International Humanitarian Law Series

This book offers the first comprehensive scholarly analysis of the current meaning and scope of military necessity – a key concept in the international legal framework for the protection of cultural heritage during armed conflicts since the adoption of the 1954 Hague Convention. Academic discussions commonly view military necessity uniquely through the lens of international humanitarian or international criminal law. In her book, Berenika Drazewska presents a more comprehensive perspective, examining developments across various strands of international law arisen since 1954. This novel approach demonstrates how international cultural heritage law affords a particularly strict meaning to military necessity. As a result, the relative waiver will only be available to belligerents very rarely, in truly extraordinary circumstances.

Drazewska’s Military Necessity in International Cultural Heritage Law engages a significant issue in this rapidly evolving field of international law, the inclusion of necessity in regulation of the protection of cultural heritage during armed conflict after 1945. Its very inclusion was viewed as a major concession, which is only multiplied because of the difficulties of its application on the ground. This thorny issue has come to the fore again with large-scale cultural losses inflicted during recent armed conflicts. Elegantly written and scholarly in its approach, this book places this question and possible answers to it within the broader sweep of international law and recent developments not only in international humanitarian law, but state responsibility, international criminal law and international criminal law. It offers a significant and timely reexamination and reconceptualization of this important topic.
Prof. Ana Filipa Vrdoljak (UNESCO Chair in International Law & Cultural Heritage, Faculty of Law, University of Technology, Sydney)

Civil-military relations establishes the civilian control over the military to protect democratic values. This book argues analysis of the CMR is distorted by the absence of consideration of the judicial arm, with the ‘civil’ seen as referring only to the executive and/or legislature. The civil courts approach to military discipline and the impact that has for CMR within — the United Kingdom, United States and Australia is investigated. The author concludes that by including the courts in the development of CMR theory militarisation of the civilian domain is discouraged. A paradigm shift acknowledging the fundamental role of all three organs of government in liberal democracies, for control of States’ power is essential for genuine civilian oversight.

Ai Kihara-Hunt’s Holding UNPOL to Account: Individual Criminal Accountability of United Nations Police Personnel analyzes whether the mechanisms that address criminal accountability of United Nations police personnel serving in peace operations are effective, and if there is a problem, how it can be mitigated.
The volume reviews the obligations of States and the UN to investigate and prosecute criminal acts committed by UN police, and examines the jurisdictional and immunity issues involved. It concludes that these do not constitute legal barriers to accountability, although immunity poses some problems in practice. The principal problem appears to be the lack of political will to bring prosecutions, as well as a lack of transparency, which makes it difficult accurately to determine the scale of the problem.

This unique volume provides a detailed analysis of Australia’s 300 war crimes trials of principally Japanese accused conducted in the immediate aftermath of the Second World War. Part I contains contextual essays explaining why Australia established military courts to conduct these trials and thematic essays considering various legal issues in, and historical perspectives on, the trials. Part II offers a comprehensive collection of eight location essays, one each for the physical locations where the trials were held. In Part III post-trial issues are reviewed, such as the operation of compounds for war criminals; the repatriation of convicted Japanese war criminals to serve the remainder of their sentences; and reflections of some of those convicted on their experience of the trials. In the final essay, a contemporary reflection on the fairness of the trials is provided, not on the basis of a twenty-first century critique of contemporary minimum standards of fair trial expected in the prosecution of war crimes, but by reviewing approaches taken in the trials themselves as well as from reactions to the trials by those associated with them. The essays are supported by a large collection of unique historical photographs, maps and statistical materials. There has been no systematic and comprehensive analysis of these trials so far, which has meant that they are virtually precluded from consideration as judicial precedent. This volume fills that gap, and offers scholars and practitioners an important and groundbreaking resource.

Detention of Non-State Actors engaged in Hostilities: The Future Law explores legal dilemmas facing detention management during military missions overseas. Armed forces increasingly find themselves facing non-international armed conflict with non-state actors, such as insurgents, terrorists or other civilians, whom they might be permitted to kill or capture in some circumstances.

The book considers the legal powers of military forces to apprehend non-State actors and to hold them in ongoing detention or to transfer them to judicial authorities for prosecution. It deals with both theoretical approaches and practical case studies concerning management and treatment of detainees. It concludes by synthesizing the options and delivering a detailed set of guidelines that are proposed as emerging norms for the detention of non-state actors in an armed conflict.

In this study, Heike Niebergall-Lackner discusses the classical military offence of desertion from the standpoint of international law.
Taking account of the three factual situations that might arise following a desertion in international armed conflicts - capture by the home country, capture or crossing over to the enemy party, and seeking refuge in a country not involved in the conflict – the examination offers a comprehensive overview of the treatment and the protection afforded to deserters under international human rights law, international humanitarian law and refugee law.

The examination is conducted against the background of the duties of soldiers under modern international law and shows that, depending on the legality of the conflict, desertion might represent the legitimate decision of the individual to act in accordance with these duties.

In Starvation as a Weapon Simone Hutter explores, within the framework of international law, the legality of using deliberate starvation as a means to an end. A close look at modern famine shows that, in many cases, food scarcity is not the product of coincidence, but a side effect or result of a deliberate strategy. Starvation is an efficient instrument when used to exert pressure and power, in times of war and peace.
Simone Hutter demonstrates how international human rights law and international humanitarian law prevent deliberate starvation as a means of achieving political goals. She focuses on highly divisive and under-discussed instances in which states deploy deliberate starvation domestically, i.e. within the state’s own national territory.

During the last decade, the image of war correspondents in the news has shifted dramatically. Reports are no longer full of cheerleading stories of embedded journalists. Instead, stories of war reporters being attacked, kidnapped or injured prevail. Sadly, the former heroic witnesses to war have become victims of their own story.
In this book, Nina Burri provides the first comprehensive analysis on how international law protects professional and citizen journalists, photographers, cameramen and their support staff during times of war. Using examples from recent armed conflicts in Iraq, Libya, Gaza and Syria, Burri explores the means, methods and risks of contemporary war coverage and examines the protection of news providers by international humanitarian law, international criminal law and human rights law.

Although working on the sidelines of armed conflicts, physicians are often at the centre of attention. First Do No harm: Medical Ethics in International Humanitarian Law was born from the occasionally controversial role of physicians in recent armed conflicts and the legal and ethical rules that frame their actions. While international humanitarian, human rights and criminal law provide a framework of rights and obligations that bind physicians in armed conflicts, the reference to ‘medical ethics’ in the laws of armed conflict adds an extra-legal layer. In analysing both the legal and the ethical framework for physicians in armed conflict, the book is invaluable to practitioners and legal scholars alike.

‘Operational incidents’ denotes misconduct, misdeeds or mishaps that occur on military operations, whether concerning the mistreatment of enemy soldiers, offences against civilians, conflict of varying levels within one’s own forces, or accidents that lead to injury or death within a theatre of operations. Alleged breaches of IHL or the disciplinary regulations of particular militaries require at the very least an initial assessment to determine the facts and then, if warranted, a more substantial investigation. The need for robust investigations, however, is not always matched by the will and the ability to undertake them. There is at last a sufficient body of experience on which we can reflect, in this volume, on such investigations, their challenges, and their likely evolution.

In Sexual Exploitation and Abuse by UN Military Contingents: Moving Beyond the Current Status Quo and Responsibility under International law Róisín Burke explores the legal, conceptual and practical difficulties of dealing with sexual offences committed by military contingent personnel deployed on UN peace operations. Some of the inadequacies of current legal frameworks for dealing with such abuses are examined. The book addresses the difficulties with applying international humanitarian law, human rights law and/or international criminal law in this context, and the broader issue of state/international organization responsibility. The book proposes policy options to increase accountability both for perpetrators and for troop contributing nations otherwise indifferent to the crimes of their national contingents.

Increasingly, war is and will be fought by machines – and virtual networks linking machines - which, to varying degrees, are controlled by humans. This book explores the legal challenges for armed forces resulting from the development and use of new military technologies – automated and autonomous weapon systems, cyber weapons, “non-lethal” weapons and advanced communications - for the conduct of warfare. The contributions, each written by scholars and military officers with expertise in International Humanitarian Law (IHL), provide analysis and recommendations for armed forces as to how these new technologies may be used in accordance with international law. Moreover, the chapters provide suggestions for military doctrine to ensure continued compliance with IHL during this ever-more-rapid evolution of technology.

Although it is precious to all humanity, including future generations, cultural property is targeted wilfully during armed conflict. In the litany of other war crimes the wilful destruction of cultural property is pushed from centre stage. The deliberate destruction of the Old Bridge of Mostar is emblematic of tragedies wrought on priceless cultural objects internationally. Drawing on the relevant rules of international humanitarian law and the jurisprudence of the International Criminal Tribunal for the former Yugoslavia, this book analyses the normative implications of the deliberate targeting and destruction of the Old Bridge and also examines enforcement efforts in order to identify issues relating to international legal protection of cultural property arising from this incident.

This volume continues the work of the Preparatory Commission of the International Criminal Court by developing ‘elements’ for ordering, instigating and aiding and abetting the commission of international crimes under Article 25(3)(b) and (c) of the Rome Statute. The development of proposed elements for these accessorial modes of liability is necessary because while detailed elements for the substantive crimes within the jurisdiction of the Court were identified in the ‘Elements of Crimes’, no such elements were elaborated for the modes of liability in those crimes. The proposed elements in this volume break new ground and are designed to assist the ICC in applying the provisions of the Rome Statute to the cases before it for trial with consistency and accuracy.

The idea of building a blueprint ‘rule of law’ through military intervention has seized the imagination of practitioners and theorists alike in the past decade of peacebuilding operations, and an emphasis on simultaneous judicial reconstruction and security sector reform has emerged as their central strategy. This work, in a fresh approach based on recent military operations in Iraq and beyond, challenges both the universality of the blueprint and the doctrinal assumption that institutional reform by military interveners builds peace and legitimacy. In a comprehensive review, the essential role of the community in developing its own relationship with law, while interveners refocus exclusively on restoring public security using their extraordinary powers under international humanitarian law, emerges as the only future for ‘rule of law operations.’

Sexual violence is a particular brand of evil that women have endured—more than men—during armed conflicts, through the ages. It is a menace that has continued to challenge the conscience of humanity—especially in our times. At the international level, basic laws aimed at preventing it are not in short supply. What is needed is a more conscious determination to enforce existing laws. This book explores ways of doing just that; thereby shoring up international legal protection of women from sexual violence in armed conflicts.

Forcible displacement transforms cultures and can even lead to their destruction. Beginning with the origins of the human species millions of years ago and ending up in our present day era, this book analyses examples of forcible displacement in order to examine the crime in its many different forms. The legal contours of the crime receive a comprehensive treatment, including the experience of the international tribunals and decades of scholarly work in the area. The authors suggest that a paradigm shift is needed in order to bring development-induced displacement into the mainstream discourse on forcible displacement. The book concludes with a proposal for a new convention for the prevention and punishment of the crime of forcible displacement.

International law has lacked a widely-accepted definition of armed conflict despite the essential human rights and other rules that depend on such a definition. During armed conflict, government forces have “combatant immunity” to kill without warning. They may detain enemy forces until the end of the conflict without the requirement to provide a speedy and fair trial. Governments may have asylum obligations or neutrality obligations based on the existence of armed conflict. To fill this gap in our knowledge of the law, the International Law Association's Committee on the Use of Force produced a report on the meaning of armed conflict. This book contains the report and papers delivered at an inter-disciplinary conference designed to inform the committee from a variety of perspectives.

The International Criminal Court (ICC) plays a particularly delicate role in situations of ongoing armed conflicts, both from a legal and a political perspective. While the primary objective of the ICC Statute is to end impunity, States Parties and the UN Security Council were mainly driven by political considerations when they triggered ICC jurisdiction over the situations in northern Uganda and Darfur. In this book, the author discusses strategies within the legal framework governing the Court to counter such politicization. He concludes that although the ICC can have beneficial effects on ongoing armed conflicts, its primary raison d’être should not be to influence politics but to continue to fight impunity in the long run.

Taking the April 2003 rejection by Israel's Supreme Court of a petition to ban flechette use rounds in the densely populated Gaza Strip as its point of departure, this innovative and interdisciplinary book offers the only in-depth study on flechette weapons conducted to date. Its timeliness is demonstrated in the 2009 Goldstone Report’s call for an urgent UNGA discussion on such weapons’ future legality. The book's first part reviews flechette weapon development and use during the Vietnam War as well as the consequent efforts to ban them. It then turns to the Israeli case: the use in Lebanon, the Gaza Strip and the resulting Supreme Court petition. The book's third and main part dissects the prolonged debate over banning flechettes while resting on unique primary sources such as Israeli post mortem reports together with an ample legal and military-medical literature. The book thus provides one of the most comprehensive explorations available of the distinctions separating legal from illegal conventional weapons.

The Law of Armed Conflict traditionally regulates the actions of States and armed groups, as well as individuals who participate in hostilities. It is increasingly evident that there are significant legal issues regarding the application of this law to the activities of International Military Missions, especially with regard to United Nations forces and other international organisations because it is unclear how their activities are regulated by traditional sources of International Law. The book explores the legal developments in addressing this challenge, including pertinent issues of human rights and international criminal law, elucidating the rights and obligations of all the actors, including States, international organisations and individuals, involved in International Military Missions.

This book is at heart a guide on how to best approach the management of an internally-led peace implementation process after a violent intrastate conflict. It explains the principal tasks, legal framework and management implications of internal peace implementation and illustrates this with many examples of best practice as well as possible pitfalls. The book integrates a broad analysis of current academic research with a substantial number of interviews with experts from the field.

With a foreword by Nobel Peace Prize Laureate President Martti Ahtisaari.

The aim of this new collection of essays is to engage in analysis beyond the familiar victor’s justice critiques. The editors have drawn on authors from across the world — including Australia, Japan, China, France, Korea, New Zealand and the United Kingdom — with expertise in the fields of international humanitarian law, international criminal law, Japanese studies, modern Japanese history, and the use of nuclear, chemical and biological weapons. The diverse backgrounds of the individual authors allow the editors to present essays which provide detailed and original analyses of the Tokyo Trial from legal, philosophical and historical perspectives.

Several of the essays in the collection are based on the authors’ extensive archival research in Japan, Australia, the United States and New Zealand, providing rich insights into Japanese societal attitudes towards the Trial, biological experimentation by the Japanese Army in China, as well as the trial of Korean prison guards and prosecutions for rape and sexual assault in the post-war period. Some of the essays deal with particular participants in the Trial, examining the role of individual judges, and the selection of defendants and the decision not to prosecute the Emperor. Other essays analyse the Trial from a legal perspective, and address its impact on concepts such as command responsibility, conspiracy and war crimes. The majority of the essays seek to identify and address some of the ‘forgotten crimes’ in the Tokyo Trial. These include crimes committed in China and Korea (particularly the activities of the infamous Unit 731), crimes committed against comfort women, and crimes associated with the atomic bombings of Hiroshima and Nagasaki, the conventional firebombing of other Japanese cities and the illicit drug trade in China. Finally, the collection includes a number of essays which consider the importance of studying the Tokyo Trial and its contemporary relevance. These issues include an examination of the way in which academics have ‘written’ the Trial over the last 60 years, and an analysis of some of the lessons that can be drawn for international trials in the future.

In 2009 it was ten years since the adoption of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of an Armed Conflict. To celebrate this anniversary, a variety of contributions, focussing on the legal and cultural aspects of the Protocol are presented by Van Woudenberg and Lijnzaad. The innovative aspects of the Second Protocol such as enhanced protection, criminal responsibility and jurisdiction, and the protection of cultural property in armed conflicts not of an international character are addressed. Some country-specific studies are included. It is hoped that this publication will inspire States to accede to the Protocol and that it will serve as a source of inspiration to legal advisers, military personnel and cultural property experts.

While all armed conflicts are marked by violations of international humanitarian law, non-international armed conflicts appear to be characterised by even more serious violations of international humanitarian law on a colossal scale. This study is aimed at understanding the possible factors that may cause parties to non-international armed conflicts to engage in violations despite the fact that not only international humanitarian law but also other bodies of rules (e.g. legal and moral) impose restrictions and obligations similar to international humanitarian law. Somalia, which for over two decaces has been experiencing internal armed conflicts marked by widespread violations, is a typical case.

This study addresses the root causes of the internal armed conflict in Somalia and identifies factors which contributed to the collapse of the Somali state and the reasons for its continuing conflict. It also examines the characteristics of the conflict. In order to examine the extent to which applicable rules have been respected or not, the study examines both international rules applicable in non-international armed conflicts and specific Somali rules of warfare. After demonstrating evidence of violations and analysing it, this study seeks to identify possible direct and indirect causes of these violations. In addition, it also seeks to identify whether such possible causes contribute to violations that are unique to the situation in Somalia, or, if not, whether there may be lessons to be learnt for other situations similar to that in Somalia.

This work reconsiders and critically evaluates the complex international legal framework which seeks to regulate wars of national liberation in the light of two fascinating case studies. It tests the effectiveness of both the jus ad bellum and jus in bello aspects of the current legal framework by applying it to self-determination wars waged in the South Moluccas and Aceh by armed groups against Indonesia. The book highlights the various difficulties inherent in the current legal framework as well as the ad hoc and unpredictable practice of States in relation to its application. The work concludes with recommendations on how the current framework should be updated and enhanced so that it can adequately deal with modern self-determination conflicts.

During most of human history, war was a basic instrument of statecraft, considered, for the most part, a lawful, honorable, ennobling, and even romantic pursuit. By contrast, peacemaking remained a marginal and indeed incongruous interstate activity. A war would end when the belligerents ended it.
The experience of the twentieth century’s two world wars has changed, at least, the official view. The introduction of ever more destructive weapons, the drastic escalation of civilian deaths, and the economic and environmental devastation that modern war brought combined to forge an international legal impulse to stop, if not prevent, wars, resolve ongoing conflicts, and build peace.
Yet stopping a war, though a useful, if not indispensable, step toward making peace, does not lead ineluctably to peace. Nor does the international community’s interposition of “peacekeepers”; their title notwithstanding, peacekeepers only try to keep a stopped war stopped. Making peace is a separate operation, often applying some parts of the same armamentarium but in very different ways.
International efforts at stopping wars and making peace, in the era in which such initiatives have become lawful and virtuous, have proved remarkably unsuccessful. Yet the proliferation of ever more destructive weapons, the growing sense of insecurity and expectation of violence, the increasing difficulty of containing wars within a single arena, the threat of breakdown of order, with the prospect of epidemics and mass migration, all work to intensify the demand to stop wars and to make peace.
This volume explores these issues by analyzing the theoretical literature on stopping wars and making peace and its application to a number of concrete cases, including the Falklands, Nagorno Karabakh, Rwanda, Malaya, Thailand, and Mozambique. Each case examines one conflict and the efforts undertaken to stop it and transform it into a peace system. The case studies draw general lessons from the incidents studied, extracting guidelines and principles that might serve those called upon to stop wars and make peace and offering a number of instructive points.

Armed conflict is about using force to achieve goals. As international humanitarian law regulates the means and methods that a belligerent may adopt to achieve its goals, there will inevitably be disagreements over the interpretation of that law. As for the rules that regulate targeting, the main difficulties arise over what is a lawful target and what is proportional collateral damage. This book provides a detailed analysis of those issues. Also, a chapter is dedicated to considering how United Nations Security Council sanctioning of participation in an armed conflict might affect the range of lawful targets available to a belligerent. Finally, a process is described by which legal responsibility for targeting decisions can be assessed in a complex decision-making environment.

This book examines UN naval peace operations, addressing the construction and assessment of authority with respect to a range of acts essential to the conduct of such operations. The focus is particularly upon operations as they relate to and impact upon the Territorial Sea. Within a conceptual approach emphasising the interaction of power and legitimation in the construction of authority, naval peace operations issues such as Innocent Passage, interdiction operations, and transitional administration are considered. The book concludes by proposing a conceptually and operationally sensitive approach to constructing authority for the conduct of UN naval peace operations in the Territorial Sea.

Security is an all-encompassing term of art which is subject to diverse interpretations and understandings. It includes notions of protection against transnational threats, including terrorism, inter- and intra-state conflict, nuclear proliferation, forced migration, violation of women’s rights, climate change, etc. The papers in this collection provide fresh voices in the security debate, uniting scholars from different fields of law and philosophy to address normative gaps in interpretation, evolution and application. Part I considers calls for an expanded mandate for the UN Security Council and regional international organisations. Part II reviews innovations within the arena of international humanitarian law, including whether it is possible to balance human rights and humanitarian law standards in peacekeeping operations, responses to “voluntary human shielding”, and normative evolution in the removal of anti-personnel mines and the ban on cluster munitions. Part III embarks upon the realm of Ethics and Democracy: assessing the engagement of private soldiers and the legitimacy of targeted strikes pursuant to the “responsibility to prevent terrorism”. It also considers internal conflicts within the notion of “democratic security”, affirms the procedural guarantees of habeas corpus and non-refoulement as central elements of global justice, and calls for evaluation of gender equity as a measure of state fragility. Part IV confronts the global challenge of climate change as a security threat. Finally, Part V provides a practitioner’s perspective which discusses possible grounds for a gap between academics and security practitioners.

This impressive and unique collection of essays covers important aspects of the legal regime of the International Criminal Court (ICC). The volume begins with an analysis of the historical development of the ICC, the progressive development of international humanitarian and international criminal law by the ad hoc Tribunals and the work of mixed national/international jurisdictions. The legal and institutional basis of the ICC is then dealt with in detail, including the organs of the ICC, war crimes, crimes against humanity and crimes of aggression, modes of liability before the ICC and defences before the ICC. Part III focuses on the court at work, including its procedural rules, criminal proceedings at the ICC, penalties and appeal and revision procedures. Part IV deals with the relationship of the ICC with states and international organizations. The contributors are established scholars in the field of international criminal and humanitarian law, many of whom are practitioners in the various tribunals.

More than ever before International Humanitarian Law needs to find new solutions to new types of conflicts. The current state of the fight against terrorism is without doubt one of the new problems facing international society and one of the concerns of International Humanitarian Law.
This volume offers reflections on the international legal theory of terrorism, international responsibility, the obligation to prevent terrorist acts, terrorism in armed conflicts, the responses to terrorism by regional international organizations and the legal limits to the fight against terrorism.
The contributors consist of academics (and politicians) from Morocco, Algeria, Egypt, Tunisia, Lebanon and Israel, as well as from Spain, Italy, France, the United Kingdom, Switzerland and a representative for the Organisation of American States. The book thus contains a wide, multidisciplinary debate, with an emphasis on a Mediterranean perspective.
In addition to examining all aspects of international terrorism, the objective of the symposium which gave rise to these essays was to establish some guidelines, in the form of a Declaration, to serve as the basis for the UN’s High Level Group for the Alliance of Civilisations on the subject of international terrorism. This overall objective was achieved with the adoption of the Huelva Declaration for an Alliance of Civilisations against Terrorism, the text of which is included at the end of this book.

The authors of this volume have been inspired by the scholar to which this Liber Amicorum is dedicated - Professor Ove Bring - to look into both the past and the future of international law. Like Ove Bring, they have dealt with many aspects of the law governing the use of force, from arms control to human rights, international criminal law, the UN Charter, and, of course, international humanitarian law. Like Professor Bring, they have allowed themselves to draw trajectories from history and into the future, and have shunned away from neither the controversial nor the speculative, be it on the Middle East, the invasion of Iraq or the independence of Kosovo.
This collection brings together insights from a former UN Legal Counsel, a former Executive Chairman of UNMOVIC, present and former judges of the European Court of Justice, the International Criminal Tribunal for the former Yugoslavia and the International Tribunal for the Law of the Sea, one present and one former member of the International Law Commission, as well as law professors and practitioners, from all Nordic countries, Germany and Australia. Together they form a highly challenging mosaic of perspectives on topical issues like cluster munitions, targeting, human rights in peace operations and the purposes of sentencing in international tribunals.

The volume also contains a bibliography and a presentation of Professor Bring's work.

Death and destruction are unavoidable effects of war and combat situations. The fact that people have been killed or injured or property has been destroyed should not encourage anyone to rush to the conclusion that war crimes have been committed. On the contrary, before reaching such a conclusion, it is necessary to carefully analyze the conduct of the person causing death, injury or damage in order to ascertain whether such conduct is consistent with international humanitarian law.

Technology, law and public opinion on what is acceptable has greatly evolved since World War II. The issue of civilian damage caused in combat operations has become an important topic in public opinion since Operation Desert Storm in 1991. Public pressure to limit incidental civilian damage has notably increased following the NATO aerial campaign in Kosovo in 1999 and the subsequent conflicts in Afghanistan in 2001, Iraq in 2003 and Lebanon 2006.

Unlawful Attacks in Combat Situations focuses on the manner in which unlawful attacks launched during the conduct of hostilities have been dealt with in the Rome Statute of the International Criminal Court, the international treaty which, to date, deals most comprehensively with war crimes committed in international and non-international armed conflicts, and in the case law of the International Criminal Tribunal for the Former Yugoslavia, the first international judicial body that has investigated and prosecuted crimes committed during the conduct of hostilities since World War II.

In this new collection of essays the editors assess the legacy of the Nuremberg Trial asking whether the Trial really did have a civilising influence or if it constituted little more than institutionalised vengeance. Three essays focus particularly on the historical context and involve rich analysis of, for example, the atmospherics of the Trial itself and the attitudes of German society at the time to the conduct of the Trial.
The majority of the essays deal with the contemporary legacies of the Nuremberg Trial and attempt to assess the ongoing relevance of the Judgment itself and of the principles encapsulated in it. Some essays consider the importance of the principle of individual criminal responsibility under international law and argue that the international community has to some extent failed to fulfil the promise of Nuremberg in the decades since the Trial. Other essays focus on contemporary application of aspects of the substantive law of Nuremberg - particularly the international crime of aggression, the law of military occupation and the use of the crime of conspiracy as an alternative basis of criminal responsibility. The collection also includes essays analysing the nature and operation of a number of international criminal tribunals since Nuremberg including the permanent International Criminal Court. The final grouping of essays focus on the impact of the Nuremberg Trial on Australia examining, in particular, Australia’s post-World War Two war crimes trials of Japanese defendants, Australia’s extensive national case law on Article 1(F) of the Refugee Convention and Australia’s national implementing legislation for the Rome Statute.

International law and armed conflict exist in a symbiotic relationship. In some cases, law shapes conflict proactively by imposing normative limits in advance of the appearance of proscribed conduct. Much more commonly, armed conflict either reveals lacunae in the law or demonstrates how law designed for yesterday’s wars falls short when applied to contemporary conflict. When that happens, international law reacts by allowing provisions to fall into desuetude, embracing new interpretations of existing prescriptions, or generating new norms through practice or codification.
In the 21st Century, both international security and armed conflict are the subject of arguably unprecedented sea changes. As a result, claims that both the jus ad bellum and jus in bello are unwieldy and ill-fitting in the context of modern hostilities have surfaced prominently. Whether one agrees with such dire assessments, what has become clear is that armed conflict is increasingly exposing faultlines in the law governing the resort to force.
The intent of this collection of essays in honour of Professor Yoram Dinstein on the occasion of his 70th birthday is to explore such faultlines, first by identifying them and then by assessing their consequences. In a sense, then, the essays, contributed by the top minds in the field, will serve to assist academics and practitioners to anticipate pressure on the law governing armed conflict and, to the extent possible, react accordingly. Paralleling Professor Dinstein’s classic works – War, Aggression, and Self-Defence and The Conduct of Hostilities Under the Law of International Armed Conflict − the book addresses both ius ad bellum and ius in bello topics.

The papers collected in this volume span a 35-year period of active involvement in the ‘reaffirmation and development of international humanitarian law’. A process under that name started in 1971 and ended in 1977 with the adoption of two Protocols Additional to the Geneva Conventions of 1949, one for international and one for internal armed conflicts. Subsequent developments brought a narrowing of this gap between international and internal armed conflicts, as well as growing recognition of the interplay between the law of armed conflict and human rights, the rediscovery of individual criminal liability for violations of international humanitarian law, the introduction of further prohibitions or restrictions on the use of specified weapons, and so on.
In contrast with these positive developments, the period was negatively characterised by increasing disrespect, not only for some or other minor rule (such as what to do with cash taken from a prisoner of war at the time of his capture) but for the very principles underlying the entire body of the law of armed conflict: respect for the other as a human being and, hence, humane treatment of prisoners of war and other detainees, protection of civilians…
Throughout the period, the author’s activities ranged from participation in lawmaking and law interpreting exercises, through attempts at explaining the law of armed conflict in its historical context and making propaganda for its faithful implementation, to critical or even bewildered observance of actual events. The papers brought together here reflect these diverse angles.

The 1994 Convention on the Safety of United Nations and Associated Personnel (Safety Convention) was the first multilateral convention to deal specifically with the protection of personnel engaged in peace operations. It should be viewed against the background of the increasingly volatile environments in which peace operation personnel were required to operate at the beginning of the 1990s. An Optional Protocol, extending the automatic application of the Safety Convention to new categories of operation, was adopted in December 2005.
Protection, which a host government is responsible for securing for personnel in peace operations, may be categorised as general and special protection. The former includes, for example, human rights law and international humanitarian law. The latter comprises privileges and immunities accorded to agents of states or organisations.
The contribution of the Safety Convention is mainly one of interstate penal law co-operation. States parties are obligated to co-operate in order to effectively prosecute the perpetrators of stipulated crimes. The protection afforded by the Safety Convention may therefore be categorised as being part of an emerging legal regime against impunity.
An effective protection needs to address the specific challenges surrounding peace operations. Some of these challenges, identified in this study, are related to the interplay between the rules of peace and war as well as responsibility and accountability of protected personnel. It is also contended that there is a need for an effective implementation of existing rules, and a careful development of so-called status-of-forces agreements applicable in peace operations.

The purpose of this work is to trace the processes that led and continue to lead to the formation of the treaty norms applicable in non-international armed conflicts. If the purpose of humanitarian law is to achieve a balance between military necessity and humanitarian considerations and to prevent unnecessary suffering and destruction, humanitarian law rules should be equally applicable to both international and internal armed conflicts. Whilst, however, there are a huge number of treaty provisions applicable to international armed conflicts, very few provisions are specifically designed to regulate non-international armed conflicts despite the dramatic increase in the number of such conflicts. The study investigates the reasons behind the differences by analysing, inter alia, questions such as: Where does the international law of internal armed conflicts come from? Why did it evolve differently from the law regulating international armed conflicts? Where is the international law of internal armed conflicts going?

The papers in this collection bring together a wide and diverse range of viewpoints to consider how the catastrophic consequences of deadly armed conflict can be addressed.
Commentators are drawn from the United Nations and its agencies, key non- governmental organisations, world-class academic circles, senior members of government, leading human rights lawyers and judges with experience in international criminal law. These experts address deadly conflict in a comprehensive fashion covering all its stages: the causes and prevention of conflict; conflict resolution and peace-building; international criminal law and international humanitarian law and the role of the United Nations, humanitarian organisations and peacekeepers in post conflict situations.
This collection is for those with an existing interest and expertise in international law, international relations, peace studies and criminal justice as well as for those who wish to become conversant with emerging developments in these fields.

This book is dedicated to the memory of Sir Richard May, who passed away on 1 July 2004, and to the rich legacy he has left behind in the area of international criminal law. It contains in-depth analyses of a range of issues critical to the development and understanding of international criminal law, written by contributors who worked in some way with Sir Richard during his tenure at the ICTY, particularly during his last years as Presiding Judge of the Milošević Trial. It contains a Foreword by the President of the ICTY, Theodor Meron, and substantive work in three main parts: one chapter concerning the development and understanding of human rights; five chapters addressing international criminal law issues in the context of ICTY proceedings; and two chapters focusing on substantive aspects of international criminal law. All the chapters analyse international criminal law as applied by the ICTY, as well as the ICC, ICTR and other international or hybrid criminal tribunals, and are all authored by persons in a position to give great insight into the subject matter discussed.