Further complicating the IHL process, while helping to drown out what little Stateopiniojuris one finds today, are the burgeoning efforts of humanitarian advocacy groups. These organizations and their members have long performed the valuable role of counterweight, urging States not to lead the law unduly askew in the pursuit of narrow national interests. Yet, assertions of law by humanitarian groups must be considered with some degree of care as their work in explicating IHL understandably (and often appropriately) reflects the legal causes and policies of their constituencies. Additionally, where they stand with respect to IHL depends on where they sit; what they observe and conclude about the battlefield and its law is always a function of their perceived mandates. Humanitarian activists working exclusively to alleviate the suffering of civilians and other protected persons will inevitably appreciate IHL differently than, for instance, soldiers charged with winning a battle or State policy-makers responsible for leading a nation to victory.
Internationalhumanitarianlaw (“IHL”), or the law of armed conflict (“LOAC”), is a branch of internationallaw designed to regulate the conduct of belligerent states during an armed conflict.  However, conflicts in the modern era are drastically different than the interstate hostilities envisioned at the time the bulk of IHL was developed. Contemporary conflicts, such as the 'War on Terror' between states and non-state actors, have resulted in new military tactics to address the complications inherent in these modern conflicts. The controversial use of targeted killing is amongst these new tactics. For the purposes of this discussion, targeted killing is the “intentional slaying of a specific alleged terrorist or group of alleged terrorists undertaken with explicit governmental approval where they cannot be arrested using reasonable means.”  The inability to arrest suspected terrorists reflects the transnational aspect to these conflicts as the victim state is unable to exert enforcement jurisdiction beyond its borders.  Until such time as new
164. U.S. L AW OF W AR M ANUAL , supra note 10, § 11.4 (citing J ULIUS S TONE , L EGAL C ONTROLS OF I NTERNATIONAL C ONFLICT 694 (1954)) (emphasis added); see also Charles Garraway, Occupation Responsibilities and Constraints, in T HE L EGITIMATE U SE OF M ILITARY F ORCE 263, 278 (Howard M. Hensel ed., 2008); Hans-Peter Gasser & Knut Dörmann, Pro- tection of the Civilian Population, in T HE H ANDBOOK OF I NTERNATIONAL H UMANITARIAN L AW 231, 266 (Dieter Fleck ed., 3d ed. 2013). However, the law of occupation evolved so that that today it comprises obligations erga omnes and erga omnes partes, which are relevant for the international community as a whole and all the States parties to the Geneva Conven- tions. See Wall Advisory Opinion, supra note 13, ¶¶ 155, 157; L ONGOBARDO , supra note 3, at 84–86.
The doctrine of HMI trace back to the Just War tradition that is based on the Christian conception of the Just War Theory(JWT). JWT can be traced back to the Roman Empire and the influence of the St. Augustine‘s notion of ‗the Two Cities‘. Augustine offered a formula for the restoration of peace that includes the commonly cited theme of a ‗just war‘ as one limited by its purpose, authority and conduct. Following on Augustine‘s thoughts, Thomas Aquinas concretely specified in his Summa Theologica three main conditions for labeling a war as being ‗just‘: ‗just cause‘, ‗just intent‘, and ‗just authority‘(Waltzer, 1977; Atwood, 2003; Butler, 2003). The Dutch jurist Hugo Grotius framed a modern conception of the JWT into the HMI concept in the 17 th century, when he introduced an idea of intervening militarily for the ‗humanitarian‘ purposes. He proposed in his book ‗De jure belli ac pacis libritres’ that the outside countries can legitimately intervene to stop the human rights abuses in a neighboring state(Grotius (transl.), 1625). In the 18 th century, the Swiss philosopher Emmerich de Vattel who defended a solidarist tradition recognizing that the governments have not only a right but even a duty to defend the humanitarian values wherever they were threatened in the name of international justice(Vattel (transl.), 1758). Scholars such as Hugo Grotius, Emmerich de Vattel have attempted to separate the notion of ‗just war‘ from its religious origins by arguing that the Sovereigns were bound by the fundamental principles of humanity and have thus duty to treat their subjects with respect for human dignity(Knudsen, 2009). This would suggest that states are all bound by the natural law of the human society that obligates them to treat their own nationals in accordance with the principle of humanity and to ensure that the other states do (Haar, 2000; Harhoff, 2001; Kabia, 2009). This proposition brings heated debates among theologians and legal theorists about the right of HMI.
In short, the US drone program remains largely beyond the reach of any effective legal or judicial oversight. One suggestion to remedy this is the establishment of a Congressional Committee to conduct post-strike reviews, although this writer is of the opinion that such reviews could better be undertaken, and the appearance of political impartiality preserved, by an independent tribunal(s) comprised of senior members of the judiciary, assisted by independent counsel and advised by international lawyers and various relevant NGOs. As to the possibility of US targeting practices being the subject of contentious inter-state litigation before the ICJ, this writer does not hold this to be a realistic prospect. Substantive issues aside, the pertinent consideration is that of jurisdiction, and it must be borne in mind that the jurisdiction of the ICJ is fundamentally based on state consent. 17 It is therefore doubtful that the US would consent to being the respondent state in such litigation, 18 and it is highly doubtful that the US would make any declaration accepting the jurisdiction of the ICJ to determine the legality of US drone strikes in any such inter-state litigation. 19 In addition, such litigation would have to be commenced by one or a combination of the key target states, and it is highly unlikely that any of these states would be minded to initiate proceedings against the US, given the evident degree of cooperation between the US and these states in the execution of drone strikes in their territories. It seems more probable, at least to this writer, that any recourse to the ICJ will be at the behest of one of the UN organs, such as the General Assembly, requesting an Advisory Opinion on the legality of US drone strikes. It is unlikely that such a request will emanate from the Security Council, on account of the US’s power of veto. Such a request is more likely to come from the General Assembly, on the basis of a simple majority vote and where the US has no power of veto to block such a request. Although such an opinion from the ICJ would certainly lend clarity to the complex legal issues surrounding the US drone programs, the non-binding nature of the opinion may be of limited value in
As it stands today, NIAC is a plural legal concept, defined differently under different treaty regimes. The basic (non-)definition of NIAC, which encompasses all others, is that in CA3. Its terms were famously elaborated by the ICTY Appeals Chamber in the Tadic Interlocutory Decision on Jurisdiction, 56 which has been widely accepted as reflecting custom. Under Tadic, CA3 requires ‘protracted armed violence’ – a threshold of intensity and possibly duration, rising above mere riots or disturbances – between a state and an armed non-state actor or between two such non-state actors, which are sufficiently organized to conduct hostilities. 57 On the other hand, the heightened threshold of Article 1(1) AP II, which is only applicable to conflicts involving a state and a non-state actor, but not two such non-state actors, requires the non-state actor to have an organizational structure with a responsible command, control a part of the state’s territory, the ability to conduct sustained and concerted military operations and the ability to implement the Protocol. I will leave aside the question to what extent exactly is the AP II threshold really higher from the customary CA3 one when applied to particular facts.
Jurisdiction, IT-94–1-AR72  “In the area of armed conflict the distinction between interstate wars and civil wars is losing its value as far as human beings are concerned. Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property, as well as proscribe weapons causing unnecessary suffering when two sovereign States are engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted ‘only’ within the territory of a sovereign State? If internationallaw, while of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings, it is only natural that the aforementioned dichotomy should gradually lose its weight.”
This paper sketches what is in all probability a heretical view, developing arguments to be found in my book (2008) 1 , and in my chapter in the collection edited by Phil Shiner and Andrew Williams 2 . As in those chapters, I draw on my own experience taking Kurdish (from 1994 to 1999) and then Chechen (from 2000 to the present) cases to the European Court of Human Rights (ECtHR). What I now attempt is to radicalise those arguments, on the basis of the materialist and historicised account of internationallaw and human rights for which I contend. In short, I argue that the lex specialis doctrine as developed in particular by the International Court of Justice, in the 1996 Nuclear Weapons 3 and 2004 Wall 4 Advisory Opinions, and the 2005 DRC v Uganda 5 case is an example of a category error, so far as it brings human rights law (IHR) and humanitarianlaw (IHL) into a relationship with each other, for example that “complementarity”. Chalk is being compared with or even substituted by cheese. Or still worse, the two are being mixed together: chalky cheese is horribly indigestible, while cheesy chalk is no good at all for writing on blackboards
The InternationalHumanitarianLaw has drafted a number of laws to provide necessary protection to women with the adoption of the Fourth Geneva Convention and the Additional Protocols. But the fact lies in the implementation of these laws for the benefit and protection of women in practical situation. Success cannot be achieved by just adopting new rules but by enforcing it appropriately in the International front. The implementation of the different provisions created for the protection of women and the various Laws of the InternationalHumanitarianLaw should be consensually followed by the states, party to the Geneva Conventions of 1949 and the Additional Protocols of 1977, which have undertaken to respect and ensure respect for these rules.
Internationalhumanitarianlaw is built upon a balance between acceptance of military interests on the one hand and humanitarian concerns on the other. NATO’s “no-body-bag policy” showed that this balance was upset in the Kosovo conflict’s limited type of war. NATO could use the liberal definition of military objectives—thus benefiting from the rules favorable to the military interest—while at the same time attacking from such altitudes that humani- tarian concerns could not be met. This problem could be addressed in a new protocol for interventional types of conflict, through a sharpening of the defi- nition of military objectives. One could require that only those objectives be attacked which are making an effective contribution to military action, or which imminently are about to make such a contribution. 30 A requirement of
These passages suggest both a more relaxed understanding of the rela- tionship between IHL and human rights law and an imperative to harmo- nize legal obligations when there is no direct contradiction between them. In addition, the submission suggests that it is the United States’ view that there may be aspects of a State’s conduct that are, in fact, governed by hu- man rights law, even during situations of armed conflicts—all of which are taking place outside of United States’ territory at this time. This implies the majority conflict-of-laws position that human rights law can be employed as an interpretive aid to add content to undefined terms in IHL, such as “judicial guarantees” and “humane treatment,” or to expound upon treaty obligations, as in situations of occupation or detention when the occupying State exercises plenary power over territory or individuals. Although the United States also indicated a willingness to engage in further dialogue on these issues, 146 it declined to elaborate in response to the HRC’s list of pri-
During a training session at SWEDINT, a military trainer asks trainees what they would do in situations of hybrid warfare where they cannot discern between civilians and combatants. A UN civilian trainee responds that, following the UN Department of Peacekeeping Operations (DPKO) policy for UN missions, ‘when in doubt, assume someone is civilian’. When the same question arises with respect to international actors, a military trainee proposes dividing international actors into ‘armed versus unarmed’. He points out that this fits with the framework of civil– military relations and ‘it’s the best term we have’. He goes on to note the difficulty of drawing this line when civilian security actors are armed, or when politicians and donors take on the appearance of military actors. Still, he believes that the preferred approach is to situate all international civilians together in one unified category; he includes humanitarian actors in this category, as well. Later, during a chat in the hallway outside the classroom, a civilian trainer at SWEDINT reflects on these exchanges. He proposes that, in theory, anyone should be able to look at international actors and say ‘You’re either a combatant or you’re not’. However, he laments that there are blurred lines in practice, especially where military forces engage in humanitarian activities or humanitarian actors use military assets and start to resemble a military force. He describes a photograph he once took of a military officer wearing civilian clothes, recalling: ‘It was a conflict area and he wanted to melt into the population. I know that is illegal, but you also have humanitarians dressing up in field gear…and you start asking, who is who?’ He identifies a ‘grey zone’ of relationships between internationalhumanitarian actors and other civilian actors. He proposes that this is not a legal issue to be resolved by IHL, but a matter of ‘what our respective organization means’. 487
In cases of failing to prevent, courts have been clear that information tending to put the superior on notice of the future risk of crimes triggers the requirement to investigate and prevent. This is consistent with the ICRC commentary’s guidance that knowledge of a subordinate’s lack of training on the law of war, for example, is instructive information for which the commander cannot plead ignorance, and is relevant in a command responsibility analysis. In other words, both previous unpunished misconduct and the failure to train soldiers adequately provide warning signs that future bad acts may occur. It is not the failure to rectify past misconduct itself that gives rise to liability under failure to prevent, but the superior’s knowledge of it and the fact that it makes future bad acts more likely. F. Culpability of Commanders Responsible
The construction of an international normative system focused on the develop- ment of internationalhumanitarianlaw can be verified throughout several mo- ments in the history of humanity. This is because, intrinsically linked to social facts, the law is conditioned by the behavior of society, which, in turn, is also conditioned by legal norms. From this point of view, it is necessary to clarify that conditioning implies in influencing, interfering, generating the expectation that Law and society will act according to a determined way. Social norms when in- stitutionalized impose certain patterns of behavior that aim to govern and regu- late social life. That is why it ends up interfering in the conduct of people in the social environment. In this way it is certain that society interacts with the law and is influenced by it. Thus, by establishing juridical norms, they shape society; however, this also dictates patterns that comes out of informality, and becomes positive law. It is clear that in order to regulate internal relations and interna- tional relations, the need for specific legal rules is required.
Tim McCormack is Dean of the University of Tasmania Law School and a Professo- rial Fellow at Melbourne Law School. He is also the Special Adviser on International Hu- manitarian Law to the Prosecutor of the International Criminal Court, the Department of Foreign Affairs and Trade’s Visiting Legal Fellow (appointed jointly with Professor Anthea Roberts 2017–18), and the New Zealand Law Foundation Distinguished Visiting Fellow (2018). Previously, he served as the Charles H. Stockton Distinguished Scholar-in-Residence at the U.S. Naval War College (2015–16) and as a member of the International Group of Experts that drafted Tallinn Manual 2.0 on the InternationalLaw Applicable to Cyber Operations (2015–17). None of the views expressed in this article can be attributed to any of the insti- tutions named above. Professor McCormack wishes to thank Luke Chircop for his helpful research assistance in the preparation of this article and Professor Rob McLaughlin for his insightful comments on the topic, particularly in a presentation to Australian Defence Force Legal Officers in Canberra on August 30, 2018. An earlier version of this paper was pre- sented at “Future Wars and Public Conscience: Symposium on the Ethical, Legal and Social Implications of Emerging Military Technologies” in Melbourne, Australia, May 29–30, 2017.
The act of surrender possesses a political, military and legal dimension. It has a political dimension in the sense that an act of surrender indicates that a surrendering party has been defeated and the opposing force has been victorious. In its military context the act of surrender denotes that the person surrendering is no longer engaged in hostilities; that he or she is hors de combat. 5 In its legal dimension, where a valid offer of surrender is communicated to and received by opposing forces they are legally obligated to accept that offer and refrain from making surrendered persons the object of attack. 6 This article is concerned with exploring the legal status and content of the rule of surrender and this section traces the emergence of this rule within conventional and customary internationalhumanitarianlaw during international and non-international armed conflict as well as identifying its theoretical basis.