War Crimes Law Comes of Age: Essays, and: Crimes of War: What the Public Should Know (review)

War Crimes Law Comes of Age: Essays, by Theodor Meron (Oxford: Clarendon Press, 1998), 336 pp; Crimes of War: What the Public Should Know, edited by Roy Gutman & David Rieff (W.W. Norton & Company, 1999), 399 pp.

In recent years, there has been a growing interest in international humanitarian law (IHL, or laws of war). This is both promising and depressing. Promising, because ever since the Nuremberg and Tokyo Trials, interest in the norms and regulations governing warfare has been confined primarily to specialists, with the occasional exception to the rule provided by a few high profile cases (such as the Eichmann and Calley trials). Depressing, because it took the large-scale atrocities in the former Yugoslavia and the mass killings in Rwanda for the international community to take IHL seriously. Leaving aside for the moment the cynical view (that the establishment of the two ad hoc tribunals was the most risk-free humanitarian option), the attention and the activities surrounding the two ad hoc tribunals (especially the one on the former Yugoslavia) are unprecedented, even when measured by the standards of only a decade ago. The two books under review join a long list of recent publications on the subject. While different in content and purpose, they are important reminders of both the achievements in the development of IHL and international human rights law, and of the challenges confronting the recently adopted enforcement mechanisms.

Theodor Meron's book is a collection of essays which have appeared in various scholarly publications, primarily as law review articles. Meron, one of the most committed to the study and development of IHL scholars, covers a wide range of topics. The essays range from an overview of the historical antecedents of key humanitarian law concepts (protected persons, the right to quarter) in medieval and Renaissance ordinances, to an analysis and assessment of some of the most promising recent developments in IHL. Along the way, the scholar turns into an advocate with essays on the need for the United States to ratify the 1977 Geneva Protocol I, and on the overall beneficial impact of an ad hoc tribunal for the former Yugoslavia. However, it is the analytical essays that are the strength of this book.

The historically oriented essays are both highly informative and instructive, especially when dealing with issues clearly of contemporary relevance. For example, in his essay Crimes and Accountability in Shakespeare Meron compares Cleopatra's and Henry's ruminations on the burdens of leadership with the Yamashita principle. ¹ Meron, echoing Michael Walzer, ² correctly observes that the Yamashita case highlights the tensions between utilitarian and justice considerations. The task of balancing the utilitarian interests of the community by ensuring that the commander can control his troops and thus restrain their abusive conduct, against the unjust punishment of the commander for his subordinates' actions, is a continuing challenge for command responsibility. I am not sure that I share Meron's optimism that Article 86(2) of the Geneva Protocol I strikes such a fair balance. The jury is still out; it will have to await the evolving jurisprudence of the ad hoc tribunals and of the (hopefully) soon to be established International Criminal Court (ICC).

Likewise, his essay Common Rights of Mankind in Gentili, Grotius and Suàrez, focusing on the concept of community interests and the concomitant right of humanitarian intervention (one of the most controversial issues in post Cold War politics), highlights the pre-Grotian nature of that right. ³ In the process, it not only adds a much needed corrective on Gentili's important scholarly contributions on this subject, but it demonstrates the continuing relevance of his thinking.

Meron's key concern centers on recent developments in humanitarian law. By analyzing important provisions of the statutes of the two ad hoc tribunals, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and...