Perspectives on the ICRC Study on Customary International Humanitarian Law

Author： Elizabeth Wilmshurst;Susan Breau;

Publisher： Cambridge University Press‎

Publication year： 2007

E-ISBN: 9781316978702

P-ISBN(Paperback): 9780521882903

P-ISBN(Hardback): 9780521882903

Subject： D998.2 international protection of human rights

Keyword：法律

Language： ENG

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Description

A commentary on Customary International Humanitarian Law (Cambridge, 2005). This book discusses the study of Customary International Humanitarian Law (Cambridge, 2005) and analyses the law relating to such matters as targeting, prisoners of war, weapons, war crimes and the protection of the environment during conflicts. This book discusses the study of Customary International Humanitarian Law (Cambridge, 2005) and analyses the law relating to such matters as targeting, prisoners of war, weapons, war crimes and the protection of the environment during conflicts. The International Committee of the Red Cross's study of Customary International Humanitarian Law by Jean-Marie Henckaerts and Louise Doswald-Beck (Cambridge, 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. Part I. Setting the Scene - Theoretical Perspectives on International Law in the ICRC Study: 1. The methodological framework of the study Daniel Bethlehem; 2. The approach to customary international law in the study Iain Scobbie; 3. Other areas of customary law in relation to the study Françoise Hampson; Part II. Status of Conflict and Combatants - The ICRC Study: 4. Status of conflict Jelena Pejic; 5. Combatant status Anthony Rogers; Part III. Commentary on Selected Rules from the ICRC study: 6. Targeting Michael Schmitt; 7. Protected persons and objects Susan C. Breau; 8. Environment Karen Hulme; 9. Methods of warfare William J. Fenrick; 10. Weapons of warfare Steven Haines; 11. Fundamental guarantees Françoise Hampson; 12. Prisoner of war status Agnieszka Jachec-Neale; 13. Displacement and displaced persons Ryszard Piotrowicz; 14. Implementation and compliance David Turns; 15. War crimes Charles Garraway; Part IV. Conclusions: 16. Conclusions Elizabeth Wilmshurst. Review of the hardback: '… a wonderful contribution to the discussion of and the verification of customary international humanitarian law. … The book is recommended to practitioners, such as legal advisors to the armed forces and to peace operations and staff of the ICRC, academics working in the area of international humanitarian law, and everyone who is interested in the debate about (customary) international humanitarian law. As the ICRC Study is the basis for the discussion in this publication, the reader should have some basic knowledge about international humanitarian law and the ICRC Study, although the book is well readable because of its understandable writing and numerous examples and the authors illustrate some of the fundamental legal aspects to the reader by also extracting and explaining the profound questions.' The Military Law and the Law of War Review '… the volume is useful reading for students of international humanitarian law and practitioners alike.' Netherlands Internat

Chapter

Permanent Court of International Justice

International Court of Justice

International Criminal Tribunal for Rwanda

Special Court for Sierra Leone

Post-World War II cases

Human Rights Committee

European Court/Commission of Human Rights

Inter-American Court/Commission of Human Rights

Domestic courts

Eritrea–Ethiopia Claims Commission/Arbitral Tribunal

TABLE OF TREATIES AND OTHER INSTRUMENTS

Treaties and International Court Statutes

Domestic laws

Declarations

ABBREVIATIONS

PART 1 Setting the scene: Theoretical perspectives on international law in the ICRC Study

1 The methodological framework of the Study

1. Introduction

2. The methodological framework

2 The approach to customary international law in the Study

1. Introduction

2. The question of codification

2. The Study’s exposition of the methodology employed

3. Kirgis’ ‘sliding scale’

4. The move towards Nicaragua

5. The normative significance of the practice of States parties to treaties

6. The identification of practice

7. Some concluding observations

3 Other areas of customary law in relation to the Study

1. Introduction

International law and situations of conflict

Customary law and compartmentalisation

a. The compartmentalisation of rules

b. Compartmentalisation of evidence

The coexistence of international humanitarian law and human rights law

a. Whether human rights law is expressly designed to apply in situations of conflict

b. Lex specialis

c. Persistent objection to the applicability of human rights law

d. The use made of human rights law in the Study

PART 2 The status of conflict and combatants: The ICRC Study

4 Status of armed conflicts

1. Introduction

2. Determining the status of armed conflicts

International armed conflict

Non-international armed conflict

Internationalised non-international armed conflict

Reclassification of armed conflicts

The ‘global war on terrorism’

3. Final remarks

5 Combatant status

1. Introduction

2. The development of combatant status

3. Combatant status in the Study

Definitions

Operative rules on combatant status

4. Discussion of the combatant status rules in the Study

5. Practical problems with combatant status and whether they are clarified by the Study

Do members of the regular armed forces54 lose combatant status if they fail to comply with the various conditions for combatant status?

What is the status of unqualified participants?

Is combatant status lost through failure to comply with the rule of distinction?

Do combatants have to wear uniform to distinguish themselves?

Is unqualified participation by itself a war crime?

Is the nationality of the captured person of significance?

Does it make any di.erence where the activities occur?

May an unqualified combatant be detained without trial?

Does it make a di.erence if it is a non-international armed conflict?

6. Final remarks

PART 3 Commentary on selected Rules from the ICRC Study

6 The law of targeting

1. Introduction

2. The Rules

3. Final remarks

7 Protected persons and objects

1. Introduction

Lieber code

1864 Geneva convention

1899 and 1907 Hague regulations

1949 Geneva conventions

2. The Rules

Medical and religious personnel and objects

Humanitarian relief personnel and objects

Personnel and objects involved in peacekeeping missions

Journalists

Protected zones

Cultural property

Works and installations containing dangerous forces

Other persons afforded specific protection

3. Final remarks

8 Natural environment

1. Introduction

2. The Rules

3. Final remarks

9 Specific methods of warfare

1. Introduction

2. The Rules

Denial of Quarter

Destruction and Seizure of Property

Starvation and Access to Humanitarian Relief

Deception

Communication with the Enemy

3. Final remarks

10 Weapons, means and methods of warfare

1. Introduction

Methodology used in the Study to identify customary law on weapons

2. The Rules

General principles on the use of weapons

Specific weapons, means and methods of warfare: Poison

Specific weapons, means and methods of warfare: Biological weapons

Specific weapons, means and methods of warfare: bullets

Specific weapons, means and methods of warfare: Non-detectable fragments

Specific weapons, means and methods of warfare: Booby traps

Specific weapons, means and methods of warfare: Landmines

Specific weapons, means and methods of warfare: Incendiary weapons

Specific weapons, means and methods of warfare: Blinding laser weapons

3. Final remarks

11 Fundamental guarantees

1. Introduction

2. The Rules

a. General principles

b. Killings

c. Ill-treatment

d. Slavery and forced labour

e. Hostages and human shields

f. ‘Enforced disappearances’

g. Detention

h. Due process guarantees

i. Personal rights

3. Final remarks

12 Status and treatment of prisoners of war and other persons deprived of their liberty

1. Introduction

Treaty development or codification of custom?

Prisoners of War

Other persons deprived of their liberty

2. The Rules

A. Prisoner ofWar status

B. Treatment – Persons deprived of liberty

3. Final remarks

13 Displacement and displaced persons

1. Introduction

Sources used

2. The Rules

3. Final remarks

14 Implementation and compliance

1. Introduction

2. The Rules

Compliance with international humanitarian law

Enforcement of international humanitarian law

Reprisals

State responsibility

3. Final remarks

15 War crimes

1. Introduction

2. The Rules

Individual Responsibility

War Crimes

3. Final remarks

PART 4 Conclusions

16 Conclusions

The methodology

The Rules

The value of the Study

INDEX

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