scholarly journals Humanizing siege warfare: Applying the principle of proportionality to sieges

2021 ◽  
pp. 1-22
Author(s):  
Maxime Nijs
Keyword(s):  
Armed Conflicts ◽  
Humanitarian Relief ◽  
Civilian Population ◽  
Additional Protocol ◽  
Siege Warfare ◽  
Relief Operations ◽  
Principle Of Proportionality ◽  
The Right ◽  
Proportionality Principle

Abstract Siege warfare and its devastating humanitarian consequences have been one of the defining features of contemporary armed conflicts. While the most apparent restriction of siege warfare appears to be provided by the prohibition against starvation of the civilian population as a method of warfare, the prevailing restrictive interpretation of this prohibition has left civilians remaining in a besieged area unprotected from the hardships they endure. This article demonstrates that shifting the focus from the prohibition against starvation to the rules regulating humanitarian relief operations does not seem helpful due to the ambiguities regarding the requirement of consent and the right of control of the besieging party. In remedying this protection gap, this article examines whether and how the principle of proportionality applies in the context of a siege. After analyzing whether the encirclement and isolation aspect of a siege can be considered an attack in the sense of Article 49(1) of Additional Protocol I (AP I), to which the proportionality principle applies, the article investigates how this principle operates in the context of a siege. It will be demonstrated that Article 57(2)(b) of AP I requires that the proportionality of a siege must be continuously monitored.

The Conventional Weapons Convention: Underlying Legal Principles

1990 ◽  
Vol 30 (279) ◽  
pp. 510-520 ◽  
Author(s):  
Frits Kalshoven
Keyword(s):  
Natural Environment ◽  
General Principle ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
Severe Damage ◽  
Civilian Population ◽  
Legal Principles ◽  
Additional Protocol ◽  
Conventional Weapons ◽  
The Right

Neither the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects, adopted in Geneva on 10 October 1980, nor the Protocols annexed to it specify in their operative parts the principles on which the prohibitions and restrictions rest. Such principles are, however, found in the preamble to the Convention.Four of the twelve preambular paragraphs are relevant here. They list: the “general principle of the protection of the civilian population against the effects of hostilities”; the principle “that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited”; the ban on “the employment in armed conflicts of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering”; and the fact that it is prohibited “to employ methods or means of warfare which are intended, or may be expected, to cause widespread, longterm and severe damage to the natural environment.” The fifth paragraph reiterates the well-known Martens clause, in the formulation accepted for Article 1, paragraph 2, of Additional Protocol I of 1977.

Do Non-State Armed Groups Have a Legal Right to Consent to Offers of International Humanitarian Relief?

2020 ◽  
Vol 25 (2) ◽  
pp. 317-341
Author(s):  
Matthias Vanhullebusch
Keyword(s):  
Security Council ◽  
Armed Conflicts ◽  
Armed Groups ◽  
Humanitarian Relief ◽  
Civilian Population ◽  
Operational Level ◽  
The Government ◽  
The Right ◽  
Equal Right ◽  
Exclusive Right

Abstract During non-international armed conflicts, fighting parties have repeatedly denied international humanitarian relief to the civilian population under their territorial control leaving them at the brink of starvation. Debates on criminal accountability for violating the prohibition of the use of starvation against the civilian population as a method of warfare have yet to address the question of ownership of the right to consent to offers of international humanitarian relief before criminalising their denial. In respect of such right to consent at the strategic level, there are divergent interpretations on the application of the principle of symmetrical rights and obligations of fighting parties in the realm of international humanitarian relief. Humanitarian and state-centric perspectives, respectively, grant or deny non-state armed groups an independent right to consent to offers of international humanitarian relief. The humanitarian perspective argues that the asymmetry of such right in favour of the government party to the conflict and at the expense of the non-state armed groups is no longer justified, especially when the right of control at the operational level (after an offer has been accepted) is equally bestowed upon all parties to the conflict. The state-centric perspective defends the exclusive right of the government party to the conflict and fears that an equal right to strategic consent for non-state armed groups would increase their legitimacy. This study argues that neutrality upheld by international humanitarian relief actors, including impartial humanitarian bodies, such as the ICRC, and the Security Council gives rise to an interdependent exercise of the right to strategic consent by all fighting parties instead.

Conflict-induced Food Insecurity and the War Crime of Starvation of Civilians as a Method of Warfare

2019 ◽  
Vol 17 (4) ◽  
pp. 753-779
Author(s):  
Dapo Akande ◽  
Emanuela-Chiara Gillard
Keyword(s):  
Food Insecurity ◽  
International Criminal ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Humanitarian Relief ◽  
Humanitarian Action ◽  
General Rules ◽  
Relief Operations ◽  
Principle Of Proportionality

Abstract This article examines the rules of international humanitarian law (IHL) relevant to avoiding or minimizing conflict-induced food insecurity. It is important to consider these rules in order to appreciate the range of protections to which civilians are entitled. Understanding these rules is also essential for interpreting the relevant provisions of international criminal law, including, most notably, the war crime of starvation of the civilian population. After providing a brief outline of the general rules of IHL respect of which can reduce the risk of food insecurity, the article focuses on two sets of rules of direct relevance to food insecurity: the prohibition of starvation of civilians as a method of warfare and the rules regulating humanitarian relief operation. With regard to the former, the article considers whether, under IHL, the prohibition requires that the party that has engaged in the conduct must act with the purpose of causing starvation. It is argued that while the general prohibition of starvation in IHL requires such purpose, there are other, more specific, rules of IHL directed at reducing food insecurity which do not require such purpose. Consideration is also given to the application of the principle of proportionality to measures which have the effect of causing starvation. While most of this article focuses on IHL, it also provides some reflections on the interplay between the rules of IHL relating to humanitarian relief operations and the war crime of starvation in the International Criminal Court’s Statute. Moving briefly away from IHL, the article also highlights a normative tension that can impede humanitarian action and therefore exacerbate food insecurity.

Blockades and Interdictions

2016 ◽  
Author(s):  
Wolff Heintschel von Heinegg
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
International Treaties ◽  
Jus Ad Bellum ◽  
Un Security Council ◽  
Collective Self ◽  
Rules And Principles ◽  
Principle Of Proportionality ◽  
The Right ◽  
Self Defence

This chapter examines the rules and principles that govern a naval or aerial blockade or some other form of interference with foreign vessels and aircraft in the absence of an explicit authorization by the UN Security Council. After clarifying the concept of blockade under the jus ad bellum and the jus in bello, it considers blockades authorized as military enforcement measures. It also discusses some unresolved or even contested issues regarding the legality of blockades, with reference to blockades in situations other than international armed conflict and the principle of proportionality in relation to humanity. The scope of interdiction operations and its legal bases under international treaties are analysed next, together with maritime interdiction operations and the applicability of prize law during non-international armed conflicts. Finally, the chapter explores the right of individual or collective self-defence as a basis for interdiction operations.

International Humanitarian Law and Blockade

2018 ◽  
Author(s):  
Phillip Drew
Keyword(s):  
Customary Law ◽  
Soft Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Humanitarian Relief ◽  
Additional Protocol ◽  
Maritime Traffic ◽  
Geneva Conventions ◽  
Relief Operations

This chapter is a study of how blockade law relates to international humanitarian law, particularly that set out in Additional Protocol 1 to the Geneva Conventions of 1949. Noting that under the customary law of blockade all incoming and outgoing maritime traffic is prohibited, an assessment is made on whether or not the customary requirement has been displaced by the humanitarian provisions of AP1. Focusing on the wording of article 49(3), it is shown that for a number of states, the adoption of AP1 did not change the customary law, while for some others it did. As a result of this discrepancy it is posited that in spite of recent attempts to create such an obligation through soft law approaches, there is no customary law that requires humanitarian relief operations during blockade blockades.

Proportionality in International Humanitarian Law

2021 ◽  
Author(s):  
Amichai Cohen ◽  
David Zlotogorski
Keyword(s):  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Civilian Population ◽  
State Actor ◽  
Principle Of Proportionality ◽  
Almost All

The principle of proportionality is one of the cornerstones of International Humanitarian Law (IHL). Almost all states involved in armed conflicts recognize that it is prohibited to launch an attack that is expected to cause incidental harm to civilians that exceeds the direct military advantage anticipated from the attack. This prohibition is included in military manuals, taught in professional courses, and accepted as almost axiomatic. And yet, the exact meaning of this principle is vague. Almost every issue is in dispute—from the most elementary question of how to compare civilian harm and military advantage, to the possible obligation to employ accurate but expensive weapons. Controversy is especially rife regarding asymmetrical conflicts, in which many modern democracies are involved. How exactly should proportionality be implemented when the enemy is not an army, but a non-state actor embedded within a civilian population? What does it mean to use precautions in attack, when almost every attack is directed at objects that are used for both military and civilian purposes?

Domestic regulation of international humanitarian relief in disasters and armed conflict: a comparative analysis

2007 ◽  
Vol 89 (866) ◽  
pp. 345-372 ◽  
Author(s):  
David Fisher
Keyword(s):  
Comparative Analysis ◽  
International Law ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
Regulatory Control ◽  
Humanitarian Relief ◽  
Similarities And Differences ◽  
Relief Operations ◽  
Domestic Regulation ◽  
Regulatory Problems

AbstractIn both disasters and armed conflicts, domestic regulatory control over the entry and operation of international humanitarian relief operations can significantly affect their ability to address the critical needs of affected persons. The types of regulatory problems that arise, such as customs barriers, visa issues and taxation of aid, are often similar, but both the underlying dynamics and the applicable international law can be quite different. This article analyses these similarities and differences and suggests distinct steps that might be taken to move forward in the two contexts.

scholarly journals Humanitarian Access

2018 ◽  
Vol 112 ◽  
pp. 266-268
Author(s):  
Michael Bothe
Keyword(s):  
International Law ◽  
Armed Conflicts ◽  
Humanitarian Relief ◽  
Basic Principles ◽  
Relief Operations

Access to the victims of armed conflicts for humanitarian relief operations is vital for the survival of those victims, especially for the most vulnerable ones. What can international law do to facilitate and secure such access? These remarks shall pinpoint some basic principles and problems.

Territorial Control by Armed Groups and the Regulation of Access to Humanitarian Assistance

2017 ◽  
Vol 50 (1) ◽  
pp. 25-47 ◽  
Author(s):  
Tom Gal
Keyword(s):  
Armed Conflict ◽  
Humanitarian Assistance ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Humanitarian Relief ◽  
Geneva Conventions ◽  
Occupied Territories ◽  
Relief Operations

Humanitarian assistance is essential for the survival of the civilian population and peoplehors de combatin the theatre of war. Its regulation under the laws of armed conflict tries to achieve a balance between humanitarian goals and state sovereignty. This balance, reflected in the provisions of the 1949 Geneva Conventions and their Additional Protocols, is not as relevant to contemporary armed conflicts, most of which involve non-state armed groups. Even those provisions relating to humanitarian assistance in conflicts involving non-state armed groups fail to address properly the key features of these groups, and especially their territorial aspect. This article proposes a different approach, which takes into consideration and gives weight to the control exercised by non-state armed groups over a given territory. Accordingly, it is suggested that provisions regulating humanitarian relief operations in occupied territories should apply to territories controlled by armed groups. This approach views international humanitarian law first and foremost as an effective, realistic and practical branch of law. Moreover, it has tremendous humanitarian advantages and reflects the aims and purposes of the law, while considering the factual framework of these conflicts.

Twenty-five Years after the Adoption of Additional Protocol II: Breakthrough or Failure of Humanitarian Legal Protection?

2001 ◽  
Vol 4 ◽  
pp. 129-166
Author(s):  
Heike Spieker
Keyword(s):  
Legal Protection ◽  
International Community ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Civilian Population ◽  
Additional Protocol ◽  
Geneva Conventions ◽  
Internal Armed Conflicts

On 12 December 2002, the international community celebrated the twenty-fifth anniversary of the opening for signature of 1977 Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts. In view of today's armed hostilities around the globe, this anniversary raises the questions whether international humanitarian law provides substantive regulation protecting civilians in non-international armed conflicts; whether such legal protection is effectively countering the sufferings of the civilian population and what are now the main challenges for the international communityvis-à-visinternal armed conflicts.

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