Humanitarian Obligations Research Articles

Impunity Rises from the Ashes?: The Extent of the Rome Statute's Jurisdiction in the Event of State Succession

The International Criminal Court’s (ICC) deterrence effect in situations of armed conflict extends only to the reach of its jurisdiction.1 State succession, which often involves massive human rights violations,2 casts doubt on the jurisdiction of the Court and the protection it offers because of questions regarding the continuity of treaty obligations, including those under the Rome Statute, formerly binding upon the predecessor State. This Note argues that customary international law supports the continued application of the Rome Statute in instances of State succession because the treaty articulates the necessary human rights and humanitarian law principles to fall under the customary international law rule for the continuation of human rights and humanitarian law treaties. Two basic types of international law exist: treaties and customary international law.3 Treaties arise out of express negotiations between State parties, resulting in certain rights and obligations to which the parties agree.4 Human rights and humanitarian treaties obligate State parties to protect individuals living under those treaties.5 Customary international law, on the other hand, arises not from express negotiations between sovereign States,6 but rather from the practice of nations followed out of a sense of legal obligation.7 However, customary international law—as with the law of treaties—imposes human rights and humanitarian obligations

China's Socialization in the International Human Rights Regime: why did China reject the Rome Statute of the International Criminal Court?

This article uses a hard law—the Rome Statute of the International Criminal Court—to examine the depth of China's socialization in the international human rights regime and the relative weights of sovereignty and human rights norms in determining China's policy choices. It shows that the reasons for China's rejection of the Rome Statute are twofold. On the one hand, Chinese leaders have not fully internalized human rights norms, and they prioritize state sovereignty over human rights when making decisions. On the other hand, the legalized Rome Statute sets up an independent court with mandatory jurisdiction and grants the Prosecutor the ex officio right to investigate a crime. Such treaty provisions may have negative impacts on China's core sovereignty of territorial integration and regime security, thus imposing high sovereignty costs on China. Therefore, China resolutely voted against the Rome Statute, even if such an action made it a small minority outside the international mainstream. These findings indicate that China is still in a weak socialization stage and is not able to take on binding human rights and humanitarian obligations with high sovereignty costs.

Memorandum of Understanding Between the Government of the Kingdom of Cambodia and the Government of Australia, Relating to the Settlement of Refugees in Cambodia & UNHCR Response to Australia-Cambodia Agreement on Refugee Relocation

On September 26, 2014, the Government of the Kingdom of Cambodia and the Government of Australia concluded a Memorandum of Understanding (MOU) Relating to the Settlement of Refugees in Cambodia. The agreement provides for refugees on the Pacific Island of Nauru to be voluntarily relocated to Cambodia. The Office of the United Nations High Commissioner for Refugees (UNHCR) and several international human rights organizations have lambasted the agreement, maintaining that Australia would be contravening its humanitarian and refugee obligations.

The Military Response to Criminal Violent Extremist Groups: Aligning Use of Force Presumptions with Threat Reality

In 1949, the inclusion of Common Article 3 to the four Geneva Conventions represented a significant advance in the regulation of armed hostilities. That article extended international humanitarian law to the realm of non-international armed conflicts. At that time, these conflicts were considered synonymous with intrastate conflicts such as civil wars. While the scope of applicability of Common Article 3 to internal threats and disturbances has witnessed what is arguably a significant evolution since that time, it is unclear whether and when this baseline humanitarian obligation – and the broader customary laws and customs of war applicable to non-international armed conflicts once this article is triggered – are applicable when a state confronts organised criminal gangs who possess a capability to engage in violence and wreak havoc that rivals, if not exceeds, that of traditional insurgent threats.Much of this uncertainty derives from the fact that the response to criminal disturbances appears to have been specifically excluded from situations triggering Common Article 3 when it was adopted in 1949. However, it is unlikely that the drafters of the Conventions at that time anticipated the nature of organised criminal gangs and the destabilising effect these groups have today in many areas of the world. The nature of this threat has resulted in the increasingly common utilisation of regular military forces to restore government control in areas in which they operate. This results in the use of force and the exercise of incapacitation powers that far exceed normal law enforcement response authority. It is therefore the thesis of this article that when the nature of these threats exceeds the normal law enforcement response authority and compels the state to resort to regular military force to restore order, international humanitarian law, or the law of armed conflict, provides the only viable legal regulatory framework for such operations. However, it is also the view of the authors that the risk of excess of authority inherent in this legal framework necessitates a carefully tailored package of rules of engagement to mitigate the risk that the effort to restore order will result in the unjustified deprivation of life, liberty and property.

Australia’s Continued Struggle with Asylum Seekers Who Arrive by Boat–How Consistent is the Current Policy Approach with Australia’s International Human Rights and Humanitarian Obligations?

Australia’s Continued Struggle with Asylum Seekers Who Arrive by Boat–How Consistent is the Current Policy Approach with Australia’s International Human Rights and Humanitarian Obligations? Sally Watson Abstract Australia’s latest policy approach to asylum seekers who arrive by boat, Operation Sovereign Borders, shifts the human rights focusfrom Australia’s own asylum seeker assessment and resettlement processes towards the human rights safeguards Australia has put in place under its offshore regime. An examination of these safeguards suggests a deterioration in Australia’s commitment to meet its human rights obligations to this group of people. Full Text: PDF DOI: 10.15640/jswhr.v2n2a2

An end to impunity: the International Criminal Court's indictment of African dictators and leaders

Africa has for long been seen as a hub for the cultivation and preservation of dictators hoping to stay in power forever. The adoption of the Rome Statute seems to have brought an immunity paradigm shift by bringing hope to the victims of these tyrannical rules. Although the ICC is viewed by many African leaders as a tool used by the West to victimise African leaders and humiliate them on the international platform, this paper attempts to critically justify the ICC’s mission through evaluating possible reasons why the ICC should be supported and encouraged. Advantages such as the possibility of redressing the rampant impunity pandemic is the major justification why it may be using Africa as a test to bring an end to impunity at the same time rehabilitating those still in power to comply with the international humanitarian and human rights law obligations.

Deterrence policies and asylum seekers: the case of Australia

The basic tenets of the international refugee protection regime, set out in the UN's 1951 Convention and the 1967 Protocol, grant individuals the right to seek asylum, but do not provide for laws obliging signatory states to grant asylum. This inherent paradox allows signatory states ongoing manoeuvre to prevent would-be asylum seekers from accessing protection in their territories. To this end, countries of the global north have designed and implemented a range of measures aimed at deterring onshore asylum seekers - privileging border control over refugee protection. This paper examines the effectiveness of deterrence measures taken by Australia. It argues that deterrence measures and attendant political rhetoric are not only contrary to international humanitarian obligations, but obscure empirically grounded understandings of forced migration as a complex social phenomenon, and as such are problematic in terms of meeting their publicly stated objectives of stopping on-shore asylum seeking in the long term.

The Responsibility of armed opposition groups for Violations of International Humanitarian Law: Challenging the State-Centric System of International Law

Most of the present rules of international law regulate the behavior of States. Within States, however, there are other entities such as corporations, non–governmental organizations, individuals, international governmental organizations and armed opposition groups that are regulated by different national and international regimes. In this regard, non–State armed opposition groups present particular challenges to international law due to their dominant presence and participation in armed conflicts. Armed opposition groups are one of the most important actors in international humanitarian law today. Yet, taking into consideration that they a priori have certain international humanitarian obligations to fulfill, it remains unclear what the implications are when they, as a group, commit violations. Among these uncertainties, is that there is no formally recognized mechanism to attribute such breaches to the relevant non – state armed opposition group as such. In fact, unlike States, they have no organs. Similarly, there is also no consensus on circumstance that could preclude the wrongfulness of these breaches for armed opposition groups. By challenging the State–centric system of public international law, this article analyses the possible application of certain rules contained in the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts (2001) to violations of international humanitarian law by armed opposition groups.

The government is shirking its humanitarian obligations

The government is shirking its humanitarian obligations

The Military Response to Criminal Violent Extremist Groups: Aligning Use of Force Presumptions with Threat Reality

In 1949, the inclusion of common article 3 to the 4 Geneva conventions represented a significant advancement in the regulation of armed hostilities. That article extended international humanitarian law to the realm of non-international armed conflicts. At that time, these conflicts were considered synonymous with intrastate conflicts such as civil wars. While the scope of applicability of common article 3 to internal threats and disturbances has witnessed what is arguably a significant evolution since that time, it is unclear whether and when this baseline humanitarian obligation, and the broader customary laws and customs of war applicable to non-international armed conflicts once this article is triggered, are applicable when a state confronts organized criminal gangs possessing a capability to engage in violence and wreak havoc that rivals if not exceeds that of traditional insurgent threats. Much of this uncertainty derives from the fact that the response to criminal disturbances appears to have been specifically excluded from situations triggering common article 3 when it was adopted in 1949. However, it is unlikely that the drafters of the conventions at that time anticipated the nature of organized criminal gangs and the destabilizing effect these groups have today in many areas of the world. The nature of this threat has resulted in the increasingly common utilization of regular military forces to restore government control in areas where they operate. This results in uses of force and exercise of incapacitation powers that far exceeds normal law enforcement response authority. It is therefore the thesis of this article that when the nature of these threats exceeds the normal law enforcement response authority and compels the state to resort to regular military force to restore order, international humanitarian law, or the law of armed conflict, provides the only viable legal regulatory framework for such operations. However it is also the view of the authors, that the risk of over breath of authority inherent in this legal framework necessitates a carefully tailored package of rules of engagement to mitigate the risk that the effort to restore order will result in unjustified deprivations of life liberty and property.

Confidentiality and Disclosure in Non-Intervention Adolescent Risk Research

Non-intervention research on adolescent risk often uncovers evidence of threats to the welfare of participants or others that may be unknown to adults in a position to protect youth or provide appropriate services. Whether to keep such information confidential or disclose it to guardians or professionals is a daunting ethical challenge that requires investigators to balance tensions between scientific responsibilities to produce well-controlled studies and humanitarian obligations to protect the welfare of vulnerable youth. This article discusses the ethical dimensions of such decisions and provides a decision-making strategy for developing ethically appropriate confidentiality and disclosure policies.

Responsibility in the Time of Cholera: Liability of International Organisations for Wrongful Conduct

The reference point for the present paper is the outbreak of cholera in Haiti in 2010, which has been argued to have resulted from the deployment of Nepali peacekeepers to the United Nations Stabilization Mission in Haiti (MINUSTAH). The outbreak killed close to 8000 people and infected 6% of the Haitian population. In 2011, the Institute for Justice and Democracy in Haiti (IJDH) filed a law suit against the United Nations (UN), on behalf of over 5000 plaintiffs, claiming compensation for those deceased and injured in the cholera epidemic. It also sought a public apology and acknowledgment of responsibility for causing the outbreak of the epidemic on part of the UN. While there has been significant criticism levied at the UN, the organization has absolved itself of any responsibility by claiming immunity. Not surprisingly, MINUSTAH is not the only UN mission to have come under criticism. In 2012, an internal report of the UN leaked to the press severely criticized the dereliction of duty on part of senior UN officials in Sri Lanka during the civil war in 2009, which led to the death of many civilians. Other UN peacekeeping missions, notably the UN Stabilization Mission in DR Congo (MONUSCO) have also been severely criticized for rampant sexual abuse and exploitation cases perpetrated by its peacekeeping troops. Nevertheless, the Haiti cholera case remains a significant precedent for the potential implications it holds for future activities of the UN in the field of peacekeeping. This paper proposes to study the liability of the United Nations (UN) for wrongful acts committed during a UN authorized mission. The present paper does not seek to establish the nature of human rights and humanitarian law obligations that the UN is bound by. Rather, it begins with the assumption that given the legal personality vested in the UN such an obligation is implicit, derived from customary international law as well as principles of human rights and humanitarian law. Beginning with this assumption, the paper seeks to answer the following questions1) Whether the UN can claim immunity from prosecution and compensation for acts which are (i) manifestly wrong and/or (ii) reckless and fail to meet due diligence standards set by the organization and (iii) do not further the objective of a UN mission. 2) If the answer to the aforesaid question is yes, what are the pre-conditions that have to be fulfilled before such attribution of responsibility can take place?The paper proposes to examine the aforesaid questions by studying the interplay between institutional immunity granted to the UN as well as taking into consideration the 2011 ILC Draft Articles on the Responsibility of International Organizations. Another aspect, which will be covered is the issue of third party claims procedure and Status of Forces Agreement, traditionally signed between the UN and the host country before a peacekeeping mission is deployed.

The "Other" Greek Crisis: Asylum and Eu Solidarity

This article assesses the European Union’s efforts to implement refugee protection and how solidarity and responsibility-sharing apply between Member States. The analysis focuses on the case of Greece, which faces extreme migratory pressures and is still in the process of building an effective asylum system. The research locates the types of responsibilities owed to refugees under European Union law for selected areas such as humanitarian support upon arrival, assessment of protection needs, and provision of material reception conditions to those who request protection. It also examines the effect of the European Union’s responsibility allocation regime in placing those responsibilities disproportionately on Greece. As a response to this crisis, European Union’s institutions and agencies as well as individual Member States have undertaken a series of measures to support Greece. This research will outline European Union’s solidarity measures undertaken in Greece and their basis in European Union law. It will assess the impact of these mechanisms on Greece’s capacity to fulfil its humanitarian obligations and highlight gaps and challenges that remain. Keywords: European Union law, solidarity, responsibility-sharing, Greece

Protection of Refugees in Non Signatory States

The humanitarian approach of offering sanctuary to frightened strangers and the victims of persecution and violence has become not only an existing reality but also has acquired the status of international tradition. In the aftermath of World War II, the United Nations General Assembly created the Office of the United Nations High Commissioner for Refugees (UNHCR), which is mandated to protect and find durable solutions for refugees. Its activities are based on a framework of international law and standards. The 1951 Convention Relating to the Status of Refugees (herein after referred to as “1951 convention”) is the foundation of international refugee law. It defines the term “refugee” and sets minimum standards for the treatment of persons who are found to qualify for refugee status.While Ratification of a Treaty clearly conveys in rem, the Government's express intention, that the State is willing to be bound by the Convention concerned and it’s undertaking to fulfill the Convention's provisions; non ratification conveys, if not otherwise, the unwillingness to be obliged to. As of 1st April 2011, there are 144 state parties to the convention. The increasingly difficulty in reconciling the humanitarian impulses and obligations with their domestic needs and political realities often discourages the States not to sign the 1951 convention as it is rights based. Thus Non Signatory State means a State, irrespective of its respect for refugee law, has neither ratified the convention nor the 1967 Protocol.

Comparison of Post-Disaster Housing Procurement Methods in Rural Areas of Turkey

Earthquakes strike without warning, even though they are known to recur. It is nonetheless difficult to mobilize resources to plan for them in advance, despite the high social and economic costs that can be anticipated, and despite the humanitarian obligation to provide quality and safe housing. This research examines two post-earthquake housing reconstruction projects in rural areas of Turkey, where different procurement strategies were used. A top-down strategy was adopted in Dinar after the October 1995 earthquake; and a bottom-up strategy, was adopted in the Orta district in Cankiri after the June 2000 earthquake in the region. Based on information obtained from government agencies, building contractors and the projects beneficiaries, a comparison has been made between the two procurement methods. While no generalized conclusions can be drawn – as the projects were conducted in the particular circumstances that prevail in rural areas of Turkey – it is possible to highlight key factors that can properly influence future housing procurement processes.

Analisis Kedudukan Hukum dalam Alquran (suatu Analisis Keadilan dan Kemanusian)

The Qur'an not only regulates human vertical relationship with God, but also set the horizontal human relationships with each other and with the natural surroundings. The number of verses in the Quran the law only slightly compared with the governing creed. Verses such laws are generally global, in tune with the dynamics of a society that is always dynamic, growing and changing. The concept of the law of the Koran integrating between justice and humanity, which is reflected in the implementation of the punishment like any concepts valuable humanitarian obligations. The concept of justice and humanity in the law is essentially a objectives of Islamic law.

Pacific ‘Solutions’ and Imaginaries: Reshaping Pacific relations or re-colonising the ‘sea of islands’?

Asia Pacific Viewpoint. For much of the time in New Zealand and Australia, our journal’s name has little resonance with the bulk of the population in these countries. There are moments though, when events at home and abroad come together to pull the respective gaze of New Zealanders and Australians away from more parochial fascinations, such as the RugbyWorld Cup taking place in New Zealand as we write, and from the Western media geographies that direct attention to North America and Europe, with occasional glimpses of military activities in the Middle East. These moments can be revealing, in large part because of the glimpse they give us of the national ‘viewpoint’ towards the Asia Pacific and how countries in the region are scripted. Three recent events and trends give us cause to pause and reflect on where the current relationship between New Zealand, Australia and the Asia Pacific region is at, not just in terms of the diplomatic or economic form of the relationship, but also in terms of the imaginaries associated with the region. The raison d’etre of Asia Pacific Viewpoint since its establishment in the 1960s has been to improve ‘understanding of the changes that are transforming the Asian and Pacific scene’ (Buchannan, 1960) and encourage alternative viewpoints and perspectives. Our brief analysis of three contemporary examples suggests that we have a long way to go. Asia Pacific viewpoints are central to recent Australian debates regarding refugee policies. In 2001, conservative Prime Minister John Howard controversially refused to let the Norwegian tanker, the MV Tampa, dock at an Australian port after it had saved 433 mainly Afghani asylum seekers from a sinking vessel between Indonesia and Australia. With an election looming, and conservative voices manipulating widespread anti-refugee feelings that bordered on hysteria, Howard deployed military forces to prevent the vessel from landing before hastily devising the ‘Pacific Solution’. Rather than ‘process’ (a disgracefully dehumanising term) the asylum seekers on Australian soil, he looked first to Indonesia, who refused, then to more economically dependent states in Melanesia. The former Australian colonial territory of Papua New Guinea, which allowed Manus Island to be used as a ‘human processing zone’, and the tiny island state of Nauru (whose once bountiful supplies of phosphate had long since been diminished by Australian mining companies and used to enhance the New Zealand and Australian agricultural economies) became sites to ‘outsource’ and ‘offshore’ humanitarian responsibilities (see Rajaram, 2003). Midway through the stand-off, the Twin Towers were brought down, contributing to public anxieties and approval of Howard’s handling of the crisis, even as Australia’s international reputation floundered. For Howard and his supporters, the episode rejuvenated long-established anxieties many Australians hold towards Asian refugees and migrants, rekindling the ‘Yellow Peril’ fears that underlay the country’s notorious White Australia policy. In contrast, the Pacific was scripted as neo-colonial spaces where Australia could forgo its humanitarian obligations and Asia Pacific Viewpoint, Vol. 52, No. 3, December 2011 ISSN 1360-7456, pp233–235

Global Oral Health Inequalities

Despite impressive worldwide improvements in oral health, inequalities in oral health status among and within countries remain a daunting public health challenge. Oral health inequalities arise from a complex web of health determinants, including social, behavioral, economic, genetic, environmental, and health system factors. Eliminating these inequalities cannot be accomplished in isolation of oral health from overall health, or without recognizing that oral health is influenced at multiple individual, family, community, and health systems levels. For several reasons, this is an opportune time for global efforts targeted at reducing oral health inequalities. Global health is increasingly viewed not just as a humanitarian obligation, but also as a vehicle for health diplomacy and part of the broader mission to reduce poverty, build stronger economies, and strengthen global security. Despite the global economic recession, there are trends that portend well for support of global health efforts: increased globalization of research and development, growing investment from private philanthropy, an absolute growth of spending in research and innovation, and an enhanced interest in global health among young people. More systematic and far-reaching efforts will be required to address oral health inequalities through the engagement of oral health funders and sponsors of research, with partners from multiple public and private sectors. The oral health community must be "at the table" with other health disciplines and create opportunities for eliminating inequalities through collaborations that can harness both the intellectual and financial resources of multiple sectors and institutions.

Breaking New Ground: The Convention on Cluster Munitions and the Evolution of International Humanitarian Law

The 2008 Convention on Cluster Munitions comprehensively bans a weapon that causes civilian casualties both during and after attacks. The convention also sets legal precedent in three ways. First, the convention expands the scope of past treaties by, for example, covering munitions that function properly and those that do not. Secondly, it creates groundbreaking humanitarian obligations, most notably those related to victim assistance. Thirdly, it anticipates future concerns by recognizing the threats posed by non-state armed groups. This comparative analysis of the convention shows how it breaks new ground for future weapons treaties and illuminates the process by which international humanitarian law can be advanced.

Longing for Stillness: The Forced Movement of Asylum Seekers

Longing for Stillness: The Forced Movement of Asylum Seekers