10 Methods of Warfare

Humanitarian Law ◽

Customary International Law ◽

The Third ◽

Current State ◽

Basic Tenet ◽

Military Necessity ◽

This chapter studies the rules of international humanitarian law (IHL) which regulate methods of warfare. The so-called ‘Hague Law’, which regulates the use of means and methods of warfare so as to mitigate—as much as possible—the ‘calamities of war’, is the oldest branch of IHL. Its basic tenet can be summarized in three fundamental maxims. The first maxim expresses the basic principle of military necessity, which limits the permissibility of means and methods of warfare to what is actually required for the achievement of a legitimate military purpose. The second maxim provides the basis for the prohibition of means and methods of warfare that are of a nature to cause superfluous injury or unnecessary suffering to combatants. The third maxim concerns the principle of distinction, which prohibits not only direct attacks against civilians and the civilian population, but also indiscriminate means and methods of warfare. Both the prohibition of unnecessary suffering and the principle of distinction are regarded as ‘cardinal principles’ of IHL by the International Court of Justice and, in this basic form, are universally accepted as part of customary international law. The chapter then outlines the current state of the law regulating methods of warfare.

The contribution of the International Court of Justice to international humanitarian law

Revue Internationale de la Croix-Rouge/International Review of the Red Cross ◽

10.1017/s1560775500115172 ◽

2003 ◽

Vol 85 (850) ◽

pp. 235 ◽

Cited By ~ 15

Author(s):

Vincent Chetail

Keyword(s):

Humanitarian Law ◽

Court Of Justice ◽

The roles of the Security Council and the International Court of Justice in the application of international humanitarian law

Justice in International Law ◽

10.1017/cbo9780511793912.005 ◽

2011 ◽

pp. 41-65

Author(s):

Stephen M. Schwebel

Keyword(s):

Security Council ◽

Humanitarian Law ◽

Court Of Justice ◽

Sequences of Military Necessity for the Jus in Bello

Necessity and Proportionality in International Peace and Security Law ◽

10.1093/oso/9780197537374.003.0009 ◽

2020 ◽

pp. 247-284

Author(s):

Dino Kritsiotis

Keyword(s):

Hague Convention ◽

Humanitarian Law ◽

War And Peace ◽

Jus In Bello ◽

Jus Ad Bellum ◽

Additional Protocol ◽

Self Defense ◽

Military Necessity ◽

This chapter considers several discrete snapshots or “sequences” in the life of military necessity—as it has come to be understood within the laws of the jus in bello. Commencing with its relationship with self-preservation under the laws of war and peace, the chapter proceeds to examine the idea of “necessity” of self-defense within the laws of the jus ad bellum; it then turns to “military necessity” as invoked in the Lieber Code, the 1907 Hague Regulations, Additional Protocol I of 1977 and the 1954 Hague Convention, the ICRC Study on Customary International Humanitarian Law as well as the advisory jurisprudence of the International Court of Justice. Consideration is given, too, to “necessity” as it features within the law of State responsibility, in order to more fully understand the function, status and standing of “military necessity” more generally within the jus in bello.

9 Occupation

The Handbook of International Humanitarian Law ◽

10.1093/law/9780198847960.003.0009 ◽

2021 ◽

Author(s):

Dörmann Knut ◽

Vité Sylvain

Keyword(s):

Human Rights ◽

Exceptional Case ◽

Customary Law ◽

Humanitarian Law ◽

Human Rights Law ◽

Occupied Territory ◽

International Court ◽

Occupied Territories

This chapter addresses the present state of the law of occupation, highlighting also the increasing importance of human rights for the protection of civilians in occupied territories. International law on belligerent occupation determines the rights and obligations of a party to an armed conflict which occupies territory of the adverse party. It also codifies the rights and duties of the residents of such occupied territory. The treatment of the population of an occupied territory is measured against standards set by international humanitarian law and human rights law concurrently. The International Court of Justice (ICJ) left no doubt that as a rule, the specific provisions of GC IV and relevant rules of customary law relating to belligerent occupation take precedence over human rights law, as law specifically drawn up for issues arising out of belligerent occupation (lex specialis). In an exceptional case, it may be determined that a human rights rule offers greater protection to the inhabitants of an occupied territory. When assessing the interplay between international humanitarian law and human rights law, this must be done on a right-by-right or case-by-case basis, respecting the special situation of occupation, rather than in a wholesale manner.

Ius in Bello under Islamic International Law

International Criminal Law Review ◽

10.1163/15718123-01303002 ◽

2013 ◽

Vol 13 (3) ◽

pp. 593-625 ◽

Cited By ~ 3

Author(s):

Mohamed Elewa Badar

Keyword(s):

International Law ◽

Islamic Law ◽

Eighth Century ◽

Humanitarian Law ◽

International Court ◽

Hugo Grotius ◽

Law Of Nations

In 1966, Judge Jessup of the International Court of Justice pointed out that the appearance of an English translation of the teaching on the ‘Islamic law of nations’ of an eighth-century Islamic jurist (Shaybānī) is particularly timely and of so much interest because of the debate over the question whether the international law, of which Hugo Grotius is often called the father, is so completely Western-European in inspiration and outlook as to make it unsuitable for universal application in the context of a much wider and more varied international community of States. However, there has been little analysis of the role of Islam in shaping the modern European law of war and its progeny, international humanitarian law. This article argues that there is a room for the contribution of the Islamic civilisation within international humanitarian law and a conversation between different civilisations is needed in developing and applying international humanitarian law norms.

The Advisory Opinion of the International Court of Justice on the legality of nuclear weapons

International Review of the Red Cross ◽

10.1017/s0020860400084308 ◽

1997 ◽

Vol 37 (316) ◽

pp. 56-64

Author(s):

Hisakazu Fujita

Keyword(s):

Nuclear Weapons ◽

Second World War ◽

Advisory Opinion ◽

Humanitarian Law ◽

Fundamental Interest ◽

Court Of Justice ◽

International Court ◽

Second World

The Advisory Opinion handed down by the International Court of Justice (ICJ) on 8 July 1996 concerning the legality of the threat or use of nuclear weapons contains many elements that are of fundamental interest from the standpoint of international humanitarian law. Indeed, humanitarian law, which has developed to a remarkable extent since the Second World War, has always lacked an express ruling on nuclear weapons.

3 Components of the International Law of Weaponry

10.1093/law/9780198728504.003.0003 ◽

2016 ◽

Author(s):

Boothby William H

Keyword(s):

Traditional Approach ◽

Customary Law ◽

Humanitarian Law ◽

International Court ◽

State Practice ◽

The Status ◽

General Principles Of Law ◽

The Law

This chapter considers the sources of the law of weaponry and discusses matters critical to understanding it. Taking the traditional approach, in addition to general principles of law recognized by nations, the sources of the law consist of customary law and of treaty law, the latter referred to as ‘conventional law’. The chapter looks at customary law, which is, according to Article 38(1)(b) of the Statute of the International Court of Justice (ICJ), the law applied by the court as including ‘international custom, as evidence of a general practice accepted as law’. The chapter discusses what does, and respectively does not, comprise state practice and then looks at treaties, how they are made and interpreted, how states explain their understandings of them and related matters. Individual sections then address the status at law of the ICRC Study of Customary International Humanitarian Law and of the UN Secretary General’s Bulletin.

METHODS FOR THE IDENTIFICATION OF CUSTOMARY INTERNATIONAL LAW IN THE INTERNATIONAL COURT OF JUSTICE'S JURISPRUDENCE: 2000–2009

International and Comparative Law Quarterly ◽

10.1017/s0020589311000273 ◽

2011 ◽

Vol 60 (3) ◽

pp. 681-712 ◽

Cited By ~ 6

Author(s):

Alberto Alvarez-Jiménez

Keyword(s):

International Law ◽

Case Law ◽

Advisory Opinion ◽

Humanitarian Law ◽

Large Measure ◽

Customary International Law ◽

Diplomatic Protection ◽

International Court ◽

International Rule

‘Sometimes the most important historical events are the non-events: the things that did not occur,’ says the British historian Niall Ferguson.1Such a statement may well describe in large measure the International Court of Justice's case-law regarding the methods for the identification of rules of customary international law during the period 2000–2009. The previous two decades had been marked by two milestones in this domain: the eighties by the judgment on the merits inNicaragua,2and the nineties by the Court's advisory opinion inNuclear Weapons.3There was, though, no single decision by the Court of comparative significance regarding methods of customary international law during the first decade of the new millennium. Further, some of the most important determinations in this domain were those in which the Court did not declare the existence of a customary international rule. However, this is not to say that the above-mentioned conclusion applies to all of the Court's jurisprudence related to customary international law. The conclusion is limited to the Court's decisions regarding the methods for the recognition of norms of this character. In fact, the Court made very important pronouncements as to the content of customary international law in many domains, such as the use of force, territorial occupation, diplomatic protection, and international humanitarian law.

The International Court of Justice as a Guardian of the Unity of Humanitarian Law

Leiden Journal of International Law ◽

10.1017/s092215650700427x ◽

2007 ◽

Vol 20 (3) ◽

pp. 593-611 ◽

Cited By ~ 5

Author(s):

FABIÁN O. RAIMONDO

Keyword(s):

International Law ◽

Humanitarian Law ◽

Stare Decisis ◽

International Courts ◽

Court Of Justice ◽

This article seeks to examine whether the International Court of Justicehas developed jurisprudence on international humanitarian law and whether this has exerted any influence on the decisions adopted by other international courts and tribunals. In so doing, it revisits the issue of the value ofjudicial decisions under international law. Finally, it reveals that despite the non-operation of the rule of stare decisis in international law, the Court's jurisprudence on international humanitarian law has been a persuasive precedent for other international courts and tribunals.

And Yet It Exists: In Defence of the ‘Equality of Belligerents’ Principle

Leiden Journal of International Law ◽

10.1017/s0922156513000113 ◽

2013 ◽

Vol 26 (2) ◽

pp. 449-472 ◽

Cited By ~ 3

Author(s):

VAIOS KOUTROULIS

Keyword(s):

International Law ◽

Nuclear Weapons ◽

Armed Conflict ◽

Advisory Opinion ◽

Humanitarian Law ◽

Legal Basis ◽

Jus In Bello ◽

Customary International Law ◽

AbstractThe equal application of international humanitarian law (jus in bello) to all parties to an international armed conflict is a cornerstone principle of jus in bello. In his article, Professor Mandel casts doubt on the legal basis of this principle. Reacting to this claim, this contribution demonstrates that the ‘equality of belligerents’ is a principle firmly grounded in both conventional and customary international law. Moreover, its legal force withstands the test of international jurisprudence, including the International Court of Justice's controversial Nuclear Weapons advisory opinion.