The European Journal of International Law Vol. 20 no. 1 © EJIL 2009; all rights reserved
The Handbook of International Humanitarian Law (2nd edn)
Dieter Fleck (ed.). The Handbook of International Humanitarian Law (2nd edn). New York City: Oxford University Press, 2008. Pp. 775. $190.00. ISBN 9780199232505.The first English language edition of the Handbook on International Humanitarian Law in 1995 was a big success. Though written as a specific commentary on the Joint Service Regulations governing the German armed forces, as early reviews predicted, it became one of the standard textbooks on international humanitarian law (Rowe, 67 BYbIL (1996) 514; Aldrige, 90 AJIL (1996) 709, at 710). It provided a very detailed, well-researched, scholarly work on an area of law that until recently had not triggered a float of comprehensive law books. With the publication of the ICRC study on customary international law in 2005, the rather fragmented picture of literature changed. This, along with the so-called new types of war, the progressive development of international humanitarian law by international and hybrid criminal law tribunals, and, most importantly, the ever increasing number of conflicts followed by peace-support operations truly led to a ‘humanitarian law boom’ in public international law.
The second edition of Fleck's Handbook had to find its place in this new environment. Consequently, the concept of the book has been largely revised. The present edition is no longer a commentary on a single national military manual, ‘but aims at offering a best practice manual to assist scholars and practitioners worldwide’ (at p. xiv). The group of authors has been ‘internationalized’ and includes more practitioners. Most importantly, the table of contents, in addition to the traditional fields of international humanitarian law treated in the first edition, addresses all questions that have gained particular relevance in recent years: the interaction of international humanitarian law with other fields of law, especially human rights law, the law of non-international armed conflict, the status of civilian contractors, the law of international peace operations, and the role of the Security Council and NGOs in international humanitarian law.
Some newly added parts of the manual are, however, far from reaching the analytical or researched depth of the older parts. These include in particular Greenwood's comments on the relationship between international humanitarian law and international human rights law (paragraphs 254–261). Describing the relationship between international humanitarian law and human rights law as one of mutual complementarity and explaining it in merely two sentences is of help neither to practitioners nor to scholars. To meet the expectations of a handbook for practitioners, an analysis of the cited practice and concrete examples would be desirable for a third edition.
In contrast, Fleck is to be commended for his new Chapter 12 which presents a thorough analysis of the current state of the law applicable to non-international armed conflict, without neglecting the practically essential, but rarely properly addressed, issue of suddenly changing types of conflict or mixed conflicts (paragraph 1201). Fleck avoids the shortcomings of the ICRC study on this matter (‘U.S. Initial Reactions to ICRC Study on Customary International Law’, 3 November 2006, available at www.state.gov/s/l/rls/82630.htm) by finely differentiating the current state of the law and operational or political considerations. Unlike the ICRC study, he identifies only ‘an important trend in the law towards expanding the scope of application of the rules related to the conduct of hostilities originally contained only in the law of international armed conflict’. At the same time, the legal distinction between the legal status of, on the one hand, persons directly participating in armed conflict in favour of one party, that is, combatants and civilians taking part directly in hostilities in international armed conflicts, and, on the other hand, fighters in non-international armed conflict, continues to exist (paragraph 1204). He advocates that, despite the existing differences between the legal regimes applicable in international and non-international armed conflict, armed forces should comply with the rules applicable in international armed conflict, since the assessment of the type of conflict given in a particular situation might cause difficulties and confusion (paragraph 1216).
Like its predecessor, the second edition is structured by key sentences printed in bold type referred to sometimes as ‘key statements’ (at p. xiv) and sometimes as ‘manual text’. Unlike in the ICRC study, the key sentences do not attempt to formulate legal rules. They present a mixture of legal rules, policy considerations, and advice to policymakers (see in particular Klappe's chapter on peace operations at paragraphs 1329, 1330, 1333), and thus go far beyond the intended best practice military manual. Here the reviewer would suggest returning to the former directive style and formulating operable rules for the practical application of humanitarian law. Some key statements seem rather trivial; others not well founded. Thus, paragraph 135 states, without further elaboration: ‘[b]asic rules of international humanitarian law are classic examples for peremptory norms (ius cogens)’. Which these basic rules are remains unclear. Similarly, the statement ‘[h]uman rights obligations ... also have binding effects on non-state actors’ (paragraph 258) does not reflect lex lata and is partially contradicted by the explanatory text, which states that the application of human rights law to non-state actors is problematic and that, even if human rights law may be regarded as applicable in principle, the respective norms may be invoked only against states.
These weaknesses certainly do not question the general value and importance of Fleck's handbook. Its comprehensive presentation of a not easily accessible body of law, its most thoroughly researched and well documented chapters, its clear structure and layout, as well as its easily traceable writing style make it a standard manual on international humanitarian law.
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Individual Contributions |
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 Top Individual Contributions |
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Dieter Fleck, Introduction;
Christopher J. Greenwood, Historical Development and Legal Basis;
Christopher J. Greenwood, Scope of Application of Humanitarian Law;
Knut Ipsen, Combatants and Non-Combatants;
Stefan Oeter, Methods and Means of Combat;
Hans-Peter Gasser, Protection of the Civilian Population;
Jann Kleffner, Protection of the Wounded, Sick and Shipwrecked;
Horst Fischer, Protection of Prisoners of War;
Nilendra Kumar, Religious Personnel;
Roger O’Keefe, Protection of Cultural Property;
Wolff Heintschel von Heinegg, The Law of Armed Conflict at Sea;
Michael Bothe, The Law of Neutrality;
Dieter Fleck, The Law of Non-international Armed Conflicts;
Ben F. Klappe, International Peace Operations;
Rüdiger Wolfrum, Enforcement of International Humanitarian Law
Berlin Court of Appeal
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