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Activism in International Humanitarian Law

Commencing a review of the activism in IHL beginning with the middle of the seventeenth century, as the respected IHL historian Geoffrey Best does, it becomes immediately apparent that early developments in IHL were not binding and ‘owed nothing to the letter of treaty law, [and] everything to the spirit of culture’.[1] Best further reminds us that ‘[officers and gentleman stuck to ... [the laws and customs of war] because their religion and mores impelled them to, not because their governments had signed treaties guaranteeing that they would’.[2] The codification of IHL only commenced in the 1860s with the efforts of individuals such as Francis Lieber,[3] international organizations such as the Institute of International Law,[4] [5] [6] the International Movement of the Red Cross, 12 and states working with commissions.!3 After the First World War the only codification of IHL to take place was in relation to the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare.14 At the close of the Second World War the ICRC undertook the challenge of reviewing existing IHL and submitted what would become the four Geneva Conventions^ to states for further negotiations. Throughout the 1960s and 1970s the ICRC and the UN worked together to bring states to the table to settle on the two Additional Protocols to the Geneva Conventions.16

The ICRC, in its capacity as the guardian of IHL, has remained engaged with developing and clarifying IHL. Examples of its engagement include its customary international law study concerning international humanitarian law/7 the interpretative guidance concerning direct participation in hostilities/8 the law of occupation/9 and, more recently, compliance and detention.20 ICRC lawyers, for example Jelena Pejic, have also on occasions written in their private capacity about a specific area of IHL, which in due course has been accepted by the ICRC as its institutional view.21

Courts and tribunals have also contributed to the development of IHL in a number of ways. The Nuremberg Tribunal and the Japanese war crimes tribunals developed laws concerning such matters as command responsibility, treatment of prisoners of war, military necessity, hostage taking, and reprisals.22 More recently, the International Court of Justice has dealt with the law of military occupation and

  • 15 Geneva Convention Relative to the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 Aug. 1949, 75 UNTS 31 (entered into force 21 Oct. 1950) (Geneva Convention I); Geneva Convention Relative to the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 Aug. 1949, 75 UNTS 85 (entered into force 21 Oct. 1950) (Geneva Convention II); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 Aug. 1949, 75 UNTS 135 (entered into force 21 Oct. 1950) (Geneva Convention III); and Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 Aug. 1949, 75 UNTS 287 (entered into force 21 Oct. 1950) (Geneva Convention IV). The ICRC also wrote commentaries to the four Conventions and those commentaries remain influential in understanding and interpreting the Conventions. The ICRC is currently engaged in updating those commentaries.
  • 16 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection ofVictims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 Dec. 1978) (Additional Protocol I) and Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 Dec. 1978) (Additional Protocol II).
  • 17 Customary International Humanitarian Law, ed. J. M. Henckaerts and L. Doswald-Beck, vols. 1— 3 (ICRC, 2005) and updated periodically, .
  • 18 Report prepared and edited by T. Ferraro, ‘Expert Meeting, Occupation and Other forms of Administration of Foreign Territory’ (ICRC, 2012).
  • 19 N. Melzer, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities: Under International Humanitarian Law’ (ICRC, Geneva, 1 July 2009).
  • 20 ICRC, ‘International Humanitarian Law and the Challenges of Contemporary Armed Conflicts’, 31st International Conference of the Red Cross and Red Crescent (2011). See also: ‘Strengthening Compliance with International Humanitarian Law (IHL): The Work of the ICRC and Swiss Government’ (updated 10 July 2014); ICRC, ‘Strengthening Legal Protection for Persons Deprived of their Liberty in Relation to Non-international Armed Conflict, Regional Consultations 2012—13’ (ICRC, Background Paper, 2013).
  • 21 J. Pejic, ‘IHL and the Challenges of Contemporary Armed Conflicts’ presented to the 30th International Conference of the Red Cross and the Red Crescent, Annex 1 (ICRC Report, 2007).
  • 22 See e.g.: United States, Military Tribunal at Nuremberg, List (Hostages Trial) (Judgment) (19 Feb. 1948).

the application of IHRL and IHL during armed conflicts.23 International criminal tribunals, such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court, have added to understandings of such crimes as rape during armed conflicts, targeting, the treatment of detainees, and the use of child soldiers/4 The European Court of Human Rights has also contributed to the way that states subject to its jurisdiction must deal with detainees captured during armed conflict and the obligation to investigate deaths of detainees during armed conflicts.25 On a number of occasions, particularly in the United States2fi and in the United Kingdom/7 national courts have also issued judgments concerning the status and treatment of detainees.

The UN has been active in developing and reinforcing IHL norms in a number of contexts. The Secretary General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law/8 the Security Council’s cross-cutting resolutions concerning the protection of civilians in armed conflict/9 Human Rights Committee investigations concerning such matters as the use of force in armed conflicts/0 and Reports of Special Rapporteur1 are some examples of the role taken by UN organs in developing IHL.

  • 23 See e.g.: ‘Legality of the Threat or Use of Nuclear Weapons’ (Advisory Opinion) (ICJ Reports, 2006): 226—67; ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory’ (Advisory Opinion) (ICJ Reports, 2004): 136—203; ‘Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda) (Judgment)’ (ICJ Reports, 2005): 168—283.
  • 24 See e.g.: ICTY cases: Prosecutor v. Karadzic and Mladic (Initial Indictment and Review of the Indictments) IT-95-5/18-1 (25 Nov. 1995); Prosecutor v. Tihomir Blaskic (Judgment) IT-95- 14-T (3 Mar. 2000); Prosecutor v. Kordic and Mario Erkez (Judgment) IT-95-14/2-T (26 Feb. 2001); Prosecutor v. Mucic et al. fCelebici) (Judgment) IT-96-21 (16 Nov. 1998). ICC case: The Prosecutor v. Thomas Lubanga Dyilo ICC-01/04-01/06 (14 Mar. 2012).
  • 25 See e.g.: Al-Saadoon & Mufdhi v. United Kingdom (App. no. 61498/08) ECHR 2010; Agim Behrami and Bekir Behrami v. France (App. no. 71412/01) ECHR 2007; Ruzdhi Saramati v. France, Germany and Norway (App. no. 78166/01) ECHR 2007; Al-Jedda v. The United Kingdom (App. no. 27201/08) ECHR 2011; El-Masri v. The Former Yugoslav Republic of Macedonia (App. no. 9630/ 09) ECHR 2012.
  • 26 See e.g.: Hamdi v. Rumsfeld 542 US 507 (2004); Hamdan v. Rumsfeld 548 US 557 (2006); Boumediene v. Bush 533 US (2008); Munaf v. Green (SC); Gherebi v. Obama, 609 F. Supp. 2d 43 (DDC 2009); Handily v. Obama, 616 F. Supp. 2d 63 (DDC 2009); Awad v. Obama, 608 F. 3rd 1 (DC Cir. 2010).
  • 27 See e.g.: Secretary of State for Foreign and Commonwealth Affairs and another (Appellants) v. Yunus Rahmatullah (Respondent), Secretary of State for Foreign and Commonwealth Affairs and another (Respondents) v. Yunus Rahmatullah (Appellant) [2012] UKSC 48; R (on the Application of Maya Evans) v. Secretary of State for Defence [2010] EWCH 1445; R (on the Application of Al Jedda) (FC) v. Secretary of State for Defence [2007] UKHL 58; and Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB).
  • 28 UNSG, Secretary-General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law, UN Doc. ST/SGB/1999/13 (6 Aug. 1999).
  • 29 See e.g.: SC Res. 1674, UN Doc. S/RES/1674 (28 Apr. 2006) on the protection of civilians in armed conflict; SC Res. 2143, UN Doc S/RES/2143 (7 Mar. 2014) on children in armed conflict.
  • 30 See e.g.: Office of the High Commissioner for Human Rights, ‘Investigations into Violations of International Humanitarian Law in the Context of Attacks and Clashes between the Communist Party of Nepal (Maoists) and Government Security Forces: Findings and Recommendations’ (Jan.— Mar. 2006); Human Rights in Palestine and Other Occupied Arab Territories, Report of the UN Fact-Finding Mission on the Gaza Conflict, Human Rights Council, UN Doc. A/HRC/12/48 (25 Sept. 2009).
  • 31 See e.g.: Situation of Detainees at Guantanamo Bay, Report of the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, L. Zerrougui, Special Rapporteur on the independence

A number of military forces have issued manuals, handbooks, doctrines, standard operating procedures, and codes of conduct to set limits for the behaviour of their personnel during military operations. Examples include the United Kingdom Ministry of Defence’s manual on the laws of armed conflict;^ the United States operations law handbook;33 and the Australian Defence Force doctrine concerning the laws of armed conflict.34 These documents published by military forces take a national, legal, and policy approach to the application of IHL.

More recently there has been a considerable amount of IHL activism by experts and academics. For example, the San Remo Manual on the Law of Non-international Armed Conflict3 the Manual on the International Law Applicable to Air and Missile Warfare3 and the Tallinn Manual on the International Law Applicable to Cyber Warfare37 were drafted by experts acting in their private capacity.38 Academics have also undertaken detailed analysis of IHL and military law more generally so as to develop ‘black letter rules’ that are accompanied by commentary.39

Civil society has increasingly become involved in developing IHL. For example, the drafting of the Ottawa Convention40 owes much to the involvement of the International Campaign to Ban Landmines coalition.41 Non-government organizations (NGOs), such as Geneva Call and Human Rights First, have also taken the lead in pushing the boundaries of IHL. Geneva Call’s work with non-state armed actors is a particularly good example of an organization working towards ensuring that IHL norms are adopted by non-state armed actors.42 The Draft Lucens Guidelines for Protecting Schools and Universities from Military Use during of judges and lawyers; L. Despouy, the Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment; M. Nowak and A. Jahangir, the Special Rapporteur on freedom of religion or belief; P. Hunt, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, UN Doc. E/CN.4/2006/120 (15 Feb. 2006); P. Alston, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions: Study on Targeted Killings, A/HRC/14/24 Add. 6 (28 May 2010).

  • 32 Ministry of Defence (United Kingdom), The Manual of the Laws of Armed Conflict (2006).
  • 33 The Judge Advocate General, Operational Law Handbook (2013). This document is updated yearly.
  • 34 Australian Defence Force, The Laws of Armed Conflict (2006).
  • 35 San Remo Manual on International Law Applicable to Armed Conflicts at Sea, ed. L. Doswald-Beck (International Institute of Humanitarian Law, 1995).
  • 36 Program on Humanitarian Policy and Conflict Research at Harvard University, ‘Manual on International Law Applicable to Air and Missile Warfare’ (Bern, 2009).
  • 37 Tallinn Manual on the International Law Applicable to Cyber Warfare, ed. M. Schmitt (Cambridge: Cambridge University Press, 2013).
  • 38 For a more detailed discussion about those Manuals, see e.g.: Peter Vedel Kessing’s chapter in this volume, sections 3.2, 3.5, 3.7, and 4.2.
  • 39 See e.g.: The Handbook of Humanitarian Law in Armed Conflicts, ed. D. Fleck (Oxford: Oxford University Press, 3rd edn, 2013).
  • 40 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on Their Destruction (18 Sept. 1997), .
  • 41 International Campaign to Prevent Landmines, .
  • 42 See e.g.: Deed of Commitment developed by Geneva Call that permits non-state armed actors to respect specific IHL principles, rules, and standards, .

Armed Conflict[7] [8] [9] [10] [11] are a more recent example of how both international organizations (e.g. UNICEF and UNESCO) and NGOs (e.g. Human Rights Watch) have come together to develop norms for both states and non-state actors to apply when engaged in armed conflicts.

Finally, non-state armed actors are also engaged in developing and reinforcing normative frameworks, which they ‘require’ their members to apply. From the late 1920s until the late 1940s the Workers’ and Peasants’ Army/the People’s Liberation Army—China issued a number of codes of conduct to its military forces.44 More recently, in May 2011, the Libyan National Transitional Council issued guidelines to its armed forces in relation to respecting IHL.45

For the purposes of this chapter there are four important points to be made about the activism described here. The first is that the process for creating, developing, advocating, and negotiating principles, rules, and standards relevant to IHL has involved a wide variety of formal and informal structures. The term ‘formal structures’ as used here refers to those exclusively dominated by states, including international organizations and international tribunals engaged in creating or developing norms. On the other hand, ‘informal structures’ focus on the engagement of, for example, academics, non-state armed actors, and civil society in creating or developing norms. The four Geneva Conventions and the two Additional Protocols, the Security Council engagement in dealing with IHL matters, and judgments of international tribunals such as the ICJ and the ICC are all examples of formal structures. The development of the Tallin Manual is an example of an informal structured

Second, not only have the processes varied, but so have the forms of IHL norm- creation and development. Some of the forms include treaties, customary law, interpretative guidelines, UN resolutions, military manuals, and non-government advocacy endeavours. Some of those forms constitute legal obligations and others do not. As explained by Sir Daniel Bethlehem, the text of treaties, principles of customary international law, binding decisions of the UN Security Council, and binding decisions of other international organizations create legal obligations.47 Other documents, resolutions, and observations made by state representatives ‘go to the possible content of customary international law or to questions of treaty interpretation. In other words, they are evidence of law rather than dispositive statements of what the law actually is’.[12] [13] [14] [15]

Third, linked to the question of process and form is the matter of legitimacy.49 At one level, it might be argued that any discussion about the legitimacy of the process and form chosen will depend on the subject matter, who is involved, and what the stakeholders are seeking to achieve. Thus, if the subject matter is technical, and, for example, it involves a state wishing to interpret provisions in a particular manner for its armed forces to apply, the debate concerning legitimacy of process and form is likely to be much more limited and relatively uncontroversial. At another more general level, that of the overarching principle of humanitarianism versus achieving the military mission, the process and form are likely to be much more controversial if there is a belief that either humanitarianism has been privileged far too greatly or that far too much emphasis has been paid to military effectiveness.

Fourth, not all the activism has been IHL-centric. Some of the activism has sought to address the role that IHRL has in military operations such as noninternational armed conflict. There has been an ever-growing debate since the ICJ Advisory Opinion in the Nuclear Weapons Case about the relationship between IHL and IHRL in armed conflict. That debate has taken a number of perspectives including: IHL and IHRL are mutually exclusive and do not apply concurrently; IHL and IHRL are complementary; and IHL and IHRL converge in certain matters. There has also been activism in the form of international criminal law with various tribunals and courts (such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court) opining on the application of IHL in the context of international criminal law.5°

The Copenhagen Process brings into sharp focus all four points. As a process, because it was state led, and privileged state and international organization participation, it is the only example of states creating and developing IHL norms without an institutional anchor such as the ICRC or the UN in albeit a narrow area of IHL—detention. As such, it is a stark example of a counter prevailing trend that has been commented upon by Professors Mike Schmitt and Sean Watts. They have recently written about the decline in states taking responsibility for the process of developing IHL and have lamented the consequences of the trend of ‘states ceding control over the content, interpretation, and development of IHL to others’71 The Copenhagen Process therefore not only brought norm formalization but also norm interpretation firmly back into the hands of states. As a matter of form, using Sir Daniel’s typology, the individual articles contained in the Copenhagen Principles and Guidelines are dispositive statements of the law in relation to the subject matters they cover, which go to interpreting treaties or identifying the content of customary international law rather than creating legal obligations. In regard to the matter of legitimacy—regardless of whether a broad or a narrow approach is taken in determining legitimacy it is without doubt that the Copenhagen Process cannot be described as unlawful—clearly, it is lawful for states to develop international law. More specifically, the Principles and Guidelines add to the legitimacy of clarifying and developing detention norms because they are based on state consent; and they seek to balance both military requirements and humanitarianism without privileging one to the complete detriment of the other.

Finally, the Process and the final form of the Principles and Guidelines demonstrate that it is almost impossible in practical terms to ignore the application of either IHL or IHRL in a matter like detention in military operations. The Process did not however settle the debate as to the precise relationship between those two areas of law.

  • [1] G. Best, War and Law Since 1945 (Oxford: Oxford University Press, 1994): 40.
  • [2] Best (1994): 40.
  • [3] Instructions for the Government of the Armies of the United States in the Field, General Order No.100 promulgated on 24 Apr. 1863 by Abraham Lincoln, as prepared by Francis Lieber (generallyreferred to as the ‘Lieber Code’), .
  • [4] The Laws of War on Land, Oxford (9 Sept. 1880), .
  • [5] See e.g.: Convention for the Amelioration of the Condition of the Wounded Armies in the Field(Red Cross Convention) (22 Aug. 1864), .
  • [6] Declaration of St Petersburg (29 Nov. 1868), . 14 Geneva Protocol for the Prohibition of the Use in War ofAsphyxiating, Poisonous or other Gases,and of Bacteriological Methods of Warfare, 17 June 1925, .
  • [7] Developed by the Global Coalition to Protect Education from Attack (8 July 2013).
  • [8] International Committee of the Red Cross, ‘A Collection of Codes of Conduct Issued by ArmedGroups’, International Review of the Red Cross vol. 93 (2011): 483—501 at 487—8.
  • [9] International Committee of the Red Cross, ‘A Collection of Codes of Conduct Issued byArmed Groups’, International Review of the Red Cross vol. 93 (2011): 483—501 at 497—501. For amore detailed discussion concerning the typology of commitments of non-state armed actors withIHL, see e.g.: S. Sivakumaran, ‘Lessons for the Law ofArmed Conflict from Commitments of ArmedGroups: Identification of Legitimate Targets and Prisoners of War’, International Review of the RedCross vol. 93 (2011): 463-82.
  • [10] For an interesting discussion concerning the development of international law through formaland informal mechanisms, see e.g.: J. Pauwelyn, R. Wessel, and J. Wouters, ‘When Structures BecomeShackles: Stagnation and Dynamics in International Law Making’, European Journal of InternationalLaw vol. 25 (2014): 733-63.
  • [11] 47 D. Bethlehem, ‘The Secret Life of International Law’, Cambridge Journal of International andComparative Law vol. 23 (2012): 23-36 at 26.
  • [12] Bethlehem (2012): 28.
  • [13] For a more detailed discussion of legitimacy in the context of international law-making, seee.g.: A. Boyle and C. Chinkin, The Making of International Law (Oxford: Oxford University Press, 2007): 24-8.
  • [14] 5° For a more detailed discussion concerning the interaction between IHL and IHRL, see e.g.: PeterVedel Kessing’s chapter in this volume, sections 2.2 and 4.4.
  • [15] M. Schmitt and S. Watts, ‘The Decline of International Humanitarian Law Opinio Juris and theLaw of Cyber Warfare’, Texas International Law Journal vol. 50 (2014): 189-231 at 230.
 
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