The regulation of non-international armed conflicts: Can a privilege of belligerency be envisioned in the law of non-international armed conflicts?

2014 ◽  
Vol 96 (893) ◽  
pp. 29-66 ◽  
Author(s):  
Claus Kreβ ◽  
Frédéric Mégret
Keyword(s):  
Civil War ◽  
International Law ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Jus In Bello ◽  
The Creation ◽  
State Actors ◽  
The Law

The Debate section of the Review aims to contribute to reflection on contemporary questions of humanitarian law, policy or action. In this issue of the Review, we invited two experts in international humanitarian law (IHL) – Claus Kreβ and Frédéric Mégret – to debate on how IHL applicable in non-international armed conflict (NIAC) should develop. In the two pieces that follow, Professor Kreβ submits for debate a new norm of international law outlawing NIACs – a jus contra bellum internum – with a corresponding set of rules applicable in NIACs – a jus in bello interno. The jus in bello interno would give the “privilege of belligerency” – akin to combatants' privilege in international armed conflicts – to non-State actors in NIACs, providing an incentive for them to comply with these new rules of civil war. Frédéric Mégret critically examines the proposed privilege of belligerency, pointing out its problematic aspects and positing that the creation of such a privilege is, in fact, not desirable.

3 Scope of Application of International Humanitarian Law

2021 ◽  
Author(s):  
Kleffner Jann K
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Public International Law ◽  
Scope Of Application ◽  
The Law ◽  
Humanitarian Values ◽  
The One

This chapter addresses the scope of application of international humanitarian law. International humanitarian law regulates, and as a rule applies in times of, armed conflicts. Accordingly, it is also referred to as the law of armed conflict or jus in bello. The three interchangeable terms denote the only branch of public international law that is specifically designed to strike a balance during armed conflicts between preserving humanitarian values, on the one hand, and considerations of military necessity, on the other by protecting those who do not or no longer directly participate in hostilities and by limiting the right of parties to the conflict to use armed force only to the amount necessary to achieve the aim of the conflict, which is to weaken the military potential of the enemy. While international humanitarian law specifically regulates situations of armed conflicts, it does not automatically supersede all other areas of public international law in the event of an armed conflict. The chapter then focuses on the law enforcement aspects, the continued relevance of rules of international law of peace during armed conflict, and the relevance of humanitarian law in peacetime and post-conflict military operations.

Displacement of Civilians during Armed Conflict in the Light of the Case Law of the Eritrea-Ethiopia Claims Commission

2009 ◽  
Vol 22 (4) ◽  
pp. 823-851 ◽  
Author(s):  
ALLEHONE MULUGETA ABEBE
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Case Law ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
State Responsibility ◽  
Humanitarian Law ◽  
Civilian Population ◽  
The Law

AbstractThe awards on liability and damages for violations of international humanitarian law of the Eritrea-Ethiopia Claims Commission uncover both the extent of state responsibility for unlawful displacement and deportation of civilian population resulting from wrongful actions of belligerents under international law and the availability of remedies for victims of such violations. The Commission reached a number of important decisions based on government-to-government claims brought by Ethiopia and Eritrea for injuries, losses, and damage suffered by individuals and groups uprooted by the war. While these decisions bring to light the potential of international humanitarian law in addressing the plight of the displaced, they also expose the limitations of the tribunal's mandate and its interpretation of existing law. The aim of this essay is to analyse the case law of the Commission in the light of international law applicable to situations of displacement of civilians triggered by international armed conflicts, and evaluate the relevance of the Commission's jurisprudence for the development of the law in the field.

Hybrid Conflict and Prisoners of War

2018 ◽  
pp. 191-222
Author(s):  
Jeffrey Kahn
Keyword(s):  
Armed Conflict ◽  
Prisoners Of War ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
War And Peace ◽  
State Actors ◽  
The Law ◽  
Hybrid War ◽  
First Time

The conflicts in eastern Ukraine and Crimea are not the first time sovereign States have clashed under murky and confused circumstances. The law governing international armed conflict, i.e. the law regulating war between States, has long recognized this fact; the threshold to trigger it is a very low one, and it applies “even if the state of war is not recognized by one of them.” Nevertheless, some perceive Ukraine as a case of “hybrid war” for which the old rules are ill-fitting at best, and no longer capable of regulation or restraint. What happens to international humanitarian law (IHL) when, according to Russian General Valériy Gerasimov, the hybrid nature of recent conflicts produces a “tendency to erase differences between the states of war and peace?” This chapter argues that there are in fact two distinct armed conflicts ongoing in eastern Ukraine. First, there is an ongoing but unacknowledged international armed conflict (IAC) in eastern Ukraine between Ukraine and Russia. Second, there is also fighting sufficiently intense and involving sufficiently organized non-State actors to be considered a non-international armed conflict (NIAC) between the Ukrainian State and rebel forces in Donetsk and Luhansk. Adding another layer of complexity, at certain times and places, it may be that this NIAC might have transformed into an IAC because of Russia’s overall control of these non-State actors.

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.

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.

And Yet It Exists: In Defence of the ‘Equality of Belligerents’ Principle

2013 ◽  
Vol 26 (2) ◽  
pp. 449-472 ◽  
Author(s):  
VAIOS KOUTROULIS
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
Advisory Opinion ◽  
Humanitarian Law ◽  
Legal Basis ◽  
Jus In Bello ◽  
Customary International Law ◽  
International Court

AbstractThe equal application of international humanitarian law (jus in bello) to all parties to an international armed conflict is a cornerstone principle of jus in bello. In his article, Professor Mandel casts doubt on the legal basis of this principle. Reacting to this claim, this contribution demonstrates that the ‘equality of belligerents’ is a principle firmly grounded in both conventional and customary international law. Moreover, its legal force withstands the test of international jurisprudence, including the International Court of Justice's controversial Nuclear Weapons advisory opinion.

Ten questions to Philip Spoerri, ICRC Director for International Law and Cooperation

2012 ◽  
Vol 94 (887) ◽  
pp. 1125-1134 ◽  
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
International Committee ◽  
Armed Conflicts ◽  
Red Cross ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Republic Of The Congo ◽  
The One

With the globalisation of market economies, business has become an increasingly prominent actor in international relations. It is also increasingly present in situations of armed conflict. On the one hand, companies operating in volatile environments are exposed to violence and the consequences of armed conflicts. On the other hand, some of their conduct in armed conflict may lead to violations of the law.The International Committee of the Red Cross (ICRC) engages with the private sector on humanitarian issues, with the aim of ensuring compliance or clarifying the obligations that business actors have under international humanitarian law (IHL) and encouraging them to comply with the commitments they have undertaken under various international initiatives to respect IHL and human rights law.In times of conflict, IHL spells out certain responsibilities and rights for all parties involved. Knowledge of the relevant rules of IHL is therefore critical for local and international businesses operating in volatile contexts. In this Q&A section, Philip Spoerri, ICRC Director for International Law and Cooperation, gives an overview of the rules applicable to business actors in situations of conflict, and discusses some of the ICRC's engagement with business actors.Philip Spoerri began his career with the ICRC in 1994. Following a first assignment in Israel and the occupied and autonomous territories, he went on to be based in Kuwait, Yemen, Afghanistan, and the Democratic Republic of the Congo. In Geneva, he headed the legal advisers to the Department of Operations. He returned to Afghanistan as head of the ICRC delegation there from 2004 to 2006, when he took up his current position. Before joining the ICRC, he worked as a lawyer in a private firm in Munich. He holds a PhD in law from Bielefeld University and has also studied at the universities of Göttingen, Geneva, and Munich.

scholarly journals International Environmental Protection in Armed Conflicts: Traditional Legal Regulation and Interpretation Novelties

Lex Russica ◽  
2021 ◽  
pp. 84-95
Author(s):  
N. A. Sokolova
Keyword(s):  
International Law ◽  
Environmental Protection ◽  
Natural Environment ◽  
Armed Conflict ◽  
Legal Protection ◽  
Legal Regulation ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Wide Range

The paper is devoted to international legal protection of the environment during armed conflicts. The author emphasizes that armed conflicts, both international and non-international, continue to be one of the most serious threats to a healthy environment. An armed conflict taking place in the environment invariably poses a threat to ecosystems.The author summarizes that in international law there are special norms for the protection of natural environment during armed conflicts. At the same time, increasing the level of protection requires a clearer definition of the scope of application of customary law and the further development of treaty rules. While the objectives of protecting the natural environment are linked to the survival and protection of civilians, recognition of environmental protection during armed conflict as such constitutes an important trend. International law calls on States to enter into agreements that provide for additional protection of the natural environment during armed conflicts. The concept of “protecting the natural environment” in international humanitarian law refers to a wide range of obligations that can help protect the natural environment or its parts from damage. A high threshold for potential harm continues to pose the risk that such protection is not fully applicable in practice. There is an obvious tendency to use the potential of the principles of international environmental law when applying the norms of international humanitarian law. Thus, even in cases where the assessment of new means and methods of warfare does not provide scientific certainty with regard to their impact on the natural environment, this does not absolve the parties to the conflict from taking appropriate precautions. It is not enough that there are important rules of international humanitarian law protecting the natural environment during armed conflict; they need to be better disseminated, implemented and enforced, as well as validated and clarified.

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.

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