Armed Groups and Customary International Human Rights Law

Author(s):  
Katharine Fortin

Chapter 11 analyses arguments that armed groups are bound by human rights law by virtue of customary international law. In doing so, the chapter draws together theories that have been explored in Chapters 7 and 9 about the relevance of territory to the acquisition of legal obligations. The chapter starts by examining the debates about how customary international human rights law binding upon armed groups should be constituted, finding that it will be formed through State practice and opinio juris. It ends by examining different articulations of the theory that armed groups are bound by customary international law by accountability mechanisms, evaluating their credence and making suggestions for their improvement.

Author(s):  
Steven Wheatley

International Human Rights Law has emerged as an academic subject in its own right, separate from, but still related to, International Law. This book explains the distinctive nature of the new discipline by examining the influence of the moral concept of human rights on general international law. Rather than make use of moral philosophy or political theory, the work explains the term ‘human rights’ by examining its usage in international law practice, on the understanding that words are given meaning through their use. Relying on complexity theory to make sense of the legal practice in the United Nations, the core human rights treaties, and customary international law, The Idea of International Human Rights Law shows how a moral concept of human rights emerged, and then influenced the international law doctrine and practice on human rights, a fact that explains the fragmentation of international law and the special nature of International Human Rights Law.


Author(s):  
Paul David Mora

SummaryIn its recent decision in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), the International Court of Justice (ICJ) held that Italy had failed to respect immunities enjoyed by Germany under international law when the Italian courts allowed civil actions to be brought against Germany for alleged violations of international human rights law (IHRL) and the law of armed conflict (LOAC) committed during the Second World War. This article evaluates the three arguments raised by Italy to justify its denial of immunity: first, that peremptory norms of international law prevail over international rules on jurisdictional immunities; second, that customary international law recognizes an exception to immunity for serious violations of IHRL or the LOAC; and third, that customary international law recognizes an exception to immunity for torts committed by foreign armed forces on the territory of the forum state in the course of an armed conflict. The author concludes that the ICJ was correct to find that none of these arguments deprived Germany of its right under international law to immunity from the civil jurisdiction of the Italian courts.


Author(s):  
Rhona K. M. Smith

This chapter examines the international legal context of human rights. It first considers the historical evolution of international human rights law, with particular emphasis on the reincarnation of philosophical ideals as international laws (treaties), before discussing the principal sources of international human rights law such as customary international law and ‘soft’ law. It then describes the various forms of expressing human rights, along with the core international human rights instruments. It also explores the mechanisms for monitoring and enforcing human rights, including the United Nations system, regional human rights systems, and national human rights systems. Finally, it explains the process followed for a state wishing to be bound to the provisions of a treaty and the benefits of listing human rights in treaties.


2008 ◽  
Vol 41 (1-2) ◽  
pp. 87-174 ◽  
Author(s):  
Grant T. Harris

Various political realities influence the Israeli occupation of the West Bank and the Gaza Strip and, more generally, the vitality of the international law of occupation. The law of occupation—though ill-suited to modern international relations and ill-equipped for prolonged occupation—has been almost universally invoked as applicable to the Occupied Palestinian Territory (OPT). At the same time, international human rights law is increasingly viewed as applicable to occupation. This creates a dilemma for Israel because international humanitarian law and international human rights law contain conflicting prescriptions and policy goals with respect to the administration of occupied territory. In many instances, occupants seek United Nations Security Council action in order to reconcile this tension and to secure legal and political cover for their actions. By acting under Chapter VII of the United Nations Charter; the Security Council can create a select legal patchwork applicable to a particular occupation. This use of Chapter VII resolutions by the Security Council to create international law by fiat is an important trend in modern occupation. Yet geopolitics determines access to—and the content of—such resolutions, and the sensitive political context of the OPT currently makes this avenue unavailable to Israel. For the same reason, opponents of the Israeli occupation are unable to secure Security Council action to clarify and enforce Israeli legal obligations in the OPT. This Article considers these issues from the perspectives of both Israel and Palestinians in order to examine why the relative gain and loss in each case is not immediately clear. This Article also discusses how the legality of Israeli conduct in the OPT may be gauged in light of the conflicting international legal obligations imposed by human rights law and the law of occupation. A broader exploration of the impact of these phenomena reveals that these political realities serve to increase the influence of the Security Council while further undercutting the utility and relevance of the international law of occupation.


2021 ◽  
Vol 9 (1) ◽  
pp. 1-22
Author(s):  
Ramat Tobi Abudu

As a result of pirates’ unique modus operandi in the Gulf of Guinea (GoG), the current approach to counter-piracy is mainly securitised and repressive. This approach follows the international provisions on piracy framed based on the customary international law categorising pirates as “enemy of mankind”; which, considering the vicious nature of the crime, is quite justified. Moreover, the increase in piracy activities at sea within the GoG is foreseeable considering the economic recession faced by countries within the region due to the Covid-19 pandemic. This prediction calls for the strengthening of law enforcement operations at sea, which must be justifiable in international human rights law in order to ensure the protection of all persons. Thus, reviewing the current piracy laws and their coherence with international human rights law is a requisite. This paper recognises the repressive counter-piracy approach’s success, but takes a glance from a human rights lens, which raises questions relating to “lawfulness”. Consequently, this paper builds on the existing literature criticising the repressive policy towards countering piracy in the GoG. It also advances the research probing the alignment of counter-piracy operations with human rights obligations. This paper additionally takes it a step further by evaluating the piracy laws in the GoG and their alignment with human rights provisions. These findings set a new course towards a more sustainable approach to countering piracy in the GoG, balancing rights and security approaches towards ensuring the protection of lives at sea. 


Author(s):  
Tilman Rodenhäuser

Chapter 5 adds to the contemporary discourse on human rights obligations of non-state armed groups by showing that in many situations, there is a clear legal need for these obligations. This chapter first engages in the debate on whether and to what extent certain human rights treaties address armed groups directly. Second, it shows that under the law of state responsibility, states are generally not responsible for human rights violations committed by non-state entities. Third, it recalls that under international human rights law, states have an obligation to protect human rights against violations committed by armed groups. However, it argues that because this cannot be a strict obligation but is one that depends on states’ capacities and the particular circumstances, often this framework cannot adequately protect individuals against human rights violations by armed groups. The result is a legal and practical need for human rights obligations of non-state armed groups.


2021 ◽  
pp. 092405192110169
Author(s):  
Matthieu Niederhauser

The implementation of international human rights law in federal States is an underexplored process. Subnational entities regularly enjoy a degree of sovereignty, which raises questions such as whether they implement obligations of international law and how the federal level may ensure that implementation takes place at the subnational level. This article aims to answer these questions, using the implementation of the Convention on Preventing and Combating Violence against Women and Domestic Violence (Convention) in Switzerland as a case study. To implement the Convention at the cantonal level, federal actors decided to use networks of civil servants in charge of domestic violence issues, who act as governmental human rights focal points (GHRFPs). This article is based on original empirical data, on 25 interviews with State officials who participate in this implementation. The findings show how complex GHRFPs networks work in practice to implement the Convention and highlight the role played by numerous non-legal State actors in this process. As a result, the article argues that international human rights law implementation becomes more diversified both within and across federal States.


2021 ◽  
Vol 11 (2) ◽  
pp. 25-39
Author(s):  
Vera Rusinova ◽  
Olga Ganina

The article analyses the Judgment of the Supreme Court of Canada on the Nevsun v. Araya case, which deals with the severe violations of human rights, including slavery and forced labor with respect of the workers of Eritrean mines owned by a Canadian company “Nevsun”. By a 5 to 4 majority, the court concluded that litigants can seek compensation for the violations of international customs committed by a company. This decision is underpinned by the tenets that international customs form a part of Canadian common law, companies can bear responsibility for violations of International Human Rights Law, and under ubi jus ibi remedium principle plaintiffs have a right to receive compensation under national law. Being a commentary to this judgment the article focuses its analysis on an issue that is of a key character for Public International Law, namely on the tenet that international customs impose obligations to respect human rights on companies and they can be called for responsibility for these violations. This conclusion is revolutionary in the part in which it shifts the perception of the companies’ legal status under International Law. The court’s approach is critically assessed against its well-groundness and correspondence to the current stage of International law. In particular, the authors discuss, whether the legal stance on the Supreme Court of Canada, under which companies can bear responsibility for violations of International Human Rights Law is a justified necessity or a head start.


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