Rethinking the Application of IHL in Non-International Armed Conflicts

2009 ◽  
Vol 42 (01) ◽  
pp. 8-45 ◽  
Author(s):  
David Kretzmer
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Armed Conflict ◽  
Geneva Convention ◽  
Armed Conflicts ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Regime ◽  
Conflict Model ◽  
Definition Of

The first step in application by treaty of IHL norms to non-international armed conflicts, adoption of Common Article 3 of the Geneva Conventions, 1949, was taken before the dramatic development of international human rights law (IHRL). The assumption was that unless international humanitarian law (IHL) norms were applied to such conflicts, the way States acted would be unrestrained by international law. With the development of IHRL this assumption is no longer valid. Application of IHL in such conflicts should therefore be re-examined. The Article argues that moving away from IHL in non-international armed conflicts should be based on the following principles: 1. In cases other than international armed conflicts, the presumption should be that the prevailing international legal regime is the human rights regime, based as it is on a law-enforcement model of law, rather than an armed conflict model. 2. The only justification for departure from that regime and for action under the armed conflict model, should be that the level and scope of organized armed violence are such that the State cannot reasonably be expected to act in accordance with the law-enforcement model. The rule of thumb in deciding whether this test has been met could be the definition of non-international armed conflicts adopted in APII. 3. There should be a return to the notion of minimum humanitarian standards or fundamental standards of humanity, which apply to all Parties in all situations, whether armed conflict, internal violence, disturbances, tensions and public emergencies. 4. A State should not be allowed to employ the armed conflict model, without at least some of the norms of protection that this model affords Parties in international armed conflicts. The ideal solution would be to demand that a State, which employs the armed conflict model has to draw the legal consequences and recognize as combatants those members of dissident forces who meet the substantive conditions of combatants under Article 4, paragraph 2 of Third Geneva Convention.

The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict

2007 ◽  
Vol 40 (2) ◽  
pp. 310-355 ◽  
Author(s):  
Cordula Droege
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Human ◽  
Historical Developments

International human rights law and international humanitarian law are traditionally two distinct branches of law, one dealing with the protection of persons from abusive power, the other with the conduct of parties to an armed conflict. Yet, developments in international and national jurisprudence and practice have led to the recognition that these two bodies of law not only share a common humanist ideal of dignity and integrity but overlap substantially in practice. The most frequent examples are situations of occupation or non-international armed conflicts where human rights law complements the protection provided by humanitarian law.This article provides an overview of the historical developments that led to the increasing overlap between human rights law and humanitarian law. It then seeks to analyse the ways in which the interplay between human rights law and humanitarian law can work in practice. It argues that two main concepts inform their interaction: The first is complementarity between their norms in the sense that in most cases, especially for the protection of persons in the power of a party to the conflict, they mutually reinforce each other. The second is the principle of lex specialis in the cases of conflict between the norms.

The Role of Necessity in International Humanitarian and Human Rights Law

2013 ◽  
Vol 47 (2) ◽  
pp. 225-251 ◽  
Author(s):  
Lawrence Hill-Cawthorne
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Current Article ◽  
The Relationship

The nature of armed conflict has changed dramatically in recent decades. In particular, it is increasingly the case that hostilities now occur alongside ‘everyday’ situations. This has led to a pressing need to determine when a ‘conduct of hostilities’ model (governed by international humanitarian law – IHL) applies and when a ‘law enforcement’ model (governed by international human rights law – IHRL) applies. This, in turn, raises the question of whether these two legal regimes are incompatible or whether they might be applied in parallel. It is on this question that the current article focuses, examining it at the level of principle. Whilst most accounts of the principles underlying these two areas of law focus on humanitarian considerations, few have compared the role played by necessity in each. This article seeks to address this omission. It demonstrates that considerations of necessity play a prominent role in both IHL and IHRL, albeit with differing consequences. It then applies this necessity-based analysis to suggest a principled basis for rationalising the relationship between IHL and IHRL, demonstrating how this approach would operate in practice. It is shown that, by emphasising the role of necessity in IHL and IHRL, an approach can be adopted that reconciles the two in a manner that is sympathetic to their object and purpose.

Challenges in applying human rights law to armed conflict

2005 ◽  
Vol 87 (860) ◽  
pp. 737-754 ◽  
Author(s):  
Noam Lubell
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Cultural Rights ◽  
Joint Application ◽  
Starting Point ◽  
The Relationship

AbstractThe debates over the relationship between International Humanitarian Law and International Human Rights Law, have often focused on the question of whether human rights law continues to apply during armed conflict, and if so, on how these two bodies of law can complement each other. This article takes the continuing applicability of human rights law as an accepted and welcome starting point, and proceeds to lay out some of the challenges and obstacles encountered during the joint application of IHL and Human Rights Law, that still need to be addressed. These include extra-territorial applicability of human rights law; the mandate and expertise of human rights bodies; terminological and conceptual differences between the bodies of law; particular difficulties raised in non-international armed conflicts; and the question of economic, social and cultural rights during armed conflict.

Starvation in Armed Conflicts

2019 ◽  
Vol 17 (4) ◽  
pp. 723-752 ◽  
Author(s):  
Simone Hutter
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Military Operations ◽  
International Human Rights ◽  
International Human ◽  
The Right

Abstract Armed conflict can cause food shortages, which continue long after the fighting is over, and increase the chance that a famine may occur. When it occurs during the context of an armed conflict, death resulting from hunger is tolerated by the international community. Yet, the prevention or alleviation of famines, even within environmentally precarious regions, is often within human control. This gives rise to the following questions. Can a state use the outbreak of an armed conflict as an excuse to remain passive while starvation takes its course? Is it justified for a state to allocate most of its resources to its military operations, while claiming to have difficulties to collect sufficient resources to meet its minimum core obligations under international human rights law? This article aims to clarify these complex questions and elaborates on how the framework of human rights law includes provisions to prevent starvation in armed conflicts. With a focus on the right to food, this analysis scrutinizes the human rights-based obligations to respect, protect and fulfil, which impose clear duties on states with respect to famines. As it is generally accepted that international human rights law continues to apply in situations of armed conflict, both human rights law and international humanitarian law apply simultaneously in these scenarios. The analysis thus also examines the complex relationship between obligations under human rights law and humanitarian law and the influence of the former on the assessment of latter. Finally, the article touches upon the scope of obligations held by armed non-state actors.

scholarly journals HUMANITARIAN LAW, HUMAN RIGHTS LAW AND THE BIFURCATION OF ARMED CONFLICT

2015 ◽  
Vol 64 (2) ◽  
pp. 293-325 ◽  
Author(s):  
Lawrence Hill-Cawthorne
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Human ◽  
Over Time

AbstractThis article offers a fresh examination of the distinction drawn in international humanitarian law (IHL) between international and non-international armed conflicts. In particular, it considers this issue from the under-explored perspective of the influence of international human rights law (IHRL). It is demonstrated how, over time, the effect of IHRL on this distinction in IHL has changed dramatically. Whereas traditionally IHRL encouraged the partial elimination of the distinction between types of armed conflict, more recently it has been invoked in debates in a manner that would preserve what remains of the distinction. By exploring this important issue, it is hoped that the present article will contribute to the ongoing debates regarding the future development of the law of non-international armed conflict.

scholarly journals Amnesty for combatants involved in armed condlicts: between peace and justice

2020 ◽  
pp. 418-421
Author(s):  
Diana Ivzhenko
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Criminal Liability ◽  
War Crimes ◽  
Armed Conflicts ◽  
Crimes Against Humanity ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Post Conflict ◽  
Peace And Justice

The article deals with amnesty for combatants, who committed crimes in international armed conflicts or armed conflicts of non-international character in foreign countries, there are also explored conclusions and recommendations of international government and non-government organisations on exemption combatants from criminal liability. It’s obviously, that amnesty does not apply to the perpetrators of such crimes as genocide, crimes against humanity, war crimes, torture, enforced disappearances, and some others. Considering the extended armed conflict in the east of Ukraine, it’s extremely necessary to examine the institution of amnesty within the context of diplomatic and peaceful measures of ending the conflict. As far as Ukraine is concerned, amnesty in Ukraine is a step towards general reconciliation of the society given serious work and understanding within the society is completed. Moreover, in article discussed the question on specificities of amnesty's implementation in context of armed conflict on temporary occupied territories of Donetsk and Luhansk regions. Special attention is focused on binding terms of amnesty for combatants. As a conclusion, author of this article states on some necessary conditions for implementing the amnesty for combatants in post-conflict society. These conditions are: Disarmament, demobilisation, reintegration. This is one of the most controversy and difficult steps. Combatants only then are going to be disarmed when they feel their safety under international and national law. There is a list of human rights violations that may not be pardoned by the amnesty: genocide, crimes against humanity and war crimes. The nation and victims of the armed conflict have to know the truth about all violations of human rights according to international humanitarian law and international human rights law. It’s important to understand, that amnesty is one of the institutions in oust-conflict society, that aimed for the end of the conflict, stabilisation of the politica; situation in the country, disarming and reintegration.

The Duty to Investigate Violations of the Right to Life in Armed Conflicts in the Jurisprudence of the Inter-American Court of Human Rights

2018 ◽  
Vol 51 (2) ◽  
pp. 169-191
Author(s):  
Giovanna Maria Frisso
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
Access To Justice ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Right To Life ◽  
State Compliance ◽  
The Right ◽  
Right Of Access

This article explores how the Inter-American Court of Human Rights (the Court) has dealt with allegations of violations of the right to life during an armed conflict and, in particular, how it has dealt with allegations of violation of the obligation to investigate such allegations. The article notes that international humanitarian law (IHL) was initially used by the Court to strengthen the general obligations of states to protect the rights guaranteed by the American Convention on Human Rights (ACHR). Later IHL began informing the interpretation of specific rights. This change has been more significant in relation to the interpretation of the right to life under the ACHR than in the examination of state compliance with the right of access to justice, which encompasses the duty to investigate allegations of violations of the right to life during an armed conflict. The analysis of the Court's jurisprudence demonstrates that the different ways in which the Court has addressed the relationship between IHL and international human rights law (IHRL) have been informed by its primary effort to ensure that the interpretation of the ACHR provides the widest protection possible to individual rights.

scholarly journals The redirection of attacks by defending forces

2021 ◽  
pp. 1-18
Author(s):  
Tsvetelina van Benthem
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Prima Facie ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Definition Of ◽  
The Relationship

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.

25. International humanitarian law

2017 ◽  
Author(s):  
Sandesh Sivakumaran
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Human ◽  
The Relationship ◽  
Two Bodies

This chapter examines international humanitarian law, the principal body of international law which applies in times of armed conflict, and which seeks to balance the violence inherent in an armed conflict with the dictates of humanity. International humanitarian law protects the civilian population from the ravages of conflict, and establishes limitations on the means and methods of combat. The chapter is organized as follows. Section 2 considers the nature of international humanitarian law and identifies some of its cardinal principles and key rules. Section 3 explores the similarities and differences between international humanitarian law and international human rights law, comparing and contrasting their historical origins and conceptual approaches. Given that international humanitarian law applies during armed conflict, Section 4 considers whether there is a need for international human rights law also to apply. Section 5 ascertains the relationship between the two bodies of law and Section 6 considers some of the difficulties with the application of international human rights law in time of armed conflict.

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