Operation Cast Lead, the Israeli military operation in Gaza that began on December 27, 2008, demonstrated anew the challenges international humanitarian law faces in contemporary conflict. The Goldstone Report presented an opportunity to examine critically how the law applies in complicated modern warfare and how the law might be used to solve difficult problems such conflict poses.

This article analyzes the Goldstone Report's application of the law to the conduct of both parties in the conflict to examine how it applies and interprets the legal standards within the framework of the Gaza conflict. In particular, the article focuses on two main shortcomings in the Goldstone Report's application of IHL: areas in which the report could have benefitted from a greater sensitivity to the complexities of modern warfare, and areas in which its approach is questionable as a matter of law.

First, the article highlights the report's flawed examination of the challenges posed by contemporary conflicts in two fundamental areas of IHL: distinction and military objectives. Both require that military commanders and soldiers understand who is a civilian and who is a fighter or combatant, and which targets are military targets and which are civilian objects. Without a thorough and sophisticated understanding of how to make these determinations, military commanders, soldiers and policy makers will face grave difficulty in planning and carrying out military operations within the bounds of the law. The challenges presented in Operation Cast Lead are emblematic of some of the most difficult dilemmas modern warfare poses.

Second, the article highlights several areas in which the Goldstone Report's application of IHL is questionable, either because it uses the incorrect legal standard or because it applies the wrong law when more than one body of law applies. The report errs twice in its treatment of the principle of proportionality, first by approaching jus in bello proportionality retrospectively rather than prospectively, and second by conflating jus ad bellum proportionality with jus in bello proportionality. Additional problems arise in its analysis of the law governing precautions in attack and the treatment of prisoners of war, and its assessment of responsibility for specific crimes, including attacks on civilians, destruction of property and hostage taking.

The development of rules governing non-international, or internal, armed conflicts has long been characterized by a profound tension between concerns of sovereignty and concerns of humanity. Historically, strong sovereignty-oriented interests dictated a slow and cautious pace of progress in this sensitive area. In recent years, however, a growing humanitarian concern for the protection of victims has prompted rapid developments in the regulation of internal armed conflict. This transformation has been greatly assisted by the establishment of the two ad hoc Tribunals for the former Yugoslavia and Rwanda by the Security Council, in 1993 and 1994 respectively, and the operation of these bodies. Clear trends in this area include not only the articulation and recognition of a growing body of norms applicable in internal armed conflicts but also the expanding criminalization of violations of those norms. In a world where most armed conflicts are of a non-international character, these developments are of the greatest significance.

From 15 June to 17 July 1998, delegations from 160 countries assembled in Rome to negotiate and adopt a Statute for an International Criminal Court (ICC), with jurisdiction over genocide, crimes against humanity and war crimes.

The ICRC, following extended discussions with a large group of experts, has adopted and issued a non-legally binding document entitled ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’ consisting of ten recommendations and about fifty pages of related commentary. The discussion process which preceded production of the Interpretive Guidance was contentious and no consensus was reached on the issue of Direct Participation in Hostilities. As the result, the ICRC, as it was entitled to do, issued its own interpretation of the applicable law. The author of this article, who was involved in all of the expert meetings, reviews and comments on the Interpretive Guidance and attempts to make an assessment of its general viability and of its acceptability to the wider IHL community.

In the future, it is likely that many battles will be fought in an urban environment. In such battles, the risk to both the civilian population and to attacking soldiers will be drastically increased. As a result, commanders will certainly face the very difficult dilemma of determining the amount of danger to which they will expose their forces in order to limit civilian casualties. Additionally, both strategic and tactical considerations will continue to play an influential role in determining their course of conduct on the battlefield.

This article seeks to explore these two issues, from the perspective of the rule of proportionality. It concludes that the current law of armed conflict does not explicitly require a commander to risk her soldiers' lives in order to reduce civilian casualties. However, there are moral reasons to accept such an obligation in certain situation, and this obligation might be embedded in the law of armed conflict through interpretation of current provisions or through the Martens Clause. Additionally the article concludes that while conducting the proportionality balancing test, a commander may consider the cumulative impact of both the tactical aspects of the operation and the strategic aspects of the overall operational plan or war strategy.

The war in Iraq thrust international law into the global spotlight as has no conflict since Vietnam. Jus ad bellum debates grew increasingly heated as the launch of hostilities in March 2003 approached. Did Security Council resolution 1441 authorise Operation Iraqi Freedom (hereafter, OIF)? Perhaps the attack was an exercise of self-defence against state-support to terrorism. Did the purported doctrine of ‘preemptive self-defence’, enunciated in the 2002 US National Security Strategy, offer a legal justification? What of humanitarian intervention, democratisation or regime change? Or was the sole normative basis the one formally asserted by the United States and United Kingdom — breach of a ceasefire set forth in a Security Council resolution adopted a dozen years earlier? The jus ad bellum brouhaha resurfaced in April 2005 with the revelation that British Attorney General Lord Goldsmith had issued a classified memorandum on the legality of hostilities that differed from the public justification he proffered, with OIF days away, just over a week later.

Currently, no judicial or quasi-judicial mechanisms exist with the explicit competence to consider complaints of individuals claiming to be victims of violations of international humanitarian law. The International Committee of the Red Cross (ICRC) cannot fulfil this role as it has neither the means, the purpose nor the mandate to make enforceable judicial determinations with regard to claims of individuals alleging to be victims of such violations. Instead, it operates mainly through confidential discussions with governments. Likewise, criminal prosecutions of individual perpetrators before national or international courts, while contributing significantly to improving the implementation of humanitarian law, cannot and should not be the only answer to violations of the law. For one thing, the future International Criminal Court (ICC) will only consider the most serious violations of humanitarian law, leaving numerous other violations uninvestigated. Moreover, criminal prosecutions are concerned with individuals rather than parties to the conflict. The acts that are labelled as international crimes, however, find their basis in the collectivity. Crimes are unlikely to be prevented nor will compliance with their prohibition be significantly improved through criminal prosecution of individuals alone. Similarly, while the ICC may, either upon request or on its own motion, afford reparations to victims of war crimes, these are reparations afforded within the individual responsibility framework of the ICC. The Court may make an order directly against a convicted person rather than against a state or entity.

Unlike most other areas of international law which address only State responsibilities, the law of war assigns to individuals the responsibility to observe positive rules. The threat of being charged with a war crime, with all the attached opprobrium, is the chief means by which observance of the law of war is ensured. No one could rightly argue that war crimes prosecutions, even if they were always effectively prosecuted – and they are not – ensure perfect compliance with the law, but they are the best mechanism devised to date. Although war crimes trials has earlier antecedents, the prosecutions following World War II marked the beginning of the modern war crimes model.

World War II prosecutions were notable for the scale of atrocities alleged in the various indictments. Once the crimes were defined, and the architecture put in place to establish the various tribunals, proof of wrongdoing was rarely in doubt. There were expected legal issues to be sure: claims of ex post facto crimes, immunities for acts of state, and the defense of superior orders, among many others; but in general prosecutors fully expected convictions across the board. And many convictions did result, though there were several exceptions that resulted in full or partial acquittals.

The North Atlantic Treaty Organization (NATO) member states conducted a bombing campaign, referred to as Operation Allied Force, against the Federal Republic of Yugoslavia (FRY) from 24 March to 9 June 1999. The conduct of the bombing campaign has been subjected to a degree of outside scrutiny, particular by Human Rights Watch, Amnesty International, and the Office of the Prosecutor for the International Criminal Tribunal for the former Yugoslavia (OTP ICTY). This outside scrutiny process is not unprecedented. In particular, following the Gulf Conflict of 1990–91, Human Rights Watch produced a study entitled ‘Needless Deaths in the Gulf War’ and Greenpeace produced ‘On Impact: Modern Warfare and the Environment, A Case Study of the Gulf War.’ In addition, the United States Department of Defence (USDOD), which was not an outside scrutineer, produced a Report to Congress on the Conduct of the Persian Gulf War which included an Appendix O on ‘The Role of the Law of War.’

On 30 June 2000, the Preparatory Commission for the International Criminal Court approved by consensus the Draft Rules of Procedure and Evidence (hereinafter ‘the Rules’). Their adoption followed months of extensive negotiations during which delegations struggled to supplement the Rome Statute of the International Criminal Court (hereinafter, ICC or the Court) while fulfilling the — sometimes somewhat contradictory — objectives of safeguarding the integrity of the Statute and ‘enhancing the effectiveness and acceptance of the Court’.

In the Spring of 2005 the ICRC presented the result of a collective endeavour lasting a number of years. The purpose of its study of Customary International Humanitarian Law (hereinafter, the Study) was to ascertain and state which rules of international humanitarian law (hereinafter, IHL) are part of customary international law. The study is, of course, based on the assumption that in the field of IHL customary law indeed matters. If it did not, the voluminous study would constitute a futile work. But this unattractive perspective does not deter the question: does IHL matter in the field? If so, how and why? And, in addition: what does the Study show as to how customary law is made?

The Study might be meaningful well beyond the scope of IHL. It may convey some lessons on the role and development of customary law in current international relations.

This essay provides a commentary on the ongoing discussion of the relationship between the two legal regimes and attendant paradigms of hostilities and law enforcement in armed conflict. The discussion has, to an extent, taken the form of a disconnect between the IHL and IHRL communities. In order to get past this, a plea is made here to apply basic well established tools of legal methodology, to apply both regimes within their respective scope of application and to utilise common sense in determining which regime is the most relevant to a particular situation. This is in the interest of legal coherence and maintaining respect for the law, as well as in the interest of the persons the law is meant to protect.

Successive Israeli governments have adopted a number of policies to control and contain the Syrian population since Israel began its occupation. Numerous villages have been destroyed, thousands driven from their homes, private and public property expropriated, the remaining Arab villages have been prevented from expanding and the free movement of people curtailed. In 1981, Israel enacted legislation that purported to annex the territory. This move was widely condemned by the international community and from the perspective of international law, the Syrian Golan remains an occupied territory to which the laws of occupation apply.

The northern hemisphere summer of 2008 marked the 41st anniversary of Israel's occupation. This report outlines the background to the occupation and the consequences for the local population. It then examines the action of the Israeli authorities and argues that certain practices by the Israeli Defence Forces constitute war crimes, which in some cases may also amount to grave breaches of the Fourth Geneva Convention governing the protection of civilians.

No one would consider constructing a building without first checking whether its foundations are sound. It is no different with international humanitarian law.

It is useful to examine the difficulties and even failures of international humanitarian law encountered in practice. But before beginning work on a renewal or development of the law, one must be sure the undertaking can be withstood by the foundations and that it will not call into question the very principles on which the law is founded. Any examination of international humanitarian law will have to be carried out in a very open-minded manner — one that rules out nothing, not even the possibility of scrapping the law entirely and constructing a new edifice on different foundations, if one were convinced that it was not possible to incorporate the changes needed into the law as it stands. To carry out such an examination, it is essential to analyse not only what works well and what works badly but also the underlying reasons for humanitarian law's successes and failures.

To sketch out the way forward, I will begin by recalling the pillars on which international humanitarian law stands. I will then look at various shortcomings in the law and consider from whence they arise, whether they justify its amendment, and whether any such amendment is possible without undermining the law's foundations. I will conclude by setting out what solutions may be found in humanitarian law itself, the limits of that law and the consequences that must be recognised in terms of international law and its institutions.

On 26 March 1999, the Diplomatic Conference on the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (hereinafter, 1954 Convention), held in The Hague from 15 to 26 March 1999, adopted a Second Protocol to that Convention. The reasons leading to the elaboration and adoption of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (hereinafter, Second Protocol) are manifold.

Firstly, armed conflicts that have taken place since the entry into force of the 1954 Convention, such as in Cambodia, the Middle East or the former Yugoslavia, have revealed its deficiencies. In particular, the Convention lacked full application, as most of the armed conflicts have been of a non-international character; furthermore, it lacked proper implementation, as the system of execution of the Convention, which is based on a functioning Protecting Power-and Commissioner General-system, proved to be unworkable in practice; and, finally, it lacked adequate provisions to cope with the extensive and systematic destruction of cultural property during armed conflict, as it contains no mandatory criminal sanctions regime.

This article explores the compatibilities and tensions between the human right to education and occupation law. In 2004, the International Court of Justice (ICJ) issued an advisory opinion stating that Occupying Powers must extend their international human rights treaty obligations to the people in the territories they occupy. This finding reaffirmed what many human rights and occupation law scholars and judicial and quasi-judicial bodies have long claimed. While occupation law and human rights law are largely compatible tensions between the two can arise however. This is not surprising given the basic premises that each body of law is based upon. While occupation law largely works to restrict the occupant from tampering with the laws and institutions of the occupied territory, there are significant portions of human rights law that work hard to press states to amend or change laws and develop infrastructure to accommodate the welfare of their populations. This tension is not merely theoretical. It has been the case since at least World War I that occupants have taken an interest in making changes to the education of youth and educational institutions in the territory they control. Relying primarily on the core obligations of the right to education, this study looks at the extraterritorial and positive human rights obligations that occupants have with regard to the primary education of children inside an occupied territory. It also sets out an approach that helps mediate the areas where the two are less than compatible.

Generally speaking, armed opposition groups are not able to win a direct confrontation with the regular armed forces because they lack firepower but they can win small, local engagements, keep large numbers of regular forces tied up and, perhaps, prevent control by the armed forces of the whole territory. Such operations place a severe strain on the rule of law. In this article, it is their impact on the law of war that is examined, but it will be done from the perspective of the regular armed forces. In this respect, it should be noted that the law has been laid down by just those powerful states and it may be that insufficient provision is made in the law for that type of combat. If it is to stand any hope of being complied with, the law must be realistic. That applies with greater force to unequal combat.

The prohibition of attacks directed against civilians and civilian objects is a logical implication of the principle of distinction and an essential part of International Humanitarian Law. There is a dearth of war crimes cases focusing on unlawful attacks, perhaps because such cases have been regarded as simply too difficult to prosecute. Recently, such cases have been prosecuted before the International Criminal Tribunal for the former Yugoslavia. The article reviews these cases and the experience of the prosecutors to provide guidance for those involved in such prosecutions in future and for those involved in advising military forces or evaluating military operational conduct.

Following the collapse of Somalia into a state of general anarchy after the fall of Siad Barre's regime, the UN Security Council, on 24 April 1992, adopted Resolution 751 with which, under the direction of the Secretary-General, it created the UNOSOM (United Nations Operation in Somalia) mission. The duty of UNOSOM was to supervise both the ceasefire between the fighting factions and the distribution of humanitarian aid.

When the situation worsened, the Security Council adopted Resolution 794 on 3 December 1992 under Chapter VII of the UN Charter, authorizing the creation of UNITAF (Unified Task Force) under the command of the United States. UNITAF's mandate was to create a safe environment for humanitarian aid and for reconstruction. With Resolution 814 of 16 March 1993, the Security Council entrusted the UN Secretary-General with the command of operation UNOSOM II, which took over from the international task force directed by the United States and concluded its mandate in 1994.

In the early hours of 31 May 2010, Israel intercepted six vessels on the high seas carrying humanitarian aid to Gaza (collectively called the ‘Gaza Freedom Flotilla’), which resulted in the death of nine civilians and the injury of many more. According to the Free Gaza Movement, the vessels were attempting to cross the Israeli blockade to deliver aid to the blockaded civilians in Gaza. Israel justified its actions by invoking its right to enforce the blockade and prevent contraband from reaching the territory. Nevertheless, the operation prompted moral outrage and a wave of critical statements by governments and international organisations, with many calling on Israel to end the restrictions imposed on Gaza. It also set in motion a highly contested debate on the legality of the blockade and the interception. As with nearly all aspects of the Israeli—Palestinian conflict, the debate involved intense scrutiny of the facts, the rules of international law, and the applicability of these rules to what has undoubtedly become a sui generis situation, unparalleled in its duration, complexity and equivocation.

This article discusses the criteria for establishing the beginning of an occupation. To this end, it analyzes the wording and drafting history of IHL instruments as well as international case law. It also looks at the influence of human rights law, in particular the notion of “jurisdiction” as used in the ICCPR and the ECHR, on the concept of occupation. Given that the IHL instruments on occupation were drafted some time ago, the impact of a number of technological developments in military affairs on the criteria for the beginning of occupation are discussed. The article concludes that the core of the concept of occupation consists of a negative and a positive element. The negative element is that the indigenous authorities of the occupied territory have been rendered incapable of functioning publicly. The positive element is expressed in Article 42 of the Hague Regulations as the requirement that the territory ‘is actually placed under the authority of the hostile army’.