Top PDF The end of application of international humanitarian law

The end of application of international humanitarian law

The end of application of international humanitarian law

It is unclear whether the drafters of the Conventions were making a firm distinction between the ‘cessation of active hostilities’ standard in Article 118(1) GC III and the ‘general close of military operations’ in Article 6(2) GC IV and later in Article 3(b) AP I, i.e. whether the distinction was deliberate or was the consequences of uncoordinated drafting. What is clear is that the primary motivation behind the GC III formula was to depart from the earlier rule set out in Article 20 of the Hague Regulations, under which the obligation to repatriate prisoners of war started only at the (formal) conclusion of peace. This meant that in several instances in which the conflict had de facto ended but without a formal peace treaty, or with treaty negotiations taking a very long time, vast numbers of prisoners of war continued to be held without any real need to do so. 34 This of course does not mean that the GC III standard necessarily assures swift repatriation in practice, the lengthy repatriation efforts after the 1980-1988 Iran/Iraq war being a case in point. As for the Art. 6(2) GC IV ‘general close of military operations’ formula, the Pictet commentary interprets it as a ‘final end of all fighting between all those concerned.’ 35 Note that the test is an objective and factual one; as argued above, while an armistice or peace treaty can serve as evidence of the finality of the end of fighting, formal agreements are neither required nor conclusive on the point. 36 The general close of military operations implies an end of the
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International and Non International Armed Conflicts and Application of International Humanitarian Law as Lex Specialis

International and Non International Armed Conflicts and Application of International Humanitarian Law as Lex Specialis

is only a technique for resolution of normative conflicts. 62 According to the maxim lex specialis derogate legi generali, a special norm will prevail over the general norm. Yet, the rule is silent as to what is specific and what is general; it does not provide any clear guidance to set apart the lex specialis from the lex generalis. 63 The most common example used to show the relevance of lex specialis is the violation of right to life during an armed conflict. While this example is apt, the principle is of less assistance when it comes to many other issues where both international humanitarian law and the international human rights law have to be applied together. For instance, in a non-international armed conflict where there is no agreed status of combatant and there is a potential violation of the right to life, international humanitarian law becomes less clear making the application of lex specialis even more difficult. 64 Perhaps due to the difficulty in distinguishing the lex specialis and the lex generalis, the maxim appears to have limited use when dealing with situations of detention during armed conflicts. 65 Hence it can be said that in specific circumstances like that of violation of right to life in an armed conflict, the principle of lex specialis adequately addresses the interplay between the international humanitarian law and the international human rights law, however it is of less assistance in dealing with many other complex scenarios that might arise during an armed conflict. 66
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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

69. Although cyberspace is not a physical domain this standard of physical separation can be analogized to the cyber setting. For example, direct participation would end once a DDoS attack has been launched and the civilian goes offline or engages in different and unrelated cyber activity. If there is a delay between the launching of a cyber weapon and its activation (as would be the case with many malicious cyber operations, such as a logic bomb), direct participation will extend up to the point that the weapon is activated. As with civilians that lay improvised explosive devices on the physical battlefield, for example, direct participation ends upon activation and does not continue until the effects of the weapon have been felt, which may be many days, weeks, months or even years later. 110
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International Humanitarian Law After Kosovo: Is Lex Lata Sufficient?

International Humanitarian Law After Kosovo: Is Lex Lata Sufficient?

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 international armed 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
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State Opinio Juris and International Humanitarian Law Pluralism

State Opinio Juris and International Humanitarian Law Pluralism

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-State actors 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 international law 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.
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International Humanitarian Law and the Targeting of Data

International Humanitarian Law and the Targeting of Data

Exfiltration of data, while all too commonplace, is not the end of the “sensitivities to operations directed at data” story. Indeed, the key cyberse- curity event in 2017 was the repeated deployment of “ransomware.” Here, WannaCry and NewPetra are perhaps the most well-known and devastating examples. Rather than the planting of malware to exfiltrate data, ransomware typically involves the deployment of malware to encrypt data rendering it inaccessible to its users. The malware then demands payment (usually in a cryptocurrency) for the decryption of the data, hence the “ransomware” de- scriptor. The WannaCry operation gained higher public profile in Australia because some business corporations were affected and media outlets re- ported extensively on the scale and speed that the malware spread. Early estimates suggested that more than 200,000 computers in 150 countries were impacted by the malware, 51 although later reports suggested the number of
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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

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 armed conflicts, 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. Armed conflicts of the twentieth century caused about 90 million fatalities [1]. 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 [2]. However, in the balance, injuries, mutilations, displace- ments and suffering of people, destruction of the environment and of goods shock the whole world.
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HISTORICAL DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW

HISTORICAL DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW

Soon, the Geneva Conventions of 1949 needed, in turn, to be adapted to the changing nature of armed conflicts. After the Second World War, non-international armed conflicts became more frequent. Some took the form of wars of national liberation. In those asymmetrical types of armed conflicts, guerrilla warfare became the method of choice for the weaker party. As a result, the principle of distinction turned out to be more difficult to comply with and civilians ended up being increasingly the object of attacks. To deal with these and other issues, a diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts convened by the Swiss government n 1974. 16
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The Asymmetric Nature of Boko Haram Insurgency and Its Implications on Human Rights and International Humanitarian Law

The Asymmetric Nature of Boko Haram Insurgency and Its Implications on Human Rights and International Humanitarian Law

The usage of unconventional tools and tactics, be it guerrilla warfare or terrorism or irregular warfare or any other forms are becoming more synonymous with non - state entities and Boko Haram is not an exception. Accordingly, Boko Haram has deployed to its advantage the use of these unconventional tools and tactics to target the state’s susceptibilities in order to achieve unequal result. Historically, weak powers have sought to avoid an opponent’s strengths and instead attempted to exploit the latter’s weaknesses (Katzenbach, 1962). But the application of hitherto unexplored and innovative means for attacking an adversary’s weaknesses is termed as “asymmetric warfare”. In a way, seeking asymmetries is fundamental to all wars. But in the modern context, asymmetric warfare emphasises what is popularly perceived as unconventional or non-traditional methodologies.These generally seek a major psychological impact such as shock or confusion that affects an opponent’s initiative, freedom of action or will. Asymmetric methods require an appreciation of the opponent’s vulnerabilities. Asymmetric approaches often employ innovative, non-traditional tactics, weapons or technologies and can be applied at all levels of warfare, strategic, operational and tactical and across the spectrum of military operations (Metz, 2001).
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The international humanitarian actor as 'civilian plus':
the circulation of the idea of distinction in international law

The international humanitarian actor as 'civilian plus': the circulation of the idea of distinction in international law

During one of the NATO CIMIC training sessions, a military trainer advises that when trainees arrive in a new area of operation, they should take immediate steps to show ‘what you bring to the fight’. It is evident that the battle in question does not take place on the conventional battlefield, and the training sessions on ‘CIMIC projects’ illuminate the true arena. CIMIC projects are focused and time-bound projects that are designed to have an immediate and tangible impact, thereby increasing acceptance of foreign troops, ensuring force protection and – in some cases – supporting intelligence gathering. Practitioners sometimes refer to them as quick impact projects, or QIPs. To prepare trainees to implement such projects, a military trainer shares his experiences working with fishing cooperatives in the Horn of Africa. Testing the trainees, he inquires: ‘Why would I work with fishing cooperatives?’ Going for laughs, one trainee ventures facetiously: ‘Because you like fish?’ After allowing a brief moment of levity, the trainer provides the real answer. The end game is to empower the capacity of the fishermen so they won’t join the pirates. ‘I made some QIPs for them, courses in mending fishing nets, materials, teaching skills…’ Another benefit of the contact this fostered, he says, is that fishermen shared information about weapons smuggling in the area. When he asks trainees why certain kinds of CIMIC projects are executed in particular locations, it prompts a chorus of: ‘CIMIC is in support of the military mission.’ During another training session, a military trainer depicts the daily duties he carried out on a recent afternoon in the conflict zone where he was deployed. He checked on the refurbished water pumps in the internally displaced persons camps and approved the release of funds for the water pumping station. Next: ‘There were soccer uniforms to be dropped off for a community team, heated disputes to resolve, an influential Mullah to visit.’ He concludes: ‘It is surely my fight in my area of operation.’
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Fragmentation, Lex Specialis and the tensions in the Jurisprudence of the European Court of Human Rights

Fragmentation, Lex Specialis and the tensions in the Jurisprudence of the European Court of Human Rights

This aspect of IHL is well illustrated by the Rome Statute of the International Criminal Court. This creates war crimes of “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” 31 , and “intentionally directing attacks against civilian objects” 32 . But the intentional launching of an attack “in the knowledge that incidental loss of life or injury to civilians…” (which includes an attack launched by a reckless perpetrator 33 ) is only a war crime where such loss of life or injury is “clearly excessive in relation to the concrete and direct military advantage anticipated.” This has been explained, for example in the Australian military manual, as “so excessive as to clearly indicate wilful intent or wanton disregard for the safety of the civilian population.” 34
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Erosion of the Rule of Law as a Basis for Command Responsibility under International Humanitarian Law

Erosion of the Rule of Law as a Basis for Command Responsibility under International Humanitarian Law

No language from these holdings indicates that the prior misconduct in question must include violations of the law of war in order to qualify as sufficient notice. In fact, these decisions indicate that low-level misconduct such as drinking and general disobedience can be meaningful considerations. However, in all of these tribunal cases, the prior bad acts did include law of war violations. This fact may be partly based on the premise that the international courts have been primarily concerned with defendants who were involved in multiple egregious wartime atrocities. The ad hoc tribunals have yet to decide a case that explores the limits of prior misconduct, which are solely constituted by bad acts that do not violate the laws and customs of war. These bad acts may include drinking, violations of military orders, using racially disparaging language, or other generally offensive conduct. It is unclear to what extent, and in what situations, these types of misconduct would be sufficient, in themselves, to put a commander on notice of future crimes, thereby triggering a duty to prevent.
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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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The lawful use of targeted killing in contemporary international humanitarian law

The lawful use of targeted killing in contemporary international humanitarian law

Despite these authoritative domestic decisions, there is still room for doubt whether the hostilities in which the Israel and the U.S. are embroiled constitute an armed conflict under IHL. According to the Geneva Conventions, an 'international armed conflict' requires conflict between two or more High Contracting Parties. [16] Thus, a conflict between a single state and a non-state actor, such as a terrorist organization, will not qualify as an 'international armed conflict'. The First Additional Protocol to the Geneva Conventions (“Protocol I”) expanded the definition of 'international armed conflict' to include, “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination...”. [17] None of the situations identified in Protocol I are applicable to the 'War on Terror'. However, Israel may be considered an alien occupier under Protocol I and the ICJ has held that GC IV applies to the Israeli-Palestinian Conflict. [18] Further, the ICJ has stated that the inherent right to self-defence, enshrined under Art. 51 of the United Nations Charter, only applies to an attack from another state and not from non-state actors. [19]
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PROTECTION OF WOMEN IN ARMED CONFLICT AND INTERNATIONAL HUMANITARIAN LAW

PROTECTION OF WOMEN IN ARMED CONFLICT AND INTERNATIONAL HUMANITARIAN LAW

The International Humanitarian Law has drafted a number of laws to provide necessary protection to women with the adoption of the Fourth Geneva Convention and the Additional Protocols. But the fact lies in the implementation of these laws for the benefit and protection of women in practical situation. Success cannot be achieved by just adopting new rules but by enforcing it appropriately in the International front. The implementation of the different provisions created for the protection of women and the various Laws of the International Humanitarian Law should be consensually followed by the states, party to the Geneva Conventions of 1949 and the Additional Protocols of 1977, which have undertaken to respect and ensure respect for these rules.
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Cyber Warfare: A New Hullaballoo under International Humanitarian Law

Cyber Warfare: A New Hullaballoo under International Humanitarian Law

Cyber warfare is a new phenomenon and scenario under International Humanitarian law. This paper was basically portrayed the impact of cyber warfare in light with international humanita- rian law and assessed the notion of cyber warfare, conduct of hostilities, legal framework, moni- toring mechanisms as well as current challenges. Moreover, critical legal analysis is used as prin- cipal methodology. Major findings of the research revealed that there are plethora of issues to be underlined save as absence of binding treaty governing the challenging scenarios. Recommenda- tions are made by suggesting points of improvement until the international community has agreed on this cross-cutting contemporary issue.
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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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Some Thoughts on Ideas That Gave Rise to International Humanitarian Law

Some Thoughts on Ideas That Gave Rise to International Humanitarian Law

The Geneva Conventions relating to the protection of victims of armed conflicts are, after the United Nations Charter, the most widely accepted international instruments and [r]

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The Normative Framework of International Humanitarian Law: Overlaps, Gaps, and Ambiguities

The Normative Framework of International Humanitarian Law: Overlaps, Gaps, and Ambiguities

However, the chamber refused to use Article 3 of its Statute (laws and customs of war) as a conduit to bring in as customary law conduct comprising grave breaches of the Ge[r]

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Brave New World: Neurowarfare and the Limits of International Humanitarian Law

Brave New World: Neurowarfare and the Limits of International Humanitarian Law

In the context of brain-machine interfaced weapons and autonomous weapons generally, establishing the second and third prongs would likely require prosecution of high[r]

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