‘Women, peace, security’ has now firmly emerged as a distinct category for attention by international law, international policy and programming approaches for governments and activists alike. UN Security Council Resolution 1325 is the pillar of this agenda and there is questionable evidence of whether the kind of reforms envisioned through SCR 1325 have truly taken place and whether progress, if any, has been made towards its implementation. High expectations are pinned to the more recent and related resolutions SCR1820 (2008), SCR1888 (2009) and SCR1889 (2009) recently adopted by the Security Council. Increasingly, the focus has been on the potential offered through the development of ‘action plans’ as possible ‘solutions’ to the current deficit. In this article action plans are examined and a snap-shot of the ways in which ‘National Action Plans for the implementation of SCR 1325’ are being developed and the increasing role they are playing in international debate on the theme of ‘women, peace and security’ is presented. The article argues that implementation of these resolutions requires reformist and radical interventions that create fundamental change. Factors affecting the potential of these plans to encompass this kind of approach are outlined, focusing on the process and content aspects of developing action plans. The article highlights that while action plans are generating positive incentives to compel states to act, caution is required before proclaiming them to be the ‘antidote’ to the existing gulf between the principles of the Resolution and effective policy response and implementation. Commentary on emerging trends and some suggestions on possible avenues for moving forward conclude the article.

In November 2000, a few weeks after the outbreak of a major uprising in the occupied West Bank and Gaza Strip, the Israeli government officially acknowledged it was operating a policy of targeted killing against selected Palestinian militants. On 14 January 2002, an Israeli (PCATI) and a Palestinian (LAW) human rights group jointly submitted a petition to the Israeli High Court to halt the policy and to issue an interim order suspending its implementation. The Court subsequently refused to issue the requested interim order and, when it finally delivered its judgment in the case on 14 December 2006, at least 213 targeted persons and 137 bystanders had been killed and hundreds of others injured in operations of targeted killing. In its judgment, the Court neither banned nor justified the state policy as a whole, but ruled that the lawfulness of targeted killings must be examined separately for each operation.

Of all the calamities that can befall a people or a state, civil war has always been considered one of the worst. Setting son against father, brother against brother and neighbour against neighbour, civil war is a merciless struggle that is not limited to the clash of armed forces. Characterised by denunciations, acts of vengeance and the settling of scores, civil war unleashes the built-up tension and hatred within a society.

The implementation of international humanitarian law (IHL) is confronted with many challenges. Some of them are inherent since IHL applies to armed conflicts: a situation must be classified before IHL can be applied. Existing implementation mechanisms either do not function at all or have their limits. In certain conflicts, such as asymmetric conflicts, and with regard to certain players, such as armed groups, it is particularly difficult to obtain respect of IHL. Beyond that, there is a perhaps even more dangerous challenge in perception.

The gap between the burgeoning promises of protection by the law made by doctrine, jurisprudence and sometimes even by States, and the systematic non-respect of that law, which (in the author's view wrongly) transpires from the media and NGO reports, undermines the credibility of the law and the willingness to respect it. The author advocates ways to reduce this gap.

The four Geneva Conventions of 1949 for the protection of war victims open with an unusual provision: it is the undertaking of the contracting states ‘to respect and to ensure respect for [the Conventions] in all circumstances’. Why reaffirm that contracting states are bound to ‘respect’ their treaty obligations? Does ‘all circumstances’ add anything special to this fundamental rule of the law of treaties? And what about ‘ensure respect’: should that not be regarded as implicit in ‘respect’, in the sense of a positive counterpart to the negative duty not to violate the terms of the Conventions?

I readily admit that common Article 1 was not the first provision of the Conventions to capture my attention: there was, after all, so much to discover in these impressive structures that Article 1 could easily be passed over as an innocuous sort of opening phrase. Two things have changed this. One was the insistence of the International Committee of the Red Cross (ICRC) that a State Party to the Conventions is not only itself bound to comply with its obligations under these instruments but is under a legal obligation to make sure that other States Parties do likewise. The more this thesis of the ICRC was forced upon us, the less likely it seemed to me that this could indeed be an international legal obligation upon contracting states.

On 12 September 2005, at around 7 a.m., the last group of Israeli soldiers left the Gaza Strip, thereby ending 38 years of continued Israeli military presence in the area. In a short ceremony at one of the exit gates, IDF Brigadier-General Aviv Kochavi, the departing Gaza Region Commander, stated: ‘the responsibility for whatever takes place inside befalls upon the [Palestinian] Authority.’ On that same night, the IDF Chief of Southern Command, Major-General Dan Harel, promulgated an official decree proclaiming the end of military rule in the Gaza Strip and formally nullifying the decree issued on 6 June 1967, which instituted military rule in the region. So came to end Israel's prolonged occupation of Gaza – or did it?

This article looks at the history of military manuals and their role in the dissemination of the law of armed conflict. It divides manuals into three categories, international, national, and internal, examining each in turn in relation to its role. The author concludes that there is a tension between the role of a manual as evidence of ‘state practice’ in the development of customary international law and the need to provide service personnel with clear understandable instructions for use in military operations. He counsels against excessive reliance on manuals as evidence of state practice as this could have the effect of making states reluctant to openly publish such documents with a detrimental effect in the operational field.

The 1977 Protocol I Additional to the Geneva Conventions of 12 August 1949 instituted the following obligation for States Parties:‘Article 36. New weaponsIn the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.’

The obligation to ensure the legality of weapons of war was not new. Article 1 of Hague Convention II with Respect to the Laws and Customs of War on Land of 29 July 1899 obligated States Parties to issue instructions to their armed land forces, which were to conform to the rules contained in the Annex to that Convention. This included Article 23(e), which prohibited employment of ‘arms, projectiles or material of a nature to cause superfluous injury’. With non-substantive alteration, Article 1 of the Convention and Article 23(e) of the Annex were re-adopted in Hague Convention IV Respecting the Laws and Customs of War on Land of 18 October 1907. Under the international law maxim pacta sunt servanda states have a general duty to engage in good faith performance of their treaty obligations. This would have included a duty to ensure military weapons and munitions complied with Hague Convention IV and obligations contained in other treaties. Article 36 of Additional Protocol I changed the general obligation of good faith treaty adherence to a specific one through codification of this pre-existing obligation. Yet, almost three decades following the conclusion of the Diplomatic Conference that promulgated Additional Protocols I and II, the number of governments implementing this provision is limited. Of 166 States Parties to Additional Protocol I, only nine have been identified as having formal, full-time programmes for the legal review of new military weapons and ammunition.

This article provides the history of and context for Article 36's incorporation into Additional Protocol I, the development of the law of war related to certain conventional weapons over the past four decades, and details as to implementation of this obligation. The last part is based upon the author's experience in preparing legal reviews of military weapons and ammunition over the past 30 years.

The application of international humanitarian law to United Nations military operations is a subject that has attracted considerable interest almost from the inception of the United Nations. While the basic premise that United Nations forces should, at the very least, respect the ‘principles and spirit’ of international humanitarian law conventions has long commanded general acceptance, there has been considerable controversy both about the legal basis for this proposition — in particular, whether this duty of respect is something derived from general international law or the result of a specific and voluntary undertaking by the United Nations — and about the exact meaning of ‘principles and spirit’ in this context.

At the Rome Conference on the adoption of the Statute of the International Criminal Court (hereinafter, the Statute and the ICC), the negotiators faced basically three types of problems. First, a considerable number of primarily technical difficulties stemmed from the differences between national systems of criminal law. This type of problem was characteristic for the discussions on general principles of criminal law (Part 3 of the Statute), criminal procedure (Parts 5, 6 and 8) and enforcement (Part 10). Second, a more limited number of disputed questions resulted from deeply-rooted differences in legal culture. This was true for the most important controversies on penalties (Part 7), in particular for the hotly debated death penalty, and for some specific points relating to the general principles of criminal law, in particular, the treatment of voluntary intoxication. Third, delegations were forced to break the impasse with regard to a set of unresolved key issues of a highly political nature. This article deals with two sets of issues belonging to the latter category: jurisdiction and cooperation.

The respective places of jurisdiction and cooperation within the Statute, i.e., Articles 5, 12 and 13 (in Part 2) and Articles 86 to 102 (all of Part 9), tend to conceal the intimate interrelation between them. On a little closer look, though, the links between jurisdiction and cooperation become obvious. Functionally, the implementation of any set of jurisdictional rules defining the Court's sphere of activity depends on a complementary cooperation regime.Systematically, the key elements of the jurisdictional regime constitute starting points in framing the cooperation regime.

There may be no other term in international humanitarian law (hereinafter, IHL) which evokes such debate or controversy as ‘proportionality’. In part, this debate is a result of the nature of the term itself. The broad use of the term ‘proportionality’ in international law, combined with images of an almost scientific balancing of opposing interests on finely tuned scales of humanitarian justice, masks a much more complex and unclear reality. The degree to which contemporary discussion and, with it, the law camouflages the complex moral issues underlying the targeting ‘proportionality’ test is reflected in the fact that conventional law does not actually use the term. Rather, the question ‘at law’ is whether a loss of civilian life or damage to civilian property during the conduct of hostilities is ‘excessive in relation to the concrete and direct military advantage anticipated’.

The difficult questions presented when assessing proportionality during targeting arise in part because society is required to face the reality that ‘[i]n any armed conflict people are injured or killed and property is damaged or destroyed.’ Even more fundamentally, the assessment of ‘excessive’ killing or damage forces a qualitative assessment by ‘civilised’ peoples of the value of human life not only in relation to other humans but also with respect to property and ultimately politically-driven objectives related to the conduct of hostilities. Ultimately, the goal of warfare is to change the ‘mind’ of another state or other political entity. Yet, forcing one's will on another state by violent means inevitably results in civilians being put at risk ‘not because anyone set out to attack them, but only because of their proximity to a battle that is being fought against someone else’.

Humanitarian intervention, a long-standing issue in international legal writing and in state practice, has become a major focus of international legal thinking and military action. Since the early 1990s, there have been new and unexpected elements in the practice of intervention, in its authorization, and in debates about it. Action by outside military forces in several territories — northern Iraq, Somalia, Haiti and Kosovo — has provoked questions about whether there is a right of humanitarian intervention. In addition, the debate on the subject has been spurred by the strong sense that there were crises (most notably, the genocide in Rwanda in 1994) in which the international community should have intervened promptly but failed to do so.

Anwar al-Awlaki is a dual Yemeni-American citizen who has emerged in recent years as a leading English-language proponent of violent jihad, including explicit calls for the indiscriminate murder of Americans. According to the US government, moreover, he also has taken on an operational leadership role with the organization al Qaeda in the Arabian Peninsula (AQAP), recruiting and directing individuals to participate in specific acts of violence.

Grisly images of dead or injured civilians vie with ‘morbidly spectacular film of PGM (precision guided munition) strikes’. These phenomena, like this article, focus attention on the two most basic law of targeting components, that of military objective and that of incidental civilian losses. The latter component, being incidental civilian loss, injury and damage, also known as collateral damage, is one side of the proportionality ‘equation’. Expected incidental civilian losses (which term will be used interchangeably with collateral damage) are balanced against the anticipated military value of the strike. This balancing, i.e., proportionality, is one of the major factors in the law of targeting. The concepts examined are two of the most dramatic aspects of targeting. Is there any relationship between military objective and incidental civilian losses? If so, what is the linkage? If one concept expands or contracts what happens to the other? This relationship may have important implications for the type of expertise required to make legal targeting decisions. The type of expertise required would indicate who is best placed to make such targeting decisions and what sorts of errors such decision makers are prone to make and thus must particularly strive to avoid.

Israel's military operation in the Gaza Strip from 27 December 2008 until 18 January 2009 raised a host of legal questions on status and the conduct of hostilities, many of which have been subjected to intense scrutiny. But perhaps the two most troubling questions that remain unresolved concern the appropriate legal regime that governed the conflict and the geographical reach of the law. Was this an international armed conflict? If so, who were the ‘contracting parties’ and what was the territorial scope of the conflict? Alternatively, was the armed conflict one between a state, Israel, and a non-state actor, Hamas, and thus subject to the rules that apply in non-international armed conflict? This latter position jars with our intuition not least because the codified law assumes non-international armed conflict takes place within the territory of a contracting state. The disquiet is apparent in the Israeli Supreme Court judgment of 2009, Physicians for Human Rights v. Prime Minister, in which the Court had to determine the legal regime governing the armed conflict between Israel and ‘the Hamas organization’. Describing the normative ‘arrangements’ as ‘complex’, it noted that ‘the classification of the armed conflict between the state of Israel and the Hamas organization as an international conflict raises several difficulties’.

From a doctrinal point of view, the relationship between human rights and international humanitarian law (IHL) seems like a settled issue in terms of the correspondence of basic objectives and common aims.

Different theories have tried to explain that relationship, taking into consideration either that human rights and IHL are separate systems or that they are completely integrated within international law. Most recent positions emphasize their convergence into a scheme of mutual coordination and complementarity.

In our view, none of these positions clearly characterize the day-to-day interface between human rights and IHL. Taking that premise as a point of departure, our purpose is to demonstrate that there is no rational or organized convergence between the two systems of law, that similitude and correspondence are sometimes overwhelmed by diversity, and that gaps and overlaps between their rules are a common feature of their interrelations.

In 2004 the Israeli government adopted a plan for its unilateral disengagement from the Gaza Strip and areas in the north of the West Bank, a plan which was carried out the following year. Debated in the Israeli parliament and governmental and academic circles, the Israeli ‘disengagement’ plan provoked disagreement with respect to its effects on the legal status of the Gaza Strip, and Israel's responsibility for the lives of Gazan Palestinians, if any, in its aftermath.

This paper seeks answers to the question of Israel's continued responsibility (or lack thereof) vis-à-vis the Occupied Palestinian Territories (hereinafter, OPT), and the status of those territories following the Israeli disengagement from the Gaza Strip (and parts of the West Bank). Without being dismissive of arguments made to the contrary, this paper demonstrates the validity of the views of the majority of scholars that Israel has maintained the status of Occupying Power vis-à-vis the OPT, contrary to its claims and one of the main objectives of the ‘disengagement’, as announced by the Israeli government.

The observation that international humanitarian law (IHL) does not need more rules, but rather better enforcement mechanisms has become somewhat of a universally accepted mantra, as well as a call for action. Indeed, the last quarter of a century has witnessed considerable progress in the strengthening of IHL enforcement procedures: new international criminal courts with jurisdiction over certain IHL issues have been established; universal and other forms of criminal jurisdiction have been exercised by a growing number of states during and in the aftermath of numerous armed conflicts; and military lawyering has been expanded in scope and deepened in reach in many national militaries. In addition, it has become widely-accepted that international human rights law (IHRL) continues to apply in situation of armed conflict, at least with regard to persons situated under the effective control of the relevant states. As a result, IHRL courts and committees have increasingly asserted their authority over armed conflicts.

As the war in Afghanistan and the fight against transnational terrorism wage on with no immediate end in sight, US forces have increasingly turned to drone (technically labeled an unmanned aircraft system or UAS) strikes to target Taliban insurgents and Al Qaeda terrorists, especially in Pakistan's tribal areas of North and South Waziristan. Between 2004 and 2007, a mere nine such attacks were conducted. By contrast, in 2010 there were 118, and by mid-February 2011 US forces had already launched 12. The tactic has proven highly effective in disrupting enemy operations. Since 2004, 32 senior members of al Qaeda and the Taliban have been killed. In 2010, for instance, the US successfully targeted such key figures as Ibne Amin, an al Qaeda linked Swat Taliban commander; Ali Marjan, a local Lashkar-e-Islam commander; Sheikh al-Fateh, the al Qaeda chief in Afghanistan and Pakistan; Hamza al-Jufi, an al Qaeda commander; Sadam Hussein Al Hussami, an al Qaeda planner and explosives expert; Mohammad Qari Zafar, a Taliban commander wanted in connection with the 2006 Karachi consulate bombing; Sheikh Mansoor, an Egyptian-Canadian al Qaeda leader; Abdul Haq al-Turkistani, an al Qaeda linked leader of the Turkistani Islamic Party; Jamal Saeed Abdul Rahim, wanted for his alleged role in the 1986 hijacking of a Pan American World Airways flight; and Mahmud Mahdi Zeidan, a Jordanian Taliban commander. Overall, US air strikes are estimated to have killed between 1,060 and 1,707 members of al Qaeda, the Taliban and associated groups in the past 6 years.

Following the terrorist attacks of 9/11, the United States sought to establish a framework for detaining, interrogating and possibly prosecuting persons suspected of various degrees of connection to international terrorism. There were several factors militating against reliance on a tried and true law enforcement paradigm of arrest and prosecution in federal courts. Perhaps the most significant one, as described by then Attorney General Ashcroft and other senior officials in the Department of Justice, was the felt need for a fundamental shift in approach when dealing with terrorist suspects, from prosecution to prevention of future attacks.

It was presumed that these two interests were at odds: on the one hand, preparing and trying criminal cases, and on the other hand, obtaining actionable intelligence about terrorist groups and their plans; in other words, that the application of criminal justice procedures would hamper the intelligence gathering effort. After all, ‘you have a right to remain silent and a right to an attorney’ (the so-called Miranda warnings) was not the message that the administration wanted to convey.