Liability in Joint Military Operations—The Green Desert Case

2020 ◽  
Vol 25 (2) ◽  
pp. 343-366
Author(s):  
Peter Vedel Kessing
Keyword(s):  
International Law ◽  
State Responsibility ◽  
Military Operations ◽  
Military Operation ◽  
High Court ◽  
Real Risk ◽  
Concrete Operations ◽  
Almost All ◽  
Compensation Law ◽  
Time Subject

Abstract Almost all international military operations today are joint military operations where several states collaborate to carry out concrete operations, such as combat or arrest operations. This raises pertinent and difficult questions in relation to state responsibility if international law obligations are breached during the operation, not least: Which state or states are responsible? In June 2018, a Danish High Court found Denmark responsible in its complicity for Iraqi ill-treatment of 18 Iraqis who were detained by the Iraqi military in a joint Danish–Iraqi military operation in Iraq in November 2004. Danish soldiers did not exercise control over the Iraqi troops; the detainees were not captured by Danish soldiers or at any time subject to their control or jurisdiction; and Danish forces did not participate in or witness any ill-treatment during the operation. Nevertheless, the Danish High Court found that the Danish defence forces were liable to pay compensation to the 18 Iraqi detainees because Danish defence forces ‘should have known’ that there was a real risk of Iraqi ill-treatment of detainees and paid to little attention to the risk when planning and participating in the operation. The article discusses the Danish High Court judgment. Is it a problem that the High Court decided the case on the basis of Danish compensation law and largely ignores international law standards? And would the Danish defence forces have been responsible if assessed on the basis of State responsibility standards in international law?

Rotten Fruit: State Solicitation, Acceptance, and Use of Information Obtained through Torture by Another State

2005 ◽  
Vol 23 (3) ◽  
pp. 349-378 ◽  
Author(s):  
Matt Pollard
Keyword(s):  
Human Rights ◽  
National Security ◽  
International Law ◽  
Criminal Responsibility ◽  
State Responsibility ◽  
Customary International Law ◽  
Real Risk ◽  
International Law Commission ◽  
Individual Criminal Responsibility ◽  
Law Commission

The author argues that a State violates international law when it transmits questions for use in the interrogation of an individual by another State, or informally uses for its own national security purposes information received through interrogations by another State, where it knows or should know that there is a real risk that the interrogation will or did involve torture. The sources of law relied upon include: the comprehensive, absolute, and non-derogable prohibition of torture under treaty and customary international law; rules ascribing individual criminal responsibility for complicity or participation in acts of torture; and the secondary rules of State responsibility (using the framework of the Articles adopted by the International Law Commission). The author specifically considers and rejects the argument that territorial and jurisdictional limits on the human rights responsibilities of States preclude responsibility for participation in torture ‘out-sourced’ in this manner to another State.

On the Use and Abuse of Necessity in the Law of State Responsibility

2012 ◽  
Vol 106 (3) ◽  
pp. 447-508 ◽  
Author(s):  
Robert D. Sloane
Keyword(s):  
Political Culture ◽  
International Law ◽  
Turn Of The Century ◽  
State Responsibility ◽  
Moral Law ◽  
Guiding Principle ◽  
The Past ◽  
Investment Arbitration ◽  
The Law ◽  
Almost All

Necessity, necessità, is Machiavelli’s guiding principle . . . that infringing the moral law is justified when it is necessary.Thus is inaugurated the dualism of modern political culture, which simultaneously upholds absolute and relative standards of value. The modern state appeals to morality, to religion, and to natural law as the ideological foundation for its existence. At the same time it is prepared to infringe any or all of these in the interest of self-preservation.—J. M. CoetzeeRecent jurisprudence in investment arbitration, almost all of which originated in disputes arising out of Argentina’s turn-of-the-century fiscal crisis, has raised difficult questions about the existence, nature, and advisability of necessity as a defense to state responsibility. The jurisprudence has contributed to a sophisticated literature focusing on necessity’s role in the special context of investment arbitration. But the growing prominence of necessity pleas in international law has not been so limited. Nor will its effects be. In the first place, investor-state arbitral jurisprudence contributes to the evolution of general international law. Investment tribunals invoke the latter, for example, to inform their interpretation of bilateral investment treaties (BITs) or to cure lacunae in the law. More significantly, beyond the realm of investment arbitration, the past few decades have seen a striking growth in necessity pleas in fields ranging widely across the landscape of international law.

The Copenhagen Process on Detainees: A Necessity

2009 ◽  
Vol 78 (4) ◽  
pp. 489-498 ◽  
Author(s):  
Thomas Winkler
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Military Operations ◽  
Military Operation ◽  
The Relationship ◽  
Two Bodies ◽  
Full Protection

AbstractThe traditional distinction between military and law enforcement operations is increasingly difficult to uphold. This gives rise to a number of difficult and complicated challenges in regard to the handling of detainees. Legal ambiguity may lead to operational uncertainty, which may hamper the efficiency of a given United Nations (UN)-mandated international military operation. It is in the interest of no one, not least the detained individual. The author argues that the Copenhagen Process on the Handling of Detainees in UN-mandated international military operations is a necessity to ensure the full protection of any individual detained during an UN-mandated international military operation and thereby ensuring the efficiency of the efforts of the international community to bring stability and peace to States and regions in dire need. On the key legal question concerning the relationship between international humanitarian law and human rights law, it is necessary to conduct a thorough analysis of the relevant provisions of both bodies of international law in context. When this is done, most of the claimedincongruities between the two bodies of law disappear – and thereby also the basis for the sometime heateddiscussions between the advocates of one or the other body of law.

Michael Kelly, Hilary Footitt, Myriam Salama-Carr (eds.): The Palgrave Handbook of Languages and Conflict

2020 ◽  
Vol 55 (2) ◽  
Author(s):  
Ľubomír Zvada
Keyword(s):  
International Relations ◽  
Foreign Languages ◽  
Military Operations ◽  
Sources Of Information ◽  
War And Peace ◽  
Interdisciplinary Field ◽  
Speakers Of Other Languages ◽  
War And Conflict ◽  
Almost All

This Handbook maps the contours of an exciting and burgeoning interdisciplinary field concerned with the role of language and languages in situations of conflict. It explores conceptual approaches, sources of information that are available, and the institutions and actors that mediate language encounters. It examines case studies of the role that languages have played in specific conflicts, from colonial times through to the Middle East and Africa today. The contributors provide vibrant evidence to challenge the monolingual assumptions that have affected traditional views of war and conflict. They show that languages are woven into every aspect of the making of war and peace, and demonstrate how language shapes public policy and military strategy, setting frameworks and expectations. The Handbook's 22 chapters powerfully illustrate how the encounter between languages is integral to almost all conflicts, to every phase of military operations and to the lived experiences of those on the ground, who meet, work and fight with speakers of other languages. This comprehensive work will appeal to scholars from across the disciplines of linguistics, translation studies, history, and international relations; and provide fresh insights for a broad range of practitioners interested in understanding the role and implications of foreign languages in war.

Complex Battlespaces

2018 ◽  
Keyword(s):  
International Law ◽  
New Technologies ◽  
Urban Environments ◽  
Armed Conflicts ◽  
Unmanned Aerial Systems ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Military Operations ◽  
Modern Warfare ◽  
Aerial Systems

The conduct of warfare is constantly shaped by forces beyond the battlefield. These forces create complexities in the battlespace for military operations. The ever-changing nature of how and where wars are fought creates challenges for the application of the unchanging body of international law that regulates armed conflicts. The term “complex” is often used to describe modern warfare, but what makes modern warfare complex? Is it the increasingly urbanized battlefield where wars are fought, which is cluttered with civilians and civilian objects? Is it the rise of State-like organized armed groups that leverage the governance vacuum created by failed or failing States? Is it the introduction of new technologies to military operations like autonomous weapons, cyber capabilities, and unmanned aerial systems? Or is it the application of multiple legal regimes to a single conflict? Collectively, these questions formed the basis for the Complex Battlespaces Workshop in which legal scholars and experts from the field of practice came together to discuss these complexities. During the workshop, there was a general consensus that the existing law was sufficient to regulate modern warfare. The challenge, however, arises in application of the law to new technologies, military operations in urban environments, and other issues related to applying international human rights law and international humanitarian law to non-international armed conflicts. This inaugural volume of the Lieber Book Series seeks to address many of the complexities that arise during the application of international law to modern warfare.

Substantive Right to Life Obligations

2018 ◽  
Author(s):  
Ian Park
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Right To Life ◽  
Military Operation ◽  
General Terms ◽  
The Right

There is a difference between a State’s substantive and procedural right to life obligations. This chapter explores what amount to a state’s substantive right to life obligations with reference to Article 2, ECHR and Article 6, ICCPR. The respective provisions are analysed to determine the extent of a state’s substantive right to life obligations during armed conflict and then a comparison between the two international law instruments is undertaken. In order to undertake such a comparison, the exceptions to the right to life in both the ECHR and ICCPR are examined. Once determined, the planning and conduct of a military operation are considered, to assess the extent to which, in general terms, right to life obligations are considered in these areas.

Common Interests of Humankind and the International Regulation of the Use of Force

2018 ◽  
Author(s):  
Enzo Cannizzaro
Keyword(s):  
International Law ◽  
Use Of Force ◽  
State Responsibility ◽  
International Regulation ◽  
Philosophical Foundations ◽  
Un Security Council ◽  
Common Interests ◽  
The Law ◽  
Mere Existence ◽  
Further Development

The chapter discusses the philosophical foundations of the current regulation of the use of force. The chapter argues that, in correspondence with the emergence of a sphere of substantive rules protecting common interests of humankind, international law is also gradually developing a system of protection against egregious breaches of these interests. This conclusion is reached through an analysis of the law and practice governing the action of the UN Security Council as well as the law of state responsibility concerning individual and collective reactions to serious breaches of common interests. This system is based on positive obligations imposed upon individual states as well as UN organs, and it appears to be still rudimentary and inefficient. However, the chapter suggests that the mere existence of this system, these shortcomings notwithstanding, has the effect of promoting the further development of the law in search for more appropriate mechanisms of protection.

Public Committee Against Torture in Israel v. Government of Israel. Case No. HCJ 769/02

2007 ◽  
Vol 101 (2) ◽  
pp. 459-465 ◽  
Author(s):  
Daniel Bodansky ◽  
Orna Ben-Naftali ◽  
Keren Michaeli
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Armed Conflicts ◽  
Direct Part ◽  
Customary International Law ◽  
High Court ◽  
Additional Protocol ◽  
Court Of Justice ◽  
The Supreme Court

Public Committee Against Torture in Israel v. Government of Israel. Case No. HCJ 769/02. At <http://elyonl.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf>.Supreme Court of Israel, sitting as the High Court of Justice, December 13, 2006.In Public Committee Against Torture in Israel v. Government of Israel1 Targeted Killings) the Supreme Court of Israel, sitting as the High Court of Justice, examined the legality of Israel's “preventative targeted killings” of members of militant Palestinian organizations. The Court's unanimous conclusion reads:The result of the examination is not that such strikes are always permissible or that they are always forbidden. The approach of customary international law applying to armed conflicts of an international nature is that civilians are protected from attacks by the army. However, that protection does not exist regarding those civilians “for such time as they take a direct part in hostilities” (§51(3) of [Additional Protocol I]). Harming such civilians, even if the result is death, is permitted, on the condition that there is no less harmful means, and on the condition that innocent civilians are not harmed. Harm to the latter must be proportional. (Para. 60)

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