Top PDF The Rule of Surrender in International Humanitarian Law

The Rule of Surrender in International Humanitarian Law

The Rule of Surrender in International Humanitarian Law

The regulation of armed conflict during ancient Rome is captured by Cicero -known proverb from 50 BC: silent enim leges inter arma (the law stands silent in times of war). 14 This rather simplifies the picture because there is evidence that the Romans formulated rudimentary laws of war, such as the prohibition against the use of concealed, barbed and poisoned weapons and the prohibition against attacking religious figures. 15 This being said, the regulation of armed conflict was skeletal and said very little about how surrendering forces had to be treated. As in ancient Greece, combatants that sought to surrender during armed conflict in ancient Rome were in an extremely precarious position and their fate was entirely at the discretion of the opposing force; the offer of surrender could be permissibly refused and combatants A P
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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

This article has been particularly concerned with superiors’ failure to prevent war crimes following a degradation of the rule of law. Customary international humanitarian law, as interpreted by the ad hoc tribunals, offers an effective framework for accountability over superiors who fail to heed warning signs that undisciplined subordinates will continue to take part in criminal misconduct and potentially escalate their unlawful behavior. The framework may be used to attach liability to commanders who ignore activities that tend to degrade or dehumanize civilians or prisoners, although such conduct might not, in itself, be subject to a duty to punish. International tribunals appear largely willing to criminally sanction superiors who ignore deteriorating conditions within units due to the serious corrosion of good order and discipline.
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Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict

Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict

The opinions shared in this paper are those of the author and do not necessarily reflect the views and opinions of the U.S.. Naval War College, the Dept[r]

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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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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

Secondly, whichever way the Commission’s suggestion is put, it would have the effect of driving a coach and horses through the principle that interna- tional humanitarian law applies equally to both sides in any conflict, without regard to the cause which they espouse or the legality of their action under the jus ad bellum. A State whose forces were resisting humanitarian intervention by another State or group of States would, presumably, be required to comply with the normal rules of international humanitarian law (or to display the normally required degree of adherence). It would therefore be entitled to a greater de- gree of latitude than its opponent. The implications of the Commission’s pro- posal in this respect are concealed by the unusual circumstances of the Kosovo conflict. As has already been noted, the FRY did not respond by force against the NATO States (other than by the use of anti-aircraft fire) and did not at- tack the NATO States themselves. It would be naive, however, to assume that the same conditions will necessarily apply in any future humanitarian interven- tion. Indeed, had NATO proceeded to a ground campaign, it would not have been the case in the Kosovo conflict, as the FRY could, and almost certainly would, have put up a strenuous resistance to NATO ground forces.
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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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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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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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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 lawful use of targeted killing in contemporary international humanitarian law

The lawful use of targeted killing in contemporary international humanitarian law

From this dictum it may be concluded that international human rights law and international humanitarian law are coextensive. An individual's right to life is protected even during hostilities. However, during an armed conflict, the lex specialis of LOAC is engaged and the permissibility of the loss of life must be assessed against that legal regime. While the ICJ was referring to the threat or use of nuclear weapons, this conclusion is equally applicable to targeted killings. Unless IHL is engaged, the deprivation of life caused by a targeted killing will be arbitrary and impermissible. However, as indicated by the ICJ, there must be an armed conflict before IHL can apply. Thus, as a preliminary issue, the legality of targeted killings will depend on the existence of an armed conflict. The judiciary of the two states that acknowledge using targeted killing, Israel and the United States (“U.S.”), [13] have both determined that their respective nations are engaged in armed conflicts. The Israeli Supreme Court ruled that Israel is engaged in an
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State Opinio Juris and International Humanitarian Law Pluralism

State Opinio Juris and International Humanitarian Law Pluralism

106. Compare Geoffrey Corn et al., Belligerent Targeting and the Invalidity of a Least Harmful Means Rule, 89 I NTERNATIONAL L AW S TUDIES 536, 540 (2013) (offering a comprehensive rebuttal of the least harmful means interpretation), and Michael N. Schmitt, Wound, Cap- ture, or Kill: A Reply to Ryan Goodman’s ‘The Power to Kill or Capture Enemy Combatants’, 24 E U- ROPEAN J OURNAL OF I NTERNATIONAL L AW 855, 855 (2013) [hereinafter Schmitt, Reply to Ryan Goodman] (arguing that, even under narrow circumstances, there is no obligation un- der the extant international humanitarian law to wound rather than kill enemy combatants nor to capture rather than kill), with Ryan Goodman, The Power to Kill or Capture Enemy Combatants: A Rejoinder to Michael N. Schmitt, 24 E UROPEAN J OURNAL OF I NTERNATIONAL L AW 863, 863–66 (2013) (addressing the author’s points of agreement and disagreement with Michael N. Schmitt’s assertion that there exists no obligation under international humanitarian law to capture rather than kill enemy combatants), and Jens David Ohlin, The Duty to Capture, 97 M INNESOTA L AW R EVIEW 1268, 1272 (2013) (examining four potential reasons why the duty to capture might be thought to apply to targeted killings).
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HISTORICAL DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW

HISTORICAL DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW

provisions of Article 22 of the 1930 London Treaty for the Limitation and Reduction of Naval Armaments.Under its provisions, submarines, when attacking merchant vessels, are bound by the same rules as those applicable to surface vessels. As a rule, they may not sink or render incapable of navigation a merchant vessel without having first placed passengers, crew and ships papers in a place of safety. For this purpose the ship‟s boats are not regarded as a place of safety unless the safety of the passengers and crew is assured, in the existing sea and weather conditions, by the proximity of land, or the presence of another vessel which is in a position to take them on board.” In practice, the rule was very rarely respected and seems quite difficult to apply in most cases. It may have become obsolete in spite of fact that it is reaffirmed by the San Remo Manual. 12
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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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The end of application of international humanitarian law

The end of application of international humanitarian law

Third, our interpretation of the thresholds of application and IHL’s temporal scope will inevitably depend on how, within a particular professional setting (e.g. as domestic or international judges, government officials, military legal advisors, humanitarian activists, or academics), we weigh a number of competing, and evolving, policy considerations. In other words, an analysis of the end of IHL’s application by any given actor is influenced by whether that actor ultimately wants IHL to continue applying, in light of the consequences of continuation or termination. Thus, for example, in Geneva in 1949 most of the humanitarian community (including the ICRC) advocated for a broad applicability of IHL, particularly when it came to hitherto almost unregulated NIACs. Most states, on the other hand, wanted to both heighten the threshold for IHL application in case of NIACs and reduce the substantive scope of IHL rules applicable in NIACs, because they sought to preserve their own freedom to suppress rebellion and internal strife as they saw fit. 3 Today, however, the dovish humanitarians might not want IHL to apply expansively, since they may see it as a departure from concurrently (and if need be extraterritorially) applicable IHRL. Yet now States might precisely want IHL to apply, since they would see it as empowering rather than constraining them, e.g. with regard to targeted killings and preventive detention, allowing them to avoid the more demanding rules of IHRL. 4
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UN Forces and International Humanitarian Law

UN Forces and International Humanitarian Law

Nations undertakes to ensure that the force shall con- duct its operations with full respect for the principles and rules ofthe general conventions applicable to the conduct of militar[r]

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State Actors, Humanitarian Intervention and International Law: Reopening Pandora's Box

State Actors, Humanitarian Intervention and International Law: Reopening Pandora's Box

Opposed to the case for humanitarian intervention stands a basic rule of international law which, beyond the right of self- defense or a collective response of th[r]

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War and International Law: Distinguishing Military and Humanitarian Professions

War and International Law: Distinguishing Military and Humanitarian Professions

The opinions shared in this paper are those of the author and do not necessarily reflect the views and opinions of the U.S.. Naval War College, the Dept[r]

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The Occupation of Maritime Territory under International Humanitarian Law

The Occupation of Maritime Territory under International Humanitarian Law

In answering the first question, it is noted preliminarily that legal schol- arship has rarely explored the possibility of occupying maritime territory without occupying land territory. Rather, most academics focus on whether the use of naval (and aerial) means may be sufficient to exercise actual au- thority over a portion of adjacent land territory. For instance, the Institute of International Law stated that an island was under occupation if a State exer- cises actual authority through its navy over its entire coastline even in the absence of any military presence on the island. 100 Although some scholars
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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 a training session at SWEDINT, a military trainer asks trainees what they would do in situations of hybrid warfare where they cannot discern between civilians and combatants. A UN civilian trainee responds that, following the UN Department of Peacekeeping Operations (DPKO) policy for UN missions, ‘when in doubt, assume someone is civilian’. When the same question arises with respect to international actors, a military trainee proposes dividing international actors into ‘armed versus unarmed’. He points out that this fits with the framework of civil– military relations and ‘it’s the best term we have’. He goes on to note the difficulty of drawing this line when civilian security actors are armed, or when politicians and donors take on the appearance of military actors. Still, he believes that the preferred approach is to situate all international civilians together in one unified category; he includes humanitarian actors in this category, as well. Later, during a chat in the hallway outside the classroom, a civilian trainer at SWEDINT reflects on these exchanges. He proposes that, in theory, anyone should be able to look at international actors and say ‘You’re either a combatant or you’re not’. However, he laments that there are blurred lines in practice, especially where military forces engage in humanitarian activities or humanitarian actors use military assets and start to resemble a military force. He describes a photograph he once took of a military officer wearing civilian clothes, recalling: ‘It was a conflict area and he wanted to melt into the population. I know that is illegal, but you also have humanitarians dressing up in field gear…and you start asking, who is who?’ He identifies a ‘grey zone’ of relationships between international humanitarian actors and other civilian actors. He proposes that this is not a legal issue to be resolved by IHL, but a matter of ‘what our respective organization means’. 487
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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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