The law of armed conflict suffers from an internal ambiguity. The Declaration of St Petersburg (1868) made the ambiguity explicit when it stated that ‘the necessities of war ought to yield to the requirements of humanity’. The Lieber Code (1863) was less explicit, though it suffered from the same ambiguity. The Code received a lengthy critique from the Confederate Secretary of War who stated bluntly: ‘A military commander under this code may pursue a line of conduct in accordance with the principles of justice, faith and honour, or he may justify conduct correspondent with warfare of the barbarous hordes who overran the Roman Empire, or who, in the Middle Ages, devastated the continent of and menaced the civilisation of Europe’. Which of the two considerations, the Confederate Secretary demanded to know, should prevail: humanity or necessity?

The concept of ‘the responsibility to protect’ (R2P) was endorsed at the 2005 World Summit by the UN General Assembly. This concept, like the right to intervene under Article 4(h) of the Constitutive Act of the African Union, aims to end mass atrocity crimes in the form of war crimes, genocide and crimes against humanity. Yet the question that remains is: what if the UN Security Council is unwilling or unable to act? Further, there is a continuing unanswered question: ‘should action to prevent large-scale killing in an African country be beholden to a Security Council that has no permanent African membership?’ The High-level Panel indicated that in some urgent situations UN Security Council authorization may be sought after operations have commenced, whereas the World Summit Outcome rejected demands that states or organizations such as the African Union (AU) should be able to act before gaining UN authorization. These are the principal issues addressed in this analysis, which discusses how the AU can implement the right to intervene under Article 4(h) against the background of the prohibition of the use of force regime under the UN Charter. The analysis explores the current thinking of the AU and the international community on the key question of how to proceed in cases where the UN Security Council is deadlocked in using force to prevent mass atrocity crimes. The discussion highlights the intention of the framers of the AU Act vis-à-vis the practice of the Security Council in authorizing enforcement action as well as views of various commentators in this regard.

Current peace operations often include an element of enforcement. Such operations are based upon Chapter VII of the United Nations Charter and are regularly endowed with a right to use ‘all necessary measures’ to fulfil the tasks set down in the particular mandate from the UN Security Council. Such operations, moreover, are often deployed in unstable conditions that border on armed conflict, or in areas of existing conflict. At times, the military forces involved in these operations are also involved in the armed conflict itself.

The utilization of military force naturally raises the question of the legal status of personnel in peace operations under international humanitarian law (IHL). They represent the international community and as such are protected personnel. But how should they be treated from the perspective of IHL? Should they, despite their obvious military characteristics, be regarded as civilians? At what point, if any, could they be regarded as combatants? On the issue of change of status under IHL, does the same threshold apply for the operation's military forces as for other military personnel? Does the involvement of peace forces in an armed conflict, made up of contributions from a number of States, automatically cause that conflict to assume an international nature? Are the Convention on the Safety of United Nations and Associated Personnel and IHL, applicable in non-international armed conflicts, mutually exclusive? These dilemmas are well illustrated by the difficulties facing the International Security and Assistance Force (ISAF) in Afghanistan.

Successive Israeli governments have adopted a number of policies to control and contain the Syrian population since Israel began its occupation. Numerous villages have been destroyed, thousands driven from their homes, private and public property expropriated, the remaining Arab villages have been prevented from expanding and the free movement of people curtailed. In 1981, Israel enacted legislation that purported to annex the territory. This move was widely condemned by the international community and from the perspective of international law, the Syrian Golan remains an occupied territory to which the laws of occupation apply.

The northern hemisphere summer of 2008 marked the 41st anniversary of Israel's occupation. This report outlines the background to the occupation and the consequences for the local population. It then examines the action of the Israeli authorities and argues that certain practices by the Israeli Defence Forces constitute war crimes, which in some cases may also amount to grave breaches of the Fourth Geneva Convention governing the protection of civilians.

In 2005, the International Committee of the Red Cross (ICRC) completed a ten-year study on customary international humanitarian law, based on an assessment of the State practice of over 150 nations over the preceding thirty years. Somewhat surprisingly, but perhaps owing to the sheer size of the ICRC Study, only two states have officially responded to the ICRC: the United States and Israel. Although an analysis of the US response is beyond the scope of this paper, it generally criticizes the ICRC Study's unorthodox methodology, including both the State practice it considered, and its lack of proof of opinio juris.

The ICRC is a venerable organization, traditionally viewed as the guardian of international humanitarian law. Its study is a monumental work compiling a surfeit of State practice. Nevertheless, the ICRC Study articulates ‘rules’ that are not sustainable under the traditional theory of customary international law formation, as may be seen by the examination in Section 3 of the three seemingly uncontroversial rules proposed for handling the wounded, sick and shipwrecked.

The positive developments contrasted with widespread violations of humanitarian law in a number of major and minor armed conflicts and in the context of the so-called ‘war on terrorism’.

The International Criminal Courts Round-Up reports on the most interesting judgements and decisions rendered by international(ized) criminal courts and tribunals during the reporting period. In addition, important developments within the various organs of the courts are highlighted, such as the appointment of new judges and significant amendments to the procedural rules of the courts. The Round-Up presently covers issues concerning the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone.

The world has witnessed many atrocities since the followers of the Communist Party of Kampuchea, better known as the Khmer Rouge, marched into Phnom Penh on 17 April 1975 and unleashed a regime of terror of more than three and a half years on the Cambodian people in which an estimated quarter of the population perished. However, the fate that befell this small South-East Asian nation continues to grip and challenge the imagination. Perhaps it is the notion of the State turning on its own people on such an unprecedented scale that is so difficult to fathom. Perhaps it is the tranquil, smiling populace, forging a space in the modern era against the proud backdrop of the ancient Angkorian temples that makes such a dark recent history so improbable. Or perhaps it is the scales of justice, finally weighing in, more than thirty years after the crimes in defiance of donor countries' ‘tribunal fatigue’, that have refocused the world's attention.

The Khmer Rouge takeover had been preceded by a struggle for power which saw Prince Norodom Sihanouk, who had abdicated and governed Cambodia since independence in 1953, overthrown by Prime Minister Lon Nol and Prince Sisowath Sirik Matak on 17 March 1970. The new government was allied to the United States in the Vietnam War, fuelling Khmer Rouge resentment as well as that of Sihanouk who aligned himself with the communists. The Khmer Rouge gradually consolidated its power and control of territory, and when the time was seen to be ripe to institute the planned nationwide ‘agrarian dictatorship’, it easily overpowered the weak and corrupt Lon Nol government.

On 3 December 2008, the Convention on Cluster Munitions (hereinafter the Convention), a legally binding instrument on cluster munitions that cause unacceptable harm to civilians, was signed by 94 states in Oslo. The Convention is the result of a Norwegian initiative of November 2006 which, ultimately led to negotiations conducted in Dublin from 18-30 May 2008 between 111 states. Below, a short overview will be given with regard to the process that led to the Convention, followed by a short explanation of the most relevant Articles of the Convention and the ideas behind it. Finally, a determination will be given with regard to the future role of the Convention in the field of international humanitarian law.

Correspondents' Reports is compiled and edited by Tim McCormack with the excellent assistance of Roisin Burke, James Ellis and Sasha Radin primarily from information provided to the YIHL by its correspondents but also drawing on other sources. The section does not purport to be a fully inclusive compilation of all international humanitarian law-related developments in every state but represents a selection of developments during the calendar year 2008 that have come to the Yearbook's attention. Legal developments from early 2008 that were noted in volume 10 of the YIHL are not repeated here. Readers are thus advised to consult this section in conjunction with Correspondents' Reports in volume 10. We apologise for this inconvenience. Further, some 2007 humanitarian law-related developments came to our attention after volume 10 went to press and could not be noted there. For the sake of completeness, we have included them here. Reference is also included to a number of legal developments which are not strictly-speaking related to IHL but which are nonetheless interesting and relevant for our readers, in particular relating to justice issues, jurisdictional questions, jus ad bellum, State security, human rights, refugees and internally displaced persons, and terrorism. Where citations or dates or other details have not been provided, they were not available or obtainable. The YIHL is actively seeking new correspondents, particularly in Africa, Asia, the Pacific and Latin America. Interested persons and anyone who is willing to contribute information should contact the Managing Editor at YIHL@asser.nl.