The Law of Non-International Armed Conflict.

Author:Dinstein, Yoram
Position:Book review
 
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The Law of Non-international Armed Conflict. By Sandesh Sivakumaran. Oxford, New York: Oxford University Press, 2012. Pp. xxxvii, 657. Index. $175.

In the era since World War II, non-international armed conflicts (NIACs) have become even more frequent and brutalizing than international armed conflicts (IACs). It is no accident that the genocide perpetrated in Rwanda or in Srebrenica--not to mention the bloodbath in Cambodia--occurred at the onset of, or during, NIACs. The ferocity of the recent NIAC in Libya, the savagery of the current uprising in Syria, the endless fighting in the Great Lakes region in Africa, the ruthlessness of the confrontation in Sri Lanka, and the sanguinary hostilities in Chechnya all bear testimony to the cataclysmic effects of NIACs. This phenomenon should not be entirely surprising. After all, the American and Spanish Civil Wars of yesteryear traumatized nations and left scars not healed for generations.

The salient aspect of the saga of NIACs is the radical transformation of their standing in international law within a short span of time. Until 1949, virtually no substantive international legal norms governed conduct in the course of NIACs. In 1949, the four Geneva Conventions for the Protection of War Victims blazed a new trail by crafting a common Article 3 dealing for the first time with the topic. In 1977, Additional Protocol II to the Conventions supplemented that single provision with a more elaborate set of rules. (1) Still, as late as 1990, if anyone were to ask whether the construct of war crimes is empirically relevant to NIACs, the response would have had to be negative.

All that changed within a single decade. First came the two ad hoc international criminal tribunals--the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)--established by the Security Council to cope with the sorry records of these states. Then, significant treaty-making occurred, capped in 1998 by the Rome Statute of the International Criminal Court, which inaugurated suprastate penal jurisdiction over an entire array of war crimes committed during NIACs (side by side with crimes against humanity and genocide). In essence, war crimes equal serious violations of international humanitarian law (IHL).

This rapid international legal development in the face of a challenging reality is not unique. The swift emergence of customary and treaty law with respect to the continental shelf or to outer space, decades ago, ought to have been enough to belie the popular criticism, embraced in the present book, that "public international law remains rather statist in character" (p. 3). International law proves time and again that it can regenerate itself quite dynamically, with a view to meeting not only the peremptory demands of new technologies but also the evolving perceptions of societal priorities and values.

The growing interest in the international law of NIACs has lately spawned a spate of books and articles devoted to the subject. The increase in state practice, treaty-making, and case law is gradually augmenting not only the number but also the lengths of the publications. Here is a text of no less than 570 pages printed in small font (complemented by a bibliography and an index), and some themes are still left largely unexplored.

On the whole, the author, Sandesh Sivakumaran, an associate professor of public international law at the University of Nottingham, is striving to push the envelope of international law governing NIACs. In particular, he is keen on expanding the rights and obligations of members of the "military wing of armed groups," an idiom that he prefers over the plain expression "fighter" (opted for in the 2006 Sanremo Manual on the...

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