scholarly journals THE IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN LAW: CURRENT AND INHERENT CHALLENGES

2007 ◽  
Vol 10 ◽  
pp. 45-73 ◽  
Author(s):  
Marco Sassòli
Keyword(s):  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Asymmetric Conflicts ◽  
The Media ◽  
The Law

AbstractThe implementation of international humanitarian law (IHL) is confronted with many challenges. Some of them are inherent since IHL applies to armed conflicts: a situation must be classified before IHL can be applied. Existing implementation mechanisms either do not function at all or have their limits. In certain conflicts, such as asymmetric conflicts, and with regard to certain players, such as armed groups, it is particularly difficult to obtain respect of IHL. Beyond that, there is a perhaps even more dangerous challenge in perception.The gap between the burgeoning promises of protection by the law made by doctrine, jurisprudence and sometimes even by States, and the systematic non-respect of that law, which (in the author's view wrongly) transpires from the media and NGO reports, undermines the credibility of the law and the willingness to respect it. The author advocates ways to reduce this gap.

scholarly journals Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law

2010 ◽  
Vol 1 (1) ◽  
pp. 5-51 ◽  
Author(s):  
Marco Sassòli
Keyword(s):  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Sense Of Ownership ◽  
International Responsibility ◽  
The Law ◽  
And Control ◽  
International Character ◽  
Monitor And Control

AbstractMost contemporary armed conflicts are not of an international character. International Humanitarian Law (IHL) applicable to these conflicts is equally binding on non-State armed groups as it is on States. The legal mechanisms for its implementation are, however, still mainly geared toward States. The author considers that the perspective of such groups and the difficulties for them in applying IHL should be taken into account in order to make the law more realistic and more often respected. It is submitted that the law is currently often developed and interpreted without taking into account the realities of armed groups. This contribution explores how armed groups could be involved in the development, interpretation and operationalization of the law. It argues that armed groups should be allowed to accept IHL formally, to create – amongst other things – a certain sense of ownership. Their respect of the law should also be rewarded. Possible methods to encourage, monitor and control respect of IHL by armed groups are described. The author suggests in particular that armed groups should be allowed and encouraged to report on their implementation of IHL to an existing or newly created institution. Finally, in case of violations, this contribution proposes ways to apply criminal, civil and international responsibility, including sanctions, to non-State armed groups.

Protecting the Environment from the Perspective of the Law of Armed Conflict

2021 ◽  
Vol 23 (2-3) ◽  
pp. 252-260
Author(s):  
Bartłomiej Krzan
Keyword(s):  
Climate Change ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Normative Framework ◽  
Law Of Armed Conflict ◽  
The Law

Abstract The present study analyses climate change from the perspective of the law of armed conflict. Climate may be both a victim and a means of warfare. Arguably, the existing normative framework is broad enough to allow for accommodating climate change. It cannot be denied that the environment is easily harmed, or at least jeopardized in times of armed conflicts. Despite the obvious lack of explicit references in the instruments of international humanitarian law, it may be argued that it is possible to fit climate change in. The accompanying analysis addresses the respective potential and the ensuing hurdles.

18 The Law of Neutrality

2021 ◽  
Author(s):  
Bothe Michael
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
The Other ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Neutral State ◽  
The Will ◽  
The Law ◽  
The Right ◽  
The Relationship

This chapter focuses on rules of the law of neutrality concerning the protection of the victims of armed conflicts, which must be considered as part of international humanitarian law. ‘Neutrality’ describes the particular status, as defined by international law, of a state not party to an armed conflict. This status entails specific rights and duties in the relationship between the neutral and the belligerent states. On one hand, there is the right of the neutral state to remain apart from, and not to be adversely affected by, the conflict. On the other hand, there is the duty of non-participation and impartiality. The right not to be adversely affected means that the relationship between the neutral and belligerent States is governed by the law of peace, which is modified only in certain respects by the law of neutrality. In particular, the neutral State must tolerate certain controls in the area of maritime commerce. The duty of non-participation means, above all, that the state must abstain from supporting a party to the conflict. This duty not to support also means that the neutral state is under a duty not to allow one party to the conflict to use the resources of the neutral state against the will of the opponent.

scholarly journals Lessons for the law of armed conflict from commitments of armed groups: identification of legitimate targets and prisoners of war

2011 ◽  
Vol 93 (882) ◽  
pp. 463-482 ◽  
Author(s):  
Sandesh Sivakumaran
Keyword(s):  
Armed Conflict ◽  
Ad Hoc ◽  
Prisoners Of War ◽  
International Standards ◽  
Armed Conflicts ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Rules Set

AbstractArmed groups frequently issue ad hoc commitments that contain a law of armed conflict component. These commitments detail the obligation of the relevant armed group to abide by international humanitarian law, the Geneva Conventions, or particular rules set out in the commitment. They commit the group to abide by international standards, sometimes exceed international standards, or in certain respects violate international standards. Although these commitments are often overlooked, they offer certain lessons for the law of armed conflict. This article considers the commitments of armed groups with respect to two specific areas of the law that are either of contested interpretation or seemingly inapplicable to non-international armed conflicts, namely the identification of legitimate targets and the prisoners of war regime.

scholarly journals DEBATE: Should the obligations of states and armed groups under international humanitarian law really be equal?

2011 ◽  
Vol 93 (882) ◽  
pp. 425-442 ◽  
Author(s):  
Marco Sassòli ◽  
Yuval Shany
Keyword(s):  
Legal Reasoning ◽  
Legal Protection ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Humanitarian Action ◽  
Third Dimension ◽  
Image Position

By introducing a new ‘debate’ section, the Review hopes to contribute to the reflection on current ethical, legal, or practical controversies around humanitarian issues. This section will expose readers to the key arguments concerning a particular contemporary question of humanitarian law or humanitarian action.For this first debate, the Review asked two members of its Editorial Board, Professor Marco Sassòli and Professor Yuval Shany, to debate on the topic of equality of states and armed groups under international humanitarian law. Professor René Provost comments on this debate, adding a third dimension to the discussion.The crucial question is whether it is realistic to apply the current legal regime to non-state armed groups. How can armed groups, with sometimes very limited means and low levels of organization, meet the same obligations as states? What are the incentives for armed groups to respect rules that their opponents have enacted? Why should they respect any rules when the very fact of taking arms against the state already makes them ‘outlaws’?All participants in this discussion share an aspiration to ensure better legal protection for all those affected by armed conflicts. Professors Sassòli and Shany have agreed to present two ‘radically’ opposed stances, Professor Sassòli maintaining that equality should be reconsidered and replaced by a sliding scale of obligations, and Professor Shany rebutting this assertion. Professor Provost then reflects on the stances put forward by the two debaters and invites us to revisit the very notion of equality of belligerents.The debaters have simplified their complex legal reasoning for the sake of clarity and brevity. Readers of the Review should bear in mind that the debaters actual legal positions are more nuanced than they may appear in this debate.

Proportionality in Armed Conflicts: A Principle in Need of Clarification?

2012 ◽  
Vol 3 (1) ◽  
pp. 73-123
Author(s):  
Ben Clarke
Keyword(s):  
Decision Making ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Guidance Document ◽  
Humanitarian Law ◽  
The Law ◽  
Proportionality Principle

In their quest to find ways to reduce civilian casualties during armed conflict, States often emphasise the importance of compliance with fundamental rules of international humanitarian law that apply during the conduct of hostilities. Chief among them are the rules of distinction, proportionality and precaution. This contribution focuses on the proportionality principle. It examines whether there is a need for clarification or development of this rule. After highlighting reasons why clarification of the law on proportionality is necessary, the author proposes a guidance document on proportionality decision-making in armed conflict. To lay the foundation for such a document, the author identifies a range of issues that could be addressed in the document.

scholarly journals Lest We Forget the Realm of Armed Conflicts: A Guided Discussion on the Law of Armed Conflict/International Humanitarian Law

2021 ◽  
pp. 1-50
Author(s):  
Yugichha Sangroula
Keyword(s):  
Armed Conflict ◽  
Theory And Practice ◽  
Law Students ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Initial Attempt ◽  
Law Of Armed Conflict ◽  
Key Issues ◽  
The Law

The paper is a doctrinal and a dialectic endeavour to comment on LOAC/IHL from a bird’s-eye view. It is the author’s initial attempt to contribute to an ongoing discussion on the theory and practice of LOAC/IHL, reflecting on the key issues relevant to Nepal. The question-answer approach is based on the author’s interactions with law students, colleagues, members from the police, military, victims, bureaucrats and politicians in the Nepali diaspora. The paper will benefit from the readers’ critique.

Normative Underpinnings

2018 ◽  
Author(s):  
Kubo Mačák
Keyword(s):  
Civil Wars ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
State Actors ◽  
The Law

This chapter considers the normative underpinnings of the present-day regulation of combatancy. It argues that a wholesale denial of combatant status to fighters in internationalized armed conflicts would be incongruous with the principles of distinction and equal application of the law. The chapter then considers specific objections against the extension of combatant status to non-state actors from the perspective of internationalized armed conflicts. It argues that although some of the objections carry certain weight in the context of traditional civil wars, their effect in internationalized armed conflicts is significantly weaker. The chapter thus shows that in principle, the availability of combatant status to fighters in internationalized armed conflicts is in accordance with the normative underpinnings of International Humanitarian Law.

19 The Law of Non-International Armed Conflict

2021 ◽  
Author(s):  
Fleck Dieter
Keyword(s):  
Twentieth Century ◽  
Armed Conflict ◽  
Use Of Force ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Basic Principles ◽  
Progressive Development ◽  
Law Of Armed Conflict ◽  
The Law

This chapter provides an overview of the law of non-international armed conflicts and its progressive development. The law of armed conflict, as it has developed in the last part of the nineteenth and the first part of the twentieth century, deals predominantly with wars between states. Its basic principles and rules are, however, likewise relevant for non-international armed conflicts: in all armed conflicts, elementary considerations of humanity must be respected under all circumstances, in order to protect victims, to reduce human sufferings, and to minimize damages to objects vital for survival. Therefore, the parties to the conflict do not have an unlimited choice of the means and methods of conducting hostilities, nor of selecting the targets to be attacked, and they must protect the victims from the effects and consequences of war. This concept is reflected in the principles and rules of international humanitarian law, to be respected by all and, while taking military necessity into account, limiting the use of force for humanitarian reasons. Parties to the conflict respecting these principles and rules are considered as respecting the international order, while those seriously violating them will commit internationally wrongful acts and perpetrators are liable to punishment.

Authorizing Attacks in Response to Terrorist Attacks

2019 ◽  
pp. 21-39
Author(s):  
Patrycja Grzebyk
Keyword(s):  
Use Of Force ◽  
The United States ◽  
Armed Conflicts ◽  
Terrorist Attacks ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Legal Justification ◽  
The Law ◽  
Legal Constraints

Some states (mainly the United States and Israel) intermingle the terms/principles of the law of armed conflicts/international humanitarian law regime and the regime of the law on the use of force in order to avoid legal constraints and to justify attacks against non-state armed groups in violation of the sovereignty of other states and the rights of particular persons. The counterterrorism strategy is created under the influence of legal arguments, and thus the recent trend of abusive interpretation of the regimes could encourage decision-makers to resort to military measures instead of using less intrusive instruments such as criminal cooperation. This tendency is more visible in times of crisis. States are then still interested in having legal justification for their actions, but they tend to see the role of law differently: the law is expected to serve the authorities, rather than to guide them, when the state’s fundamental interest—its security—is under threat.

Sign in / Sign up

Export Citation Format

Share Document