International Fair Trial Guarantees

Humanitarian Law ◽

Human Right ◽

Military Commissions ◽

As a fundamental human right, the right to a fair trial ensures that no one is deprived of liberty without due process of law. The scope and meaning of fair trial guarantees, especially during periods of armed conflict, has become controversial in light of the United States’ use of military commissions for the trial of ‘unprivileged enemy belligerents’. This chapter explores fair trial guarantees as articulated in international humanitarian law (IHL) and international human rights law (IHRL). It first provides an overview of the principal treaty provisions that guarantee the right to a fair trial during armed conflict before turning to the concept of a ‘regularly constituted court’ as a vital element in fair trial guarantees. It then considers derogation from fair trial guarantees under IHL and IHRL, as well as the universal application of fair trial rights. Finally, it discusses how the normative standards of the fair trial guarantees apply in the practice of military commissions established by the United States in the context of the ‘War on Terror.’

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

Human Rights and 21st Century Challenges ◽

10.1093/oso/9780198824770.003.0008 ◽

2020 ◽

pp. 153-189

Author(s):

Christof Heyns ◽

Dapo Akande ◽

Lawrence Hill-Cawthorne ◽

Thompson Chengeta

Keyword(s):

Armed Conflict ◽

Humanitarian Law ◽

Human Rights Law ◽

Right To Life ◽

Legal Challenges ◽

Drone Strikes ◽

Legal Frameworks ◽

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.

The Strange Fruit of the Tree of Liberty: Lynch Law and Popular Sovereignty in the United States

Perspectives on Politics ◽

10.1017/s1537592720001255 ◽

2020 ◽

Vol 18 (3) ◽

pp. 819-834

Author(s):

Michael Gorup

Keyword(s):

United States ◽

African Americans ◽

Due Process ◽

The United States ◽

Popular Sovereignty ◽

Modern Democracy ◽

Constituent Power ◽

The People ◽

Lynch mobs regularly called on the language of popular sovereignty in their efforts to authorize lynchings, arguing that, as representatives of the people, they retained the right to wield public violence against persons they deemed beyond the protections of due process. Despite political theorists’ renewed interest in popular sovereignty, scholars have not accounted for this sordid history in their genealogies of modern democracy and popular constituent power. I remedy this omission, arguing that spectacle lynchings—ones that occurred in front of large crowds, sometimes numbering in the thousands—operated as public rituals of racialized people-making. In the wake of Reconstruction, when the boundaries of the polity were deeply contested, spectacle lynchings played a constitutive role in affirming and circulating the notion that the sovereign people were white, and that African Americans were their social subordinates.

Compromising Justice: Why the Bush Administration and the NGOs Are Both Wrong about the ICC

Ethics & International Affairs ◽

10.1111/j.1747-7093.2006.00002.x ◽

2006 ◽

Vol 20 (1) ◽

pp. 25-53 ◽

Cited By ~ 3

Author(s):

Kenneth A. Rodman

Keyword(s):

United States ◽

Rule Of Law ◽

Armed Conflict ◽

Rome Statute ◽

Due Process ◽

Bush Administration ◽

The United States ◽

The Political ◽

The Rule Of Law ◽

Legal Proceedings

The critics of the ICC in the Bush administration and its supporters within the human rights community have one thing in common: they assume that the ICC can evolve into a powerful institution independent of states, either to constrain American power or to act on a duty to prosecute to end impunity for perpetrators. Both overestimate the ability of the court to pursue a legalism divorced from power realities. The former attribute to the court powers it is unlikely to exercise, particularly if the United States remains outside the treaty. This is due, in part, to the safeguards within the Rome Statute, but more importantly, to the court's dependence on sovereign cooperation, which will lead it to place a high premium on cultivating the good will of the most powerful states. The latter overestimate the degree to which courts by themselves can deter atrocities. The ICC's effectiveness in any particular case will therefore be dependent on the political consensus of those actors capable of wielding power in that area. They also underestimate the need to compromise justice – at least, prosecutorial justice – in cases in which bargaining and compromise are the central means of facilitating transitions from armed conflict or dictatorship, and in cases in which the strength of the perpetrators and the limits of one's power would make legal proceedings either futile or counterproductive to other interests and values. Hence, decisions to prosecute must first be subjected to a test of political prudence, and then take place according to due process and the rule of law.

Forfeiture Provisions and the Criminal/Civil Divide

New Criminal Law Review An International and Interdisciplinary Journal ◽

10.1525/nclr.2012.15.1.32 ◽

2012 ◽

Vol 15 (1) ◽

pp. 32-67 ◽

Cited By ~ 2

Author(s):

Anthony Davidson Gray

Keyword(s):

United States ◽

United Kingdom ◽

Due Process ◽

The United States ◽

Fair Trial ◽

Presumption Of Innocence ◽

Bill Of Rights ◽

Middle Ground ◽

Australian Government ◽

Historical Basis

The Australian Government has recently implemented civil forfeiture provisions for property suspected to have been acquired unlawfully. The Australian Federal Police may seek a preliminary unexplained wealth order. The Court may make such an order if there is evidence the wealth may have been acquired from unlawful means. Once the order is made, a full hearing takes place. There it is presumed that such property was unlawfully gained, unless the person who owns the property can show otherwise. Such proceedings can take place without the property owner being charged. The article considers the historical basis of such orders, and their use in the United States and United Kingdom. It is argued that such proceedings are in fact criminal in nature, despite how they are labelled. The article engages with the discusssion in the larger context of the divide between criminal and civil, and whether some “middle ground” should be acknowledged. If forfeiture provisions are in substance criminal, perhaps due process obligations apply, including the presumption of innocence. This argument is more difficult in Australia, given the lack of an express bill of rights. However, it can be argued from previous cases that there is an implicit right to a fair trial, including a presumption of innocence.

Impartiality and Neutrality in Humanitarian Law and Practice

International Review of the Red Cross ◽

10.1017/s0020860400074866 ◽

1989 ◽

Vol 29 (273) ◽

pp. 516-535 ◽

Cited By ~ 6

Author(s):

Frits Kalshoven

Keyword(s):

United States ◽

United States Of America ◽

Armed Conflict ◽

The United States ◽

Red Cross ◽

Humanitarian Law ◽

International Court Of Justice ◽

Court Of Justice ◽

International Court

On 27 June 1986, the International Court of Justice (ICJ) gave judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua. The case, involving Nicaragua against the United States of America, is remarkable in many respects, and so is the judgment. I should like to single out two special features: it deals with a situation of armed conflict, and it mentions the Red Cross.

The Right to Life in Armed Conflict

10.1093/oso/9780198821380.001.0001 ◽

2018 ◽

Cited By ~ 3

Author(s):

Ian Park

Keyword(s):

Armed Conflict ◽

Armed Conflicts ◽

Humanitarian Law ◽

Military Operations ◽

Right To Life ◽

Applicable Law ◽

The Uk ◽

The controversy surrounding the applicability of the right to life during armed conflict makes it arguably one of the most divisive and topical issues at the junction of international humanitarian law and international human rights law. Recent litigation has, among other things, prompted the UK government to signal an intention to derogate from Article 2, ECHR, subject to certain caveats, in future armed conflicts. The litigation pursuant to Article 2 is also set to continue as the UK, and many other States with right to life obligations, will continue to use lethal force overseas; thus the significance of the issue will remain unabated. The scope and application of the right to life in armed conflict not only concerns parties to the ECHR; the predominance of coalition military operations in recent years has necessitated that it is essential for all troop-contributing States to understand the legal limitations of those States bound by the ECHR. It is equally important that the UN, NATO, NGOs, and other governments not directly involved in the armed conflict are aware of any States’ right to life obligations. Notwithstanding this, the applicability of the right to life in armed conflict is yet to be fully considered in academic literature. This book aims to close this lacuna and address the issue of the right to life in armed conflict by identifying and analysing the applicable law, citing recent examples of State practice, and offering concrete proposals to ensure that States comply with their right to life obligations.

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

Israel Law Review ◽

10.1017/s0021223718000092 ◽

2018 ◽

Vol 51 (2) ◽

pp. 235-259 ◽

Cited By ~ 2

Author(s):

Kosuke Onishi

Keyword(s):

Human Rights ◽

Armed Conflict ◽

Humanitarian Law ◽

Human Rights Law ◽

Right To Life ◽

Jus Ad Bellum ◽

Military Necessity ◽

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.

The use of nuclear weapons and human rights

International Review of the Red Cross ◽

10.1017/s1816383116000096 ◽

2015 ◽

Vol 97 (899) ◽

pp. 663-680

Author(s):

Stuart Casey-Maslen

Keyword(s):

Human Rights ◽

International Law ◽

Nuclear Weapons ◽

Armed Conflict ◽

Humanitarian Law ◽

Human Rights Law ◽

Healthy Environment ◽

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.

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

International Review of the Red Cross ◽

10.1017/s1816383118000012 ◽

2016 ◽

Vol 98 (903) ◽

pp. 961-993

Author(s):

Zelalem Mogessie Teferra

Keyword(s):

National Security ◽

International Law ◽

Armed Conflict ◽

Humanitarian Law ◽

Periodic Review ◽

Human Rights Law ◽

Conflict Situations ◽

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.

Reproduction, Birth Control, and Motherhood in the United States

10.1093/oxfordhb/9780190222628.013.20 ◽

2018 ◽

Author(s):

Rickie Solinger

Keyword(s):

United States ◽

Female Sexuality ◽

Population Control ◽

The United States ◽

Reproductive Value ◽

Reproductive Justice ◽

Human Right ◽

Reproductive Politics ◽

Primary Power ◽

The history of reproductive politics in the United States incorporates several centuries of struggle and resistance and virtually no periods of quiescence. The state and other institutions have frequently clashed within and against each other and with girls and women, over who has primary power to govern female sexuality, fertility, and maternity: institutions, or women themselves. These struggles have always been racialized. From the eighteenth century forward, authorities have promulgated laws and public policies embedding population-control aims, investing some groups with greater reproductive value than others. In the modern era, “choice” emerged as the mark of reproductive freedom, chiefly defined as the right to limit and terminate pregnancy. More recently, “reproductive justice” contends that all people have the human right to be a parent; to forgo parenting; and to access the resources required to exercise the first two rights with dignity and safety.