Part I: Conclusion

2018 ◽  
Author(s):  
Tilman Rodenhäuser
Keyword(s):  
Eighteenth Century ◽  
Civil War ◽  
Basic Principle ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Laws Of War ◽  
Connected Group ◽  
The Individual ◽  
Contemporary Practice

Analysing the development of the concept of non-state parties to an armed conflict from the writings of philosophers in the eighteenth century through international humanitarian law (IHL) treaty law to contemporary practice, three threads can be identified. First, as pointed out by Rousseau almost two and a half centuries ago, one basic principle underlying the laws of war is that war is not a relation between men but between entities. Accordingly, the lawful objective of parties cannot be to harm opponents as individuals but only to overcome the entity for which the individual fights. This necessitates that any party to an armed conflict is a collective, organized entity and not a loosely connected group of individuals. Second, de Vattel already stressed that civil war is fought between two parties who ‘acknowledge no common judge’ and have no ‘common superior’ on earth....

Prisoners of War: A Comparative Study of the Principles of International Humanitarian Law and the Islamic Law of War

2009 ◽  
Vol 9 (4) ◽  
pp. 623-649 ◽  
Author(s):  
Mohamed El Zeidy ◽  
Ray Murphy
Keyword(s):  
Armed Conflict ◽  
Islamic Law ◽  
Geneva Convention ◽  
Prisoners Of War ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Laws Of War ◽  
Law Of War ◽  
The Third ◽  
The Individual

AbstractThe treatment of prisoners of war (POWs) has been an issue of concern to all those engaged in armed conflict for centuries. The problem of how to deal with POWs is not a new one and their treatment is a question with which the laws of war have been particularly concerned. Not all persons captured in the course of armed conflict are entitled to POW status. Generally, only persons recognized as "combatants" in accordance with international humanitarian law are entitled to POW status upon capture by an adverse party in armed conflict. Under the Third Geneva Convention of 1949, POWs are the responsibility of the capturing power from the moment of capture, and not of the individual or military units, which actually capture them. POWs must at all times be humanely treated and the Third Convention provides clear rules in relation to their camps, quarters, food and clothing. The principles embodied in the Islamic Law of War also provide a comprehensive framework for the protection of POWs. Nevertheless, there are some important differences between Islamic Law of War and the principles contained in the Geneva Conventions and Hague Regulations, especially in relation to triggering the application of the laws of war and the concept of armed conflict. What is most striking is the similarity in the protection provided by both legal frameworks. However, the single biggest challenge to both regimes remains the implementation of the relevant principles.

INTERNATIONAL CONFLICTS IN CAMBODIA AND AFGHANISTAN

2021 ◽  
Author(s):  
Subira Onwudiwe
Keyword(s):  
Civil War ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Conflicts ◽  
Civil Conflicts ◽  
Foreign Intervention

A civil war marked by the intervention of foreign military troops is known as an internationalized non-international armed conflict.' This type of armed conflict happens often and presents a number of issues of concern to international lawyers. The scope of this article is confined to the application of international humanitarian law in such circumstances, and it does not address the validity of foreign involvement in a civil war. In civil conflicts involving foreign intervention, the sides seldom agree on the facts or their interpretation. As a result, this article is dependent on certain factual assumptions, assumptions for which evidence cannot always be provided.

scholarly journals From armed conflict to urban violence: transformations in the International Committee of the Red Cross, international humanitarianism, and the laws of war

2020 ◽  
Vol 26 (4) ◽  
pp. 1061-1083
Author(s):  
Miriam Bradley
Keyword(s):  
Armed Conflict ◽  
International Committee ◽  
Moral Authority ◽  
Red Cross ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Urban Violence ◽  
Laws Of War ◽  
Violence Reduction ◽  
International Humanitarianism

The International Committee of the Red Cross traditionally seeks to protect and assist victims of armed conflict. Over the past 10 years, however, the International Committee of the Red Cross and several other major international humanitarian agencies have turned their attention to situations of urban violence that fall short of the international humanitarian law thresholds for armed conflict. This article examines the institutional consequences of expanding the International Committee of the Red Cross mandate to include urban violence, to make a three-fold argument. First, the incorporation of urban violence into its mandate has led to significant and surprising shifts in the organization’s humanitarian boundaries: from eschewing any effort to prevent or reduce conflict and prioritising neutrality and dialogue with all parties to conflict, the International Committee of the Red Cross has begun engaging in violence-prevention and violence-reduction activities, compromising its neutrality and limiting dialogue with some armed groups. Second, because the International Committee of the Red Cross is such an important and influential actor in international humanitarianism, these shifts in its boundaries have the potential to transform definitions of humanitarianism. Third, these shifts may serve to undermine the moral authority of the International Committee of the Red Cross to persuade combatants in international humanitarian law contexts to comply with international humanitarian law, irrespective of the rightness or wrongness of their or their opponents’ goals. Ultimately, then, they may erode the distinction between jus ad bellum and jus in bello in the laws of war.

14 Human Rights in Armed Conflict

2021 ◽  
Author(s):  
Kleffner Jann K
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
The State ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Legal Relationship ◽  
The Law ◽  
The Individual

This chapter explains the application of human rights in armed conflicts. International humanitarian law has much in common with the law of human rights, since both bodies of rules are concerned with the protection of the individual. Nevertheless, there are important differences between them. Human rights law is designed to operate primarily in normal peacetime conditions, and governs the vertical legal relationship between a state and its citizens and other persons subject to its jurisdiction. Human rights law applies primarily within the territory of the state that is subject to the human rights obligation in question. International humanitarian law, by contrast, is specifically designed to regulate situations of armed conflict. These differences between human rights law and international humanitarian law have led some to argue that human rights law is only intended to be applicable in time of peace. However, it is now generally accepted that human rights continue to apply during armed conflict. Hence, international humanitarian law and human rights law can apply simultaneously in situations of armed conflict.

Applying Core Principles of International Humanitarian Law to Military Operations in Space

2020 ◽  
Vol 25 (2) ◽  
pp. 263-290
Author(s):  
Jack Mawdsley
Keyword(s):  
Armed Conflict ◽  
International Humanitarian Law ◽  
Future Scenarios ◽  
Humanitarian Law ◽  
Laws Of War ◽  
Military Operations ◽  
Earth Space ◽  
Law Of Armed Conflict ◽  
New Challenges ◽  
The Law

Abstract This article looks at how international humanitarian law may apply to military operations in space. Though the laws of war are well established on earth, space poses new challenges to the principles of distinction, proportionality and precaution in attack. Future scenarios whereby operations might be directed against moon-based objects, or where military astronauts might be deployed into space raise further questions as to how these principles should apply. By considering the laws of war as they are enforced on earth, and through engagement with academic opinion, this article seeks to understand the level of protection provided by the law when applied to this new domain. In anticipation of official clarification, this approach leads to reasoned arguments for reform in key areas. The challenges posed are addressed through both a contemporary and a future lens. Broad conclusions that the law of armed conflict does not shift seamlessly into space are strengthened by the numerous anomalies that ensue.

The regulation of non-international armed conflicts: Can a privilege of belligerency be envisioned in the law of non-international armed conflicts?

2014 ◽  
Vol 96 (893) ◽  
pp. 29-66 ◽  
Author(s):  
Claus Kreβ ◽  
Frédéric Mégret
Keyword(s):  
Civil War ◽  
International Law ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Jus In Bello ◽  
The Creation ◽  
State Actors ◽  
The Law

The Debate section of the Review aims to contribute to reflection on contemporary questions of humanitarian law, policy or action. In this issue of the Review, we invited two experts in international humanitarian law (IHL) – Claus Kreβ and Frédéric Mégret – to debate on how IHL applicable in non-international armed conflict (NIAC) should develop. In the two pieces that follow, Professor Kreβ submits for debate a new norm of international law outlawing NIACs – a jus contra bellum internum – with a corresponding set of rules applicable in NIACs – a jus in bello interno. The jus in bello interno would give the “privilege of belligerency” – akin to combatants' privilege in international armed conflicts – to non-State actors in NIACs, providing an incentive for them to comply with these new rules of civil war. Frédéric Mégret critically examines the proposed privilege of belligerency, pointing out its problematic aspects and positing that the creation of such a privilege is, in fact, not desirable.

Insufficient Knowledge in Kunduz: The Precautionary Principle and International Humanitarian Law

2020 ◽  
Vol 25 (1) ◽  
pp. 53-79
Author(s):  
Emma J Marchant
Keyword(s):  
Precautionary Principle ◽  
Armed Conflict ◽  
Federal Court ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
The Precautionary Principle ◽  
Lack Of Information ◽  
Operational Application ◽  
Federal Court Of Justice ◽  
Insufficient Knowledge

Abstract The targeting protocols applied by forces during armed conflict are some of the most secretive documents held by any military. However, their role in applying principles of international humanitarian law (IHL) means that they are key to understanding their development. This piece is primarily concerned with practical and operational application of the precautionary principle under IHL; how much knowledge is sufficient to carry out an attack lawfully during modern armed conflict. In order to establish if a standard has developed with the increase in intelligence, surveillance and reconnaissance technology, this piece uses the framework of an investigation into an incident in Kunduz, Afghanistan in 2009. I explore the difficulties of obtaining information post-incident, the differential standards expected by North Atlantic Treaty Organization (NATO) and the Bundesgerichtshof (German Federal Court of Justice), and the manner in which these can be evaluated through the principles of proportionality, distinction and precautions in attack. The piece looks at the interrelated issues raised by the Rules of Engagement and Tactical Directives, as well as the problems surrounding the clarity of intelligence available. I argue that this case is demonstrative of the failings inherent in the application and practical use of the precautionary principle outlined by IHL. The lack of transparency afforded in, and after, incidents of this nature prevents objective analysis and so the development of IHL can be obfuscated. I conclude that the lack of information following incidents of this kind confuses any intelligence standard that exists under IHL.

Thresholds in Flux—the Standard for Ascertaining the Requirement of Organization for Armed Groups under International Humanitarian Law

2020 ◽  
Author(s):  
Yutaka Arai-Takahashi
Keyword(s):  
Armed Conflict ◽  
Geneva Convention ◽  
Prisoners Of War ◽  
Organizational Level ◽  
International Humanitarian Law ◽  
Threshold Condition ◽  
Special Importance ◽  
Humanitarian Law ◽  
Armed Groups ◽  
International Criminal Tribunals

Abstract The requirement of organization is supposed to be of special importance in international humanitarian law (IHL). In the situation of international armed conflict (IAC), this requirement is implicit as part of the collective conditions to be fulfilled by irregular/independent armed groups to enable their members to claim the prisoners of war status under Article 4 A(2) of the Third Geneva Convention. In a non-international armed conflict (NIAC), the eponymous requirement serves, alongside the requirement of intensity of violence, as the threshold condition for ascertaining the onset of a NIAC. While the requirement of organization has not caused much of disputes in IACs, the international criminal tribunals have shown a willingness to examine scrupulously if armed groups in NIACs are sufficiently organized. Still, this article argues that there is need for a nuanced assessment of the organizational level of an armed group in some specific phases of the ongoing armed conflict whose legal character switches (from an NIAC to an IAC, vice-versa, and from a NIAC to a law-enforcement model). It explores what rationales and argumentative model may be adduced to explain such varying standards for organization in different contexts.

Still a blind spot: The protection of LGBT persons during armed conflict and other situations of violence

2018 ◽  
Vol 100 (907-909) ◽  
pp. 237-265
Author(s):  
Alon Margalit
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Blind Spot ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Important Progress

AbstractThis article draws attention to the situation of LGBT persons during armed conflict. Subjected to violence and discrimination outside the context of armed conflict, the latter aggravates their vulnerability and exposure to various abuses. Despite important progress made with respect to their protection under human rights law, a similar effort is largely absent from the international humanitarian law discourse. This article accordingly highlights some of the norms and challenges pertaining to the protection of LGBT persons in time of war.

scholarly journals International law protecting the environment during armed conflict: gaps and opportunities

2010 ◽  
Vol 92 (879) ◽  
pp. 569-592 ◽  
Author(s):  
Michael Bothe ◽  
Carl Bruch ◽  
Jordan Diamond ◽  
David Jensen
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Environmental Law ◽  
International Humanitarian Law ◽  
Environmental Damage ◽  
Humanitarian Law ◽  
International Environmental Law ◽  
Basic Principles ◽  
Principle Of Proportionality ◽  
Definition Of

AbstractThere are three key deficiencies in the existing body of international humanitarian law (IHL) relating to protection of the environment during armed conflict. First, the definition of impermissible environmental damage is both too restrictive and unclear; second, there are legal uncertainties regarding the protection of elements of the environment as civilian objects; and third, the application of the principle of proportionality where harm to the environment constitutes ‘collateral damage’ is also problematic. These gaps present specific opportunities for clarifying and developing the existing framework. One approach to addressing some of the inadequacies of IHL could be application of international environmental law during armed conflict. The detailed norms, standards, approaches, and mechanisms found in international environmental law might also help to clarify and extend basic principles of IHL to prevent, address, or assess liability for environmental damage incurred during armed conflict.

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