Humanitarian Law Research Articles

Legal regulation of relations regarding the provision of nuclear and radiation safety in Ukraine in peacetime and martial law conditions

The article examines the issue of legal regulation of nuclear and radiation safety relations in Ukraine in peacetime and martial law conditions. The legal aspects of the formation of nuclear legislation during the period of large-scale armed aggression of the Russian Federation against Ukraine are studied. The purpose of the article is to highlight the problems of legal regulation of nuclear and radiation safety relations in Ukraine in peacetime and martial law conditions. The authors of the article conducted a retrospective review and the current state of development of the national legislation of Ukraine in the field of ensuring nuclear and radiation safety. As a result of such consideration, it was determined that over thirty years, an extensive system of nuclear legislation has developed, at the same time, today the system of the legal framework in the field of the use of nuclear energy, ensuring nuclear and radiation safety, radiation protection of citizens from the effects of ionizing radiation in Ukraine consists of documents of three levels. The authors of the article came to the following conclusions. Ukraine must fulfill its international legal obligations in full. Despite the rather extensive system of nuclear legislation under martial law, it is actively developing and improving. At the same time, there is a need to solve the issue of improving foreign and international legislation, in particular, at the same time as the national legislation. EU legislation. In the future, the norms of this legislation must be implemented in the national legislation of all EU member states and the IAEA. Despite the inability of the IAEA to solve the issue of ensuring nuclear and radiation safety under the conditions of martial law, as well as the problem of constant nuclear blackmail by the Russian Federation, in our opinion, at the moment, it is the only international organization that is capable, by sending its experts, in particular, on the Zaporizhia NPP, which has been captured by Russian troops since March 2022, to have at least a small impact on solving the above-mentioned tasks. However, in the future, i.e. after the end of military operations in Ukraine, the international community will have to resolve issues related to the reorganization of international humanitarian law, as well as the activities of such organizations as the UN and the IAEA.

Specifics of the Implementation of International Control over States’ Compliance with Obligations under International Humanitarian Law

The paper assesses the use of means of extrajudicial, judicial and public international control over states’ compliance with obligations under international humanitarian law (IHL), and formulates the concept of the institute of international control in IHL. It is noted that the non-judicial mechanisms of international control include: a) a system of protective powers carried out by states independently; b) a mechanism based on the mutual consent of the warring parties for a specific case of an ad hoc offense (a special procedure for investigating states in their non-hostile interaction); c) international fact-finding and investigation mechanisms carried out by international organizations and/or specially authorized bodies on the basis of a states’ obligation that arose earlier. According to the manifestation of the volitional component, the proposed structural control model can be characterized as competing. The institution of protecting powers allows a state that is not involved in an armed conflict to represent the interests of one opposing state over another through good offices. The states at war have pledged to accept the mission of the International Committee of the Red Cross or any other impartial organization. The International Fact-Finding Commission is the only permanent treaty body designed to promote compliance with IHL norms and ensure guarantees provided to victims of armed conflict. Conventions on prohibitions or restrictions on the use of military means contain their own control mechanisms.

Gulf War I: The Legality of Prosecuting Existing Iraqi Ba’ath Party in Response to Kuwait’s Deceased Captives

This paper analyzes and describes the role of international law in prosecuting international crimes committed during and after wartime, in general, and in the territories of Kuwait and Iraq during the invasion by the latter (Gulf War I), in particular. Through these approaches, I will identify the importance of international criminal and humanitarian laws’ mandates in trying existing Ba’ath commanders who had ordered, aided, abetted, and/or neglected their duties over their forces in which this conduct resulted in the death of Kuwait’s captives. In light of this analysis, I propose the establishment of an ad hoc tribunal to try and punish these perpetrators as a corollary initiative laid out on the United Nations’ obligations, and as a consequence to the Security Council resolution to liberate Kuwait. This paper will consist of four parts. The first part will illustrate the background of the Iraqi invasion of Kuwait and the liberation initiative led by the US and the UN (Operation Desert Storm) to free Kuwait from that invasion. The second and third parts’ approaches will analyze and criticize the legality of both: the Iraqi invasion of Kuwait, on the one hand, and the US-UN intervention to liberate Kuwait, on the other hand. Consequently, all of these proponents will lead to the development of a test to create an ad hoc criminal tribunal to try and punish the existing Ba’ath regimes who have violated international law by not keeping Prisoners of War (POWs) safe and unharmed. In conclusion, this paper is an attempt to achieve informative and analytic frameworks to argue why the UN should create an ad hoc tribunal and how this mechanism can be accomplished.

Protection of the Environment under International Humanitarian Law Regime: Challenges and Way Forward

Protection of the Environment under International Humanitarian Law Regime: Challenges and Way Forward

UNMASKING ISRAEL'S ACTIONS: WHITE PHOSPHORUS AND INTERNATIONAL LAW BREACHES IN ISRAEL - PALESTINE CONFLICT

Israel has been accused of using White Phosphorus (WP) chemical weapons on populated areas. Although its use is not prohibited, there are several conditions that limit the use of WP in warfare as stipulated in International Humanitarian Law and several other international conventions. Israel argued that the use of WP was to cover the movement of their soldiers against Hamas soldiers and not to target people. This has drawn pros and cons from various legal experts and human rights observers. This article discusses the issue by focusing on the restrictions on the use of WP in international law. The method used is normative legal research that relies on international conventions. The conclusion obtained is that there is no prohibition on the use of WP in war, but it is necessary to pay attention to the objectives and procedures for using WP in war, such as not being used in community areas or by air. This answers the debate that Israel is guilty of misusing WP weapons in areas where there are communities.

Sometimes there is no easy answer: Health care protection in conflict zones

PLEASE NOTE: Section titles are N/A to article type submitted (Letter to Editor). On a global scale, health care providers and facilities are observed to be increasingly exposed to dangers amidst political instability, siege, war. Public health is indisputably at the forefront of saving lives during military operations. In the current climate of global adversity, public health professionals have the responsibility to be prepared at all times and well-informed when responding to medical conflicts. Complex humanitarian emergencies cause great disruption, disabling, damaging, destroying community well-being. Public health sciences are evidently at the leading edge of health services planning and provision in mass casualty incidents. This article draws attention to the critical and current subject of health care and medical workers under attack in war zones. Criminal violence is against the law and an action that requires punishment. Lawful conduct that is part of a legally legitimate military operation must comply with the fundamental principles that govern armed conflict. It is important not to confuse the two action in terms of clarity and purpose. As for the extremely topical and vital issue, this article calls upon all parties in relevant fields to refresh and update their knowledge of the International Humanitarian Law, the Geneva Conventions and the various additional protocols in relation to current crises. Particular emphasis is placed on alerting national and international audiences at this turning point in history. When health care is faced with war-torn ethical damage, it is incumbent upon every professional to understand the context, to refrain from getting caught up in dilemmas, avoid getting carried away by popular tabloid trends.

NGO Support for International Security Force Vetting and Screening

Abstract Many non-governmental organizations (NGOs) document violations of human rights and international humanitarian law (IHL) for the purpose of contributing to criminal accountability processes. This requires NGOs to meet criminal procedural standards, often dedicating extensive resources to a form of accountability that is difficult to secure. Given these challenges, this article explores an alternative end-use for NGO documentation of violations: the security force vetting carried out by multilateral organizations and donor governments as part of an international exchange of resources or personnel. In particular, we examine the United Nations system for screening peacekeepers, and national and international systems for vetting foreign recipients of security force assistance. We review the processes and rationale for these international vetting and screening systems, identifying both opportunities and challenges for NGO engagement. We conclude that NGOs seeking to restrict the power and capacity of an abusive security force may find it worthwhile to engage with these systems, which would benefit from the contribution of high-quality NGO documentation.

Свобода слова в военное время: опыт Израиля

The article focuses on freedom of speech in the State of Israel in the context of the ongoing war with Hamas. Throughout its modern history the Jewish state has faced national security threats from some neighboring countries and military groups in the Middle East, that is why freedom of speech regulation has had to reflect these factors. However, parties’ compliance with the rules and customs of war (international humanitarian law) is not within the scope of this article. The first part of the study shows the evolution of the legislation, as well as key precedents of the Supreme Court of Israel, where the highest court of the land consistently considered freedom of speech as a core element of Israeli democracy. Then, the author moves on to current challenges, namely anti-war student protests on campuses and foreign media coverage of the war. Regarding freedom of speech at universities, Israeli legislation is quite ambiguous, leaving wide discretion to the administration of educational institutions and creating legal uncertainty. In contrast, foreign media face the opposite problem, i.e. the rigid regulation and military censorship. Consequently, both situations present equal challenges to freedom of speech in the country that require Israeli legislature and courts to act. In conclusion, the author fully acknowledges that the State of Israel, faced with military aggression, has a legitimate and justified interest in ensuring national security and it may lead to certain restrictions on freedom of speech. Meanwhile, it is important that such restrictions are clearly formulated in the statutes, balanced and proportionate. Today, more than ever, it is important that Israel preserves its democratic values that have always formed the very foundation of the Jewish state.

ROBOTIC REVOLUTION: DOES ARTIFICIAL INTELLIGENCE TRIGGER INTERNATIONAL ARMED CONFLICT OR NON- INTERNATIONAL ARMED CONFLICT

The introduction of new forms of artificial intelligence (AI) military weaponry specifically autonomous weapon systems (AWS) can select and engage targets without human intervention therefore the application of lethal AWS incorporation with AI has revolutionized armed conflicts.The main concern regarding the military application of AI is the use of force should be maintained by only human soldiers. There is an urgent need to reinterpret the threshold for triggering an international armed conflict because AI technology unintentionally causes war during border control or surveillance operation. This article predominantly focuses on fully autonomous weapon systems which refer to human agents being removed from certain force applications. The main research questions in this article are first, is it possible that an AWS might, alone, spark an international armed conflict, thus bringing international humanitarian law into force? Second, can the criteria of organisation and intensity that give rise to non-international armed conflicts be met when AWS are controlled by non-state armed actors? This study will examine the research questions by focusing on the main areas of debate in the field of international law on AWS, specifically the compatibility of AI with the principles of humanitarian law, the determination of international responsibility, and ethical problems.

Investigating Environmental and Humanitarian Law Violations in Coastal Bangladesh: A Survey-Based Analysis

Investigating Environmental and Humanitarian Law Violations in Coastal Bangladesh: A Survey-Based Analysis

Peran the International Committee of the Red Cross (ICRC) pada Perlindungan Jurnalis Korban Perang Menurut Hukum Humaniter International

This article examines the role of the International Committee of the Red Cross (ICRC) in protecting journalists who are victims of war under international humanitarian law. The protection of journalists in armed conflict is an important issue given their role in conveying information to the public. International humanitarian law, through various instruments such as the Geneva Conventions and their Additional Protocols, emphasizes the need for special protection for journalists who are not involved in combat. The ICRC, as an independent humanitarian organization, plays a role in ensuring the application of and respect for these legal provisions. This article explores the steps taken by the ICRC, and highlights the challenges and opportunities in improving protection for journalists. The analysis also demonstrates the importance of international cooperation in strengthening compliance with international humanitarian law.

International Humanitarian Law and Business: Finding a Bridge

This article aims at analysing whether rules of international humanitarian law are applicable to business and if yes, to what extent. Additionally, the consequences for International Humanitarian Law (IHL) violations by companies are analysed. We highlight that enterprises, their personnel and property which are not directly linked to a conflict enjoy the protection under Geneva Conventions from deliberate or indiscriminate attacks, as well as from pillaging and violations of private property. However, keeping neutrality in armed conflicts is a difficult task for companies and there are different ways in which they can contribute to human rights violations and abuses as well as commit international crimes. In order to prevent such violations, companies should conduct hHRDD and comply with IHL rules. Non-compliance with them may lead to reputational and organisational risks for companies as well as bring companies to criminal and/or civil responsibility.

Formulation of contextual circumstances in final court decisions on cases of violation of the laws and customs of war: peculiarities of legal argumentation

The article analyzes the peculiarities of legal reasoning in final court decisions in cases of violation of the laws and customs of war (Article 438 of the Criminal Code of Ukraine) in the context of such contextual circumstances as the existence of an international armed conflict during which and in connection with which the relevant war crime is committed. The author identifies the following shortcomings in the wording of contextual circumstances in sentences under Article 438 of the Criminal Code of Ukraine: an extensive historical excursion into the historical past of our State and world organizations, as well as the lack of a clear definition of such contextual circumstances. The author proves that in addition to the direct establishment of such circumstances, final court decisions should state the existence of a relevant victim, object and subject of a war crime, which are elements of the mechanism for determining contextual circumstances, as well as independent signs of the crime under Article 438 of the Criminal Code of Ukraine. It is determined that the legal arguments used in final court decisions should include a brief description of the factual and temporal factors of the international armed conflict on the territory of Ukraine, which take place in the country as a whole, as well as the local aspect of the international armed conflict, the existence of which is proved by the occupation of the Ukrainian settlement where the war crime event took place. In addition, when describing the contextual circumstances of the crime under Art. 438 of the Criminal Code of Ukraine, it is advisable to refer to international normative documents and international case law. It is determined that a complete description of the contextual circumstances will ensure the «stability» of court decisions in the courts of appeal, which may be appealed by the defense party arguing that there are no relevant contextual circumstances, which, in the opinion of the defense, indicates that an ordinary crime was committed, rather than a war crime. Key words: war crime, violation of the laws or customs of war, contextual circumstances, international armed conflict, criminal proceedings, international humanitarian law, final judgment, quality of judgment, legal technique, legal reasoning.

Procedural Aspects of Overcoming Sovereign Immunity: Relevance for Ukraine and the International Legal Order (SDG'S)

Objective: The object of this research article is the procedural domestic and international aspects of overcoming the sovereign immunity of a State that has committed military aggression, violating international humanitarian law and human rights law, with a focus on compensation for the damage caused by such actions. Method: The method of study involves a critical analysis of the approaches taken by the Supreme Court of Ukraine to overcome jurisdictional immunity, in light of international law norms. The authors employs a combination of legal analysis, case law examination, and comparative analysis of international practices to evaluate the compliance of the court's decisions with conventional provisions on compensation for damages. Results: This research article analyses the procedural domestic and international aspects of overcoming the sovereign immunity of a State whose military aggression has violated international humanitarian law and human rights law, and on this basis raises the issue of compensation for the damage caused by such actions. Special attention is paid to the approaches to overcoming jurisdictional immunity by the Supreme Court of Ukraine. Taking into account the norms of international law, the author critically analyses the court's compliance with the conventional provisions establishing the procedure for consideration of cases on compensation for damages. The aggressor State's disregard for the norms and principles of international law, sovereignty of other States, and international good faith does not give rise to a disregard for the norms of international law based on the principle of reciprocity. The author emphasises that compliance with the rules on court proceedings must comply with the conventional requirements, and this should be the basis for national case law on school compensation. The authors analyses legal immunities and jurisdictional immunity of the State in particular in the context of ensuring justice, which, according to international standards, is the basis for fair treatment of victims of armed aggression and ensuring access to justice. Contribution: It is noted that the application of the rules of jurisdictional immunity is the basis for limiting the right to a trial, which should be proportionate. The authors identifies the prospects for the development of international practice of interpreting the areas of ensuring the right to a fair trial, in particular, based on the practice of international courts. The author summarises the directions of changing approaches to the validity of the application of absolute immunity, and the dynamic interpretation of the legitimate purpose of limiting the right to a court, which is necessary and permissible provided that the essence of this right is preserved. The author emphasises the importance of the effectiveness of reparations as a principle and its significance for the development and provision of transitional justice in Ukraine.

Protection of Civilians and Treatment of Prisoners during War are at Stake: A Comparative Study

The atrocities of Israel's aggression perpetrated from 07 October 2023 on the civilian population and the treatment of prisoners of war shocked the world. Western governments have encouraged Israel to continue its tyranny. Many other governments around the world preferred to remain silent despite the presence of International Humanitarian Law (IHL). This has led to a re-launch of the debate on the credibility of IHL and the positioning of International Islamic Humanitarian Law (IIHL) on the world stage. The aim of this study is therefore to compare IHL and IIHL, from a theoretical and practical point of view, in the field of the protection of civilians during war and the treatment of prisoners of war. To do this, we opted for a comparative approach between these two components, both conceptually and functionally. This approach focused, on the one hand, on the main sources of the Sharia, the Quran and the Sunnah, as well as on the opinions of Muslim scholars (ulamas), supported by concrete examples of the application of Islamic norms by the Prophet and the Rashidoun caliphs. On the other hand, it also examined all the conventions, treaties and other documents that constitute the sources of the IHL. From a theoretical point of view, the results showed that there are many similarities between the two laws. In practical terms, however, the IIHL stands out for its concrete form and effective application. These observations led us to recommend that the current world order be rethought in view of the juxtaposition of the IIHL and IHL rules.

The right to health through international cooperation

Until only a few decades ago health had mostly been regarded as a personal matter, implying a reciproca! relationship between patient and physician, as codified in the hippocratic oath. Today, however, health is considered a human right, with complex philosophical, ethical, social, economic, political and legal implications. Additionally, a child has his own fundamental rights, such that the problem of children's right to health becomes a concrete issue within humanitarian law.

Evolution of International Legal Standards Regarding Responsibility for Violations of Laws and Customs of War (Second Half of the XIX-th – First Half of the XX-th Century)

This article examines the evolution of international legal standards aimed at defining responsibility for violations of laws and customs of war from the second half of the 19th century to the first half of the 20th century. It emphasizes that war is undoubtedly one of the most dreadful events that can impact people’s lives and society. However, if it is not controlled or conducted in accordance with international norms and standards, its consequences can be even more devastating and catastrophic. Since the beginning of the full-scale armed aggression of the Russian Federation against Ukraine, the term «violation of laws and customs of war» has become widespread. Responsibility for such actions is provided for by Article 438 of the Criminal Code of Ukraine. However, the criminalization of this act is not related to Ukraine’s domestic legal order, as violations of laws and customs of war are an international crime that causes serious harm to people, economic objects, and cultural heritage, creating a high level of societal danger. The article covers an analysis of key international documents such as the Geneva Conventions, decisions of the Hague Conferences, and UN resolutions, exploring their influence on shaping legal norms in this area. It examines changes in legal regulation, their causes, and consequences, as well as the role of specific individuals and historical events in this process. This research is important for understanding past experiences in the context of current challenges and conflicts, as well as for further development of international law and ensuring the protection of human rights during armed conflicts. In conclusion, it is noted that the second half of the 19th and the first half of the 20th centuries witnessed significant development of international legal standards concerning responsibility for violations of laws and customs of war. This period was crucial in shaping the fundamental principles of international humanitarian law aimed at protecting human rights during armed conflicts. As a result of this process, a series of international treaties and conventions were adopted, which established rules of conduct in armed conflicts and mechanisms for accountability for their violations. These standards have been an important step in humanizing war and protecting human rights during armed conflicts.

Internal legitimacy as a benchmark criterion for the inclusion of NSAGs in the making of IHL

Currently, non-state armed groups (NSAGs) are bound by customary international humanitarian law (IHL) without their consent or inclusion in its making. On the one hand, NSAGs’ inclusion in law-making would make IHL more adapted to situations of rebel governance, the capabilities of NSAGs, and could result in a compliance pull vis-à-vis NSAGs. On the other hand, such inclusion might be undesirable, unreasonable, and unfeasible. Nevertheless, all arguments pro and contra NSAGs’ inclusion do not necessarily apply to all types of NSAGs. However, scholarship lacks a convincing criterion to decide which NSAGs could participate in the formation of customary IHL. This article attempts to provide such a criterion by approaching the discussion in a non-state-centered manner and puts those most affected by armed conflict at the center: communities under rebel governance. It proposes a more holistic interpretation of the practice-criterion for custom-making in combination with the criterion of internal legitimacy to decide which NSAGs to include in customary IHL’s making. Internal legitimacy is generated when communities consent and support rebel governance in a non-coerced manner, motivated by performance-based and symbolic catalysts for legitimacy. This article elaborates on what is understood by the notions of procedural fairness and non-coerced community consent and support; and how it answers the concerns about delegitimizing national governments, legalizing armed struggle, and the detrimental impact of NSAGs’ practice on the substantive protection offered by IHL.

A giant leap for humankind: bridging space law and international humanitarian law*

As more parties have started to recognize the military potential of outer space, the idea of an armed conflict in outer space has become more than a theoretical possibility. Several states have conducted tests with anti-satellite weapons, NATO has officially recognized space as a military domain, and several states have started to develop specific military space capabilities. Such developments have also highlighted the consideration for a relevant legal framework for the conduct of hostilities in outer space. As a starting point, the conduct of hostilities would be governed by international humanitarian law concerning the substantive actions of parties when engaged in armed conflict. However, the specific location of these hostilities also leads to the relevance of space law, consisting of the particular obligations states have agreed upon for all conduct in outer space. Relying upon these two bodies of law, this article explores how international law might govern many of these activities. In doing so, this article aims to challenge the traditionally advanced lex specialis argument. It does so by arguing that, unlike what is typically assumed, space law does not necessarily present a conflict with international humanitarian law. Progressing from this central thesis, it advances the notion that this relationship might be best considered through systematic integration. Ultimately, it is argued that only in this way can the specific nature of the space domain be offered the required legal protection.

Safeguarding the Vulnerable: A Comprehensive Approach to Protecting Detainees in Contemporary Non-International Armed Conflicts and Counterterrorism Operations

Abstract This article explores the critical issue of detainee protection in the complex landscape of contemporary non-international armed conflicts and counterterrorism operations. It examines the interplay between international humanitarian law and international human rights law, highlighting the challenges in their application and interpretation. The article delves into the contemporary challenges faced in protecting detainees, including the involvement of non-state armed groups, extraterritorial detention practices, administrative detention, and the impact of counterterrorism measures. It proposes a multifaceted approach to enhancing detainee protection, encompassing strategies for strengthening compliance with the legal framework, addressing the specific needs of vulnerable groups, and promoting best practices and capacity-building. The article argues that a comprehensive and contextualised approach, grounded in the principles of humanity and human dignity, is essential to effectively safeguard the rights and well-being of detainees in these challenging contexts.