Vol. 11 No. 1 (January 2001) pp. 45-47.

DOCUMENTS ON THE LAWS OF WAR, 3rd revised edition, by Adam Roberts and Richard Guelff (Editors). Oxford, New York: Oxford University Press, 2000. 765pp. Cloth $90.00. ISBN: 0-19-876389-1. Paper $35.00. ISBN: 0-19-876390-5.

Reviewed by Marcus Hanke, Institute for Legal History and Canon Law at the Faculty of Law, Salzburg University, Austria.

Contrary to the traditional dogma of some military theories, which state that law and warfare are a contradiction per se, law as component of warfare is nowadays more important than it has ever been before. Arguments based on the laws of warfare are an important means of policy since foreign governments are judged by their attitude towards the rules of humanitarian law during a conflict. Heads of states are being accused of having ordered breaches of the law of warfare. Finally, the tactics used and the weapons employed (the latter is a hot topic today; one just has to think about the use of ammunition with depleted uranium) during armed conflict are critically analyzed in both the public and the policy and evaluated against the background of international law.

Additionally, the military actions sooner or later become subjects of historical analysis which almost always includes a moral and/or ethical judgement which - to close the circle - might again lead to political consequences. The infamous exhibition about the contribution of the German Wehrmacht to the Holocaust, which was fiercely disputed in German and Austrian policy, is but one example for this.

Therefore, it should be evident that besides the professional needs of lawyers and legal staff the knowledge about humanitarian law is extremely important for both military personnel and the historians or authors who try to answer questions of military effectiveness, political concepts and morality. They all should be equipped with a good collection of the relevant international statutes giving a practical overview of the current status of international humanitarian law as well as offering a readable and concise introduction into the making and the development of humanitarian law. The collection should be a good base for the work of not only to legal advisers and lawyers who are trained using legal terms and concepts but also to authors and scholars working in the historical disciplines as well as to military personnel. In that category one until now was served well with the collection edited by Dietrich Schindler and Jiri Toman (1988). However, with more than 1,000 pages and a rather high price this volume is not very user- friendly, especially for students. The earlier editions of Roberts' and Guelff's Documents on the Laws of War with their 500 pages and competitive price were a nice and compact alternative which one could have ready at hand whenever necessary. With the current third edition at least the argument of size has lost its relevance; 765 pages make this volume heavy and less useable than it was before.

The reason for this massive increase in pages is the inclusion of thirteen new documents in the new edition (six treaties and seven non-treaty documents), while two

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older documents (the 1907 Hague Convention VI on the status of enemy merchant ships at the outbreak of hostilities, and the 1971 Zagreb Resolution of the Institute of International Law on the application of the laws of war to U. N. forces) have been excluded. Other changes include the massive revisions within the editorial texts that were necessary to take into account the diplomatic, legal and military developments since the second edition.

For any users who are not specialists in the field of international law the 46-page introduction is a very, if not the most important part of the book. In a condensed yet understandable chapter the editors explain the history and sources of international law of warfare as well as how it is applied within armed conflicts. The role of humanitarian law in non- international conflicts is also demonstrated. Extremely important in this context is the treatise on the importance of customary international law, but in my opinion the editors should have elaborated this complex topic even more. Especially when looking at warfare before 1945 the legally binding customs of war are of decisive influence even if they have never been codified in a formal treaty. Authors of historical publications often neglect this fact. They tend to take the text of treaties as sole sources for the state of binding international law especially during the two world wars. The editors state, however, that the volume is mainly focused on the law codified in treaties that excludes the delicate matter of describing concrete norms of customary law from the book.

Rarely seen in similar introduction chapters is the discourse on the rationales and criticisms of the laws of warfare (pp. 27-30), again this is particularly enlightening for historians who receive an impression of the possibilities and limits of modern humanitarian law. Additionally the editors list the types of documents included and omitted from the collection as well give reasons why they did (pp. 34-41). That way the user knows what other rules exist in the appropriate field and how to find them.

Naturally the printed documents make out the largest part of the book. A short introduction pointing out the document's history is preceding each text. It would have been very helpful if the editors had added some literary references to each document. This would have made further studies a lot easier, especially since the bibliography at the end of the book mostly quotes works of general character. Some of the prefatory notes are lacking information important for historians; the introduction of the 1923 Hague Rules of Aerial Warfare for example (pp. 139-141) should have pointed out the rules' further influence on the development of customary law until 1939, the note before the 1977 Additional Protocols to the Geneva Conventions (pp. 419-422) fails to mention the important 1956 New Delhi Draft Rules of the ICRC and its impact on the later conventions.

Very useful on the other hand are the dates of adoption and of the entry into force printed in a list following each document, as well - in case the document is an international treaty - a list of all party states with the date of their ratification, succession or accession. This list is invaluable for historians as it enables them to find out if a treaty bound a certain state at a specific date. Finally a complete list of reservations and objections helps to determine whether a rule had been violated or not.

The list of the documents printed is impressive, yet heavily focused on the very

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recent developments in international law. So there are extracts from several international court's statutes and from the international court's opinion on nuclear weapons, a U. N. secretary-general's bulletin, and even a pocket card with some rules of engagement, issued to U. S. troops during operation "Desert Storm" 1991. Especially the latter appears to be a bit incoherent from a historical point of view. While an interesting example for dissemination of international humanitarian law in the U. S. armed forces, it would have been more helpful for any in-depth analysis if similar rules for the other allies' troops were reproduced, too. All in all the documents help to determine the legal status quo in the year 2000 very well and thus satisfies the needs of legal staff and scholars as well as military personnel. But those who want to use the collection as a reference when analysing events happened during conflicts, which took place earlier in the 20th century, are not served well. With the exception of some "evergreens" as for example the 1907 Hague rules of land warfare, hardly any rules existing during World War II are reproduced.

If for example a historian wants to find out whether a certain treatment of prisoners of war during World War II was illegal or not he would need the text of the Geneva convention in its 1929 shape, but not the one which was drafted only after the war. What historians need is a collection of the laws of warfare listing all rules valid within a certain timeframe, so for example the rules in World War I, World War II, Korea, Vietnam, etc.

However, one would not do Robert and Guelff justice when stating the lack of such a collection as a shortcoming of their book. Not in a single sentence they claim that their collection was aimed at historians, neither do the reviews of earlier editions quoted on the volume's back. Since the target group of the book is practitioners and scholars in the field of international law they will be more than happy to get a current and comprehensive collection of sources for their work. It just would have been nice if the authors had had historians in their mind, too, when they selected the documents for their book.

REFERENCE:

Schindler Dietrich and Jiri Toman. 1988. THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS, 3d ed. Dordrecht: Kluwer Academic Publishers


Copyright 2001 by the author, Marcus Hanke.