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
Another option, however, and to me more logical from a purely IHL standpoint, would be to take into account the heightened NIAC intensity threshold when compared to IACs, since this is where the analogy with IACs may be at a breaking point. Any resumption of hostilities between states would in any event reconstitute an IAC, and it therefore makes sense to wait for the complete end of all hostilities for the IAC to be terminated. In NIACs, by contrast, it could be enough for the hostilities to fall below the threshold of ‘protracted armed violence’ with a certain degree of permanence and stability so as to enable us to establish that the hostilities have, in fact, ended. As with IACs, once the threshold is met there should be a presumption that it continues to be met absent strong evidence to the contrary – as a matter of policy, a NIAC which peters in and out of existence on a daily basis would be undesirable. But unlike with IACs, in NIACs the hostilities would not need to end altogether. What would matter is whether the intensity of the hostilities or the organization of the non-state actor factually eroded to such an extent that the threshold is no longer met. 61 For example, looking at the post-2003 conflict in Iraq, which involved the new Iraqi government and its foreign allies on one side, and several organized armed groups on the other, it could be argued that this NIAC (or set of NIACs) ended at some point in late 2009, as the capacity of insurgent groups was degraded and the level of armed violence decreased (even if the violence never ended completely). In August 2010, the US military ended its combat troops from Iraq. But after a period of relative calm, violence rapidly
detract from or compete with Protocol I, because the new protocol would have another scope of application. It would be limited to conflicts of an inter- ventionist nature where the intervening side is a coalition enforcing a man- date against a militarily inferior party to the conflict. The coalition would not be fighting for its national security, vital interests or political survival, but for the purpose of limited crisis management. The new protocol would be limited to peace-enforcement operations conducted on behalf of the international community, or other interventions within the framework of regional crisis management, whether they are labeled humanitarian or not. It is important to state that such a new protocol would not address the jus ad bellum legality of humanitarian or other interventions (it would not introduce a “Just War” doctrine); it would stick to the traditional IHL method of describing a scope of application based on factual circumstances. In this case the scope of applica- tion would be linked to the limited nature of the internationalarmed conflict. Should the State under attack plead self-defense and respond with coun- ter-attacks, thus escalating the level of armed conflict, the limited scope of ap- plication of the new protocol would no longer describe the situation accurately and Protocol I would become applicable. In line with this thinking Michael Hoffman, the American Red Cross Officer for International Humani- tarian Law, has suggested that we may witness emerging rules for “interventional armed conflict,” for example in peace enforcement opera- tions, whether authorized by the UN Security Council or conducted otherwise by regional organizations. 28
At present, many of the issues pertaining to non-internationalarmed con- flicts and cyber warfare remain the subject of some speculation. In particu- lar, the military cyber capabilities that non-State actors currently have, or may develop, is unclear. Though it appears highly unlikely that cyber at- tacks by a non-State actor could alone trigger a non-internationalarmed conflict, specific cyber attacks in the course of an ongoing conflict in which traditional kinetic forms of attack are occurring are certainly conceivable. As far as legal issues pertaining to the actual conduct of hostilities are con- cerned, the legal questions raised are generally the same as those that are currently being discussed with regard to internationalarmedconflicts. There is widespread agreement that cyberspace is not a legal vacuum and that internationallaw, including the laws of armed conflict, applies in cy- berspace. But in view of the dual-use nature of the entire cyber infrastruc- ture and the fact that the artificial domain of cyberspace transgresses State boundaries, it seems that an unrestrained application of the laws of armed conflict, especially those relating to non-internationalarmedconflicts, could lead to an unwarranted large-scale militarization of cyberspace. Quite clearly, therefore, the laws pertaining to non-internationalarmedconflicts should be applied cautiously in the cyber domain and, in view of the unique and still insufficiently understood technical features of cyberspace and the possibilities for its military use, the precise parameters of their application need to be worked out more concretely than they have been to date.
Another stated aim of the book is the discussion of certain substantive legal consequences of classification. For this purpose, three areas have been selected: the law on the use of force, the law on detention, and the relation between internationalhumanitarianlaw and human rights law. The analysis of these areas of law is attempted both through an overview chapter and via sections of each case study. The general treatment by Jelena Pejic in chapter 4 is thorough, clear and thought-provoking. It manages to both provide a clear overview and to identify areas of particular difficulty. A characteristic example is the discussion of the rules on internment in non-internationalarmedconflicts, which provides an illuminating and sceptical analysis of the interaction between human rights law and the law of armed conflict, while putting forward substantive proposals for the independent development of the latter.
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 InternationalHumanitarianLaw or the Law of Armed Conflict; basically it regulates the conduct of armedconflicts. Its basic constituent is the Geneva conventions followed by subsequent treaties, case law and customary internationallaw . 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. Internationalhumanitarianlaw operates on a strict division between rules applicable in internationalarmed conflict and those relevant to armedconflicts not of an international nature.
The British judiciary and the UN body are now in alignment suggesting that laws of war do not regulate the grounds for detention in NIACs— though the legal implications they draw from that conclusion may be dif- ferent. According to the British ruling, it will be more difficult for UK forces to conduct some military operations abroad without clear Security Council authority to engage in detention or the local government’s authori- zation of the detention. And according to the UN human rights body, the International Covenant on Civil and Political Rights (ICCPR) should fill the legal void in regulating detention in a NIAC. As Shaheed Fatima ex- plains, the General Comment “appears to indicate that [the UN Human Rights Committee] does not regard [InternationalHumanitarianLaw (IHL)] in NIAC as including rules regarding arbitrary detention—and, therefore, that the only source of protection against arbitrary detention in NIAC is [international human rights law].” 3
Finally, a case—arguably the most powerful case—for the de facto international- ization of the conflict against Iraqi insurgents could also be made based on a teleo- logical interpretation of IHL in light of its aims and purposes. In relation to internationalarmedconflicts, the LOAC is much more detailed and developed, with a far higher degree of internationally recognized regulation of both the conduct of hostilities and the protection of victims, than in relation to non-internationalarmedconflicts. To put it crudely, there is more law in relation to internationalarmedconflicts; this implies not only more precise protection for “victims,” but also a more regulated approach to the actions of soldiers on the ground, with greater con- sequent protections for them in the event of any accusations of wrongdoing. Writ- ing a dozen years ago, one of America’s most respected experts on IHL stated that “[i]n interpreting the law, our goal should be to avoid paralyzing the legal process as much as possible and, in the case of humanitarian conventions, to enable them to serve their protective goals.” 86 In relation to the Soviet intervention in Afghani-
9. See McCann v. United Kingdom, App. No. 18984/91, 21 Eur. H.R. Rep. 97 (1995); Geoffrey S. Corn, Extraterritorial Law Enforcement or Transnational Counterterrorist Operations: The Stakes of Two Models, in N EW B ATTLEFIELDS , O LD L AWS : C RITICAL D EBATES ON A SYMMETRIC W ARFARE 23, 35 (William C. Banks ed., 2011) (analyzing the relationship between LOAC and law enforcement paradigms); John B. Bellinger III & Vijay M. Pad- manabhan, Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conven- tions and Other Existing Law, 105 A MERICAN J OURNAL OF I NTERNATIONAL L AW 201, 210– 13 (2011) (same); see also Evan J. Criddle, Proportionality in Counterinsurgency: A Relational The- ory, 87 N OTRE D AME L AW R EVIEW 1073 (2012) (arguing that IHRL paradigm fits most cases involving violence by a State’s nationals within a State’s own territory); David Luban, Military Lawyering and the Two Cultures Problem, 25 L EIDEN J OURNAL OF I NTERNATIONAL L AW __ (forthcoming 2013), available at http://ssrn.com/abstract=2054832 (asserting that law of armed conflict shows insufficient regard for welfare of civilians and that human rights law is superior in this respect); cf. Monica Hakimi, A Functional Approach to Targeting and Detention, 110 M ICHIGAN L AW R EVIEW 1365 (2012) (arguing for functional criteria that transcend distinction between LOAC and IHRL).
The “frozen conflict” is a m´elange of juridical concepts, invoked to entrench a stalemate between separatist forces and an incumbent govern- ment on the territory of a recognized State. When and with what emphasis a given concept is invoked varies among the frozen conflicts and during the course of a given conflict. In four situations that writers— and some- times States— have referred to as frozen conflicts, all of the seven legal crite- ria identified above have appeared. Moreover, a new situation might arise in which those criteria also appeared. The criteria define a potentially open set of cases, even if few or none have arisen yet outside the original ones. A definition of frozen conflict emerges in this way.
was reversed in the aftermath of the Balkan wars of the early 1990s. While it was the scale of the human suffering which unfolded at Europe’s back- door that was the catalyst for the “revival” of international criminal law and a change in global attitude towards the international regulation of NIAC, the targeting of cultural property by all parties to the conflicts gave addi- tional momentum for change. The systematic destruction of cultural herit- age, exemplified by the attacks on the bridge at Mostar and the bombing of Dubrovnik’s old city center (a recognized World Heritage site), prompted States to take further steps in the protection of cultural property. The ini- tiatives culminated in the adoption in 1999 of the Second Protocol to the 1954 Cultural Property Convention which applies in its entirety to both IAC and NIAC. 13 Thus, over the last two decades there have been signifi-
airstrikes, indicated by credible monitoring agencies and media sources. A key aim of Airwars is to assess all known claims of civilian non-‐combatants killed or injured in Coalition strikes. Data are drawn from a number of sources, including international and local news agencies, social media sites including local residents’ groups, Facebook pages (e.g., martyrs’ pages), YouTube footage of incidents, tweets relating to specific events, as well as NGOs based in Iraq, Syria, and elsewhere. Airwars employs a grading system for events alleging non-‐combat-‐ ant or “friendly fire” deaths from Coalition airstrikes, representing their own judgment and assessment of the information available.
DOI: 10.4236/oalib.1104107 2 Open Access Library Journal gious diversity of the human element that composes these States, the terrorist threat, as well as economic and technological development, underpin and imply an increase in the destructive power of armedconflicts, a cruel and sad reality of the history of humanity. Allied to this fact, the proportion of victims involved in conflicts, whether combatants, ex-combatants, or the civilian population, reached alarming levels in the late twentieth century. Armedconflicts of the twentieth century caused about 90 million fatalities . It is true, however, that the nature of conflicts has been changing since the end of the Cold War, with a progressive decrease in fatalities. If the two Great Wars victimized about 70 mil- lion people, the current conflicts are increasing and numerous, amount to around 3 million . However, in the balance, injuries, mutilations, displace- ments and suffering of people, destruction of the environment and of goods shock the whole world.