Rules Of Humanitarian Law Research Articles

The Conduct of Hostilities, Attack Effects, and Criminal Accountability

Abstract War crimes related to the decision to carry out attacks during the conduct of hostilities are almost always defined in terms of conduct and not result (Article 8(2)(b) of the Rome Statute of the International Criminal Court). Yet it is common for critiques of such decisions to focus on attack results as proof of their alleged illegality. While such results are probative of compliance or non-compliance with international humanitarian law rules regulating the conduct of hostilities, they should rarely be indisputable. This article addresses the challenge of attaching probative value to attack results when assessing responsibility for alleged war crimes based on allegedly illicit attack decisions.

The Compatibility of the International Humanitarian Law on International Peace Forces

The United Nations has resorted to developing a mechanism to stop armed conflicts and reach a peaceful settlement to them. They are the International Peace Forces in order to try to settle armed conflicts. The aim was to allow the conflicting parties to reach a peaceful solution, and the International Peace Forces (IPF) evolved in terms of their composition or in terms of the tasks they perform. In addition to the first task they undertook, namely the separation of the conflicting forces and the maintenance of the truce, they carry out the tasks of disarmament, demobilization and reintegration of combatants into their communities, strengthening the rule of law, enabling the local authority to strengthen its presence and fulfill its responsibilities besides securing elections with the aim to ensure a democratic transition of power, as well as ensuring respect for human rights and protecting civilians in the conflicting zones, carrying out humanitarian work including securing safe passages with the arrival of aid, securing refugees and expelled people. These forces witnessed a great development in terms of the mandates they carry out from peacekeeping to the tasks of peace enforcement; therefore, they carry out combat operations for peace enforcement, which in turn raised the question about the degree of the compatibility between the rules of international humanitarian laws and International Peace Forces. Such a question incited the researcher to answer it through inducing and analyzing significant texts, and he reached to a number of results, among of which is : International Peace Forces uses the armed forces in some of their tasks as being a part of armed conflict in the tasks of carrying out peace, and in turn, The United Nations must adopt decisions that frankly state that International Peace Forces should be compatible with the rules of humanitarian law.

AN ASSESSMENT OF THE ACCEPTANCE OF MEANINGFUL HUMAN CONTROL AS A NORM OF INTERNATIONAL LAW IN ARMED CONFLICTS USING ARTIFICIAL INTELLIGENCE

One major area of concern in relation to the use of autonomous weapon systems is that it involves humans giving some, if not all, control over a weapon system to a form of computer. This idea relates to the concerns that a computer’s ability to autonomously operate weapon systems puts the control of these systems beyond the bounds of the armed forces. This article examines the role that the concept of meaningful human control plays in the ongoing discourse, describes current perspectives of what meaningful human control entails, and reviews its value in the context of the analysis of AWS presented in this article. Within this article, as is the case in the wider debate, the term meaningful human control is used to describe a quality that is perceived to be essential for a given attack to be considered to be compliant with international humanitarian law rules. It does not denote a specific class of weapon systems that permit or require a minimum level of human control; rather, it infers that a weapon that is used in an attack that is legally compliant with international humanitarian law rules would essentially incorporate a meaningful level of human control.

Penggunaan Cyber Warfare dalam Konflik Bersenjata Internasional Antara Rusia-Ukraina Menurut Hukum Humaniter Internasional

Today's the advancements of technology have an impact on many aspects of life, including health, education, transportation, business, information communication, and government administration. Nonetheless, given the strong relationship between technology and the military, technology advancements could lead to a war. The sheer proliferation of technologies implemented in military operations spawned technology-based warfare called cyber warfare. Cyber warfare refers to wars carried out through the virtual world and is coordinated with conventional warfare. In cyber warfare, opposing countries perform cyber operations through cyberspace as the latest weapon of warfare launched to destabilize the national security and stability of the target state. The current cyber warfare is in the international armed conflict between Russia and Ukraine. This article analyses the deployment of cyber warfare in international armed conflict from the international humanitarian law perspective, and it also investigates Russia's use of cyber warfare against Ukraine. The purpose of this article is to understand how international humanitarian law rules the use of cyber warfare in international armed conflicts, in addition to the way Russia employs cyber warfare against Ukraine. This article is normative law research which uses the statute approach with juridical-normative research method. The findings found that cyber warfare carried out within the framework of international armed conflict is subject to international humanitarian law and that its use is also restricted by the fundamental principles of international humanitarian law. The research also found that Russia's cyber warfare against Ukraine in an international armed conflict is against the principles of differentiation and proportionality.

Targeting drug lords: Challenges to IHL between lege lata and lege ferenda

AbstractThis article aims to clarify how international humanitarian law (IHL) rules on targeting apply when drug cartels are party to a non-international armed conflict. The question of distinguishing between a cartel's armed forces and the rest of the cartel members is a pertinent matter. It is crucial to avoid considering every drug dealer a legitimate target, just as we do not consider that everyone working for the government is a legitimate target. Nevertheless, it is unclear at what point a member of a cartel would change from being a criminal to being a member of the armed wing of the cartel, hence becoming a legitimate target. The present article will suggest a teleological approach to solving this conundrum.

المسؤولية الجنائية الدولية والوطنية لموظفي الشركات العسكرية والأمنية الخاصة

The world is witnessing many armed conflicts, which played a prominent role in tearing the countries that were exposed to those conflicts, and therefore these conflicts prompted governments that are experiencing internal or external conflicts and turmoil to seek the assistance of private military and security companies in order to maintain their rule, and the services provided by these companies are Several, including training, providing advice and intelligence information, as well as securing convoys and transporting supplies, but their progress increased to the point of participating with the security forces in the fighting. This research is of great importance in the international and national criminal responsibility of employees of private military and security companies, to clarify individual criminal responsibility in the light of the provisions of international humanitarian law and international criminal law. Since private security companies are so far governed by clear and binding international rules, it is necessary to make possible efforts to prevent serious violations of the rules of international humanitarian law and human rights rules by employees of those companies at the internal and international levels.

The International Court of Justice and the international humanitarian law rules for armed conflicts

This article analyzes the undermined importance of the International Court of Justice’s (ICJ) case law in interpreting international humanitarian law (IHL) and its relationship with public international law. It examines how the ICJ has elevated IHL to customary law, declaring it “intransgressible” and equating it with jus cogens, and identified particular obligations for the parties in conflict. The article studies how the Court has clarified the relationships between customary IHL with the law of treaties and has declared which elements of IHL constitute the most basic principles of humanity, applicable whether it is an international or non-international armed conflict. Finally, the text analyzes how the Court, has discouraged counterproductive separations between the application of IHL and international human rights law.

Greener insurgencies? Engaging non-State armed groups for the protection of the natural environment during non-international armed conflicts

AbstractAs belligerent parties, non-State armed groups (NSAGs) contribute to environmental damage in non-international armed conflicts. Drawing from the actual practice and doctrine of NSAGs, this article unpacks the legal and policy framework for engaging them on the protection of the environment. It analyzes the international humanitarian law rules protecting the environment binding on NSAGs. To improve environmental protection, a model of environmental responsibilities under international human rights law and international environmental law based on the NSAG's level of territorial control is suggested, as a matter of policy. This article then explores how to engage NSAGs on the legal and policy framework identified and proposes a model unilateral declaration for the protection of the natural environment.

A legal obligation under international law to guarantee access to abortion services in contexts of armed conflict? An analysis of the case of Colombia

AbstractThis article discusses the existence of an international obligation for the State of Colombia to guarantee access to abortion services for women and girls who are victims of conflict-related sexual violence in the context of the Colombian armed conflict. By examining international humanitarian law rules from an international human rights law lens, it sets out the interdependence between both frameworks from reproductive health and human rights perspectives. Furthermore, the article provides considerations on the recognition and redress of these violations in the transitional justice scenario in Colombia.

Reflections on humanitarian law dimensions of the African Union Convention for the protection and assistance of internally displaced persons in Africa

While significant attention has thus far been paid to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), the rules of humanitarian law that it sets out have not yet been the subject of a specific in-depth analysis. This contribution aims to fill this gap in the literature. It specifically examines the humanitarian law rules contained in the Kampala Convention to determine their meaning and scope, as well as their contribution to strengthening international humanitarian law (IHL). It begins by analysing the articulation of these regional humanitarian rules with the universal rules of IHL that preceded them to determine whether there is any divergence between them. Next, the paper attempts to determine the extent to which the humanitarian law provisions of the Kampala Convention enrich the legal protections provided by IHL for the improvement of the plight of internally displaced persons from armed conflict. Finally, with an approach centred around making suggestions for law reform, the paper demonstrates why and how these rules should inspire the future development of conventional and customary norms that would assist with the challenges of conflict-induced displacement.

The Martens Clause, Global Pandemics, and the Law of Armed Conflict

In the aftermath of the UN Secretary General’s call for a global ceasefire following the outbreak of COVID-19, a discussion emerged regarding how International Humanitarian Law applies during a global pandemic. This Article contributes to that discussion through the lens of two distinct strands of thought on the Martens Clause. The first considers the Martens Clause as capable of affecting understandings of how the existing law of armed conflict applies to the conduct of hostilities during a global pandemic. Applying various scholarly and judicial interpretations of the Martens Clause’s contemporary legal import, the Article argues that the humanitarian law principles of proportionality, distinction, and military necessity have significant legal bearing on the conduct of hostilities concurrent to a global pandemic. During a global pandemic, the principle of proportionality ought to insist that military commanders include foreseeable incidental harm to civilians resulting from an attack’s expected impact on disease transmission in their incidental harm calculus. The principle of distinction should mandate that the effects of chosen means and methods of combat—including on disease transmission—be limited to military objectives. And the principle of military necessity obliges respect for its delicate balance with humanity, allowing only that which is necessary to achieve legitimate objectives—including taking seriously the duty to take tailored precautions before attacks amidst a global pandemic. These principles, particularly in light of the Martens Clause’s principles of humanity and the dictates of the public conscience, have important legal sway over the conduct of hostilities during pandemics.The second strand of thought on the Martens Clause relates to its ability in certain limited and defined situations to affect the formation process of new customary rules of humanitarian law. The Article argues that armed conflict during a global pandemic falls into this narrow category and that, as a result, the Martens Clause might influence the formation of an emerging custom regulating armed conflict during a global pandemic. In light of significant international support for the call for a global ceasefire in response to the outbreak of COVID-19, the Article assesses whether a new rule of humanitarian law mandating a ceasefire amidst the outbreak of future global pandemics is forming. Analyzing the current stage of this lex ferenda, the Article illustrates the elements lacking in the formation process. Nonetheless, such a rule solidifying into new customary law in the aftermath of the COVID-19 pandemic would be a normatively positive evolution in light of the threat posed by future pandemics.

The Criminalisation of Intra-party Offences in Light of Some Recent icc Decisions on Children in Armed Conflict

Traditionally, international humanitarian law is considered to be applicable only to the relationship between different parties of an armed conflict, while domestic law and international human rights law address situations of intra-party conduct, i.e., conduct involving members of the same party only. In the recent case law of the International Criminal Court, however, intra-party offences against children used as child soldiers have been treated as war crimes. Various Chambers have offered different arguments on this inclusion, which touches upon fundamental issues related to the scope of application of international humanitarian law. This article explores whether the criminalisation of intra-party offences as war crimes is in line with contemporary international humanitarian law, arguing that a positive answer must be based on the correct interpretation of international humanitarian law rules.

The Counterterrorism War Paradigm versus International Humanitarian Law: The Legal Contradictions and Global Consequences of the US “War on Terror”

Since 2001, we have witnessed the development of a counterterrorism war paradigm built to advance claims about the post-9/11 scope and discretion of US executive power and to articulate specific interpretations of national security interests and strategic objectives in the “war on terror.” What makes this a paradigm rather than merely a conglomeration of evolving policies is the cohesiveness and mutual reinforcement of its underlying rationales about the rights of the US government to prosecute a territorially unbounded war against an evolving cast of enemies. Drawing on Bourdieu’s concept of a juridical field, the article focuses on how officials who constructed a legal framework for this paradigm, rather than disregarding international law wholesale, have engaged in interpretations and crafted rationales to evade some international humanitarian law (IHL) rules and norms while rejecting the underlying logic or applicability of others. This article traces the counterterrorism war paradigm’s development and explains how it now competes with and threatens to supersede the customary law principles enshrined in IHL.

Dejstvo rata i ratnog stanja na međunarodne odnose država

The first part of the paper deals with the effect of the outbreak of war or the state of war, on the international relations of states. Following is a brief overview of the differences between the war as a factual and wartime state as a legal category. Within the special sections, the effect on relations with the enemy (the entry into force of the rules of war and humanitarian law, the termination of diplomatic relations, the effect on treaties, the status of alien enemies), relations with allies, relations with neutral countries (rights and obligations of neutral states, the position of neutral aliens, etc.) and, ultimately, relations with international organizations (which can appear in the role of enemies, the allies, the neutral side and in the special role of the factors concerned with the preservation of world peace) were analyzed. The conclusion is that many issues relating to the effects of war or the state of war on relations with international organizations are not sufficiently addressed in the legal literature.

Asia-Pacific States and the Development of International Humanitarian Law

This chapter considers the development of international humanitarian law by states from the Asia-Pacific region. It explores the contribution of individual states from the region to the drafting of the 1949 Geneva Conventions and the 1977 Additional Protocols. It examines the extent to which state practice and opinio juris from states from the region are used in the formation of customary international humanitarian law rules, using as case studies the ICRC Customary International Humanitarian Law study and jurisprudence of the ICTY. The role of national judicial decisions from the region is analysed. The chapter then turns to the use of materials from Asia-Pacific states in leading teachings of publicists, such as the ICRC Commentaries on the Geneva Conventions and Additional Protocols and the work of expert groups.

Injecting Human Rights into International Humanitarian Law

During times of war, the relationship between International Humanitarian Law and International Human Rights Law has always been controversial, and has generally been solved by prioritizing the rules of the former and minimizing the application of the latter’s. In practice, this has translated into insufficient standards of protection for individuals and, more specifically, into the endorsement of an unrestrained right to kill enemy combatants. This paper suggests a novel approach to this regime interaction: the application of International Human Rights Law during wartime should serve as an interpretative tool of International Humanitarian Law rules, strengthening the safeguards offered by the latter and, thus, better respecting the rights of individuals during hostilities. Regarding the right to life, this interpretation would require to abandon the idea of a right to kill opponents and, instead, demand that least harmful means be employed during military operations, when possible. Lethal force should be allowed only in cases where military necessity justifies it, henceforth avoiding causing individuals more harm than that strictly required. The purpose of this article is not to advocate for a prohibition of killing combatants –as the nature of armed conflicts would render that rule unattainable– ; it is, however, to establish a principle capable of guiding combatants’ behaviour towards a more humane conduct of hostilities.

The Interplay between International Human Rights Law and International Humanitarian Law During International Criminal Trials

The protection regimes of international human rights law (IHRL) and international humanitarian law (IHL) partially overlap. Certain unwanted conduct may therefore violate both human rights norms, which – subject to derogation – apply at all times, as well as humanitarian law rules, which only apply during armed conflicts. For the purposes of international criminal law (ICL), such conduct may therefore qualify as both a crime against humanity and a war crime, which are systematic or widespread violations of specific human rights and serious violations of IHL, respectively. The present contribution discusses the interplay between the crimes against humanity and war crimes regimes, including the impact of the existence of an armed conflict on the status of alleged victims of crimes against humanity. It further highlights the risk that certain acts that form part of military operations in times of armed conflict may be qualified as crimes against humanity even though they are not contrary to IHL. The author concludes that crimes against humanity and war crimes have to be considered with care, and kept separate when necessary, in order to avoid any negative impact on the development of IHL and/or IHRL, and to safeguard the rights of the accused under ICL.

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.

Thee Applicabilityy offInternationallHumanitariann Laww Rulessinn Internall Armedd Conflicts

The Humanitarian law applicable to internal armed conflicts (NIACs) not of an international character (IACs) seems to be underdeveloped in so far as the available international law instruments are considered. While lot of political calculations were underlying this gloomy situation, it is worth considering whether there is any hope in enhancing this regime of law in light of the International Humanitarian law (IHL) rules applicable to IACs. This article explores the possibility of analogically adopting such rules to NIACs on the basis that the fundamental principles applicable to whatever armed conflicts are so common and similar, that maintaining an artificial two regimes of laws seems to be an anomaly in laws.

طبيعة قواعد القانون الدولي الإنساني في قضاء محكمة العدل الدولية

إن الفقه في مجمله، يؤكد أن قواعد القانون الإنساني، هي قبل كل شيء لها طابع آمر، كما تضمنته المادة 53 من اتفاقية فيينا لقانون المعاهدات لسنة 1969. غير ان محكمة العدل الدولية لم تصل بعد إلى اعتبار القانون الإنساني ضمن القواعد الآمرة، بالرغم أن الفرصة كانت مواتية لها في العديد من القضايا والآراء الاستشارية التي عرضت عليها وتناولت بمناسبتها تحليل قواعد القانون الإنساني أو قانون حقوق الإنسان بشكل أعم. إن دراسة شاملة للقضايا التي تطرقت فيها محكمة العدل الدولية إلى قواعد القانون الإنساني، والتي حللت فيها الطبيعة القانونية العليا لتلك القواعد تثبت بالفعل أن المحكمة كانت تتجنب وصف القانون الإنساني بصفة القواعد الآمرة، والاكتفاء بإبراز الطبيعة المطلقة لتلك القواعد والالتزامات الناشئة عنها تحت مسميات ومصطلحات متنوعة، ولكنها لم تجرئ على إلحاق صفة القاعدة الآمرة بالقانون الإنساني ولو لمرة واحدة ؟ وهو ما يؤكد بشكل عام تمسك المحكمة بفكرة السيادة وسلطان الإرادة في القانون الدولي. Summary : The jurisprudence in its entirety, confirms that the rules of humanitarian law, is first and foremost a commanding character, as the contents of Article 53 of the Vienna Convention on the Law of Treaties of 1969. However, the International Court of Justice has not yet reached the considered humanitarian law within the peremptory norms, although that opportunity were favorable in many of the issues advisory opinions offered by Bmanasptha addressed the rules of humanitarian law analysis or, more generally, human rights law. The comprehensive study of the issues in which the International Court of Justice touched on the rules of humanitarian law, which analyzed the Supreme the legal nature of those rules already shown that the Court was to avoid description humanitarian law as peremptory norms, and only highlight the absolute nature of those rules and obligations arising there from under the names and terms variety, but they did not dare to inflict recipe jus humanitarian law Qaeda even once? Which confirms the generally hold court with the idea of sovereignty and authority will in international law.