Binary Law Meets Complex Reality: The Occupation of Gaza Debate

2008 ◽  
Vol 41 (1-2) ◽  
pp. 68-86 ◽  
Author(s):  
Yuval Shany
Keyword(s):  
Legal Status ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Clear Cut ◽  
The Status ◽  
Recent Debate ◽  
The Law ◽  
State Of Affairs ◽  
Ambiguous Situations

The debate surrounding the legal status of Gaza after Israel's disengagement in September 2005 exemplifies some of the chronic limits and deficiencies that international humanitarian law in general and the law of occupation in particular suffer from: (a) binary application—the law operates within clear-cut dichotomies and struggles with recognizing ambiguous situations; (b) varying realities—prevalent tensions between “legal reality” and the actual conditions “on the ground” cause the characterization of conflicts to be based upon different law-based and fact-based perceptions of reality: (c) inconsistent legal and policy approaches—parties to a conflict attempt to simultaneously advance different legal and political goals, which leads to a state of affairs that encourages the application of IHL in a selective and inconsistent manner; (d) chronic gaps between law as it is and law as it should be—lex lata may bring about unsatisfactory outcomes—hence, parties and commentators often attempt to modify existing laws through radical reinterpretations. Focusing on the recent debate over the status of Gaza, this Article illustrates how these four fundamental tensions hamper the application of the law of occupation in factually complicated situations.

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.

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.

Corporate actors: the legal status of mercenaries in armed conflict

2006 ◽  
Vol 88 (863) ◽  
pp. 599-611 ◽  
Author(s):  
Katherine Fallah
Keyword(s):  
International Law ◽  
Significant Role ◽  
Armed Conflict ◽  
Legal Status ◽  
Conventional Approach ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Military Industry ◽  
The Law ◽  
Modern Warfare

AbstractCorporate actors are taking on an increasingly significant role in the prosecution of modern warfare. Traditionally, an analysis of the law applicable to corporate actors in armed conflict commences with inquiry into the law as it applies to mercenaries. As such, the rise of the private military industry invites a reconsideration of the conventional approach to mercenaries under international law. This article critically surveys the conventional law as it applies to mercenaries, and considers the extent to which corporate actors might meet the legal definitions of a “mercenary”. It demonstrates that even mercenaries receive protection under international humanitarian law.

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.

scholarly journals LEGAL STATUS OF THE PERSONS DURING THE WARS THAT WERE FOUGHT BY THE STATES OF THE ANCIENT EAST

2020 ◽  
Keyword(s):  
Legal Status ◽  
Human Person ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Basic Principles ◽  
Civilian Population ◽  
Moral Principles ◽  
Gender And Age ◽  
The Status ◽  
The Military

The article gives a historical and legal review of the problems of the legal status of individuals, both combatants and non-combatants, during the wars that were fought between the states of the East in antiquity. The general and specific approaches in relation to various ancient Eastern peoples to the civilian population and prisoners are analyzed. It turned out that already at that time the foundations were laid for the formation of the basic principles of international humanitarian law in the future. Attention is drawn to the fact that, without knowing the rights of the human person, the ancient peoples could not know the rights of war in the sense that we understand it now. The war then was an unlimited use of force and the defeated, if sometimes they could hope for the magnanimity of the victor, except in the sense that they sometimes survived. It is noted that in practice there was no difference between the status of the warring and civilian population at that time. Every resident of a hostile state, without regard to gender and age, could be killed, enslaved, subjected to various bullying and torture. Also it was noted that a wide variety of violence was used against enemies - both combatants and non-combatants. Against the enemy in ancient times it was allowed to use any weapon, any means, even treacherous ones, which were capable of harming him. None of the adversaries, either wounded or sick, or surrendered, could not avoid being deprived of liberty at best and turned into a living commodity or free labor, and in the worst, die the death of martyrs. Nowhere in the Ancient East, with the exception of India, do we find examples of a humane attitude to the human person, the desire to introduce at least some humanitarian restrictions into the military sphere. But nevertheless, already in the ancient era, sprouts of processes of laying the foundations for the formation of further basic principles of international humanitarian law, based on moral principles - humanism, compassion and mercy, which were interpreted taking into account the conditions of the war, arose.

scholarly journals Who Are Protected by the Fundamental Guarantees under International Humanitarian Law? Part 1: Breaking with the Status Requirement in Light of the icc Case Law

2021 ◽  
pp. 1-54
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 are applicable to individuals even if they do not fall into the categories of specifically protected persons under the 1949 Geneva Conventions. Those guarantees, all of which derive from the general requirement of human treatment, include prohibitions of specific types of conduct against persons, such as murder, cruel treatment, torture and sexual violence, or against property, such as pillaging. However, it is traditionally held that entitlement to those guarantees depends upon two requirements: the ‘status requirement’, which basically means that the concerned persons must not or must 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. The 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 is published in this issue, deals with the status requirement. It especially delves into the ICC decisions in the Ntaganda case with respect to the issue of protection against intra-party violence. It advocates for 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 rely on IHL provisions protecting specific persons, on the potential for humanizing IHL on the matter and on the approach making the status requirement relevant only when the fundamental guarantees apply in the conduct of hostilities. The second paper, which will be published in a coming issue, 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 (mainly those whose application or constitutive elements do not imply any physical control over the concerned persons or properties) may apply in the conduct of hostilities.

THE STATUS OF PEACE OPERATION PERSONNEL UNDER INTERNATIONAL HUMANITARIAN LAW

2008 ◽  
Vol 11 ◽  
pp. 109-138 ◽  
Author(s):  
Ola Engdahl
Keyword(s):  
United Nations ◽  
Armed Conflict ◽  
Legal Status ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Military Force ◽  
Peace Operations ◽  
Humanitarian Law ◽  
Military Forces ◽  
The Status

AbstractCurrent peace operations often include an element of enforcement. Such operations are based upon Chapter VII of the United Nations Charter and are regularly endowed with a right to use ‘all necessary measures’ to fulfil the tasks set down in the particular mandate from the UN Security Council. Such operations, moreover, are often deployed in unstable conditions that border on armed conflict, or in areas of existing conflict. At times, the military forces involved in these operations are also involved in the armed conflict itself.The utilization of military force naturally raises the question of the legal status of personnel in peace operations under international humanitarian law (IHL). They represent the international community and as such are protected personnel. But how should they be treated from the perspective of IHL? Should they, despite their obvious military characteristics, be regarded as civilians? At what point, if any, could they be regarded as combatants? On the issue of change of status under IHL, does the same threshold apply for the operation's military forces as for other military personnel? Does the involvement of peace forces in an armed conflict, made up of contributions from a number of States, automatically cause that conflict to assume an international nature? Are theConvention on the Safety of United Nations and Associated Personneland IHL, applicable in non-international armed conflicts, mutually exclusive? These dilemmas are well illustrated by the difficulties facing the International Security and Assistance Force (ISAF) in Afghanistan.

Business goes to war: private military/security companies and international humanitarian law

2006 ◽  
Vol 88 (863) ◽  
pp. 525-572 ◽  
Author(s):  
Emanuela-Chiara Gillard
Keyword(s):  
Armed Conflict ◽  
Legal Issues ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Military Operations ◽  
Close Proximity ◽  
The Status ◽  
Military Security ◽  
The Law ◽  
Security Companies

AbstractRecent years have witnessed an increase in the number of private military and security companies (PMCs/PSCs) operating in situations of armed conflict, as well as a change in the nature of their activities, which are now increasingly close to the heart of military operations and which often put them in close proximity to persons protected by international humanitarian law. It is often asserted that there is a vacuum in the law when it comes to their operations. In situations of armed conflict, however, there is a body of law that regulates both the activities of the staff of PMCs/PSCs and the responsibilities of the states that hire them. Moreover, other states also have a role to play in promoting respect for international humanitarian law by such companies. This article examines the key legal issues raised by PMCs/PSCs operating in situations of armed conflict, including the status of the staff of these companies and their responsibilities under international humanitarian law; the responsibilities of the states that hire them; and those of the states in whose territory PMCs/PSCs are incorporated or operate.

Living in a Legal Vacuum: The Case of Israel's Legal Position and Policy towards Gaza Residents

2018 ◽  
Vol 51 (2) ◽  
pp. 193-234 ◽  
Author(s):  
Michal Luft
Keyword(s):  
Legal Status ◽  
Gaza Strip ◽  
International Humanitarian Law ◽  
Continuous Control ◽  
Humanitarian Law ◽  
Policy And Practice ◽  
The Status ◽  
Legal Position ◽  
The Gaza Strip ◽  
Academic Debate

The legal status of the Gaza Strip following the 2005 Israeli ‘Disengagement’, as well as the applicability of the laws of belligerent occupation with regard to this territory, have sparked, and continue to generate, a lively academic debate, involving states, organisations and legal scholars. Nevertheless, this debate has seldom included an examination of the de facto policy exercised by Israel vis-à-vis Gaza residents themselves.This article seeks to fill the gap by providing a thorough examination of Israel's legal position towards the residents of Gaza, and a critical analysis of its policy and practice with regard to their movement as well as the movement of goods. This review, based on dozens of policy papers, regulations and procedures, as well as numerous judgments handed down by Israeli courts, reveals that Israel maintains a deliberately deficient and ambiguous legal position with regard to the status of Gaza residents. Under this position, the residents are merely ‘foreign residents’ who have no particular rights in relation to Israel. I argue that this position establishes a major legal vacuum in the protection afforded to Gaza residents and is therefore incompatible with both the reality of Israel's continuous control over Gaza as well as the objects and norms of international humanitarian law.

The Obligation to Afford Reparation to Injured Individuals

2017 ◽  
Author(s):  
Carla Ferstman
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Treaties ◽  
The Law ◽  
The Right ◽  
Right Of Access ◽  
The Relationship

This chapter considers the consequences of breaches of human rights and international humanitarian law for the responsible international organizations. It concentrates on the obligations owed to injured individuals. The obligation to make reparation arises automatically from a finding of responsibility and is an obligation of result. I analyse who has this obligation, to whom it is owed, and what it entails. I also consider the right of individuals to procedures by which they may vindicate their right to a remedy and the right of access to a court that may be implied from certain human rights treaties. In tandem, I consider the relationship between those obligations and individuals’ rights under international law. An overarching issue is how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and particularly, their application to individuals.

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