Non-State Courts: Illegal or Conditional?

2019 ◽  
Vol 10 (2) ◽  
pp. 240-264
Author(s):  
Pouria Askary ◽  
Katayoun Hosseinnejad
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
State Courts ◽  
International Humanitarian Law ◽  
Islamic State ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Governance System ◽  
Islamic Thought

The Islamic State of Iraq and Levant (Da’esh) has put in place a governance system encompassing judicial structures to justify its grotesque violence. This paper seeks to evaluate the legitimacy of these courts under two complementary perspectives. Whereas establishing courts by an insurgent group during armed conflict should meet the requirements of international humanitarian law (ihl), because Da’esh claims to ground its laws on Islam, these courts should also follow the requirements of Islam as its constituting law. The paper starts with analysing whether international law entitles armed groups to establish their courts. It argues that although such courts are not prohibited at first glance under international law, they should meet the requirements of being regularly constituted while respecting minimum judicial guarantees. Since Da’esh has sought to found its legitimacy on Islam, the paper argues that Da’esh’s interpretation of Islam is not compatible with any major schools of Islamic thought.

scholarly journals Non-State Armed Groups, Detention Authority in Non-International Armed Conflict, and the Coherence of International Law: Searching for a Way Forward

2017 ◽  
Vol 30 (2) ◽  
pp. 435-456 ◽  
Author(s):  
DARAGH MURRAY
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Basis ◽  
Armed Groups ◽  
International Regulation ◽  
Current State ◽  
Treaty Interpretation

AbstractInternational humanitarian law establishes explicit safeguards applicable to detention occurring in non-international armed conflict. However, debate exists as to whether these treaty provisions establish an implicit legal basis for detention. This article approaches this debate in light of the application of international humanitarian law to non-state armed groups. It examines the principal arguments against implicit detention authority and then applies the law of treaty interpretation to international humanitarian law's detention-related provisions. On the basis of current understandings of international law – and the prohibition of arbitrary detention in particular – it is concluded that international humanitarian law must be interpreted as establishing implicit detention authority, in order to ensure the continued regulation of armed groups. Although, perhaps, problematic from certain states’ perspective, this conclusion is reflective of the current state of international law. However, this is not necessarily the end of the story. A number of potential ‘ways forward’ are identified: implicit detention authority may be (i) rejected; (ii) accepted; or (iii) re-examined in light of the non-state status of armed groups, and what this means for the content of the prohibition of arbitrary detention. These scenarios are examined in light of the desire to ensure: the coherency of international law including recognition of the role of armed groups, the continued effectiveness of international humanitarian law, and state sovereignty. An emphasis is placed on understanding the non-state status of armed groups and what this means for international regulation and the content of imposed obligations.

Special agreements as a means of enhancing compliance with IHL in non-international armed conflicts: An inquiry into the governing legal regime

2014 ◽  
Vol 96 (895-896) ◽  
pp. 1195-1224 ◽  
Author(s):  
Ezequiel Heffes ◽  
Marcos D. Kotlik
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Decision Making Process ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Legal Regime ◽  
Geneva Conventions ◽  
Domestic Law

AbstractCommon Article 3 to the four Geneva Conventions encourages the parties to a non-international armed conflict to bring into force international humanitarian law provisions through the conclusion of special agreements. Since armed groups are ever more frequent participants in contemporary armed conflicts, the relevance of those agreements as means to enhance compliance with IHL has grown as well. The decision-making process of special agreements recognizes that all the parties to the conflict participate in the clarification and expansion of the applicable rights and obligations in a way that is consistent with the principle of equality of belligerents. This provides incentives for armed groups to respect the IHL rules they have themselves negotiated. However, even upon the conclusion of such agreements, it remains unclear which legal regime governs them. This paper will argue that special agreements are governed by international law instead of domestic law or asui generislegal regime.

scholarly journals The Geographical Reach of International Humanitarian Law in Transnational Armed Conflict

2021 ◽  
Vol 90 (3) ◽  
pp. 292-311
Author(s):  
Elliot Winter
Keyword(s):  
Armed Conflict ◽  
International Humanitarian Law ◽  
Islamic State ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Geneva Conventions ◽  
Military Presence ◽  
The World ◽  
Suitable Standard ◽  
International Boundaries

Abstract Non-international armed conflict between States and organised armed groups is a reality of warfare. Since the emergence of the 1949 Geneva Conventions, this form of conflict has been regulated by international humanitarian law. However, a subset of this category known as ‘transnational armed conflict’ has seen aggressive proliferation over recent decades as groups such as the Islamic State of Iraq and Syria have taken advantage of the internet and other technologies to expand their reach beyond national frontiers and strike States around the world. This phenomenon has left the geographical extent of international humanitarian law – which has historically relied on State boundaries to determine its ambit – unclear. This article examines the main options for delimiting the geographical reach of the regime in transnational armed conflict. It considers approaches based on international boundaries; ‘hot battlefields’; ‘global application’ and ‘territorial control’ before ultimately concluding that a method based on ‘military presence’ would be the most suitable standard.

In Search of Legal Grounds to Detain for Armed Groups

2012 ◽  
Vol 3 (1) ◽  
pp. 160-191 ◽  
Author(s):  
Nelleke van Amstel
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Basis ◽  
Armed Groups ◽  
The Law ◽  
Legal Grounds

Arbitrary deprivation of liberty is prohibited by international law; hence even during armed conflict internment of adversaries must have a legal basis in international humanitarian law or national law. The law of non-international armed conflict contains an inherent power to intern. Nevertheless, a further legal source is needed to ensure detention is not arbitrary, outlining grounds and procedure of detention. Such legal grounds do not exist for internment by organised armed groups. This article will outline the possible consequences for members of armed groups when interning without a further legal basis, thus in violation of the prohibition of arbitrary detention, and will subsequently suggest solutions to overcome the imbalance between obligations imposed upon and instruments granted to these actors.

scholarly journals Applicability of the international humanitarian law to the fight against the Islamic State during the 2013-2017 conflict in Iraq

2021 ◽  
Vol 200 (2) ◽  
Author(s):  
Krystian Mularczyk ◽  
Karolina Saska
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
International Conflict ◽  
The United States ◽  
Customary Law ◽  
International Humanitarian Law ◽  
Islamic State ◽  
Humanitarian Law ◽  
Geneva Conventions ◽  
Law Of Armed Conflict

The article addresses the applicability of international humanitarian law during the armed conflict in Iraq in 2013-2017 waged against the Islamic State. The paper answers how to classify this conflict against the background of the law of armed conflict. The argumentation for considering it as a non-international conflict with the Islamic State and the Iraqi government as parties is presented. The discussed failure to recognize the Islamic State's status as a state within the meaning of international law does not classify the armed conflict as international. The classification has not been changed by the United States and allied states' intervention, which, as one at the invitation of the Iraqi government, does not mean qualifying the conflict as international. The article also discusses the scope of the norms of international humanitarian law that apply to the conflict in question. It primarily concerns Article 3 that is common to the Geneva Conventions and customary law. Protocol II supplementing the provisions of the Geneva Conventions will not apply as Iraq is not a signatory to it.

Organizing Rebellion

2018 ◽  
Author(s):  
Tilman Rodenhäuser
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Crimes Against Humanity ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Contemporary Debate ◽  
International Crimes ◽  
Control Part

This book identifies the degree of organization required from non-state armed groups (i) to become party to an armed conflict and thereby bound by applicable international humanitarian law; (ii) to have possible human rights obligations; and (iii) to create a context in which international crimes can be committed. Part I identifies three principal criteria that any party to a non-international armed conflict—including decentrally organized armed groups, transnational groups, or cyber groups—must meet: it must be a collective entity with sufficient capabilities to engage in hostilities and the ability to ensure respect for basic humanitarian norms. Part II conceptualizes contemporary debate and international practice on the question of whether armed groups have human rights obligations. It suggests that the sources and scope of potential human rights obligations of armed groups are understood best on a spectrum, with consideration given to three categories: groups exercising quasi-governmental authority; groups exercising de facto control over territory and population; and groups exercising no territorial control. Part III examines the requisite degree of organization of armed groups to create contexts in which crimes against humanity or genocide can be committed. It argues that the degree of power and organization of groups behind these crimes depends on whether the group instigates or actually commits the crimes. In sum, this book shows that the requisite degree of organization of armed groups to have obligations under different fields of international law cannot be determined in the abstract. It depends on the specificities of each field of law and the circumstances of each case.

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.

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.

scholarly journals Instytucjonalizacja współpracy w zakresie grobownictwa wojennego

2015 ◽  
pp. 88-103
Author(s):  
Joanna Szymoniczek
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Red Cross ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
The Public ◽  
Social Organizations ◽  
Law Of Armed Conflict ◽  
The Us ◽  
Special Protection

Resting places of fallen soldiers – war cemeteries – are monuments to soldiers’ heroism, and thus are of special significance not only for those who have lost their loved ones, but also for entire nations, countries and communities. Therefore, such cemeteries are created under the provisions of relevant authorities, and then put under the special protection of the public. These issues are closely regulated by international law established throughout the twentieth century. Cemeteries are protected by the state on whose territory individual objects are placed. However, the problem of cemeteries is more and more often the responsibility of social organizations. According to the international humanitarian law of armed conflict, specific tasks in this respect are assigned to the tracing services of Red Cross and Red Crescent societies, who deal with the registry of exhumation, inhumation and body transfer, hold deposits, establish the fate of victims of war and issue death certificates. Institutions that deal with exploration, keeping records, exhumation of remains and the construction or revaluation of the graves of fallen citizens buried outside the borders of their own countries include the Council for the Protection of Struggle and Martyrdom Sites, the German People’s Union for the Care of War Graves, the Commonwealth War Graves Commission, the Austrian Red Cross (Österreichisches Schwarzes Kreuz), the American Battle Monuments Commission, the US Commission for the Preservation of America’s Heritage Abroad and the Italian Commissariat General for the Memory of Killed in War (Commissariato Generale per le Onoranze Caduti in Guerra). For political reasons, tasks related to war cemeteries are assigned to social organizations, because their actions are believed to be more effective and less bureaucratic than those of states.

Sign in / Sign up

Export Citation Format

Share Document