This chapter elaborates the theoretical and methodological approach used in this book. Guided by Gramscian state theory, we trace the post-1978 rise of a powerful, though divided, cadre-capitalist class, and the associated, uneven and contested fragmentation, decentralisation and internationalisation of China’s party-state. We then elaborate a theoretical model capable of explaining how policymaking and implementation work under these changed conditions: the Chinese-style regulatory state. In this model, rather than making detailed, binding decisions and strategies, top leaders try to loosely steer and coordinate a plethora of actors towards favoured ends. But other actors can influence, interpret and even ignore these policy frameworks. Chinese behaviours thus represent an ongoing struggle within the fractured party-state. Outcomes are further shaped by socio-political dynamics within the other countries in which Chinese actors operate. The chapter also explains our method and case selection, and canvasses and rejects some predictable objections to our argument: that China’s state transformation is nothing new, and that recentralisation under Xi Jinping has made the state transformation argument outdated.

Chapter 22 builds on its preceding chapter, discussing “security detention,” confinement without criminal charges for security reasons during armed conflicts or other situations of violence. This is presumably the fate of most, if not all, of the forty remaining Guantánamo detainees. The chapter compares security detention with other forms of wartime internment, including World War II Swiss internment of US and German aircrews. Law, LOAC or otherwise, authorizing internment during non-international armed conflicts is sparse but authorities (such as this textbook) point to a 2014 UK case, and the criticism that followed its resolution, as pointing the way to LOAC (Sections III and IV of 1949 Geneva Convention IV) that would allow and control security detention. Much of the chapter describes present-day US security detention policy. A difficulty is squaring LOAC with security detention beyond the conclusion of hostilities. Surprisingly, however, the US Supreme Court has a lon, if not unanimous, record of approving security detention well past the end of hostilities. Those cases suggest that current Guantánamo detainees are probably going to age and die in place.

Chapter 14 describes lawful human targets, the first being enemy combatants. Their required characteristics, activities, and locations are covered, followed by exceptions to their lawful targeting: prisoners, those showing intent to surrender, and those incapacitated by wounds. Wrongful use of force investigations are detailed, to impress the fact that violations of an exempt targeting status have consequences within our own armed forces. What legal standard is applied to the shooter when investigating possible unlawful use of force? Lawful civilian targets are considered, as well: when one is targeted he may return fire on civilians in self-defense; and when civilians are directly participating in hostilities (DPH), as is often the case in recent conflicts. Significant space is devoted to explaining what constitutes DPH, as well as to continuous combat function, the higher form of DPH. Targeting of heads of state (e.g., Saddam Hussein, Adolf Hitler, the US president) is covered. Then, is there a duty to capture, rather than wound? To wound, rather than kill? Finally, the politically fraught killings of Iranian General Suliemoni and Anwar al-Aulaqi are examined for LOAC compliance.

Chapter 18 attempts to make cultural property attractive to LOAC students. Destruction and pillage of cultural property have been a wartime problem for hundreds of years. The 1954 Hague Convention protecting cultural property is one of the more significant treaties combatants should be aware of, regardless of the blandness of the topic to many warfighters, because it is a potential fast-track to trial. The 1954 Convention and its first Protocol (of two) were issued on the same day, reflecting ineptitude in their drafting. Nevertheless, the Convention’s pertinent articles and its sometimes-unique terminology are discussed. It is the second Protocol (1999) that gives clarity and precision to the Convention, which is closely examined. Several fictional scenarios are employed to make clear the Convention’s workings. Its relationship to the 1977 Additional Protocols is strong, as is shown. The Cases and Materials examine two prosecutions arising from the conflict in the former Yugoslavia that demonstrate that the Convention has teeth that bite combatants who disregard its prohibitions.

Chapter 16 shows torture to be a lose-lose practice, its results virtually always unreliable. It is shown to be contrary to customary international law, the domestic and military laws of virtually every state, as well as the Geneva Conventions, the Rome Statute of the International Criminal Court and, of course, LOAC. Yet torture persists. After describing torture, international examples are detailed, including from CIA black sites. Excuses for torture are given and rebutted. Particular attention is given to US uses of torture after 9/11, none of which has been shown to have been useful, contrary to presidential assertions. Israel’s torture experience is covered, as is the French experience in Algeria. Waterboarding is clearly identified as torture, with several examples provided. The “ticking time bomb” scenario is argued to be an intellectual fraud, despite its being a frequent excuse for both liberals and conservatives to promote it. US military practice is also detailed. Cases and Materials include a real-world Sri Lankan ticking time bomb experience and a copy of a chilling US Department of Justice memorandum describing – and authorizing! – CIA black site methods of torture.

Chapter 21 addresses military commissions. Their history and evolution are described. During the Mexican-American War, they were a modest military law stopgap in foreign countries. The US Civil War and the Lieber Code (Chapter 2) made them what they are today: rough-edged military field tribunals to address the war crimes of foreign combatants. Their value was proved following World War II, when all the Allied states employed them. Guantánamo’s post-9/11 perverted version of military commissions, in the shadow of CIA black sites and “enhanced interrogations,” may have ended their utility: initiated by civilian political appointees with the aim of denying prisoners not just POW status but basic human rights and legal protections, Guantánamo’s military commissions have been an abject failure, brought to heel by civilian courts’ legal resistance and forced recognition of civilian legal oversight. Guantánamo’s record of eight convictions in eighteen years, three of which have been vacated, is proof of their legal ineffectiveness and moral hollowness.

Chapter 7 discusses LOAC’s core principles. This text holds that there are four core principles, per the International Court of Justice. Distinction requires that Parties to a conflict always distinguish between civilians and civilian objects and combatants, and fire only on military objectives. Military necessity, the second principle, is very elastic, holding that all lawful measures to defeat the enemy quickly and efficiently are allowed in LOAC. The third principle, unnecessary suffering, directs that one may not employ weapons or projectiles that cause superfluous injuries or unnecessary suffering in enemy fighters. This principle is directed only to combatants, not civilians who should not be targeted at all. Finally, the principle of proportionality directs that civilian injury or loss of life, and damage or destruction of civilian objects, may not be excessive in relation to the direct and concrete military advantage to be gained. The problem with the four principles is definitional: what will “quickly” defeat the enemy? What injuries are “superfluous”? What incidental civilian death is “excessive” to a military advantage? Such answers as there are, are in this chapter.