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«International Law and Armed Conflict: Exploring the Faultlines International Humanitarian Law Series VOLUME 15 Editors-in-Chief Professor ...»

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International Law and Armed Conflict:

Exploring the Faultlines

International Humanitarian Law Series



Professor Christopher Greenwood

Professor Timothy L.H. McCormack

Editorial Advisory Board

Professor Georges Abi-Saab

H.E. Judge George H. Aldrich

Madame Justice Louise Arbour

Professor Ove Bring

Professor Antonio Cassese

Professor John Dugard

Professor Dr. Horst Fischer

Dr. Hans-Peter Gasser

Professor Leslie C. Green

H.E. Judge Geza Herczegh Professor Frits Kalshoven Professor Ruth Lapidoth Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron Captain J. Ashley Roach Professor Michael Schmitt Professor Jiri Toman The International Humanitarian Law Series is a series of monographs and edited vol- umes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed conflict.

The series explores substantive issues of International Humanitarian Law including, – protection for victims of armed conflict and regulation of the means and methods of warfare – questions of application of the various legal regimes for the conduct of armed con- flict – issues relating to the implementation of International Humanitarian Law obliga- tions – national and international approaches to the enforcement of the law and – the interactions between International Humanitarian Law and other related areas of international law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and International Criminal Law.

The titles in this series are listed at the end of this volume.

Professor Yoram Dinstein International Law and Armed Conflict: Exploring the Faultlines Essays in Honour of Yoram Dinstein edited by Michael N. Schmitt and Jelena Pejic LEIDEN • BOSTON 2007 Printed on acid-free paper.

A c.i.p. record for this book is available from the Library of Congress.

isbn: 978 9004154 28 5 © 2007 by Koninklijke Brill nv, Leiden, The Netherlands.

Koninklijke Brill nv incorporates the imprints Brill, Hotei Publishers, idc Publishers, Martinus Nijhoff Publishers and vsp.

http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher.

Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa.

Fees are subject to change.

Cover photo: Afghanistan, Khandahar. After a road bomb has destroyed an US Army vehicule, troops are patrolling the area to look for clues.

© cicr/voeten, Teun Anthony

–  –  –

 The Adequacy of International Humanitarian Law Rules on Belligerent Occupation: To What Extent May Security Council Resolution  Be Considered a Model for Adjustment?  Rüdiger Wolfrum

–  –  –

 “Benevolent” Third States in International Armed Conflicts:

The Myth of the Irrelevance of the Law of Neutrality  Wolff Heintschel von Heinegg

–  –  –

On behalf of the contributors, we offer this Volume in friendship, respect and admiration for Professor Yoram Dinstein. No-one familiar with his wide-ranging work in the field can feel anything but awe for his contribution to the clarification and development of international law. To us, Yoram has also been a selfless, albeit – as anyone who knows him well understands – demanding, mentor, one who has sharpened our understanding of, and ability to think critically about, the law. Along with many others, we have also benefited over the years from his erudition on a range of subjects well beyond international law.

Yoram Dinstein’s opus, while international in breadth and effect, is deeply rooted in his beloved Israel. Born in Tel-Aviv in 1936, he obtained his legal education at the Hebrew University in Jerusalem (where he graduated summa cum laude) and New York University. Professor Dinstein began his professional career in Israel’s Foreign Service in which he served as Consul of Israel in New York City and with Israel’s Permanent Mission to the United Nations. Even subsequent to becoming a full-time academic, Professor Dinstein represented his country in various international fora, ranging from the UN Commission on Human Rights and the International Conferences of the Red Cross and Red Crescent to Interpol. In 1986-1988, he also served as Counsel in the Taba Arbitration with Egypt.

It is as an educator and academic, however, that Professor Dinstein has left an indelible mark. In Israel, he was Professor of International Law, Dean of the Faculty of Law, Rector and President of Tel-Aviv University. While President, he also chaired Israel’s Committee of Heads of Universities (VERA). Today, he holds the title of Yanowicz Professor of Human Rights at Tel-Aviv University.

But Professor Dinstein’s influence extends far beyond the borders of Israel.

Indeed, his international academic and teaching engagements are too numerous to be enumerated here. Suffice it to mention that he was twice appointed the Charles H. Stockton Professor of International Law at the United States Naval War College, was a Humboldt Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, and has been a Visiting Professor at the DePaul University in Chicago, the University of Toronto and New York University. The University of Buenos Aires, the University of Chile and the Hebrew Union College have conferred honorary doctorates on


xii him, while the National University of Mexico (UNAM) awarded him the title of Distinguished Professor.

His career is also marked by service in the development and dissemination of international law. Professor Dinstein serves as Vice-President of Israel’s national branch of the International Law Association and of the Israeli United Nations Association, as well as a member of the Council of the International Institute of Humanitarian Law in San Remo, Italy. He has also been active in many international research projects, including that which resulted in the San Remo Manual on International Law Applicable to Armed Conflicts at Sea. Professor Dinstein presently directs an international experts’ group drafting a similar manual on air and missile warfare.

In recognition of his contributions to the field of international law, in 1989 Professor Dinstein became a Member of the Institut de Droit International (Institute of International Law), a group of the world’s leading international lawyers elected by cooptation for life.

While Professor Dinstein has explored many issues of international law in his scholarly research and writing, it may be said that the focal points of his work have been the jus ad bellum and the jus in bello. The former regulates when force may be used in international relations, whereas the latter governs how such force may be used and extends protection to both persons who are not or no longer participating in hostilities and to civilian objects. These areas of public international law are central to the way in which the world is ordered, for they deal – indirectly and directly – with questions of life and death.

Regrettably, the reasons wars are waged and the way in which they are conducted are so closely linked to national interests, or skewed perceptions thereof, that international law rules regulating force have too often been observed only in the breach. Partly as a result, international law has been famously condemned as existing only at the “vanishing point” of law. Professor Dinstein’s lasting contribution to the field is that his writings on both the jus ad bellum and the jus in bello effectively and definitively dispel that claim.

It is unimaginable that anyone addressing such matters could do so without resorting to War, Aggression and Self-Defence, Professor Dinstein’s classic work on the jus ad bellum (now in its fourth edition), The Conduct of Hostilities under the Law of International Armed Conflict, his recently published study of the jus in bello, or the Israel Yearbook on Human Rights, which he has edited for over three decades. Indeed, it may be fairly said that a scholarly work in the area which contains no “Dinstein cite” is, quite simply, incomplete. The logic, clarity and practical groundedness of his work, whether one accepts every tenet or not, make it an unavoidable and timeless body of reflection and analysis for international law scholars and practitioners alike.

This Volume honours Professor Dinstein by addressing both the jus ad bellum and the jus in bello. As a result of recent events on the international scene, no areas of international law are being debated today with greater fervor. New

Preface xiii

prescriptive dilemmas, real or imagined, as well as old controversies repackaged as new ones, have burst onto center stage in discourse about whether and how the norms governing resort to force and armed conflict should be (re)ordered. Thus, our aim with this Volume has been to explore the faultlines that lie both between and within the jus ad bellum and the jus in bello.

A distinguished group of experts wholeheartedly agreed to express tribute to Professor Dinstein by contributing to the Volume. We sincerely thank each of them for their contribution. The authors include scholars and practitioners, a particularly appropriate combination in light of the intellectual depth and practical impact of Yoram’s work. They cut across generations, from recognized authorities in international law to emerging thinkers, thereby reflecting the influence he has exerted on the international law community for decades, and which he will surely continue to exert in the time to come. It is a pleasure and an honour to commend this book to Professor Dinstein’s, and others’, attention.

–  –  –

Since 1972 Vice-President, Israel United Nations Association 1974-1978 Chairman, Israel National Section, Amnesty International Associate Member, Institut de Droit International 1983-1989 1986-1988 Counsel for Israel, Taba Arbitration with Egypt 1989-1992 Member, Executive Council, American Society of International Law Member, Institut de Droit International Since 1989 Since 1991 Vice-President, Israel Branch, International Law Association Since 1993 Member, Council, San Remo International Institute of Humanitarian Law Professor Yoram Dinstein List of Academic Publications I Books The Defence of ‘Obedience to Superior Orders’ in International Law, 1.

(a) In English – Leyden, Sijthoff, xvi + 278 pp. (1965).

(b) In Hebrew – Jerusalem, Magnes Press, 280 pp. (1965).

International Law and the State, 2.

Tel-Aviv, Schocken, 160 pp. (1971) (Hebrew).

The Internal Powers of the State, 3.

Tel-Aviv, Schocken, 174 pp. (1972) (Hebrew).

International Treaties, 4.

Tel-Aviv, Schocken, 216 pp. (1974) (Hebrew).

International Claims, 5.

Tel-Aviv, Schocken, 208 pp. (1977) (Hebrew).

Non-State International Law, 6.

Tel-Aviv, Schocken, 255 pp. (1979) (Hebrew).

The Laws of War, 7.

Tel-Aviv, Schocken, 312 pp. (1983) (Hebrew).

War, Aggression and Self-Defence, 8.

First Edition – Cambridge, Grotius, xxx + 292 pp. (1988).

Second Edition – Cambridge University Press, xxxi + 325 pp. (1994).

Third Edition – Cambridge University Press, xxviii + 300 pp. (2001).

Portuguese translation, Manole (Brazil), xxxviii + 455 pp. (2005).

Fourth Edition – Cambridge University Press, xxv + 349 pp. (2005).

The Conduct of Hostilities under the Law of International Armed Conflict, 9.

Cambridge University Press, xx + 275 pp. (2004).

II Monographs Consular Immunity from Judicial Process, with Particular Reference to Israel, 1.

Jerusalem, Institute for Legislative Research and Comparative Law, xiv + 89 pp. (1966).

List of Academic Publications Professor Yoram Dinstein xx The Fundamentals of Law, 2.

Tel Aviv, “University on the Air” Series, 113 pp. (1981) (Hebrew).

Translated into Arabic by the Institute for Israeli Arab Studies (1997).

III Chief Editor Israel Yearbook on Human Rights, 1.

Vols. 1-36 (1971-).

Models of Autonomy, 2.

New Brunswick/London, Transaction Books (1981).

International Law at a Time of Perplexity (Essays in Honour of Shabtai 3.

Rosenne), Dordrecht/Boston/London, Nijhoff (1989).

The Protection of Minorities and Human Rights, 4.

Dordrecht/Boston/London, Nijhoff (1992).

War Crimes in International Law, 5.

The Hague/Boston/London, Nijhoff (1996).

IV Articles and Notes 1. ‘The Responsibility of Foreign Consuls in Israel for Semi-Official Acts’, 21 Hapraklit 317-332 (1965) (Hebrew).

2. ‘Diplomatic Immunity in England and in Israel’, 22 Hapraklit 5-12 (1966) (Hebrew).

3. ‘Consular Immunity and Non-Consular Acts’, 22 Hapraklit 190-197 (1966) (Hebrew).

4. ‘Diplomatic Immunity from Jurisdiction Ratione Materiae’, 15 International and Comparative Law Quarterly 76-89 (1966).

5. ‘Par in Parem Non Habet Imperium’, 1 Israel Law Review 407-420 (1966).

6. ‘Legal Aid to Developing Countries’, 1 Israel Law Review 632-635 (1966).

7. ‘The Hijacking of the El Al Plane: Piracy or Act of State?’, 25 Hapraklit 77-88 (1969) (Hebrew).

8. ‘The Legal Balance of Force and Counter-Force in the Middle East Today’, 13 Hammarskjold Forum 58-61 (1969).

9. ‘The Arab-Israeli Crisis: Legal Issues and Possible Solutions’, 4 International Lawyer 374-378 (1970).

10. ‘The Legal Issues of ‘Para-War’ and Peace in the Middle East’, 44 St. John’s Law Review 466-482 (1970).

Reprinted New York Law Journal, 18 & 19 January 1970;

Also reprinted 2 The Arab-Israeli Conflict 158-174 ( J.N. Moore ed., 1974).

List of Academic Publications Professor Yoram Dinstein xxi 11. ‘International Law: Law or Fantasy?’, 26 Hapraklit 507-519 (1970) (Hebrew).

12. ‘Zion Shall Be Redeemed in International Law’, 27 Hapraklit 5-11, 292-293, 519-522 (1971) (Hebrew).

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