From conflict to complementarity: Reconciling international counterterrorism law and international humanitarian law

Humanitarian Law ◽

Advantages And Disadvantages ◽

Adverse Impacts ◽

Legitimate Interests ◽

Partial Exclusion ◽

Optimal Approach ◽

Abstract This article clarifies the ongoing confusion in doctrine and practice about both the actual and optimal interaction between international counterterrorism law (CTL) and international humanitarian law (IHL) in armed conflict. It discusses the advantages and disadvantages of the co-application of CTL with IHL, before considering a variety of techniques for mutually accommodating the interests of both regimes, particularly through partial exclusion clauses in counterterrorism instruments or laws. It concludes by identifying the optimal approach to the relationship between CTL and IHL, which recognizes the legitimate interests of both fields of law while minimizing the adverse impacts of each on the other.

18 The Law of Neutrality

The Handbook of International Humanitarian Law ◽

10.1093/law/9780198847960.003.0018 ◽

2021 ◽

Author(s):

Bothe Michael

Keyword(s):

Armed Conflict ◽

Armed Conflicts ◽

The Other ◽

Humanitarian Law ◽

Neutral State ◽

The Will ◽

The Law ◽

The Right ◽

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.

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 ◽

Humanitarian Law ◽

Human Rights Law ◽

Law Of Armed Conflict ◽

The Law ◽

Definition Of ◽

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.

14. The law of armed conflict

International Law ◽

10.1093/he/9780198828723.003.0014 ◽

2019 ◽

pp. 279-302

Author(s):

Anders Henriksen

Keyword(s):

Human Rights ◽

International Law ◽

Armed Conflict ◽

Humanitarian Law ◽

Human Rights Law ◽

Military Operations ◽

Basic Principles ◽

Law Of Armed Conflict ◽

This chapter examines those parts of international law that regulate how military operations must be conducted—jus in bello. It begins in Section 14.2 with an overview of the most important legal sources. Section 14.3 discusses when humanitarian law applies and Section 14.4 examines the issue of battlefield status and the distinction between combatants and civilians. Section 14.5 provides an overview of some of the most basic principles governing the conduct of hostilities while Section 14.6 concerns belligerent occupation and Section 14.7. deals with the regulation of non-international armed conflict. Finally, Section 14.8 explores the relationship between international humanitarian law and human rights law in times of armed conflict.

25. International humanitarian law

10.1093/he/9780198767237.003.0025 ◽

2017 ◽

Author(s):

Sandesh Sivakumaran

Keyword(s):

Human Rights ◽

Armed Conflict ◽

Humanitarian Law ◽

Human Rights Law ◽

International Human Rights ◽

International Human ◽

The Relationship ◽

Two Bodies

This chapter examines international humanitarian law, the principal body of international law which applies in times of armed conflict, and which seeks to balance the violence inherent in an armed conflict with the dictates of humanity. International humanitarian law protects the civilian population from the ravages of conflict, and establishes limitations on the means and methods of combat. The chapter is organized as follows. Section 2 considers the nature of international humanitarian law and identifies some of its cardinal principles and key rules. Section 3 explores the similarities and differences between international humanitarian law and international human rights law, comparing and contrasting their historical origins and conceptual approaches. Given that international humanitarian law applies during armed conflict, Section 4 considers whether there is a need for international human rights law also to apply. Section 5 ascertains the relationship between the two bodies of law and Section 6 considers some of the difficulties with the application of international human rights law in time of armed conflict.

14. The law of armed conflict

International Law ◽

10.1093/he/9780198753018.003.0014 ◽

2017 ◽

Author(s):

Anders Henriksen

Keyword(s):

Human Rights ◽

International Law ◽

Armed Conflict ◽

Humanitarian Law ◽

Human Rights Law ◽

Military Operations ◽

Basic Principles ◽

Law Of Armed Conflict ◽

This chapter examines those parts of international law that regulate how military operations must be conducted — jus in bello. It begins in Section 14.2 with an overview of the most important legal sources. Section 14.3 discusses when humanitarian law applies. Section 14.4 examines the issue of battlefield status and the distinction between combatants and civilians. Section 14.5 provides an overview of some of the most basic principles governing the conduct of hostilities while Section 14.6 deals with the issue of regulation of non-international armed conflict. Finally, Section 14.7 explores the relationship between international humanitarian law and human rights law in times of armed conflict.

States' entitlement to take action to enforce international humanitarian law

International Review of the Red Cross ◽

10.1017/s0020860400073058 ◽

1989 ◽

Vol 29 (270) ◽

pp. 177-195 ◽

Cited By ~ 3

Author(s):

Kamen Sachariew

Keyword(s):

International Law ◽

Armed Conflict ◽

Human Life ◽

Use Of Force ◽

Humanitarian Law ◽

Lasting Peace ◽

The Relationship ◽

Ultimate Purpose

The ultimate purpose of dissemination of and compliance with international humanitarian law (IHL) is to mitigate the effects of armed conflict and provide the best possible protection for its victims. At the same time, IHL fosters wider acceptance of the ideals of humanity and peace between peoples. The relationship between IHL, the struggle for peace and the prohibition of the use of force is becoming ever clearer as the realization grows that lasting peace, development and peaceful international co-operation can be achieved only on the basis of compliance with international law and respect for human life and dignity.

War, Conflict, and Human Rights

Oxford Research Encyclopedia of International Studies ◽

10.1093/acrefore/9780190846626.013.494 ◽

2010 ◽

Cited By ~ 2

Author(s):

Chandra Lekha Sriram ◽

Olga Martin-Ortega ◽

Johanna Herman

Keyword(s):

Human Rights ◽

Armed Conflict ◽

Humanitarian Law ◽

Human Rights Abuses ◽

Identity Group ◽

War And Conflict ◽

Race Ethnicity ◽

Territorial Claims ◽

The relationship between human rights and armed conflict is rooted in historical debates among religious, philosophical, and international legal scholars about the nature of a just war, and appropriate conduct in war, which also have come to underpin and international humanitarian law. An understanding of the links between human rights, war, and conflict can begin with conflict analysis, as human rights violations can be both cause and consequence of conflict. In the most general sense, grievances over the denial or perceived denial of rights can generate social conflict. This may be the case where there is systematic discrimination based upon race, ethnicity, caste, religion, language, gender, or other characteristics. Alternatively, human rights abuses can emerge as a result of violent conflict. A conflict may have been undertaken by the parties primarily out of concern to promote a political or ideological agenda, or to promote the welfare of one or more identity group(s), or over access to resources. Human rights are also potentially transformative of conflicts and may make their resolution a greater challenge. Thus, conflicts that begin as conflicts over resources, religion, or ethnic or territorial claims, may, as they progress, create new grievances through the real and perceived violation of human rights by one or more parties to the conflict.

The Role of Necessity in International Humanitarian and Human Rights Law

Israel Law Review ◽

10.1017/s0021223713000265 ◽

2013 ◽

Vol 47 (2) ◽

pp. 225-251 ◽

Cited By ~ 4

Author(s):

Lawrence Hill-Cawthorne

Keyword(s):

Human Rights ◽

Law Enforcement ◽

Armed Conflict ◽

Humanitarian Law ◽

Human Rights Law ◽

Current Article ◽

The nature of armed conflict has changed dramatically in recent decades. In particular, it is increasingly the case that hostilities now occur alongside ‘everyday’ situations. This has led to a pressing need to determine when a ‘conduct of hostilities’ model (governed by international humanitarian law – IHL) applies and when a ‘law enforcement’ model (governed by international human rights law – IHRL) applies. This, in turn, raises the question of whether these two legal regimes are incompatible or whether they might be applied in parallel. It is on this question that the current article focuses, examining it at the level of principle. Whilst most accounts of the principles underlying these two areas of law focus on humanitarian considerations, few have compared the role played by necessity in each. This article seeks to address this omission. It demonstrates that considerations of necessity play a prominent role in both IHL and IHRL, albeit with differing consequences. It then applies this necessity-based analysis to suggest a principled basis for rationalising the relationship between IHL and IHRL, demonstrating how this approach would operate in practice. It is shown that, by emphasising the role of necessity in IHL and IHRL, an approach can be adopted that reconciles the two in a manner that is sympathetic to their object and purpose.

The Relationship between Jus Ad Bellum and Jus In Bello

10.1093/law/9780199673049.003.0057 ◽

2016 ◽

Cited By ~ 1

Author(s):

Okimoto Keichiro

Keyword(s):

Armed Conflict ◽

Humanitarian Law ◽

Jus In Bello ◽

Jus Ad Bellum ◽

Expert Opinions ◽

Legal Implications ◽

Law Of Armed Conflict ◽

The Relationship ◽

Self Defence

This chapter discusses the relationship between jus ad bellum (international law regulating the resort to force) and jus in bello (law of armed conflict). It examines state practice, international decisions, and expert opinions to determine how the relationship has been addressed in practice. The chapter considers the question of whether jus in bello applies equally to the unlawful and lawful parties to an armed conflict before turning to the legal implications of the cumulative requirements of the law of self-defence and international humanitarian law (IHL) imposed on a use of force in self-defence. Finally, it considers the legal implications of the concurrent application of Chapter VII of the UN Charter and IHL with respect to use authorized under Chapter VII.

Economic, Social, and Cultural Rights in Armed Conflict

10.1093/law/9780199559695.003.0018 ◽

2014 ◽

Author(s):

Eibe Riedel

Keyword(s):

Human Rights ◽

Armed Conflict ◽

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.