Chapter 5 tackles the question of the applicability of belligerent reprisals in non-international armed conflict. After assessing the merits and difficulties associated with previous reflections on the topic, it devises a new methodology to approach the issue. Then, it puts the notion of belligerent reprisals in relation with the two features of inequality of status between States and non-State armed groups, and equality of rights and obligations for parties to non-international armed conflicts. A careful reading of the travaux préparatoires of Additional Protocol II to the 1949 Geneva Conventions upholds an interpretation that links belligerent reprisals with the latter principle, and that places reciprocity at the basis of both the applicability and the purpose of the measure in non-international armed conflicts. The chapter concludes with the impact of this formalization on such key questions as the requirement of imputability to a State of the original IHL violation and the actual features of the principle of equality. It suggests that the focus be shifted to the idea of equilibrium of rights and obligations, and that belligerent reprisals be seen as a key enabler of it.

Chapter 2 explains how belligerent reprisals have come to be interpreted as tools to induce compliance with the laws of armed conflict. It does so by highlighting three cumulative processes. First, it looks at the role that post–World War II tribunals, the ICTY and the ICRC have played in stressing the procedural elements of belligerent reprisals, emphasizing the highly formalized set of steps to be taken before the adoption of the measure while downplaying the retaliatory act itself. Then, it claims that the main thrust of this proceduralization lies in the creation of a regulatory framework that attributes a specific legal meaning to the retaliatory conduct and, by so doing, allows for an assimilation of belligerent reprisals with the notion of countermeasures. In turn, this analogy leads to the attribution to belligerent reprisals of a sanctioning character that protects the primary norm from the risk of persistent non-compliance. The outcome of these three processes is the attribution to belligerent reprisals of a chiefly coercive purpose, interested in inducing compliance with the laws of armed conflict and markedly influenced by the enforcement paradigm.

The Conclusion draws on the findings of the book to analyse the main implications of a reciprocity-based understanding of belligerent reprisals. First, it distinguishes this formalization of belligerent reprisals from earlier theories stressing the law-making function of the measure. Then, it accounts for the continued relevance of belligerent reprisals even at a time when mechanisms monitoring and enforcing compliance with the laws of armed conflict gain momentum. Finally, it explains how a reciprocity-based interpretation of belligerent reprisals would affect follow-up reform of the mechanism – be it in the sense of fine-tuning its regulation, or in the sense of disposing of it altogether.

The final substantive chapter of the book looks at how all these rules are implemented and enforced, and what mechanisms exist to hold violators of the law accountable for their acts. Common Article 1 of the Geneva Conventions requires states to ‘ensure respect’ for the rules of IHL, which is achieved through a range of measures such as education of the armed forces and civil society in the rules of IHL and entrenching the rules in domestic legislation. The chapter describes the roles of the ICRC, Protecting Powers and the International Humanitarian Fact-Finding Commission. The development and content of international criminal law are examined, including individual responsibility for war crimes, lesser violations of IHL, crimes against humanity and genocide, and the concept of command responsibility is explained. The growth in international and hybrid criminal tribunals is noted, as well as the roles played by the United Nations and other organisations in encouraging adherence to the rules of IHL. Finally the chapter examines mechanisms for implementation, enforcement and accountability in non-international armed conflict.

The ICRC is presented as having three identities: a Swiss private organization, a member of the global Red Cross and Red Crescent Movement, and an entity recognized with rights and duties in public international law. Details of each identity and how identity affects policy are provided. Concrete examples are given of the interplay of the three identities. The crux of the chapter is an analysis of the uniqueness of the ICRC, an analysis that leads into a deeper study of the relationship between the ICRC and the RC Movement in the following chapter.

The ICRC Policy stipulates that protection aims to ensure that authorities and other actors, such as armed groups and other non-State actors, ‘respect their obligations and the rights of individuals in order to preserve the safety, physical integrity and dignity of those affected by armed conflict and other situations of violence’. The chapter discusses the major challenges the Red Cross faces in seeking to ensure that IHL is respected.

The issue of Israeli settlements in the West Bank is controversial in the international community as well as within Israel society. The case for their illegality is based on the language of Article 49 of the IVth Geneva Convention. The contrary argument is that the population has not been transferred into the territory of an enemy State as set out in Article 49. It is debatable whether such settlements are illegal under international law, it is, however, clear that continued settlement activity is making it harder to achieve agreement on a separate independent Palestinian State or entity in the West Bank. Presumably the issue of Israeli settlements will only be resolved if Israel and the Arab Palestinians in the West Bank can agree on a boundary between them.If such a boundary is fixed, any Israeli settlement on the Palestinian side can only continue to exist with the agreement of the Palestinians. The issue is one of boundaries between Israel and a future Palestinian entity or State. It is not an Apartheid system of a minority controlling a majority but a border dispute that, hopefully, will be negotiated peacefully in the future.

Having analysed the place that non-State armed groups (NSAGs) occupy within the international legal architecture and the reasons why they are (and should be) bound by the obligations contained therein, this chapter focuses on how international law responds to some of their detention activities in non-international armed conflicts (NIACs). It explores, in particular, the possible legal basis that these non-State actors can rely upon to deprive individuals of the liberty, focusing on NSAGs’ law-making and ‘law-adapting’ activities. By relying on a ‘legal pluralistic’ approach to international law and on the principle of equality of belligerents under IHL, this chapter argues that NSAGs’ ‘laws’ can provide a valid legal basis for their activities in NIACs.

Amid the emergence of modern warfare at the end of the nineteenth century, states agreed on a model to regulate armed conflicts centered on a body of internationally agreed norms known as international humanitarian law (IHL). While states have always been the sole law makers and are ultimately responsible for the implementation of the laws of war, the International Committee of the Red Cross placed itself at the very center of the new model, as the champion of IHL, filling the gaps in terms of sponsoring new rules, promoting the law, and monitoring its application in war zones. This unique model of governance was composed of states and independent humanitarian actors and combines features of a hierarchy and a network. While the model saved countless numbers of lives, it has been perpetually challenged, criticized, and violated. The model stood the test of time nonetheless and survived the conflicts of the twentieth century. It is still enduring today. This chapter analyses the reasons for the longevity of the model, looking at its evolution over time in terms of key moments, efficacy and legitimacy, changing composition, and growing complexity.

This chapter establishes the theoretical orientation of the study. Traditional IR approaches to regime development – which have typically drawn on a single research tradition – are mapped, and then contrasted with the pluralist approach taken in Negotiating Civil War, highlighting the rationale, principal benefits and challenges of drawing variously on Realist, Rationalist, Liberal and Constructivist insights. The hypotheses to be tested in each of the subsequent case studies chapters are then set out and their underlying explanatory factors identified. The chapter then sets out the potential interaction amongst these hypothesised factors in a ‘straw person’ diagram. The chapter concludes with a brief discussion of the key methodological considerations informing the study.

This chapter investigates the shifting politics of humanitarianism, and the way that decolonization processes and related ideologies influenced the evolution of human rights and humanitarian norms. It explores these issues by returning to the debates of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, which took place in Geneva in four sessions from 1974 to 1977, resulting in Additional Protocols I and II to the Geneva Conventions and the elevation of wars of national liberation to the status of international conflicts. The Conference was remarkable for the participation of thirteen national liberation movements. Their participation attests to the importance of decolonization ideologies and the influence of supporters of decolonization – both those seeking independence and, crucially, newly independent states themselves – in international forums. The chapter assesses how concepts of national liberation were deployed and understood during the Conference, in order to elucidate how humanitarian and human rights ideas and practices interacted with the politics of decolonization.

This chapter has attempted to explore three ideas. First, that there was in fact considerable work and effort invested in regulating and prohibiting landmines since the end of the Second World War, and the 1997 treaty in large part rested on that earlier work. Indeed, the success of the Landmines Convention cannot be properly understood without this historical context. Second, the longer history in turn reveals an important story of the developing world actively engaged in pursuing limits on indiscriminate weapons, and actively engaged in the pursuit of disarmament. While this changed across time as the developing world itself fractured and shifted, it remains an important part of the story of disarmament efforts in the Cold War, much of which has yet to be explored. Finally, the story exposes the fallacy that ‘humanitarian disarmament’ is a creature of the post–Cold War era in the sense that especially from the South (but generally as well), there was deep and abiding concern about the humanitarian impacts of indiscriminate weapons.