International Humanitarian Law Part 13 in the United States

237
Jean Marie Henckaerts/Louise Doswald-Beck (eds.): Customary International Humanitarian Law, Volume I: Rules, Customary International Humanitarian Law, Volume II: Practice, Part 1 and 2
Boldt
German Yearbook of International Law
Volume 48, 2005    p.680 LAW JOURNAL / LAW REVIEW

238
The Effect on National Law of the Customary International Humanitarian Law Study
Rowe, P.
Journal of Conflict and Security Law
Volume 11, Number 2, Summer 2006    p.165-177 LAW JOURNAL / LAW REVIEW
This article discusses whether the Rules formulated in the Customary International Humanitarian Law Study are automatically a part of national law, particularly in common law States. It argues that even if some or all of them accurately reflect customary international law at the present time, their status is only as potential norms of national law. It concludes that they cannot, by themselves and without more, amount to crimes within national law. The author discusses also the relationship between the Rules at common law and any wholly or partially implemented treaty upon which they are based. He concludes that the Rules, as such, will generally have little practical impact upon national criminal law.

239
International Accountability for Violations of the Ius in Bello: The Impact of the ICRC Study on Customary International Humanitarian Law
Fleck, D.
Journal of Conflict and Security Law
Volume 11, Number 2, Summer 2006    p.179-199 LAW JOURNAL / LAW REVIEW
The law of armed conflicts prohibits indiscriminate warfare, unnecessary suffering and perfidious acts, yet practice confirms that legal rules which have been expressly supported by states are widely violated, while means to enforce compliance are often weak or altogether lacking. The Article considers the imperfect situation of compliance and enforcement in armed conflicts and shows that specific problems, in particular with respect to non-state actors, remain unsolved and too little discussed. The obligation of states to respect and ensure respect of international humanitarian law is evaluated. In this context similar obligations of transnational corporations and armed opposition groups are considered and the role of international organisations addressed. Advocating new efforts by lawyers and operators, in order to ensure confidence in the law and to improve the protection of victims of armed conflicts, the author identifies eight practical steps as being the most important.

240
Weapons in the ICRC Study on Customary International Humanitarian Law
Turns, D.
Journal of Conflict and Security Law
Volume 11, Number 2, Summer 2006    p.201-237 LAW JOURNAL / LAW REVIEW
Part IV of the ICRC”s Customary International Humanitarian Law Study is the shortest section of that monumental work; yet it covers one of the most important technical areas of humanitarian law, namely prohibited weapons. It does so by means of two “General Principles” and 14 rules on specific weapons, all of which are covered by various treaties that have been made since 1868 (a notable omission is nuclear weapons). This article outlines the context of the Study”s overall impact in relation to weaponry and addresses some methodological criticisms concerning the extrapolation of customary rules from treaties which, in some cases, are barely a decade old and either have not attracted a very large number of States parties or are confronted with significant contrary State practice by major military powers like the United States of America. The article goes on to consider each Rule individually in light of its origins in treaty law and previous status as custom, if any. A point of contention throughout these Rules is the Study”s cavalier extension of them to cover non-international, as well as international, armed conflicts, even in cases where State practice is all but absent. This detracts from the Study”s overall credibility and usefulness. It is seriously suggested that most of the Rules in this Part of the Study are either unsupported by sufficient evidence or otherwise redundant; the Study”s authors could usefully have stopped at the second of the “General Principles” as far as weaponry is concerned.