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(ii) promoting consensus in decision-making procedures (pp. 284-289), and (iii) promoting coherence in the law of the sea (pp. 289-292). Overall this book will introduce readers to an excellent overview of the development of the international law of the sea. The significance of this book is not limited to this particular field of law. It is widely recognized that the role of international institutions is increasingly important in various fields of international law and the law of the sea is no exception. By thoroughly examining the role of international institutions in the making of the law of the sea, it may be said that this book further enriches studies on the law of the sea and the law of international institutions at the same time. Furthermore, the author’s arguments in chapter 8 will provide a useful insight into conflicting treaties as well as fragmentation in international law-making. Considering that the law of the sea seems to be increasingly a specialized branch of international law, it is significant that this book attempts to bridge a gap between the law and other branches of international law. Thus, it should command the attention of a wide audience, including students and scholars studying the law of the sea, the law of international institutions, the law of treaties, and international law in general. Yoshifumi Tanaka Associate Professor of Public International Law Faculty of Law, University of Copenhagen, Denmark

1. Generally on this issue, see A. Boyle and C. Chinkin, The Making of International Law (Oxford, Oxford University Press 2007). 2. Concerning a recent study on this issue, see Y. Tanaka, ‘Protection of Community Interests in International Law: The Case of the Law of the Sea’, 15 Max Planck Yearbook of United Nations Law (2011) pp. 329-375. 3. In this regard, see Y. Tanaka, A Dual Approach to Ocean Governance: The Cases of the Zonal and Integrated Management in International Law of the Sea (Surrey, Ashgate 2008) pp. 87-93.

International Humanitarian Law: Theory, Practice, Context, Hague Academy of International Law, The Hague 2011, 500 pp. ISBN 978-90-0417910-3. doi:10.1017/S0165070X12000228

D. THÜRER,

This is a book to be enjoyed and pondered, not only by students of international humanitarian law (IHL), but by all who are interested in human rights, the law of armed conflict, or the rule of law. It is a work of mature scholarship by a preeminent expert, for anyone concerned about today’s armed conflicts, including the ‘war on terror’. It reproduces lectures delivered by Professor Thürer, in the summer of 2008, at The Hague Academy of International Law. His distinguished IHL and human rights backgrounds lend special significance to his comments. One might initially wonder if Professor Thürer can adequately

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address in a single text the ‘Theory, Practice, and Context’ of the subtitle, but he indeed does so, and in striking fashion. Chapters I through III are, for the most part, recitations of familiar IHL principles that bring the lay reader into the current state of the law of armed conflict. The origins of IHL, distinctions between international and non-international armed conflicts, combatants and civilians, and limitations on the means and methods of warfare, will all be familiar to many readers. Distinction, military necessity, proportionality and humanity, even direct participation in hostilities, are discussed, along with comments on the banning of chemical and bacteriological weapons, anti-personnel landmines, and cluster munitions. The author is merely warming up for larger themes, the first of which is nuclear weapons. With understatement he writes, ‘Courts have pronounced on the legality of nuclear arms, but with a somewhat muddled outcome’ (p. 109). Indeed, forests have been felled for the writing of articles on Shimoda v. State, and the International Court of Justice (ICJ)’s ‘dangerously ambiguous’ opinion, The Threat or Use of Nuclear Weapons (p. 111). Professor Thürer’s position is clear: ‘The atomic bombings [of Hiroshima and Nagasaki] were unlawful … because they were attacks on the civilian population … [and] resulted in no military advantage’ (pp. 106-107). He amplifies the legal and philosophical bases for his position, urging a widespread awareness of the inhumanity of nuclear weapons, and appeals for involvement in the banning process by those who are protected by IHL. This is a bottom-up approach, as was seen in the 1997 Ottawa Convention banning antipersonnel land mines, and the 2008 Dublin Convention banning cluster munitions. In chapter III, the reader recognizes a theme that resonates throughout the text: the intimate relationship of IHL and human rights law. Today, Professor Thürer writes, ‘neither of these branches of international law can be conceived of without the other’ (p. 127). He also notes that ‘human rights … are the product of Western systems of thought. But we should also not forget that that more than 80 per cent of the world’s population lives in non-Western countries’ (p. 198). He does not mention the US stance which asserts that, on the battlefield, human rights laws have application only when there are gaps in the law of armed conflict. America’s long-held position is eroded, however, by recent US military practice in Iraq and Afghanistan. The photographing of evidence, the taking of witness statements, the gathering of evidence on the battlefield, chains of custody, the trial of prisoners, all of which are now common US practice, are tenets of human rights law. These practices ‘emphasize the steady expansion of human rights law and practice into fields traditionally reserved for [international] humanitarian law … [U]nder the influence of modern practice, a more dynamic vision of the relationship seems to have emerged: this emphasizes the interdependence of the two’ (p. 131). One may object, however, that the author goes too far in writing, ‘Both humanitarian law and human rights law are involved in the transformation of the international legal order into something in which universal human values or goals take precedence over all other considerations’. (p. 138) While human rights are observed even in American military practice, military commanders of all nations will always place their mission first. Not at the price of human rights violations, but for a military professional, human rights

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values and goals will not outweigh mission accomplishment. The professor’s underlying point is nevertheless well taken: the recognition and incorporation of human rights in IHL over the past half-century has been both remarkable and significant. Professor Thürer also discusses thorny points such as internment (for which there are no guiding multinational treaties), displaced persons, and belligerent occupation. He points out that non-international armed conflicts (NIACs) raise difficult issues of legal interpretation and, particularly, enforcement of IHL and human rights law. Apropos of these issues, he writes that ‘international humanitarian law was, and still is, based on obligations imposed on States and non-State actors’ (p. 194). One wishes he had expounded on the difficult issue of enforcing those obligations against individual non-state actors, as opposed to non-state groups. While briefly recounting the progress of today’s various ad hoc and hybrid tribunals, the author also decries the slow progress in effectively imposing individual criminal responsibility for NIAC atrocities, lauding the International Criminal Tribunal for the former Yugoslavia as a notable exception. He applauds the creation of the International Criminal Court, without mentioning the roadblocks raised by the US government. In chapter IV, Professor Thürer departs from IHL to detail the book’s sub-title: theory, practice, and context. He opens with the point that the ‘West regards itself as a club of “civilized nations”. But the darkness of Western history makes this a difficult claim to sustain, makes it difficult to assert with any conviction that the West has achieved an exceptionally high level of civilization’ (p. 201). In brief brush strokes he goes on to examine the relationship of religion and IHL. He pairs Confucianism, Hinduism, Buddhism, Judaism, Christianity, and Islam with modern armed conflict, illustrating the major religions’ support for and tensions with IHL. This is no small achievement in so relatively brief a text, but he manages it nicely. It is a necessarily brief survey, yet it makes the essential point. ‘On the one hand [religions] provide a rich fund of doctrines and principles, practices and philosophical systems, many of which are now recognized as binding under international law’, he writes. ‘On the other hand, religion … has also been the cause of violence, persecution and social disruption. In many cases, it was the source of suffering and of destruction’ (p. 238). Concluding the chapter, Professor Thürer ties religion to his continuing theme: ‘[B]oth international humanitarian law and religious traditions exist for the benefit of human beings’ (p. 241). Chapter V, IHL in a Global Era, is the author’s most wide-ranging and, many will find, most rewarding section. Recognizing that wars today and in the foreseeable future are unlikely to be state versus state conflicts, but hyper-brutal NIACs in which civilians are targets, Professor Thürer examines the incentives for ‘modern’ wars. He asks whether IHL is becoming irrelevant. Was President George W. Bush’s White House Counsel, Alberto Gonzales, correct, after all, when he famously termed Geneva’s limitations ‘quaint’? Thürer notes that asymmetric warfare – NIACs – encourages both sides to not respect IHL. But he concludes, no, IHL is not becoming irrelevant. To the contrary. ‘[T]houghtful observers point to the growing role international humanitarian law plays in internal armed conflict and in occupied territories; they also refer to the growing intercon-

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nections of international humanitarian law with international human rights law and the newly created judicial mechanisms as means to implement the rules and principles of international humanitarian law’ (p. 249). He then focuses on three interrelated aspects of modern armed conflicts as particular dangers: private armed military companies, conflicts for control of natural resources, and the wide availability of small arms. He has no problem in calling private military companies mercenaries, 1977 Additional Protocol I, Article 47, notwithstanding. Paid large sums by governments or government-fed corporations, privately-paid fighters can influence any conflict. NIACs initiated for control of precious stones, drugs, or timber, are frequent. The world-wide arms trade, fueled by the revenue it provides the manufacturing states, ensures that unprivileged belligerents and lawful combatants alike carry a firepower previously undreamed of. With funds generated by selling plundered natural resources, states can buy mercenary services and the weaponry to make them fiercely effective. ‘First, [all three aspects] may all be understood as manifestations of a new type of war. Second, they all pose specific challenges to humanitarian law. Third, if we want to tackle them we will have to look at the attendant economic aspects. And fourth, their emergence has been facilitated by the process of economic globalization’ (pp. 282-283). A response to this bleak picture is offered, as well. Today, the international community has a responsibility to protect victim countries, Thürer writes. ‘[E]very State has the primary responsibility – towards its own population and towards the international community – to prevent genocide, crimes against humanity and war crimes on its own territory. If a State, however, cannot or will not protect its own people, the community of States has a secondary and collective responsibility to protect those in danger.’ He adds: ‘It is still very much a matter for debate’ (p. 290). Is a responsibility to protect – the ‘R2P’ currently popular in human rights seminars – a feasible real-world response to NIAC excesses? There’s no harm in hoping. Chapter VI examines the roles and responsibilities of humanitarian actors in promoting IHL. In a manner similar to chapter IV’s relation of major religions to IHL, Professor Thürer outlines how international institutions – the International Committee of the Red Cross (ICRC), the United Nations (UN), the ICJ, regional bodies, and, somewhat surprisingly, the media – promote IHL. The ICRC’s role is well known. The author quotes Caroline Moorehead: ‘If the International Committee of the Red Cross did not exist, no one would be able, [today], to invent it. Who today would put the power to monitor and criticize all the governments of the world in the hands of a small band of co-opted elderly Swiss lawyers and bankers? Its mandate is unique and its composition a quirk of history’ (p. 297). Given the recent Ottawa and Dublin Conventions one wonders, however, if the ICRC’s position will be weakened in negotiating future multi-national pacts. In his discussion of NGOs, Professor Thürer hints at this shifting ground: ‘NGOs introduced humanitarian considerations into disarmament negotiations and achieved astonishing results’ (p. 345). Indeed they did. Thürer briefly discusses the European Union and the Council of Europe, and their places in the IHL spectrum. The UN is also covered, noting that for its first twenty years

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it kept IHL at arm’s length. Now, he writes, the UN is a focus of several IHL-related bodies, noting contributions of the Security Council and the significance of UN peacekeeping operations. Unsurprisingly, the UN’s Human Rights Council is well covered. Several human rights-related decisions of the ICJ are detailed. ‘The ICJ has significantly influenced the development of humanitarian law in a number of ways: by establishing the formula of “elementary considerations of humanity” and confirming the customary nature of humanitarian law treaties, and by treating the fundamental principles of humanitarian law as a sort of humanitarian jus cogens’ (p. 329). He goes on to detail the 1949 Corfu Channel, 1986 US-Nicaragua cases, and the more recent nuclear weapons and Wall cases. Each brief account is a cogent summary of the difficult IHL issues and their resolutions, as well as an interpretation of their significance to IHL and human rights law. Upon closing the book, the reader is impressed by the broad range of material Professor Thürer covers – law, religion, nuclear weapons, non-governmental organizations, political groupings, and more. While the depth of analysis of these topics is necessarily limited, one is also struck by the clarity of the summaries. The book’s subtitle, ‘Theory, Practice, Context’, is proven apt. This book is a valuable guide and reference for students, teachers, and lay individuals; for anyone interested in major issues of modern armed conflicts; for anyone interested in human rights and humanitarian law. Deeply researched, thoughtfully considered and well written, it is a worthy addition to a short list of books to be kept close at hand for frequent reference. Professor Gary Solis United States Military Academy (Retired) Washington DC