Enforcement Of International Humanitarian Law Research Articles

Reappraising Reprisals Against Enemy Civilians in Customary International Humanitarian Law

Abstract Belligerent reprisals are a controversial and largely discredited mechanism for the enforcement of international humanitarian law. Additional Protocol i of 1977 prohibits a range of reprisal activity, including reprisals against enemy civilians. A (relatively small) number of States are not Parties to Additional Protocol i, whilst some States Parties have made declarations and/or reservations to the Protocol which could be seen as attempts to limit the operation of the prohibition. Its status as a rule of customary international law is therefore an important question. This article argues that opposition to the prohibition in customary law is neither as widespread nor consistent as has previously been suggested and that the weight of evidence points towards the existence (or development) of a customary prohibition. Consistent opposition by the UK and the US, however, makes it unlikely that the customary prohibition would be opposable to those particular States.

Reserving the objectionable: reprisals against enemy civilians, the United Kingdom and 1977 Additional Protocol I

Belligerent reprisals are a largely discredited method for the enforcement of international humanitarian law, which have been progressively limited and prohibited. Additional Protocol I of 1977 prohibits reprisals against enemy civilians but the United Kingdom lodged a reservation upon its ratification of the Protocol reserving the right to engage in reprisal activity against enemy civilians in certain circumstances. This article assesses the permissibility of the United Kingdom’s reservation according to the regulatory framework set out in the 1969 Vienna Convention on the Law of Treaties, which provides that a reservation is not permissible if it is incompatible with the object and purpose of the treaty. It then considers the possible legal effects of the reservation should it be determined to be impermissible.

International Humanitarian Law Perspective on Un-Targeting Attack

The Syrian conflict started on January 26th, 2011. At first, the conflict in Syria was an internal conflict between the government of Bashar Al Assad and the Rebel, the descent into war began with the violent and brutal repression of peaceful pro-reform protests, which later turned into an armed uprising against the regime of Bashar al-Assad, and has since become a regional conflict involving state and non-state actors. In the development of the conflict, some parties intervened to provide support for the Bashar al-Assad. One of the countries that intervene against Syria is Russia. In the armed conflict which happened in Syria on September 2015 and early October 2016, more than 9,000 people, including 4,000 Syrian civilians, were killed by the Russian airstrikes. The International Humanitarian Law hostilities regulate the protection of victims of conflict and restrictions on the means and methods of warfare. This study aims to identify the obstacles of legal enforcement of international humanitarian law toward un-targeting attack in Syria. In addition, this study tries to reveal the responsibility of these states, both Russia and Syria for the loss and injury caused by an un-targeting attack. The result shows that the obstacles of law enforcement in Syria case caused Syria is not a state party in several international conventions. Therefore, these conventions are not applicable formally in the armed conflict in Syria. Based on International Humanitarian Law, Syria Government is responsible for the un-targeting attack that occurred in Syria, and required to make full reparation for the loss or injury caused by such violations. They are required to make full reparation for the loss or injury caused by an un-targeting attack. Furthermore, Individuals belonging to an Organizations or State are held personally responsible before the law. Then, the United Nations Security Council (UNSC) must carry out UN Charter Articles 41 and 42 and UNSC as the main organ responsible for maintaining international peace and security.

Mozambique Armed Conflict: A Semi-Active Volcano in Southern Part of Africa

An Armed Conflict that has been brewing in the eastern coast of southern Africa has sparked a discussion as far as the Application and Enforcement of International Humanitarian law is concerned.Thereby prompting and exposing shortcomings and indeterminacy in Application and Enforcement of International Humanitarian law in Non International Armed Conflicts.Also raising serious concerns of the contemporary armed groups posing a serious threat with their level of organisation, technical ability, access to resources and strategic awareness.This paper seeks to assess the acts of violence and hostilities in Mozambique under the threshold of application set by IHL and initiating a much needed discussion of the intertwinement and convergence of IHL application against Terrorist groups and Armed groups and vice versa.

Implementation and Enforcement of International Humanitarian Law

The chapter analyzes different means of implementation and enforcement of international humanitarian law (IHL). This includes traditional means, and new means of implementation. Hence, the use of big data tools and Artificial Intelligence, and new challenges for the implementation of IHL, as the use of autonomous weapons, are tackled. In more general terms the author differentiates between bilateral confrontative means (such as retorsions and reprisals), general non-confrontative means (such as the law of state responsibility) and more specific non-confrontative means (such as decisions and opinions of courts and war crime tribunals, especially the International Criminal Court). Moreover, special forms of implementation and enforcement of IHL are stressed, as the system of collective security, the instruments to secure both interstate and domestic enforcement and the competence and responsibilities of different actors. It is argued by Voeneky that, even though there is no place for the claim ‘inter arma silent leges’, IHL faces two main challenges for its realization: Firstly, IHL, like other areas of international law, is not implemented and enforced via a central body or hierarchical institutions, which leads to implementation deficits of rules protecting common values and an overlap of norms and competences. The second major challenge, relevant for this particular area of international law, is its purpose, aiming at humanizing an area that is per se inhumane. Moreover, by implementing and enforcing IHL rules, a balance has to be struck between the aim to protect certain persons and objects through restricting the means and methods of warfare, and the preservation of the right of self-defense as enshrined in Article 51 UN Charter.

Autonomous Cyber Capabilities and Individual Criminal Responsibility for War Crimes

Weaponization of the pervasive cyber infrastructure and of nascent autonomous technologies poses difficult challenges for individual criminal responsibility for war crimes arising from the military use of these technologies. For cyber technologies, the problem is identifying the perpetrator of the conduct which corresponds to the actus reus of the relevant war crime. For autonomous technologies, there is the problem of the ‘responsibility gap’: if the impugned conduct is effectuated by an algorithm or by a human relying on an algorithm, there is no human being with the mens rea required for the crime. Autonomous cyber capabilities (ACC) compound these two very significant and quite different challenges. This chapter analyses the challenges posed by ACC to criminal responsibility for war crimes. It does so by considering the practicalities of war crimes prosecution and how these challenges might be addressed in practice. On this basis, it presents two arguments. First, the practical impact of the challenge of identifying perpetrators and of the responsibility gap on individual criminal responsibility may be mitigated in some cases by the practice of charging and adjudicating war crimes. Second, for the remaining cases, the impossibility of criminal responsibility should not be seen as diminishing the enforcement of international humanitarian law (IHL) but instead, as indicating the preferability of enforcing IHL in these cases by invoking the parallel responsibility of belligerents. This chapter does not deny the significance of the difficulty of identification or of the responsibility gap and nor does it take on the quixotic burden of resolving them. Instead, it argues for destabilising the unitary and fixed nature of these problems, and for seeing them as variable challenges which may manifest differently in different cases. This differentiated perspective allows for the recognition that in some cases these challenges do not pose insurmountable barriers to prosecution and allows for the refocussing of attention on the residual cases. In turn, the resilience of these challenges in ‘residual’ cases draws attention to the possibility that criminal responsibility is simply inappropriate in these cases, and that these cases are better addressed in terms of the underlying responsibility of belligerents.

ASPEK-ASPEK HUKUM HUMANITER DALAM KEJAHATAN PERANG YANG DILAKUKAN OLEH ANGGOTA DINAS ANGKATAN LAUT DALAM KONFLIK INTERNASIONAL

This article focuses on the enforcement of international humanitarian law through the prosecution and punishment of individuals accused of violations of international humanitarian law by national tribunals, especially about the doctrinal contributions regarding war crimes committed by navy officers at national tribunals. The author also shows principles that has developed by the ICC's Statute, such as legality principle, individual criminal responsibility, superior order, fair trial, no survivor, and act of state doctrine.

Law Trumps Hate? Enforcing Legal Constraints on Use of Force in Armed Conflict in the Face of Literal, Interpretive and Implicatory Denial

The rise to power of champions of post-truth politics attests to a social climate in which facts are devalued while sentiment is given great currency. In this environment, there is cause for concern that both facts and norms will be set aside when yielding unpopular outcomes. Such concerns are especially warranted when it comes to holding state servicemen accountable for alleged violations towards persons affiliated with the adverse party to an armed conflict. Promoting accountability in such cases has always posed a challenge and will likely prove all the more difficult in a state of widespread indifference to the truth. With this threat to the rule of law looming in the background, the article looks to experiences from the Israeli-Palestinian context to draw cautionary lessons and raise a call for vigilance. Through analysis of case studies in which Israeli troops allegedly applied unlawful force against Palestinians, it traces a corrosive process whereby regular recourse to ill-founded and unwarranted denial has undermined the enforcement of international humanitarian law and related rules in the occupied territory. Noting that denial persists even in the wake of seemingly compelling evidence furnished by advancing technologies, the article contends that it has fostered a culture of impunity that in turn threatens to bred widespread disrespect, indifference and alienation towards the law and towards its underlying values. The article ultimately advocates for steps to be taken to offset this dangerous outcome.

Issues on The Enforcement of International Humanitarian Law to The Use of Drones in Armed Conflicts

Abstract Drones are new means and methods of warfare which, apparently, are similar to combat aircrafts. A big difference between the two categories is the human personnel involved. Compared with airplanes, carrying a human crew on board - this one carrying out combat operations from inside the aircraft - drones do not have inside human beings, being coordinated from the ground (or sea) - the military actions carrying out from the place where the operators are. So the question arises: what kind of rules of international humanitarian law are applicable to the use of drones in armed conflicts? Starting from the rule that legal rules apply to legal relationships between people (but not directly to objects or animals), I analyze to what extent these means and methods of warfare are subject to the rules of armed conflict on land, sea or air.

Ambivalent Enforcement: International Humanitarian Law and Human Rights Tribunals

The question of how to best enforce the decisions of international tribunals looms large in international law. Specifically, the sub-field of international law known as international humanitarian law (IHL), or the law of war, suffers from a lack of enforcement options as its Achilles heel. No tribunal exists with specific subject matter jurisdiction to adjudicate during situations that may give rise to state violations of international humanitarian law. Meanwhile, human rights tribunals have the subject matter jurisdiction to resolve human rights disputes, and there are significant areas of substantive overlap between humanitarian law and human rights law. Focusing on the interplay between international human rights law and international humanitarian law, this Article examines whether, based on this substantive overlap, human rights tribunals offer an appropriate forum for the enforcement of IHL. This article makes two important contributions: first, it offers a normative framing of how to utilize the abstract legal standard of lex specialis when IHL and HRL may simultaneously apply; second, the Article assesses the impact of employing IHL at human rights tribunals, concluding that this practice, even when the resulting decisions are not binding, may result in increased enforcement of IHL.

A Reflection on the Legal Obligation for Third States to Ensure Respect for IHL

The proliferation of armed conflict involving widespread violations of international humanitarian law (IHL) has created a virtually unprecedented humanitarian crisis, including levels of exodus not witnessed since the end of the Second World War. This article focuses on the promotion of compliance with and the enforcement of IHL. The capacity and influence of both international and regional actors in the promotion and enforcement of international law has evolved considerably in the half century since the adoption of the Geneva Conventions. International organisations have been recognised as important actors with a significant role to play in the preservation of international peace and order, but individual states also have a role to play and a duty to wield their influence to the degree possible to avoid violations of the fundamental principles of the laws of armed conflict. This research article examines the legal obligation of third states under the Geneva Conventions to promote compliance with IHL to ensure the protection of civilians in armed conflict.

Building respect for IHL through national courts

AbstractRespect for international humanitarian law (IHL) comes in many forms, one of which is through the practice of domestic courts in addressing IHL-related cases. This article takes a closer look at the structural conditions necessary for the effective enforcement of IHL by domestic courts, elaborates on the spectrum of options that are available to national judges when faced with IHL-related cases, and describes the functional roles of courts in adopting a particular posture. It is demonstrated that even if the structural conditions are fulfilled, this will not necessarily result in the normative application of the law. It appears that national judges are in the process of defining their own roles as independent organs for overseeing the State's acts during armed conflicts. In that regard, the article outlines a few suggestions for future research on the choices courts make and the conditions necessary for them to effectively handle IHL-related cases.

Modern warfare: Armed groups, private militaries, humanitarian organizations, and the law, by Benjamin Perrin, ed.

Benjamin Perrin, ed. Modern warfare: Armed groups, private militaries, humanitarian organizations, and the law Vancouver: UBC Press, 2012. 395 pp $99.00 (hardcover) ISBN 978-0774822329For over two decades now, academics and policy makers have been confronted with the challenges - such as security privatization, endemic urban violence, and lowlevel insurgencies - that come with the application of international humanitarian law in the post-Cold War environment. The contributions in Modem Warfare address the gap between the theory and the practice of international humanitarian law across contexts. Three central contributions set this book apart: first, it analyzes emerging issues by drawing from multidisciplinary perspectives; second, it assesses the impact of non-state actors on the prevailing humanitarian framework; and third, it tackles ongoing debates as they relate to humanitarian organizations, security privatization, humanitarian space, and urban violence.In the first section, the contributors explore the question of how to persuade nonstate armed groups to observe international humanitarian law in various contexts. Rene Provost concludes that what he refers to as asymmetrical non-reciprocity has proven inadequate in persuading non-state armed groups to obey international humanitarian law in armed conflicts. He argues instead for broadening the participation of non-state actors, which will not merely promote normative convergence but will also reach a more effective consensus than one that originates in a single category of participants (33). As Sophie Rondeau suggests, beyond the call for broader participation, it is necessary to include non-state armed groups in decisions about how the rules of international humanitarian law can be complied with. This solution, she argues, would be more constructive in fostering a culture of compliance.Some contributors express a different view. For example, Sandesh Sivakumaran argues that the involvement of non-state armed groups in the enforcement of international humanitarian law would cause unintended problems related to sovereignty and public international law. In Colombia and Myanmar, the challenges involved in negotiations with non-state armed groups, as discussed in the chapters by Elisabeth Decrey Warner, Jonathan Somer, and Pascal Bongard, illustrate this point.The volume also addresses the legitimacy of certain practices of modern warfare, such as humanitarian organizations hiring private security companies (PSCs). Benjamin Perrin analyzes the advantages and disadvantages of PSC involvement in humanitarian assistance and then advances two critical questions. First, if humanitarian organizations hire PSCs, would humanitarian personnel lose their protected status under international humanitarian law? Second, would PSC involvement affect humanitarian assistance? These questions will no doubt guide future scholarship that is at the intersection of international law and politics, addressing the security functions of non-state actors. …

KONSEKUENSI NEGARA INDONESIA MENJADI ANGGOTA ICC (STUDI TENTANG MEKANISME PENEGAKAN HUKUM HUMANITER INTERNASIONAL)

International Humanitarian Law (IHL) is a set of rules which is based on the 1949 Geneva Law and Hague Law in 1907 and equipped with Additional Protocols I and II of 1977. IHL seeks to provide protection to the victims of war and civilians in armed conflict (law of Geneva 1949) and what methods and tools that may be used in war (Hague Law 1907). The parties involved in armed conflict must respect the principles of limitation, proportionality and distinction. Violations of international humanitarian law called war criminals must be prosecuted as crimes against human rights. Enforcement of international humanitarian law carried out through the mechanism according to the 1949 Geneva Law, by temporary or ad hoc Court, and by the International Criminal Court (ICC). The method used in this research is normative qualitative approach by taking secondary data as a source of information. The results indicate that the consequences of Indonesia as a state to be a member of ICC are having the synergy process national law with Rome Statute covering criminal law, criminal procedural law, extradition, human rights court and the law of human rights itself. The final goals of the synergy are to make Rome Statuta as a follow up system of national judicial, to avoid conflict between ICC and the law of Indonesia, and to make internal law procedure for Indonesia when ICC jurisdiction is active in Indonesia Key words: humanitarian law, war criminal, court jurisdiction

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.

Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law

On November 4, 2011, the International Humanitarian Law Clinic at Emory Law School convened a group of military operational law experts with extraordinary breadth and depth of experience in applying and enforcing IHL. The meeting was convened to analyze the broader legal issues in and implications of the recent judgment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of Prosecutor v. Gotovina, which focused on Operation Storm, the Croatian operation to re-take the Kraijina region in the summer of 1995. The meeting grew out of extensive conversations with a range of US and foreign military operational law experts about the application of IHL in the Gotovina judgment. These issues are at the heart of an amicus brief that has been submitted to the Appeals Chamber at the ICTY – more to come on that in the next few days. Beyond the amicus brief, however, we felt it was essential to explore in greater depth a broader range of legal, institutional and policy concerns – in particular, the consequences of the judgment’s approach on future military operations, military planning and the implementation of IHL. The experts gathered represented a remarkable compilation of military legal and operational experience with regard not only to the implementation of IHL during the conduct of operations, but also to the broader institutional considerations of training, planning and doctrine that contribute significantly to the development and maintenance of disciplined and moral fighting force. This operational experience and knowledge brings the concepts at the heart of IHL – and the issues at the heart of the discussion over the Gotovina judgment – into sharp relief. The Emory IHL Clinic has now issued a report from the experts’ meeting – Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law. The report sets forth the experts’ consensus views and concerns regarding the application of the law in the judgment, highlighting four key areas: the imposition of what amounts to a strict liability standard imposed on commanders who attack lawful military objectives in populated areas; the flawed application of the principle of proportionality; the failure to consider or apply Article 58(b) of Additional Protocol I and its obligations for defending parties to take precautions; and the failure to properly recognize and rest the legal analysis on the operational complexity inherent in the targeting process. With an eye to the long-term consequences of the judgment, the report also emphasizes a range of institutional concerns and second order effects resulting from the judgment: the effect on future military operations; the consequences for the respect for and development of international law; and specific overarching concerns regarding the role of the commander and the role of legal advisers during military operations.

Regional Approaches to International Humanitarian Law

Violations of international humanitarian law (IHL) are a global concern. The enforcement of IHL has traditionally focused on the State level. As States have shown an unwillingness or inability to address violations, attention has moved to the international level primarily through universal approaches such as the International Criminal Court. However, experience has demonstrated that universal approaches also have their limitations. This article argues that regional arrangements offer the possibility of strengthening the enforcement of IHL. As regional arrangements occupy a distinct space between particular local conditions and the universalising tendencies of the global system, they are well placed to handle the various concerns and considerations surrounding the enforcement of IHL.

The United Nations Security Council and the Enforcement of International Humanitarian Law

This Article discusses the competences and powers of the UN Security Council in securing compliance with international humanitarian law, in particular through the adoption of the measures provided in Chapter VII of the Charter: The competence of the Council in this field can be founded on several legal grounds: on a broad interpretation of the notion of “threat to the peace” (Article 39 of the Charter), on Article 94(2) with regard to the International Court of Justice's judgments establishing violations of the jus in bello and also on the customary duty to ensure respect for international humanitarian law as reflected in Article 1 Common to the 1949 Geneva Conventions on the Protection of the Victims of War. In particular, such customary provision empowers the Security Council to react to any violation of international humanitarian law regardless of a nexus with concerns of international stability. Although the Council has adopted a variety of measures in relation to violations of the laws of war, the most incisive ones are those provided in Articles 41 and 42 of Chapter VII, which however are not without problems. The role the Security Council has played in the enforcement of international humanitarian law has been criticized because of its selective and opportunistic approach, which is due to the political nature of the organ. Also, in several instances the Council, far from securing compliance with the jus in bello, has instead interfered with its application. However selective and imperfect the Council's approach might be, though, its power to adopt decisions binding on UN members and its competence to take or authorize coercive measures involving the use of force make it potentially a formidable instrument against serious violations of international humanitarian law, partly remedying the lack of enforcing mechanisms in the treaties on the laws of war.

THE YEAR IN REVIEW

AbstractThis year in review will first discuss the major developments that contributed towards the formation or enforcement of international humanitarian law. Despite the many positive developments in the elucidation of international humanitarian law, 2009 witnessed the continuation of violent armed conflict around the world, not least in Sri Lanka where the long standing armed conflict came to a bloody conclusion amidst allegations of summary executions and other serious violations of international humanitarian law. Two other conflicts involving Israel/Gaza and Russia/Georgia which took place in 2008 and early 2009, resulted in the release of two influential international investigative reports, each of which alleged serious violations of international humanitarian law and called for the enforcement of criminal accountability. The election of Barack Obama marked a significant shift in the attitude of the United States to terrorism and detention with the new President immediately announcing on taking office, the closure of Guantánamo Bay.

Enforcement of Occupation Law in Domestic Courts: Issues and Opportunities

A review of the different occupation situations evidences that these situations are characterized by a poor record of compliance with the law of occupation. The international humanitarian law (IHL) conventional enforcement mechanisms have not been activated and compliance with the law has almost exclusively relied upon judicial processes. However, since enforcement of IHL through adjudication operates mainly under the principles of criminal individual responsibility, this course of action has been of little relevance for occupation law insofar as the latter contains only few provisions the violations of which amount to graves breaches of IHL or other serious violations thereof. Disrespect for occupation law barely gives rise to criminal proceedings and therefore excessive focus on the latter procedures constitutes an impediment to the effective enforcement of this corpus juris. In addition, actual IHL mechanisms designed to induce compliance with occupation law do not allow for the appropriate control of the administrative and legislative acts of the occupant. In light of the contemporay forms of occupation and the tendency to broadly interpret the powers conferred on the occupant by IHL, administrative and legislative acts of the occupant should not be left without legal review. The present Article investigates the role and legal entitlement of different domestic courts in this respect after having previously examined the obstacles to exercise of jurisdiction by domestic courts with regard to the measures undertaken by the occupant within the framework of Article 43 of The Hague Regulations of 1907. The author argues that, despite their usefulness, domestic courts do not actually provide an appropriate course of action for legal review of the administrative and legislative measures promulgated by the occupying power.