Towards a Single and Comprehensive Notion of ‘Civilian Population’ in Crimes against Humanity

Although an essential element of the definition of crimes against humanity is that a civilian population be targeted, there is no agreement on what ‘civilian population’ means in this context. The notion has been given different meanings depending on whether the crimes are committed in times of conflict or peacetime. In times of conflict, preference is given to a broad approach based on international humanitarian law. More problematic is the attribution of a specific content to the notion in peacetime, where even discrimination has been suggested as a defining criterion. In this article we contend that a single notion of civilian population in crimes against humanity applicable in every circumstance is needed. Hence, we suggest determining the civilian population on the basis of the rules on State responsibility in international human rights law and general international law in order to exclude those endowed with public authority from the civilian population.

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The ECCC’s Contribution to Substantive ICL

Journal of International Criminal Justice ◽

10.1093/jicj/mqaa019 ◽

2020 ◽

Vol 18 (3) ◽

pp. 689-700

Author(s):

Kai Ambos

Keyword(s):

Crimes Against Humanity ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Radical Interpretation ◽

Civilian Population ◽

Starting Point ◽

Short Essay

Abstract In this short essay, I will argue that the ‘civilian population’ requirement in crimes against humanity (CAH) provisions (e.g. Article 7(1) ICC Statute) must either be radically restricted by way of a teleological (purpose-based) interpretation or — even better — abolished in future CAH provisions. While the traditional International Humanitarian Law approach certainly needs to be adjusted with regard to CAH, such an adjustment does not resolve the considerable limitation of the protective scope of CAH due to the ‘civilian population’ requirement. The contribution of the Extraordinary Chambers in the Courts of Cambodia to the debate is to be welcomed and serves as a useful starting point for the more radical interpretation and necessary reform of CAH.

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International Humanitarian Law after Kosovo: Is lex lata Sufficient?

Nordic Journal of International Law ◽

10.1163/157181002400497858 ◽

2002 ◽

Vol 71 (1) ◽

pp. 39-54 ◽

Cited By ~ 2

Author(s):

Keyword(s):

Federal Republic ◽

Armed Conflict ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Civilian Population ◽

Definition Of

AbstractThis article discusses the principles of international humanitarian law in relation to the armed conflict that affected Kosovo and other parts of the Federal Republic of Yugoslavia in the spring of 1999. Since the armed action of the NATO countries exclusively existed of acts of air warfare, the discussion is focused on targeting and the interpretation of the definition of military objectives. The question is put whether lex lata proved to be satisfactory during the Kosovo crisis, or whether a de lege ferenda discussion is called for in order to achieve a better protection of the civilian population.

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COUNTERING “FOREIGN TERRORIST FIGHTERS”: A CRITICAL APPRAISAL OF THE FRAMEWORK ESTABLISHED BY THE UN SECURITY COUNCIL RESOLUTIONS

The Italian Yearbook of International Law Online ◽

10.1163/22116133-90000114a ◽

2016 ◽

Vol 25 (1) ◽

pp. 227-250

Author(s):

Francesca Capone

Keyword(s):

Security Council ◽

Armed Conflicts ◽

International Humanitarian Law ◽

International Human Rights Law ◽

Humanitarian Law ◽

Refugee Status ◽

Un Security Council ◽

International Refugee Law ◽

Definition Of ◽

Terrorist Acts

Terrorism constitutes one of the most serious threats to international peace and security. The newest challenge posed by this threat is represented by the phenomenon of “foreign terrorist fighters”. Current estimates place the number of foreigners who have joined the ongoing armed conflicts in the Middle East between 20,000 and 30,000. How many of these foreign fighters also fall within the definition of foreign terrorist fighters (i.e. those travelling abroad with a “terrorist” intent) provided by UN Security Council Resolution 2178 (2014) is very difficult to assess. In primis because the resolution refers to “terrorists”, “terrorist acts”, and “terrorist training” without actually defining “terrorism” and thus leaving to each Member State the task to determine the breadth and the contours of this concept. Secondly because the text lacks legal certainty with regard to many other crucial aspects, e.g., the relationship between counter-terrorism and international humanitarian law, the interpretation of the term “State of residence”, and the risk of abuse of refugee status. These shortcomings not only jeopardize the ability to implement a uniform approach, but they also increase the likelihood of fostering abusive responses. This article argues that Resolution 2178 has not been adopted in a legal vacuum, on the contrary it extensively builds on the anti-terrorism framework established by previous Security Council resolutions and thus it inherits and exacerbates many old and unresolved issues. Ultimately, the present article seeks to determine to what degree the new set of binding obligations placed upon Member States to thwart the phenomenon of foreign terrorist fighters is effective and it discusses the extent to which it could enhance or hinder counter-terrorism’s compliance with international human rights law, international humanitarian law and international refugee law.

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Torture in International Human Rights and International Humanitarian Law: The Actor and the Ad Hoc Tribunals

Leiden Journal of International Law ◽

10.1017/s0922156505002864 ◽

2005 ◽

Vol 18 (3) ◽

pp. 541-556 ◽

Cited By ~ 3

Author(s):

SANDESH SIVAKUMARAN

Keyword(s):

Human Rights ◽

Ad Hoc ◽

International Humanitarian Law ◽

International Human Rights Law ◽

Humanitarian Law ◽

Human Rights Law ◽

International Human Rights ◽

Convention Against Torture ◽

International Human ◽

Definition Of

In seeking to define torture in international humanitarian law, the ICTY and ICTR have turned to the definition of torture contained in the UN Convention against Torture for guidance. The Convention definition contains a requirement that the actor be a public official or other person acting in an official capacity. The ad hoc tribunals have put forward various views as to whether this is an element of the definition of torture in international humanitarian law. This article examines these views. Potentially more significant are the pronouncements of the tribunals on the actor element of the definition of torture in international human rights law. This article also explores these pronouncements. It compares them with the drafting history of the Convention against Torture and with the jurisprudence of the Committee against Torture, the European Court of Human Rights and the UN Human Rights Committee. It questions whether the approach of the ad hoc tribunals is part of a trend towards a wider reading of ‘the actor’ in international human rights law.

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Who is a civilian in Afghanistan?

International Review of the Red Cross ◽

10.1017/s181638312100076x ◽

2021 ◽

pp. 1-30

Author(s):

Ioanna Voudouri

Keyword(s):

Good Faith ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Status Change ◽

Civilian Population ◽

Legal Rules ◽

Definition Of ◽

Legal Concepts ◽

Do So

Abstract Despite the existence of a definition of civilian status in international humanitarian law (IHL), differences in the application of this definition – both in theory and in practice – continue to be observed. One of the contexts where these differences remain palpable (and do so for various fighting parties) is Afghanistan, a country where civilian harm has remained high for several years. This article explores the legal concepts of civilian and civilian population, including how they have been formed and interpreted and, ultimately, what protection they afford to persons who belong in these categories. The second part of the article brings these questions into the Afghan context, one that is complex and where cultural and religious implications should not be overlooked. Public statements, reports and codes of fighting parties in the country which touch upon civilian status are presented, followed by the civilian experience in Afghanistan, particularly focusing on the reported harm. Ultimately, it is proposed that despite the factual and contextual confusion, the existing legal rules and interpretations, when applied in good faith, suffice to ensure both that those who are civilians under IHL are protected and that the threats which some civilians’ behaviour might pose can be effectively addressed without a status change.

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OSAMA BIN LADEN: A WAR WAGED WITHIN THE GAPS IN INTERNATIONAL LAW

Pretoria Student Law Review ◽

10.29053/pslr.v5i.2141 ◽

2011 ◽

Author(s):

Reuben Cronjé ◽

Sarah McGibbon

Keyword(s):

International Law ◽

Armed Conflict ◽

International Humanitarian Law ◽

International Human Rights Law ◽

Humanitarian Law ◽

Human Rights Law ◽

International Human Rights ◽

International Human ◽

Osama Bin Laden ◽

Definition Of

The recent demise of arch-terrorist Osama bin Laden at the hands of United States (US) Navy Seals has given rise to furious debate as to the legality thereof. The broadest question to ask is whether bin Laden’s killing can be justified in terms of international law. Indeed, it is not even clear which legal paradigm should be utilised to answer this conundrum. In this article it will be shown that the American term, ‘war on terror’, does not fit neatly into the definition of either an international or non-international armed conflict and is therefore not comfortably governed by the rules of either. The concept of selfdefence, desperately needing clarification, will then be proposed as something which operates outside these two paradigms. The aforementioned discussions will lead to an analysis of whether the correct over-arching legal system to apply is international humanitarian law (the law of war) or international human rights law; or whether these two can legitimately operate concurrently. Finally, some brief thoughts will be added regarding the legality of the actual killing of bin Laden.

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The Legality of Closure on Land and Safe Passage Between the Gaza Strip and the West Bank

Asian Journal of International Law ◽

10.1017/s2044251320000272 ◽

2020 ◽

pp. 1-39

Author(s):

Marco LONGOBARDO

Keyword(s):

West Bank ◽

Gaza Strip ◽

Local Population ◽

International Humanitarian Law ◽

International Human Rights Law ◽

Humanitarian Law ◽

The West ◽

Occupied Territory ◽

The Gaza Strip

Abstract This paper explores the legality of the land closure imposed upon the Gaza Strip by Israel. After having considered the area under occupation, the paper argues that the legality of the closure must be determined under international humanitarian law, international human rights law, the principle of self-determination of peoples, and the Israeli-Palestinian agreements. In the light of these rules, the arbitrary closure of the Gaza Strip should be considered illegal because it breaches the unity between the Gaza Strip and the West Bank, and because it violates the freedom of movement of the local population. Moreover, the closure breaches the relevant rules pertaining to the transit of goods in occupied territory. The paper concludes that most of the violations caused by the closure affect peremptory rules which produce obligations erga omnes, so that any state in the international community is entitled to react under the law of state responsibility.

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

International Review of the Red Cross ◽

10.1017/s1816383110000597 ◽

2010 ◽

Vol 92 (879) ◽

pp. 569-592 ◽

Cited By ~ 11

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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