Top PDF The Occupation of Maritime Territory under International Humanitarian Law

The Occupation of Maritime Territory under International Humanitarian Law

The Occupation of Maritime Territory under International Humanitarian Law

A/HRC/15/21 (Sept. 27, 2010); Report of the Detailed Findings of the Commission of Inquiry on the 2014 Gaza Conflict, ¶¶ 26–31, U.N. Doc. A/HRC/29/CRP.4 (June 24, 2015); Report of the Detailed Findings of the Independent International Commission of Inquiry on the Protests in the Occupied Palestinian Territory, ¶¶ 61–67, U.N. Doc. A/HRC/40/CRP.2 (March 18, 2019); Office of the Prosecutor, International Criminal Court, Situation on Registered Vessels of Comoros, Greece and Cambodia: Article 53(1) Report, ¶¶ 27–29 (Nov. 6, 2014), https://www.icc-cpi.int/iccdocs/otp/OTP-COM-Arti- cle_53(1)-Report-06Nov2014Eng.pdf; see also Peter Maurer, Challenges to International Human- itarian Law: Israel’s Occupation Policy, 94 I NTERNATIONAL R EVIEW OF THE R ED C ROSS 1504, 1506 (2012). Today, most authors consider the Gaza Strip to be under occupation since Israel still exercises actual authority on the area thanks to its control over the borders, air- space, and sea. See M ARCO L ONGOBARDO , T HE U SE OF A RMED F ORCE IN O CCUPIED T ER- RITORY 36–38 (2018).
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HISTORICAL DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW

HISTORICAL DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW

It also prohibits contracting parties from directing any act of hostility against cultural property. Those prohibitions may be waived only where military necessity so requires. Furthermore, the parties undertake to prohibit, prevent and, if necessary, put a stop to theft, pillage or misappropriation of cultural property, as well as to vandalism against such property. Reprisals against cultural property is prohibited (Art. 4). In situations of military occupation of a territory, the occupying power must, “as far as possible”, help the local authorities safeguard and preserve the cultural property of the occupied country (Art. 5). The Convention creates a distinctive emblem 19 (Art. 16), which may be used to facilitate the recognition of cultural property (Art. 6).
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U.S. drone strikes and international law: Jus ad bellum, International Human Rights Law and International Humanitarian Law issues.

U.S. drone strikes and international law: Jus ad bellum, International Human Rights Law and International Humanitarian Law issues.

the United States’ own territory. It has been discussed that both arguments do not withstand scrutiny. There is settled jurisprudence of the ICJ in Nuclear Weapons, The Wall, and Armed Activities, that the prohibition against arbitrary deprivation of life contained within Article 6 of the ICCPR and forming part of customary international law continues to apply during a situation of armed conflict, alongside the lex specialis of international humanitarian law, and that the test of whether a deprivation of life is arbitrary must be determined by reference to the applicable rules of international humanitarian law. 7 Further, it is now almost universally accepted that a state’s obligations under international human rights law apply extraterritorially, and thus the US finds scant support for its assertion to the contrary, sitting as it does at odds with state practice and opinio juris. Outside situations of armed conflict, the use of lethal force is lawful under international human rights law only in those circumstances where it is strictly necessary and proportionate, if it is aimed at preventing an immediate threat to life, and if there is no other means of preventing the threat from materialising. As UN Special Rapporteur Ben Emmerson QC rightly submits, only in the most exceptional of circumstances would it be permissible under international human rights law for killing to be the sole or primary purpose of an operation. 8 As the principal purpose of a drone strike is the employment of lethal force to kill a targeted individual(s), it follows that drone strikes will rarely comply with established
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Entitlement to Islands,Rocks and Low-Tide Elevations in the South China Sea : Geoeconomics versus Rule of Law

Entitlement to Islands,Rocks and Low-Tide Elevations in the South China Sea : Geoeconomics versus Rule of Law

The United States’ implication in the disputes complicates matters. After World War II, Senkaku/Diaoyu Islands were included in the territory taken from Japan as part of the post-World War II management of territories seized by Japan during the conflict but were returned to Japan in a backdoor deal incompatible with the norms of international law. As instantiated above, conquest or subjugation as a means of acquiring territory has been proscribed (Note 21). The real reason for this arbitrary return of the islands by the United States to Japan in the early 1970s was to use Senkaku/Diaoyu Islands in order to contain China and undermine its maritime interests; and what is more, the US-Japan Security Treaty brings any dispute with Japan, an ally of the United States, within the purview of the treaty. However, the response of China to the alleged provocative Tokyo’s purchase of parts of these islands to prevent a conservative Japanese governor from buying the islands provides an insight into the use of geoeconomic strategy to drive a wedge between two allies with a joint security treaty. Beijing retaliated by ordering a massive boycott of Japanese products in China, by halting the shipment of rare earth oxides which are crucial components in Japanese industries, and by forcing foreign companies such as Hitachi Metals and Toyota reliant on rare earths to move to China, thus actualising Beijing’s plan to grow domestic rare earths industry. China’s use of geoeconomic statecraft got the message through to Japan, in spite of its ally (the United States). This brings us to China’s accession to UNCLOS, its rejection of the rule of law and the jurisdiction of the Permanent Court of Arbitration, and the proffered reaction of the United States to China’s geoeconomic statecraft, the so-called Thucydides’s trap.
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The Applicability of International Humanitarian Law and the Law of Neutraility to the Kosovo Campaign

The Applicability of International Humanitarian Law and the Law of Neutraility to the Kosovo Campaign

The Bankovic judgment removed the possibility that military operations by the European members of NATO would henceforth be measured not only against the yardstick of international humanitarian law but also by reference to the very different standards of the European Convention on Human Rights. Indeed, had the applicants’ arguments been accepted it would not only have been NATO that would have been affected. Coalition military opera- tions in the Gulf and United Nations operations in, for example, East Timor would also presumably have come within the purview of the European Court and the provisions of a regional human rights treaty would have been superim- posed on the requirements of international humanitarian law. The Court did not reverse its earlier decisions in the Cyprus cases, but it noted that the cir- cumstances in Cyprus were unusual in that both Cyprus and Turkey were par- ties to the European Convention so that the inhabitants of northern Cyprus should not be deprived of the benefits of the Convention by reason of the changes brought about by the Turkish intervention of 1974. It remains to be seen what attitude the Court would take in a case where armed forces of a party to the European Convention occupied territory of a non-Convention country.
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Appraising Command Responsibility As A Basis For Crimnal Liability Under International Humanitarian Law

Appraising Command Responsibility As A Basis For Crimnal Liability Under International Humanitarian Law

A corollary of this is that command responsibility has evolved through international and non-international armed conflicts trials. Since the end of Second World War different bodies, have grappled with the concept. At one end of the spectrum was the strict liability attaching to a superior for the criminal acts of subordinates. At the Nuremberg Trials, the standard was not one of strict liability, but rather determination of what the superior actually knew. The trials of war criminals pursuant to Control Council Law No. 10 further expanded the notion of command responsibility to include not only those in a chain of command, but also those in a specified territory who exercised a form of executive command. The Tokyo Tribunals added the concept of constructive knowledge and that of negligent disregard of information to allow the doctrine to be further clarified. The conflict in the Middle East, in its own way added to development and refinement of the concept with the Kahan Commission‟s attachment of liability to high-ranking politicians who may have had only minimal notice and to military officers outside the chain of command (Stuart Hendin, 2003: 91). This crisis resulted in the wake of the 1956 Suez Canal conflict because Israel forcefully occupied Sinai Peninsula resulted in serious violation of international humanitarian law. The two United Nations‟ created ad hoc tribunals, through their statute as well as decisions have continued this refinement. It remains yet to be
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The end of application of international humanitarian law

The end of application of international humanitarian law

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-state actors, 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-state actors, 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.
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Cyber Warfare: A New Hullaballoo under International Humanitarian Law

Cyber Warfare: A New Hullaballoo under International Humanitarian Law

Finally, although absurd, these recommendations represent real progress in overcoming a long impasse be- tween the United States and Russia over how to address cyber-security issues. The cooperation may even sug- gest possibilities for a future multilateral treaty under the auspices of the United Nations, which Russia has been advocating for some time. Now a day, however, the role of the United Nations with respect to cyber warfare re- mains largely limited to discussions and informational sharing since so far there is no binding treaty governing the issue and absence of commitment by international community thereof.
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Evolution of International Humanitarian Law and War: Crime in International Proportions

Evolution of International Humanitarian Law and War: Crime in International Proportions

The construction of an international normative system focused on the develop- ment of international humanitarian law can be verified throughout several mo- ments in the history of humanity. This is because, intrinsically linked to social facts, the law is conditioned by the behavior of society, which, in turn, is also conditioned by legal norms. From this point of view, it is necessary to clarify that conditioning implies in influencing, interfering, generating the expectation that Law and society will act according to a determined way. Social norms when in- stitutionalized impose certain patterns of behavior that aim to govern and regu- late social life. That is why it ends up interfering in the conduct of people in the social environment. In this way it is certain that society interacts with the law and is influenced by it. Thus, by establishing juridical norms, they shape society; however, this also dictates patterns that comes out of informality, and becomes positive law. It is clear that in order to regulate internal relations and interna- tional relations, the need for specific legal rules is required.
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The International Committee of the Red Cross and the Development of International Humanitarian Law

The International Committee of the Red Cross and the Development of International Humanitarian Law

The Statutes of the International Red Cross and Red Crescent Movement, adopted by the Twenty-fifth International Conference of the Red Cross meeting in Geneva in Oct[r]

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International Humanitarian Law and the Conflict in Sierra Leone

International Humanitarian Law and the Conflict in Sierra Leone

If the conflict is a non-international armed conflict, the rules of international humanitarian law con- tained in Common Article 3 of the Geneva Conventions and in P[r]

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International Humanitarian Law from Agincourt to Rome

International Humanitarian Law from Agincourt to Rome

Those of us who consider Henry's order in Agincourt to be medieval and bar' baric, should note that even the essentially humanitarian Lieber Code allowed the denial of quarter to the e[r]

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Cyber Warfare and the Status of Anonymous under International Humanitarian Law

Cyber Warfare and the Status of Anonymous under International Humanitarian Law

54. The ICRC’s approach seems anachronistic in the cyber era where cyberspace is now an indispensable feature of everyday life. Given this dependency, a significant cyber-attack against important civilian cyber infrastructure can cause tangible damage as opposed to mere disruption and can thus be equated with the use of means or methods of warfare. Fundamentally, however, at present there is a lack of state practice to support such an interpretive reorientation of the ICRC’s definition of harm. Given that the cyber-attacks committed by members of Anonymous against Israeli civilian computer systems and networks did not produce physical harm, they would fall below the threshold of harm that is required by international humanitarian law to determine that a civilian is directly participating in hostilities.
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The United States’ Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change

The United States’ Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change

This dispute is more than a simple matter of competing semantics and treaty interpretations that will be resolved by clever exercises of statutory interpretation or a more searching review of the legislative history. Rather, there are broad philosophical principles at issue that go to the very heart of the human rights project. In particular, this debate surfaces a perennial ten- sion between the idealized vision of human rights as universal attributes that we all enjoy simply by virtue of our shared humanity, and the more realist view that human rights obligations are merely contractual undertak- ings that are binding only insofar as States have specifically consented to them as a function of pacta sunt servanda. And yet, the applicable texts are open to several equally plausible interpretations, and the legislative history is inconclusive as to States’ original intentions; this indeterminacy invites a teleological interpretive approach that must prioritize universality. The law has headed in a direction that is consistent with this imperative and is keep- ing pace with globalization and the multitude of ways that States can assert their power abroad. This is fitting, because the alternative—that the treaties would permit States to harm people abroad in ways that would be prohibit- ed at home—is untenable and perverse.
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Rights And Treatment Of Prisoners Of War Under Islamic International Humanitarian Law: A Legal Analysis

Rights And Treatment Of Prisoners Of War Under Islamic International Humanitarian Law: A Legal Analysis

(POWs) are members of the armed forces of one of the parties to the conflict who fall with the hands of the adversary during an international armed conflict. They retain their legal status as members of the armed forces during their captivity an indicated externally by the fact that they are allowed to wear their uniforms, that they continue to be subordinate to their own officers – who are themselves prisoners of war and that at the end of hostilities they have to be returned to their own country without delay. It is moreover, explicitly stated that prisoners of war are not in the hands of individuals or military units, but are in the care of the adverse state, since it is the state, as a party to the Geneva Convention that is responsible for fulfilling its international obligation. 32 Being a prisoner of war is in no way a form of punishment. Other
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Privileging Asymmetric Warfare? Part I: Defender Duties under International Humanitarian Law

Privileging Asymmetric Warfare? Part I: Defender Duties under International Humanitarian Law

58: "The parties to the conflict shall, to the maximum extent feasible: (a) without prejudice to Article 49 of the Fourth Convention, endeavour to remove the [r]

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Kosovo: To Bomb or Not to Bomb? The Legality is the Question

Kosovo: To Bomb or Not to Bomb? The Legality is the Question

As an exercise of humanitarian intervention, NATO's decision to bomb Kosovo was justified, moral, and most of all, legal under customary international law.95 In the [r]

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State Opinio Juris and International Humanitarian Law Pluralism

State Opinio Juris and International Humanitarian Law Pluralism

Additionally, the reluctance of States to express opinio juris on particular topics of international law is in some senses understandable. A number of considerations recommend the increasingly prevalent wait-and-see approach. A State may conclude that too little is known about the implications of an emerging area of warfare to commit to any particular international regulatory doctrine or regime or to admit publicly to the existence of international norms bearing on the matter at all. It is also possible that State reticence is less the product of calculated caution rather than political impasse deriving from domestic political considerations. In many municipal legal systems, constitutional and statutory arrangements spread authority over international law matters among several agencies and even branches of government, frustrating coordination and consensus. 163
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Privileging Asymmetric Warfare (Part III)?: The Intentional Killing of Civilians under International Humanitarian Law

Privileging Asymmetric Warfare (Part III)?: The Intentional Killing of Civilians under International Humanitarian Law

Presumably, everyone knows that the intentional killing of civilians, whether during an armed conflict or not, is morally reprehensible; and if it occurs during a conf[r]

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The Right of Entry into Maritime Ports in International Law

The Right of Entry into Maritime Ports in International Law

Current American law provides that vessels belonging to or operating under the jurisdiction of a foreign flag which unlawfully use the American flag "shall be den[r]

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