Proportionality

State Responsibility ◽

Humanitarian Law ◽

Secondary Sources ◽

Jus Ad Bellum ◽

Self Defence

Chapter 3 examines proportionality. As with Chapter 2, it employs primary and secondary sources of international law to provide a more coherent and granular realization of this requirement and how it operates in practice. In particular, it offers a nuanced analysis of the various factors and interests that inform the review of ‘how much’ force states may use in their defence and whether other states, international organizations, courts and scholars might view such action as excessive. Chapter 3 draws upon the laws of state responsibility to consider how a diversity of interests are affected by the exercise of self-defence. Applicable rules of international humanitarian law are also examined, including how they interact with the jus ad bellum on a regime level and might affect a review of jus ad bellum proportionality in specific instances.

The Obligation to Afford Reparation to Injured Individuals

10.1093/oso/9780198808442.003.0004 ◽

2017 ◽

Author(s):

Carla Ferstman

Keyword(s):

Human Rights ◽

International Law ◽

Humanitarian Law ◽

Human Rights Treaties ◽

The Law ◽

The Right ◽

Right Of Access ◽

The Relationship

This chapter considers the consequences of breaches of human rights and international humanitarian law for the responsible international organizations. It concentrates on the obligations owed to injured individuals. The obligation to make reparation arises automatically from a finding of responsibility and is an obligation of result. I analyse who has this obligation, to whom it is owed, and what it entails. I also consider the right of individuals to procedures by which they may vindicate their right to a remedy and the right of access to a court that may be implied from certain human rights treaties. In tandem, I consider the relationship between those obligations and individuals’ rights under international law. An overarching issue is how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and particularly, their application to individuals.

Fiqh al-Jihād in Modern Warfare: Analyzing Prospects and Challenges with Reference to International Humanitarian Law

IIUM Law Journal ◽

10.31436/iiumlj.v26i2.406 ◽

2018 ◽

Vol 26 (2) ◽

pp. 241

Author(s):

Fajri Matahati Muhammadin ◽

Thara Kunarti Wahab

Keyword(s):

International Law ◽

Humanitarian Law ◽

Jus In Bello ◽

Literature Research ◽

Modern Times ◽

Jus Ad Bellum ◽

Modern Warfare ◽

The Way

In discussing the compatibility of the Islamic concept of jihād and international law, most researches focus on the jus ad bellum (justifications of war) of fiqh al jihād and less on the jus in bello (lawful conducts of war). This article observes the relation between fiqh al-jihād and modern international humanitarian law, and sets out both the prospects and challenges of such a concept in modern times. It is argued that some challenges are due to the lack of emphasis on the principles of fiqh al-jihād that are shared with modern International Humanitarian Law, or the existence of differing opinions between Islamic scholars. Using a literature research, this article finds that the way to address this is to make a unified code of fiqh al-jihād, involving scholars from all schools of thoughts, to agree on a common set of rules.

Dilemmas over individual and state responsibility for violations of international humanitarian law

Medjunarodni problemi ◽

10.2298/medjp0404345m ◽

2004 ◽

Vol 56 (4) ◽

pp. 345-369

Author(s):

Keneth Mengjo

Keyword(s):

International Law ◽

Legal Issues ◽

Armed Conflicts ◽

State Responsibility ◽

Human Suffering ◽

Humanitarian Law ◽

The Subject ◽

International Law Commission ◽

Law Commission

This paper attempts an explanation to some of the complex legal issues surrounding the whole concept of responsibility for violations of international humanitarian law. The arguments here are based on reflections on the draft articles on the responsibility of states for the violations of international humanitarian law adopted by the international law commission as well as opinions of experts on the subject, treaties, conventions international jurisprudence, and internationally recognized principles and customs that govern conduct in armed conflicts so as to limit human suffering particularly of non combatants.

International Humanitarian Law and Military Intervention: Reflections on Operation Allied Forces in the Former Federal Republic of Yugoslavia in 1999

International Journal of Law and Public Policy ◽

10.36079/lamintang.ijlapp-0202.132 ◽

2020 ◽

Vol 2 (2) ◽

pp. 38-46

Author(s):

Pedzisai Sixpence ◽

Alouis Chilunjika

Keyword(s):

Federal Republic ◽

International Law ◽

Military Intervention ◽

Humanitarian Law ◽

Sources Of Information ◽

Secondary Sources ◽

The North ◽

Nation States ◽

Reasonable Proportion

Military intervention is a crucial tool used to compel nation states to abide by the principles of international law. The United Nations, through its Charter (Chapter VII) authorises the use of force by the UN and or regional organisations as a legitimate scheme of settling international disputes. A closer look on the majority of these interventions, however, shows that the conduct of the forces taking part in these interventions turn to violate some crucial principles of international law. Additional Protocol 1 of 1977 to the 1949 Geneva protocols provides for the regulations in terms of the conduct of forces in an armed conflict to minimise civilian carnage and injuries as well as damage on civilian objects. This paper assessed the effectiveness of International Humanitarian Law (IHL) in cases of a military intervention. The study was a case study focusing on the experiences of the North Atlantic Treaty Organisation (NATO) forces that intervened in the former Federal Republic of Yugoslavia (FRY) in 1999. The study depended on secondary sources of information. The paper reveals that forces taking part in these operations normally harm civilian population and objects beyond reasonable proportion if they do not pay attention to the details on the ground. The paper then recommends that more should be done to uphold and adhere to the provisions of Chapter VI of the UN Charter while ensuring that forces taking part in military interventions are parties to key international legislations that govern their conduct to prevent states from purposefully violate the law.

The Relationship between Jus Ad Bellum and Jus In Bello

10.1093/law/9780199673049.003.0057 ◽

2016 ◽

Cited By ~ 1

Author(s):

Okimoto Keichiro

Keyword(s):

Armed Conflict ◽

Humanitarian Law ◽

Jus In Bello ◽

Jus Ad Bellum ◽

Expert Opinions ◽

Legal Implications ◽

Law Of Armed Conflict ◽

The Relationship ◽

Self Defence

This chapter discusses the relationship between jus ad bellum (international law regulating the resort to force) and jus in bello (law of armed conflict). It examines state practice, international decisions, and expert opinions to determine how the relationship has been addressed in practice. The chapter considers the question of whether jus in bello applies equally to the unlawful and lawful parties to an armed conflict before turning to the legal implications of the cumulative requirements of the law of self-defence and international humanitarian law (IHL) imposed on a use of force in self-defence. Finally, it considers the legal implications of the concurrent application of Chapter VII of the UN Charter and IHL with respect to use authorized under Chapter VII.

Human Rights and International Humanitarian Law Breaches Attributable to International Organizations

10.1093/oso/9780198808442.003.0003 ◽

2017 ◽

Author(s):

Carla Ferstman

Keyword(s):

Human Rights ◽

International Law ◽

International Organization ◽

Humanitarian Law ◽

Attribution Of Responsibility

The chapter considers how to determine whether a particular internationally wrongful act is attributable to an international organization, or another actor under international law. It considers the circumstances in which international organizations may breach the human rights and international humanitarian law obligations that they are bound to respect and incur liability in the case of a breach. It also considers when the conduct amounting to a breach is an act of the organization for the purposes of assigning responsibility. It analyses the framework for the attribution of responsibility set out in the Draft Articles on the Responsibility of International Organizations.

International Organizations and the Fight for Accountability

10.1093/oso/9780198808442.001.0001 ◽

2017 ◽

Cited By ~ 3

Author(s):

Carla Ferstman

Keyword(s):

Human Rights ◽

International Law ◽

Humanitarian Law ◽

Progressive Development ◽

The Law

This book is concerned with reparation for human rights and international humanitarian law breaches committed by or attributed to international organizations. These breaches constitute internationally wrongful acts which, according to the International Law Commission’s Draft articles on the responsibility of international organizations, give rise to an obligation on the offending organization to afford reparation. However, in practice, the obligation to afford reparation is unimplemented. The book explores why this is. It considers how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and, particularly, their application to remedies and reparation owed to individuals. It reviews the various gaps in the law and the limitations of existing redress mechanisms. The book analyses the cogency of the arguments and rationales that have been used by international organizations to limit their liability and the scope and functioning of redress mechanisms, included by the resort to lex specialis principles. It is postulated that the standards of reparation must be drawn from the nature of the breach and the resulting harms and not by who is responsible for the breach. In this respect the book is an exercise in the progressive development of the law. Having determined that existing redress mechanisms cannot afford adequate or effective remedies and reparation, the book explores how to move towards a model that achieves greater compliance.

The Use of PMSCs by the United Nations in Times of Armed Conflict, Application of IHL and Responsibility Matters

10.31228/osf.io/kbmwh ◽

2017 ◽

Author(s):

Javier Gamarro González

Keyword(s):

United Nations ◽

International Law ◽

Peace Operations ◽

Humanitarian Law ◽

International Court Of Justice ◽

Court Of Justice ◽

International Court ◽

The United Nations

The companies dealing with military and security matters are on the rise, and today they provide services to a very wide client list, which includes states and international organizations (IOs). It is well known that these companies have been deployed in a large number of armed conflicts, and indeed, some of them have become prominent in the sector not only for their military results but also for their abuses of international humanitarian law and human rights. Surprisingly, it is lesser known that the United Nations (UN) has also had recourse to private military and security companies in the context of United Nations military operations with regard to the maintenance of international peace and security.The engagement of private military security companies in UN peace operations entails multiple legal questions. This dissertation is especially intended to shed some light over the extent to which PMSCs deployment in UN peace operations is compatible with international humanitarian law and how the law of institutional responsibility deals with the violations of international humanitarian law committed by such companies when providing services to the UN. For that purpose and to that extent due recourse has been made to the most relevant international law sources on the matter, such as the Geneva Conventions, their Additional Protocols, and other relevant instruments such as the ILC Articles on State and IO responsibility, and the Montreux Document. Jus cogens and international custom, including the practice of international organizations and states, and opinion juris as ascertained by legal scholars and the International Court of Justice, play an essential role in this dissertation, since the United Nations has not become yet a party to any IHL treaty, thus employing an inductive methodology. A comparative approach was adopted in regard to the observations of the most eminent institutions and jurists, and domestic and international courts, including the International Court of Justice and the European Court of Human Rights for the purpose of ascertaining the different rules of attribution of conduct existing in international law. Besides, certain decisions of the latter Court were analysed in order to clarify by analogy whether the application of international humanitarian law and the imputation of acts can function under the same degree of control test.

Non-govemmental human rights organizations and international humanitarian law

International Review of the Red Cross ◽

10.1017/s0020860400091312 ◽

1998 ◽

Vol 38 (324) ◽

pp. 531-536

Author(s):

Rachel Brett

Keyword(s):

Human Rights ◽

International Law ◽

State Responsibility ◽

Humanitarian Law ◽

International Level ◽

Abuse Of Power ◽

Human Rights Organizations ◽

The Government ◽

The Way

At the heart of human rights work is the attempt to protect individuals from the abuse of power or neglect on the part of their own governments. At the international level, this translates into State responsibility for the way in which the government treats its own people, supplementing the older international law regarding the treatment of aliens and the law of war which also (originally) addressed only the treatment of non-nationals.

Has ‘Justice Been Done’? The Legality of Bin Laden's Killing Under International Law

Israel Law Review ◽

10.1017/s002122371200009x ◽

2012 ◽

Vol 45 (2) ◽

pp. 341-366 ◽

Cited By ~ 5

Author(s):

Kai Ambos ◽

Josef Alkatout

Keyword(s):

International Law ◽

Armed Conflict ◽

The United States ◽

Al Qaeda ◽

Humanitarian Law ◽

Legal Regime ◽

Special Forces ◽

Osama Bin Laden ◽

Self Defence

The killing of Osama bin Laden by US Special Forces on 2 May 2011 raises several questions of international law with regard to the legality of this particular operation and the permissibility of targeted killings of international terrorists in general. In this article it will be argued, on the basis of an analysis of the applicable international law, that the killing of bin Laden cannot be justified under international humanitarian law because there is no armed conflict between the United States and Al Qaeda. Even if one were to assume the existence of such an armed conflict, bin Laden's killing would only have been lawful if Al Qaeda were to be considered an organised armed group within the meaning of international humanitarian law and bin Laden could have been killedquamembership of this group. Otherwise, his killing could only have been lawful if he was (still) taking a direct part in hostilities. In any case, in the absence of an armed conflict, under the applicable legal regime of peacetime, the killing could only be justified in a situation of self-defence or an immediate danger for others. As this situation apparently did not exist, the killing of bin Laden amounted to an extrajudicial execution. On another note, the operation may also have violated international law by failing to respect Pakistan's territorial sovereignty. Ultimately, this depends on the recognition of a (pre-emptive) right to self-defence under Article 51 of the UN Charter, in particular taking into account the immediacy criterion.