International Law and Armed Conﬂict: Exploring the Faultlines docx

The series explores substantive issues of International Humanitarian Law including,– protection for victims of armed conﬂict and regulation of the means and methods obliga-– national and

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Exploring the Faultlines

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VOLUME 15

Editors-in-Chief

Professor Christopher GreenwoodProfessor Timothy L.H McCormack

Editorial Advisory Board

Professor Georges Abi-SaabH.E Judge George H AldrichMadame Justice Louise ArbourProfessor Ove BringProfessor Antonio CasseseProfessor John DugardProfessor Dr Horst Fischer

Dr Hans-Peter GasserProfessor Leslie C GreenH.E Judge Geza HerczeghProfessor Frits KalshovenProfessor Ruth LapidothProfessor Gabrielle Kirk McDonaldH.E Judge Theodor MeronCaptain J Ashley RoachProfessor Michael SchmittProfessor Jiri TomanThe International Humanitarian Law Series is a series of monographs and edited vol-umes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed conﬂict

The series explores substantive issues of International Humanitarian Law including,– protection for victims of armed conﬂict and regulation of the means and methods

obliga-– national and international approaches to the enforcement of the law and

– the interactions between International Humanitarian Law and other related areas

of international law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and International Criminal Law

The titles in this series are listed at the end of this volume.

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International Law and Armed Conﬂict: Exploring the Faultlines

Essays in Honour of Yoram Dinstein

edited by

Michael N Schmitt and Jelena Pejic

LEIDEN • BOSTON

2007

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isbn: 978 9004154 28 5

Koninklijke Brill nv incorporates the imprints Brill, Hotei Publishers, idc Publishers, Martinus Nijhoﬀ Publishers and vsp.

http://www.brill.nl

or transmitted in any form or by any means, electronic, mechanical, photocopying, ing, recording or otherwise, without written permission from the Publisher

microﬁlm-Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa

Fees are subject to change.

Cover photo: Afghanistan, Khandahar After a road bomb has destroyed an US Army

vehicule, troops are patrolling the area to look for clues

Printed and bound in The Netherlands.

A c.i.p record for this book is available from the Library of Congress.

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Preface xi

Professor Yoram Dinstein; List of Academic Publications xix

 Claims to Pre-emptive Uses of Force: Some Trends and

Projections and Their Implications for World Order 

W Michael Reisman and Andrea Armstrong

 The Temporal Dimension of Self-Defense: Anticipation,

Terry D Gill

 Responding to Transnational Terrorism under the Jus ad

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 Ius ad Bellum and Ius in Bello – The Separation between the

Legality of the Use of Force and Humanitarian Rules to Be

Marco Sassòli

  st Century Conﬂict and International Humanitarian Law:

 Ghosts in the Machine: Some Legal Issues Concerning US

 Transformative Military Occupation: Applying the Laws of

Adam Roberts

 The Adequacy of International Humanitarian Law Rules on

Belligerent Occupation: To What Extent May Security Council Resolution  Be Considered a Model for Adjustment? 

Rüdiger Wolfrum

 The Separation Fence in the International Court of Justice and

the High Court of Justice: Commonalities, Diﬀerences and

Speciﬁcs 

Fania Domb

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 “Benevolent” Third States in International Armed Conﬂicts:

The Myth of the Irrelevance of the Law of Neutrality 

Wolﬀ Heintschel von Heinegg

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On behalf of the contributors, we offer this Volume in friendship, respect and admiration for Professor Yoram Dinstein No-one familiar with his wide-ranging work in the field can feel anything but awe for his contribution to the clarifica-tion and development of international law To us, Yoram has also been a selfless, albeit – as anyone who knows him well understands – demanding, mentor, one who has sharpened our understanding of, and ability to think critically about, the law Along with many others, we have also benefited over the years from his eru-dition on a range of subjects well beyond international law

Yoram Dinstein’s opus, while international in breadth and eﬀect, is deeply

rooted in his beloved Israel Born in Tel-Aviv in 1936, he obtained his legal

edu-cation at the Hebrew University in Jerusalem (where he graduated summa cum laude) and New York University Professor Dinstein began his professional career

in Israel’s Foreign Service in which he served as Consul of Israel in New York City and with Israel’s Permanent Mission to the United Nations Even subse-quent to becoming a full-time academic, Professor Dinstein represented his coun-

try in various international fora, ranging from the UN Commission on Human

Rights and the International Conferences of the Red Cross and Red Crescent

to Interpol In 1986-1988, he also served as Counsel in the Taba Arbitration with

Egypt

It is as an educator and academic, however, that Professor Dinstein has left

an indelible mark In Israel, he was Professor of International Law, Dean of the Faculty of Law, Rector and President of Tel-Aviv University While President,

he also chaired Israel’s Committee of Heads of Universities (VERA) Today, he holds the title of Yanowicz Professor of Human Rights at Tel-Aviv University But Professor Dinstein’s inﬂuence extends far beyond the borders of Israel Indeed, his international academic and teaching engagements are too numer-ous to be enumerated here Suﬃce it to mention that he was twice appointed the Charles H Stockton Professor of International Law at the United States Naval War College, was a Humboldt Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, and has been a Visiting Professor at the DePaul University in Chicago, the University of Toronto and New York University The University of Buenos Aires, the University of Chile and the Hebrew Union College have conferred honorary doctorates on

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him, while the National University of Mexico (UNAM) awarded him the title of Distinguished Professor

His career is also marked by service in the development and dissemination of international law Professor Dinstein serves as Vice-President of Israel’s national branch of the International Law Association and of the Israeli United Nations Association, as well as a member of the Council of the International Institute of Humanitarian Law in San Remo, Italy He has also been active in many interna-

tional research projects, including that which resulted in the San Remo Manual

on International Law Applicable to Armed Conﬂicts at Sea Professor Dinstein

pres-ently directs an international experts’ group drafting a similar manual on air and missile warfare

In recognition of his contributions to the ﬁeld of international law, in 1989

Professor Dinstein became a Member of the Institut de Droit International

(Institute of International Law), a group of the world’s leading international yers elected by cooptation for life

law-While Professor Dinstein has explored many issues of international law in his scholarly research and writing, it may be said that the focal points of his work

have been the jus ad bellum and the jus in bello The former regulates when force

may be used in international relations, whereas the latter governs how such force may be used and extends protection to both persons who are not or no longer participating in hostilities and to civilian objects These areas of public inter-national law are central to the way in which the world is ordered, for they deal – indirectly and directly – with questions of life and death

Regrettably, the reasons wars are waged and the way in which they are ducted are so closely linked to national interests, or skewed perceptions thereof, that international law rules regulating force have too often been observed only in the breach Partly as a result, international law has been famously condemned as existing only at the “vanishing point” of law Professor Dinstein’s lasting contri-

con-bution to the ﬁeld is that his writings on both the jus ad bellum and the jus in bello

eﬀectively and deﬁnitively dispel that claim

It is unimaginable that anyone addressing such matters could do so without

resorting to War, Aggression and Self-Defence, Professor Dinstein’s classic work

on the jus ad bellum (now in its fourth edition), The Conduct of Hostilities under the Law of International Armed Conﬂict, his recently published study of the jus in bello, or the Israel Yearbook on Human Rights, which he has edited for over three

decades Indeed, it may be fairly said that a scholarly work in the area which tains no “Dinstein cite” is, quite simply, incomplete The logic, clarity and prac-tical groundedness of his work, whether one accepts every tenet or not, make it

con-an unavoidable con-and timeless body of reﬂection con-and con-analysis for international law scholars and practitioners alike

This Volume honours Professor Dinstein by addressing both the jus ad bellum and the jus in bello As a result of recent events on the international scene,

no areas of international law are being debated today with greater fervor New

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prescriptive dilemmas, real or imagined, as well as old controversies repackaged

as new ones, have burst onto center stage in discourse about whether and how the

norms governing resort to force and armed conﬂict should be (re)ordered Thus,

our aim with this Volume has been to explore the faultlines that lie both between

and within the jus ad bellum and the jus in bello.

A distinguished group of experts wholeheartedly agreed to express tribute

to Professor Dinstein by contributing to the Volume We sincerely thank each of

them for their contribution The authors include scholars and practitioners, a

par-ticularly appropriate combination in light of the intellectual depth and practical

impact of Yoram’s work They cut across generations, from recognized authorities

in international law to emerging thinkers, thereby reﬂecting the inﬂuence he has

exerted on the international law community for decades, and which he will surely

continue to exert in the time to come It is a pleasure and an honour to commend

this book to Professor Dinstein’s, and others’, attention

Geneva

Michael N Schmitt Newport

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Curriculum Vitae

Place and Date of Birth: Tel-Aviv (Israel), 2 January 1936

Degrees: M.Jur (1958) Hebrew University, Jerusalem (summa

cum laude)

Dr.Jur (1964) Hebrew University, Jerusalem

Awards: Arlosoroﬀ Prize (1966)

Andrei Sakharov Fellowship (1990)

Academic Activities:

1958-1960 Assistant, Faculty of Law, Hebrew University, Jerusalem1964-1966 Lecturer in International Law, Faculty of Law, Hebrew

University, Jerusalem1965-1966 Director, Course in Legal Administration (for African

judges and lawyers), Faculty of Law, Hebrew University, Jerusalem

1970-1971 Senior Lecturer in International Law, Faculty of Law,

Tel-Aviv University1971-1974 Associate Professor of International Law, Faculty of

Law, Tel-Aviv University1974-2003 (Full) Professor of International Law, Faculty of Law,

Tel-Aviv University1976-1977 Visiting Professor, Faculty of Law, University of

Toronto1978-1980 Dean, Faculty of Law, Tel-Aviv University

Since 1980 Yanowicz Professor of Human Rights, Tel-Aviv

University

1985-1987 Meltzer Visiting Professor, School of Law, New York

University

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1985-1990 Pro-Rector, Tel-Aviv University

1987 Distinguished Professor, Universidad Nacional

Autonoma de Mexico1991-1999 President, Tel-Aviv University

1983, 1995 Chairman, Israel’s Committee of Heads of Universities

(VERA)

1999-2000, 2002-2003 Stockton Professor of International Law, US Naval War

College (Newport, RI)2001-2002 Humboldt Fellow, Max Planck Institute for

Comparative Public Law and International Law, Heidelberg

Since 2004 Project Director, International Humanitarian Law in

Air and Missile Warfare, Program on Humanitarian Policy and Conﬂict Research, Harvard University

2006 Visiting Professor, Hague Academy of International

Law

Non-Academic Activities:

1958-1959 Law Clerk, Supreme Court of Israel, Jerusalem

1959-1960 Cadet, Israel Ministry of Foreign Aﬀairs, Jerusalem1961-1962, 1966-1969 Adviser, Permanent Mission of Israel to the United

Nations, New York1962-1964 Deputy Head, Oﬃce of the Director General, Israel

Ministry of Foreign Aﬀairs, Jerusalem

1962, 1968-1971, 1973, Alternate Representative and Observer of Israel, UN 1975-1976, 1978 Commission on Human Rights, New York and Geneva

1962, 1967 Alternate Member and Observer of Israel, UN

Sub-Commission on Prevention of Discrimination and Protection of Minorities, New York

1964, 1967 Observer of Israel, UN Economic and Social Council,

Geneva and New YorkSince 1965 Member of the Israel Bar

1966-1969 Alternate Representative of Israel, Third Committee,

UN General Assembly, New York

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Since 1972 Vice-President, Israel United Nations Association1974-1978 Chairman, Israel National Section, Amnesty

International1983-1989 Associate Member, Institut de Droit International

1986-1988 Counsel for Israel, Taba Arbitration with Egypt1989-1992 Member, Executive Council, American Society of

International LawSince 1989 Member, Institut de Droit International

Since 1991 Vice-President, Israel Branch, International Law

AssociationSince 1993 Member, Council, San Remo International Institute of

Humanitarian Law

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List of Academic Publications

Jerusalem, Magnes Press, 280 pp (1965)

2 International Law and the State,

Tel-Aviv, Schocken, 160 pp (1971) (Hebrew)

3 The Internal Powers of the State,

4 International Treaties,

5 International Claims,

6 Non-State International Law,

7 The Laws of War,

8 War, Aggression and Self-Defence,

First Edition – Cambridge, Grotius, xxx + 292 pp (1988)

Second Edition – Cambridge University Press, xxxi + 325 pp (1994)

Third Edition – Cambridge University Press, xxviii + 300 pp (2001).Portuguese translation, Manole (Brazil), xxxviii + 455 pp (2005)

Fourth Edition – Cambridge University Press, xxv + 349 pp (2005)

9 The Conduct of Hostilities under the Law of International Armed Conﬂict,

Cambridge University Press, xx + 275 pp (2004)

II Monographs

1 Consular Immunity from Judicial Process, with Particular Reference to Israel,

Jerusalem, Institute for Legislative Research and Comparative Law, xiv + 89

pp (1966)

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2 The Fundamentals of Law,

Tel Aviv, “University on the Air” Series, 113 pp (1981) (Hebrew)

Translated into Arabic by the Institute for Israeli Arab Studies (1997).

III Chief Editor

1 Israel Yearbook on Human Rights,

Vols 1-36 (1971-)

2 Models of Autonomy,

New Brunswick/London, Transaction Books (1981)

3 International Law at a Time of Perplexity (Essays in Honour of Shabtai Rosenne),

Dordrecht/Boston/London, Nijhoﬀ (1989)

4 The Protection of Minorities and Human Rights,

Dordrecht/Boston/London, Nijhoﬀ (1992)

5 War Crimes in International Law,

The Hague/Boston/London, Nijhoﬀ (1996)

IV Articles and Notes

1 ‘The Responsibility of Foreign Consuls in Israel for Semi-Oﬃcial Acts’,

4 ‘Diplomatic Immunity from Jurisdiction Ratione Materiae’,

15 International and Comparative Law Quarterly 76-89 (1966).

5 ‘Par in Parem Non Habet Imperium’,

1 Israel Law Review 407-420 (1966).

6 ‘Legal Aid to Developing Countries’,

7 ‘The Hijacking of the El Al Plane: Piracy or Act of State?’,

10 ‘The Legal Issues of ‘Para-War’ and Peace in the Middle East’,

44 St John’s Law Review 466-482 (1970).

Reprinted New York Law Journal, 18 & 19 January 1970;

Also reprinted 2 The Arab-Israeli Conﬂict 158-174 ( J.N Moore ed., 1974).

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11 ‘International Law: Law or Fantasy?’,

26 Hapraklit 507-519 (1970) (Hebrew).

12 ‘Zion Shall Be Redeemed in International Law’,

27 Hapraklit 5-11, 292-293, 519-522 (1971) (Hebrew).

13 ‘On International Law in a Continuum’,

1 Tel-Aviv University Law Review 84-95 (1971) (Hebrew).

14 ‘Criminal Jurisdiction: Limits and Limitations’,

15 ‘The Domestic Jurisdiction of the State under International Law’,

17 ‘Human Rights: The Quest for Concretization’,

1 Israel Yearbook on Human Rights 13-28 (1971).

18 ‘Oil Pollution by Ships and Freedom of the High Seas’,

3 Journal of Maritime Law and Commerce 363-374 (1972).

Reprinted 41 Acta Scandinavica Juris Gentium 220-228 (1971).

19 ‘Criminal Jurisdiction over Aircraft Hijacking’,

20 ‘What Is an International Treaty?’,

21 ‘The Legislative Power in the Administered Territories’,

22 ‘The Amendment to the Foreign Oﬀences Act’,

23 ‘Extradition in International Law’,

1 Criminology, Criminal Law and Police 219-252 (1972) (Hebrew).

24 ‘The International Human Rights of Soviet Jewry’,

(a) In English –

Reprinted Essays on Human Rights 126-143 (D Sidorsky ed., 1979) (b) In Spanish –

Los Derechos Humanos Internacionales de los Judios Sovieticos,

Coleccion Contemporanea, Mexico (1974).

(c) In Hebrew –

1 Shvut 9-16 (1973).

25 ‘Judicial Review of the Acts of the Military Government in the Administered Territories’,

26 ‘Human Rights in Israel’,

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27 ‘A Survey of Self-Defense in International Law’,

1 A Treatise on International Criminal Law 273-286 (M.C Bassiouni & V.P

Nanda eds., 1973)

28 ‘Terrorism and Wars of National Liberation Applied to the Arab-Israeli Conﬂict: An Israeli Perspective’,

Reprinted International Terrorism and Political Crimes 155-172 (M.C Bassiouni

ed., 1975)

29 ‘Another Step in Codifying the Laws of War’,

28 Year Book of World Aﬀairs 278-292 (1974).

30 ‘Freedom of Emigration and Soviet Jewry’,

Reprinted 4 Soviet Jewish Aﬀairs 17-23 (1974).

(b) In French –

‘La Liberté d’Emigration et les Juifs Soviétiques’,

Conférence Internationale de Juristes sur le Statut des Juifs Soviétiques et la Primauté du Droit 9-18 (1974).

31 ‘The Judgment in the Pithat Raﬁah Case’,

32 ‘The Specialty Principle in Extradition’,

33 ‘The European Convention on Human Rights from an Israeli Perspective’,

8 Human Rights Journal 493-504 (1975).

34 ‘International Criminal Law’,

Revised and Updated 20 Israel Law Review 206-242 (1985).

35 ‘Collective Human Rights of Peoples and Minorities’,

25 International and Comparative Law Quarterly 102-120 (1976).

36 ‘The International Law of Civil Wars and Human Rights’,

37 ‘The International Law of Inter-State Wars and Human Rights’,

38 ‘Derogation from International Human Rights’,

Menschenrechte in Israel und Deutschland 63-70 (G Stein ed., 1978).

39 ‘The International Law of Belligerent Occupation and Human Rights’,

40 ‘Demilitarization’,

41 ‘Settlements and Deportations in the Administered Territories’,

42 ‘Science, Technology and Human Rights’,

5 Dalhousie Law Journal 155-168 (1979).

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43 ‘The New Geneva Protocols: A Step Forward or Backward?’,

33 Year Book of World Aﬀairs 265-283 (1979).

44 ‘Cultural Rights’,

Reprinted Les Droits de l’Homme, Droits Collectifs ou Droits Individuels

148-169 (1980)

45 ‘Self-Determination and the Middle East Conﬂict’,

Self-Determination: National, Regional and Global Dimensions 243-257 (Y

Alexander & R.A Friedlander eds., 1980)

46 ‘International Guarantees and the Middle East Conﬂict’,

The Middle East and the United States 395-405 (H Shaked & I

Rabinovich eds., 1980)

(b) In Hebrew –

Translation of this book, 397-407 (1980)

47 ‘The Laws of War at Sea’,

48 ‘The Expulsion of Mayors from Judea’,

49 ‘Terrorism and Human Rights’,

Festschrift in Honor of Dr George S Wise 72-81 (1981).

50 ‘Autonomy’,

Models of Autonomy 291-303 (Y Dinstein ed., 1981).

51 ‘The Right to Life, Physical Integrity, and Liberty’,

The International Bill of Human Rights: The Covenant on Civil and Political Rights 114-137, 428-434 (L Henkin ed., 1981).

52 ‘The Laws of War in the Air’,

53 ‘Comment on Interstate Armed Conﬂict’,

31 American University Law Review 849-853 (1982).

54 (a) ‘The Parliamentary Foreign Aﬀairs Committee in Israel’,

Parliamentary Foreign Aﬀairs Committees: The National Setting 267-283 (A

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vol 4

(e) ‘Neutrality in Sea Warfare’, pp 19-28

(f ) ‘Prisoners of War’, pp 146-152

(g) ‘Sea Warfare’, pp 201-212

(h) ‘Warfare, Methods and Means’, pp 338-343

56 ‘Refugees and the Law of Armed Conﬂict’,

57 ‘The Laws of Land Warfare’,

58 ‘Human Rights in Armed Conﬂict: International Humanitarian Law’,

2 Human Rights in International Law: Legal and Policy Issues 345-368 (T

Meron ed., 1984)

59 ‘The Release of Prisoners of War’,

Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet 37-45 (C Swinarski ed., 1984).

60 ‘Comments on Fourth Interim Report of the ILA Committee on International Terrorism’ (1982),

7 Terrorism 163-168 (1984).

61 ‘A Realistic Approach to International Law’,

The Spirit of Uppsala 200-205 (A Grahl-Madsen & J Toman eds., 1984).

62 ‘The Laws of Neutrality’,

(b) In Spanish –

Las Leyes de la Neutralidad,

3 Anuario Mexicano de Relaciones Internacionales 127-159 (1982).

63 ‘Value Added Tax in the Administered Territories’,

64 ‘The Maintenance of Public Order and Life in the Administered Territories’,

65 ‘Discrimination and International Human Rights’,

66 ‘The Interaction of International Law and Justice’,

67 ‘International Law as a Primitive Legal System’,

19 New York University Journal of International Law and Politics 1-32

(1986-1987)

68 ‘The International Legal Response to Terrorism’,

2 International Law at the Time of Its Codiﬁcation 139-151 (Essays in Honour

of Roberto Ago, 1987)

69 ‘Anti-Semitism, Anti-Zionism and the United Nations’,

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70 ‘Reunion of Families in the Administered Territories’,

71 ‘Deportations from Administered Territories’,

72 ‘The Israel Supreme Court and the Law of Belligerent Occupation: Reuniﬁcation of Families’,

18 Israel Yearbook on Human Rights 173-188 (1988)

73 ‘The Taba Arbitration Award’,

74 ‘The Distinction between Unlawful Combatants and War Criminals’,

International Law at a Time of Perplexity 103-116 (Essays in Honour of

Shabtai Rosenne, Y Dinstein ed., 1989)

75 ‘Taxation under Belligerent Occupation’,

Das Menschen Recht zwischen Freiheit und Verantwortung 115-123 (Festschrift für Karl Josef Partsch, 1989).

76 ‘Terrorism as an International Crime’,

77 ‘Freedom of Religion and the Protection of Religious Minorities’,

Reprinted The Protection of Minorities and Human Rights 145-169 (1992).

78 ‘Siege Warfare and the Starvation of Civilians’,

Humanitarian Law of Armed Conﬂict: Challenges Ahead 145-152 (Essays in

Honour of Frits Kalshoven, A Delissen & G Tanja eds., 1991)

79 ‘The Erga Omnes Applicability of Human Rights’,

30 Archiv des Völkerrechts 16-21 (1992).

80 ‘Multinational, Federal and Confederal Arrangements’,

Shorter Version Reprinted Gift for Isaac 441-482 (Essays in Honour of Justice

Isaac Shilo, A Barak & M Shava eds., 1999) (Hebrew)

81 ‘International Humanitarian Law’,

International Human Rights Law: Theory and Practice 203-230 (I Cotler &

F.P Eliadis eds., 1992)

Reprinted Hacia un Nuevo Orden Internacional y Europeo 245-260 (Etudios en Homenaje al Profesor Don Manuel Diez de Velasco, 1993).

82 ‘The Degree of Self-Rule of Minorities in Unitarian and Federal States’,

Peoples and Minorities in International Law 221-235 (C Brölmann, R Lefeber

& M Zieck eds., 1993)

83 ‘Items in The Oxford Companion to Politics of the World’ ( J Krieger ed., 1st

ed., 1993):

(a) ‘Nuremberg Trials’, pp 659-660

(b) ‘War Crimes’, pp 967-968

(c) ‘War, Rules of ’, pp 966-967

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84 ‘The Reform of the Protection of Human Rights during Armed Conﬂicts and Periods of Emergency and Crisis’,

85 ‘The Extra-Territorial Jurisdiction of States: The Protective Principle’,

65 (II) Annuaire de l’Institut de Droit International 305-315 (1993).

86 ‘Some Reﬂections on Extradition’,

36 German Yearbook of International Law 46-59 (1993).

87 ‘The Israel Supreme Court and the Law of Belligerent Occupation: Deportations’,

88 ‘The Arab-Israeli Conﬂict from the Perspective of International law’,

43 University of New Brunswick Law Journal 301-318 (1994).

89 ‘Self-Determination Revisited’,

1 International Law in an Evolving World 241-253 (Liber Amicorum Eduardo

Jiménez de Aréchaga, M Rama-Montaldo ed., 1994)

90 ‘The Distinctions between War Crimes and Crimes against Peace’,

Reprinted War Crimes in International Law 1-18 (1996).

91 ‘The Implementation of International Human Rights’

Recht zwischen Umbruch und Bewahrung 331-353 (Festschrift für Rudolf

Bernhardt, U Beyerlin ed., 1995)

92 ‘Autonomy and Legal Status: A Rejoinder’,

26 Security Dialogue 185-189 (1995).

93 ‘Democracy and the Individual’,

1 Federico Mayor Amicorum Liber 405-417 (1995).

94 ‘The Legal Lessons of the Gulf War’,

48 Austrian Journal of Public and International Law 1-17 (1995).

95 ‘Religious Freedom in the Mediterranean Basin’,

Human Rights in the Mediterranean Area 367-400 (C Zanghi, L Panella &

R La Rosa eds., 1995)

Revised 6(2) I Diritti dell’Uomo 33-45 (1995)

96 ‘State Sovereignty and the Rights of Minorities’,

New Forms of Discrimination 217-227 (L.A Sicilianos ed., 1995).

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97 ‘Ratiﬁcation and Universality’,

The Convention on the Prohibition and Elimination of Chemical Weapons: A Breakthrough in Multilateral Disarmament 151-165 (Hague Academy of

International Law, D Bardonnet ed., 1995)

98 ‘International Law’,

Encyclopaedia Hebraica, Addenda volume 3, 642-646 (M Feldman ed., 1995)

(Hebrew)

99 ‘The Israel Supreme Court and the Law of Belligerent Occupation: Article

43 of the Hague Regulations’,

100 ‘Crimes against Humanity’,

Theory of International Law at the Threshold of the 21st Century 891-908 (Essays

in Honour of Krzysztof Skubiszewski, J Makarczyk ed., 1996)

101 ‘The Dilemmas of Democracy’,

102 ‘Comments on Protocol I’,

37 International Review of the Red Cross 515-519 (1997).

103 ‘The Laws of Air, Missile and Nuclear Warfare’,

104 ‘Diplomatic Protection of Companies under International Law’,

International Law: Theory and Practice 505-517 (Essays in Honour of Eric

Suy, K Wellens ed., 1998)

105 ‘The Universality Principle and War Crimes’,

71 U.S Naval War College International Law Studies 17-37 (The Law of Armed Conﬂict: Into the Next Millennium, M.N Schmitt & L.C Green eds., 1998).

106 ‘The International Legal Dimensions of the Arab-Israeli Conﬂict’,

Israel among the Nations 137-154 (T.M.C Asser Instituut, A Kellermann, K

Siehr & T Einhorn eds., 1998)

107 ‘The International Legal Status of the West Bank and the Gaza Strip – 1998’,

108 ‘The Israel Supreme Court and the Law of Belligerent Occupation: Demolitions and Sealing Oﬀ of Houses’,

109 ‘The Right to Humanitarian Assistance’,

Human Rights at the Dawn of the Twenty-First Century 183-198 (Karel Vasak

Amicorum Liber, F Mayor ed., 1999)

Revised 53 Naval War College Review 77-91 (2000).

110 ‘Defences’,

1 Substantive and Procedural Aspects of International Criminal Law (The Experience of International and National Courts) 371-388 (G.K McDonald &

O Swaak-Goldman eds., 2000)

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111 ‘Crimes against Humanity after Tadic’,

13 Leiden Journal of International Law 373-393 (2000).

112 ‘The Initiation, Suspension, and Termination of War’,

75 U.S Naval War College International Law Studies 131-159 (International Law Across the Spectrum of Conﬂict: Essays in Honor of L.C Green, M.N

Schmitt ed., 2000)

113 ‘The Collective Human Rights of Religious Groups: Genocide and Humanitarian Intervention’,

114 ‘Technological Development, Equality and Non-Discrimination’,

Scientiﬁc and Technological Developments and Human Rights 215-222 (L.-A

Sicilianos & M Gavouneli eds., 2001)

115 Items in the Oxford Companion to Politics of the World ( J Krieger ed., 2nd ed., 2001):

(a) ‘Nuremberg Trials’, pp 613-614

(b) ‘War Crimes’, pp 893, 897

(c) ‘War Crimes Tribunals’, pp 897-898

(d) ‘Warfare, Rules of ’, pp 898-900

116 ‘Protection of the Environment in International Armed Conﬂict’,

5 Max Planck Yearbook of United Nations Law 523-549 (2001).

117 ‘Legitimate Military Objectives under the Current Jus in Bello’,

Reprinted 78 U.S Naval War College International Law Studies 139-172 (Legal

and Ethical Lessons of NATO’s Kosovo Campaign, A.E Wall ed., 2002)

118 ‘Computer Network Attacks and Self-Defense’,

76 U.S Naval War College International Law Studies 99-119 (Computer Network Attack and International Law, M.N Schmitt & B.T O’Donnell eds., 2002).

119 ‘Deprivation of Property of Foreigners under International Law’,

2 Liber Amicorum Judge Shigeru Oda 849-869 (N Ando, E McWhinney & R

Wolfrum eds., 2002)

120 ‘The Evolution of Crimes against Humanity’,

International Criminal Court: A New Dimension in International Justice 73-92 (S

Perrakis ed., 2002)

121 ‘Unlawful Combatancy’,

Reprinted 79 U.S Naval War College International Law Studies 151-174 (International Law and the War on Terrorism, F.L Borch and P.S Wilson

eds., 2003)

122 ‘Ius ad Bellum Aspects of the ‘War on Terrorism’’,

Terrorism and the Military: International Legal Implications 13-22 (W.P Heere

ed., 2003)

123 ‘Jus in Bello Issues Arising in the Hostilities in Iraq in 2003’,

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124 ‘The Protection of Cultural Property and Places of Worship in International Armed Conﬂicts’,

3 Studi di Diritto Internazionale in Onore di Gaetano Arangio-Ruiz 1907-1922

(2004)

125 ‘Comments on War’,

27 Harvard Journal of Law & Public Policy 877-892 (2004).

126 ‘Collateral Damage and the Principle of Proportionality’,

New Wars, New Laws? Applying the Laws of War in 21 st Century Conﬂicts

211-224 (D Wippman & M Evangelista eds., 2005)

127 ‘Restatements of International Law by Technical/Informal Bodies’,

Developments of International Law in Treaty Making 93-100 (R Wolfrum &

V Röben, 2005)

128 ‘Article 7 of Additional Protocol I’,

24 Australian Year Book of International Law (A Collection of Essays to

Honour Professor I.A Shearer) 65-74 (2005)

129 ‘The Gulf War, 1990-2004 (and Still Counting)’,

130 ‘Sovereignty, the Security Council and the Use of Force’,

Redeﬁning Sovereignty: The Use of Force after the Cold War 111-122 (M Bothe,

M.E O’Connell & N Ronzitti eds., 2005)

V Published Lectures and Proceedings of Conferences

1 ‘International Cooperation in the Prevention and Suppression of Terrorism’,

80 Proceedings of the American Society of International Law 395-400, 405

(1986)

2 The Jurisprudence of the Court in the Nicaragua Decision,

81 Proceedings of the American Society of International Law 266-269, 276-277

(1987)

3 ‘Existing Legal Constraints on Nuclear Proliferation’,

Lawyers and the Nuclear Debate 61-67, 71, 73-74 (M Cohen & M.E Gouin

5 ‘The Right of Self-Defence against Armed Attacks’,

International Terrorism: Lund Seminar 57-71 (M.D Sandbu & P Nordbeck

eds., 1989)

6 ‘Developments in the Law of Naval Warfare: Custom or Codiﬁcation?’,

83 Proceedings of the American Society of International Law 151 (1989).

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7 ‘Legal Aspects of the Security of International Aviation’,

Terror in the Skies: Aviation Security: Proceedings of the First International Seminar on Aviation Security 117-127 (A Lewis & M Kaplan eds., 1990).

8 ‘National Implementation of International Humanitarian Law’,

Proceedings of an International Colloquium Held at Bad Homburg 58-66, 71,

126-128, 169-170, 214-216 (M Bothe ed., 1990)

9 ‘Major Contemporary Issues in Extradition Law’,

84 Proceedings of the American Society of International Law 404-407 (1990).

10 ‘Siracusa International Seminar on Extradition’,

62 International Review of Penal Law 31-43 (1991).

11 ‘Implementing Limitations on the Use of Force: The Doctrine of Proportionality and Necessity’,

12 ‘Human Rights: Implementation through the UN System’,

(1995)

13 ‘Is There a Right to Secede?’,

(1996)

14 ‘The Middle East Peace Process’,

15 ‘The Thirteenth Waldemar A Solf Lecture in International Law’,

166 Military Law Review 93-108 (2000).

16 ‘Humanitarian Law on the Conﬂict in Afghanistan’,

17 ‘Legal and Ethical Lessons of NATO’s Kosovo Campaign – Discussion’,

78 U.S Naval War College International Law Studies 215-216, 218-219 (A.E

Wall ed., 2002)

18 ‘Ius ad Bellum and Ius in Bello – Discussion’,

Terrorism and the Military: International Legal Implications 40-42, 108-109

(W.P Heere ed., 2003)

19 ‘Self-Defense in an Age of Terrorism’,

20 ‘International Humanitarian Law and Modern Warfare’,

Proceedings of the International Expert Conference on Computer Network Attacks and the Applicability of International Humanitarian Law 17-20 (K

Byström ed., 2005)

21 ‘International Law and the War on Terrorism’,

79 International Law Studies 147, 247-252, 316-318, 381, 483-484 (F.L Borch &

P.S Wilson eds., 2003)

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See Also

1 International Law Association:

55th Conference (New York, 1972) – 190-192, 562-563

56th Conference (New Delhi, 1974) – 163-164, 198-200

63rd Conference (Warsaw, 1988) – 410-411, 1067-1068

64th Conference (Broadbeach, Queensland, 1990) – 203-207

67th Conference (Helsinki, 1996) – 239-240, 390-400, 711

68th Conference (Taipei, 1998) – 520-521, 577, 579, 581-583

2 Institut de Droit International:

Vol 61 (II) (Helsinki, 1985) – 63, 214-215, 216, 251, 254

Vol 62 (II) (Cairo, 1987) – 96-97, 200-201, 213-214, 217, 221, 224, 229-230, 238.Vol 63 (I) (Santiago de Compostela, 1989) – 412-413, 434

Vol 63 (II) (Santiago de Compostela, 1989) – 76-77, 105-107, 245-246,

270-271, 272-273, 276-277, 280, 281-282, 283, 290-291

Vol 64 (II) (Basel, 1991) – 102, 112-113, 122

Vol 65 (II) (Milan, 1993) – 107, 121-122, 127, 146-147, 153, [305-315]

Vol 66 (II) (Lisbon, 1995) – 119-120, 127, 133-134, 163, 180-181, 206, 225, 227, 230

Vol 67 (II) (Strasbourg, 1997) – 77, 131-133, 152-153, 174, 177, 422

Vol 68 (I) (Berlin, 1999) – 576-578

Vol 68 (II) (Berlin, 1999) – 68, 80-81, 210, 215, 221, 224, 242, 245, 301, 303-304, 309-310, 312, 316, 344-345, 349-350, 352

Vol 69 (Vancouver, 2001) – 74, 624-625

Vol 70 (I) (Bruges, 2003) – 498-500

Vol 70 (II) (Bruges, 2003) – 72, 158-159, 200, 211, 213, 221

Vol 71 (I) (Crakow, 2005) – 267-268, 339-340

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Andrea Armstrong is a JD candidate at Yale Law School Prior to returning to

school, she worked as a researcher at the Center on International Cooperation and the International Center for Transitional Justice She has researched con-flict-related issues such as refugee protection (IRC), Iraq’s oil-for-food program (CSIS) and conflict prevention (UN-DPA), and has published articles on transi-tional justice/reparations and regional approaches to post-conflict reconstruction

Bill Boothby is a Group Captain in the Royal Air Force Legal Branch He has

been in the Service since 1981, with appointments in Germany, Hong Kong, Cyprus, Croatia and the UK Until recently, he led a joint service legal oﬃce

at the Joint Doctrine and Concepts Centre at Shrivenham, conducting legal reviews of weapons procurements and dealing with general international law is-sues Group Captain Boothby was a member of the UK delegations to the Oslo negotiations which gave rise to the Ottawa Convention and to the Conventional Weapons Convention negotiations in Geneva He is on the Editorial Board of

the UK Manual of the Law of Armed Conﬂict.

Fania Domb is a Senior Lecturer in Public International Law, Administrative

Law and the Law of Human Rights at the Law School of the Netanya Academic

College (Israel) She is also Associate Editor of the Israel Yearbook on Human Rights, whose Editor is Professor Yoram Dinstein.

Thomas Franck is Professor Emeritus of International Law at the New York

University School of Law He has served as Editor-in-Chief of the American Journal of International Law and President of the American Society of

International Law, and has served both as Judge Ad Hoc and as Counsel in cases before the International Court of Justice and as Arbitrator under Annex VII

of the Law of the Sea Treaty A member of the Institut de Droit International, his most recent book is Recourse to Force: State Action against Threats and Armed Attacks (2002) Professor Franck was a member of the doctoral committee that

supervised Yoram Dinstein’s dissertation almost half a century ago

Charles H.B Garraway is Visiting Professor of Law at King’s College, University

of London, an Associate Fellow of Chatham House and a Visiting Fellow at the

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Human Rights Centre, University of Essex He was the Stockton Professor at the US Naval War College in 2004/5, following 30 years service in the British Army as a legal oﬃcer He saw service in Operation Desert Storm and also worked for the Coalition Provisional Authority in Baghdad in 2003

Terry D Gill is Associate Professor of International Law at Utrecht University

and Professor of Military Law at the University of Amsterdam and the Netherlands Defence Academy He is a member of the editorial board of the

Netherlands International Law Review, the Journal of Conﬂict and Security Law and the Militair Rechtelijk Tijdschrift (Netherlands Military Law Review) He

teaches courses in the use of force, humanitarian law and military operational law at the abovementioned institutions and has been a visiting research fellow at,

inter alia, Columbia University, The Lauterpacht Centre at Cambridge University

and the International Institute of Humanitarian Law at San Remo

Wolﬀ Heintschel von Heinegg is Professor of Public Law, especially Public

International Law, European Law and Foreign Constitutional Law at the Universität Viadrina in Frankfurt (Oder) Since October 2004 he has served as Dean of the Law Faculty of the Europa-Universität Previously, he served as Professor of Public International Law at the University of Augsburg In the aca-demic year 2003/2004 he was the Charles H Stockton Professor of International Law at the US Naval War College in Newport, RI, USA He has been a Visiting Professor at the Universities of Kaliningrad (Russia), Almaty (Kazakhstan), Santiago de Cuba (Cuba) and Nice (France) He was the Rapporteur of the International Law Association Committee on Maritime Neutrality and was the Vice-President of the German Society of Military Law and the Law of War Professor Heintschel von Heinegg was among a group of international lawyers

Europa-and naval experts who produced the San Remo Manual on International Law Applicable to Armed Conﬂicts at Sea and in 2002 he published the German Navy’s

Commander’s Handbook on the Law of Naval Operations

Dino Kritsiotis is Reader in Public International Law at the University of

Nottingham and Visiting Professor of Law at the University of Michigan His teaching and research interests focus on the international legal regulation of force and international humanitarian law, and he serves as a member of the edito-

rial boards of the Journal of Conﬂict and Security Law, Human Rights & Human Welfare, the Human Rights Law Review and the African Yearbook of International Humanitarian Law.

Avril McDonald is Head of the Section of International Humanitarian Law and

International Criminal Law at the TMC Asser Institute for International Law

in The Hague She teaches international humanitarian law at the University of Groningen and international peace and security at the University of Amsterdam’s

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School of International Relations and is a regular guest lecturer at a number of other academic institutions in the Netherlands Previously, she worked as a legal assistant at the International Criminal Tribunal for the Former Yugoslavia, and prior to that, as a journalist and editor in Dublin, Sydney and New York.

Theodor Meron is a Judge on the Appeals Chambers of the International

Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda He served as President of the ICTY from 2003 through 2005 A leading scholar of international humanitarian law, human rights, and international criminal law, Judge Meron is the Charles L Denison

Professor Emeritus and Judicial Fellow at New York University Law School He

has also served as Professor of International Law at the Graduate Institute of International Studies in Geneva and a Visiting Professor of Law at Harvard and at the University of California (Berkeley) Judge Meron’s books and articles have helped build the legal foundations for international criminal tribunals A Shakespeare enthusiast, he has also written extensively on the laws of war and chivalry in Shakespeare’s historical plays Judge Meron was the 2006 recipient of the American Society of International Law’s Manley O Hudson Medal

John F Murphy is a Professor of Law at Villanova University School of Law

in Villanova, Pennsylvania, USA Previously, he was an Attorney/Adviser in the Oﬃce of the Legal Adviser, US Department of State, and practiced law in New York and Washington, DC From 1969-1983 he was a professor of law at the University of Kansas School of Law, and a visiting professor at the Cornell and Georgetown Law Schools From 1980-81 he was the Charles H Stockton Professor of International Law at the US Naval War College He is the recipient

of a Certiﬁcate of Merit from the American Society of International Law for his

casebook (with Alan Swan), The Regulation of International Business and Economic Relations, and serves as the American Bar Association’s Representative to the US

Mission to the United Nations

Jelena Pejic is a Legal Adviser at the Legal Division of the International

Committee of the Red Cross (ICRC) in Geneva responsible, among other things, for issues related to terrorism and international humanitarian law She also is Head

of the ICRC’s Project on the Reaﬃrmation and Development of International Humanitarian Law Prior to the ICRC, she was Senior Program Coordinator at the Lawyers Committee for Human Rights in New York (now Human Rights First) and was a lecturer in Public International Law and International Relations

at Belgrade University Law School

W Michael Reisman is Myres S McDougal Professor of International Law at the

Yale Law School where he has been on the Faculty since 1965 He has been a ing professor in Tokyo, Hong Kong, Berlin, Basel, Paris and Geneva He is a Fellow

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visit-of the World Academy visit-of Art and Science and a former member visit-of its Executive Council He is a member of the Eritrea-Ethiopia Boundary Commission, a member of the Advisory Committee on International Law of the Department of State, Vice-Chairman of the Policy Sciences Center, Inc., a member of the Board

of The Foreign Policy Association, and has been elected to the Institut de Droit International He was the President of the Arbitration Tribunal of the Bank for

International Settlements and was President of the Inter-American Commission

on Human Rights of the Organization of American States, Vice-President and Honorary Vice-President of the American Society of International Law and

Editor-in-Chief of the American Journal of International Law.

Adam Roberts is the Montague Burton Professor of International Relations at

Oxford University, and a Fellow of Balliol College His main academic ests are in the ﬁelds of international security, international organizations, and international law (including the laws of war) He has also worked extensively

inter-on the role of civil resistance against dictatorial regimes and foreign rule, inter-on the history of thought about international relations, and on the role of terrorism in international politics He is a Member of the Council, International Institute for Strategic Studies, London; and a Member of the UK Defence Academy Advisory Board

Marco Sassòli is Professor of International Law at the University of Geneva,

Switzerland, and chairs the boards of the University Centre for International Humanitarian Law in Geneva and of Geneva Call, a non-governmental organi-zation engaging armed non-state actors to encourage adherence to humanitarian norms From 2001 until 2003, Professor Sassòli was Professor of International Law

at the University of Quebec in Montreal, Canada, where he remains Associate Professor He worked from 1985 to 1997 for the International Committee of the

Red Cross at the headquarters and in conﬂict areas He was, inter alia, deputy head

of its legal division and worked in the Middle East and the Balkans Professor Sassòli has served as Executive Secretary of the International Commission of Jurists and as Registrar at the Swiss Supreme Court

Ivan Shearer is Emeritus Professor of Law, University of Sydney, Australia From

1993 to 2003 he held the Challis Chair of International Law at that University

In 2000-2001 he held the Stockton Chair of International Law at the United States Naval War College, Newport, Rhode Island Since 2001 he has served as

a member of the United Nations Human Rights Committee He is an elected Member of the International Institute of Humanitarian Law, San Remo He is a Captain on the retired list of the Royal Australian Navy Reserve

Michael N Schmitt is the Charles H Stockton Professor of International Law

at the United States Naval War College in Newport, Rhode Island He

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previ-ously has been on the faculties of the George C Marshall European Center for Security Studies in Garmisch-Partenkirchen, Germany, and the United States Air Force Academy A retired United States Air Force judge advocate, Professor Schmitt saw service during Operations Provide Comfort and Northern Watch

He is an elected member of the International Institute of Humanitarian Law in San Remo, Italy, and serves on numerous editorial and advisory boards, including the International Humanitarian Law Series’ Editorial Advisory Board

Andru E Wall is an international law attorney in the United States Navy

Lieutenant Commander Wall served in Iraq in 2004 and 2005 He has taught international law and US national security law at the United States Naval War College and Roger Williams University School of Law Commander Wall is an elected member of the San Remo International Institute of Humanitarian Law where he also serves on the teaching staﬀ

Kenneth Watkin is the Judge Advocate General for the Canadian forces and

is responsible for the provision of military law advice to the Government of Canada and for the superintendence of the military justice system Brigadier-General Watkin has been a military legal oﬃcer for 24 years including service as the Deputy Judge Advocate General/Operations where he provided legal advice

in respect of international and domestic deployments of the Canadian Forces

He was a Visiting Fellow at the Harvard Law School’s Human Rights Program during 2002-2003

Ruth Wedgwood is the Edward Burling Professor of International Law and

Diplomacy, and Director of the International Law and Organizations Program, School of Advanced International Studies, Johns Hopkins University, in Washington, DC She serves on the US Secretary of State’s Advisory Committee

on International Law, the Pentagon’s Defense Policy Board, and the CIA Historical Review Panel She was elected by the 148 states parties as US member

of the United Nations Human Rights Committee in Geneva She is an editor

of the American Journal of International Law, vice-president of the American

Society of International Law, and former co-director of studies at the Hague Academy of International Law Earlier in her career, she was a federal prosecutor and Stockton Professor of International Law at the US Naval War College

Rüdiger Wolfrum is Director at the Max Planck Institute for Comparative Public

Law and International Law and Professor at the Law Faculty of the University of Heidelberg Since 1996 he is Judge and since 2005 President of the International Tribunal for the Law of the Sea He teaches international law as well as national public law He has written and edited books on international law, international environmental law and on human rights and serves as advisor to several interna-tional law journals

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A Revival of the Just War Theory?

Ivan Shearer

I Introduction

A new interest in just war theory has been prompted by pressures to justify, in legal terms, forms of armed attack or forcible intervention lying outside, or at the margins of, the uses of armed force in international relations allowed by orthodox interpretations of the United Nations Charter and customary international law.

Although we are concerned here principally with the jus ad bellum, there is a nection with the jus in bello in that one commonly accepted proposition of just

con-war theory is that a use of force is not justiﬁed where the necessary means to be employed to achieve the object would be inherently excessive or indiscriminate.

It is the position of the present writer that the orthodox interpretation of international law governing the use of armed force in international relations, which admits of no exceptions to the authorisations speciﬁed in chapter VII of the Charter, is by reason of that inﬂexibility no longer able to serve the interests

of world order As a result, certain states no longer seek to justify their uses of force in terms of international law Those states look only to a political justiﬁca-tion, or assert a doctrine of the supremacy of national law that is not subject to international law This is a dangerous trend, subversive of the most basic principle

of world order governed by law It is argued here that, rather than to rail against such attitudes impotently, or worse still to accept them, it is better to seek prin-cipled guidance from just war theory and to accommodate that theory within

an interpretation of the Charter that takes account of current realities and lenges In that way, the ideal of a world order can be re-imagined for the 21st cen-tury and not stuck in the mould of 1945 It must be stressed that this approach

chal-1 For orthodox interpretations of the UN Charter provisions on the use of force see

I Brownlie, International Law and the Use of Force (Clarendon Press, Oxford, 1963);

S Chesterman, Just War or Just Peace? Humanitarian Intervention and International

Law (Oxford University Press, Oxford, 2001).

2 The Responsibility to Protect: Research, Bibliography, Background Report of the

International Commission on Intervention and State Sovereignty, Supplementary Volume (International Development Research Centre, Ottawa, 2001) 140-143.

M.N Schmitt and J Pejic (eds.), International Law and Armed Conﬂict: Exploring the Faultlines

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