The Authority of the International Committee of the Red Cross: Determining What International Humanitarian Law Is (International Humanitarian Law, 68)

This book offers the first comprehensive examination of the authority of the International Committee of the Red Cross in the determination of international humanitarian law, addressing, among other things, the institution’s most distinctive interpretations and law-ascertainments through case studies. Front Cover Half Title Series Information Title Page Copyright Page Contents Acknowledgements Abbreviations Table of Cases Table of Treaties Table of United Nations Documents Introduction 1 The ICRC’s Determinations on International Humanitarian Law: An Under-Researched Aspect in the Study of the ICRC 2 What Can Be Learned from the ICRC’s Interpretations and Law-Ascertainments about the Current Type of International Law? 2.1 Globalisation and the Role of Non-state Actors 2.2 Softening and Hierarchisation of International Law by Dominant States 2.3 Points of Departure 3 Methodology 4 Chapter Outline Chapter 1 The Authority of the International Committee of the Red Cross 1 The Concept of Authority 2 Does the ICRC Possess a Competence to Interpret and Ascertain International Humanitarian Law? 2.1 The ICRC’s Role under the Geneva Conventions and Additional Protocols 2.2 The ICRC’s Role under the Statutes of the Red Cross and Red Crescent Movement 2.2.1 Wording 2.2.2 Genesis 2.2.3 Approaches towards a Juridification of the ICRC’s Role under the Statutes of the Red Cross and Red Crescent Movement 2.2.4 No Conferment of Competence through Subsequent Recognition by States 3 The ICRC’s De Facto Authority 4 No Legal Bindingness Chapter 2 De Facto Authority of the ICRC’s Interpretations and Law-Ascertainments 1 Pictet Commentaries 1.1 Broad Acceptance in the Jurisprudence of International Courts and Tribunals 1.1.1 Application of the Geneva Conventions 1.1.2 Extension of the Concept of Protected Persons in Article 4 GC IV 1.1.3 War Crimes and Crimes against Humanity 1.1.4 Deference to a Special Source 1.2 Broad Acceptance in State Practice 1.2.1 Military Manuals 1.2.2 Other State Practice 1.3 The Marks of the Pictet Commentaries’ Authority 1.3.1 Unique Expertise 1.3.2 Institutional Authority of the ICRC 1.3.3 Authorship: The Crucial Role of Jean Pictet 1.3.4 Form 1.3.5 Tradition 1.4 Conclusion: Shaping the Content of the Geneva Conventions 2 Commentary on the Additional Protocols 2.1 Broad Acceptance in the Jurisprudence of International Courts and Tribunals 2.1.1 Superior Responsibility 2.1.1.1 Superior-Subordinate Relationship 2.1.1.2 The Mental Element: Knowledge or Imputed Knowledge 2.1.1.3 Necessary and Reasonable Measures 2.1.2 Application of the Additional Protocols 2.1.3 The Notions of Civilians and Civilian Population 2.1.4 The Notion of Direct Participation in Hostilities 2.1.5 War Crimes and Crimes against Humanity 2.1.6 Deference to a Special Source 2.2 Broad Acceptance in State Practice 2.2.1 Military Manuals 2.2.2 Other State Practice 2.3 The Marks of Authority of the Commentary on the Additional Protocols 2.3.1 Expertise 2.3.2 Institutional Authority of the ICRC 2.3.3 Authorship 2.3.4 Form, Methodology and Underlying Process 2.3.5 Tradition 2.4 Conclusion: Nearly a Primary Source, but Less Special than the Pictet Commentaries 3 Customary International Humanitarian Law Study 3.1 Critical but Welcoming Reactions in Academia 3.1.1 Methodology 3.1.2 Formulation of the Rules 3.1.3 Predictions about the Study’s Role 3.1.4 Responses by Author of the Study, Jean-Marie Henckaerts 3.2 Selective Use in the Jurisprudence of International Courts and Tribunals 3.3 Rejection and Acceptance in State Practice 3.3.1 Rejection by the US Government 3.3.2 Response by the Author of the Study, Jean-Marie Henckaerts 3.3.3 Some Reservations and Much Appreciation by Other States 3.3.4 Assessment: Success Despite Criticism from the US and Academia 3.4 The Study’s Marks of Authority 3.4.1 Expertise 3.4.2 Institutional Authority of the icrc 3.4.3 Underlying Process 3.4.4 Form 3.4.5 Methodology 3.5 Conclusion: Filling the Loopholes in International Humanitarian Law 4 Interpretive Guidance on the Notion of Direct Participation in Hostilities 4.1 Broad Criticism in Academia 4.1.1 Criticism of the Continuous Combat Function Concept 4.1.2 Criticism of the Constitutive Elements of Direct Participation in Hostilities 4.1.3 Criticism on the Time Dimension of Direct Participation in Hostilities 4.1.4 Criticism on the Graduated Use of Force Standard 4.1.5 Criticism of the Guidance’s Underlying Expert Process and Form 4.1.6 Not Much Lex Lata, but Promising Lex Ferenda? 4.1.7 Response by Author of the Guidance, Nils Melzer 4.2 Little Use in the Jurisprudence of International Courts and Tribunals 4.3 Cautious Reactions in State Practice 4.3.1 Reactions of Governments 4.3.2 Usage in National Legal Proceedings 4.3.3 Assessment: No Uniform Picture in State Practice 4.4 The Guidance’s Marks of Authority 4.4.1 Expertise 4.4.2 Institutional Authority of the icrc 4.4.3 Underlying Process 4.4.4 Form 4.4.5 Lack of Methodological Standards 4.5 Conclusion: Helpful but Not Authoritative 5 New Commentaries 5.1 Mostly Positive Reactions in Academia 5.2 Immediate Consideration in the Jurisprudence of International Courts and Tribunals 5.3 Rejection of the Interpretation of Common Article 1 in State Practice 5.4 The New Commentaries’ Marks of Authority 5.4.1 Expertise 5.4.2 Institutional Authority of the ICRC 5.4.3 Underlying Process and Form 5.4.4 Methodology 5.4.5 Tradition 5.5 Conclusion: No Special Status for the New Commentaries Yet 6 Assessment: Changes in the Marks and Different Degrees of Authority 6.1 Proximity to Legal Sources 6.2 Increase and Diversification of the Expert Community 6.3 Expansion of International Law 6.3.1 Methodology 6.3.2 Expert processes 7 Conclusion: The Change of the ICRC’s Role for International Humanitarian Law Chapter 3 The ICRC’s Impact on the Structural Rules of International Law 1 Identification of Customary International Law 1.1 Role in Academic Works 1.2 Role in the Work of the International Law Commission on the Identification of Customary International Law 1.2.1 Comparison of the International Law Commission’s Conclusions on the Identification of Customary International Law and the Study’s Methodology 1.2.2 Discussions within the International Law Commission 1.2.3 State Responses to the International Law Commission 1.2.4 Academic Works and the Reports of Sir Michael Wood 1.3 High Impact on the Identification of Customary International Law 2 Interpretation of Treaties 2.1 Confirmation of the International Law Commission’s Draft Conclusions on Subsequent Practice? 2.2 Relevant Rules of International Law Applicable in the Relations between Parties 2.3 Preparatory Work 2.4 Possible Impact on the Interpretation of Treaties 3 Tendencies of Specialisation and Merging of the Sources of International Humanitarian Law 3.1 Implications for Specialisation of the Sources of International Humanitarian Law 3.2 Implications for Merging of the Sources of International Humanitarian Law 4 Conclusion: A New Role for the ICRC Chapter 4 Legal Classification of the ICRC’s Interpretations and Law-Ascertainments under the Sources of Law Doctrine and the Means of Interpretation 1 No Practice under Article 38 (1) (b) of the Statute of the International Court of Justice 2 Subsidiary Means for the Determination of Rules of Law under Article 38 (1) (d) of the Statute of the International Court of Justice 2.1 Teachings of the Most Qualified Publicists of the Various Nations 2.2 Does Determination of Rules of Law Include Their Interpretation? 3 No Means of Interpretation under Article 31 of the Vienna Convention on the Law of Treaties 4 Supplementary Means of Interpretation under Article 32 of the Vienna Convention on the Law of Treaties? 5 The ICRC’s Interpretations and Law-Ascertainments under the Martens Clause as Dictates of Public Conscience? 6 What Role for Non-state Actors? A Political Question Conclusion 1 Summary of Main Research Results 2 The Future Role of the icrc’s Interpretations and Law-Ascertainments 3 How the ICRC’s Interpretations and Law-Ascertainments Should Be Dealt with in Academia and Legal Practice References Index Back Cover "This book conducts the first ever comprehensive study of the ICRC's interpretations and law-ascertainments. It analyses in detail their impact on the development of international humanitarian law and international law in general as well as the reasons for their impact. This analysis involves the discussion of the ICRC's authority. Is it legal or just factual authority? The analysis also illuminates the direction that IHL - and international law in general - develops. This insight sheds light on the question of the current type of international law, i.e., what international law is and who makes it"-- Provided by publisher