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Overview of Soft Law Documents Regulating Situations of Armed Conflict (Jus in Bello)

During the last years, a number of soft law instruments in the form of manuals, studies, and guidelines seeking to regulate situations of armed conflict have been elaborated. These instruments have been developed by different actors, including the ICRC, small groups of experts, small groups of states, and a combination of experts and states.[1] [2] [3] [4] [5]

The question can rightly be asked whether all of these documents qualify as soft law instruments. It is a fact, however, that these documents formulate rules that have a certain degree of traction. The documents are often referred to by states and in international fora. Most of the documents are included in handbooks and com- pendiums on the most important legal instruments that pertain to armed conflicts and are referred to in national military manuals and in military training materials.31 In that sense, they reflect standards which arguably have an impact on regulating situations of armed conflicts. Hence, it can hardly be disputed that these documents formulate rules that are in the process of incubation, that is, emerging rules of international law (see Chapter 1 on the definition of soft law for the purpose of this volume).

In this regard, it should be mentioned that international and regional organizations such as the UN, NATO, and the EU have also adopted operational policy documents concerning situations of armed conflict.32 These documents clearly regulate the behaviour of UN-, NATO-, and EU-led military armed forces in times of armed conflict. They are, however, internal operational policy documents, binding only for the organizations and member states contributing troops to the organiza- tions.33 Therefore, they cannot qualify as soft law documents.

This section provides a brief overview of the most important soft law instruments applicable in situations of armed conflict (jus in hello).з4 It is not our intention to discuss the content and substance of each soft law instrument in detail. Rather, the description of each soft law instrument will focus on the following three questions:

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Firstly, who has been responsible for drafting and adopting the instrument? Secondly, what is the purported legal nature of the instrument as claimed in the instrument; that is, is it a ‘real’ soft law document or does it claim to reflect hard law obligations, for example customary international law? Thirdly, have international human rights standards been incorporated or reflected in the soft law instrument?

  • [1] This chapter will not consider the use of soft law in relation to jus ad helium even though softlaw arguably has played a significant role in relation to jus ad hellum, see e.g.: the UN Declarations onFriendly Relations among States and Emerging New Norms on Responsibility to Protect (R2P).
  • [2] See e.g.: A. Roberts and R. Guelff, Documents on the Laws of War (Oxford: Oxford UniversityPress, 3rd edn, 2004); J. Wouters and P. De Man, Humanitarian and Security Law: A Compendium ofInternational and European Instruments (Cambridge: Intersentia, 2012).
  • [3] 36 See e.g.: UN Secretary-General’s Bulletin on Observance by the United Nations Forces ofInternational Humanitarian Law from 1999; NATO Standardization Agreements (STANAG); and theEuropean Union Concept for EU-led Military Operations and Missions (EEAS, 17107/14, Brussels,19 Dec. 2014) and for the use of Non-Lethal Capabilities in EU-led CSDP Military Operations andMissions (EEAS, 7674/15, Brussels, 30 Mar. 2015).
  • [4] With regard to the EU, these EU operational policy documents are also binding on memberstates when they are implementing EU law—e.g. in third states.
  • [5] There are undoubtedly other soft law instruments regulating armed conflict, but these are themost well-known and often referred-to instruments.
 
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