Chapter 1 looks at the historical development of IHL, from its origins in Europe in the 1850s, and the historical events that have shaped the law through the last century and a half. It describes the effect of the Battle of Solferino in 1861 on Henri Dunant, leading to the founding of the International Committee of the Red Cross in Geneva, as well as the parallel development of the Lieber Code arising out of the American Civil War. The core treaties and other instruments forming the basis of modern IHL are outlined, from the 1864 Geneva Convention to the more recent development of international criminal law and its contribution to the law of armed conflict

The Conclusions reflect on the law outlined in Chapters 1−10. They recall that IHL is essentially an attempt to balance two fundamentally contradictory drivers – the need to wage war effectively, and the need to protect people and property from the excessive effects of warfare. It concludes that IHL largely succeeds in this endeavour, and that without IHL life for those caught up in armed conflict would be immeasurably worse. It notes, however, that while the fundamental principles of IHL are enduring, States can and should do more to develop new or more comprehensive laws where there is a need, such as the under-developed law of non-international armed conflict and the lack of regulation of certain weapons.

This chapter provides a brief overview of China’s engagement with international humanitarian law (IHL) since the late nineteenth century. It first looks back to the late Qing dynasty and follows it through to the early decades of the People’s Republic of China. It then examines China’s contemporary IHL practices, including China’s participation in IHL treaties, its domestic legislations, its approach to IHL training and education, as well as its participation in international rule-making processes. The chapter then focusses on developments of new technologies that have called into question the applicability, relevance and sufficiency of IHL. As IHL is in the process of being adapted, (re)interpreted and expanded, China is seeking to play a more active role in these processes. The chapter concludes with a reflection on China’s changing role and perspectives of its future engagements with IHL.

This chapter demonstrates that drone programs – the combination of legal narratives, shifts in military strategy, and technological change – bring about an anywhere war. Combat drones have been deployed against non-state actors extraterritorially, including on the territory of non-belligerent states, because of the presence on those territories of members of terrorist groups. To allow this, drone programs have involved the creation of concepts such as “outside areas of active hostilities” or “outside hot conflict zones.” These non-legal concepts posit that jus in bello applies wherever the belligerent is, including on the territory of a state where the hostilities are not taking place. This practice, accompanied with supportive legal and political rationales, has sparked a heated debate among scholars on the geographical scope of armed conflicts under the jus in bello. Departing from the normative discussion for or against a geographical limitation of conflicts, the chapter shows that there is no such a thing as a legal geographical limitation of conflicts in the law and that its absence is exploited by drone programs, whose technological features eventually create the prospect of an anywhere war taking place wherever the enemy is.

This chapter presents the fragmentation of law applicable to targeting in armed conflict, which spans international humanitarian law, international human rights law, and international criminal law. It discusses the interrelationships among these branches of law. Considering IHL’s most direct relevance to targeting in armed conflict, it reviews its material, geographical, temporal, and personal scope. It addresses the foundations of IHL, including the relationship between the principles of humanity and military necessity, as well as the perception of IHL as a regime that authorizes rather than restricts attacks, and also the principle of equality, theoretically designed to ensure implementation of IHL. In the final part of the chapter, the definitions of the central terms used throughout this monograph are discussed – namely that of attack and permissible degree of force to be used against lawful targets – and the restrictions on means and methods of warfare in the same context.

Amid the emergence of modern warfare at the end of the nineteenth century, states agreed on a model to regulate armed conflicts centered on a body of internationally agreed norms known as international humanitarian law (IHL). While states have always been the sole law makers and are ultimately responsible for the implementation of the laws of war, the International Committee of the Red Cross placed itself at the very center of the new model, as the champion of IHL, filling the gaps in terms of sponsoring new rules, promoting the law, and monitoring its application in war zones. This unique model of governance was composed of states and independent humanitarian actors and combines features of a hierarchy and a network. While the model saved countless numbers of lives, it has been perpetually challenged, criticized, and violated. The model stood the test of time nonetheless and survived the conflicts of the twentieth century. It is still enduring today. This chapter analyses the reasons for the longevity of the model, looking at its evolution over time in terms of key moments, efficacy and legitimacy, changing composition, and growing complexity.

Chapter Four charts the emergence of human dignity in the context of international humanitarian law, providing the setting for its first constitutive stage. It begins in the second half of the nineteenth century, with human dignity’s symbolic entrance into the fabric of international law with the adoption and entry into force of the Hague Law (Martens Clause, 1899 and 1907 Conventions). The process to impose legal restraints on the conduct of hostilities preceded the Martens Clause and the actual consolidation of this stage was only completed in the aftermath of the Second World War with the watershed represented by the adoption of the Four Geneva Conventions in 1949 and, subsequently, the two Additional Protocols of 1977. Thus, this historical process extends over more than a century, with a range of different legal manifestations which can singled out as the key milestones.

Chapter 3 orients the student to the basics of LOAC as it exists on today’s battlefields. It moves from long-past history to modern, even contemporary, history by relating today’s LOAC, along with its more recent historical foundations and modern law of war incidents. For example, World War I and the ineffective trials of German war criminals by German courts – the Leipzig trials – are shown to be the impetus for World War II’s Nuremberg and Tokyo international military tribunals. The LOAC import of the League of Nations and the Spanish Civil War are detailed, along with the 1929 Geneva Conventions’ (two Conventions) contributions. The bulk of the chapter is an examination of today’s four 1949 Geneva Conventions, including their “common articles,” the varied routes to the charging of war crimes alleged against both combatants and civilians, along with the significance of “grave breach” war crimes. Indicators of war crimes is detailed, as well.

This chapter makes the case that it is appropriate, and justified, to revisit – based on existing international legal obligations – the problem of veto use in the face of genocide, crimes against humanity, and/or war crimes. The chapter presents three main legal arguments that indicate there are legal limits (or constraints) on the use of the veto in the face of genocide, crimes against humanity, and/or war crimes. First, the chapter argues that the veto power, which is conferred by the UN Charter, is subordinate to the highest-level jus cogens norms; as a consequence, the veto should not be used (i) where it has the effect of facilitating ongoing jus cogens violations, (ii) where it undermines the duty of other Security Council members to cooperate to make an appropriate response to a serious breach of a jus cogens norm, or (iii) where its use is inconsistent with jus cogens protections. Second, the chapter argues that the veto power sits within the context of the UN Charter, which states that the Security Council must act pursuant to the UN’s “Purposes and Principles”; a veto in the face of genocide, crimes against humanity, and/or war crimes does not accord with the UN’s “Purposes and Principles.” Third, the chapter argues that there are also treaty obligations that bind individual permanent member states, such as those under the Genocide Convention and 1949 Geneva Conventions, and veto use should not be contrary to obligations created under these treaties.

In light of the issues raised, the chapter considers the scope of judicial review by the International Court of Justice (“ICJ”), concluding that the above legal questions are ones on which the ICJ could, and should, opine. Ultimately, the chapter suggests that the General Assembly consider requesting an advisory opinion from the ICJ on a question such as: does existing international law contain limitations on the use of the veto power by permanent members of the UN Security Council in situations where there is ongoing genocide, crimes against humanity, and/or war crimes?

The first part of this chapter describes the background to and the main elements in the negotiation of Common Article 3 of the 1949 Geneva Conventions. The second part of the chapter analyses the negotiations, examining the conduct of the negotiations and the drafting outcome from the perspectives of key actors (principally US, UK, Soviet, French and ICRC delegations) with accompanying observations on positions taken by other delegations. The chapter then examines the implications of the negotiating history for the five hypotheses, finding that the drafting reflects a balance between competing symbolic costs and benefits arrived at largely through processes of principled contestation and moral and technical persuasion, conducted against the material backdrop of the nascent Cold War and decolonisation, as well as a broader humanitarian international normative Zeitgeist.

This chapter establishes the theoretical orientation of the study. Traditional IR approaches to regime development – which have typically drawn on a single research tradition – are mapped, and then contrasted with the pluralist approach taken in Negotiating Civil War, highlighting the rationale, principal benefits and challenges of drawing variously on Realist, Rationalist, Liberal and Constructivist insights. The hypotheses to be tested in each of the subsequent case studies chapters are then set out and their underlying explanatory factors identified. The chapter then sets out the potential interaction amongst these hypothesised factors in a ‘straw person’ diagram. The chapter concludes with a brief discussion of the key methodological considerations informing the study.

This chapter investigates the shifting politics of humanitarianism, and the way that decolonization processes and related ideologies influenced the evolution of human rights and humanitarian norms. It explores these issues by returning to the debates of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, which took place in Geneva in four sessions from 1974 to 1977, resulting in Additional Protocols I and II to the Geneva Conventions and the elevation of wars of national liberation to the status of international conflicts. The Conference was remarkable for the participation of thirteen national liberation movements. Their participation attests to the importance of decolonization ideologies and the influence of supporters of decolonization – both those seeking independence and, crucially, newly independent states themselves – in international forums. The chapter assesses how concepts of national liberation were deployed and understood during the Conference, in order to elucidate how humanitarian and human rights ideas and practices interacted with the politics of decolonization.

The introduction sets out the empirical puzzle at the heart of the study, contrasting the historical regulation of international armed conflict with the absence of regulation in respect of non-international armed conflict. This is followed by an overview of Negotiating Civil War and the book’s key findings. A closing discussion sets Negotiating Civil War in the context of broader, related literature.