International humanitarian law rules solutions to problems arising in warfare and controversies marc
International Humanitarian Law Rules Solutions to Problems Arising in Warfare and Controversies Marco Sassòli
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International Law in Disaster Scenarios: Applicable Rules and Principles Flavia Zorzi Giustiniani
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Published by Edward Elgar Publishing Limited
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Edward Elgar Publishing, Inc.
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Northampton Massachusetts 01060 USA
A catalogue record for this book is available from the British Library
Library of Congress Control Number: 2018967382
This book is available electronically in the Law subject collection
DOI 10.4337/9781786438553
ISBN 978 1 78643 854 6 (cased)
ISBN 978 1 78643 855 3 (eBook)
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EXTENDED CONTENTS
List of abbreviations xix Acknowledgments xxv Reader’s guide xxvii
of instruments xxix 1.
3. A GENERAL OVERVIEW OF IHL BASED UPON ITS MAJOR DELIMITATIONS 3.01
3.1 IHL APPLIES ONLY TO ARMED CONFLICTS 3.02
3.2 THE THRESHOLD OF APPLICATION IN IACS VERSUS NIACS 3.04
3.3 THE INDEPENDENCE OF IHL FROM JUS AD BELLUM 3.10
3.4 THE FUNDAMENTAL DIFFERENCE BETWEEN CIVILIANS AND COMBATANTS AND THE RESULTING IHL PROTECTION REGIMES 3.14
3.4.1 The starting point: the difference between civilians and combatants in IACs 3.14
3.4.2 The legal regime protecting civilians and fighters in NIACs 3.19
3.4.3 Factors limiting the relevance of the principle of distinction between combatants and civilians 3.23
3.5 THE DISTINCTION BE TWEEN THE PROTECTION OF PERSONS IN THE POWER OF A PARTY AND THE PROTECTION OF PERSONS DURING THE CONDUCT OF HOSTILITIES 3.28
3.5.1 The protection of persons who are in the power of a party 3.34
3.5.2 The rules on the conduct of hostilities 3.37
TREATIES
4.1.1 The Hague Conventions of 1907
4.1.2 The Geneva Conventions of 1949
4.1.3 The Additional Protocols
4.1.4 Weapons treaties
4.1.5 Treaties protecting cultural heritage
4.1.6 ICL treaties
4.1.7 Special agreements between belligerents
4.1.8 IHL treaties under the law of treaties
4.1.9 The future of IHL treaty law
4.2 C USTOMARY LAW
4.2.1 The revival of customary IHL 4.34
4.2.2 Difficulties to determine customary IHL rules 4.35
4.2.3 Practice to be considered 4.36
5.2.3
c.
e.
a.
5.2.5
c.
5.2.6
5.3.1
5.3.2
5.3.4
5.3.5
5.3.6
5.3.7
6. SCOPE OF APPLICATION:
6.2
7.5.4
a. Analogy in international legal reasoning and for IHL in particular
b. Reasons for analogies and examples
8. THE PROTECTIVE REGIMES
8.1 WOUNDED, SICK AND SHIPWRECKED
8.1.1 Obligations towards the wounded, sick and shipwrecked
8.1.4 Possibility to create
8.1.5 The distinctive emblems
a. The three emblems and technical means of identification
d. The need for national legislation and the repression of misuses
8.2 COMBATANTS AND POWS
8.2.1 Importance and implications of the regime
8.2.2
8.2.3
c. Combatants who lose POW status
d. Persons benefiting from POW treatment without POW status 8.81
8.2.5 Procedures to determine combatant and POW status 8.86
8.2.6 Protection of POWs
a. Protection from the moment of falling into the power of the enemy 8.89
b. Internment
c. Treatment during internment
e. Transfers 8.98 f. Transmission of information 8.100 g. ICRC visits 8.101
8.2.7 Release, repatriation and accommodation in neutral countries 8.102 a. During hostilities 8.103 i. Direct repatriation 8.103
8.2.8
8.2.9
a. Private property
b.
c. The delimitation between private and public property
d. The definition of property
e. The destruction of property
8.4.7 The administration of the territory
8.4.8 Prohibitions of transfers
8.4.9 A right to leave occupied territory?
8.4.10 Protection of social, economic and cultural rights
8.5 THE MISSING AND THE DEAD
8.5.1 The relationship between the missing and the dead
8.5.2 The obligation to search for the missing
8.5.4 Re establishing family links between persons who are alive
8.5.5 Identification of the dead and information to their family
8.5.6 Handling of human remains
8.5.7 Clarification of the fate of persons who remain missing at the end of the conflict
8.5.8 The need for domestic legislation
8.6 THE PROTECTION OF THE CIVILIAN POPULATION AGAINST THE EFFECTS OF HOSTILITIES
8.6.1 Prohibitions or rules on targeting?
8.6.2
8.6.3
8.7
8.6.5
8.7.1
c.
8.7.2
8.7.3
c. Geographical scope of application
d. Addressees
9.1.3 How to deal with the divergences between both branches?
a. The lex specialis principle
b. Alternatives to the lex specialis principle 9.34
c. Factors blurring the debate 9.39
d. A suggested nuanced and case by case determination of the applicable law 9.43
9.1.4 Implementation of one branch by the mechanisms of the other branch
9.2 IHL AND ICL
9.2.1 Definition and differentiation
9.2.2 IHL as a set of substantive prohibitions criminalized by ICL provisions on war crimes 9.59
9.2.3 ICL as an implementation mechanism for IHL 9.63
a. Advantages of enforcing IHL through ICL 9.63
b. Risks of seeing IHL through the ICL lens 9.65
9.2.4 The role of ICL in clarifying IHL 9.69
9.3 IHL AND INTERNATIONAL MIGRATION LAW
9.3.1 The protection of persons fleeing an armed conflict
a. Across a border
b. Within their country
9.3.2 IHL protection of refugees 9.82
9.3.3 The principle of non-refoulement in IHL
9.3.4 The return of refugees and displaced persons
9.4 IHL AND THE LAW ON MAINTAINING OR RE ESTABLISHING INTERNATIONAL PEACE AND SECURITY ( JUS AD BELLUM ) 9.88
9.4.1 IHL violations as a threat to international peace and security 9.88
9.4.2 The separation between jus ad bellum and jus in bello 9.89
a. Reasons for the separation 9.90
b. Consequences of the separation 9.97
i. The equality of belligerents before IHL 9.97
ii. IHL applies independently of the qualification of the conflict under jus ad bellum 9.99
iii. Arguments under jus ad bellum may not be used to interpret IHL 9.103
iv. IHL may not render the exercise of jus ad bellum impossible 9.106
c. Do the UN Charter and UN Security Council resolutions prevail over IHL? 9.107
d. New threats to the separation 9.110
i. New concepts of ‘just’ (or even ‘humanitarian’) war 9.110 ii. IACs are perceived as law enforcement actions the international community directs at ‘outlaw States’ 9.112
9.4.3 Peace forces and IHL 9.116
a. Does IHL bind peace forces? 9.120
b. Are peace forces a party to an armed conflict and, if so, does IHL of IACs or IHL of NIACs apply? 9.124
c. Are members of peace forces combatants? 9.125
d. The meaning and impact of the UN Safety Convention 9.126
e. Applicability of IHL of belligerent occupation to a territory administered by peace forces? 9.128
9.5 THE LAW OF NEUTRALITY AND IHL 9.130
9.5.1 The concept of neutrality in the law of neutrality and in IHL 9.131
9.5.2 The difficulty of separating jus ad bellum and IHL in the law of neutrality 9.137
9.5.3 Specific IHL rules applicable to neutral States 9.140
a. Internment of combatants by neutral States 9.141
b. Collection and care of the wounded, sick, shipwrecked and dead and the transmission of information on the missing by neutral States 9.145
c. Treatment of neutral nationals by parties to an IAC 9.147 Marco Sassòli - 9781786438553
10. SELECTED CROSS CUTTING ISSUES
10.1 DOES IHL AUTHORIZE CONDUCT OR ONLY PROHIBIT AND PRESCRIBE IT?
10.1.1 Possible reasons why belligerents need an authorization
The different meanings of the term ‘authorization’
Implications of IHL authorizations for IHRL
To what extent does IHL contain strong permissions?
TERRORISM
10.2.1 When does terrorism constitute an armed conflict to which IHL applies?
a. Terrorism as an IAC?
b. Terrorism as a NIAC?
10.2.2 How does IHL deal with terrorism?
The protection of ‘terrorists’ by IHL
c.
d.
b.
c.
d.
e.
f.
g.
LIST OF ABBREVIATIONS
Academy Commentary
Academy Handbook
Andrew Clapham et al. (eds), The 1949 Geneva Conventions: A Commentary (OUP 2015)
Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (OUP 2014)
ACHR American Convention on Human Rights (22 November 1969) 1144 UNTS 123
ACHPR
African Charter on Human and Peoples’ Rights (27 June 1981) (1982) 21 ILM 58
Additional Protocols Protocol I and Protocol II to the 1949 Geneva Conventions
AJIL
American Journal of International Law
Art Article
ATT
Arms Trade Treaty (2 April 2013) (2013) 52 ILM 988
AU African Union
Bothe/Partsch/Solf Commentary
BYBIL
Michael Bothe et al., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (2nd edn, reprint revised by Michael Bothe, Martinus Nijhoff 2013)
British Yearbook of International Law
CCW Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (10 October 1980) 1342 UNTS 137 as amended by Amendment 1 of the CCW (21 December 2001) 2260 UNTS 82
CCW Protocol I on Non-Detectable Fragments
CCW Protocol II on the Use of Mines, BoobyTraps and Other Devices
Protocol on Non-Detectable Fragments (Protocol I) (10 October 1980) 1342 UNTS 168
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II) (3 May 1996) 2048 UNTS 93
Marco Sassòli - 9781786438553
CCW Protocol III on Incendiary Weapons
CCW Protocol IV on Blinding Laser Weapons
CCW Protocol V on Explosive Remnants of War
CoE
Convention I
Convention II
Convention III
Convention IV
CUP
Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) (10 October 1980) 1342 UNTS 171
Protocol on Blinding Laser Weapons (Protocol IV) (13 October 1995) 1380 UNTS 370
Protocol on Explosive Remnants of War (Protocol V) (28 November 2003) 2399 UNTS 100
Council of Europe
Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949) 75 UNTS 31
Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (12 August 1949) 75 UNTS 85
Geneva Convention (III) Relative to the Treatment of Prisoners of War (12 August 1949) 75 UNTS 135
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War 1949 (12 August 1949) 75 UNTS 287
Cambridge University Press
Doc Document
ECHR
ECtHR
EHRR
EJIL
European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) 213 UNTS 221
European Court of Human Rights
European Human Rights Reports
European Journal of International Law
EU European Union
fn footnote
GC I
See Convention I
GC II See Convention II
GC III See Convention III
GC IV
GCs
See Convention IV
Geneva Conventions I to IV of 12 August 1949
Geneva Conventions See GCs
HC
Hague Convention
HC IV
Hague Convention (IV) Respecting the Laws and Customs of War on Land and its annex: Regulations Concerning the Laws and Customs of War on Land (18 October 1907)
Hague Convention IV See HC IV
Hague Convention on Cultural Property
Hague Regulations
Henckaerts and Doswald-Beck
HPCR Manual
Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (14 May 1954) 249 UNTS 240
Hague Regulations Concerning the Laws and Customs of War on Land, annexed to Hague Convention IV (18 October 1907)
Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law – Volume 1: Rules (CUP 2005). Text also available in ICRC CIHL Database listed below.
The Harvard Program on Humanitarian Policy and Conflict Research, Manual on International Law Applicable to Air and Missile Warfare (CUP 2013)
HR See Hague Regulations
HRC UN Human Rights Council
HRCtee UN Human Rights Committee
IAC International armed conflict
IACommHR
IACtHR
Inter-American Commission on Human Rights
Inter-American Court of Human Rights
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights (16 December 1996) 999 UNTS 171
ICC Statute
Rome Statute of the International Criminal Court (17 July 1998) 2187 UNTS 3
ICJ International Court of Justice
ICJ Statute Statute of the International Court of Justice (24 October 1945), annexed to the UN Charter
ICRC Commentary APs Yves Sandoz et al. (eds), Commentary on the Additional Protocols of 8 June 1997 to the Geneva Conventions of 12 August 1949 (ICRC and Martinus Nijhoff 1987)
Marco Sassòli - 9781786438553
ICRC DPH Guidance Nils Melzer, ‘Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’ (ICRC 2009)
ICTR
ICTY
IHFFC
International Criminal Tribunal for Rwanda
International Criminal Tribunal for the former Yugoslavia
International Humanitarian Fact-Finding Commission
IHL international humanitarian law
IHRL international human rights law
ILC Articles on State Responsibility ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ in ILC, ‘Report of the International Law Commission on the Work of its 53rd Session (23 April – 1 June and 2 July – 10 August 2001) UN Doc A/56/10, 26-143
ILM International Legal Materials
ILS International Law Studies
IMT International Military Tribunal
Intl International
IRRC
IYBHR
International Review of the Red Cross
Israel Yearbook on Human Rights
J Journal
JICJ
Journal of International Criminal Justice
L Law
MN
MONUSCO
MPEPIL
National Societies
NATO
NGO
NIAC
Margin Number
UN Organization Stabilisation Mission in the Democratic Republic of the Congo
Max Planck Encyclopedia of Public International Law
National Red Cross and Red Crescent Societies
North Atlantic Treaty Organization
Non-governmental organization
Non-international armed conflict
No Number
OAS
Online Casebook
Organization of American States
Marco Sassòli, Antoine Bouvier and Anne Quintin, How Does Law Protect in War? (ICRC), regularly updated at <https://casebook. icrc.org>
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Oslo Convention on Cluster Munitions
Convention on Cluster Munitions (30 May 2008) 2688 UNTS 39
OSCE Organization for Security and Co-operation in Europe
Ottawa Convention on Landmines
OUP
P I
P II
P III
para
Pictet Commentary GC I
Pictet Commentary GC II
Pictet Commentary GC III
Pictet Commentary GC IV
PMSC
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (18 September 1997) 2056 UNTS 211
Oxford University Press
See Protocol I
See Protocol II
See Protocol III
Paragraph
Jean S. Pictet (ed), Commentary on the Geneva Conventions of 12 August 1949 (ICRC 1952) vol I
Jean S. Pictet (ed), Commentary on the Geneva Conventions of 12 August 1949 (ICRC 1960) vol II
Jean S. Pictet (ed), Commentary on the Geneva Conventions of 12 August 1949 (ICRC 1960) vol III
Jean S. Pictet (ed), Commentary on the Geneva Conventions of 12 August 1949 (ICRC 1952) vol IV
Private military and security company
POW Prisoner of war
Protocol I
Protocol II
Protocol III
Protocol I to the Hague Convention on Cultural Property
Protocol II to the Hague Convention on Cultural Property
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (8 June 1977) 1125 UNTS 3
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (8 June 1977) 1125 UNTS 609
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem (8 December 2005) 2404 UNTS 261
Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (Protocol I) (14 May 1954) 249 UNTS 358
Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (26 March 1999) 2253 UNTS 172
PUF Presses universitaires de France
Recueil des Cours
Rep(s)
Recueil des Cours de l’Académie de droit international de la Haye; Collected Courses of the Hague Academy of International Law
Report(s)
Res Resolution
Rev Review
San Remo Manual
SCSL
Louise Doswald-Beck (ed), San Remo Manual on International Law Applicable to Armed Conflicts at Sea (CUP 1995)
The Special Court for Sierra Leone
The Conventions See GCs
UK
UK Military Manual
UN
UN Charter
UNESCO
UNGA
UNSC
Updated ICRC Commentary GC I
Updated ICRC Commentary GC II
Updated ICRC Commentary GC III
United Kingdom
UK Ministry of Defence, The Manual of the Law of Armed Conflict (OUP 2004)
United Nations
Charter of the United Nations (26 June 1945) 1 UNTS XVI
UN Educational, Scientific and Cultural Organization
UN General Assembly
UN Security Council
ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (CUP 2016)
ICRC, Commentary on the First Geneva Convention: Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (CUP 2017)
ICRC, Commentary on the First Geneva Convention: Convention (III) Relative to the Treatment of Prisoners of War (forthcoming, CUP)
US United States of America
US Law of War Manual
VCLT
YIHL
YIIHL
US Office of the General Counsel, Department of Defense, ‘Department of Defense Law of War Manual’ (2015, updated December 2016)
Vienna Convention on the Law of Treaties (23 May 1969) 1115
UNTS 331
Yearbook of International Humanitarian Law
Yearbook of the International Institute of Humanitarian Law
Marco Sassòli - 9781786438553
ACKNOWLEDGMENTS
The ideas, opinions, understanding of IHL and mistakes contained in this book are exclusively mine (except where a footnote indicates another source). Nevertheless, this book could not have been written without the assistance, contribution and influence of many others, all of whom I would like to thank wholeheartedly.
First and foremost, my research assistant (and doctoral candidate) at the University of Geneva, Patrick S. Nagler, LLM, provided invaluable help by revising my English as well as the references, conducting some research and making countless remarks and suggestions on how the text could be made more easily understandable for the reader and more legally accurate. I did not take all of them into account and therefore any errors or ambiguities are attributable to me. We often intensely debated every single sentence in our common aspiration to make sure that readers understand and do not misinterpret what I wanted to explain. Mr. Nagler’s sense of precision, desire for total accuracy and absolute mastery of IHL impressed me every single day while I was writing this book, and I appreciated his constant good humour, flexibility and complete commitment to the project. Interacting with him has been a privilege, and I learned something for life thanks to him beyond just English grammar and style.
The research for a few parts of this book and drafts for a few sub-sections have also been made quietly but highly efficiently by Alessandra Spadaro, who is a doctoral candidate at the Graduate Institute of International and Development Studies. Some of the secretarial work was made patiently, rapidly and always with a smile by my secretary at the University of Geneva, Edith Muerrlé.
In the conception of this book and in its production, I also had the privilege of being encouraged and unfailingly supported by the pragmatic and flexible yet principled team of Edward Elgar Publishers, in particular Laura Mann, Stephanie Tytherleigh and Luke Adams. I also thank Tom Fryer and Richard Walshe from Sparks Publishing Services Ltd for having ensured rapid, consistent and non-invasive copy editing.
Marco Sassòli - 9781786438553
As often mentioned in this book’s footnotes, my thinking on several issues has been profoundly influenced, and sometimes even completely modified, by the results of the research made by my former and current doctoral students in view of their PhD theses, many of whom have also been or still are my teaching assistants at the University of Geneva: Lindsey Cameron, PhD; Djemila Carron, PhD; Julia Grignon, PhD; Christiane Johannot-Gradis, PhD; Zakaria Daboné, PhD; Sharon Weill, PhD; Anne Quintin, LLM; Elvina Pothelet, LLM; Yvette Issar, LLM; Sophie Rondeau, LLM; Anaïs Maroonian, Master in Law; Carlos Sibille Rivera, LLM; and Eugénie Duss, Master in Law. My thanks go also to Théo Boutruche, PhD, Professor Andreas Ziegler and Ms Nele Achten who have graciously reviewed certain sections.
Questions, which were sometimes critical but more often simply expressed the desire to understand, asked by my LLM students at the Geneva Academy of International Humanitarian Law and Human Rights as well as by my Master and Bachelor students at the University of Geneva and the Université du Québec à Montréal were also invaluable. In particular, their questions helped me understand the issues of IHL that learners do not comprehend, what must be explained and the concepts that are especially confusing as well as issues that I myself do not really understand because I am unable to explain them in an intelligible way.
Before joining academia, I was first exposed to IHL through my work with the International Committee of the Red Cross (ICRC), where I had the privilege to serve for 13 years at both its headquarters and in conflict areas. My supervisors, colleagues and subordinates in the ICRC, my interlocutors from States (in particular their militaries), armed non-State actors and, above all, those who were hopefully the beneficiaries of my work made indelible marks on the mixture between pragmatism and a principled approach that transpires everywhere in this book. It is only with hesitation, a feeling of humility and gratitude that I emancipate myself from what is now the ICRC opinion on certain IHL issues.
Finally, I want to thank the University of Geneva for allowing me to accumulate through my teaching and research the knowledge I try to transmit in this book, granting me a sabbatical that allowed me to write this book and paying Patrick Nagler, without whom, once again, this book would never have been published.
Marco Sassòli Geneva, 31 August 2018
Marco Sassòli - 9781786438553
READER’S GUIDE
This book has been primarily written for law students willing to familiarize themselves with IHL. However, it may also be used for the same purpose by military, civilian and humanitarian practitioners. It also allows those who already master IHL to obtain a summary of the debates surrounding certain issues through its detailed table of contents, index and numerous cross-references.
For learning purposes, most chapters, sub-chapters and sub-sections are preceded by a bolded overview of key concepts. Each chapter as well as the subchapters of Chapters 8 to 10 are meant to be self-contained, that is, they may be understood without studying the other chapters. Teachers may therefore assign only certain chapters for their students to study, preferably combined with the bold introductions of the other chapters.
This book is meant to be used in conjunction with the ICRC’s Online Casebook entitled How Does Law Protect in War? (Online Casebook), which is accessible for free at the ICRC’s website (https://casebook.icrc.org), that I coauthored. Therefore:
1. This book does not contain bibliographies on every subject dealt with. Such bibliographical references can be found in the Online Casebook in a systematic way under ‘The Law’ and in the index ‘A-Z’. A general bibliography on IHL may also be found there (https://casebook.icrc.org/glossary/general-sources-ihl). The bibliographical references of the Online Casebook are currently in the process of being updated. This book provides references to scholarly works and articles only where this is either necessary to avoid plagiarism or, in cases of controversies, to provide references to those who adopt and explain different positions.
2. As for the practice of States, courts, armed groups and NGOs, this book most often refers to the more than 500 cases contained in the Online Casebook, all of which have been carefully edited and may be discussed through the relevant questions that appear at the end of each case. References to such cases are provided with the title under which they can easily be found
in the Online Casebook (for instance, ‘Online Casebook, ICJ, Nuclear Weapons Advisory Opinion’) instead of the primary source citation (in this example, ‘ICJ, Legality of the Threat of Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 66’).
It is my hope that the user will not only enjoy reading this book, but, most importantly, that they understand that IHL provides realistic solutions to humanitarian problems arising in armed conflicts. Although armed conflicts are inherently inhumane, the fate of most of those affected by current armed conflicts would be incomparably better if those rules were systematically respected in good faith. I sincerely wish that this book contributes to improving the respect of IHL through enhancing the understanding of IHL by those who apply it as well as by the public at large. To that end, this book equally seeks to explain the values underlying IHL, its inherent limitations, other limitations that are dictated by the current state of the international community and its many complexities.
Marco Sassòli - 9781786438553
TABLE OF INSTRUMENTS
1907 Hague Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons ...................................................................................................................... 8.446
1907 Hague Regulations Concerning the Laws and Customs of War on Land as annexed to Hague Convention IV 2.09–2.10, 2.14, 2.16, 3.29, 4.08–4.10, 4.19, 5.224, 6.22, 8.57, 8.215–8.216, 8.237, 8.252, 8.368, 10.172
1929 Geneva Convention Relative to the Treatment of Prisoners of War 2.08, 2.10–2.11, 5.39
1935 Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments 4.19, 10.174 1936 London Submarine Protocol............................................................................ 8.420, 8.429
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention I) ............... 2.16, 3.16, 3.29, 3.31, 3.34, 4.12, 5.77, 7.59, 8.05, 8.32–8.33, 8.37, 8.115, 8.152
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And driven the keenest storms of fate to bear Ah! but forgive me, pitied let me part, Your frowns, too sure, wou’d break my sinking heart.
II.
Where e’er I go, what e’er my lowly state, Yet grateful mem’ry still shall linger here, And perhaps when musing o’er my cruel fate, You still may greet me with a tender tear. Ah! then forgive me, pitied let me part, Your frowns too sure would break my sinking heart.
END OF THE FIRST ACT.
ACT II.
SCENE—
A Parlour.
Enter Miss P and M .
Mar. And so I was telling your ladyship, poor little master does so take it to heart, and so weep and wail, it almost makes me cry to hear him.
Miss P. Well, well, since he begins already to repent, his punishment shall be but short; have you brought your boy with you?
Mar. Aye, have I—poor Tommy, he came from a-board a ship but now, and is so grown, and altered—sure enough he believes every word I have told him, as your honour ordered me, and I warrant, is so sheepish and shamefaced—but here comes my master—he has heard it all already.
Enter P .
But, my lady—shall I fetch my poor Tommy to you, he’s waiting without.
Pick. What, that ill-looking young rascal in the hall?—he with the jacket and trowsers.
Mar. Ay, your honour!—what, then, you have seen him.
Pick. Seen him!—ay, and felt him too.—The booby met me bolt at the corner, run his cursed carotty poll full in my face, and has loosened half the teeth in my head, I believe.
Mar. Poor lad! he’s a sailor, and but aukward as yet, and so shy I warrant—but will your honour be kind to him.
Pick. Kind to him? Why, I am to pass for his father—am not I?
Mar. Aye, I wish your honour had been poor Tommy’s father—but no such luck for me, as I say to my husband.
Pick. Indeed!—Your husband must be very much obliged to you, and so am I.
Mar But do your honour see my poor Tommy, once dressed in his fine smart clothes——
Pick. Damme! I don’t half like that Tommy.
Miss P. Yes, yes, you shall—but now go and fetch him here to us; I should like much to see him.
Mar. (going) Do you now, madam, speak kindly to him—for poor boy, he’s quite dash’d.
Pick. Yes, and he has dash’d some of my teeth out—plague on him.
Miss P. Now, Mr. Pickle, I insist upon your observing a proper decorum and behaviour towards this poor lad; observe the condescension of my deportment—methinks I feel a strange inclination already in his favour, perhaps I may advance him bye and bye, to be my page—shall I brother?—Oh, here he comes—and I declare, as prepossessing a countenance as ever I beheld.
Enter M and L P as a sailor boy. Come hither child, was ever there such an engaging air?
Mar. Go Tommy, do as you are bid, there’s a good boy—thank his honour for his goodness to you.
Little P. Be you the old fellow that’s just come to be my father?
Pick. (aside) Old fellow! he’s devilish dashed to be sure—yes, I am the old fellow, as you call it—will you be a good boy?
Little P. Ay, but what will you gi’ me?—must I be good for nothing?
Pick. (mimicking) Good for nothing! nay, that I’ll swear you are already. Well, and how long have you been come from sea? eh, how do you like a sailor’s life?
L P , Sings.
(NO SYMPHONY.)—T , Malton Oysters
I am a brisk and sprightly lad, But just come home from sea, Sir! Of all the lives I ever led, A sailor’s life for me, Sir.
Yeo, yeo, yeo—Yeo, yeo, yeo. Whilst the boatswain pipes all hands. With a yeo, yeo, yeo, Sir.
II.
What girl but loves the merry tar? We o’er the ocean roam, Sir, In every clime we find a port, In every port a home, Sir.
Yeo, yeo, yeo—&c. &c.
III.
But, when our Country’s foes are nigh, Each hastens to his gun, Sir, We make the boasting Frenchmen fly, And bang the haughty Don, Sir.
Yeo, yeo, yeo—&c. &c.
IV.
Our foes subdued, once more on shore, We spend our cash with glee, Sir, And when all’s gone, we drown our care, And out again to sea, Sir.
Yeo, yeo, yeo—Yeo, yeo, yeo. And when all’s gone, again to sea, With a yeo, yeo, yeo, Sir.
Pick. So this is the way I am to be entertained in future, with forecastle jokes, and tarpauling songs.
Miss P Brother, do not speak so harshly to the poor lad, he’s among strangers, and wants encouragement—come to me, my pretty boy, I’ll be your friend——
Little P. Friend! oh, what, you’re my grandmother—father, must not I call her granne?
Pick. What, he wants encouragement, sister—yes, poor soul, he’s among strangers—he’s found out one relation, however, sister—this boy’s assurance diverts me—I like him (aside.)
Little P. Granne’s mortish cross and frumpish—la father, what makes your mother, there, look so plaguy foul-weather’d.
Miss P. Mother, indeed.
Pick. Oh, nothing at all, my dear, she’s the best humoured person in the world—go throw yourself at her feet, and ask her for her blessing—perhaps she may gi’ you something.
Little P. A blessing! I sha’n’t be much richer for that neither— perhaps she may give me half a crown; I’ll throw myself at her feet, and ask her for a guinea—(kneels)—Dear granne, give me your picture (catches hold of it.)
Miss P. Stand off, wretch, am I to be robbed, as well as insulted?
Mar. Fie, child, learn to behave yourself better.
Little P. Behave myself—learn you to behave yourself, I should not have thought of you indeed—get you gone—what do you here? (beats her out.) [and Exit.
Pick. Well, sister, this plan of yours succeeds I hope to your satisfaction—he’ll make a mighty pretty page, sister—what an engaging air, he has sister; this is some revenge for her treatment of my poor boy (aside).
Miss P. I perceive this to be all a contrivance, and the boy is taught to insult me thus—you may repent of this unparalleled treatment of unprotected innocence.
[Exit.
Pick. What, she means her lover, the player-man, I suppose, but I’ll watch her, and her consols too; and if I catch him again in my house, it shall be his last appearance this season; I can tell him that, and the next part he plays, shall be Captain Macheath in the prison scene, egad. [Exit.
Enter L P , alone.
Little P. There they go, ha! ha! ha! my scheme has gone on rarely, rather better than theirs, I think.—Blessing on the old nurse for consenting to it—I’ll teach ’em to turn people out of doors—let me see, what trick shall I play ’em now—suppose I set the house on fire —no—no—’tis too soon for that as yet—that will do very well bye and bye—let me consider—I wish I could see my sister, I’ll discover myself to her, and then we might contrive something together nicely —that staircase leads to her room, I’ll try and call her (goes to the door and listens) there’s nobody in the way!—Hist! hist!—Maria— Maria—she hears me, she’s coming this way—(runs and hides himself.)
Enter M .
Maria. Sure somebody called me (looks around). No, there’s nobody here—heigho—I’ve almost cryed myself blind about my poor brother, for so I shall always call him, ay, and love him too—(going).
Little P. (running forward) Maria!—sister!—stop an instant.
Maria. My brother!—Charles—impossible.
Little P. ’Tis e’en so, and faith ’twas all a trick about the nurse and child; I coax’d the old woman to confess the whole to me—you can’t contrive to kill yourself for the loss of me, can you?—that would have a fine effect—is there nothing I can think of?—Suppose you pretend to fall in love with me, and we run away together.—
Maria. That will do admirably—depend upon my playing my part with a good will, for I owe some revenge for their treatment of you, besides, you know I can refuse you nothing.
Enter O P , behind.
Little P. Thank you a thousand times, my dearest Maria, thus then we’ll contrive it. (seeing Pickle coming behind, they pretend to whisper.)
Old P. What! how’s this!—“Dear Maria, and I’ll refuse you nothing.”—Death and the devil, my daughter has fallen in love with that young scoundrel and his yeo, yeo, yeo—she too, she embraces him—(comes forward)—mighty well, young madam—’tis mighty well, but come, you shall be locked up immediately, and you, you young rascal, be whipt out of the house.
Little P. You will not be so hard hearted, sure—we will not part— here is my anchor fixed—here am I moor’d for ever.—(Old Pickle takes hold of her, and endeavours to take her away, she resists, and Little Pickle detains her by the hand.)
Maria. (romantically) No—we’ll never part—Oh, cruel, cruel fate.
Old P. He’s infected her with his assurance already.—What, you young minx, do you own you love him?
Maria. Love him! Sir, I adore him, and in spite of your utmost opposition, ever, ever shall.
Old P. Oh, ruined! undone—what a wretched old man I am—but, Maria, child—
Maria. Think not to dissuade me, sir—vain attempt—no, sir, my affections are fixed never to be recalled.
Old P. Oh dear, what shall I do? what will become of me? Oh, a plague on my plots—I’ve lost my daughter, and for ought I know, my son too—why child, he’s a poor beggar, he’s not worth a sixpence.
Maria. My soul abhors so low a thought—I despise wealth—know, sir, I cherish nobler sentiments.
The generous youth shall own, I love him for himself alone.
Old P What, poetry too—nay then, it is time to prevent further mischief—go to your room—a good key shall assure your safety, and this young rascal shall go back to sea, and his yeo, yeo, yeo, if he will.
Maria. (going) I obey your harsh commands, sir, and am gone— but, alas! I leave my heart behind. [Exit Maria.
Old P. Now, sir, for you—don’t look so audacious, sirrah—don’t fancy you belong to me—I utterly disclaim you——
Little P. (laughing) But that is too late now, old gentleman, you have publickly said I was your son, and d——n me, I’ll make you stand to it, sir, (threatning.)
Old P. The devil—here is an affair!—John, Thomas, William; Enter Servants.
Take that fellow, and turn him out of doors immediately—take him, I say—
Servants. Fellow! who, sir?
Old P. Who! why zounds, him there; don’t you see him?
John. What, my new young master—No, sir, I’ve turned out one already, I’ll turn out no more.
Old P. He’s not your young master—he’s no son of mine—away with him, I say.
Sus. No, sir, we know our young master too well for all that; why he’s as like your honour as one pea is like another.
John. Ay, heaven bless him, and may he shortly succeed your honour in your estate and fortune.
Old P. (in a passion, walking up and down) Rogues! villains! I am abused, robbed—(turns them out) there’s a conspiracy against me, and this little pirate is at the head of the gang.
Enter Servant, with a Letter.
Odso, but here’s a letter from my poor boy, I see—this is a comfort, indeed. Well, I’ll send for him home now without delay. (reads) “Honoured sir, I heartily repent of having so far abused your goodness, whilst I was blest with your protection, but as I fear no penitence will ever restore me to your favour, I have resolved to put it out of my power again to offend you, by instantly bidding adieu to my country for ever.” Here, John, run, go directly to Margery’s and fetch home my son, and——
Little P. (interrupting him) You may save yourself the trouble, ’tis too late, you’ll never bring him too now, make as many signals, or fire as many guns as you please.
Old P. What do you mean?
Little P. Mean, why he and I have changed births you know.
Old P Changed births!
Little P. Ay, I’m got into his hammock, and he’s got into mine, that’s all; he’s some leagues off at sea, by this time, for the tide serves, and the wind is fair; Botany Bay’s the word, my boys.
Old P. Botany Bay! well, I’ll instantly see if ’tis true, why, I’ll come back, just to blow your brains out, and lo be either hang’d or sent to Botany Bay after him.
[Exeunt, different ways
SCENE—A Garden——A Seat in a Bower, much shaded with Trees.
Enter M P .
This is the hour of my appointment with Mr. Tagg, and my brother’s absence is favourable indeed—well, after such treatment, can he be surprised if I throw myself into the arms of so passionate an admirer; my fluttering heart tells me this is an important crisis in my happiness —how much these vile men have to answer for in thus bewitching us silly girls.
T repeats behind the Scenes.
The heavy hours are almost past That part my love and me,
Enters,
My longing eyes may hope at last, Their only joy to see.
Thus most charming of her sex, do I prostrate myself before the shrine of your beauty. (kneels)
Miss P. Mr. Tagg, I fear I never can be yours.
Tagg. Adorable, lovely, the most beautified Ophelia.
Miss P Indeed Mr Tagg, you make me blush with your compliments.
Tagg. Compliments! oh! call not by that hacknied term the voice of truth—lovely nymph, ah! deign to hear me, I’ll teach you what it is to love.
Miss P. Love—dear Mr. Tagg.—oh! moderate your transports—be advised, think no more of this fatal passion.
Tagg. Think no more of it.
Can love be controll’d by advice, Will Cupid our mother’s obey.
Oh then consent my angel to join our hearts in one, or give me my death in a bumper.
Miss P. (aside) Can I refuse any thing to such a lover?—but were I, my dear friend to consent to our tender union, how could we contrive to escape, my brother’s vigilance would overtake us and you might have reason to repent of his anger.
Tagg. Oh, he’s a Goth, a mere Vandyke, my love.
But fear makes the danger seem double,
Say Hymen what mischiefs can trouble.
I have contrived the plot and every scene of the elopement, but in this shady blest retreat will I unfold it all—lets sit down like Jessica and the fair Lorenzo here.
Would you taste the noon tide air, To yon fragrant bower repair.
[They sit in the bower. Since musick is the food of love, we’ll to the Nightingale’s complaining notes, tune our distresses and accord our woes.
While T is singing in Burlesque, L P steals round the Stage and gets behind the Bower, and sews their cloaths together, and then goes out behind unperceived by them.
Miss P. Oh! I could listen thus for ever to the united charms of love and harmony—but how are we to plan our escape.
Tagg. In a mean and low attire, muffled up in a great cloak and disguised with a large hat, will I await you in this happy spot—but why my soul—why not this instant fly—this moment will I seize my tender bit of lamb—d——m me, there I had her as dead as mutton. (aside)
Miss P No, I am not yet equipped for an elopement, and what is of more consequence still, I have got with me a casket of jewels I have prepared, rather too valuable to leave behind.
Tagg. That is of some consequence, indeed, to me.
My diamond my pearl, Then be a good girl Until I come to you again.
Miss P. Come back again in the disguise immediately, and if fortune favours faithful lovers’ vows, I will contrive to slip out to you.
Tagg. Dispose of me, lovely creature, as you please, but don’t forget the casket.
L P runs in.
Granne! granne!
Miss P. What rude interruption is this?
Little P. Nothing at all—only father is coming, that’s all.
Tagg. The devil he is—what a catastrophe! [both rise.
Miss P. One last adieu. (embracing) Think you we shall ever meet again! (they find themselves fastened together, and struggle)
Tagg. D——m me! if I think we shall ever part.
Miss P. (tenderly) Don’t detain me, won’t you let me go?
Tagg. Zounds I wish you were gone (they struggle, and at last get free, and run off different ways.)
Enter O P .
Pick. Well, all’s not so bad as I feared—he is not yet gone to sea, and Margery assures me I shall see him e’er long, quite another thing from what he was—but now let me look after my sister—though she made me play the fool, I’ll take care to prevent her—I must not give up the consols to——but odso, I have not yet seen my daughter, I’ll to her first, least young yeo, yeo, yeo, should get her ship’t off—and when I have secured fifteen, I’ll look after fifty—but who’s coming here? I’ll conceal myself and watch.
Enter M P , with casket.
Miss P. (passing over to the bower) Mr. Tagg, Mr. Tagg—I hope he is returned—how I tremble—kind Cupid, guide your votary’s feeble steps—Oh, my dear Mr. Tagg, take the casket, and let us make haste, that we may escape before my brother comes. [catches hold of L P , who is behind the bower, disguised as T . L P kissing her hand. They run towards O P , who comes forward and stops them.]
Pick. Your most obedient humble servant, madam—well said fifty, egad—sir, your most obsequious, Mr Alexander, Mr Romeo—John
—William—Thomas, (calling the servants) you shan’t want attendants mighty prince, but mayhap you had rather sleep in a castle, great hero, we have a convenient goal close by—where you’ll be very safe, most illustrious chief.
Miss P. Heavens! a Jail! poor dear Mr. Tagg, a victim to his love for me—oh, let us implore his forgiveness—intreat him to release you. (to T .)
Little P. (kneels and throws off his disguise as T , and appears in his own hair, though still in the sailor’s dress) Thus let me implore for pardon, and believe, that a repentance so sincere as mine, will never suffer my heart again to wander from it’s duty towards him.
Pick. What’s this? my son (embracing L P ) Odds my heart, I’m glad to see him once more—Oh you dear little fellow!—but you wicked scoundrel, how did you dare play me such tricks?
Little P. Tricks! Oh, sir, recollect you have kindly pardon’d them already; and now you must intercede for me with my aunt, that I may have her forgiveness too, for preventing her from eloping as she designed with her tender swain Mr. Tagg.
Pick. Mr. Tagg, odso, then the consols were sinking apace, but you have raised them once more.
Little P. And do you then, indeed, sir; sincerely forgive me, and forget all my follies?
Pick. Forget ’em, ah! had you vex’d me as much again, I should be more than repaid by the happiness of this moment.
Little P. Kind, sir, my joy is then complete, and I will never more offend. [comes forward.
FINALE and Chorus. L P .
Dear sir, once more receive me, And take me to your arms, Nor drive me forth to wander
Expos’d to rude alarms. His} duty, love, obedience, My }
This penitence refuse, Then ne’er adopt another child, For {he} alone {is} yours. {I } {am}
Chorus—My duty, love, &c.
II.
Our} joy is then completed, My }
Wou’d but each gen’rous heart, With partial favour smiling, Applaud the artless jest. The object of these childish pranks, Was barely to amuse ’em. Then censure not a school-boy’s faults, But laugh at, and excuse ’em.
Chorus—The object of my duty, love, &c.
FINIS.
JUST PUBLISHED.
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