Afterword
By Kenneth Anderson, legal editor, first edition

A Note on the Legal Standards Applied in This Book

International humanitarian law (IHL) must always balance between two poles. On the one hand is the lawyerly desire to be legally precise, to be technically accurate about frequently difficult concepts and distinctions of law. On the other is the desire to codify a law to which ordinary soldiers and their officers will have allegiance because they understand it and its underlying humanitarian rationale.

Equally important is the perception of the general public. In order to bring this topic before the broadest possible audience, the intent behind this book is to combine technical accuracy and readability.

As legal editor, I accept the responsibility for the legal analysis and rules of IHL promulgated in this volume. Individual authors have retained their independent voices as to the facts and phenomena that, frequently, they have witnessed. Independent authorial analysis is more pronounced in the longer country and conflict articles, such as those covering the Arab-Israeli wars, Cambodia, and the Gulf War. The editors have generally let authors develop their own statements of the circumstances, and social and political causes of the conflicts. Still, insofar as is possible, I have sought to draw my best estimation of their legal significance and status under the terms of IHL. In our quest for accuracy and fairness we have had the benefit of unstinting advice from many prominent legal authorities. (See acknowledgements.) In the case of articles written by prominent legal experts in IHL, we have given them latitude to express individual judgements on difficult or unsettled matters, while recognizing that not all issues are settled. However, any errors of legal analysis or judgment are mine alone.

Technical accuracy versus simplification is not the only tension that faces a book such as this. There is always the risk that for the sake of clarity one suggests that there are always determinate rules in IHL that yield plain and unwavering answers to any question of application. IHL, like other bodies of law, contains important matters whose scope and interpretation are susceptible to considerably different readings. In short, what various sources urge as applicable law is not always uniform, and it would in fact be surprising if it were so. Of the differences that can arise, perhaps the most important is between the aspirations of those who would like to see the rules of armed conflict extended in one way or another and the defenders of actual and traditional practices of States and their militaries.

In the past, it would perhaps be fair to say, Western and U.S. journalists tended to accept the characterization of law given by their own militaries, or worse, never questioned the legality of military actions. Today the world is filled with international nongovernmental organizations, legal scholars, and many others seeking to influence international public opinion and happy to offer their views on international law. Often their views are presented (and often accepted) uncritically as objective statements of law without consideration of contrary opinions. This book does not attempt to resolve the issues and debates between those with activist briefs and those closer to the status quo.

Where the law or its interpretation is unsettled or contested, we seek to identify the controversy and not act as though it does not exist.

The status of Additional Protocol I of 1977 requires a special note. Protocol I has been very broadly accepted by States although the United States and other significant military powers, including, for example, Israel and Turkey, have not ratified. It is often relevant to note which countries have taken on actual treaty obligations and which have not. Additionally, ratifying States have also expressed reservations and these, too, define a country's treaty obligations. Some commentators and international activist organizations tend to be impatient with questions of which countries have bound themselves to the terms of Protocol I and which have not. Their view is that a treaty that has achieved such wide acceptance must perforce constitute customary international law, which as Professor Theodor Meron explains in his article on customary law, binds even those States that have not ratified it. Again, the intent of this book is to clarify rather than resolve the issue.

It is important to realize, however, that the United States, a State whose practices matter significantly, has accepted large portions of Protocol I as declaratory of customary international law on some of the critical substantive matters of IHL including, for example, the prohibitions on direct attack against civilians and indiscriminate attack involving civilians.

Another unsettled debate is over the weight to attach to the future of the newly established International Criminal Court (ICC). Although this book indicates how various IHL issues may be affected by the existence of the ICC, by its Statute, adopted in Rome in 1998, and by the international criminal tribunals for the former Yugoslavia and Rwanda, the fact that the United States has chosen to remain outside the ICC cannot be ignored. Whether the United States will eventually join, or whether the world will move toward some two-tier system in which most States at least nominally adhere to an international adjudication system while the world's leading military power and political guarantor of international stability stands apart, is not known at this point. In the last analysis, however, State practices still matter.

The Rome Statute of the ICC is the most important revision of IHL since the Additional Protocols of 1977. IHL is therefore on the cutting edge of movements of profoundly larger import than simply conduct upon the battlefield; those who say that the concept of sovereignty is at issue in the proper role and scope of IHL are wholly correct. This book aims to make accessible to the public, and to the journalists who write about these matters for the public, the body of law that stands at this cutting edge.