National security and the right to liberty in armed conflict: The legality and limits of security detention in international humanitarian law

2016 ◽  
Vol 98 (903) ◽  
pp. 961-993
Author(s):  
Zelalem Mogessie Teferra
Keyword(s):  
National Security ◽  
International Law ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Periodic Review ◽  
Human Rights Law ◽  
Conflict Situations ◽  
The Right

AbstractThis paper examines the legality and limits of security detention in armed conflict situations. It particularly investigates the issues of whether the protection of national security is a legitimate ground to restrict the right to liberty of persons in situations of international or non-international armed conflict, and if so, what are the limits to a State's prerogative to restrict the right to liberty of individuals suspected of threatening its national security. On the basis of a thorough analysis of the relevant extant rules of international law regulating warfare, the paper concludes that security detention is permissible in armed conflict situations regardless of whether the nature of the conflict is international or non-international. However, the prerogative of a State to impose security detention is circumscribed by a plethora of fundamental substantive and procedural safeguards against arbitrariness that are provided in the different rules of international humanitarian law and international human rights law. These safeguards affirm that the search for absolute security is neither desirable nor attainable and that the mere invocation of security concerns does not grant an absolute power to restrict or suspend the liberty of individuals in armed conflict situations. Whenever it is imposed, security detention should be preventive in nature, and must aim at safeguarding the basic national security interests of a State from serious, future, direct and imminent threats related to the armed conflict situation. Detainees should also be able to challenge its legality before a competent organ at the initial or later stage of the detention through a system of periodic review.

The use of nuclear weapons and human rights

2015 ◽  
Vol 97 (899) ◽  
pp. 663-680
Author(s):  
Stuart Casey-Maslen
Keyword(s):  
Human Rights ◽  
International Law ◽  
Nuclear Weapons ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Healthy Environment ◽  
The Right

AbstractInternational human rights law is an as-yet underused branch of international law when assessing the legality of nuclear weapons and advocating for their elimination. It offers a far greater range of implementation mechanisms than does international humanitarian law (IHL), and arguably strengthens the protections afforded to civilians and combatants under IHL, particularly in non-international armed conflict. Of particular relevance are the rights to life, to humane treatment, to health and to a healthy environment, associated with the right to a remedy for violations of any human rights.

The Right to Life and the International Law Framework Regulating the Use of Armed Drones

2020 ◽  
pp. 153-189
Author(s):  
Christof Heyns ◽  
Dapo Akande ◽  
Lawrence Hill-Cawthorne ◽  
Thompson Chengeta
Keyword(s):  
Armed Conflict ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Right To Life ◽  
Legal Challenges ◽  
Drone Strikes ◽  
Legal Frameworks ◽  
The Right

This chapter provides a holistic examination of the international legal frameworks which regulate targeted killings by drones. It argues that for a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable international legal regimes. It is argued that the legality of a drone strike under the jus ad bellum does not preclude the wrongfulness of that strike under international humanitarian law or international human rights law. The chapter then considers the important legal challenges that the use of armed drones poses under each of the three legal frameworks mentioned above. It considers the application of the right to life in armed conflict, particularly in territory not controlled by the state conducting the strike. The chapter then turns to some of the key controversies in the application of international humanitarian law to drone strikes, such as the possibility of a global non-international armed conflict and the question of who may be targeted in a non-international armed conflict. The final substantive section considers the law relating to the use of force by states against non-state groups abroad.

Rethinking the Permissive Function of Military Necessity in Internal Non-International Armed Conflict

2018 ◽  
Vol 51 (2) ◽  
pp. 235-259 ◽  
Author(s):  
Kosuke Onishi
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Right To Life ◽  
Jus Ad Bellum ◽  
Military Necessity ◽  
The Right

This article advocates limiting the permissive impact of military necessity on the right to life. It has been argued that military necessity justifies deviations from international human rights law (IHRL) because this body of law is inadequate to deal with the necessities arising out of armed conflict. The article argues that while this rationale is convincing, it should not mean that conduct that is lawful under humanitarian law is necessarily also lawful under human rights law. The degree of force that may be used under international humanitarian law (IHL) is often superfluous. In some instances such violence is tempered by thejus ad bellum, but this body of law does not apply in internal non-international armed conflict (NIAC). The article concludes by exploring the potential for IHRL to play a role in tempering superfluous violence in NIAC that is similar to that whichjus ad bellumplays in international conflict.

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.

To Serve the Enemy

2019 ◽  
Author(s):  
Shane Darcy
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Potential Role ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Rules And Principles

The use of informers and other collaborators by parties to an armed conflict is a common yet often concealed practice in times of war. Despite the prevalence of such activity, and the serious and at times fatal consequences that befall those who collaborate with an enemy, international law applicable in times of armed conflict does not squarely address the phenomenon. The recruitment, use, and treatment of informers and other collaborators is addressed only partially and at times indirectly by international humanitarian law. While international law recognises the widespread and enduring phenomenon of individuals cooperating with an opposing side during an armed conflict, it treats it with some ambivalence. The lawfulness of resort to the practice is generally accepted in principle, yet international law seeks to place certain limits, including restrictions on the methods employed in the recruitment, use, and treatment of informers and other collaborators during armed conflict. This book examines the development and application of the relevant rules and principles of the laws of armed conflict in relation to collaboration. The author focuses primarily on international humanitarian law as applicable to various forms of collaboration but also provides an assessment of the potential role of international human rights law. The book examines the law and practice concerning the phenomenon of collaboration during both international and non-international armed conflicts.

scholarly journals Freedom from Nuclear Weapons? IHRL And IHL Perspective vs the State-Centred Approach

2020 ◽  
pp. 137-153
Author(s):  
Julia Kapelańska-Pręgowska
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
Advisory Opinion ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Customary International Law

23 years after the ICJ’s Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, a general treaty prohibiting the use of nuclear weapons has been adopted. It may be anticipated that the TPNW will probably not enter into force very soon, and when it does, it will neither be universally accepted, nor will it significantly influence thepractice of the nuclear weapon States. It is therefore justified to analyse the problem under consideration, not from a State-oriented perspective, but from a human and environmentally centred one. The article argues not only that any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of international humanitarian law, but it would also violate international human rights law. The article further dwells upon the customary international law aspects of the problem under consideration.

Part Two Rights, 7 The Rights of Victims and Transitional Justice

2017 ◽  
Author(s):  
Espinosa Manuel José Cepeda ◽  
Landau David
Keyword(s):  
International Law ◽  
Transitional Justice ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Internal Armed Conflict ◽  
The Government ◽  
Sentence Reductions

Because of the scope and duration of Colombia’s internal armed conflict, that conflict has produced much suffering in the civilian population. This chapter focuses on the Court’s jurisprudence protecting the rights of victims, especially of the internal armed conflict. In this area, the incorporation of international law has been particularly important. Drawing on this jurisprudence, the Court has insisted that victims be given rights to truth, justice, and reparations. The contours of this right have proven particularly important in processes in which the government has sought to give amnesties or sentence reductions in return for participation in the peace process by illegal armed groups, first with paramilitaries and now with guerrilla groups. In reviewing these frameworks, the Court has sought to create criteria that are flexible while retaining the core restrictions of international human rights law and international humanitarian law.

scholarly journals International Humanitarian Law of Armed Conflict: A Critical Annotated Bibliography for Collection Development

2012 ◽  
Vol 40 (3) ◽  
pp. 393-416 ◽  
Author(s):  
Madeline E. Cohen
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Annotated Bibliography ◽  
International Humanitarian Law ◽  
Collection Development ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Law Of Armed Conflict

This annotated bibliography is compiled as a collection development guide for academic librarians and specialists in international law. The topic of International Humanitarian Law of Armed Conflict concerns the treatment of combatants and noncombatants in wartime, while the topic of International Human Rights Law has traditionally been concerned with the treatment of individuals by states in peacetime. During the period from the end of the twentieth century to the present, the boundaries between international humanitarian law and human rights law have become increasingly blurred. Therefore, this article concentrates on core sources inbothbranches of international law in these key areas of overlap: conflicts between states; internal conflicts; insurgencies.

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

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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