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Über dieses Buch

The main theme of this volume of the Yearbook of International Humanitarian Law is the 70th anniversary of the Geneva Conventions. The evolution of these crucial treaties and international humanitarian law more generally comes back in six chapters addressing topics such as sieges, compliance, indiscriminate attacks and non-state armed groups.

The second part of the book contains a chapter on the acquittal on appeal of Jean-Pierre Bemba Gombo by the International Criminal Court on the basis of command responsibility for war crimes, as well as an extensive Year in Review describing the most important events and legal developments in the area of international humanitarian law that took place in 2019.

The Yearbook of International Humanitarian Law is the world’s only annual publication devoted to the study of the laws governing armed conflict. It provides a truly international forum for high-quality, peer-reviewed academic articles focusing on this crucial branch of international law. Distinguished by contemporary relevance, the Yearbook of International Humanitarian Law bridges the gap between theory and practice and serves as a useful reference tool for scholars, practitioners, military personnel, civil servants, diplomats, human rights workers and students.

Inhaltsverzeichnis

Frontmatter

70th Anniversary of the Geneva Conventions

Frontmatter

Chapter 1. Evolution of the International Humanitarian Law Provisions on Sieges

Abstract
The international regulations on siege warfare have evolved from lenient to increasingly restrictive, both with regard to the conduct of hostilities and to humanitarian assistance to victims of war. Siege warfare is not forbidden but heavily restricted, in particular by the prohibition of starvation of the civilian population, the latter commonly considered as customary in character. Together with the evolution of international humanitarian law, the evolution of armed conflicts, once fought on battlefields and now increasingly in urban areas and among the civilians, results in sieges being a lawful method of warfare but only when directed against combatants. This chapter examines the legality of sieges in the light of international humanitarian law. Apart from the analysis of international humanitarian law, a possible impact of the United Nations Security Council Resolutions on the law and practice of siege warfare is signaled. The aim of this chapter is to show historical and current regulations of international humanitarian law on siege warfare and in this way identify the evolution of the law on sieges.
Agnieszka Szpak

Chapter 2. Towards a Better Understanding of the Concept of ‘Indiscriminate Attack’—How International Criminal Law Can Be of Assistance

Abstract
The concept of ‘indiscriminate attack’ is directly related to the principle of distinction and therefore serves an important function in international humanitarian law. For the purpose of attributing individual criminal responsibility, however, the concept is insufficiently precise, as it covers a wide array of mens reae, ranging from direct (malicious) intent to kill civilians, via callous disregard for civilian lives, to an intent to target military objects, while knowing that they will demand an excessive toll. International criminal law can thus assist in explaining how the rather elusive concept of indiscriminate attack can be understood in terms of human intents and purposes. In its turn, the determination that an attack is indiscriminate can inform the (international) criminal courts why the waste of civilian lives is clearly excessive to the anticipated military advantage, which is classified as a war crime under the Rome Statute. This chapter seeks to demonstrate how international humanitarian law and (international) criminal law can be complementary and mutually beneficial in elucidating this fascinating concept.
Harmen van der Wilt

Chapter 3. Double Trouble: The ‘Cumulative Approach’ and the ‘Support-Based Approach’ in the Relationship Between Non-State Armed Groups

Abstract
This chapter analyzes two approaches to determining whether a non-international armed conflict exists and who are the parties to such a conflict. These approaches were put forward by the International Committee of the Red Cross in its 2019 Challenges Report. The first is referred to as the ‘cumulative approach’. It consists of aggregating the armed violence in which two or more armed groups that cooperate and coordinate as part of an alliance or coalition are involved for the purpose of assessing the level of intensity of armed violence that is required for the existence of a non-international armed conflict. The chapter submits that this approach deserves broad acceptance. Three adaptations to the approach are however proposed for reasons of logic and to avoid over-application of international humanitarian law. The other approach is referred to as the ‘support-based approach’. Under this approach, an armed group that provides certain support to another armed group that is party to a pre-existing non-international armed conflict becomes a party to that conflict as a consequence of that support. This chapter argues that the application of the support-based approach to armed groups inter se is problematic for a number of reasons and should be rejected.
Marten Zwanenburg

Chapter 4. The Rebel with the Magnifying Glass: Armed Non-State Actors, the Right to Life and the Requirement to Investigate in Armed Conflict

Abstract
Seventy years on from the promulgation of the 1949 Geneva Conventions, the protection of the right to life remains a central theme in the context of armed conflict. Particularly, Common Article 3 of the Conventions has been a pivotal gateway into the regulation of the conduct of armed non-State actors during military operations. Furthermore, the increasing prosecutions of their members for war crimes has prompted the requirement for them to review their own behaviour, especially with regard to alleged unlawful killings during military operations. This chapter, therefore, analyses the scope of the legal obligations of armed non-State actors with regard to the protection of the right to life in armed conflict, and it explores the existence and application of an obligation for these actors to investigate credible allegations of the unlawful loss of life, arising from their military conduct during non-international armed conflicts. As armed non-State actors can be considered to bear obligations under both international humanitarian law and human rights law, the chapter explores whether there exists an obligation to investigate under the international humanitarian law framework, as well as the impact of the international human rights law framework on the possible investigative obligation of armed non-State actors.
Joshua Joseph Niyo

Chapter 5. A Bird’s-Eye View on Compliance with the Law of Armed Conflict 70 Years After the Adoption of the Geneva Conventions

Abstract
Against the background of a significant number of compliance mechanisms that the law of armed conflict (LoAC) provides for, on the one hand, and the fact that violations remain a pervasive feature of contemporary armed conflict, on the other, the present chapter examines five distinct compliance-related clusters. It begins by a reminder of the various existent compliance mechanisms and a plea for an honest, inter-disciplinary stocktaking of their efficacy. This is followed by another plea, namely for contextualizing compliance and compliance mechanisms and for moderating the expectations as to what they can achieve as counterweights to the myriad of factors that are prevalent in armed conflicts and that cause violations of the LoAC. The chapter then proceeds with addressing three particular trends that pose particular challenges in relation to compliance: the prevalence of non-international armed conflicts; that the current discourse about compliance is dominated by a culture of repression rather than prevention; and that compliance is increasingly individualized at the expense of addressing the collective nature of the violence inherent in armed conflict as the context in which violations occur.
Jann K. Kleffner

Chapter 6. Not the Usual Suspects: Religious Leaders as Influencers of International Humanitarian Law Compliance

Abstract
It is undeniable that the effectiveness of international humanitarian law (IHL) faces challenges from different quarters. To address these, humanitarian organizations have, in the main, pursued a direct engagement strategy with the parties to a conflict. Although this has remained the dominant strategy to date, in the last two decades the humanitarian sector has, on an ad hoc basis and without the benefit of a solid evidence base, engaged other societal actors identified as having the potential to influence parties to armed conflict, and among them religious leaders. This chapter addresses the role of these leaders in influencing compliance (or lack thereof) with IHL by States and non-State armed groups. In particular, two issues are explored: (1) what makes religious leaders influential among their constituencies, and (2) how can they be useful actors to increase respect for IHL in armed conflict?
Ioana Cismas, Ezequiel Heffes

Other Articles

Frontmatter

Chapter 7. Appellate Deference Versus the De Novo Analysis of Evidence: The Decision of the Appeals Chamber in Prosecutor v Jean-Pierre Bemba Gombo

Abstract
This chapter discusses the acquittal on appeal on 8 June 2018 of Jean-Pierre Bemba Gombo by the International Criminal Court on the basis of command responsibility for war crimes committed by troops under his command in the Central African Republic between October 2002 and March 2003. In terms of the traditional standard of appellate deference the Appeals Chamber displays a margin of deference in relation to the factual findings of the Trial Chamber and does not interfere with these findings unless it cannot discern how the Trial Chamber reasonably could have reached its conclusion on the basis of the evidence before it. The chapter analyses whether there are grounds to conclude that no reasonable trier of fact could have reached the conclusion of the Trial Chamber to convict Bemba on the evidence before it and considers whether it was justifiable for the Appeals Chamber to analyse the evidence de novo and arrive at a different conclusion. It argues that the Vienna Convention on the Law of Treaties is the correct instrument to interpret the provisions of the Rome Statute and that the Appeals Chamber erroneously applied Article 22(2) of the Rome Statute of the International Criminal Court, which deals with the strict interpretation of the definition of crimes, in order to interpret Article 28 which deals with command responsibility. This affected its approach and consideration of the evidence led before the Trial Chamber. Finally, it offers observations on the effect of the deviation from the standard of appellate deference in Bemba on the future prosecution of sexual and gender-based crimes.
Aniel de Beer, Martha Bradley

Chapter 8. Year in Review 2019

Abstract
Throughout 2019, a number of noteworthy events with relevance to international humanitarian law (IHL) and international criminal law (ICL) took place. This chapter addresses the most relevant developments that occurred in 2019. It provides a background to and an overview of armed conflicts that took place in 2019 as well as of connected developments. It further contains a summary of proceedings and decisions by international courts and tribunals, hybrid tribunals as well national courts and institutions that are relevant to IHL and the prosecution of war crimes, crimes against humanity, genocide, and terrorism. The last section contains an overview of developments regarding conventional and non-conventional arms control and disarmament, including the status of relevant treaties, as well as the weaponisation of outer space. The Year in Review is not intended to be a comprehensive summary of all events that occurred in 2019, but rather a sampling of the most noteworthy events with particular relevance to IHL and ICL.
Kilian Roithmaier, Taylor Woodcock, Eve Dima

Backmatter

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