International Humanitarian Law and Justice In the last decade, there has been a turn to history in international humanitarian law and its accompanying fields To examine this historization and to expand the current scope of scholarship, this book brings together scholars from various fields, including law, history, sociology, and international relations Human rights law, international criminal law, and the law on the use of force are all explored across the text’s four main themes: historiographies of selected fields of international law; evolution of specific international humanitarian law rules in the context of legal gaps and fault lines; emotions as a factor in international law; and how actors can influence history This work will enhance and broaden readers’ knowledge of the field and serve as an excellent starting point for further research Mats Deland is Associate Professor in history and temporary lecturer at Mittuniversitet, Sundsvall, Sweden His publications include Purgatorium (vol 1, 2010, vol. 2, 2017) and he has expertise in Holocaust studies and Genocide studies, U rban history, Right-Wing Extremism, and the History of International Law Dr Mark Klamberg (Jur Dr Stockholm University, LL.M Raoul Wallenberg Institute and Jur Kand Lund University) is Associate Professor in international law at Stockholm University He is the author of several publications on international criminal law, surveillance, privacy, and other fields of international law, including Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events (Martinus Nijhoff Publishers, 2013) and Power and Law in the International Society – International Relations as the Sociology of International Law (Routledge, 2015) He is the chief editor of the Commentary on the Law of the ICC (CLICC) Pål Wrange (PhD, LL.M.) is Professor in public international law at Stockholm University and the Director of the Stockholm Center for International Law and Justice He is a former principal legal advisor at the Swedish Ministry for Foreign Affairs He has published widely on international law, international relations and theory, and he has worked and consulted for the European Union, governments, and NGOs He is currently working on a book on non-state actors, right authority, and the right to use military violence International Humanitarian Law and Justice Historical and Sociological Perspectives Edited by Mats Deland, Mark Klamberg and Pål Wrange First published 2019 by Routledge Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 Taylor & Francis The right of Mats Deland, Mark Klamberg and Pål Wrange to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988 All rights reserved No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Deland, Mats, editor | Klamberg, Mark, editor | Wrange, Pål, editor Title: International humanitarian law and justice: historical and sociological perspectives / Edited by Mats Deland, Mark Klamberg, and Pål Wrange Description: New York, NY: Routledge, 2019 | Includes bibliographical references and index Identifiers: LCCN 2018024838 | ISBN 9781138477551 (hbk) | ISBN 9781351104432 (web pdf) | ISBN 9781351104425 (epub) | ISBN 9781351104418 (mobipocket) Subjects: LCSH: Humanitarian law–History | International law–Sociological aspects | Sociological jurisprudence Classification: LCC KZ6471 I585 2018 | DDC 341.6/7–dc2 LC record available at https://lccn.loc.gov/2018024838 ISBN: 978-1-138-47755-1 (hbk) ISBN: 978-1-351-10444-9 (ebk) Typeset in Galliard by codeMantra Contents Contributors Introduction viii M ats Deland, M ark K lamberg , and På l W range Part I 1 Introduction: historicizing international humanitarian law På l W range Historicising international criminal trials within the modernist project 17 Damien R ogers Engaging history in the legal protection of cultural heritage in war and peace 30 S ebastian M S pitra From spies to international criminals: the influence of the Austro-Hungarian counter-espionage service on the International Criminal Police Commission 44 M ark L ewis 5 Authority, legitimacy and military violence: de facto combatant privilege of non-state armed groups through amnesty På l W range 60 vi Contents Part II 77 Evolution of rules and concepts in international humanitarian law: navigating through legal gaps and fault lines 79 M ark K lamberg 7 A hidden fault line: how international actors engage with IHL’s principle of distinction 85 R ebecca S utton 8 Restraint in bello: some thoughts on reciprocity and humanity 100 A nna E vangelidi Judging the past – international humanitarian law and the Luftwaffe aerial operations during the invasion of Poland in 1939 114 M ateusz P i ątkowski Part III 127 10 Emotions and the law 129 M ats Deland 11 To feel or not to feel? Emotions and international humanitarian law 134 N ele V erlinden 12 To kill or not to kill as a social question 146 K a L ok Y ip 13 War of Wor(l)ds – clashing narratives and interpretations of I(H)L in the intractable Israeli-Palestinian conflict A lexandra Hofer 160 Contents vii Part iv 173 14 The lawyer as an actor in history and society 175 Daniel M arc S egesser and M ats Deland 15 Lemkin on vandalism and the protection of cultural works and historical monuments during armed conflict 183 M ark K lamberg 16 Forgotten, but nevertheless relevant! Gustave Moynier’s attempts to punish violations of the laws of war 1870–1916 197 Daniel M arc S egesser 17 The feminist origins of the Swedish Red Cross 212 M ats Deland Index 225 Contributors Mats Deland is Associate Professor in history and temporary lecturer at M ittuniversitet, Sundsvall, Sweden His publications include Purgatorium (vol. 1, 2010, vol 2, 2017) and he has expertise in Holocaust studies and Genocide studies, Urban history, Right-Wing Extremism, and the History of International Law Email: mats.deland@gmail.com Anna Evangelidi is a PhD candidate and Graduate Teaching Assistant at The City Law School, City, University of London, United Kingdom Email: anna evangelidi.1@city.ac.uk Alexandra Hofer is a PhD candidate in Public International Law at Ghent University She has a Master’s in International Relations, Peace, Conflict, and Security and a LL.M in Public International Law from the Université libre de Bruxelles Prior to joining Ghent in Summer 2015, Alexandra completed an internship within the Trial Division of the International Criminal Court Email: alexandra.hofer@ugent.be Dr Mark Klamberg (Jur Dr Stockholm University, LL.M Raoul Wallenberg Institute and Jur Kand Lund University) is Associate Professor in international law at Stockholm University He is the author of several publications on international criminal law, surveillance, privacy, and other fields of international law, including Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events (Martinus Nijhoff Publishers, 2013) and Power and Law in the International Society – International Relations as the Sociology of International Law (Routledge, 2015) He is the chief editor of the Commentary on the Law of the ICC (CLICC) Email: Mark Klamberg@juridicum.su.se Mark Lewis is an Associate Professor of European History at the College of Staten Island and at the Graduate Center (City University of New York) He received a BA from Stanford University and an MA and PhD from the University of California, Los Angeles He is the co-author of Himmler’s Jewish Tailor: The Story of Holocaust Survivor Jacob Frank (Syracuse University Press, 2000) and the author of The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919–1950 (Oxford University Press, 2014) Contributors ix The latter won the Fraenkel Prize from the Wiener Library (2013) and the inaugural Bronisław Geremek Prize from the College of Europe and the Geremek Foundation (2015) Email: Mark.lewis@csi.cuny.edu Mateusz Piątkowski is a PhD Candidate at the University of Lodz, Poland Attorney at law in District Bar Association in Lodz, Poland He is a Researcher in international humanitarian law and the law of aerial warfare Email: piatkowskimat@gmail.com Damien Rogers is Senior Lecturer at Massey University’s Centre for Defence and Security Studies, New Zealand Holding a PhD in Political Science and International Relations from the Australian National university and a PhD in Law from the University of Waikato, Rogers is author of two monographs: Postinternationalism and Small Arms Control: Theory, Politics, Security (Ashgate, Surry, 2009; and reproduced by Routledge, New York, 2016) and Law, Politics and the Limits of Prosecuting Mass Atrocity (Palgrave Macmillan, New York, 2017) Email: D.R.Rogers@massey.ac.nz Daniel Marc Segesser is Director of undergraduate studies (Studienleiter) and Adjunct Professor (Privatdozent) at the Department of History of the University of Bern in Switzerland His current research focuses on the history of international law in the period between 1872 and 1945 as well as on aspects of transnational, environmental, and global history of the First World War His major publications are Recht statt Rache oder Rache durch Recht: Kriegsverbrechen in der internationalen wissenschaftlichen Debatte 1872–1945 (Paderborn 2010), Der Erste Weltkrieg in globaler Perspektive (Wiesbaden 2010, 4th edition 2014) and Empire und Totaler Krieg: Australien 1905–1918 (Paderborn 2002) Email: daniel.segesser@hist.unibe.ch Sebastian M Spitra holds degrees in law and philosophy from the University of Vienna Currently, he is a research fellow at the Institute for legal and constitutional history at the Viennese law faculty He teaches and conducts research in constitutional history, theory, and history of international law Since 2016, he is a fellow of the Vienna Doctoral Academy and received a research scholarship of the Heinrich-Graf-Hardegg’sche Stiftung In January and February 2018, he was granted a fellowship at the Max Planck Institute for Comparative Public Law and International Law He is Grotius Fellow of the University of Michigan Law School 2018–2019 Email: sebastian.spitra@univie.ac.at Rebecca Sutton is a PhD Candidate in the Department of Law at the London School of Economics (LSE) in the UK Her doctoral research, which focuses on the civilian status of international humanitarian actors under International Humanitarian Law, is funded by scholarships from the Pierre Elliot Trudeau Foundation and the Social Science and Humanities Research Council of Canada (SSHRC) Rebecca is qualified as a Barrister and Solicitor, called to the Ontario Bar in Canada She holds a Juris Doctor from the University of Toronto and an MSc in Violence, Conflict and Development from SOAS .. .International Humanitarian Law and Justice In the last decade, there has been a turn to history in international humanitarian law and its accompanying fields To examine this historization and. .. References Amanda Alexander, “A Short History of International Humanitarian Law? ??, European Journal of International Law, vol 26, no 1, 2015, pp 109–138 Philip Allott, ? ?International Law and the Idea... right authority, and the right to use military violence International Humanitarian Law and Justice Historical and Sociological Perspectives Edited by Mats Deland, Mark Klamberg and Pål Wrange