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?

4 Domains of Warfare

2020 ◽  
Author(s):  
McCosker Sarah
Keyword(s):  
Armed Conflict ◽  
Historical Development ◽  
Outer Space ◽  
Legal Regulation ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Military Necessity ◽  
Rules And Principles ◽  
Over Time

This chapter examines ‘domains’ of warfare, which are generally understood as the operational environments in which armed conflict occurs, and to which international humanitarian law (IHL) therefore applies. Until recent decades, domains of armed conflict have been largely predicated on geospatial conceptions, denoting the physical places where armed conflict has customarily occurred: land, sea, and air. General IHL applies across all these areas—including the fundamental principles of humanity, military necessity, and proportionality; restrictions or prohibitions of certain means and methods of warfare; and basic rules requiring humane treatment of persons and respect for civilians and civilian property. Over time, however, the particular exigencies of land, sea, and air warfare have led to the development of some specific IHL rules and principles tailored to each of those environments. Discussing domains of armed conflict therefore offers a window into the historical development of IHL. It shows how the emergence of new operational environments and new means and methods of armed conflict catalyses efforts at legal regulation, which can lead to the development of new domains or sub-sets of IHL. The chapter then considers how the idea of a domain might apply to armed conflict in outer space, and armed conflict involving cyber operations and other emerging capabilities.

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.

The Law of Armed Conflict

2021 ◽  
Author(s):  
Gary D. Solis
Keyword(s):  
Armed Conflict ◽  
International Humanitarian Law ◽  
Weapon System ◽  
Humanitarian Law ◽  
Law Of War ◽  
Law Of Armed Conflict ◽  
The Us ◽  
Us Supreme Court ◽  
Legal Opinions ◽  
The Law

Newly revised and updated, The Law of Armed Conflict, introduces students to the law of war in an age of terrorism. What law of armed conflict (LOAC) or its civilian counterpart, international humanitarian law (IHL), applies in a particular armed conflict? Are terrorists bound by that law? What constitutes a war crime? What (or who) is a lawful target and how are targeting decisions made? What are 'rules of engagement' and who formulates them? How can an autonomous weapon system be bound by the law of armed conflict? Why were the Guantánamo military commissions a failure? Featuring new chapters, this book takes students through these topics and more, employing real-world examples and legal opinions from the US and abroad. From Nuremberg to 9/11, from courts-martial to the US Supreme Court, from the nineteenth century to the twenty-first, the law of war is explained, interpreted, and applied with clarity and depth.

Rethinking the Permissive Function of Military Necessity in Internal Non-International Armed Conflict

2018 ◽  
Vol 51 (2) ◽  
pp. 235-259 ◽  
Author(s):  
Kosuke Onishi
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Right To Life ◽  
Jus Ad Bellum ◽  
Military Necessity ◽  
The Right

This article advocates limiting the permissive impact of military necessity on the right to life. It has been argued that military necessity justifies deviations from international human rights law (IHRL) because this body of law is inadequate to deal with the necessities arising out of armed conflict. The article argues that while this rationale is convincing, it should not mean that conduct that is lawful under humanitarian law is necessarily also lawful under human rights law. The degree of force that may be used under international humanitarian law (IHL) is often superfluous. In some instances such violence is tempered by thejus ad bellum, but this body of law does not apply in internal non-international armed conflict (NIAC). The article concludes by exploring the potential for IHRL to play a role in tempering superfluous violence in NIAC that is similar to that whichjus ad bellumplays in international conflict.

Tracing the Historical and Legal Development of the Levée en Masse in the Law of Armed Conflict

2017 ◽  
Vol 19 (3) ◽  
pp. 329-361 ◽  
Author(s):  
Emily Crawford
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Civilian Population ◽  
Legal Development ◽  
Law Of Armed Conflict ◽  
History Of ◽  
The Law

Levée en masse – the spontaneous uprising of the civilian population against an invading force – has long been a part of the modern law of armed conflict with regard to determining who may legitimately participate in armed conflict. The concept originated during the revolutionary wars in America and France, and was incorporated into the first codified rules of armed conflict. However, despite the prevalence of the category of levée en masse in the modern laws of armed conflict, there have been few, if any, instances of levée en masse taking place in modern armed conflicts. This article examines how and why the category of levée en masse developed. In doing so, this article situates the concept and evolution of levée en masse within the history of international humanitarian law more generally.

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.

scholarly journals Protection of the environment in times of international armed conflict: الحماية الدولية للبيئة من التلوث في زمن النزاعات المسلحة

2021 ◽  
Vol 5 (21) ◽  
pp. 181-170
Author(s):  
Maria Mohammed Mahmoud Zaki Maria Mohammed Mahmoud Zaki
Keyword(s):  
Armed Conflict ◽  
Modern Science ◽  
Armed Conflicts ◽  
Weapons Of Mass Destruction ◽  
International Humanitarian Law ◽  
Military Force ◽  
Humanitarian Law ◽  
Mass Destruction ◽  
Military Necessity ◽  
Scientific Fields

The study aims to identify the most important international principles for protecting the environment in times of armed conflict, Whereas the environment is an ecosystem that consists of an interconnected group that differs in size and type of organisms and organic and inorganic elements that are balanced in a relatively stable manner. Since man is one of the most important living creatures, which necessitates human protection to preserve the environment and its balance, the international community has set controls for the use of military force, since wars are an inevitable evil, Among the most important of them is the principle of balance between military necessity and humanitarian considerations. And we used the analytical method in the study by analyzing and studying the principles of international humanitarian law. And from the above, we divided the study into three demands, the first demands dealt with the concept of military necessity in international humanitarian law, while we discussed in the second demands the concept of the principle of balance in international humanitarian law, and in the third demands we dealt with the principle of balance between military necessity and humanitarian considerations. One of the most important findings of this study is that the principle of military necessity protects the natural and civilian environment through its association with the principle of humanity, which constitute the principle of balance between military necessity and humanitarian considerations, The principle of balance between military necessity and humanitarian considerations regulates the use of weapons during armed conflicts and prohibits the use of weapons of mass destruction to protect the environment during armed conflicts. The researcher recommends that the United Nations Organization renew international agreements prohibiting the use of weapons of mass destruction in line with modern science and developments in scientific fields.

The Law of Armed Conflict Implications of Covered or Concealed Cyber Operations

2019 ◽  
pp. 273-306
Author(s):  
Gary P. Corn ◽  
Peter P. Pascucci
Keyword(s):  
Detailed Analysis ◽  
Armed Conflict ◽  
Law Of War ◽  
Military Necessity ◽  
Law Of Armed Conflict ◽  
State Practice ◽  
The Law ◽  
Thoughtful Discussion ◽  
Unique Domain

This chapter addresses the complex Law of War issues of distinction as applied to cyber operations. Cyberspace is now widely recognized as an operational domain of conflict and states are adopting cyber capabilities and operational constructs as means and methods of warfare at an increasing rate. Owing to the nature of this new and unique domain, operations security is at a premium. The use of cover and concealment and, at some level, the deception inherent thereto directly implicates in novel ways the traditional LOAC rules designed to ensure respect for the principle of honor in the conduct of hostilities and to protect civilians and civilian objects from the dangers of war. These rules must be interpreted in light of the unique aspects of cyberspace and the distinctive challenges it poses. A better understanding of how the cardinal principle of distinction and the LOAC rules meant to implement it awaits elucidation through state practice and opinion. In the meantime, thoughtful discussion and detailed analysis of the issues of perfidy, ruses, and the passive precautions rule are necessary to ensure that the spirit and intent of the LOAC are properly balanced against military necessity.

Prisoners of War: A Comparative Study of the Principles of International Humanitarian Law and the Islamic Law of War

2009 ◽  
Vol 9 (4) ◽  
pp. 623-649 ◽  
Author(s):  
Mohamed El Zeidy ◽  
Ray Murphy
Keyword(s):  
Armed Conflict ◽  
Islamic Law ◽  
Geneva Convention ◽  
Prisoners Of War ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Laws Of War ◽  
Law Of War ◽  
The Third ◽  
The Individual

AbstractThe treatment of prisoners of war (POWs) has been an issue of concern to all those engaged in armed conflict for centuries. The problem of how to deal with POWs is not a new one and their treatment is a question with which the laws of war have been particularly concerned. Not all persons captured in the course of armed conflict are entitled to POW status. Generally, only persons recognized as "combatants" in accordance with international humanitarian law are entitled to POW status upon capture by an adverse party in armed conflict. Under the Third Geneva Convention of 1949, POWs are the responsibility of the capturing power from the moment of capture, and not of the individual or military units, which actually capture them. POWs must at all times be humanely treated and the Third Convention provides clear rules in relation to their camps, quarters, food and clothing. The principles embodied in the Islamic Law of War also provide a comprehensive framework for the protection of POWs. Nevertheless, there are some important differences between Islamic Law of War and the principles contained in the Geneva Conventions and Hague Regulations, especially in relation to triggering the application of the laws of war and the concept of armed conflict. What is most striking is the similarity in the protection provided by both legal frameworks. However, the single biggest challenge to both regimes remains the implementation of the relevant principles.

7 International Humanitarian Law and the Conduct of Hostilities

2020 ◽  
Author(s):  
Schmitt Michael N
Keyword(s):  
Armed Conflict ◽  
New Technologies ◽  
Legal Issues ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Military Necessity ◽  
Freedom Of Action

This chapter explores the principles and rules of international humanitarian law (IHL) that govern the conduct of hostilities by states and other participants during an armed conflict. The term ‘conduct of hostilities’ refers to the application of force in the course of such conflicts. In particular, it encompasses the various methods (tactics) and the means (weapons) that are used during the hostilities. Those aspects of IHL that address the conduct of hostilities can best be understood by reference to a normative typology consisting of foundational principles, general principles, and rules. There are two foundational principles underlying the IHL applicable to the conduct of hostilities: military necessity and humanity. Whereas foundational principles broadly inform IHL, general IHL principles are the sources of individual rules. Rules are the instruments by which states, the sole generators of IHL, agree to limit their freedom of action, and that of other participants, during an armed conflict. The chapter then looks at certain new technologies warfare and highlights the key legal issues they raise with respect to the conduct of hostilities.

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