Folk International Law: 9/11 Lawyering and the Transformation of the Law of Armed Conflict to Human Rights Policy and Human Rights Law to War Governance

Author(s):  
Naz K. Modirzadeh
Author(s):  
Tsvetelina van Benthem

Abstract This article examines the redirection of incoming missiles when employed by defending forces to whom obligations to take precautions against the effects of attacks apply. The analysis proceeds in four steps. In the first step, the possibility of redirection is examined from an empirical standpoint. Step two defines the contours of the obligation to take precautions against the effects of attacks. Step three considers one variant of redirection, where a missile is redirected back towards the adversary. It is argued that such acts of redirection would fulfil the definition of attack under the law of armed conflict, and that prima facie conflicts of obligations could be avoided through interpretation of the feasibility standard embedded in the obligation to take precautions against the effects of attacks. Finally, step four analyzes acts of redirection against persons under the control of the redirecting State. Analyzing this scenario calls for an inquiry into the relationship between the relevant obligations under international humanitarian law and human rights law.


Author(s):  
Paul David Mora

SummaryIn its recent decision in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), the International Court of Justice (ICJ) held that Italy had failed to respect immunities enjoyed by Germany under international law when the Italian courts allowed civil actions to be brought against Germany for alleged violations of international human rights law (IHRL) and the law of armed conflict (LOAC) committed during the Second World War. This article evaluates the three arguments raised by Italy to justify its denial of immunity: first, that peremptory norms of international law prevail over international rules on jurisdictional immunities; second, that customary international law recognizes an exception to immunity for serious violations of IHRL or the LOAC; and third, that customary international law recognizes an exception to immunity for torts committed by foreign armed forces on the territory of the forum state in the course of an armed conflict. The author concludes that the ICJ was correct to find that none of these arguments deprived Germany of its right under international law to immunity from the civil jurisdiction of the Italian courts.


2019 ◽  
pp. 279-302
Author(s):  
Anders Henriksen

This chapter examines those parts of international law that regulate how military operations must be conducted—jus in bello. It begins in Section 14.2 with an overview of the most important legal sources. Section 14.3 discusses when humanitarian law applies and Section 14.4 examines the issue of battlefield status and the distinction between combatants and civilians. Section 14.5 provides an overview of some of the most basic principles governing the conduct of hostilities while Section 14.6 concerns belligerent occupation and Section 14.7. deals with the regulation of non-international armed conflict. Finally, Section 14.8 explores the relationship between international humanitarian law and human rights law in times of armed conflict.


Author(s):  
Anders Henriksen

This chapter examines those parts of international law that regulate how military operations must be conducted — jus in bello. It begins in Section 14.2 with an overview of the most important legal sources. Section 14.3 discusses when humanitarian law applies. Section 14.4 examines the issue of battlefield status and the distinction between combatants and civilians. Section 14.5 provides an overview of some of the most basic principles governing the conduct of hostilities while Section 14.6 deals with the issue of regulation of non-international armed conflict. Finally, Section 14.7 explores the relationship between international humanitarian law and human rights law in times of armed conflict.


1997 ◽  
Vol 46 (1) ◽  
pp. 55-80 ◽  
Author(s):  
Judith Gardam

The aim of this article is to extend the critique of human rights law by feminist scholars to humanitarian law—or the law of armed conflict, as it is more traditionally known. When reflecting generally on the role that international law plays in providing protection for women from the effects of violence the obvious starting point is the regime of human rights. So much of human suffering in today's world occurs, however, in the context of armed conflict where to a large extent human rights are in abeyance and individuals must rely on the protections offered by the law of armed conflict.1The debate that has been taking place for some years in the context of human rights as to the extent to which that system takes account of women&s lives needs to extend to the provisions of the law of armed conflict. Although commentators have convincingly demonstrated the limitations of the existing body of human rights law adequately to take account of the reality of women&s experience of the world,2the law of armed conflict is even more deficient. Moreover, despite the recent focus on rape in armed conflict as a result of the international outrage at the sexual abuse of women in the armed conflict in the former Yugoslavia, these shortcomings remain largely unaddressed.3At first glance this seems somewhat surprising until the special difficulties that flow from certain characteristics of the law of armed conflict are appreciated.


2015 ◽  
Vol 6 (2) ◽  
pp. 201-246 ◽  
Author(s):  
Dinah Shelton ◽  
Isabelle Cutting

This article examines the extent to which international legal obligations aimed at protecting the environment apply to military activities in peacetime and during armed conflict. The discussion draws on international environmental law, human rights law, the law of armed conflict, and the law of State responsibility in evaluating the extent to which States have a duty to prevent or mitigate environmental harm and remediate or compensate for any such damage caused by their military activities. The article also examines international law on liability for the injurious consequences of lawful activities, to assess whether this equitable doctrine supports shifting the clean-up costs of environmental harm to the acting State even when there is no breach of international law. The article concludes that international law requires measures be taken to prevent environmental harm and could support a claim for remediation or compensation where norms of international law have been breached. It also suggests the need to develop specific rules in peace treaties and status of forces or bases agreements, to address the consequences of environmental harm resulting from military activities.


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