Symposium: The Geneva Conventions at 75: Need for Innovation

On September 26-27, 2024, the Midwest Regional Conference of the American Branch of the International Law Association will host a symposium on "The Geneva Conventions at 75: Need for Innovation." Details are here.

Mantilla: Lawmaking under Pressure: International Humanitarian Law and Internal Armed Conflict

Giovanni Mantilla (Univ. of Cambridge - Politics and International Studies) has published Lawmaking under Pressure: International Humanitarian Law and Internal Armed Conflict (Cornell Univ. Press 2020). Here's the abstract:

In Lawmaking under Pressure, Giovanni Mantilla analyzes the origins and development of the international humanitarian treaty rules that now exist to regulate internal armed conflict. Until well into the twentieth century, states allowed atrocious violence as an acceptable product of internal conflict. Why have states created international laws to control internal armed conflict? Why did states compromise their national security by accepting these international humanitarian constraints? Why did they create these rules at improbable moments, as European empires cracked, freedom fighters emerged, and fears of communist rebellion spread? Mantilla explores the global politics and diplomatic dynamics that led to the creation of such laws in 1949 and in the 1970s.

By the 1949 Diplomatic Conference that revised the Geneva Conventions, most countries supported legislation committing states and rebels to humane principles of wartime behavior and to the avoidance of abhorrent atrocities, including torture and the murder of non-combatants. However, for decades, states had long refused to codify similar regulations concerning violence within their own borders. Diplomatic conferences in Geneva twice channeled humanitarian attitudes alongside Cold War and decolonization politics, even compelling reluctant European empires Britain and France to accept them. Lawmaking under Pressure documents the tense politics behind the making of humanitarian laws that have become touchstones of the contemporary international normative order.

Mantilla not only explains the pressures that resulted in constraints on national sovereignty but also uncovers the fascinating international politics of shame, status, and hypocrisy that helped to produce the humanitarian rules now governing internal conflict.

Bhuiyan & Khan: Revisiting the Geneva Conventions: 1949-2019

Md. Jahid Hossain Bhuiyan (Southeast Univ. - Law) & Borhan Uddin Khan (Univ. of Dhaka - Law) have published Revisiting the Geneva Conventions: 1949-2019 (Brill | Nijhoff 2020). Contents include:

• Md Jahid Hossain Bhuiyan & Borhan Uddin Khan, International Legal Protection of Persons Affected by War: Challenges and the Way Forward
• Borhan Uddin Khan & Mohammad Nazmuzzaman Bhuian, The Development of the Geneva Conventions
• Md Jahid Hossain Bhuiyan, The Legal Status and Protection of the Rights of Prisoners of War
• Etienne Henry, The Prohibition of Deportation and Forcible Transfer of Civilian Populations in the Fourth Geneva Convention and Beyond
• Yutaka Arai-Takahashi, Persons aboard Medical Aircraft Who Fall into the Hands of a Neutral Power – the Scope of Their Liability to Detention under the 1949 Geneva Conventions and the 1977 Additional Protocol I
• Pablo Antonio Fernández Sánchez, Forced Transfer of Aliens during Armed Conflicts
• Noelle Higgins, The Geneva Conventions and Non-International Armed Conflicts
• Srinivas Burra, Four Geneva Conventions of 1949: A Third World View
• M Rafiqul Islam, Criminalising Rape and Sexual Violence in Armed Conflicts: Evolving Criminality and Culpability from the Geneva Conventions to the Bangladesh International Crimes Trial
• Mohd Hisham Mohd Kamal, Principles of Distinction, Proportionality and Precautions under the Geneva Conventions: the Perspective of Islamic Law
• Borhan Uddin Khan & Nakib M. Nasrullah, Implementation of International Humanitarian Law and the Current Challenges
• Derek Jinks, The Geneva Conventions and Enforcement of International Humanitarian Law

New Issue: Humanitäres Völkerrecht

The latest issue of Humanitäres Völkerrecht (nos. 1–2, 2019) is out. Contents include:

• 70 Jahre Genfer Konvention
• Hans-Joachim Heintze, Humanisierung des Völkerrechts – Ausstrahlkraft des Humanitären Völkerrechts auf das Allgemeine Völkerrecht
• Maximilian Bertamini & Marius Friz, Ein kleiner Schritt für das humanitäre Völkerrecht, ein großer Sprung für die Menschlichkeit
• Stephan Koloßa, Gibt es wirklich Bedarf an einer neuen „Digitalen Genfer Konvention“?
• Joanna Frivet, Erweiterung des humanitären Völkerrechts durch internationales Strafrecht
• Corinna Dau, Israelischer Siedlungsbau und unrechtmäßige Bevölkerungsüberführung in besetzte Gebiete — Mit Fokus auf ‚indirekte Überführungen‘ gemäß Artikel 8 Abs. 2 lit. b (viii) des IStGH-Statuts

Seminar: 70 years of the Geneva Conventions

To mark 70 years of the Four Geneva Conventions of 1949, Maynooth University Law Department and the Edward M Kennedy Institute for Conflict Intervention are convening a panel of experts to reflect on the treaties, and to evaluate their present and future challenges. The seminar will take place on April 8, 2019, in Maynooth University (National University of Ireland, Maynooth). The panel will consist of Marko Milanovic (Univ. of Nottingham), Noelle Quenivet (Univ. of the West of England) and Jerry Lane (Irish Defence Forces). Additional information is here.

ICRC: Commentary on the Second Geneva Convention

The International Committee of the Red Cross has published Commentary on the Second Geneva Convention: Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Cambridge Univ. Press 2017). Here's the abstract:

The application and interpretation of the four Geneva Conventions of 1949 have developed significantly in the sixty years since the International Committee of the Red Cross (ICRC) first published its Commentaries on these important humanitarian treaties. To promote a better understanding of, and respect for, this body of law, the ICRC commissioned a comprehensive update of its original Commentaries, of which this is the second volume. Its preparation was coordinated by Jean-Marie Henckaerts, ICRC legal adviser and head of the project to update the Commentaries. The Second Convention is a key text of international humanitarian law. It contains the essential rules on the protection of the wounded, sick and shipwrecked at sea, those assigned to their care, and the vessels used for their treatment and evacuation. This article-by-article Commentary takes into account developments in the law and practice to provide up-to-date interpretations of the Convention. The new Commentary has been reviewed by humanitarian-law practitioners and academics from around the world, including naval experts. It is an essential tool for anyone working or studying within this field.

Evangelista & Tannenwald: Do the Geneva Conventions Matter?

Matthew Evangelista (Cornell Univ. - Government) & Nina Tannenwald (Brown Univ. - Watson Institute) have published Do the Geneva Conventions Matter? (Oxford Univ. Press 2017). Contents include:

• Nina Tannenwald, Assessing the Effects and Effectiveness of the Geneva Conventions
• Giovanni Mantilla, The Origins and Evolution of the 1949 Geneva Conventions and the 1977 Additional Protocols
• Sahr Conway-Lanz, The Struggle to Fight a Humane War: The United States, the Korean War, and the 1949 Geneva Conventions
• Gary D. Solis, America, the 1949 Geneva Conventions, and War Crime Courts-martial in the Vietnam Conflict
• Elizabeth Grimm Arsenault, Geneva Convention Compliance in Iraq and Afghanistan
• Raphaëlle Branche, The French Army and the Geneva Conventions during the Algerian War of Independence and After
• Mark Kramer, Russia, Chechnya, and the Geneva Conventions, 1994-2006: Norms and the Problem of Internalization
• Amichai Cohen & Eyal Ben-Ari, The Application of International Humanitarian Law by the Israel Defence Forces: A Legal and Organizational Analysis
• R. Craig Nation, Noncompliance with the Geneva Conventions in the Wars of Yugoslav Secession
• Anicée Van Engeland “Be Karbala Miravim!” Iran or the Challenges of Internalizing International Humanitarian Law in a Muslim Country
• Renée de Nevers, Private Military and Security Companies
• Siobhán Wills, The Geneva Conventions: Do they matter in the context of peacekeeping missions?
• Matthew Evangelista, How the Geneva Conventions Matter

Hathaway et al.: Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors

Oona A. Hathaway (Yale Univ. - Law), Emily Chertoff (Yale Univ. - Law Student), Lara Dominguez (Yale Univ. - Law Student), Zachary Manfredi (Yale Univ. - Law Student), & Peter Tzeng (Yale Univ. - Law Student) have posted Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors (Texas Law Review, forthcoming). Here's the abstract:

In Syria, the United States is “training and equipping” non-state groups to battle ISIS. In Eastern Ukraine, Russia has provided weapons, training and support to separatists. In China, “private” computer hackers create codes designed to infiltrate sensitive computer systems. These are just a few examples of the many ways in which states to work with non-state actors to accomplish their military and political objectives. While state/non-state collaboration can be benign, it can be malignant where a state uses a non-state actor as a proxy to violate international law with impunity. In extreme cases, a state could go as far as to fund, train, and instruct a non-state actor to commit war crimes and escape without international legal responsibility. This is no mere academic hypothetical: consider the Former Republic of Yugoslavia’s support of the Free Serbian Army, which committed the genocide at Srebrenica.

Recognizing this problem, international courts have developed a doctrine of state responsibility designed to hold states accountable for internationally wrongful acts of their non-state actor partners. Unfortunately, existing doctrine leaves an accountability gap and fails to correct the perverse incentive to use non-state actors as proxies for illegal acts. Moreover, it creates a second perverse incentive: states with good intentions might avoid training non-state actors in international law compliance to avoid crossing the “bright line” for attribution.

This Article proposes a fix to these problems, drawing on a novel interpretation of the Geneva Conventions released by the ICRC in March 2016. It argues that the duty “to ensure respect” in Common Article 1 can fill the gap. In addition, it argues that Common Article 1 will be more widely embraced and therefore more effective if states that have exercised due diligence to prevent violations are allowed an affirmative defense against liability for any ultra vires violations. The Article concludes with recommendations for states that wish to fulfill their Common Article 1 obligations in good faith while working with non-state actors.

Clapham, Gaeta,& Sassòli: The 1949 Geneva Conventions: A Commentary

Andrew Clapham (Graduate Institute of International and Development Studies), Paola Gaeta (Univ. of Geneva - Law), & Marco Sassòli (Univ. of Geneva - Law) have published The 1949 Geneva Conventions: A Commentary (Oxford Univ. Press 2015). Here's the abstract:

The four Geneva Conventions, adopted in 1949, remain the fundamental basis of contemporary international humanitarian law. They protect the wounded and sick on the battlefield, those wounded, sick or shipwrecked at sea, prisoners of war, and civilians in time of war. However, since they were adopted warfare has changed considerably. In this groundbreaking commentary over sixty international law experts investigate the application of the Geneva Conventions and explain how they should be interpreted today. It places the Conventions in the light of the developing obligations imposed by international law on states, armed groups, and individuals, most notably through international human rights law and international criminal law.

The context in which the Conventions are to be applied and interpreted has changed considerably since they were first written. The borderline between international and non-international armed conflicts is not as clear-cut as was once thought, and is complicated further by the use of armed force mandated by the United Nations and the complex mixed and transnational nature of certain non-international armed conflicts. The influence of other developing branches of international law, such as human rights law and refugee law has been considerable. The development of international criminal law has breathed new life into multiple provisions of the Geneva Conventions. This commentary adopts a thematic approach to provide detailed analysis of each key issue dealt with by the Conventions, taking into account both judicial decisions and state practice. Cross-cutting chapters on issues such as transnational conflicts and the geographical scope of the Conventions also give readers a full understanding of the meaning of the Geneva Conventions in their contemporary context. Prepared under the auspices of the Geneva Academy of International Humanitarian Law and Human Rights, this commentary on four of the most important treaties in international law is unmissable for anyone working in or studying situations of armed conflicts.

Ratner & Giladi: The Role of the ICRC in the Enforcement of the Geneva Conventions

Steven R. Ratner (Univ. of Michigan - Law) & Rotem Giladi (Hebrew Univ. of Jerusalem - Law) have posted The Role of the ICRC in the Enforcement of the Geneva Conventions (in The 1949 Geneva Conventions: A Commentary, Andrew Clapham, Paola Gaeta, & Marco Sassoli eds., forthcoming). Here's the abstract:

This paper discusses the role of the International Committee of the Red Cross (ICRC) in the implementation of the Geneva Conventions. It begins with a background on the ICRC, covering its history and structure, international legal status, and its impartiality, neutrality, and independence. It then details the ICRC’s functions under the Geneva Conventions, its methods for fostering compliance with international humanitarian law, and its relations with international criminal courts. The ICRC has repeatedly acted beyond its very limited textual mandate in the Conventions to take on significant responsibilities in their execution. Its unique modus operandi, centered on direct interactions with warring parties, has demonstrated some effectiveness, even as the confidentiality at its centre has proved controversial. Ultimately, the major role played by this unique NGO is evidence of an unwillingness of the Conventions’ parties to create and own a robust enforcement mechanism.

BIICL: The Future of the Geneva Conventions

Adam Roberts (Univ. of Oxford - Centre for International Studies) will speak today at the British Institute of International and Comparative Law on "The Future of the Geneva Conventions." This is the fifth in a series of five seminars on the Geneva Conventions of 1949 in celebration of the sixtieth anniversary of their adoption.

BIICL: The Geneva Conventions and the Protection of Vulnerable Groups

Christine Chinkin (LSE - Law), Jenny Kuper (LSE - Law), and Louis Lillywhite (Surgeon-General, Defence Medical Services) will speak today at the British Institute of International and Comparative Law on "The Geneva Conventions and the Protection of Vulnerable Groups." This is the fourth in a series of seminars on the Geneva Conventions of 1949 in celebration of the sixtieth anniversary of their adoption.

BIICL: Operationalizing the Geneva Conventions

Rupert Hollins (Royal Navy, Assistant Head (Legal) UK Development Doctrine and Concepts Centre), Charles Garraway (former Army Legal Services Officer; British Red Cross, International Law Adviser (External)), and Michael Schmitt (George C. Marshall Center, College of International and Security Studies) will speak today at the British Institute of International and Comparative Law on "Operationalizing the Geneva Conventions." This is the third in a series of seminars on the Geneva Conventions of 1949 in celebration of the sixtieth anniversary of their adoption.

BIICL: The Geneva Conventions and Israel

Alan Baker (formerly, Legal Adviser, Ministry of Foreign Affairs, Israel) will speak today at the British Institute of International and Comparative Law on "The Geneva Conventions and Israel." This is the second in a series of seminars on the Geneva Conventions of 1949 in celebration of the sixtieth anniversary of their adoption.

BIICL: The ICRC and the Geneva Conventions

François Bugnion (formerly, Director of International Law and Cooperation, International Committee of the Red Cross) will speak today at the British Institute of International and Comparative Law on "The ICRC and the Geneva Conventions." This is the first in a series of seminars on the Geneva Conventions of 1949 in celebration of the sixtieth anniversary of their adoption.

BIICL: Seminars on the Geneva Conventions of 1949

The British Institute of International and Comparative Law will celebrate the sixtieth anniversary of the adoption of the four Geneva Conventions of 1949 with a series of lectures and seminars this fall. Currently scheduled events include:

September 7 - The ICRC and the Geneva Conventions

October 5 - The Geneva Conventions and Israel

October 13 - Operationalizing the Geneva Conventions

November 2 - The Geneva Conventions and the Protection of Vulnerable Groups

November 25 - The Future of the Geneva Conventions

Noriega Extradition: Habeas Petition Dismissed

For the third time in the past four and a half months, a district court judge has dismissed a habeas petition filed by former Panamanian dictator Manuel Noriega in an attempt to block his extradition to France. Noriega's first two petitions, which were unorthodoxly filed as part of his prior criminal case, invoked the Third Geneva Convention. Judge William Hoeveler of the U.S. District Court for the Southern District of Florida dismissed those petitions for lack of jurisdiction, ruling in the alternative that the Convention's obligations were fulfilled by the United States. (Judge Hoeveler's orders dismissing the petitions are here and here.) Yesterday's action by Judge Paul C. Huck of the Southern District of Florida is the most important from a procedural standpoint, as the judge refused, on the merits, to disturb the certification of extraditability issued by Magistrate Judge William C. Turnoff on August 28, 2007. Ruling from the bench following oral argument, Judge Huck agreed with Judge Hoeveler's conclusions, including that the United States's obligations under the Third Geneva Convention have been satisfied through assurances by France that it would treat Noriega in accordance with the Convention's rules. (A written opinion has yet to be issued.) Noriega will, no doubt, appeal Judge Huck's decision to the Eleventh Circuit, which already has on its docket Noriega's appeal of one of Judge Hoeveler's decisions dismissing one of the earlier habeas petitions. If and when Noriega's appeals are exhausted, the Secretary of State will decide whether Noriega should, in fact, be extradited.

Symposium: The New Face of Armed Conflict: Enemy Combatants After Hamdan v. Rumsfeld

The latest issue of the George Washington Law Review (Vol. 75, nos. 5-6, August 2007) contains a symposium on The New Face of Armed Conflict: Enemy Combatants After Hamdan v. Rumsfeld. It can be downloaded here. Contents include:

• Symposium: The New Face of Armed Conflict: Enemy Combatants After Hamdan v. Rumsfeld
• Gregory E. Maggs, Foreword
• John B. Bellinger, III, Transcript of Remarks
• Stephen A. Saltzburg, A Different War: Ten Key Questions About the War on Terror
• Ingrid Detter, The Law of War and Illegal Combatants
• Sean D. Murphy, Evolving Geneva Convention Paradigms in the "War on Terrorism": Applying the Core Rules to the Release of Persons Deemed "Unprivileged Combatants"
• Mark A. Drumbl, The Expressive Value of Prosecuting and Punishing Terrorists: Hamdan, the Geneva Conventions, and International Criminal Law
• Leila Nadya Sadat, Extraordinary Rendition, Torture, and Other Nightmares from the War on Terror
• Robert M. Chesney, State Secrets and the Limits of National Security Litigation
• Margaret L. Satterthwaite, Rendered Meaningless: Extraordinary Rendition and the Rule of Law
• Michael German, Trying Enemy Combatants in Civilian Courts

Corn: Enemy Combatants and Access to Habeas Corpus

Geoffrey S. Corn (South Texas College of Law) has posted Enemy Combatants and Access to Habeas Corpus: Questioning the Validity of the Prisoner of War Analogy (Santa Clara Journal of International Law, forthcoming). Here's the abstract:

One of the most commonly asserted justifications for denying habeas review to individuals detained by the armed forces during the Global War on Terror has been that such review is both illogical and inconsistent with the tradition of warfare because prisoners of war (POWs) have never been provided analogous access to judicial review. This view reflects a flawed assumption that the necessity for habeas access is equal for both POWs and other individuals detained as a result of their participation in armed conflict - individuals excluded from the benefits of the Geneva Convention Relative to the Treatment of Prisoners of War. Accordingly, it is not only unjustified, but distorts the underlying questions at issue in the habeas debate.

This article challenges the validity of this analogy by explaining this internal compliance mechanism of the Prisoner of War Convention, and exposing how designation as an "enemy combatant" deprives captured personnel of any legal remedy for arbitrary decisions by the detaining power, mainly the United States.

Bradley: The Military Commissions Act, Habeas Corpus, and the Geneva Conventions

Curtis A. Bradley (Duke - Law) has posted The Military Commissions Act, Habeas Corpus, and the Geneva Conventions (Am. J. Int'l L., forthcoming). Here's the abstract:

This essay considers the constitutionality of both the habeas corpus and Geneva Convention provisions in the Military Commissions Act of 2006 (MCA). The MCA purports to preclude federal court jurisdiction over habeas corpus applications filed by detainees in the war on terrorism, providing them instead with D.C. Circuit review of their status determinations and military commission judgments. The MCA also has a number of provisions that either restrict judicial application of the Geneva Conventions or purport to interpret those Conventions. With respect to the habeas restriction, the essay concludes that the Supreme Court is likely to find that the detainees at the Guantánamo Bay naval base have a constitutional right of habeas corpus review, and that this right has not been validly suspended by the MCA. Nevertheless, depending on how they are interpreted, the provisions allowing for D.C. Circuit review could suffice to preserve the constitutional right. With respect to the MCA's Geneva Convention provisions, the essay concludes that Congress has the authority to decide that the United States will implement the Conventions through military regulations, congressional oversight of the military, criminal law, and diplomatic relations rather than through private judicial enforcement, and that a fair reading of its intent in enacting the MCA is that it has exercised this authority. In addition, while the provisions in the MCA that set forth particular interpretations of the Geneva Conventions are unlikely to be treated by courts as dispositive, the essay concludes that courts should give substantial deference to Congress's and the Executive's shared interpretation of the Conventions.