Norms Of International Humanitarian Law Research Articles

ГУМАНІТАРНА ДОПОМОГА ТА ЦИВІЛЬНИЙ ЗАХИСТ ЯК НАПРЯМ ДІЯЛЬНОСТІ ЄВРОПЕЙСЬКОГО СОЮЗУ ДЛЯ СПРИЯННЯ МІЖНАРОДНОМУ МИРУ Й БЕЗПЕЦІ

Гуманітарна допомога й цивільний захист належать до напрямів зовнішньополітичної діяльності Європейського Союзу. Допомога спрямовується через 200+ міжнародних і місцевих партнерських організацій та агентств і підтримується тисячами європейських волонтерів. Це робить ЄС одним із найпотужніших донорів гуманітарної допомоги у світі. На міжнародній арені Союз підтримує й пропагує свої цінності та інтереси й сприяє миру, безпеці, сталому розвитку і взаємній повазі між народами. Збереження життя, запобігання та полегшення людських страждань, збереження честі й гідності населення, яке постраждало від стихійних лих та техногенних криз, – місія Генерального директорату Європейської комісії з питань цивільного захисту й операцій із гуманітарної допомоги. Уся діяльність ЄС та країн-членів у сфері надання гуманітарної допомоги здійснюється відповідно до норм міжнародного гуманітарного права і його базових принципів: гуманності, нейтральності, неупередженості та незалежності. Операції з надання допомоги ЄС керуються такими додатковими принципами: координації, узгодженості й взаємодоповнюваності між задіяними учасниками; якості, ефективності та підзвітності; різноманітності партнерських відносин. Низка нормативно-правових документів регулює гуманітарну діяльність ЄС щодо збереження життя людей під час надзвичайних ситуацій, подолання їхніх негайних негативних наслідків; надання необхідної допомоги постраждалим від довготривалих криз, особливо там, де уряди виявляються неспроможними допомогти; боротьби з наслідками переселення населення; забезпечення готовності до ризиків стихійних лих і використання відповідного швидкого раннього попередження й системи втручання тощо. Із 1992 р. ЄС надавав допомогу потерпілим після численних катастроф по всьому світу, зокрема жертвам війни в Югославії, геноциду в Руанді, громадянської війни в Судані; постраждалим від стихійних лих у Тихоокеанському регіоні, Західній Африці, на Балканах тощо. Сьогодні Україна також є реципієнтом гуманітарної допомоги ЄС .

Право дитини на безпеку під час збройного конфлікту.

Today the main content of security is the protection of people and society. The problem of social security in a sense, the security of the person, certain groups of the population, society as a whole becomes the main one. Children are a particularly vulnerable category of the population. They are the main subjects and objects of systemic discrimination, which is especially intensified in the context of armed conflicts. Armed conflicts have a negative impact on the family functioning in general, and especially on the provision of the basic needs of the child, his development and psychological state.According to the UN Children’s Fund (UNICEF), as of January 2019, more than 34 million children worldwide living in conditions of conflict or emergencies do not receive the necessary protection. Their largest number is in Yemen (6.6 million people), Syria (5.5 million people), the Democratic Republic of the Congo (4 million people). In the conflict zone in eastern Ukraine, about 500 thousand children need immediate protection and humanitarian assistance.The article further substantiates the need to fundamentally change the anthological paradigm in the study of security concepts (social, human): to move from monism in explaining the relation between the material and the spiritual, as components of the universe, to pluralism. It allows to represent any phenomenon as an organic unification and a dialectical combination of material and ideal, when under certain conditions there is a priority development of one of them, and to substantiate the necessity of forming a new concept of comprehensive broad security, in which the environment of the subject, will allow him to make and implement decisions according to his goals, aimed at progressive development.The author of the article also identifies and analyzes the risks for children, possible violations of children’s rights during and after an armed conflict. Analysis of the provisions of the Geneva Conventions (1949) and the Additional Protocols thereto (1977), the Convention on the Rights of the Child (1989), the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000), other international acts on the establishment of the protection of the rights of the child in armed conflicts for the purpose of their coherence between themselves and with the norms of international humanitarian law in general is carried out. Measures aimed at improving the mechanism for ensuring the right to child safety and strengthening the protection of children from involvement in armed conflicts are proposed.

Living in a Legal Vacuum: The Case of Israel's Legal Position and Policy towards Gaza Residents

The legal status of the Gaza Strip following the 2005 Israeli ‘Disengagement’, as well as the applicability of the laws of belligerent occupation with regard to this territory, have sparked, and continue to generate, a lively academic debate, involving states, organisations and legal scholars. Nevertheless, this debate has seldom included an examination of the de facto policy exercised by Israel vis-à-vis Gaza residents themselves.This article seeks to fill the gap by providing a thorough examination of Israel's legal position towards the residents of Gaza, and a critical analysis of its policy and practice with regard to their movement as well as the movement of goods. This review, based on dozens of policy papers, regulations and procedures, as well as numerous judgments handed down by Israeli courts, reveals that Israel maintains a deliberately deficient and ambiguous legal position with regard to the status of Gaza residents. Under this position, the residents are merely ‘foreign residents’ who have no particular rights in relation to Israel. I argue that this position establishes a major legal vacuum in the protection afforded to Gaza residents and is therefore incompatible with both the reality of Israel's continuous control over Gaza as well as the objects and norms of international humanitarian law.

From Healthcare to Warfare and Reverse: How Should We Regulate Dual-Use Neurotechnology?

Recent advances in military-funded neurotechnology and novel opportunities for misusing neurodevices show that the problem of dual use is inherent to neuroscience. This paper discusses how the neuroscience community should respond to these dilemmas and delineates a neuroscience-specific biosecurity framework. This neurosecurity framework involves calibrated regulation, (neuro)ethical guidelines, and awareness-raising activities within the scientific community.

ДО ПИТАННЯ ПРО ЕКСТЕРИТОРІАЛЬНУ ДІЮ РОСІЙСЬКОГО ЗАКОНУ І МІЖНАРОДНЕ ПРАВО

The article covers the issue of specific breaches of international law provisions owed to Ukraine by Russia. The article also examines problems in the application of international law by Russia. In the course of the Russian aggression against Ukraine, the former is carrying out the military occupation of the Crimean peninsula and parts of Donetsk and Luhansk regions and prosecutes Ukrainian citizens (Nadiya Savchenko, Oleh Sentsov, Oleksandr Kolchenko, Hennadii Afanasyev, Yurii Soloshenko and others) in violation of international law. Both Russian executives and doctrine attempt to substantiate the cases against Ukrainian citizens, however, their arguments suffer both legal and factual problems. An illustrative in this regard is Savchenko’s case, which has become important Russian propaganda tool to help reinforce the accusations of the “atrocities committed by the Kyiv junta”. The analyses shows that Savchenko case could have been used to complete different tasks – starting from lifting the sanctions imposed against the Russian Federation and finishing with increasing the number of Russian volunteers in the war against Ukraine. Also, Russia has prosecuted Oleh Sentsov who has been charged with creating a terrorist group and committing two acts of terrorism. One of the most untenable legal arguments of the Russian Federation is a qualification of the aggression as a non-international armed conflict. In this regard, Russian authorities and doctrine insist on Russia’s not being bound or entitled to apply the rules of international armed conflicts laid down in the Geneva Convention relative to the Treatment of Prisoners of War (III) to Savchenko. At the same time, a considerable amount of data speaks for an aggressive war the Armed Forces of the Russian Federation launched against Ukraine in Donetsk and Luhansk regions. The Russian Federation has also grossly violated the norms of international humanitarian law and international human rights law.

REVISITING THE ISSUE ON THE EXTRATERRITORIAL EFFECT OF THE RUSSIAN LAW AND THE INTERNATIONAL LAW

The article covers the issue of specific breaches of international law provisions owed to Ukraine by Russia. The article also examines problems in the application of international law by Russia. In the course of the Russian aggression against Ukraine, the former is carrying out the military occupation of the Crimean peninsula and parts of Donetsk and Luhansk regions and prosecutes Ukrainian citizens (Nadiya Savchenko, Oleh Sentsov, Oleksandr Kolchenko, Hennadii Afanasyev, Yurii Soloshenko and others) in violation of international law. Both Russian executives and doctrine attempt to substantiate the cases against Ukrainian citizens, however, their arguments suffer both legal and factual problems. An illustrative in this regard is Savchenko’s case, which has become important Russian propaganda tool to help reinforce the accusations of the “atrocities committed by the Kyiv junta”. The analyses shows that Savchenko case could have been used to complete different tasks – starting from lifting the sanctions imposed against the Russian Federation and finishing with increasing the number of Russian volunteers in the war against Ukraine. Also, Russia has prosecuted Oleh Sentsov who has been charged with creating a terrorist group and committing two acts of terrorism. One of the most untenable legal arguments of the Russian Federation is a qualification of the aggression as a non-international armed conflict. In this regard, Russian authorities and doctrine insist on Russia’s not being bound or entitled to apply the rules of international armed conflicts laid down in the Geneva Convention relative to the Treatment of Prisoners of War (III) to Savchenko. At the same time, a considerable amount of data speaks for an aggressive war the Armed Forces of the Russian Federation launched against Ukraine in Donetsk and Luhansk regions. The Russian Federation has also grossly violated the norms of international humanitarian law and international human rights law.

Pre-Conflict Military Activities: Environmental Obligations and Responsibilities of States

Much study has focussed upon the legality of, as well as justifications for, military activities of States causing environmental damage in times of armed conflict, with particular reference to norms of international humanitarian law. However, in preparation for potential armed conflict, such military activities may also take place before the commencement of any such armed conflict. This paper seeks to explore the environmental protection obligations of States under international law in their conduct of military activities in anticipation of armed conflict. On the one hand, peacetime obligations entailing environmental protection, which may be derived not only from international environmental law but also other fields such as international human rights law and international investment law, would generally apply during the pre-conflict stage. On the other hand, it is also observed that there may be legal justifications for deviation from such obligations in particular circumstances in connection with the pre-conflict situation, for instance, by reliance upon exception clauses within the relevant treaties, suspension of primary obligations due to circumstances such as the needs of national security, as well as invocation of circumstances precluding wrongfulness under the law of State responsibility.

Protection of environment in armed conflicts

The paper analyzes the highly topical issue of environmental protection in armed conflicts which constitutes the general interest of the security of the entire international community. The International Court of Justice has on several occasions stressed the need of forming special rules in this area, and the collection of rules has been initiated by the International Law Commission. The specificity of this issue is that it is a combination of the norms of international humanitarian law, environmental law, and, in part, the issues of human rights. In addition to this, the modern international community has seen a great development of means of warfare which implies that the need to regulate the issue of environmental protection in armed conflict is of primary interest. The paper analyzes the legal regulations in this field, the practice of courts and arbitration, as well as the work of the International Law Commission. The survey features current national standards and newly introduced development policies. The conclusion is that the current state standards that are directly related to the protection of the environment are unsatisfactory and that it is necessary to do much more to improve environmental protection in armed conflicts. It is particularly harmful that a number of very influential countries have repeatedly insisted on restricting the scope of some of the essential provisions of the Conventions relating to the protection of the environment in armed conflict. The reason was that they wanted to ensure that nuclear weapons can be applied in exceptional circumstances. Such an attitude of the leading countries within the international community undermines the establishment of legal provisions on environmental protection in armed conflicts.

The Obligation to Exercise Discretion in Warfare: Why Autonomous Weapon Systems are Unlawful

Introduction The question of ‘killer robots’, or autonomous weapons systems (AWS), has garnered much attention in recent discourse. While officials often downplay the prospect of such systems making targeting and other crucial decisions, their own statements reveal the possibility that such capabilities would be developed in the near future. For instance, in late 2012, the US Department of Defense (DoD) imposed a de facto moratorium on the development of fully autonomous weapons systems, by emphasizing that weapons ‘shall be designed to allow commanders and operators to exercise appropriate levels of human judgment over the use of force’. From the mere fact that the DoD felt the need to constrain the development and use of AWS for the time being and in several ways, we can learn that the prospect of such weapons is realistic. Indeed, DoD Directive 3000.09 includes a bypass clause in which deviations from its requirements can be approved by high-ranking officials through special procedures. There is therefore a consensus, among commentators, that the motivation to develop and deploy AWS will eventually overcome these temporary constraints. This makes the discussion of AWS a timely one. When discussing the legality and legitimacy of such weapons, the claim that machines should not be making ‘decisions’ to use lethal force during armed conflict is an intuition shared by many. However, the current discussion as to just why this is so is rather unsatisfying. The ongoing discourse on AWS is comprised of nuanced approaches found between two extremes, arguing against each other roughly along consequentialist and deontological lines. On one side of the spectrum is the approach that if AWS could deliver good results, in terms of the interests protected by international humanitarian law (IHL), there is no reason to ban them. On the contrary, as the argument goes, if we take humanitarian considerations seriously, we should encourage the development and use of such weapons. Of course, proponents of this approach envision technological advancements that would actually make such results possible. Found on the other side of the spectrum are those that claim that even if AWS could, in terms of outcomes, adhere to the basic norms of IHL, their use should still be prohibited, whether on ethical or legal grounds. Usually, those holding this position are also sceptical that technology would ever be able to produce such benevolent systems.

The Right to Life in Light of the Integration between the Norms of International Humanitarian and Human Rights Law

This paper casts doubts on the existence of a contradiction between the norms of International Humanitarian Law and International Human Rights Law in the sphere of the protection of the right to life and concludes that the wording and systematic interpretation of international treaties, and the subsequent application allowing the inference of an integrated approach to the determination of the negative and positive obligations of states in respect of the right to life.

Legality of use of nuclear weapons in armed conflicts: Limits related to protection of environment

Legality of use of nuclear weapons is one of the most challenging contemporary issues of international law. This paper is dealing with only one of the aspects of that issue - the one that is part of international humanitarian law and which protects natural environment during armed conflicts. The conclusion is that although there are probably no norms of international humanitarian law which would prohibit every possible use of nuclear weapons in armed conflicts and which would secure the best protection of natural environment, there are still important norms which would considerably limit that use.

Legacy of the ad hoc International Criminal Tribunals in Implementing International Humanitarian Law

The aim of the Article is to show that both the ICTY and the ICTR played a very important role in the implementation of international humanitarian law and that they themselves should be regarded as a special mechanism of implementation. International criminal tribunals contributed to clarifying a significant number of international humanitarian law norms making this branch of international law more clear and coherent. The unity and coherence of the jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda provides stability, certainty and predictability of humanitarian law and those values are important for every legal system. DOI: 10.5901/mjss.2013.v4n9p525

The Eritrea-Ethiopia Claims Commission and Customary International Humanitarian Law

The aim of the article is to highlight several issues concerning the customary international law status of a number of international humanitarian law (IHL) treaty provisions that arose during the proceedings of the Eritrea-Ethiopia Claims Commission. Specifically, two key issues will be analyzed, namely the Commission's findings that the Geneva Conventions and some provisions of Additional Protocol I reflected customary international law and that international landmine conventions create only treaty obligations and do not yet reflect customary international law. Also, some more detailed conclusions relating to particular problems, such as the issue of the customary nature of the ICRC’s right to visit prisoners of war and its binding character for non-parties to the Geneva Conventions, will be discussed. The 2005 ICRC Study on Customary International Humanitarian Law and the International Criminal Tribunal for the former Yugoslavia’s jurisprudence will also be included as a point of reference to identify the customary character of certain provisions. The main conclusion is that the Commission has significantly contributed to the emerging consensus regarding the status of certain norms of international humanitarian law as customary norms. Furthermore, it has identified lacunae in the existing standards of humanitarian law and suggested the development of new norms to fill those gaps.

The Role of the Judicial Branch during the Long War: Drone Courts, Damage Suits, and FOIA Requests

What role, if any, do courts have to play in regulating the use of drones for targeted killing? Critics of the status quo would like greater transparency and accountability in regards to targeted killings. In addition to constitutional concerns, some worry that the executive branch is violating International Humanitarian Law (IHL). These skeptics contend that the lack of judicial oversight and the opacity of the government’s legal position risks the deaths of innocent foreign civilians, violates democratic accountability norms, erodes our compliance reputation with allies, and helps to recruit a new generation of anti-American insurgents. Even if the current approach is lawful, many worry about future administrations or other governments that may adopt drone strikes without sufficient IHL protections. The United States judiciary itself is often reluctant to aggressively intervene in national security matters and other legal issues arising out of armed conflicts. This chapter suggests that the judiciary may play an important role in the debate over the executive branch’s decisions regarding IHL, even if it declines to speak to the substance of such cases. First, advocates may use courts as a visible platform in which to make their arguments and spur conversations about alternative, non-judicially mandated transparency and accountability measures. As they did with the trio of detention cases, advocates can leverage underlying constitutional concerns about the treatment of citizens to stimulate interest in the larger IHL issues. Second, litigants may use courts to publicize and pursue Freedom of Information (FOIA) requests and thus enhance transparency. Even if courts decline to grant FOIA requests, the lawsuits can generate media attention about what remains undisclosed. Third, and most robustly, Congress may pass legislation that would facilitate either prospective review of kill lists through a so-called drone court or remove procedural barriers to retrospective damage suits for those unlawfully killed by a drone strike. Even the threat of such a judicial role may influence executive branch behavior. While this chapter remains skeptical that courts will ever reach the merits on IHL questions, the chapter concludes by suggesting that creative use of the judiciary has helped insert IHL into the public debate over targeted killings to encourage greater accountability. It discusses the executive branch’s behavior in the shadow of the judicial and legislative branches. First, even as the Obama administration failed to acknowledge drone strikes explicitly, a number of government officials gave speeches providing some sense of the justifications for and the limitations upon targeted killings. Second, members of the Obama administration began leaking documents providing extensive details on legal questions surrounding targeted killings, including some relating to the application and interpretation of IHL norms. Lastly, the Obama administration efforts to institutionalize its targeted killing practices may enhance compliance with IHL norms and create more significant internal oversight and review. This final part concludes by noting additional reform measures to bolster these protections in the absence of a stronger judicial role.

Private Military and Security Companies under International Humanitarian Law

The use of private military and security companies (PMSCs) in armed conflicts raises numerous questions. What is their legal status? Do they have the right to participate in hostilities? Are they legitimate military targets? What treatment are they entitled to if captured by enemy forces? How can their compliance with the rules of international humanitarian law (IHL) be ensured? The paper analyses two major issues surrounding the use of PMSCs in armed conflicts: firstly, what IHL norms define their legal status; secondly, what problems arise in ensuring that PMSCs comply with IHL and human rights law, and what recent initiatives have been taken to increase their accountability.

Ius in Bello under Islamic International Law

In 1966, Judge Jessup of the International Court of Justice pointed out that the appearance of an English translation of the teaching on the ‘Islamic law of nations’ of an eighth-century Islamic jurist (Shaybānī) is particularly timely and of so much interest because of the debate over the question whether the international law, of which Hugo Grotius is often called the father, is so completely Western-European in inspiration and outlook as to make it unsuitable for universal application in the context of a much wider and more varied international community of States. However, there has been little analysis of the role of Islam in shaping the modern European law of war and its progeny, international humanitarian law. This article argues that there is a room for the contribution of the Islamic civilisation within international humanitarian law and a conversation between different civilisations is needed in developing and applying international humanitarian law norms.

Reflections on Proportionality, Military Necessity and the Clausewitzian War

This article explores the significance of the reference, in proportionality analyses, to proper purpose and legitimate ends, given the traditional aversion of international humanitarian law (IHL) to questions of (political) legitimacy. It demonstrates the centrality of that aversion in doctrinal assertions concerning the goals, characteristics and operational strategy of IHL yet argues that, at its historical and conceptual foundations, the law draws on a construction of war that presupposes legitimacy of the political type. That construction remains embedded, though implicit, in contemporary proportionality analyses.Thus, the instrumental understanding of war by Carl von Clausewitz poses several challenges to entrenched contemporary doctrinal claims about the law, how it operates and the effects it produces. This provides an impetus for critical reassessment of the aversion to politics and the interaction between the humanitarian, military and political spheres in the operation of IHL norms. Such critique helps to identify novel strategies of humanitarian protection in war outside the confines demarcated by orthodox doctrine.

Retrieving the Role of Accountability in the Targeted Killings Context: A Proposal for Judicial Review

The U.S. government unexpectedly offers virtually no protection for its citizens from assassination — at least in the case of Anwar al-Awlaki. Despite having been born in New Mexico and not formally renouncing his U.S. citizenship, Al-Awlaki was killed in a targeted assassination without any public constitutional or statutory process. On October 8, 2011, Charlie Savage of the New York Times reported about a classified Office of Legal Counsel opinion issued under the Barack H. Obama administration that purported to provide a legal justification for the targeted killing of an American citizen without prior process. Authored by Martin Lederman and David Barron, the June 2010 memorandum advised the President that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.There has been much written journalistically on al-Awlaki and academically on targeting foreign leaders. The literature does not deal specifically with the domestic legal challenges and the rights afforded to a U.S. citizen being targeted by the U.S. Government extraterritorially. Assuming that the President has the constitutional power to order targeted killings outside of Iraq and Afghanistan, and that doing so would not be in violation of Executive Order 12333,which prohibits assassination, the question remains as to what type of process U.S. citizens should be afforded in these attacks. After analyzing the case law, this essay argues that even in the context of war, courts should afford additional protections to U.S. citizens while they are abroad. Moreover, as illustrated in the seminal cases of Hamdi v. Rumsfeld and Boumediene v. Bush, the United States Supreme Court has also avoided formalistic determinations of the process due to citizens and non-citizens alike in the post 9/11 context This paper will proceed as follow: Part I examines the current body of international humanitarian law that addresses the question of targeted assassinations. Part II in turn examines American domestic law with respect to targeted assassinations. Part III sets forth a proposed judicial review mechanism to challenge executive branch designations of “terrorist” eligibility for targeted assassinations. To be sure, employing force to prevent future harms can never be done in an optimal fashion. Errors are inevitable, for no military can choose the right target every time, nor can any military hit its target every time. With this basic recognition, I argue that an institutional review body could help assuage potential error rates while ensuring targeting remains with rule of law constraints. This section delineates two specific features of this judicial review body: First, it argues in favor of incorporating basic international law constraints into the adjudication process. On this understanding, in addition to imminence, the United States needs to account for the degree of expected harm, the probability of being attacked, the estimated collateral damage (including civilian life), the related requirement of military necessity (which in this context may preclude the possibility of safe arrest), the prohibitions against perfidy and treachery, and other pertinent norms of customary international and treaty law. Second, this section discusses how social psychology findings regarding the potential of skewed risk assessment manifests the need such a judicial mechanism of accountability. These findings suggest that government officials who know they will be accountable reach better-reasoned decisions and avoid many of the problems associated with skewed risk assessment, which can create enormous consequences in the context of targeted killings of US citizens. This paper thus does not argue that targeted killing should be illegal under all circumstances. As some have pointed out, it has proven to be a vital tool in the ongoing conflict with Al Qaeda. Rather, it argues for the creation of a structure to adjudicate the legality of specific targeted killings ex ante. This institution would acknowledge the military concerns that necessitate targeting as a use of force while affording U.S. citizens a basic level of process and protections associated with baseline international humanitarian law norms.

The application of international humanitarian law and international human rights law in situation of prolonged occupation: only a matter of time?

AbstractThe article deals with the effect of the time factor in the application of international humanitarian law (IHL) and international human rights law (IHRL) in ‘prolonged belligerent occupations’. It demonstrates that IHL applies in its entirety to such situations and that the adjustments necessary can be made through the interpretation of existing IHL norms. As for IHRL, the protracted character of an occupation reinforces the importance of respecting and applying human rights. It cannot, however, be invoked in order to influence the interpretation of the notion of a state of emergency leading to the adoption of derogations from IHRL rules.

The applicability of international humanitarian law to organized armed groups

AbstractWhile it is generally accepted today that international humanitarian law (IHL) is binding on organized armed groups, it is less clear why that is so and how the binding force of IHL on organized armed groups is to be construed. A number of explanations for that binding force have been offered. The present contribution critically examines five such explanations, namely that organized armed groups are bound via the state on whose territory they operate; that organized armed groups are bound because their members are bound by IHL as individuals; that norms of IHL are binding on organized armed groups by virtue of the fact that they exercisede factogovernmental functions; that customary IHL is applicable to organized armed groups because of the (limited) international legal personality that they possess; and that organized armed groups are bound by IHL because they have consented thereto.