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Preview: Journal of Conflict and Security Law

Journal of Conflict and Security Law

Volume 11, Number 2, Summer 2006

Published: Wed, 30 Aug 2006 09:02:10 EST


Symposium: Studies on the Customary Law Study

Wed, 30 Aug 2006 09:02:10 EST

Volume 11, Number 2, Summer 2006 p.163-163

The Effect on National Law of the Customary International Humanitarian Law Study

Wed, 30 Aug 2006 09:02:10 EST

Volume 11, Number 2, Summer 2006 p.165-177
This article discusses whether the Rules formulated in the Customary International Humanitarian Law Study are automatically a part of national law, particularly in common law States. It argues that even if some or all of them accurately reflect customary international law at the present time, their status is only as potential norms of national law. It concludes that they cannot, by themselves and without more, amount to crimes within national law. The author discusses also the relationship between the Rules at common law and any wholly or partially implemented treaty upon which they are based. He concludes that the Rules, as such, will generally have little practical impact upon national criminal law.

International Accountability for Violations of the Ius in Bello: The Impact of the ICRC Study on Customary International Humanitarian Law

Wed, 30 Aug 2006 09:02:10 EST

Volume 11, Number 2, Summer 2006 p.179-199
The law of armed conflicts prohibits indiscriminate warfare, unnecessary suffering and perfidious acts, yet practice confirms that legal rules which have been expressly supported by states are widely violated, while means to enforce compliance are often weak or altogether lacking. The Article considers the imperfect situation of compliance and enforcement in armed conflicts and shows that specific problems, in particular with respect to non-state actors, remain unsolved and too little discussed. The obligation of states to respect and ensure respect of international humanitarian law is evaluated. In this context similar obligations of transnational corporations and armed opposition groups are considered and the role of international organisations addressed. Advocating new efforts by lawyers and operators, in order to ensure confidence in the law and to improve the protection of victims of armed conflicts, the author identifies eight practical steps as being the most important.

Weapons in the ICRC Study on Customary International Humanitarian Law

Wed, 30 Aug 2006 09:02:10 EST

Volume 11, Number 2, Summer 2006 p.201-237
Part IV of the ICRC"s Customary International Humanitarian Law Study is the shortest section of that monumental work; yet it covers one of the most important technical areas of humanitarian law, namely prohibited weapons. It does so by means of two "General Principles" and 14 rules on specific weapons, all of which are covered by various treaties that have been made since 1868 (a notable omission is nuclear weapons). This article outlines the context of the Study"s overall impact in relation to weaponry and addresses some methodological criticisms concerning the extrapolation of customary rules from treaties which, in some cases, are barely a decade old and either have not attracted a very large number of States parties or are confronted with significant contrary State practice by major military powers like the United States of America. The article goes on to consider each Rule individually in light of its origins in treaty law and previous status as custom, if any. A point of contention throughout these Rules is the Study"s cavalier extension of them to cover non-international, as well as international, armed conflicts, even in cases where State practice is all but absent. This detracts from the Study"s overall credibility and usefulness. It is seriously suggested that most of the Rules in this Part of the Study are either unsupported by sufficient evidence or otherwise redundant; the Study"s authors could usefully have stopped at the second of the "General Principles" as far as weaponry is concerned.

Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study

Wed, 30 Aug 2006 09:02:10 EST

Volume 11, Number 2, Summer 2006 p.239-263
This article investigates the influence of the international criminal tribunals on the conclusions reached by ICRC Customary Study. To engage in such an analysis requires an understanding of the interplay of treaties and customary international law and of the status of the jurisprudence of international tribunals as a source of international law. In relation to the latter, it is noted that the impact of any individual case is strongly linked to the quality of the reasoning it contains. Having thus set the scene, this article then goes on to appraise the ICRC Study"s approach to the international criminal tribunals founding documents and case-law. It criticises the Study for not setting out the precise normative status it places on the ICTY, ICTR and Special Court for Sierra Leone"s Statutes, and for failing to take a sufficiently nuanced view on the Rome Statute, in particular owing to Article 10 of that Treaty. The piece then moves on to look at some instances where case-law is relied upon by the Study without sufficient discussion of its merits, and where it has placed too much reliance on controversial aspects of the Rome Statute. It concludes by noting the problematic relationship between some of the rules and their commentary, but, despite the criticisms made, also agreeing with many of the conclusions the Study reaches.

A Conflict of Norms: The Relationship Between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study

Wed, 30 Aug 2006 09:02:10 EST

Volume 11, Number 2, Summer 2006 p.265-291
It is generally accepted that although human rights law is applicable in armed conflicts the rules of international humanitarian law take precedence as lex specialis. However, uncertainties remain. Do norms with a lex specialis character override more general rules systematically and invariably, or is there room for complementarity? To what extent are human rights standards applicable in armed conflicts and in how far is the jurisprudence of regional human rights courts pertinent? The ICRC Study on Customary International Humanitarian Law provides a relevant example of how the normative relationship between human rights law and humanitarian law on the basis of the lex specialis rule can be conceived. The article examines this normative relationship by analysing how the Study uses the jurisprudence of human rights bodies in order to specify fundamental guarantees of humanity. The article argues that although the Study"s approach works in principle because the use of human rights law in it is basically restricted to proving the existence of fundamental guarantees problems arise, inter alia, in relation to proportionality when using force, in relation to human rights" limitation clauses and in relation to the different dimensions of human rights protection. Moreover, since concrete human rights standards depend very much on their circumstances because of the contextual techniques employed in interpretation of human rights law they can neither readily be transferred to the situation of an armed conflict nor be easily applied outside their regional context. Thus, the concrete application of the refined human rights law to interpret humanitarian law is not always as valuable as might be thought.