Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict

AbstractThere are three key deficiencies in the existing body of international humanitarian law (IHL) relating to protection of the environment during armed conflict. First, the definition of impermissible environmental damage is both too restrictive and unclear; second, there are legal uncertainties regarding the protection of elements of the environment as civilian objects; and third, the application of the principle of proportionality where harm to the environment constitutes ‘collateral damage’ is also problematic. These gaps present specific opportunities for clarifying and developing the existing framework. One approach to addressing some of the inadequacies of IHL could be application of international environmental law during armed conflict. The detailed norms, standards, approaches, and mechanisms found in international environmental law might also help to clarify and extend basic principles of IHL to prevent, address, or assess liability for environmental damage incurred during armed conflict.

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The redirection of attacks by defending forces

International Review of the Red Cross ◽

10.1017/s1816383121000679 ◽

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.

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Typology of armed conflicts in international humanitarian law: legal concepts and actual situations

International Review of the Red Cross ◽

10.1017/s181638310999021x ◽

2009 ◽

Vol 91 (873) ◽

pp. 69-94 ◽

Cited By ~ 54

Author(s):

Sylvain Vité

Keyword(s):

Armed Conflict ◽

Armed Conflicts ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Legal Practice ◽

Legal Regime ◽

Recent Developments ◽

Definition Of ◽

Legal Concepts

AbstractAlthough international humanitarian law has as its aim the limitation of the effects of armed conflict, it does not include a full definition of those situations which fall within its material field of application. While it is true that the relevant conventions refer to various types of armed conflict and therefore afford a glimpse of the legal outlines of this multifaceted concept, these instruments do not propose criteria that are precise enough to determine the content of those categories unequivocally. A certain amount of clarity is nonetheless needed. In fact, depending on how the situations are legally defined, the rules that apply vary from one case to the next. By proposing a typology of armed conflicts from the perspective of international humanitarian law, this article seeks to show how the different categories of armed conflict anticipated by that legal regime can be interpreted in the light of recent developments in international legal practice. It also reviews some actual situations whose categorization under existing legal concepts has been debated.

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International Humanitarian Law after Kosovo: Is lex lata Sufficient?

Nordic Journal of International Law ◽

10.1163/157181002400497858 ◽

2002 ◽

Vol 71 (1) ◽

pp. 39-54 ◽

Cited By ~ 2

Author(s):

Keyword(s):

Federal Republic ◽

Armed Conflict ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Civilian Population ◽

Definition Of

AbstractThis article discusses the principles of international humanitarian law in relation to the armed conflict that affected Kosovo and other parts of the Federal Republic of Yugoslavia in the spring of 1999. Since the armed action of the NATO countries exclusively existed of acts of air warfare, the discussion is focused on targeting and the interpretation of the definition of military objectives. The question is put whether lex lata proved to be satisfactory during the Kosovo crisis, or whether a de lege ferenda discussion is called for in order to achieve a better protection of the civilian population.

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Ch.Five War Crimes

Principles of International Criminal Law ◽

10.1093/law/9780198826859.003.0005 ◽

2020 ◽

Author(s):

Werle Gerhard ◽

Jeßberger Florian

Keyword(s):

International Law ◽

Armed Conflict ◽

Historical Development ◽

Criminal Responsibility ◽

War Crimes ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Criminal Sanctions ◽

Humanitarian Operations ◽

Definition Of

This chapter turns to war crimes. Here, the chapter narrows the definition of ‘war crimes’ to a violation of a rule of international humanitarian law that creates direct criminal responsibility under international law. It then proceeds to examine the historical development of war crimes as part of international humanitarian law as well as criminal sanctions, war crimes in non-international armed conflict, protected interests, and categories of war crimes. Afterward, the chapter describes the overall requirements for an offence to be deemed a war crime. Next, the chapter explores war crimes against persons, against property and other rights, and against humanitarian operations. It also discusses prohibited methods of warfare and the use of prohibited means of warfare. The chapter ends with a coverage of the multiplicity of offences.

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Who Guards the Guardians: Third Parties and the Law of Armed Conflict

The American Journal of International Law ◽

10.2307/2200562 ◽

1976 ◽

Vol 70 (1) ◽

pp. 41-61 ◽

Cited By ~ 11

Author(s):

David P. Forsythe

Keyword(s):

Armed Conflict ◽

International Committee ◽

Armed Conflicts ◽

Red Cross ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Geneva Conventions ◽

Law Of Armed Conflict ◽

Medical Transport ◽

Definition Of

The Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law in Armed Conflicts continues its attempts to supplement the 1949 Geneva Conventions, and in so doing to make the bulk of jus in bello consonant with factual reality. The first session of the Conference in 1974 provisionally adopted one highly important article out of 137 presented to the Conference by the International Committee of the Red Cross (ICRC). The second session in 1975 provisionally adopted 77 articles pertaining to such important subjects as the definition of a noninternational armed conflict, the protection of civilians and civilian goods, medical transport, environmental protection, and protection of journalists.

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OSAMA BIN LADEN: A WAR WAGED WITHIN THE GAPS IN INTERNATIONAL LAW

Pretoria Student Law Review ◽

10.29053/pslr.v5i.2141 ◽

2011 ◽

Author(s):

Reuben Cronjé ◽

Sarah McGibbon

Keyword(s):

International Law ◽

Armed Conflict ◽

International Humanitarian Law ◽

International Human Rights Law ◽

Humanitarian Law ◽

Human Rights Law ◽

International Human Rights ◽

International Human ◽

Osama Bin Laden ◽

Definition Of

The recent demise of arch-terrorist Osama bin Laden at the hands of United States (US) Navy Seals has given rise to furious debate as to the legality thereof. The broadest question to ask is whether bin Laden’s killing can be justified in terms of international law. Indeed, it is not even clear which legal paradigm should be utilised to answer this conundrum. In this article it will be shown that the American term, ‘war on terror’, does not fit neatly into the definition of either an international or non-international armed conflict and is therefore not comfortably governed by the rules of either. The concept of selfdefence, desperately needing clarification, will then be proposed as something which operates outside these two paradigms. The aforementioned discussions will lead to an analysis of whether the correct over-arching legal system to apply is international humanitarian law (the law of war) or international human rights law; or whether these two can legitimately operate concurrently. Finally, some brief thoughts will be added regarding the legality of the actual killing of bin Laden.

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Part I: Conclusion

10.1093/oso/9780198821946.003.0005 ◽

2018 ◽

Author(s):

Tilman Rodenhäuser

Keyword(s):

Eighteenth Century ◽

Civil War ◽

Basic Principle ◽

Armed Conflict ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Laws Of War ◽

Connected Group ◽

The Individual ◽

Contemporary Practice

Analysing the development of the concept of non-state parties to an armed conflict from the writings of philosophers in the eighteenth century through international humanitarian law (IHL) treaty law to contemporary practice, three threads can be identified. First, as pointed out by Rousseau almost two and a half centuries ago, one basic principle underlying the laws of war is that war is not a relation between men but between entities. Accordingly, the lawful objective of parties cannot be to harm opponents as individuals but only to overcome the entity for which the individual fights. This necessitates that any party to an armed conflict is a collective, organized entity and not a loosely connected group of individuals. Second, de Vattel already stressed that civil war is fought between two parties who ‘acknowledge no common judge’ and have no ‘common superior’ on earth....

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Insufficient Knowledge in Kunduz: The Precautionary Principle and International Humanitarian Law

Journal of Conflict and Security Law ◽

10.1093/jcsl/krz033 ◽

2020 ◽

Vol 25 (1) ◽

pp. 53-79

Author(s):

Emma J Marchant

Keyword(s):

Precautionary Principle ◽

Armed Conflict ◽

Federal Court ◽

International Humanitarian Law ◽

Humanitarian Law ◽

The Precautionary Principle ◽

Lack Of Information ◽

Operational Application ◽

Federal Court Of Justice ◽

Insufficient Knowledge

Abstract The targeting protocols applied by forces during armed conflict are some of the most secretive documents held by any military. However, their role in applying principles of international humanitarian law (IHL) means that they are key to understanding their development. This piece is primarily concerned with practical and operational application of the precautionary principle under IHL; how much knowledge is sufficient to carry out an attack lawfully during modern armed conflict. In order to establish if a standard has developed with the increase in intelligence, surveillance and reconnaissance technology, this piece uses the framework of an investigation into an incident in Kunduz, Afghanistan in 2009. I explore the difficulties of obtaining information post-incident, the differential standards expected by North Atlantic Treaty Organization (NATO) and the Bundesgerichtshof (German Federal Court of Justice), and the manner in which these can be evaluated through the principles of proportionality, distinction and precautions in attack. The piece looks at the interrelated issues raised by the Rules of Engagement and Tactical Directives, as well as the problems surrounding the clarity of intelligence available. I argue that this case is demonstrative of the failings inherent in the application and practical use of the precautionary principle outlined by IHL. The lack of transparency afforded in, and after, incidents of this nature prevents objective analysis and so the development of IHL can be obfuscated. I conclude that the lack of information following incidents of this kind confuses any intelligence standard that exists under IHL.

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Thresholds in Flux—the Standard for Ascertaining the Requirement of Organization for Armed Groups under International Humanitarian Law

Journal of Conflict and Security Law ◽

10.1093/jcsl/kraa024 ◽

2020 ◽

Author(s):

Yutaka Arai-Takahashi

Keyword(s):

Armed Conflict ◽

Geneva Convention ◽

Prisoners Of War ◽

Organizational Level ◽

International Humanitarian Law ◽

Threshold Condition ◽

Special Importance ◽

Humanitarian Law ◽

Armed Groups ◽

International Criminal Tribunals

Abstract The requirement of organization is supposed to be of special importance in international humanitarian law (IHL). In the situation of international armed conflict (IAC), this requirement is implicit as part of the collective conditions to be fulfilled by irregular/independent armed groups to enable their members to claim the prisoners of war status under Article 4 A(2) of the Third Geneva Convention. In a non-international armed conflict (NIAC), the eponymous requirement serves, alongside the requirement of intensity of violence, as the threshold condition for ascertaining the onset of a NIAC. While the requirement of organization has not caused much of disputes in IACs, the international criminal tribunals have shown a willingness to examine scrupulously if armed groups in NIACs are sufficiently organized. Still, this article argues that there is need for a nuanced assessment of the organizational level of an armed group in some specific phases of the ongoing armed conflict whose legal character switches (from an NIAC to an IAC, vice-versa, and from a NIAC to a law-enforcement model). It explores what rationales and argumentative model may be adduced to explain such varying standards for organization in different contexts.

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