11. International humanitarian law

2021 ◽  
pp. 247-266
Author(s):  
Nicole Scicluna
Keyword(s):  
Armed Conflict ◽  
The Political ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Implications ◽  
Legitimate Target ◽  
Self Interest ◽  
State Practice ◽  
The Status ◽  
International Legal Order

This chapter investigates whether and how the laws that govern armed conflict achieve their objective of minimizing the suffering of combatants and non-combatants alike. International humanitarian law (IHL) reflects the tensions of an international legal order that oscillates between the apologist tendency to reflect state practice and state self-interest and the utopian desire to reflect higher values of justice and human dignity. The chapter begins with a brief overview of the evolution of this body of law, the codification of which dates from the second half of the nineteenth century. It then turns to the question of terminology, analysing the political origins and legal implications of the relatively recent term ‘international humanitarian law’. The chapter focuses on two key questions. Firstly, who or what is a legitimate target during an armed conflict? Secondly, what are legitimate means of conducting armed conflict? The chapter also considers the status of nuclear weapons under international law, a topic that captures well both the possibilities and limits of IHL.

International Humanitarian Law and Non-State Practice in Armed Conflict: Combatant’s Privilege and Kurdish Fighters in Syria

2019 ◽  
Vol 24 (2) ◽  
pp. 271-296
Author(s):  
Ilana Rothkopf
Keyword(s):  
Armed Conflict ◽  
International Community ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Prisoner Of War ◽  
Geneva Conventions ◽  
State Practice ◽  
The Status

Abstract Do fighters associated with non-state armed groups have the combatant’s privilege in armed conflict? Non-state armed groups are commonplace in contemporary armed conflicts. However, international humanitarian law (IHL), particularly the law that pertains to combatant’s privilege and prisoner of war status, was designed with state actors in mind. This article assesses the conditions under which the members of non-state armed groups have combatant’s privilege. Throughout, it uses the case of Kurdish fighters in Syria as an example of the timeliness of this question and its ramifications for conflict actors. This article notes, with support from the Geneva Conventions, Additional Protocols, and other sources of IHL, that IHL does not foresee a combatant’s privilege for armed groups in a non-international armed conflict. It contends, however, that the international community should agree to a generalisable rule for the treatment of fighters as combatants regardless of conflict type, if these fighters demonstrate the capability and willingness to adhere to IHL. Such a rule would reduce the need to assess both conflict type and the status of individual fighters should they be captured, and more importantly, it would incentivise continued compliance with IHL.

Who Are Protected by the Fundamental Guarantees under International Humanitarian Law? Part 2: Breaking with the Control Requirement in Light of the icc Case Law

2021 ◽  
pp. 1-58
Author(s):  
Raphaël van Steenberghe
Keyword(s):  
Armed Conflict ◽  
Legal Status ◽  
Case Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
General Control ◽  
Geneva Conventions ◽  
The Status ◽  
Control Requirement ◽  
Specific Paper

Abstract International humanitarian law provides for fundamental guarantees, the content of which is similar irrespective of the nature of the armed conflict and which apply to individuals even if they do not fall into the categories of specifically protected persons under the Geneva Conventions. Those guarantees, all of which derive from the general requirement of human treatment, include prohibitions of specific conduct against persons, such as murder, cruel treatment, torture, sexual violence, or against property, such as pillaging. However, it is traditionally held that the entitlement to those guarantees depends upon two requirements: the ‘status requirement’, which basically means that the concerned persons must not or no longer take a direct part in hostilities, and the ‘control requirement’, which basically means that the concerned persons or properties must be under the control of a party to the armed conflict. This study argues in favour of breaking with these two requirements in light of the existing icc case law. That study is divided into two parts, with each part devoted to one requirement and made the object of a specific paper. The two papers follow the same structure. They start with general observations on the requirement concerned, examine the relevant icc case law and put forward several arguments in favour of an extensive approach to the personal scope of the fundamental guarantees. The first paper, which was published in the previous issue of this journal, dealt with the status requirement. It especially delved into the icc decisions in the Ntaganda case with respect to the issue of protection against intra-party violence. It advocated the applicability of the fundamental guarantees in such a context by rejecting the requirement of a legal status, on the basis of several arguments. Those arguments relied on ihl provisions protecting specific persons as well as on the potential for humanizing ihl on the matter and also on the approach making the status requirement relevant only when the fundamental guarantees apply in the conduct of hostilities. The second paper, which is published here, deals with the control requirement. It examines several icc cases in detail, including the Katanga and Ntaganda cases, in relation to the issue of the applicability of the fundamental guarantees in the conduct of hostilities. It is argued that the entitlement to those guarantees is not dependent upon any general control requirement, and that, as a result, some of these guarantees may apply in the conduct of hostilities. This concerns mainly those guarantees whose application or constitutive elements do not imply any physical control over the concerned persons or properties.

scholarly journals The Rule of Surrender in International Humanitarian Law

2018 ◽  
Vol 51 (1) ◽  
pp. 3-27 ◽  
Author(s):  
Russell Buchan
Keyword(s):  
Armed Conflict ◽  
Careful Examination ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Law Of War ◽  
Legal Development ◽  
Military Necessity ◽  
Opposing Force ◽  
State Practice

Under international humanitarian law it is prohibited to make the object of attack a person who has surrendered. This article explores the circumstances in which the act of surrender is effective under international humanitarian law and examines, in particular, how surrender can be achieved in practical terms during land warfare in the context of international and non-international armed conflict. First, the article situates surrender within its broader historical and theoretical setting, tracing its legal development as a rule of conventional and customary international humanitarian law and arguing that its crystallisation as a law of war derives from the lack of military necessity to directly target persons who have placed themselves outside the theatre of armed conflict, and that such conduct is unacceptable from a humanitarian perspective. Second, after a careful examination of state practice, the article proposes a three-stage test for determining whether persons have surrendered under international humanitarian law: (1) Have persons attempting to surrender engaged in a positive act which clearly reveals that they no longer intend to participate in hostilities? (2) Is it reasonable in the circumstances prevailing at the time for the opposing force to discern the offer of surrender? and (3) Have surrendered persons unconditionally submitted to the authority of their captor?

3 Components of the International Law of Weaponry

2016 ◽  
Author(s):  
Boothby William H
Keyword(s):  
Traditional Approach ◽  
Customary Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Status ◽  
General Principles Of Law ◽  
The Law

This chapter considers the sources of the law of weaponry and discusses matters critical to understanding it. Taking the traditional approach, in addition to general principles of law recognized by nations, the sources of the law consist of customary law and of treaty law, the latter referred to as ‘conventional law’. The chapter looks at customary law, which is, according to Article 38(1)(b) of the Statute of the International Court of Justice (ICJ), the law applied by the court as including ‘international custom, as evidence of a general practice accepted as law’. The chapter discusses what does, and respectively does not, comprise state practice and then looks at treaties, how they are made and interpreted, how states explain their understandings of them and related matters. Individual sections then address the status at law of the ICRC Study of Customary International Humanitarian Law and of the UN Secretary General’s Bulletin.

The Relationship between Jus Ad Bellum and Jus In Bello

2016 ◽  
Author(s):  
Okimoto Keichiro
Keyword(s):  
Armed Conflict ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Expert Opinions ◽  
Legal Implications ◽  
Law Of Armed Conflict ◽  
The Relationship ◽  
Self Defence

This chapter discusses the relationship between jus ad bellum (international law regulating the resort to force) and jus in bello (law of armed conflict). It examines state practice, international decisions, and expert opinions to determine how the relationship has been addressed in practice. The chapter considers the question of whether jus in bello applies equally to the unlawful and lawful parties to an armed conflict before turning to the legal implications of the cumulative requirements of the law of self-defence and international humanitarian law (IHL) imposed on a use of force in self-defence. Finally, it considers the legal implications of the concurrent application of Chapter VII of the UN Charter and IHL with respect to use authorized under Chapter VII.

International treaties against terrorism and the use of terrorism during armed conflict and by armed forces

2006 ◽  
Vol 88 (864) ◽  
pp. 853-880 ◽  
Author(s):  
Daniel O'Donnell
Keyword(s):  
Twentieth Century ◽  
Military Personnel ◽  
Armed Conflict ◽  
Armed Forces ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Treaties ◽  
War On Terrorism ◽  
The Status ◽  
Terrorist Acts

AbstractDuring the second half of the twentieth century the international community, facing the terrorist phenomenon, reacted with the adoption of a series of treaties concerning specific types of terrorist acts, and the obligations of states with regard to them. Alternatively terrorism-oriented legislation, which initially covered only acts affecting civilians, has gradually expanded to cover some acts of terrorism against military personnel and installations. This contribution attempts to assess the repercussions of this evolution on the status and the protection of armed forces engaged in the so-called “war on terrorism” by examining the existing dynamic between these regulations and international humanitarian law.

From Peacekeepers to Parties to the Conflict: An IHL’s Appraisal of the Role of UN Peace Operations in NIACs

2020 ◽  
Vol 25 (2) ◽  
pp. 209-236
Author(s):  
Bianca Maganza
Keyword(s):  
Armed Conflict ◽  
International Humanitarian Law ◽  
Peace Operations ◽  
Humanitarian Law ◽  
The Status ◽  
The Impact ◽  
Evolutionary Interpretation

Abstract The article analyses the application of international humanitarian law (IHL) to UN ‘peace operations’ when, due to their factual involvement in hostilities, they become parties to a non-international armed conflict. It argues that the notion of party to the conflict allows to focus on the collective entity and its obligations, and to infer the status of individual members of the operation from the mission's collective status. In assessing the consequences of that scenario, the article further discusses the external and internal borders of the scope of the notion of party to the conflict as applied to UN peace operations, and examines the impact of the loss of protection from attack on the principle of distinction. It concludes by suggesting that, in light of the increasing involvement of UN peace operations in situations that factually amount to armed conflict, an evolutionary interpretation of the theory of IHL's application to the situation is needed.

scholarly journals Private military and security companies in international law

2020 ◽  
pp. 81-94
Author(s):  
A. Yu. Skuratova ◽  
E. E. Korolkova
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Humanitarian Law ◽  
Legal Obligations ◽  
State Practice ◽  
The Status ◽  
Draft Convention ◽  
Working Groups ◽  
The Impact ◽  
Security Companies

INTRODUCTION. The article analyses the sources of international law, national legislation of the Russian Federation, as well as that of certain foreign States regulating the operation of private military and security companies (PMSCs) in armed conflict. The article highlights the out-comes of the work of the UN Special Rapporteurs and Working Groups to study the activity of PMSCs and the impact it had on the observance of human rights. The authors further analyze the status of PMSC personnel under international humanitarian law. The article also looks at the positions expressed by the delegations of Member States during the discussion of the 2010 Draft Convention on Private Military and Security Companies (PMSCs) and provides recommendations for developing an appropriate international regulatory framework. The authors also examined State practice of the implementation of the The Montreux Document on Pertinent International Legal Obligations and Good Practices for Statesт Related to Operations of Private Military and Security Companies During Armed Conflict related to the operation of private military and security companies during armed conflict.MATERIALS AND METHODS. The article contains an analysis of the main sources of international law, the documents drafted by the United Nations International Law Commission, special rapporteurs and working groups on the matter, and State practice. It also addresses Russian and foreign legal scholarship. From a methodological perspective, this study relied on the general scientific (analysis, synthesis, systemic approach) and private legal methods of knowledge (formal-legal, comparative legal studies).RESEARCH RESULTS. Based on the study, it is argued that an international treaty should be adopted to regulate the activities of PMSCs, which would establish mechanisms to monitor and hold PMSCs and their employees legally accountable.

Jus ex bello and international humanitarian law: States’ obligations when withdrawing from armed conflict

2021 ◽  
pp. 1-36
Author(s):  
Paul Strauch ◽  
Beatrice Walton
Keyword(s):  
Armed Conflict ◽  
Just War ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Geneva Conventions ◽  
Legal Obligations ◽  
Legal Implications

Abstract This article considers the international legal obligations relevant to States when withdrawing from situations of armed conflict. While a growing literature has focused on precisely when armed conflicts come to a legal end, as well as obligations triggered by the cessation of active hostilities, comparatively little attention has been paid to the legal implications of withdrawals from armed conflict and the contours of the obligations relevant to States in doing so. Following in the wake of just war scholarship endeavouring to distil jus ex bello principles, this article examines States’ obligations when ending their participation in armed conflicts from the perspective of international humanitarian law (IHL). It shows that while it is generally understood that IHL ceases to apply at the end of armed conflict, this is in reality a significant simplification; a number of obligations actually endure. Such rules act as exceptions to the general temporal scope of IHL and continue to govern withdrawing States, in effect straddling the in bello and post bellum phases of armed conflict. The article then develops three key end-of-participation obligations: obligations governing detention and transfer of persons, obligations imposed by Article 1 common to the four Geneva Conventions, and obligations relating to accountability and the consequences of conflict.

Terrorism and Armed Conflict: Insights from a Law & Literature Perspective

2011 ◽  
Vol 24 (1) ◽  
pp. 1-21 ◽  
Author(s):  
ANDREA BIANCHI
Keyword(s):  
Armed Conflict ◽  
Legal Regulation ◽  
Human Condition ◽  
Armed Conflicts ◽  
Historical Background ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Applicable Law ◽  
The Status ◽  
The Law

AbstractThis article examines some selected issues relating to terrorism and international humanitarian law (IHL): the characterization of the nature of armed conflicts in which armed groups, qualified as ‘terrorist’, are involved; terrorism as a war crime; and the determination of the status and treatment (including detention) of terrorist suspects apprehended in the course of an armed conflict. The analysis emphasizes the importance of legal categories and legal qualifications of factual situations for the purpose of determining the applicable law as well as the crucial importance of taking societal practice into account when evaluating the state of the law in any given area. The main focus of the article, however, is on providing a few basic insights, drawn from the law & literature movement, on international humanitarian law and terrorism. Short of any epistemological ambition, literature is used as a remainder that the law is not a set of neutral rules, elaborated and applied independently of context and historical background; that the human condition remains central; and that legal regulation cannot be oblivious to it. Finally, mention is made of interpretive techniques, developed in the field of literary studies, that may help establish social consensus on the interpretation of IHL grey areas.

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