Abstract
Recent years have witnessed numerous expert-driven projects to set forth the law. Examples include the International Committee of the Red Cross’s Customary International Humanitarian Law Study, its Interpretive Guidance on the Notion of Direct Participation in Hostilities, and International Manuals on such subjects as the law relating to armed conflicts at sea, the International Law relating to Air and Missile Warfare and Cyber Warfare. Appreciating that the ICRC texts were not produced or described as Manuals, all of the listed texts reflect expert interpretation of fragmented, obscure or as yet unarticulated law. Chapter 3 takes each of the listed texts in turn, looks at the status in law that they claim and seem to have, notes the importance of each, given the complexities and gaps in the treaty law of armed conflict that we currently have and reflects on whether the generation of such Manuals is a desirable development.
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- 1.
National military manuals will represent state practice and may, therefore, contribute directly to the formation of customary law. By setting out the national interpretation of the rules of law that regulate the conduct of that state’s armed forces in armed conflict, such a military manual will also disclose the rules that should be disseminated by the relevant state to members of its armed forces through programmes of military instruction in accordance with API, Article 83(1). For a discussion of military manuals and their importance in the law of armed conflict, see Hayashi 2010. For a discussion of the arguments for and against the preparation of a military manual for a group of states, see the discussion of the proposal for a Nordic Military Manual at ibid., pp. 195–197.
- 2.
The text is available, inter alia, on the ICRC Treaty database at www.icrc.org and is reprinted in Roberts and Guelff 2000, pp. 574–606.
- 3.
Henckaerts and Doswald-Beck 2005 (ICRC Study).
- 4.
Melzer 2009 (Interpretive Guidance).
- 5.
Program on Humanitarian Policy and Conflict Research, Manual on International Law Applicable to Air and Missile Warfare, published with a Commentary in March 2010 (AMW Manual).
- 6.
Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, adopted on 8 June 1977 (API) and Geneva Protocol II Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, adopted on 8 June 1977 (APII).
- 7.
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects (CCW), adopted 10 October 1980.
- 8.
Protocol III to CCW 1980, adopted on 10 October 1980, contains restrictions as to the air and ground delivery of incendiary weapons as defined in the Protocol. Protocol II to CCW 1980, also adopted on 10 October 1980, contains restrictions on the use of mines, booby-traps and other devices. Amended Protocol II to CCW 1980, adopted on 3 May 1996, contains more extensive restrictions on the use of the same three classes of munition. Protocols I and IV to CCW 1980 prohibit respectively certain fragmentation weapons and certain blinding laser weapons. These provisions are discussed in a little more detail in Chap. 5.
- 9.
Annex to Hague Convention IV, Regulations Respecting the Laws and Customs of War on Land, The Hague, 18 October 1907; consider Articles 22–35.
- 10.
For example, the Regulations contain no explicit prohibition of the targeting of civilians and do not address when civilians forego any protection to which general, including customary, law may entitle them.
- 11.
Certain provisions of the law of targeting do not presuppose an attack, for example the general principle of distinction as laid out in Article 48. So, for example, while general protection of the civilian population against the dangers arising from military operations is granted by Article 51(1), the specific protections are in respect of attacks and are specified in Article 51(2).
- 12.
API, Article 49(1).
- 13.
Consider, for example, the Chinese position on these matters as explained in Zhang 2012.
- 14.
API, Article 49(3).
- 15.
It should, for completeness, be noted that Article 49(4) of API provides that the API targeting rules are additional to the humanitarian protection rules in Geneva Convention IV and in other treaties and to other international law provisions protecting civilians and civilian objects at sea, on land or in the air from the effects of hostilities.
- 16.
Protocol III to the Conventional Weapons Convention did develop particular rules in relation to the use of incendiary weapons as defined in that treaty, and Protocol II and Amended Protocol II to the Conventional Weapons Convention contained particular rules in relation to the use of mines, booby-traps and other devices, again as those terms are defined in those treaties.
- 17.
Declaration Respecting Maritime Law, Paris, 16 April 1856 (Paris Declaration), a rule that has customary status, Heintschel von Heinegg 2013, p. 477.
- 18.
“Privateering is, and remains, abolished”; Article 1. Privateering consisted of the authorization by national authorities of private individuals or ships, through letters of marque, to attack enemy vessels during time of war.
- 19.
“Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy”; Paris Declaration, Article 4.
- 20.
Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864, The Hague, 29 July 1899.
- 21.
Convention (VI) relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities, The Hague, 18 October 1907.
- 22.
Convention (VII) relating to the Conversion of Merchant Ships into War-Ships, The Hague, 18 October 1907.
- 23.
Convention (VIII) relative to the Laying of Automatic Submarine Contact Mines. The Hague, 18 October 1907, Article 1.
- 24.
Compare, for example, the precautions in attack provided for in Articles 1–7 of the Convention with those set forth in Article 57 of API and compare the modern notions of military objectives with the provisions in the same articles of the Convention.
- 25.
Consider for example the provision in Article 3 as to bombardment of listed undefended places following a refusal of requisitions.
- 26.
Articles 5–7, Hague Convention for the adaptation to Maritime Warfare of the Principles of the Geneva Convention, Convention X, The Hague, 18 October 1907.
- 27.
Convention XI Relative to Certain Restrictions with regard to the Exercise of the Right of Capture in Naval Warfare, The Hague, 18 October 1907.
- 28.
Convention XIII Concerning the Rights and Duties of Neutral Powers in Naval Warfare, The Hague, 18 October 1907.
- 29.
Procès-verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of April 22 1930 London, 6 November 1936.
- 30.
Roberts and Guelff 2000, p. 170.
- 31.
For a discussion of the status of the 1923 Hague Draft Rules, see Green 2008, pp. 45–47.
- 32.
API, Article 49(3).
- 33.
This language, by way of illustration, is taken from Hague Convention IV, 1907, Article 2.
- 34.
API, Article 1(3).
- 35.
Common Article 2(3) to the Geneva Conventions, 1949.
- 36.
As Jeremy Marsh and Scott Glabe point out, state practice and opinio juris should be the primary sources informing the development of customary international law; Marsh and Glabe 2011, p. 14.
- 37.
See para 8 of the Preamble to Hague Convention IV, 1907: “Until a more complete code of the laws of war has been issued, the high contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.”
- 38.
Henckaerts and Doswald-Beck 2005.
- 39.
For example, the NIAC Manual 2006 published with Commentary in March 2006 and the San Remo Rules of Engagement Handbook 2009, published in November 2009 and available at www.usnwc.edu/getattachment/7b0d0f70-bb07-48f2-af0a-7474e92d0bb0/San-Remo-ROE-Handbook.
- 40.
We shall not, for example, consider the NIAC Manual 2006 and the San Remo Rules of Engagement Handbook 2009.
- 41.
Roberts and Guelff 2000, p. 573. Frits Kalshoven and Liesbeth Zegveld identify a number of factors that have contributed to this state of affairs, including that matters are much more complicated now than in the pre-UN era; that the sea is split into more areas; that the existence of the UN has affected the relevance of neutrality; and that techniques of warfare in, on and over the sea have changed radically. They also point out that relatively few states are actively involved in sea warfare and some of them may be reluctant to see the law relating thereto codified at a broadly composed international conference; Kalshoven and Zegveld 2011, p. 195.
- 42.
See, however, Hays Parks’ discussion of the SRM Commentary’s treatment of military objectives at Hays Parks 2006, pp. 100–101. Frits Kalshoven and Liesbeth Zegveld consider that “the authors of the document achieved the impressive feat of merging the traditional law of sea warfare with principles and rules taken from other areas of humanitarian law, working the whole into a set of realistic rules that should be acceptable to naval powers—and in effect have been adopted by several of these powers”; Kalshoven and Zegveld 2011, p. 198. See also Corn et al. 2012, p. 59.
- 43.
The Laws of War on Land, Oxford, 9 September 1880. Manual published by the Institute of International Law, Oxford.
- 44.
San Remo Manual on the International Law Applicable to Armed Conflicts at Sea, 1994, Introductory Note.
- 45.
Foreword to Henckaerts and Doswald-Beck 2005 by J Kellenberger, President of the International Committee of the Red Cross, p. x and Introduction, p. xxvii. The Conference was endorsing a recommendation from the International Group of Experts for the Protection of War Victims who had met in Geneva in January 1995 and had recommended that the ICRC “be invited to prepare, with the assistance of experts in international humanitarian law representing various geographical regions and different legal systems, and in consultation with experts from governments and international organisations, a report on customary rules of international humanitarian law applicable in international and non-international armed conflicts, and to circulate the report to States and competent international bodies”.
- 46.
This account of the process is a heavily abbreviated version of the account in the Introduction to the Study, pp. xxv–xlix.
- 47.
Henckaerts and Doswald-Beck 2005, Introduction, pp. xxxix–xlix.
- 48.
Kellenberger 2005, p. xi.
- 49.
See for example Tallinn Manual, commentary accompanying Rule 26, para 10 and Commentary accompanying Rule 31, para 2.
- 50.
That is, it does not constitute one of the sources of international law listed under Article 38(1)(a) to (c) of the Statute of the International Court of Justice, but, as explained earlier in the present chapter, should be classified under Article 38(1)(d) as teachings of the most highly qualified publicists and, thus, is a subsidiary, but a most important, means for determining the existence and terms of rules of customary law.
- 51.
Consider for example Letter from J Bellinger III, Legal Adviser, US Dept of State and W J Haynes, General Counsel US Dept of Defense to Dr. J Kellenberger, President, International Committee of the Red Cross, Regarding Customary International Law Study dated 3 November 2006, available at http://www.icrc.org/eng/resources/documents/article/review/review-866-p443.htm. Note also the reply at Henckaerts 2007 and see also Wilmshurst and Breau 2007.
- 52.
Melzer 2009.
- 53.
API, Article 51(3).
- 54.
Personal knowledge of the author who was a member of the Group of Experts from 2004 until 2008.
- 55.
Idem.
- 56.
See for example the special Forum in 42 NYU J Int L & Pol (Spring 2010) 637–916.
- 57.
Melzer 2009, Foreword, p. 5.
- 58.
Melzer 2009, Introduction, p. 9.
- 59.
Note Marsh and Glabe 2011, pp. 18–24 where the influence of normative ICRC publications such as Melzer 2009, the Interpretive Guidance is noted and where the case is made for a United States response in which it sets out its national position, ideally in its forthcoming Law of War Manual, on these issues.
- 60.
See for example the endorsement of an approach taken in Melzer 2009, the Interpretive Guidance when the Tallinn experts considered the notion of organized armed groups “belonging to” a party to the conflict; Tallinn Manual, Commentary accompanying Rule 26, para 7.
- 61.
The following discussion is based on the personal knowledge of the author who was, from the inception of the Project to write the Manual, a member of the Group of Experts.
- 62.
Declaration (IV, I) to Prohibit, for the Term of Five Years, the Launching of Projectiles and Explosives from Balloons, and other Methods of Similar Nature, The Hague, 29 July 1899.
- 63.
Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons, The Hague, 18 October 1907.
- 64.
The Convention Relating to the Regulation of Aerial Navigation, Paris, 13 October 1919, prohibited the carriage of explosives, arms and munitions in international carriage (Article 26), a provision that also seems to have been largely ignored, and nothing useful came directly from the Washington Conference on the Limitation of Armaments of 1921–1922.
- 65.
- 66.
See the discussion of attitudes to air warfare, and more particularly to air bombardment, in Spaight 1947, pp. 10–17.
- 67.
Additional Protocol I, Article 49(1).
- 68.
AMW Manual, Introduction, p. 4. “In the rare instances in which compromise formulas proved beyond the reach of the Group of Experts, it was agreed to follow in the text the majority view but to give in the Commentary full exposure to the dissenting opinions.”
- 69.
See the description of the process in Kalshoven and Zegveld 2011, p. 199.
- 70.
Discussions between the author and Yoram Dinstein who was one of the two Co-Directors of the AMW Project and see Introduction to the AMW Manual, pp. 1–3.
- 71.
See AMW Manual, Introduction, p. 2: “The goal is… to present a methodical restatement of existing international law on air and missile warfare, based on the general practice of States accepted as law (opinio juris) and treaties in force. No attempt has been made to be innovative or to come up with a lex ferenda (however desirable this may appear to be); the sole aim has been to systematically capture in the text the lex lata as it is.”
- 72.
AMW Manual, Introduction, p. 3.
- 73.
- 74.
The Geneva Centre for Security Policy has run the legal education project and see for example Tallinn Manual, commentary accompanying Rule 26, paras 16 and 19.
- 75.
Tallinn Manual on the International Law Applicable to Cyber Warfare (Tallinn Manual), 2013.
- 76.
See for example the press reporting of the announcement by the UK Director of Public Prosecutions that legal proceedings will not be taken against Garry McKinnon in respect of alleged hacking activities; consider also the high profile extradition proceedings against the same person; as to the former, see www.bbc.co.uk/news/uk-20730627 dated 14 December 2012 and as to the latter see the announcement on 16 October 2012 to the UK House of Commons by Home Secretary Teresa May reported at www.bbc.co.uk/news/uk-19962844.
- 77.
See Wikileaks founder Julian Assange to fight Extradition at the Supreme Court, Daily Telegraph, 1 February 2012, available at www.telegraph.co.uk/news/worldnews/wikileaks/9053399/Wikileaks-founder-Julian-Assange-to-fight-extradition-at-Supreme-Court.html.
- 78.
Owens et al. 2009, pp. 173–176.
- 79.
Markoff 2008 at http://bits.blogs.nytimes.com/2008/08/11/georgia-takes-a-beating-in-the-cyberwar-with-russia/. Consider also operations against Kyrgyzstan in 2009; Hunker 2010, p. 3.
- 80.
It is understood that these reports of damage have not been confirmed by Iran. See, however, Fildes 2010 at www.bbc.co.uk/news/technology-11388018 and Broad, Markoff and Sanger 2011.
- 81.
Westby 2013.
- 82.
Tallinn Manual, Introduction, p. 1.
- 83.
Tallinn Manual, Introduction, p. 1.
- 84.
Tallinn Manual, Introduction, p. 3.
- 85.
Tallinn Manual, Introduction, p. 5.
- 86.
Tallinn Manual, Introduction, p. 6.
- 87.
Tallinn Manual, Introduction, p. 6.
- 88.
- 89.
Statute of the International Court of Justice, San Francisco, 26 June 1945, Article 38(1). The Statute is annexed to the Charter of the United Nations, of which it forms a part.
- 90.
Article 2(1)(a) of the Vienna Convention on the Law of Treaties, 1969, defines a treaty as “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”.
- 91.
The UK Manual 2004, paras 1.12 and 1.12.1, notes that customary international law consists of the rules which as a result of state practice over a period of time have become accepted as legally binding. Such a rule is created by widespread state practice coupled with a belief on the part of the state concerned that international law obliges it, or gives it a right, to act in a particular way.
- 92.
Consider in this regard the account of the writings of ancient yet eminent publicists given by Gary Solis, who refers among others to Francisco de Vitoria, Pierino Belli, Balthazar Ayala, Hugo Grotius, Alberico Gentili, Emmerich de Vattel, Lassa Oppenheim and, as a corporate publicist, to the International Committee of the Red Cross; Solis 2011, pp. 17–20.
- 93.
Dinstein 2010, p. 17.
- 94.
Personal knowledge of the author who participated in all relevant discussions.
- 95.
The experience of the author in relation to the Air and Missile Warfare and Tallinn Manuals is that this thought process was indeed carried through with care in both cases and is reflected in the Commentaries to the relevant Rules.
- 96.
See n. 37 above and accompanying text and see somewhat similar sentiments in API, Article 1(2).
- 97.
- 98.
As authoritative commentators have observed, “these soft law projects likely will influence the development of the LOAC, particularly if cited by courts or governments seeking to identify applicable legal rules. Soft law can become the basis of future treaties…In the future, it can be expected that States may want to look first to the results of soft law projects on emerging LOAC issues…to determine what future rules might look like before engaging diplomatically on the creation of “hard” law, such as treaties”; Corn et al. 2012, p. 60.
- 99.
- 100.
This is explicitly the position in relation to the ICRC Customary Law Study, see the Foreword to the Study by Dr. A. G. Koroma, Judge at the International Court of Justice, Henckaerts and Doswald-Beck 2005, p. xiii.
- 101.
Instructions for the Government of Armies of the United States in the Field, 24 April 1863.
- 102.
Roberts and Guelff 2000, p. 13.
- 103.
Introduction to Project of an International Declaration Concerning the Laws and Customs of War, Brussels, 27 August 1874, at www.icrc.org.
- 104.
Consider for example the relationship between Article 24(3) of the 1923 Rules, second sentence, and Article 51(4) of API, first sentence, or between Article 24(1) of the 1923 Rules and Article 52(1) and (2) of API.
- 105.
Roberts and Guelff 2000, p. 12.
- 106.
Watkin 2012, p. 10.
- 107.
Dinstein 2010, p. 296.
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Boothby, W.H. (2014). International Manuals and International Law. In: Conflict Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-002-2_3
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