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The Military Law and the Law of War Review
PUBLISHED UNDER THE AUSPICES OF THE INTERNATIONAL SOCIETY FOR MILITARY LAW AND THE LAW OF WAR

 
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Review 2017-2018 - Volume 56



Foreword

Welcome to Issue 56-2 of the Military Law and the Law of War Review, the flagship publication of the International Society for Military Law and the Law of War. Throughout the past year, the Review has undergone several important changes. As readers may have noticed, the Review has recently begun to publish accepted articles on its dedicated webpage (http://www.ismllw.org/REVIEW/mllwr.php), albeit in a non-downloadable format. This online open-access publication is intended to further expand the Review’s readership and to ascertain the widest possible dissemination of articles at an early stage.

Aside from the foregoing, the editors are happy to present a rich issue of the Military Law and the Law of War Review with five separate articles on a range of topical issues, relating primarily to international humanitarian law (IHL) and international human rights law.

First, Anna Khalfaoui critically examines the concept of civilian assumption of risk in armed conflict as put forward in the United States Department of Defense’s Law of War Manual. Noting that the concept itself – and the concomitant selective application of the proportionality principle – is not supported in treaty law or in practice, Khalfaoui argues that it must be rejected as being legally flawed and fraught with practical difficulties.

Second, Alonso Gurmendi Dunkelberg from the Universidad del Pacifico (Lima), studies the treatment of international humanitarian law by the Inter-American Court of Human Rights in cases relating to the conduct of States in times of armed conflict. In particular, the author notes a long-standing disconnect between the Inter-American human rights system and IHL. More recently, however, case-law appears to be evolving in a more positive direction, as the Court has found room for co-application of IHL and human rights law.

Anne Lorenzat subsequently turns to the current state of customary international law with regard to the use of chemical weapons in non-international armed conflicts. Having regard to a range of recent incidents involving the confirmed use of chemical weapons, particularly in Syria, the author goes on to scrutinize relevant UN resolutions and multilateral treaty law.

A fourth contribution by Vito Todeschini, Associate Legal Advisor with the International Commission of Jurists, deals with the importance of cooperation in ensuring the effectiveness of investigations into possible human rights violations and war crimes in peace operations. Detecting a normative gap in the existing legal regime, the author concludes with a lege ferenda proposal which would imply that troop-contributing countries are under an obligation to conclude agreements regulating investigative cooperation.

A fifth and final article by Rogier Bartels, legal officer at the International Criminal Court (Chambers) and research fellow at the Netherlands Defence Academy, seeks to clarify the notion of ‘party to the conflict’. While featured in countless provisions of the Geneva Conventions and the Additional Protocols, this notion is however not clearly defined. In particular, having regard among other things to recent Belgian case-law pertaining to armed actors involved in the Syrian conflict, Bartels explores whether, and to what extent, (alleged) terrorist organisations can qualify as such ‘parties’.

We hope you enjoy this issue.