Susan Breau

Perspectives on the ICRC study on customary 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 Francoise 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 Francoise 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.

The Constitutionalization of the International Legal Order

A continuing debate within international law research is whether there is an emerging international constitutional order. This journal devoted an issue to this discussion and there have been a number of books and articles written on the subject. Indeed, the philosopher Jurgen Habermas has recently joined the debate by writing an essay entitled (in the English translation) ‘Does the Constitutionalization of International Law Still Have a Chance?’ The essay reminds the reader of constitutionalisms original philosophical roots in Kantian cosmopolitanism. Habermas argues that the world dominated by nation-states ‘is indeed in transition towards the postnational constellation of a global society’. He contrasts this vision with the realist opinion that the taming of political power through law is only possible within a sovereign state and with a more recent view postulating a vision of a liberal world order under the banner of Pax Americana. In support of the Habermas position, it can be argued that as a result of the UN 60th Anniversary Summits adoption of the international norm of ‘the responsibility to protect’, there is a trend towards constitutional values in our international system. As Anne Peters states, ‘[t]he most fundamental norms might represent global constitutional law.’

The responsibility to record civilian casualties

The responsibility to record civilian casualties in both armed conflict and civil disturbances must be an integral element of the responsibility to protect, particularly in the application of the just cause principles. The first part of this article examines the threshold issue of the possibility of large-scale civilian casualties which triggers the international community’s responsibility to react. The reports recommending the responsibility to protect emphasise the need to establish the actuality or risk of ‘large scale’ loss of life which is not possible in the current context without a civilian casualty recording structure. The second part of the article outlines the international legal obligation to record civilian casualties based on international humanitarian law and international human rights law. Thirdly, the responsibility to protect and the legal obligation to record casualties are brought together within the framework of Ban Ki-moon’s reports on implementation of the Responsibility to Protect. The fourth and final part of the article reviews the situations in Sri Lanka and Syria. Both states represent egregious examples of governments hiding the existence of casualties, resulting in paralysis within the international community. These situations establish, beyond doubt, that the national obligation to record civilian casualties must be part and parcel of the responsibility to protect.

Civilian Casualties and Nuclear Weapons: The Application of the Rule of Distinction

This chapter considers the possible use in armed conflict of low-yield (also known as tactical) nuclear weapons. The Legality of the Threat or Use of Nuclear Weapons Advisory Opinion maintained that it is a cardinal principle that a State must never make civilians an object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. As international humanitarian law applies equally to any use of nuclear weapons, it is argued that there is no use of nuclear weapons that could spare civilian casualties particularly if you view the long-term health and environmental effects of the use of such weaponry.

The Contribution of the Special Court for Sierra Leone to the Development of International Humanitarian Law

The Special Court for Sierra Leone has been mandated to try those with the greatest responsibility for serious violations of international humanitarian law, crimes against humanity and Sierra Leonean law committed on the territory of Sierra Leone since 30 November 1996. This article will analyse some of the significant jurisprudence emerging from this tribunal and the contribution these cases make to the clarification and development of international humanitarian law. There may be some disquiet that the Appeals Tribunal in some of the cases has been too restrictive with the requirements of culpability in the recruitment of child soldiers. Ultimately, it is submitted that these cases will provide excellent material for the future work of the International Criminal Court and other hybrid or national tribunals in their consideration of criminal charges resulting from the violation of the laws and customs of war.

Perspectives on the ICRC Study on Customary International Humanitarian Law: Table of cases

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 Francoise 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 Francoise 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.

Perspectives on the ICRC Study on Customary International Humanitarian Law: Frontmatter

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 Francoise 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 Francoise 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.

Perspectives on the ICRC Study on Customary International Humanitarian Law: Commentary on selected Rules from the ICRC Study

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 Francoise 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 Francoise 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.