Chapter XVII. Fair Trial Guarantees in Occupied Territory the Interplay between International Humanitarian Lawand Human Rights Law

2008 ◽  
pp. 447-474 ◽  
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Human Rights Law ◽  
Occupied Territory

9 Occupation

2021 ◽  
Author(s):  
Dörmann Knut ◽  
Vité Sylvain
Keyword(s):  
Human Rights ◽  
Exceptional Case ◽  
Customary Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Court Of Justice ◽  
Occupied Territory ◽  
International Court ◽  
Occupied Territories

This chapter addresses the present state of the law of occupation, highlighting also the increasing importance of human rights for the protection of civilians in occupied territories. International law on belligerent occupation determines the rights and obligations of a party to an armed conflict which occupies territory of the adverse party. It also codifies the rights and duties of the residents of such occupied territory. The treatment of the population of an occupied territory is measured against standards set by international humanitarian law and human rights law concurrently. The International Court of Justice (ICJ) left no doubt that as a rule, the specific provisions of GC IV and relevant rules of customary law relating to belligerent occupation take precedence over human rights law, as law specifically drawn up for issues arising out of belligerent occupation (lex specialis). In an exceptional case, it may be determined that a human rights rule offers greater protection to the inhabitants of an occupied territory. When assessing the interplay between international humanitarian law and human rights law, this must be done on a right-by-right or case-by-case basis, respecting the special situation of occupation, rather than in a wholesale manner.

5. Deprivations of life and liberty

2015 ◽  
Author(s):  
Andrew Clapham
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Fair Trial ◽  
Human Rights Law ◽  
Right To Life ◽  
Legal Restrictions ◽  
The Right ◽  
Association Property

‘Deprivations of life and liberty’ considers the rights to life and liberty, which may be limited through legal restrictions designed to protect a defined legitimate objective. The human rights approach starts from a presumption that we all have rights to liberty, freedom of expression, belief, assembly, association, property, and fair trial. Any restriction on these rights has to be justified as proportionate to the aims pursued by the restriction according to a four-stage schema developed in human rights law. Is the right to life absolute? When is the detention of an individual lawful?

scholarly journals Prolonged occupation: An analysis of obligations of the occupying powers in an occupied territory and contemporary challenges

2021 ◽  
Vol 2 (1) ◽  
pp. 24-37
Author(s):  
Sardar M. A. W. K. Arif
Keyword(s):  
Human Rights ◽  
Legal Framework ◽  
Legal Aspects ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Treaties ◽  
Occupied Territory ◽  
The Subject

The International Law of Occupation (ILOC) regulates all kinds of occupation. However, the other bodies of law, such as, International Humanitarian Law (IHL) and International Human Rights Law (IHRL) also apply in times of occupation. These bodies of law create obligations especially on states and in particular, on the occupying powers. The presumption is that occupations are temporary in nature but why prolonged occupations? In this context, this article focuses on legal aspects of belligerent prolonged occupation. It evaluates the international legal framework and sources of belligerent prolonged occupation. While protection of civilians is central to the bulk of texts of international treaties and the occupiers have obligations, it investigates into obligations of the occupying powers in occupied territory by analysing the existing legal framework under IHL and IHRL. Further, it also discusses the provisions of ILOC. The argument developed throughout this article is that the occupying powers are under humanitarian and human rights obligations to guarantee the best possible protection of rights of occupied people in the case of prolonged occupation in particular and adding on that IHL and IHRL apply in complementarity in situations of prolonged occupation. For the purpose of this article, qualitative method is followed, and existing literature on the subject has been analysed. 

scholarly journals The Right to a Fair Trial and the Military Justice System in Pakistan

2016 ◽  
Vol 7 (2) ◽  
pp. 330-362 ◽  
Author(s):  
Niaz A Shah
Keyword(s):  
Human Rights ◽  
Justice System ◽  
Fair Trial ◽  
Human Rights Law ◽  
Military Justice ◽  
British Military ◽  
The Right ◽  
The Military

This article analyses the military justice system of Pakistan to determine to what extent it is compatible with fair trial standards recognised by human rights law and the constitution of Pakistan. It sets out the fair trial tests and apply them to the military justice system of Pakistan. The analysis reveals that the military justice system blatantly violates fair trial standards: it is part of the Executive and is neither independent nor impartial. It runs as a detached parallel departmental justice system to the national justice system. The author also argues that the majority judgement in the 2015 Military Courts Case did not apply the correct legal tests and wrongly held that the military justice system meets the fair trial standards. It is per in curiam. The author offers recommendations for reforming the military justice system proposing that Pakistan might learn from the successful reformation of the British military justice system.

6 Right to be Tried without Undue Delay

2021 ◽  
Author(s):  
Clooney Amal ◽  
Webb Philippa
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Fair Trial ◽  
Time Limit ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Criminal Proceeding ◽  
International Human ◽  
The Right

This chapter examines the right to be tried without undue delay. The speed of a trial is integral to its overall fairness. The longer a trial takes, the longer that the defendant, still presumed innocent, is in legal jeopardy; the longer that they may be kept in pre-trial detention; and the greater the risk that witnesses may forget details or evidence may disappear. However, despite the importance of efficiency in criminal justice, chronic delays in trials in domestic jurisdictions have been widely reported. In fact, the right to be tried without undue delay is one of the most litigated aspects of the right to a fair trial. Unlike some violations, delayed proceedings are relatively easy to prove; the question is what constitutes a delay that is ‘undue’ under international human rights law. There is no global time limit for a criminal proceeding and each case must be assessed on its facts, taking into account its complexity; the conduct of the defendant, the prosecution, and other state authorities; and—for most international bodies—the prejudice caused to the defendant by the delay.

Use of force during occupation: law enforcement and conduct of hostilities

2012 ◽  
Vol 94 (885) ◽  
pp. 267-315 ◽  
Author(s):  
Kenneth Watkin
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Armed Conflict ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Right To Life ◽  
Simultaneous Application ◽  
Occupied Territory ◽  
The Right ◽  
Governing Law

AbstractThis article explores the law governing the maintenance of public order and safety during belligerent occupation. Given the potential for widespread violence associated with international armed conflict, such as occurred in 2003–2004 in Iraq, it is inevitable that military and police forces will be engaged in activities that interface and overlap. Human-rights-based norms governing law enforcement, such as the right to life, are found in humanitarian law, permitting an application of both law enforcement and conduct of hostilities norms under that body of law. This results in the simultaneous application of these norms through both humanitarian and human rights law, which ultimately enhances the protection of inhabitants of the occupied territory.

Complementing Occupation Law? Selective Judicial Treatment of the Suitability of Human Rights Norms

2009 ◽  
Vol 42 (01) ◽  
pp. 80-100 ◽  
Author(s):  
Ralph Wilde
Keyword(s):  
Human Rights ◽  
Critical Evaluation ◽  
European Convention ◽  
Human Rights Law ◽  
The United Kingdom ◽  
Occupied Territory ◽  
House Of Lords ◽  
The Status ◽  
Human Rights Norms ◽  
Human Rights Standards

This Article offers a critical evaluation of the treatment of the suitability of applying human rights law to occupation situations offered by the English House of Lords in the Al-Skeini judgment of 2007. Al-Skeini concerned the application of the European Convention on Human Rights (ECHR) to the United Kingdom in Iraq. In the decision, the majority asserted that the application of human rights law would amount to a form of “imperialism” in requiring an occupying State to impose culturally inappropriate norms in occupied territory. They also found that its application would undermine the status quo norm contained in occupation law, by obliging an occupying State to transform the legal system in occupied territory in order to bring it in line with the human rights standards in play. This Article argues that these two assertions are based on a mistaken understanding of the substantive meaning of human rights obligations in occupation situations, and the effect on this meaning of the interface with other areas of international law. It is suggested that the fear of “human rights imperialism” is, as articulated here, misconceived; that applying human rights law to occupation situations may not actually involve breaching the law of occupation; and that in any case a more sophisticated approach to the question of clashes in normative regimes needs to be adopted.

12 Detention in Armed Conflict

2020 ◽  
Author(s):  
Pejic Jelena
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Fair Trial ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Procedural Safeguards ◽  
Domestic Law

This chapter highlights deprivation of liberty or detention, which is a regular occurrence in armed conflict. Along with the conduct of hostilities, it is one of the ways in which a belligerent attempts to weaken and ultimately defeat an adversary. Detention is regulated by a large number of provisions of international humanitarian law (IHL), the underlying and overarching purpose of which is to ensure the humane treatment of persons deprived of liberty. Apart from the relevant IHL treaty provisions, rules on various aspects of detention in armed conflict are also found in customary IHL, domestic law, and human rights law. The chapter then addresses some issues which concern the topic of detention: treatment and conditions of detention, procedural safeguards in internment, fair trial rights, and the transfer of detainees.

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