Abstract
This is an analytical study of several LOAC manuals in which the author was personally associated in the past quarter of a century. These manuals consist of informal non-binding codifications of the lex lata regulating the conduct of hostilities in chosen fields such as sea or air warfare. Their rationale is guiding both practitioners and legal advisers in areas where the law is not self-evident. The principal purpose is to articulate existing customary international law, but obviously treaty law has to be woven in and assessed as either innovative (hence binding only on Contracting Parties) or declaratory of general custom. Drafting is done by international groups of experts in their private capacity, convened by international institutes or prodded by Governments. Either way, the texts produced must be framed in close consultation with Governments (the ultimate end-users). The manuals have demonstrated their fundamental value in the practice of States, being constantly cited in official publications and actually steering military training. Yet, since the lex lata does not remain frozen in time, manuals must be updated after lapse of time. As far as format is concerned, LOAC manuals are commonly comprised of black-letter rules (adopted by consensus) accompanied by explanatory commentaries (framed by smaller drafting committees).
1Tel Aviv University, Tel Aviv, Israel
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Notes
- 1.
San Remo Manual on International Law Applicable to Armed Conflicts at Sea 1995.
- 2.
San Remo Manual on the Law of Non-International Armed Conflict 2006.
- 3.
HPCR Manual on International Law Applicable to Air and Missile Warfare 2013.
- 4.
Oslo Manual on Select Topics of the Law of Armed Conflict 2020.
- 5.
Melzer 2009, pp. 17, 78.
- 6.
Dinstein 2012, pp. 3, 7.
- 7.
- 8.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (Additional Protocol I).
- 9.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (Geneva Convention I); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (Geneva Convention II); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (Geneva Convention III); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (Geneva Convention IV).
- 10.
In 1987, the US issued a formal announcement that it would not ratify Additional Protocol I, since the instrument is “fundamentally and irreconcilably flawed”. United States Government 1987, 561, 562.
- 11.
Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 1993, opened for signature 3 September 1992, 1974 UNTS 317 (entered into force 29 April 1997).
- 12.
Convention on Cluster Munitions, 2008, opened for signature 30 May 2008, 2688 UNTS 92 (entered into force 1 August 2010).
- 13.
Article 2(1)(a) of the Law of Treaties Convention defines treaty as “an international agreement concluded between States in written form”. Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 7 December 1978), Article 2(1)(a).
- 14.
Hudson 1950a, pp. 327, 336.
- 15.
Dinstein 2012, pp. 261–277.
- 16.
Dinstein 2013, pp. 72–85.
- 17.
The International Court of Justice referred to the priority of “States whose interests are specially affected” in ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment, 20 February 1969, (North Sea Continental Shelf Cases), p. 43.
- 18.
Oslo Manual on Select Topics of the Law of Armed Conflict 2020, above n. 4, at p. 7 (Commentary on Rule 7).
- 19.
On the lex specialis standing of LOAC, see Dinstein 2016, pp. 31–33.
- 20.
Dinstein 2006, pp. 243, 331–337.
- 21.
For an example of such criticism of an (ICRC) study of the customary nature of Additional Protocol I, see Bellinger and Haynes 2007.
- 22.
Dinstein 2006, n. 20, at p. 362.
- 23.
See HPCR Manual on International Law Applicable to Air and Missile Warfare 2013, n. 3, at pp. 379–80 (Rule 164 and Commentary).
- 24.
For a list of Reservations and Declarations made by Contracting Parties to Additional Protocol I, see Schindler and Toman 2004, pp. 792–818.
- 25.
United Nations Convention on the Law of the Sea, 1982, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994.
- 26.
Chicago Convention on International Civil Aviation, 1944, opened for signature on 7 December 1944, 15 UNTS 295 (entered into force on 4 April 1947).
- 27.
See San Remo Manual on International Law Applicable to Armed Conflicts at Sea 1995 n 1, at p. 93 (Preliminary Remarks on Part II, Section I).
- 28.
See HPCR Manual on International Law Applicable to Air and Missile Warfare 2013, n. 3, at 184–185 (Commentary on Rule 58).
- 29.
Oslo Manual on Select Topics of the Law of Armed Conflict 2020, n. 4, at pp. 1–17 (Rules 1–19).
- 30.
UK Manual of the Law of Armed Conflicts 2004, p. 330.
- 31.
San Remo Manual on International Law Applicable to Armed Conflicts at Sea 1995, n. 1, at pp. 192–193 (Rule 116 and Commentary).
- 32.
Dinstein 2008, pp. 387–402.
- 33.
Heintschel von Heinegg 2008, pp. 439–456.
- 34.
See, e.g., US Law of War Manual 2016, Department of Defense, General Counsel of the Department of Defense. Washington. It may be added that current prize practice can be spotlighted in Israel. There is an operative Prize Court in Haifa with several recent decisions, some eliciting important judgments on appeal by the country’s Supreme Court. For summaries of these Prize Judgments, see Lahav 2020, pp. 373–447. See also the Introduction in Shamir-Borer 2020, pp. 349–371.
- 35.
UK Manual of the Law of Armed Conflicts 2007, p. 367.
- 36.
Additional Protocol I, above n. 9, Article 28(4).
- 37.
San Remo Manual on International Law Applicable to Armed Conflicts at Sea 1995, n. 1, at p. 244.
- 38.
Ibid.
- 39.
HPCR Manual on International Law Applicable to Air and Missile Warfare 2013, n. 3, at p. 244.
- 40.
Oslo Manual on Select Topics of the Law of Armed Conflict 2020, n. 4, at p. 111.
- 41.
Ibid., at p. 112 (Commentary).
- 42.
HPCR Manual on International Law Applicable to Air and Missile Warfare 2013, n. 3, at p. 6.
- 43.
Oslo Manual on Select Topics of the Law of Armed Conflict 2020, n. 4, at p. 1.
References
Articles, Books and Other Documents
Bellinger J III, Haynes II WJ (2007) U.S. Joint Letter From John Bellinger III, Legal Adviser, U.S. Department of State, and William J. Haynes, General Counsel, U.S. Department of Defense to Dr. Jakob Kellenberger, President, International Committee of the Red Cross, Regarding Customary International Law Study. International Legal Materials 46: 511–531
Dinstein Y (2006) The Interaction between Customary International Law and Treaties. Recueil des Cours 322. Martinus Nijhoff, Leiden, pp 243, 331–337
Dinstein Y (2008) Comments on the UK Manual of the Law of Armed Conflict. In: Fischer-Lescano A et al (eds) Peace in Liberty, 1st edn. Nomos Verlagsgesellschaft, Baden-Baden, pp 387–402
Dinstein Y (2012) Direct Participation in Hostilities. Tilburg Law Review 18: 3, 7
Dinstein Y (2013) The Principle of Proportionality. In: Larsen KM, Guildhall Cooper C, Nystuen G (eds) Searching for a ‘Principle of Humanity’ in International Humanitarian Law. Cambridge University Press, Cambridge, pp 72–85
Dinstein Y (2016) The Conduct of Hostilities under the Law of International Armed Conflict, 3rd edn. Cambridge University Press, Cambridge, pp 31–33
Heintschel von Heinegg W (2008) Manoeuvring in Rough Waters. In: Fischer-Lescano A et al (eds) The UK Manual of the Law of Armed Conflict and the Law of Naval Warfare, Peace in Liberty 1st edn. Nomos Verlagsgesellschaft, Baden-Baden, pp 439–456
Hudson MO (ed) (1950a) Charter of the United Nations, 1945. International Legislation, Volume IX. Carnegie Endowment for International Peace, New York, pp 327, 336
Hudson MO (ed) (1950b) Statute of the International Court of Justice, Annexed to Charter of the United Nations, 1945. International Legislation, Volume IX. Carnegie Endowment for International Peace, New York, pp 510, 522
Lahav J (2020) Summary of Recent Cases of the Courts of Israel Relating to Prize Law and Israel’s Naval Blockade of the Gaza Strip. Israel Yearbook on Human Rights 50: 373–447
Melzer N (2009) Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. International Committee of the Red Cross, Geneva
Schindler D, Toman J (eds) (2004) The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents, 4th edn. Brill Academic Publishing, Leiden, pp 792–818.
Shamir-Borer E (2020) The Revival of Prize Law – An Introduction to the Summary of Recent Cases of the Prize Court in Israel. Israel Yearbook on Human Rights 50: 349–371
United States Government (1987) Message from the President Transmitting Protocol II Additional to the 1949 Geneva Conventions, Relating to the Protection of Victims on Noninternational Armed Conflicts. International Legal Materials 26: 561, 562
Manuals
HPCR Manual on International Law Applicable to Air and Missile Warfare (2013). Program on Humanitarian Policy and Conflict Research at Harvard University, Cambridge University Press, Cambridge
Oslo Manual on Select Topics of the Law of Armed Conflict (2020). Springer, Heidelberg
San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1995). International Institute of Humanitarian Law, San Remo
San Remo Manual on the Law of Non-International Armed Conflict (2006). International Institute of Humanitarian Law, San Remo
UK Manual of the Law of Armed Conflict (2004). UK Ministry of Defence, Oxford University Press, Oxford
UK Manual of the Law of Armed Conflicts (2007). UK Ministry of Defence, Joint Services Publication 383-Amended Text). The Joint Doctrine and Concepts Centre, Wiltshire
US Law of War Manual (2016). Department of Defense, General Counsel of the Department of Defense, Washington
Cases
ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment, 20 February 1969, (North Sea Continental Shelf Cases)
Treaties
Charter of the United Nations and Statute of the International Court of Justice, 1945
Chicago Convention on International Civil Aviation, 1944, opened for signature on 7 December 1944, 15 UNTS 295 (entered into force on 4 April 1947)
Convention on Cluster Munitions, 2008, opened for signature 30 May 2008, 2688 UNTS 92 (entered into force 1 August 2010)
Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 1993, opened for signature 3 September 1992, 1974 UNTS 317 (entered into force 29 April 1997)
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (Geneva Convention I)
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (Geneva Convention II)
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (Geneva Convention IV)
Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (Geneva Convention III)
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (Additional Protocol I)
United Nations Convention on the Law of the Sea, 1982, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994)
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 7 December 1978)
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Dinstein, Y. (2022). Law of Armed Conflict Manuals. In: Gill, T.D., Geiß, R., Krieger, H., Mignot-Mahdavi, R. (eds) Yearbook of International Humanitarian Law, Volume 23 (2020). Yearbook of International Humanitarian Law, vol 23. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-491-4_1
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