Violations Of Humanitarian Law Research Articles

Surrendering to the Big Picture: Historical and Legal Perspectives on Accountability in the Democratic Republic of Congo Following the Defeat of the March 23 Movement

<p class="p1">It remains to be seen whether the past few months will mark a genuine turning point in the conflict in eastern Democratic Republic of Congo (DRC), as the rebel faction March 23 Movement (M23) announced the end of its 20-month insurgency against the government on 5 November 2013. News of the rebel group’s surrender following its political and military defeat signals an important moment of hope and renewed prospects of peace and stability in a region prone to protracted armed conflict. However, long-term stability in the country and in the region will require a multi-faceted process consisting of comprehensive accountability for human rights violations that have been committed by all parties to the conflict. In this article, I will first lay out the historical context of the fighting and the root causes of conflict present long before M23’s entrance onto the scene as a splintered rebel faction so as to understand M23’s place within the country’s history of protracted violence. Next, I will explain the violations of international humanitarian and human rights law committed by all possible parties, including rebel and government groups, as well as individual criminal responsibility and corporate liability. Lastly, I will chart the pathways of criminal and social accountability at various levels of international and domestic justice systems to see how the DRC may continue to build long-term local stability in the eastern parts of the country by addressing the question of accountability for international crimes. This brief analysis aims to provide a broader understanding of a complex conflict beyond the defeat and disarmament of M23, albeit a key group in a region of contentious cross-border conflict.

Międzynarodowe sądy karne jako instrumenty kontroli przestrzegania fundamentalnych praw człowieka

Serious violations of international humanitarian law and international human rights law in the 90’s resulted in initiatives aimed at prosecution of persons responsible. Three international criminal tribunals became mechanisms of international post factum control over fundamental human rights. The tribunals have been created to decide about individual responsibility and to punish authors of international crimes. In the article, genesis and concept, as well as effects of the tribunals’ activities are presented. It has been proved that international criminal tribunals promote human rights and human security concepts. However, because of formal and real obstacles concerning fulfillment of their competences, the three tribunals do not contribute to enforcement of human rights protection.

Reparations and Reconciliation in the Aftermath of Civil War

Both international legal principles and much of the literature on transitional justice support the provision of reparations as a necessary component of justice in postconflict societies. According to the UN Basic Principles and Guidelines (United Nations 2005: para. IX), “adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law.” However, few scholarly studies have looked systematically at victims’ views of the importance of various forms of reparations in providing justice. Using individual-level data collected in the aftermath of the civil war in Nepal, we investigate people's perceptions of the importance of various forms of reparations that appear in the UN Basic Principles and Guidelines and that have been offered in transitional justice processes. The findings suggest that compensation for losses, along with punishment of perpetrators, are viewed as being more important to providing justice for individuals than other forms of reparations, regardless of the type of grievance(s) suffered.

‘Humanitarian Rights’: Bridging the Doctrinal Gap between the Protection of Civilians and the Responsibility to Protect

The right to intervene under Article 4(h) of the African Union (AU) Constitutive Act and the third pillar of responsibility to protect (R2P) provides for the possibility of using military force to protect civilians from mass atrocities. However, both Article 4(h) and R2P do not specify how the military can or should use force to protect civilians. The omission to define how the military should use force to protect populations at risk was brought to the fore by the implementation of UN Security Council Resolution 1973, through which NATO has been criticized to have overstepped the Security Council mandate. The doctrinal deficit on protecting civilians is worsened by legalistic thinking on the normative separation of human rights and humanitarian law, a division driven by their historical roots. Nonetheless, human rights violations occur during warfare and humanitarian law violations may also be human rights violations. Both spheres of law are complimentary and mutually reinforcing and victims do not distinguish whether they have suffered human rights or humanitarian law violations. What they need is protection. This paper presents a ‘humanitarian rights’ approach as the symbiotic methodology for civilian protection that recognizes the inherent dignity and worth of every human being.

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.

Seeing Like a Court: Documenting Histories of Armed Conflict through the Lens of Judging International Crimes

Seeing Like a Court:Documenting Histories of Armed Conflict through the Lens of Judging International Crimes Victor Peskin, Associate Professor (bio) Richard Ashby Wilson , Writing History in International Criminal Trials (Cambridge University Press 2011), 244 pages, ISBN No. 978-0-521-13831-4. Assessing how well international criminal tribunals document history has gained renewed scrutiny in light of two recent landmark Appeals Chamber decisions at the Yugoslavia and Rwanda tribunals. The November 2012 acquittal of Ante Gotovina and Mladen Markác for war crimes and crimes against humanity during the 1995 Croatian military operation that retook the Krajina region from Serb forces may prove to be the most contentious appellate decision handed down by the tribunal. This is underscored by the extraordinarily strong dissenting opinions from the appellate bench, one of which criticized an aspect of the majority's reasoning as "grotesque" and the judgment itself as contradicting "any sense of justice." The appellate decision effectively rewrites the history of this crucial part of the war by overturning the Trial Chamber's decision that found the two former generals, along with then Croatian President Franjo Tuđman, were involved in a joint criminal enterprise to expel ethnic Serbs from Croatia. The Croatian attack, which led to the exodus of some 150,000 to 200,000 Serbs, has long been viewed in Croatia as the culmination of a just war of liberation, but criticized internationally as ethnic cleansing. This 2012 appellate decision, along with Appeals Chamber acquittals of the Kosovo Liberation Army leader Ramush Haradinaj and Bosnian Muslim Naser Oríc, challenges the prosecution's overall narrative which recognizes that serious violations of international humanitarian law were committed by all sides in the Yugoslav wars of succession. But from the tribunal's recent Appeals Chamber's decisions emerge a one-sided narrative that effectively exonerates the culpability of key high-level non-Serb suspects. The Rwanda tribunal's December 2011 Appeals Chamber and the December 2008 Trial Chamber decisions in the case of Théoneste Bagosora have also upended the dominant narrative of the Rwandan genocide as a carefully planned conspiracy directed from the top of the interim government that took power in early April 1994. The Trial Chamber's 2008 decision convicted Bagosora for genocide, but found he played no direct role in conspiring to organize it. The Appeals Chamber further diminished the culpability of Bagosora, the tribunal's prime genocide suspect, and reduced his sentence from life to thirty-five years. Genocide certainly occurred in Rwanda in 1994, but as Thierry Cruvellier wrote in the International Justice Tribune, with this appellate decision "[it seems] almost impossible to understand what's the narrative [End Page 769] of the genocide that has come out of the most important trials at the ICTR."1 By overturning key aspects of the dominant narratives of the Croatian and Rwandan conflicts, the Appeals Chamber decisions may well strengthen the arguments against international tribunals moving into the hazardous realm of documenting the histories of armed conflicts. Richard Wilson begins his groundbreaking book, Writing History in International Criminal Trials, by explaining the foundation of the scholarly consensus behind these arguments. Ever since Hannah Arendt's piercing criticism of the Eichmann trial's obsession with linking the Holocaust to the long history of anti-Semitism, many observers have been wary of seeing courtroom trials diverge from their legal mission of determining individual criminal responsibility. This skepticism, as Wilson explains, is informed by two distinct perspectives. The liberal legalism camp, of which Arendt belonged, argues that criminal trials should have the singular mandate of determining a defendant's guilt or innocence. Arendt was not only concerned that the prosecution's strategy in the Eichmann trial produced "bad history and cheap rhetoric,"2 but that it undermined the defendant's due process rights. Recent law-and-society scholarship cites different reasons for why courts that venture into history writing will inevitably produce impoverished accounts of past conflicts. Some in this camp argue that courts can only deliver partial truths because of their selective and limited focus. According to Wilson, others emphasize that "[l]aw's unique conventions, special categories, and exceptional rules impel courts to perceive historical events through a...

State Immunity or State Impunity? Human Rights and State Immunity Revisited in the ICJ’s Judgment on the Case of the Jurisdictional Immunities of a State

The paper aims to comment on the judgment of the International Court of Justice of 2nd February 2012 in the case of Jurisdictional Immunities of the State between Germany and Italy from the perspective of the problem of jurisdictional immunity. In its decision concerning compensation for atrocities suffered by Italian citizens during World War II granted by Italian courts against the German State as well as the execution of the analogical decisions of Greek courts, the International Court of Justice upheld the immunity of the German State. The compensation sought by the plaintiffs in the national proceedings was to redress massacres on the civil population, deportations and forced labour. In its decision the Court analyzed the exception proposed by Italy in three strands which, according to the Respondent, cumulatively would result in an exception to the rule of state immunity. Firstly, the acts giving rise to the Italian claims constituted grave violations of humanitarian law; secondly, the rules of law violated constitute peremptory norms of international law; thirdly, no other form of redress was available rendering the exercise of jurisdiction by the Italian court to be a measure of a last resort for the victims.

In the Eye of the Beholder? The UN and the Use of Drones to Protect Civilians

The debate on the UN’s possible use of drones for peacekeeping took a turn in 2013 when the Security Council granted the Department of Peacekeeping Operations (DPKO) permission to contract surveillance drones for MONUSCO, its peacekeeping mission in the Democratic Republic of Congo (DRC).<br />This article examines what drone capability may entail for UN peacekeeping missions. We find that surveillance drones can help missions acquire better information and improve the situational awareness of its troops, as well as inform decision-making by leadership, police, and civilian components of the mission. We see a significant potential in the use of surveillance drones to improve efforts to protect civilians, increase UN troops’ situational awareness, and improve access to vulnerable populations in high-risk theaters. The use of drones can dramatically improve information-gathering capacities in proximity to populations at risk, thereby strengthening the ability of peacekeepers to monitor and respond to human rights abuses as well as violations of international humanitarian law (IHL). Drones may also enable peacekeepers to maintain stealth surveillance of potential spoilers, including arms smugglers and embargo breakers. They could additionally improve UN forces’ own targeting practices, further contributing to the protection of civilians (PoC). Furthermore, we emphasize how drone capability significantly increases peacekeepers’ precautionary obligations under IHL in targeting situations: the availability of drones triggers the obligation to use them to gather information in order to avoid civilian casualties or other violations of IHL or international human rights law.<br />There may soon come a shift among human rights groups, from being skeptical of the use of drones by UN peacekeepers to demanding that peacekeeping operations be equipped with surveillance drones for humanitarian and human rights reasons – shifting the current debate, which has focused largely on the negative impact of the use of drones, to a more balanced debate that considers more objectively what drones are and what they can be used for. Finally, the debate about armed drones looms on the horizon for the UN as well – and we outline some of the key dilemmas that the inclusion of such a capability will entail.

Dealing with the Principle of Proportionality in Armed Conflict in Retrospect: The Application of the Principle in International Criminal Trials

The principle of proportionality is one of the core principles of international humanitarian law. The principle is not easy to apply on the battlefield, but is even harder to apply retrospectively, in the courtroom. This article discusses the challenges in applying the principle during international criminal trials. It discusses the principle itself, followed by an explanation of the general challenges of dealing with violations of international humanitarian law, and more specifically the rules related to the conduct of hostilities, during war crime trials. The way in which the principle has been used before the International Criminal Tribunal for the former Yugoslavia is examined, including an in-depth discussion of the recentGotovinacase. The second part consists of an evaluation of Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court, and discusses the difficulties the International Criminal Court would face in cases dealing with violations of the principle of proportionality.

International Humanitarian Law in India: A Critical Case Study

Prior to 1949, a consensual regime on internal armed conflict was nonexistent. The urgency to regulate the conducts of parties in an internal armed conflict was realized in the wake of World War II. The evolving war patterns direly necessitated regulation of massive violations of both humanitarian law and human right norms that are corollary to each other. This article attempts to sketch the application of international humanitarian law governing internal armed conflict in the context of India with reference various approaches at national and international level. It also highlights the fact that India is yet to recognize protocol II of the Geneva Convention and the concerns such has attracted. Further, the article also attempts to venture into the grey area of determining the threshold of internal armed conflict.

State Immunity Before the International Court of Justice: Jurisdictional Immunities of the State (Germany v Italy)

The International Court of Justice recently gave judgment in Jurisdictional Immunities of the State. The case concerned German state immunity from civil claims brought in Italian courts by victims of serious violations of international humanitarian law committed by German armed forces during World War II. The Court offered a valuable clarification of the relationship between state immunity and jus cogens norms at customary international law. The conservative reasoning was thorough and extensive and the decision is likely to ossify the evolution of state immunity.

Providing Reparation in Situations of Mass Victimization - Key Challenges Involved

An abundance of scholarly literature exists on reparation theories and legal procedures or administrative programmes set up to provide reparation to victims of mass atrocities or international crimes, oft en also referred to as gross violations of human rights and humanitarian law. This article aims to provide an analysis of what we consider to be the main challenges to carefully consider when devising and implementing reparative justice measures, whereby the focus is on victims of international crimes leading to mass victimization. In all regions and countries violations of human rights and fundamental freedoms occur and victims should be entitled to redress and reparation. The focus is on situations involving gross and massive violations of human rights, often amounting to crimes under international law as defined in the Statute of the ICC. A first challenge is how to conceptualize victimhood in post-conflict situations. As noted by ani “conflict or repression is often so widespread and traumatising that the entire society is victimised, and there is a need to redefine victims as the entire society’’ (Mani 2005, 68). The conception on who should be considered victims in societies in transition poses several complexities that will be further reflected upon. The second challenge is how to adapt the existing judicial right to an effective individual remedy to the context of mass victimization where it is often claimed that collective reparations might be better suited to provide reparative justice (Roht-Arriaza 2003-2004; Van Boven 1995). Implementing a collective perspective may also result in including general goals of development aid in reparative measures. The third challenge will reflect upon this, by some contested, inclusion of development strategies in reparation programmes (De Greiff & Duthie 2009; Saris & Loft s 2009). In order to present arguments on how to balance this individual versus collective perspective and the inclusion of development goals, we will draw from victimological studies into the needs of victims and notions presented by the human security concept. We realize that providing reparative justice to victims of international crimes requires tailor-made solutions in which the specific (historical, cultural and economic) context of the country should be taken into account. That being said, we do believe that the challenges discussed in article apply in general to situations of mass victimization.

The Effectiveness of International Criminal Justice with Reference to the Truth-Telling/Seeking Mechanisms for Victims of the Rwandan Genocide

The International Criminal Tribunal for Rwanda (ICTR) was established for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda between 1 January 1994 and 31 December 1994. It has had under its mandate the prosecution of Rwandan citizens responsible for genocide and other such violations of international law committed in the territory of neighbouring States during the same period. Since its creation, the ICTR has come a long way from its humble beginnings and has demonstrated the application of international criminal justice and the willingness of the international community to subject the perpetrators of genocide, war crimes, crimes against humanity, etc. to be accountable to their actions. However, it has also been recognized that the ICTR had serious failings which lead many commentators to be skeptical of the role of the court in addressing the concerns of victims of the Rwandan genocide who questioned the efficacy of international criminal justice in provide a swift delivery of justice. This paper attempts to provide a comprehensive review of the truth-telling/truth-seeking mechanisms, as forming part of the practical solutions to the unique Rwandan experience, as not distinct from the work of the ICTR but as a complementary process, accompanying and reinforcing the decisions of the Court. The author argues that restorative justice, as forming part of the wider concept of international criminal justice, should be at the heart of solving humanitarian crises of such a scale and scope as that of the Rwandan genocide. Restorative justice initiatives and processes implemented at grass-root level, and engaging the community as a whole, provide a holistic approach in leading to long-term peace processes.

The Illegality of Military Support to Rebels in the Libyan War: Aspects of jus contra bellum and jus in bello

One of the most prominent aspects of the 2011 conflict in Libya was the overt support, both military and non-military, offered to the Libyan anti-Gaddafi rebels by the States that intervened in the conflict. The present article evaluates the conformity of this support with the rules of jus contra bellum and jus in bello. From a jus contra bellum perspective, support of the Libyan rebels exceeds the ‘necessary measures’ that the intervening States were allowed to take in order to protect the civilian population in the Libyan conflict according to Security Council resolution 1973 (2011). From a jus in bello perspective, instead of iden- tifying possible violations of international humanitarian law during military operations on a case-by-case basis, the article takes a step back and analyses the legality of the support of the rebels as such. In view of the violations of humanitarian rules reportedly committed by the rebels, the continuous support of the rebels constitutes, on behalf of the supporting States, a violation of the customary obligation to ensure respect for international humanitarian law.

Amerykańska odpowiedzialność za działania Blackwater w Iraku

The article deals with the issue of private military contractors (for example the titled Blackwater), in other words private companies that in situations of international or non-international armed conflicts fulfill the following tasks: protection of particular persons, objects or places, logistics, provisioning or providing interpreters during interrogations. This issue is important for many reasons, inter alia because of the increasing number of such companies and of the character of their tasks, the latter getting closer and closer to military operations. Taking into account the fact that the private military contractors work during armed conflicts, they will very often be threatened with armed attacks. On the other hand there is a huge risk of private military contractors committing crimes. This article concentrates on the problem of responsibility of States for the acts of private military contractors (including violations of international humanitarian law). Which State is responsible for such violations? Three possibilities are following: the State hiring of such a contractor, a State in whose territory such contractors operate and the State of their registration. When delving into details of this problem the author uses the example of the Blackwater.

Responsabilidad extracontractual del Estado por desplazamiento forzado de personas

En un principio, la teoría de la reparación del daño causado por acción u omisión atribuible al sujeto-Estado se enfrentó al dogma de la irresponsabilidad. Un paradigma que en el contexto del nuevo derecho constitucional no debe permitírsele vigencia alguna porque ya no se trata del ejercicio de un poder divino o leviatán por ser superior a sus habitantes como tesis institucionalistas de otrora. Sin embargo, como se evidenciará, existe posición jurisprudencial que hace remembranza de ella en materia de responsabilidad del Estado por desplazamiento forzado de personas y realidades doctrinales que plantean su retorno atenuado, dado que el derecho de la responsabilidad extracontractual se presenta como una opción poco adaptada para las víctimas. De allí la necesidad de determinar el esquema de resolución al problema jurídico que formula la justicia administrativa con el fin de identificar sus particularidades y establecer la hoja de ruta trazada a la reparación de una de las violaciones más flagrantes a los derechos humanos y el Derecho Internacional Humanitario.

Addressing State Responsibility for the Crime of Military Sexual Slavery during the Second World War: Further Attempts for Justice for the “Comfort Women”

Abstract Between 1932 and the end of the Second World War, the Japanese Government and the Japanese Imperial Army forced over 200,000 women into sexual slavery in rape centres throughout Asia. The majority of the victims were from Korea, but many were also taken from China, Indonesia, the Philippines and other Asian countries under Japanese control. There has been no real redress for these injustices: no prosecutions of guilty perpetrators, no acceptance of full legal responsibility by the Government of Japan, and no compensation paid to the surviving victims. The present paper focuses primarily on the issue of state responsibility and the situation of the Korean survivors. The study concludes that Japan has a continuing legal liability for grave violations of human rights and humanitarian law, violations that amount in their totality to crimes against humanity. The study establishes, contrary to Japanese Government arguments, that (a) the crime of slavery accurately describes the system established by the rape centres and that the prohibition against slavery clearly existed as a customary norm under international law at the time of the Second World War; (b) that acts of rape in armed conflict were clearly prohibited by the Regulations annexed to the Hague Convention No. IV of 1907 and by customary norms of international law in force at the time of the Second World War; (c) that the laws of war applied to conduct committed by the Japanese military against nationals of an occupied state, Korea; and (d) that because these are crimes against humanity, no statute of limitations would limit current-day civil or criminal cases concerning the Second World War rape centres. The paper also refutes the argument that any individual claims that these women may have had for compensation were fully satisfied by peace treaties and international agreements between Japan and other Asian States following the end of the Second World War.

Normative Evolution in Corporate Liability for Violations of Human Rights and Humanitarian Law

Normative Evolution in Corporate Liability for Violations of Human Rights and Humanitarian Law

The Objective Qualification of Non-International Armed Conflicts: A Colombian Case Study

Armed conflict has raged in Colombia since at least the 1960’s, involving governmental forces, rebel groups, and paramilitary forces. The Uribe government (2002-2010) declared that Colombia was not in a ‘state of armed conflict’ but was rather facing a ‘terrorist threat’. This declaration was done in fear of conferring a political status to the armed groups, and most particularly, in fear that a recognition of armed conflict would open the possibility of endowing the Revolutionary Armed Forces of Colombia (FARC) with a ‘belligerency status’. From a legal point of view, the government’s fears were unfounded, since contemporary international humanitarian law does not require a formal for a situation to qualify as armed conflict. During the Uribe administration, efforts were made by the Ministry of Defense to identify operational rules of engagement with precision, violations of international humanitarian law were publicly denounced, and the apex courts adjudicated on issues of international humanitarian law. This seemingly paradoxical situation illustrates the importance of the objective definition of armed conflict, which has been a defining characteristic of international humanitarian law since 1949.

Fact-Finding or Paving the Road to Criminal Justice?: Some Reflections on United Nations Commissions of Inquiry

This article analyses the work of a number of fact-finding commissions established by the United Nations (UN) with a view to assessing their impact on subsequent criminal prosecutions for war crimes and other international crimes and to trigger some reflections on the merits and pitfalls of these bodies. In the first place, the author takes into consideration UN commissions of inquiry leading to the establishment of international criminal tribunals. Fact-finding bodies that have prompted a UN Security Council referral to the International Criminal Court are then examined. The major case in point is the International Commission of Inquiry on Darfur that interpreted its mandate in the broadest possible manner and acted as a quasi pre-judicial body. The author then observes that in recent years there has been a gradual shift and many UN commissions of inquiry — even those that were mainly tasked with the investigation of alleged violations of international humanitarian law — have been established by the Human Rights Council and not by the Security Council. Until now though, there has been a dearth of encouraging results corroborating the validity of such a change of approach. In fact, some of the bodies established by the Human Rights Council have attracted criticism, either because of a one-sided or unbalanced mandate or because they could not gain access to the territory where violations of international humanitarian law were being committed. The author concludes that, for the purposes of gathering evidence for future criminal prosecutions, it is advisable not to assign mandates combining investigations into violations of international humanitarian law together with human rights violations. The author also suggests a division of labour among the various UN bodies undertaking fact-finding activities, the drawing of a ready-to-use set of guidelines and the establishment of a roster of independent experts. These are all measures that could foster the prompt and effective deployment of fact-finding missions.