Methodology of regulation of new types of weapons by means of international humanitarian law: emergence and development

The purpose of the article is to identify the methodology, used in international humanitarian law for the regulation of new types of weapons. Under the settlement of the objectives of the article, regulation is understood as the establishment of permits, prohibitions and restrictions on the use of this type of weapon in accordance with the basic principles of international humanitarian law. The article is methodologically based on the works of foreign and Ukrainian researchers, devoted to the problems of the settlement of new weapons systems in international humanitarian law. The empirical basis of the article was formed by international treaties in the field of international humanitarian law and codified customs of this industry, as reflected in the codifications, developed by the International Committee of the Red Cross. The article establishes that in international humanitarian law there is an obligation for states to assess the compliance of new weapons systems with international humanitarian law. At the same time, this norm has two disadvantages. First, it is too abstract, which allows states to avoid the obligation to assess each time with reference to the fact that a certain type of weapon does not fall under the definition of a new type of weapon. Secondly, international humanitarian law does not contain specific mechanisms to hold violating states accountable. It is concluded, that it is necessary to revise the current international legal regulation of the obligation to assess new weapons systems in the direction of its concretization and strengthening of responsibility for non-compliance. Corresponding changes can be made to the Additional Protocol to the Geneva Conventions of 1977, or introduced by adopting a separate protocol.

Twenty-First-Century Torture

Immediately following the September 11, 2001, terrorist attacks, members of the George W. Bush administration signaled that current rules regarding intelligence, detention, and interrogation were too confining. With approval from the Justice Department’s Office of Legal Counsel (OLC), the president declared that the Geneva Conventions’ detention and interrogation guidelines would not apply to Al Qaeda and Taliban detainees. The problem with Geneva, administration lawyers argued, was that it would tie interrogators’ hands. The CIA and the military wanted an explicit legal blessing for their interrogation programs. They got it in the form of a series of memos by the OLC and military lawyers, who defined torture in exceedingly narrow terms. The result was “enhanced interrogation,” which the administration claimed did not amount to torture but was still a sufficiently “tough” program to break hardened terrorists.

Who Are Protected by the Fundamental Guarantees under International Humanitarian Law? Part 2: Breaking with the Control Requirement in Light of the icc Case Law

International humanitarian law provides for fundamental guarantees, the content of which is similar irrespective of the nature of the armed conflict and which apply to individuals even if they do not fall into the categories of specifically protected persons under the Geneva Conventions. Those guarantees, all of which derive from the general requirement of human treatment, include prohibitions of specific conduct against persons, such as murder, cruel treatment, torture, sexual violence, or against property, such as pillaging. However, it is traditionally held that the entitlement to those guarantees depends upon two requirements: the ‘status requirement’, which basically means that the concerned persons must not or no longer take a direct part in hostilities, and the ‘control requirement’, which basically means that the concerned persons or properties must be under the control of a party to the armed conflict. This study argues in favour of breaking with these two requirements in light of the existing icc case law. That study is divided into two parts, with each part devoted to one requirement and made the object of a specific paper. The two papers follow the same structure. They start with general observations on the requirement concerned, examine the relevant icc case law and put forward several arguments in favour of an extensive approach to the personal scope of the fundamental guarantees. The first paper, which was published in the previous issue of this journal, dealt with the status requirement. It especially delved into the icc decisions in the Ntaganda case with respect to the issue of protection against intra-party violence. It advocated the applicability of the fundamental guarantees in such a context by rejecting the requirement of a legal status, on the basis of several arguments. Those arguments relied on ihl provisions protecting specific persons as well as on the potential for humanizing ihl on the matter and also on the approach making the status requirement relevant only when the fundamental guarantees apply in the conduct of hostilities. The second paper, which is published here, deals with the control requirement. It examines several icc cases in detail, including the Katanga and Ntaganda cases, in relation to the issue of the applicability of the fundamental guarantees in the conduct of hostilities. It is argued that the entitlement to those guarantees is not dependent upon any general control requirement, and that, as a result, some of these guarantees may apply in the conduct of hostilities. This concerns mainly those guarantees whose application or constitutive elements do not imply any physical control over the concerned persons or properties.

International Law and Weapons Review

International law requires that, before any new weapon is developed, purchased or modified, the legality of its use must be determined. This book offers the first comprehensive and systemic analysis of the law mandating such assessments – Article 36 of the 1977 Additional Protocol I to the Geneva Conventions. Underpinned by empirical research, the book explores the challenges the weapons review authorities are facing when examining emerging military technology, such as autonomous weapons systems and (autonomous) cyber capabilities. It argues that Article 36 is sufficiently broad to cover a wide range of military systems and offers States the necessary flexibility to adopt a process that best suits their organisational demands. While sending a clear signal that law should not simply follow technological developments, but rather steer them, the provision has its limits, however, which are shaped and defined by the interpretative decisions made by States.

Jus ex bello and international humanitarian law: States’ obligations when withdrawing from armed conflict

This article considers the international legal obligations relevant to States when withdrawing from situations of armed conflict. While a growing literature has focused on precisely when armed conflicts come to a legal end, as well as obligations triggered by the cessation of active hostilities, comparatively little attention has been paid to the legal implications of withdrawals from armed conflict and the contours of the obligations relevant to States in doing so. Following in the wake of just war scholarship endeavouring to distil jus ex bello principles, this article examines States’ obligations when ending their participation in armed conflicts from the perspective of international humanitarian law (IHL). It shows that while it is generally understood that IHL ceases to apply at the end of armed conflict, this is in reality a significant simplification; a number of obligations actually endure. Such rules act as exceptions to the general temporal scope of IHL and continue to govern withdrawing States, in effect straddling the in bello and post bellum phases of armed conflict. The article then develops three key end-of-participation obligations: obligations governing detention and transfer of persons, obligations imposed by Article 1 common to the four Geneva Conventions, and obligations relating to accountability and the consequences of conflict.

SYRIA – “THE WAR WITH MULTIPLE PROXIES”. VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW AND HUMAN RIGHTS

The civil war in Syria, triggered by the pro-democracy demonstrations of the "Arab Spring", was a complicated combination of religious, cultural and ethnic-identity contradictions. The non-international conflict was turned into a "battlefield" for foreign powers, which led to the transformation of a civil war into a "war with multiple proxies". The United Nations' efforts to mediate the conflict, based on a six-point plan, remained in the draft phase. Amnesty International and Human Rights Watch have denounced flagrant violations of human rights and international humanitarian law by the al-Assad regime, which has widely used non-discriminatory weapons banned in violation of the Geneva Conventions, 1949. The Bashār al-Assad regime is accused by the international community of being guilty of war crimes and crimes against humanity, but attempts to incriminate it have failed.

Who Are Protected by the Fundamental Guarantees under International Humanitarian Law? Part 1: Breaking with the Status Requirement in Light of the icc Case Law

International humanitarian law provides for fundamental guarantees, the content of which is similar irrespective of the nature of the armed conflict, and which are applicable to individuals even if they do not fall into the categories of specifically protected persons under the 1949 Geneva Conventions. Those guarantees, all of which derive from the general requirement of human treatment, include prohibitions of specific types of conduct against persons, such as murder, cruel treatment, torture and sexual violence, or against property, such as pillaging. However, it is traditionally held that entitlement to those guarantees depends upon two requirements: the ‘status requirement’, which basically means that the concerned persons must not or must no longer take a direct part in hostilities, and the ‘control requirement’, which basically means that the concerned persons or properties must be under the control of a party to the armed conflict. This study argues in favour of breaking with these two requirements, in light of the existing ICC case law. The study is divided into two parts, with each part devoted to one requirement and made the object of a specific paper. The two papers follow the same structure. They start with general observations on the requirement concerned, examine the relevant ICC case law and put forward several arguments in favour of an extensive approach to the personal scope of the fundamental guarantees. The first paper, which is published in this issue, deals with the status requirement. It especially delves into the ICC decisions in the Ntaganda case with respect to the issue of protection against intra-party violence. It advocates for the applicability of the fundamental guarantees in such a context by rejecting the requirement of a legal status, on the basis of several arguments. Those arguments rely on IHL provisions protecting specific persons, on the potential for humanizing IHL on the matter and on the approach making the status requirement relevant only when the fundamental guarantees apply in the conduct of hostilities. The second paper, which will be published in a coming issue, deals with the control requirement. It examines several ICC cases in detail, including the Katanga and Ntaganda cases, in relation to the issue of the applicability of the fundamental guarantees in the conduct of hostilities. It is argued that the entitlement to those guarantees is not dependent upon any general control requirement, and that, as a result, some of these guarantees (mainly those whose application or constitutive elements do not imply any physical control over the concerned persons or properties) may apply in the conduct of hostilities.

The Geographical Reach of International Humanitarian Law in Transnational Armed Conflict

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.

“Or any other similar criteria”: Towards advancing the protection of LGBTQI detainees against discrimination and sexual and gender-based violence during non-international armed conflict

Discrimination and sexual and gender-based violence committed against lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) detainees remains one of the most pressing contemporary humanitarian challenges. This article focuses on the interpretation of the phrase “or any other similar criteria” as contained in Article 3 common to the four Geneva Conventions, upon which adverse distinction is prohibited, in order to qualify sexual orientation and gender identity as prohibited grounds of adverse distinction. The interpretation of “or any other similar criteria” will be embarked upon by employing the general rule of treaty interpretation provided for in the Vienna Convention on the Law of Treaties, so as to qualify sexual orientation and gender identity as “any other similar criteria” and ultimately to realize the protection of LGBTQI detainees against discrimination and sexual and gender-based violence during non-international armed conflict.

Additional Protocol II: Elevating the minimum threshold of intensity?

This paper examines the notion of intensity in the context of common Article 3 and Additional Protocol II (AP II) to the Geneva Conventions in order to establish whether AP II demands a different intensity threshold from the minimum threshold of intensity contemplated in common Article 3. The paper considers the question of whether the inclusion of the term “sustained” in the phrase “sustained and concerted military operations” intrinsic to the threshold in Article 1(1) of AP II introduces a temporal requirement in addition to mere protracted armed violence. The paper argues that the inclusion of the term “sustained” in Article 1(1) of AP II potentially demands prolonged protracted armed violence. The research aims to contribute to the existing literature on the notion of intensity demanded by the scope of application inherent in AP II through an interrogation of the phrase “sustained” military operations by employing the rules of treaty interpretation and by examining relevant case law and scholarly debate. In this way, the author hopes to contribute towards filling a lacuna with regard to the minimum threshold for intensity in the context of treaty law concerned with the classification of non-international armed conflicts.