2. The Historical Context
Early attempts at the enforcement of the laws of war appeared through the prism of punishing those who were judged guilty of violating that body of rules. Although the notion of having rules of law in war (jus in bello) is probably about as old as organized warfare itself, and concepts of honour and chivalry in ancient and mediaeval warfare were historically adjudicated in various forums,16 it was not until the advent of mass citizen-armies organized by nation-states as a public activity in the course of the seventeenth century that something resembling systematic national implementation of the laws of war began to take place. Even then, these were couched in terms of domestic military law and the extension of national criminal offences to cover military discipline, rather than international law as such; among the earliest known examples are the Articles of War promulgated for the Swedish army in the Thirty Years’ War (1618–1648).17 In England the source of disciplinary enforcement for the Army was the royal prerogative, under which King Charles I promulgated ‘Lawes and Articles of Warre’ (building on ad hoc mediaeval precedents dating back to Plantagenet times) in 1625—these were reissued in 1629 and 1639;18 their substantive essence, along with the constitutional authority to issue them, began to be transferred to a statutory footing with the adoption of the first Mutiny Act in 1689. Discipline in the Royal Navy was covered by statute for the first time shortly after the Restoration of King Charles II.19 These early articles of national military law provided, naturally, for the trial and punishment of soldiers and sailors accused of breaches of service discipline; but they also enacted a variety of offences amounting to crimes under the civil law, which under modern (p. 363) IHL could be characterized as war crimes or crimes against humanity. Nevertheless, the actual effectiveness of such purely national and disciplinary codes for the protection of the civilian population—in later times to become one of the main aspects of IHL—in the early modern period of warfare has been questioned.20
While the jurisdiction of a State to conduct trials of its own soldiers for violations of national service law has never been disputed, as it is an obvious aspect of criminal jurisdiction over a states’ own nationals, it is not clear exactly when it became definitively accepted that a state could legitimately assert such enforcement jurisdiction in respect of enemy soldiers (ie foreign nationals) who, after capture, were accused of violating the laws and customs of war. Early modern writers on international law suggested that persons who violated the laws of war, by analogy with pirates, were to be considered mere banditti or brigands, and could be subjected to punishment by whichever authority’s hands they fell into.21 The main examples in early modern practice derive largely from the US—the first systematic institutional mechanism for punishing what would today be called war crimes appeared in the Mexican–American War (1846–1848), when Major General Winfield Scott’s General Orders No 20 instituted military commissions for the trial and punishment of ‘atrocious crimes’ whether committed by civilians or military persons, Mexicans or Americans, namely: ‘[m]urder, premeditated murder, injuries or mutilation, rape, assaults and malicious beatings; robbery, larceny, desecration of Churches, cemeteries or houses, and religious buildings; and the destruction of public or private property that was not ordered by a superior officer’.22 The first clear enunciation of the notion of prosecuting enemy soldiers for ‘violation of the laws of war’ appears in the orders issued at the behest of the US Army’s department commander in Missouri, Major General Henry Halleck, in respect of guerrilla warfare against irregular Confederate forces during the American Civil War (1861–1865):
… a soldier duly enrolled and authorized to act in a military capacity in the enemy’s service is not according to the code military individually responsible for the taking of human life in battle, siege, &c., while at the same time he is held individually responsible for any act which he may commit in violation of the laws of war. Thus he cannot be punished by a military tribunal for committing acts of hostility which are authorized by the laws of war but if he has committed murder, robbery, theft, arson, &c., the fact of his being a prisoner of war does not exempt him from trial by a military tribunal.23
This power to enforce the laws of war by prosecuting one’s own or the enemy’s soldiers for violations was clearly generally acknowledged by the late nineteenth century,24 and was to (p. 364) be reasserted as a result of the wholesale atrocities committed during both World Wars.25 As noted by authorities at the time, however, it was not always possible for a belligerent to secure custody of an accused in order to bring him to trial; and if the state of his nationality refused or otherwise failed to investigate and prosecute him,26 a standard recourse for the injured state was to have resort to the right of belligerent reprisal, whereby a belligerent would engage temporarily in proportionate illegal conduct with a view to inducing the enemy to desist from his own unlawful behaviour.27
Aside from enforcement by means of criminal sanctions, the concept of specifically implementing parts of the laws of war by the enactment of regulations and legislation appears to have entered the lexicon of international conventions only with the adoption of the first Geneva Convention in 1864; initially this was conceived of as being a matter which was delegated to military commanders in the field, who would act in accordance with the instructions promulgated by their governments.28 Subsequent iterations of the Geneva Convention in the early twentieth century repeated that injunction and also required signatories to ‘take the necessary steps to acquaint their troops … with the provisions of this convention and to make them known to the people at large’29 and also to introduce ‘such measures as may be necessary’ to prevent the unauthorized use of the protected emblem of the Red Cross and to repress ‘individual acts of robbery and ill treatment of the sick and wounded of the armies, as well as to punish … the wrongful use of the flag and brassard of the Red Cross’.30 These requirements pointed the way forward to the post-1945 emphasis on enactment of penal sanctions in domestic legislation and on dissemination of the Geneva Conventions, as discussed further in section 4 ‘The Geneva Conventions and Their Additional Protocols’ below.
On a more general level, in the pre-1945 era, the only other specific provision for giving effect to the laws of war was to be found in the Hague Convention’s adoption of the general rule of state responsibility for unlawful acts by state organs: ‘A belligerent party which violates the provisions of the [annexed] Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.’31 This, however, was and is a general doctrine of public international (p. 365) law and is in no way peculiar to the laws of war; neither can it be said to constitute a rule of enforcement per se, perhaps even less so a rule for specific implementation of the law. Although it was used against Germany by the victorious Allied Powers in the infamous reparations clauses of the peace settlement after the First World War,32 in historical terms and notwithstanding the settled rules of international law this represented something of an aberration: in the aftermath of the Second World War the emphasis returned very firmly to criminal sanctions and the prosecution of accused war criminals.33 Both Germany and Japan as occupied territories after 1945 saw the creation of military tribunals—the Nuremberg and Tokyo Trials, respectively, for the trial of major war criminals, and a myriad of national tribunals, in both the occupied states and their erstwhile enemies, for the trial of so-called minor war criminals. But these were ad hoc expedients adopted by the victors exclusively against their defeated enemies in a situation of debellatio; systemic reliance upon mechanisms of national implementation of IHL would not come until the adoption of the updated Geneva Conventions in 1949.
1 United Nations Human Rights Council (UNHRC), ‘Situation of Human Rights in Yemen: Report of the United Nations High Commissioner for Human Rights’ UN Doc A/HRC/30/31 (7 September 2015) para 91.
2 UNHRC, ‘Draft Resolution: Situation of Human Rights in Yemen’ UN Doc A/HRC/30/L.4/Rev.1 (30 September 2015) para 13.
4 HRC Resolution 30/18 UN Doc A/HRC/RES/30/18 (12 October 2015).
5 Report of the Group of Eminent International and Regional Experts as submitted to the United Nations High Commissioner for Human Rights, UN Doc A/HRC/42/17 (9 August 2019).
9 See Françoise Bouchet-Saulnier and Jonathan Whittall, ‘An Environment Conducive to Mistakes? Lessons Learnt from the Attack on the Médecins Sans Frontières Hospital in Kunduz, Afghanistan’ (2018) 100 IRRC 337.
16 For a general overview, see Leslie C Green, The Contemporary Law of Armed Conflict (3rd edn, Manchester UP 2008) 26–32; also Robert C Stacey, ‘The Age of Chivalry’, in Michael Howard, George J Andreopoulos, and Mark R Shulman (eds), The Laws of War: Constraints on Warfare in the Western World (Yale UP 1994) 27, 31.
17 See Kenneth Ögren, ‘Humanitarian Law in the Articles of War decreed in 1621 by King Gustavus II Adolphus of Sweden’ (1996) 36 IRRC 438.
18 See Charles M Clode, The Military Forces of the Crown: Their Administration and Government, Vol 1 (John Murray 1869) 18, 429 (annexed Illustration (VI)).
19 Charles II, 1661, ‘An Act for the Establishing [of] Articles and Orders for the Regulating and Better Government of His Majesties Navies Ships of Warr and Forces by Sea’, in John Raithby (ed), Statutes of the Realm: Vol 5, 1628–1680 (first published 1819) 311.
20 See eg Markus Meumann, ‘Civilians, the French Army and Military Justice during the Reign of Louis XIV, circa 1640–1715’, in Erica Charters, Eve Rosenhaft, and Hannah Smith (eds), Civilians and War in Europe, 1618–1815 (Liverpool UP 2014) 100.
21 See eg Emmerich de Vattel, Le Droit des Gens (1758) Liv III, Chap XV para 226.
22 Cuartel General del Egercito, ‘Ordenes Generales—No 20’ (Tampico, 19 February 1847) English translation https://scholarship.rice.edu/jsp/xml/1911/27562/3/aa00208tr.tei.html. For discussion, see John F Witt, Lincoln’s Code: The Laws of War in American History (Free Press 2012) 118–32; Louis Fisher, ‘Military Tribunals: Historical Patterns and Lessons’, US Congressional Research Service Report RL32458 (9 July 2004) 11–14.
23 Department of Missouri, ‘General Orders No 1’ (Saint Louis, 1 January 1862) in US War Department, The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, Series II, Vol 1 (Government Printing Office 1894) 249.
24 Institute of International Law, Manual of the Laws of War on Land (Oxford 1880) Part III.
25 See James W Garner, ‘Punishment of Offenders against the Laws and Customs of War’ (1920) 14 AJIL 70; Hersch Lauterpacht, ‘The Law of Nations and the Punishment of War Crimes’ (1944) 21 BYBIL 58; Willard B Cowles, ‘Universality of Jurisdiction over War Crimes’ (1945) 33 CLR 177.
26 For centuries it was the custom for commanders on the battlefield to communicate directly with each other under a flag of truce, usually via parlementaires, for a variety of purposes, including bringing each other’s attention to alleged violations of the laws of war: see Green (above n 16) 113–16. As direct governmental control of armed forces increased and technology developed, such communications could be addressed by a commander directly to the enemy government or indirectly between the belligerent governments, via the good offices of a neutral state: see eg correspondence between the British Commander-in-Chief in South Africa and the Afrikaner State Presidents concerning reported abuse of the white flag on the battlefield during the Second Boer War, Telegrams from Field-Marshal Lord Roberts to the Secretary of State for War (Cd 122, 1900).
27 See William Winthrop, Military Law and Precedents (2nd edn, Government Printing Office 1920) 796–9; Shane Darcy, ‘The Evolution of the Law of Belligerent Reprisals’ (2003) 175 Mil L Rev 184.
28 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (signed 22 August 1864, entered into force 22 June 1865) 129 CTS 361 article 8.
29 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (adopted 6 July 1906, entered into force 9 August 1907) 202 CTS 144 articles 25–26.
31 Hague Convention (IV) Respecting the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910) 205 CTS 277 (Hague Convention IV) article 3.
32 Treaty of Peace between the Allied and Associated Powers and Germany (adopted 28 June 1919, entered into force 10 January 1920) 225 CTS 188 (Versailles Treaty) part VIII: Reparation.
33 After World War I the Treaty of Versailles had deferred such matters to German national jurisdiction: see Mahmoud Cherif Bassiouni, ‘World War I: “The War to End All Wars” and the Birth of a Handicapped International Criminal Justice System’ (2002) 30 Denv J Intl L & Pol’y 244, 281–85.
34 For an outline, see David Turns, ‘The Law of Armed Conflict (International Humanitarian Law)’, in Malcolm D Evans (ed), International Law (5th edn, OUP 2018) 840.
35 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (API) articles 51(6) and 55(2), respectively.
36 See Jonathan F Vance, ‘Men in Manacles: The Shackling of Prisoners of War, 1942–1943’ (1995) 59 J Mil Hist 483.
37 Eg UK Ministry of Defence (MoD), The Manual of the Law of Armed Conflict (OUP 2004) paras 16.16–16.19.
38 Draft Articles on Responsibility of States for Internationally Wrongful Acts article 4 in Yearbook of the International Law Commission 2001, Vol II UN Doc A/CN.4/SER.A/2001/Add.1 (Part 2) (UN 2001) 30. The generic modern restatement of state responsibility for violations of IHL is contained in API article 91.
39 UN Security Council (UNSC) Resolution 687 UN Doc S/RES/687 (8 April 1991) para 18. Resolution 687 declared, inter alia, that Iraq was ‘liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait’: ibid para16. Note the broad similarity of language and intent between this provision and articles 231–233 of the Versailles Treaty, which affirmed Germany’s liability based on its aggression in 1914 and established a Reparation Commission to consider claims made against Germany in respect of the First World War.
40 For details of the UNCC’s work since 1991, see www.uncc.ch.
41 UNSC, ‘Agreement between the Government of the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia: Identical letters dated 12 December 2000 from the Permanent Representative of Algeria to the United Nations addressed to the Secretary-General and the President of the Security Council’ UN Doc A/55/686-S/2000/1183 (13 December 2000) annex, article 5(1).
43 UNSC, ‘Summary by the Secretary-General of the report of the United Nations Headquarters Board of Inquiry into certain incidents in the Gaza Strip between 27 December 2008 and 19 January 2009’ UN Doc A/63/855-S/2009/250 (15 May 2009).
45 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 (GCI); Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 12 October 1949) 75 UNTS 85 (GCII); Geneva Convention (III) Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 12 October 1950) 75 UNTS 135 (GCIII); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1953) 75 UNTS 287 (GCIV); Geneva Conventions Common Article 1 (emphasis added); API article 1.
46 Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (adopted 18 October 1907, entered into force 26 January 1910) 205 CTS 299 (Hague Convention V) article 20. An identical provision was inserted in each of the other conventions adopted at the 2nd Hague Peace Conference, except for Conventions (I)–(III), which are not properly speaking part of the jus in bello.
47 Namely, the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (signed 17 June 1925, entered into force 8 February 1928) 94 LNTS 65, the High Contracting Parties to which agreed ‘to be bound as between themselves’.
48 Convention Relative to the Treatment of Prisoners of War (adopted 27 July 1929, entered into force 19 June 1931) 118 LNTS 343, article 82. The equivalent provision in article 25 of the contemporaneous Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (above n 29) contained minor variations in wording but was substantively identical.
49 International Military Tribunal (IMT), Trial of the Major War Criminals before the International Military Tribunal: Nuremberg, 14 November 1945–1 October 1946, Vol XXII (IMT 1948) 472, 474–5.
50 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), (Merits)  ICJ Rep 14 para 220.
52 This may be the case, especially in relation to API and some of the treaties prohibiting or restricting the use of specific weapons.
53 Despite extensive evidence gathered by the UN and various NGOs of IHL violations committed in Yemen in the course of Saudi operations, and sharp criticism within Parliament, the British Government’s response has been to either contest that such violations are occurring, or insist that they are best investigated by the Saudis’ own internal procedures rather than by impartial international mechanisms. For details of alleged IHL violations in Yemen, see UNSC, ‘Final Report of the Panel of Experts on Yemen established pursuant to Security Council Resolution 2140 (2014)’ UN Doc S/2016/73 (26 January 2016) paras 123–142; for domestic British criticism and Government responses, see House of Commons International Development Committee, Crisis in Yemen: Fourth Report of Session 2015–16, HC532 (House of Commons, 4 May 2016) paras 39–73, annex 2 and appendices 1–4.
54 See eg the Swiss-convened Conference of High Contracting Parties to the Fourth Geneva Convention, which resulted in a Declaration (dated 5 December 2001) calling inter alia upon ‘all parties, [whether] directly involved in the conflict or not, to respect and to ensure respect for the Geneva Conventions in all circumstances …’. For the full text of the Declaration, see https://unispal.un.org/DPA/DPR/unispal.nsf/0/8FC4F064B9BE5BAD85256C1400722951. For an overview of the process, which reconvened in 2014 and resulted in another Declaration, see Pierre-Yves Fux and Mirko Zambelli, ‘Mise en œuvre de la Quatrième Convention de Genève dans les Territoires Palestiniens Occupés: Historique d’un Processus Multilateral (1997–2001)’ (2002) 84 IRRC 661; also Matthias Lanz, Emilie Max, and Oliver Hoehne, ‘The Conference of High Contracting Parties to the Fourth Geneva Convention of 17 December 2014 and the Duty to Ensure Respect for International Humanitarian Law’ (2014) 96 IRRC 1115 (including the text of the 2014 Declaration at 1128–30).
55 See eg the Tenth Emergency Special Session of the UN General Assembly (UNGA) (first convened in 1997 and periodically resumed on several occasions since, most recently in 2009), which is concerned specifically with ‘Illegal Israeli actions in occupied East Jerusalem and the rest of the Occupied Palestinian Territory’. A typical early resolution:
[r]ecommends to the States that are High Contracting Parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War to take measures, on a national or regional level, in fulfilment of their obligations under article 1 of the Convention, to ensure respect by Israel, the occupying Power, of the Convention (UNGA Resolution ES-10/2 UN Doc A/RES/ES-10/2 (25 April 1997) para 8).
57 See eg Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)  ICJ Rep 136 (Palestinian Wall case), in which the Court found that certain obligations arising under IHL were obligations erga omnes (at para 155), and emphasized the corresponding obligation arising under article 1 of GCIV (at para 158).
58 See eg UNGA Resolution ES-10/15 UN Doc A/RES/ES-10/15 (2 August 2004) paras 1, 7.
59 See David Turns, ‘Implementation and Compliance’, in Elizabeth Wilmshurst and Susan Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law (CUP 2007) 354, 359–60, 372–3.
60 GCI ch VIII; GCII ch VII; GCIII pt VI; GCIV pt IV.
62 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (APII) article 19.
63 GCI article 47; GCII article 48; GCIII article 127; GCIV article 144; API article 83(1). The GCIII and GCIV articles include particular requirements for personnel with responsibilities for, respectively, prisoners of war and protected persons (ie civilians in occupied territory) to be ‘specially instructed’ as to those Conventions’ provisions; these requirements are amalgamated in API article 83(2). Other modern IHL treaties also include the requirement of dissemination, while limiting it to armed forces: eg Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (adopted 10 October 1980, entered into force 2 December 1983) (1980) 19 ILM 1523 (CCW) article 6.
64 Among many such initiatives worldwide, prominent examples include the Jean-Pictet Competition http://concourspictet.org/indexen.html, the Martens Moot Court Competition on IHL, and the Israeli Alma National IHL Competition for Students www.alma-ihl.org/ihl-competition. Most such projects are organized by, or at least with the support of, the ICRC at national, regional, and/or international level; for an example of the organization’s approach to IHL civil education, see Luisa Vierucci, ‘Promoting the Teaching of International Humanitarian Law in Universities: The ICRC’s Experience in Central Asia’ (2001) 83 IRRC 155 (and other articles in the same thematic issue).
67 For example each of the US services—Army, Navy, Air Force, Marine Corps, and Coast Guard—has its own separate Judge Advocate General’s Corps.
68 See International Institute of Humanitarian Law www.iihl.org.
71 See US Department of Defense, ‘Final Report to Congress on the Conduct of the Persian Gulf War, Appendix O—The Role of the Law of War’ (1992) 31 ILM 615, 617.
72 Indeed, although ALS (to take the UK, and more specifically England, as an example) dates in its modern form only from 1948, it traces its genesis back to the authority of the mediaeval offices of Earl Marshal and Advocate of the Army—the origin of the modern term ‘court-martial’, signifying a military court, derives from the Court of the Marshal (or ‘Marshal’s Court’), which was instituted by King Henry VIII in 1521 and was itself based on a much older institution.
73 See Hans-Peter Gasser, ‘Military Manuals, Legal Advisers and the First Additional Protocol of 1977’, in Nobuo Hayashi (ed), National Military Manuals on the Law of Armed Conflict (2nd edn, Forum for International Criminal and Humanitarian Law 2010) 55.
74 See David Turns, ‘Military Manuals and the Customary Law of Armed Conflict’, in Hayashi (above n 73) 65. In this context they are cited by courts in both international and national jurisdictions: see eg the Israeli High Court of Justice’s references to the UK’s military manual in Public Committee against Torture in Israel v Government of Israel (2006) 46 ILM 375.
75 Charles Garraway, ‘Military Manuals, Operational Law and the Regulatory Framework of the Armed Forces’, in Hayashi (above n 73) 45.
78 The German Bundeswehr’s ZDv 15/2—Humanitäres Völkerrecht in bewaffneten Konflikten (1992) has been published in English with extensive academic commentary as Dieter Fleck (ed), The Handbook of International Humanitarian Law (3rd edn, OUP 2013).
79 GCI article 49; GCII article 50; GCIII article 129; GCIV article 146. These provisions are then referred back to in a consolidating clause in API article 85(1). The Protocol also provides for mutual assistance between states parties in criminal matters connected with grave breaches: API article 88.
80 As to the generalities of aut dedere aut judicare, see Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Merits)  ICJ Rep 422, Separate Opinion of Judge Yusuf at paras 18–22; ILC, ‘The Obligation to Extradite or Prosecute (aut dedere aut judicare): Final Report of the International Law Commission’, submitted to the UNGA by the ILC in ‘Report of the International Law Commission on the Work of its 66th Session’ UN Doc A/69/10 (1 May–6 June and 7 July–8 August 2014) para 65.
81 See David Turns, ‘Prosecuting Violations of International Humanitarian Law: The Legal Position in the United Kingdom’ (1999) 4 JACL 1.
82 See David Turns, ‘Aspects of National Implementation of the Rome Statute: The United Kingdom and Selected Other States’, in Dominic McGoldrick, Peter Rowe, and Eric Donnelly (eds), The Permanent International Criminal Court—Legal and Policy Issues (Hart Publishing 2004) 337.
83 GCI article 54; GCII article 45; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem (adopted 8 December 2005, entered into force 14 January 2007) 2404 UNTS 261 (APIII) article 6(1).
84 Eg CCW Amended Protocol II (1996) 35 ILM 1206 article 14.
85 Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 14 May 1954, entered into force 7 August 1956) 249 UNTS 240 (1954 Convention) article 3. This Convention also entails dissemination in terms virtually identical to those of the Geneva Conventions (ibid article 25); the production of quarterly reports to the Director General of the UN Educational, Scientific and Cultural Organisation ‘concerning any measures being taken, prepared or contemplated’ in fulfilment of the Convention (ibid article 26(2)); and the enactment of penal or disciplinary sanctions in domestic criminal law for violations of the Convention (ibid article 28). See further the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (adopted 26 March 1999, entered into force 9 March 2004) 2253 UNTS 172 articles 5, 11, 15–21.
87 Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC/Martinus Nijhoff 1987) (AP Commentary) para 2308.
88 API article 36. For discussion, see Justin McClelland, ‘The Review of Weapons in Accordance with Article 36 of Additional Protocol I’ (2003) 85 IRRC 397; Kathleen Lawand, A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977 (ICRC 2006).
90 For general discussion, see Olivier Bangerter, ‘Reasons Why Armed Groups Choose to Respect International Humanitarian Law or Not’ (2011) 93 IRRC 353.
93 For discussion of the UK’s reservation to API in respect of articles 1(4) and 96(3) prompted by the situation in Northern Ireland, and the failure of the Palestine Liberation Organization to have its 1989 declaration accepted in relation to its struggle against Israel, see Turns, ‘The Law of Armed Conflict’ (above n 32).
94 See eg ICRC, ‘A Collection of Codes of Conduct Issued by Armed Groups’ (2011) 93 IRRC 483 (examples from China, the Philippines, Colombia, Uganda, Sierra Leone, and Libya).
95 See Pascal Bongard and Jonathan Somer, ‘Monitoring Armed Non-State Actor Compliance with Humanitarian Norms: A Look at International Mechanisms and the Geneva Call Deed of Commitment’ (2011) 93 IRRC 673.
96 For a useful overview of the typology of such commitments, see Sandesh Sivakumaran, ‘Lessons for the Law of Armed Conflict from Commitments of Armed Groups: Identification of Legitimate Targets and Prisoners of War’ (2011) 93 IRRC 463 at 465–9.
97 API article 43(1). The internal disciplinary system of armed forces will typically be enforced by military police or provost-marshals, with investigations of cases where crimes appear to have been committed and subsequent prosecution in courts-martial or civilian courts, as appropriate. The military legal and disciplinary system in the UK is provided for in the regulations promulgated for each service (eg The Queen’s Regulations for the Army 1975 www.gov.uk/government/uploads/system/uploads/attachment_data/file/433769/QR_Army.pdf, with similar but separate regulations existing for the Royal Navy and the Royal Air Force) and the tri-service Armed Forces Act 2006.
98 For an overview of the doctrine, see Guénaël Mettraux, The Law of Command Responsibility (OUP 2009).
101 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (Rome Statute) article 28.
102 For an early modern Anglo-Australian example, see the case of Lieutenants Harry Morant, Peter Handcock, and George Witton of the Bushveldt Carbineers, court-martialled and executed for the murder of prisoners of war during the Second Boer War: The Brisbane Courier (24 May 1902).
103 For an early American example, see Trial of Henry Wirz (1865), US House of Representatives, 40th Congress, 2nd Session, Ex Doc No 23.
104 This jurisdiction is based exclusively on national legislation. For instance, in the UK it is currently provided for by the International Criminal Court Act 2001, pt 5 (Offences under domestic law) and the Armed Forces Act 2006; in the US, by the Uniform Code of Military Justice (1950) 10 USC paras 802, 805, 877–934.
105 United States v William L Calley, Jr (US Court of Military Appeals, 21 December 1973) 22 USCMA 534.
106 Reg v Blackman (UK Courts Martial Appeal Court)  EWCA Crim 1029 (22 May 2014).
107 The International Criminal Tribunal for the Former Yugoslavia, established by UNSC Resolution 827 UN Doc S/RES/827 (25 May 1993); the International Criminal Tribunal for Rwanda, established by UNSC Resolution 955 UN Doc S/RES/955 (8 November 1994).
108 For instance, the Special Court for Sierra Leone (established in 2000) and the Special Court for Kosovo.
109 The Prosecutor v Thomas Lubanga Dyilo (Judgment) ICC-01/04-01/06, T Ch I (14 March 2012).
110 The Prosecutor v Ahmad Al Faqi Al Mahdi (Decision on the Confirmation of Charges) ICC-01/12-01/15, Pre-Trial Ch I (24 March 2016).
111 GCI, GCII, and GCIII article 8; GCIV article 9; API article 5.
112 Current examples are the Swiss diplomatic representation of American and Saudi interests in Iran and of Russian interests in Georgia, and the Swedish representation of American, Australian, and Canadian interests in North Korea.
113 See Howard S Levie, ‘Prisoners of War and the Protecting Power’ (1961) 55 AJIL 374.
114 Switzerland acted for the UK, while Brazil acted for Argentina. See ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (2nd edn, ICRC 2016) paras 1115–1119.
115 GCI article 10. This has been the case, for instance, in respect of Russia and Georgia since their brief conflict over South Ossetia and Abkhazia in 2008.
122 One of the best-known examples is TH O’Sullivan’s ‘The Harvest of Death’, depicting the bloated and contorted bodies of Federal soldiers killed at the Battle of Gettysburg in 1863.
123 ‘Lawfare’ has been defined as, ‘the strategy of using—or misusing—law as a substitute for traditional military means to achieve and operational objective’: Charles J Dunlap, ‘Lawfare Today: A Perspective’ (Winter 2008) Yale J Int’l Affairs 146, 146.
124 See Richard Ekins, Jonathan Morgan, and Tom Tugendhat, Clearing the Fog of Law—Saving Our Armed Forces from Defeat by Judicial Diktat (Policy Exchange 2015).
125 The phrase was coined by Lord Hope in Smith and Others v Ministry of Defence  UKSC 41,  2 WLR 27; see also Richard Scorer, ‘The Judicialisation of War?’ (2013) 163(7571) NLJ.