The article identifies humanitarian law related thought in some works of world literature. A starting point is Thomas More's Utopia (1516). Since Judge T. Meron has dealt extensively with Shakespeare from a similar perspective, the works referred to in the article (except Utopia) are all post-Shakespearean. The exposé ends with Kurt Vonnegut's Slaughterhouse Five (1969) and some dry comments on the bombing of Dresden in that book.

The implementation of international humanitarian law (IHL) is confronted with many challenges. Some of them are inherent since IHL applies to armed conflicts: a situation must be classified before IHL can be applied. Existing implementation mechanisms either do not function at all or have their limits. In certain conflicts, such as asymmetric conflicts, and with regard to certain players, such as armed groups, it is particularly difficult to obtain respect of IHL. Beyond that, there is a perhaps even more dangerous challenge in perception.

The gap between the burgeoning promises of protection by the law made by doctrine, jurisprudence and sometimes even by States, and the systematic non-respect of that law, which (in the author's view wrongly) transpires from the media and NGO reports, undermines the credibility of the law and the willingness to respect it. The author advocates ways to reduce this gap.

The controversy surrounding recent uses of white phosphorus (WP) to ‘flush-out’ suspected insurgents or in attacks against military targets in open ground has led to a renewed media interest in the legal status of WP-based munitions. An inherent public dislike for weapons that cause death or injury by fire is very natural, so one is entitled to ask whether humanity should not prevail when it comes to anti-personnel uses of such weapons. In the absence of a specific treaty dealing with the use of WP, this article, written jointly by a retired military lawyer and a scientist interested in the law, examines the use of such weapons in practice as well as the relevant legal and scientific background before attempting to reach conclusions about their legality. This involves a consideration of the reasons for the development of WP-based munitions, of their usual military uses and of some unconventional uses of such weapons. There follows an examination of the basic principles of customary international law as well as the treaty provisions dealing with incendiary weapons. Furthermore, because of the various harmful physiological interactions of WP, it was necessary to look closely at the legal provisions on poison, gas and chemical weapons. That demanded an interpretation of multiple aspects of the Chemical Weapons Convention before the legal status of WP could be fully determined. The convention is constructed in such a way that what at first sight appears to be a chemical weapon may not be as a matter of law unless it is consciously applied in a prohibited manner.

This article discusses the criteria for establishing the beginning of an occupation. To this end, it analyzes the wording and drafting history of IHL instruments as well as international case law. It also looks at the influence of human rights law, in particular the notion of “jurisdiction” as used in the ICCPR and the ECHR, on the concept of occupation. Given that the IHL instruments on occupation were drafted some time ago, the impact of a number of technological developments in military affairs on the criteria for the beginning of occupation are discussed. The article concludes that the core of the concept of occupation consists of a negative and a positive element. The negative element is that the indigenous authorities of the occupied territory have been rendered incapable of functioning publicly. The positive element is expressed in Article 42 of the Hague Regulations as the requirement that the territory ‘is actually placed under the authority of the hostile army’.

The International Criminal Courts Round-Up reports on the most interesting judgements and decisions rendered by international(ized) criminal courts and tribunals during the reporting period. In addition, important developments within the various organs of the courts are highlighted, such as the appointment of new judges and significant amendments to the procedural rules of the courts. The Round-Up presently covers issues concerning the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone.

This article provides a detailed update on the progress of the United States military commissions under the regime established by the Military Commissions Act of 2006 for the trial of detainees captured during the War on Terror for so-called war crimes. In particular, the author examines the plea and sentencing of Australian detainee David Hicks, the pre-trial developments in the case of Canadian detainee Omar Khadr, and the early litigation involving the detainees who have been dubbed the ‘September 11 co-conspirators’. The author also touches on the Supreme Court decision in Hamdan v. Rumsfeld, some of the significant features of the Military Commission Act, the recent federal court litigation in the case of Boumediene v. Bush, and the construction of the new military commission building at Guantanamo Bay Naval Base.

Following the terrorist attacks of 9/11, the United States sought to establish a framework for detaining, interrogating and possibly prosecuting persons suspected of various degrees of connection to international terrorism. There were several factors militating against reliance on a tried and true law enforcement paradigm of arrest and prosecution in federal courts. Perhaps the most significant one, as described by then Attorney General Ashcroft and other senior officials in the Department of Justice, was the felt need for a fundamental shift in approach when dealing with terrorist suspects, from prosecution to prevention of future attacks.

It was presumed that these two interests were at odds: on the one hand, preparing and trying criminal cases, and on the other hand, obtaining actionable intelligence about terrorist groups and their plans; in other words, that the application of criminal justice procedures would hamper the intelligence gathering effort. After all, ‘you have a right to remain silent and a right to an attorney’ (the so-called Miranda warnings) was not the message that the administration wanted to convey.

Cluster munitions are a class of weapon originating from the Second World War, and concerns about the hazards they pose to civilians, both at time of use and post-conflict, have been raised since the 1960s. However, attempts to specifically address the humanitarian impacts of cluster munitions through international legal means gained little traction until a turning-point period from late 2006 to the end of 2007. Remarkably, by the end of this period not one – but two – multilateral negotiating processes were underway to develop international legally binding arrangements on cluster munitions.

Compiled and edited by Michelle Lesh, in cooperation with General Editor Timothy L.H. McCormack and Managing Editor Jann Kleffner.

The section Correspondents' Reports is a digest of state practice in the field of international humanitarian law and related fields. It features succient, highly readable reports compiled and reported by the yearbook's roster of expert rapporteurs which provide a global review of IHL covering the reporting period. Areas covered by the national reports include legislative and judicial developments at the national level.

The section does not purport to be a fully inclusive compilation of all international humanitarian law-related developments in every state, reporting in this volume mainly developments since the beginning of 2007 until the end of 2007 that have come to the Yearbook's attention.

Further, some 2007 humanitarian law-related developments came to our attention after volume 9 went to press and could not be noted there. For the sake of completeness, we have included them here. Reference is also included to a number of legal developments which are not strictly-speaking related to IHL but which are nonetheless interesting and relevant for our readers, in particular relating to justice issues, jurisdictional questions, jus ad bellum, state security, human rights, refugees and internally displaced persons, and terrorism.

The YIHL features a comprehensive bibliography covering the most recently published books and articles focusing on international humanitarian law, international criminal law and related fields. While the focus is on literature in the English language, notable publications in French, German, Spanish, Italian and other languages are also listed.