NSAs severely affect civilians during armed conflicts, legal theorists are trying to bind NSAs with IHL rules and principles to protect civilians by coming up with and applying alternative laws (laws exclusively binding NSAs) or customary international laws (that are universally applicable) to reduce human suffering. 13 There have been a number of legitimate concerns about applying alternative IHL to NSAs through the use of agreements, such as the concern of providing NSAs with the legitimacy to use force, because without such agreements 14 all use of force by NSAs is considered illegitimate. 15 However, making agreements with NSAs requires admitting NSAs’ legitimate authority and thus their authority to use force. 16 As a result, theorists are stuck with the dilemma of balancing the reduction of human suffering and the legitimization of NSAs’ authority and their use of force. Accordingly, this paper seeks to explore this dilemma in detail by analysing the applicability of IHL to NSAs, while discussing its concerns and challenges. Moreover, this paper will try to summarize the legality of the current legal framework in its efforts to reduce human suffering and applying IHL to NSAs. It will also try to come up with a neutral avenue to compel NSAs to reduce human suffering without legitimizing their use of force.
drug business. They do not have political motivations and were not created as armed groups against the state government or the guerrillas. But the intensity of their violent actions and its organization must be studied to understand if they are still common criminality or they are becoming an organized armed group under the internationallaw. Remember, internationalhumanitarianlaw does not care if the motives of the confrontation are lawful or unlawful. The second clarity is that if this Colombian new armed group and others of the BACRIM met the objective qualifications, Internationalhumanitarianlaw applies automatically even if the government does not recognize them as a party. As a result, the application of the Geneva protection rules does not depend on the will or interest of any of the parties. Now, with these two clarities, let’s begin the analysis of the objective elements of the Geneva Law. In the first place, this exercise will analyze the intensity and degree of organization of Los Urabeños to determinate the applicability of common article 3 based on the Tadic test -Organization of the parties, plus intensity-.
Indeed, it was established that the Intervention Brigade qualifies as a party to the conflict, and thus must also abide by the rules applicable to the respective hostilities, at least for the time that they are actively engaged therein as combatants. This conclusion is additionally supported by the principle of equal application of the laws of armed conflict, which provides that belligerents, once party to a conflict, must be bound by IHL equally, regardless of any justification or legitimacy for their resort to force. However, it follows that the UN framework on the applicability of IHL to peacekeepers fails to specify several points, which would need further clarifications. Accordingly, it is unclear whether the protection provided for by the 1994 Convention continues to apply throughout the Intervention Brigade’s engagement in the NIAC, as its limits its scope merely for military-peacekeepers who have become active in hostilities of international nature. As a result, it is unclear whether provided immunities and privileges, as well as the criminalization of the direct targeting of peacekeepers under this Convention, continue to exist throughout their engagement in a NIAC. Furthermore, the 1999 Bulletin provides a very narrow scope regarding peacekeepers’ obligation to abide by the laws of armed conflict, namely only for the specific “extent and for the duration” they are combatants. With respect to the
The uncertainty about the possible imposition of an oil embargo was there- fore, for many, the reflection of their uncertainty about whether NATO had a solid legal justification for resorting to force at all. In addition, even if interna- tional law does recognize a right to use force by way of humanitarian interven- tion, it is still necessary to ask whether that extends to the exercise of belligerent rights over the shipping of neutral States. As was made clear earlier in this paper, the present writer is firmly of the view that there is a right of hu- manitarian intervention in an extreme case. Moreover, if internationallaw permits States to use force in such a case against the State responsible for the humanitarian crisis, then it is logical that it should also permit the taking of action which is both necessary and proportionate against neutral shipping to prevent that State from acquiring supplies needed to continue its human rights abuses or resist attempts to prevent them. But it is in considerations of this kind, and not just in references to the traditional rights of belligerents at sea, that the justification for an oil embargo needed to be found.
refraining from offering clear expressions of opinio juris regarding IHL endures. This is especially so with respect to cyber operations because such operations are typically classified. Thus, there will often be no visible State practice from which to draw even inferences of opinio juris. As non-Stateactors engage in activities that take the place of State expressions of opinio juris in the development and interpretation of IHL cyber norms, they may well be operating on partial or faulty information as to actual State practice. Whether to announce doctrinal details and clarifications, preserve flexibility through confirmation of ambiguity, or simply reject or confirm the existence of particular norms, such expressions of opinio juris manage important State legal and operational interests. Therefore, State legal agencies and agents, particularly Ministries and Departments of Defense, must be equipped, organized, and empowered to participate actively in the interpretation and development of IHL. States, and specially affected States in particular, must make responses to emerging IHL scholarship, investigations and jurisprudence a regular facet of their opinio juris. Reinvigorating opinio juris would do more than satisfy internationallaw sovereigntists. It would foster the restoration of the pluralistic IHL dialogue that formerly tested, updated, and enriched the balance between military necessity and humanitarian considerations that necessarily underpins IHL.
spouses of Presidents or Prime Ministers of countries are state or non-stateactors is a question that would potentially fill a whole chapter, but the telling question is whether it makes any real difference to whether sanctions may be lawfully imposed on them as well as the legal parameters governing the application of such measures. As has been stated, once internationallaw was supplemented with notions of individual responsibility as well as state responsibility for breaches of internationallaw, there may seem to be no reason to doubt the legality of such measures. However, whereas the vast majority of breaches of internationallaw can give rise to state responsibility there are only specific regimes, such as international criminal law and aspects of others such as internationalhumanitarianlaw, the violation of which can give rise to individual responsibility. This signifies that if sanctions are imposed on individuals for a violation of internationallaw it can only be for breach of those norms or because the violative conduct of the individual is imputable to the state. It would also have to be established that states or organisations imposing such measures have the right or duty to do so under internationallaw. However, if sanctions are imposed in order to tackle threats to international peace presented by the activities of individuals, or groups of individuals, then there is no need to establish norm violation; the key question is then whether the state or organization imposing sanctions in such circumstances has the right or power to do so.
Human security today is jeopardized not only by the prospect of states‘ deliberate use of nuclear weapons, but also by the risks and harms arising from their production, storage, transport, and deployment. They include environmental degradation and damage to health; diversion of resources; risks of accidental or unauthorized detonation caused by the deployment of nuclear forces ready for quick launch and inadequate command/control and warning systems; and risks of acquisition and use by non-stateactors caused by inadequate securing of fissile materials and warheads. Despite New START there are more than enough nuclear weapons to destroy the world. They must be abolished and the law has a pivotal role to play in their elimination. In 1996 the International Court of Justice (ICJ) spoke of ―the nascent opinio juris” of ―a customary rule specifically prohibiting the use of nuclear weapons.‖ Fifteen years later, fol- lowing the establishment of the International Criminal Court, the entry into force of the Chemical Weapons Conven- tion and the achievement of treaty bans on landmines and cluster munitions, the legal imperative for non-use and eli- mination of nuclear weapons is more evident than ever.
As it stands today, NIAC is a plural legal concept, defined differently under different treaty regimes. The basic (non-)definition of NIAC, which encompasses all others, is that in CA3. Its terms were famously elaborated by the ICTY Appeals Chamber in the Tadic Interlocutory Decision on Jurisdiction, 56 which has been widely accepted as reflecting custom. Under Tadic, CA3 requires ‘protracted armed violence’ – a threshold of intensity and possibly duration, rising above mere riots or disturbances – between a state and an armed non-state actor or between two such non-stateactors, which are sufficiently organized to conduct hostilities. 57 On the other hand, the heightened threshold of Article 1(1) AP II, which is only applicable to conflicts involving a state and a non-state actor, but not two such non-stateactors, requires the non-state actor to have an organizational structure with a responsible command, control a part of the state’s territory, the ability to conduct sustained and concerted military operations and the ability to implement the Protocol. I will leave aside the question to what extent exactly is the AP II threshold really higher from the customary CA3 one when applied to particular facts.
control agreements or cyber security agreements, breach of the agreement by the non- state actor may engage its responsibility and trigger cyber or physical countermeasures. Also breach of customary internationallaw obligations binding states, international organisations and non-stateactors would trigger countermeasures. For example, if both non-stateactors and states are bound by the customary law norm of non-intervention, breach of that norm by a non-state actor by intruding into a state s cyber infrastructure would legitimise the state to take countermeasures against the responsible non-state actor. The same would hold true between non-stateactors. If non-stateactors are bound by bilateral or multilateral agreements or by internationallaw obligations, breach of an obligation may trigger countermeasures by the affected non-stateactors. Whether non- stateactors would be able to take countermeasures against states that breached obligations towards them, the answer should be in the affirmative under the proposed framework. If a non-state actor commits violations of jus cogens rules, this may trigger coordinated action to put an end to such violations. 72 This situation is not different from existing practice where states and international organisations such as the United Nations take action against non-stateactors for violations of jus cogens norms. Under the framework proposed here, non-stateactors could also take countermeasures against other non-stateactors. One may use as an example the decision of Anonymous to attack ISIS websites in retaliation for the Paris attacks in order for the acts not to go unpunished For Anonymous it is uniting humanity against )S)S 73
There were no regulations on the formation of educational institutions and the standards of educational services to be given out of the camps until 2013 when MoNE started looking for ways to regulate and standardize educational facilities for Syrian refugee children in and out of the camps. In a circular dated 16 September 2013, it was underlined that all education services to be provided in and out of the camps was to be planned, coordinated, and mon- itored only by the Ministry and the staff appointed by the Ministry locally. An important aspect of the circular was the fact that it envisaged a new curriculum and materials to be prepared in cooperation with Syrian National Coalition, alternatively the Syrian Interim Government. However, it was not until the entering into force of the new immigra- tion law (Foreigners and International Protection Act no. 6458) in April 2014 that the education provision for Syrian refugees had a legal framework. According to FIPA, Tem- porary Protection Regime (TPR) education provision for Syrians inside and outside camps is to be under the control and responsibility of the MoNE. Following this develop- ment, MoNE circulated a notice titled “ Education and Training Services for Foreigners (2014/21)” dated 23 October 2014. With reference to the recent law on inter- national protection, the existing law on primary education on national education, the Convention on the Rights of the Child and International Covenant on Economic, Social, and Cultural Rights, this circular envisaged actions and proce- dures related to the coordination of education activities targeting foreigners including Syrians under temporary pro- tection and refugees of other nationalities. That said, due their unprecedented number reaching 3 million, Syrian ref- ugees have had a priority before the central education authorities. The important aspect of the circular for this study was the intention of MoNE to regulate all educational facilities that had been continuing with the initiative of dif- ferent non-state organizations and private enterprises through an accreditation system naming them as “ tempor- ary education centers” (TECs). With that circular, Syrian schools operated by non-stateactors without any formal status gained formal status. In TECs, Syrian teachers are
discusses other categories of persons encompassed by this term: Bernard K Freamon, 'Martyrdom, Suicide, and the Islamic Law of War: A Short Legal History' (2003) 27 Fordham InternationalLaw Journal 299, 320. For example, the Prophet said "the ink of the scholar is holier than the blood of the martyr' and as such becoming a scholar is a better station in God's eyes and thus must be a better (albeit, perhaps not the easier) way to paradise. See also Muhammad Al-Mughirah al-Bukhari, The Translations of the Meaning of Sahih al-Bukhari vol 4 (1976), 61. While the word martyr is sometimes not invoked by secular leaders, the concept of martyrdom is alluded to, particularly with reference to killing and being killed in (offensive and defensive) warfare. For example in Tony Eastley, ’New Australian War Memorial Wings Opened by PM' in AM Programme ABC Radio National, Wednesday, 27 February , 2008 08:00:00 2008., the then Australian Prime Minister (and without citing authority for this proposition) said of Australian soldiers killed in wars (for Britain and Australia) that:
specialis, some scholars suggested that a harmonious interpretation be made between the two disciplines of law as these two branches complement and not contradict each other. 67 Hence, according to the principle of complementarity, both human rights and humanitarianlaw are based on similar principles and values and can influence and strengthen each other mutually. This principle preserves the idea that internationallaw be understood as a coherent system. Internationallaw is seen as a regime in which different sets of rules and laws cohabit in a harmonious manner. This enables the interpretation of human rights in the light of humanitarianlaw and vice versa. 68 This is reiterated by the decision of the European Court of Human Rights (hereinafter “ECtHR”) in Hassan V. the United Kingdom. 69 The State’s contention that the internationalhumanitarianlaw should apply to the exclusion of international human rights law was rejected by the Court which went on to hold that the two bodies of law should be applied together and stated that “if the Court accepts the arguments of the government, it would be inconsistent with the case law of the International Court of Justice which has held that international human rights law and internationalhumanitarianlaw may apply concurrently. It also pointed out that as the ECtHR has observed in many occasions, the Convention cannot be interpreted in a vacuum and should so far as possible be interpreted in harmony with other rules of internationallaw of which it forms part.” 70
Under internationalhumanitarianlaw it is prohibited to make the object of attack a person that has surrendered. This article explores the circumstances in which the act of surrender is effective under internationalhumanitarianlaw and examines in particular how surrender can be achieved in practical terms during land warfare in the context of international and non-international armed conflict. First, this article situates surrender within its broader historical and theoretical setting, tracing its legal development as a rule of conventional and customary internationalhumanitarianlaw and arguing that its crystallisation as a law of war derives from the lack of military necessity to directly target persons that have placed themselves outside of armed conflict and that such conduct is unacceptable from a humanitarian perspective. Second, after a careful examination of state practice, this article proposes a three-stage test for determining whether persons have surrendered under internationalhumanitarianlaw: 1) have persons attempting to surrender engaged in a positive act which clearly reveals that they no longer intend to participate in hostilities? 2) is it reasonable in the circumstances prevailing at the time for the opposing force to discern the offer of surrender? and 3) have surrendered persons unconditionally submitted to the authority of their captor?
Starting with the definition of development, I propose to follow Amartya Sen and Wole Soyinka in delimitating, in opposition to cultural relativism, a philosophical concept of development, beyond the limitations of a concentration on material welfare, i. e. a process guided by universal aims of mankind, not related in a competitive manner (as for instance economic growth and human rights often are), but which incorporates corner stones of the raison d' être of the human community, like the guarantee of basic human rights (including the respect of the cultural heritage and poverty alleviation) and democratisation (as a culture of participation or, as Wole Soyinka put it, as democratic tendency) at the same time (cf. Sen, 2002:2-6; Soyinka 1994:7, 9; Hountondji 2001). - This academic definition apparently corresponds, at least in its recognition of universal human rights, with a widely accepted meaning of development in international relations, as reflected in the criteria for official development aid (ODA, e. g. of the German Government): respect for human rights, rule of law, popular participation in political decisions, development orientated governance, - although these criteria have been interpreted and implemented in a highly controversial ethnocentric manner. - On indigenous development concepts, as seen by cultural anthropology in the African context, cf. Ela 1998; Engelhard 1998.
5 See Article 37, ILC Articles on State Responsibility, op. cit. (note 1). Principle 25 of the draft Basic Principles and Guidelines (op. cit., note 2) sets out an extensive list of possible forms of satisfaction and gua- rantees of non-repetition. These include the cessation of continuing violations; the verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further unnecessary harm or threaten the safety of the victim, witnesses, or others; the search for the bodies of those killed or dis- appeared and assistance in the identification and reburial of the bodies in accordance with the cultural practices of the families and communities; an official declaration or a judicial decision restoring the dignity, reputation and legal and social rights of the victim and of persons closely connected with the victim; an apology, including public acknowledgement of the facts and acceptance of responsibility; judicial or administrative sanctions against persons responsible for the violations; commemorations and tributes to the victims; the inclusion of an accurate account of the violations that occurred in international human rights and humanitarianlaw training and in educational material at all levels; as well as measures for the prevention of the recurrence of violations.
Legal persons can therefore have obligations under internationallaw, or at least there is a strong tendency to that effect. However, virtually none of the above instruments provides for a mechanism for the enforcement of any liability that may arise or lays down any obligation for non-state entities to make reparation; they leave it to the states party to the treaties to choose how to apply the rules. Thus while it is possible to conclude that companies do have a duty under internationallaw to make reparation for damage resulting from breaches of their international obligations, it is more difficult to assert that this duty is implemented by a mechanism established by internationallaw. Nonetheless, a number of recent international texts which refer explicitly to the duty to make reparation do seem to support such a claim. One example is the Norms on the
Karen da Costa, The Extraterritorial Application of Selected Human Rights Treaties (Martinus Nijhoff Brill Leiden 2013) 60. See for example the United States that has asserted (Concluding Observations of the Human Rights Committee: United States of America UN Doc CCPR/C/79/Add.50, A/50/40 (1995) § 284) and continued to reaffirm its “long-standing position that the Covenant does not apply extraterritorially. States Parties are required to ensure the rights in the Covenant only to individuals who are (1) within the territory of a State Party and (2) subject to that State Party’s Jurisdiction” in United States Responses to Selected Recommendations of the Human Rights Committee October 10, 2007. See also UN Doc CCPR/C/ISR/2001/2 (4 December 2001) § 8 and the Human Rights Committee’s Concluding Observations on the Second Periodic Report of Israel, UN Doc CCPR/CO/78/ISR (21 August 2003), § 11, where Israel argues that the pending armed conflict bars any such application; as well as CESCR ‘Concluding observations of the Committee on Economic, Social and Cultural Rights – Israel’, (23 May 2003) UN Doc E/C.12/1/Add.90 § 15. See furthermore the perspective of the Netherlands in UN Doc CCPR/CO/72/NET/Add.l, (2003) § 19 that argued with regard to the fall of Srebrenica and the applicability of Article 2 ICCPR that: “the Government disagrees with the Committee's suggestion that the provisions of the International Covenant on Civil and Political Rights are applicable to the conduct of Dutch blue helmets in Srebrenica (para. 8). Article 2 of the Covenant clearly states that each State Party undertakes to respect and to ensure to all individuals "within its territory and subject to its jurisdiction" the rights recognized in the Covenant, including the right to life enshrined in article 6. It goes without saying that the citizens of Srebrenica, vis-à-vis the Netherlands, do not come within the scope of that provision. The strong commitment of the Netherlands to investigate and assess the deplorable events of 1995 is therefore not based on any obligation under the Covenant”.
Another set of critics believe that enabling non-stateactors to have human rights duties dignifies them and grants them a better status, specially because the fact that States have human rights’ obligations allows them to perform some interventions 31 . This is not the case, however, because as we studied in the previous section internationalactors may have positive and negative capacities depending on whether a norm grants them to them. Thus, acquiring obligations does not imply acquiring rights and in fact highlights the fact that it has been observed that they tend to harm human rights, a fact that by no means legitimates them or improves the perception the population has of them. In other words, giving non-stateactors human rights’ duties implies that lawmakers desire to limit their activities for the better protection of those rights.
To further investigate legality as a means for intervention we should continue by looking specifically at the most relevant international body for humanitarian intervention, the UN. In Is Unilateral Intervention Always Unethical? Ned Dobos investigated the role UN authorization can play in legitimating a humanitarian intervention. He believes that “UN authorisation (or lack thereof) can have some indirect bearing on the moral status of a humanitarian intervention. That is, it can affect whether an intervention satisfies other widely accepted justifying conditions, such as proportionality, internal legitimacy, and likelihood of success." 48 Internal legitimacy has been looked at and dismissed as a worry for the hypothetical non-state actor, but the criteria of “ 49 prudence” he sets forth is worth looking into. The criteria of prudence is similar to Walzer's just war theory, 50 according to Dobos, "the intervention must stand a reasonable prospect of success at an acceptable cost." 51 Dobos believes that UN authorization may spell the difference between a prudent and internally legitimate or not intervention. This can make authorization indirectly necessary, although he also states that this does not make it always necessary. 52 Prudence would have to be heavily factored into considerations for a 'humanitariannon-state actor', as not following through on prudence could ultimately lead to the destruction of the non-state actor on the whole. A failed intervention could result in a loss of legitimacy for not upholding the mandates set out in the 'humanitariannon-state actor's' charter, and thus they may never be trusted to intervene again. Not adhering to prudence may even outright decimate the 'humanitariannon-state actor' if enough damage is inflicted, rendering it incapable of further intervention. Thus non-stateactors would be much more concerned with notions of prudence than states, as their resources and scope is far more limited than a state. UN authorization therefore does not provide prudence or internal legitimacy as these are importantly figured out