man-
uals, see ICRC, ‘Military Manuals’ https:// ihl- databases.icrc.org/ customary- ihl/ eng/ docs/ src_ iimima.
3 ICRC Commentaries on the four Geneva Conventions (GCs) of 1949: GCI (1952 and 2016); GCII (1960
and 2017); GCIII (1960); GCIV (1960). See also Andrew Clapham, Paola Gaeta, and Marco Sassòli, The 1949
vi Preface
nor is it as conceptual, theoretical, or argumentative as academic works covering IHL as
a whole4 or specialized areas of it.5 Rather, this Handbook fills a gap in the middle of this
spectrum, in between student texts, practitioner manuals, and academic treatises.
The Handbook covers all of the classical IHL topics: history and sources; classification
of conflicts (international— including occupation— and non- international), and their tem-
poral and geographical scope; the different domains of warfare (air, land, and sea, and po-
tentially outer space and the cyber domain); how IHL categorizes actors (fighters, civilians,
and others) and what general and special protections apply to them (from humanitarian
aid to detention and trial); the conduct of hostilities (including basic principles such as hu-
manity, necessity and proportionality, and the means and methods of warfare, including
weapons); humanitarian relief operations; and implementation and enforcement (in-
cluding war crimes liabilities).
Along the way, the chapters discuss contemporary challenges and controversies in IHL,
including, among others, the interaction of IHL with human rights, with terrorism and
counter- terrorism, and with United Nations Security Council measures; new technologies
(such as cyber operations and autonomous weapons); how to classify conflicts involving
non- state armed groups on the territory of more than one state; the targeting of civilians
taking a direct part in hostilities; and the lawfulness of detention in non-i nternational armed
conflict. Many of these issues remain unsettled, and the Handbook deftly charts their con-
tours, so that interested professionals can readily grasp and seek to navigate through them.
This Handbook was originally conceived by Jelena Pejic (Senior Legal Adviser at the
International Committee of the Red Cross) and Michael Schmitt (Professor of Public
International Law at Exeter Law School and Emeritus Professor at the United States Naval
War College’s Stockton Centre for International Law). They graciously invited the pre-
sent editors to assume carriage of the project at an early stage and we are grateful to them
for entrusting us with the responsibility. Any errors or omissions are, of course, our own.
We also thank our publisher, Oxford University Press, particularly Merel Alstein and Jack
Geneva Conventions: A Commentary (OUP 2015). Commentaries on the Additional Protocols of 1977: Michael
Bothe, Karl Josef Partsch, and Waldemar A Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two
1977 Protocols Additional to the Geneva Conventions of 1949 (Martinus Nijhoff 1982); Yves Sandoz, Christophe
Swinarski, and Bruno Zimmermann (eds), Commentary on the Additional Protocols to the Geneva Conventions
(Martinus Nijhoff/I CRC 1987). On customary IHL, see Jean-M arie Henckaerts and Louise Doswald- Beck,
Customary International Humanitarian Law, Volume 1: Rules (ICRC 2005).
4 Daniel Thürer, International Humanitarian Law: Theory, Practice, Context (Hague Academy of International
Law 2011); Andrew Clapham and Paolo Gaeta (eds), The Oxford Handbook of International Law in Armed
Conflict (OUP 2014); Rain Liivoja and Tim McCormack (eds), Routledge Handbook of the Law of Armed Conflict
(Routledge 2016); Marco Sassòli, Problems Arising in Warfare (Edward Elgar 2019).
5 Nils Melzer, Targeted Killing in International Law (OUP 2008); Emily Crawford, The Treatment of
Combatants and Insurgents under the Law of Armed Conflict (OUP 2010); Anthony Cullen, The Concept of
Non- international Armed Conflict in International Humanitarian Law (OUP 2010); Andrea Bianchi and
Yasmin Naqvi, International Humanitarian Law and Terrorism (Hart 2011); Mélanie Jacques, Armed Conflict
and Displacement: The Protection of Refugees and Displaced Persons under International Humanitarian Law (CUP
2012); Sandesh Sivakumaran, The Law of Non- International Armed Conflict (OUP 2012); Elizabeth Wilmshurst
(ed), International Law and the Classification of Conflicts (OUP 2012); Robert Kolb and Gloria Gaggioli (eds),
Research Handbook on Human Rights and Humanitarian Law (Edward Elgar 2013); Mariëlle Matthee, Brigit
Toebes, and Marcel Brus (eds), Armed Conflict and International Law: In Search of the Human Face (Asser Press
2013); Derek Jinks, Jackson Maogoto, and Solon Solomon (eds), Applying International Humanitarian Law in
Judicial and Quasi- Judicial Bodies International and Domestic Aspects (Springer 2014); Sharon Weill, The Role
of National Courts in Applying International Humanitarian Law (OUP 2014); Emily Crawford, Identifying the
Enemy: Civilian Participation in Armed Conflict (OUP 2015).
Preface vii
McNichol. At Sydney Law School, for editorial assistance we thank research assistants Ellen
Moore and Katya Pesce, and student volunteers Sulithi Dewendra, Umar Ikram, Kirsty
Jones, Jonathan Malka, August Reinisch, and Arsh Shah.
Ben Saul and Dapo Akande
Sydney and Oxford, June 2019

Contents
Table of Cases xi
Table of Legislation xvii
List of Contributors xxxv
1. History and Sources 1
Jean- Marie Henckaerts
2. Classification of Armed Conflicts 29
Dapo Akande
3. The Temporal and Geographic Reach of International Humanitarian Law 57
Emily Crawford
4. Domains of Warfare 77
Sarah McCosker
5. Persons Covered by International Humanitarian Law: Main Categories 99
Lawrence Hill- Cawthorne
6. Fundamental Guarantees 125
Robert McLaughlin
7. International Humanitarian Law and the Conduct of Hostilities 147
Michael N Schmitt
8. Specifically Protected Persons and Objects 175
Robin Geiß and Christophe Paulussen
9. Protection of the Natural Environment 205
Cymie R Payne
10. Methods of Warfare 235
Gloria Gaggioli and Nils Melzer
11. Weapons 261
Stuart Casey- Maslen
12. Detention in Armed Conflict 277
Jelena Pejic
13. Occupation 299
Sylvain Vité
14. Humanitarian Relief Operations 319
Eve Massingham and Kelisiana Thynne
15. War Crimes 339
Robert Cryer