Top PDF Indeterminacy in the Law of Armed Conflict

Indeterminacy in the Law of Armed Conflict

Indeterminacy in the Law of Armed Conflict

In my view, we should narrowly interpret the exceptional categories of non-civilian persons and military objectives, as well as the exceptional activ- ity of taking direct part in hostilities. Accordingly, we should presume that the substantive rules protecting persons and objects apply to all persons and objects unless they clearly fall within an exceptional category or clearly en- gage in an exceptional activity. We should adopt this approach, not because an interpretive canon tells us to, but because the relevant canon illuminates the text and reflects the purpose of the law. At the same time, if textual, purposive, and structural considerations fail to resolve good faith disagree- ment, then we may invoke the canon to resolve residual doubts in favor of a protective interpretation. States presumably knew of the relevant canon when they adopted the rule-and-exception language, so it is not unfair to resolve indeterminacies in their language in accordance with the cannon.
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Between Law and Reality: New Wars and Internationalised Armed Conflict

Between Law and Reality: New Wars and Internationalised Armed Conflict

From a practical viewpoint, states and insurgents alike have routinely dismissed the application of IHL to their conflicts. For IHL to be effective, the belligerents must feel that they are legally bound by a shared set of rules. It is evident from the atrocities that have taken place in internal conflicts that this is simply not the case. Rebels may feel that the law does not apply to them. States, on the other hand, routinely dismiss that the law of armed conflict applies to their internal struggles and are often unwilling to categorise their internal disturbances as ‘armed conflicts’. For example the Russian Federation and Turkey have not considered their internal conflicts with separatists as armed conflicts under international law. In dealing with the Chechen or Kurdish separatists, these states see themselves as conducting internal operations against terrorists rather than anything comparable to an ‘armed conflict’ and therefore deny the application of international humanitarian law. Abresch points out that this decision is due to political rather than legal considerations: “The problem is that to apply humanitarian law is to tacitly concede that there is another ‘party’ wielding power in the putatively sovereign state”. 39
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Right to reparations in international law for victims of armed conflict: Convergence of law and practice?

Right to reparations in international law for victims of armed conflict: Convergence of law and practice?

A common element among the countries selected as case studies is their commitment to international human rights and humanitarian law. Guatemala, Colombia, Sierra Leone and East Timor are all States parties to the following human rights treaties; CERD, CCPR, CESCR, CAT, CEDAW, CRC and its Optional Protocol on the involvement o f children I armed conflict (CRC-OPAC). With regard to humanitarian law, the four selected countries are all parties to the Geneva Conventions as well as their Additional Protocols I and II. Three of the countries; Sierra Leone, Colombia and East Timor have ratified the Rome Statute of the International Criminal Court, while Guatemala has yet to do so. The focus on the study is on reparations for serious violations in armed conflict, which in any case are recognised as customary obligations as set forth in chapter 1 of the thesis. The Basic Principles on the Right to Reparation for Victims link to these violations, which in the Principles are described as gross and serious violations o f human rights and humanitarian law. The States’ explicit undertakings, by way o f ratifications, in the realms o f international human rights, humanitarian and criminal law underline their acceptance of State responsibility for reparations to victims. In all four case studies, the Truth Commission reports have made clear references to applicable human rights and humanitarian law standards. These specific references, as well as their translation into national policy and legislation, are explored in further detail in the case studies. When applicable, attempts to issue national amnesties have been explored as have their impact on the issue o f reparations.
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Precision Air Warfare and the Law of Armed Conflict

Precision Air Warfare and the Law of Armed Conflict

such a standard would ignore the realities of combat, in which attackers operate in the fog of war. A more manageable standard that comports with the notion of feasibility asks whether a reasonable warfighter, having ex- hausted all reasonably available means of verification in light of the prevail- ing circumstances, would launch the attack. This standard allows attackers to balance the potential military advantage against both the likely collateral damage and any degree of doubt as to the objective’s status as a lawful tar- get, just as the law of armed conflict allows military advantage to offset col- lateral damage more generally. Obviously, precision capabilities play a key role in this process, especially ISR assets that allow targets to be located, monitored and identified. While these capabilities have immense military utility, they can also be constraining. If a “reasonable warfighter in the same or similar circumstances” would consider their use both helpful in
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Applying a Sovereign Agency Theory of the Law of Armed Conflict

Applying a Sovereign Agency Theory of the Law of Armed Conflict

The current bifurcated conflict classification paradigm for applying the Law of Armed Conflict (LOAC) has lost its usefulness. Regulation of state militaries was originally based on t[r]

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Adapting the Law of Armed Conflict to Autonomous Weapon Systems

Adapting the Law of Armed Conflict to Autonomous Weapon Systems

The fundamental principle underlying the gradual development of these standards and rules alongside the evolution of automation technolo- gies, however, should be that what matters is ever greater compliance with the core obligations of the law of armed conflict: necessity, distinction, proportionality and humanity. Whether the actor on the battlefield is a “who” or a “what” is not truly the issue, but rather how well that actor per- forms according to the law of armed conflict. Debate over standards or rules for automated or autonomous systems should remain scrupulously neutral as between human or machine, and should affirmatively reject any a priori preference for human over machine. Even seemingly indisputable calls for a first principle of “meaningful human control” mistake the issue, which is lessening the harms of armed conflict within the law by the means that are the most effective. The principle of humanity is fundamental, but it refers, not to some idea that humans must operate weapons, but instead to the promotion of means or methods of warfare that best protect humanity within the lawful bounds of war, irrespective of whether the means to that end is human or machine or some combination of the two.
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Children, Armed Conflict, and Genocide: Applying the Law of Genocide to the Recruitment and Use of Children in Armed Conflict

Children, Armed Conflict, and Genocide: Applying the Law of Genocide to the Recruitment and Use of Children in Armed Conflict

answer to every situation involving children and armed conflict. However, the international community owes children every protection that can apply to the severity of their situations. Scholarly writings, judicial opinions, and other forms of primary and secondary soft law are the appropriate methods of assistance to help children in these unique and precarious situations (although, perhaps not in that specific order) short of direct humanitarian intervention. This is the proper time to formally recognize this group and afford the support for future deterrence, diplomatic negotiation, and guidance for criminal proceedings. The laws regarding the composition of a group within the meaning of genocide have been shown to directly parallel traits exhibited by children. As such, a group under the definition of genocide should include children.
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Warning Civilians Prior to Attack under International Law: Theory and Practice The Law of Armed Conflict in Asymmetric Urban Armed Conflict

Warning Civilians Prior to Attack under International Law: Theory and Practice The Law of Armed Conflict in Asymmetric Urban Armed Conflict

One of the concerns raised with regard to warnings is that after advising civil- ians to evacuate a certain area, military forces might consider anyone who did not evacuate as forfeiting civilian status and becoming a lawful attack objective. This, of course, is not the case and civilians who have not left the area must be taken into account in the proportionality analysis. Nevertheless, successful warnings that lead to most civilians leaving a combat area do allow military forces more freedom of action in the knowledge that less civilian collateral damage is expected. In today’s asymmetrical battlefield, when fighters intermix with civilians and civilian locali- ties are used as bases of operation, causing civilians to evacuate an area is one of the useful means available of minimizing civilian casualties. In that regard, warn- ings have become an important tool in promoting the protection of civilians on the one hand, while enhancing military freedom of action on the other. This dem- onstrates that the rules of the law of armed conflict are not necessarily a zero-sum game and warnings, as well as other precautionary measures, can be beneficial for all sides involved.
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PROTECTION OF WOMEN IN ARMED CONFLICT AND INTERNATIONAL HUMANITARIAN LAW

PROTECTION OF WOMEN IN ARMED CONFLICT AND INTERNATIONAL HUMANITARIAN LAW

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 Armed Conflict; 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 international armed conflict and those relevant to armed conflicts not of an international nature.
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Whose Armed Conflict? Which Law of Armed Conflict?

Whose Armed Conflict? Which Law of Armed Conflict?

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
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Direct Participation in Hostilities and the Interoperability of the Law of Armed Conflict and Human Rights Law

Direct Participation in Hostilities and the Interoperability of the Law of Armed Conflict and Human Rights Law

36. There is a real difficulty in making the weapons rules applicable in both situations, but it is not attributable to the distinction between prohibitions and permissions in Hague law, rather to the paradigm confusion between law and order/law enforcement and an armed conflict para- digm. Certain weapons that are traditionally used and have an important role to play in law en- forcement are prohibited in IACs, most notably expanding bullets and riot control agents, such as tear gas. The increasing complexity of modern conflict, sometimes characterized as “three- block warfare,” results in different rules being applicable in different situations at the same time. The difficulties to which that gives rise in practice are likely to be exacerbated if the clear distinc- tion between what is permitted and prohibited in different situations and paradigms becomes blurred. An example of such confusion is Resolution RC/Res.5 adopted at the Review Confer- ence of the Rome Statute on June 8, 2010, which adds to the list of war crimes in NIACs “(xv) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions.” Resolutions and Declarations adopted by the Review Conference, http://212.159.242.181/iccdocs/asp_docs/ ASP9/OR/RC-11-Part.II-ENG.pdf (last visited Jan. 17, 2011).
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The Law of Armed Conflict as Soft Power: Optimizing Strategic Choice

The Law of Armed Conflict as Soft Power: Optimizing Strategic Choice

That does not detract from the fact that the exercise of choice as to whether to participate in a legal regime is nothing less than a policy decision driven by a State's desire to sha[r]

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Chapter V: Principles and Sources of the Law of Armed Conflict

Chapter V: Principles and Sources of the Law of Armed Conflict

Whereas the 1949 Geneva Conventions and the 1977 Protocols Additional thereto address, for the most part, the protection of victims of war, the Hague Regulations, the Genev[r]

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Chapter V (The Tanker War and the Law of Armed Conflict)

Chapter V (The Tanker War and the Law of Armed Conflict)

The same is true for the law of self-defense if, e.g., a warship of a belligerent or neutral country exercises its analogous law of the sea right of approach and visit of a merchant [r]

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The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

24. Initially a five-day standard, review of detentions by a judge advocate magistrate was ac- celerated to seventy-two hours in the summer of 2003. Neither standard was required by law and both exceeded the standards imposed by Article 78 of the Fourth Geneva Convention, which re- quires only that decisions regarding internment shall be made according to a regular procedure that affords a right of appeal, to be decided with the least possible delay and, if denied, to be sub- ject to periodic review conducted, if possible, every six months by a competent body. Conven- tion Relative to the Protection of Civilian Persons in Time of War art. 78, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, reprinted in D OCUMENTS ON THE L AWS OF W AR 301 (Adam Roberts & Richard Guelff eds., 3d ed. 2000) [hereinafter GC]. US forces should have stressed that the re- views were neither required by law nor intended to be viewed as a right or as customary. The re- quirements of Article 78 were satisfied by the process specified in the “Mother of All FRAGOs.” O N P OINT II, supra note 21, at 249.
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The Law of Armed Conflict in Asymmetric Urban Armed Conflict

The Law of Armed Conflict in Asymmetric Urban Armed Conflict

Certainly, it is true that, for almost a decade, US and coalition forces have been involved in ongoing and seemingly unending conflicts increasingly waged in densely populated urban areas. Both Iraq and Afghanistan have seen extensive fighting occur in urban settings as the US and its coalition partners have con- fronted both State and various non-State entities in the form of the Taliban and el- ements of al Qaeda in these theaters of operation. In this age of “persistent conflict,” the chances are great that the United States will continue to see its forces consistently having to deal with such fighting environments. In brief, asymmetric State/non-State urban conflicts—and, importantly, all of the LOAC issues associ- ated with such conflicts—have been a part of the international landscape for an extended period of time.
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New Technology and the Law of Armed Conflict

New Technology and the Law of Armed Conflict

Proving Professor Jacobsson’s assertion empirically is problematic, given that even those States, such as the United States, that have sophisticated weapons test- ing programs do not publish the results of their analyses. The very nature of certain new UVS technology will mean that not all States will even have the capacity to con- duct adequate testing were they to acquire the technology. Notwithstanding this, it can be assumed that those States that do possess the wherewithal to develop new technology should also have the concomitant ability to carry out the necessary analysis required by Article 36. Of course, given that it is arguable whether Article 36 is declaratory of customary law, those States not party to AP I are under no specific obligation to comply with its provisions. However, as the sole purpose of the Article 36 requirement to assess LOAC compliance of new weapon systems prior to introduction relates to customary law obligations as codified in Article 35, it would appear a fortiori that best practice suggests a State would be prudent to en- sure that it is not in breach of its LOAC obligations by assessing the introduction of new weapons systems. Evidence of this approach can be seen in the existence of what is probably the most sophisticated assessment process for the introduction of new weapons carried out by a State—and this by a country that is not a State party to AP I, namely, the United States.
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The Law of Armed Conflict and Detention Operations in Afghanistan

The Law of Armed Conflict and Detention Operations in Afghanistan

OEF detention operations in Afghanistan, but the sparse tenns of Com mon Article 3 do littl e to clarify the separa t e issue of what minimum procedural requirements gove[r]

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The Principal of the Military Objective in the Law of Armed Conflict

The Principal of the Military Objective in the Law of Armed Conflict

A s we have seen, the principle of the military objective, though slow in coming to recognition as articulated in Additional Protocol I and current military manuals, has been [r]

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Comment: Developing the Environmental Law of Armed Conflict

Comment: Developing the Environmental Law of Armed Conflict

The principle, as such, is declared to restrain all armed forces in the event of armed conflict, without regard to the necessity or proportionality principles, while Article[r]

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