Modern International Humanitarian Law Research Articles

Tracing the Application of Modern Principles of International Humanitarian Law in the pre-Christian War between King Duṭugamunu and Elāra in Sri Lanka

The war between King Duṭugamunu and Elāra is the most significant singular war that took place in the pre-Christian period in Sri Lanka. It has the elements of modern international armed conflict (IAC). A local monarch waged it to unify the nation against an invading foreign force led by a foreign ruler who seized power through regicide. This historical conflict sparked extensive debates, criticisms, and varying interpretations, contributing to distortions of factual accounts. The studies analysing this battle from the perspectives of the modern International Humanitarian Law (IHL) is minimal. The branch of public international law that deals with IAC is International Humanitarian Law (IHL). The research problem that was investigated is 'Did the Sri Lankan monarch comply with the modern principles of international humanitarian law when there were no such laws at that time in the world and thereby, does that monarch deserve to be called as the founder of IHL? Accordingly, this study aims at analysing the motives, intentions, and conduct including the pre-conflict, in-conflict, and post-conflict behaviour of key actors and the war's outcome from the perspectives of IHL. The methodology used for this study is literature review. It is qualitative and interpretative in nature. The historical sources, international conventions and national legislations were used as primary and secondary sources for this purpose. The focus of the analysis is the evaluation of IHL principles in the context of the historical war. This study provides a unique analysis that suggests the application of principles akin to modern IHL by the ruling monarch nearly two millennia before the formal establishment of such principles. The major finding is that some 2019 years prior to the international community introduced the modern IHL principles such as humanity, avoidance of unnecessary suffering, proportionality of damages, humane treatment of prisoners of war (POW) etc., the ruling Sri Lankan monarch has recognised and applied them in this war and has recognised the new principle of Eternal Honour to POWs which is yet to recognise by IHL. Keywords: Humanitarian; International; Law; Vijiṭapura; War

Protection of the Rights of Workers of Industrial Enterprises by International Humanitarian Law (on the Example of the War in Ukraine)

The purpose of the research is to assess the state of protection of the rights of workers of industrial enterprises from the viewpoint of both international and national legislation in the conditions of a full-scale invasion of the Russian Federation on the territory of Ukraine. The research was conducted using qualitative analysis, formal-legal, logical-legal, system-functional methods, as well as the method of interpreting legal norms (method of legal hermeneutics). The paper states the insufficient effectiveness of the norms of modern international humanitarian law regarding the protection of the rights of workers of industrial enterprises in the conditions of martial law in Ukraine. The paper describes the general and special regime of regulation of the rights of workers of industrial enterprises in the conditions of martial law in Ukraine. For the first time, the authors proposed to understand the protection of the rights of individuals by international humanitarian law in both a broad and a narrow sense, and the meaning of such approaches was revealed. The publication developed recommendations for the protection of the rights of workers of industrial enterprises in the conditions of armed conflicts, recommendations which are important for the development of regulations, which indicates the practical significance of the paper.

Comparative Study of Islamic and International Humanitarian Law

The human community has always been characterized by conflict, governed by ethical and legal standards that have evolved with human civilization. This widely accepted standard was eventually defined as contemporary International Humanitarian Law (IHL). This study aims to analyze from two legal perspectives: Islamic and international humanitarian law. The method used in this research is comparative, including qualitative analysis. The results of this study suggest that regulation has developed mainly due to modern European activities, diminishing the potential contributions of other cultural and ethical traditions to its development and codification. However, it should be noted that the principles jus ad bellum (laws governing the use of force) and jus in Bello (the content of the laws of war) are evident in Islamic literature centuries before modern international law was codified, with little attention paid to them. This paper argues that Islamic humanitarian law, which regulates the treatment of prisoners of war, is comprehensive and comparable to the provisions of the 1949 Geneva Convention. In addition, the concept of Siyar's Islamic literature is very similar to the Geneva Conventions. This research augments international relations by examining the degree of concordance between the requirements of Islamic Humanitarian Law and Modern IHL concerning issues of immediate practical relevance in an era when several regions of the world are experiencing armed conflict.

Charting Hinduism's rules of armed conflict: Indian sacred texts and international humanitarian law

AbstractWhat does Hinduism have to say about the rules of armed conflict? How might Hinduism enrich the modern global discourse on international humanitarian law (IHL)? What convergences might be found, and what areas of divergence? This paper examines and contextualizes the rules of armed conflict advocated in classical Hindu texts, especially in the epic Mahābhārata, where important norms of Hinduism are established. It also examines the other major epic, the Rāmāyaṇa, and the Dharmaśāstras (Law Codes), as well as the Arthaśāstra, which takes an alternative (realpolitik) approach. This paper focuses on conduct during armed conflict (jus in bello), now synonymous for many with IHL, rather than considerations leading up to war (jus ad bellum). The paper seeks to illuminate both convergences and divergences with IHL and highlight particular Hindu approaches on the righteous (dharmic) application of violence. Like IHL, classical Hinduism values (1) proportionality of force during armed engagement; (2) the minimization of human suffering during combat; (3) care for survivors of war; (4) immunity towards non-combatants, especially civilians; and (5) balancing military necessity with humanity. With respect to divergences, classical Hinduism extols non-violence in ways that critique even the warrior's duty to engage in righteous war (dharma yuddha). In contrast to IHL, the Hindu epics have some different limitations; for instance, they limit the right to combat to a particular caste, the kṣatriyas, though this concept could be modernized to mean uniformed personnel of the State. The epics also disavow certain practices that are legal under IHL, such as ambushes and surprise attacks against legitimate targets. The Hindu proportionality provision goes beyond IHL by prescribing that only warriors of the same type should fight. With its many deeply ethical considerations, Hinduism enriches modern IHL through its heightened emphasis on fair and humane conduct in battle and its call towards compassion on behalf of both combatants and non-combatants.

ПОЛИТИЧЕСКИЕ ВЫЗОВЫ МЕЖДУНАРОДНОМУ ГУМАНИТАРНОМУ ПРАВУ В НЕТРАДИЦИОННЫХ СОВРЕМЕННЫХ ВОЙНАХ

The article examines the main problems of the application of modern international humanitarian law (the law of armed conflicts) in the political aspect arising from the changing nature of wars. Due to significant gaps in the current legislation in the realities of modern wars, there is no effective mechanism for protecting civilians, political risks constantly arise that affect the system of diplomatic relations. The possibilities of international criminal courts are limited, because not all war crimes can be called to account. The extremely important principle of distinguishing combatants from the civilian population involved in an interstate or internal military conflict is not always respected.

LEGAL PROTECTION OF JOURNALISTS DURING INTERNATIONAL ARMED CONFLICTS

The article is devoted to the analysis of the peculiarities of the legal status of journalists during international armed conflicts. It is emphasized that representatives of mass media who are on dangerous business trips belong to the category of civilians and enjoy the protection of international humanitarian law under the conditions, if they do not participate in military operations, with the exception of accredited military correspondents, who have a special legal status during coverage acts of military aggression. It is emphasized that the modern concept of "journalist" includes not only employees of traditional mass media, such as television, radio broadcasting, print media, as well as news agencies, but also the so-called new media: journalists of online media, bloggers, freelancers, employees of media communities, public activists and other media participants who communicate publicly with their audience Modern international humanitarian law does not provide for the presence of special means of protection for journalists, although the presence of a certificate or a special badge of a press representative, recommended to journalists by humanitarian organizations, can be considered conditionally as such. Loss of international legal protection by a journalist is possible under the conditions of approaching the place of active hostilities, as well as being inside a military formation, when the enemy has no opportunity to distinguish a combatant from a civilian or a journalist. It is emphasized the importance of further work on the preparation of the Convention on the Protection of Journalists during Armed Conflicts, as well as improving the mechanisms of control over compliance with the current provisions of international humanitarian law through the efforts of the professional journalistic society and international human rights organizations.

The Image of the Ancient Jewish Ruler and Autocratic Power During the Formation of Statehood (Based on the Materials of the Hebrew Bible)

The relevance of the study lies in the fact that the ancient texts of the Hebrew Bible largely anticipated the political and legal achievements of the last centuries. The Tanakh, additions and commentaries to it determine the direction of modern international humanitarian law, ways of forming state administration, lay the foundations of a system of checks and balances, a system of separation of powers, contain the foundations of the contractual theory of the origin of the state by concluding an agreement between the people and the king. The purpose of this study is to analyze the ancient texts of the Hebrew Bible and update the obtained data in modern political and managerial relations. Some texts of the Hebrew Bible (Tanakh), authoritative commentaries on them and the results of research by domestic and foreign scientists were used as materials for the study. The research methods were comparison, analysis of documents, and the system method. The conducted research concluded that doubts about the historicity and practical reliability of the texts of the Hebrew Bible are not able to affect the indisputable value of the material contained in it. Even if the events described have never taken place in history, the views expressed in the Bible themselves should be recognized as far ahead of their time and of value for modern political science. The Hebrew Bible defines the representative of the autocratic power (the king) as the first among equals. This applies to rights, duties, and responsibilities. It is this postulate that should be embedded in the modern political and managerial system, in which there is always a manager and performers. And only continuous work (primarily on oneself), self-improvement, as the Hebrew Bible bequeathed, should become the criterion for selecting a leader, and not any preferences.

On the prohibited methods and means of conducting warfare in the context of modern International humanitarian law and law of international security

This article analyzes the historical-legal peculiarities of establishment and evolution of international humanitarian law and its principles in the context of the general theory of international law and current political situation. Referring to the international legal documents that regulate the rules of conducting warfare and issues of international security, as well as case law, the author describes and systematizes the methods and means of conducting warfare that are classified under restraining and prohibitive regimes. The goal of this research lies in the analysis and systematization of international legal norms aimed at prevention of the use of prohibited methods and means of conducting warfare. The object of this article is the relations between the actors of international law with regards to restrained use of means and method of conducting warfare. The subject is the international conventions, international customs, general principles of law recognized by the civilized nations. The scientific novelty consists in the author’s view of the essence of relevant issues in the sphere of international humanitarian law, establishment and evolution of international humanitarian law in the context of restrained use of methods and means of conducting warfare. The author presents the original systematization and classification of the prohibited methods and means of conducting warfare. The conclusion is made that many disagreements can be solved by responsible compliance with the existing norms of the international humanitarian law that is intended to prevent potential humanitarian risks. The author reveals that the four protocols to one of the fundamental sources of the international humanitarian law – the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (1980) have such significant shortcoming as the absence of control mechanism for compliance with the established prohibitions.

Roles and Actions That Should Be Taken by The Parties In The War In Concerning Wound and Sick Or Dead During War or After War Under The Geneva Convention 1949

Modern international humanitarian law consists of two historical streams: The Law of The Hague which in the past was referred to as the law of war proper, and Geneva Law or Humanitarian Law. The two schools are named after the venue for the international conferences drafting treaties on war and conflict, especially the Hague Conventions 1899 and 1907 and the Geneva Conventions, which were drafted for the first time in 1863. Both Hague Law and Geneva Law are branches from jus in bello, namely international law regarding acceptable practices in the conduct of war and armed conflict). The result of the writing of this article is that basically the scope of the First Geneva Convention in the context of scale provides protection in international and non-international conflicts, but the basis for non-international protection is not specifically explained in this convention, because in this First Geneva Convention. Non-international conflicts are only included in the General Provisions Chapter, and will be further clarified in Protocol II. This non-international scope is described in accordance with the First Geneva Convention Chapter I - General Provisions Article 3 regarding armed conflicts that are not international (non-international) taking place within the territory of one of the High Contracting Parties so that each Party to the conflict is obliged to implement the provisions applicable. The roles and actions that must be taken by the disputing parties during the war or not for the wounded and sick or dead cannot be separated from Human Rights, which must care for fellow human beings and please help regardless of ethnicity, religion, race, gender, age and skin. But in the Geneva convention only provides actions that should be done, there are no sanctions imposed if we ignore or do not comply with this Geneva convention. The method used in this research is normative juridical.

Exploring foundational convergence between the Islamic law of armed conflict and modern international humanitarian law: Evidence from al-Shaybani's Siyar al-Kabir

AbstractThis paper compares and contrasts the Islamic law of armed conflict with the modern international humanitarian law, with the view of identifying foundational similarities between these two separate canons, drawing extensively from al-Siyar al-Kabir. To this end, it raises the question as to whether the Islamic law of armed conflict is compatible with its modern counterpart, and, if it is, to what extent. To address these interlinked questions, the study departs from the premise that in order to identify resemblance, it is necessary to enquire into the foundations (both legal and philosophical) of the Islamic and contemporary approaches vis-à-vis armed conflicts.

Limits of deception in Islamic laws of war: the case of civilian disguises in suicide attacks

The suicide attack is an infamous method of warfare mostly associated with Islamic militant groups. While there are numerous aspects from which to discuss this method of warfare from a fiqh al-siyar (Islamic international law) perspective, this article specifically highlights suicide attacks when they disguise as civilians which they often do. Few contemporary jurists discuss this particular aspect of suicide attacks, and even those have mostly missed one issue: it might be an impermissible treasonous deception. This article explores whether suicide attacks disguising as civilians constitutes as an act of treason in fiqh al-siyar. It is found that such method of attack is not in itself treasonous therefore not in itself impermissible. However, suicide attacks disguising as civilians may become treasonous depending on the circumstances. Further, even when it is not treasonous it can be impermissible due to other reasons such as modern International Humanitarian Law (IHL), or ma?la?at. �

The International Criminal Tribunal for the Former Yugoslavia: paving the way for modern international humanitarian law enforcement

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Fiqh Al-Jihād in the Contemporary World: Addressing The Gaps in The Regulations On The Means and Methods of Warfare

English Abstract: Since the perfection of Islam through the revelations to Prophet Muḥammad ﷺ, Muslims have always been engaged in wars until this day, and the aḥadīth indicate that war will continue will until near the end of times. Throughout the ages, the trends of warfare has always developed in scale, means, and methods. Mostly through customary laws, rules regulating warfare have always been set and developed. While modern international humanitarian law (IHL) seems to have developed very rapidly within the past century to meet the new challenges of war, fiqh al-jihād seems to instead experience lethargy. It seems to be very difficult to find comprehensive and accurate rulings of fiqh regarding various aspects of modern warfare, especially in the means and methods. This research employs a doctrinal legal research to fill in the gap of scholarship specifically in the rulings related to the means and methods of warfare. It first explores the extent to which fiqh can develop, and whether it could be affected by the development of science and technology and international law. Second, this research examines three areas of the recent developments on the means and methods of warfare: (i) proportionality and precaution in attacks, (ii) means and methods which may cause unnecessary suffering and superfluous injuries, and (iii) treachery and perfidy; and explores the options to develop fiqh al-jihād rulings to cover what has yet to be covered or covered inaccurately. This research finds that certain areas of fiqh, especially rules related to maṣlaḥat such as which include much of fiqh al-jihād, can, to some extent, change depending on the circumstances which include developments of science, technology, and international law. However, these developments are only considered to the extent that it fulfils, and does not contradict, the principles and purposes of the Sharī‘ah. It is also found that the development of international law regarding means and methods of warfare in the aforementioned three areas can, to a large extent (but not all), be adopted into fiqh al-jihād. Arabic Abstract: خلاصة البحث منذ أن اكتمل الإسلام بنزول الوحي على النبي محمد صلى الله عليه وسلم، ظل المسلمون منخرطين في الحروب إلى وقتنا الحاضر، وقد جاء في أحاديث نبوية عديدة أن ذلك سيستمر حتى قيام الساعة. وعلى مر العصور، تطورت فنون الحرب من حيث الحجم والوسائل والأساليب، حتى تم وضع قواعد لتنظيم الحرب وتطويرها على شكل قوانين عرفية. في حين نجد أن القانون الدولي الإنساني الحديثInternational Humanitarian Law (IHL) قد تطور أيضا بشكل سريع خلال القرن الماضي لمواجهة التحديات الجديدة للحروب. وعلى نقيض ذلك، يرى أن فقه الجهاد يعاني من الركود، حيث يصعب العثور على أحكام فقهية شاملة ودقيقة في مختلف جوانب الحرب الحديثة، خاصة في جانب الوسائل والأساليب. يستخدم هذا البحث طريقة البحوث القانونية الفقهية أو التقليدية لسد نقص البحوث المتعلقة بقواعد ووسائل الحرب وأساليبها على وجه التحديد. ويقوم كذلك باستكشاف عدة محاور، منها: أولا: مدى إمكانية تطور الفقه الإسلامي وتأثره بتطور العلوم والتكنولوجيا والقانون الدولي. ثانيا، يتناول البحث ثلاث مجالات للتطورات الأخيرة التي شهدتها وسائل وأساليب الحرب وهي: (1) التناسب والحذر في الهجمات، (2) الوسائل والأساليب التي قد تسبب معاناة غير ضرورية وإصابات زائدة، (3) الخيانة والغدر. إضافة إلى ذلك، يقوم هذا البحث بالكشف عن خيارات أفضل لتطوير أحكام فقه الجهاد ولتغطية ما لم يتم تناوله بشكل دقيق ومفصل. وخلص البحث إلى أن بعض مجالات الفقه الإسلامي خاصة القواعد المتعلقة بـ المصالح المرسلة -والتي يشتمل فقه الجهاد على شيء كبير منها- يمكن أن تتغير إلى حد ما تبعا للظروف المحيطة من تطورات في العلوم والتكنولوجيا وكذلك القانون الدولي؛ غير أن هذه التطورات لا يمكن أن يعتد بها إلا إذا وافقت مبادئ ومقاصد الشريعة الإسلامية ولم تتعارض معها. كما خلصت الدراسة كذلك إلى أنه من الممكن الاستفادة إلى حد كبير جزئيا من تطور القانون الدولي فيما يتعلق بوسائل الحرب وأساليبها في المجالات الثلاثة المذكورة أعلاه في فقه الجهاد.

Fiqh al-Jihād in Modern Warfare: Analyzing Prospects and Challenges with Reference to International Humanitarian Law

In discussing the compatibility of the Islamic concept of jihād and international law, most researches focus on the jus ad bellum (justifications of war) of fiqh al jihād and less on the jus in bello (lawful conducts of war). This article observes the relation between fiqh al-jihād and modern international humanitarian law, and sets out both the prospects and challenges of such a concept in modern times. It is argued that some challenges are due to the lack of emphasis on the principles of fiqh al-jihād that are shared with modern International Humanitarian Law, or the existence of differing opinions between Islamic scholars. Using a literature research, this article finds that the way to address this is to make a unified code of fiqh al-jihād, involving scholars from all schools of thoughts, to agree on a common set of rules.

BetweenConsentedandUn-ContestedOccupation

It has long been recognised that ‘non-consent’ is a fundamental element of the law of occupation. Under modern international humanitarian law (IHL), the consensual presence of foreign military forces is generally not seen as belligerent occupation.However, if we accept the principle that the application of IHL should rely on the objective situation on the ground and not on the subjective judgment of the situation of parties to the conflict, it may be natural to diminish the significance of consent by the territorial states in relation to the application of the law of occupation. It may be somewhat harmful to deny such protection based solely on the existence of the territorial states’ consent without considering the relationship, in reality, between the occupier and the population in the occupied area. According to a teleological interpretation of IHL, especially when it is obvious that the latter has no allegiance to the former, the tense relationship between them should be regulated by the law of occupation.This article discusses whether and how state consent could be a humanitarian ground to negate the legal protection for its own people, and highlights situations where the local population needs protection by the law of occupation (or comparable rules) in consensual military occupations.

Islamic Contributions to International Humanitarian Law: Recalibrating TWAIL Approaches for Existing Contributions and Legacies

This short essay focuses on the involvement of Muslim-majority state leadership in the pre-World War II development of international humanitarian law (IHL), including their appeals to Islamic norms. This historical snapshot reveals how national leaders joined debates during conferences leading up to the revised 1949 Geneva Conventions, the heart of modern IHL. Such accounts complicate our assumptions about the cultural and national composition of public international law as “Western,” and shed light on global hierarchies involving modern Arab and Muslim states and their investment in such norms. The essay argues by example that, ultimately, in Third World Approaches to International Law (TWAIL) more emphasis is needed on history, traditions of governance, and states’ distinctive responses to macrostructural pressures—rather than on static notions of identity, resistant narratives, and presumed shared ideologies. TWAIL seeks alternatives to international law’s presumed oppressive role in Western-non-Western power dynamics, and new ideas and opportunities for a “third-world” legal scholarship beyond current global underdevelopment dynamics.

Principles of Laws of War in Ancient India and the Concept of Mitigating Armed Conflicts through Controlled Fights

While modern international humanitarian law is most directly linked to 19th and 20th century Europe and The Hague and Geneva Conventions, cultures throughout history have developed rules of warfare for the protection of non-combatants and civilian populations. This paper provides an overview of the Dharma-based Hindu and Buddhist norms for conflict in Ancient India, and then proceeds to a detailed examination of the practices of Ankam and Mamamkam on the medieval Malabar Coast from the Sangam period through the rule of the Zamorins of Calicut. Ankams were ad hoc proxy duels between professional fighters conducted to resolve inter-state disputes, while Mamamkam was a periodic contest designed to allow relatively bloodless transfer of power. Both demonstrate an understanding of modern concepts of proportionality, distinction and victims’ protection. The paper concludes by enumerating the humanitarian values carried by Ankams and Mamamkam.

The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment

I offer here an extended Nietzschean joke: the necessity of error in the constitution of individual authority and communal power. Communities - the nation-state, religious communities, terrorist organizations - are arranged through a cultivation of error: mistaking causes for effects, assuming a false causality, creating an imagined causality, and assuming a free will. These errors of causation, these miscausations, have been offered as a means through which leaders or leader classes - the judge, the priest, the king, the president, the charismatic leader of violent sub-national communities - maintain authority. In contrast, the community itself, those who are led, dominated, controlled, manipulated, are considered only in the passive. They are the victims, the weak-willed, the powerless, the sheep, the herd. They obey because they must. But authority is not power, and reality is more subtle and layered than what appears on the surface of relationships. Just as the priest, the leader uses miscausation to create the illusion of power and so protect and expand individual authority, so the community uses miscausation to assert communal power - over the priest, the president, the judge, the leader - through the illusion of weakness. The strong leader does not usurp power from the communal weak; the herd, for its own preservation as a herd, demands the appearance of overlordship of the leader. The cult of the leader, of the individual solely responsible for her acts, and of communities consisting of passive amalgams free from responsibility, serve as the foundation for modern human rights and humanitarian law. But the cult of the leader itself constitutes a titanic act of miscausation in four parts: (1) that communities are protected not because they are weak, but because they are strong, to protect the community against blame for action committed in its name by its leaders; (2) that the leader is dependent on the community; the leader acts in conformity to the wishes of the people; (3) that the leader then serves as proxy for the community; the doctrine of personal responsibility for communal acts protects a community by sacrificing its leaders for acts of communal wrongs; and (4) that the community, the sheep, are in actuality the Shepherd in a world arranged to minimize the costs of inter-community conflicts for power. For modern political and legal theory, this misunderstanding unveils the perversity of the logic of grounding modern international humanitarian law in the personal responsibility of individuals for their acts. I will offer an example - the way international humanitarian law, used to condemn punitive house demolitions in Israel, serves to subsidize the maintenance of the cultural production of hatred which constitutes communal permission to engage in individual acts of violence against not Israelis, but Jews. Communities ought to bear responsibility, ought to pay, for the socio-cultural subsidy of hatred. To that end, I suggest a tax on culturally cultivated hatred assessed against a community that subsidizes hatred leading to acts of individual violence.

De la Seconde Guerre mondiale à la Conférence diplomatique de 1949

Abstract Jean Pictet, a former Vice-President of the ICRC, is one of the chief architects of modern international humanitarian law. In an article entitled “The formation of international humanitarian law” and published (in English) in the Review (No. 244, January-February 1985, pp. 3–24), Pictet analysed the ideas and forces which led to the successful negotiation and adoption of the four Geneva Conventions of 1949.

The International Court of Justice, Nuclear Weapons and the Law

International law as it applies to armed conflict necessarily treads a fine line between irrelevance to and complicity in its subject matter. The emergence of this body of law has been slow and painful, its foundational irony being that the treaty establishing the basis of modern international humanitarian law – the Nuremberg trials – was signed by the Allies on the same day that the United States dropped its second atomic bomb on Japan. This uncertain beginning, combined with the central role that nuclear weapons came to play in Cold War foreign policy, render it hardly surprising that the legal status of this most devastating class of weapons remained unclear for over half a century and is likely to remain so for some time to come.