Part VII concludes that although the law applicable to NIACs may ap- ply extraterritorially, the process of establishing when an armedconflict exists is still partially bound geographically by virtue of the intensity re- quirement. In this sense, the law does not simply follow the parties to the conflict. Because the law was designed with territorial constraints in mind, there is a need for clarification of when the law is to apply extraterritorially. Before addressing the main issues of this article, two preliminary mat- ters should be highlighted. First, a factual distinction is made between three types of hostilities, all of which fall under the category of “extraterritorial”: (1) conflicts within a single State that spill over into neighboring States; (2) conflicts that take place between a State and an armed group located in a second uninvolved State; and (3) conflicts between a State and an armed group that spread across multiple States. Scholars frequently use the term “transnational armed conflicts” to describe the latter two situations, 13 and
8. See also Kenneth Anderson, Targeted Killing and Drone Warfare: How We Came to Debate Whether There is a “Legal Geography of War,” in F UTURE C HALLENGES IN N ATIONAL S ECU- RITY AND L AW (Peter Berkowitz ed., 2011), http://media.hoover.org/sites/default/files/ documents/FutureChallenges_Anderson.pdf; Jennifer C. Daskal, The Geography of the Battle- field: A Framework for Detention and Targeting Outside the “Hot” Conflict Zone, 161 U NIVERSITY OF P ENNSYLVANIA L AW R EVIEW 1165 (2013); Sasha Radin, GlobalArmedConflict? The Threshold of ExtraterritorialNon-InternationalArmedConflict, 89 I NTERNATIONAL L AW S TUD- IES 696 (2013); Claus Kress, Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts, 15 J OURNAL OF C ONFLICT AND S ECURITY L AW 245 (2010); Louise Arimatsu, Territory, Boundaries and the Law of ArmedConflict, 12 Y EARBOOK OF I N- TERNATIONAL H UMANITARIAN L AW 157 (2009); Sylvain Vité, Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations, 91 I NTERNATIONAL R E- VIEW OF THE R ED C ROSS 69 (2009).
More importantly, the choice between, on the one hand, IHL detention authority and, on the other hand, kill or release is a false one. The absence of IHL detention authority does not leave a party to armedconflict with no option but to either kill or release enemy forces or civilians who pose a se- curity threat. Rather, it requires merely that detention be authorized under another legal basis. For most situations, domestic criminal law should suf- fice. In the context of contemporary NIACs, there’s very little conduct that cannot be brought within the framework of domestic laws, including crim- inalizing those actual acts and inchoate offenses related to terrorism. The ability of States to establish and exercise extraterritorial jurisdiction in con- nection with such offenses is also well established. But where criminal law is unavailing, States may still legislatively provide for administrative deten- tion so long as it satisfies minimum international legal requirements con- cerning grounds and procedures.
The increasing complex nature of armed conflicts has given rise to debates on the concept and types of armed conflicts, including whether the classification of armedconflict under IHL is sufficient to cater all the types of armed conflicts as witnessed presently. There is a need to critically asses the threshold of violence that would qualify as armedconflict. Once the threshold is lowered, it may enhance IHL’s claim to humanity as the law will minimize conditions under which killings and maiming of civilians is considered legitimate. Again, most of the current conflicts around the world today are either internal or internationalized internal conflicts. There is a need for a detailed provision of IHL to regulate these conflicts as that provided in common Article 3, human rights law and customary international law may not be sufficient as gaps are still identified in these frameworks when compared with rule of IHL that applies in situations of internationalarmed conflicts. Finally, before these required provisions become available, the Nigerian government should rise to its responsibility of protecting the lives and property of civilians. There is the need for the government to intensify its effort and ensure that perpetrators’ of these atrocities are brought to book and severely punished. Effective penal sanctions would only be possible if the government makes a deliberate effort to amend the existing domestic criminal law rules to international standard or enact fresh laws or legislations in the area of criminal justice.
The application of the Tadic case or standard to specific cases, assuming it can be extended to asymmetric transnational armedconflict can encounter difficulties. This is especially true in instances where forcible actions are taken against decentralized transnational bodies such as al – Qaeda (the so – called ‘global war on terror’). The question whether such circumstances amount to ‘armedconflict’, or should be dealt with exclusively as an issue of law enforcement, has generated much controversy. In this study we are concerned with cases in which it is obvious that the threshold of armedconflict has been crossed. Such cases may be found in the fighting between various groups and the US in Afghanistan; the conflict between Israel and Hezbollah in 2006 (assuming Hezbollah’s actions were not attributable to Lebanon). The warfare between Turkey and the PKK in Northern Iraq; or perhaps, the conflict between Rwanda and Hutu militias operating in the Democratic Republic of Congo, during certain stages of the Congolese conflict which has taken place intermittently since 1990’s.
The insurrection threshold does not present a significant challenge for direct transference. The post-1949 concept of NIAC arguably covers most of the scope of the pre-1949 concept of insurrection, given that such situa- tions would highly likely meet the lowest of the three modern NIAC thresholds. As noted above, there were two primary maritime hallmarks of insurrection status. The first was the allocation by an external State of the political status of insurrection to the conflict. The second was a consequent belief by that external State that any insurrectionist maritime forces who happened to fall into their power should normally not be treated as pirates in relation to their acts against the conflict State’s own vessels, regardless of the conflict State’s call that they do so. The presence of both hallmarks suggests a level of gravity in the scope of the conflict and the organization and capabilities of the rebel group, such that these situations might be properly equated with modern NIACs rather than less-than-NIACs. The correspondence of insurrections and NIACs is quite close in other ways as well. The third State’s belief that it could lawfully choose not to treat ap- prehended maritime rebels as pirates so long as their attacks had only been upon conflict State vessels is in general accord with current NIAC LOAC, which does not require third States to prosecute as criminals rebels who have engaged only in attacks upon the conflict State’s forces and who hap- pen to fall into their hands. 39
Children are increasingly exposed to armedconflict and targeted by governmental and nongovernmental combatants. Armedconflict directly and indirectly affects children ’ s physical, mental, and behavioral health. It can affect every organ system, and its impact can persist throughout the life course. In addition, children are disproportionately impacted by morbidity and mortality associated with armedconflict. A children ’ s rights – based approach provides a framework for collaboration by the American Academy of Pediatrics, child health professionals, and national and international partners to respond in the domains of clinical care, systems development, and policy formulation. The American Academy of Pediatrics and child health professionals have critical and synergistic roles to play in the global response to the impact of armedconflict on children.
The phenomenon of foreign fighting is not new. What is however unprecedented about it today is, in addition to its scale, the fact that it is more and more often conceptualized through the prism of the fight against terrorism. Attention has been turned from the situation at the battlefield to that in the countries of origin. The regulation no longer falls under the laws of armedconflict but under international criminal law or, even, under an emerging international counter-terrorism law. And foreign fighters have become foreign terrorist fighters. These developments may seem relatively insignificant; however, they represent a paradigmatic shift. And this shift comes with a price. The concept of foreign terrorist fighters and the international legal regulation applicable to it, stemming primarily from the UN Security Council Resolutions 2178 (2014) and 2396 (2017), give rise to legal challenges. The paper discusses three such challenges pertaining to the definition of foreign terrorist fighters, the construction of foreign terrorist fighters-related offences and the impact on human rights. The main message that the paper seeks to impart is to caution against an excessive ‘terror-isation’ of international life which, even if motivated by laudable purposes, has problematic consequences, thus constituting of itself a threat to the values that it is supposed to protect.
Beyond the legal aspects, there is also a practical connection between the issu- ance of warnings and the implementation of the principle of proportionality. Warning civilians prior to an attack enables them to evacuate the area before the at- tack takes place or to seek shelter at the time of the attack. This contributes to mini- mizing civilian casualties and to enhancing their protection. At the same time, the fact that civilians have evacuated an area or found shelter leads to a lower number of anticipated civilian casualties from the attack—namely, to less anticipated col- lateral damage—and hence increases the ability to carry out a proportionate attack. This connection between giving a warning and fulfilling the proportionality standard leads to warnings being, on one hand, a valuable measure in reducing harm to civilians and, on the other hand, a useful tool in the hands of commanders for gaining more freedom of action. This does not mean that warnings are counter- productive in terms of enhancing the protection of civilians in armedconflict situ- ations; on the contrary, this only reflects one of the realities of such situations, namely, that they are not necessarily zero-sum games.
Contemporary wars and conflicts have been complex in nature. The focus on the study of nature and consequences of conflicts was put forward by the United Nations Organization which brought out a twist in the analysis of conflicts. It is true that every international community has some or the other interest in every conflict, may be because no conflict these days are in isolation. In such situation the role of United Nation becomes very important to make sure every party is satisfied with decisions when it comes to war. To look after the conduct of the parties during a conflict, International organizations have developed certain laws which guarantee human safety to a large extend. One such law is International Humanitarian Law or the Law of ArmedConflict; basically it regulates the conduct of armed conflicts. Its basic constituent is the Geneva conventions followed by subsequent treaties, case law and customary international law . It also deals with the responsibilities of the parties involved which may include neutral nations and individuals in warfare. Its violations are known as war crime for those nations who are bound by appropriate treaties. There are also other customary unwritten rules of war as well as prohibitions on their conduct when dealing with irregular forces and non-signatories. International humanitarian law operates on a strict division between rules applicable in internationalarmedconflict and those relevant to armed conflicts not of an international nature.
away from armedconflict, the post-conflict society may not be free from violence (criminal violence for example) or autocracy, both of which may impact negatively upon juveniles. Violence exists in peacetime as well. Violence that is public in nature and committed by and against children in times of armedconflict may, after armedconflict, turn into violence committed by and against children that percolates into private spheres, the household, and the city block. International lawyers need to recognize that public violence in armedconflict will not necessarily be eradicated just because armedconflict ends. Violent masculinities, in particular, may operationalize themselves in a variety of private contexts that elude the gaze of the international lawyer and, in many instances, the law altogether (whether substantively or as a matter of application). Transitional justice does not have a good track record in dealing with this situation. South Africa may be evoked as a poignant example.
re- experiencing symptoms. The authors felt that the extreme degree of violence witnessed (over 90% witnessed killings and had their lives threatened, 30% witnessed rape or sexual muti- lation and 15% hid under corpses) suggests that psychologi- cal resilience may be extinguished and that the prevalence of PTSD may not decrease. Children who are exposed to military violence for prolonged periods may develop aggressive behav- iour themselves and it is ironic that children in this situation may therefore see armed conﬂ ict as a solution to the problems, thus perpetuating the violence. 26
The exclusion restriction states that each instrument must not have a direct effect on contemporary conflict outcomes and must not be correlated with unobserved confounders. The first instrument, pre- colonial settlement size, is unlikely to have a direct effect on modern conflict outcomes, but an indirect effect cannot be ruled out entirely. This is why it is important to control for population size and density. If ancestral settlement size affects contemporary conflict outcomes through contemporary population variables, then their inclusion will remove this potential source of invalidity. The exclusion restriction for the second instrument will be satisfied as long as distance to the nearest moralizing god has no effect on conflict outcomes, other than through the likelihood of emergence of moralizing gods. In theory, it is possible that proximity to an ethnic group with a moralizing god could affect conflict through some other channel. Insofar as hypothetical other channels are also a function of geographic distance, explicitly accounting for spatial correlation addresses this potential source of invalidity. All specifications therefore use Conley’s (1999) standard errors for cross-sectional spatial dependence of an unknown form. Conley standard errors model spatial dependence as a decaying function of geographic distance and assume no spatial correlation past a specified cutoff distance. The cutoff distance is set at 1000 km here; the results (shown in the appendix) are robust to alternate cutoffs.
To inform clinical and public health preparedness and interventions, data on short- and long-term pediatric morbidity and mortality attributable to armedconflict are critical. Although several databases are used to track mortality directly from armedconflict, these do not include disaggregated data on children. There are numerous case reports and descriptive studies of child health outcomes in conflict settings that are used to help characterize specific groups, but these do not provide a broad or nuanced understanding of the effects of a given conflict on children. There is an urgent need to establish methods of data collection that can be used during armedconflict to monitor short- and long-term morbidity, mortality, and the effects of interventions.
flict must be read against the background of the modern law of inter-State force, not in isolation from it. The preamble continues by supposing it “nec- essary nevertheless” to reaffirm and develop legal protections for victims of armed conflicts. Reading these two opening sentences together, it seems that, if any State uses force against another—either in breach of the UN Charter or in conformity with it—then an armedconflict will thereby arise whose victims will require legal protection. While it is possible to maintain that armed conflicts typically arise from inter-State force, the more natural reading is that armed conflicts automatically arise from inter-State force. The preamble’s next sentence expresses the conviction that nothing in the Pro- tocol can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the UN Charter. Since acts of aggression and other unlawful uses of force typically involve first strikes, 10
Nowadays, mediation is one of the most commonly used methods for solving armed conﬂ icts, mainly due to its ﬂ exibility allowing parties to freely decide about their participation in the mediation, the choice of a mediator, and acceptance or rejecting the conditions of the conﬂ ict resolution established during the mediation process. An advantage of mediation is the low cost of conducting the process in comparison with the use of other methods based on third party intervention in conﬂ ict, i.e. arbitration or military intervention (cf. Bercovitch 1994, p. 10). In literature, mediation is usually referred to as the participation and assistance of a third party in resolving a dispute between the conﬂ icting parties. Its aim is to encourage the parties to reach a satisfactory agreement (Moore 2003, p. 15; Zartman and Touval 1985; Crocker, Hampson and All 2003, pp. 437-438; Bercovitch and Jackson 2009, p. 34). Due to the relationships between the main actors of the mediation, that is the parties to the conﬂ ict and the mediator, as well as the complex nature of the mediation process, it is described from three analytical perspectives: as an extension of the negotiation process, a third party intervention in the conﬂ ict and comprehensive conﬂ ict management.
Although the United States remains the only country that has not rati ﬁ ed the CRC, this exclusion does not preclude its use by pediatricians as a powerful tool to advocate for and advance the health and well-being of children affected by armed conﬂict and violence. Ratiﬁcation of the CRC and its Optional Protocol on Children and Armed Conﬂict would, however, establish a stronger legal basis for the national and global voice of US pediatricians, and both validate and increase the credibility of their long-standing advocacy for children ’ s health and well-being. It is thus important for the American Academy of Pediatrics and other pediatric professional societies such as the Academic Pediatric Association, the American Pediatric Society, and pediatricians as citizens to redouble their efforts in support of
Human rights law and the law of NIAC do not conflict with each other. Instead they complement one another, as both impose constraints on violence rather than licenses to commit violence. As Additional Protocol II makes clear, human rights law “offers a basic protection to the human person,” while the law of NIAC aims “to ensure a better protection for the victims of armed conflicts.” 26 Accordingly, “when Protocol II establishes a higher standard than the Covenant [on Civil and Political Rights], it must prevail,” while “provisions of the Covenant . . . which provide for a higher standard of protection than the protocol should be regarded as applicable” in appropriate cases. 27