Humanitarian Law Research Articles

Prohibition of Civilians Transfer Under International Humanitarian Law and Its Relation to Genocide

Forcible transfers or forced displacements due to an international or non-international war often happen and cause suffering to those who become displaced by loss of their homes and livelihoods and survival resources. As an example of the current situation, there are many civilians from Gaza, especially Palestinians, who have had to leave their homes and have to seek shelter. Alarmingly, some of them have fled to refugee camps that have been housing Palestinian refugees since the 1948 and 1967 conflicts with limited conditions. While, it is commonly known that evacuation should only be temporary. This fact invites us to discuss and answer the following questions: 1) How is the rule of international humanitarian law or the law of war regarding the transfer of population and civilians in time of war?; 2) How could the displacement of civil population and civilian in time of war amount to genocide or ethnic cleansing?; and 3) How is the law enforcement against the violations of international humanitarian law on the transfer of civilian population? It is expected that the answers of these questions could be a reference to comment any news of displacement due to armed conflict. To answer these questions, normative research is conducted by literature study for collecting secondary data from international treaties and other sources of international law such as customary international law, court rulings, expert opinions and information or news from the field, including the implementation of international law in Indonesian national legislation. Analysis of data for taking conclusion is carried out qualitatively, and the reporting is made in an explanatory descriptive manner. The results showed that the international humanitarian law system has contained sufficient rules containing certain prohibitions and obligations for parties to the conflict. There are several prohibitions against deportation and forcible transfer of population. There are several obligations to prevent the forcible transfer or forced displacement of population. There are several obligations to strive for the safety and fulfillment of basic needs of civilians in the event of evacuation and to ensure that the displaced civilians can immediately return to their places of origin. In circumstances, acts that cause forcible transfers or forced displaced civilians might be categorized as war crimes, crimes against humanity and/or genocide. Concerning the violations of the international humanitarian law relating the forcible transfer of civilian population due to war, the state is obliged to carry out the law enforcement against the persons involved who are under its jurisdiction. In addition, no State shall be allowed to absolve itself of any liability incurred by itself in respect of breaches referred to the rules discussed

Ethical Dilemmas Faced by Military Health Personnel During High-Intensity Conflict: The Crucial Issue of Triage.

Russia's invasion of Ukraine has triggered the biggest conflict in Europe since the Second World War. It has forced countries to prepare for engagement on a massive scale, namely, a high-intensity war between nation states. A potential massive influx of wounded personnel risks saturating logistical supply chains and requires changes to not only medical care but also a paradigm shift. In this context, the principle of distributive justice is key. The aim is to save as many lives as possible through triage, which consists in "doing the greatest good for the greatest number." This idea is fundamental, as an emergency that has passed is no longer an emergency. However, international texts and treaties not only underline that the sole criterion for triage is clinical severity, but they also fail to take into account the patient's status (civilian, friend, and foe). In a high-intensity warfare situation, these texts, and the medical-surgical triage criteria they provide are insufficient, as caregivers may be required to make decisions based on the status of the patient. The need to make such choices could cause psychological suffering among military caregivers, as individuals are recurrently faced with difficult ethical dilemmas. One way to prevent this happening is to provide predeployment training in wartime medical ethics. The latter would include both instruction in international humanitarian law and practical simulations of clinical situations where the person is faced with an ethical dilemma.

Application of international humanitarian law by the European Court of Human Rights

Application of international humanitarian law by the European Court of Human Rights

Proportionality in the context of international humanitarian law

The principle of consequentiality to limit the damage caused by military operations, requiring that the effects of proportionate means and methods of war be not disproportionate to the military advantage pursued. The main rule of international humanitarian law is the protection of civilians. Civilians and all non-combatants must under no circumstances be attacked and must be spared and protected. Despite this, the reality shows that civilians suffer the most from the consequences of armed violence. However, as an exception to the general rule, the use of force with impact on civilians is permitted if it is directed at a legitimate military target and is proportionate to the overall threat faced. All parties involved in armed conflict are responsible for ensuring that the civilian population is protected

The Evolution of Humanitarian Aid in Disasters: Ethical Implications and Future Challenges

Ethical dilemmas affect several essential elements of humanitarian aid, such as the adequate selection of crises to which to provide aid and a selection of beneficiaries based on needs and not political or geostrategic criteria. Other challenges encompass maintaining neutrality against aggressors, deciding whether to collaborate with governments that violate human rights, and managing the allocation and prioritization of limited resources. Additionally, issues arise concerning the safety and protection of aid recipients, the need for cultural and political sensitivity, and recognition of the importance of local knowledge, skills, and capacity. The appropriateness, sustainability, and long-term impact of actions; security risks for aid personnel; and the need for transparency and accountability are also crucial. Furthermore, humanitarian workers face the duty to report and engage in civil activism in response to human rights violations and the erosion of respect for international humanitarian law. Lastly, the rights of affected groups and local communities in the decision-making and implementation of humanitarian aid are vital. The traditional foundations and approaches of humanitarian aid appear insufficient in today’s landscape of disasters and crises, which are increasingly complex and divergent, marked by a diminished capacity and shifting roles of various actors in alleviating suffering. This article reviews the historical evolution of the conceptualization of humanitarian aid and addresses some of its ethical challenges and dilemmas.

“When you have to shoot, shoot!” Rethinking the right to life of combatants during armed conflicts

Abstract Does targeting combatants really provide a military advantage during an armed conflict? The limitations on the use of force against civilians and means and methods of warfare are well developed under contemporary international humanitarian law (IHL), but the issue of targetability of adversary combatants remains underdeveloped. This paper builds on contemporary developments in international human rights law and moral just war theory to offer a revised lex ferenda look at the basic principles of IHL through the internalization of the value of the lives of combatants. It is argued that such a reading of IHL would allow for a rejection of the automatic necessity of targeting combatants, and hence give due consideration to the value of life of combatants (both adversary combatants and own combatants) in the evaluation of the use of force during armed conflicts, including through reduced military advantage, force protection, and adjusted proportionality analysis.

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.

Value-Based Attitude Towards International Humanitarian Law as Part of Personality Development of Military Students

A value system is a complex of value orientations and meanings that have their roots in the outside world. For military students, international humanitarian law is an important part of personal value system. These norms shape the environment for quasi-professional and academic activities of future military lawyers and officers. International humanitarian legal norms regulate certain social relations, thus entering the sphere of subjective activity and acquiring positive significance. As a result, they become part of an officer’s personality. International legal acts are a quintessence of humanistic principles, goals, and ideas. In this respect, they are an objective source of universal human values and meanings. Hence, they characterize an officer as an intellectual. If introduced into military education curriculum, international humanitarian law could facilitate the development of personal values in future officers and military lawyers. To verify this hypothesis, the authors applied standard research methods to legal documents, as well as conducted a psychological and pedagogical experiment. They identified, systematized, and classified the values and meanings concentrated in the international legal acts of humanitarian law. The military students that studied the international humanitarian law respected traditions and valued security; they were more independent and achievement-oriented, as well as demonstrated a much higher level of communicative and organizational skills than the control group. Therefore, international humanitarian law proved to have a great potential for developing personality values in future officers as part of military education.

International humanitarian laws: Applicable to all or a privilege for some?

There is an intrinsic connection between genocide and colonialism where both concepts are in close proximity and are based on the logic of elimination. The fact that an active genocide of the Palestinian people continues in 2024 is extremely disturbing. A plethora of human rights laws and principles complement and reinforce the protections afforded under international humanitarian law. These laws were developed in order to prevent historical atrocities from repeating themselves. As history is re-written, it is submitted that these laws, while good on paper, are not being put into practice in the case of Palestine. This article reflects on the application of specific international humanitarian laws, namely protecting healthcare, preserving nutrition and safeguarding children during times of conflict, and analyses how these protections are being flouted in the case of Gaza.

International humanitarian law: Dunant would be devastated again

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ELECTRONIC RECRUITMENT OF CHILDREN IN ARMED CONFLICT: A LEGAL ANALYSIS UNDER INTERNATIONAL HUMANITARIAN LAW

Background: Beyond the apparent damage caused by violence, armed conflicts can have significant indirect health effects. Destabilising systems of healthcare and fostering unfavourable economic and surroundings, also produce long-lasting political instability, which hinders efforts to lower mother and infant deaths. Objective: This study aims to investigate the legal ramifications of electronic child recruiting for the armed forces, emphasising how these relate to international humanitarian law. Design: This research employs a qualitative doctrinal analysis of the legislation about electronic child recruitment, which is a great idea. The relevant treaties, legal doctrine, and precedent that comprise this subject's main information source will be examined. Findings: Research indicates that implementing the law should precede development requirements, implying that the laws necessary for achieving their purpose are currently in place. Originality: This work adds to the body of knowledge by offering a thorough analysis of the legal issues related to the electronic recruiting of minors.

International legal protection of the environment from criminal acts during armed conflicts

The article is dedicated to revealing the state of legal provision for the international legal protection of the environment from criminal acts during armed conflicts. Attention is drawn to the fact that international legal obligations of states regarding environmental protection during armed conflict are only contained in a few environmental treaties, but simultaneously in special agreements that are applicable in the presence of armed conflict and are sources of international humanitarian law. It is noted that from the general principles of the impact of war on international treaties, it follows that the termination of an international treaty at the onset of war is an exception to the rules, not a mandatory act. According to Articles 61 and 62 of the Vienna Convention on the Law of Treaties of 1969 regarding impossibility of performance and fundamental change of circumstances, it is established that war is not a basis for the automatic termination of treaty obligations, including environmental ones, by the parties to the conflict who have become parties in peacetime, which is also stated in the Draft Articles on the Impact of Armed Conflicts on Treaties of 2011 prepared by the UN International Law Commission, which includes a reference to a provisional list of treaties whose subject matter implies that they continue to apply during armed conflict, among them – treaties on international environmental protection.
 The standpoint regarding the necessity of developing a codified international instrument, which would consolidate the currently disparate provisions for regulating environmental protection issues in conditions of armed conflict, compensation for damage caused, etc., as a source of international environmental law, is supported. It would also address existing problems in legal application, such as the narrow and imprecise definition of the threshold level criteria required to prove environmental damage during armed conflict.

Provisional justice in protracted conflicts: The place of temporality in bridging the international humanitarian law and transitional justice divide

Provisional justice in protracted conflicts: The place of temporality in bridging the international humanitarian law and transitional justice divide

Of date palms and dialogue: Enhancing the protection of the natural environment under international humanitarian law and Islamic law

Of date palms and dialogue: Enhancing the protection of the natural environment under international humanitarian law and Islamic law

Military education in extended reality (XR): learning troublesome knowledge through immersive experiential application

Extended reality (XR) applications for education are usually associated with motivation, engagement, knowledge and experiences that are difficult to achieve in the real world. One example of such knowledge in military education is the threat-based approach to protection of civilians in armed conflicts. The Norwegian Defence University College (NDUC) educates officers on the threat-based approach. This approach challenges conventional military practice, introducing new ways of thinking about what military forces can and cannot do to protect civilians from violence. Today, militaries are expected to protect civilians from perpetrators that target them as part of their warfare, expanding their responsibilities under International Humanitarian Law. This expansion of tasks represents “troublesome knowledge” for many military officers and demands a deeper understanding of the rationales and strategies driving perpetrators’ targeting of civilians. To overcome this pedagogical challenge, we developed an XR-supported educational program combining immersive experiences and pedagogical approaches, including combined 360°-videos and embodiment, dialogue with virtual humans and collaborative VR-landscapes to encourage immersive peer-to-peer learning. The results are encouraging, suggesting high levels of acceptance by learners of the threat-based concept, an effect on stimulating critical discussion and a positive reaction to XR-supported learning.

Lawfare and International Humanitarian Law: A shift in the war experience for Western democracies

Apart from offering a review on lawfare, this article considers situations where one less-law-abiding actor – namely, a non-state actor – uses the International Humanitarian Law (IHL)’s compliance of its opponent to obtain leverage on the battlefield. Using the United States (US) as an example, it appears that IHL’s compliance is yet not to be subjugated by the pursuit of military interests. Broadening the analysis to NATO nations due to the similarity of their IHL’s conceptualization and political proximity, it defends that IHL shall remain respected by these states as disregarding it would be a treason of their political regime and the moral grounding binding governments with their populations.

Ukraine and Violations of International Humanitarian Law – A Critical Analysis of the Amnesty International Report

Abstract On 4 August 2022, Amnesty International published its report ‘Ukraine: Ukrainian Fighting Tactics Endanger Civilians’, in which it accused Ukraine of violating international humanitarian law ‘by establishing bases and operating weapons systems in populated residential areas, including in schools and hospitals’ and in this way putting civilians at risk. According to the report, ‘[s]uch tactics violate international humanitarian law and endanger civilians, as they turn civilian objects into military targets. The ensuing Russian strikes in populated areas have killed civilians and destroyed civilian infrastructure’. The report sparked some controversies. The question that the author attempts to answer in this article is whether there are any factual or legal arguments supporting the conclusions of the report.

Incidentality of the civilian harm in international humanitarian law and its Contra Legem antonyms in recent discourses on the laws of war

Abstract This article develops an interpretative effort to clarify the meaning of the notion of incidentality of the civilian harm in international humanitarian law (IHL), with particular concern to the role of this concept as normative cornerstone for a systematic reading, and coherent implementation, of the law of targeting. The article begins with a critical analysis of recent discourses on the laws of war, focusing on the emergence and growth of contra legem uses of the concept of ‘collateral damage’. These discourses revolve around proportionality in attacks, commonly re-translating this rule by removing incidentality as legal qualifier of the civilian harm susceptible of proportionality assessments. The article shows that proportionality misconceptions neglecting incidentality have become so common and accepted as to be often confused with structural features of IHL. On the contrary, the analysis highlights the collisions between these conceptions, on the one hand, and IHL targeting prescriptions, their interplay and protective functions, on the other, unveiling how the former result in promoting unlimited expansions of the entity of civilian harm that can be object of proportionality assessments, even when this civilian harm constitutes the largely preponderant, main anticipated result of a given attack. Within a background of unequal relativization of international humanitarian law (IHL) parameters, minimalist understandings of incidentality have also been the basis of questionable orientations about attacks on residential tower buildings, reproducing exponential ‘militarizations’ of civilian objects (and at times of the protected persons therein) for proximity with lawful targets. Cumulatively, these discourses and scholarly orientations contributing to depriving proportionality of its incidentality requirement continue to produce dramatic consequences for civilian protection worldwide and provide aggressive military powers with arguments functional to circumvent the prohibitions of disproportionate and indiscriminate attacks. Against these tendencies, it is proposed that the notion of incidentality of the civilian harm, in homage to letter, object, and protective purpose of IHL, and understood with the interpretative help of mens rea categories, should be strictly construed and urgently re-centralized by laws of war scholars as a fundamental conditio sine qua non for proportionality assessments and as main dividing line between the operative spheres of distinction and proportionality.

Queering the humanitarian principles of neutrality and impartiality: Implications for humanitarian action, IHL effectiveness and gender justice

Abstract Institutions are often reluctant to openly engage on controversies around the patriarchal underpinnings of the humanitarian sector, or the hard questions around implementing rights-based approaches in spaces where the dominant social norms run counter to an enabling environment for principled humanitarian and development assistance. A reluctance to engage on these issues can lead to unintended suppression of gender justice efforts under the urgency and scale of needs-based humanitarian response. Pre-crisis unequal power relations can be visible or invisible, difficult to measure and even more difficult to address through humanitarian action. Engaging on root causes and drivers of human suffering is often viewed as “political” in contexts of closing civic space and restricted humanitarian access. This article will explore tensions and synergies between the humanitarian principles and the gender justice agenda with a view to helping humanitarian actors contribute to long-term goals of transforming social norms. The article applies a critical feminist lens to the humanitarian principles of neutrality and impartiality, with a focus on the wider development agenda, the nature of the State in a State-centric global order, and the continuum of violence. Drawing on critical feminist theory and decolonization discourses, and building on gender analyses of international humanitarian law, this article looks to queer the humanitarian principles of neutrality and impartiality within the context of the shifting aid system in which they are applied. The objective is help address some of the gaps in literature, identify ways in which aid actors can reduce unintended harm to the gender justice agenda, and help contribute to the more transformative agendas of gender justice.

ПРАВОВИЙ СТАТУС ВІЙСЬКОВОПОЛОНЕНИХ В УКРАЇНІ

The article is devoted to the understanding of the legal status of prisoners of war. In order to establish the legal status of prisoners of war, the author analyzes and argues that captivity is a phenomenon which is accompanied by restrictions on the freedom of persons who fall (claim) to have the legal status of prisoners of war and were involved in an armed conflict, with the aim of preventing their participation in hostilities in the future. The author clarifies the role of participants in an international armed conflict, which in international humanitarian law are divided into military and civilian combatants and non-combatants. Only combatants, i.e., those persons involved in an interstate conflict, can become prisoners of war. The main difference between a non-combatant and a combatant is that the above-mentioned persons have personal weapons, but can use them only for self-defense. If they participate in hostilities, they acquire the status of combatants. The legal status of a person is a system of rights, freedoms, obligations, and responsibilities enshrined in legal acts and guaranteed by the state, according to which an individual, as a subject of law (i.e., as one with legal personality), coordinates his or her behavior in society. The legal status of: a) citizens of Ukraine; b) foreigners; c) stateless persons; d) persons granted asylum. According to the nature of legal regulation, the legal status is a) general; b) sectoral (individual), c) special. The legal status of prisoners of war applies only to those persons who have not violated the rules and customs of war and are not subject to prosecution under the criminal law of Ukraine. In general, the legal status is formed by combining subjective rights, legitimate interests and legal obligations. The constituent elements of the legal status of prisoners of war are rights, obligations and prohibitions. Prisoners of war are special subjects of law, as they are under international legal protection and endowed with a special legal status regulated by both national legislation and regulations of international humanitarian law. Key words: war, prisoners of war, captivity, legal status of a person, international conflict, rights, obligations, prohibitions, foreigners, combatants, non-combatants.