The Handbook of Humanitarian Law in Armed Conflict

By Schmitt, Michael | Naval War College Review, Summer 1998 | Go to article overview

The Handbook of Humanitarian Law in Armed Conflict


Schmitt, Michael, Naval War College Review


Fleck, Dieter, ed. The Handbook of Humanitarian Law in Armed Conflict.

New York: Oxford Univ. Press, 1995. 589pp. $135

In 1992 the German Bundeswehr issued its law of armed conflict manual, Humanitarian Law in Armed Conflicts (Joint Service Regulations 15/2). As an official statement of the legal norms that Germany (a key Nato member and pivotal player in the international arena) believes applicable in armed conflict, the manual necessarily helps refine, clarify, and reinforce the content of humanitarian law. The Handbook of Humanitarian Law in Armed Conflict complements this process; it is an unofficial commentary on the manual's provisions by an impressive array of European scholars and practitioners. Under the editorial direction of Dieter Fleck, the German Ministry of Defence's noted international law expert, the group has produced a comprehensive analysis of the subject, one which is easily equal to anything else currently available.

Christopher Greenwood opens the book with a superb chapter discussing the historical development of humanitarian law. Focusing first on the ius ad bellum (the law governing the resort to force), Greenwood broadly interprets the UN Charter Article 2(4) limitations on the use of force by restricting them to situations involving enforcement actions under Chapter VII or self/collective-defense under Article 51. He extends the latter right to actions against terrorists when the underlying terrorism would allow a forceful response if committed by a state. Greenwood also contends that self-defense may be undertaken anticipatorily (when the threatening act is imminent but still prospective), reasonably asserting that the real issue is not whether it is permitted but rather at what point in time. With regard to the controversial issue of humanitarian intervention, he guardedly suggests that the interventions to protect Iraqi civilians may reflect the emergence of a new permissive norm in response to "extreme humanitarian necessity."

Turning to the ius in bello (law governing activities during armed conflict), Greenwood argues that differences among Nato allies in the applicability of various treaty regimes, particularly Protocol I Additional to the Geneva Conventions, have been exaggerated. Citing disputes over reprisals and restrictions on striking dams, dikes, and nuclear electrical-generating stations, he suggests that they are in the end "unlikely to present insuperable obstacles for NATO." He also advances the proposition that in the Charter era, the principle of necessity-long a ius in bello principle limiting the amount of force used to that necessary to subdue the enemy-has taken on ius ad bellum implications. By his interpretation, articles 2(4) and 51 were intended to survive the outbreak of hostilities. Therefore, only that force necessary to defend oneself with sufficient surety is permitted, absent authorization otherwise as part ofa Chapter VII enforcement action. This may or may not allow the complete defeat of one's enemy.

In the chapter on combatants and noncombatants, Knut Ipsen attempts to clarify the manual's somewhat muddied distinction (perhaps merely a result of translation from the original German) between the terms. He also provides an interesting discussion of the German application of the controversial Protocol I provision eliminating, under certain circumstances, the requirement that combatants wear uniforms or display distinctive emblems when engaging in hostilities. The United States opposes this provision, as well as another accepted by the Germans that severely limits the applicability of combatant status to mercenaries.

A highlight of the book is clearly Stefen Oeter's commentary on methods and means of warfare. He begins with an excellent introductory discourse detailing the development of modem limitations on them, and he offers as well a useful section on the relationship between treaty and customary law. Of particular note is his analysis of nuclear weapons.

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