International Humanitarian Law: Prospects (International Humanitarian Law) (v. 3) [Hardcover]

John Carey (Editor), William V. Dunlap (Editor), R. John Pritchard (Editor)

Book Description

Publication Date: October 31, 2006 | ISBN-10: 1571052666 | ISBN-13: 978-1571052667 | Edition: 3rd

In three distinct volumes the editors bring together a distinguished group of contributors whose essays chart the history, practice, and future of international humanitarian law. At a time when the war crimes of recent decades are being examined in the International Criminal Tribunals for Former Yugoslavia and Rwanda and a new International Criminal Court is being created as a permanent venue to try such crimes, the role of international humanitarian law is seminal to the functioning of such attempts to establish a just world order. The intent of these volumes is to help to inform where humanitarian law had its origins, how it has been shaped by world events, and why it can be employed to serve the future. The other volumes in this set are "International Humanitarian Law: Origins" and "International Humanitarian Law: Challenges".

Editorial Reviews

Review

I hope the third volume of the set (International Humanitarian Law: Prospects)... will be as intellectually engaging as the first two volumes. I highly recommend that all libraries with a focus on international humanitarian law, and more broadly on international law, purchase the set.

About the Author

Louise Tsang, Georgetown University Law Center, International Journal of Legal Information

Product Details

• Hardcover: 387 pages
• Publisher: Transnational Publishing; 3rd edition (October 31, 2006)
• Language: English
• ISBN-10: 1571052666
• ISBN-13: 978-1571052667
• Product Dimensions: 9.4 x 6.1 x 1.1 inches
• Shipping Weight: 1.7 pounds (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars  See all reviews (1 customer review)
• Amazon Best Sellers Rank: #3,134,375 in Books (See Top 100 in Books)

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This review is from: International Humanitarian Law: Prospects (International Humanitarian Law) (v. 3) (Hardcover)

International Humanitarian Law: Prospects, 3rd Edition, fully revised and updated edition edited by John Carey, William V. Dunlap, R. John Pritchard (International Humanitarian Law: Transnational Publishers) Excerpt: When the contributors gathered in Vienna in 1998 for the workshops that were eventually to grow into this series of volumes on the origins, challenges, and prospects of international humanitarian law, the horrendous and world-changing events of September 11, 2001, were nearly as far in the future as they are now in the past as the third and final volume goes to press.

Since that day, millions of people who had never heard of-- or at least thought much about -international humanitarian law have been bombarded daily with news and commentary that impressed its existence and importance on the public consciousness and conscience. For many, for the first time, the laws of war meant something more than "name, rank, and serial number," never a completely accu¬rate delimitation of the interrogation of prisoners of war, but close enough for pop¬ular consumption. Abu Ghraib and Guantanamo soon supplanted Tamarkan ("The Bridge on the River Kwai"), Stalag Luft III ("The Great Escape"), Stalag 13 ("Hogan's Heroes"), and the eponymous Stalag 17 as the popular images associ¬ated with prisoners of war, and these real-life images--whether of the prisoners or of the guards--were grimmer than most had expected. In the popular, some¬times comedic, representations of POW camps, the guards (invariably German or Japanese) were the villains, and it came as a shock to the American national psy¬che that this could be so even when the guards were Americans.

The response of the American government was swift and predictable: It never happened. If it did happen, they were just a few isolated incidents. And anyway, they did not violate international law, because the Geneva Conventions do not apply to "terrorists." By now, we know that none of that was true. The incidents are well documented and numerous, and President Bush himself has announced that the Geneva Conventions apply to all detainees in what he proclaimed as "the war on terror," now "the long war." The apparent change in direction is due in large part to the United States Supreme Court's ruling in Harridan v. Rumsfeld, 548 U.S. , 126 S.Ct. 2749 (2006), which not only reinforces the role of the Congress in determining United States policy but also makes clear that the Geneva Conventions do apply, to the surprise of few outside of the United States.

One can hope that the Hamdan case marks the end of a brief diversion from the history of progressive development that the law of armed conflict has been enjoying for the past century and more. It was a sharply divided Supreme Court that rebuked the President and his attempts to evade his constitutional limitations and the international obligations of the United States, but it was a rebuke nonethe¬less. It is not at all clear whether that diversion was fueled by a misreading of the end of the cold war and America's role as the "world's sole superpower," or by a exuberance at finally being in a position to put neoconservative ideas to work, or by a misguided notion of American exceptionalism, or just by a good old Texas-style I've-got-a-job-to-do-and-nothing's-gonna-stand-in-my-way attitude. Whatever prompted it, it now appears that the political appointees in the White House who have been dictating the legal analysis to the professional lawyers at the Justice Department, the Pentagon, and the State Department Legal Adviser's Office--instead of the other way round--may be getting the message. This vol¬ume, then, is coming out at a most propitious time.

It became clear soon after September 11, 2001, that the world would be look¬ing differently at international humanitarian law. What to do, then, with a vol¬ume--well under way--on the prospects of international humanitarian law. The regime of the Hague and Geneva Conventions was facing perhaps its gravest chal¬lenge ever, even while other developments--notably the creation of the Inter¬national Criminal Court--were carrying international humanitarian law in new directions. After much consideration, we decided that the new debates over Guantánamo, "enemy combatants," and the Geneva Conventions should not draw attention away from the broad range of issues addressed in this volume--the ICC, victims' rights, sanctions regimes, and ad hoc tribunals--and that it would be a disservice to sideline these discussions while reshaping the book around the Guantanamo and Abu Ghraib phenomenon. So we retained our original structure, updated the contributions, and invited a particularly respected scholar to address the new central question raised by the United States' response--Do terrorists have rights under international humanitarian law?

Leslie C. Green, among the most distinguished commentators on the law of armed conflict, answers that question with a resounding "yes" in the opening chapter, "The Relevance of Humanitarian Law to Terrorism and Terrorists" (the only essay here to have been written entirely after the events of 2001). Professor Green, after reviewing the antiterrorist conventions, the UN principles on the treatment of prisoners, international human rights treaties, the Geneva Conventions, and judicial decisions in Canada, Britain, and the United States, reaffirms the universality of humanitarian law and its application to everyone, even terrorists. If "they" had treated "our" personnel as "we" have treated "theirs" at Abu Ghraib and Guantánamo, he reminds us, captured offenders would have been charged with war crimes and, on conviction, would have been sentenced to long terms of imprisonment or condemned to death. Meanwhile, the Bush admin¬istration, as this volume goes to press, seems to be, gradually and grudgingly,coming around to this point of view while denying that the doctrine of command responsibility appears to lead directly to the Pentagon and the White House.

Nevertheless, in a British case that, like Hamdan, was decided too late for Professor Green to discuss, it would appear that the House of Lords has restricted the reach of international humanitarian law. The Lords held, in R. v. Jones, [2006] UKHL 16, that, in the absence of appropriate legislation by Parliament, the courts of the United Kingdom (and by extension the far-flung British Commonwealth) are powerless to recognize the authority of international law and that they lack capacity to rein in the actions of the Crown when any British Government--under cloak of the royal prerogative to wage war--commits crimes against peace or crimes against humanity. It is not open to the courts, said the Lords, even to con¬sider whether such crimes have been committed by a British Government. Thus while the power of any British Government to try enemy war criminals for war crimes, crimes against humanity, or crimes against peace has been demonstrated in the distant and not-so-distant past, its power to hold British subjects to account may be highly restricted.

Shortly after the end of the Second World War, a young Army lawyer asked the Nuremberg Tribunal to affirm, through law, the human right to live in peace and dignity. Nearly sixty years later, Benjamin B. Ferencz, who in the meantime has become one of the world's most passionate and eloquent spokesmen for inter¬national law and justice, repeats, this time to the world community, that same "Plea of Humanity to Law." Whether through ad hoc international criminal tri¬bunals, or the International Criminal Court, or the Security Council's enforcement powers--or all of the above--those who violate the international laws of human¬ity must answer for their deeds. The people of the world must send this message to their leaders--or pray that they themselves do not become the next victims.

"International criminal law in any true sense does not exist," wrote Georg Schwarzenberger (one of Leslie Green's law professors at University College, London, before the Second World War), midway through the twentieth century. At the opening of the twenty-first, the Statute of Rome went into effect, creating the world's first standing international criminal court. Even if Schwarzenberger was correct at the time, does the birth of the ICC mean that an international crim¬inal law in some true sense does now exist? What is the implication of the ICC for the concept of national sovereignty, for the state's monopoly on criminal juris¬diction, or the implication of sovereignty for the success of the ICC? In "The Creation of the International Criminal Court and State Sovereignty: 'The Problem of an International Criminal Law' Re-examined," Frederic Megret, one of Canada's outstanding international legal scholars and a former UNPROFOR "blue helmet" in Sarajevo, examines in extraordinary detail and depth these tensions and contradictions, wondering whether the ICC can ever become a defining force in global relations.

Wade Mansell of the University of Kent can muster but "Two Cheers for the International Criminal Court." He welcomes the creation of the ICC but with a caveat: One byproduct, not necessarily unintended, is a formal relegation to sec¬ond-class status of economic, social, and cultural rights, as opposed to the civil and political rights that the court will have jurisdiction to enforce. He sees this as one more step in the triumph of liberal rights over economic rights, which earlier was reflected in the decision to enforce the Universal Declaration of Human Rights by two separate international covenants and which has accelerated with the ascendancy of liberal capitalism over socialism. Why, he asks, should a fail¬ure to protect economic rights not be as much an offense as a violation of civil and political rights? Like any other international instrument, the Treaty of Rome was... Read more ›