Application Of International Humanitarian Law Research Articles

A Global Battlefield?: Drones and the Geographical Scope of Armed Conflict

The ever-increasing use of drones in the pursuit of the ‘war on terror’ has given rise to concerns over the emergence of a global battlefield whereby the entire planet is subject to the application of the laws of armed conflict. These concerns stem from drone strikes frequently occurring outside the ‘active battlefields’ of Afghanistan and into the border regions of Pakistan and expanding further afield into Yemen and Somalia. In response to emerging practice, a significant body of academic literature has emerged on the legal classification of transnational armed violence. Less attention however, has been given to the geographical scope of the concept of armed conflict itself. This article provides a detailed analysis of the geographical scope of non-international armed conflict under international humanitarian law, and in the context of drone strikes. In particular, it focuses upon the legal implications of the geographical disjunction between the location of drone strikes and primary battlefields from the point-of-view of the application of international humanitarian law.

Missions Autorisées par le Conseil de Sécurité à L’Heure de la R2P: Vers une Application Différenciée du Jus in Bello? (R2P Missions Authorized by the Security Council: Towards a Differentiated Application of the Jus in Bello?)

This paper (in French) was presented at a conference organized by the University of Grenoble's CESICE. Drawing on recent philosophical work that tackles the moral legitimacy of the laws of war, it criticizes the rigidity of the jus ad bellum/jus in bello separation in one particular emblematic case, that of humanitarian missions authorized by the Security Council. Whilst there are highly legitimate concerns about a differentiated application of the jus in bello were it to lead to some parties not being bound (or being less bound) by constraints in warfare, such concerns largely evaporate if the argument is that certain parties should hold themselves to even higher standards than those traditionally contemplated by the laws of war. The paper argues that humanitarian operations authorized by the Security Council arise at the intersection of what are two test cases for the jus in bello in that respect, and that an excessively material view of what constitutes a conflict leads us to miss the finer point about whether a conflict can truly be said to arise. First, there is a strong moral intuition that humanitarian interventions that draw on all the flexibility of the laws of war will sooner or later run into normative contradictions. Second, there has long been a minority view internationally that, on political-theoretical and normative grounds, UN authorized and particularly UN implemented missions should not be considered as making the world organization a mere party to armed conflicts that it seeks to pacify. Put together, these two intuitions suggest that what the Security Council was doing in Libya or Ivory Coast ought to be seen as having more to do with a police operation enforcing key international norms than a conflict as that term can be understood. The paper then attempts to draw some practical implications from the intuition. It argues that at the very least rigid adherence to the laws of war should be axiomatic in SC mandated humanitarian operations, but that an argument can be made for applying a different body of norms to such interventions, possibly having much more to do with human rights law. Moreover, the paper argues that although UN troops should be held to higher standards, the flip side of the coin is that they should also benefit from greater protections, indeed those same protections that are afforded to peacekeepers not engaging in belligerency. Only such protections are consonant with UN troops' status as enforcers of international law rather than merely parties to a conflict. Arguments that those two moves would weaken the application and enforcement of international humanitarian law are dismissed as superficial and illogical. The paper concludes with a few thoughts on the need to think about the general economy of international law when addressing such matters, rather than being entirely focused on the implementation of the laws of war as a specialized regime.

Classification of Armed Conflicts: Relevant Legal Concepts

This chapter provides an overview of how and why international law classifies situations of violence for the purpose of application of international humanitarian law. The chapter examines the distinction between international and non-international armed conflicts as well as the distinction between armed conflicts and situations of violence that do not qualify as armed conflicts. The chapter examines the history of the distinction between the two categories of armed conflict, the consequences of the distinction and whether the distinction still has validity. The chapter discusses the meaning of the concepts of ‘international armed conflict’ and ‘non-international armed conflict’, including the legal standards by which such qualifications are to be made. Particular attention is paid to foreign intervention in non-international armed conflicts, extraterritorial hostilities by one State against a non-state armed group and conflicts in which multinational forces are engaged. The chapter provides an overview of those legal concepts that are relevant to an undertanding of the case studies discussed in the other chapters of the book.

The Distinction and Relationship between Jus ad Bellum and Jus in Bello

1. This book is based on the author's doctoral thesis, completed at the University of Cambridge. It deals with the crucial tension and mutual support between the rules on the legality of the use of force (jus ad bellum) and the (humanitarian) rules applicable when force is used (jus in bello). The separation between the two branches is essential for the protection of all those affected by armed conflicts and it is, at least in theory, no longer controversial. Its humanitarian importance and theoretical background are fairly described by the author. He also stresses—and this has rarely been done before—how the two branches complement and reinforce each other, fill each other's gaps and, thus, improve the situation for all those affected by armed conflicts. The book analyses the relationship between the two branches, arguing that it is governed by three principles: first, separation between them; second, equal application of international humanitarian law (IHL) to the conflicting parties; and, third, concurrent application of both branches during an armed conflict (thus overcoming the older conception that jus ad bellum applies until a conflict breaks out, which is then regulated only by jus in bello). This analysis is then applied to a great variety of situations and questions arising in contemporary practice.

Nanotechnology and challenges to international humanitarian law: a preliminary legal assessment

AbstractThe introduction of nanotechnology into our civil life and warfare is expected to influence the application and interpretation of the existing rules of international humanitarian law. This article examines the challenges posed to international humanitarian law by the widespread use of nanotechnology in light of four basic rules of international humanitarian law: (1) the obligation to ensure the legality of weapons; (2) distinction; (3) proportionality; and (4) precaution. It concludes by identifying three areas of concern, which arise from widespread use of nanotechnology, for the application of international humanitarian law.

The application of international humanitarian law and international human rights law in situation of prolonged occupation: only a matter of time?

AbstractThe article deals with the effect of the time factor in the application of international humanitarian law (IHL) and international human rights law (IHRL) in ‘prolonged belligerent occupations’. It demonstrates that IHL applies in its entirety to such situations and that the adjustments necessary can be made through the interpretation of existing IHL norms. As for IHRL, the protracted character of an occupation reinforces the importance of respecting and applying human rights. It cannot, however, be invoked in order to influence the interpretation of the notion of a state of emergency leading to the adoption of derogations from IHRL rules.

The Applicability of International Humanitarian Law to the Conflict in Libya

Abstract The purpose of this article is to examine the applicability of international humanitarian law to the 2011 conflict in Libya in its consecutive phases. We argue that the situation in Libya rose to the level of non-international armed conflict between the government forces and insurgents united by the National Transitional Council by the end of February 2011. The military intervention by a multi-state coalition acting under the Security Council mandate since March 2011 occasioned an international armed conflict between Libya and the intervening States. We consider and reject the arguments in favour of conflict convergence caused by the increased collaboration between the rebels and NATO forces. Similarly, we refute the propositions that the Gaddafi government’s gradual loss of power brought about conflict de-internationalisation. Finally, we conclude that both parallel conflicts in Libya terminated at the end of October 2011. The article aspires to shed light on the controversial issues relating to conflict qualification in general and to serve as a basis for the assessment of the scope of responsibility of the actors in the Libyan conflict in particular.

Human Rights in Armed Conflict: Ten Years of Affirmative State Practice within United Nations Resolutions

The debate concerning the interrelation of international human rights law and international humanitarian law is certainly not new within the relevant academic circles. Nevertheless, a comprehensive study of recent State practice in the UN political bodies, that puts the opposition to the applicability of human rights to a real test, adds a new and rather intriguing twist to the matter. It appears that the statements of governments arguing for the exclusive application of international humanitarian law in armed conflicts are not always supported by their own practice within the UN political bodies. The present article explores the potential influence and importance of this observation for bridging the possible gaps between these two bodies of international law. It further identifies a number of interesting trends in the application of specific human rights norms in armed conflicts.

Mexico’s Drug War, International Jurisprudence, and the Role of Non-International Armed Conflict Status

When the Calderon Administration escalated anti-drug efforts in 2006, drug-related violence in Mexico reached unprecedented levels. The growing intensity of drug-related violence has led to uncertainty over how to classify the violence spreading across Mexico. Much of the public rhetoric argues that Mexico’s drug-related violence has surpassed that which typically characterizes the drug trade and is instead more similar to armed conflict. Due to the changing landscape of Mexican drug violence, an assessment of whether or not the conflict meets the requisite conditions for a non-international armed conflict (NIAC) is needed to determine if the application of international humanitarian law is appropriate. This paper argues that Mexico’s Drug War meets the conditions for NIAC status and application of IHL is appropriate. The question of how to respond to drug-related violence is becoming increasingly relevant as the effects of such violence extends to a more diverse geographic area within Mexico. NIAC status plays a central role in the future of anti-drug policy and has the potential to prompt significant changes in the handling of drug-related violence in Mexico. This paper attempts to provide a comprehensive answer to this question and identify the potential implications that recognition as a NIAC will have on Mexican anti-drug policy.

The European Court of Human Rights’ Al-Jedda judgment: the oversight of international humanitarian law

AbstractThe European Court of Human Rights' judgment in the Al-Jedda case dealt with the lawfulness of UK detention practice in Iraq under the European Convention on Human Rights. The Court's opinion could, however, be read as having broader implications for the ability of states parties to that treaty to conduct detention operations in situations of armed conflict. This article analyzes what the Court did – and did not say – about the application of international humanitarian law.

Las Fuerzas de las Naciones Unidas para el mantenimiento de la paz y la aplicación del derecho internacional humanitario

The applicability of International Humanitarian Law to the United Nations Peacekeeping Forces arises because these are precisely armed forces. In this article, the applicable legal instruments are presented and it is argued that the States that provide contingents are responsible for their dissemination, respect for Humanitarian Law and the infractions against it. It also mentions the position of the International Committee of the Red Cross on the applicability of this law and that of the United Nations. Then the problems arising with respect to the Forces currently sent to Cambodia and the former Yugoslavia are analyzed, especially with respect to the applicability of Humanitarian Law and the activities of the Committee in these regions. Finally, the possibilities of cooperation between the Forces and the Committee are evaluated.

The applicability of international humanitarian law to organized armed groups

AbstractWhile it is generally accepted today that international humanitarian law (IHL) is binding on organized armed groups, it is less clear why that is so and how the binding force of IHL on organized armed groups is to be construed. A number of explanations for that binding force have been offered. The present contribution critically examines five such explanations, namely that organized armed groups are bound via the state on whose territory they operate; that organized armed groups are bound because their members are bound by IHL as individuals; that norms of IHL are binding on organized armed groups by virtue of the fact that they exercise de facto governmental functions; that customary IHL is applicable to organized armed groups because of the (limited) international legal personality that they possess; and that organized armed groups are bound by IHL because they have consented thereto.

The Isayeva Cases of the European Court of Human Rights: The Application of International Humanitarian Law and Human Rights Law in Non-International Armed Conflicts

This note analyses the 2005 Isayeva cases of the ECtHR, involving a noninternational armed conflict, in order to show whether the Court applied only and directly the stricter standards of HRL (right to life in Article 2 of the ECHR) and, if not, how the Court substantially relied on IHL, by focusing on the differences of the principles of necessity and proportionality for the use of force between HRL and IHL. It concludes, contrary to what some authors insist, that even in the absence of the invocation of a public emergency in Article 15 of the ECHR by the State concerned, and therefore cautiously, the Court did indirectly apply IHL as an interpretive guideline for HRL.

The Colonial Testing Ground: The International Committee of the Red Cross and the Violent End of Empire

The Colonial Testing Ground: The International Committee of the Red Cross and the Violent End of Empire Fabian Klose (bio) Introduction In a memorandum issued in October 1962, the International Committee of the Red Cross (ICRC) expressed its great concern that torture and other excessive acts of violence were becoming more prevalent worldwide despite the expanded application of international humanitarian law to internal conflicts by way of Article 3 of the 1949 Geneva Conventions.1 Authorities in Geneva were particularly troubled by the trend that, due to a new “fight against terrorism,” torture was depicted as being in the best interest of society and in accord with the law. Under the guise of special laws on combating terrorism, methods of “interrogation under torture,” which had been universally outlawed by civilized society, were now being reinstated more or less secretly. In the opinion of the ICRC, the widespread strategy of fighting terrorism by its own means was not only an unequivocal violation of international law but also a “devastating abdication of humanity.”2 The main reason for this alarming evaluation of the situation lay in the numerous incidents that the ICRC had experienced during its missions in the wars of decolonization. Following the end of World War II, many violent uprisings shook European colonial empires. Because these conflicts between a European colonial power and an anticolonial rebellion movement were not considered international conflicts according to the definition of international law, the ICRC attempted, especially in the Mau Mau War in Kenya (1952–56) and the Algerian War (1954–62), to push through minimum humanitarian norms on the basis of the new provisions of the 1949 Geneva Conventions. The “wars of national liberation” in the 1950s and 1960s posed new challenges to the International Committee in Geneva, because the humanitarian objective was repeatedly overlaid and endangered by realpolitik. On one side, the colonial powers feared unwelcome intervention in their colonial interests and therefore fought any expansion of international humanitarian law and the ICRC work in this area. On the other, liberation movements like the Algerian Front de Libération Nationale (FLN) instrumentalized the revised international humanitarian law for purposes of propaganda in their struggle to win public opinion. The Geneva Conventions were increasingly bounced back and forth in the tough political confrontations of decolonization, so that the original issue of securing minimum humanitarian protections in wartime threatened to pale or even perish in the skirmishes. [End Page 107] It is against this backdrop that this essay uses the case studies of Kenya and Algeria to examine the role of the International Red Cross in the process of violent decolonization. In the course of its attempt to develop an international humanitarian regime, two key questions arose for the ICRC. First, to what degree could the norms of the 1949 Geneva Conventions withstand the realities of colonial war? Second, how much influence could international organizations like the ICRC exert in these violent scenarios? Appealing to evidence mostly made available only recently by the archives of the International Red Cross in Geneva, I argue that the wars of decolonization became the first serious testing grounds for the revisions to international humanitarian law and had an impact on its future development.3 The New Geneva Conventions of 1949 World War II and the immediate postwar period represented a major turning point for the protection of international human rights. The massive violations of humanitarian norms during the war had shown the world community in an all too drastic way just how great the need was for codified universal basic rights. Thus, human rights were to be institutionalized as a legacy of the war within the postwar order. With the founding of the United Nations in 1945 and the passage of both the Universal Declaration of Human Rights in 1948 and the European Convention on Human Rights in 1950, the cornerstones were laid for the international human rights regime, a topic that began to assert its permanent place on the political agenda for the entire world.4 In conjunction with these precedent-setting documents, the Geneva Conventions of 1949 are also a good example of this brief dawn in the history of international human rights protection.5 As...

The Proportionality Equation: Balancing Military Objectives with Civilian Lives in the Armed Conflict in Afghanistan

It is a long-established principle of 'just war' theory that military commanders must risk the lives of soldiers before they kill civilians. Recent airstrikes in Afghanistan, called in by US commanders for the purpose of protecting Afghan or coalition forces, and often involving the use of 'area-effect weapons' that do not distinguish between civilians and combatants and result in large numbers of civilian casualties, seem to turn this basic principle on its head. This article considers the application of international humanitarian law to military operations in Afghanistan, with a focus on US airstrikes that have resulted in high numbers of civilian casualties. The structure of international military operations in Afghanistan is described, followed by a discussion of the impact of the conflict on the civilian population-measured, for the purpose of this article, in civilian casualties. The article provides an overview of the applicable legal framework (with a focus on the principles of distinction and proportionality), and a detailed analysis of two operations in Afghanistan which were carried out by US forces in circumstances in which scant regard seems to have been paid to the presence of civilians in the target area, and which resulted in significant civilian casualties. The article concludes with a discussion of individual and/or state accountability for violations of international humanitarian law in Afghanistan, and stresses the importance of thorough, independent and transparent investigations into suspected violations.

The evolution of international law in light of the ‘global War on Terror’

AbstractThis article explores how various aspects of the ‘global War on Terror’ may be affecting the future development of international law on the use of force. I examine these effects within three areas of international law – the law of anticipatory self-defence, the law of self-defence against non-state actors, and the applicability of international humanitarian law to non-state armed groups. Only in the latter two areas do I find evidence that international law is evolving to accommodate the new realities of global terror. While such developments in the law reflect the supposed need by states to use military means to combat terrorism, they also seem to confer at least a limited international legal personality upon terrorist groups such asAl-Qaeda. This not only indicates a shift in the basis for legal personality, but also potentially undermines the legitimacy of international law and frustrates states' efforts at combating terrorism.

Peace Unkempt: How Ambiguities in Public International Law and International Humanitarian Law Contributed to the Failed U.N. Intervention in Somalia

Three interrelated ambiguities in the relations between Somalia, the United Nations, and the United States directly precipitated the collapse of the U.N. mission in Somalia. First, armed U.N. intervention in a failed state presented complex issues regarding the relation between Somalia and the United Nations, functional distinctions between international armed conflict and non-international armed conflict, and the applicability of international humanitarian law to U.N. military forces and belligerents in a failed state. Second, the Security Council’s approval of humanitarian intervention in Somalia provided U.N. forces with a conflicting mandate: to establish a “caretaker” government, effectively overriding Somalia’s sovereignty, while also conducting a “peacekeeping” operation that deferred to the sovereign will of Somalia’s internal, domestic peace process. Finally, limited rules of engagement hampered UNOSOM missions that ostensibly acted under a banner of U.N. neutrality while they attempted to enforce a Security Council-issued “warrant” for the arrest of Aideed.

What price freedom? Global reporting trends and journalistic integrity

Commentary: On 18 May 2009, the ABC’s Ultimo Centre in Sydney, Australia, and on May 22, Massey University’s Wellington campus in New Zealand were host to twin conferences on war reporting. Jointly organised by the global aid organisation International Committee of the Red Cross (ICRC) and the Australian Centre of Independent Journalism at the University of Technology, Sydney, and Massey’s School of Communication, Journalism and Marketing, the conferences were attended and contributed to by senior international and national news media people—including many who had themselves reported wars—as well as humanitarian, legal and military representatives. The conferences addressed: the role and responsibilities of the journalist in reporting conflict; media, humanitarian and military relationships; an apparent increasing targeting of journalists in conflict zones; and the application of international humanitarian law in times of conflict. The following address by Chris Cramer was the keynote speech at both conferences.

THE OBAMA ADMINISTRATION'S FIRST YEAR AND IHL: A PRAGMATIST RECLAIMS THE HIGH GROUND

AbstractIn a list of ‘desk side reminders’, allegedly originating with General Colin Powell, there is one towards the end which says ‘the window for changes is the first year’. It is unlikely President Obama follows these reminders, but it is nonetheless worthwhile to consider how his decisions – the decisions of the Commander in Chief of the sole remaining military superpower – impacted the application and development of international humanitarian law during the year when his window of opportunity was open.President Obama's first year in office can be defined by two words: pragmatism and commitment. His pragmatism is reflected in the decision to continue to pursue the armed conflicts against transnational terrorism, and his refusal to abandon the legal and policy positions of his predecessor that lodge that struggle squarely within an armed conflict paradigm. His commitment is reflected both in his decision to continue the armed struggle against transnational terrorism, and in the actions he has taken to demonstrate US commitment to fundamental humanitarian principles of the law, and to abandon the policy of legal exceptionalism that defined his predecessor's ‘authority without obligation’ interpretation of the law as it applied to this armed conflict. Any doubt about these dual pillars of his approach to transnational terrorism was eliminated when he delivered his Nobel acceptance speech. In that speech, he challenged the international community to accept the continuing need to meet the threat of transnational terrorism with military force. However, he also emphasized that maintaining the moral high ground in the conduct of hostilities – even when confronting an immoral opponent – is at the very core of the American military tradition.

Exclusion Under Article 1F(a) of the 1951 Convention in Canada

Following the traumatic events in the United States on 11 September 2001 and the immediate heightened security response by the international community and states, many human rights and refugee advocates, analysts and commentators noted that the new security measures introduced by states would limit human rights and severely constrain refugees' access to asylum. There was also widespread concern that Article 1F(a), the exclusion clauses, of the 1951 Convention Relating to the Status of Refugees, which apply to those suspected, for serious reasons, of committing crimes against peace, war crimes or crimes against humanity, would be applied and interpreted liberally to limit further the number of refugees. This article examines this proposition in relation to Canada by examining a number of Article 1F(a) cases decided by the Immigration and Refugee Board of Canada (IRB) and the Federal Court (Canada) since 9/11. Non-random samples of refugee law cases were drawn from the IRB's Reflex publication and from the Federal Court's (Canada) website. From the twenty-six IRB refugee decisions and the twenty-three Federal Court (Canada) appeal judgments analyzed, it was found that there were no discernable differences in the manner that Article 1F(a) cases were being decided by either the IRB or the Federal Court (Canada) after 9/11. Cases involving Article 1F(a) remain amongst the most difficult and complex for refugee law decision makers and appeal judges to decide, not only because they require the application and interpretation of international humanitarian and criminal law, but because they also involve the refugee claimant's or appellant's alleged complicity in these heinous international crimes.