scholarly journals Sexual violence in armed conflicts: A violation of international humanitarian law and human rights law

2014 ◽  
Vol 96 (894) ◽  
pp. 503-538 ◽  
Author(s):  
Gloria Gaggioli
Keyword(s):  
Human Rights ◽  
Sexual Violence ◽  
Criminal Responsibility ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Sexual Crimes ◽  
The Individual

AbstractSexual violence is prevalent in contemporary armed conflicts. International humanitarian law and human rights law absolutely prohibit all forms of sexual violence at all times and against anyone; international criminal law moreover provides for the individual criminal responsibility of sexual crimes' perpetrators. These three bodies of law importantly reinforce each other in this field. The discrepancy between the facts on the ground and the law is a matter of concern that cannot be explained by potential legal gaps or uncertainties. What is needed is to find new ways of improving implementation for existing laws at the domestic and international levels.

14 Human Rights in Armed Conflict

2021 ◽  
Author(s):  
Kleffner Jann K
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
The State ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Legal Relationship ◽  
The Law ◽  
The Individual

This chapter explains the application of human rights in armed conflicts. International humanitarian law has much in common with the law of human rights, since both bodies of rules are concerned with the protection of the individual. Nevertheless, there are important differences between them. Human rights law is designed to operate primarily in normal peacetime conditions, and governs the vertical legal relationship between a state and its citizens and other persons subject to its jurisdiction. Human rights law applies primarily within the territory of the state that is subject to the human rights obligation in question. International humanitarian law, by contrast, is specifically designed to regulate situations of armed conflict. These differences between human rights law and international humanitarian law have led some to argue that human rights law is only intended to be applicable in time of peace. However, it is now generally accepted that human rights continue to apply during armed conflict. Hence, international humanitarian law and human rights law can apply simultaneously in situations of armed conflict.

The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict

2007 ◽  
Vol 40 (2) ◽  
pp. 310-355 ◽  
Author(s):  
Cordula Droege
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Human ◽  
Historical Developments

International human rights law and international humanitarian law are traditionally two distinct branches of law, one dealing with the protection of persons from abusive power, the other with the conduct of parties to an armed conflict. Yet, developments in international and national jurisprudence and practice have led to the recognition that these two bodies of law not only share a common humanist ideal of dignity and integrity but overlap substantially in practice. The most frequent examples are situations of occupation or non-international armed conflicts where human rights law complements the protection provided by humanitarian law.This article provides an overview of the historical developments that led to the increasing overlap between human rights law and humanitarian law. It then seeks to analyse the ways in which the interplay between human rights law and humanitarian law can work in practice. It argues that two main concepts inform their interaction: The first is complementarity between their norms in the sense that in most cases, especially for the protection of persons in the power of a party to the conflict, they mutually reinforce each other. The second is the principle of lex specialis in the cases of conflict between the norms.

scholarly journals HUMAN RIGHTS VIOLATIONS PERPETRATED BY STATE AGENTS IN MILITARY OCCUPATIONS: ANALYSIS OF THE INCURSION OF INTERNATIONAL HUMAN RIGHTS LAW TO THE NORMATIVE TERRITORY OF THE ARMED CONFLICTS

2021 ◽  
Vol 19 (32) ◽  
pp. 32
Author(s):  
Sidney Cesar Silva Guerra ◽  
Luz E. Nagle ◽  
Ádria Saviano Fabricio da Silva
Keyword(s):  
Human Rights ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Human Rights Violations ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Human ◽  
Military Occupations

This article aims to revisit the interrelationship between International Humanitarian Law (IHL) and International Human Rights Law (IHRL), in honour of their respective normative scopes and in order to carry out an analysis of their complementary or supplementary application, towards the construction of a more appropriate tool for the protection of human beings in extreme situations, as it occurs during armed conflicts. This is because, amid the multifaceted vulnerabilities that accumulate in today's conflicts, it is essential to provide the most effective source of protection - proportional to the demands for protection that are manifested today, particularly in military occupations around the world, whose occurrence will be the focus of this research. As for the method of approach concerning the logical basis of the investigation, the hypothetical-deductive method was selected, insofar as the corroboration or falsification of the main hypothesis about the effective complementary and harmonious application of IHRL will be tested to cases of human rights violations in International Armed Conflicts in the military occupation modality. Given this framework, the core of this work lies in the understanding of the praxis for the complementary application of both aspects in armed conflicts, considering not only International Human Rights Law as lex generalis, but their effective overlap to the detriment of International Humanitarian Law, when it is most beneficial to human protection in the cases of Military Occupations.

Unmasking the Challenges

2020 ◽  
pp. 359-392
Author(s):  
Gloria Gaggioli ◽  
Pavle Kilibarda
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Criminal Courts ◽  
Law Enforcement Officials ◽  
The Individual ◽  
Mitigating Circumstances

International human rights law and international humanitarian law absolutely prohibit all forms of torture and cruel, inhuman, or degrading treatment (CIDT) at all times and against anyone, even the worst of criminals. International criminal law moreover provides for the individual criminal responsibility of perpetrators. Nevertheless, there remains a number of legal and practical challenges to overcome in order to ensure the effectiveness of this prohibition. The most visible challenge pertains to the implementation of the prohibition not only in domestic law but also in the concrete practice of law enforcement officials and other State agents. Other—less visible and insufficiently discussed—challenges concern laws and practices that may indirectly impact the effectiveness of the prohibition of torture and CIDT and whose acceptability under public international law is not crystal clear. For instance, is the prohibition of using evidence obtained through torture/CIDT (so-called exclusionary rule) absolute and applicable in all cases? How far does the international law obligation to prosecute and punish torture/CIDT perpetrators go? To what extent may individual perpetrators of torture/CIDT invoke mitigating circumstances or even justifications to avoid or diminish punishment for the commission of such acts in extreme circumstances? Does the passing of lenient sentences upon individual perpetrators of ill-treatment entail the responsibility of the State as a failure to punish? The present chapter will discuss these issues in light of contemporary international practice of various human rights bodies (treaty bodies and UN special procedures) and international/mixed criminal courts and tribunals.

Human Rights in Armed Conflict: Ten Years of Affirmative State Practice within United Nations Resolutions

2012 ◽  
Vol 3 (2) ◽  
pp. 233-262 ◽  
Author(s):  
Ilia Maria Siatitsa ◽  
Maia Titberidze
Keyword(s):  
Human Rights ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
State Practice ◽  
Human Rights Norms ◽  
Two Bodies ◽  
Real Test

The debate concerning the interrelation of international human rights law and international humanitarian law is certainly not new within the relevant academic circles. Nevertheless, a comprehensive study of recent State practice in the UN political bodies, that puts the opposition to the applicability of human rights to a real test, adds a new and rather intriguing twist to the matter. It appears that the statements of governments arguing for the exclusive application of international humanitarian law in armed conflicts are not always supported by their own practice within the UN political bodies. The present article explores the potential influence and importance of this observation for bridging the possible gaps between these two bodies of international law. It further identifies a number of interesting trends in the application of specific human rights norms in armed conflicts.

The Crime of Indiscriminate Attack and Unlawful Conventional Weapons: The Legacy of the icty Jurisprudence

2015 ◽  
Vol 6 (1) ◽  
pp. 118-146 ◽  
Author(s):  
Christian Ponti
Keyword(s):  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Customary International Law ◽  
Conventional Weapons ◽  
The Individual ◽  
Individual Criminal Responsibility

The prohibition of indiscriminate attacks, which encompasses either ‘indiscriminate attacks’ stricto sensu and the so-called ‘disproportionate attacks’, is at the heart of the law governing the conduct of hostilities, as it aims to implement two cardinal principles of international humanitarian law (ihl), distinction and proportionality. This contribution examines the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (icty) establishing the individual criminal responsibility for indiscriminate attack. The author considers the possible rationale to illustrate why the icty has never adjudicated neither indiscriminate attacks nor disproportionate attacks per se, as separate, autonomous offences under customary international law. It is submitted that a possible reason to explain the prudency of the icty judges when dealing with the crime of indiscriminate attack is that from an international criminal law perspective it is more than a challenge to apply these ihl principles of distinction and proportionality. The author contends that the icty jurisprudence that practically examined the principle of prohibiting indiscriminate attacks by means of unlawful conventional weapons confirm such difficulties. In particular, because the icty failed to fully clarify to what extent an attack by means of indiscriminate and/or inaccurate weapons violating fundamental principles of the conduct of hostilities, such as distinction and proportionality, may amount to the crime of indiscriminate attack.

scholarly journals SHOULD INTERNATIONAL LAW RECOGNIZE A RIGHT OF HUMANITARIAN INTERVENTION?

2017 ◽  
Vol 66 (2) ◽  
pp. 441-466 ◽  
Author(s):  
Chris O'Meara
Keyword(s):  
Human Rights ◽  
International Law ◽  
Humanitarian Intervention ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Syrian Civil War ◽  
The Right

AbstractThe ongoing Syrian civil war calls for a re-evaluation of using force to protect human rights. This article does not rake over the much-debated issue of whether a right of humanitarian intervention exists as lex lata. Instead, it addresses the little reviewed normative issue of whether the right should exist in international law to support and reflect a pluralistic understanding of sovereignty. Despite advancements in international human rights law, international humanitarian law and international criminal law, this wider fabric of international law preserves Westphalian sovereignty and the principle of non-intervention. It denies any right of humanitarian intervention.

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.

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