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Law-Making and Legitimacy in International Humanitarian Law

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Law-Making and Legitimacy in International Humanitarian Law

9781800883956 Edward Elgar Publishing
Edited by Heike Krieger, Professor of Public and International Law, Freie Universität Berlin, Co-Chair Berlin Potsdam Research Group ‘The International Rule of Law- Rise or Decline?’, and Max Planck Fellow, the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany with Assistant Editor Jonas Püschmann, Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany
Publication Date: 2021 ISBN: 978 1 80088 395 6 Extent: 488 pp
International Humanitarian Law (IHL) is in a state of some turbulence, as a result of, among other things, non-international armed conflicts, terrorist threats and the rise of new technologies. This incisive book observes that while states appear to be reluctant to act as agents of change, informal methods of law-making are flourishing. Illustrating that not only courts, but various non-state actors, push for legal developments, this timely work offers an insight into the causes of this somewhat ambivalent state of IHL by focusing attention on both the legitimacy of law-making processes and the actors involved.

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Critical Acclaim
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International Humanitarian Law (IHL) is in a state of some turbulence, as a result of, among other things, non-international armed conflicts, terrorist threats and the rise of new technologies. This incisive book observes that while states appear to be reluctant to act as agents of change, informal methods of law-making are flourishing. Illustrating that not only courts, but various non-state actors, push for legal developments, this timely work offers an insight into the causes of this somewhat ambivalent state of IHL by focusing attention on both the legitimacy of law-making processes and the actors involved.

Investigating what law-making processes reveal about the overall state of this legal regime, this thought-provoking book shows that current developments display a far-reaching disagreement about the direction into which IHL should evolve. It explores the most relevant trends in the development of IHL including the absence of formal law-making by states, informal law-making through manual processes and the increasing role of sub and non-state actors.

Law-Making and Legitimacy in International Humanitarian Law will be of benefit to scholars and students of international law and relations, as well as practitioners working in the field of IHL, particularly in government ministries, international organizations and NGOs
Critical Acclaim
‘Formally, states, and states alone, make and authoritatively interpret international humanitarian law. But this legalistic maxim hardly reflects the actual process by which IHL emerges and evolves. Law-Making and Legitimacy in International Humanitarian Law brings together general international law and humanitarian law experts to tease loose key aspects of this dynamic and assess their legitimacy. The first work to examine the foundational issue of IHL development critically and comprehensively, it is a must read for IHL scholars and practitioners.’
– Michael Schmitt, United States Military Academy at West Point, US and University of Reading School of Law, UK

‘This volume explores the interplay of law and legitimacy in relation to the law of armed conflict and includes contributions by a collection of noted scholars. It focuses on the role that various actors play in the process of developing, questioning and affirming international humanitarian law. It does so in an innovative and thought provoking way and will doubtless be of interest to both the legal theorist and the IHL specialist.’
– Terry Gill, University of Amsterdam, the Netherlands
Contributors
Contributors: Bill Boothby, Michael Bothe, Emily Crawford, Robert Cryer, Jean d’Aspremont, Shane Darcy, Denise Garcia, Robin Geiß, Robert Heinsch, Jean-Marie Henckaerts, Hyeran Jo, Daniel Joyce, Stefan Kadelbach, Balingene Kahombo, Heike Krieger, Philip Liste, Timothy Meyer, Georg Nolte, Elvina Pothelet, Anni Pues, Jonas Püschmann, Thomas Rauter, Alejandro Rodiles, Tom Ruys, Cedric Ryngaert, Dale Stephens, Wouter G. Werner, Cindy Wittke
Contents
Contents:

Preface xi

PART I INTRODUCTION
1 Law-making and legitimacy in international humanitarian law 2
Heike Krieger and Jonas Püschmann

PART II LEGITIMACY AS ANALYTICAL LENS
2 The roles of legitimacy in international legal discourses: Legitimizing
law vs legalizing legitimacy 16
Jean d’Aspremont
3 The role of legitimacy in international humanitarian law: A comment 33
Stefan Kadelbach
4 Actor legitimacy and the application of IHL: A rejoinder to d’Aspremont 41
Tom Ruys

PART III INFORMAL LAW-MAKING IN INTERNATIONAL
HUMANITARIAN LAW AS A POLITICAL CHOICE
5 Global norms governing the protection of civilians, conflict, and
weapons: Formal or informal law-making? 56
Denise Garcia
6 Post-international humanitarian law? A rejoinder to Denise Garcia 80
Philip Liste
7 Noncompliance as law-making 89
Timothy Meyer

PART IV NEW LAW THROUGH PRACTICE?
8 Interpreting the Geneva Conventions: subsequent practice instead of
treaty amendments? A case study of ‘non-international armed conflicts’
under Common Article 3 117
Emily Crawford
9 Legitimacy and methodology – a subtle yet significant influence:
Judicial decisions and the development of international humanitarian law 141
Shane Darcy
10 The interpretation of IHL treaties: Subsequent practice and other salient issues 150
Jean-Marie Henckaerts and Elvina Pothelet
11 Methodological challenges in ascertaining customary international
humanitarian law: Can customary international law respond to changing
circumstances in warfare? 170
Robert Heinsch

PART V COURTS AND MANUALS – DECOUPLING LAW-MAKING
FROM STATES?
12 Judicial practice in international criminal law: Law-making in disguise? 196
Thomas Rauter
13 The law at hand: Paratext in manuals on international humanitarian law 217
Wouter G. Werner
14 International manuals in international humanitarian law: A rejoinder to
Wouter G. Werner 232
Robin Geiß and Anni Pues
15 Interpretation and identification of international humanitarian law:
Responses of the International Law Commission 242
Georg Nolte
16 Manuals and courts: International humanitarian law, informal
law-making and normativity 253
Dale Stephens

PART VI LEGITIMACY AND PARTICIPATION
17 International humanitarian law-making in Latin America: Between the
international community, humanity, and extreme violence 277
Alejandro Rodiles
18 Sovereign equality and law-making: how do states from the Global
South shape international humanitarian law? An African perspective 300
Balingene Kahombo
19 Sovereign equality and law-making: how do states from the Global
South shape international humanitarian law? A comment to Alejandro
Rodiles and Balingene Kahombo 324
Michael Bothe
20 Between war and peace: Negotiating and implementing legitimate
ceasefire agreements 335
Cindy Wittke
21 Law-making participation by non-state armed groups: The prerequisite
of law’s legitimacy? 357
Hyeran Jo
22 Non-state armed groups and international humanitarian law-making –
the challenge of legitimacy: A reply to Cindy Wittke and Hyeran Jo 375
Cedric Ryngaert

PART VII LEGITIMACY AND NORM ENTREPRENEURS
23 The impact of human rights advocacy: Between (mis)stating the law
and pursuing humanitarian policies? 385
Robert Cryer
24 From the Martens clause to the CNN factor: Is the impact of media and
public opinion on law-making discernible? 404
Daniel Joyce
25 Media, public opinion and humanitarian advocacy 422
William Boothby

PART VIII CONCLUSION
26 A legitimacy crisis of international humanitarian law? 429
Heike Krieger and Jonas Püschmann
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