Authorizing Attacks in Response to Terrorist Attacks

2019 ◽  
pp. 21-39
Author(s):  
Patrycja Grzebyk
Keyword(s):  
Use Of Force ◽  
The United States ◽  
Armed Conflicts ◽  
Terrorist Attacks ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Legal Justification ◽  
The Law ◽  
Legal Constraints

Some states (mainly the United States and Israel) intermingle the terms/principles of the law of armed conflicts/international humanitarian law regime and the regime of the law on the use of force in order to avoid legal constraints and to justify attacks against non-state armed groups in violation of the sovereignty of other states and the rights of particular persons. The counterterrorism strategy is created under the influence of legal arguments, and thus the recent trend of abusive interpretation of the regimes could encourage decision-makers to resort to military measures instead of using less intrusive instruments such as criminal cooperation. This tendency is more visible in times of crisis. States are then still interested in having legal justification for their actions, but they tend to see the role of law differently: the law is expected to serve the authorities, rather than to guide them, when the state’s fundamental interest—its security—is under threat.

Occupation as Liberation: International Humanitarian Law and Regime Change

2004 ◽  
Vol 18 (3) ◽  
pp. 51-64 ◽  
Author(s):  
Simon Chesterman
Keyword(s):  
Security Council ◽  
Regime Change ◽  
Use Of Force ◽  
The United States ◽  
Military Occupation ◽  
Humanitarian Law ◽  
Post Conflict ◽  
Un Security Council ◽  
The Law

The U.S. invasion of Iraq in 2003 has been the subject of much discussion for its impact on the use of force outside of UN Security Council authorization. Less commented upon is the fact that the so-called “Operation Iraqi Freedom” resurrected a body of international law that had been dormant through the second half of the twentieth century: the law of military occupation. Developed at a time when war itself was not illegal, this doctrine became something of an embarrassment after the UN Charter established a broad prohibition on the use of force. Nevertheless, through the 1990s the United Nations itself had become involved in operations in Kosovo that looked distinctly like military occupation. Even the most liberal reading of the instruments governing occupation law, however, finds it hard to reconcile this law with military intervention and post-conflict occupation premised on regime change. This article first surveys the law of military occupation before briefly examining the role of the UN Security Council in post-conflict administration. It then turns to the ambiguous responsibilities accorded to the United States and Britain as occupying powers in Iraq in 2003–2004.

scholarly journals Lessons for the law of armed conflict from commitments of armed groups: identification of legitimate targets and prisoners of war

2011 ◽  
Vol 93 (882) ◽  
pp. 463-482 ◽  
Author(s):  
Sandesh Sivakumaran
Keyword(s):  
Armed Conflict ◽  
Ad Hoc ◽  
Prisoners Of War ◽  
International Standards ◽  
Armed Conflicts ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Rules Set

AbstractArmed groups frequently issue ad hoc commitments that contain a law of armed conflict component. These commitments detail the obligation of the relevant armed group to abide by international humanitarian law, the Geneva Conventions, or particular rules set out in the commitment. They commit the group to abide by international standards, sometimes exceed international standards, or in certain respects violate international standards. Although these commitments are often overlooked, they offer certain lessons for the law of armed conflict. This article considers the commitments of armed groups with respect to two specific areas of the law that are either of contested interpretation or seemingly inapplicable to non-international armed conflicts, namely the identification of legitimate targets and the prisoners of war regime.

scholarly journals THE IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN LAW: CURRENT AND INHERENT CHALLENGES

2007 ◽  
Vol 10 ◽  
pp. 45-73 ◽  
Author(s):  
Marco Sassòli
Keyword(s):  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Asymmetric Conflicts ◽  
The Media ◽  
The Law

AbstractThe implementation of international humanitarian law (IHL) is confronted with many challenges. Some of them are inherent since IHL applies to armed conflicts: a situation must be classified before IHL can be applied. Existing implementation mechanisms either do not function at all or have their limits. In certain conflicts, such as asymmetric conflicts, and with regard to certain players, such as armed groups, it is particularly difficult to obtain respect of IHL. Beyond that, there is a perhaps even more dangerous challenge in perception.The gap between the burgeoning promises of protection by the law made by doctrine, jurisprudence and sometimes even by States, and the systematic non-respect of that law, which (in the author's view wrongly) transpires from the media and NGO reports, undermines the credibility of the law and the willingness to respect it. The author advocates ways to reduce this gap.

19 The Law of Non-International Armed Conflict

2021 ◽  
Author(s):  
Fleck Dieter
Keyword(s):  
Twentieth Century ◽  
Armed Conflict ◽  
Use Of Force ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Basic Principles ◽  
Progressive Development ◽  
Law Of Armed Conflict ◽  
The Law

This chapter provides an overview of the law of non-international armed conflicts and its progressive development. The law of armed conflict, as it has developed in the last part of the nineteenth and the first part of the twentieth century, deals predominantly with wars between states. Its basic principles and rules are, however, likewise relevant for non-international armed conflicts: in all armed conflicts, elementary considerations of humanity must be respected under all circumstances, in order to protect victims, to reduce human sufferings, and to minimize damages to objects vital for survival. Therefore, the parties to the conflict do not have an unlimited choice of the means and methods of conducting hostilities, nor of selecting the targets to be attacked, and they must protect the victims from the effects and consequences of war. This concept is reflected in the principles and rules of international humanitarian law, to be respected by all and, while taking military necessity into account, limiting the use of force for humanitarian reasons. Parties to the conflict respecting these principles and rules are considered as respecting the international order, while those seriously violating them will commit internationally wrongful acts and perpetrators are liable to punishment.

Personal Self-Defense and the Standing Rules of Engagement

2018 ◽  
pp. 109-124
Author(s):  
Christopher M. Ford
Keyword(s):  
Unmanned Aerial Vehicle ◽  
Armed Conflict ◽  
Use Of Force ◽  
Armed Forces ◽  
Armed Conflicts ◽  
Armed Groups ◽  
Self Defense ◽  
Aerial Vehicle ◽  
The Law ◽  
The U.S

The U.S. military Standing Rules of Engagement (SROE) restrict the use of force in armed conflict to either self-defense or “mission-specific” rules of engagement, which refer to the use of force against members of enemy armed forces or organized armed groups that have been “declared hostile.” This bifurcation of authority works well in an international armed conflict, where the enemy force is uniformed and easily distinguished. In these circumstances, the overwhelming number of engagements are against identified hostile forces. In many non-international armed conflicts, however, combatants actively attempt to camouflage their status, and U.S. forces find themselves engaging enemy forces under a self-defense framework. This creates problems. Consider, for example, a situation where three individuals of unknown affiliation launch an attack against a U.S. military convoy in Afghanistan. After a short engagement, the attackers get in a van and speed away from the attack site. The U.S. convoy is disabled, but an unmanned aerial vehicle tracks the van as it retreats into the desert. Thirty minutes later an AH-64 Apache attack helicopter arrives on scene above the still-retreating van. Can the Apache attack the vehicle? The van is retreating and poses no threat, thus self-defense principles would not allow for the use of force, despite the fact that the occupants are clearly directly participating in hostilities. This chapter addresses three questions: Why are the SROE drafted in this manner? What is the basis in the law for the SROE’s approach to self-defense? What are the problems presented by this approach?

The ICRC, the League and the Report on the re-appraisal of the Role of the Red Cross (III): Protection and assistance in situations not covered by international humanitarian law

1978 ◽  
Vol 18 (205) ◽  
pp. 210-214
Keyword(s):  
Armed Conflicts ◽  
Red Cross ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Similar Nature ◽  
The Law

Originally, and up to 1949, the law of Geneva protected only victims of wars between States. Article 3, common to the four Conventions of 1949, is applicable to all non-international armed conflicts; the Protocol additional II to these Conventions covers non-international armed conflicts in which hostilities reach a certain degree of intensity; it does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts (Protocol II, art. 1, par. 2).

Sanctions as a means of obtaining greater respect for humanitarian law: a review of their effectiveness

2008 ◽  
Vol 90 (870) ◽  
pp. 221-247 ◽  
Author(s):  
Anne-Marie La Rosa
Keyword(s):  
Transitional Justice ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Armed Groups ◽  
The Law ◽  
Compliance With The Law ◽  
Lasting Influence

AbstractThere are several aspects to reviewing the role of punishment in ensuring greater respect for international humanitarian law. First, there is the question of improving compliance with the law, second, the focus on the punishment itself and, third, the characteristics of the perpetrators. The situation of armed groups is dealt with separately. The article also examines transitional justice as an accompanying measure and the problem of how to take care of the victims. Finally, suggestions are presented which could help the parties concerned in the establishment of a system of sanctions capable of having a lasting influence on the conduct of weapon bearers so as to obtain greater respect for international humanitarian law.

The right to life in armed conflict: does international humanitarian law provide all the answers?

2006 ◽  
Vol 88 (864) ◽  
pp. 881-904 ◽  
Author(s):  
Louise Doswald-Beck
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Use Of Force ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Right To Life ◽  
The Law ◽  
The Right

AbstractThis article describes the relevant interpretation of the right to life by human rights treaty bodies and analyses how this might influence the law relating to the use of force in armed conflicts and occupations where international humanitarian law is unclear. The concurrent applicability of international humanitarian law and human rights law to hostilities in armed conflict does not mean that the right to life must, in all situations, be interpreted in accordance with the provisions of international humanitarian law. The author submits that the human rights law relating to the right to life is suitable to supplement the rules of international humanitarian law relating to the use of force for non-international conflicts and occupation, as well as the law relating to civilians taking a “direct part in hostilities”. Finally, by making reference to the traditional prohibition of assassination, the author concludes that the application of human rights law in these situations would not undermine the spirit of international humanitarian law.

International humanitarian law's old questions and new perspectives: On what law has got to do with armed conflict

2016 ◽  
Vol 98 (903) ◽  
pp. 995-1017
Author(s):  
Thomas Forster
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
Current Understanding ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Recent Scholarship ◽  
State Behaviour ◽  
The Law ◽  
A Current

AbstractThe question of whether international humanitarian law (IHL) has an impact on how armed conflicts are conducted is a controversial one. Sceptics claim that the law is virtually irrelevant in determining State behaviour in armed conflict. Proponents point to its importance in mitigating the suffering caused by war. This paper looks at recent scholarship from historians, political scientists, economists and lawyers that challenges traditional narratives held dear by the law's sceptics and proponents alike. It then discusses implications of these approaches for a current understanding of the role of IHL in today's armed conflicts. The new perspectives allow for a broader understanding of IHL's central issues and permit us to ask more pertinent questions when looking at the law with the aim of putting it to use for the protection of civilians.

Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions

1991 ◽  
Vol 85 (1) ◽  
pp. 1-20 ◽  
Author(s):  
George H. Aldrich
Keyword(s):  
United States ◽  
The United States ◽  
Point Of View ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Additional Protocol ◽  
Geneva Conventions ◽  
The Law ◽  
The Military

Protocol I Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, concluded in Geneva in 1977, is the most important treaty codifying and developing international humanitarian law since the adoption of the four Conventions themselves; and it is the first such treaty since 1907 to deal with methods and means of warfare and the protection of the civilian population from the effects of warfare. As such, its contributions to the law were long overdue and, on the whole, are both positive from the humanitarian point of view and practicable from the military point of view. Moreover, it offers the prospect of improved compliance with international humanitarian law, which would greatly benefit the victims of war and would bring the law in action closer to the law in the books. Yet, in January 1987, the President of the United States informed the Senate that he would not submit the Protocol to the Senate for its advice and consent to ratification, calling it “fundamentally and irreconcilably flawed.” It is apparent that President Reagan’s decision resulted from misguided advice that exaggerated certain flaws in the Protocol, ignored the statements of understanding that would have remedied them, and misconstrued a humanitarian and antiterrorist instrument as one that could give aid and comfort to “terrorists.”

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