International law arose in the mid nineteenth century when European powers determined to codify and formalize customary law, to restrain the use of violence in armed conflict, and to create certain protected categories of people. The Hague and Geneva Conventions formed the core of the emerging laws of war and international humanitarian law. While the Conventions have been breached at times, they still form one of the most widely accepted and long-standing aspects of international law. International humanitarian law and laws of war clarify and formalize the differentiation between civilians and combatants, regular and irregular forces, lawful and unlawful combatants. While international laws attempt to make the demarcation of these boundaries as precise as possible, the realities of war always undermine and undo such delineation efforts. Recently, there have been increasing efforts to regulate these gray areas and create international laws and agencies to regulate groups that elude classification.

We almost cannot think today about mass atrocities without Holocaust references. Holocaust analogies frame and enflame our ethical debates. Holocaust words dominate our humanitarian lexicon. Yet the deep linkage between the Holocaust and global justice is accompanied by a marked crisis of confidence in international law. Many question whether global legal institutions can ever prevent and properly punish atrocity crimes. The more we invoke the Holocaust, it seems, the less certain we become about the legal world built in its name. This chapter traces this development, from the first discussions of what would come to be called “genocide” in the 1930s, through private litigation geared toward restorative justice. Each legal mode of dealing with the Holocaust has served as a model for how to approach other atrocities, and each has been unavoidably politicized, despite law’s promise to depoliticize the response to political crimes.

This chapter explores the interaction between international human rights law (IHRL) and international humanitarian law (IHL), as well as international criminal law. It examines how IHRL influences the application and development of IHL and how human rights principles are integrated into international criminal procedures and substantive law. The chapter discusses the mutual reinforcement and potential conflicts between these branches of international law, highlighting the need for a coherent and integrated approach. It also explores the role of international courts and tribunals in applying and interpreting IHRL, IHL, and international criminal law, and the challenges in ensuring compliance and accountability.

The major European adversaries who fought World War I began by following offensive plans designed to win victory quickly, but all these failed. The war became one of grinding attrition, and by 1918, the European adversaries were exhausted. That year, the desperate Germans launched one last offensive to win the war on the Western Front, but it stalled. After the Allies drove the Germans back, fighting ended with the Armistice of November 11. This armistice was a German surrender in all but name. It disarmed German forces, demanded immediate withdrawal from all conquered territory, and imposed an Allied occupation of Germany west of the Rhine. The Treaty of Versailles elaborated the details, imposing staggering war reparations and German acceptance of guilt for the war itself. Much of the German population believed that German forces had not been defeated in battle, instead blaming German liberal politicians and Jews for undermining the war effort. This misconception contributed to the onset of World War II. World War I was the first war in which belligerents adhered to the Hague Conventions concerning the treatment of prisoners of war. There were abuses, but nothing like those that occurred in World War II.

Chapter 1 looks at the historical development of IHL, from its origins in Europe in the 1850s, and the historical events that have shaped the law through the last century and a half. It describes the effect of the Battle of Solferino in 1861 on Henri Dunant, leading to the founding of the International Committee of the Red Cross in Geneva, as well as the parallel development of the Lieber Code arising out of the American Civil War. The core treaties and other instruments forming the basis of modern IHL are outlined, from the 1864 Geneva Convention to the more recent development of international criminal law and its contribution to the law of armed conflict

The Conclusions reflect on the law outlined in Chapters 1−10. They recall that IHL is essentially an attempt to balance two fundamentally contradictory drivers – the need to wage war effectively, and the need to protect people and property from the excessive effects of warfare. It concludes that IHL largely succeeds in this endeavour, and that without IHL life for those caught up in armed conflict would be immeasurably worse. It notes, however, that while the fundamental principles of IHL are enduring, States can and should do more to develop new or more comprehensive laws where there is a need, such as the under-developed law of non-international armed conflict and the lack of regulation of certain weapons.

This chapter provides a brief overview of China’s engagement with international humanitarian law (IHL) since the late nineteenth century. It first looks back to the late Qing dynasty and follows it through to the early decades of the People’s Republic of China. It then examines China’s contemporary IHL practices, including China’s participation in IHL treaties, its domestic legislations, its approach to IHL training and education, as well as its participation in international rule-making processes. The chapter then focusses on developments of new technologies that have called into question the applicability, relevance and sufficiency of IHL. As IHL is in the process of being adapted, (re)interpreted and expanded, China is seeking to play a more active role in these processes. The chapter concludes with a reflection on China’s changing role and perspectives of its future engagements with IHL.

This chapter demonstrates that drone programs – the combination of legal narratives, shifts in military strategy, and technological change – bring about an anywhere war. Combat drones have been deployed against non-state actors extraterritorially, including on the territory of non-belligerent states, because of the presence on those territories of members of terrorist groups. To allow this, drone programs have involved the creation of concepts such as “outside areas of active hostilities” or “outside hot conflict zones.” These non-legal concepts posit that jus in bello applies wherever the belligerent is, including on the territory of a state where the hostilities are not taking place. This practice, accompanied with supportive legal and political rationales, has sparked a heated debate among scholars on the geographical scope of armed conflicts under the jus in bello. Departing from the normative discussion for or against a geographical limitation of conflicts, the chapter shows that there is no such a thing as a legal geographical limitation of conflicts in the law and that its absence is exploited by drone programs, whose technological features eventually create the prospect of an anywhere war taking place wherever the enemy is.

This chapter presents the fragmentation of law applicable to targeting in armed conflict, which spans international humanitarian law, international human rights law, and international criminal law. It discusses the interrelationships among these branches of law. Considering IHL’s most direct relevance to targeting in armed conflict, it reviews its material, geographical, temporal, and personal scope. It addresses the foundations of IHL, including the relationship between the principles of humanity and military necessity, as well as the perception of IHL as a regime that authorizes rather than restricts attacks, and also the principle of equality, theoretically designed to ensure implementation of IHL. In the final part of the chapter, the definitions of the central terms used throughout this monograph are discussed – namely that of attack and permissible degree of force to be used against lawful targets – and the restrictions on means and methods of warfare in the same context.

Amid the emergence of modern warfare at the end of the nineteenth century, states agreed on a model to regulate armed conflicts centered on a body of internationally agreed norms known as international humanitarian law (IHL). While states have always been the sole law makers and are ultimately responsible for the implementation of the laws of war, the International Committee of the Red Cross placed itself at the very center of the new model, as the champion of IHL, filling the gaps in terms of sponsoring new rules, promoting the law, and monitoring its application in war zones. This unique model of governance was composed of states and independent humanitarian actors and combines features of a hierarchy and a network. While the model saved countless numbers of lives, it has been perpetually challenged, criticized, and violated. The model stood the test of time nonetheless and survived the conflicts of the twentieth century. It is still enduring today. This chapter analyses the reasons for the longevity of the model, looking at its evolution over time in terms of key moments, efficacy and legitimacy, changing composition, and growing complexity.

Chapter Four charts the emergence of human dignity in the context of international humanitarian law, providing the setting for its first constitutive stage. It begins in the second half of the nineteenth century, with human dignity’s symbolic entrance into the fabric of international law with the adoption and entry into force of the Hague Law (Martens Clause, 1899 and 1907 Conventions). The process to impose legal restraints on the conduct of hostilities preceded the Martens Clause and the actual consolidation of this stage was only completed in the aftermath of the Second World War with the watershed represented by the adoption of the Four Geneva Conventions in 1949 and, subsequently, the two Additional Protocols of 1977. Thus, this historical process extends over more than a century, with a range of different legal manifestations which can singled out as the key milestones.

Chapter 3 orients the student to the basics of LOAC as it exists on today’s battlefields. It moves from long-past history to modern, even contemporary, history by relating today’s LOAC, along with its more recent historical foundations and modern law of war incidents. For example, World War I and the ineffective trials of German war criminals by German courts – the Leipzig trials – are shown to be the impetus for World War II’s Nuremberg and Tokyo international military tribunals. The LOAC import of the League of Nations and the Spanish Civil War are detailed, along with the 1929 Geneva Conventions’ (two Conventions) contributions. The bulk of the chapter is an examination of today’s four 1949 Geneva Conventions, including their “common articles,” the varied routes to the charging of war crimes alleged against both combatants and civilians, along with the significance of “grave breach” war crimes. Indicators of war crimes is detailed, as well.