Table Of ContentInternational Humanitarian Law
Facing New Challenges
Wolff Heintschel von Heinegg
Volker Epping
Editors
International
Humanitarian Law
Facing
New Challenges
Symposium in Honour
of KNUT IPSEN
123
ProfessorDr.WolffHeintschelvonHeinegg
Europa-UniversitätViadrina,
LehrstuhlfürÖffentlichesRecht,
insbesondereVölkerrecht,Europarecht
undausländischesVerfassungsrecht
August-Bebel-Straße12
15234Frankfurt/Oder
Germany
[email protected]
ProfessorDr.VolkerEpping
LeibnizUniversitätHannover,
JuristischeFakultät,
LehrstuhlfürÖffentlichesRecht,
Völker-undEuroparecht
KönigswortherPlatz1
30167Hannover
Germany
[email protected]
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Foreword
There should be no doubt about the necessity of principles and rules of interna-
tional law applicable to situations in which States and other actors have – for
whatever reasons or motives, whether legally justified or not – decided to resort to
the use of armed force. The principles and rules applicable to international armed
conflicts, first codified in the 19th century and since then constantly developed in
international conventions, are, for the most part, recognized as customary in char-
acter. The law applicable to non-international armed conflicts is less elaborated.
However, there are many who believe that under customary international law the
differences between the law governing international armed conflicts and the law
governing non-international armed conflicts have decreased. They claim that the
two bodies have more or less merged into a single body of rules applicable to both
kinds of conflicts. While this position has not remained unchallenged – it may be
added: rightly so – the core problem we are facing today is not the question of
whether there has been a merger of the principles and rules applicable to interna-
tional and to non-international armed conflicts. Rather, the alleged asymmetries of
modern armed conflicts could shake the well-established legal regime governing
armed hostilities.
Indeed, recent armed conflicts, whether international or non-international in
character, are in many respects characterized by a variety of asymmetries. One
may not like that characterization because it may be overstressed, sometimes even
abused, and ultimately virtually meaningless. Still, the said asymmetries – either
as such or in conjunction with other developments – seem to challenge the law of
armed conflicts or: international humanitarian law. These challenges may very
well compromise the very function of that body of law, which is to mitigate as far
as possible the calamities of war. Thus, the law of armed conflict may be deprived
of its fundamental function as an order of necessity because its legally binding di-
rectives will increasingly be disregarded for the sake of allegedly superior values.
Even if, however, the law of armed conflict retains that fundamental function we
may witness a remodelling of that law insofar as there will or may be what could
be characterized a renaissance of military necessity. Especially the said asymme-
tries – that are not new phenomena typical or even exclusive for 21st century
armed conflicts – are sometimes used to doubt the wisdom of the existing law and
the underlying compromise between considerations of military necessity and con-
siderations of humanity.
Against these findings or rather apprehensions some may raise objections by
hinting at the indeed fast-paced development of criminal international law. That
law, they will maintain, gives clear evidence of the preparedness of the interna-
tional community to reaffirm the law of armed conflict and to even improve its en-
forcement. While the appropriateness of criminal international law as one en-
forcement mechanism of the law of armed conflict is not doubted here the ques-
tion remains whether its very existence may not lead to a shift of responsibilities
from the State level to the individual level. In view of the so-called CNN effect it
VI Foreword
may prove more profitable to have the individual wrongdoer in the spotlight and
thus to distract from the international responsibility of the State whose organ the
wrongdoer is.
Moreover, we still witness a lack of dissemination of the law of armed conflict.
Of course, small States, developing countries and countries in transition are in
most cases not in a position to comply with their duty to effectively disseminate
that law neither among their armed forces nor among the population. However,
there are some incidents that seem to give evidence of a poorly developed dis-
semination mechanism in advanced and rich countries as well.
With regard to the alleged or real asymmetries the focus is very often laid on
the fact of an increased involvement of non-State actors in armed hostilities. All
too often it is, however, forgotten that private individuals have always – indirectly
or directly – participated in armed hostilities – either with or without the blessing
of the respective government. It suffices here to mention partisan warfare during
the Second World War and to the fact that that asymmetry lead to an increased
disregard of the law. However, it would fall short of reality if the partisans of
those days were put on par with those individuals that today participate in interna-
tional and non-international armed conflicts. Very often those non-State actors are
well-trained and equipped and, moreover, organized in a way that seems to indi-
cate that they more resemble transnational terrorists than individuals who have de-
cided to intervene into an armed conflict for purely patriotic or similar reasons.
Another aspect contributing to an asymmetric character of modern armed con-
flicts are private contractors and other civilians increasingly performing military
functions that used to be the exclusive monopoly of the State and its organs. Pri-
vate military firms, e.g., are entrusted with a variety of tasks ranging from mere
supply and technical support to the provision of data, training, and to close air
support or even to fighting the war altogether.
A further asymmetry that is all too often left aside or even forgotten is the in-
creasing technology gap. It suffices to mention the advanced state of the US in
weapons and electronic technology. Again, it would fall short of reality if the en-
suing technology gap between the US and the vast majority of other States were
merely taken for justifying the claim that technologically advanced States are un-
der a legal obligation to only make use of high-precision weaponry. An adversary
confronted with highly advanced armed forces equipped with highly sophisticated
weapons and other systems may well be inclined to disregard the law by alleging
that its very survival is at stake. It needs to be emphasized in this context that the
problem not only lies in the possible use of poorly developed weapons of mass de-
struction. Only remember Somalia, only remember Iraq and the tactics used in
those countries against an overwhelming enemy military power. There is, how-
ever, the reverse of the technology gap we should not forget either. Technological
supremacy creates new vulnerabilities that will certainly induce the adversary to
undertake everything feasible to make military or political use of them. The possi-
ble effects are not yet thoroughly scrutinized and may very well have negative im-
pacts on the principle of distinction.
The said asymmetries may not only result in a renaissance of considerations of
military necessity, they may not only have a negative impact on the principle of
Foreword VII
distinction, but they may moreover brush aside the achievements of the past 150
years in which the law of armed conflict has been developed to a rather sophisti-
cated legal order that is very much in line with the fundamental values of modern
civilized States.
In order to discuss these and other questions a most distinguished group of ex-
perts in the field of the law of armed conflicts gathered in Berlin in June 2005.
Their contributions reveal that they do not agree on every assessment. Still, the
discussions were guided by mutual respect and by the common goal to find oper-
able solutions for contemporary problems and challenges.
The Berlin Symposium was dedicated to celebrate the 70th birthday of Knut Ip-
sen. Of course, it would not do justice to Knut Ipsen to reduce his academic and
professional work to the field of the law of armed conflict. As a member of the
German delegation to the Geneva conference on the reaffirmation and progressive
development of international humanitarian law applicable to armed conflicts
(1974-1977) and to the United Nations Conference on conventional weapons
(1978-1980) he has, however, like no other German international lawyer of the
second half of the 20th century, contributed to the progressive development of the
law of armed conflicts. As the President of the German Red Cross (1994-2003) his
impact on that development may have been indirect but it has certainly been last-
ing and effective.
The editors express their gratitude to the Fritz-Thyssen Foundation for their
contribution which made the symposium possible. They also thank the German
Red Cross for making available their premises that enabled the participants to pur-
sue their goals in a most pleasant atmosphere. They owe gratitude to the “Verein
zur Förderung der Rechtswissenschaften e.V. (Bochum)” and the “Förderkreis Eu-
ropa-Universität VIADRINA e.V.” whose contributions enabled them to publish
the results of the symposium. Finally, the editors would like to thank Mr. Tobias
Gries for his never-tiring work in organizing the symposium and in preparing the
present publication.
Frankfurt (Oder)/Hannover, November 2006
Wolff Heintschel von Heinegg Volker Epping
Table of Contents
Foreword................................................................................................................V
Introduction
Confronting New Challenges Knut Ipsen and International Humanitarian Law.....3
Volker Epping
Asymmetries with regard to Methods and Means of Warfare
Asymmetrical Warfare and International Humanitarian Law...............................11
Michael N. Schmitt
‘The end justifies the means’ – Should this be the philosophy?............................49
William H. Boothby
Comment: Is the Principle of Distinction Outdated?.............................................53
Stefan Oeter
Asymmetries and the Identification of Legitimate Military Objectives
Asymmetries and the Identification of Legitimate Military Objectives................65
W. Hays Parks
Targeting Hearts and Minds: National Will and Other Legitimate Military
Objectives of Modern War..................................................................................117
Charles J. Dunlap
The United Kingdom and Legitimate Military Objectives: Current Practice
… and Future Trends?.........................................................................................127
Steven Haines
X Table of Contents
The System of Status Groups
The System of Status Groups in International Humanitarian Law......................145
Yoram Dinstein
Collateral Damage, Proportionality and Individual International Criminal
Responsibility......................................................................................................157
Torsten Stein
Do Non-State Actors Challenge International Humanitarian Law?....................163
Hans-Joachim Heintze
The Relationship between Individual and State Responsibility
Individual and State Responsibility for Violations of the Ius in Bello:
An Imperfect Balance..........................................................................................171
Dieter Fleck
Some Comments on the International Responsibility of States...........................207
Frits Kalshoven
Responsibility for Violations of International Humanitarian Law, Inter-
national Criminal Law and Human Rights Law – Synergy and Conflict?..........215
Andreas Zimmermann
Dissemination and Monitoring Compliance
Dissemination and Monitoring Compliance of International
Humanitarian Law...............................................................................................227
Knut Dörmann
Fact-finding as a Means of Ensuring Respect for International
Humanitarian Law...............................................................................................249
Michael Bothe
Human Rights Treaty Bodies and Their Potential Role in Monitoring...............269
Rainer Hofmann
Contributors.........................................................................................................273
Introduction
