Sanctions for violations of international humanitarian law: the problem of the division of competences between national authorities and between national and international authorities

2008 ◽  
Vol 90 (870) ◽  
pp. 359-370 ◽  
Author(s):  
Xavier Philippe
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Technical Aspects ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Broad Interpretation ◽  
Do So

AbstractThis article seeks to explore the reasons why sanctions for international humanitarian law (IHL) violations are so difficult to put into effect. Beyond the lack of willingness of states to do so for political reasons, some more technical aspects should be emphasized. The implementation of sanctions is too often seen solely through the prism of international law, without enough attention being paid to the complexity and diversity of municipal legal systems. The author puts forward the idea that efficiency starts with a clear sharing of competencies. Three main issues are discussed: first, the influence of the sharing of competencies within the state (between the judiciary, the executive and the legislature) on the implementation of sanctions; second, the broad interpretation of their powers by regional or international bodies in charge of monitoring and reviewing human rights protection; and, third, the creation of new or specific bodies in charge of dealing with and if necessary punishing gross violations of humanitarian law.

Conceptions And Interpretations of Human Rights in Europe and Asia: Normative Aspects

2010 ◽  
Vol 1 (2) ◽  
pp. 117-135
Author(s):  
Bożena Drzewicka
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Human Rights ◽  
The West ◽  
Human Rights Protection ◽  
Rights Protection ◽  
The World ◽  
International Human

Conceptions And Interpretations of Human Rights in Europe and Asia: Normative AspectsThe issue of confronting values between civilizations has become very important. It influences not only the level of international politics but also the international normative activity. It is very interesting for the modern international law and its doctrine. The most important factor of causing huge changes in the system of international law is still the international human rights protection and the international humanitarian law which is related to it. It is very difficult to create one catalogue of executive instruments and procedures but it is possible to influence the attitude toward the basic paradigms. The frictions appear from time to time and move to other planes. The West and Asia are still antagonists in the dialogue on the future of the world. The article is a contribution to the intercivilizational dialogue.

scholarly journals The Significance of the 2005 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation

2021 ◽  
pp. 78-98
Author(s):  
K. O. Keburiya ◽  
A. M. Solntsev
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
International Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Human Rights ◽  
Basic Principles ◽  
Human Rights Protection ◽  
Rights Protection ◽  
The Right

INTRODUCTION. The research analyzes the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Basic Principles and Guidelines) of December 16, 2005. The Article examines the stages of the adoption of this document, the concept, structure, basic provisions, as well as the importance for the development of modern international law, particularly in the field of human rights protection and international humanitarian law. Consequently, the Article provides a detailed analysis of the approach to the central subject of this document, that is, the right to a remedy and reparation, which is expressed in practical application by universal and regional bodies on human rights and in the field of humanitarian law. In this regard, the position of the right to a remedy and reparation in the complex of human rights is determined, as well as their interconnection and relation to each other.MATERIALS AND METHODS. The theoretical researches of the Russian and foreign experts in the field of international law have been analyzed in this very Article as well as the normative documents, recommendations, and decisions of the treaty bodies on human rights within the UN system, the law enforcement practice of universal and regional judicial and quasi-judicial bodies for the protection of human rights and in the field of international humanitarian law have also been studied. Such methods of scientific cognition as analysis and synthesis, the generalization method, the system-structural method, as well as the historical-legal and legal-technical methods have also been applied in this research.RESEARCH RESULTS. The Article reveals the significance and impact of the mechanism developed in the Basic Principles and Guidelines, in general, on the international human rights system. The Basic Principles and Guidelines are an international document, developed with the best practice of existing legal systems. It was adopted unanimously through the consensus reached by all parties concerned. The Basic Principles and Guidelines are aimed at codifying the provisions on the right to a remedy and reparation enshrined in various international treaties and as well as at developing a unified approach to these rights. Thus, the said international instrument does not create any new rules but classifies and uniforms the set of provisions on the right to a remedy and reparation. This nature of the Basic Principles and Guidelines makes them an attractive tool for international bodies in their law enforcement practice related to ensuring the right to a remedy and reparation. DISCUSSION ANDCONCLUSSIONS. The Basic Principles and Guidelines enshrine the responsibility of States in the field of human rights protection, when the second party to the conflict is individual, or individuals whose rights have been or may be violated. Therefore, the Basic Principles are focused on the interests of the victim of a violation of human rights, that is, they are deliberately humanistic and human rights oriented. The document provides a classification of victims to more adequately cover human rights mechanisms that ensure the protection of persons, individually or collectively. Further, it pays special attention to the protection of victims of gross violations of human rights. In addition, the Basic Principles and Guidelines list and describe forms of reparation for the victims of human rights violations.

Derecho Internacional Humanitario, Jurisdicción Penal Militar y Responsabilidad del Estado por violación a los Derechos Humanos. Un comentario a la Sentencia de la Corte Interamericana de Derechos Humanos «Masacre de Santo Domingo vs. Colombia»

2013 ◽  
pp. 149-164
Author(s):  
Jorge Ernesto ROA ROA
Keyword(s):  
Human Rights ◽  
Structural Features ◽  
The State ◽  
Human Rights Violations ◽  
Humanitarian Law ◽  
Santo Domingo ◽  
Military Conflict ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Derechos Humanos

LABURPENA: Kasuen ikerketa-metodologia erabiliz, Santo Domingo vs. Kolonbia epaiari buruzko iruzkinean, nagusiki, inter-amerikar esparruko giza eskubideen babesari lotutako egiturazko alderdiak aipatzen dira; besteak beste, eta bereziki: nola erabiltzen duen Inter-amerikar Auzitegiak Nazioarteko Zuzenbide Humanitarioa barne-gatazka armatuetako egoeretan; zer erlazio dagoen zigor-jurisdikzio militarraren eta Indar Armatuetako kideek egindako giza eskubideen urraketen ikerketaren artean; zein diren Estatuaren erantzukizuna aitortzeko egintzetarako baldintzak, eta zer elkarreragin dagoen nazioetako eta nazioarteko instantzia judizialen artean giza eskubideen urraketen ordainaz den bezainbatean. Egokiera-arrazoiengatik, alde batera utziko da Kolonbiako Estatuak urratu zituen Amerikar Konbentzioko eskubideetako bakoitzari buruz Giza Eskubideetarako Nazioarteko Auzitegiak erabakitakoaren azterketa. RESUMEN: Mediante la aplicación de la metodología de estudio de caso, el comentario a la Sentencia Santo Domingo vs. Colombia se centra en aspectos estructurales sobre la protección de los derechos humanos en el ámbito interamericano, en especial, el uso que la Corte Interamericana hace del Derecho Internacional Humanitario en situaciones que se producen en contextos de conflictos armados internos, la relación entre la jurisdicción penal militar y la investigación de las violaciones a los derechos humanos cometidas por miembros de las Fuerzas Armadas, los requisitos de los actos de reconocimiento de la responsabilidad del Estado y la interacción entre las instancias judiciales nacionales e internacionales en materia de reparación de violaciones a los derechos humanos. Por razones de oportunidad, se prescinde del análisis del pronunciamiento de la Corte IDH sobre cada uno de los derechos de la Convención Americana que fueron violados por el Estado de Colombia. ABSTRACT: By means of the problem based learning methodology, the analysis of the judgment Santo Domingo vs. Colombia focuses on structural features of the human rights protection within the Inter-American area, specially, the use made by the Inter-American Court of International Humanitarian Law in situations within contexts of internal military conflict, the relationship between military criminal jurisdiction and the investigation of human rights violations committed by Army forces, the requirements of the acts of recognition of the State responsibility and the interaction between the national and international judicial instances regarding the redress for human rights violations. For reasons of practical expediency, we will not analyze the judgment by the Inter-American Court on each of the rights of the American Convention breached by the State of Colombia.

Implementing Decisions of International Human Rights Institutions – Evidence from the United Nations Human Rights Committee

2019 ◽  
Vol 30 (3) ◽  
pp. 753-777
Author(s):  
Vera Shikhelman
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
The State ◽  
International Human Rights ◽  
Human Rights Protection ◽  
Rights Protection ◽  
International Human ◽  
The United Nations ◽  
Internal Capacity

Abstract In recent years, there has been an increasing amount of research about the implementation of international law. However, there has been almost no empirical research about implementing decisions of international human rights institutions. The decisions of those institutions are usually regarded as soft law, and states do not have a clear legal obligation to implement them. In this article, I bring original empirical data about how and when states implement decisions of the United Nations Human Rights Committee (HRC) in individual communications. I hypothesize that the following factors influence the readiness of states to implement the views of the HRC: (i) the level of democracy and human rights protection in the state; (ii) internal capacity; (iii) strength of civil society; (iv) type of remedy; (v) representation on the HRC; (6) subject matter of the communication. I find that the most important factor for implementing remedies granted by the Committee is the high human rights score of the state. The internal capacity of the state is also significant but to a lesser extent than found in previous studies. Also, I find a certain connection between the state being represented on the HRC and its willingness to implement the remedies.

Human Rights Abuses in Crimea under Russia’s Occupation

2014 ◽  
Vol 25 (3) ◽  
pp. 328-340 ◽  
Author(s):  
Yulia Gorbunova
Keyword(s):  
Human Rights ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Local Authorities ◽  
Human Rights Abuses ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Law And Policy ◽  
Russian Law

Russian and local authorities have severely curtailed human rights protection in Crimea since Russia began its occupation of the peninsula in February 2014. This article describes the human rights consequences of the extension of Russian law and policy to Crimea since the occupation. Russia has violated multiple obligations which it has as an occupying power under international humanitarian law – in particular in relation to the protection of people’s rights.

Economic, Social, and Cultural Rights in Armed Conflict

2014 ◽  
Author(s):  
Eibe Riedel
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Protection ◽  
Cultural Rights ◽  
Rights Protection ◽  
The Relationship ◽  
Two Bodies

This chapter examines the protection of economic, social, and cultural rights in armed conflict under international human rights law (IHRL) and international humanitarian law (IHL). It analyses the relationship between such human rights protection and IHL rules and suggests that, despite the differences in the scope of the applicability of these two bodies of law, they are intricately interwoven and have become more so in recent times. It also compares the implementation mechanisms of IHL and IHRL and shows that human rights procedures are more varied, comprehensive in scope, and potentially more effective.

scholarly journals IUS Post Bellum and The Imperative to Supersede IHL

AJIL Unbound ◽  
2016 ◽  
Vol 110 ◽  
pp. 193-198 ◽  
Author(s):  
Pablo Kalmanovitz
Keyword(s):  
Human Rights ◽  
Armed Conflicts ◽  
The Other ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Human Rights Protection ◽  
Rights Protection ◽  
The One

In recent debates about the interplay between international humanitarian law (IHL) and human rights law (IHRL), two broad camps have emerged. On the one hand, defenders of what may be called the convergence thesis have emphasized the inclusion of basic rights protections in the so-called “Geneva instruments” of IHL, as well as the role of human rights bodies in interpreting and amplifying rights protections in IHL through juridical or quasi-juridical interpretation and pronouncements. In armed conflicts, it is said, human rights apply concurrently and in ways that strengthen the protective constraints of IHL. Critics of the convergence thesis, on the other hand, have protested that pressing human rights obligations on state forces misunderstands the nature of both IHL and IHRL, and generates misplaced and impossibly onerous demands on belligerents—ultimately and perversely, the effect of emphasizing convergence may be less, not more, human rights protection.

scholarly journals The State Interests and the Responsibility of the State: some issues of interrelation

1970 ◽  
pp. 28-34
Author(s):  
Andrii Kubko
Keyword(s):  
Human Rights ◽  
International Law ◽  
Rule Of Law ◽  
The State ◽  
European Convention ◽  
Law And Order ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Effective Implementation ◽  
Social Interests

The matter of the responsibility of the state is of core importance in view of the modern legal system. The effective implementation of the responsibility of the state serves as a safeguard for securing a rule of law principle, the respect for human rights: absent such implementation these principles would be rendered nugatory. The state responsibility has evolved during the Ukraine’s move forward to the democratic, rule of law based nation. The country’s acceding to the international law instruments in the area of human rights protection, such as the European Convention and bilateral investment treaties has also contributed to the process of strengthening of the responsibility of the state. Currently the state’s responsibility is governed by the significant segment of the domestic as well as the international law and is capable of effectuated both through the national judiciary and international courts and tribunals. The matter of the responsibility of the state is closely interrelated with the issue of the state’s interests implementation. The interests of the state are recognized both in the law and in the theory. The effective implementation of such interests, e,g, of those related to securing the national sovereignty, law and order, territorial integrity, due functioning of the state machinery etc. is an objective necessity. At the same time the state, when implementing its interests, often has to restrict, limit, interfere with other social interests, e,g. those of private persons, social groups, civil society and the private rights. The measures implemented by the state on the legislative, governmental or judicial level aimed at implementation of the state’s interests result on many occasions in the conflict between the respective state interests and those affected by such measures. This situation is capable of giving rise to the state held responsible for the violation of the undertaking in the area of human rights protection from the domestic or international law perspective. Against the above background the state is to be said to be justified in implementing the measures restricting or interfering with the private, collective, social interests where such measures pursue not only the interest of the state, but collaterally the public interest. Thus the state interest, in order to justify the state’s above measures should be a public in nature and be of general social value.

The Misery of International Law

2018 ◽  
Author(s):  
John Linarelli ◽  
Margot E Salomon ◽  
Muthucumaraswamy Sornarajah
Keyword(s):  
Human Rights ◽  
International Law ◽  
Global Finance ◽  
Neoliberal Globalization ◽  
Human Rights Protection ◽  
Rights Protection ◽  
International Economic Law ◽  
Pluralist Approach ◽  
Do So

Bringing together three international law scholars, this book addresses how international law and its regimes of trade, investment, finance, and human rights promote poverty, inequality, and dispossession. It addresses how international law is implicated in the construction of misery; how it is producing, reproducing, and embedding injustice and narrowing the alternatives that might really serve humanity. Adopting a pluralist approach, this work confronts unconscionable dimensions of the global economic order, the false premises upon which they are built, and the role of international law in constituting and sustaining them. Combining insights from radical critiques, political philosophy, history, and critical development studies, the book explores the pathologies at work in international economic law today. It challenges conventional justifications of economic globalization and eschews false choices. It is not about whether one is ‘for’ or ‘against’ international trade, foreign investment, or global finance. The issue is to resolve how, if we are to engage in trade, investment, and finance, we do so in a manner that is accountable to persons whose lives are affected by international law. The deployment of human rights for their part must be considered against the ubiquity of neoliberal globalization under law, and not merely as a discrete, benevolent response to it. Before we can understand how human rights can create more just societies, we must first expose the ways in which they reflect capitalist society and how they assist in reproducing the underlying terms of immiseration that will continue to create the need for human rights protection. This is a book of critique and not of prescription, but among its aims is to compel the reader to think beyond existing assumptions and structures to usher in the possibility of reconstituting the brutal world, if international law can be made to accommodate that undertaking.

scholarly journals Features of the status and protection of the rights of persons living on the occupied territories

2021 ◽  
pp. 433-446
Author(s):  
Oleksiy Kresin ◽  
Iryna Kresina
Keyword(s):  
Human Rights ◽  
International Law ◽  
Private Property ◽  
The State ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Human

Based on the concluded study, the authors demonstrate that international law recognizes the unconditional responsibility of the power occupying or exercising effective (overall, general, de facto) control over the territory for the human rights of its population, and in particular the civilian population as protected persons. Such liability exists independently of the personal liability of the representatives (agents) of that State. In this case, the state, which exercises control over the territory, is automatically responsible for any actions of organizations under its control. At the same time, it is quite difficult to determine the share of responsibility of a sovereign state for the implementation of human rights on a territory over which that state does not exercise control. The legislation of Ukraine imposes responsibility for the protection and violations of human rights in the ORDLO on Russia under both international humanitarian law and international human rights law. International humanitarian law imposes on the occupying state the obligation to ensure all the minimum humanitarian needs of the population, its basic rights related to the preservation of life, health and dignity (with special emphasis on the rights of women and children), private property, effective protection of these rights and protection from any unlawful violence, preservation of the infrastructure of the territory. The occupying State cannot be absolved of responsibility for serious human rights violations, including war crimes and crimes against humanity. Decisions of international courts unequivocally extend these obligations, as well as obligations under international human rights law, to all forms of illegal control of the territory of another state. At the same time, the Constitution and legislation of Ukraine do not provide for the refusal of the state to ensure and protect human rights on its territory, even in conditions of state of emergency or war. Ukraine ensures the realization of the rights of the ORDLO population on the territory of other regions of Ukraine. Ukraine also protect and restore human rights in the territory of the ORDLO with the means provided by international law.

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