Chapter

Manuals and courts : international humanitarian law, informal law-making and normativity

Dale Stephens

Law-making and legitimacy in international humanitarian law

Cheltenham ; Northampton : E. Elgar, 2021

p. 253-275

English

This chapter examines the place and methodological agency of the manual process as well as the impact of court and tribunal decisions on military legal operational planning. It analyses the deliberative processes and methodological approaches adopted when locating and identifying relevant rules and principles of IHL. The rise of international operational law manuals resulted in a developing academic critique regarding their legitimacy and in turn ignited a vigorous defence of the procedural integrity of the manual process. As such manuals do inform operational decision-making in the battlespace and have also been confidently used and invoked by courts, tribunals and quasi-judicial bodies, the role and place of informal sources of authority are becoming well entrenched. The invocation of apparently informal prescriptions in such formal circumstances requires an examination of the integrity that underpins the manual process as well as the impact of court and tribunal decisions on military legal operational planning.

• Law-making and legitimacy in international humanitarian law / ed. by Heike Krieger ; with assistant editor Jonas Püschmann